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TEAM CODE: T028

BEFORE THE HON’BLE SUPREME COURT OF WESTROS

UNDER ARTICLE 32 OF THE CONSTITUTION OF


WESTEROS

WRIT PETITION (CRIMINAL) OF 2019

ROOSE BOLTON ………………………………………….PETITIONER

VERSUS

UNION OF WESTEROS ………….........................................RESPONDENT

BEFORE SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS


COMPANION JUDGES OF

THE HON’BLE SUPREME COURT OF WESTEROS

MEMORIAL ON BEHALF OF THE PETITIONER

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TABLE OF CONTENT
LIST OF ABBREVIATIONS ……………………………………………………………..

INDEX OF AUTHORITIES ……………………………………………............................

STATEMENT OF JURISDICTION ……………………………………............................

STATEMENT OF FACTS ………………………………………………………………...

STATEMENT OF ISSUES ………………………………………………………………..

SUMMARY OF ARGUMENTS …………………………………………………………..

ARGUMENTS ADVANCED ………………………………………………………..........

ISSUE 1 …………………………………………………………………………………….

WHETHER THE VALIDITY OF SUCH AN ORDINANCE BE QUESTIONED IN A


PETITION UNDER ARTICLE 32 OF THE INDIAN CONSTITUTION? .................

1.1 Whether the petitioner has the locus standi to file the present Writ petition?.………...
ISSUE 2 …………………………………………………………………………………….

WHETHER AN ORDER OF ASSESSMENT MADE BY AN AUTHORITY UNDER A


CRIMINAL STATUTE WHICH IS INTRA VIRES OPEN TO CHALLENGE AS
REPUGNANT TO ARTICLE 21 ON THE GROUND THAT IT IS BASED ON A
MISCONSTRUCTION OF A PROVISION OF THE ACT OR OF A NOTIFICATION
ISSUED THERE UNDER? ………………………………………………………………...

2.1 Whether Sansa’s law is infringing the Fundamental Rights of individuals who have
completed their sentence? ........................................................................................................

2.2 Whether criminal laws can be implemented with retrospective effect? …………………

ISSUE 3………………………………………………………………………….

WHETHER MR ROOSE BOLTON’S RIGHT TO PRIVACY HAS BEEN BREACHED? ..

ISSUE 4 ………………………………………………………………………………………..

WHETHER THE PROVISIONS OF SANSA’S LAW ARE ARBITRARY? …………….....

PRAYERS ………………………………………………………………………..

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LIST OF ABBREVAITIONS

3
INDEX OF AUTHORITIES

4
STATEMENT OF JURISDICTION

The Petitioner humbly submits before the Hon’ble Supreme Court, this memorandum of the
present writ which lies under Article 32 of the Constitution of Westeros. The Petitioner
submits this memorial which sets forth the facts & the laws on which the claims are based.
All the parties shall accept any judgment of the court as final and binding upon them and
shall execute it, in its entirety and in good faith.

Art. 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….check IF IT MAKES SENSE

(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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STATEMENT OF FACTS

-Introduction to Democratic Republic of Westeros-

 The present case has come up in The Democratic Republic of Westeros (hereinafter
referred to as Westeros) the Constitution of which is pari materia with the
Constitution of India, 1951. The Constitution of Westeros (hereinafter referred as
Constitution) mandates constitutional supremacy over parliamentary supremacy.
 Westeros consists of 10 states and 1 National Capital Territory (Oldtown) and has its
90% population following “Faith Of First Man” (FOFM), 8% of population praying
to R’hollor the lord of light, while the balance 2% follow a number of minor religions
based on paganism.
-Incident of Ms Sansa Stark-
 In 2015, Ms Sansa Stark, a child of 14 years, who was a resident of a suburb of
Oldtown, was reported to be missing. After nearly 2 days, Sansa’s body was found
buried in a field about 15 kms from her home. On further investigation, it was found
that Sansa had been brutally beaten, molested, raped, sodomised before being
murdered. The police arrested Mr. Ramsay Bolton within 10 days in connection with
the rape and murder of Ms Sansa Stark.
 Following the incident the leading daily newspaper “The Raven” circulated a report
that Mr. Ramsay Bolton had been convicted of sexually molesting a minor in the past
and had served a five year sentence in prison followed by other media houses. The
Raven published a report stating that about 65% of the convicted sex offenders were
being followers of “R’hollor”.
-Action taken by the Government-
 This lead to major public outrage and demand for stringent action against sexual
offenders cropped up. Accordingly The Government of the day, considering the
protests introduced a public notification statute by way of an ordinance named
“Sexual Offenders Disclosure Act, 2018”, commonly known as Sansa’s Law with
retrospective application.
-Enactment of Sansa’s Law and its provisions-
 The said Law was passed to enable parents and guardians of children under the age of
18 years to ask law enforcement authorities to provide them with information
regarding persons residing in their locality who have a criminal record of child sexual

