CHANAKYA NATIONAL LAW UNIVERSITY GENERAL INTRA MOOT COURT

COMPETITION-2018

R 33
TEAM CODE:

BEFORE THE HON’BLE SUPREME COURT OF BHARAT

IN THE MATTERS OF:

LT. COL. HOSHIYAR SINGH …PETITIONER NO.1

THE UNION OF BHARAT …PETITIONER NO.2

VS.

STATE OF DRAS …RESPONDENT NO.1

NATIONAL HUMAN RIGHTS COMMISSION …RESPONDENT NO.2

WRIT PETITION NOS. 15211 OF 2018

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF BHARAT IN CASE CONCERNING

WRIT UNDER ARTICLE 32 OF THE CONSTITUTION OF BHARAT AND CONSTITUTIONAL

VALIDITY OF SPAFA,2016

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS

COUNSEL APPEARING ON BEHALF OF THE RESPONDENTS

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TABLE OF CONTENTS

INDEX OF AUTHORITIES ...................................................................................................... v

STATEMENT OF JURISDICTION......................................................................................... vi
STATEMENT OF FACTS ...................................................................................................... vii
STATEMENT OF ISSUES ...................................................................................................... ix
SUMMARY OF ARGUMENTS ............................................................................................... x
ARGUMENTS ADVANCED ................................................................................................... 1
1. THAT THE WRIT PETITION FILED WITH THE HIGH COURT OF NERUDA IS NOT
MAINTAINABLE ................................................................................................................. 1
1.1 That none of the grounds to challenge the purported move by the ALR as delegated
legislation were satisfied .................................................................................................... 1
1.2 That no prima-facie case for breach of fundamental rights has been established ....... 1
1.3 That domestic law may not be questioned on the grounds of contravening international
commitments .................................................................... Error! Bookmark not defined.
1.4 That the writ petition is based on pure apprehension. Error! Bookmark not defined.
2. THAT § 3 OF THE LINKING OF RIVERS ACT 2010 IS INTRA VIRES THE
CONSTITUTION OF ARESSIA .......................................................................................... 1
2.1 That § 3 of the linking of rivers act in ‘pith and substance’ falls outside the legislative
competence of the states .................................................. Error! Bookmark not defined.
2.1.1 The object and purpose of the impugned section does not relate to subject-matters
enumerated in List II of the Seventh Schedule ............ Error! Bookmark not defined.
2.1.2 The scope of the impugned section relates to subjects outside the legislative
competence of the State Legislatures ........................... Error! Bookmark not defined.
2.1.3 The Effect of the impugned section relates to matter outside the legislative
competence of the State Legislatures ........................... Error! Bookmark not defined.
2.2 That Residuary Powers with respect to legislative competence is vested with the
Parliament. ....................................................................... Error! Bookmark not defined.
3. THAT THE EXCLUSION OF THE STATE OF VINDHIYA FROM THE LINKING OF
RIVERS PROJECT IS NOT VIOLATIVE OF THE FUNDAMENTAL RIGHTS OF THE
PEOPLE OF STATE OF VINDHIYA AND STATE OF NORMANDA. ........................... 6

