& Moor cour ae — BEFORE THE HON’BLE SUPREME COURT OF INDIA ‘Original Writ Jurisdiction ‘Under the Writ of Mandamus W.P. NO. OF 2022 UNDER ARTICLE 32 OF THE CONSTITUTION OF kL INDIA | NILABATI BEHERA.........cseseeseseees +++-PETITIONER, | I Versus STATE OF ORISSA. «RESPONDENTS, UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIA. MEMORIAL ON BEHALF OF THE PETITIONER] |SEMESTER- 6T™ _ROLL- 101 [UID- 20261127042 _ YEAR- 202: INSTITUTION- SARSUNA LAW COLLEGE)TABLE OF CONTENTS STATEMENT OF JURISDICTION... STATEMENTS OF FACT... ISSUES RAISED... SUMMARY OF ARGUMENTS.. ARGUMENTS ADVANCED... 1, WHETHER THE WRIT PETITON FILED UNDER ART. 32 OF THE CONSTITUION OF INDIA IS MAINTAINABLE? 1.1 “POLICE” comes under the meaning of “State” under Article 12: 1.2 Whether the Petitioner has the locus standi to file the Petition: 1.3. Fundamental Rights have been violated: 2. WHETHER POLICE HAVE VIOLATED THE ARTICES OF FUNDAMENTAL RIGHTS AND VARIOUS OTHER PROVISIONS OF VARIOUS STATUTES AND PROVISIONS OF INTERNATIONAL CONVENTIONS OF HUMAN RIGHTS?. 2.41 VIOLATION OF ARTICLE 14: 2.2 VIOLATION OF ARTICLE 21: 2.3. APPLICATION OF IPC, CR.P.C. AND OTHER STATUTES: .... 2.4 RIGHTS GUARANTEED BY VARIOUS INTERNATIONAL CONVENTIONS: 16 3. WHETHER STATE IS ENTITLED TO CLAIM SOVEREIGN IMMUNITY: 4. WHETHER NILABATI BEHERA IS ENTITLED TO GET COMPENSATION?. PRAYER. MEMORIAL FOR PETITIONERLIST OF ABBREVIATIONS uUor Union of India Vivs Versus: SCC Supreme Court Cases SCR ‘Supreme Court Reporter Art. Article sc ‘Supreme Court Hon’ble Honourable AD. ‘Anno Domini Per Se By itself Prima Facie Sufficient to established a fact or raised a presumption unless it disproved or rebutted 1 Tustive ICCPR Taternational Covenant on Civil and Political Rights UDHR Universal Declaration of Human Rights. Cr.P.C Code of Criminal Procedure 1PC Indian Penal Code Govt. Government Ete. Et Cetera Ltd, Limited Vol. Volume Ors Others ‘Supl/Suppl Supplementary Ltd. Limited AIR All India Reporter Pvt. Private MEMORIAL FOR PETITIONER——— Pere . Kasturi Lal Ramia Lal vs. State of J & K, 1965... . Kharak Singh Vs. State of U.P, AIR 1963... . Kishore Singh v. State of Rajasthan, AIR 1981...... , Maganbhai V. Union of India AIR 1969 SC 78: . Maharaj vs. Attorney General of Trinidad and Tobago, 1977..... |. Maneka Gandhi vs. Union India, AIR 1978... [DEX OF AUTHORITIES STATUTES REFERRED THE CONSTITUTION OF INDIA, 1950 INDIAN PENAL CODE, 1860 CODE OF CRIMINAL PROCEDURE, 1973 THE POLICE ACT, 1861 CASES REFERRED Bachan Singh v. State of Punjab, AIR 1982 SC 1325... Bhagwan Singh and another v. State of Punjab, 1992.. Chiranjit Kaur v. Union of India, (1994) 2 SCC 1... D.ANV College v. State of Punjab AIR 1971 SC 1731 D.B. M Patnaik Vs. State of A.P AIR 1975, Francis Coralie Mullin vs. The Administrator Union, AIR 1981 Francis Coralie vs. Union Territory of Delhi, AIR 1981......... Gauri Shanker Sharma Ete vs. State Of U.P. Ete, January 12, 1990... Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; ). K.K. Kouchunni V. State of Madras AIR 1959 SC 725 ....ssevsssssesese0 |. Kishore Singh vs. State of Rajasthan, AIR 1981 ........sessssssseeeeee MEMORIAL FOR PETITIONER 2 10 13 coed18. Olga Tellis & Ors vs Bombay Municipal Corporation & ... on 10 July, 1985 Equivalent citations: 1986 AIR 180, 1985 SCR Supl. (2) 5l.......sessssseeeseseieeeeeceeeeseeeseseel 19, Olga Tellis v. Bombay Municipal Corp, AIR 1986 SC 180... 20. Prem Shankar vs. Delhi Administration, AIR 1980. ai. Raghbir Singh vs, State of Haryana, 1980........ 22. Ramana Dayaram Shetty v. The International Airport Authority of India, ATR 1979......09 23, Roop Chand v, State of Punjab, AIR 1963 SC 1503;... 09 24, Rudal Sah v. State of Bihar, 1983.. 25. Saheli v. Commr. of Police, AIR 1990 SC 513 26. State of Maharashtra v. Ravikant S. Patil, (1991) 2 SCC 373...csssesvee 20 27, Sunil Batra vs. Delhi Administration, AIR1978, 28. Suresh Chandra Sharma v. Chai in, AIR 2005 SC 2021... 29. Whirlpool Corporation vs. Registrar of Trade marks, Mumbai & Ors.