Memorial On Behalf of Petitioners

TEAM CODE: NRMC 447
FOURTH PROF. N. R. MADHAVA MENON SAARCLAW MOOTING COMPETITION- INDIA ROUND 2018-19
FOURTH PROF. N. R. MADHAVA MENON SAARCLAW MOOTING COMPETITION- INDIA

ROUND 2018-19
BEFORE THE HON’BLE SUPREME COURT OF INDICA
IN THE MATTER OF:
MR. “X” ..........PETITIONER

&
NGO “TECHNOLOGY FOR ALL & JUSTICE-(TAJ)” ...........PETITIONER
&
MASTER “Z” ...........PETITIONER
V.
UNION OF INDICA ...........RESPONDENT
WRIT PETITION (CRIMINAL) NO. 980/2013

&
PUBLIC INTEREST LITIGATION
ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDICA

UNDER ART. 32 OF THE CONSTITUTION OF INDICA
-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-
-COUNSELS APPEARING ON BEHALF OF THE PETITIONERS-
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TABLE OF CONTENTS
INDEX OF AUTHORITIES…………………………………………………………………….V
STATEMENT OF JURISDICTION…………………………………………………………….X
STATEMENT OF FACTS……………………………………………………………………...XI
SUMMARY OF ARGUMENTS……………………………………………………………..XIV
AGRUMENTS SUPPORTED BY AUTHORITIES………………………………................….1
I. WHETHER THE WRIT PETITIONS ARE MAINTAINABLE UNDER ARTICLE
32 OF THE CONSTITUTION OF INDICA? ............................................................1-5
A. Whether there is a Substantial Question of Law to be considered by the Hon’ble
Supreme Court of Indica?
II. WHETHER ARREST OF MR. X LED TO VIOLATION OF HIS
FUNDAMENTAL RIGHTS AND BASIC CIVIL LIBERTIES GUARANTEED BY
THE CONSTITUTION OF INDICA? ......................................................................6-16
A. Whether Mr. X has been deprived of his personal liberty and freedom of movement under
art. 21 and 19(1) (d) respectively.
B. Whether the ‘search and seizure’ was conducted without authority of law and the
suspected matching of DNA samples of Mr. X led to the violation of his
constitutional right against self incrimination under Art. 20 (3) of the Constitution.
III. WHETHER USE OF DNA SAMPLES COLLECTED DURING THE
UNDERCOVER OPERATIONS IS INCONSISTENT WITH RIGHT TO
PRIVACY ENSHRINED UNDER ARTICLE 21 OF THE CONSTITUTION OF
INDICA. …………………………………………………..………………………...17-29
II | P a g e
A. Whether the action taken at the behest of the State Govt. without the consent of
individuals violates their right to privacy and the right to live with dignity under the
Constitution of Indica?
B. Whether the issuance of guidelines for the use and application of DNA technology in
crime resolution and disaster victim identification is consistent with the fundamental
rights of the citizens of Indica?
C. Whether the release of the DNA samples of ‘Mr. X’ collected by law enforcement
agency would be detrimental to the right to privacy as well as right to reputation and
dignity of ‘Master Z’ and an invasion into the basic rights of the family?
PRAYER………………………………………………………………………………………XVI
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LIST OF ABBREVIATIONS
& : And
¶ : Paragraph
AIR : All India Report
All : Allahabad
Anr. : Another
AP : Andhra Pradesh
Art. : Article
Bom : Bombay
Cal : Calcutta
Cl. : Clause
C.J. : Chief Justice
Const. : Constitution
Del : Delhi
DNA : Deoxyribonucleic Acid
DPSP : Directive Principles of State Policy
ED. : Edition
Hon’ble : Honorable
I.E. : That is
J. : Justice
Ltd. : Limited
NGO : Non-Governmental Organization
No. : Number
Ors. : Others
PG. : Page
PIL : Public Interest Litigation
QB : Queens Bench
SC : Supreme Court
SCC : Supreme Court Cases
SCR : Supreme Court Reports
Sec. : Section
Sub. Cl. : Sub-Clause
TAJ : Technology for All & Justice
U/A : Under Article
U/S : Under Section
UK : United Kingdom
UOI : Union of India
US : United States
V./VS. : Versus
VOL. : Volume
WLR : Western Law Reports
IV | P a g e
INDEX OF AUHTORITIES
CONSTITUTION
 Constitution of India.
 Const. of Indica…………………...…………………………………………..…….passim
STATUTES
1. Bill of Rights of South Africa, 1996.
2. Indian Penal Code, 1860.
3. Narcotic Drugs and Psychotropic Substances Act, 1985.
4. Protection of Human Rights Act, 1993.
5. The Criminal Procedure Code, 1972.
6. The Indian Evidence Act, 1872.
7. The Universal Declaration of Human Rights (UDHR), 1948.
8. The International Covenant on Civil and Political Rights, 1966.
9. United Nations Convention on the Rights of the Child, 1990.
CASES
1. A. B. S. K. Sangh (Railways) v. Union of India, AIR 1981 SC 298.
2. A.K. Gopalan v State of Madras, AIR 1950 SC 27.
3. Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1.
4. Bandhua Mukti Morcha v Union of India, (1997) 10 SCC 549.
5. Bijay Cotton Mills v. State of Ajmer, AIR 1955 SC 33.
6. Binny Ltd. and Anr. v. Sadasivan and Ors, AIR 2005 SC 3202.
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7. Bombay Environment action group v. State of Maharashtra & others, AIR 1991 Bom.
8. C.B. Boarding and Loading v. State of Mysore, AIR 1970 SC 2042.
9. Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC 1044.
10. Chameli Singh v. State of U.P., (1996) 2 SCC 549.
11. Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.
12. Chiranjit Lal Chowdhary v. Union of India, AIR 1951 SC 41.
13. Coffee Board v. Jt. Commercial Tax Officer, AIR 1971 SC 870.
14. Consumer Education & Research Centre v. Union of India, AIR 1995 SC 922.
15. D. D. Vyas v. Ghaziabad Development Authority, AIR 1993 All 57.
16. Daryao v. State of U.P., AIR 1961 SC 1457, 1461.
17. Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101.
18. Fertilizer Corporation Kamargar Union v. Union of India, AIR 1981 SC 344.
19. Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608
20. Gobind v. State of Madhya Pradesh and Ors., (1975) 2 SCC 148.
21. Icchu Devi v. Union of India, AIR 1980 SC 1983.
22. Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349.
23. K. K. Kochunni v. State of Madras, AIR 1959 SC 725.
24. K.S Puttaswamy v. Union of India, AIR 2017 SC 4161.
25. Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
26. Kharak Singh v. State of U.P. (Partly Overruled), AIR 1963 SC 1295.
27. Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 469.
28. M.P. Sharma v. Satish Chandra (Partly Overruled), AIR 1954 SC 300.
29. Malak Singh v State of Punjab & Haryana, AIR 1981 SC 760.
30. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
31. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.
VI | P a g e
32. Municipal Council, Ratlam v. Vardichand, AIR 1980 SC 1622.
33. National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
34. People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473.
35. Prem Chand Garg v. Excise Commissioner U.P., AIR 1963 SC 996, 999.
36. R.C. Cooper v. Union of India, AIR 1970 SC 564.
37. Rajgopal v. State of Tamil Nadu, 1994 6 SCC 632.
38. Ram Jethmalani v Union of India, (2011) 8 SCC 1.
39. Ram Kumar Mishra v. state of Bihar & others, AIR 1984 SC 537.
40. Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1.
41. Romesh Thappar v. state of madras, AIR 1950 SC 124, 126.
42. Rural Litigation & Entitlement Kendra & others v. State of U.P., AIR 1987 SC 359.
43. S. P. Gupta v. Union of India, AIR 1982 SC 149.
44. Sankari Prasad v. Union of India, AIR 1951 SC 455.
45. Santosh Hazari v PurushottamTiwari, (2001) 3 SCC 179.
46. Selvi v. State of Karnataka, AIR 2010 SC 1974.
47. Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR
1962 SC 1314.
48. State of Bihar v. Kameshwar Singh, 1952 1 SCR 889.
49. State of Bihar v. Lal Krishna Advani, (2003) 8 SCC 361.
50. State of Bombay v. F.N. Balsara, AIR 1951 SC 318.
51. State of Madras v. Champakam Dorrairajan, AIR 1951 SC 226.
52. State of Madras v. V.G. Row, AIR 1952 SC 196, 199.
53. State of Punjab v. Baldev Singh, AIR1999 SC 2378.
54. Sukhdev and Ors v. Bhagatram and Ors., AIR 1975 SC 1331.
55. Umesh Kumar v. State of Andhra Pradesh, (2013) 10 SCC 591.
VII | P a g e
56. Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178, 2230.
57. Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609.
58. Vishakha & Ors. v. State of Rajasthan & ors., AIR 1997 SC 3011.
FOREIGN CASES
1. Agnello vs. United States, (1925) 20 U.S. 269.
2. Boyd v. United States, (1886) 116 U.S. 616.
3. Escobedo v. Illinois, (1964) 378 U.S. 478.
4. Florida v. Jardines, (2013) 1 U.S. 569.
5. Griswold v. Connecticut, (1965) 381 U.S. 497.
6. Katz v. United States, (1967) 389 U.S. 347.
7. Miranda v. Arizona, (1966) 384 U.S. 436.
8. Murray v. Big Pictures (UK) Ltd, (2008) 3 WLR 1360.
9. R. v. Paddington, (1966) 1 QB 380.
10. R v. Spencer, (2014) 2 SCR 212.
11. The Queen v. Brandon Roy Dyment, (1988) 2 SCR 417.
12. Wolf v. Colorado, (1949) 25 U.S. 338.
BOOKS CITED
1. Adhikary Jyotirmoy, DNA Technology in Administration of Justice, (Lexis Nexis.

