INRR41

INTERNAL NATIONAL RANKING ROUNDS 2022-23

IN THE HON’BLE SUPREME COURT OF PICARONES

W.P No.: ____/2022

MOCHI PUBLIC WELFARE ASSOCIATION …PETITIONER

v.

UNION OF PICARONES …RESPONDENT

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE

AND HIS COMPANION JUSTICES

OF THE HON’BLE SUPREME COURT OF PICARONES

MEMORANDUM ON BEHALF OF PETITIONER

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TABLE OF CONTENTS

INDEX OF AUTHORITIES …iii

TABLE OF ABBREVIATIONS …iv
STATEMENT OF JURISDICTION …v
STATEMENT OF FACTS …vi
ISSUES RAISED …vii
SUMMARY OF ARGUMENTS …viii
ARGUMENTS ADVANCED …1
ISSUE 1 …1
ISSUE 2 …4
ISSUE 3 …7
ISSUE 4 …12
PRAYER …16

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INDEX OF AUTHORITIES

CASE LAWS

1. Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516.
2. Ajoy Kumar Banerjee v. Union of India, (1984) 3 SCC 127
3. Bandhua Mukti Morcha v. UOI, 1984 AIR 802.
4. Fertilizer Corporation Kamgar Union v. Union of India AIR 1981 SC 344.
5. George Mampilly v. State of Kerala, AIR 1985 Ker 24.
6. Gwalior Rayon Silk Mfg. (Wvg.) Co. v. The AC of Sales, AIR 1974 SC 1660.
7. Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.
8. K S Puttaswamy v. UOI, (2017) 10 SCC 1.
9. Kedar Nath v. State of Bihar, 1962 AIR 955.
10. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
11. Maneka Gandhi v. UOI, AIR 1978 SC 597.
12. Modern Dental College Research Centre v. State of Madhya Pradesh, (2016) 7 SCC
13. Prashant Mehta v. State Of H.P. & Ors on 15 March, 2021.
14. Ram Nandan v. State of UP; AIR 1959 All 101
15. Shreya Singhal v. Union of India, (2015) 5 SCC 1.
16. SP Gupta v. Union of India , AIR 1982 SC 149.
17. State of Punjab v. Khan Chand, AIR 1974 SC 543.
18. Subramanian Swamy v. CBI (2014) 8 SCC 682.
19. Ram Krishna Dalmia v Justice S. R.Tendolkar, AIR 1958 SC 538.
20. The Superintendent, Central Prison v. Ram Manohar Lohia, 1960 AIR 633.

BOOKS

1. MP Jain, Constitution of India (8th ed. 2018)

2. Durga Das Basu, Commentary On The Constitution Of India (9th Ed. 2015)

3. MP Singh, V N Shukla’s Constitution of India (13th ed. 2017)

4. P.M. Bakshi, The Constitution of India, (8th Ed. 2007)
5. Dr Subhash C Kashyap, Constitutional Law of India (Vol 1, 2nd Ed 2015)

ARTICLES

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1. Vakasha Sachdev, Outdated, Vague, Chilling: Why Sedition May Meet Its End in the
Supreme Court

TABLE OF ABBREVIATIONS

AIR All India Reporter

Anr. Another

Art. Article

CJ Chief Justice

Const. Constitution

Etc. Etcetera

Hon’ble Honourable

In re In Reference

No. Number

Ors. Other

SC Supreme Court

SCC Supreme Court Cases

UOI Union of India

V. Versus

Vol Volume

WP Writ Petition

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STATEMENT OF JURISDICTION

The counsel for the Petitioner most humbly submits that the Hon’ble Supreme Court of
Picarones has the writ jurisdiction under Article 32 of the Constitution of Picarones, 1950, to
hear and dispose off the matter in accordance with law.

Article 32: Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1)
and (2), Parliament may by law empower any other court to exercise within the
local limits of its jurisdiction all or any of the powers exercisable by the
Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.

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STATEMENT OF FACTS

BACKGROUND
Picarones is a Sovereign, Democratic and Secular country. Mochi and its law enforcement
agencies were infamous for their crime rates and handling crimes respectively, to facilitate this
The Picarones Criminal Procedure (Identification) Act, 2022 came into force on 12th March
2022 which permitted police authorities to collect and maintain a record of personal
information of any person convicted, arrested or detained.

DRAMATIS PERSONAE
Xeno Syrinki is a Masters student in Political Science in Kataifi University. He has been an
active citizen, part of Mochi Public Welfare Association and founder of the UNAGI club in the
university. He had contested the student body elections which he consequently lost.
Longman Persimmon is a penultimate year law student, who is the secretary of the UNAGI
club. On being discontent with institutional failure, he expressed his concerns regarding the
student body elections. This led to his detention by the police.
Vitara is a public-spirited lawyer who on hearing the incidents assisted Xeno through Mochi
Public Welfare Association to file the present petition.

