project-law.docx

TABLE OF CONTENTS Sr.No.

Contents

Page.No.

1. PART-A Introduction to Drafting, Pleading And Conveyancing

6 -19

2. PART-B Moot Court Memorial on the Behalf of Petitioner

20-41

3. PART-C Moot Court Memorial on the Behalf of Respondent

42-58

4. PART-D Leading Case

59-65

5. PART-E Court Visit

66-74

6. Bibliography

75

PROJECT PROPOSAL

PART-A

DRAFTING, PLEADING AND CONVEYANCING

INTRODUCTION

Introduction – Drafting, Pleading And Conveyancing

1. DRAFTING – ITS MEANING

Drafting may be defined as the synthesis of law and fact in a language form [Stanley Robinson: Drafting Its Application to Conveyancing and Commercial Documents (1980); (Butterworths); Chapter 1, p.3]. This is the essence of the process of drafting. All three characteristics rank equally in importance. In other words, legal drafting is the crystallization and expression in definitive form of a legal right, privilege, function, duty, or status. It is the development and preparation of legal instruments such as constitutions, statutes, regulations, ordinances, contracts, wills, conveyances, indentures, trusts and leases, etc. The process of drafting operates in two planes: the conceptual and the verbal. Besides seeking the right words, the draftsman seeks the right concepts. Drafting, therefore, is first thinking and second composing. Drafting, in legal sense, means an act of preparing the legal documents like agreements, contracts, deeds etc. A proper understanding of drafting cannot be realised unless the nexus between the law, the facts, and the language is fully understood and accepted. Drafting of legal documents requires, as a pre-requisite, the skills of a draftsman, the knowledge of facts and law so as to put facts in a systematised sequence to give a correct presentation of legal status, privileges, rights and duties of the parties, and obligations arising out of mutual understanding or prevalent customs or usages or social norms or business conventions, as the case may be, terms and conditions, breaches and remedies etc. in a self-contained and self-explanatory form without any patent or latent ambiguity or doubtful connotation. To collect, consolidate and co-ordinate the above facts in the form of a document, it requires serious thinking followed by prompt action to reduce the available information into writing with a legal meaning, open for judicial interpretation to derive the same sense and intentions of the parties with which and for which it has been prepared, adopted and signed.

6.

2. CONVEYANCING — ITS MEANING

Technically speaking, conveyancing is the art of drafting of deeds and documents whereby land or interest in land i.e. immovable property, is transferred by one person to another; but the drafting of commercial and other documents is also commonly understood to be included in the expression.

Mitra’s legal and commercial dictionary defines “conveyance” as the action of conveyancing, a means or way of conveyancing, an instrument by which title to property is transferred, a means of transport , vehicle. In England, the word “conveyance” has been defined differently in different statutes. Section 205 of the Law of Property Act, 1925 provides that the “conveyance includes mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of any interest therein by any instrument except a will”. “Conveyance”, as defined in clause 10 of Section 2 of the Indian Stamp Act, 1899, “includes a  conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided by Schedule I” of the Act.” Section 5 of the Transfer of Property Act, 1882 (Indian) makes use of the word “conveyance” in the wider se nse as referred to above.

Thus, conveyance is an act of conveyancing or transferring any property whether movable or immovable from one person to another permitted by customs, conventions and law within the legal structure of the country. As such, deed of transfer is a conveyance deed which could be for movable or immovable property and according to the Transfer of Property Act, 1882, transfer may be by sale, by lease, by giving gift, by exchange, by will or bequeathment. But acquisition of property by inheritance does not amount to transfer under the strict sense of legal meaning.

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3. PLEADING — ITS MEANING

The present day system of pleadings in our country is based on the provisions of the Civil Procedure Code, 1908 supplemented from time to time by rules in that behalf by High Courts of the States. There are rules of the Supreme Court and rules by special enactments as well. For one, words ‘plaints’ and ‘complaints’ are nearly synonymous. In both, the expression of grievance is predominant. Verily, when a suitor files a statement of grievance he is the plaintiff and he files a ‘complaint’ containing allegations and claims remedy. As days passed, we have taken up the word ‘Plaint’ for the Civil Court and the word ‘Complaint’ for the Criminal Court. Order 6, R. 1 of Civil Procedure Code (C.P.C.) defines ‘pleading’. It means either a plaint or a written statement.’

With the passing of time written pleadings supplanted archaic oral pleadings. When reduced to writing the scope of confusion, for obvious reasons, was made narrower. In this we find the object of a pleading which aims at ascertaining precisely the points for contention of the parties to a suit. The rules of pleading and other ancillary rules contained in the Code of Civil Procedure have one main object in view. It is to find out and narrow down the controversy between the parties. The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them. Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take (Ganesh Trading v. Motiram ,AIR 1970 SC 480). Necessarily, a pleading is accurate only when stripped of verbosity it pinpoints succinctly the plaintiff’s grievances giving him the right to sue for the desired relief, or when it briefly sets out the defendant’s defence. When so done, there would be hardly any scope left to beat about the bush or to take the other party by surprise. Pleadings should be read not by the piecemeal but as a whole and should be liberally construed. Every venial defect should not be allowed to defeat a pleading, for a plaintiffs case should not be defeated merely on the ground of some technical defect in his pleadings provided he succeeds on the real issues of the case. It has been held: “Rigid construction of the law of pleadings was inappropriate and not calculated to serve the cause of justice for which the law of procedure was largely designed (AIR 1969 Del.120). This should, of course, not be taken as an excuse for pleadings extremely lax and irrelevant, argumentative and inaccurate.”

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In construing the plaint, the court has to look at the substance of the plaint rather that its mere form. If, on the whole and in substance, the suitor appears to ask for some relief as stated, the court can look at the substance of th e relief. “Pleadings have to be interpreted not with formalistic rigour but with latitude of awareness of low legal literacy of poor people.” Coming to construction of pleadings, Sarkaria, J held: “A pleading has to be read as a whole to ascertain its import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not mere the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and term of his pleading taken as a whole. (Udhav Singh v. Madhava Rao Scindia, AIR 1976 SC744).

Fundamental rules of pleadings The fundamental rule of pleadings is contained in provisions of O. 6, R. 2 of C.P.C. which enjoins: (1) “Every pleading shall contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is conveniently, contained in a separate paragraph. (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.”

To quote the Earl of Halsbury: “The sole object of it is that each may be fully  alive to the questions that are about to be argued in order that they may have an opportunity of bringing forward such evidence as may be appropriate to the issues.” The rules of pleading and other ancillary rules contained in the Code of Civil Procedure have one main object in view. It is to find out and narrow down controversy between the parties.

“The pleadings are not to be considered as constitut ing a game of skill between the advocates. The) ought to be so framed as not only to assist the party in the statement of his case but the court in its investigation of the truth between the litigants”.

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The pleading shall contain: (i) (ii) (iii) (iv) (v)

facts only, then again, material facts; not law; not evidence; and deficiency in pleading. immaterial facts to be discarded.

i) Material facts: A pleadings shall contain only material facts. Material facts are the entirety of facts which would be necessary to prove to succeed in the suit. Any fact which is not material should be avoided. Slackness in pleadings is unfair both to the court in which they are filed and also to the litigants. Material facts should be pleaded concisely. There is hardly any scope for showing literary genius in a pleading. Order 6, R. 2, C.P.C. should be read with O. 6, R. 4(c). When commencing a suit, the plaintiff is required to state only material facts, but such facts must constitute his cause of action as well. Absence of material facts will put the party to discomfiture, for no amount of evidence can be taken into consideration or regarded as sufficient in proof of any fact if specific mention of it is not made in the pleadings. Therefore, if a party omits to state a material fact, he will not be allowed to give evidence of the fact at the trial unless the pleading is amended under O. 6, R. 17, C.P.C. The rule is based mainly on principles that no party should be prejudiced by change in the case introduced by this method. No relief can be granted on facts and documents not disclosed in the plaint. It is often noticed that during the trial of a suit, some fact is sought to be introduced in evidence which does not find mention in the plaint or in the written statement, as the case may be. Then follows a heated parley when the court intervenes and rejects any attempt of introduction of any new fact. To avoid discomfiture, the pleading should be carefully drafted not to miss any material fact which may subsequently be found to be so material as to decide the fate of the case this or that way.

(ii) Not law: In a pleading, there is no scope of pleading a provision of law or conclusion of law. It is the intention of the framers of the Code that a pleading should state facts, and the position as in law shall be inferred if such facts are capable of raising any legal inference. The pleading should present facts in such a way that those

would irresistibly and

spontaneously draw a legal inference. Herein lies the art of pleading. To find out the law is the duty of the court. Legal effects are not to be stated by the party. In India, as in England, the duty of a pleader is to set out the facts upon which he relies and not the legal inference to be drawn from them. Likewise the conclusion of law or a mixed question of law and fact should not be pleaded.

10.

(iii) Not evidence: In like manner evidence has to be avoided in pleadings. We have noticed the wording of the rule of O. 6, R. 2 to wit, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be but not the evidence by which they are to be proved. A pleading should not contain facts which are merely evidence to prove th e material facts.

(iv) Immaterial facts to be discarded:   Unnecessary details are the facts which are not material and, therefore, should be discarded.

(v) Deficiency in pleading:   Parties are related to each other and know everything. No element of surprise has been caused to the other party. Parties understood the case and led evidence accordingly. Deficiency in pleading would not affect case of the plaintiff [ Kailash Chandra v. Vinod, AIR 1994 NOC 267 (MP)].

GENERAL PRINCIPLES OF DRAFTING ALL SORTS OF DEEDS AND CONVEYANCING AND OTHER WRITINGS Drafting of legal documents is a skilled job. A draftsman, in the first instance, must ascertain the names, description and addresses of the parties to the instrument. He must obtain particulars about all necessary matters which are required to form part of the instrument. He must also note down with provision any particular directions or stipulations which are to be kept in view and to be incorporated in the instrument. The duty of a draftsman is to express the intention of the parties clearly and concisely in technical language. With this end in view, he should first form a clear idea of what these intentions are .

