MEMORANDUM ON BEHALF OF THE PETITIONER

TC - 17 (P)

8TH JAMIA MILLIA ISLAMIA NATIONAL ONLINE MOOT COURT

COMPITITION, 2020

IN THE SUPREME COURT OF WESTEROS

[PETITIONS UNDER ARTICLE 139-A OF THE CONSTITUTION OF WESTEROS]

TO BE HEARD THROUGH THE SUPREME COURT’S VIRTUAL PLATFORM

IN THE MATTER OF

ORGANISATION FOR COMMON CAUSE FOR POOR v. UNION OF WESTEROS

[Writ Petition (Civil) No. 123 of 2020]

Along-With

CATHERINE PEARSON v. UNION OF WESTEROS AND OTHERS

[Writ Petition (Civil) No. 234 of 2020]

Along-With

MICHAEL OLIVER v. UNION OF WESTEROS AND OTHERS

[Writ Petition (Criminal) No. 540 of 2020]

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND OTHER HON’BLE

JUSTICES OF THE SUPREME COURT OF WESTEROS

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

COVER PAGE .........................................................................................................................1

TABLE OF CONTENT .......................................................................................................2 - 3

INDEX OF AUTHORITIES ................................................................................................4 - 7

STATEMENT OF JURISDICTION .........................................................................................8

ARGUMENT ADVANCED..............................................................................................9 - 28

I. Whether the MHA Order dated 27.03.2020 is arbitrary, and the detention of such migrant
workers in pursuance of such order amounts to a violation of their fundamental rights? ……9

A. The order passed by the MHA must be declared arbitrary in nature .................................9

i. It violates Article 14 as it did not passed test of reasonableness .......................................9

ii. It violates Article 19(1)(d) as the restriction imposed is unreasonable ……………......10

iii. It violates Article 21 as it hampers the right to livelihood of the marginalised section of
the society ...........................................................................................................................11

B. The detention of migrant workers is in violation of their fundamental rights as the

detention is not in accordance of Article 22 …………………………………….
…………………….12

i. It is not in the accordance of procedure established by law under Article 21 ……….…13

ii. The act committed by the workers will fall under the purview of Section 81 of IPC ....14

II. Whether the suspension of labour laws by all the three states in the grab of incentivizing
(motivate/ encourage) economic activities vide order dated 26.04.2020 violates fundamental
rights of workers and subsequently the international labour organization conventions ratified
by the Union of
Westeros?........................................................................................................14

A. It violates the fundamental rights of the workers …………………...……….………….14

i. It violates right to equality ………………………………………...……………………15

ii. It violates right to freedom of association ……………………...…………………...…16

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iii. It also violates right to life and personal liberty of the workers, which is enshrined in
Article 21 ………………………………………………………………………………....16

a. It violates right to live with human dignity ..................................................................17

b. It violates right to livelihood …………………............................................................17

c. It violates Right to social security and protection of family …………........................18

d. It violates Right to health and Medical Care ……….……...........................................19

iv. It violates, right against exploitation which is enshrined in Article 23 of the constitution
of Union of Westeros ………………….………………………………………………….19

B. It also violates the International Labour Organization convention which has been ratified
by Union of Westeros …….………………………………….…………………………….20

III. Whether the sharing of medical data of COVID-19 Tested patients with a foreign
private company DMPL, violates Right to Privacy? …………...............................................21

IV. Whether all the 14 FIRs filed against Mr. Oliver is liable to be quashed and his article
entitled “The Ground Report” falls within the ambit of freedom of speech and expression of
the press? ………….................................................................................................................23

A. The Ground falls within the ambit of freedom of speech and expression of the press …24

i. Freedom of Press is a Fundamental Right under Article 19(1)(a) of the Westeros

Constitution ………………………………………………………………………………24

ii. The Restriction under Article 19(2) of Constitution is arbitrary and unreasonable …...26

iii. Act of Mr. Oliver is in accordance with PCI norms of Journalist Conduct, 2019 ……27

B. Mr. Oliver is not liable to be punished under Section 124-A of Westeros Penal Code and
Section 54 of Disaster Management Act ………..................................................................27

PRAYER .................................................................................................................................29

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INDEXOF AUTHORITIES

CASES

1. All India Bank Employees’ Association v. N.I. Tribunal [1962] AIR SC 171…….….
….16
2. Amnesty International v. Sudan [2000] AHRLR 297…………………………...…….
….25
3. Arjun Arora v. Emperor [1935] AIR All 295…….…….…………………….…….…….27
4. Arunachala Nadar v. State of Madras [1959] AIR SC 300 at 303……….…………….
….27
5. Bachchan Singh v State of Punjab [1982] AIR SC 1336….
……………………………….9
6. Balwant Singh v. State of Punjab [1995] AIR SC 1785…………….….….……...….27,
28
7. Bandhua Mukti Morcha v. Union of India [1984] 2 SCR 67……………….………….
….17
8. Baumgartner v. O.S. [1944] 322 US (673-74) ………………………………….…….
….25
9. Bennett Coleman & Co. v. Union of India [1973] AIR SC 106 at
128…………………….24
10. Bennett Coleman v. State of J. & K. [1975] Cr LJ 211………………………….…….
….25
11. Bennett Coleman v. Union of India [1986] AIR Bombay 321. ……….….
……………….25
12. Bilal Ahmed Kaloo v. State of Andhra Pradesh [1997] AIR SC 3483.…….…….….27, 28
13. Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni
[1983] 1 SCC 124…………………………………………………………...………….
…….….17
14. Brij Bhusan v. State of Delhi [1950] AIR SC 129………….……………………...….25,
26

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15. Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra Bose [1992] 2
SCR 267……...………………………………………………………………….…….
….18
16. Chintaman Rao v. State of Madhya Pradesh [1951] AIR SC 118……………………….10
17. Collector of Customs v. Sampathu Chettty [1963] AIR SC 316 (para 35) …….…….….26
18. Confederation of ex-servicemen association v. Union of India [2006] 8 SCC 399…….
….11
19. Consumer Education and Research Centre v. Union of India [1995] 3 SCC 42….11, 12,
19
20. CPIO v. Subhash Chandra Aggarwal [2019] AIR SCC 521………………….……....….10
21. D.T.C. v. D.T.C. Mazdoor Congress [1991] AIR SC 101……………………….…….
….17
22. Damyanti v. Union of India [1971] AIR SC 966……………………...….…….…….….16
23. Dwarka Prasad v. State of Uttar Pradesh [1954] AIR SC 224 at 227……………….….
….27
24. E. P. Royappa v. State of Tamil Nadu & Anr. [1974] AIR SC 555……………………….9
25. ESI Corporation v. Francis De Costa [1995] AIR SC 1811……………………...…….
….18
26. Express Newspapers v. Union of India [1958] AIR SC 578 (614) ………….
…………….24
27. George v. Stratton [1779] 21 St Tr 1046, 1223…………………………….…….…….
….13
28. Gobind v. State of Madhya Pradesh and Ors. [1975] 2 SCC 148………….…….…….
….22
29. H.B. Khare v. State of Delhi [1950] AIR SC 211………………….…………….…….
….26
30. Hamdard Dawakhana V. Union of India [1960] AIR SC 554………….
………………….25
31. I.R. Coelho v. State of Tamil Nadu [2007] AIR SC 861……………………………….
….22
32. In Re Harijai Singh [1997] AIR SC 73………….….………………………….
………….25
33. Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [1985] 1 SCC
641…….15
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34. Javed Habib v. the State of Delhi [2007] 96 DRJ 693…….……………………….….28

35. Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors. [2017] 10 SCC
1….23
36. Kedar Nath Singh v. State of Bihar [1962] AIR SC 955……….
………………………….28
37. Kharak Singh v. State of Uttar Pradesh [1963] AIR SC 1295………………….….….16,
22
38. L.I.C. of India v. Consumer Education and Research Centre [1995] 5 SCC 482.…….
….18
39. L.I.C. v. Manubhai D. Shah [1993] AIR SC 171………….……………………….….
….25
40. Maneka Gandhi v. Union of India [1978] SCR 2……….…………………….….13, 17, 24
41. Munn v. Illinois [1877] 94 US 113……………………………………………...…….
….13
42. Murlidhar Dayandeo Kesekar v. Vishwanath Pande Barde [1995] Supp 2 SCC 549.…...18
43. Nihrendu v. Emperor [1942] AIR FC 22, 26……….………………………………….
….27
44. Olga Tellis v. Bombay Municipal Corporation [1986] AIR SC 194………………….12,
17
45. Palko v. Connecticut [1937] 302 US 319……………………………………......…….
….24
46. Pankaj Butalia v. Central Board of Film Certification & Ors. [2015] 221 DLT
29……….28
47. Papnasam Labour Union v. Madura Coats Limited [1995] AIR SC 2200……….…….
….11
48. People’s Union for Civil Liberties v. Union of India [1997] 1 SCC 301.…….
………….22
49. People’s Union for democratic Rights v. UOI [1982] AIR SC 1473……….….…….….19
50. PUCL v. Union of India [1991] AIR SC 207…………………………………….…….
….22
51. R. Rajagopal v. State of Tamil Nadu [1994] 6 SCC 632…………….……………….22,
25
52. R. v. Sullivan [1968] 11 Cox Cases 55………….……………...……………………...
….27
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53. Ramlila Maidan Incident v. Home Secretary, Union of India [2012] 5 SCC…...…….22,
24
54. Ranigar v. Fogossa [1551] 75 Eng. Rep. 1………….……………………………...….
….13
55. Rex v. Basudev [1950] AIR SC 67……….….……………………………………….….26
56. Romesh Thapper v. State of Madras [1950] SCR 594…….………………………….25,
27
57. S. Rangarajan v. P. Jagjivan Ram and Ors. [1989] 2 SCC 574………….………….….
….26
58. Sakal Newspapers (Private) Ltd. v. Union of India [1962] AIR SC 315…...….…...…24,
25
59. Samira Kohli vs Dr Prabha Manchanda [2008] 2 SCC 1 Para 32…………………….….22
60. Sanjit Roy v. State of Rajasthan [1983] AIR SC 328…………………………….…….
….19
61. Satwant Singh Sawhney v. D. Ramarathnam and Ors. [ 1967] AIR SC
1836…………….10
62. Sharma Transport v. Government of Andhra Pradesh [2002] 2 SCC
188………………….9
63. Shayra Bano v. Union of India [2017] 9 SCC 1………….………………………...….
….15
64. State of Madras v. Champakam Dorairajan [1951] AIR SC 226……………….……...
….22
65. State of Punjab v. M.S. Chawla [1997] AIR SC 1225………………………….….….
….19
66. State of West Bengal v Anwar Ali Sarkar [1952] SCR 284………………….….
……….15
67. Sunil Batra v. Delhi Administration [1978] AIR SC 1675………….……….…….….
….19
68. Virendra v. The State of Punjab [1958] 1 SCR 308………………………….…....….….26
69. Vishambhar Dayal v. Emperor [1941] AIR Oudh 33……………………….…….….….27

STATUTES

1. The Constitution of India, 1950

2. The Indian Penal Code (IPC), 1860

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3. The Factories Act, 1945

4. The Industrial Disputes Act (IDA), 1947
5. The Payment of Wages Act, 1936
6. The Minimum Wages Act, 1948
7. The Bonus Act, 1965
8. The Employees’ State Insurance Act, 1948
9. The Information Technology Act, 2000
10. The Information Technology (Reasonable security practices and procedures and sensitive
personal data or Information) Rules, 2011
11. The Press Council of India (PCI) norms of Journalist Conduct, 2019

BOOKS

1. H.M. Seervai, Constitutional Law of India (4th ed., 1967)

2. Durga Das Basu, Commentary on the Constitution of India (8th ed., 2008)
3. M.P. Jain, Indian Constitutional Law (6th ed., 2010)
4. V.N. Shukla, Constitution of India (13th ed., 2017)
5. K.D. Gaur, Criminal Law: Cases and Materials (8th ed., 2015)
6. K.D. Gaur, Textbook on Indian Penal Code (6th ed., 2018)

ARTICLES & JOURNALS

1. Yash Vithlani & Keerthanaa B, “Analysing Preventive Detention Laws and Article 21”,
International Journal of Legal Developments and Allied issues, Volume 4 Issue 2, March
2018, www.ijldai.thelawbrigade.com
2. Mr. Kush Kalra & Mr. Bhanu Tanwar, “FREEDOM OF SPEECH AND EXPRESSION
AND THE OBLIGATION OF STATE TO PROTECT RIGHTS OF INDIVIDUAL”,
Bharati Law Review, July – Sept., 2016, Published in Articles section of
www.manupatra.com
3. K.D. Gaur, “CONSTITUTIONAL RIGHTS AND FREEDOM OF MEDIA IN INDIA”,
Journal of the Indian Law Institute, Vol. 36, No. 4 (October-December 1994), pp.429-
454, https://www.jstor.org/stable/43952367 (Accessed: 06-06-2020 13:14 UTC)
4. Sayed Aqa Raza, “Freedom of Speech and Expression as a Fundamental Right in India
and the Test of Constitutional Regulations: The Constitutional Perspective”, Published by
ResearchGate, publication at: https://www.researchgate.net/publication/306899769

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5. Romit Raja Srivastava, “TEST TO DETERMINE REASONABLE RESTRICTIONS

UNDER ARTICLE 19 OF THE CONSTITUTION OF INDIA”, Electronic copy
available at: http://ssrn.com/abstract=2135681
6. Ytharth Kumar & Sreyoshi Guha, “Sedition: Crucifixion of Free Speech and
Expression?”, Liberal Studies Journal, Volume 2 Issue 1, January-June 2017, ISSN:
2455-9857
7. Law Commission of India, “Consultation Paper on Sedition”, 30 August, 2018
8. Sougata Talukdar & Rakesh Mondal, “Law of Sedition: An Agent of Colonialism: A
Critique”, International Journal of Law, Volume 3 Issue 3, May 2017, Page No. 21-26,
ISSN: 2455-2194, www.lawjournals.org
9. R. K. Misra, “FREEDOM OF SPEECH AND THE LAW OF SEDITION IN INDIA”,
Journal of the Indian Law Institute, Vol. 8, No. 1 (JANUARY-MARCH 1966), pp.117-
131, https://www.jstor.org/stable/43949872 (Accessed: 07-06-2020 07:22 UTC)
10. Kruthika Venkatesh, “THE APPLICABILITY AND ENFORCEMENT OF SEDITION
LAWS IN INDIA VIS-À-VIS THE RIGHT TO FREE SPEECH AND EXPRESSION”,
INTERNATIONAL JOURNAL OF LEGAL DEVELOPMENTS AND ALLIED
ISSUES, VOLUME 4 ISSUE 2, March 2018 www.ijldai.thelawbrigade.com
11. Prenavpreet Kaur, “Sedition under Section 124-A of the Indian Penal Code: An
Analysis”, www.ijlmh.com ©2019 IJLMH, Volume 2 Issue 2, ISSN: 2581-5369

STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Westeros has the jurisdiction in this matter under Article 139-
A of the Constitution of Westeros which reads as follows:

139A. Transfer of certain cases. —

(1) Where cases involving the same or substantially the same questions of law are pending
before the Supreme Court and one or more High Courts or before two or more High Courts
and the Supreme Court is satisfied on its own motion or on an application made by the
Attorney-General of India or by a party to any such case that such questions are substantial

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questions of general importance, the Supreme Court may withdraw the case or cases pending
before the High Court or the High Courts and dispose of all the cases itself:

Provided that the Supreme Court may after determining the said questions of law return any
case so withdrawn together with a copy of its judgment on such questions to the High Court
from which the case has been withdrawn, and the High Court shall on receipt thereof,
proceed to dispose of the case in conformity with such judgment.

(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer
any case, appeal or other proceedings pending before any High Court to any other High
Court.

ARGUMENTS ADVANCED

I. WHETHER THE MHA ORDER DATED 27.03.2020 IS ARBITRARY, AND THE

DETENTION OF SUCH MIGRANT WORKERS IN PURSUANCE OF SUCH
ORDER AMOUNTS TO A VIOLATION OF THEIR FUNDAMENTAL RIGHTS?

[¶1] It is submitted that the MHA Order dated 27.03.2020 is arbitrary, and the detention of
such migrant workers in pursuance of such order amounts to a violation of their fundamental
rights. The petitioner seeks to establish that, (A) the order passed by the MHA must be

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declared arbitrary in nature; (B) the detention of migrant workers is violation of their
fundamental rights as it is not in accordance with Article 22.