2007).
2. Alan Westin, Privacy and Freedom (1967).
3. AV Dicey, Law of Constitution, (10th ed., 1962).
4. Durga Das Basu, Commentary on the Constitution of India (9th ed., 2014).
5. Granville Austine, The Indian Constitution Cornerstone of A Nation, (Oxford Publishing
Press 1972).
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6. John Locke, Second Treatise of Government (Awnsham Churchill 1689).
7. M.P. Jain, ‘Indian Constitutional Law’ (6th ed, 2011).
8. Ronald Dworkin, Taking Rights Seriously (Duckworth 1977).
9. Vol.1, Blackstone, Commentaries on the Laws of England, (8th ed.).
10. Vol.4 (5), Warren and Brandeis, The Right To Privacy, (Harvard Law Review, 1890).
ARTICLES AND REPORTS CITED
1. Daniel Solove, ‘10 Reasons Why Privacy Matters’, TEACH PRIVACY,
https://www.teachprivacy.com/10-reasons-privacy-matters/ (Oct. 6, 2018, 05:56 PM),.
2. Law Commission of India, Rep. No. 69, Review of the Provisions of The Indian
Evidence Act 1872.
DICTIONARY REFERRED
 Black’s Law Dictionary (8th ed, 2004).
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STATEMENT OF JURISDICTION
The Petitioners have approached the Hon’ble Supreme Court of Indica u/a. 32 of the
Constitution of Indica1 as the questions for consideration relate to violation of fundamental
rights under Part III.
1
INDIA Const. art. 32, i.e., 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 article shall not be suspended except as otherwise provided for by this
Constitution.
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STATEMENT OF FACTS
‘Republic of Indica’ has ‘Federalism’ as one of its basic features. The Constitution of Indica
establishes the Supreme Court of Indica which is considered as the final interpreter of the
'Constitution of Indica' as well as the custodian of basic civil rights and liberties of its citizens.
The Constitution of Indica guarantees several fundamental rights, broadly corresponding to
those recognized in international human rights instruments. The constitutional, legal and policy
framework of Republic of Indica are pari materia to the Republic of India.
Under the Constitutional scheme of Indica, State of A&P have been accorded special
constitutional arrangements in the federal scheme. The autonomy of A&P is pari materia to the
Article 370 of the Constitution of India.
Part II
The Government of A&P has formulated a 'Covert Operation Policy' to break into the syndicate
of illegal drugs trafficking and their supply to the youth in the State of A&P.
The Police authorities in the State of A&P facilitated the undercover operation by every means
and also created various 'scenarios' to integrate and penetrate its officers into the syndicate. They
gathered many evidences, case properties, seized consignments of illegal drugs, codes used by
the agents (mules) of the syndicate, DNA samples collected in pursuance of 'Covert Operation
Policy' without the consent of individuals (suspects) etc.
The operation was immediately abandoned after 2 years i.e., in 2012 by the new govt.
PART III
Mr. 'X' is a local resident of Satna town in the State of A&P, voluntarily undertook the task of
imparting elementary education in a village named Rusul as there is no basic infrastructure of
education i.e. Govt. school. It made him very popular and revered among the local population.
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On 13.06. 2013, a ghastly incident of rape on 8 year old child took place in the vicinity of the
school run by Mr. X. The medical report at the District Hospital of Satna recorded her as
'brought dead' and indicated absence of any further incriminating evidence which could suggest
a rape on the girl child.
Investigation authorities collected the DNA samples in the vicinity of 500 meters of the school.
Later, The State Govt. of A&P ordered the transfer of the entire case to CBI. The CBI seized
various evidences including the DNA samples collected by CID. Subsequently, during
investigation, it came out that DNA sample of Mr. 'X' matches with one of the DNA samples
collected during the undercover operation in the State of A&P. CBI immediately arrested Mr. 'X'
and decided to reopen one of the FIRs made during the undercover operation. A Writ
The lawyer of Mr. 'X' filed a Writ Petition (Criminal) No. 980 of 2013 under Article 32 of the
Constitution of Indica alleging the arrest of Mr. 'X' as violative of various fundamental rights
and basic civil liberties based upon a suspected matching of DNA sample collected during the
undercover operation. The petition seeks a declaration that the entire 'search and seizure' made
during the undercover operation is illegal, unconstitutional and without authority of law.
Part IV
In the year 2017, during the monsoon season, one of the coastal states of Indica received
incessant rains for three consecutive weeks. The New York Times – the world's leading
newspaper covered the story of 'Master Z'; who was in one of the rehabilitation camps. It was
learnt that 'Master Z' – a 9- year-old boy lost all his immediate family members and had become
an orphan. He also asserted that his mother (now presumably deceased) told him once about his
biological father being alive in some other part of the country whom he never saw or met.
This story caught attention of international media and it suggested a proper legal framework for
the use DNA technology.
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Considering the importance of DNA technology, a leading NGO named 'Technology for All &
Justice - (TAJ)' approached the Supreme Court by way of Public Interest Litigation (PIL) for
establishment of necessary infrastructure and seeking a series of guidelines for the use and
application of DNA technology in crime resolution and disaster victim identification.
Mr. ‘X’ also moved an application before Supreme Court claiming to be the biological father of
'Master Z'. He sought use of DNA samples for paternity test and a declaration to that effect.
'Master Z' through his next friend also approached the Hon'ble Supreme Court of Indica seeking
a direction as not to release or use/ misuse of DNA samples collected by law enforcement
agency for the paternity test as claimed by Mr. 'X'. One of his specific prayers is to dismiss the
application of Mr. 'X' in pending W.P. (Crl.) No. 980 of 2013.
PART V
Considering the substantial questions of law relating to the interpretation of the Constitution
involved, the three petitions along with applications have been referred to the Constitutional
bench under Article 32 of the Constitution.
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SUMMARY OF ARGUMENTS
I. WHETHER THE WRIT PETITIONS ARE MAINTAINABLE UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDICA?
It is humbly submitted before the Hon’ble SC that, the writ petitions filed by the petitioners, Mr.
X and ‘Master Z’ through his next friend, are maintainable. Also, the Public interest Litigation
filed by ‘TAJ’ is maintainable. The matter involves a substantial question of law of general
public importance. The ‘Covert Operation Policy’ formulated by the policy, did not lay down a
proper procedure to be followed and the collection of personal information without consent of
individuals led to violation of their fundamental rights and basic civil liberties. The Hon’ble SC
should therefore, applying its wide jurisdiction conferred under Art. 32 of the Constitution of
Indica, protect the rights of individuals guaranteed under Part III that have been infringed by the
action taken by the Govt. of A&P.
II. WHETHER ARREST OF MR. X LED TO VIOLATION OF HIS FUNDAMENTAL RIGHTS
GUARANTEED BY THE CONSTITUTION OF INDICA AND BASIC CIVIL LIBERTIES?
It is humbly submitted before the Hon’ble SC that the ‘Covert Operation Policy’ brought by the
government of State of A&P, is unconstitutional as it is in violation of fundamental rights
guaranteed under Part III of the Constitution of India. Therefore, the Policy that has been
formulated by the govt. is in contravention of Art. 13(2) of the Constitution, thus, making it
unconstitutional. Also there was no procedure laid down by the govt. for the execution of the
policy and the authorities collected personal information of the individuals without their consent,
hence the entire search and seizure is illegal and without authority of law.
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III. WHETHER USE OF DNA SAMPLES COLLECTED DURING THE UNDERCOVER
OPERATIONS ARE INCONSISTENT WITH RIGHT TO PRIVACY ENSHRINED UNDER
ARTICLE 21 OF THE CONSTITUTION OF INDICA?
It is humbly submitted by the Petitioners that Right to Privacy has been accepted by the SC in
the case of K.S. Puttaswamy, as a constitutionally protected fundamental right. It is an integral
part of Right to life and Personal liberty, and any restriction imposed on it should be in
accordance with procedure established by law, i.e., it must satisfy the requirements of Art. 14
and 19. Also, the law imposing such restrictions should be just, fair and reasonable. Information
sought from the people, severely violates the bodily and mental integrity of the people, in
addition to having no relation to the objective of the Policy.
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ARGUMENTS SUPPORTED BY AUTHORITIES
ISSUE 1: WHETHER THE WRIT PETITIONS ARE MAINTAINABLE UNDER ARTICLE 32 OF
THE CONSTITUTION OF INDICA?
1. It is humbly submitted before this Hon’ble Court that the present petitions are maintainable under
Article 32 of the Constitution2, since, the ‘Covert Operation Policy’ was formulated by the Govt. of A&P.
and it does fall within the definition of State u/a 123 of the Constitution and there has been violation of
Fundamental Rights of the petitioners.
2. In the words of Dr. B. R. Ambedkar: “it is the very soul of the Constitution and the very heart of it.
The Constitution has invested the Supreme Court with these rights and these writs could not be taken away
until and unless the Constitution itself is attended by means left open to the legislature. This in my
judgment is one of the greatest safeguards that can be provided for the safety and security of the
individual.”4
3. It is further submitted that the sole objective of Article 325 is the enforcement of the fundamental
rights guaranteed by the Constitution of Indica. The original jurisdiction of the Supreme Court may be
invoked in any case of violation of a fundamental right guaranteed by Part III of the Constitution of Indica
as has been observed in the case of Chiranjit Lal Chowdhary v. Union of India6 amongst many others.
4. It is also to be noted that the right to take proceedings by original petition straight in the Supreme
Court for the enforcement of fundamental rights is guaranteed in Art. 32.7 The significance of this right has
been assessed by Gajendragadkar, J., in the case of Prem Chand Garg v. Excise Commissioner U.P.8,
“The fundamental right to move to this Court can therefore be appropriately described as the cornerstone
of democratic edifice raised by the Constitution. That is why it is natural that this Court should, in the
2
Constitution of INDIA, Pari Materia to Constitution of India (Herein after referred as Constitution).
3
INDIA Const. art. 12.
4
Constituent Assembly Debates, Vol. II, p. 963.
5
6
AIR 1951 SC 41.
7
8
AIR 1963 SC 996, 999.
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words of Patanjali Sastri, J., regard itself ‘as the protector and guarantor of fundamental rights’ and
should declare that ‘it cannot, consistently with the responsibility laid upon it, refuse to entertain
application seeking protection against infringements of such rights’ as reiterated in Romesh Thappar v.
