Download Animal welfare board and more Study notes Mock Trial and Moot Court in PDF only on Docsity!
CLEA MOOTING (SOUTH ASIA ROUNDS) COMPETITION - 2022
MAR GREGORIOS COLLEGE OF LAW,
THIRUVANANTHAPURAM
BEFORE THE HON’BLE SUPREME COURT OF ROSEHILL
UNDER ARTICLE.32 IN THE MATTER OF
WRIT PETITION NO. OF 2022
ASSOCIATION OF DEMOCRATIC
RIGHTS
……………………………………. PETITIONER
VERSUS
1. UNION OF ROSEHILL
2. STATE OF BRAAVOS
……………………………………. RESPONDENT(S)
MEMORANDUM ON BEHALF OF THE RESPONDENT
TEAM CODE: CM 16
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND OTHER HON’BLE JUSTICES
OF THE SUPREME COURT OF ROSEHILL
I
LIST OF ABBREVIATIONS……………………………………………………… II-III
INDEX OF AUTHORITIES………………………………………………….…… IV
STATEMENT OF JURISDICTION………………………………………….…… V
STATEMENT OF FACTS………………………………………………………… VI-VIII
ISSUES RAISED…………………………………………………..……….……… IX
SUMMARY OF ARGUMENTS…………………………………………………… X-XI
ARGUMENTS ADVANCED……………………………………………………… 1 - 34
1 WHETHER THE EXECUTIVE ORDER OF THE GOVERNMENT OF
ROSEHILL DECLARING LOCKDOWN IS CONSTITUTIONALLY
VALID AND WHETHER IT VIOLATES ARTICLE 14 AND 21 OF THE
CONSTITUTION OF ROSEHILL?
2 WHETHER THE ORDINANCE PASSED BY THE STATE OF
BRAAVOS WHICH SUSPENDED SEVERAL LABOURS LAWS,
VIOLATED FUNDAMENTAL RIGHTS OF WORKERS, AND
SUBSEQUENTLY THE INTERNATIONAL LABOUR
ORGANISATION CONVENTION IS VALID?
3 WHETHER THE APPLICATION COVITRACK, BRAAVO’S
SHARING OF THE PERSONAL DATA OF THE QUARANTINED
PERSONS ON THE WEBSITE AND USE OF MYSTERIOUS DRONES
VIOLATIVE OF THE RIGHT TO PRIVACY?
4 WHETHER THE CENTRAL GOVERNMENT OF ROSEHILL AND
THE STATE GOVERNMENT OF BRAAVOS VIOLATED SEVERAL
HUMAN RIGHTS, BOTH ENUMERATED AND UNENUMERATED,
UNDER THE NATIONAL AND INTERNATIONAL LEGAL REGIME
DURING THE POST COVID REGIME?
5 WHETHER THE REGULATIONS ISSUED BY THE GOVERNMENT
UNDER THE EPIDEMIC ACT, 1897 MAKING VACCINATION
COMPULSORY VIOLATIVE OF THE RIGHTS PROTECTED BY ITS
CONSTITUTION?
PRAYER…………………………………………………………… XII
TABLE OF CONTENTS
III ILO International Labour Organisation ESI Employee’s State Insurance DPSP Directive Principles of State Policy MHA Ministry of Home Affairs RTI Right To Information NDMA National Disaster Management Authority UDHR Universal Declaration of Human Rights UNESCO United Nations Educational, Scientific and Cultural Organization PUCL People's Union for Civil Liberties ICESCR International Covenant on Economic, Social and Cultural Rights IPC Indian Penal Code
IV INDEX OF AUTHORITIES
- Akhil Bharatiya Soshit Karamchari Sangh v. Union of India 1981 AIR 298, 1981 SCR (2) 185
- Bannari Amman Sugars Ltd. v. CTO
- Bantua Mukti Morsa v. Union of India A.E.A. 1984 Uni 812
- BURRA BAZAR FIRE ORKS Vs COMMISSIONER OF POLICE CALCUTTA A.P.A. 1988-Stone,
- Deep Chand v. State of Uttar Pradesh 1959 AIR 648, 1959 SCR Supl. (2) 8
- Election Commission of India v. Dr. Subramaniam Swamy (1996)
- Gullapalli Nageswara Rao Etc vs The State Of Andhra Pradesh 1959 AIR 1376, 1960 SCR (1) 580
- Karan Dileep Nevatia vs The Union Of India. 2010
- Kuldip Nayar V. Union of India AIR 2006 SC 3127
- Lalit Kumar Modi - v- Board of Control for Cricket in India and Others reported in (2011) 10 SCC 106
- Madras v. V.G. Rows AIR 1951 Mad 147, (1951) IMLJ 628
- Maneka Gandhi v. Union of India, AIR 1978 SC 597
- Mr. Surupsingh Hrya Naik v. State of Maharashtra 23 March, 2007,
- Mr. Surupsingh Hrya Naik v. State of Maharashtra, AIR 2007 Bom 121, 2007 (109) Bom L R 844, 2007 (4) MhLj 573. 1
- Naga People’s Movement of Human Rights v. Union of India 1998 AIR (SC) 431, 1997 (9) JT 431, 1997 (10)
- Narendra Kumar v. Union of India 1960 AIR 430, 1960 SCR (2) 375
