You are on page 1of 46

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI

TC-08

IN THE HONBLE SUPREME COURT OF INDIA

Special Leave Petition No. ______________ of 2015

PETITION FILED SEEKING SPECIAL LEAVE TO APPEAL


UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA, 1950
MANU SHARMA.PETITIONER NO.1
VERSUS

U.T. OF CHANDIGARH..RESPONDENT NO.1


Criminal Appeal No. 32 of 2015
[Arising out of SLP (Crl.) No. 25 of 2015]

VAIBHAV SHARMA...PETITIONER NO.2


VERSUS

STATE OF PUNJAB.RESPONDENT NO.2


Criminal Appeal No. 33 of 2015
[Arising out of SLP (Crl.) No. 27 of 2015]

MANU SHARMAPETITIONER NO.3


VERSUS

UNION OF INDIARESPONDENT NO.3


W.P. (C). No. 16 of 2015

Most Respectfully Submitted before the Honble Chief Justice of India


and other Judges of the Supreme Court of India

MEMORANDUM ON BEHALF OF THE PETITIONERS DRAWN AND FILED BY


THE COUNSELS OF THE PETITIONERS

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI

TABLE OF CONTENTS
I.

INDEX OF AUTHORITIES ...........I

II.

STATEMENT OF JURISDICTION .......XIV

III.

STATEMENT OF FACTS .....XV

IV.

QUESTIONS OF LAW .XXI

V.

SUMMARY OF ARGUMENTS XXII

VI.
1.

ARGUMENTS ADVANCED
THAT THE SPECIAL LEAVE PETITION AGAINST THE ORDER OF DISMISSAL BY
THE

HONBLE

HIGH

COURT

AGAINST

PETITIONER

NO.1

IS

MAINTAINABLE...............1

1.1

THAT EXCEPTIONAL AND SPECIAL CIRCUMSTANCES EXIST FOR THE APPLICATION


OF ARTICLE 136...1

1.1.1
1.2

THAT

THAT THERE EXISTS A SUBSTANTIAL QUESTION OF LAW ......................... 1


THERE

HAS

BEEN

AN

EXHAUSTION

OF

ALTERNATE

REMEDIES.............................................................................................................2

1.3 THAT SUBSTANTIAL JUSTICE HAS NOT BEEN DONE BY THE HIGH COURT .................. 3
1.3.1

THAT THE F.I.R. MUST BE QUASHED WHEN IT IS FRIVOLOUS, OPPRESSIVE


OR VEXATIOUS ........................................................................................ 3

1.3.2 THAT

THE INHERENT POWERS OF THE

HIGH COURT

ARE PLENARY AND

MUST MANDATORILY BE EXERCISED IN ABSENCE OF A PRIMA FACIE


CASE.4

1.4

1.3.3

THAT THERE IS NO MENS REA PRESENT .5

1.3.4

THAT THERE IS NO ACTUS REUS PRESENT .5

1.3.5

THAT THERE IS NO INVOLVEMENT OF TWO PERSONS6

THAT THERE IS AUTONOMY IN THE FUNCTIONING OF STARGAZER ...6


1.4.1

AI COLLECTS PREDEFINED INFORMATION ................................................6

1.4.2

AI

CHOOSES ITS COURSE OF ACTION ON THE BASIS OF THE NATURE OF

INFORMATION ..........................................................................................7

1.4.3

THAT

THE INFORMATION COLLECTED SOLELY DETERMINES ACTIONS OF

AI........8

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


2.

THAT
HIGH

THE SPECIAL LEAVE PETITION AGAINST THE ORDER OF THE

COURT

AGAINST

PETITIONER

HONBLE

NO.2

IS

MAINTAINABLE...........................................................9

2.1

THAT

THE INHERENT POWERS OF THE

HIGH COURT

MUST MANDATORILY BE

EXERCISED IN ABSENCE OF A PRIMA FACIE CASE 9

2.1.1

3.

THAT PETITIONER NO. 2

LACKS THE REQUISITE MENS REA AND ACTUS

REUS

.................................................................................................................10

2.1.2

THAT THE CODE FUNCTIONED AUTONOMOUSLY ....................................12

THAT THE ORDINANCE PROMULGATED BY THE PRESIDENT IS NOT LEGALLY


TENABLE ...14

3.1.

THAT THE INSTANT WRIT PETITION IS MAINTAINABLE .14


3.1.1

THAT PRESIDENTIAL SATISFACTION IS SUBJECT TO JUDICIAL REVIEW....14

3.1.2

THAT AN ORDINANCE VIOLATING FUNDAMENTAL RIGHTS IS SUBJECT TO


JUDICIAL REVIEW ..17

3.2

THAT THE ORDINANCE IS ULTRA VIRES ARTICLE 14 OF THE CONSTITUTION OF


INDIA, 1950 ...18

3.3

THAT THE ORDINANCE IS ULTRA VIRES ARTICLE 19(1)(G) OF THE CONSTITUTION


OF INDIA, 1950 ..19

3.3.1

THAT THE ORDINANCE PLACES AN UNQUALIFIED EMBARGO ON


AI..19

3.3.2

THAT A DRASTIC RESTRICTION HAS BEEN IMPOSED WHERE A LESS


SEVERE RESTRICTION WOULD SUFFICE...20

VI.

PRAYER 21

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI

INDEX OF AUTHORITIES
TABLE OF ABBREVIATIONS AND SYMBOLS
S. No.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.

ABBREVIATION
$
%
&
@
AI
AIR
All
Anr.
Art.
Assn.
Bom
C.C.E.
Cal
Ch
Co.
Col.
Constitution
Corp.
Cr.P.C.
CrLJ
D.P.P.
Del
Dr.
Ed.
F.I.R.
Guj
HC
Honble
i.e.
IAMAI
ILR
IPC
J.
Kar
Ker
Ltd.
M/s
Mad
Mfg.
MP
NCT
NDPS Act

DEFINITION
Dollar
Percent
And
Alias
Artificial Intelligence
All India Reporter
Allahabad
Anothers
Article
Association
Bombay
Collector Of Central Excise
Calcutta
Chapter
Company
Colonel
The Constitution of India, 1950
Corporation
The Code of Criminal Procedure, 1973
Criminal Law Journal
Director of Public Prosecutions
Delhi
Doctor
Edition
First Information Report
Gujarat
The High Court
Honourable
That is
Internet and Mobile Association of India
Indian Law Reporter
The Indian Penal Code, 1860
Justice
Karnataka
Kerala
Limited
Messers
Madras
Manufacturing
Madhya Pradesh
National Capital Territory
The Narcotic Drugs and Psychotropic
Substances Act, 1985
I

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.

No.
Ori
Ors.
P&H
p.
para
Pb.
Pvt.
Raj
RCR
Re
Rep.
S.
S.L.P.
SC
SCC
SCR
Ss.
Supp.
UOI
v.
Vol.
W.P.

Number
Orissa
Others
Punjab and Haryana
Page
Paragraph
Publication
Private
Rajasthan
Recent Civil Reporter
Reference
Represented
Section
Special Leave Petition
The Supreme Court of India
Supreme Court Cases
Supreme Court Reporter
Sections
Supplementary
The Union of India
Versus
Volume
Writ Petition
CASE LAWS
INDIAN CASES

S. NO.

CASE

CITATION

PAGE

FOOTNOTE

NO.

NO.

1.

A.K. Gopalan v. State of Madras

AIR 1950 SC 27

17

125

2.

A.K. Roy v. Union of India

AIR 1982 SC 710

15

92, 96

3.

Additional District Magistrate, Jabalpur v. (1976) 2 SCC 521

17

126

15

94

59

15

93

40

Shivakant Shukla and Ors.


4.

Ajay Hasia & Ors. v. Khalid Mujib AIR 1981 SC 487


Sehravardi & Ors.

5.

Alok Kumar Mitra Mustagi v. State of 2002 (4) Crimes


West Bangal

337

(340,341)

(Cal)
6.

Ameer-un-Nissa

Begum

v.

Mahboob AIR 1955 SC 352

Begum and Ors.


7.

Amrita Lal Hazra and Ors. v. Emperor

(1915)

ILR

42

II

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


Cal 957
8.

9.

Anilchandra Pitambardas Sagar v. Rajesh 1991 CrLJ 487

26

26

10

65

10

65

SC

15

93

1986 (3) Crimes

28

14

15

93

15

93

27

Harjivandas Jhaveri

(Bom)

Anurag Chopra v. State

1989 CrLJ 2227


(Del.)

10.

Assistant Commercial Taxes v. Agarwal 2006 (146) STC


Steel Industries

11.

12.

41

Assistant Commercial Taxes v. Kanoi Dal 2006 (146) STC


Mill

426

B.N. Tewari v. Union of India & Ors.

AIR

1965

1430
13.

B.R. Bajaj v. Union of India

473 (P and H)
14.

Balakrishna v. Ramaswami

(1965) AIR 195


(SC)

15.

Behram Khurshid Pesikaka v. State of AIR 1955 SC 123


Bombay

16.

Bengal

Chemical

and

Pharmaceutical AIR 1959 SC 633

Works Ltd., Calcutta v. Their Workmen


17.

Bhagat Ram Sharma v. Union of India & AIR 1988 SC 740


Ors.

18.

Bharat Singh v. State of Rajasthan

1991 (2) Crimes


526 (Raj)

19.

Bidhannagar (Salt Lake) Welfare Assn. v. AIR

2007

SC

15

94

2006

SC

2006

SC

22

RD-SC

15

100

Central Bureau of Investigation v. A. (2009) 6 SCC 351

57

Central Valuation Board & Ors.


20.

2276

Bombay Dyeing & Manufacturing Co. Ltd. AIR


v. Bombay Environmental Action Group & 1489
Ors.

21.

Bureau of Investigation v. Shri Ravi AIR


Shankar Srivastava, IAS

22.

Cellular Operators Association v. Union of [2002]


India & Ors.

23.

2872

552

Ravishankar Prasad and Ors.


III

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


24.

SC

36

Commissioner, [1968] 3 SCR 655

15

91

(SCR)

20

143

Supp.

15

93

SC

10

Council of Civil Service Union v. Minister [1984] 3 All E.R.

15

91

14, 15

88, 104

20

37

57

56

15

99

26

15, 18

94, 131

18

133

Chandrakant Murgyappa Umrani v. State AIR


of Madhya Pradesh

25.

Chief

Settlement

1999

1557

Rehabilitation Department, Punjab and 660-661


Ors. v. Om Parkash & Ors.
26.

27.

Chintaman Rao v. State of Madhya 1950


Pradesh

759,763

Col. A.S. Sangwan v. Union of India

[1980]
SCC 559

28.

Collector Of Central Excise v. Standard AIR


Motor Products

29.

1989

1298

for the Civil Service

935

30.

D. C. Wadhwa (Dr.) v. State of Bihar

AIR 1987 SC 579

31.

Delhi Judicial Service Assn. v. State of (1991) 4 SCC 406


Gujarat

32.

Devender Pal Singh v. State (NCT of AIR 2002 SC 166


Delhi)

33.

Dhankeshwari Cotton Mills v. C.I.T.

AIR 1955 SC 65

34.

Dinesh Dutt Joshi v. State of Rajasthan and (2001) 8 SCC 570


Anr.

35.

District Collector, Dharmapuri v. T. V. 2014


Kasturi

OnLine

SCC
MAD

429
36.

Dr. A.K. Shaihar and Ors. v. Vice (1961) 3 SCR 386


Chancellor, Benares Hindu University

37.

Dr. Anand R. Nerkar v. Rahimbi Shaikh 1991 CrLJ 557


Madar

38.

(Bom)

Durga Shanker Mehta v. Thakur Ragunath AIR 1954 SC 520


Singh

39.

E.P. Royappa v. State of Tamil Nadu & AIR 1974 SC 555


Anr.

40.

Girish v. State Of Karnataka

ILR 1994 KAR


439, 1994

IV

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


41.

Govind v. State of Madhya Pradesh & Anr.

(1975)

SCR

18

128

SC

15

94

Gurudevdatta VKSSS Maryadit and Ors. v. AIR 2001 SC 980

15

101

14

90

15

93

10

65

946, 955-56
42.

Grand

Kakatiya

Sheraton

Hotel

and AIR

2009

Towers Employees & Workers Union v. 2337


Srinivasa Resorts Limited & Ors.
43.

State of Maharashtra and Ors.


44.

Gyanendra Kumar and Anr. v. Union of 1996 Indlaw DEL


India and Ors.

45.

308

Harbilas Rai Bansal v. State of Punjab & AIR 1996 SC 857


Anr.

46.

Hari Singh Gond v. State Of M.P

AIR 2009 SC 31

47.

Haryana State Industrial Corpn. v. Cork (2007) 8 SCC 359


Mfg. Co.

(SC)

48.

Hasib v. State of Bihar

(1972) 4 SCC 773

28

49.

Hem Raj v. State of Ajmer

AIR 1965 SC 462

13

50.

Hiralal Poddar v. State of Assam

1991 (1) Crimes

25

C.T.O., AIR 1975 SC 155

15

93

Indian Express Newspapers (Bombay) AIR 1986 SC 515

15

93

15

97

15

9, 91

14, 18

91, 130

56

65 (Gau)
51.

India

Tobacco

Co.

Ltd.

v.

Bhavanipore & Ors.


52.

Private Ltd. & Ors. v. Union of India &


Ors.
53.

