TC - 66

LAW COLLEGE DEHRADUN, FACULTY OF UTTARANCHAL UNIVERSITY

NATIONAL MOOT COURT COMPETITION – 2017

BEFORE THE HON’BLE SUPREME COURT OF INDISTAN

W. P. (CIVIL) No._____/2017
Special Leave Petition (CIVIL) No. _____/2017
W. P. (CIVIL) No. ______/2017

IN THE MATTERS OF,

Mr. Hobart……………………….……………….. (PETITIONER) v. State

of Anga Pradesh……… (RESPONDENT)

Mr. Ozan…………………………..………….…… (PETITIONER) v. State

of Anga Pradesh ………. (RESPONDENT)

Participation & Emancipation of Women……….. (PETITIONER) v. State

of Anga Pradesh ………………….. (RESPONDENT)

PETITIONS INVOKED UNDER ART. 136 AND ARTICLE 32 OF

THE CONSTITUTION OF INDISTAN
___________________________________________________________________________
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S
COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDISTAN

MEMORANDUM OF ARGUMENTS FOR THE PETITIONER

PETITIONER TC-66

TABLE OF CONTENTS

Type here.

INSTRUCTIONS:

1. As this is the initial part of a memorial, teams should be conscious of the initial
impact that the headings in the table of contents can have upon the judges.

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LIST OF ABBREVIATIONS

¶ Paragraph
AIR All India Reporter
Art. Article
ed. Edition

C.P.C. Civil Procedure Code

No. Number
p. Page
pp. Pages
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Supp. Supplement
Vol. Volume

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INDEX OF AUTHORITIES

Sr. No. Title Citation Appear on page(s)

1 A v. B AIR 2007 SC 01 12, 15

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STATEMENT OF JURISDICTION

The Honourable Supreme Court has clubbed three petitions for hearing in the instant
case. Thus the petitioners have approached the Honourable Court under the following
jurisdictions:

1. The petitioner in the first matter, Mr. Hobart has approached the Honourable Supreme
Court by filing a Writ Petition under Article 32 of the Constitution of Indistan challenging
the constitutional validity of the rules prohibiting live telecast of the proceedings of the
House.

2. The petitioner in the second matter, Mr. Ozan has approached the Honourable Court by
special leave from this court under Article 136 of the Constitution of Indistan to appeal
against the order of the Anga Pradesh High Court.

3. The petitioner in the third matter, the NGO namely Participation and Emancipation of
Women has approached the Honourable Court by filing a public interest litigation in the
form of a writ under Article 32 of the Constitution of Indistan.

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STATEMENT OF FACTS

Background

1. The Constitution of Indistan establishes Indistan as ‘Union of states’ of which

‘Federalism’ is one of the basic features. The Constitution of Indistan is considered and
described as one of the most progressive constitution based on the principle of ‘liberal
democratic’ governance. The constitutional, legal and policy framework of Republic of
Indistan are Pari Materia to the Republic of India.

2. Anga Pradesh (A.P) is a state in the north-eastern part of the Republic of Indistan. It is
inhabited by 13 major tribes, which constitutes the 97 percent population of state. Anga
Pradesh (A.P) has been granted a great degree of state autonomy, as well as special
powers and autonomy for tribes to conduct their own affairs. The autonomy of Anga
Pradesh is ensured by Article 371A of the Constitution of Indistan. Literacy rate is
exceptionally high in the Anga Pradesh i.e. around 95 % - the typical gender
discrimination in the social and economic realm is almost absent.

Live telecast of proceedings of business of the House

3. Mr. Hobart is a veteran legislator, who has been elected consecutively to the State
Assembly of Anga Pradesh (A.P.) for 6 times.
4. While Mr. Hobart was making a speech on “ Women’s participation, representation in
tune with the constitutional objectives” on the floor of the House, his smart phone (which
has touch- screen feature) got activated and the speech became ‘Live’ through his social
media page of Facebook using the internet services (Wi-Fi) of the Legislative Assembly
itself.
5. The Hon’ble Speaker of the Legislative Assembly received another complaint from the
Leader of Opposition against Mr. Hobart for “breach of ethics and rules of procedure of
the House”. The speaker also got this incident examined by the Ethics Committee of the
House.
6. On recommendation of the Ethics Committee of the House, the Hon’ble speaker
suspended Mr. Hobart for six weeks to what he replied he was not aware of activation of

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his social – media page in his mobile phone as it was a new era Smartphone (which had
the feature of Touch-Screen).
7. He further, sought a review of the decision i.e. ‘Suspension of six weeks from Assembly’
of the Hon’ble speaker. The speaker disposed of the review petition and retained his
previous decision in case of Mr. Hobart.
8. Mr. Hobart challenged the decision of Hon’ble Speaker as violation of Fundamental
Rights and constitutional norms in the modern governance in a writ petition before the
Supreme Court of Indistan and also sought the writ declaring the rules as unconstitutional
which prohibits the ‘Live Telecast’ of Proceedings Of the business of House as violation
of basic feature of the Constitution i.e. Democracy. The Supreme Court of Indistan has
issued a notice in the writ petition of Mr. Hobart.

