Moot memorial on constitutional law moot court competition, Summaries of Law

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DUMCS-TIB Anti-Corruption Moot Court Competition

IN THE SUPREME COURT OF BICHITROPUR

HIGH COURT DIVISION (Writ Jurisdiction)

In the Matter of

Corruption and the legality of Production Sharing Contract

&

the first-come-first-serve policy

United We Stand (UWS)

Versus

Republic of Bichitropur

MEMORIAL FOR APPLICANT

AC-25A

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TABLE OF CONTENTS

TABLE OF CONTENTS.......................................................................................................... (ii) LIST OF ABBREVIATIONS…………………………………………………………....…… (v) LIST OF AUTHORITIES....................................................................................................... (vi) STATEMENT OF JURISDICTION.................................................................................. .... (xi) STATEMENT OF RELEVANT FACTS............................................................................... (xii) QUESTIONS PRESENTED................................................................................................ (xviii) SUMMARY OF ARGUMENTS............................................................................................ (xix) ARGUMENTS

1. The writ is maintainable……………………………………………………… (1)

A. That the remedy of writ is available against the Respondents…………………………. (1) B. That United We Stand (UWS) is an aggrieved party…………………………………... (2)

2. The delaying of investigation by police is a violation of the Constitution of

Bichitropur and is an infringement of fundamental rights of the citizens…. (3)

A. That delay in investigation violates the right to speedy trial as guaranteed in the constitution……………………………………………………………………………... (3) B. That delay in investigation violates the right to life and personal liberty as guaranteed in the constitution…………………………………………………………………………. (4) C. That delay in investigation violates the due process of law as guaranteed in the constitution……………………………………………………………………………... (4) D. That delay in investigation in this case is against the public interest………………..…. (5) E. That delay in investigation in this case resulted in “State-Created Danger.”………….. (7)

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3. The entry into a Production Sharing Contract in the manner it has been done

in the present case is violative of Constitution and the High Court Division of

Bichitropur has the authority to direct the parliament to enact a policy….. (8)

A. That lack of transparency in the production sharing contract is a violation of the constitution. ……………………………………………………………………………. (8) B. That the PSC doesn‟t enjoy any indemnity under the constitution…………………….. (9) C. That the PSC is void due to fraud…………………………………………………….. (10) D. That the High Court Division of Bichitropur has the authority to direct the parliament to enact a policy under article 102 (2) (1) (i) of the constitution………………………... (11)

4. Whether the first-come-first-serve policy is violative of the equality clauses of

the Constitution of Bichitropur……………………………………………. (11)

A. That the first-come-first-serve policy is arbitrary………………………………….…. (12) B. That first-come-first-serve policy doesn‟t pass the test of permissible classification… (13) i. That first-come-first-serve policy is not founded upon intelligible differentia which distinguishes the company which is given lease from others who are not…………………………………………………..… (13) ii. That first-come-first-serve policy has no rational nexus to the object of tender sought by the state……………………………………………... (14) C. That the first-come-first-serve policy doesn‟t pass the test of Wednesbury reasonableness…………………………………………………………………….…... (14)

5. The inaction of the State in dealing with corruption in the health sector

results in violation of fundamental rights of the citizens…………………. (15)

A. That there are ample evidences of corruption in the health sector…………………..... (15)

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B. That inaction of the State is a violation of right to life…………………………...…. (15) C. That right to equality under the constitution has been violated……………………... (17)

RELIEF SOUGHT…………………………………………………………………………. (19)

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LIST OF ABBREVIATIONS

AD Appellate Division BLT Bangladesh Law Times AIR All India Reporter HCD High Court Divison ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights MLR Mainstream Law Reports PSC Production Sharing Contract SC Supreme Court

