Team Code: INRR112

INTERNAL RANKING ROUNDS

IN THE HON’BLE SUPREME COURT OF NASHVILLE

AT NASHVILLE

W.P No. :_/2017

ROSS GELLER AND OTHERS

V.

UNION OF NASHVILLE

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE

AND HIS COMPANION JUSTICES

OF THE HON’BLE SUPREME COURT OF NASHVILLE

MEMORANDUM ON BEHALF OF PETITIONER

 TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................ i

LIST OF ABBREVAITION ......................................................................................................ii

TABLE OF AUTHORITIES ................................................................................................... iii

STATEMENT OF JUSRISDICTION ...................................................................................... iv

STATEMENT OF FACTS ........................................................................................................ v

STATEMENT OF ISSUES ....................................................................................................... v

SUMMARY OF ISSUES ........................................................................................................vii

ARGUMENTS ADVANCED ................................................................................................... 1

ISSUE 1 ................................................................................... Error! Bookmark not defined.

ISSUE 2 ..................................................................................................................................... 5

ISSUE 3………………………………………………………………………………………..9
ISSUE 4………………………………………………………………………………………14
PRAYER .................................................................................................................................. 17

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MEMORANDUM ON BEHALF OF PETITIONERS
 (), 20^
LIST OF ABBREVIATIONS

LIST OF ABBREVAITION

NDPA Nashville DNA Profiling Act

Art. Article

Sec. Section

ECHR European Court of Human Rights

HC High Court

SC Supreme Court

National Judicial Appointments

NJAC
Commission

v. Versus

UNO United Nations Organisation

AIR All India Reporter

Cl. Clause

Ed. Edition

Hon’ble Honourable

UP Uttar Pradesh

SCC Supreme Court Cases

Const. Constitution

Co. Company

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MEMORANDUM ON BEHALF OF PETITIONERS
 TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

Books
1) MP JAIN, INDIAN CONSTITUTIONAL LAW (7 Edition, 2014)
2) V.N. SHUKLA’S CONSTITUTION OF INDIA (Mahendra Prasad Singh ed., 11th
edn., 2008)
3) PETHERICK, TURVEY, FERGUSON, FORENSIC CRIMINOLOGY, (Elsevier
Inc.,2010)
4) C.K THAKKER, LECTURES ON ADMINISTRATIVE LAW (3rd ed., 2006)
5) S.P. SATHE, ADMINISTRATIVE LAW (7th ed.,2006)
Journals

Cases
1) People’s Union for Civil Liberties v. Union of India AIR 1997 SC 568
2) Kihoto Hollohan v Zachillhu 1992 SCR (1) 686
3) Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P AIR 1954 SC 636
4) Balasubramanium v. State of Tamil Nadu AIR 1995 Mad 329
5) Special Reference No. 1 of 1964 [1965] 1 SCR 413
6) Raja Ram Pal v. Hon’ble Speaker, Lok Sabha
7) Hem Chandra Sen Gupta v Speaker of Legislative Assembly AIR 1956 Cal 378
8) Raj Narain Singh v. Atmaram Govind AIR 1954 All 319
9) People’s Union for Civil Liberties v Union of India 1997 1 SCC 301.
10) R Rajgopal v State of Tamil Nadu AIR 2010 SC 1974
11) Ram Jethmalani v Union of India (2011) 8 SCC 1
12) Maneka Gandhi v. Union of lndia1978 AIR 597
13) Goutam Kundu v. State Of West Bengal And Anr, 1993 AIR 2295
14) Sharda v. Dharmpal AIR 2003 SC 3450
15) Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women
16) M.P.Sharma v Satish Chandra1954 AIR 300
17) Najabhai v. State of Gujarat1972 Cr. LJ 1605
18) In Re Delhi Laws Act 1951 AIR 332
19) Air India v. Nargesh Meerza 1981 AIR 1829
20) Rajnarain Singh v. Chairman, Patna Administration1954 AIR 569
21) Hamdard Dawakhana v. Union of India 1960 AIR 554
22) jalan Trading company v. Mill Majdur Sabha 1967 AIR 691
23) R v waters, [2000] All ER (D) 1469

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MEMORANDUM ON BEHALF OF PETITIONERS
 STATEMENT OF JURISDICTION

STATEMENT OF JUSRISDICTION

The Hon’ble Court of Nashville has inherent jurisdiction to try, entertain and dispose off the

present case. The petitioner would like to approach this Honourable Court under the

provision of Article 32 of the Indian Constitution.

