XXXI

IN THE HONOURABLE SUPREME COURT OF DIONYSSIA

--IN THE MATTER OF—

Writ Petition No. __ of 2012

(Petition filed under Article 32 of the Constitution of Dionyssia read with Order XXXV, Rule

7 of the Supreme Court Rules, 1966)

Mark Anthony...................................................................................................Petitioner

Union of Dionyssia……………………………………………………………….Respondent

(Represented through the Secretary, Union Ministry of Law and Justice)

MEMORIAL FOR THE RESPONDENT

Counsel for the Respondent

TABLE OF CONTENTS

iv
INDEX OF AUTHORITIES....................................................................................................iii

STATEMENT OF JURISDICTION..........................................................................................ii

ISSUE II: THERE HAS BEEN NO ABROGATION OF THE PETIONERS’

FUNDAMENTAL RIGHTS THROUGH STATE DETAINMENT.........................................6

iv
 INDEX OF AUTHORITIES

Cases

Maneka Gandhi v. Union of India, AIR1978SC597..................................................................2

Treatises

CONSTITUTIONAL LAW OF INDIA, 1879 4th Edn., Vol. II, p.............................................2

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 STATEMENT OF JURISDICTION

The counsel for the Petitioners most humbly submits to the jurisdiction of The Most

Honourable Supreme Court of Dionyssia.

Writ petition No. __ of __ is filed under Article 32 of the Constitution of Dionyssia read with

Order XXXV, Rule 7 of the Supreme Court Rules, 1966.

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 SUMMARY OF ARGUMENTS

THE PROTECTION OF NATIONAL INTEGRITY AND MAINTENANCE OF

SECURITY ACT, 1989 IS CONSTITUTIONAL,

The Parliament Was Competent To Pass The Legislation

The Rights Restricted By The Act Not In Contravention To Part III

Exercise Of Executive Discretion Is Outside The Scope Of Judicial Enquiry

THERE HAS BEEN NO ABROGATION OF THE PETIONERS’ FUNDAMENTAL

RIGHTS THROUGH STATE DETAINMENT.

The Restriction Of Freedom Of Speech In Section (F) Is Valid As Per Article 19 (2)

Arguendo, The Petitioner’s Statement Was Seditious

The Arrest And Detainment Of The Petitioners Is In Consonance With Article 21 And 22

THE RIGHT TO SELF-DETERMINATION HAS NOT BEEN VIOLATED BY THE ACTS

OF THE UNION.

The Right To Self-Determination Is Not Absolute

The Right To Self-Determination Is Pursued In Consonance With National Integrity

International Obligations Have Been Adhered To Enforcing Such Restrictions.

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 ARGUMENTS ADVANCED

Issue I: THE PROTECTION OF NATIONAL INTEGRITY AND MAINTENANCE

OF SECURITY ACT, 1989 IS CONSTITUTIONAL

1: The Parliament Was Competent To Pass The Legislation

1.a: Article 355 imposes a duty on the Union:

The overweening role given to the Union is in view of the pluralism and diversity subsisting

in the nation, for it is the Union’s responsibility to uphold the unity and integrity of

Dionyssia, and ensure that the constitutional mandate of the nation as a secular, democratic

republic is upheld in the States.1

1.b: Instance of Internal Disturbance:

The power to declare an area as disturbed may be used by the Union in a state troubled by

violent insurgency. Because of its responsibility to protect a State against such internal

disturbance under Article 355, the Union is competent to assess the situation and decide what

special measures, including powers for its armed forces, are necessary for dealing with it. 2

Therefore, the ordinary constitutional delineation of rights and powers is sought to be

suspended vide the Emergency Provisions in order to allow for a more powerful and

centralized mechanism that would be better enabled to tackle such serious situations.3

1.c: Threat of External Aggression:

If the Union apprehends, therefore, that there is a danger of external aggression or internal

disturbance taking place within a State, it is a constitutional action for it to deploy and

maintain armed forces in that State, under the mechanism of an enabling legislation, to

1
Punchhi Commission Report
2
Sarkaria Commission Report, Chapter 7
3
State of Rajasthan v. Union of India (1978) 1 SCR 1

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mitigate and quell the danger by the virtue of powers vested in the Union by Article 355 of

Part XVIII of the Constitution.