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3.1 THAT THE WRIT PETITION IS NOT MAINTAINABLE SINCE THERE HAS
BEEN NO VIOLATION OF FUNDAMENTAL RIGHTS:Error! Bookmark not
defined.
3.1.1 Right To Equality Allows For Classification Under Certain Circumstances And
The Same Has Not Been Violated. .............................. Error! Bookmark not defined.
3.1.1.1 Right To Equality Allows Classification Under Certain
Circumstances: ......................................................... Error! Bookmark not defined.
3.1.1.2 That A.14 Has Not Been Violated ............... Error! Bookmark not defined.
3.2 THAT A.21 OF THE CONSTITUTION IS SUBJECT TO THE REASONABLE
PERSON’S TEST AND HAS NOT BEEN VIOLATED Error! Bookmark not defined.
3.2.1 That A. 21 of the Constitution includes Right to Live in a Wholesome
Environment ................................................................. Error! Bookmark not defined.
3.2.2 That the Reasonable Person’s Test is used to determine the right to be given
precedence.................................................................... Error! Bookmark not defined.
3.2.3 A.21 of the Constitution has not been violated. .. Error! Bookmark not defined.
3.3 THAT NOT FOLLOWING THE COMMITMENTS OF THE RAMSAR
CONVENTION IS A VIOLATION OF INTERNATIONAL LAW.Error! Bookmark
not defined.
3.3.1 That the commitments of the Ramsar Convention are International Law and must
be adhered to. ............................................................... Error! Bookmark not defined.
3.3.2 That By Excluding The State Of Vindhiya From The Project, Aressia Has Abided
By International Law ................................................... Error! Bookmark not defined.
3.4 THAT THE COMMITTEE ON EIA WAS ADHERING TO TREATY GUIDELINES
AND NATIONAL LAW AND THE CENTRAL GOVERNMENT WAS ACTING IN
CONFORMITY WITH THE SAME ............................... Error! Bookmark not defined.
3.4.1 That The EIA Committee was Adhering To Treaty Guidelines and National
law ................................................................................ Error! Bookmark not defined.
3.4.2 That the Central Government was acting on the report of the EIA to stay in
conformity with the International Obligations and National Laws.Error! Bookmark
not defined.
3.5 THE DOCTRINES OF PRECAUTIONARY PRINCIPLE AND SUSTAINABLE
DEVELOPMENT ARE A PART OF NATIONAL ENVIRONMENTAL LAW AND
HAVE BEEN ADHERED TO......................................... Error! Bookmark not defined.

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3.5.1 The Precautionary principle is a part of national environmental law: ......... Error!
Bookmark not defined.
3.5.2 Precautionary Principle has been adhered to. ..... Error! Bookmark not defined.
4. THAT THE LINKING OF RIVERS ACT, 2010 DOES NOT VIOLATE THE
ENVIRONMENTAL RIGHTS OF CITIZENS OF ARESSIA AND THE PROVISIONS OF
THE FOREST (CONSERVATION) ACT, 1980. ................................................................. 8
4.1 That Judicial Review Does Not Extend To Expert Committee Reports And The Same
Has Been Complied With. ............................................... Error! Bookmark not defined.
4.1.1 That judicial review does not extend to expert committee reports. ............. Error!
Bookmark not defined.
4.1.2 That the Hon’ble Supreme Court should rely on the decision of the Environment
Impact Assessment Committee. ................................... Error! Bookmark not defined.
4.2 That The Doctrine Of Sustainable Development Is Supplementary To The Doctrine
Of Precautionary Principle And Both Have Been Accounted For In This Case. ..... Error!
Bookmark not defined.
4.2.1 That the doctrine of Precautionary Principle and Sustainable Development, are
supplementary. ............................................................. Error! Bookmark not defined.
4.2.2 The Central Government has passed the order keeping in view the doctrine of
sustainable development. ............................................. Error! Bookmark not defined.
4.3 A Non-Obstante Clause Precludes Any Contrary Interpretation And The Same Is
Applicable To § 2 Of The Forest (Conservation) Act. .... Error! Bookmark not defined.
4.3.1 A Non-Obstante Clause super precludes any contrary interpretation. ......... Error!
Bookmark not defined.
4.3.2 The Forest (Conservation) Act, 1980 supersedes the impugned act. ........... Error!
Bookmark not defined.
PRAYER ................................................................................................................................. xiv

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LIST OF ABBREVIATIONS

¶ Para

¶¶ Paras

SPAFA Special Powers to the Armed Forces Act

JCO Junior Commissioned Officer

NHRC National Human Rights Commission

FIR First Information Report

B.P.C Bharat Penal Code

W.P. Writ Peition

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Art. Article

F.I.R First Information Report

JCO Joint Commissioner Officer

Const. Constitution

Cr.P.C. Criminal Procedure Code

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INDEX OF AUTHORITIES

STATUTES

Article 32, Constitution of India. ............................................................................................... 1

India Penal Code, 1860 .............................................................................................................. 2
Special Powers to the Armed Forces Act, 2016 ........................................................................ 3

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STATEMENT OF JURISDICTION

I. The petitioners have approached this Hon’ble Supreme Court under Article 32 of the
Constitution. The Respondent No. 1 humbly submits to the jurisdiction of this Hon’ble Court.