Porn Gate Scandal

9. Two Ministers of the Anga Pradesh, Mr. Savadi and Mr. Ozan were allegedly caught on
Television camera watching porn on the mobile phone page during assembly proceedings.
10. It was the mobile phone of Mr. Savadi, which has the porn opened and another Minister
Mr. Ozan peeping into the phone of Mr. Savadi. It was playing the clip of child
pornography. The News of this incident was flashed by the major news channels of the
country.
11. The speaker of the Legislative Assembly of Anga Pradesh received a memorandum of
complaint from the leader of the opposition against two ministers seeking an investigation
into the alleged ‘Porn Gate Scandal’ and demanded an FIR to be registered against the
two ministers for playing child pornographic movie. It further stated that the Hon’ble
Supreme Court of Indistan recently banned all the website containing child pornographic
movies.
12. Next day, the speaker suspended the membership of two ministers and referred the matter
to the Ethics committee of the Assembly to enquire into the alleged ‘Porn Gate’ incident.
The Ethics Committee viewed this issue very seriously and recommended the expulsion
of Mr. Savadi to the Speaker. In case of Mr. Ozan, it took a lenient view and
recommended suspension of six weeks from the legislative assembly giving benefit of
doubt and indirect involvement in browsing porn website on Mr. Savadi mobile phone.

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13. The Hon’ble Speaker accepted the recommendations of the Ethics Committee in case of
two ministers i.e. Mr. Savadi and Mr. Ozan. The Hon’ble speaker, Legislative Assembly
of A.P. directed the Secretary General of the Legislative Assembly to get an FIR
registered in the incident against Mr. Savadi as it was his mobile phone which has the
porn website on.
14. Pursuant to First Information Report (FIR), the police initiated an investigation and
sought the access of mobile phone of Mr. Savadi to which he denied claiming the
protection guaranteed under Fundamental Rights against the illegal search and seizure in
absence of proper warrant and jurisdiction. He further claimed that the alleged incident
happened inside the Assembly when the session was going on and he further claimed the
absolute privilege and immunity from such seizure and investigation of the incident
which happened inside the legislative assembly when the session was going on.
15. The superintendent of police, in whose jurisdiction the premises of legislative assembly
was situated, sought the permission from Hon’ble speaker to inspect, search the offices of
Mr. Savadi and Mr. Ozan, access to their computers and other internet based services as
provided in the premises of Legislative Assembly.
16. The Speaker categorically authorized the police to conduct the physical search and
seizure of the two offices, respective official computers of both the ministers in presence
of Secretary General of the Assembly.
17. On search and seizure, the police could not recover any incriminating material related to
‘Porn Gate Scandal’ from the computers and internet based services of Mr. Savadi.
However, it found that the official computer of Mr. Ozan has been used to access various
website containing child pornographic clips and store the same through an Internet file-
sharing program.
18. Mr. Ozan has filed a Special Leave Petition to the Supreme Court of Indistan against the
order and judgment of High Court of Anga Pradesh (A.P.) in the Writ Petition filed by
Mr. Ozan challenging the constitutionality of the search and seizure proceeding
conducted on him and raising the ‘substantial question of law’ as to the interpretation of
Constitution of Indistan.

Reservation of seats in the Municipality for women in Anga Pradesh

19. The PEW –Participation and Emancipation of women is an NGO based in Anga Pradesh
working for the socio, economic and political justice to the tribal women in Anga
Pradesh. The awakened literate tribal women belonging to almost all 13 tribes have their