1.d: The Doctrine of Necessity warrants complete Martial Law:

The operative clause in case of imposition of Martial law is necessity. As laid down in Ex

parte Milligan4, the introduction and continuance of Martial Law is intertwined with the

doctrine of necessity. In the light of instances of public uprising which culminated into a full-

scale civil war, it became necessary for the Union to deploy its forces in Arcadia. This was

followed by an unprecedented attack on the military and paramilitary forces of Dionyssia

stationed in Arcadia by Barmy Army, a once scattered guerilla group, now equipped with

modern and lethal weaponry. This group was aided by foreign instrumentalities in a show of

solidarity and the situation posed an impending threat of external aggression strengthened by

the aid rendered in the form of funds and ammunition to this unlawful association. 5 Under

such circumstances, it was only expedient for the State to establish complete Martial Law.

Under Article 355 read with Entry 1 and 2 of List I, there is ample executive power to put

down rebellion or a state of war by martial law.6

i. Sub-issue 2: The Rights Restricted By The Act Not In Contravention To Part III

2.a: Freedom not absolute:

Freedom is regulated and is subject to the confinement and control of law 7, whether common

law or statute. If extraordinary powers are exercised by the Union in curbing the freedom of

the people of Arcadia through the enforcement of legislation, it is exercised because the

emergency is extraordinary.8
4
71 U.S 2 (1866)
5
Unlawful Activities Prevention Act, 1976
6
CONSTITUTIONAL LAW OF INDIA, 1879 4th Edn., Vol. II, p.
7
Maneka Gandhi v. Union of India, AIR1978SC597
8
Additional District Magistrate, Jabalpur v. ShivkanthShukla

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2.b: Blanket immunity provided for under Article 34:

During the period of a major military emergency, the military authorities may exercise

abnormal powers outside the ordinary law.9 The source of martial law is legislative, namely,

an Act of Parliament made under Entry 1 of List I, read with Entry 97 of List I. 10 Article 34

provides that Parliament may pass a law indemnifying any government servant, or other

person, in respect of any act done by him in the connection of restoration of order in an area

where martial law is in force.11

Article 34 is in Part III by way of an exception to Fundamental Rights 12 in as much as the

imposition of martial law as well as an Act of Indemnity has affected the fundamental rights

of the people living in Arcadia, under the imposition of martial law.

2.c: Powers of search, seizure and arrest not in contravention to Article 21: Assuming

that the Fundamental Rights explicitly guaranteed to a citizen have penumbral zones and that

the right to privacy is a Fundamental Right, that Fundamental Right must be subject to

restriction on the basis of compelling public interest. As the Act has the force of law, it

cannot be said that the FR of the petitioner under Article 21 has been violated by the

provisions contained in it for what is guaranteed under that article is that no person shall be

deprived of his life or personal liberty except by the procedure established by ‘law’.13

The right to privacy cannot be seen as absolute and a law imposing reasonable restriction

upon it for compelling interest of State must be upheld as valid.

2.d: Period of detention is within scope of legislative discretion:

9
Muhammad Umar Khan v. The Crown, PLD 1953 Lah 582
10
D.D. Basu, Commentary on The Constitution of India, Vol. III (New Delhi, LexisNexis ButterworthsWadhwa,
8thEdn., 2008) 4002
11
M.P Jain, Indian Constitutional Law(New Delhi, LexisNexis ButterworthsWadhwa, 6thEdn., 2010) 1458
12
D.D Basu, supra, note 10 at 3996
13
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378

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There can be no limit within which a trial must be completed. It is the obligation of the State

to proceed with the case with reasonable promptitude. 14 Further, under Entry 9 of List I, the

Parliament may pass a law for the Preventive Detention of persons in light of the Defence and

security of India. As the Parliament was competent in passing the Act, the provision of the

law is valid.15

2.e: Military tribunals are not courts:

Military Tribunals have no legal sanction and require an Act of Indemnity to validate them. 16

These tribunals have been excluded by Article136 (2) from the Supreme Court’s appellate

jurisdiction under Article 136 (1).