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offences, whereby a written application can be filed by enquirer to the enforcement
authority for discloser of such information.
 It contained a clause which states that the person who receives such information is
required to sign a nondisclosure form stating that the information would not be
disclosed to any third party.
-Guidelines laid down by Sansa’s Law-
 According a Reviewing Committee was formed and a three-tire ranking system based
on the gravity of the offence for which the person is convicted and had the likelihood
to commit the offence again was kept where their personal information and biological
data was stored for 15 years, 25 years or for entire lifetime owing to the possessed
danger rank group i.e. low, moderate and habitual/violent offenders. It also laid down
various other guidelines.
-Effect of Sansa’s Law on Mr Roose Bolton-
 Mr. Roose Bolton, a resident of Sunspear, a city located in the state of Dorne was a
janitor at the local hospital. Mr. Roose Bolton had been previously convicted of
possessing child pornography and had been convicted under the “Prevention of
Sexual Offences against Children Act, 2013” and had served a prison sentence of
three years in the past.
 After the passage of Sansa’s Law, Mr Roose Bolton registered with the local police
station within the stipulated period. Subsequently he felt that he was being ostracized
by the management and other staff members of the hospital. After some time he was
fired from his job by the hospital on the grounds of non-performance.
 Mr. Roose Bolton termination was followed by brutal beating from some unknown
assailants and he suspects that they were none other than his former colleagues and
the treatment was a direct result of his registration under Sansa’s Law.
-Filing of Present Petition-
 Being aggrieved by the provisions of Sansa’s Law, Mr Bolton approached the
Hon’ble Supreme Court of Westeros under Article 32 of the Constitution of Westeros
challenging the constitutional validity of Sansa’s Law.
 The matter has been admitted by the Hon’ble Supreme Court and notice has been
issued to the Union of Westeros. All pleadings have been completed and the matter is
listed for final hearing.

Hence, the present petition.

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STATEMENT OF ISSUES

ISSUE 1

1. WHETHER THE VALIDITY OF SUCH AN ORDINANCE BE QUESTIONED


IN A PETITION UNDER ARTICLE 32 OF THE INDIAN CONSTITUTION?

ISSUE 2

2. WHETHER AN ORDER OF ASSESSMENT MADE BY AN AUTHORITY


UNDER A CRIMINAL STATUTE WHICH IS INTRA VIRES OPEN TO
CHALLENGE AS REPUGNANT TO ARTICLE 21 ON THE GROUND THAT
IT IS BASED ON A MISCONSTRUCTION OF A PROVISION OF THE ACT
OR OF A NOTIFICATION ISSUED THERE UNDER?

ISSUE 3

3. WHETHER MR ROOSE BOLTON’S RIGHT TO PRIVACY HAS BEEN


BREACHED?

ISSUE 4

4. WHETHER THE PROVISIONS OF SANSA’S LAW ARE ARBITRARY?

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SUMMARY OF ARGUMENTS

ISSUE 1

WHETHER THE VALIDITY OF SUCH AN ORDINANCE BE QUESTIONED IN A


PETITION UNDER ARTICLE 32 OF THE INDIAN CONSTITUTION?

Ms Sansa Stark’s rape lead to a public outrage for which Mr Ramsay Bolton was arrested,
who was previously convicted for sexually molesting a minor and the present Government
came up with the Sexual Offenders Disclosure Act, 2018 (hereinafter referred to as Act).
However the Provisions of the Act caused inconvenience to Mr Roose Bolton leading to
infringement of his Fundamental Rights

ISSUE 2

WHETHER AN ORDER OF ASSESSMENT MADE BY AN AUTHORITY UNDER A


CRIMINAL STATUTE WHICH IS INTRA VIRES OPEN TO CHALLENGE AS
REPUGNANT TO ARTICLE 21 ON THE GROUND THAT IT IS BASED ON A
MISCONSTRUCTION OF A PROVISION OF THE ACT OR OF A NOTIFICATION
ISSUED THERE UNDER?

The Sansa’s Law provisions were enforced with retrospective effect which contained
that criminal record of child sexual offenders in a particular locality should be made
available with enforcement authorities. Complying with the provisions of Sansa’s Law Mr
Roose Bolton registered with the local police station however this information was known to
the hospital where he was working as janitor and was fired on the basis of non-performance
and was brutally beaten up. Thus, infringing his right to life and privacy.

ISSUE 3

WHETHER MR ROOSE BOLTON’S RIGHT TO PRIVACY HAS BEEN


BREACHED?