II. The petitioners have approached this Hon’ble Court under Article 32 of the
Constitution. The Respondent No. 2 humbly submits to the jurisdiction of this Hon’ble Court.

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STATEMENT OF FACTS

1. Bharat is a diverse democratic nation having 28 states and surrounded by 7 countries

out of which 3 are hostile nations namely Dushanbe, Mingora, and Kashgar which
formed an organisation called “DuMiKa”. Bharat, in order to settle their differences
with DuMiKa organized a bilateral negotiation in which DuMiKa demanded major
part of the state of Dras, which holds hostile tribe known as “Azaad” which strongly
opposes Bhartian government and supports the ideologies of hostile nations. Due to
heavy revolt of the tribe, Bhratian Government passed a new legislation on 1st April,
2016 which was called SPAFA, 2016. Soon after implementation, army camps
were attacked resulting in heavy casualities.
2. Army was also occupied in sanitising some disturbed areas of Dras and regular
searches were conducted leading to reports of ill-treatment of women and children
and also killing of tribals by the army. Reports were also being published against
the military with the heading “Criminals in Uniform”. This media report sparked
a debate in the legislative assembly of Dras on 13th January, 2018 and the opposition
recommended the chief minister and his cabinet asking to recommend to the central
government to revoke the act.
3. On 15th January, 2018, an army convoy consisting of 25 Non-Commissioned
Officers and 7 JCO, headed by Lt. Col. Hoshiyar Singh, Commandant of the
battalion, was passing through the tribal area occupied by Azaad tribe. The attackers
started pelting stone and threw petrol bombs on the vehicle and burnt them.
Commandant ordered firing in the air to disperse the mob. A group of attackers tried
to snatch AK-47 of a JCO to which the JCO resisted and this irked the attackers
who inflicted knife blow upon the JCO and hit the soldier on his head with wooden
sticks. Commandant, on seeing this, fired a shot on the attackers who were attacking
the JCO which hit one of the attackers and on sustaining bullet injuries, the attacker
died.
4. NHRC along with the Government of state of Dras lodged an FIR against the
commandant, Lt. Col. Hoshiyar Singh and the JCO under sections
147,307,302,323,326,336,341/34,120B of the BPC.

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5. Commandant moved the Supreme Court under Art. 32 of the Constitution of India
seeking quashing of FIR and entire criminal prosecution against him which was
numbered W.P. (Crl.) No. 15211 of 2018.

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STATEMENT OF ISSUES

1. Whether the FIR against the commandant and JCO is fit to be quashed ?

2. Whether the Special Powers to the Armed Forces Act, 2016, is fit to be quashed and
withdrawn from Dras, in view of the grave Human Rights violations done by the armed forces
?

3. Whether immediate withdrawal of troops from Dras is the need of the hour?

4. Whether the family of the victim, killed in the firing conducted by the army, should be
granted monetary compensation ?

5. Whether the investigation of the incident be handed over to an independent agency ?

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SUMMARY OF ARGUMENTS

[A] THAT THE WRIT PETITION FILED BEFORE THE SUPREME COURT OF BHARAT IS NOT

MAINTAINABLE

The exercise of the writ jurisdiction of the Supreme Courts under Article 32 is largely
discretionary in nature, it is argued that the present petition is not maintainable on the grounds:
1.1] That no prima-facie case for breach of fundamental rights has been established; 1.2] That
the Petitioner No.1 should have filed petition in high court of Dras under Article 226.

[B] THAT FIR AGAINST COMMANDANT AND JCO SHOULD NOT BE QUASHED

The FIR against the commandant and the JCO should not be quashed on the grounds: B.1]
That an enquiry should be held to investigate the offence which was committed against the
victim and even if the offence was committed in discharge of official duty; B.2] That the acts
committed by the petitioner and the allegations were prima facie an offence according to Bharat
Penal Code.

[C] THAT ENACTMENT OF SPAFA, 2016 WAS UNCONSTITUTIONAL IN STATE OF DRAS AND
THERE SHOULD BE IMMEDIATE WITHDRAWAL OF TROOPS FROM DRAS

The SPAFA, 2016 , which was passed by the Bhartian Government and implemented in the
State of Dras was unconstitutional on the basis of grounds: 1.1] That the period for
implementation of SPAFA, 2016 was not extended as per the provision; 1.2] That fundamental
rights of the people were breached and grave human rights violations were committed under
this act; 1.3] That the military exercised extra judicial power and took advantage of the
immunity given to army personnel according to SPAFA, 2016 in the State of Dras

[D] THAT THE FAMILY OF THE VICTIM SHOULD BE GRANTED MONETARY COMPENSATION

The family of the victim should be granted monetary compensation in accordance with the
provisions related to compensation under Code of Criminal Procedure, 1973.