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association seeking a fair share in political sphere also. All these 13 Tribes association are
affiliate members of PEW as well.
20. In January 2017, there was a general election held in the state of Anga Pradesh. The
political party led by Mr. Yohanan ( member of legislative assembly) and the election
manifesto of his political party promised the implementation of provisions of part IXA of
the constitution of Indistan including the reservation in favour of women by bringing
suitable ‘law’ within a period of six months .
21. After the land slide victory of Mr. Yohanan, the cabinet as chaired by Mr. Yohanan
approved an ordinance to be promulgated by the Governor of Anga Pradesh seeking
immediate implementation of the women reservation to the tune of 33% in the
Municipalities.
22. The news spread among all the majority tribal groups about the proposed ordinance was
approved by the cabinet of Anga Pradesh (A.P) – the tribal leaders (male) under the
banner of Joint Action Committee (JAC) from all the thirteen major tribes made a
representation to the Governor of Anga Pradesh asking to refrain from giving his assent to
the proposed Ordinance.
23. Tribal leaders saw this attempt by the present Govt. Led by Mr. Yohanan as a serious
interference with the tribal customary law and procedure. It also reminded the special
status of Anga Pradesh in terms of Article 371-A of the constitution of Indistan stating
that the constitution (Seventy Fourth Amendment) Act, 1992 being an Act of Parliament
of Indistan, it has no application to the (a) religious or social practices of tribes (b) Tribal
Customary law and procedure.
24. The protests and blockade continued for several weeks which has serious impact on ‘law
and order’ in the state, jeopardizing the human life and dignity in worst manner. It also
resulted in the death of seven protesters in a fortnight period due to various reasons.
25. However, the Governor of the state i.e. Anga Pradesh (A.P) citing his special
responsibility under the Article 371A with respect to ‘law and order’ in the state was not
giving his assent to the ordinance as approved by the cabinet of Mr. Yohanan.
26. The NGO preferred a Writ Petition against Governor of Anga Pradesh before the
Honourable Supreme Court of Indistan under Article 32 of the Constitution of Indistan
seeking a direction for enforcement of provision of Article 243T of the Constitution of
Indistan which would ensure fair – representation of womanhood in the political life of
local governance as envisioned in the Constitution (Seventy Fourth Amendment) Act,
1992.

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STATEMENT OF ISSUES

1. WHETHER THE INSTANT PETITIONS FILED BEFORE THIS HONOURABLE

COURT ARE MAINTAINABLE OR NOT?

2. WHETHER THE RULES WHICH PROHIBITS THE ‘LIVE TELECAST’ OF PROCEEDINGS OF THE

BUSINESS OF HOUSE IS AGAINST THE BASIC FEATURE OF CONSTITUTION AND THE

IMPUGNED ACTIVITIES I.E. ‘LIVE TELECAST OF SPEECH’ IS A PART OF ARTICLE19 OF THE

CONSTITUTION OF INDIA OR NOT?

3. WHETHER THE ‘SEARCH & SEIZURE’ AS CONDUCTED BY POLICE IS WITHIN THE

PERMISSIBLE LIMITS OF THE CONSTITUTION OF INDISTAN AND PROCEDURE PRESCRIBED BY

THE LAW OR NOT?

3.1.WHETHER THE INFORMATION OBTAINED BY POLICE FROM THE INTERNET SERVICE

PROVIDER CONSTITUTE A ‘SEARCH’ PRESCRIBED BY LAW OR NOT?
3.2.IF SO, WHETHER THE ‘SEARCH’ AND SUBSEQUENT ‘SEIZURE’ IS EXCLUDED DUE TO

LEGISLATIVE PRIVILEGES AS AFFORDED TO MEMBERS OF LEGISLATURE OR NOT?

4. WHETHER THIS COURT CAN PASS AN APPROPRIATE WRIT TO THE ‘STATE’ IN THE PETITION
AND ISSUES RAISED BY NGO – PEW (PARTICIPATION & EMANCIPATION OF WOMEN)
SEEKING ENFORCEMENT OF ARTICLE 243T TO THE EXTENT OF RESERVING 1/3RD OF TOTAL
NUMBER OF SEATS TO BE FILLED BY DIRECT ELECTION IN EVERY MUNICIPALITY FOR

WOMEN OR NOT?

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SUMMARY OF ARGUMENTS

Type here.

INSTRUCTIONS:

1. The summary should be very precise and should usually not extend over two (2)
pages.

2. When writing the summary of your argument, it is recommended that participants

do not simply rely upon the headings and topic sentences in the Argument section.
This summary is the essential core of your entire argument, and should truly
illuminate the ultimate purpose of your Memorial.

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ARGUMENT ADVANCED

1. Whether the instant case before the Honourable Supreme Court of Indistan is
maintainable or not?

It is submitted on behalf of the petitioners that the instant matter listed for
hearing consists of three separate petitions against the same respondent which has been
clubbed by the Honourable court. The petitioner in the first petition, Mr. Hobart has
approached the Honourable court filing a writ petition under Article 32 of the Constitution of
Indistan. The petitioner in the second petition, Mr. Ozan has approached the Honourable
court by filing a Special Leave Petition under Article 136 of the Constitution of Indistan.
While, the third petition is a public interest litigation filed by the NGO PEW filed as a writ
petition under Article 32 of the Constitution of Indistan.

