STATEMENT OF ARGUMENTS

ISSUE 1: WHETHER THE PETITIONS FILED BY ARE MAINTAINABLE?

It is humbly submitted that the Petitions filed X are maintainable, as, in the current case,
the petitioner has Locus Standi to file a petition against the state under Article 32.
Moreover, the current case entails instances of gross infringement of Fundamental Rights
held under Part three of the Constitution of India, 1950. Adding further, there is not
alternate remedy available to the petitioner in the case and owing to such reasonings the
petition filed must be held as maintainable.

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 ARGUMENTS ADVANCED

I. WHETHER THE WRIT PETITION FILED ARE MAINTAINABLE BEFORE THIS HON’BLE
COURT

1. It is humbly contended before this Hon’ble Court that the writ petition filed are maintainable
before this Hon’ble Court. The submissions made for the same are in a four - fold manner
being: [I.1] the petitioner has requisite locus standi to file a petition under Art. 32; [I.2]
There is violation of Fundamental Rights enshrined in Part III of the constitution; [I.3] The
Judiciary is empowered to hear such petitions; and [I.4] Exhaustion of Alternate Remedy is
not a bar.

[I.1] The petitioner has the requisite locus standi to file a petition under art. 32.

2. The general principle under Art. 32 of the Constitution is that only a person whose
fundamental rights are affected has the standing to file a petition under Art. 32.1 It is
contended that this principle, over time, has been diluted and the concept and scope of locus
standi has been widened. It has been held by the Court that to exercise its jurisdiction under
Art. 32, it is not necessary that the affected person should personally approach the Court.
The Court can take cognizance of the matter and proceed suo moto on a petition filed by a
public spirited individual or body.2
3. A writ petition in the nature of public interest can be filed in the Supreme Court under
Art.32 when there is a violation of fundamental rights. 3 In Bandhua Mukti Morcha v.
Union of India4 , the Court held that:5
a. “…when there is violation of a fundamental right of a person or a class of persons who
cannot have resort to the Court due to poverty or disability or a socially or economically
disadvantaged position, the Court must allow any member of the public acting bona fide to
espouse the cause of such person or persons and move to the Court for judicial enforcement
of Fundamental Right of such person or class of persons.”

1
M.P.Jain, Indian Constitutional Law, 1447 (6th Ed, 2013).
2
Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490.
3
M.P.Jain, Indian Constitutional Law, 1447 (6th Ed, 2013).
4
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
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5
Ibid

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4. Further, such writ petitions in the nature of public interest are now used to ventilate public
grievances where the society as a whole, rather than a specific individual, feels aggrieved.6

5. Further, where a legal wrong or legal injury is caused to a person by reason of violation of
any constitutional or legal right9 any member of public can maintain an application seeking
judicial redress for the legal wrong or legal injury caused to such person or determinate class
of persons.10 The gravity of justice from the traditional individualism to the community
orientation is a constitutional mandate enshrined in the preamble.11
6. The Supreme Court can evolve new remedies and strategies to enforce the fundamental
rights.12 If no one will have standing to challenge cases of public wrong or public injury,
then there will be no rule of law.13 A person acting bona fide and having sufficient interest
in the proceeding of public interest litigation, alone has a locus standi and can approach the
court to wipe out violation of fundamental rights and genuine infraction of statutory
provisions.14
7. In the present matter, Nabul Kuhoo being a lawyer himself has been arrested under these
provisions. It is, therefore, humbly submitted before this Hon’ble Court that the petitioners
have the locus standi as the petitioners have the legal standing in the Court of Law. The
Petitioner, approaching the Court for the interest of the under-trial prisoners, it is qualified
under the Doctrine of locus standi.
8. Further, Article 3215 provides right to move the Supreme Court, acting in a bona fide
manner, in case of violation of fundamental right, for the benefit of the society at large.
Thus, in the resent case, Nabul Kuhoo has locus standi to file petition as his fundamental
rights under article 14 and article 21 are violated and he has been apprehended arbitrarily by
the police officers.
9. Hence, in the present matter, the petitioners have the requisite locus standi to file a petition
under Art.32.

