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Team Code: CIM

CHRIST (Deemed to be University) Pune Lavasa Campus

INTERNAL RANKING ROUND 2023

IN THE HON’BLE SUPREME COURT OF INDICA

AT NEW DELHI

Writ Petition No.: /

CIVIL LIBERTIES FOUNDATION (CLF)

(Petitioner)

V.

UNION OF INDICA

(Respondent)

BEFORE SUBMISSION TO

HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES

OF

THE HON’BLE SUPREME COURT OF

INDICA

MEMORANDUM ON BEHALF OF RESPONDENT

2

TABLE OF CONTENTS

TABLE OF CONTENTS 3

LIST OF ABBREVIATIONS 4

TABLE OF AUTHORITIES 5

Case Laws: 5 Statutes: 5 Books 5 STATEMENT OF JURISDICTION 6 STATEMENT OF FACTS 7 STATEMENT OF ISSUES 8 SUMMARY OF ISSUES 9 ARGUMENTS ADVANCED [ISSUE 1] 10

1. Is Section 8 of the National Security Act (NSA) violative of Article 21 of the Indica Constitution, as it allows prolonged detention without trial and lacks sufficient safeguards against arbitrary detention? 10 1.1] Detention vs. Punishment: 10 1.2] Differentiation Between Public Safety and Law & Order: 11 ARGUMENTS ADVANCED [ISSUE 2] 13
2. Do the provisions for preventive detention under the NSA adequately protect the rights of the detained individuals, including the right to be informed of the grounds of detention, the right to legal representation, and the right to challenge the detentio before an independent authority? 13 2.1] Mechanisms under NSA are constitutionally valid under Article 22, and other Sections under the Act 13 2.2] Absence of Sunset Clause 15 PRAYER 16

3

LIST OF ABBREVIATIONS

SR

.

No. ABBREVIATION ELABORATED 1 A.I.R All India Reporter 2 Annex. Annexure 3 Anr. Another 4 Bom. Bombay High Court 5 Cal. Calcutta High Court 6 Cr. LJ Criminal Law Journal 7 CrPC Code of Criminal Procedure 8 Del. Delhi High Court 9 Ed. Edition 10 ER England Law Report 11 FIR First Information Report 12 I.A. Interlocutory Appeal 13 IPC Indian Penal Code 14 L.R. Law Report 15 LRS Library Research Service 16 NSA National Security Act 17 Ors. Others 18 S.C.R Supreme Court Report 19 SC Supreme Court of India 20 SCC Supreme Court Cases 21 UOI Union of Indica 22 v. Versus

4

TABLE OF AUTHORITIES

Case Laws:

1. KS Puttaswamy v. Union of Indica, 138 S. Ct. 356 (2017).
2. Wasiuddin v. DM of Aligarh, 95 Indica 123 (1967).
3. Arup Bhyan v. State of Assam, 25 Indica 567 (2011).
4. Kesavananda Bharti v. UOI, 345 S. Ct. 678 (1973).
5. Ram Sewak v. State of Uttar Pradesh, 205 S. Ct. 890 (2022).
6. DK Basu v. State of West Bengal, 102 S. Ct. 456 (1996). Statutes:
7. Indian Const. art. 22(3).
8. National Security Act (NSA) § 3(3).
9. National Security Act (NSA) § 4.
10. National Security Act (NSA) § 10.
11. National Security Act (NSA) § 11.
12. The Preventive Detention Act (1950). Books :
13. J.N. Pandey, Constitutional Law of India 20th ed. (2022) 291-293.

5

STATEMENT OF JURISDICTION

THE COUNSEL FOR THE RESPONDENTS, UNION OF INDICA, HEREBY HUMBLY

SUBMIT TO THIS HON’BLE COURT’S JURISDICTION UNDER ARTICLE 32 OF

THE CONSTITUTION OF UNION OF INDICA.

