GEETA INSTITUTE OF LAW

PROJECT REPORT ON MOOT COURT

SUBMITTED BY: SHRISHTI

SUBMITTED TO: Mr. Shubham

CLASS: [Link] (hons)

SEMESTER: 10TH

SUBJECT: MOOT COURT AND INTERNSHIP

ROLL NO. : 191109725

 CERTIFICATE

It is certified that “SHRISHTI GUPTA” student of B.A. LL.B. has successfully completed her practical file
of Moot Court under the guidance of Mr. Shubham Verma. It further certifies that following moot propositions
memorial are prepared by her under my supervision.

Mr. Shubham Verma

(Assistant Professor)
Geeta Institute of Law
 ACKNOWLEDGEMENT

I am using this opportunity to express my gratitude to everyone who supported me throughout the course of
this practical file. I am thankful for their aspiring guidance, invaluably constructive criticism and friendly
advice in respect of this practical file. I am sincerely grateful to them for sharing their truthful and f
illuminating views related to the file.

I am also very thankful to Mr. Shubham Verma (Asst. Professor GIL) for his guidance and cooperation and
my family and friends too. Without their support it would not be possible for me to complete it on time.

Their guidance and supervision were very helpful in bringing this work to the conclusion.
 TABLE OF CONTENT

1. CRIMINAL CASE

STATE .................................................................................................... PROSECTION

V.

SHIKHAR SINGH AND OTHERS ........................................................ACCUSED

2. CONSTITUTION

MS. GINNY POTTER &Ors .................................................................. PETITIONERS

V.

UNION OF INDIA ................................................................................. RESPONDENT

3. CIVIL CASE

MR. SNOW............................................................................................. PLAINTIFF

V.

DRAGON AUTOMOBILES ................................................................... DEFENDENT

 BEFORE
THE HONORABLE SESSION COURT, PANIPAT

ORDINARY ORIGINAL CRIMINAL JURISDICTION

IN THE MATTER OF

STATE… ................................................... PROSECUTION

Vs.

SHIKHAR SINGH AND OTHERS .................. ACCUSED

Written Submission on behalf of the

PROSECUTION
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS ................................................................................................. 4

INDEX OF AUTHORITIES ................................................................................................... 6

ACTS AND STATUTES .............................................................................................................. 6

BOOKS REFERRED ................................................................................................................... 6

STATEMENT OF JURISDICTION ...................................................................................... 9

STATEMENT OF FACTS .................................................................................................... 10

STATEMENT OF ISSUES ................................................................................................... 12

SUMMARY OF ARGUMENTS ........................................................................................... 13

ARGUMENTS ADVANCED ................................................................................................ 14

1) WHETHER THE ACCUSED SHIKHAR AND SARDA ARE LIABLE FOR

MURDER UNDER SECTION 302 OF IPC? ....................................................................... 14

2) WHETHER THE ACCUSED PERSONS, HAVE THE COMMON INTENTION? ... 22

3) WHETHER THERE SHOULD BE THE QUANTUM OF PUNISHMENT OR NOT?

................................................................................................................................................... 25

PRAYER ................................................................................................................................. 26
 LIST OF ABBREVIATIONS

& : And

AIR : All India Reporter

Anr. : Another

Art. : Article

AP : Andhra Pardesh

CA : Criminal Appeal

[Link] : Criminal Law Journal

[Link] : Code of Criminal Procedure

DD : Dying Declaration

FIR : First Information Report

HC : High Court

Hon’ble : Honorable

IPC : Indian Penal Code

IEA : Indian Evidence act

MLR : Medical Report

Ors : Others

P&h : Punjab and Haryana High Court

PW : Prosecution Witness

PMR : Post Mortem Report

SC : Supreme Court
SCC : Supreme Court cases

SCR : Supreme Court Record

SLP : Special Leave Petition

UOI : Union of India

v. : Versus

WB : West Bengal
 INDEX OF AUTHORITIES

• ACTS AND STATUTES:

THE CODE OF CRIMINAL PROCEDURE, 1973

THE INDIAN EVIDENCE ACT, 1872
THE INDIA PENAL CODE, 1860
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

• BOOKS REFERRED:

1. Batuk Lal, Law of Evidence, (21st Ed., Central Law Agency,2016 )

2. Dr. K.S. Narayana Reddy, The Essentials of Forensic Medicine & toxicology(33rd Ed.,
J.P. Pubications, 2010)
3. Justice UL Bhatt, Lectures on Indian Evidence Act, (Universal Law Publication,2015)
4. KD Gaur, Criminal Law: Cases and Materials, (6th Ed., Lexis Nexis,2009)
5. KD Gaur, The Indian Penal Code, (15th Ed., Law Publishers India Pvt. Ltd., 2016 )
6. N.K. Acharya, Protection of Woman From Domestic Violence Act, (6th Ed. Asia Law
House, 2013)
7. Prof. Arthur Best, Wigmore on Evidence, (Aspen Publishers; 13-Volume Ed. December
31, 1995)
8. P.K. Majumdar and R.P. Kataria, Law Relating to Dowry Prohibition Cruelty and
Harassment (3rd Ed. Orient Publication, 2015)
9. Ramjeth Malani & DS Chopra, The Indian Penal Code (Vol. II, Thomson Reuters)
10. Ram Shelkar, Law Relating To Dowry Death (1st Ed., Kamal Publishers, 2010)
11. Ratanlal & Dheerajlal, The Indian Penal Code, (33rd Ed., Lexis Nexis, 2016)
12. Ratanlal & Dheerajlal, Law of Evidence (25th Ed., Lexis Nexis, 2013)
13. Ratanlal & Dheerajlal, The Code of Criminal Procedure (20th Ed., Lexis Nexis 2016)
14. R.V. Kelkar, Criminal Procedure, (5th Ed. 2011)
15. SC Sarker, The Indian Penal Code, 1860 (3rd Ed., Dwivedi Law Agency, 2014)
16. SC Sarker, The Code of Criminal Procedure: An Encyclopaedic Commentary on the
Code of Criminal Procedure, 1973(11th Ed., Lexis Nexis, 2015)
 • LIST OF CASES:-

1. Mannu Raja v. State of MP AIR 1976 SC 2199

2. State of Up v. Ram Sagar Yadav AIR 1976 SC 2199

3. Kundula Bala subrahmanayam v. State of AP 1990 Crl.J 1666(AP)

4. Meesla Ram Krishna v State of AP (1994) 4 SCC 684

5. Charipalli Shankar Rao v PP, HC of AP 2001 CrLJ NOC 158(Del)

6. Najma Faraghi V. State of West Bengal AIR 1998 SC 682

7. Gopali Devi v. State(Govt of NCT Delhi) AIR 1985 SC 416

8. Panchdo singh v State of Bihar AIR 2002 SC526

9. L.K Naiak v State 2013 CrLJ 1792 (CHH)

10. Desh Deepak Kapoor v. State ( Delhi Adminstration) (2006)92DRJ 440(DB)

11. Savitri Pandey v. Prem Chandra Pandey (2002) 2 SCC 73

12. A. Jaychandra v. Aneel Kumar (2005) 2 SCC 22

13. Parveen Mehta v. Inderjeet Mehta 2002

14. P. Bikshapati v. State of A.P 1989 Cri. L.j. 1186 (A.P)

15. Malathi Ravi v. [Link] ` (2014) 7 SCC 395

16. Shyamal Ghosh v. State of West Bengal AIR 2012 SC 3539

17. Mrinal Das v. State of Tripura AIR 2011 SC 3753

18. Ramashish Yadav v. State of Haryana AIR 1999 (8) SC555

19. State of Punjab v. Fauja Singh 1997

20. Bhola Turha v/s State of Bihar AIR 1998 SC 1515

21. Raj Kumar Khanna v. State of (nct delhi) & ors (61drj 2002365 DB
 STATEMENT OF JURISDICTION

The Hon’ble Session Court has jurisdiction to try the instant matter under Section 1771, Section
262 read with Section 2093 of the Code of Criminal Procedure, 1973