1.1. That the writ petition filed by Mr. Hobart is maintainable

It is submitted that the petitioner has filed the instant writ

petition under Article 32 of the Constitution of Indistan. Mr Hobart a member of the
Legislative Assembly of Anga Pradesh has approached the Honourable court challenging the
constitutionality of the rules prohibiting the Live Telecast of proceedings in the House.
Article 32 of the constitution says that “Remedies for enforcement of rights conferred by this
Part (1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall
have power to issue directions or orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate,
for the enforcement of any of (3) Without prejudice to the powers conferred on the Supreme
Court by clauses (1) and (2), Parliament may by law empower any other court to exercise
within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme
Court under clause (2). (4) The right guaranteed by this Article shall not be suspended except
as otherwise provided for by this Constitution1.” The present Article provides for the
enforcement of fundamental rights by means of the specified writ or writs of the same nature.
This Article empowers the Supreme Court as a protector of fundamental rights2. It is
submitted that Mr. Hobart has filed the instant petition for the determination of the

1
Art. 32 Constitution of India, 1949
2
V.N Shukla’s CONSTITUTION OF INDIA 12TH Ed. Eastern Book Company

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constitutionality of a statute and hence the instant petition is maintainable before the
Honourable Court.

1.2. That the Special Leave Petition filed by the Mr Ozan challenging the judgement
of the High Court of Anga Pradesh is maintainable

It is submitted that the petitioner has approached the Honourable court under Article 136 of
the Constitution filing a Special Leave Petition to appeal against the order of the High Court
of Anga Pradesh in a writ filed by the petitioner under Article 226 of the Constitution
challenging the constitutional validity of the procedure of “search and seizure conducted on
him. Article 1363 says that “Special leave to appeal by the Supreme Court (1)
Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing
in clause (1) shall apply to any judgment, determination, sentence or order passed or made
by any court or tribunal constituted by or under any law relating to the Armed Forces.”
Article 136 does not confer a right to appeal to any party from the decision of any Tribunal
but confers a discretionary power in the Supreme Court to grant special leave to appeal from
the order of any tribunal in the territory of India. The Supreme Court will grant a special
leave when the case raises an important principle of law requiring elucidation and final
decision by the Supreme Court4. Thus the petitioner submits that the instant petition raises the
question of the constitutionality of the “search and seizure” proceedings and requires a final
decision from this Honourable Court and files an appeal against the judgement of the Anga
Pradesh High Court.

1.3. That the Public Interest Litigation filed by the NGO PEW is maintainable

It is submitted on behalf of the petitioner, NGO PEW has approached the

honourable court by filing a Public Interest Litigation in the form of a Writ under Article 32
of the Constitution of Indistan. The petitioner has approached the Honourable court to seek a
writ in the nature of mandamus commanding the State Government to pass the new law for
reservation of women in the municipalities of Anga Pradesh. It is also submitted that the

3
Constitution of India, 1949
4
Baldeo Singh vs IT Commissioner AIR 1961 SC 743

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Petitioner is an NGO working for the betterment of the tribal women in Anga Pradesh has an
interest in the passing of this law and as a result has the legal position to file the instant PIL.
To invoke the jurisdiction of this Article it is not necessary that the person who is the victim
of violation of fundamental right should personally approach the court as the court itself can
take cognizance of the matter and proceed suo moto on a petition of any public spirited
individual

The term public interest litigation means litigation for the protection of the public interest. It
is litigation introduced in a court of law, not by the aggrieved party but by the court itself or
by any other private party. It is not necessary, for the exercise of the court’s jurisdiction, that
the person who is the victim of the violation of his or her right should personally approach
the court. Public interest litigation is the power given to the public by courts through judicial
activism. However, the person filing the petition must prove to the satisfaction of the court
that the petition is being filed for a public interest and not just as a frivolous litigation by a
busy body5.

It is submitted that Hon’ble Justice Krishna layer in the case of fertilizer Corporation Kamgar
Union vs. Union of India6, gave the following reasons for liberalization of the rule of Locus
Standi:- 1. Exercise of State power to eradicate corruption may result in unrelated
interference with individuals’ rights. 2. Social justice wan ants liberal judicial review
administrative action. 3. Restrictive rules of standing are antithesis to a healthy system of
administrative action. 4. “Activism is essential for participative public justice” Therefore, it
is submitted that a public minded citizen must be given an opportunity to move the court in
the interests of the public. In the instant case the NGO filed the instant petition for the interest
of the women in the tribes of Anga Pradesh, therefore the petitioner has the locus standi to
file the instant case.