Indian Nut Products v. Union of India

(1994)

SCC

269, 275
54.

Indian Oil Corporation Ltd. v. State of 1986 4 SCC 146


Bihar and Ors.

55.

Indira Gandhi v. Raj Narain

AIR

1975

SC

2299
56.

Ishtiyak Ahmad Makrani v. State of Uttar 2010


Pradesh and Ors.

57.

OnLine All 1713

Jamshed Hormusji Wadia v. Board of AIR


Trustees, Port of Mumbai

SCC

2004

SC

1815

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


58.

Janakiraman v. J. Parimala Veni

1988 (2) Crimes

25

61

14

91

19

137

529 (Mad)
59.

Janata Dal v. H.S. Chowdhary and Ors.

(1992), 4 SCC
305

60.

Judicial Accountability v. Union of India (1991) 4 SCC 699


and Ors.

61.

Jyoti Pershad v. The Administrator for the 1962 SCR (2) 125
Union Territory of Delhi
1993

SC

31

1985

Ker

15

103

Kerala

148

64.

K. Nagaraj v. State of Andra Pradesh

(1985) 1 SCC 524

17

124

65.

Kali Charan Gupta v. Ashok Kumar Jain

1984 (1) Crimes

25

58

10

65

15

93

4, 18

25, 127

27

15

93

SC

17

123

Bihar

2288

Krishna Rani v. State of Punjab

1991 (2) Crimes

27

62.

Jyoti Prashad v. State of Haryana

AIR
1167

63.

K. Krishnankutty and Ors. v. State of AIR

221 (All)
66.

Kamadev Naik v. State of Orissa

1994 (3) Crimes


248 (248)

67.

Kartar Singh v. State Of Punjab

68.

Kasturi Lal Lakshmi Reddy v. State of [1980]


Jammu and Kashmir

69.

SCR

1973

SC

1461

Kodati Ramana @ Venkatarama v. Station 1991 (3) Crimes


House Officer

71.

1338

Kesavananda Bharati v. State of Kerala and AIR


Anr.

70.

(1994) 3 SCC 569

839 (AP)

Koteswar Vittal Kamath v. K. Rangappa AIR 1969 SC 504


Baliga & Co.

72.

73.

Krishna Kumar Singh and Anr. v. State of AIR

1998

329 (P and H)
74.

L. Chandra Kumar v. Union of India

(1997) 3 SCC 261

15

91

75.

Lakha Singh v. State of Punjab

1991 (3) Crimes

27

376 (P and H)

VI

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


76.

M/s Dwarkadas Marlaria and Sons v. (1989) 3 SCC 293

18

133

15

94

60

15

91

SC

15

93

Pradesh & Ors.

1019

81.

Makhan Singh v. State of Punjab

[1964] 4 SCR 797

17

123

82.

Maneka Gandhi v. Union of India

AIR 1978 SC 597

1, 18

9, 131

83.

Maneklal Chhotalal & Ors. v. M.G. 1967 (3) SCR 65

15, 20

95, 143

SC

59

Biological E. Ltd.

1869

Misri Lal v. State of Rajasthan

1991 (2) Crimes

28

Board of Trustees of the Port of Bombay


77.

M/s. Sharma Transport Rep. by D.P. AIR 2002 SC 322


Sharma v. Government of A.P. & Ors.

78.

Madhavrao Jiwajirao Scindia and Ors. v. (1998) 1 SCC18


Sambhajirao Chandrojirao Angre and Ors.

79.

Mahabir Auto Stores & Ors. v. Indian Oil (1990) 3 SCC 752
Corporation & Ors.

80.

Mahendra Lal Jaini v. State of Uttar AIR

1963

Makwana & Ors.


84.

85.

Medchl Chemicals and Pharma Pvt. Ltd. v. AIR

2000

421 (Raj)
86.

Mohd Khalid v. State of West Bengal

(2002) 7 SCC 334

37

87.

Mohd. Faruk v. State of Madhya Pradesh

1970 AIR 93

20

143

88.

Municipal Corporation of Ahmedabad and 1986 SCR (2) 700

20

141

20

143

27

17

123

Ors. v. Jan Mohammed Usmanbhai and


Anr.
89.

Narendra Kumar and Ors. v. Union of 1960 AIR 430


India

90.

Om Prakash v. State of Bihar

1992 (1) Crimes


483 (Pat)

91.

P. Venkateseshamma v. State of Andhra AIR 1976 AP 1


Pradesh

92.

Parichhat v. State of Madhya Pradesh

AIR 1972 SC 535

36

93.

Pawan Kumar v. State of Haryana

(2003)11

SCC

12

2014 AD (S.C.)

13

241 (SC)
94.

Phool Chandra and Anr. v. State of U.P.

VII

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


560
95.

96.

Pramod v. Garvare Plastics and Polyester 1987 (1) Crimes


Ltd.

603 (Bom)

Pranaab Kumar Mitra v. Dilip Paul

1992 (1) Crimes

26

27

11

79

622 (Cal)
97.

Pukhrambham

Surchandsingh

Ibohan 2008

Singh v. State of Maharashtra

SCC

OnLine

Bom

1266
98.

R.Balakrishna Pillai v. State Of Kerala

(2003) 9 SCC 700

10

65

99.

R.C. Cooper v. Union of India

AIR 1970 SC 564

14, 15

87, 104

15

93

14, 17

89, 122

100. R.D. Shetty v. Airport Authority

AIR

1979

SC

1628
101. R.K. Garg and Ors. v. Union of India and (1981) 4 SCC 675
Ors.
102. R.P. Kapur v. State of Punjab

AIR 1960 SC 866

57

103. Ram Eqbal Singh v. State of Bihar

1989 (3) Crimes

25

17

126

All.

24

106. Ram Nath Marethia Reg Man, United India 2002 (4) Crimes

59

15

100

26

RD-SC

15

100

1991 (2) Crimes

28

33 (Pat)
104. Ram Manohar Lohia v. State of Bihar and [1966] 1 SCR 709
Ors.
105. Ram Narain v. Mool Chand and Ors.

AIR

1960

296

Insuarance Co. Ltd. v. Shashin H. Bhavsar

502 (508) (Guj)

107. Ramesh Chand Sharma and Anr. v. 2005 Indlaw DEL


Commissioner of Police and Ors.
108. Ranjit Singh v. State of Punjab

367
1991 (1) Crimes
326 P and H

109. Reliance Airport Developers Pvt. Ltd. v. [2006]


Airport Authority of India & Ors.
110. Rita Devi v. State of Bihar

758

368 (Pat-DB)
111. RK Kapur v. State of Punjab

AIR 1960 SC 866

18

112. Rupal Deo Bajaj v. Kanwar Pal Singh Gill

AIR 1996 SC 309

59
VIII

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


113. S. Jagadeesan v. The State

April,

2003

10

65

SC

29

115. Salimkhan Shabbirkhan Pathan v State of 2012 Indlaw GUJ

11

80

59

1961 3 SCR 120

118. Satya Pal Singh and Ors. v. State of Uttar 2000 Cri LJ 569

18

127

59

11

80

27

10

65

16

17

126

22

15

98

3, 4,9

23, 27, 29,

(Unreported)
114. S.N. Palanitkar v. State of Bihar

AIR

2001

2960

Gujarat

1090

116. Sanapareddy Maheedhar Seshagiri v. State 2008 CrLJ 1375


of Andhra Pradesh
117. Sanwant Singh v. State of Rajasthan

(1384,1385) (SC)

Pradesh and Ors.


119. Shankar Lal v. State

2003 (4) Crimes


410 (Raj)

120. Shyam Babu Vishwakarma @ RamBabu 2012


alias Shyam Babu v. State of Uttar Pradesh
121. Shyam Rani v. State of Maharashtra

(1)

RCR

(Criminal) 750
1981 (2) Crimes
299 (Bom)

122. Siddhapal Kamala Yadav v. State Of


Maharashtra

(2009) 1 SCC
124

123. Sir Chunilal v. Mehta And Sons Ltd. v. 1962 AIR 1314
The Century Spinning
124. Sree Mohan Chowdhury v. the Chief [1964] 3 SCR 442
Commissioner, Union Territory of Tripura
125. State of Andhra Pradesh v. Golconda Linga AIR
Swamy
126. State of Bihar v. Union of India and Anr.

SC

3967
1970 2 SCR 522

127. State Of Haryana And Ors v. Ch. Bhajan AIR


Lal and Ors.

2004

1992

SC

2042

128. State of Karnataka v. M. Devendrappa and (2002) 3 SCC 89

57
9

62

15

93

Anr.
129. State of Kerala v. Peoples Union for Civil (2009) 8 SCC 46
Liberties, Kerala State Unit & Ors.

IX

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


130. State of M.P. v. Bharat Singh

AIR

1967

SC

15

91

AIR 1952 SC 196

19

138

SC

25

133. State of Maharasthra v. Ishwar Piraji 1996 CrLJ 1127

59

10

67

18

128

15

98

AIR 1996 SC 218

15

93

138. State Of Rajasthan v. Shera Ram @ Vishnu (2012) 1 SCC 602

10

65

SC

15

94

141. State of Uttar Pradesh & Ors. v. Hirendra (2011) 5 SCC 305

15

93

AIR 1957 Punj 74

10

64

143. Subrata Chattoraj and Anr. v. Union of (2014) 8 SCC 796

18

127

(1)

37

SC

36

146. T. Venkata Reddy v. State of Andhra (1985) 3 SCC 198

14

89

1170
131. State of Madras v. V.G. Row

132. State of Maharashtra v. Arun Gulab Gawali AIR

2010

3762

Kalpatri

(SC)

134. State of Maharasthra v. Mayer Hans AIR 1965 SC 722


George
135. State of Nagaland v. Ratan Singh

(1966)

SCR

830, 851, 852


136. State of Rajasthan and Ors. v. Union of 1977 AIR 1361
India
137. State of Rajasthan v. Mangilal Pindwal

Dutta
139. State of Rajasthan v. Sohan Lal

2004 5 SCC 57

140. State of Tamil.Nadu & Ors. v. K. Shyam AIR


Sunder & Ors.

2011

3470

Pal Singh & Ors.


142. State v. B.D. Meattle

India and Ors.


144. Surendra Chandra Bahri v. State of Bihar

1995

Supp

SCC 80
145. Suresh v. State of Uttar Pradesh

AIR

2001

1344

Pradesh
147. T.N. Lakshmaiah v. State Of Karnataka

(2002) 1 SCC 219

10

65

148. Tapan Kumar Ray v. Sunil Kumar Pradhan

1991 (2) Crimes

27

630 (Ori)
X

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


149. TGL Groundnut Corpn. v. Agricultural 1985 (1) Crimes

25

SC

19

151. The State of Bombay v. Rusy Mistry and AIR 1960 SC 391

Market Committee
150. The

State

908 (AP)

Of

Andhra

Pradesh

Vangaveeti Nagaiah

v. AIR

2009

2646

Anr.
152. Union of India and Anr. v. Ashok Kumar 2014(3)
Aggarwal

CHN

(SC) 128

153. Union of India v. J.S. Khanna

1972 CrLJ 849

26

154. Vinod Doshi v. Shiv Kumar Jain

1987 (2) Crimes

26

15

93

15

93

PAGE
NO.
18

FOOTNOTE
NO.
134

18

134

15

91

18

134

55

18

134

18

134

13

85

35

18

134

30

661 (P and H)
155. West U.P. Sugar Mills Assn. v. State of AIR 2002 SC 948
U.P.
156. Zile Singh v. State of Haryana & Ors.

(2004) 8 SCC 1

INTERNATIONAL CASES
S. NO.
1.

CASE
Boushea v. United States

CITATION
173 F.2d 131, 134
(8th Cir. 1949)

2.
3.
4.
5.
6.
7.

8.
9.
10.
11.

Commonwealth v. Hill

11 Mass. 136
(1814)
Eshugbayi Eleka v. Officer Administering [1931] AC 662
the Government of Nigeria
670
38 So. 182, 183
Johnson v. State
(Ala. 1904)
M/s. Lanco Ferro Ltd. v. N. Guravaiah CMA NO.4750 of
And Anr
2003
Michaels Case
(1840) 2 Mood.
120, 169 E.R. 48
People v. Monks
24 P.2d 508, 511
(Cal. Dist. Ct.
App. 1933)
Scott v. Com. Ky.
353, 197 S.W. 2d
774 (1946)
Thomas Bangert v London South Bank [2010]
EWHC
University
2315 (QB)
United States v. Bryan
483 F.2d 88, 92
(3d Cir. 1973)
Woolmington v. D.P.P.
[1935] AC 462

XI

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


BOOKS REFERRED
S.No.
1.

2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.

15.

16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.

