CHANAKYA NATIONAL LAW UNIVERSITY GENERAL INTRA MOOT COURT

COMPETITION-2018

R 33
TEAM CODE:

BEFORE THE HON’BLE SUPREME COURT OF BHARAT

IN THE MATTERS OF:

LT. COL. HOSHIYAR SINGH …PETITIONER NO.1

THE UNION OF BHARAT …PETITIONER NO.2

VS.

STATE OF DRAS …RESPONDENT NO.1

NATIONAL HUMAN RIGHTS COMMISSION …RESPONDENT NO.2

WRIT PETITION NOS. 15211 OF 2018

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF BHARAT IN CASE CONCERNING

WRIT UNDER ARTICLE 32 OF THE CONSTITUTION OF BHARAT AND CONSTITUTIONAL

VALIDITY OF SPAFA,2016

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS

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TABLE OF CONTENTS

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

LIST OF ABBREVIATIONS ....................................................................................................ii

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

STATEMENT OF JURISDICTION......................................................................................... iv

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

ISSUES RAISED .....................................................................................................................vii

SUMMARY OF ARGUMENTS ........................................................................................... viii

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

[A]. THAT THE WRIT PETITION FILED IN THE SUPREME COURT OF BHARAT IS
NOT MAINTAINABLE ........................................................................................................ 1

[A.2] That the alternate remedy was not exhausted ........................................................... 1

[B] THAT FIR AGAINST COMMANDANT AND JCO SHOULD NOT BE QUASHED ......................... 3

[C] THAT ENACTMENT OF SPAFA, 2016 WAS UNCONSTITUTIONAL IN STATE OF DRAS AND
THERE SHOULD BE IMMEDIATE WITHDRAWAL OF TROOPS FROM DRAS .................................... 7

D. THAT THE FAMILY OF THE VICTIM SHOULD BE GRANTED MONETARY COMPENSATION ..... 10

E. INVESTIGATION SHOULD BE HANDED OVER TO AN INDEPENDENT AGENCY ....................... 11

PRAYER .................................................................................................................................. 12

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LIST OF ABBREVIATIONS

¶ Para

¶¶ Paras

SPAFA Special Powers to the Armed Forces Act

JCO Junior Commissioned Officer

NHRC National Human Rights Commission

FIR First Information Report

B.P.C Bharat Penal Code

W.P. Writ Peition

Art. Article

F.I.R First Information Report

JCO Joint Commissioner Officer

Const. Constitution

Cr.P.C. Criminal Procedure Code

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INDEX OF AUTHORITIES

Constitution

 Constitution of Bharat

Cases

Bhim Singh Vs State of J & K., (1985)4 Sec. 677 AIR 1986 SC 494. ..................................... 10
Extra Judicial Execution Victim Family Association & Anr. Vs. Union of India & Anr., W.P.
(Crl.) 129 of 2012, ¶125 ........................................................................................................ 4
Naga People’s Movement of Human Rights vs. Union Of India, AIR 1998 SC 431................. 6
Rashid v. I.T.I. Commission, A.I.R 1954 S.C. 207. ................................................................... 2
Saheli Vs Union of India, AIR 1990 SC 513. .......................................................................... 10
Sebastian M. Hongray Vs. Union of India, (1984)3 SCR 544................................................. 10
State of Haryana vs Bhajanlal, AIR 1992 SC 604 .................................................................... 3
State of Maharashtra Vs Ravi Kant Patil, (1991)2 SC 3C3: AIR 1991 SC 871. .................... 10
Union of India v. T.R. Verma, A.I.R 1957 S.C. 882 .................................................................. 2

Statutes

 Bharat Penal Code

 Special Powers to the Armed Forces Act

 Criminal Procedure Code, 1986

Books

 D.D. BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA ( LEXIS NEXIS 2015)

 D.D. BASU, CODE OF CRIMINAL PROCEDURE (4TH ED. LEXIS NEXIS 2010)

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STATEMENT OF JURISDICTION

I. The petitioners have approached this Hon’ble Supreme Court under Article 32 of the
Constitution. The Respondent No. 1 humbly submits to the jurisdiction of this Hon’ble Court.

II. The petitioners have approached this Hon’ble Court under Article 32 of the
Constitution. The Respondent No. 2 humbly submits to the jurisdiction of this Hon’ble Court.