State of Madras9. In the case of State of Madras v. V.G. Row10 discharging the duties assigned to it, this
Court has to play the role of ‘sentinel on the qui vive’.
1.1. THERE IS A SUBSTANTIAL QUESTION OF LAW TO BE CONSIDERED BY THE
HON’BLE SUPREME COURT OF INDICA.
5. The petitioners humbly submit that when a substantial question as to the interpretation of the
Constitution arises, it is this Court and this Court alone under Article 145(3)11 that has to decide what the
interpretation of the Constitution shall be.
6. In addition to that, this Hon’ble Court, under Art. 142,12 also has inherent powers to issue orders to do
complete justice. A combined reading of Art. 3213 with this constitutional provision empowers the court to
frame remedies for ensuring justice in particular cases and ordinary law does not and cannot place
constraints on its constitutional powers. The Supreme Court in exercise of its constitutional powers can
overcome inadequacies and weakness of law and procedure, coin new remedies and add parties to case
where need be.
7. It is duly submitted that in the instant case, the writ petitions filed before the Hon’ble Supreme Court
include substantial questions relating to illegality of ‘search and seizure’ under undercover operation and
‘best interest principle’. The Public Interest Litigation, which seeks guidelines for the use and application
of DNA technology in crime resolution and disaster victim identification, also entails a substantial question
of law, as there are no existing laws in this regard and it influences society at large.
9
AIR 1950 SC 124, 126: (1950) SCR 594, 597.
10
AIR 1952 SC 196, 199: (1952) SCR 597 605.
11
INDIA Const. art. 145, cl. 3.
12
13
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1.2. THE FUNDAMENTAL RIGHTS OF THE PETITIONERS HAVE BEEN VIOLATED.
8. There has been violation of Mr. X’s fundamental right to privacy, personal liberty under Art. 21, 14 the
freedom to move freely across the territory under Art. 19(1) (d)15 and right against self-incrimination under
Art. 20 (3).16 Also, the release of DNA samples is detrimental to the right to privacy, dignity and reputation
of ‘Master Z’. Thus, the petitioners have filed writ petitions to seek remedy under Art. 32.17
9. The application moved by the lawyer of Mr. X that he be declared the biological father of ‘Master Z’
is maintainable along with the writ petition as the application is with respect to the same subject matter; the
parties involved are same and is concerned with the basic rights of petitioner.
10. In the case of Coffee Board v. Jt. Commercial Tax Officer18, wherein it was held that when a breach
of fundamental right is made in the petition then the provisions of other remedies do not stand in the way
of exercising power under Art. 32 of the Constitution of India.
11. It is humbly submitted that Order VII of Supreme Court Rules, 2013 (proceedings by or against
minors or persons of sound minds) lays down that every appeal, petition or other proceeding by a minor
shall be instituted or continued in his name by his next friend.
1.3. THE PIL FILED BY THE NGO IS MAINTAINABLE.
1. According to initial interpretation of Article 32 of the Constitution of Indica, only aggrieved party had
the right to seek redress. Hon’ble Justice P. N. Bhagwati, in S. P. Gupta v. Union of India,19 articulated
the concept of PIL. Bhagwati, J., rightly said that if no one will have standing to challenge cases of public
wrong or public injury, then there will be no rule of law. 20 Public Function is one which “seeks to achieve
14
15
INDIA Const. art. 19, cl. 1, sub.cl. d.
16
17
18
AIR 1971 SC 870 at p. 877.
19
AIR 1982 SC 149.
20
Id.
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some collective benefit for the public or a section of the public.” 21Institutions engaged in performing
public functions are, by virtue of the functions performed, government agencies. 22 Further under the well-
established doctrine of Parens Patriae, it is the obligation of the State to protect and take into custody the
rights and the privileges of its citizens for discharging its obligations.23
2. In the leading case of People's Union for Democratic Rights v. Union of India24, the Court
described PIL as a strategic arm of the legal aid movement. Krishna Iyer, J., made a significant observation
in Municipal Council, Ratlam v. Vardichand,25: “… shifting the centre of gravity of justice from the
traditional individualism of locus standi to the community orientation of public interest litigation is a
Constitutional mandate enshrined in the Preamble.”26
3. Krishna Iyer, J., in his concurring opinion in Fertilizer Corporation Kamargar Union v. Union of
India27 observed: "In simple terms locus standi must be enlarged to meet the challenges of the time. Ubi
jus ibi remedium must be enlarged to embrace all interests of public minded citizens or organizations with
serious concern for conservation of public resources and the direction and correction of public power so as
to promote justice in its triune facets".28
4. The legal basis for the development of PIL actions is derived from Article 32 of the Constitution.29 In
the instant case, a leading NGO named ‘Technology for All & Justice’ approached the Supreme Court by
way of PIL for establishment of necessary infrastructure to have a full proof DNA database for the DNA
profiling of the individuals involved in heinous and brutal crimes. The issue addressed by the NGO is of
public concern and its objective is to ensure that all the criminals are put behind bars. It is duly submitted
that that the very purpose of the NGO is to promote safety and welfare of society and hence, the PIL is
maintainable by all means.
21
Binny Ltd. and Anr. v. Sadasivan and Ors., AIR 2005 SC 3202: (2005) 6 SCC 657.
22
Sukhdev and Ors v. Bhagatram and Ors., AIR 1975 SC 1331.
23
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.
24
AIR 1982 SC 1473.
25
AIR 1980 SC 1622.
26
Municipal Council, Ratlam v. Vardichand, AIR 1980 SC 1622.
27
AIR 1981 SC 344.
28
Id. at 355.
29
People's Union for Democratic Rights v. Union of India, (1983) 1 SCR 456.
4|Page
1.4. POWER TO ISSUE GUIDELINES:
5. The Court derives the power to lay down general guidelines having the effect of law to fill the vacuum
till the time the legislature steps in to fill in the gap by making the necessary law. This power is derived
by reading Art. 32 with Art. 14230 and Art. 141.31 Article 14432 mandates all authorities to act in aid of
the orders of the Courts.33
6. The Apex Court in Vishakha,34 stated that ‘it is the duty of the executive to fill the vacuum by
executive orders because its field is coterminous with that of the legislature. And where even the executive
does not act, the judiciary must step in, in exercise of its constitutional obligation under the
abovementioned constitutional provisions to provide a solution till the legislature acts to perform its role
by enacting a proper legislation to cover the field.’
7. Thus, the writ petitions filed by ‘Mr. X’ and ‘Master Z’ respectively and the public interest litigation
filed by the NGO ‘Technology for All & Justice- TAJ’ are maintainable and the petitioners have the
guaranteed rights to move to the Supreme Court by invoking Article 3235 of the Constitution of Indica.
30
31
32
33
Ch. IV, Sec’s. G, J, I, and E for these provisions.
34
Vishakha & ors. v. State of Rajasthan & ors., AIR 1997 SC 3011.
35
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ISSUE 2: THE ARREST OF ‘MR. X’ DID LEAD TO THE VIOLATION OF HIS
FUNDAMENTAL RIGHTS GUARANTEED UNDER THE CONSTITUTION OF INDICA AND
THE BASIC CIVIL LIBERTIES.
2.1. MR. X HAS BEEN DEPRIVED OF HIS PERSONAL LIBERTY AND FREEDOM OF
MOVEMENT UNDER ART. 21 AND 19(1) (d) RESPECTIVELY.
1. Time and again it has been held that the protection of the individual from oppression and abuse by the
police and other enforcement officers is a major interest in free society.36
2. Arrest of a person can cause him incalculable harm by way of loss of his reputation. Denying a person
of his liberty is a serious matter. In the landmark case of Joginder Kumar v. State of Uttar Pradesh,37
the Hon’ble Supreme Court has clarified that no arrest can be made because it is lawful for the police
officer to do so. The existence of the power to arrest is one thing, the justification for its exercise is quite
another. ‘The police officer must be able to justify the arrest apart from his power to do so’.
3. Accordingly, the Court has laid down the following guidelines in this regard for the Police to follow:
“No arrest can be made in a routine manner on a mere allegation of commission of an offence made against
a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of
a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction
reached after some investigation as to the genuineness and bona fide of a complaint and a reasonable belief
both as to the person’s complicity and even so as to the need to effect arrest.”38
4. In the matter at hand, Mr. X was arrested immediately after the suspected matching of DNA samples
collected during the undercover operations. He was deprived of his basic liberties guaranteed under various
international and domestic laws. The immediate arrest denuded him of his fundamental rights, the most
36
M.P. Jain, Indian Constitutional Law (6th ed, 2011).
37
AIR 1994 SC 1349: (1994) 4 SCC 260.
38
Id.
6|Page
important being his right to personal liberty under Art. 21.39 When a person is arrested, he also loses one of
his guaranteed freedoms, i.e., freedom to move freely under Art. 19 (1)(d)40 of the Constitution of Indica.
5. The petitioner humbly contends before this Hon’ble Court that Art. 1941 and Art. 2142 go hand in hand.
And when it is established that a person has been deprived of the freedom to move freely43, it is evident
that his right to personal liberty is also at stake.
6. It is to bring to the kind notice of this Hon’ble Court that the genesis and development of right to
personal liberty from Magna Carta to modern times, shows that it is the freedom from arbitrary arrest,
detention, imprisonment or other forms of physical incarceration.44 This core meaning, later on, appears to
have been treated as the exclusive meaning of personal liberty in English Common Law.
7. Moreover, according to AV. Dicey, "personal liberty, as understood in English law, means in
substance a person's right not to be subjected to imprisonment, arrest, or other physical coercion in any
manner that does not admit of legal justification".45 And to Blackstone, "Personal liberty" consists in the
power of locomotion, of changing situation or moving one’s person to whatsoever place one's own
inclination may direct, without imprisonment or restraint unless by "due process of law".46
8. So far the facts of the instant case are concerned Mr. X is a man of personal integrity. He, being a local
resident of the town Satna in the State of A&P, voluntarily undertook the task of imparting elementary
education. It made him very popular and revered among the local population. While his arrest based on
suspected DNA matching was a direct attack on his personal liberty which is rooted in the concept of
protection from arbitrary arrest. It is further submitted that Mr. X was imparting education in good faith
and there have been no instances where his integrity was found capable of being suspected. It is to bring to
39
40
INDIA Const. art. 19, cl. 1, Sub.cl. d.
41
42
43
44
Vol.8, Halsury, Halsbury’s Laws of England 832 (4 th ed. 2016).
45
AV DICEY, LAW OF CONSTITUTION, 207-208 (10th ed., 1962).
46
Vol.1, BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 134 (8th ed.).
7|Page
the kind notice of this Hon’ble Court that the immediate arrest of the petitioner was also against basic