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MEMORANDUM ON BEHALF OF PETITIONERS
 STATEMENT OF ISSUES

STATEMENT OF FACTS

1. Republic of Nashville is a democratic country whose Constitution is in pari materia

with the Constitution of India. In 2015, The CJP came into power under the leadership
of Ms. Monica Geller-Bing.
2. In 2016, Mr. Joey (Minister of Home Affairs) and Mr. House (Minister of Electronic
and information technology) proposed a centralized DNA database to ensure better
law enforcement and convictions in criminal cases. In 2016, the cabinet approved the
draft Bill titled “Nashville DNA Profiling Bill (NDPA), 2016”
3. Mr Tribbani (Minister of Parliamentary affairs) introduced the bill as a Money bill.
The Speaker of the lower house held that the introduction of the Bill as a money Bill
is procedurally correct and was passed by the lower house with majority but
objections were raised by the opposition party in the way the bill was passed.
4. The opposition refused to be part of the discussion of the Bill in the upper house and
they staged a walk out. Since the required quorum wasn’t available, the Bill was
deemed to be passed by both the houses. The Bill was sent to President Gunther for
his approval and was signed on 09.08.2016.
5. Ms. Rachel Green (Petitioner B) , the Leader of the Opposition party approached the
Supreme Court challenging the NDPA, 2016 on the basis of procedural irregularities
which were patently illegal. The Supreme Court admitted the matter.
6. Dr. Ross Geller (Petitioner A) was arrested and convicted for drunk and reckless
driving. As per the Rules under the NDPA, 2016 DNA samples were collected from
him. Dr. Ross opposed the collection of DNA sample but was coerced by the police
officials to cooperate. Dr. Ross was released with a mere warning.
7. On 14.02.2017, Ms. Phoebe Buffay, was raped and murdered. The DNA material that
was found on the body was collected. While running the profile through the
Centralized DNA Bank they arrived at a very high percentage of similarity match
with the DNA record of Dr. Ross Geller. He was arrested. On 15.05.2017, Mr. Russ
Geller, the twin brother of Dr. Ross Geller confessed he had murdered her,
8. Once he was released, Dr. Ross Geller approached the Superior Court of Nashville
and challenged the provisions of the Nashville DNA Profiling Act, 2016 and its Rules
as violative of the Constitution of Nashville. The petition was admitted and clubbed
with the petition filed by Ms Rachel Green regarding the procedural discrepancies in
the introduction of the Act.

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MEMORANDUM ON BEHALF OF PETITIONERS
 STATEMENT OF ISSUES

STATEMENT OF ISSUES

ISSUE 1: Does the Supreme Court have the jurisdiction to look into the
Parliamentary Procedure involved in passing of the Nashville DNA Profiling Act,
2016?

ISSUE 2: Is Nashville DNA Profiling Act, 2016 unconstitutional on the ground of

procedural irregularity as challenged by Ms. Rachel Green ?

ISSUE 3: Is Nashville DNA Profiling Act, 2016 and the Rules made under the Act
violative the provisions of the Constitution of Nashville?

ISSUE 4: Is there excessive delegation of powers under the scheme of Nashville

DNA Profiling Act, 2016?

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MEMORANDUM ON BEHALF OF PETITIONERS
 SUMMARY OF ISSUES

SUMMARY OF ISSUES

Issue 1: Does the Supreme Court have the jurisdiction to look into the Parliamentary
Procedure involved in passing of the Nashville DNA Profiling Act, 2016?

The counsel for petitioner contends that the Supreme Court has the jurisdiction to look into
the parliamentary proceeding on the basis of procedural illegality which is not immunized
under Article 122 of the Constitution. There also exists an infringement of Fundamental
rights as under Article 13, Article 20 (3) and Article 21 of the Constitution.

Issue 2: Is Nashville DNA Profiling Act, 2016 unconstitutional on the ground of procedural
irregularity as challenged by Ms. Rachel Green?

The petitioners contend that the Nashville DNA Profiling Act, 2016 is unconstitutional on the
grounds of irregularity of Constitutional procedure, the procedure so established under
Article 110 of the Nashville Constitution.

Issue 3: Is Nashville DNA Profiling Act, 2016 and the Rules made under the Act violative the
provisions of the Constitution of Nashville?

The counsel for the petitioners contend that the Nashville DNA Profiling Act, 2016 is
unconstitutional on the grounds of it being violative of Right to Privacy as guaranteed under
Article 21 of the constitution which confers right to life and personal liberty. Article 20 (3)
which states that no person accused of any offence shall be compelled to be a witness against
himself.

Issue 4: Is there excessive delegation of powers under the scheme of Nashville DNA
Profiling Act, 2016?

The counsel for the petitioners submit that the delegation of powers to the Nashville DNA
Profiling board conferred by the Nashville DNA Profiling Act, 2016, amounts to excessive
delegation on the basis of the tests inferred from In Re Delhi Laws Act which requires that
essential legislative functions must not be delegated and that the Act must lay down clear
standards and policy

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MEMORANDUM ON BEHALF OF PETITIONERS
 |ARGUMENTS ADVANCED|ISSUE 1|

ARGUMENTS ADVANCED

ISSUE 1: Whether the Supreme Court has the jurisdiction to look into the
Parliamentary Procedure involved in passing of the Nashville DNA Profiling Act, 2016.

