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SENIOR ADVOCATE K.T.S. TULSI MOOT COURT COMPETITION JULY 2023

BEFORE THE HON’BLE SUPREME COURT OF FRANCE AT PARIS

WRIT PETITION NO._____ OF 2023

IN THE MATTER OF:-

MRS. MONICA MERZOUK ………

PETITIONER

VERSUS

REPUBLIC OF FRANCE ………

RESPONDENT

PETITION UNDER ARTICLE 32 OF THE FRENCH CONSTITUTION

MEMORIAL ON BEHALF OF THE PETITIONER

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ISSUES RAISED

ISSUE 1

WHETHER THE PRESENT WRIT PETITION HAS BEEN FILED ON VALID GROUNDS AND IS
MAINTAINABLE IN THE PRESENT COURT OF LAW.

ISSUE 2

WHETHER THE ACT OF SHOOTING BY THE LAW ENFORCEMENT OFFICER WAS LEGALLY
JUSTIFIED, IF SO, ON WHAT GROUNDS?

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ARGUMENTS ADVANCED

CONTENTION 1: THE PRESENT WRIT PETITION HAS BEEN FILED ON THE

VALID GROUNDS AND IS MAINTAINABLE UNDER ARTICLE 32 OF THE
CONSTITUTION

It is humbly contended before this Hon’ble Court that the petitioner has filed the present Writ
Petition challenging the constitutional validity of various provisions.

It is submitted with regards to Article 32, the court avoids factual disputes, 1 however, it
retains the authority to do so in appropriate circumstances.2 The term "appropriate" does not
relate to any particular form but rather to the aim of the proceedings, and so is appropriate if
the objective of the proceedings is to enforce a fundamental right. 3 Additionally, it has been
clarified that there are no restrictions on the types of proceedings contemplated in Article 32
(1)4, except that the proceedings must be "appropriate," which may be determined in light of
the purpose for which the proceeding is being brought, namely the enforcement of a
fundamental right.5 It does not accept the premise that it may refuse to consider an action just
because it entails the adjudication of disputed factual issues or for any other reason.6

Further, it is submitted that Article 32 7 has been applied in cases of grave public concern even
when no breach of fundamental rights is alleged.8 A petition under Article 329 may be
submitted to challenge the constitutionality of a legislation based on provisions other than
those relating to fundamental rights, provided that the law unavoidably results in a limitation

1
Major G.S. Sodhi v. Union of India, AIR 1991 SC 1617.
2
Laxmi Shankar Pandey v. Union of India, AIR 1991 SC 1070.; Surendra Prasad Khugsal v. M.M.T. Corpn.,
1994 Supp (1) SCC 87.
3
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.
4
INDIA CONST., art. 32(1).
5
Daryao v. State of U.P., (1962) 1 SCR 574.
6
Kavalappara Kottarathil Kochunni Moopil Nayar v. State of Madras, 1959 AIR 725.
7
INDIA CONST., art. 32(1).
8
Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665.; D.C. Wadhwa v. State of Bihar, (1987)1 SCC 378.
9
INDIA CONST., art. 32(1).

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of enjoyment of fundamental rights.10 A mere threat of fundamental rights violation is

sufficient to support a petition to the Supreme Court under Article 32 as well11.

The wording employed in Article 3212 is quite broad, and the Supreme Court's authority
includes the ability to issue orders, writs, or directions deemed essential for the enforcement
of fundamental rights.13 It is worth noting that the Supreme Court is the protector and
guarantor of fundamental rights, and hence cannot refuse to hear cases seeking protection
from this court against infringements of such rights. 14 Again, a mere danger of  violation
of fundamental rights is sufficient to warrant a petition to the Supreme Court under Article
32.15

1.2: The issue involves a question of great constitutional significance

It is humbly contended before this Hon’ble Court that, in this case, Monica Merzouk filed a
writ suit according to Article 32 of the Indri Constitution alleging gross violation of their
fundamental rights It is argued that the Court may accept petitions under Article 32, which
requires adjudication of problems containing significant constitutional concerns, even if,
assuming but not admitting, no violation of Fundamental Rights occurs.16