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ARGUMENTS ADVANCED

[A]. THAT THE WRIT PETITION FILED IN THE SUPREME COURT OF BHARAT
IS NOT MAINTAINABLE
1. It is most humbly submitted before the Hon’ble Supreme court that the Writ Jurisdiction
of the Supreme Courts’ flows from Article 321, which confers wide powers enabling the Court
to issue writs, whereby individuals may seek redressal for the violation of their fundamental
rights.2 The exercise of writ jurisdiction by the Supreme Court is discretionary in nature. It is
submitted that the writ petition is not maintainable on primarily two grounds: [A.1] That no
prima-facie case for breach of fundamental rights has been established; [A.2] That the alternate
remedy was not exhausted.

[A.1] THAT NO PRIMA-FACIE CASE FOR BREACH OF FUNDAMENTAL RIGHTS HAS BEEN

ESTABLISHED

2. Article 323 provides the right to constitutional remedies which means that a person has a
right to move to the Hon’ble Supreme court for getting his fundamental rights protected. The
principle for filing a writ petition before Hon’ble supreme court is that there must be a breach
of fundamental right of the petitioner by the respondent. In the present case there is no prima
facie case for breach of fundamental rights of the petitioners. An FIR is a first information
report which is based upon a oral or written complaint and sets the process of criminal justice
in motion4. The Police takes up the investigation after the filing of a FIR. It may be concluded
that a mere filing of FIR is not infringing any fundamental rights of the Petitioner as it is only
setting up of an investigation by the Police. So, their approach towards the writ petition should
not be maintainable.

[A.2] THAT THE ALTERNATE REMEDY WAS NOT EXHAUSTED

3. It is humbly submitted before the Hon’ble Supreme Court that the Doctrine of Exhaustion
of Alternate Remedies directs that a litigant must approach the forum that is nearest to him in
the chain of judicial structure. The extraordinary jurisdiction of the writ courts should not be

1
Const. Art. 32
2
Nirmalendu Bikash Rakshit, Right to constitutional remedy: Significance of Article 32, Vol. 34, RTCR:SA32,
2379, 2379(1999)
3
Supra note 1
4
Section 154, Criminal Procedure Code

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obscured by cases that can be settled by other fora.5 When an alternative and equally efficacious
remedy is open to litigant, he should be required to pursue that remedy and not to invoke the
special jurisdiction of the writ courts.6

Wherever the vires of the statute are capable of being examined by the HC, the SC has usually
redirected the petitioner to pursue that course of action, before petitioning under Art. 32.7

In P.N. Kumar v. Municipal Corporation Delhi,8 The SC redirected the petitioner to approach
the HC under Art. 226 and reasoned that the scope of the article was wider.

5
Rashid v. I.T.I. Commission, A.I.R 1954 S.C. 207.
6
Union of India v. T.R. Verma, A.I.R 1957 S.C. 882.
7
Louise Fernandes v. Union of India, (1988) 1 S.C.C. 201.
8
(1987) 4 S.C.C. 609.

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[B] THAT FIR AGAINST COMMANDANT AND JCO SHOULD NOT BE QUASHED

The FIR against the commandant and the JCO should not be quashed on the grounds: [B.1]
That an enquiry should be held to investigate the offence which was committed against the
victim and even if the offence was committed in discharge of official duty; [B.2] That the acts
committed by the petitioner and the allegations were prima facie an offence according to Bharat
Penal Code.

[B.1] PRIMA FACIE THE ALLEGATIONS IN THE FIR IS CONSTITUTING AN OFFENCE

It is humbly submitted before the Hon’ble Supreme Court that the deceased was killed under
suspicious circumstances and the charges in the FIR are prima facie constituting offence under
the B.P.C.