It is also submitted that in order to ensure that Fundamental Rights did not
remain empty declarations, the founding fathers made various provisions in the Constitution
to establish an independent judiciary. Provisions related to FRs, DPs and independent
judiciary together provided a firm constitutional foundation to the evolution of PIL in India.
The founding fathers envisaged ‘‘the judiciary as a bastion of rights and justice’’. An
independent judiciary armed with the power of judicial review was the constitutional device

5
What Is Pil? by Vineet Kothari and Shreshtha Gupta
6
1981 AIR 344, 1981 SCR (2) 52

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chosen to achieve this objective. The power to enforce the FRs was conferred on both the
Supreme Court and the High Courts—the courts that have entertained all the PIL cases. The
Supreme Court can only exercise the discretion for the enforcement of fundamental right
under Art. 32 of the Indian constitution. In law, standing or locus standi is the term for the
ability of a party to demonstrate to the court in sufficient connection to and harm from the
law or action challenged to support that party’s participation in the case 7. Thus the petitioners
submit that the Honourable Supreme court is the appropriate forum for passing an appropriate
writ in the instant case.

2. Whether the rules which prohibits the ‘Live Telecast’ of proceedings of the business
of House is against the basic feature of Constitution and the impugned activities i.e.
‘Live telecast of Speech’ is a part of Article19 of the Constitution of India or not?

2.1. That the act of Mr. Hobart was unintentional.

It is submitted on behalf of the petitioner that this act can’t be taken into account
as crime or Breach of ethics and violation of Constitution. That it humbly submitted that in a
Healthy Democracy, it is the right of the citizen to know. This act lessen the gap between the
people and their government. The fundamental right of citizen to know what is government
doing for their benefit. “Live Telecast “of proceeding of business of House is a. “Right To
Information has been given the status of a fundamental right under Article 19(1) of the
Constitution in 2005. Article 19 (1) under which every citizen has freedom of speech and
expression and have the right to know how the government works, what role does it play,
what are its functions and so on”.The Live Telecast can be on Social Network or Media .
Anyhow not going to hamper anything neither the security of state. Or violation of article 19.

That the

That it is humbly submitted before honourable court that Parliamentary privilege refers to
rights and immunities enjoyed by Parliament as an institution and MPs in their individual
capacity, without which they cannot discharge their functions as entrusted upon them by the
Constitution.

7
Bodhisattwa Gautam vs Subra Chakraborty AIR1996 SC 922, Rudul Shah vs State of Bihar AIR 1983 SC1086,
People’s Union for Democratic Rights vs Police Commissioner (1989)4 SCC 730, AK Gopalan vs State of Madras
AIR 1950 SC27

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Article 105 of the Constitution relating to the "Powers, privileges and immunities of
Parliament and its members" and Article 194 relating to the State Legislatures and their
members contain certain enumerated privileges and powers while leaving room for a large
number of uncodified and unenumerated privileges to continue. Reference to certain other
provisions like Articles 118, 121, 122, 208, 211 and 361-A, which also have a bearing on the
subject, are made at the appropriate places. Article 105(1) guarantees freedom of speech in
Parliament subject of course to the rules and Standing Orders regulating the procedure of
Parliament. What makes Article 105(1) effective and much more than the right of every
citizen to free speech guaranteed by Article 19(1)(a), is the immunity from the process of the
courts in respect of anything said in the House. The privilege is available not only to the
Members of Parliament but also, under Article 105(4) of the Constitution, to persons like the
Attorney General of India or Ministers who are not members but have a right to speak in the
House. The stage has been set for fearless participation in the debates in the House. In order
to claim the immunity, what needs to be shown is only that Parliament was sitting and that its
business was being transacted. Article 194 states Powers, privileges, etc, of the House of
Legislatures and of the members and committees thereof:

(1) Subject to the provisions of this Constitution and to the rules and standing orders
regulating the procedure of the Legislature, there shall be freedom of speech in the
Legislature of every State

(2) No member of the Legislature of a State shall be liable to any proceedings in any court in
respect of anything said or any vote given by him in the Legislature or any committee
thereof, and no person shall be so liable in respect of the publication by or under the authority
of a House of such a Legislature of any report, paper, votes or proceeding.

