University of Pune

Department of law
LATE JUSTICE P.B. GAJENDRAGAGDKAR MEMORIAL INTER COLLEGIATE
MOOT COURT COMPETITION FOR THE ACADEMIC YEAR 2009-2010

Moot problem

PEOPLES FORUM OF ABC V. THE STATE OF

INDIANA
(Before the Supreme Court of Indiana)

© Dept. of Law
University of Pune 2009

1
 University of Pune

Department of law
LATE JUSTICE P.B. GAJENDRAGAGDKAR MEMORIAL INTER COLLEGIATE
MOOT COURT COMPETITION FOR THE ACADEMIC YEAR 2009-2010

Moot problem

PEOPLES FORUM OF ABC V. THE STATE OF

INDIANA
(Before the Supreme Court of Indiana)

© Dept. of Law
University of Pune 2009

2
 University of Pune

Department of law
LATE JUSTICE P.B. GAJENDRAGAGDKAR MEMORIAL INTER COLLEGIATE
MOOT COURT COMPETITION FOR THE ACADEMIC YEAR 2009-2010

Moot problem

PEOPLES FORUM OF ABC V. THE STATE OF

INDIANA
(Before the Supreme Court of Indiana)

© Dept. of Law
University of Pune 2009

3
 In the annals of human civilization, the prism of human rights occupies a
significant place. Considering the various wars, and other moments of bloodshed
across the World in the year 1945, the United Nations in its Charter, incorporated
the human rights guaranteeing the rights of the individuals without any
discrimination to sex, religion, race, and religion.

In order to promote these human rights, and to make them legally binding on
the states since 1948 to till date, it has adopted a catena of Declarations,
Covenants, Conventions, and a number of protocols to be implemented by the
nation -states in their legal systems. Today across the globe, almost all the states
adopted the provisions of the UN in no uncertain terms. Among the various states
adopted the provisions of the human rights that are enshrined in the UDHR, a
country by name, the State of Indiana also adopted the provisions in its
constitution.

The State of Indiana is a country with rich cultural heritage, gave importance
to the freedom of individuals from ancient periods. All the ancient legal texts of
it’s, strictly advocated the philosophy of respect for the rights of the individuals at
all times without any deviance. Considering its glorious past and the international
jurisprudence evolved by human rights, its constitution adopted elaborate
provisions with respect to the civil, political, economic, socio, and cultural rights.
In fact, the Preamble of its constitution advocates in letter and spirit that the rights
need to be protected by the state without any deviance and any conflicting
situations need to be addressed and redressed through the legal machinery provided
by the acts and statutes of it.

Over the years, in view of degradation of moral, ethical, social values and
the shredding of legal responsibilities by many sections of the polity of the state of

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Indiana, led to chaotic conditions in the country. Among the various agencies of
the State, the Law and Order machinery of the State, due to corruption, political
influences, started indiscriminately arresting the people of the country, on various
false offences. Though the Constitution of the Country under Art.22 of the
constitution advocates, no person can be arrested without providing information
regarding the reasons for such an arrest and should not be kept detained in the jail
for more than 24 hours without the knowledge of the court, the police officers
across the country never bothered about the provision and over-crowded the jails
with millions of people. The overcrowding of the jails resulted in gross violation of
the rights of the citizens guaranteed under the law of the land, and to the
philosophy of human rights.

This attitude of the police was questioned by several organisations, and the
judiciary in no uncertain words. The reply of the police is, since the courts are
overcrowded with litigation, they have no scope to produce the accused before the
court. In a number of cases, the arrested persons are detained in prison for more
than the term of the punishment for the offence, in case if the crime of an arrestee
is proved. In some cases, the accused persons have undergone the terms of the jail
for no fault of theirs, when their crimes were disproved before the judiciary.

The apex court of the country, in a catena of cases criticised the attitude of
the executive, and the police authorities in the mass abuse of fundamental rights of
the citizens of the country guaranteed by the constitution. Finally, reflecting on
adjudicative system of the country, and the style of functioning of its own lower
wings, the apex court observed in a case, that in view of increasing number of
cases pending before various courts in the country, tens and thousands of people
are languishing in jails without a trial for years. In yet another case expressing its
displeasure over the situation it observed, in no uncertain terms, “It is a crying

5
shame upon our adjudicatory system which keeps men in jail for years on end
without a trial.” The court further observed that, “… no one shall be allowed to be
confined in jail for more than a reasonable period of time, which we think cannot
and should not exceed one year for a session trial… we fail to understand why our
justice system has become so de-humanized that lawyers and judges do not feel a
sense of revolt at caging people in jail for years without trial.”