(1998) 8 SCC 1...11 BOOKS REFERRED 1. Dr. JIN. Pandey, Constitutional Law of India (57" edition 2020) 2. B.N. Mani Tripathi, Jurisprudence the Legal Theory (19" edi 2021) 3. V.N Shukla Constitution 4. Krishnamurthy’s Police Diary MEMORIAL FOR PETITIONERTREATIES & CONVENTIONS - Universal Declaration of Human Rights (UN), 1948 ._ International Covenant on Civil and Political Rights (UN), 1966 United Nations Convention against Torture and other Cruel, Inhuman or Degrading ‘Treatment or Punishment (United Nations Convention against Torture) 1984 WEBSITE REFFERED _ httpsi//indiankanoon.org/ .__https:/Awww.legalserviceindia.com/ . www. lawetopus.com . https://www.studocu.com 5. www.scribd.com MEMORIAL FOR PETITIONERSTATEMENT OF JURISDICTIO! ‘The Hon'ble Supreme Court of India has the jurisdiction in this matter under Article 32 of the Constitution of India which reads as follows: “32. Remedies for enforcement of rights conferred by this Part- () The right 10 move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guarantee; (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.” MEMORIAL FOR PETITIONERSTATEMENTS OF FACT '-Suman Behera, a 22 years old boy, was detained by ASI Sarat Chandra Barik of Jeraikela Police Outpost of Birsa Police Station, District- Sundargarh, Orissa at 8AM on 01.12.1987, 2, He was detained on the suspicion of theft under Section 378 IPC. 3.He was handcuffed, tied and kept in the custody which was noticed by his mother Nilabati at about 8pm on that day (who is the petitioner in this case) when she went to the Police Station with food for him which he ate. 4.On the next day, 02.12.1987 at about 2pm Nilabati came to know that Suman’s body was found on the railway track which was discovered by the railway men earlier in the morning. 5.The Police officers said that at midnight Suman chewed the rope which was tied around him and managed to escape from the Police lockup at 3am on 02.12.1987 and later on that day he was hit by the train which caused injuries to his body and led him to death. 6.Post-mortem and Forensic report says the cause of death is the injuries made in the Custody of the Police. 7.0n 14.09.1988, a Letter was sent by Nilabati to the Honourable Supreme Court which was treated as a Writ Petition under Art. 32 of the Constitution of India. MEMORIAL FOR PETITIONER2 3 4 ISSUES RAISED WHETHER THE WRIT PETITON FILED UNDER ART. 32 OF THE CONSTITUION OF INDIA IS MAINTAINABLE? WHETHER POLICE HAVE VIOLATED THE ARTICES OF FUNDAMENTAL RIGHTS AND VARIOUS OTHER PROVISIONS OF VARIOUS STATUTES AND PROVISIONS OF INTERNATIONAL CONVENTIONS OF HUMAN RIGHTS? WHETHER STATE IS ENTITLED TO CLAIM SOVEREIGN IMMUNITY? WHETHER NILABATI BEHERA IS ENTITLED TO GET COMPENSATION? MEMORIAL FOR PETITIONERSUMMARY OF ARGUMENTS 1) WHETHER THE WRIT PETITON FILED UNDER ART. 32 OF THE CONSTITUION OF INDIA IS MAINTAINABLE? The present petition is maintainable under Article 32 of the Constitution of India, since the “Police Authority” falls within the ambit of “the states" as enshrined under Art.12 of the Constitution, 2) WHETHER POLICE HAVE VIOLATED THE ARTICES OF FUNDAMENTAL RIGHTS AND VARIOUS OTHER PROVISIONS OF VARIOUS STATUTES AND PROVISIONS OF INTERNATIONAL, CONVENTIONS OF HUMAN RIGHTS? Police have violated Articles 20, 21 and 22 of the Constitution, Section 331 of IPC, Sections 49, 55A of Cr.P.C, Section 7 and 29 of the Police Act, 1861. 3) WHETHER STATE IS ENTITLED TO CLAIM SOVEREIGN IMMUNITY? State is not entitled to claim Sovereign immunity as Art.21 is under Public Law, Therefore, violation of this right cannot be defended by Sovereign immunity. 4) WHETHER THE WHETHER NILABATI BEHERA IS ENTITLED TO. GET COMPENSATION? When fundamental rights have been infringed, the Supreme Court has the jurisdiction to award compensation to the victim of this violation. MEMORIAL FOR PETITIONERa ARGUMENTS ADVANCED 1. WHETHER THE WRIT PETITON FILED UNDER ART. 32 OF THE CONSTITUION OF INDIA Is. MAINTAINABLE? 