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STATEMENT OF FACTS

1. Bharat is a diverse democratic nation having 28 states and surrounded by 7

countries out of which 3 are hostile nations namely Dushanbe, Mingora, and
Kashgar which formed an organisation called “DuMiKa”. Bharat, in order to settle
their differences with DuMiKa organized a bilateral negotiation in which DuMiKa
demanded major part of the state of Dras, which holds hostile tribe known as
“Azaad” which strongly opposes Bhartian government and supports the ideologies
of hostile nations. Due to heavy revolt of the tribe, Bhratian Government passed a
new legislation on 1st April, 2016 which was called SPAFA, 2016. Soon after
implementation, army camps were attacked resulting in heavy casualities.
2. Army was also occupied in sanitising some disturbed areas of Dras and regular
searches were conducted leading to reports of ill-treatment of women and children
and also killing of tribals by the army. Reports were also being published against
the military with the heading “Criminals in Uniform”. This media report sparked
a debate in the legislative assembly of Dras on 13th January, 2018 and the
opposition recommended the chief minister and his cabinet asking to recommend
to the central government to revoke the act.
3. On 15th January, 2018, an army convoy consisting of 25 Non-Commissioned
Officers and 7 JCO, headed by Lt. Col. Hoshiyar Singh, Commandant of the
battalion, was passing through the tribal area occupied by Azaad tribe. The
attackers started pelting stone and threw petrol bombs on the vehicle and burnt
them. Commandant ordered firing in the air to disperse the mob. A group of
attackers tried to snatch AK-47 of a JCO to which the JCO resisted and this irked
the attackers who inflicted knife blow upon the JCO and hit the soldier on his
head with wooden sticks. Commandant, on seeing this, fired a shot on the
attackers who were attacking the JCO which hit one of the attackers and on
sustaining bullet injuries, the attacker died.
4. NHRC along with the Government of state of Dras lodged an FIR against the
commandant, Lt. Col. Hoshiyar Singh and the JCO under sections
147,307,302,323,326,336,341/34,120B of the BPC.

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5. Commandant moved the Supreme Court under Art. 32 of the Constitution of India
seeking quashing of FIR and entire criminal prosecution against him which was
numbered W.P. (Crl.) No. 15211 of 2018.

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ISSUES RAISED

1. Whether the FIR against the commandant and JCO is fit to be quashed.

2. Whether the Special Powers to the Armed Forces Act, 2016, is fit to be quashed and
withdrawn from Dras, in view of the grave Human Rights violations done by the armed
forces.

3. Whether immediate withdrawal of troops from Dras is the need of the hour?

4. Whether the family of the victim, killed in the firing conducted by the army, should be
granted monetary compensation.

5. Whether the investigation of the incident be handed over to an independent agency.

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SUMMARY OF ARGUMENTS

[A] THAT THE WRIT PETITION FILED BEFORE THE SUPREME COURT OF BHARAT IS NOT

MAINTAINABLE

The exercise of the writ jurisdiction of the Supreme Courts under Article 32 is largely
discretionary in nature, it is argued that the present petition is not maintainable on the
grounds: 1.1] That no prima-facie case for breach of fundamental rights has been established;
1.2] That the Petitioner No.1 should have filed petition in high court of Dras under Article
226.

[B] THAT FIR AGAINST COMMANDANT AND JCO SHOULD NOT BE QUASHED

The FIR against the commandant and the JCO should not be quashed on the grounds: B.1]
That an enquiry should be held to investigate the offence which was committed against the
victim and even if the offence was committed in discharge of official duty; B.2] That the acts
committed by the petitioner and the allegations were prima facie an offence according to
Bharat Penal Code.

[C] THAT ENACTMENT OF SPAFA, 2016 WAS UNCONSTITUTIONAL IN STATE OF DRAS AND
THERE SHOULD BE IMMEDIATE WITHDRAWAL OF TROOPS FROM DRAS

The SPAFA, 2016 , which was passed by the Bhartian Government and implemented in the
State of Dras was unconstitutional on the basis of grounds: 1.1] That the period for
implementation of SPAFA, 2016 was not extended as per the provision; 1.2] That
fundamental rights of the people were breached and grave human rights violations were
committed under this act; 1.3] That the military exercised extra judicial power and took
advantage of the immunity given to army personnel according to SPAFA, 2016 in the State of
Dras

[D] THAT THE FAMILY OF THE VICTIM SHOULD BE GRANTED MONETARY COMPENSATION

The family of the victim should be granted monetary compensation in accordance with the
provisions related to compensation under Code of Criminal Procedure, 1973.