THE RESPONDENT WOULD LIKE TO HUMBLY SUBMIT THAT THIS PETITION

IS NOT MAINTAINABLE

6

STATEMENT OF FACTS

Law is equal for all and All are equal before law, The collective interests of the society always prevail over the individual liberties and so is stated in the constitution of Indica. The Govt of Indica prioritizes the national interests and safety of public in order to ensure welfare. The govt states it to be a necessary measure to ensure public order. The CLF questions the constitutional validity and claims the violations of the rights of detenu and basic rights as well which in unreasonable since the ordinance making nature is in compliance to national security. The reasonable restrictions justify the exceptionally rigid nature of NSA since it intends to prevent the evil and therefore is stringent in nature to uphold the security of the nation. The act in no circumstance can be declared unconstitutional as it has a broader scope for security and safety of public. The allegations put forth by CLF with respect to infringement of liberties and fundamental rights is not at all plausible, as the very concern and priority of the subject of National Security eradicates the former. The govt of Indica intends welfare and therefore in defense condemns the unreasonable allegations by CLF.

7

STATEMENT OF ISSUES

1. Is Section 8 of the National Security Act (NSA) violative of Article 21 of the Indica Constitution, as it allows prolonged detention without trial and lacks sufficient **safeguards against arbitrary detention?

2. Do the provisions for preventive detention under the NSA adequately protect the** rights of the detained individuals, including the right to be informed of the grounds of detention, the right to legal representation, and the right to challenge the detention before an independent authority?

8

SUMMARY OF ISSUES

1. Is Section 8 of the National Security Act (NSA) violative of Article 21 of the Indica Constitution, as it allows prolonged detention without trial and lacks sufficient safeguards against arbitrary detention? The Respondent asserts that Section 8 of the National Security Act (NSA) in Indica does not violate Article 21 of the Constitution. They emphasize that detention under the NSA is distinct from punishment and is a preventive measure with legal procedures. Respondent highlights that the NSA sets clear limits on detention, with provisions for advisory boards and periodic review. The Respondent argues that public safety is paramount, and reasonable restrictions are necessary for national security, citing the KS Puttaswamy case. They also refer to the Wasiuddin case, which distinguishes between public order, law and order, and public security. Ultimately, they contend that the NSA upholds constitutional values and is constitutionally valid. 2. Do the provisions for preventive detention under the NSA adequately protect the rights of the detained individuals, including the right to be informed of the grounds of detention, the right to legal representation, and the right to challenge the detention before an independent authority? The Respondent argues that the National Security Act (NSA) in Indica strikes a balance between individual liberties and community interests. They contend that the mechanisms under the NSA, including the requirement to make essential information public before detention orders, align with collective welfare. Article 22(1) and Section 4 of the NSA, which mandates compliance with guidelines for arrests, ensure due process. The Respondent asserts that Sections 10 and 11 of the NSA provide representation and a right to be heard by the advisory board, protecting detained individuals' rights. Petitioner argues that the denial of the right to challenge detention before an independent court is justified by reasonable restrictions. The absence of a sunset clause in the NSA is seen as necessary for addressing ongoing security threats. Overall, the Respondent maintains that the NSA is constitutionally valid and crucial for public safety and community interests.

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ARGUMENTS ADVANCED [ISSUE 1]

1. Is Section 8 of the National Security Act (NSA) violative of Article 21 of the Indica Constitution, as it allows prolonged detention without trial and lacks sufficient safeguards against arbitrary detention? 1.1] Detention vs. Punishment: The Respondent firmly submits that the term "detention" is fundamentally distinct from the concept of punishment. It is imperative to comprehend that detention, particularly within the context of the National Security Act (NSA), is primarily a preventive measure supported by a well-established legal procedure, in accordance to Article 22(3) of the Indica Constitution, as provided below: "Article 22 (3) - Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention."^1 Preventive detention, as explicitly outlined in the NSA, entails the apprehension of an individual without the requirement of trial and conviction by a court. The very essence of preventive detention is to safeguard against potential future offenses rather than to penalize individuals for past transgressions. Furthermore, it is crucial to underscore that the NSA meticulously regulates the duration of an individual's detention, stipulating that such detention cannot extend beyond three months unless an advisory board, comprising eminent high court judges, substantiates the existence of sufficient grounds warranting an extension, as provided under Section 3(3) of NSA, as given below: "3. Power to make orders detaining certain persons.^2 — (3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, (^1) Indian Const. art. 22(3). (^2) National Security Act (NSA) § 3(3).

