IN THE HON’BLE SUPREME COURT OF INDIA

(Constitutional Jurisdiction under Article 32 of the Indian Constitution)

IN THE MATTER OF:

Anil Sharma v. State

MEMORIAL ON BEHALF OF THE APPELLANT

TABLE OF CONTENTS
1. Cover Page
2. Table of Contents
3. List of Abbreviations
4. Index of Authorities
5. Statement of Jurisdiction
6. Statement of Facts
7. Issues Raised
8. Summary of Arguments
9. Arguments Advanced
10. Prayer
1. LIST OF ABBREVIATIONS
 NSA – National Security Act, 1980
 IPC – Indian Penal Code, 1860
 CrPC – Code of Criminal Procedure, 1973
 SC – Supreme Court
 HC – High Court
 Art. – Article
 r/w – Read with
 UAPA – Unlawful Activities (Prevention) Act, 1967

2. INDEX OF AUTHORITIES
Statutes and Constitutional Provisions:

 Constitution of India, 1950

o Article 21 – Right to life and personal liberty
 oArticle 22 – Protection against arbitrary arrest and detention
oArticle 32 – Constitutional remedies for fundamental rights
violations
 National Security Act, 1980
o Section 3 – Power to detain persons on grounds of security
 Code of Criminal Procedure, 1973
o Section 167 – Maximum period of police custody and judicial
remand
 Universal Declaration of Human Rights, 1948
o Article 9 – Protection against arbitrary arrest

Case Laws:

1. Maneka Gandhi v. Union of India (1978 AIR 597)

2. A.K. Gopalan v. State of Madras (1950 SCR 88)
3. Prem Shankar Shukla v. Delhi Administration (1980 SCR (3)
855)
4. Kartar Singh v. State of Punjab (1994 AIR 1538)
5. Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10
SCC 1
6. R.C. Cooper v. Union of India (1970 AIR 564)
7. Sunil Batra v. Delhi Administration (1978 AIR 1675)
8. Mohd. Yousuf Rather v. State of Jammu & Kashmir (AIR 1979
SC 1925)
9. D.K. Basu v. State of West Bengal (AIR 1997 SC 610)
10. A.K. Roy v. Union of India (AIR 1982 SC 710)

3. STATEMENT OF JURISDICTION
The appellant has approached the Hon’ble Supreme Court of India under Article 32 of the
Constitution, seeking redressal of violations of fundamental rights enshrined in Articles 21
and 22. The Hon'ble Supreme Court has original jurisdiction to entertain petitions
concerning fundamental rights violations under Article 32.
4. STATEMENT OF FACTS
1. The Petitioner, Anil Sharma, was detained under the National
Security Act (NSA), 1980, without being informed of the specific
charges against him.
2. Despite repeated requests by his family, the authorities failed to
disclose substantive details regarding the nature of his
detention.
3. The authorities did not produce him before a magistrate
within 24 hours, violating Article 22(2) of the Indian
Constitution.
4. The petitioner was denied access to legal counsel, thereby
violating his right to legal representation and a fair hearing.
5. The petitioner was held in detention for over 30 days without
trial or judicial scrutiny.
6. The prolonged detention without trial and procedural safeguards
violates the right to life and personal liberty under Article
21.
5. ISSUES RAISED
1. Whether the detention of Anil Sharma under the National
Security Act violates Article 21 of the Indian Constitution?
2. Whether the failure to produce the petitioner before a
magistrate within 24 hours amounts to a violation of Article 22?
3. Whether prolonged detention without trial violates the
principle of natural justice and fair trial?

6. SUMMARY OF ARGUMENTS
1. The detention of Anil Sharma under the National Security Act
is unconstitutional and violates Article 21.

 Any detention without due process must be just, fair, and

reasonable, as held in Maneka Gandhi v. Union of India
(1978).
 The NSA is a preventive detention law, but its application must
conform to constitutional safeguards.
 Arbitrary detention violates personal liberty, making the act
unconstitutional.
2. Failure to produce the petitioner before a magistrate within
24 hours violates Article 22.