When the draftsman has digested the facts, he should next consider as to whether those intentions can be given effect to without offending against any provision of law. He must, therefore, read the introductory note, or, if time permits, the literature on the subject of the instrument. A corporate executive, therefore, must note down the most important requirements of law which must be fulfilled while drafting complete instrument on the subject. Validity of document in the eye of law cannot be ignored and at the same time the facts which should be disclosed in the document cannot be suppressed. Nothing is to be omitted or admitted at random. Therefore, knowledge of law of the land in general and knowledge of the special enactments applicable in a particular situation is an essential requirement for a draftsman to ensure that the provisions of the applicable law are not violated or avoided.

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For example, in cases where a deed to be executed by a limited company, it is necessary to go into the question as to whether the company has got power or authority under its memorandum to enter into the transaction. A limited company can do only that much which it is authorised by its memorandum. Further, a company being a legal entity, must necessarily act through its authorised agents. A deed, therefore, should be executed by a person duly authorised by the directors by their resolution or by their power of attorney. It is also to be ensured that the format of documents adopted adheres to the customs and conventions in vogue in the business community or in the ordinary course of legal transactions. For any change in the form of such document, use of juridical and technical language should invariably be followed. The statements of negatives should generally be avoided. The order of the draft should be strictly logical. Legal language should be, to the utmost possible extent, precise and accurate. The draft must be readily intelligible to laymen. All the time the draftsman must keep his eye on the rules of legal interpretation and the case-law on the meaning of particular words and choose his phraseology to fit them. Document should be supported by the schedules, enclosures or annexures in case any reference to such material has been made in that. In addition to above facts, following rules should also be followed while drafting the documents:

(i) Fowlers’ five rules of drafting According to Fowler, “anyone who wishes to become a good writer should endeavour, before he allows himself to be tempted by more showy qualities, to be direct, simple, brief, vigorous and lucid.”

The principle referred to above may be translated into general in the domain of vocabulary as follows: (a) Prefer the familiar word to the farfetched (familiar words are readily understood). (b) Prefer the concrete word to the abstract (concrete words make meaning more clear and precise). (c) Prefer the single word to the circumlocution (single word gives direct meaning avoiding adverb and adjective). (d) Prefer the short word to the long (short word is easily grasped).

12.

(e) Prefer the Saxon word to the Roman (use of Roman words may create complications to convey proper sense to an ordinary person to understand). (f) Always prefer active voice to the passive voice in the drafting of documents.

(ii) Sketch or scheme of the draft document The first rule on which a draftsman must act is this-that before his draft is commenced, the whole design of it should be conceived, for if he proceeds without any settled design, his draft will be confused and incoherent, many things will be done which ought to be done and many left undone which ought to be done. He will be puzzled at every step of his progress in determining what ought to be inserted and what is to guide him in his decision because he does not know what his own object is.” The importance of the above rule cannot be overemphasized and it should be observed by every draftsman.

(iii) Skelton draft and its self-appraisal After the general scheme of the draft has been conceived, the draftsman should note down briefly the matters or points which he intends to incorporate in his intended draft. In other words, he should frame what is called a “skeleton draft” which should be filled in or elaborated as he proceeds with his work. Once the draft of the document is ready, the draftsman should appraise it with reference to the available facts, the law applicable in the case, logical presentation of the facts, use of simple language intelligible to layman, avoidance of repetition and conceivable mis-interpretation, elimination of ambiguity of facts, and adherence to the use of Fowlers’ Rules of drafting so as to satisfy himself about its contents.

(iv) Special attention to be given to certain documents Certain documents require extra care before taking up the drafting. For example, it must be ensured that contractual obligations are not contrary to the law in the document, where the facts so warrant to ensure. Further, in all the documents where transfer of immovable property is involved through any of the prescribed legal modes, it is necessary to ensure the perfect title of the transferor to such property proposed to be transferred by causing investigation and searches in relation to such title done through competent lawyers or solicitors in the concerned offices of Registrar of Assurance, local authorities, Registrar of Companies (in the case of the vendor being a corporate unit) etc.

13.

In addition, the requisite permissions required under different enactments viz., Income-tax Act, Land Ceiling Laws, Companies Act, 1956, Lessor’s consent in the case of leasehold land, or any compliance desired under other Central or State Laws or personal laws etc. should be planned to be obtained in advance and recited in the documents wherever thought necessary.

(v) Expert’s opinion

If the draft document has been prepared for the first time to be used again and again with suitable modification depending upon the requirements of each case it should be got vetted by the experts to ensure its suitability and legal fitness if the corporate executive feels it so necessary. To sum up, the draftsman should bear in mind the following principles of drafting: (i) (ii) (iii) (iv) (v)

(vi) (vii) (viii)

(ix)

(x)

14.

As far as possible the documents should be self-explanatory. The draftsman should begin by satisfying himself that he appreciates what he means to say in the document. The well drafted document should be clear to any person who has competent knowledge of the subject matter. The draft must be readily intelligible to layman. The document may not be perfect because it says too much or too little or is ambiguous or contains one or more of the facts because it has to be applied in circumstances which the draftsman never contemplated. This should be avoided in the drafting of the documents. Nothing is to be omitted or admitted at random on the document that is to say negative statements should generally be avoided. Use of juridical language should be made. The text of the documents should be divided into paragraphs containing the relevant facts. Each paragraph should be self-explanatory and should be properly marked by use of Nos. of letters for clause, sub-clause and paragraphs. Schedule should be provided in the documents. Schedule is a useful part of the document and should contain the relevant information which forms part of the document. Whether any portion of the document should be put into the schedule(s) will depend upon the circumstances. The schedule is important in the document as it explains useful matters which forms part of the document and should not be ignored and should not be inserted in the body of the document. The main function of the schedule is to provide supplementary test to the document with clarity and convenience. The active voice is preferable to the passive voice, unless the passive voice in a particular connection makes the meaning more clear.

Legal Implications and Requirements Drafting of documents is very important part of legal documentation. Documents are subject to interpretation when no clear meaning could be inferred by a simple reading of the documents. The legal implications of drafting, therefore, may be observed as under:

(a) Double and doubtful meaning of the intentions given shape in the document. (b) Inherent ambiguity and difficulties in interpretation of the documents. (c) Difficulties in implementation of the objectives desired in the documents. (d) Increased litigation and loss of time, money and human resources. (e) Misinterpretation of facts leading to wrongful judgement. (f) Causing harm to innocent persons.

BASIC COMPONENTS OF DEEDS Having understood, the meaning of drafting and conveyancing it is necessary to familiarise with various terms such as deeds, documents, indentures, deed poll etc. These terms are frequently used in legal parlance in connection with drafting and conveyancing. Out of these, the meaning of deeds and documents, have a common link, and used in many a time interchangeably, but it is very essential to draw a line in between.

Deed In legal sense, a deed is a solemn document. Deed is the term normally used to describe all the instruments by which two or more persons agree to effect any right or liability. To take for example Gift Deed, Sale Deed, Deed of Partition, Partnership Deed, Deed of Family Settlement, Lease Deed, Mortgage Deed and so on. Even a power of Attorney has been held in old English cases to be a deed. A bond is also included in the wide campass of the term deed. For such an instrument covering so wide field it is difficult to coin a suitable definition. A deed may be defined as a formal writing of a non-testamentary character which purports or operates to create, declare, confirm, assign, limit or extinguish some right, title, or interest. Many authorities have tried to define the deed. Some definitions are very restricted in meaning while some are too extensive definitions. The most suitable and comprehensive definition has been given by Norten on ‘Deeds’ as follows:

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A deed is a writing  – (a) on paper, vallum or parchment, (b) sealed, and (c) delivered, whereby an interest, right or property passes, or an obligation binding on some persons is created or which is in affirmance of some act whereby an interest, right or property has been passed. In Halsbury’s Laws of England , a deed has been defined as “an instrument written on parchment or paper expressing the intention or consent of some person or corporation named therein to make (otherwise than by way of testamentary disposition, confirm or concur in some assurance of some interest in property or of some legal or equitable right, title or claim, or to undertake or enter into some obligation, duty or agreement enforceable at law or in equity or to do, or concur in some other act affecting the legal relations or position of a party to the instrument or of some other person or corporation, sealed with the seal of the party, so expressing such intention or consent and delivered as that party’s act and deed to the person or corporation intended to be affected thereby.

A deed is a present grant rather than a mere promise to be performed in the future. Deeds are in writing, signed, sealed and delivered. Deeds are instruments, but all instruments are not deeds.

Document “Document” as defined in Section 31(18) of General Clauses   Act, 1894 means any matter expressed or described upon any substance by means of letters, figures or marks, or by the more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. Illustration:

A writing is a document. Words printed, lithographed or photographed are documents. A map or plan is a document. An inscription on a metal plate or stone is a document. A caricature is a document. Thus document is a paper or other material thing affording information, proof or evidence of anything.

16.

All deeds are documents. But it is not always that all documents are deeds. A document under seal may not be a deed if it remains undelivered, e.g. a will, an award, a certificate of admission to a learned society, a certificate of shares or stocks and share warrant to bearer, an agreement signed by directors and sealed with the company’s   seal, license to use a patented article, or letters of co-ordination.