NAME
A. Beaver Moral Machines and the Threat of Ethical Nihilism in P. Lin, K. Abney
and G. A. Bekey (eds.) Robot Ethics: The Ethical and Social Implications of Robotics,
MIT Press: 2012.
A. M. Turing (1950), Computing Machinery and Intelligence
Avtar Singh, Principles of the Law of Evidence, 7th ed. Allahabad: Central Law
Publications (2007)
Batuk Lal, Law of Evidence, 5th ed. New Delhi: Orient Publishing Company (2006)
Bryan A. Garner, Blacks Law Dictionary 8th edition
Cf. J. H.Moor, The Nature, Importance, and Difficulty of Machines Ethics IEEE
Intelligent Systems, 31:4, 2006
Cf. S. Matteo, D. Marino and G.Tamburrini Learning Robots Interacting with Humans:
From Epistemic Risk to Responsibility AI and Society, 2008
Cf.Lin, Bekey and Abney, Autonomous Military Robotics: Risk, Ethics, Design
Criminal Procedure Code, 1973, D.D. Basu Vol. 3 (4th ed. 2010)
D.D. Basu, Shorter Constitution of India Vol. 2 (14th ed. 2010)
Dr. Hari Singh Gour, Penal Law of India, 11th ed. Allahabad: Law Publishers (India)
Pvt. Ltd. (2011)
E.S. Crown, Essay on the Judicial Review in Encyclopedia of Social Sciences, Vol.
VII
Eagle, Nathan and Horvitz, Eric, Artificial Intelligence for Development, Technical
Report SS-10-01; Thrun, Sebastian, Self-Driving Cars-an AI-Robotics Challenge.
Edwina L. Rissland, Artificial Intelligence and Law: Stepping Stones to a Model of
Legal Reasoning, 99 Yale L.J. 1957, 19611964 (1990); Alan Tyree, Expert Systems in
Law 711 (1989)
Gallimore, J.J., Prabhala, S.: Creating Collaborative Agents with Personality for
Supervisory Control of Multiple UCAVs. In: Human Factors and Medicine Panel
Symposium on Human Factors of Uninhabited Military Vehicles as Force Multipliers,
Biarritz, France (2006)
Glanville Williams, Text Book Of Criminal Law, (2nd Edition, Universal Law
Publishing, 1999)
Grosz, Barbara and Davis, Randall, A Report to ARPA on Twenty-First Century
Intelligent Systems, Introduction
H.M. Seervai, Constitutional Law of India (4th edn. Vol 2 2010)
Halsburys Laws of India (Vol. 35 2007)
Harriss Criminal Law, Ian Mclean and Peter Morrish (eds), 22nd edn, Sweet and
Maxwell, 1973.
Haupt, Sue E., Pasini, A., Artificial Intelligence Methods in the Environmental
Science, Springer Netherlands (2009)
IAMAI Annual Report 2012-2013
J.B.L. Hansaria, Writ Jurisdiction (3rd ed. 2005)
K. D. Gaur, Textbook on the Indian Penal Code, 4th ed. New Delhi: Universal Law
Publishing Co. Pvt. Ltd. (2013)
L. Floridi The Philosophy of Information, Oxford: Oxford University Press, 2011
Lamber, K.A., Fundamentals of Python, Why Python?
Lee, K.C., Kim, H.S.: A Fuzzy Cognitive Map-Based Bi-Directional Inference
Mechanism: An Application to Stock Investment Analysis, Intl. Sys. in Acct. Fin. and
Mang, (1997)
XII

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


28.
29.
30.
31.
32.
33.
34.

35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.

53.

McCallum, Andrew et al, A Machine Learning Approach to Building Domain-Specific


Search Engines.
N. P. Padhy, Artificial Intelligence and Intelligent Systems 4 (2009)
N.S. Bindra, Interpretation of Statute 10th edition
Oxford English Dictionary, 2nd edition
P. Hemalatha Devi, Administrative Discretion and Judicial Review (1st ed. 1994)
P.S. Varma, Murder Trial, 1st ed. Allahabad: Premier Publishing Co. (2008)
Prabhala, S. and Ganapathy, S. Emerging Artificial Intelligence Application:
Transforming Television into Smart Television Semantic Methods for Knowledge
Management and Communication Studies in Computational Intelligence, Volume 381,
2011.
R.V. Kelkar, Criminal Procedure, 5th ed. Lucknow: Eastern Book Company (2012)
Ramanatha Aiyar , The Law Lexicon (Reprint ed. 1987)
Ratanlal & Dhirajlal, Indian Penal Code-Volume 2, 32nd ed. Nagpur: LexisNexis
Butterworths Wadhwa (2011)
Ratanlal & Dhirajlal, The Code of Criminal Procedure, 19th ed. Nagpur: LexisNexis
Butterworths Wadhwa (2011)
Rathod, S.R., An Autonomous Driverless Car: An Idea to Overcome the Urban Road
Challenges, Journal of Information Engineering and Applications, Vol.3, No.13, 2013
Robert M. Glorioso and Fernando C. Colon Osorio, Engineering Intelligent Systems:
Concepts and Applications (1980)
Ronald C. Arkin, Intelligent Robotics and Autonomous Agents, Massachusetts
Institute of Technology Press 2004
Russell, Stuart J.; Norvig, Peter, The State of the Art, Artificial Intelligence: A
Modern Approach
S.C. Sarkar, Commentary on the Law of Evidence-Vol. 1st , 2nd and 3rd ed. Allahabad:
Dwivedi Law Agency (2011)
Sarkar, Sarkars Commentary on the Code of Civil Procedure 2nd edition.
Shamshul Huda, The Principles of Law of Crime in India, Tagore Law Lectures,
1902, Eastern Book Co., Lucknow, Reprint 1993.
Soares De Almeida, J.C., Application of Artificial Intelligence Techniques in Modeling
and Control of a Nuclear Power Plant Pressurizer System.
Srinivasan, D., Xin, J., Chue, R.L.: Evaluation of Adaptive Neural Network Models for
Freeway Incident Detection. IEEE Tran. on Intl. Trans. Sys. (2004)
Terry Winograd, Thinking Machines: Can There Be? Are We?, in the foundations of
artificial intelligence, (Derek Pertridge and Yorick Wilks eds., 1990, 2006)
The Constituent Assembly Debates, Vol. 8, Part V, Chapter III.
The Digest 17 (1st ed., Vol 14 (2), London Butterworths and Co. Ltd. 1993)
W. Wallach, and C. Allen, Moral Machines: Teaching Robots Right from Wrong,
Oxford University Press, 2009
Weiss J.C. et al, Machine Learning for Personalized Medicine: Predicting Primary
Myocardial Infarction from Electronic Health Records, Tatara, E., Cinar, A.:
Interpreting ECG Data by Integrating Statistical and Artificial Intelligence Tools,
IEEE Mag. on Eng. Med. and Biol. 21(1), (2002).
Zelle, J., Python Programming: An Introduction to Computer Science, Computers and
Programs.

XIII

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI

STATEMENT OF JURISDICTION
THE HONBLE SUPREME COURT OF INDIA EXERCISES
JURISDICTION TO HEAR AND ADJUDICATE OVER THE
MATTER UNDER ARTICLE 136 OF THE CONSTITUTION
OF INDIA, 1950.

THE

PROVISION

APPROACHED

UNDER

WHICH

THE

PETITIONER

HAS

THIS HONBLE COURT AND TO WHICH THE

PETITIONER HUMBLY SUBMITS IS READ HEREINUNDER:

Article 136 of the Constitution of India, 1950 states that


(1) Notwithstanding anything in this Chapter, the Supreme
Court may, in its discretion, grant special leave to appeal from
any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the
territory of India
(2) Nothing in clause (1) shall apply to any judgment,
determination, sentence or order passed or made by any court or
tribunal constituted by or under any law relating to the Armed
Forces.

XIV

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI

STATEMENT OF FACTS
I.
RIHA KAUSHALS BACKGROUND
Riha Kaushal, a twenty eight year old girl, lost her mother at a very young age. Her
father, Nitin Kaushal, had brought her up as a child who had never known no for an
answer. Kaushal was hugely successful in the world of high-end retail. He was an avid
user of social media using which he finalized Rihas marriage with one Sehajbir
Singh.
However, on December 31st 2014 Riha lost her father. The death came as a huge
blow to her due to which she refused to marry Sehajbir.
II.
INTERFACE WITH CHANDANDEEP JUNEJA
At the funeral, she was approached by her old friend, Chandandeep Juneja, who urged
her to try an experimental, but world-renowned invitation only program called
Stargazer that had greatly helped numerous people deal with the loss of a parent.
Her friend Ish, from college helped her cope with the loss. While he was always
romantically inclined towards her, she did not feel the same way. She would, however,
ever so often hint of a relationship. This was the reason Ish had come back to her side
in her hour of need and she was grateful for it.
III.
RIHA USES THE STARGAZER PROGRAM
On the night of 14th January 2015, Riha for the first time, logged into her email . One
email caught her attention, it was from Nitin Kaushal, and it simply said Yes Rihu,
its me. Chandan helped me get in touch with you. Click here so we can talk. She was
stunned. Riha called Chandan, who explained to her that he had gone ahead and
signed her up for the Stargazer program. It was the first real breakthrough in artificial
intelligence. The way it worked was that the program collected all the information
about the person that it could from the internet, social media, blogs etc. and identified
a pattern and a manner in which that person wrote, his likes, tastes and so on. It then
basically tried to replicate the person using AI, so you could chat with that person

XV

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


about virtually any subject. The experience would be as if the said person was away,
and you were chatting via Instant Messages.
The responses by the AI version of Nitin Kaushal to anything she asked sounded just
like what her father would have said. She was aware that this wasnt real, and that
Nitin was not the one talking to her, but she felt extremely well and happy.
Seeing her coping so well, Ish bought a ring on February 1st and asked Riha to marry
him. However, bitter memories of her broken relationship with Sehajbir came rushing
back to her, and with that came the realisation that her father had indeed died and that
she had been living in a bubble. She left without saying a word, and Ish was incensed
at this rejection which encouraged him to win her over.
IV.
INTERFACE WITH MANU SHARMA
Riha stopped using Stargazer and became dismal again. Her case was actively being
monitored at the Stargazer HQs in Los Angeles. Worried by the sudden termination of
the program, the M.D of Stargazer, especially informed the creator of Stargazer, Manu
Sharma about this development. Sharma immediately recognised Riha from his days
in college. Both of them had liked each other, but they had never really pursued it on
account of Ishs presence.
Manu Sharma personally took charge of her case and directed all Stargazer employees
that he would conduct the project himself and that it stood classified for everyone else
at the company. Riha then received an email that asked her to upload all the video and
audio clips that she had of her father. The email informed her that this project was
purely experimental and expensive. Despite this, she agreed because she missed him
terribly.
Two days later, she received a call from an international number Hello Baccha, its
me! The person on the other side sounded just like her father, and was speaking in
exactly the same manner as he did. Riha knew he wasnt real, but she started spending
a lot of time on the phone everyday.
Seeing this, Ish sensed another opportunity to approach her. He started sending
flowers to her workplace, her house, started calling her continuously, buying her
unwanted gifts. Riha mentioned all of this to her father, and asked him for ways to
XVI

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


get rid of this relationship. He advised her to have a frank conversation with him, but
that had no effect, instead Ishs overtures were only growing. Frustrated she told Nitin
that she couldnt take it anymore and was afraid shell end up doing something to
herself. The AI powered call was immediately disconnected. Ten minutes later Nitin
told her that hed thought of something. He asked Riha to call Ish to her home, and
pretend that he was going to outrage her modesty, bruise herself a little, hit him with
something and run away from the house and call the police. That way, Ish would be
put in jail and shed have her life back once and for all.
Since to her mind, it was her father telling her to do this she went ahead with the plan.
On the evening of the 14th of February at about 7 pm she acted on the plan by
screaming for her safety and hittting Ish with a vase on the head and ran from the
house shouting Save me! Save me!. Then she called the police from her mobile
phone. The police arrived at the scene within 10 minutes and found Ish unconscious
inside Rihas home. She narrated to the police how he was harassing her, and how he
had come to her house uninvited that evening as well. She further stated that after
consuming wine Ish had become larkish after which he had attempted to assault her.
She further said that she had, with great difficulty, escaped from his clutches and
called the police.
Ish was found to be dead. The police then sent the body for a postmortem
examination. Meanwhile, the police sought to interview Rihas friends and colleagues
and also went through her call history. While they did find a few calls from Ish, her
calls and IM logs also indicated that she was chatting with someone most of the time,
which her phone identified as Dad. However, knowing that Mr. Kaushal had passed
away a little while ago, the police became suspicious. They brought in Mr. Salil
Sabhlok, a cyber security expert who after due analysis informed the police that the
calls and IM were coming from a company based in the U.S. called Stargazer. He
explained to the police how the company was a pioneer in the field of Artificial
Intelligence and what its business was.
V.
FILING OF FIRs
On February 16th while Manu Sharma was visiting India, the police summoned him
for questioning. The next day the police decided to register FIR No. 27 at Police
XVII