1.1 “POLICE” comes under the meaning of “State” under Article 12: The present petition is maintainable under Article 32 of the Constitution of India, since the “Police Authority” falls within the ambit of “the state” as enshrined under Art.12 of the Constitution.' Under the well-established doctrine of Parens Patriae, it is the obligation of the State to protect and take into custody the rights and the Privileges of its citizens for discharging its obligations. Thus, in this present case, the State has failed to protect the rights of its citizen under Art.14, 20, 21 and 22. So, this Writ petition can be instituted against the government under Art.32 of the Constitution, as they violated the fundamental rights of the Suman Behera by making him the victim of this custodial death. To invoke the writ jurisdiction of the SC it is not necessary that the fundamental right must have been actually inftinged- a threat to the same would be sufficient.?Applying the doctrine of ‘reasonable apprehension’, this Hon’ble Court may interfere directly in the said case. The most fundamental right of an individual is his right to life; if an administrative decision may put his life at risk, the basis for the decision surely calls for the most anxious scrutiny according to the principle of ‘anxious scrutiny’. Thus the petitioned filed before this apex court is maintainable. 2 Shetty v. The International Airport Authority of India, AIR 1979 . Roop haat State of Punje, AIR 1963 SC 1503;Maganbhal V. Union of India AIR 1969 SC-783; D.A.V College v. State of Punjab AIR 1971 SC 1731 > Bugdaycay [1987] AC 514, where Lord Bridge said at $31E-G 9 MEMORIAL FOR PETITIONER1.2 Whether the Petitioner has the locus standi to file the Petition: Art.21 protects eitizens as well as non-citizen and Prisoners as well. It provides for Right to life to Prisoners to whom Death Penalty is not awarded.’ So, the petitioner therefore have the locus Standi to file the writ petition on behalf of his deceased son whose rights have been hampered as a conviet in a police custody. So, it before the Hon'ble Court, is maintainable In D.B.M Patnaik vs, State of A.PS, it was held that even a convict is entitled to the Precious right guaranteed under Art.21 and he shall be deprived of his personal liberty only appropriate procedure established by law has been taken care of 1.3 Fundamental Rights have been violated: The fundamental right to equality enshrined under Art. 14 of the Constitution have been violated because Suman was detained on the suspicion of thef: but the alleged offence was not proved against him although custodial death happened to the Suman (accused person). Therefore, he was not given reasonable opportunity of being heard. The fundamental right to life and livelihood® enshrined under Art.21 of the Constitution was violated on the account of arbitrary action of the State, That means the Police officers have not followed just and fair procedure.’ This custodial death not only violates Article 21, subsequently it has violated Article 20(1) which prevents greater punishment for a lesser crime, Article 20(3) which prevents compelled admission in the Police Custody and Article 22 which mandates the Police to produce the Accused before the Magistrate within 24 hours. In this case, none of these have been complied with, Thus, it is humbly submitted that the present writ petition is maintainable against State of Orissa, it i IR 1981. shore Singh vs. State of Rajasthan, Al + D.B. M Patnaik Vs. State of A.P AIR 1975 pesca $ Olga Tels v. Bombay Municipal Cop, AIR 1986 SC 180, 7 ” Olga Telli & Ors vs Bombay Municipal Corporation & on 10 July, 1985 Equivalent citations: 1986 AIR 180, 1985 SCR Supl. (2) 51 10 MEMORIAL FOR PETITIONER1.4 Alternati ive Remedy Not a Bar to File The Writ Petitio _ Where there is well-founded allegation that fundamental right has been infringed alternative remedy is no bar for entertaining writ petition and granting relief.® The mere existence of an adequate alternative legal remedy cannot be per se a good and sufficient ground for throwing out a petition under Art. 32, if the existence of a breach, actual . OF threat to fundamental right is alleged then the prima facie can be established on the petition.? it ‘abit fee Petition.” In spite of availability of the alternative remedy, the court may exercise its writ jurisdiction in at least petitions where the petitioner seeks enforcement of any of the fundamental rights. Thus, the Petitioner humbly submits that writ petition is maintainable as existence of alternative remedy is not a bar. 2. WHETHER POLICE HAVE VIOLATED THE ARTICES OF FUNDAMENTAL RIGHTS AND VARIOUS OTHER PROVISIONS OF VARIOUS STATUTES AND PROVISIONS OF INTERNATIONAL CONVENTIONS OF HUMAN RIGHTS? 