Arguendo, as quasi-judicial bodies, they are not bound by Supreme Court precedents under

Article 141. The Parliament may in its powers under Entry 93, List I define offences and

subsequently prescribe punishment for the same regarding to any matter in the Union List

which.

The International Covenant on Civil and Political Rights states that death penalty may be

imposed for the ‘most serious of crimes in accordance with the law in force at the

time’.17Thus, the warranted punishment of death is justified as the Parliament is competent to

impose the same.

3: Exercise OfExecutive Discretion Is Outside The Scope Of Judicial Enquiry

3.a: Executive discretion to assess ‘war against the State’:

14
Abdul RehmanAntulay v. R. S. Naik, AIR 1992 SC 1701, 1730
15
Samir v. State of West Bengal, (1975) 1 SCC 801 (paras 3, 5, 7)
16
D.D Basu, supra note 10 at 3996
17
ICCPR, Article 6

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Such an instance of an organized rebellion18 against the established authority 19 amounts to

waging war against the State20. In such circumstances they are entitled to meet war with war,

and to hand over control to the military authorities. 21 The Union enjoys the power of

discretion to assess the magnitude of threat to the security of the State and accordingly deploy

its forces to the extent of replacing civil power in the state.22

3.b: National Security is Executive Jurisdiction:

It is the Executive which is responsible for the national security and is the sole judge of what

the national security requires.23 The interests of national security require that such matters

should not be disclosed to the public or be made the subject of evidence in a court of law. 24

The intention behind Part XVIII and the enforcement of the Act by the State and its

instrumentalities is that such executive action should not be subject to judicial appraisement.

Yet, it should be honestly supervised and controlled by the hierarchy of executive authorities

themselves. It thus, enhances the powers and responsibilities of the executive.

3.c: Doctrine of Political Question:

Those matters which are assigned by the Constitution exclusively to the Executive or the

Legislature cannot be questioned by the Court: “it is not every default on the part of the State

or Public authority that is justiciable. The Court must take care to see that it does not overstep

the limits of its judicial function and trespass in areas which are reserved to the Executive or

the Legislature by the Constitution.”25The Doctrine of Separation of Powers laid down as an

18
Barmy Army, proposition 7
19
Martial law, proposition 9
20
Proposition 9 (f)
21
ChanappaShantirappa&Ors. V. Emperor, 129 IndCas 596 (on 1 September, 1930)
22
Sarakaria Commission Report, Chapter 6
23
The Zamera(1916) 2 AC 77 (107) PC
24
CCU v. Min. for C.S., (1084) 3 All ER 935 (946, 952, 956) HL
25
Gupta v. President, AIR 1982 SC 149 (para. 23)

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integral part of the basic structure of the Constitution applies to the immunity of the Union of

Dionyssia with regard to the enforcement of this Act.

ISSUE II: THERE HAS BEEN NO ABROGATION OF THE PETIONERS’

FUNDAMENTAL RIGHTS THROUGH STATE DETAINMENT.

i. Sub-issue 1: The Restriction Of Freedom Of Speech In Section (F) Is Valid As Per

Article 19 (2)

1.a: The expression of opinions does not enjoy absolute protection:

The right to opinions, no matter how depraved and violent are afforded absolute protection

under law.26 However it is to be noted that the expression of such opinion may legitimately

warrant a sanction.27 Thus, the freedom of opinion does not validate expression of every

opinion.

1.b: Restrictions may be imposed by law:

The American Convention on Human Rights lays down that a restriction may only be

imposed by a law28 passed by the Legislature and promulgated by the Executive, pursuant to

the procedure set out in domestic law 29. The law so established must be accessible and

formulated with sufficient precision to enable a citizen to regulate his conduct: he must be

able to foresee, to a degree that is reasonable in the circumstances, the consequences which a

given situation may entail.30

26
ICCPR, Article 19 (1)
27
Mendel, Toby, Restricting Freedom of Expression: Standards an.d Principles, Centre for Law and Democracy,
see at <http://www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf>
28
American Convention on Human Rights, ___ , Article 30
29
The Word “Laws” in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86 of
9 May 1986, Series A, No. 6. Para. 27
30
The Sunday Times v. United Kingdom, 26 April 1979, Application No. 6538/74, para. 49.