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ARGUMENTS ADVANCED

[A]. THAT THE WRIT PETITION FILED IN THE SUPREME COURT OF BHARAT
IS NOT MAINTAINABLE
It is most humbly submitted before the Hon’ble Supreme court that the Writ Jurisdiction of
the Supreme Courts’ flows from Article 321, which confers wide powers enabling the Court
to issue writs, whereby individuals may seek redressal for the violation of their fundamental
rights.2 The exercise of writ jurisdiction by the Supreme Court is discretionary in nature. It is
submitted that the writ petition is not maintainable on primarily two grounds: [A.1] That no
prima-facie case for breach of fundamental rights has been established; [A.2] That the
alternate remedy was not exhausted.

[A.1] THAT NO PRIMA-FACIE CASE FOR BREACH OF FUNDAMENTAL RIGHTS HAS BEEN

ESTABLISHED

Article 323 provides the right to constitutional remedies which means that a person has a right
to move to the Hon’ble Supreme court for getting his fundamental rights protected. The
principle for filing a writ petition before Hon’ble supreme court is that there must be a breach
of fundamental right of the petitioner by the respondent. In the present case there is no prima
facie case for breach of fundamental rights of the petitioners. An FIR is a first information
report which is based upon a oral or written complaint and sets the process of criminal justice
in motion4. The Police takes up the investigation after the filing of a FIR. It may be
concluded that a mere filing of FIR is not infringing any fundamental rights of the Petitioner
as it is only setting up of an investigation by the Police. So, their approach towards the writ
petition should not be maintainable.

[A.2] THAT THE ALTERNATE REMEDY WAS NOT EXHAUSTED

It is humbly submitted before the Hon’ble Supreme Court that the Doctrine of Exhaustion of
Alternate Remedies directs that a litigant must approach the forum that is nearest to him in
the chain of judicial structure. The extraordinary jurisdiction of the writ courts should not be

1
Article 32, Constitution of Bharat
2
Nirmalendu Bikash Rakshit, Right to constitutional remedy: Significance of Article 32, Vol. 34, RTCR:SA32,
2379, 2379(1999)
3
Supra note 1
4
Section 154, Criminal Procedure Code

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obscured by cases that can be settled by other fora.5 When an alternative and equally
efficacious remedy is open to litigant, he should be required to pursue that remedy and not to
invoke the special jurisdiction of the writ courts.6

Wherever the vires of the statute are capable of being examined by the HC, the SC has
usually redirected the petitioner to pursue that course of action, before petitioning under Art.
32.7

In P.N. Kumar v. Municipal Corporation Delhi,8 The SC redirected the petitioner to approach
the HC under Art. 226 and reasoned that the scope of the article was wider. Also, in Satish
Chandra v. Registrar of Cooperative Societies9, the remedy under Art. 226 were specially
stated as the alternate remedy, and the petition under Art. 32 were consequently dismissed.

5
Rashid v. I.T.I. Commission, A.I.R 1954 S.C. 207
6
Union of India v. T.R. Verma, A.I.R 1957 S.C. 882
7
Louise Fernandes v. Union of India, (1988) 1 S.C.C. 201.
8
(1987) 4 S.C.C. 609.
9
(1994) 4 S.C.C. 332

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[B] THAT FIR AGAINST COMMANDANT AND JCO SHOULD NOT BE QUASHED

The FIR against the commandant and the JCO should not be quashed on the grounds: [B.1]
That an enquiry should be held to investigate the offence which was committed against
the victim and even if the offence was committed in discharge of official duty; [B.2] That
the acts committed by the petitioner and the allegations were prima facie an offence
according to Bharat Penal Code.

[B.1] PRIMA FACIE THE ALLEGATIONS IN THE FIR IS CONSTITUTING AN OFFENCE

It is humbly submitted before the Hon’ble Supreme Court that the deceased was killed under
suspicious circumstances and the charges in the FIR are prima facie constituting offence
under the B.P.C.

FIR is fit to be quashed if the charges in the FIR do not constitute an offence under the B.P.C.
as the charges are so absurd that no prudent person can even reach a just conclusion that there
is sufficient ground for proceedings against the accused10. Also the FIR can be quashed if any
information accompanying the FIR do not disclose the cognizable offence or do not support
or disclose the commission of any offence against the accused11.