The clause contained in the Act clearly states that the person who receives information of
child sexual offences should not disclose it to any third party but Mr Roose Bolton’s identity
became known to the hospital authorities and this led to the loss of his job as well as

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harassment.

ARGUMENTS ADVANCED

ISSUE 1- WHETHER THE VALIDITY OF SUCH AN ORDINANCE CAN BE


QUESTIONED IN A PETITION UNDER ARTICLE 32 OF THE INDIAN
CONSTITUTION?

MOST RESPECTFULLY SHEWETH:

1. It is humbly submitted that the present writ petition is filed under Article 32
(hereinafter referred to as Art.32) of the Constitution1 in the Hon’ble Supreme Court
of Westeros (hereinafter referred to as the Hon’ble Court) for issuance of Writ of
Mandamus by the petitioner to bring to the notice of your Lordships as to how the
flawed guidelines of Sansa’s Law and its retrospective effect has abridged the
petitioner’s Fundamental Rights i.e. Right to Life and Right to Privacy guaranteed
under Article 21 (hereinafter referred to as Art 21) of the Constitution.
2. It is humbly submitted that the petitioner has invoked the jurisdiction of the Hon’ble
Court for issuing the writ of Mandamus. This present writ petition is contended on the
grounds whether the petitioner can challenge the validity of the ordinance under
Art.32 of the Constitution on the basis of these two grounds:
1.1) Whether the petitioner has the locus standi to file the present Writ petition

3. It is humbly submitted that the petitioner was employed as a janitor of a hospital and
with the enforcement of Sansa’s Law all persons who were previously convicted of
child sexual offence were required to give their personal and biometric information, in
order to comply with the guidelines of the Act wherein the petitioner registered with
the local police providing all his personal and biometric information as stated in the
fact sheet.
4. However, his information came to the light of hospital authorities; this was despite the
clause in the Act wherein it was contained that such information should not be
disclosed to any third party. The facts however remain silent as to how this
information was revealed to the hospital authorities, which in turn led to the loss of

1
Constitution of India, 1949

10
petitioner’s job and his harassment thereafter. Thus, infringing the petitioner’s
Fundamental Rights.
5. It is humbly submitted that aggrieved by the aforesaid Act, the petitioner has approach
the Hon’ble Supreme Court with the Writ of Mandamus under Art 32 of the
Constitution2 wherein the petitioner seeks relief for violation of his Fundamental
Rights under Art. 21 of Constitution.3
6. The Hon’ble Supreme Court has the power to issue writs under Art. 32 of the
Constitution4. This article guarantees every person to move the Supreme Court for the
enforcement of Fundamental Rights.
7. In the case of State of Bombay v. Hospital Mazdoor Subba5 it was held that the
duty to be enforced by a writ mandamus could arise by a provision of the Constitution
or of a statute or of the common law.
8. It is humbly stated that with the enforcement of Sansa’s law the petitioners
fundamental right was infringed and hence the present petition is filed before the
Hon’ble SC .
9. It is humbly submitted that under Art 20(3) of the constitution the petitioner has the
right against self-incrimination, which is being infringed according to the tenets of
Sansa’s law. The main provision regarding crime investigation and trial in the Indian
constitution is Art. 20 (3). The privilege against self -incrimination is a fundamental
canon of common law criminal jurisprudence.6 Art. 20 (3) which embodies this
privilege read, “no person accused of any offence shall be compelled to be a witness
against himself.” It also goes with the maxim “Nemo Tenetur Seipsum Accusare” i.e.
‘No man, not even the accused himself can be compelled to answer any question,
which may tend to prove him guilty of a crime.
10. In the case of Vineet Narain v Union of India7 it was held that in this provision there
must be a clear breach of fundamental right not involving disputed questions of fact.
With regards to mandamus, Art. 32 states that it may be issued where a fundamental
right is infringed by a statute. It may be a statutory order or an executive order.

2
Constitution of India, 1949
3
Constitution of India, 1949
4
P.M. BAKSHI, CONSTITUTION OF INDIA (New Delhi: Universal Law Publication, 2000) (74)
5
A.l.R. I960 S.C. 610
6
Criminal law Jurisprudence prevails in common law system.
7
Vineet Narain vs. Union of India 1998 AIR (SC) 889