(A) The order passed by the MHA must be declared arbitrary in nature

[¶2] It is submitted that the MHA order dated 27.03.2020 from the Central Government
which imposed restrictions on public movements on roads and highways must be declared as
unconstitutional as it arbitrary in nature, and to that effect, submissions are made that (i) it
violates Article 14 as it did not pass the test of reasonableness; (ii) it violates Article 19(1)(d)
as the restriction imposed is unreasonable; (iii) it violates Article 21 as it hampers the right to
livelihood of the marginalised section of the society.

(i) It violates Article 14 as it did not pass the test of reasonableness

[¶3] The Supreme Court has held that Article 14 embodies a guarantee against arbitrary State
actions and ensures fairness and equality in treatment. 1 The expression ‘arbitrary’ means in
an unreasonable manner, without adequate determining principle, not founded in the nature of
things, non-rational, not done or acting according to reason or judgement, depending on the
will alone.2 The order passed by the MHA is arbitrary in nature. As has been explained by
Bhagwati J in Bachchan Singh v State of Punjab3, Rule of law which permeates the entire
fabric of the Indian Constitution exclude arbitrariness. “Wherever we find arbitrariness or
unreasonableness there is denial of rule of law.” Article 14 enacts primarily a guarantee
against arbitrariness and inhibits state action, whether legislative or executive, which suffers
from the vice of arbitrariness. “Every state action must be non- arbitrary and reasonable.
Otherwise, the court would strike it down as invalid.”

[¶4] In arguendo, it is submitted that in the instant case, the MHA has been exercising the
policy and the discretion, without any proper measures as the steps taken by them is causing
serious problem to the marginalised sections of the society as now they have no any
alternative left for their survival. The order should have been passed by proper allocation of
the migrant workers as now because of the stringent lockdown they cannot move to any place
to overcome their starvation; the government left only one choice to them to stay in hunger
where they are and just lose their life as now the movement as per the order is illegal.

1
E. P. Royappa v. State of Tamil Nadu & Anr. [1974] AIR SC 555
2
Sharma Transport v. Government of Andhra Pradesh [2002] 2 SCC 188
3
Bachchan Singh v State of Punjab [1982] AIR SC 1336

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[¶5] However, the MHA exercised their power under Section 10(2)(l) of the Disaster
Management Act to control the spread of the corona virus but the order lack of proper
incentive for the marginalised section of the society. Therefore, the order was arbitrary as if
the policy and the discretion is unguided, then the discretion can be held to be arbitrary. 4
Hence, the restriction imposed was arbitrary in nature, it is submitted that the order passed by
the MHA is unconstitutional.

(ii)It violates Article 19(1)(d) as the restriction does not fulfil the test of proportionality

[¶6] Article 19(1)(d) guarantees to every citizen the right to move freely throughout the
territory of India. However, the state may impose reasonable restrictions under Article 19(5)
on these rights by law for the interest and protection of the general public 5 but such
restrictions must be reasonable. This Hon’ble Court, in Chintaman Rao v. State of Madhya
Pradesh6 interpreted limitations on personal liberty, and the balancing thereof, as follows:
The phrase "reasonable restriction" connotes that the limitation imposed on a person in
enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is
required in the interests of the public. It has been argued that the restrictions Under Article 19
of the Constitution cannot mean complete prohibition. The order passed by the MHA is
unreasonable.

[¶7] It is settled law that State action, when it intervenes with the Fundamental Rights, in
order to be permissible under the Constitutional scheme and framework, must conform to the
doctrine of proportionality as in the case of CPIO v. Subhash Chandra Aggarwal7, the
meaning of proportionality was explained as: ...It is also crucial for the standard of
proportionality to be applied to ensure that neither right is restricted to a greater extent than
necessary to fulfil the legitimate interest of the countervailing interest in question... In casu,
movement was unreasonably restricted without providing any immediate alternative
rehabilitation to the worst affected section of the society, i.e., the indigenous people. 8 Also
these migrants, as reported, said that the prevailing condition of uncertainty and lack of
adequate means left them with no other alternative but to cover the long distances ranging
between 400 km to 1500 km to protect themselves from this epidemic.9

4
Satwant Singh Sawhney v. D. Ramarathnam and Ors. [ 1967] AIR SC 1836
5
MP JAIN, Indian Constitutional Law (4th edition, 2018) 1101
6
Chintaman Rao v. State of Madhya Pradesh [1951] AIR SC 118
7
CPIO v. Subhash Chandra Aggarwal [2019] AIR SCC 521
8
¶ 16, Moot Proposition
9
¶ 9, Moot Proposition

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[¶8] However, the Central Government imposed restrictions on public movements on roads
and highways to ensure social distancing and to control the rate of transmission of COVID-
1910 but such restriction is unreasonable as in Papnasam,11 Supreme Court stated that, “it is
imperative that for consideration of reasonableness of restriction imposed by a statute, the
court should examine whether the social control as envisaged in Article 19 is being
effectuated by the restriction imposed on the Fundamental Right” and “no abstract or fixed
principle can be laid down which may have universal application in all cases. Such
consideration on the question of qualify of reasonableness, therefore, is expected to vary from
case to case.”

[¶9] In the instant case, MHA was already aware of conditions of marginalised sections of
the society but yet they enforced such unreasonable orders as because of it migrant workers
were battling hunger had resorted to covering these exceptionally long distances by walking,
some even barefoot, to reach their hometowns and villages 12 so, in this epidemic they need to
go their hometowns for their survival and any restriction for this must be declared invalid.

(iii) It violates Article 21 as it hampers the right to livelihood of the workers

[¶10] The right to life guaranteed under article 21 embraces within its sweep not only
physical existence but the quality of life and if any statutory provisions run counter to such a
right, it must be held to be unconstitutional. 13 The Supreme Court has embraced the
qualitative concept into article 21 when it held that the right to life with human dignity
encompasses within its fold, some of the finer facets of human civilization which make the
life worth living.14 The Supreme Court has read article 21, along with the preamble of the
Constitution and several Directive Principles and has ruled that social justice, right to
economic equality, economic empowerment of the weaker sections of the society constitute
fundamental rights, under Article 21 of the Constitution and that the aim of social justice is to
attain substantial degree of social, economic and political equality.15

[¶11] In arguendo, within two days of imposition of the stringent lockdown, the indigenous
and migrant working class were abruptly hit with loss of means of livelihood and

10
¶ 6, Moot Proposition
11
Papnasam Labour Union v. Madura Coats Limited [1995] AIR SC 2200
12
¶ 9, Moot Proposition
13
Confederation of ex-servicemen association v. Union of India [2006] 8 SCC 399
14
Consumer Education and Research Centre v. Union of India [1995] 3 SCC 42
15
Consumer Education and Research Centre v. Union of India [1995] 3 SCC 42

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sustenance16 and deprivation of livelihood would not denude the life of its effective content
and meaningfulness but it would make life impossible to live. So, deprive a person of his
right to livelihood means you shall have deprived him of his life. 17 However, post two weeks
of the lockdown, Government announced Rupees Two Lakh Eighty-Five Thousand Crore as
a relief package in order to alleviate the hardships faced by the country’s poor due to
nationwide lockdown18 but, in casu, despite all the reliefs provided by the Government,
instances of deaths of migrant workers became part of daily reporting. Most of these deaths
were caused due to covering on foot long distances in summer causing heat stroke, starvation,
dehydration, lack of medical facilities during transit etc19.

[¶12] In the instant case, MHA unreasonable orders caused huge problem for the society
especially the marginalised sections and because of lack of proper planning & diligence many
migrant workers lost their life. Hence, it is submitted that the MHA order dated 27.03.2020
from the Central Government which imposed restrictions on public movements on roads and
highways must be declared as unconstitutional.