6
M.P.Jain, Indian Constitutional Law, 1447 (6th Ed, 2013).
7
¶ 5 of the moot problem.
8
Hussainara Khatoon (II) v. Home Secretary, State of Bihar, 1979 AIR 1369.
9
Banglore Water Supply and Sewage Board v. Kantha Chandra, AIR (1989) Kant.
10
SP Gupta v. Union of India, AIR (1982) SC 149.
11
Municipal Council, Ratlam v. Vardichand, AIR (1980) SC 1622.
12
BL Wadehra, Public Interest Litigation ,4 th Edition 2014.
13
SP Gupta v. Union of India, AIR (1982) SC 149.
14
B. Singh v Union of India, (2004) 3 SCC 363.
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15
INDIA CONST., Art. 32.

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 [1.2] There is violation of fundamental rights enshrined in part III of the
constitution.

10. Article 32 of Constitution provides a vital safeguard for the protection of fundamental rights
of the citizens of India and judiciary has thus been constituted to foster and protect these
fundamental rights.16 there has been violation of fundamental rights on two grounds.
11. Firstly, power given to the state under section 113 of BNS to book an individual as a
terrorist only if it believes that it is involved in terrorism is arbitrary and violates Article 14
in as much as it is manifestly arbitrary and gives unbridled powers to the Central
Government to declare and book an individual as a terrorist. It is a blanket power with no
specified guidelines. S.113 of the Act defines “terrorist act” and includes an act that is
“likely to threaten” or “intent to strike terror or likely to strike terror in the people”, gives
unbridled power to the government to brand any ordinary citizen including an activist
without these acts being actually committed. There is no requirement of giving reasons.

16
Prem Chand Garg v. Excise Commissioner of UP, AIR (1963) SC 996.

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12. Thus, it is seen that the term terrorist act (and therefore the terms “terrorist” and “terrorism”)
is firstly defined by the doing of any act with the intention to “threaten or likely to threaten
the unity, integrity, security, economic security or sovereignty of India”
13. That the term (terrorist act, terrorist and terrorism) is then defined by using the phrase “…
with intent to strike terror or likely to strike terror in the people…”
14. Therefore, the second part of the definition of the term “terrorist act” essentially says that a
“terrorist act” is an act whereby terror is caused, with no definition of terror being given in
the BNS.
15. It is submitted that this loose and almost tautological wording has impacted severely upon
the right to life and liberty of individuals, as the same opens up avenues of arbitrary actions
by the Government. It is submitted that accusing a person of having committed a “terrorist
act”, by saying the person “struck terror” cannot be sustained, in the absence of a definition
of the word “terror”.
16. In these circumstances, the term “terror” has to draw sustenance from the previous portion
of the definition, where a “terrorist act” is one which threatens “…the unity, integrity,
security, economic security or sovereignty of India”.
17. It is submitted therefore that the term is open-ended, ill-defined, and arbitrary. This
arbitrariness and lack of precision in a definition which affects the life and liberty of an
individual, cannot be sustained, and is required to be struck down.
18. Similarly the vague wording used in Section 111(6) removes the requirement of mens rea,
making individuals liable for possession without intent or knowledge, leading to potential
arbitrariness in prosecution violating Art 14
19. The Hon’ble Supreme Court in the case of Shayara Bano & Ors. v. Union of India &
Ors,19dealt with the scope of challenging validity of an enactment on grounds of being
manifestly arbitrary and observed to the following effect:
“Manifest arbitrariness, therefore, must be something done by the legislature capriciously,
irrationally and/or without adequate determining principle. Also, when something is done
which is excessive and disproportionate, such legislation would be manifestly arbitrary. We
are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as
pointed out by us above would apply to negate legislation as well under Article 14.”

19
Shayara Bano & Ors. v. Union of India & Ors., (2017) 9 SCC 1.

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20. Further, it is humbly argued before the Hon’ble Supreme Court that, the powers granted to
the state under Section 111 and 113 of BNS20 are violative of Fundamental Right as, it turns
the presumption of innocence on its head, giving the Government unfettered power to book
any individual a terrorist.
21. Therefore, it is humbly submitted to the Hon’ble Court that there is a violation of
fundamental rights enshrined under part III of the constitution.

20
(§) 113, Bhartiya Nyaya Sanhita Act, Acts of Parliament, 2024.

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 [I.3] The judiciary is empowered to hear such petitions

22. Justice delivery system has acquired a big significance in modern legal jurisprudence
practice.21 It represents sustained efforts on the part of judiciary to provide access to justice
for the deprived and vulnerable sections of the humanity. 22 Under Article 32, the Supreme
Court has original jurisdiction over all cases concerning fundamental freedoms enshrined
under Part III of the Constitution.
23. When Fundamental Rights are at stake, the Court may “not to shrug its shoulders” have the
basic duty to examine whether the relevant considerations have been borne in mind. 23 There
is an increasing willingness of the judiciary to render remedial justice to the weaker
sections.24 The scope and nature of Writ Petitions has been decisively laid down by the
Supreme Court as a challenge and an opportunity to make basic human rights meaningful to
the deprived and vulnerable sections of the community.35
24. It is therefore humbly submitted that the judiciary must accept the present petitions as the
issue involves violation of fundamental rights falls.