TIMELINE
On 07.04.2022, The results of the election that are unfavourable to Xeno Syrinki are
announced. From 07.04.2022 to 10.04.2022, There were multiple demonstrations to express
concerns about the University Student Body elections by multiple members after reading the
tweet and pamphlet of Longman Persimmon in favour of Xeno. On 10.04.2022, Longman is
detained under Sections 124A and 153A of The NPCP. On 14.04.2022, A protest was scheduled
to express displeasure of Longman’s arrest. Since permission was not granted, inferring anti
national sentiment from flags and posters, Xeno along with over 20 people were detained.

ACTION TAKEN AGAINST DETAINEES

Since permission for the protest was not granted by the local police authorities and Section 144
of Picarones Criminal Code (PCC) was imposed in and around Kataifi University, it gave the
police authority to detain Xeno and over 20 people from the Unagi club. At the police station,
all the detained parties were coerced to give their finger impressions, palm-print and foot-print
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impressions, photographs, iris and retina scan, physical and biological samples and their
analysis along with other relevant body measurements.

ISSUES RAISED

ISSUE 1

WHETHER THE PETITIONER HAS SUFFICIENT LOCUS STANDI TO FILE THIS PETITION?

ISSUE 2

WHETHER SECTION 124-A OF THE NATIONAL PENAL CODE PICARONES IS CONSTITUTIONALLY VALID?

ISSUE 3

WHETHER PICARONES CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022 IS VIOLATIVE OF THE

FUNDAMENTAL RIGHTS GUARANTEED UNDER THE PICARONES CONSTITUTION?

ISSUE 4

WHETHER SECTION 8 OF THE PICARONES CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022 SUFFERS FROM
EXCESSIVE DELEGATION AND IS THUS UNCONSTITUTIONAL?

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SUMMARY OF ARGUMENTS

ISSUE 1

WHETHER THE PETITIONER HAS SUFFICIENT LOCUS STANDI TO FILE THIS PETITION ?

The Petitioners most humbly submit that they are members of the public having sufficient
interest in judicial redressal for public injury arising out of breach of Constitutional provisions
and only seek the enforcement of their fundamental rights enshrined in the Constitution. They
have sufficient locus standi to challenge the constitutionality of Section 124A, constitutional
vires of The Picarones Criminal Procedure (Identification) Act, 2022 and the powers delegated
therein. In the instant matter, the petitioner and several others' fundamental rights were
abrogated by abuse of power and detention under Section 124A of the NPCP and other
impugned legislations. The Petitioners are non-political, non-profit, and voluntary organisation
championing the cause of abolishing draconian laws, thereby giving sufficient locus for the
instant petition.

ISSUE 2

WHETHER SECTION 124-A OF THE NATIONAL PENAL CODE PICARONES IS

CONSTITUTIONALLY VALID?

The petitioners most humbly submit that Section 124A is violative of the Fundamental Right
to Speech and Expression under Article 19(1)(a) and does not fall within the bounds of
reasonable restrictions under Article 19(2) as it suffers from over breadth and it gives a chilling
effect. In the instant matter, it fails the test of immediate harm. The petitioners further submit
that the operation of Section 124A is arbitrary, an unbridled restriction, uncanalised restriction
which is excessive in nature. The petitioners most humbly submit that this is a case where
individuals were unduly arrested and further subjected to collection of finger impressions,
palm-print and foot-print impressions, photographs, iris and retina scans, physical and
biological samples and their analysis all of which constitute the abrogation of Article 14,19 and
21 of the Constitution. Thus, Section 124A cannot be interpreted to be a wide provision to

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curtail acts of criticising the government without inciting violence. In light of the same, it is
unconstitutional and has to be struck down as violative of Part III of the Constitution.

ISSUE 3

WHETHER PICARONES CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022 IS VIOLATIVE

OF THE FUNDAMENTAL RIGHTS GUARANTEED UNDER THE PICARONES CONSTITUTION?

The petitioners most humbly submit that Criminal Procedure (Identification) Act, 2022 is
violative of the Fundamental Right to life and liberty enshrined under article 21 of the
constitution of Picarones as it suffers from overbreadth. Furthermore, in the present case it fails
the test of proportionality. Furthermore, the said act is violative of Article 14 of the Constitution
since it fails the test of manifest arbitrariness and hence the Act is unconstitutional.

ISSUE 4

WHETHER SECTION 8 OF THE PICARONES CRIMINAL PROCEDURE (IDENTIFICATION) ACT,

2022 SUFFERS FROM EXCESSIVE DELEGATION AND IS THUS UNCONSTITUTIONAL ?

It is humbly submitted before this Hon’ble Court that Section 8 of the Criminal Procedure
(Identification) Act, 2022 suffers from excessive delegation, as the legislative powers so
delegated do not fall under the permissible limits prescribed under the Constitution. In addition
to that, the legislature delegated an excessive amount of powers to the executive without
providing sufficient guidelines, which is ultra vires to the Constitution

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ARGUMENTS ADVANCED

ISSUE 1

WHETHER THE PETITIONER HAS SUFFICIENT LOCUS STANDI TO FILE THIS PETITION?

