1.

THAT THE CONSTITUTIONALITY OF A LAW IS NOT TO BE MEASURED BY

ITS OBJECT BUT BY ITS EFFECT:-

It is humbly submitted by the Respondent that it is the Effect of the Law which determine its
Constitutionality and not the object, which it seeks to achieve. It is further submitted by the
respondents that the Object Test has been replaced by the Eleven Judges Bench of Hon’ble
Supreme Court in R.C.Cooper vs. Union of India1, wherein the court observed that:-

“[Precedent demonstrates that] it is not the object of the authority making the law impairing
the right of a citizen, nor the form of action that determines the protection he can claim: it is
the effect of the law and of the action upon the right which attract the jurisdiction of the
Court to grant relief. If this be the true view, and we think it is, in determining the impact of
State action upon Constitutional guarantees which are fundamental, it follows that the extent
of protection against impairment of a fundamental right is determined not by the object of the
Legislature nor by the form of the action, but by its direct operation upon the individuals
rights.”2

Thus, the Effect of Law on the Fundamental Right of a Citizen would be the true test of
determining its Constitutionality and not its object.

2. THAT IT IS BEYOND LEGISLATIVE COMPETENCE TO ENACT SEC. 4(A) OF

THE SPAF ACT, 2016.

I. THAT “IN AID OF THE CIVIIL POWER” MEANS DIRECTION OR

SUPREINTENDENCE OR CONTROL BY THE STATE GOVERNMENT

It is humbly submitted by the Respondents that the words “in aid of the civil power” in
entry 1 of the State List and in Entry 2A of the Union List implies that deployment of the
armed forces of the Union shall be for the purpose of enabling the civil power in the State
to deal with the situation affecting maintenance of public order which has necessitated the
deployment of the armed forces in the State postulates the continued existence of the
authority to be aided  a law providing for deployment of the armed forces of the Union in
aid of the civil power in the State does not comprehend the power to enact a law which
would enable the armed forces of the Union to supplant or act as a substitute for the civil
power in the State in whose aid the armed forces are so deployed. Thus, the State shall
have the exclusive power to determine the purposes, the time period and the areas in
which the armed forces should be requested to act in aid of civil power and that the State
retains a final directorial control to ensure that the armed forces act in aid of civil power.

It is further submitted by the Respondents that, the Entry 2A was inserted with Article
257-A which talked about

“Assistance to States by deployment of armed forces or other forces of the Union. -(1) the
Government of India may deploy any armed force of the Union or any other force subject

1
(1970) 1 SCC 248
2
Ibid.
 to the control of the Union for dealing with any grave situation of law and order in any
State.

(2) Any armed force or other force of any contingent or unit thereof deployed under
clause (1) in any State shall act in accordance with such directions as the Government of
India may issue and shall not, save as otherwise provided in such directions, be subject to
the superintendence or control of the State Government or any officer or authority
subordinate to the State Government.”3

The Article 275A if read with Article 2A gives “absolute independence” to the Armed
Forces from State Government or authorities subordinate to the State Government, where
such armed force are deployed in the aid of civil power of that State, but subject it to the
exclusive control of the Union. Thus, the intention of legislature behind deleting the
article through 44th Amendment was that the “armed forces of the union” can never aid
the civil powers of the state, if they are not subject to the State Government or authorities
subordinate to the State Government and absolute independence to the armed forces will
supplant and substitute the Civil Powers of the State rather than give aid to it. Hence, as
soon as the whole o any part of a State has been declared to be disturbed area
under Section 3 of the Central Act members of armed forces get independent power to act
under Section 4 of the Central Act and to exercise the said power for the maintenance of
public order independent of the control or supervision of any executive authority of the
state. Thus, Sec. 4(a), 4(b), 4(c), 4(d) & 4(e) being outside the Legislative competence
must be struck down as Unconstitutional.

II. THAT THE PARLIAMENT HAS NO LEGISLATIVE COMPETENCE TO

VEST ARMY WITH THE POWER TO MAINTAIN ‘PUBLIC ORDER’

It is humbly submitted by the Respondent that Bharat has no Power to enact laws on those
subject which came exclusively under the State list4 and neither can it give such power,
which is exclusively vested in the State list, to any authority mentioned in Union list or which
Union has exclusive control. The power to maintain ‘Public Order’ falls exclusively in the
State list5 and any power given to maintain such order can only be by the State of Dras and
not by the Union. Sec. 4(a) of the Special Powers to the Armed Forces Act (SPAFA), 2016
mentions that:-

“Any commissioned officer, warrant officer, non-commissioned officer or any other person
of equivalent rank in the armed forces may, in a disturbed area,—

(a) if he is of opinion that it is necessary so to do for the maintenance of public order,

after giving such due warning as he may consider necessary, fire upon or otherwise
use force, even to the causing of death,…”6

3
42nd Amendment to the Indian Constitution, See also Naga People Movement of Human Rights v Union of
India
4
Union of India v H.S.Dhillon
5
Article 248 of the Indian Constitution
6
The power to cause death or fire upon any person in “order to maintain Public Order” cannot
be given to the Armed Forces of the Union. As the Union of India has no power to vest armed
forces with power to maintain ‘Public Order’ but can only give such Power which is
necessary ‘to aid the Civil Power’ in the State and the power to maintain ‘Public Order’
falling exclusively within the State Legislature and can only be vested by State Legislature
sec. 4(a) has to be struck down as Unconstitutional 7. The motive or the object of providing
power beyond legislative competence is irrelevant. 8 Thus, it attracts the Doctrine of
Colourable Legislation which has been described by Hon’ble Supreme Court, wherein it
observed that:-