1.3: Alternative Remedy need not be exhausted

It is humbly contended before this Hon’ble Court that the right of access to the Supreme
Court and the remedy provided by Article 32 are fundamental rights in itself, not a
discretionary power of the Court.17 The presence of an alternative remedy does not preclude
the Supreme Court from hearing a petition for enforcement of a Fundamental Right brought
under Article 32.18 Rights under Article 32 are not subject to the exhaustion of available local
remedies. This right, it is said, is absolute and cannot be abridged for any reason.19
10
V.N SHUKLA, CONSTITUTION OF INDIA, (13th ed. 2017).
11
Simranjit Singh Mann v. Union of India, (1992) 4 SCC 653.; S.P. Gupta v. Union of India, AIR 1982 SC 149.;
Peoples’ Union for Democratic Rights v. Union of India & Ors., AIR 1982 SC 1473.
12
INDIA CONST., art. 32(1).
13
T.C. Basappa v. T. Nagappa, 1955 SCR 250.; Chiranjit Lal Chowdhuri v. Union of India, 1950 SCR 869.
14
Romesh Thappar v. State of Madras, AIR 1950 SC 124.
15
Simranjit Singh Mann v. Union of India, (1992) 4 SCC 653; S.P. Gupta v. Union of India, AIR 1982 SC 149;
Peoples’ Union for Democratic Rights v. Union of India & Ors., AIR 1982 SC 1473.
16
B.P. Singhal v. Union of India, 2010 6 SCC 331.
17
Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457; Tilokchand Motichand v. H.B. Munshi, AIR 1970
SC 898.
18
Bodhisattwa v. Subhra Chakroborty, AIR 1996 SC 922; Common Cause, a Registered Society v. U.O.I.,AIR
1999 SC 3020.
19
Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996.

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Hence, it submitted that only the Supreme Court can render effective justice in the instant
case and not any other court which is lower in the hierarchy and therefore, alternate remedy
need not be exhausted.

Where the provision of any statute is in challenge on the basis of violation of Fundamental
Rights, only effective remedy is remedy by way of writ. The right to approach the Supreme
Court for the enforcement of fundamental right is a fundamental right in itself. The courts
have made it clear that they cannot refuse to entertain an application for an appropriate
constitutional remedy where fundamental right has been infringed. It is not merely a right of
the individual to move to the Supreme Court but also the duty of Supreme Court to enforce
those guaranteed rights. The court is thus constituted “the protector and guarantor of
fundamental right. It is the duty of the Supreme Court to guarantee relief under Article 32
where the existence of fundamental right and its breach, actual or threaten is prima facie
established. Here in the present matter the son of the petitioner Nahel Merzouk has been
murdered by the police officer. On the morning of June 27, at around 7:45 am Merzouk being
stopped by the two officers and diving away when one officer shoots at close range in broad
daylight.

REASON TO DIRECTLY APPROACH SUPREME COURT INSTEAD OF HIGH

COURT

The counsel for the petitioner has not approached High Court due to the matter of grave
public concern as mentioned the para 2, 3 and 5 of the fact of the case.

1. Nationwide Unrest and Violent Protests.

2. Public Sentiment and Allegations of Racism.
3. Protests Momentum and Continuation.
Article 14 (Right to Equality), 19 (Right to Freedom) and 21 (Right to Life and Liberty) are
popularly known as the ‘golden triangle’ of the French Constitution. They are of prime
importance and breathe vitality in the concept of the rule of law.

It is submitted that Article 32 has been applied in cases of grave public concern even when no
breach of fundamental rights is alleged. A petition under Article 32 may be submitted to

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challenge the constitutionality of a legislation based on provisions other than those relating to
fundamental rights, provided that the law unavoidably results in a limitation of enjoyment
of fundamental rights. A mere threat of fundamental rights violation is sufficient to support a
petition to the Supreme Court under Article 32 as well.

The power of Supreme Court under Article 32 is a plenary power and not fettered by any
legal constrains. The court power is not only to issue appropriate writ it can make any order
including a declaratory order or give any direction as may appeared to be necessary to give
proper relief to an aggrieved party.