11
11. It is humbly submitted that the registrar of sexual offenders with the police authorities
is infringing the petitioner fundamental rights under Art 20 (3) and Art 21 of the
constitution.
12. In the case of R.D Shetty vs. International Airport Authority8, it was held that no
matter, whether the violation of fundamental right arises out of an executive
action/inaction or action of the legislature, Art. 32 can be utilized to enforce the
fundamental rights in either event. In the given case, the stand of the petitioners herein
is that exercise of the constitutional power vested in the executive specified under Art.
72 and Art. 161 have violated the fundamental rights of the petitioners herein.
13. It is stated that it is because of the provisions of sansa’s law that the petitioner had to
register, which led to infringement of petitioner right was a direct consequence of his
registration.
14. Cheney v. United States Dist. Court9 it was held that a writ of mandamus is an
order from a court to an inferior government official ordering the government official
to properly fulfil their official duties or correct an abuse of discretion.
10
15. In the case of R vs. Dunshett, (1950) In England, the writ is neither a writ of
course nor it is a writ of right but it be granted if the duty is in the nature of public
duty is in the nature of public duty and specifically affects the right of an individual
provided that there is no other appropriate remedy.
16. As seen in the present case the it is the enforcement of the public duty which is
ultimately leading to violation of petitioner rights. The petitioner has approach the
Hon’ble SC for the enforcement of his fundamental rights.

8
R.D Shetty vs. International Airport Authority (1979) 3 SCC 489
9
D.C. (03-475) 542 U.S. 367 (2004) 334 F.3d 1096
10
All ER 741 at 743

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ISSUE 2: WHETHER AN ORDER OF ASSESSMENT MADE BY AN AUTHORITY
UNDER A CRIMINAL STATUTE WHICH IS INTRA VIRES OPEN TO
CHALLENGE AS REPUGNANT TO ARTICLE 21 ON THE GROUND THAT IT IS
BASED ON A MISCONSTRUCTION OF A PROVISION OF THE ACT OR OF A
NOTIFICATION ISSUED THERE UNDER?

1. It is humbly submitted that the notification of guidelines issued under the Sansa’s law
for registration of the sexual offenders is misconstrued on various grounds, first one
being its retrospective effect, followed by improper procedure laid down for acquiring
such information and lastly nothing clearly defined liabilities upon revealing the
same.

2.1) Whether Sansa’s law is infringing the Fundamental Rights of individuals who
have completed their sentence?

2. It is humbly submitted that the petitioner was employed as a janitor of a hospital and
with the enforcement of Sansa’s Law all persons who were previously convicted of
sexual offence were required to give their personal and biometric information, in
order to comply with the guidelines of the Act wherein the petitioner registered with
the local police providing all his personal and biometric information as stated in the
fact sheet.
3. However, his information came to the light of hospital authorities; this was despite the
non-disclosure clause in the Act wherein it was contained that such information
should not be disclosed to any third party. The facts however remain silent as to how
this information was revealed to the hospital authorities, which in turn led to the loss
of the petitioner’s job and his harassment thereafter. Thus, infringing the petitioner’s
Fundamental Rights guaranteed under Art. 21 of the Constitution. A law made by the
State should not encroach upon the fundamental rights of a citizen of the country.
4. In the case of Smt. Kiran Bedi v. Committee of Inquiry11 it was held that “good
reputation was an element of personal security and was protected by the Constitution,
equally with the right to the enjoyment of life, liberty, and property. The court
affirmed that the right to enjoyment of life, liberty, and property. The court affirmed
that the right to enjoyment of private reputation was of ancient origin and was
necessary to human society.”

11
Smt. Kiran Bedi v. Committee of Inquiry, 1989 AIR 714

13
5. According to the facts mentioned in the present case it can be evidently seen that the
petitioners personal security had been compromised which led to the infringement of
his right to life and personal liberty as well as his right to privacy, the petitioner had to
face such adversity owing to the fact that he had complied with the provisions of the
Sansa’s Law wherein his reputation is brought into question.
6. In the case of Maneka Gandhi v. UOI12 laid the foundation of protection of personal
liberty, particularly under Art.21 of the Constitution13. It has become the source of
many substantive rights and procedural safeguard to people. The term ‘life’ has been
given a very expansive meaning. The term personal liberty has been given wide
amplitude covering the variety of rights which go to constitute personal liberty of a
citizen. It is just not confined to mere animal existence. Its deprivation shall only be
as per the relevant procedure prescribed by law, but the procedure has to be fair, just
and reasonable.
7. It is humbly submitted that Sansa’s Law is infringing the fundamental rights of those
individuals who have completed their conviction sentence. It is exposing them to
more threats by society which include a serious threat to their life. The fundamental
right guaranteed under Art.21 of the constitution14 is of paramount importance.
8. According to Bhagwati, J., Art 21 “embodies a constitutional value of supreme
importance in a democratic society.” Iyer, J., has characterized Art. 21 as “the
procedural magna carta protective of life and liberty.15 Art. 21 use four crucial
expressions, viz., life, personal liberty, procedure and law.
9. Life under article 21 is not just confined to the limits of mere animal existence; it has
got a wider meaning to it. According to Bhagwati, J., has observed in Francis
Coralie16: “We think that the right to life includes the right to live with human dignity
and all that goes along with it, namely, the bare necessaries of life such as adequate
nutrition, clothing and shelter over the head and facilities for reading, writing and
expressing oneself in diverse forms, freely moving about and mixing and
commingling with fellow human beings.” Thus, the inhibition against deprivation of
‘life’ would extend to all those faculties by which life is enjoyed.

