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All India Report AIR And & Anr. Another Bombay Bom Calcutta Cal. Clause cl. Delhi Del District Magistrate D.M. Honourable Hon’ble Madras Mad. Paragraph ¶ Report Rep. Section Sec. Supreme Court SC Supreme Court Cases SCC Supreme Court Report SCR Union of India UOI United State US Utter Pradesh UP versus v. Vol. Volume
Prabhu Dayal Deorah v. D.M. Kanpur (1974) 1 S.C.C. 103. 25
Prahalad Jena And Ors. V. State 1950 S.C.C. OnLine Ori
PUCL v. UOI (2004) 12 S.C.C. 104. 30
RC Cooper v. UOI (1970) 1 S.C.C. 248. 22
Reliance Petrochemical Ltd V. Indian Express Newspaper
THE PETITIONER MOST HUMBLY AND RESPECTFULLY INVOKE THE WRIT JURISDICTION OF THE HON’BLE SUPREME COURT UNDER ART. 321 OF THE CONSTITUTION OF UNION OF PARKVIEW, 1950. (^1) Art.32. 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 the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause (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 art. shall not be suspended except as otherwise provided for by this Constitution.
Union of Parkview is a democratic country located in Northwing continent. From past 1000 years, many invaders tried their luck to colonise Parkview but eventually it was United world Kingdom (UK) that eventually established its supremacy over Parkview in 1 750 and converted her into their colony for next 200 years. The Constitution framers incorporated a chapter on Fundamental Rights under Part III of their Constitution. The intent of the Constitution makers was very clear that they wish to create a progressive nation with strong foundational values in favour of individual’s life and liberty. The Preventive detention then considered to be one of the most barbaric and regressive law that muzzles the civic liberties of people and rampantly violates their rights and was also undemocratic. Union of Parkview allowed the Preventive detention Act to continue into existence. THE CONTROVERSIAL PREVENTIVE DETENTION ACT Union Government of Parkview various State Governments invoked PD Act citing law and order problems. Consequently, various revolutionary leaders and head of unions were kept under Preventive Detention. State Government enforced the PD Act with heavy hands and began to detain almost everyone on whom there was a suspicion. The Supreme However, it made a specific caution that legislations like PD Act are regressive and symbolic of tyranny and therefore advised the Union of Parkview to work in the direction of scrapping away this law. PD Act has two most controversial provisions one section 6 and there is section 7 which gives power to detain certain persons by central and state governments. THE ELECTION POLITICS All the political parties began to prepare for campaigning and promotion. The State of WhiteLand was currently ruled by PNC and Sociminist Party offered a strong challenge to PNC during this election. Sociminist leader Grey Harris has been in limelight as he has\been very critical of PNC leadership in State and has often highlighted issues of corruption, maladministration and other illegal undertakings in administration. All the political parties began to prepare for campaigning and promotion. The State was currently ruled by PNC and Sociminist Party offered a strong challenge to PNC during this election. Sociminist leader Grey Harris has been in limelight as he has been very critical of PNC leadership in State and has
It is humbly submitted before the Hon’ble Court that, the impugned provision of preventive detention act (herein is referred to as PDA) are complete violation of Article 21 and 22 as per the provision of Article 13(1) because Article 13(1) clearly states that " All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of part III, shall, to the extent of such inconsistency be void. " In the instant matter, Section 6 and Section 7 of the PDA is a clear violation of due process established by law, no legal aid provided to Mr Grey Harris, also he was not presented before the court within 24 hours as prescribed under Article 22 , there is complete violation principle of natural justice from the side of state, there must be a 'live and proximate link' between the grounds of detention and the avowed purpose of detention, there is no harmony between the interests of security and the interests of liberty, no other country allows PDA except in emergency. II. THAT THE ORDER PASSED AGAINST GREY HARRIS FOR PREVENTIVE DETENTION IS NOT VALID IN TERMS OF ARTICLE 19(1)(D) AND ARTICLE 19(1)(5) CANNOT SAVE THE DETENTION ORDER DESPITE AN EXPRESS PROVISION UNDER ARTICLE 22 RELATED TO DETENTION? It is humbly submitted before this Hon’ble court that order passed against Grey Harris is not valid in terms of Article 19(1) (d) and also cannot be protected under Article 19(1)(5). As Grey Harris has right to move throughout the country, the preventive detention imposed upon him is not reasonable, it is against the basic structure of Constitution of India, adequate compensation must be granted to Grey Harris.