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


Station Sector 3, Chandigarh under Sections 302, 120-B, 34 of the Indian Penal Code
1860, in which Manu Sharma was also named as an accused along with Riha Kaushal.
During the course of investigation the police interviewed the M.D. of Stargazer who
revealed that while their system was completely autonomous, it was, to a limited
extent, influenced by the inputs given by the handlers and psychological specialists to
tweak its code to better humanise it. He further stated that he knew Manu Sharma
from his college days, and he didnt believe that Manu Sharma was capable of
something as devious as using Stargazer to help eliminate Ish from the equation, so
that he could be with Riha. Although he did say that he found Manu Sharmas actions
in classifying Rihas files suspicious.
On the 17th of February Manu Sharma called a press conference in which he labeled
the actions of the police as myopic .He went on to explain to the press how the police
was missing the basic premise that Stargazer is based on Artificial Intelligence and
therefore he possibly could have no control over what that machine said to Riha, and
how she chose to interpret it. In any case, Riha had agreed to the terms and conditions
of the program that categorically stated that the users accepts all risks and
consequences for the use of the service, and that the company shall have no liability
whatsoever in any form as a result of the usage of their service. He further pointed out;
that it also wasnt a case where he had been negligent in any aspect that involved the
prevention of a crime, as all transcripts of the communication between parties are
secure and deleted at the end of each day. Therefore, he possibly couldnt be held
responsible for any actions of the AI software.
In a brief statement, the investigating officer of the case Sahil Sethi said that the police
force is a modern establishment that consults with the best minds on cases such as
these. He stated Manu Sharma isnt as clean as he claims to be. On 14th February
Ishs call records show that he had received a call from the same number that
Stargazer had been using to call Riha. Thats not all, as it turns out her ex-fianc
Sehajbir is an investor in Stargazer. Ill let it rest at that for now.
VI.
MEDIA REPORTS
Media reports carried a story about a teenage internet genius named Vaibhav Sharma
who had made an automated bot that ordered Coke from Internet sites that serviced
XVIII

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


his area the moment it was offered on a 5% or more discount. The code for the bot
included his payment details and delivery address, so the entire transaction was
automatic and seamless. One day that bot had accidently ordered Coke from a decoy
website setup by the police to catch drug peddlers and that had brought the police to
his door step and led to the registration of an FIR against Vaibhav. He had claimed
that he couldnt be held responsible for the crime as it had been committed by the
bot and also because he lacked the necessary intent to commit the crime.
VII.
CENTRAL GOVERNMENT ORDINANCE
In view of such incidents, where serious crime were being blamed on machines that
could act for themselves - independent of manual instructions, the Central
Government got issued an ordinance dated 20.02.15 banning commercial research,
sale or dissemination in any other form of hardware or code that possessed
characteristics of Artificial Intelligence including, but not limited to programs
which are considered bots in common parlance. This was undertaken to cast down
citizens from committing crimes and then blaming them on machines that couldnt be
prosecuted and punished under the law.
VIII.
HONBLE HIGH COURT
At once, Manu Sharma approached Vaibhav with an offer of legal assistance. Both
individuals filed petitions under Section 482 of the Code of Criminal Procedure 1973
seeking quashing of the respective FIRs qua them. However, the Honble Punjab and
Haryana High Court vide order dated 23.02.15 was dismissed both these petitions in
limine on the ground that the police was yet to present a chargesheet, and it would not
be proper to quash the FIRs at this preliminary stage itself.
Both Manu Sharma and Vaibhav preferred Special Leave Petitions before the Honble
Supreme Court against the order of dismissal. In a separate petition, Manu Sharma
also challenged the governments move to ban all forms of AI, being violative of the
Constitution of India and other laws of the land.

XIX

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


IX.
HONBLE SUPREME COURT
The Honble Supreme Court issued notice in all the following cases, and listed them
for arguments together on March 20th 2015.

Criminal Appeal No. 32 of 2015, Manu Sharma v. U.T. of Chandigarh


[Arising out of SLP (Crl.) No. 25 of 2015]

Criminal Appeal No. 33 of 2015, Vaibhav Sharma v. State of Punjab


[Arising out of SLP (Crl.) No. 27 of 2015]

W.P.(C). No. 16 of 2015, Manu Sharma v. Union of India

XX

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI

QUESTIONS OF LAW
I.

WHETHER

THE

SPECIAL LEAVE PETITION

DISMISSAL BY THE

HONBLE HIGH COURT

AGAINST THE ORDER OF

AGAINST

PETITIONER NO.1

IS

MAINTAINABLE?

II.

WHETHER

THE

SPECIAL LEAVE PETITION

DISMISSAL BY THE

HONBLE HIGH COURT

AGAINST THE ORDER OF

AGAINST

PETITIONER NO.2

IS

MAINTAINABLE?

III.

WHETHER THE ORDINANCE PROMULGATED BY RESPONDENT NO. 3 IS


LEGALLY TENABLE?

XXI

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI

SUMMARY OF ARGUMENTS
I.

THAT THE SPECIAL LEAVE PETITION AGAINST THE ORDER OF DISMISSAL BY


THE HONBLE HIGH COURT AGAINST PETITIONER NO. 1 IS MAINTAINABLE.

The Special Leave Petition filed under Article 136 of the Constitution of India, 1950
against the decision of the Honble Punjab and Haryana High Court in the matter of
quashing of F.I.R. against Petitioner No. 1 is maintainable. The Petitioner has
exhausted all remedies available to him under S. 482 Cr.P.C. Petitioner No. 1 had no
mens rea or actus reus to commit the acts as alleged in the F.I.R. The alleged act was
carried out by an AI entity and Petitioner No. 1 cannot be held responsible for the
actions of the AI entity.
2.

THAT THE SPECIAL LEAVE PETITION AGAINST THE ORDER OF HONBLE


HIGH COURT AGAINST PETITIONER NO.2 IS MAINTAINABLE.

The Special Leave Petition filed under Article 136 of the Constitution of India, 1950
against the decision of the Honble Punjab and Haryana High Court in the matter of
quashing of F.I.R. against Petitioner No. 2 is maintainable. The Petitioner has
exhausted all remedies available to him under S. 482 Cr.P.C. The F.I.R. alleges
Petitioner No. 2 of offences under the NDPS Act, for which he had neither intention
nor act. The alleged act was carried out by an AI entity and the Petitioner No. 2 cannot
be held responsible for the actions of the AI autonomous bot devised by him.
3.

THAT THE ORDINANCE PROMULGATED BY

THE

PRESIDENT IS LEGALLY

TENABLE.
The sweeping prohibition of the Ordinance coupled with the unreasonably harsh
restrictions, imprecise language and absence of a due procedure which could permit
bona fide uses of AI, adversely impairs the due exercise of Right to Trade and makes
it unreasonable deeming it ultra vires Article 14 and Article 19(1)(g) of the
Constitution of India, 1950.
XXII

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI

ARGUMENTS ADVANCED
1. THAT THE SPECIAL LEAVE PETITION AGAINST THE ORDER OF DISMISSAL BY
THE HONBLE HIGH COURT AGAINST PETITIONER NO.1 IS MAINTAINABLE.
The instant S.L.P. against the order of dismissal by the Honble High Court is
maintainable. The High Court ordered dismissal of the petitions seeking the quashing
of F.I.R. The submission made by the Petitioner is fourfold. Firstly, exceptional and
special circumstances exist for the application of Art. 136. Secondly, there has been an
exhaustion of alternate remedies. Thirdly, substantial justice has not been done by the
High Court. Fourthly, there is autonomy in the actions of the software Stargazer.
1.1

THAT

EXCEPTIONAL

AND

SPECIAL

CIRCUMSTANCES

EXIST

FOR

THE

APPLICATION OF ARTICLE 136

The powers of this Court under Art. 136 are exceptional and extraordinary.1 They are
of a residuary and reserve nature2 exercised in furtherance of the interests of justice.3
The jurisdiction conferred under Art. 136 on this Court is corrective and not
restrictive.4 The exercise of jurisdiction conferred by Art. 136 on this Court is purely
discretionary, conditioned by the existence of self-imposed conditions: special
circumstances5; miscarriage of justice6; violation of principles of natural justice7;
disregard of legal principles8; existence of substantial question of law9; existence of
question of general public importance.10 A duty is enjoined upon the Apex Court to
exercise its power by setting right the illegality.11 It is well-settled that illegality must
not be allowed to be perpetrated.12 It has been held in a plethora of cases13 that when
the question of law of general public importance arises, the jurisdiction of the
Supreme Court can be invoked by filing an S.L.P. Therefore, the issue involves matter
1

Dhankeshwari Cotton Mills v. CIT, AIR 1955 SC 65; Union of India and Anr. v. Ashok Kumar
Aggarwal, 2014(3) CHN (SC) 128.
2
Durga Shanker Mehta v. Thakur Ragunath Singh, AIR 1954 SC 520.
3
Sanwant Singh v. State of Rajasthan, 1961 3 SCR 120.
4
Haryana State Industrial Corp. v. Cork Mfg. Co., (2007) 8 SCC 359 (SC).
5
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815.
6
State of Rajasthan v. Sohan Lal, 2004 5 SCC 57.
7
Bengal Chemical and Pharmaceutical Works Ltd., Calcutta v. Their Workmen, AIR 1959 SC 633.
8
The State of Bombay v. Rusy Mistry and Anr., AIR 1960 SC 391.
9
Indian Oil Corporation Ltd. v. State of Bihar and Ors., 1986 4 SCC 146.
10
Collector of Central Excise v. Standard Motor Products, AIR 1989 SC 1298.
11
H.M. Seervai, Constitutional Law of India (4th edn. Vol 2 2010). See: C.C.E. v. Standard Motor
Products, (1989) AIR 1298 (SC).
12
Pawan Kumar v. State of Haryana, (2003) 11 SCC 241 (SC). See: H.M. Seervai, Constitutional Law
of India (4th edn. Vol 1 2010). See also: Halsburys Laws of India (Vol. 35 2007).
13
Hem Raj v. State of Ajmer, AIR 1965 SC 462; Phool Chandra and Anr. v. State of U.P. 2014, AD
(S.C.) 560; Sanwat Singh and Ors. v. State of Rajasthan, 1961 AIR 715.
1

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


of general public importance14 and hence, this Petition is maintainable.
1.1.1 THAT THERE EXISTS A SUBSTANTIAL QUESTION OF LAW
It is submitted that in the instant case there exists a substantial question of law.15 The
Supreme Court has held that, the proper test in determining whether a question of
law raised in the case is substantial would be whether it is of general public
importance, or whether is directly and substantially affects the rights of the parties
and so whether it is an open question in the sense that it is not finally settled by this
court.16 In the instant case, the High Court dismissed the Petitions to quash the
F.I.R.17 It is submitted that the High Court erred while making such an Order and
triggered the criminal law machinery against the Petitioner No. 1. Therefore, the
substantial question of law in the instant case is whether a liability be imposed on a
person for the actions of AI-entities?.
1.2

THAT THERE HAS BEEN AN EXHAUSTION OF ALTERNATE REMEDIES

It is neither possible nor desirable to lay down any inflexible rule which would govern
the exercise of inherent jurisdiction.18 No legislative enactment dealing with procedure
can provide for all cases that may possibly arise. Courts, therefore, have inherent
powers apart from express provisions of law which are necessary for proper discharge
of duties imposed upon them by law. All courts possess in the absence of any express
provision, as inherent in their constitution. All such powers are necessary to do the
right and to undo a wrong in course of administration of justice on basis of the
principle quando lex a liquid aliquot concedit, conceditur et id sine quo res ipsa esse
non potest. Authority of the court exists for advancement of justice and if any attempt
is made to abuse that authority so as to produce injustice; the court has power to
prevent such abuse. It would be an abuse of the process of the court to allow any
action that would result in injustice. In exercise of these powers, the court would be
justified to quash any proceeding if it finds that initiation or continuance of it would
amount to abuse of the process of court or quashing of these proceedings would
otherwise serve the ends of justice. When a F.I.R. is sought to be quashed, it is
permissible to look into the materials to assess what the Complainant has alleged and

14

Balakrishna v. Ramaswami, (1965) AIR 195 (SC).


Collector of Central Excise v. Standard Motor Products, AIR 1989 SC 1298; The State of Bombay v.
Rusy Mistry and Anr., AIR 1960 SC 391.
16
Chunni Lal Mehta v. Central Spinning and Manufacturing Co., AIR 1962 SC 1314.
17
The Moot Proposition, para 20.
18
RK Kapur v. State of Punjab, AIR 1960 SC 866.
15

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


whether any offence is made out.19 In the instant case, the Petition was filed in the
High Court on 23.02.2015, seeking quashing of the F.I.R. This Petition was dismissed
by the High Court on the same day. Thus, the sole statutory remedy available to the
Petitioner No.1 was exhausted. In light of such circumstances, the Supreme Court has
observed,
Though there is no provision like S. 482 of the Cr.P.C conferring express
power on this Court to quest or set aside any criminal proceedings pending
before a criminal court to prevent abuse of process of the Court, but this Court
has power to quash any such proceedings in exercise of its plenary and
residuary power under Art. 136 of the Constitution.20
Therefore, all the remedies have been exhausted by Petitioner No.1.
1.3.

THAT SUBSTANTIAL JUSTICE HAS NOT BEEN DONE BY THE HIGH COURT

Art. 136 is the residuary power of the Apex Court to do justice where the court is
satisfied that there is injustice.21 It is submitted that the High Court did not
substantially deal with Petition for quashing the F.I.R. The High Court must
mandatorily exercise its inherent powers and quash a F.I.R. where there is no
indication of a prima facie case: on account of it being frivolous, oppressive or
vexatious and when ingredients of the crimes are not made out.
Therefore, the High Court failed to discharge substantial justice in the instant case.
1.3.1 THAT THE F.I.R. MUST BE QUASHED WHEN IT IS FRIVOLOUS, OPPRESSIVE OR
VEXATIOUS

In exercise of the powers, the Court would be justified to quash any proceeding if it
finds that initiation or continuance of it amounts to abuse of the process of court or
quashing of these proceedings would otherwise serve the ends of justice. 22 The scope
of exercise of power under S. 482 Cr.P.C and the categories of cases where the High
Court may exercise its power under it relating to cognizable offences to prevent abuse
of process of any court or otherwise to secure the ends of justice have been expressly
set out by the Supreme Court as,23
1. Where the allegations made in the F.I.R. or the complaint, even if they are
taken at their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused.