human rights and civil liberties.
9. It is further contended that the arrest of Mr. X without any strongly reliable information led to the
taking away of one of the freedoms guaranteed by Article 19 47 of the Constitution of Indica. Article 19
(1)(d)48 guarantees to all citizens the right to move freely throughout the territory of Indica. In Kharak
Singh’s case49, the view taken by Justice Subba Rao is of paramount importance. Justice Subba Rao held
that the rights conferred by Part III have overlapping areas. Where a law is challenged as infringing the
right to freedom of movement under Article 19(1)(d) and the liberty of the individual under Article 21, it
must satisfy the tests laid down in Article 19(5)50 as well as the requirements.
10. In the words of Justice Subba Rao in Kharak Singh’s case: “The fundamental right to life and
personal liberty has many attributes and some of them are found in Article 19. 51 If a person's fundamental
right under Article 2152 is infringed, the State can rely upon a law to sustain the action; but that cannot be a
complete answer unless the said law satisfies the test laid down in Article 19(2) 53 so far as the attributes
covered by Article 19(1)54 are concerned. In other words, the State must satisfy that both the fundamental
rights are not infringed by showing that there is a law and that it does amount to a reasonable restriction
within the meaning of Article 19(2) of the Constitution.”
11. It is pertinent to note that in this case no such defence is available, as admittedly there is no such law.
So the petitioner can legitimately plead that his fundamental rights both under Article 19(1)(d) and Article
21 are infringed by the State. The Supreme Court has always placed the burden of showing that the
detention is in accordance with the procedure established by law on the detaining authority because of Art.
21.55
47
48
49
Kharak Singh v. State of U.P., AIR 1963 SC 1295: (1964) 1 SCR 332.
50
51
52
53
54
55
8|Page
2.1.1. INTERRELATIONSHIP BETWEEN RIGHTS
12. The theory that the fundamental rights are water-tight compartments was discarded in the judgment of
eleven judges of this Court in R. C. Cooper’s case56.
13. Justice P N Bhagwati who delivered the leading opinion of three Judges held that the judgment in
Cooper affirms the dissenting opinion of Justice Subba Rao (in Kharak Singh57) as expressing the valid
constitutional position. Hence in Maneka Gandhi’s case58, the Court held that the scope of the term
‘personal liberty’ is very wide by stating that:
“It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression
‘personal liberty’ in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are
independent fundamental rights, though there is overlapping. There is no question of one being carved out
of another. The fundamental right of life and personal liberty has many attributes and some of them are
found in Article 19. If a person's fundamental right under Article 2159 is infringed, the State can rely upon
a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid
down in Article 19(2)60 so far as the attributes covered by Article 19(1)61 are concerned”62
14. In M.P. Sharma v. Satish Chandra,63 the Court did not have the benefit of two interpretative devices
that have subsequently become indispensable tools in this Court’s approach to adjudicating constitutional
cases. The first of these devices derives from R.C. Cooper v. Union of India,64 and its progeny –
including Maneka Gandhi v. Union of India,65 – which require us to read Part III’s guarantees of rights
together.
56
Id.
57
Kharak Singh v. State of U.P., AIR 1963 SC 1295: (1964) 1 SCR 332.
58
AIR 1978 SC 597: (1978) 2 SCR 621.
59
60
INDIA Const. art. 19 cl. 2.
61
INDIA Const. art. 19 cl. 1.
62
Id.
63
AIR 1954 SC 300: (1954) SCR 1077.
64
AIR 1970 SC 564: (1970) 3 SCR 530.
65
AIR 1978 SC 597: (1978) 2 SCR 621.
9|Page
15. Furthermore, the observations in the case of Malak Singh v State of Punjab & Haryana,66 indicate
that an encroachment on privacy infringes personal liberty under Article 2167 and the right to the freedom
of movement under Article 19(1)(d).68 The Court linked such an encroachment with the dignity of the
individual which would be offended by surveillance bereft of procedural protections and carried out in a
manner that would obstruct the free exercise of freedoms guaranteed by the fundamental rights.
16. On this point, the Supreme Court has observed in Icchu Devi v. Union of India;69 “This constitutional
right of life and personal liberty is placed on such a high pedestal by this Court that it has always insisted
that whenever there is any deprivation of life or personal liberty, the authority responsible for such
deprivation must satisfy the Court that it has acted in accordance with the law. The Court has always
regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal
detention, regardless of the social cost involved...”
17. Thus, it is evident from the analysis of the above judgments that the rights of Mr. X have been violated
under Art. 1970 read with Art. 21.71 Moreover , the right to freedom of movement forms an integral part of
civil liberties as is evident from the fact that this right has been provided under various International
Conventions, of which Republic Of Indica is a signatory. Art. 1372 of the Universal declaration of Human
Rights, reads as follows: everyone has the right to freedom of movement and residence within the borders
of each State. Similarly, the right is enshrined in Article 1273 of the International Covenant on Civil and
Political Rights, 1966.
18. It is duly submitted by the petitioner that every person carries with himself a status in the society and
beholds certain reputation in the views of the right minded people of the society. The arrest of Mr. X has
66
AIR 1981 SC 760: (1981) 2 SCR 311.
67
68
69
AIR 1980 SC 1983: (1980) SCC 531.
70
71
72
UDHR, art. 13.
73
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of
movement and freedom to choose his residence.2. Everyone shall be free to leave any country, including his own.
10 | P a g e
not only caused him mental stress but has also prejudiced his position in the society by denuding him of his
basic fundamental rights.
2.2. THE ENTIRE ‘SEARCH AND SEIZURE’ WAS CONDUCTED WITHOUT AUTHORITY OF
LAW AND THE SUSPECTED MATCHING OF DNA SAMPLES OF MR. X LED TO THE
VIOLATION OF HIS CONSTITUTIONAL RIGHT AGAINST SELF INCRIMINATION
PROVIDED UNDER ART. 20 (3) OF THE CONSTITUTION.
2.2.1. THAT THE ‘SEARCH AND SEIZURE’ WAS ILLEGAL, UNCONSTITUTIONAL AND
WITHOUT AUTHORITY OF LAW.
1. The petitioner humbly submits that the Government did not prescribe any procedure which should
have been followed for the purpose of investigation and specifically for the purpose of search and seizure
made during the undercover operation.
2. Furthermore, the entire ‘search and seizure’ is unconstitutional as it is a violation of Part III of the
Constitution of India, which guarantees the people certain fundamental rights and therefore, they are void,
being in contravention of Art. 13(2) of the Constitution74. It is stated that the evidences and DNA samples
collected in pursuance of ‘Covert Operation Policy’, were without the consent of the individuals
(suspects).75 Thus, it is clear that principles of natural justice were also not adhered to in conducting
‘search and seizure’ by the authorities.
3. The Fourth Amendment establishes, “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated.” 76
4. In the case of Boyd v. United States,77 US Supreme Court held that obtaining incriminating evidence
by an illegal search and seizure violates the Fourth and Fifth Amendments of the American Constitution.
74
75
Para. 7 Moot Proposition.
76
U.S. Const. amend. IV.
77
116 U.S. 616, (1886).
11 | P a g e
As early as 1886, the question before the US Supreme Court was whether compulsory production of a
person’s private papers to be used in evidence against him in a judicial proceeding, is an unreasonable
search and seizure within the meaning of the Fourth Amendment. Justice Bradley delivered the opinion of
the Court and held as follows: “The principles laid down in this opinion affect the very essence of
constitutional liberty and security… they apply to all invasions on the part of the government and its
employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors and
the rummaging of his drawers that constitutes the essence of the offence, but it is the invasion of his
indefeasible right of personal security, personal liberty, and private property, - it is the invasion of this
sacred right ...”
5. Thus, in the matter at hand, the illegal search and seizure which later led to the incrimination of the
petitioner deprived him of his fundamental right against self incrimination protected under Art. 20(3) 78 of
the Constitution. It also violated his right to privacy79 and personal liberty under Art.2180 of the
Constitution.
6. In the case of State of Punjab v. Baldev Singh,81 the Supreme Court made the following observations
and after discussion made the following conclusions.
(i) That when an empowered officer or a duly authorised officer acting on prior information is about to
search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1)
of Section 5082 of Narcotic Drugs and Psychotropic Substances Act, 1985 of being taken to the nearest Gazetted
Officer or the nearest Magistrate for making the search.
(ii) That failure to inform the concerned person about the existence of his right would cause prejudice to an
accused.
(iii) That a search made, by an empowered officer, on prior information, without informing the person of
his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in
78
79
K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161.
80
81
AIR1999 SC 2378.
82
Narcotic Drugs and Psychotropic Substances Act, 1985, sec. 50, No. 61, Acts of Parliament, 1985 (India).
12 | P a g e
case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the
trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an
accused, where the conviction has been recorded only on the basis of the possession of the illicit article,
recovered from his person, during a search conducted in violation of the provisions of Section 5083 of the
Narcotic Drugs and Psychotropic Substances Act, 1985.
(iv)That the investigating agency must follow the procedure as envisaged by the statute scrupulously and
the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned
official so that the laxity on the part of the investigating authority is curbed. An accused is entitled to a fair
trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence
collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.
7. It is also submitted that the procedure alleged to be adopted by the Govt. does not satisfy the
safeguards as provided under Section 5084 of Narcotic Drugs and Psychotropic Substances Act, 1985 which
deals with the conditions under which search of persons shall be conducted. Right under Section 50(1) 85 of
the NDPS Act, is a safeguard that has been conferred on the suspect to check the misuse of power, to avoid
harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law
enforcement agencies.86
8. It is further provided that right to privacy enshrined in Section 14 of the Bill of Rights in the
Constitution of South Africa reads as follows: “everyone has the right to privacy, which includes the right
not to have- their person or home searched; their property searched; their possessions seized; or the
privacy of their communications infringed.”87
9. Thus, the petitioners have established that the right against search and seizure has been engrafted in
foreign laws as well.