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LIST OF AUTHORITIES

Legislations Constitution of the Republic of Bichitropur………………………………..……… (1, 2, 3, 8, 11) Prevention of Repression of Women and Children Act, 2000………………………………..…(7) The Arms Act, 1878……………………………………………………………………………..(7) The Speedy Trial Tribunal Act, 2002…………………………………………………………....(7) International Conventions International Covenant on Economic, Social and Cultural Rights Dec. 16, 1966, 993 U.N.T.S. 3, 5 (1976)………………………………………………………………………………………… (3) International Covenant on Civil and Political Rights, December 19, 1966, 999 U.N.T.S. 171, 173 (1976)…………………………………………………………………………………………. (16) Domestic Cases Abdul Mannan Khan v. Bangladesh 64 DLR (AD) (2012) 169…………………………….... (11) Adv Zulhas Uddin Ahmed & Manzil Morshed v. Bangladesh 15 MLR (HCD) 2010……..… (17) Aftabuddin v Bangladesh, (1996) 48 DLR 1……………………………………………….… (12) Chowdhury Mahmud Hossain v. Bangladesh 22 BLD (HCD) 459........................................... (2) Cho Wen Chang and others V. SF Winsome Fashion Ltd65 DLR (2013) 584………………. (10) Dhaka City Corporation v. Firoza Begum 65 DLR (AD) (2013) 145………………………... (12) Golam Mustafa v. Bangladesh 2007 (XV) BLT (HCD)............................................................ (14) Jibendra Kishore v. Province of East Pakistan 9 DLR SC 21……………………………….... (13) Md. Ali Akbar vs. The State 4 (1999) MLR (HCD) 87……………………………………...… (5) Metro makers & Developers Ltd v BELA 65 DLR (AD) 181……………………………...… (10) Sheikh Abdus Sabur v. Returning Officer (1989) 41 DLR (AD) 30…………………………. (13)

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Syed Salahuddin Ahmed v. Government of Bangladesh 59 DLR (HCD) (2007) 388………… (9) Tarik Hussain vs Dulari Begum 65 DLR (2013) 59…………………………………………… (2) Tayazuddin and another vs. The State , 21 (2001) BLD (HCD) 503………………………...…. (6)

Foreign Cases Abdul Rehman Antulay and Others v. R.S Nayak and Another Writ Petition (Crl.) Nos. 268 Of 1987 ………………………………………………………………………………………….. (3, 4) Associated Provincial Pictures House Ltd v Wednesbury Corp[1948] 1 KB 223……………. (14) Barker v. Wingo (1971) 407 US 514………………………………………………………...… (5) Blackburn v. Attorney General 1972 1WLR 1037…………………………………………….. (2) Bowers vs DeVito 686 F.2d 616 (7th^ Circuit 1982) 618…………………………………….…. (7) D.A.V. College v. Punjab AIR 1971 SC 1731…………………………………………………. (2) Dilawar vs State of Haryana., M.A. NO.267 OF 2017 IN SLP (CRL.) NO.657 OF 2017…….. (5) E.P. Royappa v. T.N. AIR 1974 SC 555……………………………………………………… (12) Francis Coralie v. Union of Delhi AIR 1981 SC 746………………………………………… (16) Ganesh Narayan vs. S.Bangarappa(1995) 4 SCC 41……………………………………...…… (6) Hema v. State, (2013) 10 SCC 192…………………………………………………………….. (4) Hindustan Vegetable Oils Corporation v. A.P. Paracer (2000) 10 SCC 41………………...… (10) Hussainara Khatoon v. Home Secretary, State of Bihar , 1980 1 SCC 81…………………...…. (4) Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387, 454 (1892).................................................. (10) Imtiyaz Ahmad v. State Of Uttar Pradesh And Others Slps (Crl.) Nos. 1581-89 Of 2009......... (6) Katar Singh v. State of Punjab1994 SCC (3) 569, JT 1994 (2) 423, 1994 SCALE 1………….. (4) Kochuni v. Madras AIR 1959 SC 725…………………………………………………………. (2) Machander v. State of Hyderabad 1955 2 SCR 524…………………………………………… (5) Madheshwardhari Singh AndAnr. vsState Of Bihar on 11 July, 1986……………………….... (6)