The counsel for petitioner contends that the writ petition is maintainable as there has been a
violation of fundamental right under Article 21.

A. ARTICLE 32
Article 32 confers powers on the Supreme Court to enforce the fundamental rights.
Article 32(1) guarantees the right to move the Supreme Court, by appropriate
proceedings, for the enforcement of the Fundamental rights enumerated in the
constitution.1

B. VIOLATION OF ARTICLE 21

The counsel for petitioner contends that this writ petition is maintainable on the grounds that
there has been a violation of fundamental rights under Article 21. Article 21 of the
constitution lays down that no person shall be deprived of his life and personal liberty except
according to the procedure established by law.2 The counsel contends that the Nashville DNA
Profiling Act, 2016 which was passed by the lower house violates the right to privacy which
is implicit in the right to life and liberty guaranteed to the citizens of the country as a
fundamental right under Article 21. This has been held in several cases where Article 21 has
been judicially interpreted.

Therefore, the right to privacy has been established in India as an integral part of Article 21
even though it is not an independent right in itself.3 Therefore the counsel for petitioner
contends that this writ petition is maintainable as there has been a clear breach in violation of
fundamental right enshrined in Article 21 of the constitution.

C. PUBLIC INTEREST LITIGATION

The counsel for petitioner contends that the writ petition is a public interest litigation
under Article 32 as the issue concerns the enforcement of a fundamental right under
Article 21.

1
MP JAIN, INDIAN CONSTITUTIONAL LAW,1353 (7 Edition, 2014)
2
Id.
3
MP JAIN, Supra note 1, at 1170.

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In People’s Union for Civil Liberties v. Union of India.4, a Public Interest Litigation
was filed protesting rampant instances of phone tapping of politician’s phones by
CBI. The court ruled that ‘telephone conversation is an important facet of a man’s
private life’. The right to hold a telephone conversation in the privacy of one’s home
or office without interference can certainly be claimed as “right to privacy”. So,
tapping of telephone is a serious invasion of privacy which would infringe Article 21
unless it is permitted under the procedure established by law. The procedure has to be
“just, fair and reasonable.”

D. Supreme Court has the jurisdiction to look into the parliamentary proceeding.

The counsel for petitioner contends that the Supreme Court has the jurisdiction to look into
the parliamentary proceeding.

In the case of Kihoto Hollohan v Zachillhu5, the Supreme Court has held that the Speaker’s
decision to disqualify an MP for defection is subject to judicial review as the Speaker is
discharging an adjudicatory function. The legal fiction in para 6(2) of the Tenth Schedule
brings a proceeding under para 6 (1) within the ambit of clause (1) of Art. 122 or Art. 212
of the Constitution, and, therefore, makes it justiciable on the ground of illegality or
perversity in spite of the immunity it enjoys to a challenge on the ground of "irregularity of
procedure."

The Supreme Court has examined its powers of review under Articles 122 and 212 in the
Raja Ram Pal case in 2007. This case pertained to the expulsion of some members of
Parliament after they were found to have taken cash to ask questions in Parliament. The Court
said: “The proceedings which may be tainted on account of substantive illegality or
unconstitutionality, as opposed to those suffering from mere irregularity thus cannot be held
protected from judicial scrutiny by Article 122(1)”

In the case of Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P, 6 a citizen
had been arrested for contempt of the Uttar Pradesh Assembly under the Speaker’s order

4
People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568
5
1992 SCR (1) 686
6
AIR 1954 SC 636

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 |ARGUMENTS ADVANCED|ISSUE 1|

without first being produced before a magistrate, as required under Article 22(2). The
Supreme Court found this to be a violation of the citizen’s fundamental rights guaranteed
under the Constitution of India and thus struck down the Speaker’s order. This establishes
that the Court has jurisdiction to look into parliamentary proceedings.

Similarly, in the case of Balasubramanium v. State of Tamil Nadu7 where the Speaker
punished the editor of a magazine to an unprecedented three months of rigorous
imprisonment for contempt of the House. Ultimately, the Court awarded notional
compensation to the petitioner for the violation of his fundamental right under Article 21. It
can be observed that where there is a breach of the Constitutional mandate, there will be an
intervention by the Judiciary, where the immunity under Art. 122 cannot be claimed by the
Legislature.