83
Id.
84
Id.
85
Narcotic Drugs and Psychotropic Substances Act, 1985, sec. 50, sub. sec. 1, No. 61, Acts of Parliament, 1985
(INDIA).
86
Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609.
87
SOUTH AFRICA Const. Sec 14.
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10. It is pertinent to note that the very idea of the undercover operation was ‘to continuously look for
something or somebody’ which amounted to investigation or scrutiny in order to expose or uncover a
crime. Such an action at the behest of the ‘State’ without the consent or knowledge of the individuals is
illegal, unconstitutional and impermissible in law.
11. It has been provided that it was an undercover operation which was undertaken by the State of A&P
and thus in order to keep the whole process confidential, the police authorities did not adhere to the proper
rules and regulations with regards to search and seizure. The facts of the case are such that the evidences,
case properties, seized consignments, codes used by the agents, DNA samples, etc. gathered by the
authorities were collected in pursuance of the ‘Covert Operation Policy’ without the consent of
individuals(suspects) etc.88
12. The US Supreme Court has reaffirmed this contention by laying down in the case of Agnello v.
United States,89 that “belief however well founded, that an article sought is concealed in a dwelling house
furnishes no justification for a search of that place without a warrant. And such searches are unlawful
notwithstanding, facts unquestionably showing probable cause.” Thus in order to conduct search and
seizure, the prerequisite is authorization by a competent authority.
2.2.2. THE COLLECTION OF DATA AND SUBSEQUENT ARREST OF PETITIONER HAS
VIOLATED HIS FUNDAMENTAL RIGHT AGAINST SELF INCRIMINATION.
13. It is the humble submission of the petitioner that the collection of data without the consent of
individuals, which is supposed to be used against them for the purpose of incriminating them, is explicitly
violative of their fundamental right against self incrimination as guaranteed under Article 20(3) of the
Constitution of Indica90.
14. In order to strengthen his contention, the petitioner places reliance upon the landmark case of Selvi v.
State of Karnataka,91 wherein a Bench of three judges dealt with a challenge to the validity of three
88
Moot Proposition,¶ 7.
89
269 U.S. 20, (1925).
90
91
AIR 2010 SC 1974: (2010) 7 SCC 263.
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investigative techniques: narco-analysis, polygraph test (lie-detector test) and Brain Electrical Activation
Profile (BEAP) on the ground that they implicate the fundamental rights under Articles 20(3) 92 and 2193 of
the Constitution. The Court held that the results obtained through an involuntary administration of these
tests are within the scope of a testimonial, attracting the protective shield of Article 20(3) of the
Constitution. The Court emphasised that while the right against self-incrimination is a component of
personal liberty under Article 21, privacy under the constitution has a meeting point with Article 20(3) as
well. The Hon’ble Chief Justice, K.G Balakrishnan spoke on behalf of the Apex Court, and drew the
following conclusions:
(i) The right against self-incrimination and personal liberty are non-derogable rights and their
enforcement therefore is not suspended even during emergency.
(ii) The right of police to investigate an offence and examine any person do not and cannot override
constitutional protection in Article 20(3);
(iii) The protection is available not only at the stage of trial but also at the stage of investigation;
(iv) That the right protects persons who have been formally accused, suspects and even witnesses who
apprehend to make any statements which could expose them to criminal charges or further investigation;
(v) The law confers on ‘any person’ who is examined during an investigation, an effective choice between
speaking and remaining silent. This implies that it is for the person being examined to decide whether the
answer to a particular question would be inculpatory or exculpatory;
15. Chief Justice Warren of the Supreme Court of America declared that the government may not use
statement obtained from “custodial interrogation” of defendant unless it can show that his right against
self-incrimination had been carefully secured by effective “procedural safeguard” that does not violate due
process law. This proposition is known as Miranda Rule.94
16. Before the interrogation, the police must warn the accused that he has right to remain silent. Secondly,
accused must be informed that whatever statement he makes would be used against him. Thirdly, accused
92
93
94
Miranda v. Arizona, (1966) 384 U.S. 436; Escobedo v. Illinois, (1964) 378 U.S. 478.
15 | P a g e
is entitled to engage counsel during such interrogation. These three conditions must be strictly complied or
defendants must have waived these rights voluntarily, knowingly and intelligently; otherwise confession is
inadmissible.95
17. It is to bring to the kind notice of this Hon’ble Court that in the very recent leading judgment in K.S
Puttaswamy v. Union of India,96 the protection of Art. 20(3)97 against improper search and seizure was
validated by Hon’ble Justice S. A. Bobde, while interpreting the view held in M.P Sharma’s case where it
was said the our Constituent Assembly chose not to subject laws providing for search and seizure to
constitutional limitations.. The learned Judge has gone into the details of Fourth Amendment to the United
State’s Constitution and opined that “M.P. Sharma is unconvincing not only because it arrived at its
conclusion without enquiry into whether a privacy right could exist in our Constitution on an independent
footing or not, but because it wrongly took the United States Fourth Amendment – which in itself is no
more than a limited protection against unlawful surveillance – to be a comprehensive constitutional
guarantee of privacy in that jurisdiction”.
18. While penning the judgment in the abovementioned case98, Justice Bobde laid down that in the current
state of things, Articles 19(1),99 20(3),100 25,101 28102 and 29103 are all rights helped up and made
meaningful by the exercise of privacy. It was also observed that an individual may perceive that the best
form of expression is to remain silent. Silence postulates a realm of privacy.
19. Thus, in the present case, the petitioner has been deprived of his right against self incrimination as is
evident from the fact that his privacy was infringed as a result of collection of information without his
consent which subsequently led to his arrest by the authorities.
95
Law Commission of India, Rep. No. 69, Review of the Provisions of The Indian Evidence Act 1872, at 196.
96
97
98
99
100
101
102
103
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ISSUE 3: WHETHER USE OF DNA SAMPLES IS INCONSISTENT WITH RIGHT TO
PRIVACY ENSHRINED UNDER ARTICLE 21 OF THE CONSTITUTION OF INDICA?
1. It is humbly submitted before this Hon’ble Court that the DNA samples in pursuance of the
undercover operation were collected without the consent of the individuals (suspects). They have been
subsequently used by the authorities for the purpose of crime investigation and thus led to infringement of
petitioners’ right to privacy.
2. The recognition of privacy as a fundamental constitutional value is part of Indica’s commitment to
global human rights regime. ‘Article 51’ of the Constitution of Indica, which forms part of the Directive
Principles, requires the State to endeavour to “foster respect for international law and treaty obligations in
the dealings of organized peoples with one another”104. Article 12 of the Universal Declaration of Human
Rights, 1948 that recognizes the right to privacy reads as: “no one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence nor to attack upon his honour and
reputation. Everyone has the right to the protection of the law against such interference or attacks.”105
3. International Covenant on Civil and Political Rights, 1966 casts an obligation on states to respect,
protect and fulfil its norms. Art.17106 of the ICCPR casts a duty upon the states to adopt and enact
measures to prohibit undue interferences with the exercise of right to privacy of people. The government in
order to give effect to these provisions of ICCPR has enacted the Protection of Human Right Act, 1993
which includes liberty as the basic human rights guaranteed to the people.107
4. In the case of National Legal Services Authority v. Union of India,108 (“NALSA”), a Bench of two
judges, while dealing with the rights of transgenders, adverted to international conventions acceded to by
India including the UDHR and ICCPR. Provisions in these conventions which confer a protection against
arbitrary and unlawful interference with a person’s privacy, family and home would be read in a manner
104
INDIA Const. art. 51, cl. c.
105
(UDHR) The Universal Declaration of Human Rights, 1948, art. 12.
106
The International Covenant on Civil and Political Rights, 1966. art. 17.
107
Protection of Human Rights Act, 1993, sec. 2, cl. 1, sub.cl. d.
108
(2014) 5 SCC 438.
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which harmonizes the fundamental rights contained in Articles 14,109 15,110 19111 and 21112 with India’s
international obligations.
3.1. THE ACTION TAKEN AT THE BEHEST OF THE STATE GOVT. WITHOUT THE
CONSENT OF INDIVIDUALS VIOLATES THEIR RIGHT TO PRIVACY AND THE RIGHT TO
LIVE WITH DIGNITY UNDER THE CONSTITUTION OF INDICA.
5. It is brought to the notice of this Hon’ble Court that the evidences, case properties, consignments,
codes and DNA samples collected in pursuance of “Covert Operation Policy’, deprives the petitioner of his
right to privacy enshrined under Article 21113 of the Constitution of Indica.
6. As propounded by Hon’ble Justice Rohinton Fali Nariman “every State intrusion into privacy interests
which deals with the physical body or the dissemination of information personal to an individual or
personal choices relating to the individual would be subjected to the balancing test prescribed under the
fundamental right that it infringes depending upon where the privacy interest claimed is founded.”114
7. It is humbly submitted before the Hon’ble Court that right to Privacy is the basic inalienable right of
an individual.115 Privacy is a concomitant of his right to exercise control over his personality and is
essential for his development as a human being. Right to privacy has been held to be constitutionally
protected fundamental right.116 The liberty of an individual is a matter of fundamental natural law, a
private preserve and must be safeguarded from unnecessary interference.117 Right to privacy is vested
within right to life and personal liberty under Art.21 of Constitution of India.118
109
110
111
112
113
Id.
114
115
Id.
116
Gobind v. State of Madhya Pradesh and Ors., (1975) 2 SCC 148; See also, R. Rajagopal v. State of Tamil Nadu,
(1994) 6 SCC 632; People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301; Kharak Singh v. State
of UP, AIR 1963 SC 1295; Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1.
117
Gobind v. State of Madhya Pradesh and Ors., (1975) 2 SCC 148.
118
Kharak Singh v. State of UP, AIR 1963 SC 1295; See also, Gobind v. State of Madhya Pradesh, AIR 1975 SC
1378; PUCL v. Union of India, AIR 1991 SC 207.
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8. It is further submitted before this Hon’ble Court that right to life includes right to live with dignity as
reiterated in the case of Francis Coralie Mullin v. UT of Delhi,119 wherein the Court held that the right to