Having passed 10 years of my total life in prison dungeons and condemned cells. I know the tortures which detention without trial means and I can never reconcile with it ’- Shibban Lal Saxena in Constituent Assembly.^2 It is humbly submitted before the Hon’ble court that the impugned provision of preventive detention act (herein is referred to as PDA) are complete violation of Article 21^3 and 22^4 as per the provision of Article 13(1)^5 because Article 13(1) clearly states that: " All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of part III, shall, to the extent of such inconsistency be void. " The Hon’ble apex court affirmed it in case of Romesh Thapar^6 where it stuck down section 9(1A)^7 of the Madras Maintenance of Public Order Act, 1949, as the impugned Act was void under Article 13(1)^8 of the Constitution because of its being inconsistent with part III of the constitution.^9 Also, in the case of Binu v. State Of Kerala ,^10 the court strike down section 6 of KESMA^11 as it was inconsistent Article 21 and 22 of the constitution, In the instant matter, Section 6 and section 7 of the PDA is a clear violation of due process established by law [1.1] , no legal aid provided to Mr Grey Harris, also he was not presented before the court within 24 hours as prescribed under Article 22 [1.2] , there is complete violation principle of natural justice from the side of state [1.3] , there must be a 'live and proximate link' between the grounds of detention and the avowed purpose of detention [1.4] , there is no (^2) IX CONSTITUENT ASSEMBLY DEBATES, 1500 (SEPT. 15, 1949 ). (^3) INDIA CONST. Art 21. (^4) INDIAN CONST. art. 22. (^5) INDIAN CONST. art. 22. (^6) Romesh Thapar v. State of Madras, A.I.R. 1950 S.C. 124. (^7) Madras Maintenance act, 1949, s. 9(1A). (^8) INDIAN CONST. art. 13 cl. 1. (^9) Prahalad Jena And Ors. v. State, 1950 S.C.C. OnLine Ori 5. (^10) Binu v. State of Kerala 2002 S.C.C. OnLine Ker 504. (^11) Kerala Essential Services Maintenance Act, 1994, s. 6.
harmony between the interests of security and the interests of liberty [1.5] , no other country allows PDA except in emergency [1.6]. 1.1. IMPUGNED PROVISION OF PDA IS CLEAR VIOLATION PROCEDURE PRESCRIBED BY LAW U/A 21. It is humbly submitted before the Hon’ble court that according to section 6 and 7 of PDA,^12 the central or the state government may detain a person on the grounds of the suspicion that some wrong actions may be done by the person concerned which will be prejudicial to the state. The grounds for preventive detention are security of state, maintenance of public order, maintenance of supplies and essential services and defence, foreign affairs or security of India. A person may be detained without trial only on any or some of the above grounds subject to closest scrutiny and examination by the courts.^13 As under PDA, Grey Harris has been deprived of his right to life and personal liberty, guaranteed by Article 21,^14 without procedure established by law, it allows the arbitrary and abusive use of the power to detain by the government of state of Whiteland. It is clear encroachment on personal liberty guaranteed under Article 21.^15 It states that no man can be deprived of his life or personal liberty^16 except according to the procedure established by law. In Maneka Gandhi Case^17 , this court in clearest terms strengthened the rule of law vis a vis personal liberty by insisting on the procedure contemplated by Art. 21 having to be fair and reasonable, not vagarious, vague and arbitrary.^18 Similarly, In the Gopalachari case,^19 where the constitutionality of section 110 of Cr. P.C.^20 was challenged, The Hon’ble supreme court held that constitutional survival of s.110 certainly depends on its obedience to Art. 21 Words of wide import, vague amplitude and far too generalised to be safe in the hands of the Police cannot be constitutionalised in the context of Art. 21 unless read down to be as a fair and reasonable legislation with reverence for human rights. A prisoner, be he a convict or under-trial or a detenu, does not cease to be a human (^12) MOOT PROPOSITION ¶5. (^13) Shafiq Ahmad v. District Magistrate, Meerut, A.I.R. 1990 S.C. 220. (^14) INDIA CONST. Art. 21. (^15) Kamlesh Kumar Ishwards Patel v. UOI, (1995) 4 S.C.C. 51. (^16) Kharak Singh v. State of U.P. & Ors., A.I.R. 1963 S.C. 1295. (^17) Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248. (^18) Olga Tellis v. Bombay Municipal Corporation., A.I.R. 1986 S.C. 108; Shail Mehboob Ali v. The Commissioner of Police, 1989 S.C.C. OnLine AP 209. (^19) Gopalanachari v. State of Kerala, A.I.R. 1981 S.C. 674. (^20) Criminal Procedure Code, 1973, s. 110.