- Passim Banka Get Mazur Samiti v. West Bengal (1966) 4 Univ. 37
- People’s Union of Civil Liberties v. Union of India AIR 1997 SC 568, JT 1997 (1) SC 288
- Rajneesh Kapur v. Government of India A.E.A. 204 of 2007 M.P
- Re Dinthar Incident Aizawl v State of Mizoram and Others WP(C)/37/
- Section 2 of this Epidemic Disease Act, 1897
- State of Punjab v. M.S. Chawla (1996) 113 PLR 499
- State of Punjab v. M.S. Chawla (1996) 113 PLR 499
- State of West Bengal v Committee (2010) 3 SCC 571
- Sunil Batra v. Delhi Administration (1978) 4 SCC 409
VI STATEMENT OF FACTS
- Rosehill is a country in South Asia which is 7th largest by area & 2nd largest by population.
- Rosehill is committed to its constitution and it has parliament houses in state and union guarantees fundamental rights and DPSP of the citizens. Its law is Pare-materia to Indian law.
- On 30/01/2020 WHO declared global emergency as death toll of Chinovia jumped to 170 with 7711 cases and also more than 7500 cases reported in 20 countries. On 11th march WHO declared covid - 19 a pandemic.
- To stop the spread of virus the MHA in its executive order dated 25/03/2020 laid a country wide lockdown which closed all School, College, Office, Public Office and along with that all form of Transports were also stopped till 14/02/2022.
- As the factories were closed millions of migrant workers didn’t have income, food and so they started travelling to their own place through roadways which demanded more than 100kms and 1000kms of walk. While walking to their places through road many were assaulted & arrested by the law enforcement officials for violating the lockdown.
- The rose hill govt on 10/04/2020 introduced a scheme (PMMKBY) to solve the distress of public and part of that free food was given by PDS scheme to the “poorest of poor”, but still criticized by media for many mishappening.
- Meanwhile the SG of Braavos, capital of Rosehill passed an ordinance dated 25th April suspended labour laws like (FACTORIES ACT, ID ACT, THE PAYMENT OF WAGES ACT, MINIMUM WAGES ACT, BONUS ACT, ESI ACT) except the sec 5 of payment of wages act for increasing the economy of the Government.
VII
- During this pandemic state many dead bodies were abandoned and many dead bodies were made floating in holy rivers. Even immediate family members of covid-19 didn’t get the dead bodies to perform rituals.
- Further to stop covid the CG introduced a Covi-Track app and made mandatory for all citizens to use the app and demanded to furnish name, contact no, health etc and app sought continuous “on state” of location to find out the social movement graph. The citizens were angered on mandatory download of app since the govt kept quiet on addressing privacy policies of app.
- Also, the HEALTH & WELFARE DEPT of bravos published all the personal details of 16910 pupil who were quarantined because of returning from abroad in official website which includes the country they have visited recently which aggravated the privacy concerns of public.
- Another issue was usage of drone in bravos by executive official in park, beach to watch out the pupil violating lockdown.
- In June 2020 govt started developing the vaccine through a PPP. Reports stated that the trails were conducted directly on the orphans as of though they are guinea pigs to test the safety of the Vaccine. Also, it was reported many orphans were dead.
- The govt spread massive awareness about the benefit of vaccine however the pupil avoided vaccination due to reports states that the vaccine has side effects like blood clotting and pulmonary vein issues.