12
AIR 1977 SC 1507 : (1967) 3 SCR 114
13
Constitution of India,1949
14
Supra9
15
https://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-
liberty/
16
Francis Coralie v. Delhi, AIR 1981 SC 746, 753 : (1981) 1 SCC 608

14
10. Personal Liberty: This expression in Art. 21 is of the widest amplitude and it covers
a variety of rights which go on to constitute the personal liberty of man. Any law
interfering with personal liberty of a person must satisfy a triple test.
 It must prescribe a procedure
 The procedure must withstand the test of one or more of the fundamental rights
conferred under Art. 19 which may be applicable in a given situation.
 It must also be liable to be tested with reference to Art. 14.17

11. In Francis Coralie’s case (supra) upholding the right of detenu to have interviews
with her friends and family members, Bhagwati, J., held that personal liberty includes
rights to socialise with family members and friends as well as to have interviews with
her friends.
12. Procedure: The Supreme Court has asserted in Kartar Singh v. State of Punjab18
that the procedure contemplated by Art. 21 is that it must be “right, just and fair” and
not arbitrary, fanciful, or oppressive. In order that the procedure be right, just and fair,
it must conform to natural justice. The expression “procedure established by law”
extends both to substantive as well as procedural law. A procedure not fulfilling these
attributes is not procedure at all in the eyes of Art.21.
13. In the case of Munn v. Illinois19, the Court referred to the observation of Justice
Field, wherein he stated that by the term ‘life’ as here used something more is meant
than a mere animal existence. Thus, it embraces within itself not only the physical
existence but also the quality of life.
14. In the case of Confederation of Ex –servicemen Association v. UOI20 it was held
that the right to life guaranteed under Art. 21 of the Constitution embraced within its
sweep not only physical existence but also quality of life. If any statutory provision
runs counter to such right, it must be held unconstitutional.
15. In the present case, the removal of the petitioner from his job as well as harassment
towards him shows that his life is brought down to mere animal existence whereby the
petitioner will not have any means to earn his livelihood or live with dignity in the
society affecting his quality of life.

17
District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496 : AIR 2005 SC 186
18
(1994) 3 SCC 569
19
(1997) 94 US 113
20
(2008) 8 SCC 399 : AIR 2006 SC 2945

15
16. N.H.R.C. v. State of Arunachal Pradesh21 (Chakmas Case), the supreme court said
that the State is bound to protect the life and liberty of every human-being, be it a
citizen or otherwise, and it cannot permit anybody or group of persons to threaten
other person or group of persons. No State Government can tolerate such threats by
one group of persons to another group of persons; it is duty bound to protect the
threatened group from such assaults and if it fails to do so, it will fail to perform its
Constitutional as well as statutory obligations.
17. In the present case the petitioner was brutally beaten up by some assailants whom he
allegedly presumes to be his previous colleagues from the hospital. Thus, the
petitioner registration with the enforcement authorities and the subsequent action
which followed can be seen nothing less than infringement of right to life and liberty.
18. The first of these cases, Kharak Singh v. State of U.P22 was a challenge to the
constitutional validity of Rule 236 of the U.P Police Regulations which permitted
surveillance. A majority on the Bench struck down Regulation 236(b) which
authorised domiciliary visits as being unconstitutional but upheld the other provisions
under that Regulation.
19. The present case is contrary to the precedent laid down in the above case as the visits
by the authorities on the residents and workplace as mentioned in Para 10 of the fact
sheet is unconstitutional.

2.2) Whether criminal laws can be implemented with retrospective effect?

1. It is humbly submitted that Sansa’s Law is pari materia with Megan’s Law23 of
The United States of America (USA). Empirical research examining Megan's Law
has generally indicated that community notification is not effective in preventing
sexually based crimes24 and may actually create a context wherein the risk of
recidivism increases25.
2. It is humbly submitted before this Hon’ble Court that retrospective effect will lead
to a social havoc as the offenders who possess least risk to commit the crime again,
might increase their probability of the same. Also the law is lopsided as it only

21
1996 AIR 1234, 1996 SCC (1) 742
22
AIR 1963 SC 1295
23
Pub L No. 104–145
24
Sandler J, Freeman NJ, Socia KM. Does a watched pot boil? A time-series analysis of New York State's sex
offender registration and notification law. Psychol Public Policy Law 2008;14(4):284–302
25
Wakefield H. The vilification of sex offenders: do laws targeting sex offenders increase recidivism and sexual
violence? J Sex Offender Civil Commitment Sci Law 2006;1:141–149