In Chiranjit Lal Chowdhury v. Union of India Supreme Court observed that anyone who
alleges a violation of a fundamental right protected by the constitution may approach the
Supreme Court for execution of such writ, and this court has been empowered to make
orders, issue directions, or writs similar to those described above as may be deemed
appropriate.

The power of Supreme Court under Article 32 is a plenary power and not fettered by any
legal constrains. The court power is not only to issue appropriate writ it can make any order
including a declaratory order or give any direction as may appeared to be necessary to give
proper relief to an aggrieved party.

A petition under Art 32 cannot be refused merely on the following grounds:

(a) That such application has been made before the Supreme Court in the first instance
without resort to High Court under Art 226.
(b) That there is some adequate alternative remedy is available to the petitioner.
(c) That the Article in Part III which is alleged to have been infringed has not been
specifically mentioned in the petition, if the fact stated entitled the petitioner to invoke a
particular Article.

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CONTENTION 2: THE ACT OF SHOOTING IS NOT LEGALLY JUSTIFIED

It is humbly submitted before the Hon’ble Court that act of shooting by the police officer
cannot be legally justified. The twofold argument in the present case is that the shooting
amounts to the offence of murder under section 300 of the Indian Penal Code, 1860 (IPC
hereafter), punishable under Section 302, IPC [2.1] further the police officer is not eligible to
take defence under exceptions of section 300 IPC. [2.2]

2.1 POLICE OFICER IS LIABLE FOR MURDER U/S 300 IPC

It is humbly contended that the accused is guilty of committing the offence of murder under
Sec 300, IPC. To bring a successful conviction under this charge, it is pertinent to refer to Sec
300, IPC which elucidates the essentials of murder. A person is guilty of murder if he
intentionally causes the death of a person or causes such bodily injury as he knows, is likely
to cause death of that person or causes such bodily injury, which in the ordinary course of
nature results into death or commits an act so dangerous that it must, in all probability cause
death of that person.20
The Prosecution humbly contends that both, the actus reus and the mens rea of the crime are
established in the instant matter.

2.1.1 ACTUS REUS & MENS REA WERE PRESENT

Actus reus is any wrongful act. Thus, in a case of murder, actus reus would be the physical
conduct of the accused that causes death of the victim. In the present case the act of shooting
by the police officer is the actus reus. However, an act without Mens Rea doesn’t constitute
an act as an offense. On this point, French Law is Governed by the maxim “Actus non facit
reum nisi mens sit rea”, which literally means “an act does not make a person guilty unless
the mind is also guilty”.21 It is humbly submitted that to constitute an offense as Murder, the
Mens Rea; the intent, which is the driving force behind the illegal conduct must be proved.

20
S. 300, Indian Penal Code, 1860.
21
Bapu v. State of Rajasthan, (2007) 8 SCC 66.

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Only when an act is committed with a guilty conscience then only it becomes criminal. 22 The
intention is said to have been formed when knowledge of a particular consequence is
supported by the will to cause such a consequence.23

In Case, of Shyam Lal v State of Uttar Pradesh, 24 the Supreme Court said that the intention
and knowledge of the offender have to be determined from the nature of the injury, the
weapon used, the part of the victim’s body part attacked, the force used and other related
circumstances of the case in question. It is presumed that every sane person intends the result
that his action normally produces and if a person hits another on a vulnerable part of the
body, and death occurs as a result, the intention of the accused can be no other than to take
the life of the victim and the offence committed amounts to murder.25

Arguendo, Absence of motive is irrelevant Assuming for the sake of argument that the
accused had no motive, it is humbly contended that absence of motive is no ground for
dismissing the case. Motive is immaterial so far as the offence is concerned and need not be
established26 as the mere existence of motive is by itself, not an incriminating circumstance
and cannot take the place of a proof.27

Therefore, absence of proof of motive, does not break the link in the chain of circumstances
connecting the accused with the crime, nor militates against the prosecution case and is not
fatal as a matter of law . 28 When the circumstantial evidence on record is sufficient to prove
beyond any doubt to prove that it was the accused and no one else, who intentionally caused
the death of the accused then, motive of the crime need not be proved,29 as in the current case.