2.1 VIOLATION OF ARTICLE 14: ‘Suman was not given the “Opportunity of being heard” (Audi Alteram Partem) to defense the allegation which has been alleged by the Police. The petitioner contends that this has led to violation of Article 14 and against the Principles of Natural Justice. Article 14 strikes at arbitrariness because it negates equality"? and permeates the entire fabric of Rule of i st be guided by reason for public good and not Law!!, Therefore, every action of the State must be gt y public g 2 by whim, caprice, and abuse of power." * Whirlpool vs -trade marks, Mumbai & Ors.(1998) 8 SCC | i ion vs. Registrar of Trt i 1 Corporation vs: ri es eh Chandra Sarma vv. Chairman, AIR 20s ‘SC 2021 Bach Punj 1982. SC 1325. 1 Bachan Singh v. State of Punjab, AIR PN. im "2 Haryana Development Auth¢ . MEMORIAL FOR PETITIONERee ee 2.2 VIOLATION OF ARTICLE 21; Article 21 deals with the right to life and personal liberty of every person. The fale Lite? : word “Life” under Article 21 has a broader aspect. In Maneka Gandhi's"? case the Court thi “tive” held that the Right to “live” is not merely confined to physical existence but it includes within its ambit the right t ive with human dignity. The Right to live is not restricted to mere animal existence It means something more than just physical survival. ‘The abovementioned topic has been discussed more specifically in Kharak Singh vs. State of U.P! it was held that the expression “life” was not limited to bodil restraint or confinement to prison only but something more than mere animal existence. Here, all the rights abovementioned have been hampered by the Police Authority of the State of Orissa, ‘The Latin maxim Salus Populi est suprema lex (Health of the people is the Supreme Law) and Salus Republicae est suprema lex (Safety of the state is the Supreme Law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the state must be “Right, Just and Fair”. Using any form of torture for extracting anv kind of information would neither Right nor Just nor Fair. Therefore, it would be impermissible being offensive to Article 21 of the Constitution. A suspect must be interrogated- indeed subjected to sustained and scientific interrogation in accordance with the provisions of law. He cannot however be tortured ot subjected to third degree methods or eliminated with a view to eliciting information extracting. profession or deriving knowledge about his accomplices, weapons ete. His be abridged except in the manner permitted by law. '6 constitutional rights cannot 78 e . Union India, AIR 1978 Mi anc con = Union Testy of Delhi AIR 1981 'S Kharak Singh Vs. State of U.P, AIR 196) '6 Krishnamurthy’s Police Diaries, Pg 12 MEMORIAL FOR PETITIONER |2 ee Im Sunil Batra (No, 1) ¥s. Delhi Administration", the petitioner was subjected to physical torture by a warden ° ‘the Tihar Jail. The Court held that the torture was illegal he sh i and he shall not be subjected to any such torture until fair pro‘ corporal puni poral punishment ot personal Violence on the petitioner shall be inflicted. In Prem Shankar ys, Del i Administration'®, the Supreme Court also said that Hand fandeuffing should be only Testored only if there is “Clear and present danger of po ; escape” breaking out the Police Control and for this there must be clear material, not merely an assumption, In Kishore Singh y. State of Rajasthan", the Supreme Court held that the use of “third degree” method by police is violative of Art, 21 and directed the Government to take necessary steps to educate the Police so as to inculcate a respect for the human person. In Francis Coralie Mullin vs. The Administrator Union”, the SC held that Art.21 includes the Right to Protection aj If the Government is not taking into consideration about protecting the rights of prisoners/convicted/ detained who also have the right to life until and unless their guilt is proved and is