16
addresses the crimes committed against the minors, however it does not address the
sexual offences committed against other group of women. Thus, it violates the
principle lex prospicit non respicit i.e. the law looks forward and not backward.
3. A retrospective legislation is contrary to the general principle that the legislation by
which the conduct of mankind is to be regulated when introduced for the first time
to deal with future acts ought not to change the character of past actions carried
upon the then existing law. The obvious basis of this principle is against
retrospectivity is the principle of fairness, which must be the basis of every legal
rule.
4. In the case of G.B. Chebbi & ors. Vs. Syed Ulfath Hussain & ors.26 It was held
that offending constitutional provisions in the context of the existing situation
cannot become valid by being made retrospective past virtue (constitutional)
cannot be made to wipe out present vice (constitutional) by making retrospective
laws' it is equally well settled that even a statutory rule which can have
retrospective effect should not result in discrimination or any violation of
constitutional right.
5. To take away or impair any vested right acquired under existing laws but since the
laws are made under a written constitution, and have to conform to the do's and
don'ts of the constitution neither prospective nor retrospective laws can be made so
as to contravene fundamental rights. The law must satisfy the requirements of the
constitution today taking into account the accrued.
6. It is humbly submitted that in the present case the retrospective effect of the
Sansa’s Law will result in discrimination and violation of constitutional right of the
petitioner which are contrary to the Fundamental Rights guaranteed under Art. 21
of the constitution.27
7. In the case of Amrish Kumar Agarwal & ors. Vs. State of Uttar Pradesh &
ors.28 The Allahabad High Court (HC) prohibited the making of ex-post facto
criminal law, Under the law in force at the time of the commission of the offence.
A sovereign legislature has the power to enact prospective as well as retrospective
laws but clause (1) of Art. 2029 impose two limitations upon the law-making power
of legislative authorities in India as regards retrospective legislation. It is submitted

26
ILR 2003 KAR 3367
27
Constitution of India,1949
28
2000 Cri LJ 1324; II (2000) DMC 608
29
Constitution of India, 1949

17
that the penalty greater, than that/which might have been inflicted under the law,
which was in force when the act was committed. It also prohibits the infliction of a
crime been committed by the accused prior to the date on which the aforesaid
section was incorporated in the Indian Penal Code, (IPC) by means of criminal law
(Second Amendment) Act, 198330. In these circumstances, the conviction of the
accused-applicants under section (u/s) 498a will clearly violate clause (1) of Art.
20.31
8. In the present case it can be seen that the penalty imposed on the offenders is not
proportionate as to the crimes they have committed as there is improper
classification of such criminals. Also the penalty imposed under this act is in
contravention of Art. 20(1) of the constitution.32
9. Article.20 (1) provides the necessary protection against an ex post facto law. Under
the first part, no person is to be convicted of an offence except for violating a law
in force at the time of commission of the act charged as an offence.
10. In the case of JK Spinning & Wvg. Mills Ltd. Vs. UOI33 it was held that “No
person shall be convicted of any offence except for violation of a law in force at
the time of the commission of the act charged as an offence, nor be subject to a
penalty greater than that which might have been inflicted under the law in force at
the time of the commission of the offence". This protection given in the
Constitution has been the main source of all other judgements with respect of penal
provisions in tax cases. The judgements have made it well settled that there cannot
be any retrospective legislation in respect of penalty and confiscation.
11. It is humbly submitted that a person is only liable for the penalty of the offence
which exists at the time when it was committed. Therefore, the petitioner cannot be
made to register under the Sansa’s law as he is immune from being subject to the
provisions thus, laid down under the law enacted subsequently, which renders the
law unlawful.
12. In case of Sajjan Singh v. State of Punjab34 it was argued that section 5 (3) of the
Prevention and Corruption Act35 cannot be applied with a retrospective effect as

30
Indian Penal Code, (Second Amendment) Act, 1983
31
Supra25
32
Supra25
33
1987(32) ELT 234 (SC).
34
1965 AIR 845, 1965 SCR (1) 933
35
Prevention of Corruption Act, 1988