It is humbly submitted before the court that the police officer in question is liable for murder
under Section 300 of the IPC. Through a careful examination of the evidence, the actus reus
and mens rea of the crime have been convincingly established. The act of shooting, coupled
with the alleged knowledge and intent of the likely fatal consequences of such action,
demonstrates the presence of a guilty mind behind the guilty act. The circumstances of the
event - the close range of the shooting, the non-threatening behaviour of the victim and the

22
State v. Nalini, (1999) 5 SCC 253.
23
Basdev v. State of Pepsu, AIR 1956 SC 488.
24
Shyam Lal v. State of Uttar Pradesh, 1963 AIR 1511.
25
(1951) 3 Pepsu LR 635.
26
Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011).
27
State of Punjab v Sucha Singh, AIR 2003 SC 1471.
28
Mulakh Raj v. Satish Kumar, AIR 1992 SC 1175.
29
State of Madhya Pradesh v. Digvijay Singh, 1981 Cri. LJ 1278 (SC).

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use of a lethal weapon - further substantiate this claim. 30Even if the defence was to argue an
absence of motive, it would not diminish the strength of the prosecution's case. Motive, while
relevant, is not a prerequisite for conviction under Section 300 IPC, and its absence does not
disrupt the chain of circumstances leading to the conclusion of the police officer's guilt.

2.2 THE ACCUSED CANNOT AVAIL EXCEPTION OF SELF DEFENCE

The Right of Private Defence has been defined under Sections 96-106 of the IPC. Under this
right, a person has the right to protect life, body and property. Right to Private Defence acts
as an exception wherein the person causing the harm can escape liability since he does said
action to protect his person or property. Right to Private Defence works on the first principle
of Self Help i.e. it is the duty of a person to first help himself. Right to Private Defence
allows for a person to protect himself and his property where there is an imminent danger
upon them and there is no other possible recourse available.

Right of private defence is preventive in nature and not punitive i.e. it cannot be used to
inflict harm upon in the guise of self-defence, one has to prove that there is apprehension of
harm being inflicted upon the body or property of a person in order for him to be at the
liberty to use the Right of Private Defence. In the case of Beckford v. The Queen,31 it was held
by the Court that a person is entitled to use only a reasonable amount of force to protect
himself. In the case of Thangavel v. State representation by Inspector of Police Thevattipatti
Police Station Salem,32 the court highlighted that the Right of Private defence exists and is
inherent to every person but cannot be misused by the person claiming the right.

In the case of Ishwar Singh v. State of Rajasthan,33 it was held that the accused has to prove
that he was put in a dangerous situation wherein invoking the Right of Private Defence was
necessary to get out of said situation. Further in the case of Subramani v. State of Tamil
Nadu,34 the Supreme Court went on to establish that the injuries on the accused must justify
the version of private defence.

Exceptions to Section 300 also lay down that - Culpable homicide will not amount to murder
if it is committed by the public servant acting in good faith under the colour of his duty and

30
Fact-sheet, Paragraph 1.
31
Beckford v. The Queen, [1988] AC 130.
32
Thangavel v. State representation by Inspector of Police Thevattipatti Police Station Salem, 2015 SCC OnLine
Mad 7788.
33
Ishwar Singh v. State of Rajasthan, 1973 Cr LJ 811 (816).
34
Subramani v. State of Tamil Nadu, AIR 2005 SC 1983.

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promoting public justice.35 However, the key phrase here is "in good faith", which implies
that the actions of the public servant were not just in their official capacity but also justifiable,
necessary, and proportionate to the perceived threat or harm. In the present case – the actions
of the police officer were not in good faith as – it was disproportionate, lack of imminent
danger and violation of established procedure.

2.2.1 THE ACCUSED HAS EXCEEDED HIS RIGHT TO DEFENCE

The Right of Defence works on certain principles36 –

1. Principle of Reasonableness – Under this principle, the right of private defence only exists
when there is a reasonable apprehension of danger and private defence is only valid when
done in cases where the danger is real and imminent.

2. Principle of Proportion – the force used as private defence should be proportionate to the
harm being caused by the aggressor.

