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BEFORE THE HON’BLE SUPREME COURT OF INDIA
[EXTRAORDINARY ORIGINAL JURISDICTION]
PUBLIC INTEREST LITIGATION
WRIT PETITION (CIVIL) NO……….. OF 2019
A PUBLIC INTEREST LITIGATION FILED UNDER ART 32 OF THE CONSTITUTION OF FINDIA,
-------IN THE MATTER BETWEEN-------
KISHU RADO, MAA LIELA & ORS …………………PETITIONERS
v. UNION OF FINDIA …………………RESPONDENT UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF FINDIA WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT COUNSEL FOR RESPONDENTS
TABLE OF CONTENTS
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- Prof. VedKumari, with a foreword by UpendraBaxi, The Juvenile Justice System in India - From Welfare to Rights, 2004 DICTIONARIES
- Aiyar, Ramanatha P.: “The Law Lexicon”, Wadhwa& Company, 2ndEdn., Nagpur (2002).
- Black, Henry Campbell: Blacks Law Dictionary ‟6th Edn., Centennial Ed. (1891-1991).
- Curzon. L. B: “Dictionary Of Law”, Pitman Publishing, 4th Edn., New Delhi (1994).
- Garner, Bryan A.: “A Dictionary Of Modern Legal Usage”, Oxford University Press 2nd Edn., Oxford (1995).
- Greenberg, Daniel And Alexandra, Millbrook: “Stroud’s Judicial Dictionary Of Words & Phrases”, Vol. 2, 6th Edn., London: Sweet & Maxwell (2000).
- Justice Desai, M.C. And Aiyar, Subramanyam: “Law Lexicon & Legal Maxims”, 2nd Edn., Delhi: Delhi Law House (1980).
- Mitra, B.C. &Moitra, A.C., “Legal Thesarus”, University Book, Allahabad (1997).
- Moys, Elizabeth M., “Classification & Thesaurus For Legal Material”, 3rd Edn., London: Bowker Saur (1992).
- Oppe., A.S., “Wharton’s Law Lexicon”, 14th Edn., New Delhi: Sweet & Maxwell (1997).
- Prem, Daulatram, “Judicial Dictionary”, 1st Edn., Jaipur: Bharat Law Publication (1992)
TABLE OF CASES
- Central.Elecricity.Supply Utility of Odisha v. Dhobei Sahoo & Ors.,(2013) SCC 1005.
- Common Cause (A Regd. Society) vs Union Of India & Ors, Writ Petition (civil) 580 of
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Page 10 of 42 UOI : Union of India US : United States UK : United Kingdom v : versus
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STATEMENT OF JURISDICTION
The Petitioners have approached this Hon’ble Supreme Court of Findia under Art 32 of the Findian Constitution, 1950^1 , through a Public Interest Litigation. The Respondent reserves the right to contest the maintainability of the present litigation. (^1) 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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Page 13 of 42 heroin, an addictive substance. Maa Liela said that the powder was used for meditation. They also came across a brief case on the 1st floor of the house with 2 packets of the similar powder which were seized, sealed and sent for chemical analysis. The trio was arrested complying with the due procedure specified under the NDPS Act, 1985. Charges were framed against the three of them under the Act. Filing of PIL: (vi) Aggrieved, Kishu and Maa Liela took the defense of Right to Privacy as the activities were within the four corners of their house, didn’t disturb any third person and hence the State has no right to interfere. They filed a PIL in the Hon’ble Supreme Court of Findia challenging to constitutionality of S.27 of the NDPS Act along with several other petitions challenging various other provisions. The petitions were clubbed to be heard together. They also prayed for a stay on the trial till the Supreme Court decided on the said PIL. However, the Supreme Court allowed the trial to proceed on its own accord.
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STATEMENT OF ISSUES
1. WHETHER THE INSTANT PUBLIC INTEREST LITIGATION IS MAINTAINABLE
BEFORE THIS HON’BLE COURT?
2. WHETHER THE SECTIONS 8(C) & 27 OF THE NDPS ACT, 1985 SUFFER FROM
ANY CONSTITUTIONAL INFIRMITIES AND ARE THEREFORE ULTRA VIRES THE
CONSTITUTION OF FINDIA?