The above observation of the apex court clearly reveals, the kind of respect
that the police officials, and the executive have in protecting fundamental basic
rights of the citizens, which are guaranteed by the constitution and as well by the
international standards of human rights.

In order to make soul searching solutions to remedy the system, the

Government requested its Law Commission to suggest remedial measures that may
be fruitful to maintain a balance between the justice systems, and to protect the
rights of the citizenry. The Commission, after a considerable amount of
discussions, and research, finally recommended the concept of Plea Bargaining,
as an alternative, as it is widely practiced in the USA.

A Governmental Committee appointed by the State of Indiana to suggest

reforms in its age old criminal law, also suggested the provision of Plea
Bargaining, as an alternative to be considered, to reduce the pressure on the
judiciary and in the jails.

Basing on the recommendations of the above agencies, the Government of

Indiana amended the Criminal Law extensively in the year 2005. This Act is
referred to as the Criminal Law (Amendment) Act 2005, which inserted a number
of provisions. In a similar fashion, it had incorporated Chapter XXI-A consisting

6
of 12 sections, recognising the significance of plea bargaining, as an alternative
remedy to reduce the overcrowding of jails with men for years without any trail.

According to the new provisions of the law, the criminal courts can exercise
the concept of Plea Bargaining as an alternative to reduce not only the pendency of
litigation, but the time of sentencing of under trail prisoners. Plea bargaining
means, an agreement entered between a Prosecuting lawyer and a defendant lawyer
over a charge on which the defendant should stand for trial. In the process, the
defendant should accept the guilt to a lesser crime than normally which he could be
charged otherwise for a serious crime. In simple, the defendant instead of pleading
innocence should accept the guilt, the moment he was charged with a crime in
which he was involved in or not.

The process of plea bargaining starts the moment, the accused of an offence
files an application for plea-bargaining in the court, in which such a trial is
pending. The application should contain a brief description of the case, including
the offence to which the case relates, and shall be accompanied by an affidavit
shown by the accused stating that he knows the extent of punishment of the
offence or offences he is indicted for, and that he is willing to plead guilty to the
charge of the particular offence or offences, and that he has not been previously
convicted of the same offence.

The court basing on the affidavit filed before it, will issue notices to the
public prosecutor, investigating officer, the victim of the case and the accused for a
date fixed to commence the plea bargaining proceedings. After the parties appear
before the court, the court shall examine the accused in Camera where in the other
parties in the case shall not be present, to examine whether the application filed by
the accused is voluntary or not. After such investigation, if the magistrate is

7
satisfied that the affidavit was filed voluntarily, all the parties sit together and
commence the bargaining proceedings. The accused can seek the assistance of an
advocate in the process. After the parties arrive at a disposition, a report shall be
prepared containing the signatories of all the parties. Basing on the report, the
court shall pronounce the judgment imposing lighter sentence to the accused and
providing compensation to the victim according to the agreement.

The amended provisions also mandate the court to give the accused the
benefit of Probation of Offenders Act, where so ever it is permissible. If the court
finds that the benefit of probation is not available to the accused, then the court
may sentence the accused to 1/4th of the punishment provided for such an offence.
In cases, where the minimum punishment has been provided under the law for an
offence committed by the accused, the court may sentence the accused to half of
the punishment to such minimum punishment. While awarding the punishment,
the court also should take into consideration the period of punishment already
undergone by the accused during the pre and post trial period of the case, and shall
be set off against the sentence imposed by the court. The judgment of the court is
final and binding on the parties and no appeal shall be permissible.

This system appears to be simple and appreciable. However, it has many

demerits than merits. The only merit is that the burden of the courts will be
reduced and in the process it may reduce the overcrowding of the prisons. If one
examines the provisions critically, it has many negative factors, which affect the
fundamental guarantees to Life and Liberty of an accused. The plea bargaining
system reintroduces the age old barter system in a different manner in exchange of
lesser punishment, the accused has to compulsorily accept a guilt which might not
have been committed. Secondly, in the process of bargaining, many a time’s the
investigating agencies, and the public prosecutors may indulge for corrupt practice

8
especially, if the victim is a financially sound party. Thirdly, in a country like
Indiana where the rate of malnutrition is high on the national index, many a times
poor people may be made as scapegoats for the crimes of the rich people.