A Person claiming the Right of Private Defence has to prove that there was a reasonable
apprehension of danger and that the force used was proportionate to the harm caused. In the
case of Yogendra Moraji v. State of Gujrat,37 the use of Right to Defence of body was
discussed in detail. The court went on to emphasize that for a person to cause the death of the
assailant as self-defence, there should be imminent danger and there should be no other
possible way of getting out of the situation. The Court highlighted that if the person can get
away without hurting the assailant, then law doesn’t recognize private defence. The Right of
Private defence has to be used as a preventive right and should be used judiciously.

In the cases of Mahandi v. Emperor38 and Alingal Kunhinayan & Anr v. Emperor,39 wherein
the Courts have observed that the acceptable degree of defence is determined by the
“reasonably proportionate force” to deter wrong doer. This force must be proportionate to the
danger posed by the person against whom force has been unleashed. In other words, use of
force must not be “totally disproportionate.”

It is humbly submitted before the court, that the only evidence present in this case is the video
evidence, the media reports are baseless and without any evidence. From the video evidence,

35
S. 300, Indian Penal Code, 1860.
36
Malti Devi Singh & Others vs State Of U.P., CRIMINAL APPEAL No. - 1010 of 2004.
37
Yogendra Moraji v. State of Gujrat, AIR 1980 SC 660.
38
Mahandi v. Emperor, (1930) 31 CriLJ 654.
39
Alingal Kunhinayan & Anr v. Emperor, ILR 28 Mad 454a.

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there appears to be no immediate or imminent threat posed by Nahel to the police officers at
the moment the fatal shot was fired. The principle of reasonable hence does not seem to be
applicable here since the threat was not imminent, Nahel was merely trying to flee rather than
trying to attack.40 Furthermore, even if we were to consider the traffic violations , the
principle of proportionality is not fulfilled either. The principle indicates that the force used in
self -defence should correspond to the harm being caused to the aggressor. In this case ,
Mezouk’s actions although irresponsible and dangerous did not warrant response with a
deadly force. Furthermore, even if there was an imminent danger the approach of the officer
should have been to shoot at the tyre of the car and not on Nahel.

2.2.2 ACTION OF POLICE IS ILLEGAL AND VIOLATIVE OF FUNDAMENTAL

RIGHTS

French laws do empower police personnel and civilians to kill another person, provided the
right to self-defence is involved. However, Article 21 of the Constitution says that no person
can be deprived of his or her life without the due process of law being followed. 41 Section 46
in the Code of Criminal Procedure, while explaining how an arrest may be executed, says: “If
such a person forcibly resists the endeavour to arrest him, or attempts to evade the arrest,
such police officer or other person may use all means necessary to effect the arrest.” 42 Sub-
clause 3 of Section 46 further says: “Nothing in this section gives a right to cause the death of
a person who is not accused of an offence punishable with death or with imprisonment for
life.”43 In the present case, Nahel was although an offender for petty crimes, however none of
them were grave offences, Nahel had no criminal record.44

40
Fact-Sheet, Paragraph 1.
41
The Constitution of India, 1950, Art. 21.
42
The Code of Criminal Procedure, 1973, Sec. 46(2).
43
The Code of Criminal Procedure, 1973, Sec. 46(3).
44
Fact-sheet, Paragraph 4.

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PRAYER FOR RELIEF

Wherefore, in light of the facts of the case, issues raised, arguments advanced and authorities
cited, the Counsel on behalf of the Petitioner humbly pray before the Hon’ble Supreme Court,
France to kindly adjudge and declare that: -

1. Present writ petition has been filed on valid grounds and is maintainable in the present
court of law.
2. The act of shooting by the officer cannot be legally justified and the officer is guilty
of murder.

AND/OR

Pass any other order which the bench deems fit in the best interest of Justice, Equity and
Good Conscience, and for this act of kindness the Counsels on behalf of the Petitioner as in
duty bound shall forever pray.

All of which is most humbly and respectfully submitted.

sd/-
bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbCounsel for Appellant

MEMORIAL ON BEHALF OF THE PETITIONER