In this particular case, the charges filed under section are 147, 307, 302, 303, 323, 326, 336,
341, 34, 120B of B.P.C. The commandant fired a shot on the attackers killing a person who
died on the spot.12 The deceased was holding the JCO and was not explicitly stabbing or
attacking the JCO. The act of the commandant was accompanied by mens rea, thus, fulfilling
the condition of murder as the wound of the deceased was fatal which fulfilled the condition
as has been described in the section 307 of B.P.C. Act of the commandant caused the death of
victim13 and he knowingly endangered the personal safety and life of the victim 14 and
voluntarily caused hurt15. Also the death of the victim was under very suspicious
circumstances.

10
State of Haryana vs Bhajanlal, AIR 1992 SC 604
11
Ibid
12
Moot Proposition, Pg. No. 5, ¶ 1
13
B.P.C. Sect. 307
14
B.P.C. Sect. 336
15
B.P.C. Sect. 323

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As per the above mentioned arguments certain offences were committed and the nature of the
offence is cognizable. Also, the information accompanying the FIR discloses the commission
of the offence by the petitioner.

In the case of S.M. Datta vs. State of Gujarat16, the Apex court observed that criminal
proceedings should not be discharged at initial stage, unless the same amounts to abuse of the
process of law.

Hence, it may be concluded that the FIR is not fit to be quashed and a thorough investigation
should be initiated. Also, the charges levied in the FIR are not absurd in nature as the charge
levied are in accordance with the offence.

[B.1.2] FURTHER INVESTIGATION SHOULD BE DONE

The counsel humbly submits before the Hon’ble Supreme Court that there was an offence
committed by the petitioner as a person was killed under vague circumstances. In the case of
Extra Judicial Execution Victim Family Association & Anr. Vs. Union of India & Anr. 17, the
bench stated that if an offence has been committed by an official under SPAFA, 2016 then
the first step is to ascertain whether the act complained of is an offence and the second step is
to determine whether it was committed in the discharge of official duty or not18. This
procedure was advocated by the constitution bench, to prosecute an official under the
provisions of Code of Criminal Procedure, 189819. The constitution bench requires that every
death caused by the armed forces, including the disturbed areas “should be thoroughly
enquired into”, if there is a complaint or allegation of abuse or misuse of power.20

The state has the right to investigate any cognizable offence happening in the state under the
Section 154 and 156 of the Cr.P.C, 1973.

16
AIR 2001 SC 3253, ¶9
17
W.P. (Crl.) 129 of 2012,
18
Extra Judicial Execution Victim Family Association & Anr. Vs. Union of India & Anr., W.P. (Crl.) 129 of
2012, ¶125
19
Matajog Dobey vs. H.C. Bhari, 1956 AIR 44: 1955 SCR (2) 925
20
Extra Judicial Execution Victim Family Association & Anr. Vs. Union of India & Anr., W.P. (Crl.) 129 of
2012, ¶126

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The bench also raised the question that “How does anyone determine the action of causing
the death of a person was indefensible, malafide and vindictive”? It can only be through an
enquiry as postulated in Naga People’s Movement of Human Rights and Om Prakash.21

Hence, it can be concluded that the killing of the victim requires further investigation as the

[B.3] THE ACT COMMITTED BY THE PETITIONER WAS NOT IN THE ACCORDANCE OF SECTION
4(A) OF SPAFA, 2016

Any commissioned officer, warrant officer, non-commissioned officer or any other person of
equivalent rank in the armed forces may, in a disturbed area,

(a)if he is of the opinion that it is necessary so to do for the maintenance of public order, after
giving such due warning as he may consider necessary, fire upon or otherwise use force, even
to the causing of death, against any person who is acting in contravention of any law or order
for the time being in force in the disturbed area prohibiting the assembly of five or more
persons or the carrying of weapons or of things capable of being used as weapons or of fire-
arms, ammunition or explosive substances;22

The counsel humbly submits that in the particular case, the facts do not state that there were
any particular laws in the State of Dras that prohibited unlawful assembly of five or more
person who acted in the contravention of the law and prohibited the carrying of arms. The
extent of the act of killing a person requires the fulfilment of the conditions as has been
mentioned in the Section 4(a) of the SPAFA, 2016. The act of the commandant in the
particular case was not in accordance with the Section 4(a) of the SPAFA as per the above
mentioned arguments.