Various Kinds of Deeds Particular statutory definitions cover different sets of deeds. In the re-statement of American Law in Corpus Juris Secundum, the following kinds of deeds have been explained: A good deed is one which conveys a good title, not one which is good merely in form. A good and sufficient deed is marketable deed; one that will pass a good title to the land it purports to convey. An inclusive deed is one which contains within the designated boundaries lands which are expected from the operation of the deed. A latent deed is a deed kept for twenty years or more in man’s escritoire or strong box. A lawful deed is a deed conveying a good or lawful title. A pretended deed is a deed apparently or prima facie valid. A voluntary deed is one given without any “valuable consideration”, as that term is defined

by law, one founded merely on a “good”, as distinguished from a “valuable”, consideration on motives of generosity and affection, rather than a benefit received by the donor, or, detriment, trouble or prejudice to the grantee. A warranty deed is a deed containing a covenant of warranty. A special warranty deed which is in terms a general warranty deed, but warrants title only against those claiming by, through, or under the grantor, conveys the described land itself, and the limited warranty does not, of itself, carry notice of title d efects. Some other terms connected with deeds are of importance of general legal knowledge. These terms are mentioned herein below:

(i) Deed Pool A deed between two or more parties where as many copies are made as there are parties, so that each may be in a possession of a copy. This arrangement is known as deed pool.

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(ii) Deed Poll A deed made and executed by a single party e.g. power of attorney, is called a deed poll, because in olden times, it was polled or cut level at the top. It had a polled or clean cut edge. It is generally used for the purpose of granting powers of attorney and for exercising powers of appointment or setting out an arbitrator’s award. It is drawn in first perso n usually.

(iii) (a) Indenture  – Indenture are those deeds in which there are two or more parties. It was written in duplicate upon one piece of parchment and two parts were severed so as to leave an indented or vary edge, forging being then, rendered very difficult. Indentures were so called as at one time they are indented or cut with uneven edge at the top. In olden times, the practice was to make as many copies or parts as they were called, of the instruments as they were parties to it, which parts taken together formed the deed and to engross all of them of the same skin of parchment.

(b) Cyrographum  –  This was another type of indenture in olden times. The word “Cyrographum” was written between two or more copies of the document and the parchment was cut in a jugged line through this word. The idea was that the difficulty of so cutting another piece of parchment that it would fit exactly into this cutting and writing constituted a safeguard against the fraudulent substitution of a different writing for one of the parts of the original. This practice of indenting deeds also has ceased long ago and indentures are really now obsolete but the practice of calling a deed executed by more than one party as an “indenture” still continues in England.

(iv) Deed Escrow A deed signed by one pa rty will be delivered to another as an “escrow” for it is not a perfect deed. It is only a mere writing (Scriptum) unless signed by all the parties and dated when the last party signs it. The deed operates from the date it is last signed. Escrow means a simple writing not to become the deed of the expressed to be bound thereby, until some condition should have been performed.

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Components of Deeds The usual parts or components or clauses of deeds in general are mentioned as follows: (1) Description of the Deed Title. (2) Place and Date of execution of a Deed. (3) Description of Parties to the Deed. (4) Recitals. (5) Testatum. (6) Consideration. (7) Receipt Clause. (8) Operative Clause. (9) Description of Property. (10) Parcels Clause. (11) Exceptions and Reservations. (12) Premises and Habendum. (13) Covenants and Undertakings. (14) Testimonium Clause. (15) Signature and Attestation. (16) Endorsements and Supplemental Deeds. (17) Annexures or Schedules

Engrossment and Stamping of a Deed The draft of document is required to be approved by the parties. In case of companies it is approved by Board of Directors in their meeting or by a duly constituted committee of the board for this purpose by passing requisite resolution approving and authorising of its execution. The document after approval is engrossed i.e. copied fair on the non-judicial stamp-paper of appropriate value as may be chargeable as per Stamp Act. In case document is drafted on plain paper but approved without any changes, it can be lodged with Collector of Stamps for adjudication of stamp duty, who will endorse certificate recording the payment of stamp duty on the face of document and it will become ready for execution. If a document is not properly stamped, it is rendered inadmissible in evidence nor it will be registered with Registrar of Assurances.

DRAFTING OF AGREEMENTS An agreement which is enforceable at law is called a contract. Generally when a contract is reduced to writing, the document itself is called an agreement. A company has to execute countless commercial agreements and other contracts during the course of its business. But how many company executives possess the simple, easily cultivable, yet rare acumen of concluding their contracts precisely, comprehensively and unambiguously? It is very much desirable and useful to keep in view certain important points in regard to the drafting of contracts, particularly commercial and international trade contracts.

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PROJECT PROPOSAL

PART-B

DRAFTING,

PLEADING

AND

CONVEYANCING,

PRE-TRIAL

PREPARATIONS, PREPARATION IN TRIAL PROCEEDINGS AND MOOT COURT

MOOT COURT MEMORIAL

ON THE BEHALF OF PETITIONER

S.S.JAIN SUBHODH LAW COLLEGE MOOT COURT COMPETITION-2017 MEMORIAL ON BEHALF OF THE PETITIONERS BEFORE THE HON’BLE SUPREME COURT OF INDIANA

WRIT PETITION No._____/2017

IN THE MATTER OF:-

1) MLRC, LEGAL RESEARCH CENTER 2) ACCESS, NGO ….. PETITIONERS

VERSUS

1) UNION OF INDIANA ….. RESPONDENTS

MEMORENDUM ON THE BEHALF OF THE PETITIONERS

TABLE OF CONTENTS

SR. No.

22.

CONTENTS

PAGE NO.

1.

ABBREVIATIONS

23

2.

INDEX OF AUTHORITIES

24

3.

STATEMENT OF JURISDICTION

25

4.

SUMMARY OF FACTS

5.

ISSUES FOR CONSIDERATION

6.

ARGUMENTS ADVANCED

7.

PRAYER

26-27 28 29-40

41

LIST OF ABBREVIATIONS

A.I.R

All India Reporter

Ors.

Others

SC

Supreme Court

Art.

Article

Co.

Company

Raj.

Rajasthan

UP

Uttar Pradesh

CSCeGov I.T. Act

CSC e-governance Services India Ltd. Income Tax Act, 1961

DSCI

Data Security Council of Indiana

JePS

Janadhar enabled payment services

UIDAI Kms.

23.

Unique Identification Authority of Indiana Kilometers

INDEX OF AUTHORITIES CONSTITUTION/STATUTES/RULES REFERRED 

Article 21 of the Constitution of Indiana



Article 14 of the Constitution of Indiana



Article 19 (1)(a) and 19 (2) of the Constitution of Indiana

BOOKS, DIGESTS, COMMENTARIES 

DR. J.N PANDEY , Constitution Law of India , 51st Edition, Central Law Agency, 20 14



PROF. M.P JAIN Indian Constitution Law 6th Edition

published by Lexis Nexis

Butterworth Wadhwa Nagpur 

DR.DURGA DAS BASU Constitution of India 20th edition published Butterworth Wadhwa Nagpur



DR. G.P. TRIPATHI Constitutional Law 1st edition 2013

WEBSITES REFERRED: 

www.scconline.com



www.manupatra.com



www.lexisnexis.com



www.bloomsburgycollection.com

CASES REFERRED: •

Justice K.S. Puttaswamy (Retd.) v/s Union of India and Ors.

•

Binoy Visman v/s Union of India

•

State of U.P. v/s Sunil

•

Shankaria v/s State of Rajasthan A.I.R. 1978 SC

by Lexis Nexis

STATEMENT OF JURISDICTION

The Hon'ble Supreme Court of Indiana has the jurisdiction in this matter under Article 32 of the Constitution of Indiana which reads as follows: "32. Remedies for enforcement of rights conferred by this Part1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed 2. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

25.

STATEMENT OF FACTS 

The republic of Indiana got independence from Britica on 15th September, 1946. Indiana was a colony for about 150 years. On getting Independence, it enacted its constitution which provided for a democratic parliamentary form of governance with a federal structure based on the principles of free and fair elections, equality, liberty, fraternity, transparency and accountability of the state and freedom of religion as its core values.



The higher judiciary is made the guardian and interpreter of the Indian Constitution and hence the power of Judicial review of the laws and actions of the government is given to higher judiciary.



The government of Indiana formulated a policy named “Janadhar” for profiling its citizens and to provide them a card named “Janadhar Card”. The janadhar card was

meant to identify citizens for various benefits given by the government.



MLRC, a Legal Research Center, has approached Hon’ble Supreme Court of Indiana,

through a Public Interest Litigation against the Union of Indiana contending that the collection of Biometric Data for the purpose of Janadhar Card violates Article 21 of the Constitution of Indiana which grants “Right to Privacy” as a fundamental right.



The Hon’ble Supreme Court taking into consideration the gravity of t he same, have

decided to hear the matters jointly and the notice was issued to the Union of Indiana.

26.



An another petition filed by ACCESS, an NGO before the Hon’ble Supreme Court has

contended that Janadhar Card is mandatory by government to avail the benefits under various social welfare schemes. The non availability of Janadhar Card denies the citizens to access the benefits of various social welfare schemes which clearly violates the fundamental right of equality and also defeats the purpose of welfare state enshrined under the Directive Principles of State Policies given in Constitution of Indiana.

27.

ISSUES FOR CONSIDERATION

1. WEATHER JANADHAR CARD SCHEME VIOLATES ARTICLE 21 OF THE CONSTITUTION OF INDIANA ?

2. WEATHER

JANADHAR

CARD

CONSTITUTION OF INDIANA ?

28.

SCHEME

VIOLATES

ARTICLE

14

OF

STATEMENT OF ARGUMENTS

1. Whether the Janadhar card scheme violates Article 21 of Constitution of Indiana ? Yes, the janadhar card scheme violates Article 21 of the Constitution of Indiana which deals with Right to Privacy. Not everyone understands what privacy means which makes the privacy debate more difficult. And those who do may interpret it differently. One of the earliest definitions comes from Warren and Brandeis, who, in a 1890 paper, described privacy as a “right to be left alone” In that sense, privacy is not necessarily about

hiding something or keeping stuff secret. In 1975, Altman describes privacy as “selective control of access to the self”. This implies that privacy concerns an individual’s ability to control what personal information is

disclosed, to whom, when and under what circumstances. Some suggest that the social context and culture determines the meaning of privacy: what is considered private in one part of the world may not be so in the other. Helen Nissenbaum proposed the idea of contextual integrity wherein boundaries allow individuals to control the transfer of personal information. But there are multiple boundaries, not one, which she calls “context based boundaries.”