(B) The detention of migrant workers is in violation of their fundamental rights as the
detention is not in accordance with Article 22

[¶13] It is submitted that the detention of such migrant workers in pursuance of MHA order
amounts to a violation of their fundamental rights and must be declared unconstitutional as
the detention made is not in accordance with Article 22, and to that effect, submissions are
made that (i) it is not in accordance with procedure established by law under Article 21; (ii)
the act committed by the workers will fall under the purview of Section 81 of the IPC

(i) It is not in accordance with procedure established by law under Article 21

[¶14] In Menaka Gandhi v. Union of India20 the SC observed that the procedure prescribed
by law for depriving a person of his life and personal liberty must be “right, just and fair” and
not “arbitrary, fanciful and oppressive”, otherwise it would be no procedure at all and the
requirement of Article 21 would not be satisfied. The SC has taken the view that Article 21 is
concerned with the fullest development of an individual and ensuring his dignity through the
rule of law. Every procedure must be seeming to be reasonable and the right to life and
16
¶ 7, Moot Proposition
17
Olga Tellis v. Bombay Municipal Corporation [1986] AIR SC 194
18
¶ 10, Moot Proposition
19
¶ 11, Moot Proposition
20
Menaka Gandhi v. Union of India [1978] AIR SC 597

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personal liberty has been interpreted widely to include the right to livelihood, health,
education, environment and all those matters that contributed to life with dignity. In casu, the
workers were demanding that either they should be sent back to their hometown or provided
with such adequate livelihood so as to live a dignified life and not be left at the mercy of their
destiny21 as no immediate relief was provided to these people which led to their agitation as
the order left them with no choice that to fight for their survival. Further, right to life means
something more is meant than mere animal existence 22 but in the instant case, the procedure
established by the MHA snatched the means of livelihood of the workers and because of it
they became anguished by anxiety and uncertainty. Hence, they had reasons to fight for their
survival and hence, the detention is violation of Article 21.

(ii) The act committed by the workers will fall under the purview of Sec. 81 of the IPC

[¶15] It is a common proverb that Quod necessitas non habet leegem, necessity knows no
law.23 every law there are some things, which when they happen a man may break the words
of the law, and yet not break the law itself and such things are exempted out of the penalty of
the law, and the law privileges them although they are done against the letter to it; breaking
the words of the law is not breaking the law, so long as the intent of the law is not broken.24

[¶16] Whenever necessity forces a man to do an illegal act, forces him to do it, it justifies
him, because no man can be guilty of a crime without the will and intention of his mind. It
must be involuntary ....A man who is absolutely by natural necessity forced, his will does not
go along with the act.25 Hence, the indigenous and migrant working class were abruptly hit
with loss of means of livelihood and sustenance, compelling them to come out on roads to
travel to their hometown and no immediate relief was provided to these people in the
stringent lockdown26 and because of this anguished by uncertainty and anxiety, in few places
they started pelting stones at the police personnel shows that they had done this illegal act just
for the sake of their survival hence, the detention is illegal as the act comes under the purview
of Section 81 of IPC.

21
¶ 7, Moot Proposition
22
Munn v. Illinois [1877] 94 US 113
23
K. D Gaur, Criminal Law: Cases and Materials (8th edn., 2015), Section 81; Moore v. Hussey, [1609] Hob 96
24
Ranigar v. Fogossa [1551] 75 Eng. Rep. 1
25
George v. Stratton [1779] 21 St Tr 1046, 1223
26
¶ 7, Moot Proposition

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 MEMORANDUM ON BEHALF OF THE PETITIONER

Hence, MHA order has violated the fundamental rights enshrined under Article 14, 19(1)(d)
and 21 of Constitution of Westeros and the MHA order and detention are unconstitutional.

II. WHETHER THE SUSPENSION OF LABOUR LAWS BY ALL THE THREE

STATES IN THE GRAB OF INCENTIVIZING (MOTIVATE/ ENCOURAGE)
ECONOMIC ACTIVITIES VIDE ORDER 26.04.2020 VIOLATES FUNDAMENTAL
RIGHTS OF WORKERS AND SUBSEQUENTLY THE INTERNATIONAL LABOUR
ORGANIZATION CONVENTIONS RATIFIED BY THE UNION OF WESTEROS?

[¶17] It is submitted before the Hon’ble court that the ordinance passed by the state
government of the three states of Union of Westeros for suspension of the six labour laws in
wake of the COVID-19 pandemic purportedly to enable better economic activity. The
Petitioner seeks to establish (A) It violates the fundamental rights of the workers and also, (B)
It violates the International Labour Organization convention which has been ratified by
Union of Westeros.

(A) Ordinance passed for the Suspension of six labour laws in the wake of COVID-19
pandemic violates the Fundamental Rights of workers

[¶18] It is submitted that the ordinance passed by the three state governments to suspend
those six labour laws is violative of fundamental rights of workers. The petitioner seeks to
establish that (i) it violates right to equality, (ii) it violates right to freedom of association,
further, (iii) it also violates right to life and personal liberty of the workers, which is
enshrined in Article 21, and most importantly, (iv) it violates, right against exploitation which
is enshrined in Article 23 of the constitution of Union of Westeros.

(i) The ordinance passed by the state governments violates right to equality

[¶19] It is submitted before the Hon’ble court that right to equality is the backbone of
Westeros democracy and is also a fundamental right which is assured to the people of Union
of Westeros under Article 14 of the constitution. “The equal protection of the laws
guaranteed by Article 14 of the Constitution is a positive right which means right to be
treated equal which is the essence and core of the right to equality, the State is under the
obligation to take necessary steps so that every individual is given equal respect and concern
which he is entitled to as a human being.” 27 In the present context the ordinance made does

27
V.N. Shukla, Constitution of India (10th edn, p. 37)

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 MEMORANDUM ON BEHALF OF THE PETITIONER

not give equal respect and concern to every individual as the labour laws are being
suspended, the rights of the labourers are taken away therefore, violative of Article 14 of the
Indian Constitution.

[¶20] In State of west Bengal v. Anwar Ali Sarkar,28 it was held that “Article 14 secures all
persons within the territories of India against arbitrary laws as well as arbitrary application of
laws”. Henceforth, arbitrariness is against right to equality which is the fundamental right
provided to the people of Union of Westeros. It is further submitted that in Indian Express
Newspapers (Bombay) (P) Ltd. v. Union of India 29 it was held that “a piece of subordinate
legislation does not carry the same degree of immunity which is enjoyed by a statute passed
by a competent legislature. A subordinate legislation may be questioned under Article 14 on
the ground that it is unreasonable; ‘unreasonable not in the sense of not being reasonable, but
in the sense that it is manifestly arbitrary.” When something is done which is excessive and
disproportionate, such legislation would be manifestly arbitrary 30. In the present context, the
ordinance passed by the state governments are not statutes and the decision of the
government to remove the specified six labour laws is irrational, unreasonable and it is not
giving equal respect, safeguard and concerns which the workers are entitled to as a human.
The task of responsive government is to ensure the economic survival of diverse interest but
not by knee jerk reactions, but by thoughtful decisions embedded in equity. In the present
context if the labour laws under the six Act remains suspended, labourers will be put to sheer
exploitation in terms of working hours, wages, health and safety conditions. Therefore, the
present ordinance is arbitrary and violates right to equality of the workers.

(ii) It violates right to freedom of association and Union

[¶21] Article 19(1)(c) of the Constitution of Westeros, which envisages fundamental right to
freedom of speech and expression also guarantees the country’s citizens the right “to form
associations or Unions” including trade Unions.31 The SC has held that the right guaranteed in
Article 19(1) (c) also includes the right to join an association or Union. 32 In the case of All
India Bank Employees’ Association v. N.I. Tribunal,33 certain rights for the members of trade
Union which is enshrined in Article 19 (1) (c) as a fundamental right to freedom of

28
State of West Bengal v Anwar Ali Sarkar [1952] SCR 284
29
Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [1985] 1 SCC 641
30
Shayra Bano v. Union of India [2017] 9 SCC 1
31
All India Bank Employees’ Association v. N.I. Tribunal [1962] AIR SC 171
32
Damyanti v. Union of India [1971] AIR SC 966
33
All India Bank Employees’ Association v. N.I. Tribunal [1962] AIR SC 171

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 MEMORANDUM ON BEHALF OF THE PETITIONER

association, were laid down which included the right of the members of the Union to meet,
the right of the members to move from place to place, the right to discuss their problems and
propagate their views. Therefore, it is the fundamental right of the workers or labourers to
join an association or Union. Further, the Industrial Dispute Act, 1947 prohibits unfair labour
practices by employers such as threating workers with discharge if they join trade Union. 34 If
this Act is suspended then the unfair labour practice by the employers like not letting the
workers join the trade Union, changing seniority rating of workmen because of trade Union
activities, refuse to promote workmen because of Union activities will take place. Therefore,
it violates the right to freedom of association which is enshrined in Article 19(1) (c) as a
fundamental right.