19

The State of Andhra Pradesh v. Vangaveeti Nagaiah, AIR 2009 SC 2646.


Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406.
21
C.C.E. v Standard Motor Products, (1989) AIR 1298 (SC). See also: H.M. Seervai, Constitutional
Law of India (4th Edn. Vol 2 2010).
22
Central Bureau of Investigation v. Shri Ravi Shankar Srivastava, IAS, AIR 2006 SC 2872; State of
Andhra Pradesh v. Golconda Linga Swamy, AIR 2004 SC 3967.
23
State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 2042.
20

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


2. Where the uncontroverted allegations made in the F.I.R. or complaint and
the evidence collected in support of the same do not disclose the commission of
any offence and make out a case against the accused.
3. Where the allegations made in the F.I.R. or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever reach
a just conclusion that there is sufficient ground for proceeding against the
accused. .24
Therefore, quashing of the F.I.R. is advisable as the due regard has not been given to
circumstances of the case and allegations have been imposed on the Petitioner No. 1
whose connection with the offences cannot even be remotely established.
1.3.2 THAT THE INHERENT POWERS OF THE HIGH COURT ARE PLENARY AND MUST
MANDATORILY BE EXERCISED IN ABSENCE OF A PRIMA FACIE CASE

The inherent powers under S. 482 Cr.P.C are present for the interest of justice. The
power under the S. 482 of Cr.P.C should be exercised ex debito justitiae to prevent the
abuse of process of the Court.25 Where even a remote chance of the prosecution
resulting in conviction did not exist, it was held to be a fit case for interference of
Court under S. 482 of the Cr.P.C26 and the Court inherently would be couched with
such power to do justice and to ensure that the doctrine of Rule of Law is not
frustrated.27 The principle object of the F.I.R. is to set the criminal law machinery in
motion.28 For registering an F.I.R., it is sine qua non that there must be information
which must disclose a cognizable offence, satisfying the requirements of S. 154(1) of
Cr.P.C.29 The F.I.R. stated that Petitioner No.1 was an Accused for offences under Ss.
302, 120B, 34 of I.P.C. It is submitted that the allegations made in the F.I.R., even if
they are taken at their face value, do not prima facie constitute any offence or make
24

Ram Narain v. Mool Chand and Ors., AIR 1960 All. 296.
State of Maharashtra v. Arun Gulab Gawali, AIR 2010 SC 3762; Kali Charan Gupta v. Ashok Kumar
Jain, 1984 (1) Crimes 221 (All); TGL Groundnut Corpn. v. Agricultural Market Committee, 1985 (1)
Crimes 908 (AP); Janakiraman v. J. Parimala Veni, 1988 (2) Crimes 529 (Mad); Ram Eqbal Singh v.
State of Bihar, 1989 (3) Crimes 33 (Pat); Hiralal Poddar v. State of Assam, 1991 (1) Crimes 65 (Gau).
26
Anurag Chopra v. State, 1989 CrLJ 2227 (Del.); Ranjit Singh v. State of Punjab, 1991 (1) Crimes 326
P&H; Union of India v. J.S. Khanna, 1972 CrLJ 849; Anilchandra Pitambardas Sagar v. Rajesh
Harjivandas Jhaveri, 1991 CrLJ 487 (Bom); Dr. Anand R. Nerkar v. Rahimbi Shaikh Madar, 1991 CrLJ
557 (Bom); Pramod v. Garvare Plastics and Polyester Ltd., 1987 (1) Crimes 603 (Bom); Vinod Doshi v.
Shiv Kumar Jain, 1987 (2) Crimes 661 (P&H).
27
State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., 1992 AIR 604; Kodati Ramana @
Venkatarama v. Station House Officer, 1991 (3) Crimes 839 (AP); Lakha Singh v. State of Punjab,
1991 (3) Crimes 376 (P&H); Om Prakash v. State of Bihar, 1992 (1) Crimes 483 (Pat); Pranaab Kumar
Mitra v. Dilip Paul, 1992 (1) Crimes 622 (Cal); Bharat Singh v. State of Rajasthan, 1991 (2) Crimes
526 (Raj); Tapan Kumar Ray v. Sunil Kumar Pradhan, 1991 (2) Crimes 630 (Ori); Shyam Rani v. State
of Maharashtra, 1981 (2) Crimes 299 (Bom); Krishna Rani v. State of Punjab, 1991 (2) Crimes 329
(P&H).
28
Hasib v. State of Bihar (1972) 4 SCC 773; Rita Devi v. State of Bihar, 1991 (2) Crimes 368 (PatDB); Misri Lal v. State of Rajasthan, 1991 (2) Crimes 421 (Raj); B.R. Bajaj v. Union of India, 1986 (3)
Crimes 473 (P&H).
29
S.N. Palanitkar v. State of Bihar, AIR 2001 SC 2960; State of Haryana v. Ch. Bhajan Lal, AIR 1992
SC 2042.
25

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


out a case against Petitioner No.1. This is because the essentials of the criminal justice
aim to impose criminal liability on a person do so when there is a mens rea and an
actus reus. Thus, there must be an act done and this act must be driven by a guilty
mind i.e. the crime exists only when actus reus and mens rea coincide.30 In the instant
case, there is no coincidence between the two and hence, no crime has been
committed. In light of the contentions made out in the F.I.R., it is most humbly
contended that the elements of crime are absent.
1.3.3 THAT THERE IS NO MENS REA PRESENT
A criminal act generally requires some element of wrongful intent or fault.31 This is
known as mens rea.32 Guilt in respect of all the offences created under the I.P.C. is
fastened either on the ground of intention, or knowledge or reason to believe. 33 In the
instant case, the F.I.R. accuses the Petitioner No.1 of offences of conspiracy and
murder in furtherance of common intention. The AI-based Stargazer intended to bring
the alleged conspiracy into being, absolving Petitioner No.1 of any blameworthy
intention. It is submitted that the actions of the Petitioner No.1 were well within his
capacity as creator of the software Stargazer. Therefore, it is submitted that the
requisite mens rea for either of the offences is absent in the instant case.
1.3.4 THAT THERE IS NO ACTUS REUS PRESENT
The physical element of a crime or behaviour connected to the crime is called actus
reus.34 A person must participate in all the acts necessary to constitute a particular
crime in order to be guilty thereof.35 According to S. 34 I.P.C., there must be a
criminal act done by several persons; the criminal act must be in furtherance of
common intention of all and there must be participation of all persons in furthering the
common intention.36 Similarly, the offence of criminal conspiracy under S. 120A
I.P.C. takes place when two or more persons agree to do, or cause to be done an illegal
act, or an act which is not illegal by illegal means. 37 The actus reus of conspiracy is
complete in the making of an agreement in which the parties intend to carry out their
agreement. The offence of murder under S. 302 requires: i) Death of a human being ii)
30

Woolmington v. D.P.P., [1935] AC 462.


Jyoti Prashad v. State of Haryana, AIR 1993 SC 1167.
32
The Digest 17 (1st ed., Vol 14 (2), London Butterworths and Co. Ltd. 1993).
33
Shamshul Huda, The Principles of Law of Crime in India, Tagore Law Lectures, 1902, Eastern
Book Co., Lucknow, Reprint 1993, ch 5, mens rea.
34
Per Buckley J, in Re London and Globe Finance Corporation Limited, [1903] 1 Ch 728, at 732.
35
Scott v. Com., Ky. 353, 197 S.W. 2d 774 (1946).
36
Parichhat v. State of Madhya Pradesh, AIR 1972 SC 535; Chandrakant Murgyappa Umrani v. State
of Madhya Pradesh, AIR 1999 SC 1557; Suresh v. State of Uttar Pradesh, AIR 2001 SC 1344.
37
Mohd Khalid v. State of West Bengal, (2002) 7 SCC 334; Devender Pal Singh v. State (NCT of
Delhi), AIR 2002 SC 166; Surendra Chandra Bahri v. State of Bihar 1995, Supp (1) SCC 80.
31

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


Such death was caused by or in consequence of the act of the accused iii) Such act was
donea) with the intention of causing death b) that the accused knew it to be likely to
cause death c) that the injury was sufficient in the ordinary course of nature to cause
death.38 The actus reus of murder is complete in the death of a person due to the act of
another. Further, the act must be causa causans, i.e., the immediate of proximate
cause of the effect.39 In the instant case, Petitioner No.1 is charged with the offences
of conspiracy when there was no agreement between Riha and him. He has also been
charged with the offence of murder even though his actions in capacity of the creator
of Stargazer are not the causa causans of the murder. It is further to be noted that the
offences enlisted in the F.I.R. require the presence of two or more persons40 and this
requirement is not satisfied in the instant case as all communications have been
between Riha and Stargazer-an AI powered software.
1.3.5 THAT THERE IS NO INVOLVEMENT OF TWO PERSONS
It is submitted that Riha perpetrated an attack on Ish, based on a felonious execution
of the advice rendered to her by Stargazer. On being told that Riha might do
something to herself after being harassed by Ish, the AI advised Riha to call Ish to her
home, and pretend that he was going to outrage her modesty, bruise herself a little, hit
him with something and run away from the house and call the police. 41 These
interactions took place between Riha and Stargazer. Stargazer is known to be an AI
entity. Such AI systems (1) act like humans, (2) think like humans, (3) think
rationally, and (4) act rationally.42
Therefore, it is pertinent to examine the nature of such autonomous systems.
1.4 THAT THERE IS AUTONOMY IN THE FUNCTIONING OF STARGAZER
The software Stargazer executed its operations independently and was thus
autonomous in its functioning. It is a matter of fact that the use of autonomously
functioning intelligent devices is not unknown.43 Therefore, to qualify the working of
such entities, a perusal into the nature of the software is vital.
1.4.1 AI COLLECTS PREDEFINED INFORMATION
38

Hari Singh Gour, Penal Law of India, Vol 3, 11th edn, Law Publishers Allahbad, 1998, p. 2421.
Harriss Criminal Law, Ian Mclean and Peter Morrish, 22nd edn, Sweet and Maxwell, 1973, p. 22.
40
Amrita Lal Hazra and Ors. v. Emperor, (1915) ILR 42 Cal 957.
41
The Moot Proposition, para 11.
42
N. P. Padhy, Artificial Intelligence and Intelligent Systems 4 (2009).
43
The South Korean government now uses AI robots as soldiers to guard the border with North Korea;
as teachers in schools; and since 2012, as prison guards. See: Nick Carbone, South Korea Rolls Out
Robotic Prison Guards (Nov. 27, 2011), http://newsfeed.time.com; Autonomous drone aircraft are
crucial to increasing effects while potentially reducing cost, forward footing, and risk. See: W. J.
Hennigan, New Drone Has No Pilot Anywhere, So Whos Accountable?, L.A. Times, Jan. 26, 2012.
39

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


Leading research44 in the area of AI has aimed to estimate a machines ability to
exhibit intelligent behaviour equivalent to, or indistinguishable from, a human. The
strength of the machine is thus gathered from the responses it gives and how proximal
it is to the response that may be expected from a human.45 Many such expert systems
became successful tools, expanded over the years with new knowledge and improved
with better heuristics.46 Development of AI entities have resulted in intensive research
in the areas of machine learning and problem solving, which has now expanded the
use of expert systems into many new fields, with development efforts extending
beyond the confines of academic research, and AI technology increasingly replacing
traditionally human capabilities and becoming autonomous units.47 In the instant case,
the program Stargazer collected all the information about the person that it could from
the internet, social media, blogs etc. and identified a pattern and a manner in which
that person wrote, his likes, tastes, etc. It then tried to replicate the person using AI, so
one could chat with that person virtually. The experience would be as if the said
person was away, chatted via Instant Messages.48
Therefore, Stargazer is an autonomous entity.
1.4.2 AI CHOOSES ITS COURSE OF ACTION ON THE BASIS OF THE NATURE OF GIVEN
INFORMATION

The AI software is capable of estimating many complicated calculations


simultaneously or to "think" faster. An AI entity is capable of learning and of gaining
experience through examples and is thus heuristic. The more examples analyzed, the
more effective becomes the learning.49 When a set number of scenarios are fed into
the system with specific output, the machine is said to learn them. After this, if
unknown scenarios are introduced, the system will randomly generate output based on
its existing knowledge base. This output may not be correct. Thus, based on certain
rules or limitations and information given to the software, the software makes a
decision.50 All these attributes create the essence of an AI entity.51 Based on the input

44

A. M. Turing (1950) Computing Machinery and Intelligence Mind, 49: 433-460.


Ibid, p. 433-460.
46
Edwina L. Rissland, Artificial Intelligence and Law: Stepping Stones to a Model of Legal
Reasoning, 99 Yale L.J. 1957, 19611964 (1990); Alan Tyree, Expert Systems in Law 711 (1989).
47
Robert M. Glorioso and Fernando C. Colon Osorio, Engineering Intelligent Systems: Concepts and
Application"s (1980).
48
The Moot Proposition, para 6.
49
Terry Winograd, Thinking Machines: Can There Be? Are We? in the foundations of artificial
intelligence 167, 168 (Derek Pertridge and Yorick Wilks eds., 1990, 2006).
50
U.S. Department of Defense. (2011) Unmanned Systems Integrated Roadmap FY 2011-2036,
available online at: http://www.aviationweek.com/media/pdf/UnmannedHorizons/usroadmap2011.pdf.
45

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


given to the system under a behavioural pattern encoded within it, at a given point of
time, the system generates an output. Such software has the ability to act without
someone directing that action.52 Therefore, when the software was confronted with a
situation wherein the user Riha asked it on how to get rid of her relationship with
Ish;53 the software merely produced results that replicated the patterns of behaviour
which Nitin Kaushal would have displaced. Being a modern tech savvy girl, Riha
should have exercised caution before posing unusually sensitive questions to a persona
of her father who she knew wasnt real.
Therefore, the response of Stargazer was a direct result of the input provided to it.
1.4.3 THAT THE INFORMATION COLLECTED SOLELY DETERMINES ACTIONS OF AI
If an AI system commits offences and lacks the capability to change its ways through
machine learning, only incapacitation can supply an adequate answer. Regardless of
whether the AI system understands the meaning of its activity, or whether the AI
system is equipped with proper tools to perform inner changes, delinquency must still
be prevented. In a situation of this type, society must disable the physical capabilities
of the AI system to commit further offences, despite its other skills. This is what the
society does with human offenders in similar cases.54
It is pertinent to note here that Riha had expressly assented to the terms and services of
the software and is liable for risks arising thereof. The consent attracts the common
law maxim of volenti non fit injuria.55 The dictum nemo punitur pro alieno delicto
makes it abundantly clear the no one can be made punishable for the crimes of
another.56 Therefore, it is most humbly submitted that Petitioner No. 1 cannot be made
liable for the actions of the AI entity.
In light of the above presented arguments, the S.L.P. against the decision of the
Honble Punjab and Haryana High Court against Petitioner No. 1 is maintainable.
Petitioner No. 1 cannot be held responsible for the actions of the AI entity.