FIR is fit to be quashed if the charges in the FIR do not constitute an offence under the B.P.C.
as the charges are so absurd that no prudent person can even reach a just conclusion that there
is sufficient ground for proceedings against the accused9. Also the FIR can be quashed if any
information accompanying the FIR do not disclose the cognizable offence or do not support or
disclose the commission of any offence against the accused10.

In this particular case, the charges filed under section are 147, 307, 302, 303, 323, 326, 336,
341, 34, 120B of B.P.C. The commandant fired a shot on the attackers killing a person who
died on the spot.11 The deceased was holding the JCO and was not explicitly stabbing or
attacking the JCO. The act of the commandant was accompanied by mens rea, thus, fulfilling
the condition of murder as the wound of the deceased was fatal which fulfilled the condition as
has been described in the section 307 of B.P.C. Act of the commandant caused the death of
victim12 and he knowingly endangered the personal safety and life of the victim 13 and
voluntarily caused hurt14. Also the death of the victim was under very suspicious
circumstances.

9
State of Haryana vs, Bhajanlal, AIR 1992 SC 604
10
Ibid
11
Moot Proposition, Pg. No. 5, ¶ 1
12
B.P.C. Sect. 307
13
B.P.C. Sect. 336
14
B.P.C. Sect. 323

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As per the above mentioned arguments certain offences were committed and the nature of the
offence is cognizable. Also, the information accompanying the FIR discloses the commission
of the offence by the petitioner.

Hence, it may be concluded that the FIR is not fit to be quashed and a thorough investigation
should be initiated. Also, the charges levied in the FIR are not absurd in nature as the charge
levied are in accordance with the offence.

[B.1.2] FURTHER INVESTIGATION SHOULD BE DONE

The counsel humbly submits before the Hon’ble Supreme Court that there was an offence
committed by the petitioner as a person was killed under vague circumstances. In the case of
Extra Judicial Execution Victim Family Association & Anr. Vs. Union of India & Anr. 15, the
bench stated that if an offence has been committed by an official under SPAFA, 2016 then the
first step is to ascertain whether the act complained of is an offence and the second step is to
determine whether it was committed in the discharge of official duty or not16. This procedure
was advocated by the constitution bench, to prosecute an official under the provisions of Code
of Criminal Procedure, 189817. The constitution bench requires that every death caused by the
armed forces, including the disturbed areas “should be thoroughly enquired into”, if there is a
complaint or allegation of abuse or misuse of power.18

The state has the right to investigate any cognizable offence happening in the state under the
Section 154 and 156 of the Cr.P.C, 1973.

The bench also raised the question that “How does anyone determine the action of causing the
death of a person was indefensible, malafide and vindictive” ? It can only be through an enquiry
as postulated in Naga People’s Movement of Human Rights and Om Prakash.19

Hence, it can be concluded that the killing of the victim requires further investigation as the

15
W.P. (Crl.) 129 of 2012,
16
Extra Judicial Execution Victim Family Association & Anr. Vs. Union of India & Anr., W.P. (Crl.) 129 of 2012,
¶125
17
Matajog Dobey vs. H.C. Bhari, 1956 AIR 44, 1955 SCR (2) 925
18
Extra Judicial Execution Victim Family Association & Anr. Vs. Union of India & Anr., W.P. (Crl.) 129 of 2012,
¶126
19
Extra Judicial Execution Victim Family Association & Anr. Vs. Union of India & Anr., W.P. (Crl.) 129 of 2012,
¶128

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[B.3] THE ACT COMMITTED BY THE PETITIONER WAS NOT IN THE ACCORDANCE OF SECTION
4(A) OF SPAFA, 2016

Any commissioned officer, warrant officer, non-commissioned officer or any other person of
equivalent rank in the armed forces may, in a disturbed area,

(a)if he is of the opinion that it is necessary so to do for the maintenance of public order, after
giving such due warning as he may consider necessary, fire upon or otherwise use force, even
to the causing of death, against any person who is acting in contravention of any law or order
for the time being in force in the disturbed area prohibiting the assembly of five or more persons
or the carrying of weapons or of things capable of being used as weapons or of fire-arms,
ammunition or explosive substances;20

The counsel humbly submits that in the particular case, the facts do not state that there were
any particular laws in the State of Dras that prohibited unlawful assembly of five or more
person who acted in the contravention of the law and prohibited the carrying of arms. The
extent of the act of killing a person requires the fulfilment of the conditions as has been
mentioned in the Section 4(a) of the SPAFA, 2016. The act of the commandant in the particular
case was not in accordance with the Section 4(a) of the SPAFA as per the above mentioned
arguments.