Article 21 of The Constitution of Indiana read as follows:“A citizen has the right to safeguard the privacy of his own, his family, marriage,

procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent weather truthful or otherwise and weather laudatory or critical. If he does so, he would be violating the right of the concerned and woul d be liable in action for damages.”

29.

Privacy from government Traditionally, privacy has been understood in terms of surveillance by the state. Given that the government enjoys influence over the state machinery and have coercive powers related to law enforcement, mass surveillance is in a contest with the basic tenets of a liberal democracy.

“The right of privacy against the State is thus premised on the idea of personal freedom.” It’s a trade-off Privacy is often at loggerheads with national security and the benefits of big data. Governments justify surveillance programmers by claiming that the information gathered about citizens would help in fighting terrorism. But that comes at the cost of their privacy. Given that both “national security” and “privacy” are vaguely defined, it is pointed out that “there is no clarity on when one gives way to the other, and it is undeniably th e rhetoric of national security that invariably overwhelms privacy.” Inadequate privacy protection can

have significant consequences- ranging from identity theft, and increased profiling and discrimination of individuals, to a loss in speech due to an ensu ring “chilling effect”. Privacy protections are thus required not only from the state but also from the private sector. In fact a recent Nasscom- DSCI survey showed that inadequate data protection frameworks were causing losses worth billions of dollars to the Indian IT-BPO sector, in part because India’s data protection regime was not considered adequate by the EU. The narrowest view of privacy is the technical ‘data security’ point of view. The focus there

is on what data need to be secure (the janadhar number, demographic information or biometrics), weather data stored in the Central Identities Data Repository is secure (such as the encryption standards or the probability of hacking) and what would the consequences of data breaches be (for instance, some people ask what is the harm if an janadhar number is publicly displayed). The response of the Unique Identification Authority of India (UIDAI) and others is that data are encrypted using the highest standards, that access is severely restricted, and that, in any case, there have been no security breaches so far.

30.

Experts, however, believe that for centralized databases the question is not whether it can be hacked, but when. For instance, when this database is hacked  – and it will be  – it will be because someone breaches the computer security that protects the computers actually using the data.”

For instance, recently Hindustan Times reported that 200 students in Mumbai replicated their fingerprints on a widely-used resin to fudge biometric attendance. Easy harvesting of biometrics traits and publicly-available janadhar numbers  increase the risk of  banking fraud. In the light of this emerging financial technology infrastructure which rides on janadhar and biometrics, the recent ‘janadhar leaks’ scandal (whereby janadhar numbers of lakhs of people were displayed on government portals) is significant.

The emerging JePS architecture opens the door to identity theft. Even in the absence of data breaches, that is an alarming breach of privacy.

A second privacy concern is from the “personal integrity” point of view, the discomfort from

information about our lives being available to people or institutions with whom we do not wish to share it. Some believe that this interpretation of privacy is an elitist concern. Veteran journalist Shekhar Gupta tweeted, “Crores of Rural and Urban poor see Janadhar as a tool of empowerment. They don’t even know elite Anti -Janadhar echo chambers exist and they don’t care. Such frivolous comments are an attempt to trivialize the debate on privacy.

Taking into consideration of the same a recent tweet made by the government department with account named @CSCeGov a picture was uploaded by this twitter account in which ACE cricketer M.S. Dhoni’s Fingerprints are getting scanned into the system. A picture of the

details was also uploaded on which aggression of an anger was made by his wife Sakshi as she twitted to Shri Ravi Shankar Prasad (Minister of Elections and Information Technology) and after getting the knowledge of same Shri Ravi Shankar Prasad himself admitted that “Sharing personal information is illegal and serious action will be taken” which clearly

31.

proves that the picture of the application along with picture of the famous cricketer M.S. Dhoni was intentionally uploaded and if the same can be intentionally uploaded than how can we believe that our personal information cannot be leaked or be theft or can be misused ?

Further, a marketing company working for the Republican National Committee accidentally left sensitive personal details of almost 62 per cent of the US Popluation exposed which was reported as the largest breach of electoral data in US till date. Along with the information on about 200 million U S Citizens’ homes, addresses, birthdates, phone numbers and political

views. The information also included analysis used by political groups to predict where individual voters fall on controversial issues such as gun ownership, stem cell research and the right to an abortion. The same information was stored in spread sheets uploaded to the server by Deep Root Analytics, the huge cache of data was discovered last week by Chris Vickery, a cyber analyst with the security company Up-Guard.

Further More, another data breach happened. This time sensitive and personal data of millions of transporters in Sweden, along with the nation’s military secrets, have been exposed, putting every individual’s as well as national security at risk.

Who exposed the Sensitive data ? the Swedish Government itself.

The data breach exposed the names, photos and home address of millions of Swedish citizens, including fighter pilots of Swedish Airforce, members of the m ilitary’s most secretive units and much more.

The janadhar card policy which also includes the same as names of individuals asnd family members, photos, addresses, contact numbers and in addition The I RI S Scan and

F ingerprints of the I ndividual.

32.

If these kind of scandals and leaks can take place in which the government itself has leaked the personal information or the data has been hacked or the information has been mistakenly uploaded than what makes us believe that our data/personal information are safe with the government departments i.e. UIDAI ? Intentionally or unintentionally or by mistake it will happen and when it will happen the public will have to suffer the consequences.

Therefore providing the biometric data is totally contrary to the Article 21 of the Constitution of Indiana and clearly violates Right to Privacy a fundamental right.

Further, coming to next point of view , and according to Section 139AA of the Act (herein referred to as Income Tax Act 1961) reads as under: Quoting of janadhar number. (1) Every person who is eligible to obtain janadhar number shall, on or after the 1st day of July, 2017, quote janadhar number : (i) in the application form for allotment of permanent account number; (ii) in the return of income:

Provided that where the person does not possess the Janadhar Number, the Enrolment ID of Janadhar application form issued to him at the time of enrolment shall be quoted in the application for permanent account number or, as the case may be, in the return of income furnished by him.

Every person who has been allotted permanent account number as on the 1st day of July, 2017, and who is eligible to obtain janadhar number, shall intimate his janadhar number to such authority in such form and manner as may be prescribed, on or before a date to be notified by the Central Government in the Official Gazette : Provided that in case of failure

to intimate the Janadhar number, the permanent account number allotted to the person  shall be deemed to be invalid and the other provisions of this A ct shall apply, as if the  person had not applied for allotment of permanent account number.

33.

The provisions of this section shall not apply to such person or class or classes of persons or any State or part of any State, as may be notified by the Central Government in this behalf, in the Official Gazette 1. The cursory look at the aforesaid provision makes it clear that in the application forms for allotment of PAN as well as in Income Tax Returns, the assessee is obliged to quote Janadhar card number. The right to life covers and extends to a person’s

right to protect his or her body and identity from harm. The right to life extends to allowing a person to preserve and protect his or her finger prints and iris scan. The strongest and most secure manner of a person protecting this facet of his or her bodily integrity and identity is to retain and not part with finger prints/iris scan.

The right to life under Article 21 read with Article 14 and 19 permits every person to live life

to the fullest and to enjoy freedoms guaranteed as fundamental rights, Constitutional Rights, Statutory Rights and common law rights.

1. For the purposes of this section, the expressions:-

(i)

 Janadhar number, Enrolment and resident shall have the same meanings respectively assigned to them in clauses (a), (m) and (v) of section 2 of the Janadhar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 (18 of 2016); Writ Petition (Civil) No. 247 of 2017 & Ors.  Page 2

(ii)

 Enrolment ID means a 28 digit Enrolment Identification Number issued to a resident at the time of enrolment.

The Section 139AA of the Income Tax Act, 1961 for mandatory of quoting of Janadhar Card/enrolment ID of Janadhar Application form, for filing of Income Tax Return- is unworkable. This is because of Janadhar by its very design and by its statue is “voluntary”

and creates a right in favour of a resident without imposing any duty. There is no compulsion under the Janadhar Act to enroll or to obtain a number. If a person chooses not to enroll, at the highest, in terms of Janadhar Act, he or she may be denied access to certain benefits and services funded through Consolidated Fund of India This is necessitated on any such applications for PAN or Return of Income on or after July 01, 2017, which means form that date quoting janadhar card number for the aforesaid purpose becomes essential. Proviso to sub-section (1) gives relaxation from quoting janadhar card number to those persons who do not possess janadhar number but already applied for issuance of janadhar card number. The challenge is to the compulsive nature of provision in as much as with the introduction of the aforesaid provision, no discretion is left with the income tax assessee insofar as the janadhar act is concerned.  Although the janadhar act

 prescri bes that enrolment under the said act is voluntary and gives a choice to a person to enroll or not to enroll himself and obtain janadhar card, this compulsive element thrusted in Section 139AA of the Act makes the said provision unconstitutional. Biometric information, specifically finger prints and iris scan are intimate parts of a person’s

body. They belong to the person, not the state. According to Jhon Locke, “Through the Earth, and all inferior Creatures be common to all men , Yet every man has a property in his

own person and Salmond reminds us that he speaks “of a man’s right to preserve his own  property i.e his life, liberty and estate” As Peter Benson notes in ‘Philosophy of Property Law’ , “The right of bodily integrity is , first of all, a right i.e. it refers to the fact that each

individual has the rightful exclusive possession and use of his or her own body as against everyone else.

When the Janadhar enrolment procedure is supposedly based on  Informed free consent and

is Voluntary a person cannot be compelled by another law to waive free consent so as to alter the voluntary nature of enrolment that is engrafted in the parent statue.

35.

The right of a resident under parent Act cannot be converted into a duty so long as the provisions of Janadhar act remains as they are.