Judiciary enjoys no say in the matters of regulating the internal procedure of the House of
Parliament. At the same time, Indian Parliament is not like England, where Parliament is
sovereign to do anything. This was the view held by Justice Gajendragadkar in the Keshav
Singh case8, writing on behalf of the majority who stated that the Indian Parliament has to
perform according to the written precepts of the Indian Constitution, violation of which
amounts to illegality. The Judgments of the Courts, including the Supreme Court on this
issue, suggest the same, as they accept the parliaments internal autonomy but do not forget to
remind that the Court are bound to take cognizance of illegality though they may not act
against irregularity in the House. Thus, no House in India can claim immunity from scrutiny
of the general warrants issued by it by Courts.9
It is important that there exists a balance of powers between the organs of the State, where
adequate scope is provided to maintain a system of checks and balance. It is impermissible to
legislate in a manner as would violate the “basic structure” of the Constitution.10 It was held
in the case of Madras Bar Association v. Union of India11, that even though the legislation
had been enacted by the following the prescribed procedure, if it violated the “basic
structure”, it would be not sustainable.

7
AIR 1995 Mad 329
8
Re: Keshav Singh’s Case (Special Reference No. 1 of 1964 under Article 143), AIR 1965 SC 745.
9
V.N. SHUKLA’S CONSTITUTION OF INDIA, 623, (Mahendra Prasad Singh ed., 11th edn., 2008)
10
Kesavananda Bharati Sripadagalvaru v. State of Kerala (1973) 4 SCC 225
11
AIR 2015 SC 1571

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 |ARGUMENTS ADVANCED|ISSUE 1|

In the present case, it has been observed that there has been an arbitrary parliamentary
procedure that has been followed in the passing of the DNA Profiling Act,2016. Thus, the
only recourse would be judicial review of the procedure. Even the content of the Act is
unconstitutional as it violates Art 21 and Art 20 (3) of the Constitution.

A. VIOLATION OF ARTICLE 13

Article 13 (2) establishes that the State shall not make any law which takes away or
abridges the Fundamental rights and any law made in contravention of this clause
shall, to the extent of contravention, be void. 12 In the present case, the National DNA
Profiling Act, 2016 extinguishes the inherent rights enshrined in Part III of the
Constitution which have already been established above. Thus, the counsels for the
petitioners contend that the Judiciary has the power to look into the parliamentary
proceedings since there also exists a fundamental right violation amounting illegality.
13

12
State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal, AIR 2010 SC 1476.
13
Balasubramanium v. State of Tamil Nadu, AIR 1995 Mad 329

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 |ARGUMENTS ADVANCED|ISSUE 2|

Issue 2: Whether the Nashville DNA Profiling Act, 2016 is unconstitutional on the
ground of procedural irregularity as challenged by Ms. Rachel Green.

The petitioners contend that the Nashville DNA Profiling Act, 2016 is unconstitutional on the
grounds of irregularity of Constitutional procedure, the procedure so established under
Article 110 of the Nashville Constitution.

A. Article 110 (1)

Article 110 (1) in the Nashville Constitution clearly establishes the pre requisites for a Bill to
be deemed as a ‘money bill’.

A bill will be considered as a money bill if it contains only provisions dealing with all or
any of the matters mentioned in the aforementioned artilce. This establishes that although
certain provisions in the bill relate to any of the above matters prescribed but also constitutes
certain provisions distinct to the above matters, then that specific bill should cease to be
introduced as a money bill, for it contains matters which exceed the scope of the definition of
a money bill as given under Article 110 (1).

The petitioners contend that the Nashville DNA Profiling Act, 2016 was introduced in the
lower house of the parliament under the false pretext of a money bill. The objective of this
Act is to provide for the establishment of the Nashville Human DNA Board for the purpose
of regulating the use of human DNA Profiles for Lawful purposes of establishing identity in a
criminal or civil proceeding and to regulate the financial burden of the cost of creation of the
database between the Centre and the State.

The Act clearly specifies usage of DNA samples for ‘lawful purposes’ which are thereon
prescribed under Section 39 of the Nashville DNA Profiling Act, 2016.

The bill does not deal with imposition, abolition, alteration, etc, of tax; nor does it deal with
the regulation of borrowing or giving a guarantee by the government or an amendment in
respect of any financial obligation to be undertaken by the government. This bill also does
not deal with the custody of the CFI or any such matter prescribed under Article 110 (1).

The petitioners hence submit that under no circumstance should the Nashville DNA Profiling
Act, 2016 have been introduced as a ‘money bill’ in the lower house of the Parliament.

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B. Article 110 (3)

According to Article 110 (3)14, if any question arises whether a Bill is a Money Bill or not,
the decision of the speaker of the House of the People thereon shall be final.

The first contention of the petitioners would be the application of the principle of ‘expressio
unius est exclusio alterius’ which means that ‘whatever has not been included has by
implication been excluded’, it is contended that the conclusiveness of the finality of the
speakers’ decision on whether a Bill is a money bill or not, is subject to judicial review. If
such decision of the speaker is not within the purview of judicial scrutiny, then such a clause
would have expressly been mentioned in the above Article 110(3), in a manner similar to that
of Article 122 (1) which expressly states that ‘irregularity of procedure’ in the Parliament
shall not be called in question.