(iii) It violates right to life and personal liberty

[¶22] The petitioner submits that in Kharak Singh v. State of Uttar Pradesh,35 it was held
that, the word “life” is something more than a mere animal existence. 36 The Supreme Court
has read article 21, along with the preamble of the Constitution and several Directive
Principles and has ruled that “social justice, right to economic justice, right to economic
equality, economic empowerment of the weaker sections of the society constitute
fundamental rights, under Article 21 of the Constitution and that the aim of social justice is to
attain substantial degree of social, economic and political equality.” Therefore, in the instant
case the ordinance passed for the suspending the six labour laws by the three state
governments is against right to life and personal liberty as it violates worker’s (a) right to
human dignity, (b) right to livelihood, (c) right to health, (d) right to social security and
protection of family, which is the basis of right to life under article 21 of the constitution of
Westeros.

(a) It violates right to live with human dignity

[¶23] It is submitted to the court that in Maneka Gandhi v. Union of India37, it was held that
the ‘right to life’ is ‘right to live with human dignity’. Further, in Bandhua Mukti Morcha v.
Union of India38 the court held that article 21 is heart of fundamental rights and Bhagwati J.
in the same case observed that “It is the fundamental right of everyone in this country to live
34
Thulasi K Raj, ‘state labour law changes impact right to association’, New Delhi, The statesman, 24 may
2020, 25 T of IDA; schedule 5 IDA
35
Kharak Singh v. State of Uttar Pradesh [1963] AIR SC 1295
36
Kharak Singh v. State of Uttar Pradesh [1963] AIR SC 1295
37
Maneka Gandhi v. Union of India [1978] SCR 2
38
Bandhua Mukti Morcha v. Union of India [1984] 2 SCR 67

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 MEMORANDUM ON BEHALF OF THE PETITIONER

with human dignity free from exploitation. This right to live with human dignity enshrined in
Article 21 also include protection of the health and strength of the workers and no state
neither the Central Government nor any State Government-has the right to take any action
which will deprive a person of the enjoyment of these basic essentials.” The rights and
benefits conferred on workmen employed by a contractor under various labour laws are
clearly intended to ensure basic human dignity to workmen. The non-implementation and
non-enforcement of these laws by the State Authorities of the provisions of these laws was
held to be violative of the fundamental right of workers to live with human dignity contained
in Article 21.39 Henceforth, in the present context the ordinance passed for the abolition of all
the six laws which provide health and social security, free from exploitation is against the
dignity of the workers. Therefore, it violates right to dignity of the workers.

(b) It violates right to livelihood

[¶24] It is submitted to the hon’ble court that in the case of Board of Trustees of the Port of
Bombay v. Dilipkumar Raghavendranath Nandkarni40, the court observed that “the right to
life” guaranteed by Article 21 includes “the right to livelihood”. The Supreme Court in Olga
Tellis v. Bombay Municipal Corporation41, implied that ‘right to livelihood’ is borne out of
the ‘right to life’, as no person can live without the means of living, that is, the means of
livelihood. Therefore, in the instant case, the ordinance passed for the suspension of The
Bonus Act, 1948, The minimum wages Act,1948 and the payment of wages Act, 1936 by the
three state governments is against Right to livelihood. The meaning was further expanded In
D.T.C. v. D.T.C. Mazdoor Congress42, a regulation conferring power on the authority to
terminate the services of a permanent and confirm employee by issuing a noticing without
assigning him any reasons and without giving him a hearing has been held to be a wholly
arbitrary and violative of Article 21. In the instant case, the abolition of the Industrial Dispute
Act, 1947 may lead to hire and fire situation worst, the workers might be thrown out of the
industries without giving any notice and reasons which will have devastating impact on their
means to livelihood.

(c) It violates Right to social security and protection of family

39
J.N. Pandey, ‘Constitutional Law of India’, Central Law Agency (42 nd Ed., 2005, p. 222)
<https://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-
liberty/#_edn7> accessed 13 June 2020
40
Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni [1983] 1 SCC 124
41
Olga Tellis v. Bombay Municipal Corporation [1986] AIR SC 180
42
D.T.C. v. D.T.C. Mazdoor Congress [1991] AIR SC 101

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[¶25] It is submitted that right to social security and protection of family comes under the
scope of right to life as observed by K. Ramaswamy J. in Calcutta Electricity Supply
Corporation (India) Ltd. v. Subhash Chandra Bose43 explained “that the right to life and
dignity of a person and status without means were cosmetic rights. Socio-economic rights
were, therefore, basic aspirations for meaning the right to life and that Right to Social
Security and Protection of Family were an integral part of the right to life. In Murlidhar
Dayandeo Kesekar v. Vishwanath Pande Barde44, it was held that right to economic
empowerment of poor, disadvantaged and oppressed Dalits was a fundamental right to make
their right of life and dignity of person meaningful. The main objective of the factories Act,
1945 is to protect that workmen that are employed in factories, against occupational hazards
and provides for their health safety and welfare and abolition of this Act will lead to clear cut
violation of their social security. Therefore, the state government cannot invoke section 5 of
the Factories Act45 in guise of the reviving industries hit by the consequence of the pandemic
at the cost of the life of the workers.

[¶26] In Regional Director, ESI Corporation v. Francis De Costa 46, the Supreme held that
security against sickness and disablement was a fundamental right under Article 21 read with
Sec. 39(e) of the Constitution of India. In L.I.C. of India v. Consumer Education and
Research Centre47 it was further held that right to life and livelihood included right to life
insurance policies. In the present context, the abolition of The Employees’ State Insurance
Act, 1948 means denial of compensation for Fatal or other injuries, medical relief and cash
benefits which is clear cut violation of right to life.

(d) It violates Right to health and Medical Care

[¶27] It is submitted before the court that in case of State of Punjab v. M.S. Chawla48, it has
been held that the right to life guaranteed under Article 21 includes within its ambit the right
to health and medical care. In Sunil Batra v. Delhi Administration 49, the Supreme Court
approved that the “right to life” included the right to lead a healthy life so as to enjoy all
faculties of the human body in their prime conditions. In Consumer Education and Research

43
Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra Bose [1992] 2 SCR 267
44
Murlidhar Dayandeo Kesekar v. Vishwanath Pande Barde [1995] Supp 2 SCC 549
45
The Factories Act 1945, s 5
46
ESI Corporation v. Francis De Costa [1995] AIR SC 1811
47
L.I.C. of India v. Consumer Education and Research Centre [1995] 5 SCC 482
48
State of Punjab v. M.S. Chawla [1997] AIR SC 1225
49
Sunil Batra v. Delhi Administration [1978] AIR SC 1675

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Centre v. Union of India50, the Supreme Court laid down that: “Social justice which is a
device to ensure life to be meaningful and liveable with human dignity requires the State to
provide to workmen facilities and opportunities to reach at least minimum standard of health,
economic security and civilized living. The health and strength of worker, the court said, was
an important facet of right to life. Denial thereof denudes the workmen the finer facets of life
violating Article 21.” The ordinance passed has denied the workers right to health as it has
abolished the Factories Act which promoted the health and security of the workers.

(iv) It violates Right against exploitation

[¶28] It is humbly submitted to the court that Article 23 prohibits the forced labour in
whatever form it is found or existed. In People's Union for Democratic Rights v. Union of
India,51 it was held that “Every form of forced labour ‘begar’ or otherwise, is within
inhibition of Article 23 and it makes no difference whether the person who is forced to give
his labour or service to another is remunerated or not. Even if renumeration is paid, labour
supplied by person would hit the article if its forced labour, that is, labour supplied by force
willingly but as a result of force or compulsion.” 52 In the case of Sanjit Roy v. State of
Rajasthan,53 the Court held that the word force within this article has a very wide meaning. It
includes physical force, legal force and other economic factors which force a person to
provide labour. This is essential so that the state does not take advantage of the helpless
condition of the people affected by famine, drought etc. In the present context the ordinance
passed for suspending welfare and health measures of workers which was embedded in the
six labour laws comes under forced labour as they are being denied social security,
compensation for Fatal accidents, health facilities and other welfare facilities their means of
livelihood i.e. they can be hired and fired any time still they are working forcefully because it
is the only means. Therefore, they come under the forced labour. This ordinance is a room for
exploitation of labour because if labour laws remain suspended, labourers will be put to sheer
exploitation in terms of working hours, wages, health and safety conditions. Therefore, the
ordinance is passed without adequate determining principle and irrational, disproportionate,
excessive and be set aside under the arbitrariness test.