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Memorial Hospital v. Maricopa County 415 U.S. 250, 259 (1974)………………………....... (16) Piotrowski v. City of Houston, 237 F. 3d 567 - Court of Appeals, 5th Circuit 2001………..… (7) Paschim Banga Khet Majoor Samity vs State of West BengalAIR 1996 SC 1515…………... (18) Praga Tools Corporation v. C.A. ImanualAIR 1969 SC 1306…………………………………. (1) Pt. Parmanand Katara vs Union of India &Ors 1989 AIR 2039, 1989 SCR (3) 997………..... (18) R v. Commissioner of Police of the Metropolis ex parte Blackburn (1968) 2 QBD 118…….... (3) RENovember, 2019). The Brazilian Supreme Federal Tribunal (Supremo Tribunal Federal, "STF") 271.286 AgR- RS, Relator MinistroCelsode Mello, http: www.stfEgov.br (accessed 23 Ross v. United States349 F.2d at 211…………………………………………………………. (17) Sheela Barse v. India (1986) 3 SCC 632……………………………………………………….. (4) Shrilekha Vidyarthi v. Uttar Pradesh AIR 1991 SC 537……………………………………... (12) Smt. Gian Kaurvs The State of Punjab 1996 AIR 946, 1996 SCC (2) 648………………...… (16) Sohan Lal v. Union of India, AIR 1957 SC 529……………………………………………….. (1) Surinder Singh v. Punjab (2005) 7 SCC 387…………………………………………………... (4) United States v. Calandra, 414 US 338 - Supreme Court 1974………………………………... (4) United States v. Lovasco, 431 U.S. 783, 796-97 (1977)..................................................... (4, 6) United States v. Marion, 404 U.S. 307, 324-25 (1471)...................................................... (4, 6) United States v. Thockmorton 98 U.S. 61…………………………………………………..… (10) Vincent Panikurlangara vs Union of India &Ors, 1987 SCR (2) 46………………………….. (17) Books Abdullah Al Faruque, Petroleum Contracts: Stability and Risk management in Developing Countries, (Dhaka, Bilia, 2011)Ashworth, Andrew, Principles of Criminal Law , Clarendon Press, Oxford (1991)…………………………………………………………………………………. (8) C.K. Takwani, Lectures On Administrative Law, Fifth Edition, (Lucknow, 2012)………….. (11) H.M. Seeravai, Constitutional Laws of India, Volume 1, 4th^ Edition……………………….... (12)

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Mahmudul Islam, Constitutional Law of Bangladesh, (Third Edition, Mullick Brothers, 2016)………………………………………………………………………………………... (4, 13) Paul Collier and Anke Hoeffler, “Conflicts” in: Bjorn Lomborg (ed.) Global Crises, Global Solutions, Cambridge University Press, Cambridge (2004)………………………………….... (8) Toby Shelley, Oil Politics, Poverty and the Planet, Zed Books, London (2005)………………. (9) Journals Blackstone, On Health Care as a Legal Right: An Exploration of Legal and Moral Grounds , 10 GEORGIA L. REV. 341 (1976)........................................................................................ (16) Cantor, The Law and Poor People's Access to HealthCare, 35 LAW AND CONTEMP. PROB. 901 (1970)...................................................................................................................... (16) Carey, A Constitutional Right to Health Care.- An Unlikely Development, 23 CATH. U. L. REV. 492 (1974)............................................................................................................ (16) Charles F. Wilkinson, The Public Trust Doctrine in Public Land Law , 14 U.C. DAVIS L. REV. 269, 315 (1980)................................................................................................................ (10) Dr. Abdullah Al Faruque, Goals And Purposes of Criminal Justice System In Bangladesh: An Evaluation, BILIA, Bangladesh Journal of Law, Special Issue, Criminal Justice – November 2007 ……………………………………………………………………………………….……. (5) Fried, Rights and Health Care-Beyond Equity and Efficiency, 293 NEW ENGLAND J. OF MED. 241 (1975)....................................................................................................................... (16) Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. Review, (1970)................................................................................ (10) Parker, The King Does No Wrong-Liability for Misadministration, 5 VAND. L. Review (1952)................................................................................................................................ (9)

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Richard Baker and Vanessa Taylor, 'The Right to Health: A Right on the Rise' (2013) 19 J Juris................................................................................................................................ (16) Sparer, The Legal Right to Health Care.- Public Policy and Equal Access, 6 HASTING CENTER REP. 39-47 (1976)........................................................................................... (16) Tamara Friesen, 'The Right to Health Care' (2001) 9 Health LJ 205……………………….… (16) Tom H Christoffel, 'Right to Health Protection' (1978) 6 Black Law Journal………………... (17) Miscellaneous Documents Black‟s Law Dictionary, Henry Campbell Black, Revised Fourth Edition, By the publisher‟s Editorial Staff, ST. PAUL, MINN. WEST PUBLISHING CO. 1968....................................... (12) Brief of Law Professor, Amicus Group at 21, Alec L. v. Gina McCarthy, No. 13-5192 (D.C. Cir. Nov. 12, 2013)................................................................................................................ (10) Expeditious Investigation and Trial of Criminal Cases Against Influential Public Personalities, Report No.239 Submitted to the Supreme Court of India in W P (C) NO. 341/2004, Virender Kumar Ohri Vs. Union of India & Others.............................................................................. (6) Government Contracts' (1869) Vol 4 American Law Rev No. 1………………………………. (9) Revised Statutes of Arizona Territory.Containing also the Laws Passed by the Twenty-first Legislative Assembly, the Constitution of the United States, the Organic Law of Arizona and the Amendments of Congress Relating Thereto. Columbia, MO, Press of E.W. Stephens............. (11) Statement by President Jimmy Carter, Nov. I1, 1977, as quoted in 7 THE NATION'S HEALTH 9 (1977)...................................................................................................................................... (17) UN Office of the High Commissioner No. 31, The Right to for Human Rights/World Health Organization, Health, June 2008, No. Fact Sheet 31, 7 http://www.refworld.org/docid/48625a742.html [accessed 23 November, 2019]................... (17)