It is most humbly submitted by the petitioners that they have sufficient locus standi and the
present petition is maintainable before the Hon’ble Supreme Court of Picarones. There is a
prima facie violation of the Fundamental Rights enshrined in Part III of the Constitution and
more than 20 individuals have been subjected to detention and forced measurements and data
collection. Additionally, the petitioner is a public-spirited organisation which has filed this
petition in the interest of justice and equity.

It is most humbly submitted that the petitioners have sufficient locus standi as:

1.1 The petitioners have sufficient interest to seek enforcement of Part III of the
Constitution
1.2 The petitioners pass the test for locus standi
1.3 The petitioners have been detained under a prima facie unconstitutional statutory
provision

1.1. THE PETITIONERS HAVE SUFFICIENT INTEREST TO SEEK ENFORCEMENT OF PART III OF THE
CONSTITUTION
The petitioners most humbly submit that Mochi Public Welfare Association has sufficient
interest1 to file this petition in order to seek enforcement of the Fundamental Rights of Xeno
Syrinki and the other individuals who have been detained as it is an organisation working for
the rights of prisoners and Ms. Vitara is a public-spirited individual.

This Hon’ble Court has been pleased to hold that parties similar to the petitioners have
sufficient locus, as in the case of George Mampilly v. State of Kerala2

“Any member of the public having sufficient interest can maintain an action for judicial
redress of public injury arising from breach of public duty or violation of same
provision of the Constitution or the law and seek enforcement of such public duty and
observance of such constitutional or legal provision. Of course, it must be ensured mat

1
MP Jain, Constitution of India (8th ed. 2018) 585.
2
George Mampilly v. State of Kerala, AIR 1985 Ker 24.
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the person who comes forward is acting bona fide and not for personal gain or private
profit or out of political motivation or other oblique consideration.”

The petitioners most humbly submit that this Hon’ble Court in SP Gupta v. Union of India3
and the Bandhua Mukti Morcha case4 have expanded the scope of Public Interest Litigation
or pro bono publico5 to include petitions in representative capacity from other organisations
which are working towards ensuring enforcement of constitutional remedies6 for the benefit of
individuals who do not have access to the legal system.

J.Bhagawati, in S P Gupta case, further observes that:

“If public duties are to be enforced and social collective “diffused” rights and interests
are to be protected, we have to utilize the initiative and zeal of public minded persons
and organizations by allowing them to move the Court and act for a general or group
interest, even though, they may not be directly injured in their own rights”.

Therefore, the Court has allowed social organisations, newspaper reports, individual letters et
al to have sufficient locus standi in multiple occasions and in the instant matter, the petitioners
have sufficient locus standi.

1.2. THE PETITIONERS PASS THE TEST FOR LOCUS STANDI

In order to uphold the principle of Rule of Law, the strict rule of locus standi in private law is
not applicable in cases where the constitutional mandate is in question.7 As per Justice Krishna
Iyer:

“any member of the public having sufficient interest can maintain an action for judicial
redress for public injury arising from breach of public duty or from violation of some
provision of the Constitution or the law and seek enforcement of such public duty and
observance of such constitutional or legal provision8”

The test for locus standi in a Public Interest Litigation post the SP Gupta case is

a) Whether there has been a breach of public duty or constitutional right ?

b) Whether the petitioners are bona fide?

3
SP Gupta v. Union of India , AIR 1982 SC 149.
4
Bandhua Mukti Morcha v. UOI, 1984 AIR 802.
5
MP Singh, V N Shukla’s Constitution of India(13 th ed. 2017) 373-375.
6
Jitendra Nath v. State of West Bengal Board of Examination, AIR 1983 Cal. 275.
7
Supra Note. 3.
8
Fertilizer Corporation Kamgar Union v. Union of India AIR 1981 SC 344.
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C) Whether there is any private interest ?

The petitioners most humbly submit that they are approaching the Hon’ble Supreme Court with
bona fides and are seeking to enforce the constitutional rights of the individuals like Xeno and
over 20 other individuals that were detained9. Therefore the petitioners are within the ambit of
the wide scope of locus standi in Public Interest Litigation.10

1.3 THE PETITIONERS HAVE BEEN DETAINED UNDER A PRIMA FACIE UNCONSTITUTIONAL

STATUTORY PROVISION

The Petitioners most humbly submit that the circumstances of the detainment and forcefully
extracting body samples, fingerprints, palm prints, iris and retina scans al are prima facie
unconstitutional. The conduct of the Mochi Police is in blatant violation of the constitutional
guarantee of Articles 14, 19 and 21. Therefore, Mochi public Welfare association will be
considered as a legitimate aggrieved person.11

The Petitioners most humbly submit that Xeno and his counterparts were detained under
Sections 124A and for having planned some demonstration12. This is a part and parcel of Article
19(1)(a) therefore, since constitutional law does not allow for the abrogation of Part III, it must
be strictly interpreted in light of the provisions contained in The Picarones Criminal Procedure
(Identification) Act, 2022.