51

Yorick Wilks, One Small Head: Models and Theories, The Foundations of Artificial Intelligence p.
121 (Derek Partridge and Yorick Wilks Eds., 2006).
52
L. Floridi, The Philosophy of Information, Oxford: Oxford University Press, 2011.
53
The Moot Proposition, para 11.
54
Wilks, Loc. Cit., p. 121
55
M/s Lanco Ferro Ltd. v. N. Guravaiah and Anr., CMA NO.4750 of 2003.
56
District Collector, Dharmapuri v. T. V. Kasturi, 2014 SCC OnLine Mad 429; Ishtiyak Ahmad
Makrani v. State of Uttar Pradesh and Ors., 2010 SCC OnLine All 1713.
8

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


2. THAT

THE SPECIAL LEAVE PETITION AGAINST THE ORDER OF THE

HONBLE

HIGH COURT AGAINST PETITIONER NO.2 IS MAINTAINABLE.


It is submitted by Petitioner No.2 that the S.L.P. against the Order of dismissal by the
High Court is maintainable. The High Court had ordered dismissal of the Petitions
seeking quashing of F.I.R.s against the Petitioners. This submission is twofold. Firstly,
the inherent powers of the High Court must mandatorily be exercised in absence of a
prima facie case. Secondly, Petitioner No.2 lacks the required mens rea and actus reus
needed to ascertain his culpability.
2.1 THAT

THE INHERENT POWERS OF THE

HIGH COURT

MUST MANDATORILY BE

EXERCISED IN ABSENCE OF A PRIMA FACIE CASE

In a catena of cases,57 the Apex Court has held that while exercising inherent
power for quashing the F.I.R., it is for the High Court to take into consideration any
special features which appear in a particular case and to consider whether it is
expedient and in the interest of justice to permit a prosecution to continue58. Further,
the extraordinary or inherent power does not confer any arbitrary jurisdiction on the
Court.59 Where chances of an ultimate conviction is bleak and no useful purpose is
likely to be served by allowing a criminal prosecution to continue, the Court may
quash the proceedings.60 Therefore, while exercising its powers, the High Court would
be justified to quash any proceeding if it finds continuance of it amounts to abuse of
the process of Court61 or quashing of these proceedings would otherwise serve the
ends of justice.62 It is submitted that in the instant case, there is a need for quashing of
the F.I.R., as the conditions for imposing criminal liability are not satisfied. It is a
settled law that a person may not be convicted of a crime unless the Prosecution
proves beyond a reasonable doubt the culpability.63 In other words in every case the
two elements of crime: actus reus and mens rea have to be proved. Therefore, the

57

R.P. Kapur v. State of Punjab, AIR 1960 SC 866; Dinesh Dutt Joshi v. State of Rajasthan and Anr.,
(2001) 8 SCC 570; Central Bureau of Investigation v. A. Ravishankar Prasad and Ors., (2009) 6 SCC
351; State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 Supp (1) SCC 335.
58
Kamadev Naik v. State of Orissa, 1994 (3) Crimes 248 (248).
59
State of Maharasthra v. Ishwar Piraji Kalpatri, 1996 CrLJ 1127 (SC); Rupal Deo Bajaj v. Kanwar Pal
Singh Gill, AIR 1996 SC 309; Medchl Chemicals and Pharma Pvt. Ltd. v. Biological E. Ltd., AIR 2000
SC 1869; Ram Nath Marethia Reg Man, United India Insuarance Co. Ltd. v. Shashin H. Bhavsar, 2002
(4) Crimes 502 (508) (Guj); Alok Kumar Mitra Mustagi v. State of West Bangal, 2002 (4) Crimes 337
(340,341) (Cal); Shankar Lal v. State, 2003 (4) Crimes 410 (Raj); Sanapareddy Maheedhar Seshagiri v.
State of Andhra Pradesh, 2008 CrLJ 1375 (1384,1385) (SC).
60
Madhavrao J. Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors., (1998) 1 SCC 18.
61
Janata Dal v. H.S. Chowdhary and Ors., (1992), 4 SCC 305.
62
State of Karnataka v. M. Devendrappa and Anr., (2002) 3 SCC 89.
63
Halsburys Laws of England, 1374 (5th ed., Vol. 11.3, LexisNexis Butterworths 2010).
9

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


inherent powers of the High Court must mandatorily be exercised in absence of a
prima facie case.
2.1.1 THAT PETITIONER NO. 2 LACKS THE REQUISITE MENS REA AND ACTUS REUS
The criminal act must have a force behind it.64 Our legal system embodies the maxim
actus non facit reum nisi mens sit rea65 i.e., the act does not make one guilty unless
the mind is also guilty.66 Thus, mens rea forms one of the most important ingredients
of criminal liability.67 The physical element of the crime is called the actus reus.68 A
person must participate in all the acts necessary to constitute a particular crime in
order to be guilty thereof.69 In the instant case, there has been no establishment that
the Petitioner No. 2 was responsible for the alleged buying of coke. Petitioner No. 2
devised an automated bot that ordered 20 units of Coke from Internet sites that
serviced his area the moment it was offered on a 5% or more discount. The code for
the bot included his payment details and delivery address, so the entire transaction was
automatic and seamless. The bot accidently ordered Coke from a decoy website
setup by the police to catch drug peddlers and that had brought the police to his door
step and led to the registration of an FIR against Petitioner No. 2.70 Thus the bot was
capable of acting without anyone immediately directing that action 71 and was
autonomous.72 Nowhere in the entire process was Petitioner No. 2 even remotely
involved and neither did he have any intention to buy the cocaine. It is worthwhile to
mention that a similar situation was reported in which an automated online shopping
bot by the name of Random Darknet Shopper was programmed and instructed to
shop on a darknet market containing, inter alia, illegal items. Criminal liability was
not imposed on the developers as it was held that they did not have the required mens

64

State v. B.D. Meattle, AIR 1957 Punj 74.


State Of Rajasthan v. Shera Ram @ Vishnu Dutta, (2012) 1 SCC 602; Kartar Singh v. State Of
Punjab, (1994) 3 SCC 569; R. Balakrishna Pillai v. State Of Kerala, (2003) 9 SCC 700; T.N.
Lakshmaiah v. State Of Karnataka, (2002) 1 SCC 219; Siddhapal Kamala Yadav v. State Of
Maharashtra, (2009) 1 SCC 124; Hari Singh Gond v. State Of M.P, AIR 2009 SC 31; S. Jagadeesan v.
The State, on 9 April, 2003 (Unreported); Assistant Commercial Taxes v. Agarwal Steel
Industries, 2006 (146) STC 41; Assistant Commercial Taxes v. Kanoi Dal Mill 2006, (146) STC 426 .
66
The Digest 17 (1st ed., Vol 14 (2), London Butterworths and Co. Ltd. 1993).
67
State of Maharasthra v. Mayer Hans George, AIR 1965 SC 722.
68
Per Buckley J, in Re London and Globe Finance Corporation Limited [1903] 1 Ch 728, at 732.
69
Scott v. Com., Ky. 353, 197 S.W. 2d 774 (1946).
70
The Moot Proposition, para18.
71
Cf. J. H.Moor, The Nature, Importance, and Difficulty of Machines Ethics IEEE Intelligent
Systems, 31:4, 2006, pp. 18-21.
72
Ronald C. Arkin, Intelligent Robotics and Autonomous Agents, Massachusetts Institute of
Technology Press 2004.
65

10

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


rea.73 Therefore, it may be ascertained that the bot created by Petitioner No. 2 was an
autonomous machine. These entities are self-directed toward a goal in that they do not
require outside control, and are able to make a decision on a set of rules and/or
limitations based on information that it deems important to the decision process.74
Making such decisions about rules, however, is accomplished by way of programming
algorithms into a software program, where the machine can learn and thus choose
which means to use or pursue goals based on the different types of programming
platforms75 and approaches.76 With an autonomous machine, the machine is merely
finding a route that it deems correct, given its programming structures and
experience.77
The proof of a mans intention can be probed by determining whether there is any
reasonable interpretation of his actions other than the hypothesis that he intended the
consequences.78 Since in the instant case, the actions of the bot were not anticipated to
result in buying of cocaine, such an action cannot be attributed to the developer of the
bot. It may further be noted that the F.I.R. against Petitioner No. 2 has been filed
under S. 22 of the NDPS Act. S. 22 of the NDPS Act penalizes the manufacture,
possession, sale, purchase, transport, inter-state import or export of Psychotropic
Substances. Therefore, the actus reus of the crime is made out if there is the
manufacture, possession, sale, purchase, transport, inter-state import or export of the
Psychotropic Substance. In the instant case, the accidental purchase of Cocaine instead
of the aerated beverage Coke was an accidental action taken up the autonomous bot
devised by Petitioner No. 2. The drug allegedly purchased was therefore Cocaine.
It is a matter of fact that Cocaine is not a Psychotropic Substance. S. 2 (xxiii) of NDPS
Act defines a Psychotropic Substance as those specified in the Schedule. However,
the Schedule of the Act does not include Cocaine or any form Coca derivative.
Therefore, the charges set out in the F.I.R. are wrongly framed. This is reflective of
the lackadaisical approach of the Police in the instant case. This view has been iterated
by the Bombay High Court which held, that a substance which is not specified in the

73

Jeremy Byellin, Whos liable for a bots criminal acts?, 14 January 2015 available at
http://blog.legalsolutions.thomsonreuters.com/corporate-counsel/whos-liable-for-a-bots-criminal-acts/.
74
U.S. Department of Defense. (2011) Unmanned Systems Integrated Roadmap FY 2011-2036,
available at: http://www.aviationweek.com/media/pdf/UnmannedHorizons/usroadmap2011.pdf.
75
Cf.Lin, Bekey and Abney, Autonomous Military Robotics: Risk, Ethics, Design, p. 66.
76
W. Wallach, and C. Allen. Moral Machines: Teaching Robots Right from Wrong, Oxford University
Press, 2009, pp. 83-124.
77
L. Floridi, The Philosophy of Information, Oxford: Oxford University Press, 2011.
78
Glanville Williams, Text Book Of Criminal Law, (2nd Edn., Universal Law Publishing,1999).
11

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


Schedule cannot be punished under S. 22.79 Further, when Petitioner No. 2 was
arrested by the Police, it is a matter of fact that he had no possession of the drug as
alleged in the F.I.R. It is a settled law80 that possession of the drug is essential for
establishing a prima facie case against the Accused, therefore the F.I.R. is deemed to
be quashed. The facts of the present case depict an unfortunate plight of Petitioner No.
2 and also expose the reality as to how the accused got trapped into procedural rigours
despite having a very strong case on merits. Therefore, the quintessential ingredients
for ascertaining criminal liability are not made out against Petitioner No.2.
2.1.2 THAT THE CODE FUNCTIONED AUTONOMOUSLY
Petitioner No. 2 had created a code to enable him to search for online markets
supplying coke (an aerated beverage) in his area of residence the moment it was
available on discount.81 The complexities in the functioning of more developed data
systems needs to be examined in order to ascertain the true nature of acts that are done
by them. A computer program is a detailed, step-by-step set of instructions telling a
computer exactly what to do.82 Ordinarily, such codes are created in a popular
programming-language called Python.83. Firstly, a back-end database is created of
websites satisfying certain constant parameters: coke and location of delivery, in
the instant case. Secondly, the constant parameters are inserted into the system: the
cost price of coke, recipients address and payment details, in the instant case.
Thirdly, the script contacts (pings) the database on regular intervals to ascertain the
changing parameter available on the websites: the selling price of coke, in the
instant case. Fourthly, the script performs autonomous calculations to ascertain if the
given condition is satisfied: the changing selling price of coke was compared with
the cost price of coke to calculate the discount, in the instant case. Fifthly, the
discount is compared with the expected result: the expected result is 5% or more
discount on the cost price, in the instant case. Sixthly, as soon as the above condition
is satisfied, the code initiates the action it is expected to perform: an order for 20 units
of coke was placed on the decoy website, in the instant case.
The entire execution of the programme is autonomous insofar as the user creating the
code does not instruct the programme to function in a particular manner: the code