1Section 177:‘ Ordinary place of inquiry and trial-

Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was
commited’.
2Section 26:‘ Courts by which offences are triable-

Subject to the other provisions of this Code,-

a) Any offence under the Indian Penal code (45 of 1860) may be tried by-
(i) The High Court, or
(ii) The Court of Session, or
(iii) Any other Court by which such offence in shown in the first Schedule to be triable;
b) Any offence under any law shall, when any Court is mentioned in this behalf in such law, be triedby such
Court and when no Court is so mentioned, may be tried by-
(i) The High Court, or
(ii) Any other Court by which such offence is shown in the First Schedule to be tried’.
3Section 209:‘Commitment of case to Court of Session when offence is triable exclusively by it.-

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and
it appears to the Magistrate that the offence is triable exclusively by the Court of Session,he shall-

a) Commit the case to the Court of session;

b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, anduntil the
conclusion of, the trial;
c) Send to that Court the record of the case and the documents and articles, if any, which are to beproduced
in evidence;
d) Notify the Public Prosecutor of the commitment of the case to the Court of Session.’
 STATEMENT OF FACTS

1. Arundhati Kumar was a 22 years old girl who was pursuing her degree from Geeta
college of emgineering, Naultha. She came close with a friend and batch mate, Shikhar
Singh who also a brilliant student. He was a luxurious lifestyle while Arundhati was belong
to a middle class background. Their families were introduced to each other.
2. In 9th November 2010, they got married according to Hindu rities. She had some
differences with her in laws on many occasions but the matter was mostly settled amicably.
Shikhar wanted to maintain his high life style which saw the family in a near financial
crisis.
3. In 11th December 2012, Arundhati gave birth to a baby girl. Shikhar took a loan
from Arundhati’s Parents and later he refused to return. When Shikhar was in drunken
state, he used to blame Arundhati to calling ‘barren woman’ and family of beggars. This
remarks hurt her a lot and once she even tried to slit her wrists and end her life but she was
saved by her sister-in-law. After the incident the Doctor or Physician did prescribe some
medicines for Arundhati and also advised her to consult a psychiatrist. She went to her
parent’s home and told Shikhar that she would never return. But her parents convinced her
to return to her in laws
4. In 10th April 2014, Arundhati gave birth to a baby boy which lead the family to a
financial mess. Shikhar was very disturb because of these financial complications. She was
more agitated and suffering from the depression as well as mood swings. On 9th November
2014 written a suicide note by Arundhati.
5. In 4th January 2015, neighbours saw Arundhati running out of the house with her
sari on fire. Her mother in law was runningafter her shouting that Arundhati was out of her
mind to do something. She collapsed on the road. Then she was taken to hospital and
admitted with 88%burns. Where doctors declared her unfit to record her statement
immediately.
6. In 5th January 2015, Arundhati conditions improve then the police was called. She
gave her declaration before S.I. Sohan lal at 11:00 hours. In the declaration she accused her
Mother-in-law (Sarda) and Shikhar of setting her on fire and died at 12:30 hours on the
same day. The police sent the body for post mortem examination. Police also
conducted a search of the house. Police found a suicide note written by Arundhati on dated
9th November 2014 and a burnt can of kerosene oil in kitchen. Arundhati’s mother in law
and husband were arrested from the house and were arrested from the house and were sent
to judicial custody.
 STATEMENT OF ISSUES

-I-
WHETHER THEACCUSED SHIKHAR AND SARDA (MOTHER-IN-
LAWS) ARE LIABLE FOR DOWRY DEATH UNDER SECTION 304-B OF
IPC?

-II-
WHETHERTHE ACCUSED SHIKHAR AND SARDA (MOTHER-IN-
LAWS) ARE LIABLE FORMURDER UNDER SECTION 302 OF IPC?

-III-
WHETHERTHE ACCUSED SHIKHAR AND SARDA (MOTHER-IN-
LAWS) ARE LIABLE FOR ABETMENT OF SUICIDE UNDER SECTION
306 OF IPC?

-IV-

WHETHER THERE SHOULD BE THE QUANTUM OF PUNISHMENT OR

NOT?
 SUMMARY OF ARGUMENTS

ISSUE I

WHETHER THE ACCUSED SHIKHAR AND SARDA ARE LIABLE FOR

MURDER UNDER SECTION 302 OF IPC OR NOT?

That both the accused persons i.e. Shikhar(husband) and Sarda (mother-in-law) are
guilty of the offences under Section 302 IPC ,1860.

ISSUE II

WHETHER THE ACT OF THE ACCUSED PERSON AMOUNT TO AN

OFFENCE UNDER SECTION 498A OF IPC 1860 OR NOT?

That both the accused persons i.e. Shikhar(husband) and Sarda(mother-in-law) have
committed cruelty against Arundhati (deceased) and thus are guilty of the offences
under Section 498-A IPC 1860.

ISSUE III

WHETHER THE ACCUSED PERSONS, HAVE THE COMMON

INTENTION?

That sarda as well as shikhar had a common intention to commit cruelty against arundhati (the
deceased) and thus both are guilty for the common intention under section 34 ipc, 1860.

ISSUE IV

WHETHER THERE SHOULD BE THE QUANTUM OF PUNISHMENT OR

NOT?

That, it is humble request to the learned session court, that the brutal sarda &
shikhar should be severely punished.
 ARGUMENTS ADVANCED

ISSUE I

WHETHER THE ACCUSED SHIKHAR AND SARDA ARE LIABLE FOR

MURDER UNDER SECTION 302 OF IPC?

The state would humbly submit before the learned session court.

1. The section 299 of IPC ,1860 states that “culpable homicide- whoever cause death by doing
an act with intention of causing death or with intention of causing such bodily injury as is
likely by such act to cause death, commit the offence of culpable homicide.
2. The section 300 of IPC,1860 states that ,”except in the cases hereinafter excepted culpable
homicide is a murder,
i. If the fact by which the death is caused is done with the intention of causing
death, or-
ii. If it is done with the intention of causing such bodily injury as the offender
known to be likely to cause the death of the person to whom is caused or-
iii. If it is done with the intention of causing bodily injury to a person and the
bodily injury intended to be inflicted in sufficient in the ordinary cause of
nature or course of death.
iv. If the person committing the Act knows that is so imminently dangerous
that it must, in all probability cause death or such bodily injury as likely to
cause death and commit such act without any excuse for incurring the rick
of causing death and commit such.
3. That, the combined effect of sec-299 of IPC, 1860 & sec- 300 of IPC, 1860 states that
whenever a death is caused with an intention of causing such bodily injury which is likely
to cause death or by an act having the knowledge that such an act is sufficient in ordinary
course of nature that it will cause death than the person who commit such murder.
4. The sarda & shikhar had intention of causing such a bodily injury to decrease such that the
death was the most probable result.
 5. That the sarda & shikhar knew that she was depressed & she in turn become more agitated
& started suffering from depression as well as mood swing.
6. That they planned to burn the decreased by pouring kerosene and lighting up the fire.
7. That the presence of sarda 4 Jan 2015 highly supported the fact establish by the prosecution
8. And, even there in-law and her husband did not provide anything to exhaust her fire or save
her life even
• Didn’t called the ambulance,
• Didn’t provide her blanket & water.
9. That this act of avoidance of the accused person clearly established the intention of the
accused person to murder the deceased, which is further established by the fact that as
situation got worsened & unless the neighbor not the deceased and hence, it clearly
indicates the intention of the accused person of murdering the deceased.
10. That, neighbor extinguished the fire. Here, at this instance the deceased made the dying
declaration that, “I was working in the kitchen & suddenly I felt a blast of fire on my back.
In on time my saree on fire. I saw my mother in law standing behind me so, that I ran
outside for help. My mother in law chased me so that she could stop me from getting any
help from neighbor. Then I fell on the road and both shikhar and my mother in law did
nothing to help”.
11. The dying declaration was over headed by sohan lal (sub-inspector of policed), on 5 Jan
2014 at hospital.
12. That on the fact it is clearly mention that neighbor saw that deceased ran out from her house
and her sari on fire.
13. That the deceased was enquired by sohan lal (sub-inspector) at that time deceased gave
dying declaration on the same day at 11:00 hours.
14. The hon’ble supreme court in Meeslla Ram Krishna v. state of AP 4held that “a dying
declaration made by nods & gestures or by sign languages has been held to be admissible
& also on the fact of particular case to be reliable.