Arguendo, the petitioners would also contend that Judicial review of the speaker’s certificate
is not excluded by Article 122(1) either. Article 122(1) of the Constitution of India protects
‘proceedings in Parliament’ from being ‘called into question on the ground of any alleged
irregularity of procedure’.

‘Procedure’ refers only to procedure in rules made under Article 118 or in a law under
Article 119. Effectively, if the House chooses to make a procedure for itself, violation of such
procedure by the House itself cannot be questioned in a court of law. But if the Constitution
of India prescribes a procedure to be followed by a House (as in the case of money bills),
violation of such constitutional procedure is not immune from judicial review under Art.
122(1). In other words, the phrase ‘irregularity of procedure’ in Art. 122(1) does not cover
constitutional procedure. Therefore, the protection from judicial review granted by Art.
122(1) cannot be stretched to protect non-compliance or breach of a constitutional procedure
like the special procedure for money bills under Article 110.

It is established hence that the speaker of the lower house did not follow the constitutional
procedure as laid down in Article 110(1), thereby making the decision subject to judicial
examination.

C. Procedural irregularity and Procedural illegality

The Supreme Court has consistently distinguished the phrase ‘irregularity of procedure’ in
Article 122 and Article 212 from ‘procedural illegality’ - a term coined by the court itself
14
Art. 110 (3). Const.

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 |ARGUMENTS ADVANCED|ISSUE 2|

which refers to a noncompliance or breach of constitutional procedure. The Supreme Court

has sought to distinguish between ‘procedural irregularity’ and ‘procedural illegality’,
holding that ‘procedural illegality’ is subject to judicial review while ‘procedural irregularity’
is not.

The Supreme Court’s decision in Special Reference No. 1 of 196415 clearly excludes breach
of constitutional provisions from the immunity granted under Article 212.

In this case, one Keshav Singh was committed to prison for committing breach of privilege
and contempt of the Uttar Pradesh Legislative Assembly. In this context, the Supreme Court
discussed the scope of immunity from judicial review under Article 212, clarifying that it is
not absolute in nature.

The Court held that Article 212(1) seems to make it possible for a citizen to call in question
in the appropriate court of law the validity of any proceedings inside the legislative chamber
if his case is that the said proceedings suffer not from mere irregularity of procedure, but
from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open
to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against
the procedure is no more than this that the procedure was irregular.

This principle was further upheld by the Supreme Court in the case of Raja Ram Pal v.
Hon’ble Speaker, Lok Sabha16. The Supreme Court observed that ‘The proceedings which
may be tainted on account of substantive illegality or unconstitutionality, as opposed to those
suffering from mere irregularity thus cannot be held protected from judicial scrutiny by
Article 122(1)’. The court limited the scope of immunity of legislative proceedings from
judicial review under Article 122 by holding that any attempt to read a limitation into Article
122 so as to restricts the court’s jurisdiction to examination of the Parliament’s procedure in
case of unconstitutionality, as opposed to illegality would amount to doing violence to the
constitutional text. Applying the principle of ‘expressio unius est exclusio alterius’ (whatever
has not been included has by implication been excluded), it is plain and clear that prohibition
against examination on the touchstone of ‘irregularity of procedure’ does not make taboo
judicial review on findings of illegality or unconstitutionality.

15
[1965] 1 SCR 413
16
(2007) 3 S.C.C.

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 |ARGUMENTS ADVANCED|ISSUE 2|

In another case of Hem Chandra Sen Gupta v Speaker of Legislative Assembly17, the court
observed that, it is for the Speaker of the House to allow or disallow such a resolution to be
raised or discussed in the house. The Courts cannot at this stage seek to regulate the
procedure of the house and arrogate to itself the powers of the Speaker. If however a law is
passed or a resolution adopted or a motion carried, which is not in accordance with the
Constitution, such a law, resolution, or motion can be declared invalid by the Court. This is a
correct delineation of the law according to the Court.

The Kerala High Court have in their full Bench decision held that the immunity envisaged in
article 212(1) of the Constitution is restricted to a case where the complaint is no more than
that the procedure was irregular. If the impugned proceedings are challenged as illegal or
unconstitutional such proceedings would be open to scrutiny in a court of Laws. 18

A further judgment relied upon is in the case of Raj Narain Singh v. Atmaram Govind19
where the learned Judge observed that the privileges, immunities and powers of the House or
its Speaker could not override the positive prohibitions contained in the Constitution, nor
could they make the provisions of Part III-the Fundamental Rights-nugatory, even though
Article 194(3) has not been made specifically subject to the other provisions of the
Constitution. To hold otherwise would be to place the Speaker or the Legislature of a State,
above the Constitution-which can never be held.