Taking these aspects into consideration, a group of citizens and a citizens

forum of ABC wrote letters to the Supreme Court of Indiana to quash the
provisions, Sections 265 A to L of the Criminal Procedure Code of the Country, as
they directly violate the fundamental rights, especially Arts.14, 19 (a) and 21 of
the Constitution under public interest. It was further contended that the provisions
of Plea Bargaining are violate to the philosophy of human rights as enshrined
under Articles 7, 10, 11 of the Universal Declaration of Human Rights, and to
Articles 6(1) and 14 of the Covenant of the Civil and Political Rights, to which the
State of Indiana is a party. The Organisation in its letter further argued, that the
provisions of Plea Bargaining not only impairs the rights of the accused, but
coerces the legal system. This may happen when a rich person is accused with a
crime, in order to escape the punishment of longer duration, such accused may
accept for a bargaining to undergo lesser punishment than the actual punishment,
and pay compensation to the victim. It will become a handy tool for rich people to
get away from heinous crimes more easily on the name of law. Further, it is wrong
to invite the investigating officer during the process of agreement. Because in a
country where in the investigating agencies are known for their nepotistic corrupt
tendencies, may influence the accused to accept the crime for their selfish ends.
Even in a Country like USA, it is not whole heartedly accepted by all sections of
the society, it is premature to introduce in a country like Indiana where in the
administration of criminal justice system is in its fragile state.

The Supreme Court considered the letters and the petition of the ABC
Organization as writ petitions filed under Art.32 of the Constitution. Accordingly,

9
it has issued notices to the State of Indiana and the Law and Order machinery to
file their counters. The State of Indiana has not filed its counter nor allowed its
Law and Order machinery to file their replies for a long time. The Apex Court
taking into consideration of the negligent attitude of the State, finally issued
notices that if the state and its agencies are not in a position to file their replies with
in a month’s time, the court has to drew the conclusion that the State has no
defense to counter the Plaintiff’s arguments and to proceed suo motto to decide the
case.

The State finally responding to the clarion call of the Apex Court through its
Attorney General filed written submissions defending the action of the
amendments made by state, and refuted all the allegations made against the state
are baseless. It was contended that the State of Indiana being a democratic state
and always respects the fundamental human rights of its citizens without any
deviance to the provisions of the Constitution and the international covenants. The
State defended that these provisions have been incorporated, only upon extensive
discussions considering the positive and negative aspects by the Hon’ble Members
of the Parliament of the country. In fact, this a legislation where in all the political
parties unanimously endorsed their consent for amendment to incorporate the
provision of Plea Bargaining as the most effective remedy in the country to provide
quick span of justice. Hence, the unnecessary few castigations, and fears allied by
a small section of the people need not be taken into consideration seriously by the
Court. Accordingly it prayed the court, to squash the petition, since there is no
public interest is involved in it or as apprehended by the parties, the fundamental
human rights are relegated to a secondary position.