50
Consumer Education and Research Centre v. Union of India [1995] 3 SCC 42
51
People’s Union for democratic Rights v. UOI [1982] AIR SC 1473
52
People’s Union for democratic Rights v. UOI [1982] AIR SC 1473
53
Sanjit Roy v. State of Rajasthan [1983] AIR SC 328

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(B) It also violates the International Labour Organization convention which has been
ratified by Union of Westeros.

[¶29] It is humbly submitted to the court that since; Union of Westeros is the member of the
International Labour organization (hereinafter ILO) and has ratified six out of eight
convention therefore it is mandate for Westeros to follow the ratified conventions. The
ordinance passed by the three states for the abolition of the six labour laws is in violation of
the ILO convention. It is humbly submitted that the ordinance passed is violation of ILO
Convention 81, which provides labour inspection for effective implementation of the national
labour laws.54 Inspection is a mechanism which keeps check on the employers so that they
maintain minimum level of safety standards at the work place and proper implementation of
labour laws provisions. But abolition of inspection which has been mentioned in the
Industrial Dispute Act,1947, has removed that check on the employers who are now free to
pick and choose the laws and regulation they want to follow. They can increase the working
hours, change their shift according to their choice. “an effective labour inspection mechanism
is essential to prevent the workers exploitation by the employers and protect their rights.” 55
Since, Union of Westeros has ratified this therefore this is clear cut violation of the C-81.

[¶30] It is humbly submitted to the court that the ordinance passed for the suspension of six
labour laws undermines the ILO convention no.144 with regard to triparty. The petitioner
contends that convention 144 is symbolic for the international Labour organization as it
focuses on its main values: tripartite social dialogue for the elaboration and implementation
of international labour standards. Tripartite social dialogue with respect to international
labour standards touches on the fundamental means of ILO actions which is why convention
no. 144 is so crucial.56 The objective of convention no. 144 is to encourage national tripartite
consultations among the governments, employers and workers’ organizations on ILO
activities, and especially ILO conventions and recommendations. In 2008 ILO declaration on
social justice, the ILO member states unanimously recognized section 144 as particularly
important for the governance of the world of work. Convention no. 144 has been ratified by
the 140 members of ILO Convention as per 2018 which include Union of Westeros. In the

54
DAWN TODAY’S PAPER, ‘Violation of Labour Laws’, 8th March 2010
<https://www.dawn.com/news/838811> accessed on 15 June 2020
55
DAWN TODAY’S PAPER, ‘Violation of Labour Laws’, 8th March 2010
<https://www.dawn.com/news/838811> accessed on 15 June 2020
56
KV Kalyani Menon, ‘Relaxation of Labour Laws: A Route to Modern Day Slavery’ on 17th May, 2020
<https://www.livelaw.in/column/relaxation-of-labour-laws-a-route-to-modern-day-slavery-156898?
infinitescroll=1> accessed 15 July 2020

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present context, the state government of the three states of Union of Westeros who passed the
ordinance, neither consulted the trade Unions nor consulted the various employers’ before
announcing these changes and since, Union of Westeros has ratified the convention therefore
it violates international labour organization convention.57

[¶31] It is further submitted that although, our opponent may contend that that right to
freedom of association, under ILO convention 87, right to collective bargaining under ILO
convention 98, Abolition of Forced Labour Convention 105 has not been ratified by the
Union of Westeros but it is humbly submitted that these rights is the part of our fundamental
rights under Article 19 (1)(c) and Article 23 respectively. Further, they are also embedded in
our labour laws to protect the rights of the workers. Therefore, these laws are the magna
carta of their liberty and dignity against tyranny so, this ordinance violates the international
labour organization convention.

Hence, it is humbly submitted that the suspension of labour laws by violates fundamental
rights of workers and the international labour organization conventions.

III. WHETHER THE SHARING OF MEDICAL DATA OF COVID-19 TESTED

PATIENTS WITH A FOREIGN PRIVATE COMPANY DMPL, VIOLATES RIGHT
TO PRIVACY?

[¶32] The Petitioner humbly submits that sharing of medical data which includes sharing of
blood samples and DNA of COVID-19 tested patient which were stored in both the physical
form i.e. laboratory and electronic form with private company DMPL, violates right to
privacy. Union of Westeros is a democratic country, fundamental Rights are sine qua non for
every citizens and individuals. Right to privacy has been held to be constitutionally protected
fundamental right58vested within right to life and personal liberty under Article 21 of the
constitution of Union of Westeros.59 The counsel humbly cites the case of I.R. Coelho v. State
of Tamil Nadu60 where the apex Court observed that the Rights were not limited; narrow

57
ILO, ‘Ratification of C081- Labour Inspection Convention’ [1947]
<https://www.ilo.org/dyn/normlex/en/f?
p=NORMLEXPUB:11300:0::NO::P11300_INSTRUMENT_ID:312226> accessed on 14 June 2020
58
Gobind v. State of Madhya Pradesh and Ors. [1975] 2 SCC 148; See also, R. Rajagopal v. State of Tamil
Nadu [1994] 6 SCC 632; People’s Union for Civil Liberties v. Union of India [1997] 1 SCC 301; Kharak Singh
v. State of UP [1963] AIR SC 1295; Ramlila Maidan Incident v. Home Secretary, Union of India [2012] 5 SCC
1
59
Kharak Singh v. State of UP [1963] AIR SC 1295; Gobind v. State of Madhya Pradesh [1975] AIR SC 1378;
PUCL v. Union of India [1991] AIR SC 207
60
I.R. Coelho v. State of Tamil Nadu [2007] AIR SC 861

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rights, but provide a broad check against the violations and the excesses by the State
authorities. These rights have been declared as sacrosanct, inalienable and indivisible. 61 In
this regard it is submitted that privacy is sine qua non for dignified life and informational
privacy is an essential aspect of right to privacy. Blood sample and DNA of a person is
unique; it can be used to accurately identify a person’s identity. DNA not only identifies the
person, but also reveals its genetic information such as physical and medical traits, Blood
Group any many other things. Storing information is the violation of right to privacy if not
taken by proper consent or say a real consent. Our learned opposition may contend that they
have taken the consent of the patients62 but it is submitted to the court that merely taking
signature on the paper with terms and conditions does not amount to proper consent. 63 The
patients included migrant workers64 and the literacy rate of Union of Westeros is 63.9%65,
therefore it was important for the state to inform them the terms and conditions and the
consequences properly.

[¶33] According to the Helsinki Declaration66, it is the doctor’s duty to ensure that all patients
are ‘…adequately informed of the aim, methods, anticipated benefits, and potential hazards
of the study and the discomforts it may entail. He or she should be informed that he or she is
at liberty to abstain from participation in the study and that he or she is free to withdraw his
or her consent to participate at any time. The doctor should then obtain the subject’s freely-
given informed consent, preferably in writing.’ 67 it is possible that this consent may be at best
be partly informed. With a majority of patients being economically and socially
disadvantaged, it is unclear whether the complete implications of a study are explained to
them. There is possible misuse of patients who could agree to enrol in a study without a
complete understanding of the research.68 It is humbly submitted that the honourable Supreme
Court held that: “The state must ensure that information is not used without the consent of
users and that it is used for the purpose and to the extent it was disclosed. 69Whereas even

61
State of Madras v. Champakam Dorairajan [1951] AIR SC 226
62
Clarification No. 7, Moot Proposition
63
Samira Kohli vs Dr Prabha Manchanda [2008] 2 SCC 1 Para 32
64
Clarification No. 7, Moot Proposition
65
Clarification No. 11, Moot Proposition
66
KARUNAKARAN MATHIHARAN, Law on consent and confidentiality in India: A need for clarity, THE
NATIONAL MEDICAL JOURNAL OF INDIA VOL. 27, NO. 1, 2014 pg 41-42
67
KARUNAKARAN MATHIHARAN, Law on consent and confidentiality in India: A need for clarity
68
Bhandare N. HIV—red alert. The New Indian Express (Chennai Edition) 2000 21 May 2000: 2[Express
Magazine
69
Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors. [2017] 10 SCC 1

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Rule 570 of the Information Technology Rules, 2011 requires that prior to the collection of
sensitive personal data the body corporate must obtain proper consent. Henceforth, due to
lack of proper consent the petition submits it to be violation of right to privacy.