under trial, then there is no point of calling it a welfare state, rather it’s following the John Austin’s theory of Analytical Positivism which is “Law is the | Command of the Sovereign” which is totally against the structure of a democratic welfare state, The legitimate expectation of the convicts to be treated in a certain way is also | hampered.2! ag ere © Sunil Bara vs. Delhi Administration, AIRIOT! ° Prem Shankar vs. Delhi Administration, Al 1 1 "Kishore Singh v. State of Pet Union, AIR 1981 : Francis Coralie Lae nea a egitimate Expectation means that a person may have a reasonable Doctrine of Legitimate 7 by administrative authorities owing to some consistent prac expectation of being treated in @ iy te emcee authority. According to this doctrine, a public authority the past or an express wonis el ie mate expectation. Thus, the doctrine of Legitimate Expectation can be made accountable in Hiew pertains to the relationship between an ind idual and a public authority. ins to the rel 13 {EMORIAL FOR PETITIONERee ee + Violation of Artic cle 21 has Automatically led to the violation of Article 20 and Article 22; According to Article 20(1), no person should be imposed upon greater Punishment than what has been prescribed by law but in this case, he has been punished Uunlawfully i.e injuries which has caused his death which 's greater than the punishment prserited under Section 379 of IPC. The alleged offence charged on ‘Suman was something that would have got him ® maximum of 3 years of punishment if he was found guilty, but here, he was awarded with mush greater punishment without being proved as the offender, In this case, Suman was beaten up by the police till death which gives rise to the presumption that he was being compelled to give admission against himself about the offence alleged that can be the only reason why he was beaten up brutally. If that is the case, then it is also violative of Article 20(3) which gives protection against Self Incrimination. As he was found dead, and the postmortem report and the forensic report clearly indicates that the injuries which are found on the body of the deceased are nothing but the marks of custodial violence made by the Police officers who were in charge at that time, and also they went far more later to railway track whereas his body was found earlier in the morning which shows that they lacked the intent to do any farther search that is also because they wanted the body to be found by So it is a clear case of custodial death and his right some other persons. te produced before the Magistrate within 24 hours which is protected to be p under Article 22 is also violated. 14 MEMORIAL FOR PETITIONER23 APPLICATION oy Fire, CRC AND orn ER STATUT + Section 3 ection 331 of IPC, Voluntarily cau Using griey ° compel Forno rope 8 arievous hurt oF g to extort confession or to y Port clearly shows that it was the torture of the ' But, under Section 331 no police officer can voluntatily ca Use Brie) Stlevous hurt to extort Confession or to compel restoration of property, In Gauri Shanker Sharma Ete Ys State Of U.P. Ete*it was held that any form of torture, cruel of inhuman behaviour is prohibited by the Court of law. Ta suspect is taken for enquiry then no police officer can torture or misbehave with him, Even in Raghbir Singh vs, State of Haryana’, the constables were given the punishment of years of imprisonment alongwith the officers who arrested the deceased and made a false explanation of suicidal hanging which was set up by the police to defend their custodial violence. Circumstances were studied and they were punished accordingly. In Bhagwan Singh and another v. State of Punjab™, it was held that Police cannot be allowed to accomplish behind closed doors what the general public order and the law forbids. Using medieval and methods tht is contrary Jaw, even barbaric at times such as torture and third degree should not be to law, allowed. ™ Gai Siar Sama Be Sa 12, 1990. na Shanker Sharma Ete vs State OF tc, January bir Singh vs, State of Haryan®, - Bhagwan Singh and another v. Stale oun ; EMORIAL FOR PETITIONER MISection 49 of Cr.P.C: The