 Article 22(2) mandates that a detainee must be produced

before a magistrate within 24 hours, except in preventive
detention cases where judicial scrutiny is required.
 Denial of legal counsel is unconstitutional, as upheld in Prem
Shankar Shukla v. Delhi Administration (1980).

3. Prolonged detention without trial violates the principle of

natural justice.

 Right to fair trial and hearing (audi alteram partem) is

violated.
 Denial of fair trial and prolonged detention amount to a mockery of
justice.

7. ARGUMENTS ADVANCED

ARGUMENT I: THE DETENTION OF

ANIL SHARMA UNDER THE NATIONAL
SECURITY ACT VIOLATES ARTICLE 21
OF THE INDIAN CONSTITUTION
1. Article 21: The Fundamental Right to Life and Personal
Liberty
1.1 Constitutional Guarantee Under Article 21

Article 21 of the Constitution of India, 1950, states:

"No person shall be deprived of his life or personal liberty except according to procedure
established by law."

This provision is one of the most fundamental guarantees enshrined in the Constitution,
ensuring that no person can be subjected to arbitrary state action that infringes upon their
right to life and liberty.

1.2 Evolution of Article 21 Through Judicial Precedents

The interpretation of Article 21 has evolved significantly, with the judiciary expanding its
ambit to incorporate various procedural and substantive safeguards against arbitrary
detention.

1. A.K. Gopalan v. State of Madras, AIR 1950 SC 27

o Initially, in this case, the Supreme Court interpreted Article 21 narrowly,
stating that any deprivation of liberty is valid as long as it follows the
procedure established by law, irrespective of whether the procedure is just or
not.
o However, this rigid interpretation was later overruled by judicial
pronouncements that incorporated principles of fairness, reasonableness,
and due process.
2. Maneka Gandhi v. Union of India, AIR 1978 SC 597
o This landmark case expanded the scope of Article 21, holding that the phrase
"procedure established by law" must be fair, just, and reasonable, and not
arbitrary or oppressive.
o The Supreme Court ruled that laws affecting personal liberty must conform to
the principles of natural justice and due process of law.
o This case overruled A.K. Gopalan’s restrictive interpretation and ensured
that no law could arbitrarily deprive a person of liberty.
3. R.C. Cooper v. Union of India, AIR 1970 SC 564
o The Court held that fundamental rights must not be interpreted in isolation
but must be read together to ensure maximum protection to citizens.
o It reinforced that government actions affecting personal liberty must
satisfy constitutional tests of reasonableness.
4. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1
o The Supreme Court affirmed that right to privacy is an intrinsic part of
personal liberty under Article 21.
o The judgment emphasized that state action must not be arbitrary and must
have a legitimate purpose that is proportionate to the restriction imposed.

1.3 Preventive Detention Under the National Security Act (NSA) and Its
Constitutional Limitations

The National Security Act, 1980 (NSA) is a preventive detention law that allows the state
to detain individuals on vague and broad grounds related to national security, public order,
or the maintenance of essential services.
1.3.1 Broad and Arbitrary Powers under the NSA

 Section 3(2) of the NSA gives power to the Central and State governments to detain
individuals on mere suspicion of acting in a manner prejudicial to the security of the
state or the maintenance of public order.
 This wide discretionary power makes the NSA prone to misuse and arbitrary
application, leading to violations of fundamental rights.

1.3.2 Lack of Procedural Safeguards and Judicial Oversight

 Unlike criminal law, where an accused is given an opportunity to be heard,

preventive detention under the NSA does not require the detaining authority to
provide specific charges or evidence.
 The detainee is not entitled to a trial, and no immediate judicial review is
available to challenge the detention.
 This violates the principle of audi alteram partem (right to be heard), a
fundamental tenet of natural justice.

1.3.3 Violation of Due Process and Reasonableness

 Due process is an essential safeguard that ensures fairness in legal proceedings.