Among other things, any action 'casting reflections' on MPs, parliament or its committees;
could be considered breach of privilege. This may include publishing of news items,
editorials or statements made in newspaper/magazine/TV interviews or in public speeches.
Mr. Hobart broken the parliamentary privileges as it tarnished the image of the people’s
assembly and provided opponents to ridicule as the rules of constitution of democratic
country Indistan was broken by live telecasting of speech. To preserve the privacy and not
allow the media to agitate and exploit differences of opinions. If it is an open and responsive
democracy than it can be challenged in the court of law.

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3. Whether the ‘search & seizure’ as conducted by Police is within the permissible limits
of the Constitution of Indistan and procedure prescribed by the law or not?

3.1. Whether the information obtained by police from the Internet Service Provider
constitute a ‘search’ prescribed by law or not?

3.2. If so, whether the ‘search’ and subsequent ‘seizure’ is excluded due to legislative
privileges as afforded to members of legislature or not?

Whether Right to Privacy is violated or not?

1. In the instant case the search and seizure that was conducted was a direct attack on the
fundamental Right of the petitioner as the search and seizure procedure that was followed by
the police officials were procedurally incorrect that is they were fraudulent in nature and the
parameters set by the Hon’ble Supreme Court of India in its landmark judgement regarding
the Fundamental Right of every person to Privacy are in contradiction to the act of the police
officials.

2. The Hon’ble Supreme Court in its judgement put emphasis on various aspects of
Human Life which includes core the preservation of personal intimacies, the sanctity of
family life, marriage, procreation, the home and sexual orientation. The court also laid
emphasis on the fact that privacy cannot be surrendered or deemed to have been surrendered
by the mere notion that the person is in public place.

3. Thus in this instant case the fact that Mr. Ozaan was watching some intimate scene in
the public that is in the open session is not a indicative that he has surrendered his privacy nor
it is indicative of the permission to the police officials to encroach Mr. Ozaans Fundamental
Right.

4. As time advances, Society also advances and along with societal advancement laws
must also change and the Hon’ble Supreme Court emphasized on this point saying “The
Constitution must evolve with the felt necessities of time to meet the challenges thrown up in
a democratic order governed by the rule of law. The meaning of the Constitution cannot be
frozen on the perspectives present when it was adopted. Technological change has given rise
to concerns which were not present seven decades ago and the rapid growth of technology
may render obsolescent many notions of the present. Hence the interpretation of the
Constitution must be resilient and flexible to allow future generations to adapt its content
bearing in mind its basic or essential feature”

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5. An invasion of life or personal liberty must meet the three-fold requirement of (i)
legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state
aim; and (iii) proportionality which ensures a rational nexus between the objects and the
means adopted to achieve them;

Thus in this instant case the three ingredients which are set out by the Hon’ble Supreme
Court of India are not fulfilled as the law prescribes the appropriate authority as Secretary,
Ministry of Home Affairs in case of Central Government and Secretary in charge of Home
Deptt. In case of State Government to issue directions for interception or monitoring or
decrypting of any information and in this case the direction was issued by the Speaker,
instead of the Secretary of Home Department, and in addition to that the FIR that was lodged
along with the investigation procedure was followed so swiftly, it raises a question of doubt
as, the search operation was conducted after Mr. Ozaan was dismissed from the assembly,
thus he had no access to his official chambers and also why instead of checking the personal
computers, the police officials were keen to search the official computer to which he had no
access at that point of time.

Thus it can be easily deduced from the above facts that there was clear violation of the Right
to Privacy of Mr. Ozaan.

The Privacy is a fundamental human right, enshrined in numerous international human rights
instruments8. Article 21 of the Indian Constitution of India upholds Protection of Life and
personal liberty.

Article 21 declare deep faith and belief in Human Rights. Pattern of Guarantee woven in
Chapter 3 of this Constitution, personal liberty of man is at root of Article 21 and each
expression used in this Article enhances human dignity and values. It lays foundation for a
society where rule of law has primary and not arbitrary or capricious exercise of power.9

Privacy can be restricted by procedure established by law which would have to be just and
fair and reasonable10 but currently the procedure laid down by the Information Technology
Act and the Telegraph Act is devoid of any Judicial Interference.