This clash or collision between Section 139AA of the Act and the Janadhar Act renders the impugned section unworkable, unreasonable and void because of discriminatory object. The provision is violative of Articles 14, 19 and 21. Converting the right into duty is colourable exercise of power.

A statutory provision that completely takes away the voluntary nature of janadhar and compels  Expropriation of a person’s finger and iris scan is per se violative of Article 21. In any event such coercion cannot be imposed on legitimate tax payers and assessee who are otherwise willing to and pay income tax. There is no concept of eminent domain of the state Qua a person and his body. The state cannot hold an individual citizen  Hostage, by compelling them to be part with something that does not belongs to state.

In a digital world, the right to life includes maintaining personal autonomy through informational self determination. An individual must be allowed to limit what he or she wants to put out because otherwise her personal autonomy could get compromised.

The coercion amounts to compelled speech. The freedom of speech includes the right to remain silent. Hence the citizen is being compelled to speak or part with his or her demographic information as well as finger prints and iris scan. The impugned provision violates Article 19(1)(a) and is not saved under Article 19(2).

On its part, Section 30 of the Janadhar Act, 2016 read with Section 43A of the Information Technology Act, recognizes “biometric information” to be a sensitive personal data or

information. The recognition of the distinction between an individual or person and the state is single most important factor that distinguishes a totalitarian state from one that respects individuals and recognizes their special identity and entitlement to dignity.

36.

The Indiana Constitution does not establish a totalitarian state but creates a state that is respectful of individual liberty and constitutionally guaranteed freedoms. The constitution of Indiana is not a charter of servitude.

2. Whether the janadhar card scheme violates Article 14 of Constitution of Indiana ? YES, the Janadhar Card Scheme violates Article 14 of the Constitution of Indiana. Article 14 of Indiana uses two expressions “Equality before Law” and “Equal

Protection of Law”. Both these expressions aim at establishing what is called “Equality of Status” in the preamble of Constitution. Equality before law is somewhat

a negative concept implying the absence of special privilege in favour of individuals and the equal subject of all classes to ordinary law. The objective which preamble secures to every citizen is E quality- of Status and of opportunity; and to promote

among them all. But the Central Government has made Janadhar, the unique Identification number mandatory for at least 108 schemes and services. Without janadhar we cannot access to these schemes. These includes availing a mid day meal at school or even receiving cash assistance as a TB Patient. The government says making janadhar card mandatory will discourage fraud and ease distribution of subsidy, but the Supreme Court says it cannot be requirement of Welfare Schemes. Of the 108 services for which janadhar card is required, all, barring 21, are welfare schemes. It is also pertinent to mention that these schemes are time barred i.e. there is a limitation of time for linking the individual janadhar card with the scheme in which individual is interested in. If the janadhar card is not linked with the scheme/service interested than interested individuals will not be able to avail benefit of the welfare schemes. There will be no extension and the doors to avail benefit of welfare schemes will automatically be closed.

37.

The denying individuals to avail benefits of Social welfare schemes who are not in possession of janadhar itself made discrimination among the citizens and violated the right of Equality. The provisions stipulated by Central Government and Janadhar Card are contrary to each other.

Certain points regarding this issue 

One provision says that linking janadghar card is mandatory and the other says that enrolment of janadhar is voluntary. In this issue the one who suffers is the “individual”.



The janadhar card is meant to be a unique identity of the individual but at the time of non availability of janadhar card other documents were also treated as the same.



The individuals who are in need of availing benefits of government welfare schemes are not getting the same due to lack of availability of janadhar card which again creates inequality among them.



The individuals who are the main sufferers of non availability of janadhar card are mainly those people who are on and below the poverty line.



Due to non availability of janadhar card the one who are in need to avail benefits of the scheme are being snatched by those individuals who are in possession of janadhar card.

The main sufferings of the individuals are as below :

Firstly problem in getting the ration and consumable items which are available at very low prices.

38.



Another problem is that the fingerprints of a small fraction of the population may be unsuitable for automatic identification because the prints may be deformed as a result of aging, some genetic condition, or environmental reasons.



On an interview in the villages of Adulatpura, Amamrpura, Kanpura, Rahanpura, it was found that the villagers keep on waiting on the ration shops and most of them were of elder age and includes women. There were alos a few construction workers in the queue. Dakhu Devi, Ananda Singh, Ganga Devi, was among those whose fingerprints could not be authenticated. Badarji, an elderly from Kanpura , left his ration card and

 janadhar card with I rfan Ali after five unsuccessful attempts to authenticate his fingerprints. “Din bhar pareshan, anghoota bhi na mile”. They hassle us the whole day, and finger prints does not match

 said badarj i, as he went away.

Badami devi complained about the

connectivity and malfunctioning of the device. 

Raju singh, an 18 year old migrant construction labourer working in Bhilwara 150 kms away who was visiting home in Daulatpura, said he had to get his ration card made thrice after his address was wrongly recorded as Shergarh panchayat. But after that trouble, when he tried to use his  janadhar, the biometric machine read it someone else’s ration card, a “seeding” error. When I showed it to officials, “they said your janadhar

has got linked to someone else ’s ration card”. They gave him no further help, he said. 

In Masuda in Ajmer, while several like Singh suffer from “seeding errors”, there are thousands whose welfare details have not been “seeded” at all.

This makes them ineligible for benefits.

39.



In Rajasthan, a beneficiary’s household details have to be additionally

seeded in Bhamashah scheme, the state direct benefits transfer programmed riding on technical infrastructure created for janadhar. Only when these processes are complete can an janadhar holder receive a subsidy, benefit or a cash transfer. 

The law is abides the citizens who wish to pay taxes but do not wish to enroll in janadhar. The amendment to the I.T. Act introduced as part of the Finance Bill during the recent budget session of parliament  – discriminates between those who have janadhar and those who do not want to get janadhar , both classes of people want to pay taxes, but those who do not wish to get janadhar will face Penal Consequences, a clear violation of Article 14 of Constitution of Indiana which guarantees Right to Equality.

From the above discussion it is ample clear that the individuals who are in possession of janadhar are availing benefits of the Social welfare schemes and those who are not in possession of janadhar are being deprived of benefits of Social Welfare schemes which is a clear violation of Right to Equality which is guaranteed under Article 14 of Constitution of Indiana. The government on one side is snatching away the privacy of individuals by compelling them to be enrolled in Janadhar and on the other hand not being enrolled in janadhar will deprive them by their very nature to avail benefits of Social welfare schemes and even having janadhar card they are deprived to avail benefits of social welfare schemes due to in authentication of Biometric data. The government cannot have both the ways as first snatching the privacy of Individuals and making the needy people deprived of the Social welfare schemes just on the plea that they are not in possession of janadhar card.

40.

PRAYER

Wherefore, in the light of facts presented, issues raised, arguments advanced the counsels for the Petitioner humbly pray before this Hon’ble Court that it may be pleased to adjudge

and declare that: (a) The Janadhar scheme is a clear violation of article 21 of The Constitution of Indiana and this scheme should be declared unconstitutional. (b) The Janadhar scheme is a clear violation of Article 14 of The Constitution of Indiana and the doors of Social Welfare Schemes should be opened for every individual without any discrimination on the basis of Janadhar Scheme. (c) Pass any other order which the Hon’ble Court may deem fit in the interest of justice, equity and good conscience. AND FOR THIS ACT KINDNESS OF YOUR HONOUR THE PETITIONER SHALL AS DUTY BOUND SHALL EVER PRAY.

All of which is respectfully affirmed and submitted

Counsels for Petitioners

41.

PROJECT PROPOSAL

PART-C

DRAFTING,

PLEADING

AND

CONVEYANCING,

PRE-TRIAL

PREPARATIONS, PREPARATION IN TRIAL PROCEEDINGS AND MOOT COURT

MOOT COURT MEMORIAL

ON THE BEHALF OF RESPONDENTS

S.S.JAIN SUBHODH LAW COLLEGE MOOT COURT COMPETITION-2017 MEMORIAL ON BEHALF OF RESPONDENTS BEFORE THE HON’BLE SUPREME COURT OF INDIANA

WRIT PETITION No._____/2017

IN THE MATTER OF:-

3) MLRC, LEGAL RESEARCH CENTER 4) ACCESS, NGO ….. PETITIONERS

VERSUS

2) UNION OF INDIANA ….. RESPONDENTS

MEMORENDUM ON THE BEHALF OF THE RESPONDENTS

TABLE OF CONTENTS SR.NO.

44.

CONTENTS

PAGE NO.

1

ABBREVIATIONS

2

INDEX OF AUTHORITIES

3

STATEMENT OF JURISDICTION

48

4

SUMMARY OF FACTS

49

5

ISSUES FOR CONSIDERATION

50

6

SUMMARY OF ARGUMENTS

51-52

7

ARGUMENTS ADVANCED

53-57

8

PRAYER FOR RELIEF

45

46-47

58

ABBREVIATIONS

A.I.R

ALL INDIA REPORTER

SC

SUPREME COURT

Art.

Article

Sec.

Section

GOVT.

Government

U.P.

Uttar Pradesh

M.P.

Madhya Pradesh

PIL

Public Interest Litigation

T.N.

Tamil Nadu

Edn.

Edition

45.

INDEX OF AUTHORITIES

I.

CONSTITUTION/ STATUTES/ RULES   

II.

The Constitution of Indiana, 1950 I.T. Act 2000 Aadhaar Act 2016

TABLE OF CASES

S.NO

NAME OF THE CASE

CITATION

1

A.K. Gopalan v. State of Madras

A.I.R. 1950 SC 27

2

Kharak Singh v. State of Uttar Pradesh

A.I.R. 1963 SC 1295

3

Ram Narayan Singh v. Delhi

A.I.R. 1953 SC 277

4

Govind v. State of M.P.

A.I.R. 1975 SC 1379

5

Maneka Gandhi v. Union of India

A.I.R. 1978 SC 597

6

R.RAjgopal v. State of T.N.