10 direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section: Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time." This provision, enshrined within the NSA, serves as a safeguard to prevent arbitrary or prolonged detention. 1.2] Differentiation Between Public Safety and Law & Order: The Respondent endeavours to elucidate the critical distinction between public safety and the concept of law and order. In a democratic society, national security stands as an overarching imperative that cannot be compromised. The government of Indica firmly contends that individual liberties, which find representation in the maintenance of law and order, can only be effectively safeguarded when public safety is ensured and protected. The Respondent invokes the doctrine of reasonable restrictions, as delineated in the landmark case of KS Puttaswamy vs Union of Indica (2017)^3. This seminal case underscores the paramount importance of reasonable restrictions in the context of public safety. The Hon'ble Court in this case explicitly emphasized that in circumstances involving moral, social, or compelling public interests, reasonable restrictions must be accorded precedence to ensure the welfare and security of the citizenry. As provided under Article 21 of the Indica Constitution, the Act would never surpass any person’s right to life and liberty, except procedure established by law. “Article 21-No person shall be deprived of his life or personal liberty, except according to a procedure established by law.”^4 Additionally, the Supreme Court's authoritative pronouncement in Wasiuddin vs DM of Aligarh (1967)^5 , reinforces the constitutionality of Section 8 of the NSA. This decision effectively distinguishes between the concepts of public order, law and order, and public security, (^3) KS Puttaswamy v. Union of Indica, 138 S. Ct. 356 (2017). (^4) Indian Const. art. 21. (^5) Wasiuddin v. DM of Aligarh, 95 Indica 123 (1967).

11 unequivocally prioritizing public safety and security. The judgment underscores that invoking the need for state security or the preservation of public order to justify the restriction of expressive or associative rights demands a compelling demonstration of proximate causation, as illustrated in the case of Arup Bhyan vs State of Assam (2011)^6. It is essential to underscore that the NSA, while serving the vital interest of national security, incorporates a meticulously structured set of procedures designed to ensure checks and balances. These procedures include the constitution of an advisory board comprising eminent high court judges, as well as a hierarchical framework that guarantees due process and oversight. Preventive detention, as a legal institution, inherently embodies the prevention of harm for the greater good—namely, the protection of the collective interests of society. It stands as a necessary measure to ensure the safeguarding of the nation's security and the welfare of its citizens. In light of the arguments presented, the Respondent fervently contends that Section 8 of the NSA does not transgress the boundaries of Article 21 of the Indica Constitution. The government's solemn duty to ensure the security and welfare of the nation provides a compelling rationale for the imposition of reasonable restrictions in the pursuit of public safety. The existing legal framework and procedural safeguards within the NSA steadfastly uphold the cherished constitutional values and principles upon which the nation is founded. In light of these arguments, the Respondent contends that Section 8 of the NSA is not violative of Article 21 of the Indica Constitution. The government's duty to ensure the security and welfare of the nation justifies the imposition of reasonable restrictions in the interest of public safety, and the existing legal framework and procedures within the NSA uphold the constitutional values and principles thus declaring it constitutionally valid. (^6) Arup Bhyan v. State of Assam, 25 Indica 567 (2011).

12

ARGUMENTS ADVANCED [ISSUE 2]

2. Do the provisions for preventive detention under the NSA adequately protect the rights of the detained individuals, including the right to be informed of the grounds of detention, the right to legal representation, and the right to challenge the detention before an independent authority? The Respondent aims to resolve before this esteemed Apex Court, that the National Security Act (NSA), in its current form, strikes an appropriate balance between safeguarding the personal liberties of individuals and protecting the broader interests of the community, in line with the constitutional framework, as it ensures transparency, reasonable restrictions, and procedural safeguards while addressing concerns related to public safety and security. 2.1] Mechanisms under NSA are constitutionally valid under Article 22, and other Sections under the Act The National Security Act (NSA) is enacted to address the critical challenge of balancing the protection of personal liberties of individuals with the larger interests of the community. It introduces a mechanism where services and supplies essential to the community must be made known appropriately to the public through orders, laws, or notifications before any detention orders can be issued. This approach aligns with the imperative of collective welfare, ensuring that necessary measures can be taken for implementation. Article 22(1) of the Indian Constitution recognizes certain rights for arrested or detained individuals, but Article 22(3) provides a reasonable restriction stating that Article 22 does not apply to individuals arrested or detained under laws providing for preventive detention. The denial of certain rights under such circumstances is justified by the need to uphold public order and public safety. "Article 22(1)- Any person who is in custody has to be informed as to why he has been arrested. Further, he cannot be denied the right to consult an advocate."^7 (^7) Indian Const. art. 22(1).