18
there was no law specifically, earlier to deal with the menace of corruption and
hence, its retrospective application could not be justified.
13. The Supreme Court rejected the contention to take into consideration the
pecuniary resources or property in the possession of the accused or any other
person on his behalf, which are acquired before the date of the act is in anyway
giving the act a retrospective operation.
14. Similarly, in the present case it can be seen that there is no reasonable classification
as to why the convicts who have previously served their sentence should be
exposed to such a law. This will not only increase the risk of recidivism but also
impugned the very basis of reformative theory.
15. Therefore, it is humbly submitted before the Hon’ble SC that the retrospective
application of Sansa’s law is invalid thus paving the way for it being struck down
as it infringes the fundamental rights of the said offenders.
16. It is humbly submitted that Art. 20 (3) of Constitution encompassing fundamental
rights states that no person accused of any offence shall be compelled to be a
witness against himself and sansa’s law clearly violates this fundamental right. It
embodies the general principles of English and American jurisprudence that no one
shall be compelled to give testimony which may expose him to prosecution for
crime.
17. Even The fifth amendment of the US constitution provides that no person shall be
compelled in any case to be a witness against himself. It has also to a substantial
extent been recognised in the criminal administration of justice in the country by
incorporating into various statutory provisions.36 The Constitution raises the rule
against self-incrimination to the statute of constitutional prohibition. The court has
given a refreshing analysis of Art. 20 (3) in the context of national international
developments in human rights.37
18. The registration clause as mentioned in the Sansa’s law guidelines clearly states
that the offender has to register himself with the police authority which is as good
as compelling a person to be a witness against himself.

36
S.342, Ss 5 & 6, Indian Oaths Act, 1969.
37
Selvi v. State of Karnataka, 2010 7 SCC 263, AIR 2010 SC 1974

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ISSUE 3: WHETHER MR ROOSE BOLTON’S RIGHT TO PRIVACY HAS BEEN
BREACHED?

1. It is humbly submitted that the idea of having a public registry can have a collateral
consequence which can have an negative impact on the lives of both the community
members as well as the registered sexual offenders which will eventually lead to
looking down on these offenders which may not be able to facilitate the very idea of
reformative theory.
2. It is also humbly submitted that the fear among the community members after the
notification can lead to community wide hysteria where parents could panic and it
would lead to a serious law and order problem in the country. This would eventually
mean that the convicts right to privacy would be infringed.
3. It is humbly submitted that when the personal information of such sexual offender’s
is merely disseminated to the people concerned only by a means of an application and
by merely signing the non-disclosure form which contains the clause stating “That the
information would not be disclosed to any third party”. However, it fails to provide
with clearly defined liabilities upon the person who discloses such information, which
could be easily violated as seen in the present case.
4. It is humbly submitted that the guidelines laid down in the Act are very vague and in
contradiction with the precedents set by the Hon’ble Supreme Court.
5. In Gobind v. State of M.P38 also a case of surveillance, the Supreme Court appears to
have acknowledged a limited right to privacy. However, the Court observed that
domiciliary visits and picketing by the police should be reduced to the clearest cases
of danger to community security and not routine follow-up at the end of a conviction
or release from prison or at the whim of a police officer. In truth, legality apart, these
regulations ill-accord with the essence of personal freedoms and the State will do well
to revise these old police regulations emerging perilously near unconstitutionality.”
6. According to the guidelines laid down in the fact sheet it is clearly mentioned that
“the authorities are empowered under the law to visit the residence and the workplace
of the convicts at any time of the day and without any notice”.39 This provision clearly
violates the principle laid down in above cases thus,rendering such provision as
unconstitutional.

38
(1975) 2 SCC 148
39
Para 10 of Fact Sheet

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7. In the present case right to privacy guaranteed under the broader scope of Art. 21 of
Constitution40 has been infringed as Mr Roose Bolton, who registered with the local
police station according to the provisions of Sansa’s Law, wherein his personal
information was made known to the hospital authorities but the facts remain silent as
to how this information was leaked, which in turn led to the loss of the petitioner’s job
and his harassment thereafter. Thus, infringing the petitioner’s Fundamental Right to
Privacy.
8. In the case of R.Rajagopal v. State of T.N.41 popularly known as “Auto Shankar
Case” the SC has expressly held that “right to privacy or the right to be let alone is
guaranteed by Art.21 of the constitution. A citizen has a right to safeguard the privacy
of his own, his family, marriage, procreation, motherhood, childbearing and education
among other matters. None can publish anything concerning the above matters
without his consent where the truthful or otherwise and whether laudatory or critical.
If he does so he would be violating the right of the person concerned and would be
liable in an action for damages.
9. In the case of J. K.S Puttaswamy vs. Union of India42 the right to privacy is
protected as an intrinsic part of the right to life and personal liberty under Article 21
and as a part of the freedoms guaranteed by Part III of the Constitution.
10. According to facts the confidentiality was breached as the hospital authorities came to
know about the petitioner’s registration as a child pornography possessor and this
registry led to the loss of his job as well as physical harassment thus, infringing his
right to life i.e. right to earn livelihood, right to live with dignity and most importantly
his right to privacy.
11. India is a signatory to some of the international statutes which have long held the right
to privacy as a fundamental right for human existence such as Article 12 of the
Universal Declaration of Human Rights, 1948.43 Article 17 of the International
Covenant on Civil and Political Rights, 196644 to which India is a signatory, reads as
follows:

1. No one shall be subject to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to lawful attacks on his honour and reputation.
40
Supra25
41
(1994) 6 SCC 632
42
Writ Petition (Civil) No. 494 of 2012
43
Universal Declaration of Human Rights, 1948
44
International Covenant on Civil and Political Rights, 1966

21
2. Everyone has the right to the protection of the law against such interference or attacks.

