The Counsel seeks permission to approach the bench .

The Counsel seeks permission to

address the Bench as your lordship . Much obliged your lordship. May it please this

honourable court that this is counsel no 1884P in the matter of Human Rights Defenders v.

Government of Everland under article 32 of the Constitution . The Counsel would be taking

up three issues

The first being whether the encounter was extra constitutional and in violation of

fundamental rights ,

the second whether there was a violation of the normative structure of law and lastly

whether the actions of the government led to violation of International Human rights . If

your lordship is well versed with the facts of the case the counsel seeks permission to move

towards the arguments . Much obliged . The first argument is that the encounter is extra

constitutional and violates fundamental rights . Article 14 of the Constitution states that The

State shall not deny to any person equality before the law or the equal protection of the laws

within the territory of Everland . The said Article is clearly in two parts – while it

commands the State not to deny to any person ‘equality before law’, it also commands the

State not to deny the ‘equal protection of the laws’. In the case of Maneka Gandhi v.

Union of India, it was decided that even executive authorities must ensure that justice is not

only done but appears to be done when taking decisions which affects the fundamental

rights of the citizens . In the present matter, Carlito and others were executed under the garb

of encounter. What actually took place was extra-judicial killing and this amounts to a gross

violation of their constitutional rights under Articles 14 & 21of the Constitution . In the

current matter Carlito and others were killed on spot by the agents of the government

giving the reason that they were trying to flee .

They were not given a chance to even proof their innocence . This encounter was

extraconstitutional as In the case EP Royappa V. State of Tamil Nadu it was stated that

even while dealing with terrorist the police must follow legal process, first they must make

an arrest and then bring the suspect to justice . According to NHRC in 2010 Extra-judicial

killings deny the accused their right to be given a notice of charge and an opportunity to be

heard, violating the principle of Audi Alteram Partem, a principle of natural justice and

therefore, Article 21 as well .

The second argument is that there was a violation of the normative structure of international

law . When interpreting the "right to life" and rights connected to its extension, Everland

courts have used jus cogens.

In 1982, the Supreme Court in Bachan Singh v. State of Punjab, while trying to strike a

balance between death penalty and right to life, propounded the rule of “rarest of rare” by

declaring the following:

“A real and abiding concern for the dignity of human life postulates resistance to taking a

life through law’s instrumentality. That ought not to be done save in the rarest of rare cases

when the alternative option is unquestionably foreclosed.” While this decision did not

discuss if right to life could be characterised as a jus cogens, in State of Punjab v. Dalbir

Singh1, the Supreme Court declared the following:

“… the ratio in …Bachan Singh (supra)… has been universally acknowledged in several

jurisdictions across the world and has been accepted as correct articulation of Article 21

guarantee. Therefore, the ratio in ….. Bachan Singh (supra) represents the concept of jus

1 State of Punjab v. Dalbir Singh AIR 2012

 cogens meaning thereby the peremptory non-derogable norm in international law for

protection of life and liberty.”

The decision in Dalbir Singh. impacted the Everland jurisprudence. with recognizing that

the right to life is a peremptory non-derogable norm Therefore The Everlandian authorities'

behaviour in killing Carlito and the others breaches the norm of the right to life therefore

breaking the normative framework of international law.

The third argument is that the Actions of the government violated international human rights

. According to Article 3 of the Geneva Convention, killing civilians and combatants

outside of the line of duty is prohibited. Furthermore, Additional Protocols I and II

acknowledge the prohibition of murder as a fundamental guarantee. The Geneva

Convention Common Article 3 states that Targeted killing is only lawful when the target

is a “combatant” or “fighter” or,2 in the case of a civilian, only for such time as the person

“directly participates in hostilities.” Additionally, the killing must be essential from a

military standpoint, the use of force must be appropriate so that any potential military

benefit is weighed against the potential harm to nearby people, and every effort must be

made to avoid errors and reduce injury to civilians. The Human Rights Committee in

2010 stated that A State killing is legal only if it is required to protect life (making lethal

force proportionate) and there is no other means, such as capture or nonlethal incapacitation,

of preventing that threat to life (making lethal force necessary). The necessity requirement

imposes an obligation to minimize the level of force used, regardless of the amount that

would be proportionate, through, for example, the use of warnings, restraint and capture.

Carlito and the others only attempted to flee thus there was no imminent threat from their

2Interna onal Ins tute of Humanitarian Law, The Manual on the Law of Non-Interna onal Armed
Con ict, March 2006.
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side and the actions of the agents of the government were excessive in nature . They could

have issued a warning or captured the terrorist but they took the most drastic step of killing

them . The deceased were neither armed nor posed any danger thus the encounter was not

constitutional and violates international human rights .

Government should not have unlimited and unhindered powers in the name of national

security. In the interest of justice this hon’ble court should interfere and make sure justice is

being done .

1. Does the petitioner have locus standi?

In SP Gupta vs UOI, the Supreme court of India, Justice J PN Bhagwati stated that:

Any member of the public having sufficient interest can maintain an action for judicial

redress for public inquiry arising from the 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 a such constitutional or legal provision.3

And since the killing of a person is a violation of the fundamental right to life of the

constitution of Everland the petitioner does have a locus standi in this case.

2. Does the court have jurisdiction over matters involving national security?

Firstly, there is no Statute or provision nothing is there that excludes the jurisdiction of SC

on the grounds of national security or threat to sovereignty. Given such absence, there is a

general presumption against ousting the jurisdiction of the courts, so that statutory

provisions which purport to exclude judicial review are construed restrictively.

3 SP Gupta vs UOI, (1982) 2 SCR 365.

 There are, however, certain areas of governmental activity, national security being the

paradigm, in which the courts regard themselves as incompetent to investigate, beyond an

initial decision as to whether the government’s claim is bona fide. In this kind of non-

justiciable are judicial review is not entirely excluded, but very limited. “It is considered

opinion/view that the extent of permissible judicial review in matters of contracts,

procurement, etc. would vary with the subject matter.”4

Here in our case killing of 20 people without even a court proceeding constitutes a gross

violation of the fundamental and human rights of the deceased which should be permissible

for extensive enquiry as the subject matter is of grave concern. Moreover, the government

should not be allowed to claim National Security as the government’s intention is not bona

fide.

Furthermore, in a recent Pegasus case the court stated that “It is a settled position of law that

in matters pertaining to national security, the scope of judicial review is limited. However,

this does not mean that the State gets a free pass every time the spectre of “national

security” is raised.”5

.The Counsel seeks permission to move onto the prayer

Much obliged

4 Manohar Lal Sharma v. Narendra Damodardas modi and others (2019) 3 SCC 25.

5 Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985.

 PRAYER

For all reasons argued in this memorial, the counsel for the petitioner , respectfully requests

that the Honourable Supreme Court:

Order an extensive enquiry by a Special Investigation Team.

Declare that the act of state has violated fundamental rights and the killings were a

flagrant violation of human rights under international law.

and pass any order in favour of the Plaintiff which this hon’ble Court may deem fit in the

ends of justice, equity, and good conscience.

IT WAS A PLEASURE ARGUING BEFORE THE COURT

A peremptory general international law norm (jus cogens) is a norm approved and
recognised by the international community of states as a norm from which no
deviation is authorised and which may be amended only by a future general
international law norm of the same kind.