Hence, it may be concluded that the requirement of Section 4(a) of the SPAFA, 2016 was not
adequately fulfilled and the petitioner could not avail the immunity under the act.

21
Extra Judicial Execution Victim Family Association & Anr. Vs. Union of India & Anr., W.P. (Crl.) 129 of
2012, ¶128
22
SPAFA,2016, Sect. 4(a)

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[B.3.1] IMMUNITY UNDER THE SECTION 7 OF SPAFA, 2016 WAS QUASHED

The counsel humbly submits that in the ruling of Extra Judicial Execution Victim Family
Association & Anr. Vs. Union of India & Anr.23, the Hon’ble Supreme Court quashed the
absolute immunity of the army personnel which has been mentioned in Article 7 of SPAFA,
2016. The court also held that army or police cannot use excessive force under the provisions
of SPAFA, 2016 or the Unlawful Activities Prevention Act under Section 49 to deal with
militants or insurgency.24

[B.4] EXCESSIVE FORCE WAS USED IN PRIVATE DEFENCE BY THE PETITIONER

It is humbly submitted before the Hon’ble Supreme Court that in the case of Naga People’s
Movement of Human Rights vs. Union Of India25, 10 commandments were issued by the
Chief Of Army Staff of which the first commandment stated that the operations performed by
the armed forces must be people using minimum force and avoiding collateral damage-
restrain must be the key.26

The shot fired by the commandant caused the death of the victim on the spot implying that
the shot fired was of very lethal in nature. It can be deduced that minimum force was not used
in the particular case to deal with the situation at hand. Also, the use of non-lethal weapons
should have been preferred to lethal weapons. The commandant could have injured the
attacker to disperse the crowd. The commandant by retaliating the attacker exceed his right to
private defence as he could have injured or incapacitated the attacker as he had only caught of
the JCO and might not have inflicted the knife blow upon him.

Thus, it can be concluded that by killing the attacker, the commandant exceeded his right to
private defence. Hence, the FIR filed against the petitioner is maintainable.

23
W.P. (Crl.) 129 of 2012
24
Ibid
25
AIR 1998 SC 431.
26
Naga People’s Movement of Human Rights vs. Union Of India, AIR 1998 SC 431.

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[C] THAT ENACTMENT OF SPAFA, 2016 WAS UNCONSTITUTIONAL IN STATE OF

DRAS AND THERE SHOULD BE IMMEDIATE WITHDRAWAL OF TROOPS FROM
DRAS

The SPAFA, 2016, which was passed by the Bhartian Government and implemented in the
State of Dras was unconstitutional on the basis of grounds: 1.1] That fundamental rights of
the people were breached and grave human rights violations were committed under this
act ; 1.2] That the military exercised extra judicial power and took advantage of the
immunity given to army personnel according to SPAFA, 2016 in the State of Dras

[C.1] BREACHING OF FUNDAMENTAL RIGHTS OF PEOPLE AND GRAVE HUMAN RIGHTS

VIOLATION

It is humbly stated by the counsel, that Article 13(2) of the Constitution of Bharat states that
“the state shall not make any law which takes away or abridges the rights conferred by this
part and any law made in contravention of this clause shall to the extent of the contravention,
be void”. In the state of Dras, several fundamental and human rights were violated by the
military acting under SPAFA, 2016. The fundamental rights of the people residing in state of
Dras were regularly breached in the name of protection of disturbed areas by conducting
irregular searches. There were also reports of ill-treatment of women and children and killing
of tribals by the army. In the case of Union of India and Anr. Vs. State of Manipur and Anr.27
a women named Thangjam Manorama, was dragged out of her home and was raped and shot
by the troop of 17th-Assam Rifles. This case represents how women were ill-treated by the
army. The killing of tribals in the State of Dras was accepted by the army-headquarters but
the reasons given by them were just to maintain peace and tranquillity in the state. Even on
further investigation by a senior and reputed journalist of Dras, Manoj Bhagwat published a
report based on the interview of the locals which proved that innocent people of Azaad tribe
were killed and women were raped.