Hence, it may be concluded that the requirement of Section 4(a) of the SPAFA, 2016 was not
adequately fulfilled and the petitioner could not avail the immunity under the act.

[B.3.1] IMMUNITY UNDER THE SECTION 7 OF SPAFA, 2016 WAS QUASHED

The counsel humbly submits that in the ruling of Extra Judicial Execution Victim Family
Association & Anr. Vs. Union of India & Anr.21, the Hon’ble Supreme Court quashed the
immunity of the army personnel which was mentioned in Article 7 of SPAFA, 2016. The court
also held that army or police cannot use excessive force under the provisions of SPAFA, 2016
or the Unlawful Activities Prevention Act under Section 49 to deal with militants or
insurgency.22

20
SPAFA,2016, Sect. 4(a)
21
W.P. (Crl.) 129 of 2012
22
Ibid

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[B.4] EXCESSIVE FORCE WAS USED IN PRIVATE DEFENCE BY THE PETITIONER

It is humbly submitted before the Hon’ble Supreme Court that in the case of Naga People’s
Movement of Human Rights vs. Union Of India23, 10 commandments were issued by the Chief
Of Army Staff of which the first commandment stated that the operations performed by the
armed forces must be people using minimum force and avoiding collateral damage-restrain
must be the key.24

The shot fired by the commandant caused the death of the victim on the spot implying that the
shot fired was of very lethal in nature. It can be deduced that minimum force was not used in
the particular case to deal with the situation at hand. Also, the use of non-lethal weapons should
have been preferred to lethal weapons. The commandant could have injured the attacker to
disperse the crowd. The commandant by retaliating the attacker exceed his right to private
defence as he could have injured or incapacitated the attacker as he had only caught of the JCO
and might not have inflicted the knife blow upon him.

Thus, it can be concluded that by killing the attacker, the commandant exceeded his right to
private defence. Hence, the FIR filed against the petitioner is maintainable.

[C] THAT ENACTMENT OF SPAFA, 2016 WAS UNCONSTITUTIONAL IN STATE OF

DRAS AND THERE SHOULD BE IMMEDIATE WITHDRAWAL OF TROOPS FROM
DRAS

The SPAFA, 2016 , which was passed by the Bhartian Government and implemented in the
State of Dras was unconstitutional on the basis of grounds: 1.1] That the period for
implementation of SPAFA, 2016 was not extended as per the provision; 1.2] That fundamental
rights of the people were breached and grave human rights violations were committed under
this act; 1.3] That the military exercised extra judicial power and took advantage of the
immunity given to army personnel according to SPAFA, 2016 in the State of Dras

23
AIR 1998 SC 431
24
Naga People’s Movement of Human Rights vs. Union Of India, AIR 1998 SC 431

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[C.1] BREACHING OF FUNDAMENTAL RIGHTS OF PEOPLE AND GRAVE HUMAN RIGHTS

VIOLATION

In the state of Dras, several fundamental and human rights were violated by the military acting
under SPAFA, 2016. The fundamental rights of the people residing in state of Dras were
regularly breached in the name of protection of disturbed areas by conducting irregular
searches. There were also reports of ill-treatment of women and children and killing of tribals
by the army. In the case of Union of India and Anr. Vs. State of Manipur and Anr.25 a women
named Thangjam Manorama, was dragged out of her home and was raped and shot by the troop
of 17th-Assam Rifles. This case represents how women were ill-treated by the army. The killing
of tribals in the State of Dras was accepted by the army-headquarters but the reasons given by
them were just to maintain peace and tranquillity in the state. Even on further investigation by
a senior and reputed journalist of Dras, Manoj Bhagwat published a report based on the
interview of the locals which proved that innocent people of Azaad tribe were killed and
women were raped.