(1994)6 SCC 632

7

Mr ‘X’ v. Hospital ‘Z’

A.I.R. 1995 SC 495

8

Mrs. ‘X’ v. Mr. ‘Z’

A.I.R. 2002 Delhi 217

9

Malak Singh v. State of Punjab

A.I.R. 1981 SC 760

10

M.P. Sharma V. Satish Chandra

A.I.R. 1954 SC 300

11

People Union for civil Liberties v. Union of India

A.I.R. 1997 SC 568

12

Justice K.S. Puttaswamy v. Union of India

A.I.R. 2015 SC 3081

13

SuchitraSrivastava v. Chandigarh Administration

A.I.R. 2010 SC 235

14

R M Malkani v. State of Maharasthra

(1973) 1 SCC 471

15

Kharak Singh v. State of U.P.

A.I.R. 1963 SC 1295

16

AIR India v. NargisMirza

A.I. R. 1981 SC 1829

17

Assutush Gupta v. State of Rajasthan

(2002) SCC

46.

BOOKS , DIGESTS, COMMENTARIES

III.

1. M.P. Jain. , Indian Constitution Law (LaxisNexis , New Delhi , 7 th Edn, 2015) 2. V.N. Shukla , Constitution of India (Eastern Book Co., New Delhi 12 th Edn; 2013) 3. Dr. J. N. PANDAY, Constitutional Law of India ( Central Law Agency ; 54 th Edn. 2017)

IV.



Black’s Law Dictionary .



Bryan A. Garner , Black’s law Dictionary (9 th Edn., 2009)

V.

47.

DICTIONERIES

WEBSITE REFFERRED



www. scc. online .com



www.Manupatra. com.



www.Supreme Court of India.

STATEMENT OF JURISDICTION

The petitioner has approached this Hon’ ble Supreme court of INDIANA for writ petition under article 321, of the constitution of INDIANA.

32. Remedies for enforcement if rights conferred by this part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed (2) The supreme court shall have power to issue direction or orders or writs , including writ 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 b y 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 provided for by this Constitution”.

1

Article 32, Constitution of Indiana, 1950

STATEMENT OF FACTS

1. INDIANA is a union of state and is a secular state and which is a democratic country.The Constitution of INDIANA provides fundamental and Constitutional rights to its people. 2. Republic of INDIANA has its independent and autonomous Election Commission and Judiciary of INDIANA is also autonomous and independent. 3. The higher judiciary is made the guardian and interpreter of the INDIANA Constitution and hence the power of judicial review of the laws and actions of the government is given to the higher Judiciary. 4. The government of INDIA NA formulated a policy named “ Janadhar” for profiling of its citizens and to provide them a card called “Janadhar Card”. The Janadhar Card was meant to identify citizens for various benefits given by the government. 5. MLRC, a legal research center, has approached the Honorable supreme court of Indiana, through a Publicinterestpetition, against the union of Indiana, contending that the collection of biometric data for the purpose of the Janadhar card , violates “the right to privacy”  of the citizens. The  petitioner contends that this is a violation of article 21 of the constitution of INDIANA a whichgrants“Right to privacy” as a fundamental right. 6. In another petition filed by ACCESS, an NGO working on the issues regarding civil and  political rights of citizens, before Honorable Supreme Court that Janadhar Card denies the citizens the access to the benefits under various social welfare schemes. The petitioner alleged that non availability of Janadhar card denies the citizens the access to the benefits under various social welfare schemes, which is clear violation of fundamental “right to equality” as guaranteed  by the Constitution of INDIANA. 7. The NGO has contended that by denying citizens access to scheme also defeats the basic  purpose of welfare state enshrined under the directive principles of state policies given constitution of INDIANA.

49.

.

ISSUES FOR CONSIDERATION

1. WHETHER THE PRESENT WRIT PETITION IS MAINTINABLE

OR NOT? 1.1 Whether the Janadhar card policy of Govt. is violating the Art.21 which grant

“right to privacy” or not?

1.2 Whether the non-availability of Janadhar card violates the Art. 14 which provides

“Right to Equality” ?

2. WHETHER THE “JANADHAR CARD” IS   CONSTITUTIONAL OR NOT?

3. WHETHER THE NON AVAILABILTITY OF JANADHAR CARD LEADS

TO

VIOLATION

OF

ARTICLE

14

OF

THE

CONSTITUTION OF INDIA AND DIRECTIVE PRINCIPLES?

50.

SUMMARY OF ARGUMENTS

1. WHETHER THE PRESENT WRIT PETITION IS MAINTINABLE OR NOT? The writ is not maintainable in Hon’ble Supreme Court of Indiana on the ground of not violation of Art. 21 and Art.14 of the Constitution of Indiana which grant “Right to Privacy” and “Right of Equality”. 1.1 Whether the Janadhar card policy of Govt. is violating the Art.21 which grant “right to privacy” or not?

The Janadhar Card policy of Govt. of Indiana if not violating the Art.21 which grant “Right to Privacy”. The information taken by Govt. of Indiana for making Janadhar card is only general information and the Govt. not share this information with any person. The Govt. of Indiana use this information only. 1.2 whether the non-availability of Janadhar card violates the Art. 14 which providies “Right to Equality” :-

The non-availability of Janadhar card not violates the Art.14 which grant “ Right to Equality”. Because the Janadhar   card policy is available for all the citizen of Indiana. This scheme is mandatory for all the citizen of Indian. The Govt. is not doing discrimination on ground of religion, race , caste , sex or place of birth. So Janadhar card policy is not violates the Art. 14.

51.

2. WHETHER THE JANADHAR CARD SCHEME SHOULD BE DECLARED UNCONSTITUTIONAL OR NOT ?. The Janadhar Card scheme of Indiana should not be declare unconstitutional because it is not violating the Art. 21 and Art.14 of Constitution of Indiana. Janadhar Card scheme was taken by Govt. of Indian to provide an unique identity. This scheme is for  proving direct benefits to its citizen. It will stops corruption in social welfare scheme of govt. This scheme is in large interest of public.

52.

ARGUMENT IN ADVANCE

1. WHETHER THE PRESENT WRIT PETITION IS MAINTINABLE OR NOT? The present PIL which is filed in Supreme Court under the Art.32 1 of Indiana Constitution,  by MLRC, A Legal Research Center, against the Union of Indiana, that the collection of  biometric data for purpose of Janadhar card, violation of Art.212  of constitution of Indiana which grants “Right to Privacy” as a fundamental Right. The present PIL which is filed in SC is not main table. Because to taking biometric data for Janadhar card is not violates the ‘Right of Privacy’. Another Writ which is filed by ACCESS, an NGO which say that Janadhar card is made mandatory by Govt. of Indiana to avail the benefits under various social welfare schemes, non-availability of Janadhar card violates the Art. 14 which grant “Right to Equality”. This scheme is not violates the Art.14 because it is for all the citizen of Indiana.

1.1Whether the Janadhar card policy of Govt.

is violating the Art.21

which grants “right to privacy” or not? Art.21- Protection of life and personal liberty. No person shall be deprived of his life or

 personal liberty except according to procedure established by law. ‘Personal Liberty’ include the freedom of movement which grant Art.19 (1) (d)3. The restriction can be imposed by detention law on the freedom of movement must be reasonable under Art.19 (5) 4.

1

Article 32,Constitution of Indiana,1950

2

Art.21, Constitution of Indiana,1950

3

Art.19(1)(d), Constitution of Indiana, 1950

4

Art.19(5), Constitution of Indiana,1950

In Kharak Sing v. State of U.P. 1 and Govind v. State of M.P. 2. In both case S.C. held that the  police is also have right to surveillance on any person it will depend on the character and antecedents of a person. Surveillance of police is also violation the Art.21 and Art.19 (1) (d)  but it is reasonable when a person is in bad nature and antecedent. In this situation reasonable restriction applicable in security of nation and in good faith of society.

Right to Privacy:-

“Right to Privacy” is not specially defined in Constitution of Indiana. In R. Rajagoplan v. State of T.N. 3 In this case SC has expressly held the “Right to Privacy” or the right to be let alone is guaranteed by Art.21 of the Constitution. A Citizen has a right of safeguard the Privacy of his own, his family, marriage, procreation, motherhood, childhood and education, among other matter. None can publish this data without concerning of that person. This rule is subject to an example that if any publications of such matter are based on public record including the court record it will be unobjectionable. If a matter becomes a matter of  public records the ‘right of privacy’ no longer exists.

In Mr. X Hospital ‘Z’ 4 The SC has held that although the “right of privacy” is a fundamental right under Art.21 of the Constitution of Indiana , but it is not a absolute right and restriction can be imposed on it for the prevention of crime , disorder or protection of health or morals or protection of rights and freedom of other.

In Ms. X v. Mr. Z 5 In this case SC held that the right of privacy, through a fundamental right forming part of life enshrined Art.21, is not as absolute right. When the right of privacy has become a part of a public document, in that case a person can’t say that it infringe his or her right to privacy.

1

AIR 1963 SC 1295

2

AIR 1975 SC 1379

3

(1994) 6 SCC 632

4

AIR 1995 SC 495

5

AIR 2002 Delhi 217

In Malak Sing v. State of Punjab 1 SC held that the police officer to keep surveillance over bad characters and habitual offence for the purpose of preventing crimes . That person cannot demand that it is violation of Art.21 and Art.19 (1) (d).

People’s Union for civil Liberties v. Union of India .2. SC held that Telephone tapping is a serious invasion of an individual’s; it is violation of “Right to Privacy”. But in emergency or interest of public safety it is valid.