A relevant observation has been made by the Himachal Pradesh High court13:

“A person acting bona fide and having sufficient interest in the proceeding of public
interest litigation will alone have a locus standi and can approach the Court to wipe
out violation of fundamental rights and genuine infraction of statutory provisions, but
not for personal gain or private profit or political motive or any oblique consideration”

There have been multiple High Court judgements that have ruled on the unconstitutionality of
the laws under which they were charged, there have been discussions surrounding The
Picarones Criminal Procedure (Identification) Act, 2022. Therefore it is pertinent for the
Hon’ble Court to revisit the Kedar Nath v. State of Bihar case.14

9
Moot Proposition, Pg. 2.
10
Halde, Mahesh Ram, Locus Standi Has Widening the Scope of Public Interest Litigation (Accessed on:
September 8, 2022, 9 PM) https://ssrn.com/abstract=1934112.
11
MP Singh, V N Shukla’s Constitution of India(13 th ed. 2017) 376.
12
Moot Proposition, Pg. 2.
13
Prashant Mehta v. State Of H.P. & Ors on 15 March, 2021.
14
Kedar Nath v. State of Bihar, 1962 AIR 955.
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Therefore the petitioners have sufficient locus standi to file the present petition and get access
to justice.

ISSUE 2

WHETHER SECTION 124-A OF THE NATIONAL PENAL CODE PICARONES IS CONSTITUTIONALLY VALID?

The Petitioners most humbly submit that Section 124A is unconstitutional as it suffers from
over breadth and that it has a chilling effect on the Freedom of Speech and Expression
guaranteed by the Constitution of Picarones. It is further submitted that the vague and ill-
defined definition does not follow the principles of Rule of Law.

2.1 SECTION 124 A SUFFERS FROM OVER-BREADTH

Section 124A reads:

“Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible

representation, or otherwise, brings or attempts to bring into hatred or contempt, or
excites or attempts to excite disaffection towards, the Government established by law
in [India], shall be punished with [imprisonment for life], to which fine may be added,
or with imprisonment which may extend to three years, to which fine may be added, or
with fine.”

The Petitioner most humbly submits that the definition is all-encompassing and can be
interpreted to include all political criticism. This makes the section very broad and thus
unconstitutional. The Court held that a mere possibility of public disorder is not enough to
justify a restriction on the fundamental right of freedom of speech and expression.15

It is observed that the following are the necessary metrics to convict a person under Section
124A:

“In order to sustain a conviction under Section 124-A, it must be proved (a) that the
accused spoke the words in question, (b) that he thereby brought or attempted to bring
into hatred or contempt or excites or attempts to excite disaffection, and (c) that such
disaffection was towards the Govt. established by law in India. An accused person may

15
Ram Nandan v. State of UP; AIR 1959 All 101.
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be legally tried and convicted in one trial under sections 124- A and 153-A, I.P.C. on
charges framed on three disconnected articles.”16

The Petitioner submits that in the instant matter there was no intention to excite or bring any
hatred to the government, much less intended to do so with violence.

It is further submitted that since the court's interpretation allows sedition to be invoked for
words that can have the 'tendency' to create public disorder or disturb law and order, the police
can still invoke it even in cases of just critical speech, and claim there is potential for serious
disorder because of it.17

2.2 SECTION 124 A HAS A CHILLING EFFECT AND FAILS THE TEST OF PROPORTIONALITY
The Petitioner most humbly submits that Section 124A fails the test of proportionality laid
down in the Puttaswamy Judgement18.

“The law imposing restrictions on fundamental rights must have a legitimate state aim

The restrictions must be necessary to protect those legitimate aims and there must be a
rational connection between the restrictions and the objective behind them

The measures suggested by the law should not infringe rights any more than required
and should be the least restrictive way of achieving the objective

The measures must not have a disproportionate impact on the rights holder”

The Kedar Nath Judgement fails to appreciate the Basic structure Doctrine19 and the
proportionality test as mentioned above. Section 124A does not have the necessary safeguards
and the same is evidenced in the factual matrix20.

The petitioners most humbly submit that Section 124A has been widely used to curb any form
of dissent or political criticism, this has a chilling effect of the Freedom of Speech and
Expression. When the restriction imposed is like Section 124A and fails the test of

16
Ankur Gupta, Sedition RMNLU (Accessed on: September 8, 2022, 9PM)
http://www.rmlnlu.ac.in/webj/sedition.pdf.
17
Vakasha Sachdev, Outdated, Vague, Chilling: Why Sedition May Meet Its End in the Supreme Court
(Accessed on: September 7, 2022 10PM) https://www.thequint.com/news/law/sedition-petitions-sc-
vombatkere-egi-arun-shourie-arguments-constitutionality-124a-ipc.
18
K S Puttaswamy v. UOI, (2017) 10 SCC 1.
19
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
20
Moot Proposition, Pg. 3.
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proportionality, it fails to fall within the ambit of Section 19(2) and will therefore be struck
down as unconstitutional.