dignity forms an essential part of our constitutional culture which seeks to ensure the full development and
evolution of persons and includes “expressing oneself in diverse forms, freely moving about and mixing
and comingling with fellow human beings.”
9. Moreover, the US Supreme Court in Wolf v. Colorado,120 held that: “The security of one's privacy
against arbitrary intrusion by the police is basic to a free society. We have no hesitation in saying that,
were a State affirmatively to sanction such police incursion into privacy it would run counter to the
guarantee of the Fourteenth Amendment.”
10. In the famous case of Ram Jethmalani v Union of India,121 this Court while upholding the
significance of privacy, held that the revelation of the details of the bank accounts of individuals without
the establishment of a prima facie ground of wrongdoing would be a violation of the right to privacy. This
Court observed thus: “Right to privacy is an integral part of right to life. This is a cherished constitutional
value, and it is important that human beings be allowed domains of freedom that are free of public scrutiny
unless they act in an unlawful manner. The notion of fundamental rights, such as a right to privacy as part
of right to life, is not merely that the State is enjoined from derogating from them. It also includes the
responsibility of the State to uphold them against the actions of others in the society, even in the context of
exercise of fundamental rights by those others.”
11. The petitioner humbly submits that in the view of the Court in Ramlila Maidan Incidence v. Home
Secretary, Union of India122, privacy and dignity of human life have “always been considered a
fundamental human right of every human being” like other constitutional values such as free speech.
12. In the instant case, the police authorities believed that the entire exercise (i.e., the smuggling) gets
executed through several agents (mules) who hardly have any idea about the entire syndicate. 123 Later on,
119
(1981) 1 SCC 608: 1981 SCC (Cri) 212.
120
338 U.S. 25 (1949).
121
(2011) 8 SCC 1.
122
(2012) 5 SCC 1
19 | P a g e
it has been stated that the police authorities/ law enforcement agencies gathered many evidences, codes,
DNA samples that were collected without the consent of the individuals124 and without following proper
procedure laid down for search and seizure.
13. This clearly indicates that individuals were unaware when the authorities were acting in a manner
which deprived them of their right to privacy along with right to live with dignity. Time and again, it has
been observed that application of DNA technology requires certain formalities. The consent of individual
is paramount while his DNA samples are to be collected. While in the present case, the data collected from
individuals who are just suspects, has been in complete violation of their privacy which has been given the
status of fundamental right in the celebrated judgment of Justice K.S. Puttaswamy.125
14. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the
human personality from unwanted intrusion.126 The right to privacy is an element of human
dignity.127The term ‘life’ in Art. 21 does not mean ‘mere animal existence’, rather right to live with
dignity.128 Therefore, any violation of dignity of an individual is violation of right to life of the
individual. In the present case as well, the arrest of Mr. X has denuded him of his dignity which is a part
and parcel of right to life u/a 21.
3.1.1. REASONABLY LEGITIMATE EXPECTATION OF PRIVACY.
15. We are in an information age. With the growth and development of technology, more information is
now easily available. The information explosion has manifold advantages but also some disadvantages.
The access to information, which an individual may not want to give, needs the protection of privacy. 129
123
Para 5, Moot Proposition.
124
Para 7, Moot proposition.
125
126
Id.
127
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
128
Kharak Singh v. State of U.P. and Ors., AIR 1963 SC 1295; See also, Francis Coralie v. Union Territory of
Delhi, AIR 1981 SC 1746.
129
20 | P a g e
16. In Gobind v. State of M.P.,130 this Court relied on Griswold v. Connecticut,131 and the observation
of the US Supreme Court is worth producing in extenso: “The concept is founded on the autonomy of the
individual. The ability of an individual to make choices lies at the core of the human personality. The
notion of privacy enables the individual to assert and control the human element which is inseparable from
the personality of the individual. The inviolable nature of the human personality is manifested in the ability
to make decisions on matters intimate to human life. The autonomy of the individual is associated over
matters which can be kept private. These are concerns over which there is a legitimate expectation of
privacy. The body and the mind are inseparable elements of the human personality. The integrity of the
body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable
ability and right to preserve a private space in which the human personality can develop.”
17. In the celebrated judgment of Katz v. United States,132 the reasonable expectation of privacy test
formulated by Justice Harlan has a twofold requirement, first that a person has exhibited an actual
(subjective) expectation of privacy and, second, that the expectation be one that society is prepared to
recognize as "reasonable."
18. Further, in Florida v. Jardines,133 it was propounded by Justice Kagan that our ‘minimal expectation
of privacy’ is an expectation “that exists, and that is acknowledged to be reasonable”.
19. In the present case, Mr. X’s DNA samples were collected on two occasions. Being a citizen, he ought
to have his rights protected under the Constitution. Whenever information is sought by the Government for
a particular purpose, there is a legitimate expectation on the part of the citizens that it will exclusively be
used for that specific purpose and would not be abused. And this expectation is certainly reasonable as
every individual in the society reckons it. On the contrary, petitioner was not asked for his personal
130
(1975) 2 SCC 148.
131
381 U.S. 497 (1965).
132
389 U.S. 347 (1967).
133
569 U.S. 1 (2013).
21 | P a g e
information and it was collected without his consent. Thus, it is quite clear that the Govt. has not complied
with petitioner’s legitimate expectation of privacy as laid down in Katz134.
20. The petitioner further places reliance upon Her Majesty, The Queen v. Brandon Roy Dyment,135 the
Court found that the patient had a “well-founded” and “reasonable” expectation of privacy that his blood
sample, collected by the doctor, would be used for medical purposes only and that such expectation “is
intended to protect people not things”.
21. The ‘reasonable expectation of privacy’ test has been relied on subsequently by various other
jurisdictions while developing the right to privacy. Having located the right to privacy in the ‘person’,
American jurisprudence on the right to privacy has developed to shield various private aspects of a
person’s life from interference by the state - such as conscience, education, personal information,
communications and conversations, sexuality, marriage, procreation, contraception, individual beliefs,
thoughts and emotions, political and other social groups.136
22. In the matter at hand, there has been no endeavour on the part of the Govt. to preserve the rights and
interests of the petitioner and the agents (mules) and hence, thus it is a sure shot case of the violation of
right to privacy which has been recognized as a part and parcel of right to life.137
23. As a result of invasion into privacy, Mr. X was arrested which led to taking away his freedom to move
freely as well as infringed his personal liberty which consists of right to live with dignity and personal
integrity. Right to live as a human being is secured only when a human being is assured of all facilities to
benefit himself,138 which includes privacy. The government by depriving people of their privacy of mind
and body is stripping them of their dignity.
134
389 U.S. 347 (1967).
135
(1988) 2 S.C.R. 417.
136
137
138
Chameli Singh v. State of U.P., (1996) 2 SCC 549.
22 | P a g e
3.2. THAT THE ISSUANCE OF GUIDELINES FOR THE USE AND APPLICATION OF DNA
TECHNOLOGY IN CRIME RESOLUTION AND DISASTER VICTIM IDENTIFICATION IS
CONSISTENT WITH THE FUNDAMENTAL RIGHTS OF THE CITIZENS OF INDICA.
1. It is duly submitted that a leading NGO named ‘Technology for All & Justice- (TAJ)’, considering the
importance of DNA technology as the ultimate diviner of guilt, its role in increased public safety, in
assuring freedom from false conviction and incarceration and in disaster victim identification, has
approached the Supreme Court by way of PIL for establishment of necessary infrastructure to have a full
proof DNA database for the DNA profiling of individuals involved in heinous crimes in pursuance of the
legislative mandate of Code of Criminal Procedure, 1973.139
2. It is further contended that ethical retention and preservation of the DNA samples poses no threat to
the privacy concern of the individual and any other civil liberties. It seeks a series of guidelines for the use
and application of DNA technology in crime resolution and disaster victim identification.
3. It is to bring to the kind notice of this Hon’ble Court that the ultimate aim of the NGO is to ensure
safety and welfare of the society which is also the objective of Directive Principles of State policy
provided under Part IV of the Constitution of Indica.
4. As we have seen ‘justiciability’ is the basis of division between fundamental rights enshrined under
Part III and Directive Principles under Part IV, it is to be further noted that Constitution has been
interpreted by the Supreme Court time and again in such a way that minimizes the gap between
Fundamental Rights and social welfare rights.
5. It has been observed that the judiciary has modified its attitude and adopted the doctrine of
harmonious construction subsequent to the decision of Champakam Dorrairajan140. There was an
increasing recognition of the fact that although the directives were not enforceable, the court were to
recognize relevance of directives because of simple reason that those cover that vital part of the
139
Moot Proposition ¶ 20.
140
AIR 1951 SC 226.
23 | P a g e
Constitutional document. In the case of C.B. Boarding and Lodging v. State of Mysore,141 the Court
observed that the provisions contained in Part III and Part IV, ‘are complementary and supplementary to
other’.
6. It is pertinent to note that in the present case, the petitioners, an NGO seek guidelines on the ground
that use of DNA technology would prove to be a boon for the society at large. The petitioners reckon the
fact that DNA is sensitive physical evidence that if used correctly can benefit the public good, but if
misused can lead to serious privacy and human rights violations. Therefore it is important to create a
balance between the constitutional rights of an individual and the public interest and bring accountability
and transparency to the practice of DNA collection and testing.
7. The petitioners humbly contend that the Hon’ble Court should issue guidelines for the application of
DNA technology in the light of doctrine of harmonious construction which has been applied in various
landmark cases in order to ensure that justice is delivered at a large scale.
8. In the famous case of Minerva Mills Ltd. v. Union of India,142 it was held by this Hon’ble Court that
harmony and balance is an essential feature of the basic structure of the Constitution. This judicial