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STATEMENT OF JURISDICTION

The Hon‟ble High Court Division of Supreme Court of BICHITROPUR has the jurisdiction to hear and adjudicate this writ under article 102 (1) of the Constitution of BICHITROPUR which provides that High Court Division has the jurisdiction to give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, for the enforcement of any the fundamental rights conferred by Part III of the Constitution. Again, the High Court Division, under article 102 (2) can make any orderdirecting a person performing any functions in connection with the affairs of the Republic or of a local authority to do that which he is required by law to do.

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STATEMENT OF RELEVANT FACTS

Republic of Bichitropur A multiracial developing country enriched with natural resources which has been independent since 1959 after 200 years colonial domination.

Mid-eighties (1980s) The ruling party of Bichitropur, Bichitropur Multiracial Coalition Party (BMCP), which played a major role in decolonization process, fell from power following an upsurge after an era of ruling. There was allegation of corruption in different sectors of the country against BMCP.

1989 Following the upsurge, four new political party were formed in Bichitropur, namely - Bichitropur Democratic Party (BDP), Peoples Party of Bichitropur (PPB), Socialist Party of Bichitropur (SPB), Bichitropur Labour party (BLP) and they participated in the new national election. PPB formed the government with absolute majority and BDP came out as the main opposition. The new government faced difficulties in dealing with corruption left behind by the previous govt. So, Prime minister Viru Massa brought several changes to fight the corruption The leader of the opposition ThiruMohanda criticized the Prime Minister, alleging that he himself was engaged in corruption and the reforms were nothing but eyewash..

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1995 BDP formed the government and PPB came out as opposition this time. Bichitropur Minerals Corporation (BMC), a state-owned body engaged in exploration and management of mineral resources discovered new gas Fields in the country. The fields showed potential for enormous resources. For the extraction with regard to liquefaction, BMC was thought to be most suitable by many national experts. The BDP government thought of undertaking a state-of-the-art project for liquefaction of natural gases mainly for using LNG (Liquefied Natural Gas) in vehicles. Many multinational oil and gas companies (MNCs) expressed their interest to become lessee of the fields. , government started speaking with international resource extraction companies. Among the companies, Ninentas, registered in the state of Uttorpur, had shown up with conspicuous enthusiasm. Their top officials including the CEO attended repeated negotiation meetings with the government and also the influential leaders of the ruling BDP. However, these meetings did not end up in a conclusive deal.

2000 PPB formed govt. again.

Leasing out the gas fields to private corporations and finishing the state-of-the-art natural gas liquefaction project undertaken by the previous government were still to be completed. Though the newly elected government dillydallied in terms of resuming the project but the pressure from all corners of the country compelled them to resume it.

15 th^ May 2004 The Government entered into a production sharing contract with a

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MNC named Ninentas. Allegations of corruption have been made in the Health sector as PPB also showed interest in the health sector. Mr.Barui the Owner of Rigor Mortis participated in the Member of Parliament election being nominated by PPB and after the election, it was Rigor Mortis, that started winning tenders for the supply of pharmaceuticals and continued getting the same for medical equipment and supplies. The decision to enter into the production sharing contract with Ninentas was met with vehement criticism from the opposition. ThiruMohanda said that entering into a contract with a foreign entity without a National Strategy Policy adopted through the parliament was unnecessary, and the deal was only struck to pocket illegal gains by the party in power. He also said that the BMC was well capable of handling the entire project. Later of the year the opposition brought specific allegations against the Minister of Mineral Resources, Tara Sagui of taking bribes from the CEO of Ninentas, MaaxColdhamThiruMohanda also alleged the Government specifically of corruption in health sector.