[¶34] The Petitioner further Submits that in Union of Westeros for the purpose of data
protection, a body corporate is subject to section 43A of the Information Technology Act,
2000 (“IT Act”) and subsequent Rules, i.e. -The Information Technology (Reasonable
security practices and procedures and sensitive personal data or Information) Rules, 2011.
Rule 5(7)71 of the aforesaid rules requires that the individual must be provided with the option
of withdrawing the data or information sought by the body corporate at any point of time.
The present context, it is no were mentioned that they can withdraw their data whenever they
want.

[¶35] The combined DNA Index System (CODIS) in the US and the national crime DNA
Data Banks in UK keeps information only for the criminal investigation purpose not for the
civil purpose. It is similar in Union of Westeros but currently there is no proper law regarding
it. If DNA information related to civil matters is stored and that too in the foreign private
company it will violate right to privacy because it will only be infringed through the
enactment of law and till now there is no law which regulates or addresses the DNA data
storage for medical research purpose in Union of Westeros. The electronic data of the blood
sample, DNA and other important information of the patients may lead to tampering with the
data which lead to unethical ends further it can mislead through reliance on unrepresentative
and biased data.

Hence, sharing of medical records is against right to privacy especially when taken without
proper consent and privacy and data protection are important values;  they do not
disappear during a crisis. Nevertheless, they have to be weighed against respective benefits
and risks.

IV. WHETHER ALL THE 14 FIRs FILED AGAINST MR. OLIVER IS LIABLE TO
BE QUASHED AND HIS ARTICLE ENTITLED “THE GROUND REPORT” FALLS
WITHIN THE AMBIT OF FREEDOM OF SPEECH AND EXPRESSION OF THE
PRESS?
70
THE INFORMATION TECHNOLOGY (REASONABLE SECURITY PRACTICES AND PROCEDURE
AND SEBSTIVE PERSONAL DATA OR INFORMATION) RULES, 2011.
71
THE INFORMATION TECHNOLOGY (REASONABLE SECURITY PRACTICES AND PROCEDURE
AND SEBSTIVE PERSONAL DATA OR INFORMATION) RULES, 2011.

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[¶36] It is submitted that all the 14 FIRs filed against Mr. Oliver is liable to be quashed and
his article entitled “The Ground Report” falls within the ambit of freedom of speech and
expression of the press. The Petitioner seeks to establish that, (A) The Ground Report falls
within the ambit of freedom of speech and expression of press, (B) Mr. Oliver is not liable to
be punished under Section 124-A of Westeros Penal Code and Section 54 of Disaster
Management Act.

(A) The Ground Report falls within the ambit of freedom of speech and expression of
the press

[¶37] It is submitted that The Ground Report as falls within the ambit of freedom of speech
and expression of the press as (i) Freedom of Press is a Fundamental Right under Article
19(1)(a) of the Westeros Constitution, (ii) The Restriction under Article 19(2) of the
Constitution is arbitrary and unreasonable, (iii) The Act of Mr. Oliver is in accordance with
the PCI norms of Journalist Conduct, 2019.

(i) Freedom of Press is a Fundamental Right under Article 19(1)(a) of the Westeros
Constitution

[¶38] Freedom of speech and expression is an essential aspect of liberty as stated in Maneka
Gandhi v Union of India.72 Freedom of expression includes the freedom to proliferate one's
own views as well as of others. 73 Freedom of speech and expression is not only in the volume
of circulation but also in the volume of news and views.74 In Palko v. Connecticut,75 the right
to freedom of speech and expression has been described as the "touchstone of individual
liberty" and "the indispensable condition of nearly every form of freedom”. The Court must
interpret the Constitution in a manner which would enable the citizen to enjoy the
fundamental rights in the fullest measure.76 The significance of freedom of speech has been
accentuated in Ramlila Maidan incident,77 whereby the court observed that the freedom of
speech is the bulwark of a democratic Government.

[¶39] In arguendo, Freedom of the Press is implicit in the freedom of Speech and
expression.78 The right of freedom of speech and expression includes the liberty of the press
72
Maneka Gandhi v Union of India [1978] AIR SC 597
73
Express Newspapers v. Union of India [1958] AIR SC 578 (614)
74
Bennett Coleman & Co. v. Union of India [1973] AIR SC 106 at 128.
75
Palko v. Connecticut [1937] 302 US 319
76
Sakal Papers Ltd. v. Union of India [1962] AIR SC 315
77
Re-Ramlila Maidan Incident v. Home Secretary and Ors., [2012] 5 SCC 1
78
Romesh Thappar v. State of Madras [1950] AIR SC 124

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 MEMORANDUM ON BEHALF OF THE PETITIONER

as well.79 In R. Rajagopal v. Tamil Nadu,80 Justice Jeevan Reddy reiterated the

indispensability of freedom of press. The press is regarded as the fourth pillar of democracy.
Justice Pendse's judgment in the Bennett Coleman case81 boldly declares that freedom of the
press is a part of the basic structure of the Constitution. It is the primary duty of the courts to
uphold the freedom of the press and invalidate all laws or administrative actions which
interfere with it contrary to the constitutional mandate.” 82 In Romesh Thappar v. State of
Madras83 and Brij Bhushan v. State of Delhi,84 the Supreme Court took it for granted that the
freedom of the press was an essential part of the right to freedom of speech and expression. In
the instant case, Mr. Oliver was exercising his freedom of press with objective of doing a fact
check and report the true affairs of the state.85

[¶40] In arguendo, The right to press includes the right to comment on public affairs as was
stated by the Supreme Court in Bennett Coleman v. State of J. & K.86 This right to comment
on public affairs includes the right to criticize people holding public post and also to criticize
the public policies.87 In R Rajagopal v State of Tamil Nadu,88 the Hon’ble Supreme court has
broadened the horizons of the freedom of press and by allowing the press to criticize and
comment on the acts of the public officials. In the instant case, Mr. Oliver has execised his
right to press by criticized the policies of government as only a handful indigenous and
migrant workers was benefited from PMRP, WPDS and WNREGS. 89 In short, freedom of
expression includes the freedom of propagation of ideas, their publication and circulation 90
and right to answer the criticism leveled against such views, 91 the right to acquire and import
the ideas and information about matter of common interest. 92 Therefore, it has been declared
that overbroad restrictions on freedom of speech and expression are invalid.93

79
Sakal Newspapers (Private) Ltd. v. Union of India [1962] AIR SC 315
80
R. Rajagopal v. Tamil Nadu [1995] AIR SC 264
81
Bennett Coleman v. Union of India [1986] AIR Bombay 321
82
In Re Harijai Singh [1997] AIR SC 73
83
Romesh Thappar v. State of Madras [1950] AIR SC 124
84
Brij Bhushan v. State of Delhi [1950] AIR SC 129
85
¶ 9, Moot Proposition
86
Bennett Coleman v. State of J. & K. [1975] Cr LJ 211
87
Baumgartner v. O.S. [1944] 322 US (673-74)
88
R Rajagopal v State of Tamil Nadu [1995] AIR SC 264
89
¶ 11, Moot Proposition.
90
Romesh Thapper v. State of Madras [1950] SCR 594
91
L.I.C. v. Manubhai D. Shah [1993] AIR SC 171
92
Hamdard Dawakhana V. Union of India [1960] AIR SC 554
93
Amnesty International v. Sudan [2000] AHRLR 297

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(ii) The Restriction under Article 19(2) of the Constitution is arbitrary and
unreasonable

[¶41] The right to freedom of speech and expression is precious, and therefore, inalienable.
The freedom of the press cannot be curtailed. Any restriction imposed upon the above
fundamental right of freedoms is prima facie unconstitutional, unless it can be legitimate
under the limitation clause, i.e., Clause (2)94 of the Article 19 of the Indian Constitution. The
reasonableness of the restraint would have to be judged by the magnitude of the evil which it
is the purpose of the restraint to curb or to eliminate. 95 Indirect and unreal connection
between the public order and restriction would not fall within the purview of the expression
“in the interest of public order”.96 In S. Rangarajan v. P. Jagjevan Ram and Ors.97, everyone
has a fundamental right to form his opinion on any issues of general concern. Open criticism
of government policies and operations is not a ground for restricting expression. In the instant
case, the restriction was unreasonable as there was no evil caused by ‘Ground Report’
because it aims to report the true affair of the state 98 by mere criticizing the Public Policy
such as PMRP, WPDS and WNREGS which covers under freedom of Press of Mr. Oliver.