 The NSA allows detention without formal charges, violating the requirement of
just, fair, and reasonable procedure laid down in Maneka Gandhi v. Union of
India.
 In Sunil Batra v. Delhi Administration, AIR 1978 SC 1675, the Court ruled that
arbitrary imprisonment violates the dignity and personal liberty of individuals,
emphasizing the necessity of procedural fairness.

1.4 Application to the Present Case: Violation of Article 21 in Anil Sharma’s

Detention

The detention of Anil Sharma under the NSA violates Article 21 in the following ways:

1.4.1 Absence of a Fair, Just, and Reasonable Procedure

 Anil Sharma was detained without being informed of specific charges, making the
detention arbitrary and devoid of due process.
 As per Article 21, any restriction on personal liberty must follow a fair and
reasonable procedure.
 The denial of procedural safeguards, including legal representation and judicial
oversight, makes the detention unconstitutional.

1.4.2 Violation of the Right to a Fair Trial

 The denial of judicial scrutiny for over 30 days amounts to unconstitutional

deprivation of liberty.
 Mohd. Yousuf Rather v. State of Jammu & Kashmir, AIR 1979 SC 1925, held
that preventive detention must not substitute for criminal prosecution, and its use
must be strictly monitored.
1.4.3 Unchecked Executive Discretion

 Unfettered executive discretion under the NSA allows authorities to circumvent

due process, effectively suspending fundamental rights without judicial
accountability.
 Kartar Singh v. State of Punjab, (1994) 3 SCC 569, ruled that laws that provide
excessive discretionary powers to the executive must be subject to strict judicial
scrutiny.

2. International Human Rights Perspective

2.1 Universal Declaration of Human Rights (UDHR), 1948

 Article 9 of the UDHR states:

“No one shall be subjected to arbitrary arrest, detention, or exile.”
 The NSA’s vague and broad provisions violate international human rights norms.

2.2 International Covenant on Civil and Political Rights (ICCPR), 1966

 Article 9(4) of the ICCPR states:

“Anyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings before a court.”
 The lack of immediate judicial review in NSA detentions contravenes this
international obligation.

3. Conclusion
 The detention of Anil Sharma under the NSA violates Article 21, as it is
arbitrary, lacks procedural safeguards, and denies him a fair trial.
 The failure to ensure due process violates Supreme Court rulings in Maneka
Gandhi, Sunil Batra, and Kartar Singh.
 The unchecked executive discretion under the NSA is unconstitutional, as it leads
to arbitrary deprivation of liberty.
 The detention also violates international human rights norms, making it legally
unsustainable.

ARGUMENT II: THE DETENTION OF

ANIL SHARMA VIOLATES ARTICLE 22
OF THE INDIAN CONSTITUTION
1. Introduction: Safeguards Under Article 22
Article 22 of the Indian Constitution, 1950, provides protection against arbitrary arrests
and detentions. It ensures that no individual is deprived of their personal liberty without
adherence to certain fundamental safeguards, especially in cases involving preventive
detention.

1.1 Text of Article 22

Article 22 provides for two distinct categories of protection:

1. Protection in cases of ordinary arrests (Clauses 1 and 2):

o Any person arrested must be informed as soon as possible of the reasons for
their arrest.
o They must be produced before a magistrate within 24 hours of arrest.
o They must have the right to consult and be defended by a legal practitioner
of their choice.
2. Protection in cases of preventive detention (Clauses 3 to 7):
o No person can be detained beyond 3 months unless an Advisory Board,
consisting of High Court judges, reviews the detention and approves it.
o The detained person must be informed of the grounds of detention and
must have an opportunity to make a representation against it.
o However, if disclosure of certain facts is deemed against the public interest,
the government may withhold such information.

1.2 The Objective of Article 22

The purpose of Article 22 is to strike a balance between the State’s need to ensure security
and the individual’s fundamental rights.