First-come-first-serve The PPB government invited tenders for lease of the gas fields in the eastern part of Siltaand three multinational companies participated. There is a statutory body to deal with the leasing of gas fields, coal mine and allocation of spectrum since 1970. Exercising the discretionary power under law, the Director general of the

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statutory body adopted a First Come First Serve Policy for allocating the gas fields for 15 years. The First Come First Serve policy had no sound Criteria as to how the policy will work and how the leases will be allocated. The policy was only in favour of a few top leader and the relatives of the Director General.

29 th^ June Mr.Sagui held a press conference categorically denying all the allegations brought against him and his government. On the contrary, he alleged that Mr.Mohanda approached him earlier to grant the lease to Trans Oil, another MNC. He also stated that he had reasons to believe that Mr.Mohanda was making illegal gains from Trans Oil in exchange of using his influence to secure the deal for them.

5 th^ and 6th^ July, 2005 An influential daily newspaper named The Morning Tribune published a photograph showing Mr Sagui entering the Chase where Mr.Coldhalm the CEO of Ninetas had a room booked. On the next day in an interview MR, Mahanda talked about the claims by Tara Sagui where he mentioned about state sponsored micro level corruption.

14 th^ August, 2005 Another report was published alleging Mr Sagui of taking a sports Car and cash as bribe from Ninentas.

27 th^ August, 2005 A NGO named Organza published a report about corruption against the government in the health sector. They alleged Rigor Mortis‟ getting the tenders during the owner‟s political party‟s tenure and also named it as a macro level instance of corruption. Furthermore, the NGO conducted its investigation in more than

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37 state-run hospitals its Annual Report revealed that in the supervision and management sector, huge sums of bribes are received and given.

January, 2010 BSP came to power and ACC was recognized. Corruption case was initiated against top leader of both PPB and BDP including Mr. Massa; Mr Mohanda And Mr.Sagui. ACC alleged all three leaders of taking bribe from MNC to grant the deals.

2015 National election was held after overthrowing BSP from power by a joint movement of PPB and BDP.PPB came in power and worked in furtherance of anti-corruption movement. Bureau of Investigation raided the Chase and seized currency and two notebooks. The seized documents contained detailed accounts of vast payments made to persons that could be identified only by initials. The initials corresponded to the initials of various high ranking politicians, both in power and out of power, and of high ranking bureaucrats, diplomats, former and present ministers. But even after having substantial evidences of Corruption nothing was subsequently done in the aftermath and the incriminating documents including the notebooks were sent to stay in cold storage. The opposition political party alleged that the local police, hitherto charged with investigation, were lax in filing reports against the accused, and that constant interference from their political masters, the state government, had blocked the investigation.

2018 In an independent probe conducted by Uttorpur in their domestic

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jurisdiction, Ninentas admitted that it bribed a Minister of Bichitropur to get the deal.

2 nd^ November, 2019 This writ petition was filed with the High Court Divison, by a public spirited NGO named United We Stand (UWS).

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QUESTIONS PRESENTED

Issues to be adjudged by the High Court Division of the Supreme Court are as follows-

1. Whether the delaying of investigation by police is violative of the Constitution of Bichitropur and is an infringement of fundamental rights of the citizens.
2. Whether entry into a Production Sharing Contract in the manner it has been done in the present case is violative of Constitution and whether the High Court Division of Bichitropur has the authority to direct the parliament to enact a policy.
3. Whether the first-come-first-serve policy is violative of the equality clauses of the Constitution of Bichitropur.
4. Whether the inaction of the State in dealing with corruption in the health sector results in violation of fundamental rights of the citizens.

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SUMMARY OF ARGUMENTS

I. Firstly, the writ is maintainable since under Article 102 of the constitution, the respondents could be ordered to do anything for the enforcement of fundamental rights and also to do any task which they are under law, obligated to do. United We Stand like any other citizen or entity has the interest to see that the laws and the constitution is being upheld. Thus, United We Stand has locus standi to bring this writ.

II. The delaying of investigation by the police is contradictory to the constitutional mandate of speedy trial, right to life and liberty and adherence to due process of law. Since, such delay is also against public interest and results in State-Created danger, such delay are unconstitutional and results in infringement of fundamental rights of not only the accused but also of the victims and the citizens of Bichitropur in general.