8
Universal Declaration of Human Rights Article 12
9
Kartar Singh vs State of Punjab
10
Maneka Gandhi vs Union of India.

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According to the IT Interception Rules, only the competent authority can issue an order for
the interception, monitoring or decryption of any information generated, transmitted, received
or stored in any computer resource under sub-section (2) of section 69 of the Information
Technology Act.11 (Rule 3) At the State and Union Territory level, the State Secretaries
respectively in charge of the Home Departments are designated as “competent authorities” to
issue interception directions.12 (Rule 2d) In unavoidable circumstances the Joint Secretary to
the Government of India, when so authorised by the Competent Authority, may issue an
order.13 Interception may also be carried out with the prior approval of the Head or the
second senior most officer of the authorised security agency at the Central Level and at the
State Level with approval of officers authorised in this behalf not below the rank of Inspector
General of Police, in the emergent cases.14

Judges are best suited to apply the legal tests that ensure that any interference with the right
to privacy carried out by intelligence or security agencies complies with the principles of
necessity and proportionality. There is growing recognition by international experts and by
national laws that surveillance should only be carried out on the basis of a judicial order.15
The judicial authority should also ensure that any surveillance carried out is in compliance
with such order and, more broadly, respect the right to privacy.

Thus it can be easily said that the existing law with respect to Information Technology Act,
2000 which provides for a procedure to search in case of any violation of law with respect to
Information Technology Act is violative of guidelines of the Honourable Supreme Court of
India given in the famous Maneka Gandhi Case.

Thus it is contented that the provisions are not well in accordance with the constitution of
India.

11
Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of
Information) Rules, 2009.
12
Id
13
Supra 4
14
in remote areas, where obtaining of prior directions for interception or monitoring or decryption of
information is not feasible; or 2) for operational reasons, where obtaining of prior directions for interception
or monitoring or decryption of any information generation, transmitted, received or stored in any computer
resource is not feasible
15
See U N High Commissioner for Human Rights’ report on the right to privacy in the digital age, UN doc. A/
HRC/27/37, 30 June 2014.

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The search and seizure that was conducted by the police and from where the alleged
incriminating materials have been found, were searched on the basis of the permission given
by the Hon’ble Speaker of the Legislative Assembly to the Superintendent of the Police under
whose jurisdiction the Legislative Assembly was situated.

But the petitioners humbly submit that they were not only searching the room or the official
chamber of the accused member Mr. Ozan and Mr. Savadhi but also they resorted to
checking of official computer of the accused Members of Legislative Assembly.

Information Technology (Procedure and Safeguards for Interception, Monitoring and

Decryption of Information) Rules, 2009 lays down under Rule 3 that no person shall carry out
the interception or monitoring or decryption of any information generated, transmitted,
received or stored in any computer resource under sub section (2) of section 69 of the Act,
except by an order issued by the competent authority.

And Rule 2 clause (d) defines Competent Authority as the Secretary in the Ministry of Home
Affairs, in case of the Central Government or The Secretary in Charge of the Home
Department, in case of a State Government or Union Territory, as the case may be.

Thus it can be said that information obtained from the Internet Service Provider doesn’t
constitute search per say in accordance with the Information Technology Act, 2000.

The third issue which talks about question of privilege raised by the petitioner in the Apex
Court of the Country is question of utmost importance and it does shows the hidden political
agenda behind the expulsion of the alleged member of legislative assembly on the charges of
watching Porn.

It is contended that there are several instances which shows that inspite of more serious and
grave misconducts, members of the legislature are neither suspended nor dismissed on the
basis that the misconduct was not in relation to the business of the house16. Even in cases
where the members (Madhu Dadavante) have displayed revolver in the house while making
submission have been asked to express unqualified regrets and later case was closed.17

16
LS Deb., 20.12.1974, cc. 236-38
17
LS Deb., 28.2.1983, c. 393

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4. Whether the court can pass an appropriate writ to the State in the petition and issues
raised by NGO-PEW seeking enforcement of article 243T to the extent of reserving1/3
rd of the total number of seats to be filled by direct election in every municipality for
women or not?

It is submitted on behalf of the petitioners that the petitioner has approached The Honourable
Apex court filing a petition under Article 32 of the Constitution and the Honourable court has
the jurisdiction to hear the instant petition.

4.1. That the Honourable court can pass a Writ in the nature of Mandamus

It is submitted on behalf of the petitioner that Honourable court may grant an order
for the enforcement of Article 243T of the Constitution of Indistan. Mandamus means “we
command” or “we order”. This writ is passed by the High Court or the Supreme Court to a
public authority or a lower court to perform a public or statutory duty. The Supreme Court
passes such writ in a situation when a duty is to be performed by the public authority,
corporation or a lower Court and such duty is not performed by them.it is submitted that. It is
submitted on behalf of the petitioner that the Honourable Supreme Court issue an order for
the enforcement of Article 243T of the constitution and the court may order the governor.