approach indeed led enforcement of Directive Principles of State Policy. However, later the Supreme Court
has recognized in many cases that both DPSP and Fundamental Rights are complimentary to each other
and are equally fundamental in the governance of the country and that different Articles in the chapter on
Fundamental Rights and the DPSP in Part IV of the Constitution must be read as an integral and
incorporeal whole with possible overlapping with the subject matter of what is to be protected by its
various provisions.143
9. The question of Constitutional validity of 1st amendment came up in the case of Sankari Prasad144.
This Hon’ble Court unanimously decided to resolve the conflict between Fundamental Rights and
Directive Principles by placing the reliance on the line of doctrine of harmonious construction.
141
AIR 1970 SC 2042.
142
AIR 1980 SC 1789.
143
Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101.
144
AIR 1951 SC 455.
24 | P a g e
10. A restriction which promotes any objective embodied in the Directive Principles is usually
considered reasonable by courts of law.145 Thus in State of Bombay v. F.N. Balsara,146 the Supreme
Court gave weightage to Art. 47147 which directs the State to bring about prohibition of consumption of
intoxicating drink except for medicinal purposes. It was held by the SC that the restriction imposed by the
Bombay Prohibition Act was a reasonable restriction on the right to engage in any profession or carry on
trade.
11. Also, in Bijoy Cotton Mills v. State of Ajmer,148 this Hon’ble Court upheld the Constitutional
validity of the Minimum Wages Act, 1948, because it was enacted to give effect to directive principles of
State Policy provided under Art. 43149 of the Constitution. Therefore, the fixation of wages for labourers
did not violate freedom of trade under Art. 19(5).150
12. Furthermore, in the case of State of Bihar v. Kameshwar Singh,151 the Court upheld that where two
judicial interpretations are acceptable then the interpretation favouring Directive Principles should be
adopted.
13. Recently, in Ashoka Kumar Thakur v. Union of India,152 Balakrishnan C.J. said that no distinction
can be made between the two sets of rights. The fundamental rights represent the civil and political rights
and the directive principles embody social and economic rights. Merely because the directive principles are
non-justiciable process does not mean that they are of subordinate importance.
14. Similarly in Unni Krishnan v. State of Andhra Pradesh,153 Jeevan Reddy, J., said that the
Fundamental Rights and Directive Principles are supplementary and complimentary to each other, and not
exclusionary of each other, and that Fundamental Rights are but a means to achieve the goals indicated in
145
INDIA Const. Ch. IV, Directive Principles of State Policy.
146
AIR 1951 SC 318: 1951 SCR 682.
147
148
AIR 1955 SC 33: 1955 SCR (1) 752.
149
150
151
1952 1 SCR 889.
152
(2008) 6 SCC 1: (2008) 5 JT 1.
153
AIR 1993 SC 2178, 2230: (1993) 1 SCC 645.
25 | P a g e
the Directive Principles and that “Fundamental Rights must be construed in the light of the Directive
Principles.”
15. Thus, it is the humble submission of the petitioners that ethical retention and preservation of DNA
sample poses no threat to the privacy concern of the individual and any other civil liberties. The petitioners
also urge that it can be ensured by inserting proper protection in the guidelines like the consent of
individual as to the purpose for which his DNA samples are being collected and the assurance that his
personal data will neither be retained further and nor be used for any purpose other than the one for which
consent was obtained.
3.3. THE RELEASE OF THE DNA SAMPLES OF ‘MR. X’ COLLECTED BY LAW
ENFORCEMENT AGENCY WOULD BE DETRIMENTAL TO THE RIGHT TO PRIVACY AS
WELL AS RIGHT TO REPUTATION AND DIGNITY OF ‘MASTER Z’ AND AN INVASION
INTO THE BASIC RIGHTS OF THE FAMILY.
1. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and
instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected
interest in itself. In its instrumental facet, dignity and freedom are inseparably inter-twined, each being a
facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the
realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a
subset.154
2. More often than not, it has been reiterated in the case of K. S Puttaswamy v. Union of India155, that
family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. An
individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of
privacy.156
154
155
Id.
156
Id.
26 | P a g e
3. In the case of State of Bihar v. Lal Krishna Advani,157 , this Court by an interpretive process read
the right to protect one’s reputation in the expression ‘life’ under Article 21 of the Indian Constitution. The
same has been reiterated by the Hon’ble Apex Court in the recent case of Umesh Kumar v. State of
Andhra Pradesh.158
4. As quoted in the landmark judgment on right to privacy159 as a fundamental right: “An individual has
a right to protect his reputation from being unfairly harmed and such protection of reputation needs to exist
not only against falsehood but also certain truths. It cannot be said that a more accurate judgment about
people can be facilitated by knowing private details about their lives – people judge us badly, they judge us
in haste, they judge out of context, they judge without hearing the whole story and they judge with
hypocrisy. Privacy lets people protect themselves from these troublesome judgments.”160
5. It is pertinent to note that in the abovementioned case161 , Rohinton F. Nariman, J., has recognized
informational privacy which recognizes that an individual may have control over the dissemination of
material which is personal to him. The test of proportionality laid down in the same judgment162, states that
the action of State must be lawful and the extent of such interference must be proportionate to the need for
such interference.
6. It is brought to the kind notice of this Hon’ble Court that DNA test can be compromised under many
circumstances including: techniques for declaring a match, the proficiency of examiners, laboratory control
standards and statistical problems, and DNA samples can become degraded due to age or exposure to
chemical or bacterial agents.163 In the instant case, the petitioner relies on this very argument and contends
that the release of DNA profile of Mr. X would be detrimental to the privacy as well as invasion into the
basic rights of the family of Master Z.
157
(2003) 8 SCC 361.
158
(2013) 10 SCC 591.
159
160
Daniel Solove, ’10 Reasons Why Privacy Matters’, TEACH PRIVACY (Oct. 6, 2018, 05:56 PM),
https://www.teachprivacy.com/10-reasons-privacy-matters/.
161
162
Id.
163
Adhikary Jyotirmoy, DNA Technology in Administration of Justice, 245 (Lexis Nexis. 2007).
27 | P a g e
7. Moreover, privacy eminently qualifies as an inalienable natural right, intimately connected to two
values whose protection is a matter of universal moral agreement: the innate dignity and autonomy of
man.164
3.3.1. BEST INTEREST OF CHILD PRINCIPLE
8. The petitioner humbly submits that In India, the Juvenile Justice (Care and Protection of Children)
Act, 2000 charges Child Welfare Committees (CWC) in every district (administrative division) with the
responsibility of ensuring the rehabilitation and protection of “children in need of care and protection.”
9. CWC decisions hinge on “best interests” determination (BID), as mandated by the Juvenile Justice
Act. Article 3.1165 of the United Nations Convention on the Rights of the Child (Convention) requires “the
best interests of the child” to be the “primary consideration” “in all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative authorities or
legislative bodies.”
3.3.2. THE RIGHT TO BE HEARD: A SUBSTANTIVE RIGHT IN THE CHILD’S
INTERESTS
10. The Committee observed that the child’s right to be heard is important in ensuring that her “best
interests” are served, thereby drawing a link between the “best interests” of the child and the child’s right
to participation, guaranteed under Article 12166 of the Convention. Hence there is no doubt that a child
should be heard during a legal proceeding, particularly a legal proceeding such as a protection hearing
aimed at determining the child’s best interest.
11. This right of the child to be heard in all legal proceedings irrespective of their nature, that is criminal,
custody-related, protection hearing and so on, was once again reaffirmed by the Committee on the Rights
of the Child and other international organizations in 2006.
164
165
United Nations Convention on the Rights of the Child, 1990, art. 3, cl. 1.
166
United Nations Convention on the Rights of the Child, 1990, art. 12. i.e., “to assure to the child who is capable
of forming his or her own views the right to express those views freely in all matters affecting the child, the views
of the child being given due weight in accordance with the age and maturity of the child.”
28 | P a g e
12. The right to privacy is an element of human dignity.167Privacy ensures that a human being can lead a
life of dignity by securing the independence of the human personality from unwanted intrusion.168
13. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which
straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and
self-determination. In 1690, John Locke had in his Second Treatise of Government169 observed that the
lives, liberties and estates of individuals are as a matter of fundamental natural law, a private preserve.
14. Ronald Dworkin, in his seminal work titled “Taking Rights Seriously”170 (1977), he states that:
“Individual rights are political trumps held by individuals. Individuals have rights when, for some reason,
a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or
to do, or not a sufficient justification for imposing some loss or injury upon them.”171 Dworkin asserts the
existence of a right against the government as essential to protecting the dignity of the individual.
15. Thus, in the present case the petitioner places strong reliance upon the ‘best interest of child principle’
in order to protect his right to dignity and reputation, an integral part of right to life172. Importantly, Article
12 neither lays down a minimum age for a child’s participation, nor specifies that the child should be
mature enough to participate; it merely states that the child should be capable enough to have his or her
own views.
16. Thus, it is the humble submission of the petitioner that the release of DNA profile of Mr. X would be
detrimental to the family affinity, right to privacy, reputation and dignity of ‘Master Z’ and would also
cause invasion into the basic rights of the family.
167
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
168
169
JOHN LOCKE, SECOND TREATISE OF GOVERNMENT (Awnsham Churchill 1689).
170
RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (Duckworth 1977).
171
Ibid, at xi.
172
29 | P a g e
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, may this
Hon’ble Court be pleased to hold, adjudge and declare that:
1. The entire ‘search and seizure’ made during the undercover operation is illegal,
unconstitutional and fundamental rights of Mr. X have been violated.
2. Necessary infrastructure for DNA database be established and guidelines for use of DNA
technology be issued.
3. DNA samples sought to be used for determining paternity by Mr. X be not released.
And/or
Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of Justice,
Equity and Good Conscience.
For This Act of Kindness, the Petitioners Shall Duty Bound Forever Pray.
Sd/-
(Counsel for the Petitioners)
XVI | P a g e