The Court upheld the constitutionality of the sedition law, but at the same time curtailing its
meaning and limiting its application to acts involving intention or tendency to create disorder,
or disturbance of law and order, or incitement to violence. The judges observed that if the
sedition law was to be given a wider interpretation, it would not survive the test of
constitutionality.21

Therefore it is most humbly prayed that Section 124A be declared unconstitutional.

2.3 SECTION 124A DOES NOT COMPLY WITH RULE OF LAW

The Petitioners most humbly submit that the doctrine of Rule of Law is crucial for any judicial
system to exist. The continuance of enforcement of Section 124A would be derogatory to the
principle of Rule of Law as it violates Articles 14, 19 and 21 enshrined in the Constitution of
Picarones.

The petitioners most humbly submit that in the instant matter, Kedar Nath case ought to be per
incuriam as it failed to accommodate and apply a judicial mind to the abrogation of
fundamental rights that are rampant under Section 124A cases.

The immediate harm principle22 as envisaged was not applied. The fact that the Hon’ble
Supreme Court has allowed for distinction between mere “tendency” and existence of
immediate harm and the local law enforcement agency still applies the law based on suspicion
and other rough intuition. Therefore, the proposition of law as to the extent and necessity of
Section 124A is to be referred to a higher bench strength than that of Kedar Nath v. State of
Bihar.

In the Ram Manohar Lohiya case23, it has been clearly established that leaving such room for
subjective decision making by the local enforcement authorities is liable to be struck down for
being vague and unclear.

Article 21 prescribes that no person shall be deprived of his life or personal liberty except
according to the procedure prescribed by law24. The word ‘life’ has been given an expansive

21
Siddharth Narrain,'Disaffection' and the Law: The Chilling Effect of Sedition Laws in India, Economic and
Political Weekly, FEBRUARY 19-25, 2011, Vol. 46, pp. 33-37.
22
Kedar Nath v. State of Bihar, 1962 AIR 955.
23
The Superintendent, Central Prison v. Ram Manohar Lohia, 1960 AIR 633.
24
Maneka Gandhi v. UOI, AIR 1978 SC 597.
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meaning and has been now recognised to mean to live a life of decency and not a mere
animal existence.

ISSUE 3

WHETHER PICARONES CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022 IS VIOLATIVE OF THE

FUNDAMENTAL RIGHTS GUARANTEED UNDER THE PICARONES CONSTITUTION?

It is the humble contention of the Petitioners that the Criminal Procedure (Identification) Act,
2022 is violative of Articles 14 and 21 of the Picarones Constitution and is thus
unconstitutional. The counsel shall adopt a two pronged approach to prove the same:

1. The Act is violative of the right to privacy enshrined under Article 21 of the Constitution
2. The act is manifestly arbitrary and thus is violative of Article 14 of the Constitution

3.1 THE ACT IS VIOLATIVE OF THE RIGHT TO PRIVACY ENSHRINED UNDER ARTICLE 21 OF
THE CONSTITUTION

The Supreme court in the case of KS Puttaswamy v. UOI25 had in its judgment declared the
right to privacy a fundamental right under Article 21 of the Constitution. Furthermore, While
ruling on the constitutionality of the Aadhaar framework in Puttaswamy-II,26 the five-judge
bench reiterated the inclusion of informational privacy (including biometric and other personal
data) within the right to privacy under Article 21. Retention of data containing private
information constitutes an infringement on the right to privacy.

An infringement of the right to privacy is constitutional only if it satisfies the four-fold test of
proportionality laid down in Puttaswamy-I27 and Puttaswamy-II.28
As a result, we interpret the Puttaswamy-II29 decision as a clarification of the Modern Dental
College30 decision. The prescribed test was as follows:

1. Legitimate aim, ensuring that the goal is ‘of sufficient importance to warrant overriding
a constitutionally protected right or freedom.’
2. Suitable means, implying thereby a rational connection between means and ends.

25
KS Puttaswamy v. Union of India, (2017) 10 SCC 1.
26
KS Puttaswamy v. Union of India, (2019) 1 SCC 1.
27
KS Puttaswamy v. Union of India, (2017) 10 SCC 1.
28
KS Puttaswamy v. Union of India, (2019) 1 SCC 1.
29
KS Puttaswamy v. Union of India, (2019) 1 SCC 1.
30
Modern Dental College Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.
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3. Necessity of means to be judged as follows:

a. First, identify a range of possible alternatives to the measure employed by the
State;
b. Next, examine the effectiveness of each of these measures in realising the
purpose in a ‘real and substantial manner;
c. Next, examine the impact of each measure on the right at stake;
d. Finally, determine whether there exists a preferable alternative that realises the
aim in a real and substantial manner but is less intrusive on the right as compared
to the State’s measure.
4. Proportionality stricto sensu, which should avoid the concerns with ‘ad-hoc balancing’
by judges by using ‘Brightline rules’, which implies conducting the ‘act of balancing'
on the basis of some established rule or by creating a sound rule.