Section 4 of SPAFA, 2016 gives extraordinary power to the army officials to cause death of a
person, conduct irregular searches, seize property if deemed necessary and all these acts are
carried out by full discretion of the army. Section 7 of SPAFA, 2016 gives immunity to the
army personnel if they have purported according to the powers under this act. These sections
of SPAFA, 2016 are in contravention of the Article 2(3) of ICCPR, which says that state

27
Special Leave Petition (Civil) 14726 – 14730 of 201

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parties must “ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has been
committed by person acting in an official capacity.” The UN Human Rights Committee,
which monitors implementation of the ICCPR, has also clarified that “no official status
justifies persons who may be accused of responsibility for violations being held immune from
legal responsibility”.28

The fundamental rights of the people were also violated. Article 21 of the Indian Constitution
guarantees the right to life to all people which has been decided in the case of Maneka
Gandhi vs. Union Of India29. But section 4(a) of the SPAFA, 2016 grant armed forces
personnel the power to shoot to kill which is violative of article 21 of constitution of India. It
also contradicts Article 14 of the Indian constitution which guarantees equality before law.
Since, the people residing in areas declared as “disturbed” are denied protection of the right
to life, the protection of Criminal Procedure Code and prohibited from seeking judicial
redress, they are also denied equality before law.

It also violated article 22 of Indian constitution which protects the right of the person against
arrest and detention is also infringed by the Section 4(c) of the SPAFA, 2016. In the case of
Luithukla vs. Rishang Keishing,30 a habeas corpus case, exemplifies the total lack of restraint
on the armed forces and carrying out arrests.

[C.1.1] THAT THE MILITARY EXERCISED EXTRA- JUDICIAL POWER UNDER THE ACT

It is humbly submitted before the court that the army deployed in the state of Dras exercised
extra judicial power as per the power and immunity given to them in the Section 4 and
Section 7 of SPAFA, 2016 respectively. The army in accordance with the power conferred to
them, conducted irregular raids in houses, killed tribals who they thought were militants. In
the report submitted by retired Supreme Court Judge, Santosh Hegde probed six random
cases out of alleged 1528 extra-judicial killings in Manipur, found that these were not
genuine encounters and the victims did not have any criminal records31.

28
Amnesty International India, Amnesty USA, (Mar.15,2018, 7:17 A.M.)
https://www.amnestyusa.org/files/asa200422013en.pdf
29
1978 AIR 597, 1978 SCR (2) 621
30
(1998) 2 GLR 159
31
Extra Judicial Execution Victim Family Association & Anr. Vs. Union of India & Anr., W.P. (Crl.) 129 of
2012

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In the ‘Jorhat Dacoity’ case of 2011, the army conducted late night search in an area under
the SPAFA, 2016, because according to their intelligence, the family was harbouring
militants. This act committed by the army violated the fundamental right to privacy of the
family.32 The army misused their power which has been conferred to them under Section 4(d)
of the SPAFA,2016.

Hence, it may be concluded from the above mentioned arguments and facts that the power
granted to the armed forces by the SPAFA, 2016 is excessive. The fundamental and human
rights granted by Indian Constitution are infringed by the SPAFA, 2016, thus, rendering it
unconstitutional in the humble opinion of council.

[C.2] IMMEDIATE WITHDRAWAL OF TROOPS FROM THE STATE OF DRAS

It is humbly submitted by the council that the current situation of the state of Dras indicates a
rift between the civilians and the armed forces. The increase in the militants and the terrorist
activities in the state is a proof of that33. The immediate withdrawal of troops from the State
of Dras is the need of the hour. The survey conducted by NHRC, Dilli after the incident of
the current case, came with a conclusion that army in Dras has resorted to excessive use of
force and is abusing its power in the state.34 Dras also witnessed multifold increase of
terrorist activities soon after the implementation of SPAFA, 2016.35 It defeated the very
purpose of the Bharatian Government. Further, atrocities were committed on the tribals and
women and children were ill-treated. Army, in order to curb the militant activities, exercised
their powers without any restriction and committed extra judicial activities. Also, it is the
duty of the state to maintain peace and security and to protect the fundamental right of the
individuals.

Hence, it may be concluded from the above mentioned arguments and facts that there should
be an immediate withdrawal of army from the State of Dras, so that peace could be restored
in Dras and fundamental rights of individuals could be protected.