RIGHT TO PRIVA CY AND JANADHAR CARD In Justice K.S. Puttaswany v. Union of India .3

The Janadhar card scheme of the Govt. of Indiana, under which the Govt. of Indiana was collecting and compiling both the demographic and biometric data of residents of the country to be used for various purpose, this collection of data is not violation of right to privacy. It was decided on behalf of these judgments. SC Judgment in M.P. sharma v. Satish Chandra 4 and Kharak Sing v. State of U.P. 5 It was decided by eight or six judge bench respectively and Govind v. State Of M.P. ;R.Rajagoplan v. state of Tamil Nadhu7 .

6

It was decided that Right to Privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Art.21 A citizen has a right to safe guard the privacy of his own home, his family, marriage,  procreation, motherhood, child bearing and education among other matters. If any publish this without consent than it is violation of right of privacy. Taking data for making Janadhar card all information taken by Govt. are the basic information which aslo be given by us in making voter id , driving license, opening a bank account , on Fb , What’s up etc. so it is not violation of right to privacy.

1

AIR 1981 SC 760

2

AIR 1997 SC 568

3AIR 2015 SC 3081 4

AIR 1954 SC 300

5

AIR 1963 SC 1295

6

AIR 1975 SC 1379

1.2 Whether the non-availability of Janadhar card violates the Art. 14 which provides “Right to Equality” :-

As a petition filed by an NGO working on the issue regarding civil and political rights of Citizen that non availability of Janadhar card violates the Fundamental right “Right to Equality”. Right to Equality- The state shall not deny to any person equality before the law or equal  protection of law within the territory of India. Prohibition on discrimination on ground of religion, race , caste, sex or place of birth. The Janadhar card is for all citizens of Indiana .The Janadhar card Scheme is not violates the Right to Equality because it is mandatory for all the citizen of Indian. Govt. of Indiana is not doing discrimination on the ground of religion, race, caste, sex or pl ace of birth. This scheme is in welfare of society. This scheme is for providing direct benefit of social welfare scheme to citizen of Indiana.

2

WHETHER THE JANADHAR CARD SCHEME SHOULD BE DECLARED UNCONSTITUTIONAL. The Janadhar Card scheme should not be declared as unconstitutional because it is not violating the Art. 21 and Art.14 of the Constitution of Indiana which grants “Right to Privacy” and “Right to Equality” as a fundamental right. The Janadhar card is a scheme which provides a unique identification number of a  person. The biometric data taken by Govt. to make a Janadhar Card it is a Unique identity of its citizen. This scheme issues a proof to its citizen as they are resident of Indiana. Janadhar Card is a identity proof for its citizen. This scheme taken by Govt. that to give direct benefit of to its citizen. As like Subsidies, food grain, and many direct  benefit to its people. By this scheme direct benefit of social schemes provided to its citizen directly. It will stop corruption in social welfare schemes of govt.

56.

This scheme is in a large public interest, where the govt. has all information about its citizen whenever they need to cheek than they can get information about it. It has  biometric data which is useful to police to catch criminals. The Govt. of Indiana adding all the documents to Janadhar card as like Bank Account, PAN Card, SIM Card etc. It helps to Govt. to reducing Black money in country. All information related to Janadhar Card is Secure to Govt. of Indiana. The Govt. of Indiana will use the information in large interest of public, in security of country. The Govt. use this information in public welfare, it will not share it to any other so it is not violation of “Right to Privacy”. The Janadhar Card scheme is for all citizen of Indiana so it is not violates the “Right to Equality”.  The Govt. is not doing discrimination in providing Janadhar Card to its Citizen. This scheme is for providing benefits of social welfare scheme of Indiana. So it should not be declare as Unconstitutional. The Govt. of Indiana is able to protect the information or biometric data of Janadhar Card. It ensure that here data is safe of Janadhar Card. Chapter VI- of Janadahar Act. Provide the protection of information. It will not share the  personal information to ant other. Chapter VII- IF any people does any unauthorized access or tries to theft the information that there is also provision for penalties.

57.

PRAYER Wherefore, in the light of the facts started , issue , raised , argument advanced and authorities citied , it is most humbly prayed by the Responded in this matter that the Hon’ble Supreme court of Indiana , be pleased to:-

1. Dismiss the Present PIL on this ground that taking biometric data for the purpose of making ‘Janadhar Card is not violating the Art.21 Which grant the “Right of Privacy”.

2. Dismiss another petition also on this ground that non availability of Janadhar Card is not violating the Rigth of Equality.

3. Declare that Janadhar Card Scheme of Govt. is Constitution and make the Janadhar Card mandatory for all Citizen of Indiana in welfare of Citizen and in large public interest.

and / or

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience For this act of kindness, the Responded shall forever humbly pray.

Place: Respectfully Submitted by,

Date:…………

58.

Counsels for the Respondents

PROJECT PROPOSAL

PART-D

DRAFTING,

PLEADING

AND

CONVEYANCING,

PRE-TRIAL

PREPARATIONS, PREPARATION IN TRIAL PROCEEDINGS AND MOOT COURT

LEADING CASE

Food Corporation of India vs. M/S. Thakur Shipping Co. Ltd. & Ors,

1975 AIR 469, 1975 SCR (3) 146

STATEMENT OF FACTS

The appellant chartered two ships belonging to the 2 respondents for carrying rice from Thailand to India. The Charter-party provided inter alia that any dispute should be referred to 2 arbitrators one to be nominated by the owners and the other by the Charterers. The appellant made claims against one respondent for damages for short delivery, and against the other for damages for short delivery and damage in respect of the consignment of rice. The appellant, thereafter, suggested to one of the respondents to agree to arbitration’ by a single arbitrator, but there was no response from that respondent. The appellant also wrote to the agents of the other respondent urging them to take steps for referring the dispute, but the appellant only got evasive replies. The appellant, a few days before the claims would be barred by time, filed suits against each of' the respondents for recovery of the amounts claimed by it. The respondents applied for stay of trial of the suits under S.34 of the Arbitration Act, 1940. The trial court rejected the applications, but the High Court allowed the prayer for stay on the ground that the decision of the trial court was perve rse.

61.

JUDGEMENT

The Judgment of the Court was delivered by GUPTA, J. In these two appeals by special leave the appellant, Food Corporation of India, challenges the correctness of two orders passed by the High Court of Madras staying under sec. 34 of the  Arbitration Act two suits for damages it had instituted in the Court of the Subordinate Judge at Tuticorin. The question for consideration is whether the first respondent in each of these two appeals, who are the first defendant in the respective suits out of which these appeals arise, was " ready and willing to do all things necessary to the proper conduct of the arbitration" as required by sec. 34. This is really a question of fact and the trial court found that in neither case the defendant who applied for stay satisfied this test. On appeal, the High Court stayed the suits reversing the, decision of the trial court by two separate orders passed on the same day. Whether the High Court acted rightly would depend upon the facts and circumstances of the two cases which are essentially similar. It is necessary therefore to state briefly the facts leading to the institution of the suits. The appellant Food Corporation of India, referred to hereinafter as the Corporation, chartered two ships belonging respectively to M/s. Thakur Shipping Co. Ltd. and the Great Eastern Shipping Co. Ltd. for carrying rice from Thailand to India. The Charter-Party between the Corporation and the shipping companies contained a clause, namely clause 42, which reads as follows: The High Court pointed out that in each of these two suits the first defendant applied for stay under sec. 34 as shown as they received the summons of the suit stating in the application that they were ready and willing to have the dispute settled by arbitration. The High Court held that the requirement of sec. 34 is satisfied if the defendant expresses his willingness to go to arbitration at the earliest opportunity after the (1) A.I.R. 1943 Cal. 481. suit is instituted; in our opinion the High Court was wrong in taking this view. Sec. 34 of the Arbitration reads: "Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings." 62.

The observation of Das J. in Subal Chandra Bhur's case, on which the High Court relied, is preceded by the following sentence: "Further, the readiness and willingness required by see. 34 of the Act has to exist at the commencement of the legal proceedings and has to continue up to the date of the application for stay".  In Anderson Wright Ltd. v. Moran and Company(1), this Court enumerating the conditions that should be fulfilled before a stay may be granted under sec. 34 notes as one of the conditions that the applicant for stay "should satisfy the court not only that he is but also was at the commencement of the proceedings ready and willing to do everything necessary for the proper conduct of the arbitration". It is thus quite clear on the authorities and from the terms of sec. 34 that the readiness and willingness must exist not only when an application for stay is made but also at the commencement of the legal proceedings. From the conduct of the first defendant in either of these two suits the trial court found that they were not ready and willing to go to arbitration at the time when the suits were instituted. This is a finding of fact and we are afraid there was no valid ground in either case for interference with this finding. From the letters written on behalf of the Corporation to the agents of the first defendant in the suit giving rise to Civil Appeal 1519 of 1974 urging them to take steps for referring the dispute to arbitration and the evasive replies sent to these letters, the trial court came to the conclusion that the first defendant was not ready and willing to go to arbitration at the time when the suit was instituted. We do not think this was an arbitrary or perverse conclusion as the High Court characterized it. In our opinion the High Court went wrong in disregarding relevant and significant material, namely, the correspondence that passed between the parties, as "innocuous" and erred in disturbing the finding of fact for no valid reason. Mr. Desai for the respondent relied on certain observations of this Court in  Michael Colodetz & Ors. v. Serajuddin and Company(1) in support of the proposition that the Court should not allow a party to an arbitration agreement to proceed with the suit in "breach of the solemn obligation to seek resort to the tribunal selected by him". It is however made clear in that decision that these observations are subject to the terms of sec. 34, one of which is that the other party to the agreement must remain "ready and willing to do all things necessary for the proper conduct of the arbitration". The legal position is explained in that decision as follows "The Court ordinarily requires the parties to resort for resolving disputes arising under a contract to the tribunal contemplated by them at the time of the contract. That is not because the Court regards itself bound to abdicate its jurisdiction in respect of disputes within its cognizance, it merely seeks to promote the sanctity of contracts, and for that purpose stays the suit.

63.