“The idea conveyed by the expression is that although apparently a legislature in passing
a statute purported to act within the limits of its powers, yet in substance and in reality it
transgressed these powers, the transgression being veiled by what appears, on proper
examination, to be a mere presence or disguise.”9

3. THAT THE SEC. 4(d) VIOLATES RIGHT TO PRIVACY GUARANTEED UNDER

RIGHT TO LIFE
I. THAT THE “ENTER AND SEARCH” WITHOUT WARRANT VIOLATES
RIGHT TO PRIVACY

It is humbly submitted by the Respondents that after the Judgement of Hon’ble Supreme
Court in K.S.Puttuswamy v. Union of India10 Right to Privacy has been given the status of
Fundamental Right flowing from the Right to Life. Thus, to test down the
Constitutionality of any act, provision or section both the act and the right have to be read
together if such act, provision or section violates the Fundamental Right of Pivacy, then it
shall be struck down as Unconstitutional. Sec. 4(d) mentions that:-

“enter and search, without warrant, any premises to make any such arrest as aforesaid or
to recover any person believed to be wrongfully restrained or confined or any property
reasonably suspected to be stolen property”

The Power to “enter and search, without warrant any premises” gives unbridled power to
the army to search any place and to enter any premise at any time without the consent of

7
Namit Sharma v. Union of India, WRIT PETITION (CIVIL) NO. 210 of 2012 (India). See also Rakesh Kholi’s case,
(2012) 6 SCC 312 (India). “A law made by Parliament or the legislature can be struck down by Courts on two
grounds and two grounds alone viz. (1) lack of legislative competence, and (2) violation of any of the
fundamental rights guaranteed in Part III of the Constitution or of any other Constitutional provision. There is
no third ground .”
8
K.C. Gajapati Narayana Deo And Other v. The State Of Orissa:-
The doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of
the legislature. The whole doctrine resolves itself into the, question of competency of a particular legislature to
enact a particular law.

If the legislature is competent to pass a particular law, the motives which impelled it to act are really
irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all.
Whether a statute is constitutional or not is thus always a question of power
9
Ibid.
10
 the person residing in such premise, constitute the utmost breach of Person’s
Constitutionally Guaranteed Right to Privacy.

II. THAT THE PROCEDURE IS NOT JUST, REASONABLE AND FAIR

It is humbly submitted by the Respondents that the “Procedure established by Law” for
entering and searching the premises for making “arrest or to recover” must be Just, Fair &
Reasonable11 but here it suffers from manifest arbitrariness and unreasonableness. In
Maneklal v. M.G.Makwana12, the Supreme Court observed,

“Restrictions on the exercise of a fundamental right shall not be arbitrary, or excessive,

or beyond what a required in the interest of the general public. The reasonableness of a
restriction shall be tested both from substantive and procedural aspects. If an
uncontrolled or unguided power is conferred, without any reasonable and proper
standards or limits being laid down in the enactment, the statute may be challenged as
discriminatory”13 and has to be struck down as Unconstitutional.

The aforesaid section gives “uncontrolled and unguided power” to the armed forces of the
Union to make arrest and search the premises without the warrant and without the
superintendence or direction or control of the State authority. Thus, making it
independent and not being subject to any authority under the State Government for taking
any action in disturbed areas. Hence, not aiding but substituting and supplanting the
‘Civil Powers’ of the State. Further, it does not provide any reasonable standard to make
“enter or search” any premises as the army can make arrest just on a mere “believe” 14 or
“suspicion” of existence of arms or ammunition or stolen property. Further, the act does
not provide any time period to review the need for existence of such Law. So, it can be
continued for an unlimited time period. Thus, applying the effect test, the aforementioned
section inevitably violates right to privacy of individual living in the area where the law is
in force. Supreme Court in Extra Judicial Execution Victim Families Association & Anr.
v. Union of India & Anr.15 remarked that:-

“If members of our armed forces are deployed and employed to kill citizens of our
country on the mere allegation or suspicion that they are ‘enemy’ not only the rule of law
but our democracy would be in grave danger…”

Preserving the rule of Law and recognition of individual liberties constitute an important
component of its understanding of security. At the end of the day, they strengthen its
spirit and allow it to overcome its difficulties.16

11
Maneka Gandhi v. Union of India
12
AIR 1967 SC 1373
13
Ibid.
14

15
WRIT PETITION (CRIMINAL) NO. 129 OF 2012
16
Ibid.
 Thus, the existence of “Suspicion” however reasonable may be is not any reasonable and
proper standard to validate the Constitutionality of the Statue because it has the effect of
violation of Human Rights which has been exclusively protected under Protection of
Human Rights Act, 1950 enacted by the Parliament.

4. THAT THE SEC. 4 AND THE WHOLE ACT SHALL BE STRUCK DOWN AS
UNCONSTITUTIONAL ON THE BASIS OF DOCTRINE OF SEVERABILITY

It is humbly submitted by the Respondents that, Sec. 4(a) and sec 4(d) being violative of
Constitutional provisions must be struck down as Unconstitutional. Further, according to
the Doctrine of Severability 17 even when the provision which are valid and distinct and
separate from which are invalid, if they all form part of a single scheme which is intended
to be operative as a whole, then also the invalidity of a part will result in the failure of the
whole. Thus, section 4 even though having different and valid part has been intended by
the legislature to be operative as whole and as such, sec. 4 in toto should be held
unconstitutional. Further, Sec. 4 being the heart and the operative part of the whole act
and being unconstitutional in toto nothing remains in the act and as such it was never
intended by the Legislature that the SPAFA, 2016 would exist without sec.4 being in
existence, the whole act shall be turned down as Unconstitutional.

17
R.M.D.Chamarbaugwalla v Union of India