[I.4] Exhaustion of alternate remedy is not a bar.

25. It is humbly contended that there exists no alternate remedy. Arguendo, the mere presence
of alternate remedy is not a bar for the Courts to allow the present petition. Once the
violation of fundamental right is established, it is not only the right and power but also the
duty and obligation of the Supreme Court to see that the Petitioner’s fundamental right is
protected.26

21
Janta Dal v. H.S. Chaudhary, (1992) 4 SCC 305.
22
Guruvayur Devaswom Managing Committee v. C.K. Rajan, AIR (2004) SC 561.
23
Sachidananda Pandey v. State of West Bengal, AIR (1987) SC 109.
24
D.S. Nakara v. Union of India, AIR (1983) SC 130.
25
People’s Union for Democratic Rights v. Union of India, AIR (1986) SC 1473.
26
Baburam Prakash Chandra Maheshwari v Antarim Zila Parishad, AIR (1969) SC 556.
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26. The remedy provided by Article 32 is a fundamental right and not merely a discretionary
power of the Court.27 This right is absolute and may not be impaired on any ground. 33
Consequently, it is submitted that a refusal to entertain the instant petition would be
inconsistent with the aforesaid obligation.28 Whenever classification is held to be
impermissible and the measure can be retained by removing the unconstitutional portion of
classification, by striking down words of limitation, the Court can strike down the words of
limitation in an enactment.29
27. Also, according to the Constitutional scheme the Supreme Court and the High Courts are the
sole repositories of the power of judicial review30 and that power, being inclusive of the
power to pronounce upon the validity' of statutes has only been entrusted to the
constitutional courts.31
28. It is contended that there exists no alternative remedy in the present matter. It is only under
the jurisdiction of this Hon’ble Court that the present petition can be heard. Also, the present
petition is in the light of interest of under trial prisoners and Fundamental Right violation of
the citizens of India, in favour of whom, only this Hon’ble Apex Court can take decisions
and therefore, the Petitioner should be allowed to bring forth the petition under Article 32 of
the Constitution.
29. Assuming but not admitting the presence of an alternative remedy, it is contended that mere
existence of an adequate alternative legal remedy cannot be per se be a good and sufficient
ground for throwing out a petition under Article 32,32 if the existence of a fundamental
right33 and a breach, actual or threatened, of such right and is alleged is prima facie
established on the petition.34
30. Moreover, this Hon’ble Court has on multiple occasions expressly rejected an argument that
called for exhaustion of local remedies. 35 Article 32(4) specifically provides that this right
may not be suspended except by a constitutional provision. This self-imposed restraint is

27
Daryao v State of Uttar Pradesh, AIR (1961) SC1457; Tilokchand Motichand v H.B. Munshi, AIR (1970) SC 89.
28
Prem Chand Garg v Excise Commissioner, AIR (1963) SC 996.
29
Kharak Singh v State of Uttar Pradesh, AIR (1963) SC 129; Romesh Thappar v State of Madras, AIR (1950) SC.
30
D.S. Nakara and Ors. v Union of India, AIR (1983) SC 130.
31
L. Chandra Kumar v Union of India And Others, (1997) 3 SCC 261.
32
Kesavananda Bharati v State of Kerala, AIR (1973) SC 1461
33
State of Bombay v United Motors Ltd., AIR (1953) SC 252.
34
Harbansal Sahnia v Indian Oil Corporation Ltd., AIR (2003) SC 2120.
35
K.K. Kouchunni v State of Madras, AIR (1959) SC 725.
36
Kharak Singh v State of Uttar Pradesh, AIR (1963) SC 1295; Romesh Thappar v Madras, AIR (1950) SC 124.

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 merely a rule of convenience and discretion37 and does not oust the jurisdiction of this Court
under Article 32.38
31. Therefore, it is humbly submitted to the Hon’ble Court that the Petitions are maintainable.

37
State of Uttar Pradesh v Mohammad Nooh, AIR (1958) SC 86.
38
Mohammed Ishaq v S. Kazam Pasha, (2010) 1 SCC Cri. 721.

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