III. The Production Sharing Contract is violation of the constitution as entering in such has been a fraud to the citizens of Bichitropur and lack of transparency vitiates the contract. Since the contract doesn‟t enjoy any immunity, it is void ab initio. Thus, High Court Division under article 102 of the constitution has authority to direct the parliament to make a policy in this regards.

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IV. The First-come-first-serve basis having no sound criteria is arbitrary and is a violation of the constitution. As the policy fails to pass the test of reasonable classification and Wednesbury reasonableness, it doesn‟t fall under the exception of equality clause and being arbitrary, it is a violation of article 27 of the constitution.

V. Even after having ample evidences regarding the corruption in the health sector, the inaction of the state has violated the right to life and right to equality of the masses of Bichitrpur. Although right to health is not a fundamental right, but the inaction of the government has contributed towards violation of fundamental rights of the citizens of Bichitropur.

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ARGUMENTS

1. The writ is maintainable.

At the outset, it is respectfully submitted before the Hon‟ble Court that the writ filed by United We Stand (UWS), a public spirited NGO before the High Court Division of the Supreme Court of Bichitropur against the Republic of Bichitropur is maintainable.

A. That the remedy of writ is available against the Respondents: The remedy of writ is available against the state and any statutory bodies and persons charged with public duties.^1 Under article 102 (1) and (2)(a)(i) of the constitution of Bichitropur, the High Court Division may give directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, for the enforcement of any the fundamental rights conferred by Part III of the Constitution and may also direct a person performing any functions in connection with the affairs of the Republic to do that which he is required by law to do.^2 In the following writ, United We Stand is trying to establish how police has made unreasonable delay in their investigation, trying to invalidate the Production sharing contract and the first- come-first serve policy, which are unconstitutional and compel the state to take measures regarding the corruption in the health sector. Thus, remedy of writ is available against the respondents to compel the state and its machineries to do their constitutional duties.

(^1) Sohan Lal v. Union of India, AIR 1957 SC 529 ; Praga Tools Corporation v. C.A. Imanual AIR 1969 SC 1306. (^2) Constitution of the Republic of Bichitropur

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B. That United We Stand (UWS) is an aggrieved party: Under Article-102(1) and (2) (a) (i) of the constitution of Wonderland, the remedy of writ sought by the United We Stand (UWS), is only available to an aggrieved party.^3 United We Stand has sufficient interest in the matter of dispute. The corruption and the inaction and failure of the state and its machineries (Police, Anti-Corruption Commission) have the potential to cause negative effects in the country and frustration among the people. Since it is a public injury caused to indeterminate number of people, any member of the public suffering the common injury has the right to invoke the jurisdiction under Article- 102.^4 In order to enforce fundamental rights, it is sufficient that there is a threat to infringe it^5 and UWS doesn‟t have to wait till actual infringement of rights to file the writ petition.^6 It must be remembered that lots of people who are victims of this corruption will not be able to approach the court. And constitution is not only for the benefit of government, lawyers or politicians, but it is also for the common man, for the poor and down trodden of the society.^7

In this circumstance, United We Stand being strongly concerned about the matter has locus standi^8 to file a writ and like every citizen has the interest to see that the law is properly enforced^9 and the constitutional values are uphold.

(^3) Ibid (^4) Chowdhury Mahmud Hossain v. Bangladesh 22 BLD (HCD) 459, para 18 (^5) Kochuni v. Madras AIR 1959 SC 725 (^6) D.A.V. College v. Punjab AIR 1971 SC 1731 (^7) Tarik Hussain vs Dulari Begum 65 DLR (2013) 59 (^8) Blackburn v. Attorney General 1972 1WLR 1037

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2. The delaying of investigation by police is a violation of the Constitution of

Bichitropur and is an infringement of fundamental rights of the citizens.

United We Stand (UWS) requests the honourable court to find that the delaying of investigation by police is unconstitutional, since it violates the constitutional requirements of speedy trial, right to life and liberty and due process of law. And since such delay is not in public interest and creates State-created danger, derogation from constitutional safeguards is thus not permissible.