Furthermore, The Act allows for compelling a large class of persons identified under to provide
their measurements.
The Petitioners contend that the act allows convicts, arrestees, detainees, and those ordered to
provide security for breach of peace and good behaviour to be compelled to provide
measurements "if required." The Act makes no further attempt to define the circumstances
under which police or prison officers may compel such measurements. The Act makes no
requirement that the taking of measurements in a specific case be related to assisting the
investigation. As a result, The Act fails to achieve any rational connection to the stated goal of
assisting investigations in specific matters.
The Magistrate may compel "any person" to give measurements the Act if it is found to be
"expedient" for the purpose of an investigation or proceeding under the Criminal Procedure
Code or any other law. It makes no additional requirements that the taking of such
measurements aid in the investigation of a crime. Thus, once again, there is no rational
connection between this power and the legitimate goal of assisting in specific criminal
investigations.
Furthermore, the act sets out provisions for databases and profiles certain classes of people
identified in Sections 3 and 5 to aid in future or past 'cold' investigations by utilising a vast
forensic data bank against which the potential suspect's known measurements can be matched.
The assumption that those compelled to provide measurements for this data bank (i.e. those
covered by Sections 3 and 5) are more likely than the general population to commit an offence

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in the future/have committed an offence in the past, or that their measurements are more likely
than the general population to provide leads for crime detection or investigation is inherent in
the suitability of this Act to the task of assisting future or past investigations.
The class of people covered by the act and the increased likelihood of past or future crime have
not been shown to be causally related (convicts of all offences, detainees, arrestees, those
ordered to give security for maintaining peace and good behaviour). There is no research in
India on the ratio of recidivism among ex-offenders to general population offending rates. The
idea that people who have been detained or arrested are more likely than others to have
committed crimes in the past has also not been proven. Similar to this, the Act continues to
allow for the perpetual retention of the "measurements" made against an arrestee under Section
3 even after the investigation against them is over and they are cleared, released, or released
without a trial. As a result, the Act's provisions are an inadequate means of achieving its
legitimate goals because there is no rational connection between them and the goals it upholds.

3.1.1 THE ACT CONTAINS NO PROCEDURAL SAFEGUARDS TO MINIMIZE THE INFRINGEMENT OF

PRIVACY

The Act omits or leaves to the discretion of executive rule-making bodies several critical
procedural safeguards. The Act makes no mention of the purpose for which the records may
be used, shared, or disseminated, and the determination of such policy is left to the discretion
of the rule-making body. The procedure for removing one's measurement record from the
database is only triggered after an accused person has been acquitted/released/discharged and
has exhausted all legal remedies against such outcomes and is even in that case subject to the
Magistrate's unguided discretion under the Act. There is no guidance on how measurements
should be collected, how long records of such measurements, as well as the measurements
themselves, should be kept, or how a person who refuses to provide measurements should be
forced to do so.

3.2 THE ACT IS MANIFESTLY ARBITRARY AND THUS IS VIOLATIVE OF ARTICLE 14 OF THE

CONSTITUTION

The test of manifest arbitrariness was established as a separate basis for invalidating
parliamentary legislation under Article 14 in Shayara Bano v. Union of India.31 This test, as

31
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
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a means of invalidating legislation, has also been acknowledged by the majority opinion in the
Aadhar 5-J judgement. In that case, Justice Nariman observed that a legislation is manifestly
arbitrary if the same is "done by the legislature capriciously, irrationally and/or without
adequate determining principle.... [the law is] excessive and disproportionate." The
petitioners' modest argument is that the Act is manifestly arbitrary in a number of instances
where it fails to provide any justification or guiding principle.
Because measurements are defined broadly, their collection and storage in databases is
manifestly arbitrary. The current Act aims to accomplish two things. First, it seeks to collect
measurements and use them as evidence in ongoing investigations and proceedings; second, it
seeks to collect and store measurements in databases to aid future investigations and other
crime prevention and detection efforts.
With respect to the first, it needs to be recognised that the expansion of the definition of
measurements in the present Act, to include several types of personal information – all of which
have varying degrees of reliability and usefulness when it comes to criminal investigations - is
manifestly arbitrary. Given that there is no consistent evidentiary framework in Indian law for
the examination of such expert evidence, there is no assurance that the collection of such wide-
ranging types of measurements will bring about any improvement in the efficiency and
effectiveness of investigations. Thus, the rationale for taking and storing such wide-ranging
types of measurements is unclear.