Section 4 of SPAFA, 2016 gives extraordinary power to the army officials to cause death of a
person, conduct irregular searches, seize property if deemed necessary and all these acts are
carried out by full discretion of the army. Section 7 of SPAFA, 2016 gives immunity to the
army personnel if they have purported according to the powers under this act. These sections
of SPAFA, 2016 are in contravention of the The UN Human Rights Committee, which
monitors implementation of the ICCPR, has clarified that “no official status justifies persons
who may be accused of responsibility for violations being held immune from legal
responsibility”.26

The fundamental rights of the people were also violated. Article 21 of the Indian Constitution
guarantees the right to life to all people which has been decided in the case of Maneka Gandhi
vs. Union Of India27. But section 4(a) of the SPAFA, 2016 grant armed forces personnel the
power to shoot to kill which is violative of article 21 of constitution of India. In the case of
Indrajit Barua vs State of Assam and Anr.28, sections of SPAFA, 2016 were challenged on the
grounds of Article 14, 19 and 21.

25
Special Leave Petition (Civil) 14726 – 14730 of 2011
26
Amnesty International India, AmnestyUSA, (Mar.15,2018, 7:17 A.M.)
https://www.amnestyusa.org/files/asa200422013en.pdf
27
1978 AIR 597, 1978 SCR (2) 621
28
AIR 1983 Delhi 513

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It also contradicts Article 14 of the Indian constitution which guarantees equality before law.
Since, the people residing in areas declared as “disturbed” are denied protection of the right to
life, the protection of Criminal Procedure Code and prohibited from seeking judicial redress,
they are also denied equality before law.

[C.1.1] THAT THE MILITARY EXERCISED EXTRA- JUDICIAL POWER UNDER THE ACT

It is humbly submitted before the court that the army deployed in the state of Dras exercised
extra judicial power as per the power and immunity given to them in the Section 4 and Section
7 of SPAFA, 2016 respectively. The army in accordance with the power conferred to them,
conducted irregular raids in houses, killed tribals who they thought were militants. In the report
submitted by retired Supreme Court Judge, Santosh Hegde probed six random cases out of
alleged 1528 extra-judicial killings in Manipur, found that these were not genuine encounters
and the victims did not have any criminal records29.

In the ‘Jorhat Dacoity’ case of 2011, the army conducted late night search in an area under the
SPAFA, 2016, because according to their intelligence, the family was harbouring militants.
This act committed by the army violated the fundamental right to privacy of the family.30 The
army misused their power which has been conferred to them under Section 4(d) of the
SPAFA,2016.

Hence, it can be concluded from the above mentioned arguments and facts that the power
granted to the armed forces by the SPAFA, 2016 is excessive. The fundamental and human
rights granted by Indian Constitution are infringed by the SPAFA, 2016, thus, rendering it
unconstitutional in the humble opinion of council.

[C.2] IMMEDIATE WITHDRAWAL OF TROOPS FROM THE STATE OF DRAS

4. THAT THE FAMILY OF THE VICTIM SHOULD BE GRANTED MONETARY

COMPENSATION

29
Extra Judicial Execution Victim Family Association & Anr. Vs. Union of India & Anr., W.P. (Crl.) 129 of 2012
30
Ashok Bagariya, Jorhat Dacoity Case, HindustanTimes, (Mar.15, 2018, 7:47 A.M.),
https://www.hindustantimes.com/india-news/rs-1-lakh-compensation-to-military-contractor-whose-house-was-
raided-by-army-in-2011/story-Uyqd4x5hdP5drdDSKvMuxO.html

8
 CHANAKYA NATIONAL LAW UNIVERSITY GENERAL INTRA MOOT COURT
COMPETITION-2018

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it
is humbly requested that this Honourable Court may be pleased to adjudge and declare:

1. That the writ petition filed by the Forum for Environmental Right (FER) is not
maintainable before the High Court of Nerduda.

2. That Section 3 of the Linking of River Act, 2010 is intra vires to the Constitution of
Aressia

3. That the exclusion and non-implementation of the Linking of Rivers Project for the
State of Vindhya does not violate the fundamental rights of the people of Vindhya and
Normanda.

4. That the Linking of Rivers Act, 2010 does not violate the environmental rights of
citizens of Aressia and the provisions of the Forest (Conservation) Act, 1980

And pass any such order, writ or direction as the Honourable Court deems fit and
proper, for this the Respondents shall duty bound pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE RESPONDENTS

xiv