4(1994) 4 SCC 684

 15. The hon’ble chattisgarh high court in L.K Nayak v/s State5 has held that, “evidence of
relatives or related witness cannot be rejected in TOTO on the ground of their relation,
relative are last person to spare the real culprit & implicate & innocence falsely”.

16. That it was very crucial to notice that incident happened at that time, where there is no

medical assistance given to the deceased, nor did the accused person avail any medical
assistance for the deceased. It was only called by neighbor for medical assistance.
17. That sarda & shikhar didn’t actively participate in saving the deceased person neither at
the time when deceased was engulfed in fire, nor after the fire was extinguished hence, did
they always abstain from assisting by any means so as to save the deceased. This intention
or attitude clearly indicates that the accused person didn’t want the deceased to survive.
So, they left no stone unturned to murder her.
18. According to the medical report, the burns of the body of the deceased were 88% which
is sufficient in the ordinary course of nature to cause a death of a person.

The evidence gathered are:-

• Dying declaration made by deceased to shoan lal(sub-inspector of police)

• Presence of accused at crime spot.
• A burnt cane of kerosene oil in kitchen.
19. That for the evidence and said fact Hon’ble Supreme Court had delivered many judgments.
20. That Hon’ble SC in Najma Faraghi v state of west Bengal6, it was held that dying
declaration would not lose a value on the ground that a maker died after making the
statement the question of relevance has to be consider on the fact of each case.
21. The fact of the deceased has 88% of burn injuries & there was no chance is too relevant.
22. Hon’ble SC in Pancho singh v. state of Bihar7, held that the statement in truthworthy or
more attempt to cover up latches of investigation. Dying declaration which inspires

5 2013 CrLJ 1792 (CHH)

6 AIR 1998 SC 682
7 AIR 2002 SC526
 confidence is a sufficient piece of evidence to sustain conviction. It is not necessary that
declaration should be of longish nature & nearly structured”.
23. The fact that the dying declaration which is given to sohan lal (sub-inspector of police) is
sufficient enough to inspire confidence in itself & thus, it is very strong evidence against
the accused.
24. That, the hon’ble SC in Mannu Raja v/s State of MP8, held that there is neither rule of
law nor of procedure that a dying declaration cannot be acted upon without corporation &
again hon’ble SC in State of UP v/s Ram Sagar Yadav 9held that,” if the court is satisfied
that dying declaration is true & voluntary it can base conviction without corporation which
was followed in Gopal Devi v/s State Govt. of NCT Delhi10. Here, the declaration of
declassed is very much reliable, as it has been given with free consent& without any
threating as per Sec-32 (1) of Indian evidence act, 1872.
25. That the hon’ble SC in Charipali Shankar Rao v/s PP HC of 11AP held that an injured
person making his or her dying declaration is not expected to make an elaborate of
executive statement so as to cover each & every aspect of the incident in the case the person
was under the pain & agony of 90% burn. Similarly here, where as per the fact, the body
of deceases was burned upto 88% burn, expecting everything and every name in dying
declaration is not prudent.
26. That the hon’ble SC in Bhola Turha v/s State of Bihar 12
held that,” dying declaration
found to be reliable, no in consistence with testimony of eye witness conviction of caused
proper”.
27. That for the above mention reason had a murder. So they should be punished and held
guilty for all the offences.

8 AIR 1976 SC 2199

9 AIR 1976 SC 2199
10 AIR 1985 SC 416
11 2001 CrLJ NOC 158(Del
 ISSUE II
Whether the act of the accused person amount to an offence under
section 498 A of IPC 1860 or not?

The state would humbly submit before the learned session court.

The S-498A of IPC state that husband or relative of Husband of a woman subjecting her to
cruelty- whoever, being the husband or the relative of the husband or woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may extend to 3 yrs.’
& shall also be liable to find. The explanation of 498(A) state that, for the purpose of this
section,” cruelty” means-

• Any willful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause gave injury or danger to life, limb or health (whether mental or
physical) of the woman; or
• Harassment of the woman where such harassment is with a view to coercing her or any
person related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person related to her to meet such
demand.
1. That, as per section 216 of Cr.P.C, 1973 court is at discretion to alter the charges at
any stage before judgment, & in accordance to which, the prosecution would request
the court to alert the charge sheet & add sec-498A of IPC,1860.
2. That, in furtherance of afore-stated sec, the acts of the accused person is liable to be
punished on reasonable grounds which are mentioned below.
3. Parveen mehta vs. Inderjeet Mehta 13that, “ Mental cruelty is a state of
4. mind and feeling with one of the spouses due to the behaviour or behavioral pattern
by the other”
5. That, the shikhar subjected the deceased to cruelty. Her cruelty includes mental torture
as per explanation 498A of the IPC.
 6. That, the fact sheet clearly mentioned that shikhar Singh who has a luxurious lifestyle
while the deceased was the somber girl from middle class background. In 2009, they
both were introduced each other to their family & on 9th Nov2010 they got happily
married & she moved into her matrimonial home with Shikhar’s family.
7. With the passage of time, the cruelty, the taunting & the maltreatment of husband
started and increased day by day.
8. I’d like to draw the attention towards-
The deceased was always subjected to the mental cruelty. Her cruelty include mental
torture which is evident from the below mentioned facts.
9. That, out of several instances, some of most pathetic/ cruel instances-
(1) The 1st incident was when she got so broken by the cruelty of shikhar that she ties
to commit suicide by slitting her wrist.
(2) When she was killed by the accused by burning.
10. According to the fact sheet, shikhar wanted to maintain his high life style, which
shows the family in near family crises.
11. After the birth of baby girl shikhar took the loan from arundhati’s parents of Rs 5 lacs
which he refused to return. Due to which the deceased relation with himdeteriorated
& on many occasion fights turned physical also.
12. That, for mental cruelty Hon’ble SC has said that, “Mental cruelty & it’s effect varies
accordance to individual differences, differences in social status differences b/w
societies, it even said that attitude of a person for another person can also be reason
for mental cruelty.”14
13. That, in Raj Kumar Khanna vs State of (nct delhi) & ors 15
the HON’BLE Court
said that “Section 498-A IPC, has necessarily to be a wilful conduct which is of such
a nature that it is likely to drive a woman to commit suicide or cause grievous injury
or danger to her life or health. The use of the expression “wilful” in the explanation
to Section 498-A IPC indicates that the conduct attributed to the accused, in order to
be culpable, needs to be deliberate, aimed at causing injury to the health of the woman
or bringing misery to her. If the accused knows or is reasonable expected to

14MATLHI RAVI V. [Link]