The case is posted for final hearing on : 24th sept.2009

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 UNIVERSITY OF PUNE

DEPARTMENT OF LAW & BOARD OF STUDENT’S WELFARE

LATE JUSTICE GAJENDRAGADKAR

INTERCOLLEGIATE MOOT COURT COMPETITION 2009

Rules of the competition

1. The competition will commence at 10.00 a.m. on Thursday, the 24th September 2009.
Participants should report at the Sant Namdev Sabhagraha, kher Vangamaya Bhavan ,
University of Pune, 30 min. before the commencement of the competition. i.e. 9:30 a.m.
2. There is no entry or registration fee.
3. No travelling and dearness allowance will be paid to the participants.
4. There will be only one round of competition with one moot problem.
5. Each college is required to send a team (consisting of 2 students) one for the appellant and
one for the respondent.The names of the team members (bonafide students) should be
communicated in writing by the Principal, on or before 15th Sept.2009. No entry will be
accepted thereafter.
6. The order of presentation will be on the basis of lots drawn at the time of commencement
of the competition. The arguing team is not to reveal the name of the college either while
arguing or on the written submission. Only the names of the participants shall be declared
and written.
7. There shall be THREE PRIZES
i. The best team getting highest number of marks will be declared as the winner team
and will be awarded a rolling trophy.
ii. The students of this team will be given individual mementos and certificate of ranking.
iii. Best student advocate securing highest individual marks will get ‘the best student
advocate award’ (memento).
iv. The students of the team securing second position will be given individual mementos
and certificate of ranking.
v. The students of the team securing third position will be given individual mementos and
certificate of ranking.
8. All participants will be given certificate of participations.
9. At a time only the team which is arguing will be present in the court. All other participants
will be seated at a place marked by the Coordinator of the competition.
10. Each team is to argue for total 16 minutes i.e. 6+6 minutes for argument and 2+2 minutes
for each student to answer the queries asked by the judges. The questions shall be asked
by the judges at the end of the arguments.
11. The Court will consist of two Judges.
12. Student participants are advised to wear black coats.
13. The students must carry with them photo identity card duly signed by authorised
signatory/Principal.

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14. Necessary books and reports for reference must be brought by the concern college itself.
15. Argument shall be in English only.
16. Each participating team shall submit 2 copies each i.e. 4 copies of the written submission
three days before the competition. i.e. on or before 22nd September 2009.
17. The marks will be assigned to each team in the manner shown below.
Marks total 100

- For written submission 20 marks

- For substance in argument 40 marks

- For skill of advocacy 20 marks

- For general impression + court 20 marks

manners and behaviour -----------

100 marks

18. The competition will take place on the University campus.

19. The decision of the judges is final in regard to the result of the competition and no
complaints in this regard will be entertained.
20. All communications regarding the competition be addressed to :
Mr.Naresh Waghmare, Lecturer, Department of Law,University of Pune, Pune-411007

Office Ph. (020)25601304, Mobile: 9326030479

Email: nvwaghmare@unipune.ernet.in

Fax : (020)25692879

In respect of any other dispute the decision of University authority will be final.

21. The result of the competition and prize distribution will be on the same day.

xxxxx

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 UNIVERSITY OF PUNE

DEPARTMENT OF LAW & BOARD OF STUDENT’S WELFARE

LATE JUSTICE GAJENDRAGADKAR MEMORIAL

INTERCOLLEGIATE MOOT COURT COMPETITION 2009

REGISTRATION FORM

1. Name of Law College:

2. Correspondence Address:

Tel. No.: Fax No:

Email:

3. Name of Contact person:

Mobile No. Email:

4. Team Members:

a) Name of Mooters:

i)

ii)

b) Name of Researchers:

i)

ii)

5. Bonafide Certificate:

This is to certify that the team members are bonafide students of our institution.

Signature

Seal Principal

Law College

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 UNIVERSITY OF PUNE
DEPARTMENT OF LAW
Ganeshkhind Pune 411 007 Tele Fax 020- 25692879;25601304
_________________________________________________________
Dr.T.S.N.Sastry tsnsastry@gmail.com
Professor

Ref. PU/Law/ Date : 02/09/09

To,
The Principal,
Law College,

Dear Sir/Madam,

The Department is happy to bring to your kind attention that the Annual
‘Late Justice P. B. Gajendragadkar Moot Court Competition for the academic year
y
th
2009-10
10 is scheduled to be held on 24 September, 2009 (Thursday) in
Sant Namdev Sabhagrah, Kher Vangmaya Bhavan, University of Pune. In this
regard, we request you to send the names of a team consisting of two students
one for the Appellant and the other for the Respondent.
Please find enclosed herewith a copy of rules, the Moot Court problems
and registration form. The entries may be sent to Mr. Naresh Waghmare,
Lecturer,
ordinator (Late Justice P. B. Gajendragadkar Moot Court Competition-2009),
Co-ordinator Competition
th
Department of Law, University of Pune on or before 15 September, 2009 either
by hand/by post/e-mail/fax.
mail/fax.
E-mail : nvwaghmare@unipune.ernet.in Fax No. (020) 25692879
It may be brought to your kind attention that the winners of the team will
be representing the University at the Annual Bar Council of India’s Moot Court
Competition.
Thanking you,

Yours faithfully

(T. S. N. Sastry)
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