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The Act was passed by the Legislature in 1989 and is enforced by the instrumentalities of the

Executive through the imposition of martial law and Central rule.31

1.c: Restriction is ‘reasonable’ as per Art. 19 (2):

The restriction imposed by Section (f)is for the protection of a legitimate and overriding

interest - the maintenance of territorial integrity in Dionyssia, and is such that there is no

possibility of it being applied for purposes not sanctioned by the Constitution, as Article 19

(2) allows for ‘reasonable restrictions’ on the exercise of this freedom in the interests of the

Sovereignty and the security of the State, public order, incitement to an offence, etc., which

may include contribution towards or the incitement of the cause of independence of Arcadia

from the Union of Dionyssia.

1.d: Nexus exists between the restriction and its objective:

The restriction imposed against seditious acts and those that may be construed as waging war

against the State is of pressing and substantial need 32 as the State of Arcadia has proven to be

prone to violence and disruption of public order33 when confronted with cause of secession.

Thus Section (f) lays down a restriction that is rationally connected 34 to the object of

Dionyssian Sovereignty.

2 : Arguendo, The Petitioner’s Statement Was Seditious

2.a: The Act clearly defines scope of seditious acts:

31
Proposition 9 (a)
32
Lingens v. Austria, 8 July 1986, Application No. 9815/82, para. 39 (European Court of
Human Rights)
33
Proposition 7
34
R. v. Oakes, [1986] 1 SCR 103, pp.138-139 (Supreme Court of Canada)

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Section (f) of the Act defines sedition or the act of waging war against the State as ‘any

activity which [is] related or contributing to, in any manner, the cause of independence of

Arcadia…’

2.b: Arguendo, the petitioner’s statement is seditious:

The petitioner directly exhorted the people of Arcadia to ‘topple’ the current government

which he termed ‘the despotic rule’ in order to attain ‘complete independence’. Within the

scope of Section (f), the petitioner is clearly guilty of sedition and the attempt to incite people

to “wage war against the State’.

3: The Arrest And Detainment Of The Petitioners Is In Consonance With Article 21 And 22

3.a: Arguendo, no action arises against the lawful detainment:

Under Section (f) read with Section (d) of the Act, the government of Dionyssia had bona

fide35 reason to arrest the petitioner and detain him.

While determining whether there existed an undue delay in conducting the trial of the

petitioner under the provisions of Section (g) regard must be afforded to the prevailing

circumstances in Arcadia. The nature of the offence of seditious activity in the present

circumstance of conflict was a serious 36 one and the number of the accused may have added

to systematic delays which do not amount to the violation of rights to a speedy trial 37 under

Articles 21 &22.

3.b: Bona fide preventive detention does not abrogate Part III

35
Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349
36
Bilal Ahmed Kaloo v. State of Andhra Pradesh, AIR 1997 SC 3483
37
M.P. Jain, 5thedn., 2003, p. 1097

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Further his 100 comrades were arrested on reasonable suspicion 38, in order to curtail their

liberty, preventing them from committing certain injurious activities39 in response to the

petitioner’s inciting call to “do everything in their power and might” to “topple the despotic

rule they were being subjected to.”40

Under such action, their detention was valid without a trial into the allegations made against

them.41

ii. Issue Iii: The Right To Self-Determination Has Not Been Violated By The Acts Of

The Union.

1: The Right ToSelf-Determination Is Not Absolute

1.a: May be suspended in situations of emergency:

The Constitution of The Federal Republic of Dionyssia42 enshrines certain fundamental rights

to every individual under Part III of the Constitution; however, these rights are not absolute 43

and may be suspended during times of public emergency which ‘threatens the life of the

nation’.44

1.b: Duty of the State to protect States in emergency:

Article 35545 imposes a duty upon the Union to protect every State against external

aggression or internal disturbance and to ensure that the government of every State is carried

out in accordance with the provisions of the Constitution.