(2014) 7 SCC 395
 know that his conduct is likely to cause injury to the life, limb or health of the
aggrieved woman or if his conduct is of such a nature, that causing injury to the life,
limb or health can be a natural consequence for the woman, who is recipient of such
a conduct, it will attract criminal liability on the part of the husband or his relative, as
the case may be”.
14. That, in [Link] and ors. Vs. State of A.P16, in this case court held that “taking
drink and coming late home much against the will of wife may not per se, amount to
cruelty but the acts coupled with beating and demanding dowry and harassment to
bring money clearly amount to cruelty under sec 498A.”
15. That, whenever shikhar was in drunken state, he used to blame from a family of
beggars. This remark hurt & she tried to slit her wrist and & her life.
16. Here, the cruelty was on high level the deceased went to her parents’ home but her
parents convinced her to return her in laws home.
17. On 10th April 2014, she gave a birth to baby boy which leads the family to financial
mess.
18. Due to this, shikhar was very disturbed and in turn he used to went his frustration on
deceased and she in turn become more agitated & started suffering from depression as
well as mood swing. My lordship now I’d like to draw your attention towards the
second incident i.e. when she was killed by the accused by burning.
19. That, in the A. Jaychandra v. Aneel Kumar17, a 3 judge Bench of this Court observed
that the expression "cruelty" has not been defined in the Act. “Cruelty can be physical
or mental cruelty which is a ground for dissolution of marriage may be defined as
willful and unjustifiable conduct of such character as to cause danger to life, limb or
health, bodily or mental, or as to give rise to a reasonable apprehension of such a
danger”.
18
20. That in the Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73, the court
said that “Cruelty may be physical or mental. Mental cruelty is the conduct of other
spouse which causes mental suffering or fear to the matrimonial life of the

16 1989 Cri. L.j. 1186 (A.P)

17
(2005) 2 SCC 22
 other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty
as to cause a reasonable apprehension in his or her mind that it would be harmful or
injurious for the petitioner to live with the other party”.
21. Desh Deepak Kapoor v/s State ( Delhi Adminstration19) the Hon'ble Court has
proceeded , “That the court has concluded that the cruelty may cause physical and
mental hurt to the deceased and that there was always a danger to her life, limb and
health during the subsistence of the wedlock”.

22. That, in the fact sheet it’s clearly mention that On 4th January 2015, neighbours saw
Arundhati running out of the house with her sari on fire.
23. Also, she gave dying declaration that her mother-in-law chased her when saree is on
fire and also accused sarda could stop him to get any help from her neighbors.
24. That for the above mention reason had done cruelty. So they should be punished and
held guilty for all the offences.
 ISSUE III

WHETHER THE ACCUSED PERSONS, HAVE THE COMMON

INTENTION?

The state would humbly submit before the hon’ble learned session court,

That, the accused persons have the common intention and had prior meetings in minds.
It was a clear pre-planned murder committed by both Sarda and Shikhar.
Section 34 states that:-
Acts done by several persons in furtherance of common intention.—[When a criminal
act is done by several persons in furtherance of the common intention of all, each of
such persons is liable for that act in the same manner as if it were done by him alone.].

A) Prior to burning

After few days of their marriage he started maltreating her. He used to taunt her for being from a
poor family. He used to drink and beat her at night. Whenever he beat her, none of the family
members came to stop him which shows the pathetic condition of Arundhati in her marital home
where no one used to care about her well being. Even her mother-in-law used to taunt her and used
to torture her. Due to these conditions , Arundhati got so stressed that she even tried to kill herself
but was saved by her sister-in-law. The accused Sarda kept silent and even supported her in the
acts of cruelty of Shikhar on Arundhati and hereby attracting the section 34 IPC,1860

B) At the time of incident of murder or deceased

1. That, sarda poured the kerosene oil lighted up the fine and accused
person A-1 and A-2 abstained from the saving the life of deceased. At
the time when deceased was engulfed, in fine. A-1 and A-2 didn’t done
anything. Even the ambulance was called by the neigubours.
 2. Hence, it clearly indicates that A-1 and A-2 had a Common Intention
and criminal acts constituted in furtherance of there Intention. Clearly
establish and thus attraction S-34 of IPC 1860 read with 302 of IPC.
3. That the burden lies on prosecution to prove that actual participation of
more than one person for commission of criminal act was done in
furtherance of common intention at a prior concert. 20 4. That in one of
the case,sc said that “its requires a pre-arranged plan and pre-purpose
prior concert therefore there must be prior meeting of mind. It can also
be developed at the supr of moment but there must be pre- arrangement
or premeditated concert.

C) After burning

That, common intention means a pre-oriented plan and acting in pursuance to the plan, thus
common intention must exist prior to the commission of the act in a point of time21.[

1. That the A-1 and A-2, soon after the fire was extinguish by neigbours the formers didn’t
assit the deceased in availing any form of medical treatment they clearly abstain themselves
from informing to the concerned authorities neither to medical practitioner nor to police.
They were so determined to murder the deceased that they did not even inform her family
members. Hence neither of the accused have no moral support to be spared. And thus
attracting sec. 34 of IPC, 1860, along with sec. 302 of IPC, 1860.
That in this case Kundula bala subrahmanyam v. state of A.P. 22
the Hon’ble Court said
that where the facts are very much similar to this case and the case has been discussed on
following points:

20
Mrinal das v. State of Tripura., AIR 2011 SC 3753
21
shyamal gosh v. state of w.B,AIR 2012 SC 3539
 1. Dying Declaration: There was Dying Declaration done by
Arundhati, to sohan lal (sub inspector). Acc. To search report and
Dying Declaration her mother-in-law poured kerosene oil on her and
her husband and sarda set her on fire.
2. Medical Evidence: Acc. To M.R. of the Medical practitioner died of
88% burns.
3. Conduct of the appellant immediately and after the occurrence
weather of the accused made any attempt what so ever to extinguish
the fire and save the deceased. They raised no alarm. They stood as
if they were waiting for her death, rather than making any effort to
save her. Their conduct thus run consistent with hypothesis of the
guilty. They didn’t try to extinguish the fire and render any first aid
to her.
4. In state of Punjab v. fauja singh23, if some act is done by the
accused person in furtherance of co-accused, he is equally liable like
his co-accused.

That for the above mention reason had a common intention. So they should be punished and held
guilty for all the offences.
 ISSUE IV

WHETHER THERE SHOULD BE THE QUANTUM OF PUNISHMENT OR NOT?

The state humbly submitted before the learned session court,

1. That, the deceased was constantly subjected to mental torture & from the beginning of the
marriage life of deceased at her husband’s place, it was not that of a happily married mesmerized
life instead it was a life full brutal hardship.

2. That, the deceased was brutally murdered by pouring kerosene & setting her on fire.

3. That, it is humble request to the learned session court, that the brutal Sarda & Shikhar should
be severely punished.

[Link]. ACCUSED PERSONS CHARGES

1. Shikhar Sec-302&498A read with 34
of IPC,1860
2. Sarda Sec-302&498A read with 34
of IPC,1860
 PRAYER

It is therefore, prayed that, your lordships may graciously be pleased. In the light of agreements
advanced and authorities cited, the prosecution humbly submits that the learned session court may
be pleaded to adjudge and declare that,

❖ The accused persons are held guilty of the offence and are convicted.

And pass any orders as your lordship may deem fit as it deems fit in the interest of equity justice
and good conscience.

And for this act of kindness the state shall ever pray.

All of which is most humbly and respectfully submitted.

Sd/-
Counsels for the prosecution
 BEFORE

THE HONORABLE SESSION COURT, PANIPAT

ORDINARY ORIGINAL CRIMINAL JURISDICTION

IN THE MATTER OF

STATE…................................................... PROSECUTION

Vs.