79

Pukhrambham Surchandsingh Ibohan Singh v. State of Maharashtra, 2008 SCC OnLine Bom 1266.
Shyam Babu Vishwakarma @ RamBabu alias Shyam Babu v. State of Uttar Pradesh, 2012 (1) RCR
(Criminal) 750; Salimkhan Shabbirkhan Pathan v State of Gujarat, 2012 Indlaw GUJ 1090.
81
The Moot Proposition, para 18.
82
Zelle, J., Python Programming: An Introduction to Computer Science, Computers & Programs, p.2.
83
Lamber, K.A., Fundamentals of Python, Why Python?, p. xiv.
80

12

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


functions on the basis of the input given and the output expected. The list of websites
(back-end database) is arrived at automatically by the code by searching for websites
matching the keyword provided. Once the code is written, it checks its back-end
database for certain conditions specified by the creator.84 The conditions depend on the
constant parameter provided by the creator and the changing parameter provided
by the website.85 Once the condition is satisfied, it executes the output without external
assistance.86 As soon as a discount of 5% or more was available, the payment details,
along with Petitioner No. 2s address, were automatically given to the website. This
led to the order of coke being placed on the decoy website. Therefore, the bot devised
by Petitioner No.2 acted independently.
In light of the above presented arguments, the SLP filed under Article 136 of the
Constitution of India, 1950 against the decision of the Honble Punjab and Haryana
High Court in the matter of quashing of F.I.R. against Petitioner No. 2 is maintainable.
Petitioner No. 2 is not responsible for the actions of the bot created by him.

84

Cf. S. Matteo, D. Marino and G.Tamburrini Learning Robots Interacting with Humans: From
Epistemic Risk to Responsibility AI andSociety, 22, 2008, pp. 309-311.
85
Thomas Bangert v London South Bank University, [2010] EWHC 2315 (QB)
86
A. Beaver Moral Machines and the Threat of Ethical Nihilism in P. Lin, K. Abney and G. A.
Bekey (eds.) Robot Ethics: The Ethical and Social Implications of Robotics, MIT Press: 2012, pp. 333344.
13

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


3.

THAT THE ORDINANCE PROMULGATED BY THE PRESIDENT IS NOT LEGALLY


TENABLE.

The Writ Petition seeks to challenge the validity of the Presidential Ordinance dated
20.02.15. The submissions made by Petitioner No. 1 are fourfold. Firstly, the Writ
Petition is maintainable. Secondly, the Ordinance is ultra vires Article 14 of the
Constitution. Thirdly, the Ordinance is ultra vires Article 19(1)(g) of the Constitution.
3.1. THAT THE INSTANT WRIT PETITION IS MAINTAINABLE
In a country governed by Rule of law, the power of Judicial Review is supreme.
Similar to ordinary laws, the Courts are empowered to review the satisfaction of the
President to promulgate Ordinances when the same has been exercised arbitrarily and
unsustainably. Writs may be issued to strike down an Ordinance violating Art. 14, on
ground of arbitrariness and unreasonableness and for violating Art. 19(1)(g), as an
unreasonable restriction on the right to trade. The power of the President to
promulgate Ordinances during recess of the Parliament has been enshrined in Art. 123
of the Constitution. The President is essentially not the repository of the legislative
power of the Union.87 The Ordinance making power cannot be used to circumvent the
law-making powers of the Legislature.88 This power is exercisable only when both
Houses of Parliament are not in session and it has been conferred ex necessitate in
order to enable the executive to meet an emergent situation.89
3.1.1. THAT PRESIDENTIAL SATISFACTION IS SUBJECT TO JUDICIAL REVIEW
The power to promulgate Ordinances can only be exercised after due consideration of
the object sought to be regulated. The Presidential satisfaction is not wholly outside
judicial purview and the courts may assess the satisfaction inter alia on arbitrariness,
vagueness and as based on irrelevant considerations. It is a settled law a prima facie
case may be made out for non-existence of circumstances which allegedly necessitated
issuance of the Ordinance.90 Moreover, the power of courts to review Ordinances
violating fundamental rights is unconditional. In a country governed by Rule of law,
all executive actions are subject to Judicial Review.91 To this end, the courts can
87

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


D. C. Wadhwa (Dr.) v. State of Bihar, AIR 1987 SC 579. See: Krishna Kumar Sinha v. State of
Bihar, 1998 (5) SCC 643.
89
R.K. Garg and Ors. v. Union of India and Ors., (1981) 4 SCC 675; T. Venkata Reddy v. State of
Andhra Pradesh, (1985) 3 SCC 198.
90
Gyanendra Kumar and Anr. v. Union of India and Ors., 1996 Indlaw DEL 308.
91
Judicial Accountability v. Union of India and Ors., (1991) 4 SCC 699; Smt. Indira Nehru Gandhi v.
Shri Raj Narain and Anr., (1975) Supp. SCC 1; Council of Civil Service Union v. Minister for the Civil
88

14

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


question Presidential satisfaction and review their decision.92 It must satisfy the
principles of vagueness,93 arbitrariness,94 reasonableness95 and public interest96.
Where the Presidential satisfaction is based on irrelevant consideration,97 extraneous
grounds98 and without circumspection and objectivity99, the courts can review the
decision. A decision which is clearly unsustainable can also be reviewed. 100 Primary
law-making authority is the Legislature and not the Executive.101 The power of
promulgation has to be used only to meet extraordinary and grave situations.102 The
power thus cannot be exercised in a manner that would constitute fraud on the
Constitution and only be exercised by striking a balance between governmental
powers and individual liberties.103 The legislative power should not be exercised to
usurp the function of the legislature.104 The Constituent Assembly deliberately chose
Service, [1984] 3 All E.R. 935; Mahabir Auto Stores & Ors. v. Indian Oil Corporation & Ors., J.T.
1990 1 S.C. 363; Chief Settlement Commissioner, Rehabilitation Department, Punjab and Ors. v. Om
Parkash & Ors., [1968] 3 SCR 655 660-661; Eshugbayi Eleka v. Officer Administering the Government
of Nigeria, [1931] AC 662 670; State of M.P. v. Bharat Singh, AIR 1967 SC 1170; L. Chandra Kumar
v. Union of India, (1997) 3 SCC 261.
92
A.K. Roy v. Union of India, AIR 1982 SC 710.
93
Bhagat Ram Sharma v. Union of India & Ors., AIR 1988 SC 740; State of Rajasthan v. Mangilal
Pindwal, AIR 1996 SC 2181; Koteswar Vittal Kamath v. K.Rangappa Baliga & Co., AIR 1969 SC 504;
State of Uttar Pradesh & Ors. v. Hirendra Pal Singh & Ors., (2011) 5 SCC 305; Ameer-un-Nissa
Begum v. Mahboob Begum & Ors., AIR 1955 SC 352; B.N. Tewari v. Union of India & Ors., AIR
1965 SC 1430; India Tobacco Co. Ltd. v. CTO, Bhavanipore & Ors., AIR 1975 SC 155; Indian Express
Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India & Ors., AIR 1986 SC 515; West U.P. Sugar
Mills Assn. v. State of U.P., AIR 2002 SC 948; Zile Singh v. State of Haryana & Ors., (2004) 8 SCC 1;
State of Kerala v. Peoples Union for Civil Liberties, Kerala State Unit & Ors., (2009) 8 SCC 46;
Behram Khurshid Pesikaka v. State of Bombay, AIR 1955 SC 123; Mahendra Lal Jaini v. State of Uttar
Pradesh & Ors., AIR 1963 SC 1019; Harbilas Rai Bansal v. State of Punjab & Anr., AIR 1996 SC 857;
Ramana Dayaram Shetty v. The International Airport Authority of India, [1979] 3 SCR 1014; Kasturi
Lal Lakshmi Reddy v. State of Jammu and Kashmir, [1980] 3 SCR 1338; Col. A.S. Sangwan v. Union
of India, [1980] Supp. SCC 559.
94
State of Tamil Nadu & Ors. v. K Shyam Sunder & Ors., AIR 2011 SC 3470; Ajay Hasia & Ors. v.
Khalid Mujib Sehravardi & Ors., AIR 1981 SC 487; E.P. Royappa v. State of Tamil Nadu & Anr., AIR
1974 SC 555; Smt. Meneka Gandhi v. Union of India & Anr., AIR 1978 SC 597; M/s. Sharma
Transport Rep. by D.P. Sharma v. Government of A.P. & Ors., AIR 2002 SC 322; Bombay Dyeing &
Manufacturing Co. Ltd. v. Bombay Environmental Action Group & Ors., AIR 2006 SC 1489;
Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board & Ors., AIR 2007 SC 2276; Grand
Kakatiya Sheraton Hotel and Towers Employees & Workers Union v. Srinivasa Resorts Limited &
Ors., AIR 2009 SC 2337.
95
Maneklal Chhotalal & Ors. v. M.G. Makwana & Ors., 1967 (3) SCR 65.
96
A.K. Roy v. Union of India, AIR 1982 SC 710.
97
Indian Nut Products v. Union of India, (1994) 4 SCC 269, 275.
98
State of Bihar v. Union of India and Anr., 1970 2 SCR 522; State of Rajasthan and Ors. v. Union of
India, 1977 AIR 1361.
99
Dr. A.K. Shaihar and Ors. v. Vice Chancellor, Benares Hindu University, (1961) 3 SCR 386.
100
State of Rajasthan v. Union of India, 1977 AIR 1361; Ramesh Chand Sharma and Anr. v.
Commissioner of Police and Ors., 2005 Indlaw DEL 367; Reliance Airport Developers Pvt. Ltd. v.
Airport Authority of India & Ors., [2006] RD-SC 758; Cellular Operators Association v. Union of India
& Ors., [2002] RD-SC 552.
101
Gurudevdatta VKSSS Maryadit and Ors. v. State of Maharashtra and Ors., AIR 2001 SC 980.
102
Constituent Assembly Debates, Vol. 8, Part V, Chapter III, pp. 201 to 217.
103
K. Krishnankutty and Ors. v. State of Kerala, AIR 1985 Ker 148.
104
D.C. Wadhwa v. State of Bihar, 1987 AIR 579; R.C. Cooper v. Union of India, 1970 AIR 564.
15

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


to vest in the President legislative-power during Parliamentary recess instead of a
general power available continually.105 This indicates the legislative intent to limit the
power of the President as to be exercised only limitedly.
In the instant case, the Ordinance has been promulgated arbitrarily. An objective
inquiry into the nature of Artificial Intelligence reveals that it operates primarily
autonomously.106 The effect it has depends on the intent of the person putting it to
action. Artificial Technology neither facilitates nor instigates commission of crimes
but is merely meant to advance technology by developing intelligent systems. 107 The
promulgation is unreasonable and couched in an imprecise and vague language. An
unqualified prohibition on Artificial Technology-based products is unsustainable.
Artificial Technology is an intrinsic element of common products. The ubiquity of the
technology can be illustrated by naming a few devices premised on AI: smart
phones,108 search engines109, online maps110, televisions,111 cars,112 nuclear reactors,113
medical equipments,114 financial systems for stock markets,115 satellites116. A
prohibition on Artificial Intelligence largely defeats public purpose. AI already plays a
prominent role in military operations117, bank software118 and air traffic control119. AI

105

Art. 123 has been borrowed from Art. 42, The Government of India Act, 1935. A similar provision
empowering the President to promulgate any time was deliberately omitted in the current Constitution.
106
Supra Issue 1.4 at p. 6
107
Grosz, Barbara and Davis, Randall, A Report to ARPA on Twenty-First Century Intelligent
Systems, Introduction, para 4.
108
Burgess, Matt, Artificial Intelligence: Future Smartphones Will Know Your Mood, Factor Tech,
available et: http://factor-tech.com/connected-world/4751-artificial-intelligence-future-smartphoneswill-know-your-mood/.
109
McCallum, Andrew et al, A Machine Learning Approach to Building Domain-Specific Search
Engines.
110
Wyszynski, K., Google Sets a New Landmark in Creating an Artificial Intelligence,
Articles.Informer.com.
111
Prabhala, S. and Ganapathy, S., Emerging Artificial Intelligence Application: Transforming
Television into Smart Television Semantic Methods for Knowledge Management and Communication
Studies in Computational Intelligence, Vol. 381, 2011, pp 311-318.
112
Rathod, S.R., An Autonomous Driverless Car: An Idea to Overcome the Urban Road Challenges,
Journal of Information Engineering and Applications, Vol.3, No.13, 2013, pg. 34.
113
The Pressurized Water Reactor of the power plan is checked for safety and efficiency using
Artificial Intelligence. See: Soares De Almeida, J.C., Application of Artificial Intelligence Techniques
in Modeling and Control of a Nuclear Power Plant Pressurizer System.
114
AI is used for patient monitoring and medical diagnosis. See: Weiss J.C. et al, Machine Learning
for Personalized Medicine: Predicting Primary Myocardial Infarction from Electronic Health
Records, Tatara, E., Cinar, A.: Interpreting ECG Data by Integrating Statistical and Artificial
Intelligence Tools, IEEE Mag. on Eng. Med. and Biol. 21(1), 3641 (2002).
115
Lee, K.C., Kim, H.S.: A Fuzzy Cognitive Map-Based Bi-Directional Inference Mechanism: An
Application to Stock Investment Analysis, Intl. Sys. in Acct. Fin. and Mang, 6, 4157 (1997)
116
Disaster-monitoring satellites effectively employ AI through remote-sensing and aerial photography
to avert and predict disasters. See: Haupt, Sue E., Pasini, A., Artificial Intelligence Methods in the
Environmental Science, Springer Netherlands (2009), p. 3.
117
AI is used in unmanned aerial vehicles in search, rescue and destroy missions. See: Gallimore, J.J.,
Prabhala, S.: Creating Collaborative Agents with Personality for Supervisory Control of Multiple
16