3. WHETHER SECTION 35 OF THE NDPS ACT, 1985 WHICH ATTACHES A
PRESUMPTION OF CULPABILITY, IS ULTRA VIRES THE CONSTITUTION OF
FINDIA?
4. WHETHER THE CONSUMPTION OF DRUGS CAN FALL WITHIN THE PROTECTIVE
COVER OF ARTICLE 25?
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Page 16 of 42 not violate Art 14 of the Findian Constitution as it a “reasonable classification” based on intelligible differentia, and this classification has a rational nexus to the object of the Act, without which the object of the Act cannot be achieved. Therefore, it is submitted that this provision is not arbitrary.
4. WHETHER THE CONSUMPTION OF DRUGS CAN FALL WITHIN THE PROTECTIVE COVER OF ARTICLE 25? The Respondent submit with utmost venerance that only religious practices that are “essential to the religion” will receive protection under the umbrella of Art 25 of the Findian Constitution. It is contended that the usage of “drugs” does not constitute the essential religious practice of any religion, in fact all religions view the usage of drugs with utmost contempt. Further, it is also submitted that “public order, morality and health” are exceptions to soliciting protection under Art 25 of the Findian Constitution and all the three restrictions apply in the present context, thereby making it impossible for the consumption of drugs to be protected under Art 25 of the Findian Constitution.
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ARGUMENTS ADVANCED
1. Whether the instant Public Interest Litigation is maintainable before this Hon’ble Court? The Petitioner has filed a Public Interest Litigation by invoking Art 32 of the Findian Constitution^2. The Respondent humbly submits that the PIL is not tenable in the eyes of law as there is not an iota of “public interest” [A] in the given case, rather only private interest is involved and no fundamental right has been repugnantly violated [B]. 1.1 A. No Public Interest is involved: (a) Lexically, the expression "PIL" means the legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.^3 However, this has become a procedure that is widely abused.^4 It has evolved to become "publicity interest litigation^5 " or "private interest litigation^6 " or "politics interest litigation^7 " or the latest trend being "paise income litigation".^8 (b) If not properly regulated and abuse averted it also becomes a tool in unscrupulous hands to release vendetta and wreck vengeance^9. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errantor poke ones into for a probe^10. Courts of justice should not be allowed to be polluted by unscrupulous litigants by (^2) Page 6, Moot Court Proposition (^3) Janata Dal v. H.S. Choudhary, (1992) (4) SCC 305. (^4) Dattaraj Nathuji Thaware v. State Of Maharashtra & Ors.,(2005) 1 SCC 590. Also in: Kansing Kalusing Thakore & Ors.v. Rabari Maganbhai Vashrambhai, (2006) 9 SCR 196; Rajiv Ranjan Singh Lalan & Anr v. Union of India & Ors.,(2006) 6 SCC 613. (^5) Bandhua Mukti Morcha v. Union of India & Others, 1984 SCR (2) 67. (^6) Nirmal Singh Kahlon v. State Of Punjab & Ors, (2009) 1 SCC 441 (^7) Common Cause (A Regd. Society) vs Union Of India & Ors, Writ Petition (civil) 580 of 2003 (^8) Dr. B. Singh v. Union of India & Ors.,(2004) 3 SCC 363. (^9) S.P Gupta v. Union of India, AIR (1982) SC 149. (^10) Kazi Lhendup Dorji v. Central Bureau of Investigation, (1994) 3 SCR 201.