SHIKHAR SINGH AND OTHERS .................. ACCUSED

Written Submission on behalf ofthe

ACCUSED
 TABLE OF CONTENTS

INDEX OF AUTHORITIES .............................................................................................................. III

LIST OF ABBREVATIONS .............................................................................................................. VI
STATEMENT OF JURISDICTION................................................................................................ VII
STATEMENT OF FACTS.............................................................................................................. VIII
ISSUES RAISED .................................................................................................................................. X
SUMMARY OF ARGUMENTS........................................................................................................ XI
ARGUMENTS ADVANCED ............................................................................................................... 2
ISSUE NO. 1: WHETHER THE ACCUSED SHIKHAR AND SARDA ARE LIABLE FOR
DOWRY DEATH UNDER SECTION 304-B OF IPC? 2
Not subjected to Cruelty or Harassment ............................................................................. 2

Not in connection with any demand of dowry: ................................................................... 5

Cruelty soon before her death ............................................................................................. 6

ISSUE NO.2: WHETHER THE ACCUSED SHIKHAR AND SARDA ARE LIABLE FOR
MURDER UNDER SECTION 302 OF IPC ? 9
Weak Circumstantial Evidence ........................................................................................... 9

Relying on the above mentioned points, the Accused Shikhar and Sarda are entitled of right
to be acquitted as the inculpatory facts are incompatible with the guilty mind of the accused,
and there is reasonable hypothesis of their innocence .......................................................... 10

Absence of Mens Rea: 10

Absence of Actus Reus ..................................................................................................... 11

Burden of Proof on Prosecution and Benefit of Doubt to respondent: .................................. 12

Preparation and subsequent conduct ................................................................................. 13

Evidentiary Value of Dying Declaration ................................................................................... 14

ISSUE NO.3 WHETHER THE ACCUSED SHIKHAR AND SARDA ARE LIABLE FOR
ABETMENT OF SUICIDE UNDER SECTION 306 OF IPC? 15
PRAYER............................................................................................................................................... 18
 INDEX OF AUTHORITIES

1. CASES

2. Amalendu Pal alias Jhantu Vs. State of West Bengal (2010) 1 Supreme Court Cases (Cri)
896..................................................................................................................................... 13
3. Durga Prasad V. State of Madhya Pradesh, 2010(3) RCD (criminal)219 SC .................... 4
4. Gurcharan Singh V. State of Punjab, 2011 (1) RCR (criminal)180 (P&H ......................... 4
5. Jaspal Singh V. State of Punjab, 2011 (1) RCR (criminal) 490 (P&H ............................... 4
6. Jose vs. The Sub-Inspector of Police, Koyilandy and Ors., (2013) [Link] 919 SC .......... 12
7. Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828........................................... 1, 9
8. Madan Mohan Singh Vs. State of Gujarat and Another. (2010) 8 Supreme Court Cases
628............................................................................................................................... 15, 16
9. Manikandan V. State, (Criminal A(MD) No. 142 of 2016) ................................................ 6
10. Manohar Singh V. Daljit Singh, 2011 (2) RCR (criminal) 356 (P&H) .............................. 4
11. Padala Veera Reddy V. State of A.P, 1989 Supp. (2) SCC 706: 1991 SCC (Cri.) 407 ...... 8
12. Praveen Pradhan v. State of Uttaranchal, (2012) 9 SCC 734............................................ 15
13. Ramesh Chander v. State of Delhi, (2001) 9 SCC 618 ....................................................... 1
14. Re: Jayaraman Case, AIR 1949 Mad. 66 .......................................................................... 10
15. Sanjiv V. State, 2010 (6) RCR (Criminal) 2094: 2009 (164) 459 Delhi ............................ 5
16. Satish Nirankari v. State of Rajasthan, 2007 [Link] 2983, RLW 2008 (1) Raj. 477............ 7
17. State of Rjasthan V. Ashfaq Ahmad, 2010 (AIR 2009 SC 2307)..................................... 13
18. State of W.B. v. Orilal Jaiswal, (1994) SCC 73 ................................................................ 14
19. State V. Sridhar, 2000 CrLJ 328 (kant.).............................................................................. 3
20. Sukhar V. State of Uttar Pradesh, 2000 (2) KLT SN 10 ................................................... 13
21. Sunil Bhiku Yadav [Link] of Maharashtra,2010 (&) RCR (criminal) 205 (Bombay) ...... 4
22. Vipin Jaiswal V. State of A.P. (2013) 3 SCC 684 .............................................................. 2

➢ STATUTES REFERRED:
• Indian Penal Code, 1860(bare act), 2014 Universal Law Publishing Company Ltd.,
New Delhi
 • The Code of Criminal Procedure,1973(bare Act), 2014 Universal Law Publishing
Company Ltd., New Delhi

• The Indian Evidence Act, 1872 (bare Act), 2015 Universal Law Publishing Company
Ltd., New Delhi

➢ BOOKS REFERRED:

• Code of Criminal Procedure,1973 by S.N. Mishra XIX Edition-2014

• Commentaries on Indian Penal Code ( Act XLV of 1860), John Dawson Mayne

• Durga Das Basu ,Criminal Procedure Code, 1973 V Edition Vol I-II

• [Link], Textbook on Indian Penal Code, V Edition

• Ratanlal and Dhirajlal, The Indian Penal Code, 29th Edition

• RATANLAL AND DHIRAJLAL, THE LAW OF EVIDENCE (23rd ed. Lexis Nexis,

Gurgaon, 2015)

• BATUK LAL, THE LAW OF EVIDENCE (7th ed. Orient Publishing Company, New

Delhi 2015)

• JUSTICE C.K. THAKKER, LAW OF EVIDENCE, (2nd ed. Whytes& Co., New Delhi

2015)

• S.K. SARVARIA, R.A. NELSON’S INDIAN PENAL CODE (9th ed. Lexis

NexisButterworths Gurgaon 2002).

• M.P. TANDON, THE INDIAN PENAL CODE (23th ed. Allahabad Law Agency,

Faridabad 2005).

• KD GAUR, CRIMINAL LAW CASES AND MATERIALS (7th ed. Lexis Nexis,

Gurgaon 2013)

• DR. HARI SINGH GOUR, 1 INDIAN PENAL CODE (14th ed. Law Publishers Pvt.

Ltd., Allahabad 2013)

 • DR. K.I. VIBHUTE, P.S.A. PILLAI’S CRIMINAL LAW (12th ed. Lexis Nexis,

Gurgaon 2015)

• JUSTICE G P SINGH, PRINCIPLES OF STATUTORY INTERPRETATION (12th

ed. Lexis NexisButterworthsWadhwa, Nagpur 2010)

AMITA DHANDA, N.S. BINDRA’S, INTERPRETATION OF STATUTES (11th ed.

Lexis Nexis, Gurgaon 2014)

➢ WEBSITE REFERRED:

• [Link]

• [Link]

• [Link]

• [Link]

• [Link]

➢ DICTIONARIES AND LAW LEXICONS:

• Black’s Law Dictionary,7th Edition

• Oxford Dictionary,6th Edition, Oxford University Press, London, 2003

• Stroud’s Judicial Dictionary,Ed. V, p- 510.

• [Link]
_Various_Defense_Strategies
 LIST OF ABBREVATIONS

AIR ALL INDIA REPORTER

Cr.L.J. CRIMINAL LAW JOURNAL

Cr. L.R. CRIMINAL LAW REPORTER

Cr.P.C. CODE OF CRIMINAL PROCEDURE

¶ PARAGRAPH

P PAGE NUMBER

SC SUPREME COURT

SCC SUPREME COURT CASES

SCR SUPREME COURT REPORT

& AND

ed. EDITION

§ SECTION

Anr. ANOTHER

IPC INDIAN PENAL CODE

v. Versus
 STATEMENT OF JURISDICTION

The Respondents most humbly and respectfully submits to the jurisdiction of Honorable Sessions
Court of Panipat under Sec.177 r/w Sec.184 of the Code of Criminal Procedure, 1973.

Sec.177: Ordinary place of inquiry and trial-

‘Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.’
 STATEMENT OF FACTS

BACKGROUND:

That Arundhati Kumar was a 22-year-old girl who was pursuing her degree from Geeta

College of engineering, Naultha. A bright carreer awaited her as not only was she the topper

of her class, but also had interned with some acclaimed MNC’s of the country.

That in 2009, their families were introduced to each other, and on 9th of November 2010,

they got married according to Hindu rites. Arundhati moved into her matrimonial home

with Shikhar’s parents, sister and grandmother.