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


has the potential to bring great value to the developing world in a wide array of areas,
including healthcare, education, transport and agriculture.120 It has been executed
without due regard to the benefits arising from its implementations. Stargazer too
offered psychological assistance to those bereaved by the death of their kith and kin
and not instigate its users to commit crimes.
It is submitted that the Presidential satisfaction was arbitrary and not based on relevant
considerations. The Ordinance is unsustainable inasmuch as Artificial Intelligencebased codes and hardware are an intrinsic element of a wide-range of common
products.
3.1.2. THAT

AN

ORDINANCE

VIOLATING FUNDAMENTAL RIGHTS IS SUBJECT TO

JUDICIAL REVIEW

An Ordinance stands on the same footing as legislative laws. The right to move the
Supreme Court under Art. 32 for alleged violation of Fundamental Rights by an
Ordinance remains preserved.
An Ordinance is a law.121 It has the same force and effect as an Act of Parliament122
and is consequently subjected to the limitations ordinarily applicable to such laws.123
The Ordinance is not an executive action and is clothed with all the attributes of an
Act of Legislature carrying with it all its incidents, immunities and limitations under
the Constitution.124 The courts can examine the constitutional validity of laws under
the power of Judicial Review.125 Art. 32 of the Constitution safeguards the right to
move the Supreme Court to strike-down any law violating fundamental rights of
citizens.126 This power of Judicial Review to examine the Ordinance on the touchstone
of fundamental rights is part of the basic structure.127
UCAVs. In: Human Factors and Medicine Panel Symposium on Human Factors of Uninhabited
Military Vehicles as Force Multipliers, Biarritz, France (2006)
118
CNN,
AI
Set
to
Exceed
Human
Brain
Power,
available
at
http://edition.cnn.com/2006/TECH/science/07/24/ai.bostrom.
119
Srinivasan, D., Xin, J., Chue, R.L.: Evaluation of Adaptive Neural Network Models for Freeway
Incident Detection. IEEE Tran. on Intl. Trans. Sys. 5(1), 111 (2004).
120
Eagle, Nathan and Horvitz, Eric, Artificial Intelligence for Development, Technical Report SS-1001; Thrun, Sebastian, Self-Driving Carsan AI-Robotics Challenge.
121
Art. 13, the Constitution of India, 1950 states that law includes inter alia Ordinance.
122
Art. 123(3), the Constitution of India, 1950. See: R.K. Garg and Ors. v. Union of India and Ors.,
(1981) 4 SCC 675.
123
Krishna Kumar Singh and Anr. v. State of Bihar, AIR 1998 SC 2288; P. Venkateseshamma v. State
of Andhra Pradesh, AIR 1976 AP 1; Makhan Singh v. State of Punjab, 1964 CriLJ 21.
124
K. Nagaraj v. State of Andra Pradesh, (1985) 1 SCC 524.
125
E.S. Crown, Essay on the Judicial Review in Encyclopedia of Social Sciences, Vol. VII, p. 457;
See: Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461, State of Madras v. V.G. Row, AIR
1952 SC 196, A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
126
Additional District Magistrate, Jabalpur v. Shivakant Shukla and Ors., 1976 AIR 1207; Sree Mohan
Chowdhury v. the Chief Commissioner, Union Territory of Tripura, [1964] 3 SCR 442, Makhan Singh
17

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


In the instant case, the Writ Petition has been filed under Art. 32 seeks to allow the
Honble Supreme Court to assess the Ordinance and pass appropriate writs to make it
commensurate with the Indian Constitution.128
It is submitted that the Ordinance is subject to Judicial Review for violation of Art. 14
and Art. 19(1)(g) of the Constitution of India, 1950.
Thus, it is submitted that the instant Writ Petition is maintainable under Art. 32.
3.2. THAT THE ORDINANCE IS ULTRA VIRES ARTICLE 14 OF THE CONSTITUTION OF
INDIA, 1950
Art. 14 of the Constitution guarantees equality before the law and equal protection of
the law.129 As part of the basic structure,130 Art. 14 acts as a protection against
arbitrariness, injustice, unfairness and unreasonableness131 and is premised on Diceys
Rule of Law132. The States action are required to be fair and informed by reason.133
In the instant case, the Ordinance promulgated is in violation of principles of
reasonableness. It bans all forms of commercial research, sale and dissemination of
AI-based software effectively bringing the IT industry to a standstill. Punitive and
prohibitory laws must be carefully worded to define in clear and precise terms its
scope to prevent misuse and affix liability in exact terms.134 The inaccurate language
of the Ordinance gives an unbridled and unqualified power to the authorities.
It is submitted that the imprecise terminology coupled with its devastating
ramifications contributes to the unreasonableness of the Ordinance.
Thus, it is submitted that the Ordinance is ultra vires Art. 14 of the Constitution.

v. State of Punjab, [1964] 4 SCR 797; Dr. Ram Manohar Lohia v. State of Bihar and Ors., [1966] 1
SCR 709.
127
Kesavananda Bharati v. State of Kerala and Anr., AIR 1973 SC 1461, Satya Pal Singh and Ors. v.
State of Uttar Pradesh and Ors., 2000 Cri LJ 569; Subrata Chattoraj and Anr. v. Union of India and
Ors., (2014) 8 SCC 796.
128
State of Nagaland v. Ratan Singh, (1966) 3 SCR 830, 851, 852; Govind v. State of Madhya Pradesh
& Anr., (1975) 3 SCR 946, 955-56.
129
The Constitution of India, 1950, Art. 14 states: Equality before law: The State shall not deny to any
person equality before the law or the equal protection of the laws within the territory of India.
130
Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.
131
E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555; Maneka Gandhi v. Union of India, AIR
1978 SC 597; R.D. Shetty v. Airport Authority, AIR 1979 SC 1628.
132
Dicey, Law of Constitution (10th edition), pp. 202-203.
133
Girish v. State Of Karnataka, ILR 1994 KAR 439, 1994; M/s Dwarkadas Marlaria and Sons v. Board
of Trustees of the Port of Bombay, (1989) 3 SCC 293; Council of Civil Service Union v. Minister for
the Civil Service, (1984) 3 All E.R. 935; Ramana Dayaram Shetty v. The International Airport
Authority of India, (1979) 3 SCR 1014.
134
Commonwealth v. Hill, 11 Mass. 136 (1814); Michael, (1840) 2 Mood. 120, 169 E.R. 48; Johnson v.
State, 38 So. 182, 183 (Ala. 1904); People v. Monks, 24 P.2d 508, 511 (Cal. Dist. Ct. App. 1933);
United States v. Bryan, 483 F.2d 88, 92 (3d Cir. 1973); Boushea v. United States, 173 F.2d 131, 134
(8th Cir. 1949).
18

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


3.3

THAT

THE

ORDINANCE

IS

ULTRA

VIRES

ARTICLE 19(1)(G)

OF

THE

CONSTITUTION OF INDIA, 1950


A restriction which, instead of furthering interest of the public, has damaging
ramifications on the general public is not reasonable. Moreover, when a drastic
restriction is placed, where a less severe restriction could achieve the same object, the
restriction is not reasonable. Public interest is not served by causing severe hardships
to a large number of citizens. A straitjacket prohibition falls foul of procedural
reasonability.
3.3.1 THAT THE ORDINANCE PLACES AN UNQUALIFIED EMBARGO ON AI
While evaluating the restriction, regard should be given to its direct and immediate
impact on Fundamental Rights of the citizens affected thereby, the necessity of the
restrictions and the inherently pernicious nature of the act prohibited.
The Indian Constitution guarantees to all citizens the right to practice any profession,
or to carry on any occupation, trade or business.135 The right is qualified to the extent
that reasonable restrictions may be imposed in the interest of the general public.136
While assessing the restriction, courts must consider the problem faced and the
solution sought to curb the problem.137 The restriction placed must have a reasonable
nexus with the underlying purpose sought to be achieved. 138
In the instance case, the Ordinance strictly prohibits research, sale and distribution of
Artificial Intelligence-based hardware and code. The promulgated ordinance, by
applying a straitjacket prohibition on artificial intelligence and its variants, wholly
restricts the application of Art. 19(1)(g). By banning commercial research, the
ordinance prevents citizens from engaging in any profession or occupation relating to
development and experimentation of Artificial Technology, which forms a major
chunk of the Information Technology Sector. The restriction creates bottlenecks in the
growth of the IT Sector and adversely affects lives of those engaged in the
telecommunications sector along with 87 million users of smartphones. 139 The effects
of the blanket ban would be felt by the Indian Information Technology Sector as a
whole; those services that dont directly employ AI but are cognate to software that

135

The Constitution of India, 1950, Art. 19(1)(g).


Ibid.,, Art. 19(6).
137
Jyoti Pershad v. The Administrator for the Union Territory of Delhi, 1962 SCR (2) 125.
138
State of Madras v. V.G. Row, AIR 1952 SC 196.
139
IAMAI Annual Report 2012-2013, p. 21.
136

19

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI


uses AI would be thrown out of gear as well.140 Prohibition on sale and dissemination
of hardware effectively throttles the right to conduct ones trade and business without
restrictions too. The solution sought doesnt comprehensively address the problem of
misuse of technology. In such instances, technology is required to be regulated and
controlled, and not prohibited. The nexus between the objective sought and the
solution employed isnt tenable either. The act prohibited isnt pernicious per se.
Those that misuse AI must be brought to the book instead of banning the technology
in toto. It is submitted that public interest is not furthered by causing hardships to the
large number of users of AI-based entities. The restriction fails to adequately address
the problem of misuse of technology.
3.3.2

THAT

A DRASTIC RESTRICTION HAS BEEN IMPOSED WHERE A LESS SEVERE

RESTRICTION WOULD SUFFICE

It must not be possible to achieve public interest without achieving a less severe
restraint.141 The burden of proving that a total ban on the exercise of the right alone
may ensure the maintenance of the interest of general public lies on the State.142
In the instant case, the disastrous ramifications outweigh the necessity of the
restrictions. A few stray incidents of misuse of AI do not justify its outright
prohibition. A restriction may only be made in the interest of the general public where
a less drastic restriction would not ensure furtherance of interest.143 To discourage
citizens from blaming machines for offences, Respondent No. 2 should strengthen its
cyber laws to attribute mens rea to the operator of the programme. The alleged risks
associated with AI may also be regulated by introducing licences to operators and
users of AI: a less drastic and a more viable solution than banning. It is submitted that
the restriction is drastic and a less severe restriction of regularization of AI serves
public interest instead of a blanket prohibition.
In light of the above presented arguments, the sweeping prohibition of the Ordinance
coupled with the unreasonably harsh restrictions and imprecise language makes it
unreasonable deeming it ultra vires Article 14 and Article 19(1)(g) of the Constitution.

140

Sectors such as telecommunications, medical diagnosis, stock trading, remote-sensing, military


equipments rely on Artificial Intelligence. See: Russell, Stuart J.; Norvig, Peter, The State of the Art,
Artificial Intelligence: A Modern Approach (2nd ed.), p. 28.
141
Municipal Corporation of Ahmedabad v. Jan Mohammed Usmanbhai and Anr., 1986 SCR (2) 700.
142
State of Madras v. V.G. Row, AIR 1952 SC 196.
143
Mohd. Faruk v. State of Madhya Pradesh 1970 AIR 93; Narendra Kumar and Ors. v. Union of India,
1960 AIR 430; Chintaman Rao v. State of Madhya Pradesh, 1950 (SCR) 759,763; Maneklal Chhotalal
& Ors. v. M.G. Makwana & Ors., 1967 (3) SCR 65.
20

CHECKMATE 2015, ARMY INSTITUTE OF LAW, MOHALI

PRAYER
In light of the issues raised, arguments advanced and cases cited it is most humbly
prayed before this Honble CourtA. That the Order of the Honble Punjab and Haryana High Court dated
23.02.2015 be set aside and the F.I.R. against Petitioner No. 1 be quashed.
B. That the Order of the Honble Punjab and Haryana High Court dated
23.02.2015 be set aside and the F.I.R. against Petitioner No. 2 be quashed.
C. That the Ordinance dated 20.02.2015 be struck down.
Or grant such other relief as the court may deem fit in the light of justice, equity and
good conscience.
AND FOR THIS ACT OF KINDNESS THE PETITIONERS SHALL DUTY BOUND EVER PRAY.

Sd/-

Counsel for the Petitioners

21