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Page 19 of 42 Court decides to rule for the Petitioners in the instant case, there will be more “public harm” and “public injury” than “public good”, which is the very essence of a Public Interest Litigation^23. The Respondent submits that the instant litigation is against public interest itself and if allowed will cause gross miscarriage of justice and thereby stands untenable in the eyes of law. (f) For a PIL to be maintainable the interest of a substantial segment of the population should have been affected and they should not be in a position to approach this Apex Court owing to their down-trodden social and economic conditions, due to which the Petitioner will acquire locus standi to file the PIL.^24 The public interest litigation should not be merely a cloak for attaining private ends of a third party or of the party bringing the petition^25. In the instant case, it is pertinent to note that the Petitioners have already been arrested for the illegal usage of drugs under the Narcotic Drugs and Psychotropic Substances Act, 1985^26 and the trial is taking place. (f) They decided to file this Public Interest Litigation right after their arrest, which ipso facto demonstrates the private interest involved in this case, under the garb of public interest. This clearly is an abuse of process^27 that is being done by the Petitioners and clearly in violation of the principles of when a PIL can be filed. The Respondent humbly submits that this is a “private interest litigation” clothed as a “public interest litigation” which is clearly against the settled principles of law. If the “impugned provisions^28 ” that are being challenged are struck down, the Petitioners will be hugely benefitted as they will be discharged from their liability under the Narcotic Drugs and Psychotropic Substances Act, 1985 under which they have been arrested and this clearly shows the “private interest involved” in the instant litigation. (g) Such frivolous petitions bring down the very sanctum and purity attached to the process of filing a PIL that is meant to be allowed by this Court only after extreme circumspection and scrutiny^29 , in the Respondent’s humble submission. So, The Respondent reverently contends that viewed from any angle, this PIL stands untenable in this Hon’ble Apex Court because there is an absence of “substantial public interest” and involves only private interest. (^23) Fertiliser Corporation Kamgar Union (Regd.), Sindri and Ors. v. Union of India and Ors, [1981] 1 SCC 568 (^24) People's Union for Democratic Rights v. Union of India & Others, AIR (1982) SC 1473. Also in: Ranju Gopal Mukherjee & Anr. v. State Of West Bengal & Ors.,W.P 441 of 2018. (^25) Raunaq International ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492. (^26) Page 6 of the Moot Court Proposition. (^27) Gian Singh v. State Of Punjab & Anr, (2012) 10 SCC 303. (^28) S. 8 (c), S. 27 and S. 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985. (^29) Municipal Committee, Hoshiarpur V. Punjab State Electricity Board. & ors., (2010) 13 SCC 216.
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Page 20 of 42 1.2 No Fundamental Right has been violated: (a) The powers of the Supreme Court of Findia under Art.32 of Findian Constitution is wide and it can be used to reinstate the fundamental rights of individuals when they have been denied.^30 PIL’s can be entertained when the rights of individuals guaranteed by Part III of the Findian Constitution have been grossly violated.^31 (b) The Respondent deferentially submits that there is no fundamental right of the Petitioners that is violated in the present case as the Respondent will be establishing by virtue of the forth coming issues. The Sections that are being challenged in the instant case^32 are constitutionally valid and there is no legal nexus or basis to contend them as being unconstitutional; this will be proved by the Respondents in the forth coming issues. (c) Any writ petition becomes unsustainable in this Hon’ble Court where it has been satisfactorily established that no fundamental right is violated^33. Moreover, there is no element “genuine public harm” or “genuine public injury”^34 that has to be redressed in the present case. In fact, the Respondent fails to see the essence of any “public interest” being present in the instant matter at all. Moreover, as already explained, admission of the present litigation will lead to more public harm than good; the instant litigation if allowed will go against public order, morality and health, which are reasonable restrictions on Fundamental Rights laid down by the Findian Constitution.^35 Hence, by virtue of this fact also, this PIL is not maintainable, in the Respondent’s considered view.
2. Whether The Sections 8(c) & 27 of the NDPS Act, 1985 Suffer From Any Constitutional Infirmities And Are Therefore Ultra Vires The Constitution of Findia? The Respondent submit with utmost reverence before this Hon’ble Court that S. 8 (c) and S. 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are intra vires the Findian (^30) Naresh Shridhar Mirajkar & Ors. v. State Of Maharashtra, AIR (1967) SC 1. (^31) Tilokchand Motichand & Ors. v. H.B. Munshi & Anr., AIR (1979) SC 898. (^32) S. 8 (c), S. 27 and S. 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985. (^33) The State of Gujarat & Anr., v. Shri Ambica Mills Ltd., AIR (1974) SC 1300. (^34) Hari Bansh Lal v. Sahodar Prasad Mahto & Ors.,(2010) 9 SCC 655. (^35) T.M.A .Pai Foundation and Ors. v. State Of Karnataka and Ors, AIR 2003 SC 355.