The House is not responsible to any external authority for following the procedure it lays
down for itself, and it may depart from that procedure at its own discretion.20 Thus it can be
established that the House is not accountable to the jurisdiction of the Court only in cases
where the procedure is established by itself and not those which are laid down in the
Constitution. In the present case, there is a violation of the procedure as established under the
Constitution and hence, is within the purview of Judicial review.

17
AIR 1956 Cal 378
18
State of Kerala v. R. Sudarshan Babu and Others, I.L.R. (Kerala) 1983, pp. 661-70
19
AIR 1954 All 319
20
Rule of Procedure and Conduct of Business in Lok Sabha.

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|ARGUMENTS ADVANCED|ISSUE 4|

Issue 3: Is Nashville DNA Profiling Act, 2016 and the Rules made under the Act
violative the provisions of the Constitution of Nashville?

Right to Privacy as established under Article 21

The counsel for the petitioners contend that the Nashville DNA Profiling Act, 2016 is
unconstitutional on the grounds of it being violative of Right to Privacy as guaranteed under
Article 21 of the constitution which confers right to life and personal liberty.

DNA information can reveal details such as a person’s looks, eye colour or skin colour, as
well as more intrusive information such as allergies, susceptibility to diseases, which is of
utmost personal nature.

People’s Union for Civil Liberties v Union of India21 was one of the first cases where the
issue of privacy over national security was raised. Here, the court had held that tapping
phones for surveillance was an infringement of the right to privacy.

In R Rajgopal v State of Tamil Nadu22, a case that elevated the right to privacy to
Constitutional status by virtue of it being “implicit in the right to life and personal liberty
guaranteed to the citizens of this country by Article 21”. It came to be considered as a right
that may not be violated except “according to procedure established by law”

There are several ways in which the involuntary administration of tests could be viewed as a
restraint on ‘personal liberty’. The most obvious indicator of restraint is the use of physical
force to ensure that an unwilling person is confined to the premises where the tests are to be
conducted. 23

In Ram Jethmalani v Union of India, the Supreme Court held that right to privacy is an
integral part of right to life24, further, the court went on to state that the notion of fundamental
rights, such as a right to privacy as part of right to life, is not merely that the state is enjoined
from derogating from them. It also includes the responsibility of the state to uphold them
against the actions of others in the society. District Registrar and collector v Canara Bank

Thus, in the light of Art.21, a person’s right to life or personal liberty cannot be taken away
by the State except in accordance with a procedure established by law. The Supreme Court in

21
1997 1 SCC 301.
22
1994 6 SCC 632.
23
AIR 2010 SC 1974
24
(2011) 8 SCC 1

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Maneka Gandhi v. Union of lndia25clarified the expression "procedure established by law".

After this case, in order to deprive a person's life or personal liberty, State must show that

(1) there is a procedure prescribed by law of the State for the same;

(2) the procedure must be fair, just and reasonable.

The counsel for the petitioners contend that the procedure established under the Nashville
DNA Profiling Act, 2016, is unfair, arbitrary and unjust in nature as it divulges a large
amount of power in the hands of the police by allowing them to conduct DNA Profiling on
mere arrest for any crime under the Nashville Code of Crime, 1900.

Permission to conduct DNA tests in Civil Cases

The Nashville DNA Profiling Act, 2016 also allows for the collection of DNA in civil
disputes. Thus, DNA profiling can be engaged in cases involving divorce, maintenance,
inheritance and succession. While evaluating a plea of legitimacy of a child by the husband
against the wife in Goutam Kundu v. State Of West Bengal And Anr, it was laid down that -

(1) That courts in India cannot order blood test as matter of course

(2) There must be a strong prima facie case in that the husband must establish non -access in
order to dispel the presumption arising under section 112 of the Evidence Act.

(3) No one can be compelled to give sample of blood for analysis26

In Sharda v. Dharmpal27, while concluding that a matrimonial court has power to order a
person to undergo a medical test, it was reiterated that the court should exercise such a power
if the applicant has a strong prima facie case and there is sufficient material before the court.

First and foremost, this would mean that the Nashville DNA Profiling Act seeks to ignore the
aforementioned judgment by allowing DNA profiling for civil cases which include paternity
disputes. Furthermore, a parallel can be drawn between a blood test and the conducting of the
Buccle swab test, the object of both being the matching of DNA. When blood tests are not
allowed without prima facie cause for action, then it would be logically inconsistent to allow
for the conducting of buccal swab test on mere arrest.
25
1978 AIR 597
26
Goutam Kundu v. State Of West Bengal And Anr 1993 AIR 2295
27
AIR 2003 SC 3450

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In Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, the
Supreme Court held that- In a matter where paternity of a child is in issue before the court,
the use of D.N.A. test is an extremely delicate and sensitive aspect. One view is that when
modern science gives the means of ascertaining the paternity of a child, there should not be
any hesitation to use those means whenever the occasion requires. The other view is that the
court must be reluctant in the use of such scientific advances and tools which result in
invasion of right to privacy of an individual and may not only be prejudicial to the rights of
the parties but may have devastating effect on the child. Sometimes the result of such
scientific test may bastardise an innocent child even though his mother and her spouse were
living together during the time of conception.