person arrested shall not be subjected to more restraint than is necessary to prevent his escape. In this case, Section 49 Cr.P.C. was not complied with because he was handcuffed, then was roped around and kept in the custody. It was more than what was needed. Section 5A of Cr.P.C: It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. It was the duty of the ASI and the Constable to take care of the detainee which they completely failed. * Section 7 and 29 of the Police Act, 1861: These provide for penalty for violation of any duty, or neglecting any duty or willful neglect to any rule or obligation. In this case, the police officers willfully neglected the duties casted upon them under See 49 and SSA of Cr.P.C and Article 21 of the Constitution. 2.4 RIGHTS GUARANTEED BY VARIOUS INTERNATIONAL CONVENTIONS: 1. Article 14(3) (g) of the International Covenant on Civil and Political Rights: This right against self-incrimination is in tune with Article 14(3) (g) of the International Covenant on Civil and Political Rights which calls on the member states to ensure that the accused is not compelled to testify against himself or to confess guilt. 2. Article 5 of UDHR: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 16 MEMORIAL FOR PETITIONEReee eee nelle eaaiaie eke ee 3. Articte 9 of UDR: A, 2 Any one Who has been the victim of unlawful arrest or detention ‘able right to compensation Th Ne UDHR had a wider role to general and to; ture speci ; Pecific International treaties were passed with the passage of time, safeguard various aspects of Human Rights in 18 the United Nations Convention against Torture and other Inhuman or Degrading Treatment or Punishment (United Nations Convention against Torture) in the year 1984, Some salient features of this are as follows: Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. ¢. An order from a superior officer or a public authority may not be invoked as a justification of torture, d. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. Interestingly India even though it has signed the treaty but has not ratified the same till date. But, these are of persuasive value since they represent involving international consensus on the issue, 7 MEMORIAL FOR PETITIONER EeLa. 3. WHETHER TATE Is ENTIT IMMUNITY? LED TO CLAIM SOVEREIGN The princi iple of so i ercign immunity in US law was inherited from the English common law maxim re x "on potest peccare, meaning “the King can do no wrong” as proclaimed by King Charles in 1649 as : “No earthly power can justly call me, who am your king, in question as a delinquent,” he explained, Sovereign ji it Sp matuniky means that, in most cases, no_person_can_sue the government without having ¢ 5 ‘without having the govermment’s permission to do go, Sovereign immunity is used as a way of tecting the : ; 'vernment from having to alter its policies any time a person takes issue with them. Sovereign immunity falls into two categories— Qualified Immunity and Absolute Immunity, ¥ Qualified immunity shields state and local government officials, such as police officers, from being sued as long as they are acting within the scope of their office, in objective ood faith, and their actions do not violate an established statutory or constitutional right of which a reasonable person would be aware. As affirmed by the U.S. Supreme | Court, the application of qualified immunity has been criticized by those who say it allows for and even encourages the use of excessive force by police. Qualified immunity applies only to government officials in civil litigation, and does not protect the government itself from suits arising from the actions of those officials. solute immunity, in contrast, & ereign immunity to government officials Absol st, grants $0) i , 1 minal prosecution and civil suits for damages, so : ly immune from erimit making them complete! ‘ ing within the scope of their duties. In this manner, absolute immunity is Jong as they are acting W! frcials except those who clearly incompetent or those who tall officials except those who are clearly incompetent or those who i tect ee sentially, absolute immunity is @ complete bar to