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TEAM CODE: NRMC 447

FOURTH PROF. N. R. MADHAVA MENON SAARCLAW MOOTING COMPETITION- INDIA

BEFORE THE HON’BLE SUPREME COURT OF INDICA

IN THE MATTER OF:

MR. “X” ..........PETITIONER

UNION OF INDICA ...........RESPONDENT

WRIT PETITION (CRIMINAL) NO. 980/2013

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDICA

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

-COUNSELS APPEARING ON BEHALF OF THE PETITIONERS-

AGRUMENTS SUPPORTED BY AUTHORITIES………………………………................….1

I. WHETHER THE WRIT PETITIONS ARE MAINTAINABLE UNDER ARTICLE

32 OF THE CONSTITUTION OF INDICA? ............................................................1-5

A. Whether there is a Substantial Question of Law to be considered by the Hon’ble

Supreme Court of Indica?

II. WHETHER ARREST OF MR. X LED TO VIOLATION OF HIS

FUNDAMENTAL RIGHTS AND BASIC CIVIL LIBERTIES GUARANTEED BY

THE CONSTITUTION OF INDICA? ......................................................................6-16

art. 21 and 19(1) (d) respectively.

suspected matching of DNA samples of Mr. X led to the violation of his

III. WHETHER USE OF DNA SAMPLES COLLECTED DURING THE

UNDERCOVER OPERATIONS IS INCONSISTENT WITH RIGHT TO

PRIVACY ENSHRINED UNDER ARTICLE 21 OF THE CONSTITUTION OF

rights of the citizens of Indica?

1. Bill of Rights of South Africa, 1996.

2. Indian Penal Code, 1860.

3. Narcotic Drugs and Psychotropic Substances Act, 1985.

4. Protection of Human Rights Act, 1993.

5. The Criminal Procedure Code, 1972.

6. The Indian Evidence Act, 1872.

7. The Universal Declaration of Human Rights (UDHR), 1948.

8. The International Covenant on Civil and Political Rights, 1966.

9. United Nations Convention on the Rights of the Child, 1990.

1. A. B. S. K. Sangh (Railways) v. Union of India, AIR 1981 SC 298.

2. A.K. Gopalan v State of Madras, AIR 1950 SC 27.

3. Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1.

4. Bandhua Mukti Morcha v Union of India, (1997) 10 SCC 549.

5. Bijay Cotton Mills v. State of Ajmer, AIR 1955 SC 33.

8. C.B. Boarding and Loading v. State of Mysore, AIR 1970 SC 2042.

10. Chameli Singh v. State of U.P., (1996) 2 SCC 549.

11. Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.

12. Chiranjit Lal Chowdhary v. Union of India, AIR 1951 SC 41.

15. D. D. Vyas v. Ghaziabad Development Authority, AIR 1993 All 57.

16. Daryao v. State of U.P., AIR 1961 SC 1457, 1461.

19. Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608

21. Icchu Devi v. Union of India, AIR 1980 SC 1983.

22. Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349.

23. K. K. Kochunni v. State of Madras, AIR 1959 SC 725.

24. K.S Puttaswamy v. Union of India, AIR 2017 SC 4161.

25. Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461.

27. Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 469.

30. Maneka Gandhi v. Union of India, AIR 1978 SC 597.

31. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.

32. Municipal Council, Ratlam v. Vardichand, AIR 1980 SC 1622.

36. R.C. Cooper v. Union of India, AIR 1970 SC 564.

37. Rajgopal v. State of Tamil Nadu, 1994 6 SCC 632.

38. Ram Jethmalani v Union of India, (2011) 8 SCC 1.

41. Romesh Thappar v. state of madras, AIR 1950 SC 124, 126.