That she had some differences with her in laws on many occasions, but the matter was

mostly settled amicably.

That Arundhati gave birth to a baby girl on 11th December 2012. Shikhar then took a loan

from Arundhati’s parents of Rs. 5,00,000 which he later refused to return. Due to which

Arundhati’s relation with him deteriorated and on many occasions, fights turned physical

also.

That this remark hurt her a lot and once she even tried to slit her wrists and end her life but

was saved by her sister in law. After the incident, the physician did prescribe some

medicines for Arundhati and also advised her to consult a psychiatrist.

That on 10th April 2014Arundhati gave birth to a baby boy which led the family to a

financial mess. Shikhar was very disturbed because of these financial complications, and

in turn he used to vent his frustration on Arundhati. She in turn became more agitated and

started suffering from depression as well as mood swings.

CASE:

That on 4th January 2015, neighbors saw Arundhati running out of the house with her

sari on fire. Her mother in law was running after her shouting that Arundhati was out of

her mind to do something like this.

POLICE ACTION:

i. SohanLal sub Inspector of police, on the same day at 11.00 hours recorded dying

declaration of Arundhati.

ii. The police sent the body for post mortem examination.

iii. Police also conducted a search of the house.

iv. Arundhati’s mother in law and husband were arrested and recorded their statements

and were sent to judicial custody.

On 24th August, 2018 the case is listed for hearing in the Trial and Session Court of Panipat.
 ISSUES RAISED

I. WHETHER THE ACCUSED SHIKHAR AND SARDA ARE LIABLE FOR

DOWRY DEATH UNDER SECION 304-B OF IPC?

II. WHETHER THE ACCUSED SHIKHAR AND SARDA ARE LIABLE FOR
MURDER UNDER SECTION 302 OF IPC?

III. WHETHER THE ACCUSED SHIKHAR AND SARDA ARE LIABLE FOR
ABETMENT OF SUICIDE UNDER SECTION 306 OF IPC?
 SUMMARY OF ARGUMENTS

ISSUE NO.1 WHETHER THE ACCUSED SHIKHAR AND SARDA ARE LIABLE FOR

DOWRY DEATH UNDER SECTION 304-B OF IPC?

It is humbly submitted before the honorable court that the respondents Shikhar and Sarda are not

liable for Dowry Death under section-304B of IPC as none of the ingredients of section 304-B are

fulfilled herein as it is a case of suicide.

Not subjected to Cruelty or Harassment:

SC in Vipin Jaiswal V. State of A.P., held that,“the prosecution is required to prove beyond

reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. From

the evidence of the prosecution, we find that they have made general allegations of harassment by

the accused towards the deceased and have not brought in evidence any specific acts of cruelty or

harassment by the accused on the deceased.

In the case of State V. Sridhar, it was held that, “where the prosecution relied only on incident of

unhappiness of deceased with her husband and the allegation was only in the form of suggestion,

it doesnot establish criminal offence under either or both charges.

Hence, conviction under section 304-B is improper.

Not in connection with any demand of dowry:

It is most respectfully submitted by the counsel that the second essential to invoke the presumption

of Dowry Death under section 304-B requires that such cruelty or harassment was for, or in

connection with, any demand of Dowry which is not maintainable in our present case,
as according to dowry defined under section 2 of Dowry Prohibition Act, 1961 provides Dowry

must be made in relation to marriage of deceased(Arundhati) and the husband (Shikhar) and no

such demand has been ever made by him from Arundhati or her parents.

• In the case of Durga Prasad V. State of Madhya Pradesh, it was held that, “in order to

bring home a conviction under section 304-B of IPC, it will not be sufficient to only lead

evidence showing that cruelty or harassment had been meted out to the victim, but that

such treatment was in connection with the demand of dowry.”

• The counsel wants to submit that, there is no cruelty or harassment to Arundhati in

connection with any demand of dowry.

Cruelty soon before her death:

The interpretation of expression “soon before her death” has been done in the following cases as:

In the case of Satya Narayan Tiwari@ Jolly V. State of Uttar Pradesh, it was held that, “the

expression soon before death is a relative term and would depend upon circumstances of each

case. It is left to be determined by courts depending upon facts and circumstances of the case.

And further held that;

i. The expression ‘soon before’ would normally imply that the interval should not be

much between the concerned cruelty or harassment and the death in question.

ii. If the alleged incident of cruelty is remote in time and has become stale enough not to

disturb the mental equilibrium of the woman concerned, it would be of no consequence.

And herein in our case, there is no such incident of cruelty in fact of any other small fight between

Arundhati and her in-laws is found soon before her death. Hence, there is nothing found
in the name of Cruelty or Harassment soon before her death. In fact by such acts of slitting her

wrists and suicide note she was torturing her in laws and was making their miserable life much

and more difficult.

ISSUE NO. 2: WHETHER THE ACCUSED SHIKHAR AND SHARDA ARE LIABLE

FOR MURDER UNDER SECTION 302 OF IPC?

It is most humbly submitted by the counsel that the respondent Shikhar and Sarda are not liable

for murder under section 302 of IPC, because the facts and circumstances are such that the guilt

of accused is not established beyond reasonable doubt.

Weak Circumstantial Evidence:

In the case of SatishNirankari v. State of Rajasthan SC held that:

All the facts established should be consistent only with the hypothesis of the guilt. The

circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than

the accused. In our case it is clear from the factual description that it is a case of circumstantial

evidence and there is no eye witness to the incident in question.

Absence of Mens Rea:

It was held in the case of Wakkar v. state of Uttar Pradesh that in case of circumstantial evidence,

motive for committing the crime on the part of the accused assumes importance.

And in our case the prosecution has failed to establish the motive behind the guilt.

Absence of Actus Reus:

In our case, firstly there is neither active nor passive conduct on the part of the respondent, Shikhar

and Sarda. That is lack of Actus Reus in the case and secondly, there is no incident recorded which

infers the guilty mind or action of the respondent which tend to result in such consequences (i.e.

Arundathi’s death)

Burden of Proof and Benefit of Doubt:

There no such pre planned Preparation of the act or any negative previous conduct; if it was so

then she could not manage to run away from the spot. If they pre-planned the murder of

Arundhati, they would not let her ran out of the [Link], they are innocent and should be

acquitted.

Preparation and Subsequent Conduct:

It is clear that the prosecution failed to establish the case beyond the reasonable doubt and when

there is any hypothesis and even a certain doubt as to guilt then the benefit of doubt must go in the

favour of the accused. Hence, both Shikhar and Sarda have right to be acquitted.

Evidentiary Value of Dying Declaration:

In our present case, the statement made by the deceased before the investigating officer(sub-

inspector) shall not be relied upon solely to convict the Accused Shikhar and Sarda.
ISSUE NO.3 WHETHER THE ACCUSED SHIKHAR AND SARDA ARE LIABLE FOR

ABETMENT OF SUICIDE UNDER SECTION 306 OF IPC?

It is most humbly submitted by the counsel that the respondent Shikhar and Sarda are not liable

for abetment of suicide under Section 306 of IPC as on careful reading of Section 306 read with

Section 107 of IPC, the ingredients of the offence under Section 306 are not made out. Hence, they

are not liable under section 306 of IPC for abetment of suicide.
 ARGUMENTS ADVANCED:

ISSUE NO. 1: WHETHER THE ACCUSED SHIKHAR AND

SARDA ARE LIABLE FOR DOWRY DEATH UNDER SECTION
304-B OF IPC?
It is humbly submitted before the honorable court that the respondents Shikhar and Sarda are not
liable for Dowry Death under section-304B of IPC as none of the ingredients of section 304-B are
fulfilled herein as it is a case of suicide.