as the PNC was weak in that state and knows that they cannot win election because of Grey Harris and because of that Grey Harris has suffered its right to life and personal liberty. Nevertheless, if preventive detention is to remain in the Constitution, the constitutional provisions and constitutional morality must be respected and the law include well-defined criteria specifying limited circumstances in which preventive detention powers may be exercised,^26 also these standards must be designed to allow meaningful judicial review of the official's actions.^27 So, continued pre-trial detention and custody of the accused would amount to denial of the fundamental right guaranteed under Art. 21, even when there is a prescribed law, the law would be neither reasonable, nor fair, nor just.^28 Also, the act is substantially objectionable because no limitation was imposed as to the duration of detention of the person.^29 1.2. GREY HARRIS DEPRIVED FROM LEGAL AID AND ALSO NOT PRESENTED BEFORE THE MAGISTRATE WITHIN 24 HOURS. It is humbly submitted before the Hon’ble court that ‘Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law.’ It has to be strictly construed and meticulous compliance with the procedural safeguards.^30 The Clauses (1)^31 and (2) of Art. 22^32 of the Constitution, guarantee certain fundamental rights to persons who are arrested or detained. Art. 22(1) provides that no person who is arrested shall be detained in custody (a) without being informed, as soon as may be, of the grounds for such arrest, (b) such a person shall not be denied the right to consult and to be defended by, a legal practitioner of his choice. Art. 22(2) requires that every person arrested and detained in custody shall be produced before the nearest Magistrate within twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to court of the Magistrate, and no person shall be detained in custody beyond the said period without the authority of a Magistrate. It is also applicable to give protection against the act of the executive or other non- judicial authority.^33 (^26) E. P. Royappa v. State of Tamil Nadu & Anr, (1974) 4 S.C.C. 3. (^27) Deepak Solanki v. The State & Ors ., 2009 S.C.C. OnLine Del. 1793, ¶15. (^28) Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, (1980) 1 S.C.C. 93. (^29) Virendra v. The State of Punjab, A.I.R. 1957 S.C. 896. (^30) Kamleshwar Ishwar Prasad Patel v. Union of India and Ors., (1995) 2 S.C.C. 51 ¶49. (^31) INDIA CONST. Art 22, cl. 1. (^32) INDIA CONST. Art 22, cl. 2. (^33) State of Punjab v. Ajib Singh, A.I.R. 1953 S.C. 10.
Since none of these concepts are capable of being defined with any great degree of certainty and definiteness, the scope of abuse is admittedly massive. 24 hours of arrest tenders this almost nugatory by permitting the state to preventively detain persons without any judicial scrutiny. Excessive power to detain a person without much checks and balances and minimum judicial interference increases the possibility of possible misuse of power to detain a person. As at present, detainees held under preventive detention laws may be kept in detention without any form of review for up to three months, an unconscionably long period in custody especially given the real threat of torture. Also, Article 22^34 cannot be studied in solo,^35 detention laws are open to challenge under Articles 19 and 21.^36 Also, HM Seervai discusses this in his Commentary^37 , to conclude that perhaps it would have made better sense to have the first two clauses in Article 22 as part of Article 21, making a separate Article for the exclusion. There should not be subjective "satisfaction" of the detaining authority test to govern the implementation of preventive detention law.^38 Detainees must receive detailed and prompt information about the grounds of their arrest. Currently, the detaining authority is required only to communicate the grounds of detention to the detainee "as soon as may be" after the arrest. Preventive detention as enshrined under Article 22 strikes a devastating blow to personal liberties. Article 22 (3)(b) of the Constitution denying detainees virtually all procedural rights during Advisory Board hearings must be repealed.^39 Article 22 requiring the government to "afford" the detainee the opportunity to make a representation implies the right of the detainee to be informed of his or her rights under this article,^40 and also permitted to engage a lawyer.^41 As in Ak Gopalan v. State of Madras ,^42 the Hon’ble Supreme court reiterated that keeping a person in jail without charge and trial is a serious violation of the rule of law even if the Constitution sanctions it in principle. Its use must be limited to exceptional cases. Courts, on their part, should not be hesitant in setting aside (^34) INDIA CONST. Art 22. (^35) Haradhan Saha v. State of West Bengal, (1975) 3 S.C.C 198. (^36) Ak Gopalan v. State of Madras, A.I.R. 1950 S.C. 27. (^37 1) H.M SEERVAI, CONSTITUTIONAL LAW OF INDIA, (4TH ED., 2010). (^38) Khudiram Das v. The State of West Bengal and ors., (1975) 2 S.C.C. 81. (^39) Id. (^40) Uddin Ahmed v. District Magistrate, Aligarh, (1981) 4 S.C.C. 521. (^41) INDIA CONST. Art 22. (^42) Supra 34.