- The director of WHO addressed media insisting the need for vaccination and since the covid - 19 begun to increase the govt made vaccination certificate mandatory for inter-state travel and pupil who work in Educational Institutions, Government offices, manufacturing industries and factories which was addressed by public stating that this is in violation of
IX ISSUES RAISED ISSUE I WHETHER THE EXECUTIVE ORDER OF THE GOVERNMENT OF ROSEHILL DECLARING LOCKDOWN IS CONSTITUTIONALLY VALID AND WHETHER IT VIOLATES ARTICLE 14 AND 21 OF THE CONSTITUTION OF ROSEHILL? ISSUE II WHETHER THE ORDINANCE PASSED BY THE STATE OF BRAAVOS WHICH SUSPENDED SEVERAL LABOURS LAWS, VIOLATED FUNDAMENTAL RIGHTS OF WORKERS, AND SUBSEQUENTLY THE INTERNATIONAL LABOUR ORGANISATION CONVENTION IS VALID? ISSUE III WHETHER THE APPLICATION COVITRACK, BRAAVO’S SHARING OF THE PERSONAL DATA OF THE QUARANTINED PERSONS ON THE WEBSITE AND USE OF MYSTERIOUS DRONES VIOLATIVE OF THE RIGHT TO PRIVACY? ISSUE IV WHETHER THE CENTRAL GOVERNMENT OF ROSEHILL AND THE STATE GOVERNMENT OF BRAAVOS VIOLATED SEVERAL HUMAN RIGHTS, BOTH ENUMERATED AND UNENUMERATED, UNDER THE NATIONAL AND INTERNATIONAL LEGAL REGIME DURING THE POST COVID REGIME? ISSUE V WHETHER THE REGULATIONS ISSUED BY THE GOVERNMENT UNDER THE EPIDEMIC ACT, 1897 MAKING VACCINATION COMPULSORY VIOLATIVE OF THE RIGHTS PROTECTED BY ITS CONSTITUTION?
X
SUMMARY OF ARGUMENTS
WHETHER THE EXECUTIVE ORDER OF THE GOVERNMENT OF ROSEHILL
DECLARING LOCKDOWN IS CONSTITUTIONALLY VALID AND WHETHER
IT VIOLATES ARTICLE 14 AND 21 OF THE CONSTITUTION OF ROSEHILL?
It is humbly contended that no right is absolute right and it is subjected to reasonable restrictions. If a right runs counter to the larger public interest, then it is for this hon’ble court to interfere in those matters and to safeguard the rights of the others. The State has a positive obligation under Article 21 of the Constitution to swing into action in the face of a public health emergency such as the present pandemic to protect the lives of its people. WHETHER THE ORDINANCE PASSED BY THE STATE OF BRAAVOS WHICH SUSPENDED SEVERAL LABOURS LAWS, VIOLATED FUNDAMENTAL RIGHTS OF WORKERS, AND SUBSEQUENTLY THE INTERNATIONAL LABOUR ORGANISATION CONVENTION IS VALID? It is humbly submitted that according to Article 254 (2) of Indian Constitution, any Bill relating to a subject in the concurrent list, which may be repugnant to a Union law, needs the approval of the President for its enforcement. This means that it has to be cleared by the Centre, which would advise the President to give his assent. This applies to an ordinance as well due to Article 213 WHETHER THE APPLICATION COVITRACK, BRAAVO’S SHARING OF THE PERSONAL DATA OF THE QUARANTINED PERSONS ON THE WEBSITE AND USE OF MYSTERIOUS DRONES VIOLATIVE OF THE RIGHT TO PRIVACY? It is most humbly submitted before the hon'ble supreme court of Rosehill that the application CoviTrack , Bravoo's sharing of personal data of the quarantined person on the website and
1
ARGUMENTS ADVANCED
1. WHETHER THE EXECUTIVE ORDER OF THE GOVERNMENT OF ROSEHILL
DECLARING LOCKDOWN IS CONSTITUTIONALLY VALID AND WHETHER IT
VIOLATES ARTICLE 14 AND 21 OF THE CONSTITUTION OF ROSEHILL?