a lawsuit knowingly violate the law F MEMORIAL 18 FOR PETITIONERoe with 0 exceptions, Absoly le it unity et i: legislors, a the highs exe Aenerally applies to judges, prosecutors, jurors tive official the United States, of all governments, including the President of The Concept of Sovereign Immunity has been wonderfully discussed in Maharaj ys. Attorney General of Tri lad and Tobago”, where Justice Diplock has said that there is a difference between Private Law and Public Law. Under public law, state is casted "upon duties to protect its citizens. If the duties are not fulfilled or while fulfilling the duties any wrong have been committed or any injury have been inflicted upon any individual while performing duty, then compensation can be awarded and sovereign immunity cannot be claimed. People have surrendered their rights to State, so that State can give protection to their life, liberty and property and it is the duty of the Police mainly and if there is any mistake while performing those duties, then Sovereign immunity cannot be claimed because Article 21 is the Magna Carta of Indian Constitution forthe reason being it sts citizens and non citizens as well under the Public law. If i jghts to its citizens Provides for ample of rig a LLL 2 Kasturi Lal Ramia Lal vs. State of K * Maharaj vs, Attorney General of Ti 1965, nd Tobago 1977 19 FOR PETITIONER MEMORIALa these rights are no * Protected j, in th caling them a pub ne name Of Sovereign immunity then there is no point of "© Taw Where layy ¢ ‘AW is the com mand of sovereign.2” 4. WHETHER NILABATY BEHERA COMPENSATION? IS ENTITLED TO GET held in Rudal Sah y, State of Bihar, In Saheli v, Commr. of Police,2* * the Supreme Court directed the Delhi Administration to pay Rs. 75,000/- &S exemplary compensation to the mother of a 9 years old child who died due to beating by the Police officer, In State of Maharashtra v. Ravikant S. Patil, an under-trial prisoner was handcuffed and paraded on streets. He was suspected tobe involved in a murder case, A local newspaper carried a news item that he would be taken in a Procession from Police station through the main streets of the city for the Purpose of investigation. The Bombay High Court held that handcuffing and parading of the petitioner was unwar inted and violative of Art. 21 and directed the Inspector of Police who was responsible for this, to pay Rs. 10,000 by way of compensation. It also directed that this act of violation of Art. 21 should also be entered in his service record, The Supreme Court upheld the judgment of the High Court directing a payment of compensation but held thatthe police officer was not personally liable as he acted as an official. John Austin's Analytical Poshivies * Rudal Sah v, State of Bihar, _ ® Saheli v, Comme, of Pol ies AIR 197 1991)28CC3T3. ° State of Maharashtra v. Ravikant S. 20 [MEMORIAL FOR PETITIONER Oaee ener In Chiranjit Kany nio, "Of India?! negligence of army officer » 4n Army Officer died in service due to 8 te ulti hardship t0 the widow, in great mental agony and physical and financial OF the dece ‘aged n ‘nd two minor children. The Court awarded the widow reignin 2806! a india 4 Chiranjit Kaur v. Union © ETITIONERPRAYER " ie "ah ofthe inns rised arguments advanced and aubores ced: 11 raed that sour Lordship may direct the Government of Orissa to pay the Petitioner compensation amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) for violation of fundamental rights of the Suman Behera under Articles 14, 20, 21 and 22 of the Constitution. is prayed that your Lordship may direct the Chief Secretary of the State of Orissa to take necessary steps against the culprits for the interest of justice. + Itis prayed that your Lordship may direct the Director General of Police to issue Rule against the concerned Police Officials who violated the Fundamental Rights of the Petitioner. . And, also to pass such necessary Order/Orders as your lordship may deem fit and proper in the interest of Justice, Equity and Good Conscience. ‘And for this, the Petitioner as in duty bound, shall humbly pray. Gu Si 9 oe COUNSEL FOR THE PETITIONER 2 MEMORIAL FOR PETITIONER