 While it permits preventive detention, it does so under strict safeguards to prevent

arbitrary executive action.
 Unrestricted preventive detention would render Article 21 meaningless, as it
would allow the State to detain individuals without proof of wrongdoing.

2. Preventive Detention and Judicial Interpretation

2.1 Fundamental Rights Must Be Read Together

In R.C. Cooper v. Union of India, AIR 1970 SC 564, the Supreme Court held that
fundamental rights are interconnected and must be read harmoniously to ensure a
cohesive interpretation of the Constitution.

 The protections of Articles 21 and 22 must be read together to ensure that no

person is deprived of their liberty without due process.
2.2 Maneka Gandhi v. Union of India, AIR 1978 SC 597

 The Supreme Court held that any procedure established by law must be just, fair,
and reasonable.
 Preventive detention laws cannot override fundamental rights unless they strictly
comply with constitutional safeguards.

2.3 A.K. Roy v. Union of India, AIR 1982 SC 710

 The Supreme Court ruled that while preventive detention laws are constitutional,
they must comply with Article 22 safeguards.
 It emphasized that detained individuals must have access to legal representation.

2.4 Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535

 The Supreme Court ruled that preventive detention cannot be used as a substitute
for punitive action, as it denies the detainee a fair trial.

3. Violations of Article 22 in the Present Case

The detention of Anil Sharma under the NSA violates multiple provisions of Article 22,
making it unconstitutional:

3.1 Violation of Article 22(1): No Communication of Grounds of Arrest

 Article 22(1) mandates that every arrested person must be informed of the grounds
of their arrest as soon as possible.
 In the present case, Anil Sharma was detained without being informed of specific
charges, violating this constitutional requirement.
 This denial of information prevents him from preparing a legal defense, violating
principles of natural justice.

Judicial Precedents:

 State of Punjab v. Ajaib Singh, AIR 1953 SC 10 – The Supreme Court ruled that
non-communication of grounds of arrest renders the detention illegal.
 Joginder Kumar v. State of U.P., (1994) 4 SCC 260 – The Court ruled that grounds
of detention must be clearly communicated to the detainee to allow a meaningful
representation.

3.2 Violation of Article 22(2): Failure to Produce Before a Magistrate

 Article 22(2) states that any detained person must be presented before a
magistrate within 24 hours.
 In this case, Anil Sharma was not produced before a magistrate, violating this
requirement.
Relevant Case Laws:

 Khatri v. State of Bihar, AIR 1981 SC 928 – The Supreme Court ruled that failure
to produce an arrested person before a magistrate within 24 hours is an
unconstitutional deprivation of liberty.
 D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 – The Court held that
producing a detainee before a magistrate is a non-negotiable constitutional
requirement.

3.3 Violation of Article 22(3) & (4): Prolonged Detention Without Judicial
Review

 Anil Sharma has been detained for more than 30 days without being presented
before an Advisory Board, violating Article 22(4).
 Preventive detention beyond three months requires approval from an Advisory Board
consisting of High Court judges.
 The absence of independent judicial review makes this detention constitutionally
invalid.

Judicial Precedents:

 Habeas Corpus Case (ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207) –
Though initially permitting unrestricted executive detention, this case was overruled
by later judgments emphasizing due process.
 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 – The Court held that state
actions affecting liberty must pass the tests of necessity, proportionality, and
legality.

3.4 Violation of Article 22(5): Denial of Right to Legal Representation

 Article 22(5) states that a person detained under preventive detention laws must
be given an opportunity to challenge the detention.
 Anil Sharma was not provided access to legal counsel, violating this constitutional
safeguard.

Judicial Precedents:

 A.K. Roy v. Union of India, AIR 1982 SC 710 – The Court ruled that preventive
detention laws must allow detainees to make a representation.
 Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 – The Court emphasized
the right to legal aid as a fundamental aspect of Article 21 and 22.

4. International Law Perspective

4.1 Universal Declaration of Human Rights (UDHR), 1948

 Article 9 – No one shall be subjected to arbitrary arrest, detention, or exile.