12. Article 8 of the European Convention on Human Rights45 reads as follows:

(1) Everyone has the right to respect for his private and family life, his home and his
correspondence.

(2) There shall be no interference by a public authority with the exercise of this right, except
such as is in accordance with law and is necessary in a democratic society in the interests of
national security, public safety, for the prevention of disorder and crime or for the protection
of health or morals.

13. It is humbly submitted that these International statutes have persuasive value while
deciding on the merits of right to privacy as India is a signatory to these statutes. Also
it lays the ground that right to privacy is regarded as the most important human right
throughout the globe.

45
European Convention on Human Rights, 1953

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ISSUE 4: WHETHER THE PROVISIONS OF SANSA’S LAW ARE ARBITRARY?

1. It is humbly submitted before the Hon’ble court that the provisions enacted under the
Sansa’s law are arbitrary as they are repugnant as to Art. 14 of the constitution.46 The
principle of reasonableness and fairness are breached by this legislation as it violates
the Fundamental rights of the petitioner.
2. In Maneka Gandhi v. Union of India47, Bhagwati, J. again said “Equality is a
dynamic concept with many aspects and dimensions and it cannot be imprisoned
within traditional and doctrinaire limits. Article 14 strikes at arbitrariness in State
action and ensures fairness and equality of treatment. The principle of reasonableness,
which legally as well as philosophically, is an essential element of equality or non-
arbitrariness, pervades Art. 14 like a brooding omnipresence”.
3. It is humbly submitted before the Hon’ble court that the Sansa’s Law is arbitrary not
only in its sense of its retrospective application but also for the guidelines laid down
in it. As the guidelines are violative of various precedents set up by various courts and
it infringes the fundamental rights of the petitioner.
4. In R.D. Shetty v. Airport Authority48, Bhagwati, J. said “It must…therefore, now be
taken to be well-settled that what Art. 14 strikes at is arbitrariness because an action
that is arbitrary, must necessarily involve negation of equality. The doctrine of
classification which is involved by the court is not paraphrase of Art. 14 nor is it the
objective and end of that Article.
5. It is humbly submitted that the end result which the Sansa’s law aims to achieve can
be said to be unreasonably classified as it does not specifically classify the “gravity”
categories of offences and the offenders who would be ranked in the three-tire system.
6. It is merely a judicial formula for determining whether the legislative or executive
action in question is arbitrary and therefore, constituting denial of equality. If the
classification is not reasonable and does not satisfy the conditions referred to, the
impugned legislation, executive action would plainly be arbitrary and the guarantee of
equality under Article would be breached”.
7. There was no rational nexus or intelligible differentia as the Sansa’s law is violating
the fundamental rights of individuals who have completed their conviction.

46
Supra 25
47
AIR 1978 SC 597
48
AIR 1979 SC 1628

23
8. The guarantee of equality before law is an aspect of what Dicey calls the rule of law
in England.49 Rule of law requires that no person shall be subjected to harsh,
uncivilized or discriminatory treatment even when the object is the securing of the
paramount exigencies of law and order50. According to the present case, the
petitioner’s fundamental rights are being infringed because directly or indirectly he
has to face the consequences of those actions for which he has completed his
conviction sentence.
9. When the legislative or executive actions are arbitrary, it leads to denial of equality.
Art.14 has rightly activist magnitude and it embodies a guarantee against
arbitrariness. The conclusion is that if the action of state is arbitrary it cannot be
justified even on the basis of doctrine of classification.
10. Where an act is arbitrary, it is implicit in it that it is unequal and therefore, violative of
Art 14. Art 14 strikes at arbitrariness in State action and ensures fairness and equality
of treatment. It is attracted where equals are treated differently without any reasonable
basis as in the present case also those individuals who have completed their
conviction and living a free life have to suffer due to their previous actions for which
they have been already punished before.
11. It is humbly submitted before the Hon’ble SC that the provisions of sansa’s law are
arbitrary on the grounds that (i) it is compelling a person to be a witness against
himself by registering with the local police authorities. (ii) it is applied
retrospectively, which is against the provision of the constitution and (iii) it does not
impose liability on the party who discloses such information.

49
Dicey-Law of Constitution
50
Rubinder Singh v. Union of India, AIR 1983 SC 65

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PRAYER

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