Right to Privacy of Criminals

Although, the Nashville DNA Profiling Bill, 2016 is aimed at profiling criminals or those
individuals who have merely been arrested, the court has held, in Selvi v state of Karnataka
that even prisoners, vis a vis, criminals also have the right to privacy. Thus, the Nashville
DNA Profiling Act, 2016 which seeks to take away the right to privacy of criminals, goes
against the principle laid down in the case.

Self Incrimination

The counsel for the petitioners also contend that the Nashville DNA Profiling Bill is
unconstitutional due to its violation of Article 20 (3) which states that no person accused of
any offence shall be compelled to be a witness against himself. Article 20(3) is based upon
the presumption drawn by law that the accused person is innocent till proved guilty. It also
protects the accused by shielding him from the possible torture during investigation in police
custody.

The case of M.P.Sharma v Satish Chandra28 and others raised the question as to whether the
order as to search and seizure under section 94 of the CrPC was violative of guarantee under
Article 23 of the constitution. The word “witness” in its natural sense is to be understood to
mean a person who furnishes evidence. A person can be a witness not merely by giving oral
evidence but also by producing documents.29 A person, while furnishing material for DNA,
is, in fact, providing evidence against himself, amounting to self incrimination. The court
observed that to confine the content of the constitutional guarantee under Art. 21 to oral
28
1954 AIR 300
29
Id.

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testimony only would be to rob the guarantee of its substantial purpose. It was further held
that every positive volitional act which furnishes evidence is testimony, and testimonial
compulsion connotes coercion which procures the positive volitional evidentiary acts of the
person. 30

Thus, the counsel on behalf of the petitioners submit that the taking of DNA samples from a
person amounts to furnishing of evidence which is testimonial in nature, thus the coercion of
an individual to give samples for DNA testing does, in fact, amount to compulsion to give
evidence.

Gujarat High Court in Najabhai v. State of Gujarat31, has held that the bar of Article 20(3) of
the Constitution of India would extend with regard to compelling the accused to submit
himself to medical examination also.

Further, it was held in Selvi v State of Karnataka that any non-volitional positive act of an
accused incriminating himself would be compulsion within the meaning of Article 20 (3)
violating the guarantee so granted under the Constitution. The Nashville DNA Profiling Act,
2016 lays down that DNA samples must be compulsorily obtained from a person arrested for
any crime under the Nashville Code of Crime, 1900, which means that in the case where the
arrested individual does not consent to the buccal swab test, it can be forced upon him. Thus,
the test impedes the subject’s right to choose between remaining silent and offering
substantive information.

Non-conclusiveness of DNA Evidence

DNA Profiling does not examine every single difference between individuals and so can only
provide probabilistic evidence. A chance match between profiles that do not originate from
the same source is called an adventitious match, and it is established that the risk of
adventitious matches increases as the DNA database grows. DNA evidence can never provide
100% proof but it is presented as a match probability. As such, it has often been a great
source of confusion at trial.32 It does not by itself, prove conclusively that the defendant was
the source of the crime scene profile. There always remains a possibility that somebody else
(especially a close relative) may have the same profile. There remains a risk that individuals
could be charged with serious criminal offence on the basis of a circumstantial association

30
Id.
31
1972 Cr. LJ 1605
32
PETHERICK, TURVEY, FERGUSON, FORENSIC CRIMINOLOGY, 458 (Elsevier Inc.,2010)

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with the crime scene represented by a DNA match and, if lacking cast iron defence, it may be
difficult to challenge the DNA evidence. 33

There also exists the problem of DNA that is located on a “mobile” object- which may have
originally been dropped somewhere other than where it was found. A devious criminal cold
attempt to deliberately contaminate a crime scene with an innocent persons DNA.

In the case of R v waters34 (2000), the defendant was accused of 4 burglaries based on the
DNA evidence found in the cigarette butts at the crime scene. On appeal it was argued that
the DNA evidence was weak (1 out of 9000 match probability) and the DNA expert stated
that such evidence cannot be used in isolation at trial. The Court of Appeal concluded that the
case should not be put forth before because the defendant also had a brother.

In the case of MV Mahesh v Union of India35, the court went on to say that the DNA test was
not a fool proof one and also commented on the fact that there were no national standards set
or established for DNA testing in India.

33
Id, at 459
34
[2000] All ER (D) 1469
35
AIR 1994 SC 786

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Issue 4 : Is there excessive delegation of powers under the scheme of Nashville DNA
Profiling Act, 2016?