Regarding the second objective, it should be reiterated that not all types of
evidence/information about individuals covered by the definition of measurements are equally
reliable and useful for the purposes of uniquely identifying people involved in crimes. As a
result, it is unclear why a database of such measurements is sought to be created in the absence
of any real value addition to the goals of accurate investigation and efficient prosecution.
Nothing in the law prevents such measurements from being used as investigative tools in
individual cases. The creation of databases remains a mystery. The absence of an express
purpose for search and comparison using such databases adds to the lack of clarity on the Act's
purpose and aims, rendering the Act irrational and manifestly arbitrary.

3.2.1 SECTION 6 PROVIDES NO CLEAR GUIDANCE ON WHAT CONSTITUTES AN OFFENCE

Section 6 violates the right to privacy in an arbitrary and excessive manner. It makes it legal

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for a police or prison officer to compel the taking of measurements in the event of opposition
from a person, in the manner prescribed by the Rules. Furthermore, such resistance or refusal
is punishable under Section 186 of the Indian Penal Code, 1860.
Section 66A was struck down in Shreya Singhal v. Union of India32 for its overbreadth and
vagueness, with the court affirmatively citing case law from the United States where it had
been held that "if no reasonable standards are laid down to define guilt in a section which
creates an offence, and where no clear guidance is given to either law abiding citizens or
authorities and courts, a section which creates an offence and which is vague must be set aside.
Section 6 is also a penal provision in that it makes resisting or refusing to take measurements
under the Act an offence under Section 186 of the Indian Penal Code (obstructing public servant
in discharge of public functions). As previously argued, Section 3 places the taking of
measurements under the Act entirely at the discretion of police, prison officers, and
magistrates. As a result, Section 6 fails to provide individuals with clear guidance as to when
a refusal to allow the collection of measurements constitutes an offence. As a result, there is an
arbitrary invasion of privacy.

3.2.2 THE ACT DOES NOT DISCLOSE A BASIS FOR DETERMINING FROM WHOM MEASUREMENTS
CAN BE TAKEN UNDER THE ACT

The language of the Act clearly indicates that it does not intend to require measurements from
all convicts, all persons who have furnished security under Section 117 of the CrPC, all persons
who have been arrested, and all persons detained under preventive detention laws. The fact that
police/prison officers must determine that the same is "required" before taking any
measurements under the Act leads to the conclusion that only some people in these categories
will be compelled to provide their measurements. The Act is manifestly arbitrary because it
provides no guidance in the form of principles or criteria, or even the broad policy on which
this ‘requirement' is to be assessed, how the requirement differs for convicts in prisons or
persons arrested in connection with ongoing proceedings, or even who (whether police, prison
officers, or any other authority) needs to make this assessment. It does not reveal the
determining principle behind measuring some members of the mentioned categories but not
others.

32
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
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Therefore, the impugned sections inherently reflect and form a part of the objectives of the Act
hence, it is not severable and the entire statute is to be struck down.

ISSUE 4

WHETHER SECTION 8 OF THE PICARONES CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022 SUFFERS
FROM EXCESSIVE DELEGATION AND IS THUS UNCONSTITUTIONAL?

It is humbly submitted before this Hon’ble Court that the Picarones Criminal Procedure
(Identification) Code, 2022 suffers from excessive delegation and is thus unconstitutional in
nature. This contention has been advanced before this Hon’ble Court in a three-fold manner:
Firstly, Section 8 of the Act passes the test to determine the grounds for excessive delegation
(4.1). Secondly, delegation does not fall within the permissible limit so prescribed (4.2), lastly,
the Section provides for excessive powers to the executive (4.3).

The above-mentioned submissions have been further substantiated herein:

4.1 SECTION 8 OF THE ACT PASSES THE TEST TO DETERMINE EXCESSIVE DELEGATION UNDER THE
CONSTITUTION

It is humbly submitted before this Hon’ble Court that, A statute challenged on the ground of
excessive delegation must be subjected to two tests: 1. Whether it delegates essential legislative
function; and 2. Whether the legislature has enunciated its policy and principle for the guidance
of the executive. If we look into Section 8 of the Act, suffers from excessive delegation as it
allows the Central Government and the respective State Governments to frame rules regarding
issues that are the subject matter of legislative policy without providing any guidance or
framework on rule-making to the executive.33 By delegating legislative functions to the
executive by providing wide-ranging rule-making powers with virtually no guidance; and
second, by giving functionaries excessive discretion to decide whom they may compel to
provide measurements, in what circumstances, and for what purpose.

It is submitted that the essential legislative functions must be carried out by the legislature
itself. The legislature must not entrust these functions to the executive and must not create a
parallel legislature. The essential legislative function consists of the determination of the
legislative policy, and its formulation as a binding rule of conduct and neither be delegated by

33
Para 11, Moot Proposition.
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the legislature nor is there any unlimited right of delegation inherent in the legislative power
itself34.

It is humbly submitted before this Hon’ble Court that delegation of legislative powers is invalid
in the absence of any specific guidelines laid down in the parent statute as to the standard or
criteria or principles in terms of which the rule-making powers delegated to subordinate
authorities can be exercised35. In the present case, under Section 8, there is no legislative
guidance for the rules that are to be framed by the Central and the State governments.