1. It is humbly submitted in the Hon’ble Supreme Court of Rosehill that the petition filed by the Association of Democratic Rights (ADR) regarding the executive order of the Government declaring lockdown on 25.03.2020 and the sudden imposition of Lockdown via the same has not violates the Right to equality and Right to Life and liberty which is enshrined under Article 14 and 21 of the constitution of Rosehill. 2. The Order passed by the Ministry of Home Affairs(MHA), Government of Rosehill, declaring nationwide lockdown vide the executive order dated 25th^ March 2020, due to the outbreak of novel Corona Virus (Covid 19) is constitutionally valid as there has been no violation of any fundamental right as the government is empowered to put reasonable restrictions subject to law and order, public policy, morality & decency for the exercise of fundamental rights enshrined under Part III of the constitution of Rosehill. 3. It is submitted that Fundamental rights are not absolute; they are subject to reasonable restrictions. It is stated that The Lockdown primarily affects two fundamental rights the right to move freely throughout the territory of India and the right to practice any profession, or to carry on any occupation, trade or business. These rights have been guaranteed under Article 19(1)(d) and (g). However, a reading of Article 19 (5) and (6) make it clear that ‘reasonable restrictions’ can be imposed on these rights in the interests of the general public. The guidelines issued for the lockdown order under the Disaster Management Act, 2005 totally qualifies as a reasonable restriction under the said two Articles of the Constitution of India [^1 ] (^1). Article 19 of Indian Constitution, 1949.
2
4. It is submitted that this executive order has been promulgated by invoking section 6(2)(i) of the Disaster Management Act, 2005, and section 36 of the DMA makes it obligatory on the central government to comply with the orders of the National Disaster Management Authority set up under the Act. Also, the section 72 of the Act provides that the provisions of the Act, will have an overriding effect on all other laws, and it is observed that in such a situation that the cases of Covid 19 is increasing continuously and to stop this, lockdown is an appropriate step by which social distancing can also be maintained and the same has been suggested by WHO .[^2 ] 5. It is submitted that there is no vaccine available till date and the social distancing is the only way in the country like Rosehill having second largest population in the world and considering the existing panorama of the country it is reasonably understood that the executive order dated 25.03.2020 is apt and permeated with the idea of the safety of the citizens and reflecting a responsible approach to tackle this pandemic. Hence it is necessary to impose lockdown otherwise the number of patients will reach at their peak and then it will become dangerous for all. 6. It is submitted that in this present time the Union government of Rosehill had imposed a pan lockdown which is reasonable decision and taken with the view to serve the interest of the country as well as for the public. It is the foremost duty of the government to provide safety to the public and protection of them. Hence, the imposition of lockdown is reasonable and consistent with the principle of intelligible differentia and the executive orders are not arbitrary and are completely reasonable. 7. It is further submitted that Article 21 of Rosehill Constitution provides protection to life and personal liberty. This right is provided to citizens as well as non-citizens. The imposition of (^2) section 6(2)(i) of the Disaster Management Act, 2005
4
12. It is submitted that the State has the power to order such a lockdown if it benefits the public at large. This is in spite of the debilitating consequences it may have in the present and future. The right to life guaranteed under Article 21 of the Constitution is the most sacrosanct fundamental right. Without life, there can be no liberty. Thus, it paves the way for all other rights to exist. [^6 ] 13. It is agreed that imposing lockdown and restriction on movement of people is taking away the Right to personal liberty. But the right to life is equally important. The spread of Covid-19 is life-threatening, and already it took thousands of lives in other countries. Therefore, the sudden imposition of lockdown order will, in turn, save the lives of people. Article 21 is the heart and soul of the Constitution. Safeguarding the health of the people is equally important, and it comes under Article 21 of the Constitution. 14. The Fundamental Duties of the citizens in connection with our study are Article 51A(e) of the Constitution of India. The Aurangabad bench of the Bombay high court (HC) stated that it was also their duty to maintain peace, harmony and the spirit of brotherhood, especially during the Covid-19 pandemic. The court further observed, “While this court expects effective measures from the respondent state authorities and corporation, it also expects that citizens would remind themselves fundamental duties and would discharge them to deal with the outbreak of Covid- 19 pandemic.” [^7 ] 15. It is well settled in the case of Naga People’s Movement of Human Rights v. Union of India [^8 ], the Hon’ble Supreme Court held that: “Reference in this context may be made to Article 355 of the constitution whereunder a duty has been imposed on the Union to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of the Constitution. In view of the said provision, (^6) Article 21 of the Constitution 1949 (^7) Article 51A(e) of the Constitution of India, 1950 (^8) Naga People’s Movement of Human Rights v. Union of India 1998 AIR (SC) 431, 1997 (9) JT 431, 1997 (10)