[¶42] In Brij Bhusan v. State of Delhi,99 the validity of censorship previous to the publication
of an English Weekly of Delhi was questioned. The Court struck down the Section 7 of the
East Punjab Safety Act, 1949, on the ground that it was a restriction on the liberty of the
press. Similarly, in the instant case prohibiting Mr. Oliver from publishing ‘The Ground
Report’ has been held to be a serious encroachment on the freedom of speech and expression.
Furthermore, in Virendra v. The State of Punjab, 100 this Court has observed at p. 319 as
follows : "It is certainly a serious encroachment on the valuable and cherished right or
freedom of speech and expression if a newspaper is prevented from publishing its own or the
views of its correspondents relating to or concerning what may be the burning topic of the
day". In determining reasonableness of a restriction, the under the average prudent man
standard101 and is guided cripples, viz., the restriction must, (i) strike a balance between
freedom and social control;102 (ii) bear a rational and direct relation to the object that the
94
Rangarajan S. v. Jagjivan Ram P [1989] 2 SCJ 128
95
Collector of Customs v. Sampathu Chettty [1963] AIR SC 316 (para 35)
96
Rex v. Basudev [1950] AIR SC 67
97
S. Rangarajan v. P. Jagjivan Ram and Ors. [1989] 2 SCC 574
98
¶ 9, Moot Proposition
99
Brij Bhusan v. State of Delhi [1950] AIR SC 129
100
Virendra v. The State of Punjab [1958] 1 SCR 308
101
H.B. Khare v. State of Delhi [1950] AIR SC 211
102
Dwarka Prasad v. State of Uttar Pradesh [1954] AIR SC 224 at 227

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 MEMORANDUM ON BEHALF OF THE PETITIONER

legislature seeks to control;103 and (iii) not be arbitrary or excessive.104 In the instant case, the
restriction is arbitrary and unreasonable as there is no evil caused by ‘Ground Report’
because it aims to do fact check and report the true affairs of the state.105

(iii) The Act of Mr. Oliver is in accordance with PCI norms of Journalist Conduct, 2019

[¶43] Principle 41(iv) of the norms issued in 2019 enjoins that the freedom of press involves
the readers’ right to know all sides of an issue of public interest. It is said that in a democracy
the right to free expression is not only the right of an individual but rather a right of the
community to hear and be informed.106 In the instant case, ‘The Ground Report’ is in
accordance with Principle 41(iv) because it aims to do fact check and report the true affairs of
the state107 to the public as the readers has the right to know all issues of public interest.

(B) Mr. Oliver is not liable to be punished under Section 124-A of Westeros Penal Code
and Section 54 of Disaster Management Act

[¶44] Sedition embraces all those practices that, whether by word, deed or action are
calculated to disturb the peace and tranquillity of the State and lead innocent people to
subvert the government.108 The essence of the crime of sedition consists in the intention with
which the language is used.109 Incitement to violence and public disorder is the gist of the
offence. However, criticism of the existing government or system and expression of a desire
for a different system altogether is not prohibited. 110 It is not seditious to criticize
administrative machinery, public measures or the officers of the Government within the
limits of fair criticism.111 The decisive ingredient for establishing the offence of sedition
under S. 124-A IPC is the doing of certain acts which would bring to the Government
established by law in India hatred or contempt etc.112 In the instant case, there was no act
done by Mr. Oliver which tried to create hatred against government as Mr. Oliver accused the
police officials and the government for being apathetic towards the poor migrants 113 which
was a mere criticization of government based on “The Ground Report”.
103
Arunachala Nadar v. State of Madras [1959] AIR SC 300 at 303
104
Romesh Thapper v. State of Madras [1950] SCR 594
105
¶ 9, Moot Proposition
106
Sujata v. Manohar, “T.K. Tope’s, Constitutional Law of India” Eastern Book Co., Lucknow, 2010, p. 143.
107
¶ 9, Moot Proposition
108
R. v. Sullivan [1968] 11 Cox Cases 55
109
Arjun Arora v. Emperor [1935] AIR All 295
110
Nihrendu v. Emperor [1942] AIR FC 22, 26
111
Vishambhar Dayal v. Emperor [1941] AIR Oudh 33
112
Bilal Ahmed Kaloo v. State of A.P. [1997] 7 SCC 430
113
¶ 12, Moot Proposition

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[¶45] In arguendo, Mere Criticism of Government action would not fall within the mischief
of ‘Public order’ and would be protected under Article 19(1)(a). It is only when the words
have the pernicious tendency or intention of creating public disorder or disturbance of law
and order then the law of sedition steps in.114 The Supreme Court in subsequent cases has
upheld this interpretation.115 In Kedar Nath Singh v. State of Bihar,116 while interpreting the
scope of Sections 124-A and 505 of the Indian Penal Code, 1860, the Supreme Court held
that the activity would be rendered penal only when it is intended to create disorder. The
Criticism of public measures on Government action, however strongly worded, would be
within reasonable limits and would be consistent with the fundamental right of free speech
and expression. In the case of Pankaj Butalia v. Central Board of Film Certification &
Ors.,117 the Delhi High Court held that while judging sedition, intention is extremely
important. Criticizing the government or the Prime Minister for public policy does not
amount to sedition, as held in Javed Habib v. the State of Delhi. 118 In the instant case,
Mr. Oliver criticized the government and the government cannot gag the freedom of
journalists through such vindictive measures. 119

[¶46] Section 54 of the Disaster Management Act, 2005 provides for punishment to a person
who makes or circulates a false warning as to disaster or its severity or magnitude, leading to
panic. In the instant case, Mr. Oliver didn’t have any motive to circulate false warning since
his article merely endeavoured to highlight plight of migrant workers and true affairs of
state.120

Hence, it is humbly submitted before this Hon’ble Court that all the 14 FIRs should be
quashed and “The Ground Report falls within the ambit of freedom of speech and expression
of the press.

PRAYER

114
Joydip Ghosal, ‘An Analysis of Law of Sedition and Its Impact on Freedom of Expression’, Journal of Legal
Analysis and Research [2014] 1(1):32-46
115
Bilal Ahmed Kaloo v. State of Andhra Pradesh [1997] AIR SC 3483; Balwant Singh v. State of Punjab
[1995] AIR SC 1785
116
Kedar Nath Singh v. State of Bihar [1962] AIR SC 955
117
Pankaj Butalia v. Central Board of Film Certification & Ors [2015] 221 DLT 29
118
Javed Habib v. the State of Delhi [2007] 96 DRJ 693
119
¶ 14, Moot Proposition
120
¶ 14, Moot Proposition

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 MEMORANDUM ON BEHALF OF THE PETITIONER

It is hereinafter humbly prayed before this Hon’ble Supreme Court of Westeros that in the
light of issue raised, argument advanced, authorities cited and pleadings made, the Hon’ble
Court may be pleased to adjudge and declare:

1. That, the MHA Order is arbitrary, and the detention of such migrant workers in pursuance
of such order amounts to a violation of their fundamental rights.
2. That, the suspension of labour laws by all the three states violates fundamental rights of
workers and subsequently the international labour organization conventions ratified by
the Union of Westeros.
3. That, the sharing of medical data of COVID-19 Tested patients with a foreign private
company DMPL, violates Right to Privacy.
4. That, all the 14 FIRs filed against Mr. Oliver is liable to be quashed and his article
entitled “The Ground Report” falls within the ambit of freedom of speech and expression
of the press.

OR / OTHERWISE

PASS ANY OTHER ORDER OR DIRECTION THAT THIS HON’BLE COURT MAY
DEEM FIT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD
CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE COUNSELS SHALL FOREVER PRAY.

Sd/-

(Counsel for the Petitioner)

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