38
The Armed Forces Special Powers Act, 1958, Section 4 (c)
39
Rajesh Gulati v. Govt. NCT of Delhi, (2002) 6 SCALE 142
40
Proposition 12
41
Tamil Nadu v. Senthil Kumar, AIR 1999 SC 971
42
Hereinafter, the Constitution
43
Maneka Gandhi, supra note 7
44
International Code on Civil and Political Rights, 1966 (Hereinafter, ICCPR) Article 4
45
Part XVIII – The Emergency Provisions

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1.c: Internal disturbance existed:

Between the period of 1949-1980, Arcadia witnessed four instances of public uprising

culminating into a full-scale civil war which had to be curbed by the deployment of Armed

Forces. Thus in furtherance of such duty, the State may derogate certain rights to the extent

that is strictly required by the exigencies of the circumstances.46

1.d: Threat of external aggression:

The gravity of the situation heightened in 1988, when the Barmy Army, a once ‘scattered

guerrilla group’ attacked the Union military forces, now equipped with ‘modern and lethal

weaponry’.47 Given the severity of the attack, the State deemed it expedient to adopt stringent

measures in the interests of National security and integrity. The supply of foreign arms and

ammunition48 posed an impending threat to the Sovereignty of the State through external

aggression.

Sub-issue 2: The Right To Self-Determination Is Pursued In Consonance With National

Integrity

2.a: Territorial integrity of Dionyssia to be preserved:

The Constitution presupposes that the right to self-determination will be exercised within the

framework of Dionyssia as an existing Sovereign State and in consonance with the

maintenance of its territorial integrity. The maintenance of territorial status quo is to preserve

what has been achieved by peoples who struggled for their independence from colonial rule 49,

and to avoid a disruption which would deprive Dionyssia of the gains achieved by much

sacrifice.50
46
Id
47
Proposition 7
48
Id
49
Para 12 of Proposition
50
Frontier Dispute, Judgement, I.C.J. Reports 1986, p. 554, at p. 567, para. 25

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2.b: Arguendo, Arcadia pursuing secessionist means:

However, in the light of Arcadia’s prolonged demand for independence 51 that continued to be

incited even after the repeal of the Barmy Army52, the Union would have to place restrictions

upon the derogable right53 to self-determination due to a plausible consequence of furtherance

of secessionist aspirations. The call for ‘complete independence’ and a call to the use of

‘power and might’ to ‘topple’54 the government clearly implied secessionist incitement, and

thus necessitated the imposition and continuance of complete martial law 55 and central rule in

the State, which curbed the full exercise of the right to self-determination.

3: International Obligations Have Been Adhered To Enforcing Such Restrictions

3.a: The State may protect its Sovereignty from acts of intervention:

The supply of arms and ammunitions by other countries56 amounts to the recognition57 of the

Barmy Army as the new government of an independent State of Arcadia. So long as the

lawful government offers resistance, the de jure recognition of a revolutionary party as

government constitutes premature recognition which the lawful government is entitled to

regard as an act of intervention contrary to international law.58

3.b: States may enforce their Sovereignty:

The international obligation59 on the State to uphold the right to self-determination shall not

be construed as authorising or encouraging any action which would dismember or impair

totally or in part, the territorial integrity or political immunity of Sovereign, independent

51
Para 4 of Proposition
52
Para 7 of Proposition
53
ICCPR, Article 4
54
Para 12 of Proposition
55
Ex parte Milligan, supra note 4
56
Para 7 of Proposition
57
Ian Brownlis, Principles Of Public International Law, Sixth edn., Oxford University Press, 2004, p. 555
58
Sir HerschLauterpacht, Recognition in International Law (Cambridge: Cambridge University Press, 1947) 94-
95
59
ICCPR, Article 4

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States60, conducting themselves in compliance with the principle of equal rights and self-

determination of peoples.

Secession from Dionyssiacannot be based on the right to self-determination.61

60
G.A. Res. 2625 (XXV).Declaration on Principles of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Nations
61
Shaw L., Title to Territory in Africa (1986) Clarendon Press London, 9.

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 PRAYER

Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities

cited, it is most respectfully prayed before this Court that it may be pleased to:

Declare the Protection of National Integrity and Maintenance of Security Act, 1989, to be

valid

Uphold the arrest of the Petitioners

And further pass any other order or decree in favour of the Respondent as this Honourable

Court may deem fit in the ends of equity, justice and good conscience.

All of which is most humbly and respectfully prayed.

Date: 25. 02. 2012 Counsel for the Respondent

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