5 the Union government is under an obligation to take steps to deal with a situation of internal disturbance in a State. [^9 ]
16. The Supreme Court, in State of Punjab v. M.S. Chawla, has interpreted Article 21 in a broad manner, stating that “right to health is integral to the right to life. The government has a constitutional obligation to provide health facilities.” Thus, the State has a positive obligation under Article 21 of the Constitution to swing into action in the face of a public health emergency such as the present pandemic to protect the lives of its people. [^10 ] 17. In Narendra Kumar v. Union of India, the Supreme Court held that to determine the reasonableness of a restriction, among other factors, it must consider the background of the circumstances in which the order is issued and “whether the restraint caused by the law is more than necessary in the interest of the general public.” [^11 ] 18. It needs a special mention of the uncertain nature of the SARS CoV-2, its rapid spread and the absence of a vaccine is compounded by the fact that the Indian health infrastructure doesn’t have the capacity to handle a China/Italy/US/Iran like situation. A lockdown helps enforce social distancing and isolation, which is essential to contain the virus spread. China has attributed its successful recovery to its lockdown of Hubei province. While one may consider this kind of restraint on our movement and profession extreme and unprecedented, it is not in excess of what is required in the current predicament. It is necessary in the interests of the general public. Thus, the Guidelines issued under the Disaster Management Act, 2005 will qualify as a reasonable restriction under Article 19(5) and (6). [^12 ] 19. It is submitted that Entry 81 of the Union List allows the Centre to make laws on inter-state quarantine and quarantine of ports and ships. [^13 ] (^9) Article 355 of the constitution of India 1950 (^10) State of Punjab v. M.S. Chawla (1996) 113 PLR 499 (^11) Narendra Kumar v. Union of India 1960 AIR 430, 1960 SCR (2) 375 (^12) https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/vaccine-induced-immunity.html (^13) Entry 81 of the Union List in Indian Constitution 1949
7 Absolute Necessity through the case of Election Commission of India v. Dr. Subramaniam Swamy (1996) wherein it was held by the court that the doctrine of necessity shall only be invoked in the cases of absolute necessity. [^20 ]
25. It is stated that Section 2 of this Epidemic Disease Act, 1897^21 says that temporary regulations can be made by the State Government if the Government is satisfied that an outbreak of a disease is of an epidemic nature. Such temporary regulations have to be followed by the people of the country as they were made in order to prevent the spread of such an outbreak. 26. It is further stated that Section 2A of EDA states that if the Central Government is satisfied that due to a pandemic or epidemic outbreak, an ordinary legal framework would not be able to run the legislature the Central Government may make certain rules and prescribe certain regulations to control the spread of such a disease. 27. In the case of the State of Punjab v. M.S. Chawla, the Supreme Court had interpreted Article 21 of the Constitution of India in a broader sense where it is said that the Centre has the constitutional obligation for providing certain health facilities to the common people. The Centre has a full obligation to follow certain measures and declare a public health emergency under this Article. [^22 ] 28. In the case of Madras v. V.G. Rows, the test of reasonability regarding a restriction was laid down. It stated that for deciding the reasonableness of a restriction, some factors have to be considered. Such factors include – the underlying purpose of the restriction, disproportion of the restriction, the extent and urgency of such restriction and the prevailing conditions at that time .[^23 ] (^20) Election Commission of India v. Dr. Subramaniam Swamy (1996) (^21) Section 2 of this Epidemic Disease Act, 1897 (^22) State of Punjab v. M.S. Chawla (1996) 113 PLR 499 (^23) Madras v. V.G. Rows AIR 1951 Mad 147, (1951) IMLJ 628
8
29. The Supreme Court, in the case of Bannari Amman Sugars Ltd. v. CTO, had further observed that a reasonable restriction which is imposed in the State cannot be called unreasonable just because it uses harsh measures for its application. [^24 ] 30. By declaring an early lockdown, by the provisions of the Disaster Management Act, 2005^25 , India has taken a great step to fight the coronavirus outbreak. The best weapon for India at this crisis is social distancing and self-isolation of the people. By doing so, people minimize the chances of catching the virus and passing it on to another person. Some people might not like the idea of an all-India lockdown but the bitter truth is that the lockdown is the best possible way to fight this pandemic as India does not have any cure for it. 31. It is well settled in Bhuddhan Chaudary v. State Bihar the Hon’ble Supreme Court provides the following directions: - (a) The classification proposed in the legislation must be formed on intelligible differentia and (b) There must be also nexus between the classification and the object of the Act or rules. 32. It is submitted that the Union Government of Rosehill had imposed a pan lockdown which is reasonable decision and taken with the view to serve the interest of the country as well as for the public. It is the foremost duty of the Government to provide safety to the public and protection of them. ********************* (^24) Bannari Amman Sugars Ltd. v. CTO (^25) Disaster Management Act, 2005