In the case of Kaliyaperumal v. State of Tamil Nadu24SC held that the presumption shall be raised
only on proof of the following essentials:

1. The question before the court must be whether the accused has committed the dowry death
of a woman.
2. The woman was subjected to cruelty or harassment by her husband or his relatives.
3. Such cruelty or harassment was for, or in connection with, any demand for dowry.
4. Such cruelty or harassment was soon before her death.

That means the presumption given under section 304-B of IPC and under section 113-B of the
Evidence Act, 1872 shall only be raised, if the prosecution shows material evidence to proof the
abovementioned essentials otherwise, it is not maintainable.

Similarly, in our case the above points are not established beyond reasonable doubt.

Not subjected to Cruelty or Harassment:

In the case of Ramesh Chander v. State of Delhi25Justice RS Teji has observed that, “it is
necessary to establish the offence of section 498-A IPC to prove the charges under section 304-B

24
Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828.
25Ramesh Chander v. State of Delhi, (2001) 9 SCC 618
of IPC and if failed to lead sufficient evidence to prove the guilt of respondent under section 498-
A of IPC, tantamount to not proving the commission of offence under section 304-B.

Whose observations have been relied upon by SC in Vipin Jaiswal V. State of A.P.26, relevant
portions from the judgment read as under:

“the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to
cruelty or harassment by the accused. From the evidence of the prosecution, we find that they have
made general allegations of harassment by the accused towards the deceased and have not brought
in evidence any specific acts of cruelty or harassment by the accused on the deceased.

In our view, onus was on the prosecution to prove beyond reasonable doubt the ingredient of
Section 498A, IPC and the essential ingredient of offence under Section 498A is that theaccused,
as the husband of the deceased, has subjected her to cruelty as defined in the Explanation to
Section 498A IPC. Similarly, for the Court to draw the presumption underSection 113B of
the Evidence Act that the appellant had caused dowry death as defined in Section 304B, IPC, the
prosecution has to prove besides the demand of dowry, harassment or cruelty caused by the
accused to the deceased soon before her death. Since the prosecution has not been able to prove
beyond reasonable doubt this ingredient of harassment or cruelty, neither of the offences under
Sections 498A and 304B, IPC has been made out by the prosecution.”

Accordingly, the essential ingredient of offence under section 498-A is that, the husband or his
relative has subjected her to cruelty as defined in the explanation of section 498-A of IPC, which
includes:

Any willful conduct which is of such a nature as is likely to drive the woman to commit
suicide:

And which is absent in our case, there is no willful conduct on the part of shikhar and sarda
which would drive Arundhati to commit suicide. Firstly, it is nowhere provided that she had scuffle
with her in laws, though in the very beginning she had some differences with her in laws on many
occasions, that can be due to some ideological differences between them as after

26
VipinJaiswal V. State of A.P. (2013) 3 SCC 684
marriage it takes a little time to adjust by everyone, and so far it is provided that the matters were
settled amicably most of the times.

Secondly, Shikhar the husband of the deceased was unable to maintain his lifestyle and was facing
financial crises, he has incurred the debt of Rs. 5 lakhs, had the responsibilities of his grandmother,
sister, parents, his wife and children too. So, considering this he was in great stress and suffered
from mental distress. In fact, he profoundly required the support his wife i.e. Arundhati to face ups
and downs of the wife but on the contrary she acted as a person of frail mentality and committed
suicide leaving behind her 2 years old daughter and only 9 year old son. He made the life of her
in laws more miserable by this act.

Additional session Judge, Manoj Jain in a case gave a view that,“ it would be hazardous to
unnecessary overstretch there trivial issues of any household and to give those color of cruelty as
defined in explanation attached to section 498-A of IPC. Therefore, minor quarrel or one or two
stray incidents spread over a period of 4 yrs. would not make it to be a case falling within the ambit
of cruelty or Dowry Death.

Harassment to meet any unlawful demand:

In our case there is no such demand, as nothing has been given in the facts which may even
remotely suggest that Arundhati was subjected to any harassment on account of any unlawful
demand of any property or valuable security.

Moreover, this is just a frivolous allegation made against Shikhar and Sarda just to harass them.
One such view was expressed by Former Justice KT Thomas in his article titles ‘woman and
the law’, that “there is a general complaint that section 498-A of the IPC is subject to gross
misuse.”

As when women accuse their husbands under section 498-A which is a non bailable and cognizable
offence, if the man is innocent, he doesn’t at once get justice and suffers without any mistake.

Therefore, the court while dealing with such sensitive issue must be pretty sure and invoke such
section carefully as safeguard an innocent person from harassment made on account of baseless,
unfounded and malicious allegations like in our case, except the small issues , there is no incident
of harassment with a view to coerce her to meet any unlawful demand.

In the case of State V. Sridhar27, it was held that, “where the prosecution relied only on incident
of unhappiness of deceased with her husband and the allegation was only in the form ofsuggestion,
it does not establish criminal offence under either or both charges. Hence, conviction under
section 304-B is improper.

Not in connection with any demand of dowry:

It is most respectfully submitted by the counsel that the second essential to invoke the presumption
of Dowry Death under section 304-B requires that such cruelty or harassment was for, or in
connection with, any demand of Dowry which is not maintainable in our present case,as according
to dowry defined under section 2 of Dowry Prohibition Act, 1961 provides Dowry must be made
in relation to marriage of deceased(Arundhati) and the husband (Shikhar) and no such demand has
been ever made by him from Arundhati or her parents.

• In the case of Durga Prasad V. State of Madhya Pradesh28, it was held that, “in order to
bring home a conviction under section 304-B of IPC, it will not be sufficient to only lead
evidence showing that cruelty or harassment had been meted out to the victim, but that
such treatment was in connection with the demand of dowry.”
• In the case of Manohar Singh V. Daljit Singh29, it was held that demand of Rs. 50,000 to
start work not be construed as Demand of Dowry”

And in our case Shikhar has taken a debt of Rs. 5 Lakhs from Arundhati’s parents not as Dowry
but as a help in his condition of financial crises.

• In the case of Jaspal Singh V. State of Punjab30, it was held that, “demand of a sum of Rs.
3 lacs was made by way of help, had no connection with marriage performed. It was not
demand of dowry within meaning of DOWRY.”

27
State V. Sridhar, 2000 CrLJ 328 (kant.)
28Durga Prasad V. State of Madhya Pradesh, 2010(3) RCD (criminal)219 SC
29
Manohar Singh V. Daljit Singh, 2011 (2) RCR (criminal) 356 (P&H)
30
Jaspal Singh V. State of Punjab, 2011 (1) RCR (criminal) 490 (P&H)
 • In the case of Gurcharan Singh V. State of Punjab31, it was held that “the Demand for a
sum of Rs. 70,000 for setting up a television shop would not amount to demand of dowry.”
• In the case of Sunil [Link] of Maharashtra,32it was held that “any demand
made by accused cannot be said to be demand made for dowry.”
• In the case of Sanjiv V. State33, it was held that, Mere evidence of Cruelty or harassment
is not sufficient to attract provisions of section 304-B of IPC.

So, considering all the above mentioned cases and arguments, the counsel wants to submit that,
there is no cruelty or harassment to Arundhati in connection with any demand of dowry.

Cruelty soon before her death:

The interpretation of expression “soon before her death” has been done in the following cases as:

In the case of Satya Narayan Tiwari@ Jolly V. State of Uttar Pradesh34, it was held that, “the
expression soon before death is a relative term and would depend upon circumstances of each
case. It is left to be determined by courts depending upon facts and circumstances of the case.
And further held that;
iii. The expression ‘soon before’ would normally imply that the interval should not be
much between the concerned cruelty or harassment and the death in question.
iv. If the alleged incident of cruelty is remote in time and has become stale enough not to
disturb the mental equilibrium of the woman concerned, it would be of no consequence.

And herein in our case, there is no such incident of cruelty but any other small fight between
Arundhati and her in laws is found soon before her death.