32
Ashok Bagariya, Jorhat Dacoity Case, HindustanTimes, (Mar.15, 2018, 7:47 A.M.),
https://www.hindustantimes.com/india-news/rs-1-lakh-compensation-to-military-contractor-whose-house-was-
raided-by-army-in-2011/story-Uyqd4x5hdP5drdDSKvMuxO.html
33
Moot Proposition, Pg. No. 2, ¶4
34
Moot Proposition, Pg. No.5, ¶2
35
Moot Proposition, Pg. No. 2, ¶4

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D. THAT THE FAMILY OF THE VICTIM SHOULD BE GRANTED MONETARY

COMPENSATION
The counsel humbly submits that the family of the victim should be granted monetary
compensation as it has been stated in the case of Naga People’s Movement of Human Rights
vs. Union Of India36 that “in order to ensure that there is an effective check against misuse or
abuse of powers by the members of the armed forces, it is necessary that a complaint
containing an allegation about misuse or abuse of the powers conferred under the SPAFA,
2016 should be thoroughly inquired into and, if it is found that there is substance in the
allegation, the victim should be suitably compensated by the States and the requisite sanction
under Section 7 of the SPAFA, 2016 should be granted for instruction of prosecution and/or a
civil suit or other proceedings against the person/persons responsible for such violation”37

Also, there was violation of fundamental rights of the victim. In the case of Rudul Shah Vs.
State of Bihar38, the Hon’ble Supreme Court granted monetary compensation to the victim. In
the present case, commandant violated the fundamental right of the deceased by wrongly
exercising his powers as been described in Section 4 of SPAFA, 2016. In further cases
namely, Sabastain M. Hongaray39, Bhim Singh40, Saheli41 and Ravi Kant Patil42,
compensation was granted to the victims whose fundamental rights were violated. In ‘Jorhat
Dacoity’ case of 2011, army over-exercised its power as been described under Section 4(d) of
SPAFA, 2016 and violated fundamental right to privacy. Compensation of Rs. 1 lakh was
granted to the victim.43 In the case of Naga People’s Movement of Human Rights vs. Union
Of India44, monetary relief ranging from Rs. 5 lakhs to Rs. 20 lakhs was ordered to be given
to their next of kin.45

Hence, monetary compensation should be granted to the family of the victim in accordance
with the arguments and facts stated above.

36
AIR 1998 SC 431
37
Naga People’s Movement of Human Rights vs. Union Of India, AIR 1998 SC 431, ¶61
38
AIR 1983 SC 1086
39
Sebastian M. Hongray Vs. Union of India, (1984)3 SCR 544.
40
Bhim Singh Vs State of J & K., (1985)4 Sec. 677 AIR 1986 SC 494.
41
Saheli Vs Union of India, AIR 1990 SC 513.
42
State of Maharashtra Vs Ravi Kant Patil, (1991)2 SC 3C3: AIR 1991 SC 871.
43
Supra note 32
44
AIR 1998 SC 431
45
Naga People’s Movement of Human Rights vs. Union Of India, AIR 1998 SC 431, ¶59

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E. INVESTIGATION SHOULD BE HANDED OVER TO AN INDEPENDENT AGENCY

The counsel humbly submits that in the particular case at hand, the investigation through an
independent agency is necessary as a fair and thorough enquiry is required. There has been
several allegations of human and fundamental rights violation and extra judicial killings
which may come to light if this case is investigated by an independent agency.

In the landmark case of Extra Judicial Execution Victim Family Association & Anr. Vs.
Union of India & Anr.46, it was stated by the bench that the human rights division of the army
and the ministry of defence has not been vigilant have been as the Hegde commission
reported that there were as many as 1528 cases of extra judicial killing, some even performed
by the military personnel. But, none of them were reported or no FIR was filed.

Also, in the case of Naga People’s Movement of Human Rights vs. Union Of India47, it was
postulated that enquiry had been conducted at the instance of the NHRC by the Criminal
Investigation Department.48

Hence, the counsel suggests that particular case should handed over to the independent
agency for further investigation.

46
W.P. (Crl.) 129 of 2012
47
AIR 1998 SC 431
48
Supra Note 21

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited,
it is humbly requested that this Honourable Court may be pleased to adjudge and declare:

1. That the writ petition filed by the Petitioner is not maintainable before the Supreme
Court of Bharat.

2. That investigation should be carried out as per the FIR filed.

3. That the SPAFA, 2016 should be declared unconstitutional and troops should be
withdrawn from the State of Dras.

4. That monetary compensation should be granted to the family of the victim as the
Hon’ble Court may deem fit.

5. That an independent agency should be appointed by the Hon’ble Court for

investigation of the case.

And pass any such order, writ or direction as the Honourable Court deems fit and
proper, for this the Respondents shall duty bound pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE RESPONDENTS

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