4.2. That enforcement of Art 243T on AP is necessary as it reflects the national policy
for upliftment of women

It is submitted on behalf of the petitioner that the ordinance should have been passed and that
Article 243T should also be applied to the state of Anga Pradesh for the increased
participation of women in the management of affairs of the State. Article 243T18 says
“Reservation of seats: (1) Seats shall be reserved for the Scheduled Castes and the Scheduled
Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may
be, the same proportion to the total number of seats to be filled by direct election in that
Municipality as the population of the Scheduled Castes in the Municipal area or of the
Scheduled Tribes in the Municipal area bears to the total population of that area and such
seats may be allotted by rotation to different constituencies in a Municipality (2) Not less
than one third of the total number of seats reserved under clause ( 1 ) shall be reserved for
women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes (3)

18
Constitution of India, 1949

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Not less than one third (including the number of seats reserved for women belonging to the
Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct
election in every Municipality shall be reserved for women and such seats may be allotted by
rotation to different constituencies in a Municipality (4) The offices of Chairpersons in the
Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women
in such manner as the Legislature of a State may, by law, provide (5) The reservation of seats
under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the
reservation for women) under clause (4) shall cease to have effect on the expiration of the
period specified in article 334 (6) Nothing in this Part shall prevent the Legislature of a State
from making any provision for reservation of seats in any Municipality or offices of
Chairpersons in the Municipalities in favour of backward class of citizens”

The women reservation is a National policy brought about by 73rd & 74th constitutional
Amendment Act 1992 to empower women belonging to Scheduled Caste and Scheduled
Tribe in Municipalities for a period of 10 years and further extended for a period of 10 years
in 2012 and will end by 2022 unless further extended19. The idea of providing reservation for
the benefit of the weaker section of the society is not only to ensure their participation in the
conduct of the affairs of the municipality, but it is also to improve their lot. The whole idea is
to see that the minimum number of seats provided are filled in by vulnerable sections of the
society.

It is also submitted that the State Legislature could have passed the law without
any challenge as the law for reservation of 33% seats of the municipality for women is
constitutionally valid. Article 15(3) says that “Nothing in this article shall prevent the State
from making any special provision for women and children” It is submitted that the increase
in reservation of women is necessary for the betterment and increased participation of the
tribal women of Anga Pradesh in the management of the affairs of the State. Thus the
implementation of Article 243 T is a very progressive step and should not be hindered.

4.3. That article 371 A of the constitution cannot be exercised in the instant case

19
By The Morung Express on January 25, 2017

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It is submitted on behalf of the petitioner that the Article 371 A confers a

special status to the State of Anga Pradesh. It ensures that the culture and customary practices
of the tribes in Anga Pradesh is not affected by the laws passed by the Central Legislature. In
a democratic country like Indistan, which is governed by Rule of Law, the people’s liberty
and freedom are under the law in fact. there were four clauses under the 371 (A) and none of
them prohibits women reservation. However, assuming there was such a custom that does
prohibit reservation, he said that still any custom which is opposed to public policy is invalid
in law.

Although tribal customary laws are unwritten and uncodified, these oppressive customary
practices have emerged as a result of the patriarchal interpretation of these laws by men.
Women are actively kept out of the customary bodies and hence, have no say in the decisions
affecting the tribe. the apex court had time and again made it clear that the custom and
personal law cannot overwrite the statutory provisions of the constitution. There are countless
of such innovative policies and programme which does not infringe Article 371 A but only
empowers its citizens growth economically, so is the women empowerment, right to girls
education, even establishing the Department of Women Development does not in any way
infringes Article 371. It is thus humbly submitted on behalf of the petitioner that there has
been no infringement of Article 371 A and that the Governor cannot apply the said provision
as a ground for not giving assent to the ordinance

It is also submitted that as per Article 213 of the constitution says that the decision to pass an
ordinance is upon the satisfaction ths Council of Ministers and not the decision of the
Governor alone. The ordinance was approved by the cabinet lead by Mr Yonahan whose
party was recently elected to the house and they brought the ordinance for the betterment of
the people of Anga Pradesh being their representative and the Governor should have given
his assent to the ordinance.

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PRAYER

In light of facts presented, questions raised, arguments advanced and authorities cited, the
Counsels for the Petitioners most humbly and respectfully pray before this Hon’ble Court,
that it may be pleased to adjudge and declare that,

1. A writ in the nature of mandamus declaring the rules prohibiting the live telecast of
proceedings of the house as unconstitutional
2. That the procedure of search and seizure conducted on petitioner Mr. Ozan was
unlawful and violated his fundamental rights
3. A writ in the nature of mandamus instructing the Governor of Anga Pradesh to
approve the ordinance for the reservation of women

The Court may also make any such order or orders as it may deem fit in the light of Justice,
Equity and Good conscience. And for this Act of kindness the Petitioners shall as duty bound
ever humbly pray.

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