Delegated Legislation is that which proceeds from any authority other than the sovereign
power and is therefore dependent for its continued existence and validity on some superior or
supreme authority36

The counsel for the petitioners submit that the delegation of powers to the Nashville DNA
Profiling board conferred by the Nashville DNA Profiling Act, 2016, amounts to excessive
delegation.

A. Tests inferred from the case of In Re Delhi Laws Act37.

In the case of In Re Delhi Laws Act, one view was that the Indian Legislature could not
delegate its power to any extent, subject to the limit that it did not efface itself or abdicate its
powers.

i) Delegation of Essential legislative functions by the Nashville DNA Profiling

Bill, 2016

It was stated, in the case of In Re Delhi Laws Act38, that the Legislature should not delegate
its essential legislative function which comprised the formulation of policy and enacting it
into a binding rule of conduct.

It is contended that the Nashville DNA Profiling Act, 2016 delegates essential legislative
functions in relation to certain matters, namely, in -

a) Section (7) (i) which allows the board to specify, by regulations, the list of applicable
instances of human DNA profiling and the sources and manner of collection of
samples in addition to the lists contained in the Schedule
b) Section (20)(2)(a) which allows the board to specify the list of applicable instances of
human DNA profiling and the form and manner in which samples can be collected
c) Section (20)(2)(g)which allows the board to specify the other purposes in addition to
identification of victims of accidents, disasters or missing persons or for purposes
related to civil disputes

36 th
SALMOND, JURISPRUDENCE, 116,(12 ed.1966)
37
1951 AIR 332
38
Id.

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d) Section (30)(3)(f) which allows for creation of such other DNA indices as may be
specified by regulations (of the Board)

Considering the fact that all the above issues are of important nature in the sense that they
directly and indirectly effect the Right to Privacy of all the citizens of Nashville, it is only
legally consistent that the legislature itself passes notifications on the aforementioned issues
and not abdicate or excessively delegate the said powers to a secondary body of members
who are not elected by the citizens.

ii) Lack of clear standards and policy

It was also held, in In Re Delhi Laws Act39, that legislature should lay down standards or
policy in the delegating Act and the delegate may be left with the power to execute the
policy. Further, it was stated that no Indian Legislature can delegate unlimited legislative
power to the Administration and that if the delegation is too broad, the courts can declare the
same as excessive and hence invalid.

In the Nashville DNA Profiling Act, 2016, there also a lack of clarity in what could possibly
be an addition to the list of applicable instances of human DNA profiling under Section (7)
(i). There are no clear standards or specifications to what variety of purposes to which the
Board can extend the use of DNA, under Section (20)(2)(g). The same is contended in
relation to Section (30)(3)(f).

The legislature often uses wide, subjectively worded provisions giving power to the delegate
to make such rules as appears to it to be “necessary” or “expedient” for the purpose of the Act
without laying down any standards to guide the discretion of the delegate.40 For instance in
the case of Air India v. Nargesh Meerza41, the Court struck down the absolute discretion
vested in the Director of Air India to terminate the employment of Air Hostesses after they
reached the age of 35, holding that the uncanalised discretion amounted to excessive
delegation of power. Words such as ‘applicable instances’ and ‘other purposes’ does not do
much in providing guidance for the discretion of the executive.

39
1951 AIR 332
40
PRINCIPLES OF ADMINISTRATIVE LAW, M.P. JAIN and S.N. JAIN 48 (4th ed., 1986)
41
1981 AIR 1829

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B. Addition to lists or Extension of Applicability

In the case of Rajnarain Singh v. Chairman, Patna Administration42, it was held that the
power to extend laws and modify a section for application to another area amounts to
delegating the power to change the policy of the Act, which is an essential legislative
function, and hence cannot be delegated. In this case, although the word ‘area’ may be used
in a territorial sense, it can also be interpreted widely to mean issues or topics.

In Hamdard Dawakhana v. Union of India43, wherein, the apex court held that the delegation
of power to include any disease within the list of diseases for whom advertisement were
banned, to be excessive in nature. The court held that nowhere in the legislation, any policy
has been laid down to guide the conduct of the administrative authorities.

Thus, the extension of the Act to add applicable instances of human DNA profiling (Section
(7) (i) ) or the creation of new DNA indices would be considered excessive delegation as it is
the same as adding new applicabilities or types of indices, which would amount to excessive
delegation as held under the case.

42
1954 AIR 569
43
1960 AIR 554

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PRAYER

PRAYER

Wherefore, in light of the issues raised, authorities cited and arguments advanced, the
Hon’ble Supreme Court of Nashville be pleased to:

1) It be declared that the Nashville DNA Profiling Act, 2016 be struck down due to its
unconstitutional nature, for it violates the constitutional procedure and Fundamental
Rights.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

Counsel on behalf of Petitioner

Sd/-

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