The jurisdiction of the Court to try the suit remains undisputed: but the discretion of the court is on grounds of equity interposed......... It is for the court, having regard to all the circumstances, to arrive at a conclusion whether sufficient reasons are made out for refusing to grant stay. Whether the circumstances in a given case make out sufficient reasons for refusing to stay a suit is -essentially a question of fact." For the reasons stated above we think that the, appeals must succeed. Accordingly we allow both the appeals and set aside the order of the High Court and restore that of the trial court in each of these two cases. In Civil Appeal 1519 of 1974 the appellant will be entitled to its costs in this Court and in the High Court against the contesting respondent. In Civil Appeal 1518 of 1974, considering all aspects, we direct the parties to bear their own costs throughout.

64.

JUDGEMENT ANALYSIS

(1) Under Sec. 34, one of the conditions that the applicant for stay should satisfy the court is that not only he is but also was, at the commencement of the proceedings, ready and willing to do everything necessary for the proper conduct of the arbitration. Where a party to an arbitration, agreement chooses to maintain silence in the face of repeated requests by the other party to take steps for arbitration, the case is not one of mere inaction. Failing to act, then a party is called upon to do so is a positive gesture signifying unwillingness or want of readiness to go to arbitration especially when legal proceedings in Court were about to be barred by time. In the present case, one of the respondents sent evasive replies to the appellant in reply to the appellant’s letter urging them to take steps for referring the dispute to arbitration. As regards the other respondent, the appellant’s suggestion of a sole arbitrator was contrary to the arbitration clause of the charter-party, but the appellant's deviation was not a valid excuse for that respondent to remain silent and inactive. If the respondent was ready and willing to go to arbitration, the respondent would have replied that it was not willing to any departure from the arbitration clause, but it did not send any replies to the appellant or do anything for reference of the dispute to arbitration according to the arbitration clause. The trial court found as a fact that the respondents were not ready and willing to go to arbitration at the time when the suit was instituted. Silence and inaction on their part mayin the circumstances, very well justify the inference that they were not ready and willing to go to arbitration. The conclusion was not arbitrary or perverse and the High Court was wrong in so characterizing it.

(2) It is true that a court should not allow a party to an arbitration agreement to proceed with the suit in breach of the solemn obligation to seek resort to the tribunal selected by him; but this is subject to the terms of   s.34,  one of which is that the other party to the agreement must remain 'ready and willing to do all things necessary for the proper conduct of the arbitration.

65.

PROJECT PROPOSAL

PART-E

DRAFTING,

PLEADING

AND

CONVEYANCING,

PRE-TRIAL

PREPARATIONS, PREPARATION IN TRIAL PROCEEDINGS AND MOOT COURT

COURT VISIT

LIST OF CONTENTS

PARTICULARS 1. Particulars and Dates of Visit

68

2. Purpose of Visit

68

3. Introduction

68

4. Jaipur District Court

69

5. Different Types of courts in Jaipur District Court

69

6. Structure of the court room

69

7. Function of court room staff

70

8. Hierarchy of prosecution

70

9. Cases

67.

PAGE NO.

71-74

PARTICULARS OF COURT VISIT Name: - District & Session Court, Jaipur Location: - Banipark, Jaipur

Date and Day of Court Visits Date

Day

Time

07-12-2017

Thursday

10.00 AM TO 5.00 PM

19-02-2018

Monday

10.00 AM TO 5.00 PM

Purpose of Visit The Purpose of the visit was to understand the working of a court. The nature of duties of the judicial officers. The visit was to help us understand the role of court in dispensing  justice in any case, the role of prosecutors in a case, the way cases proceed in a court, the way judges, prosecutors and defense lawyers handle the case, the relationship of the prosecutors and the police. This gave us an opportunity to understand the actual need of co-ordination in the four pillars of the justice system.

Introduction Court  – Court is an institution that the govt. sets up to settle disputes through a legal process. People come to courts to resolve their disagreements. Court decides what really happened and what should be done about it. They decide whether a person committed a crime and what the punishment should be .

District Court- The district courts of India are presided over by a judge. They administer justice in India at a district level. These courts are under administrative and judicial control of the high court of the state or the district state concerned belongs.

68.

Jaipur District CourtDistrict & Session court Jaipur district was established in 1956 itself. Court building was shifted to new building premises on 21 st March 2007 near mini Secretarial office Banipark, Jaipur.

Different Types of courts in Jaipur District Court 1. Civil Judge and Rent Controller 2. District Judge/Add. Session Judge 3. Add. District Judge 4. Family Court 5. MACT

6. Chief Metropolitan Magistrate and Metropolitan Magistrate

Structure of the court room

The court is a hall consisting of a raised pavilion which has a podium for the Honorable Judge with his reader and steno sitting on either side on the same podium. The prosecutor and the defense counsel stands on the bench near typist. Between the two counsels stands the witness & the accused stands besides the accused box. The public standing attending the trial have seats provided behind the bench where the two counsels stands.

Function of court room staff 

Reader to the Hon’ble Judge:- He maintain all the case files of the cases being heard in the

court and prompts the judge with the various cases and other documents.

69.

Steno to the Hon’ble Judge:- He records the orders of the Hon’ble Judge. Typist: - Types each and everything going in the court room.

Hierarchy of prosecution

70.



Director of Prosecution



Public Prosecutor



Chief Public Prosecutor



Additional Public Prosecutor



Assistant Public Prosecutor

CASE 1

NAME OF THE COURT - Additional Civil Judge Metropolitan Magistrate  – 10, Jaipur Name of the Presiding Officer – Hon’ble Justice Mr. Arun Godara CASE NO.  – 471/2012, U/S 379 IPC

DATE - 04/02/2012

TITLE OF THE CASE – State vs. Rahees Qureshi (Absconding Case) OBSERVATIONS - In this case, accused Rahees Qureshi was not found to police authority. The Hon’ble Court gives order to search the accused, Prosecution Witness (PW - 1) Motti

Dongri and on the report of SHO, Court declared accused absconding.

CASE 2

NAME OF THE COURT - Additional Civil Judge Metropolitan Magistrate  – 51, Jaipur Name of the Presiding Officer – Hon’ble Justice Mr. Arun Godara CASE NO.  – 775/2013, 776/13, U/S 379 IPC

DATE - 02/03/2013

TITLE OF THE CASE – State vs. Chetram (Theft Case) OBSERVATIONS

- In this case, the Prosecution witness, Om Prakash, ASI, Gandhi Nagar.

This witness was concerning to the incident that he saw the accused at the spot of site of incident. He gave evidence about site plan and arrestation of said accused.

71.

CASE 3

NAME OF THE COURT - Additional Civil Judge Metropolitan Magistrate  – 51, Jaipur Name of the Presiding Officer – Hon’ble Justice Mr. Arun Godara CASE NO.  – 1107/09, U/S 4/25, Arms Act

DATE - 02/03/2009

TITLE OF THE CASE – State vs. Shahzad OBSERVATIONS

- In this case, the Prosecution witness 5, Om Prakash, ASI, Investigating

officer, Bapu Nagar. He gave evidence about all investigation related to statement of witness site plan, arrestation of said accused and other part of the investigation. Prosecution witness 6, Rao Karan is concerning to seize meme of Motor cycle.

CASE 4

NAME OF THE COURT - Additional Session Court, Jaipur Name of the Presiding Officer – Hon’ble Justice Rekha Rathore CASE NO.  – 172/14, U/S 498A, 406 and 306 IPC

DATE - 12/02/2016

TITLE OF THE CASE – State vs. Lekh Raj (Dowry Case) OBSERVATIONS

- The victim Neelam committed suicide by hanging herself. This suicide

was thw result of continous exploitation of the victim by her husband Lekh Raj. She was being tortured by him on regular basis. According to the reports, Lekhraj & Neelam married 10 years ago and had 2 kids. KekhRaj used to drink a lot, after he tortured her who was against the drinking habit and opposed it but the accused never paid heed to his wife. As a result of which she hung herself to death. On the Present day, two witnesses were present in the court & their testimony was recorded.

72.



PW-1 Moti Devi who was the neighbour of the couple turned hostile in the court session and denied the fact that accused drunk a lot and used to torture Neelam. Moreover, she gave information regarding the problems that the victim had with her brother related to property.



PW-2 Kamla Devi who was the neighbour of the couple turned hostile in the court session and denied the facts that were any problem between the accused & the victim.

The victim was read over and explained to the accused but he denied and claimed a trial. The decision of the case is pending as many more witnesses are yet to be turned up for their respective statements in the coming days.

CASE 5

NAME OF THE COURT - Additional Civil Judge Metropolitan Magistrate  – 17, Jaipur Name of the Presiding Officer – Hon’ble Justice Mr. Arun Godara CASE NO.  – 204/15, U/S 379 IPC

DATE - 03/05/2015

TITLE OF THE CASE – State vs. Gopal (Theft Case) OBSERVATIONS - In this case, the Prosecution witness 1, Aahad Khan, DYSP. This witness was concerning to charge sheet in this case. He gives evidence about filling charge sheet in the court.

73.

CASE 6

NAME OF THE COURT - Upper District and Session Court, Jaipur Name of the Presiding Officer – Hon’ble Justice Mr. Praveen Kumar CASE NO.  – 09/13, U/S 344,370,374,378 of IPC

DATE - 12/02/2016

TITLE OF THE CASE – State vs. Mohd. Irshad and Ors. OBSERVATIONS

- This case is filed u/s 344, 370, 374 and 378 of IPC for wrongful

confinements, disposing of a person as a slave, unlawful compulsory labour & theft and u/s 23 and 26 of child Labour Prohibition and Regulation Act. As per Police Investigation Report, some children work daily from 6.00 a.m. to 11 p.m. in rigorous conditions. The charged was read over & explained to the accused but they denied & claimed another trial. The decision of the case is pending as many more witnesses are yet to be turned up for their respective statements in the coming days & many evidences are to be looked into. The court has asked the police for further investigation into the matter. The case is adjourned for the next proceeding .

74.