  Article 10 – Everyone is entitled in full equality to a fair and public hearing by an
independent tribunal.

4.2 International Covenant on Civil and Political Rights (ICCPR), 1966

 Article 9(2) – Anyone who is arrested shall be informed, at the time of arrest, of the
reasons for his arrest.
 Article 14(3) – Every accused person shall have the right to legal assistance.

5. Conclusion
 The detention of Anil Sharma under the NSA is unconstitutional, as it violates
multiple provisions of Article 22.
 The denial of legal representation, failure to provide reasons for detention, and
absence of judicial review make the detention legally unsustainable.
 The use of preventive detention laws as a substitute for criminal prosecution is
impermissible.
 Judicial precedents and international human rights norms confirm that this
detention must be declared void.

ARGUMENT III: THE DETENTION OF

ANIL SHARMA UNDER THE NATIONAL
SECURITY ACT (NSA) IS ARBITRARY,
DISPROPORTIONATE, AND VIOLATES
THE PRINCIPLES OF NATURAL
JUSTICE

1. Introduction: Rule of Law and Arbitrary Detention

The Rule of Law is a fundamental principle enshrined in the Indian Constitution. The
doctrine of arbitrariness was laid down in E.P. Royappa v. State of Tamil Nadu, AIR 1974
SC 555, where the Supreme Court held that arbitrariness is antithetical to equality and
due process. Any executive action taken without reasonable justification is
unconstitutional.

In the present case, the detention of Anil Sharma under the National Security Act (NSA)
is:

1. Arbitrary, as there is no clear and reasonable justification for his detention.

2. Disproportionate, as the NSA is an extreme measure meant for serious threats to
national security, not for ordinary law and order issues.
3. A violation of principles of natural justice, as the detainee was not given an
opportunity to be heard or defend himself adequately.

Thus, the detention order must be struck down as unconstitutional.

2. Arbitrariness in the Exercise of Preventive Detention

Powers
2.1 What Constitutes Arbitrariness?

Arbitrariness in preventive detention arises when:

 The detention is based on vague, unreasonable, or extraneous grounds.

 The detaining authority fails to establish a real and imminent threat to national
security.
 The detainee is not informed of the reasons for detention.

2.2 Supreme Court’s Position on Arbitrariness in Preventive Detention

 Maneka Gandhi v. Union of India, AIR 1978 SC 597

o The Supreme Court held that any law depriving a person of liberty must be
just, fair, and reasonable.
o In the present case, the detention under NSA does not meet these
requirements.
 Kartar Singh v. State of Punjab, (1994) 3 SCC 569
 o The Court ruled that national security laws must not be misused against
individuals who do not pose a real threat.
o In Anil Sharma’s case, there is no concrete evidence of an actual security
threat, making his detention arbitrary.
 State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75
o The Court emphasized that classification under security laws must not be
arbitrary.
o If preventive detention is misused to target individuals without proof of
wrongdoing, it violates Article 14 (Right to Equality).

2.3 Lack of Substantive Evidence Against Anil Sharma

 The authorities have failed to provide a clear justification for his detention under
the NSA.
 No imminent threat to national security has been established.
 This indicates that the detention is based on mere suspicion and not on objective
criteria, violating the principle of legality.

Conclusion:
Since the detention is arbitrary, unjustified, and lacks a rational nexus with national
security, it must be declared unconstitutional.

3. Disproportionality of the Preventive Detention Order

3.1 Doctrine of Proportionality in Constitutional Law

The doctrine of proportionality requires that:

1. The state action must be necessary and appropriate for achieving the intended
objective.
2. There must be a rational connection between the means employed and the
objective sought.
3. The action must not be excessive or unduly harsh.