A. That delay in investigation violates the right to speedy trial as guaranteed in the constitution. The requirement of speedy trial is a constitutional obligation. Right to speedy trial has been guaranteed in article 35 (3) of the constitution of Bichitropur as a fundamental right to every person accused of a criminal offence.^10 Derogation from the duty to provide speedy trial also stands in violation of the state‟s obligations under International Human Rights treaties in particular article 14 of the International Covenant on Civil and Political Rights^11 to a speedy trial, as ratified by Bichitropur in the year 2000.The right of speedy trial requires that criminal proceeding should not be allowed to go on beyond a prescribed a time-limit. Without such a limit, the right remains a mere illusion and a platitude.^12 Thus, delay in investigation by the police stands in violation of the Constitution of Bichitropur.

(^9) R v. Commissioner of Police of the Metropolis ex parte Blackburn (1968) 2 QBD 118 (^10) Constitution of the Republic of Bichitropur (^11) International Covenant on Civil and Political Rights, December 19, 1966, 999 U.N.T.S. 171, 173 (1976) (^12) Abdul Rehman Antulay And Others v. R.S Nayak And Another Writ Petition (Crl.) Nos. 268 Of 1987

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B. That delay in investigation violates the right to life and personal liberty as guaranteed in the constitution. Right to speedy trial is also an essential part of fundamental right to life and liberty,^13 in addition to being a separate right under the constitution. The right to speedy trial is implicit in the broad sweep and content of right to life and personal liberty as provided in Article 32.^14 Right to speedy trial flowing from Article 32 encompasses all the stages, namely the stage of investigation.^15 Thus, delaying in investigation can also potentially violate the constitutional right of life and liberty of the accused.

C. That delay in investigation violates the due process of law as guaranteed in the constitution. Observance of due process in criminal justice system is a fundamental requirement for protecting individual‟s rights and liberties.^16 Delay in investigation has the potential to violate the due process requirement of the constitution.^17 Delay is also potentially fatal to the enforcement of the criminal law.^18 Due process is a mechanism to strike a reasonable balance between interests of

(^13) Katar Singh v. State of Punjab1994 SCC (3) 569, JT 1994 (2) 423, 1994 SCALE 1 (^14) Hussainara Khatoon v. Home Secretary, State of Bihar , 1980 1 SCC 81; Sheela Barse v. India (1986) 3 SCC 632; Surinder Singh v. Punjab (2005) 7 SCC 387, Hema v. State, (2013) 10 SCC 192 (^15) Abdul Rehman Antulay And Others v. R.S Nayak And Another Writ Petition (Crl.) Nos. 268 Of 1987; Mahmudul Islam, Constitutional Law Of Bangladesh, (Third Edition, Mullick Brothers, 2016), page 297 (^16) Ashworth, Andrew, Principles of Criminal Law, Clarendon Press, Oxford (1991), p. 59. (^17) Ross v. United States349 F.2d at 211; United States v. Lovasco, 431 U.S. 783, 796-97 (1977); United States v. Marion, 404 U.S. 307, 324-25 (1471) (^18) United States v. Calandra, 414 US 338 - Supreme Court 1974

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the state and rights of the accused.^19 But prolongation of the process has the potential to have detrimental effect on both the defence case and prosecution case.^20 The High Court Division in the case of Md. Ali Akbar vs. The State observed that “ due to faulty investigation accused gets benefit of reasonable doubt in spite of consistent and uniform evidence of prosecution witnesses about the occurrence. ”^21 Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution and works to the advantage of the accused.^22 Inordinate delay to complete investigation can be taken as presumptive proof of prejudice.^23 While it is incumbent on the Court to see that no guilty persons escapes, it is still more its duty to see that justice is not delayed.^24 Thus, undue advantage that is being obtained by the accused due to inordinate delay in investigation is violation of the due process of law as guaranteed in article 31 of the constitution.

D. That delay in investigation in this case is against the public interest. One of the fundamental purposes of criminal justice system is to maintain a fair degree of cohesion and stability in the society.^25 People get frustrated in the system if at every stage there

(^19) Dr. Abdullah Al Faruque, Goals And Purposes of Criminal Justice System In Bangladesh: An Evaluation , BILIA, Bangladesh Journal of Law, Special Issue, Criminal Justice – November 2007 (^20) Ibid (^21) 4 (1999) MLR (HCD) 87 (^22) Barker v. Wingo (1971) 407 US 514 (^23) M.A. NO.267 OF 2017 IN SLP (CRL.) NO.657 OF 2017 titled Dilawar vs State of Haryana. (^24) Machander v. State of Hyderabad 1955 2 SCR 524 (^25) Ibid