Section 8 provides that the Central and State governments may make rules, inter alia, for
prescribing the manner in which police and prison officers can ‘take’ measurements under
Section 3 and Section 6. It also recognizes the power of the governments at both levels to make
rules regarding “any other matter” prescribed or in respect of which provisions are to be made.
It is to be noted that the Act does not prescribe any limitations on the powers of taking,
collecting, processing, storing, destroying, sharing, and disseminating all measurements and
their records, or even an indication of the board contours within which the powers are to be
exercised36. Thus, the Section is ultra vires to the Constitution.

4.2 THE DELEGATION DOES NOT FALL UNDER THE PERMISSIBLE LIMITS PRESCRIBED UNDER THE
CONSTITUTION

It is humbly submitted that, in Ajoy Kumar Banerjee v. Union of India, the court held that
“declaring the legislative policy and laying down the standard with sufficient clarity”
constitutes ‘essential legislative function’, which cannot be delegated37. The permissibility of
delegation was further restricted only to ‘mode of implementation’38. The permissibility of
delegation makes it clear that the function of subordinate legislation is merely an ancillary one
to make the policy functional rather than making policy choices.

It is further submitted that in addition to excessive delegation of legislative powers, the

conferment of authority to pass administrative orders is in violation of Article 14 of the
Constitution, if “such conferment is without guidance, controls and checks.”39 The Criminal

34
Gwalior Rayon Silk Mfg. (Wvg.) Co. v. The Asstt. Commissioner of Sales, AIR 1974 SC 1660.
35
Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.
36
Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.
37
Ajoy Kumar Banerjee v. Union of India, (1984) 3 SCC 127
38
Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516.
39
Subramanian Swamy v. CBI (2014) 8 SCC 682; Ram Krishna Dalmia v Justice S. R.Tendolkar, AIR 1958 SC
538.
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Procedure (Identification) Act is in violation of Article 14 as there is no such guidance provided

by the legislation to lay down a set of rules and regulations.

Therefore, excessive delegation of legislative functions by providing broad rule-making

powers to the executive without providing any guidance, or prescribing any checks or control
is violative of Article 14 and is thus delegation beyond permissible limits under the
Constitution.

4.3 THE ACT PROVIDES EXCESSIVE POWERS TO THE EXECUTIVE AND IS THUS UNCONSTITUTIONAL

It is humbly submitted before this court that, any law that restricts the fundamental rights of a
citizen must be sufficiently clear and precise in terms of the extent, scope and nature of the
interference allowed, along with the presence of sufficient safeguards to prevent abuse of
powers by authorities40. This entails that the law must not grant excessive executive discretion
where such discretion has the effect of restricting rights and freedoms.41 Grant of discretion,
by itself, is not a matter of concern as long as there are guidelines governing the exercise of
discretionary powers. However, “discretion which is absolute and uncontrolled degenerates
into arbitrariness.”42

This excessive power is ultra vires to the Constitution, as it does not permit the delegation of
powers that has transgressed the permissible limits43. The legislature cannot abdicate its
legislative functions, and when delegating its powers, it must ensure that the executive does
not become a parallel legislature,44 which is evident. It is possible for the working out of details
to be delegated to the executive, as long as the broad policy is laid down and standards are
established, such that the executive can operate within the prescribed limits45. In the present
case, there were no set of rules and regulations prescribed to the executive to maintain checks
and balances.

40
Shreya Singhal v. Union of India (2015) 5 SCC 1 [17, 18, 26]; K. S. Puttaswamy & Anr. v. Union of India &
Anr., (2019) 1 SCC 1 [319,1288].
41
European Court of Human Rights, Guide on Article 8 of the European Convention on Human Rights: Right to
Respect for Private and Family Life, Home and Correspondence, 9-10, 93, August 31, 2018, available at
https:(//www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf
42
State of Punjab v. Khan Chand, AIR 1974 SC 543 [8].
43
VN Shukla, ‘Judicial Control of Delegated Legislation in India’ (1959) 1(3) Journal of Indian Law Institute
357, 360.
44
In re Delhi Laws Case, AIR 1951 SC 332.
45
Ibid.
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Even though the legislature empowers the executive to make law, it cannot authorize the
executive to make criminal laws which define offences and impose punishments. Hence, power
to make criminal law is an essential function and it cannot be delegated to the executive.

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PRAYER

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

1. Admit and hear the matter on merits

2. Declare that, Section 124 A of the National Penal Code of Picarones is unconstitutional
3. Pass necessary orders/ writs to give effect to striking down Section 124 A
4. Declare that, the Picarones Criminal Procedure (Identification) Act, 2022 violated the
fundamental rights guaranteed under Part III of the Constitution
5. Declare that, Section 8 of the Picarnoes Criminal Procedure (Identification) Act, 2022
suffers from excessive delegation and is thus unconstitutional

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

Counsel on behalf of Petitoner

Sd/-

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