3.2 Supreme Court’s Application of the Doctrine of Proportionality

 Modern Dental College v. State of Madhya Pradesh, (2016) 7 SCC 353

o The Supreme Court ruled that any restriction on fundamental rights must
be the least restrictive means available.
o Preventive detention is one of the most extreme measures available and
should be used only as a last resort.
 KS Puttaswamy v. Union of India, (2017) 10 SCC 1
o The Court laid down a four-pronged test for proportionality, requiring that:
1. The measure must have a legitimate aim.
2. The measure must be necessary.
3. The measure must be the least restrictive option.
4. The benefits of the measure must outweigh the harm caused.
3.3 Applying the Proportionality Test to Anil Sharma’s Case

1. Legitimate Aim – While national security is a legitimate aim, the detention order
does not provide specific evidence that Anil Sharma poses a direct security
threat.
2. Necessity – The use of the NSA against an individual without substantial evidence
is unnecessary.
3. Least Restrictive Option – The government could have used ordinary criminal law
procedures instead of preventive detention.
4. Balancing Benefits and Harm – The harm to Anil Sharma’s fundamental rights
outweighs any potential benefit to national security.

Conclusion:
Since the detention is disproportionate and excessive, it must be struck down as
unconstitutional.

4. Violation of Principles of Natural Justice

4.1 Core Principles of Natural Justice

1. Nemo judex in causa sua (No one should be a judge in their own case)
o The executive cannot detain an individual without independent judicial
oversight.
2. Audi alteram partem (Right to be heard)
o Every individual must be given an opportunity to present their defense
before being deprived of liberty.

4.2 Violation of Natural Justice in Anil Sharma’s Case

 No Right to be Heard – Anil Sharma was not given an opportunity to contest the
detention order before an independent authority.
 No Reasonable Opportunity to Present a Defense – He was not informed of the
specific grounds of detention, violating his right to effective representation.
 No Judicial Oversight – The lack of review by an independent authority violates
the basic tenets of fair procedure.

4.3 Supreme Court Rulings on Natural Justice in Preventive Detention

 Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851

o The Supreme Court ruled that administrative actions affecting fundamental
rights must comply with principles of natural justice.
 A.K. Kraipak v. Union of India, AIR 1970 SC 150
o The Court ruled that violations of natural justice render administrative
decisions void.
 State of Maharashtra v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613
o The Court held that preventive detention laws must not violate principles of
natural justice, even when enacted for national security.
Conclusion:
The denial of a fair hearing, lack of transparency, and absence of judicial oversight
make the detention unconstitutional.

5. International Law Perspective on Arbitrary Detention

5.1 International Covenant on Civil and Political Rights (ICCPR), 1966

 Article 9(1) – No one shall be subjected to arbitrary arrest or detention.

 Article 9(4) – Anyone who is deprived of liberty shall be entitled to challenge the
lawfulness of their detention before a court.

5.2 Universal Declaration of Human Rights (UDHR), 1948

 Article 10 – Everyone is entitled to a fair and public hearing by an independent

tribunal.

Since India is a signatory to these international conventions, the detention of Anil

Sharma violates international human rights norms.

6. Conclusion
 The detention is arbitrary, as it lacks substantive evidence and justification.
 The use of the NSA is disproportionate, as it is an extreme measure meant for
actual threats to national security.
 The denial of procedural fairness and violation of natural justice render the
detention unconstitutional.
 International human rights laws reinforce the need for a fair hearing and judicial
review.
8. PRAYER
Wherefore, in light of the facts, issues, and arguments advanced, the appellant humbly prays
that this Hon'ble Court may be pleased to:

1. Declare the detention of Anil Sharma under the National

Security Act as unconstitutional and direct his immediate
release.
2. Hold that the failure to produce the petitioner before a
magistrate within 24 hours violates Article 22(2) of the
Constitution.
3. Direct the government to ensure stricter adherence to
constitutional safeguards in cases of preventive detention.
4. Pass any other order as deemed fit in the interests of
justice.

And for this act of kindness, the appellant shall ever be grateful.

Respectfully Submitted
On Behalf of the Appellant