13 In the case of DK Basu vs. State of West Bengal^8 , the court laid down ten guidelines for arrests, which were subsequently incorporated into the Code of Criminal Procedure (CRPC). The Respondent contends that Section 4 of the NSA explicitly requires compliance with these guidelines, thus establishing its constitutional validity and not neglecting the individual liberties but upholding the welfare of the public. "Section 4-Execution of detention orders.—A detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973 (2 of 1974)."^9 Furthermore, the NSA ensures due procedure with respect to the representation and the right to be heard by the advisory board, as provided in Sections 10 and 11, effectively safeguarding the rights of detained individuals. "Section 10- Reference to Advisory Boards.—Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer mentioned in sub-section (3) of section 3, also the report by such officer under sub-section (4) of that section."^10 "Section 11- Procedure of Advisory Boards.—(1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it….(2)...(3)...(4)...the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential. "^11 The Respondent asserts that the denial of the right to challenge detention before an independent court is justified by reasonable restrictions and the concepts articulated in Article 22(3)(b) concerning the protection of public order and public safety. (^8) DK Basu v. State of West Bengal, 102 S. Ct. 456 (1996). (^9) National Security Act (NSA) § 4. (^10) National Security Act (NSA) § 10. (^11) National Security Act (NSA) § 11.

14 In the landmark case of Kesavananda Bharti vs UOI^12 , the 11-judge bench concluded that the Constitution can be amended but in correspondence to the basic structure. Therefore , the respondents intend to put forth that the government of Indica is following the basic structure doctrine and the NSA also is made under the same view. Henceforth , the allegations made by CLF with respect to the govt. attempting to violate the fundamental rights do not have a cemented base and is not pragmatic. The govt of Indica would also like to slide upon the fact that the there is no infringement of fundamental rights because Article 22 (3) also falls under the ambit of fundamental rights and therefore is a strong enforceable binding clause which ensures the prioritisation of national security. "Article 22(3) -Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention." The scope of the NSA is broad, encompassing various measures beyond terrorism. The case of Ram Sewak vs State of Uttar Pradesh^13 , exemplifies this, emphasizing that the NSA is not limited solely to addressing terrorism but also addresses concerns that affect public security and welfare. 2.2] Absence of Sunset Clause The parent act of the NSA, the Preventive Detention Act, previously contained a sunset clause due to its arbitrary nature, reflecting the urgency of the times. The current version of the NSA, however, has been amended to eliminate such provisions, emphasizing transparency and checks and balances. The NSA is invoked to address situations where individuals are believed to be a threat to national security or public order. These threats may not have a specific time frame and can persist over an extended period for the prevention of evil crimes which leave an adverse impact on the public. Therefore, the government may argue that the law should remain in force continuously to address emerging security challenges. (^12) Kesavananda Bharti v. UOI, 345 S. Ct. 678 (1973). (^13) Ram Sewak v. State of Uttar Pradesh, 205 S. Ct. 890 (2022).

15 In light of the above facts and legal provisions, the Respondent contends that the National Security Act (NSA) is appropriately balanced, constitutionally valid, and indispensable in safeguarding public safety and the interests of the community.

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PRAYER

Wherefore , in light of the issues raised, authorities cited and arguments advanced, the Hon’ble Supreme Court of Indica be pleased to:

1. Evaluate whether the NSA's provisions meet the standards of reasonability while **assessing their constitutionality (or not).

2. Declare that the allegations posed by CLF of the act being constitutionally invalid** **is unreasonable and not pragmatic.
3. That the government of Indica has a reasonable foot front for the legitimacy of** **NSA under the ambit of public security.
4. That the government of Indica has laid down a procedural act which is non** **violative of the constitutional liberties.
5. AND FOR THIS ACT OF KINDNESS THE RESPONDENTS AS IN DUTY** BOUND SHALL EVER PRAY. AND/OR Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience. All of which is most humbly and respectfully submitted. **Sd/-

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COUSEL FOR RESPONDENT**