In the case of Mustafa ShahdalShaikh V. State of Maharashtra35, it was held that,“ the
expression ‘soon before her death’ means interval between cruelty and death should not be

31
Gurcharan Singh V. State of Punjab, 2011 (1) RCR (criminal)180 (P&H)
32
Sunil [Link] of Maharashtra,2010 (&) RCR (criminal) 205 (Bombay)
33
Sanjiv V. State, 2010 (6) RCR (Criminal) 2094: 2009 (164) 459 Delhi
34
Satya Narayan Tiwari@ Jolly V. State of Uttar Pradesh, 2010 (4) RCR (Criminal) 939:2010(6) R.A.J. 342 SC
35Mustafa ShahdalShaikh V. State of Maharashtra, (2012) 11 SCC 397
 much. There must be existence of a proximate and live links between the effect of cruelty
based on dowry demand and the concerned death.”

After considering the above mentioned cases, we infer that 3rd essential requires live links
between the Cruelty done and the concerned death. So, the counsel further contends that:
1) Firstly, there is no cruelty on the part of Shikhar and Sarda as pleaded earlier.
2) Secondly, there is no such act, soon before the death of Arundhati.
3) She committed suicide due to her frail mentality and for her foolish decision another person
cannot be blamed.
4) Though Arundhati was well-educated and was a brilliant student she failed to manage her
married life.
5) Only due to low lying disturbances in her married life she dragged herself into mental
depression and started acting in a more agitated manner as provided in the factsheet that:
i. Firstly, she used to argue with her in laws on many occasions.
ii. Secondly, she even tried to slit her wrist and wanted to end her life.
iii. Thirdly, investigating officer found a suicide note by Arundhati dated 9th Nov.,
2014 (while conducting search of a house under section 157 of Cr.P.C.)
iv. Fourthly, she committed suicide by pouring kerosene oil on her and set herself to
fire on 4th Jan., 2015.

So, we can say that Arundhati was a woman of low tolerance power, was hyper-sensitive and
was having an unstable mind, that’s why she again and again tried to end her life by her own.

Hence, there is nothing found in the name of Cruelty or Harassment soon before her death. In fact
by such acts of slitting her wrists and suicide note she was torturing her in laws and was making
their miserable life much and more difficult.

In the case of Manikandan V. State36,Justice P Devadass observed that, “sometimes the

decision to commit suicide might be taken by the victim himself/herself, unaccompanied
by any act or instigation etc. on the part of the accused. A person may die like a coward
like on his failure in the examination, a student may commit suicide.

36
Manikandan V. State, (Criminal A(MD) No. 142 of 2016)
 They are weak minded. They are persons of frail mentality and for their foolish act another
person cannot be blames as the case in our present situation.

There is no willful conduct or act or harassment in connection with any demand of dowry, soon
before her death which would make Shikhar and Sarda liable under section [Link], it is
purely a case of suicide and not Dowry Death.
ISSUE NO.2: WHETHER THE ACCUSED SHIKHAR AND SARDA ARE
LIABLE FOR MURDER UNDER SECTION 302 OF IPC ?
It is most humbly submitted by the counsel that the respondent Shikhar and Sarda are not liable
for murder under section 302 of IPC, because the facts and circumstances are such that the guilt
of accused is not established beyond reasonable doubt.

Weak Circumstantial Evidence:

In the case of Satish Nirankari v. State of Rajasthan37 SC held that:

1. Circumstances should be fully proved.

2. Circumstances should be conclusive in nature.
3. All the facts established should be consistent only with the hypothesis of the guilt.
4. The circumstances should, to a moral certainty, exclude the possibility of guilt of any
person other than the accused.

And in our case it is clear from the factual description that it is a case of circumstantial evidence
and there is no eye witness to the incident in question.

Another aspect which is to be kept in mind is that it is for the prosecution to prove the guilt of the
accused charged for such an offence and too beyond reasonable doubt. In a case where there is no
eyewitness and, which rests upon circumstantial evidence, the prosecution is obligated to prove all
those circumstances which leave no manner of doubts to establish the guilt of the accused person,
.i.e., chain of continuous circumstances must be complete and must clearly point to the guilt of the
accused. Chain of continuous circumstances means that all the circumstances are linked up with
one another and the chain do not get broken in between.

And herein no such complete chain is found and there is reasonable doubt as to the guilt of the
accused, so the benefit of doubt must go in the favour of the accused. And further, we keep in mind
that this court is dealing with criminal matter where respondent is charged with committing murder
of Arundhati. So, the criminal cases cannot be decided on the basis of hypothesis.

37
SatishNirankari v. State of Rajasthan, 2007 [Link] 2983, RLW 2008 (1) Raj. 477
 • In the case of Padala Veera Reddy V. State of A.P.,38Following tests laid down which
need to be kept in mind:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently
and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of
the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no
escape from the conclusion that within all human probability the crime was committed by the
Accused and none else; and
• Sir Alfred Wills in his book Wills' Circumstantial Evidence (Chapter VI) lays down the
following Rules specially to be observed in the case of circumstantial evidence:
(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond
reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which
infers legal accountability.
(3) in order to justify the inference of guilt, the inculpatory facts must be incompatible with
the innocence of the Accused and incapable of explanation, upon any other reasonable
hypothesis than that of his guilt; and
(4) if there by any reasonable doubt of the guilt of the accused, he is entitled as of right to be
acquitted.
Relying on the above mentioned points, the Accused Shikhar and Sarda are entitled of right to be
acquitted as the inculpatory facts are incompatible with the guilty mind of the accused, and there
is reasonable hypothesis of their innocence.

Absence of Mens Rea:

It is humbly submitted to the hon’ble court that to establish the guilt of the accused under section
302, two essentials elements are Mens Rea and Actus Reus. Mensrea is an essential part of
deciding whether an act is culpable or not. Mensrea displays specific intent by the accused for the
commission of the crime for which he is charged. The accused must be proven to have knowingly
committed the crime, and had full knowledge of their actions and must have malafide

38PadalaVeera Reddy V. State of A.P, 1989 Supp. (2) SCC 706: 1991 SCC (Cri.) 407
intent towards the victim. But herein, by relating it to the facts of our case there is no such incident
which proves the Mens Rea of the accused, infact Arundhati never had any quarrel with her
mother-in-law i.e. Sarda, the accused, minor incidents of arguments with her husband on small
issues can take place in any household and it would be unsafe and rather hazardous to
unnecessarily overstretch these trivial isuues and to give those colour of criminal intention.

However, if respondent had the intention to commit the murder of arundhati, they could have run
away from the spot of incident. As admittedly, there is no eyewitness of the whole incident.

If the respondent had intention to commit murder shikhar would not have brought water to douse
the fire and sarda would not have shouted for help and ran behind her.

It was held in the case of Wakkar v. state of uttar Pradesh39that in case of circumstantial evidence,
motive for committing the crime on the part of the accused assumes importance. And in our case
the prosecution has failed to establish the motive behind the guilt.

Absence of Actus Reus:

The second main essential for constituting a crime is the Actus Reus. Actus Reus is the physical
aspect of a crime. The accused needs to have done something or omitted to do something, resulting
in injury to the plaintiff, or the victim in civil cases. Without a guilty act, there can beno crime
an act alone does not make a crime. In certain cases, circumstances of the case are also taken into
consideration, and are often used to either conclusively prove guilt, or can be used to prove
reasonable doubt of intention.

• In Re: Jayaraman Case, Justice AnantanarayananNatesen40, it was observed that,

“the new test (foresight of consequences) is found in the requirement that the accused person, when
pursuing the life of active conduct (or passive) in cases where there is a legal duty to action which
resulted in the harm for which he is charged i.e. the Actus Reus, must have been aware that certain
sped fled harmful consequences would or could follow. Such a test arises naturally from the
adoption of the ethical approach to the problem of crime, since in many minds it is hard to see any
moral blame.”

39Wakkar v. state of uttar Pradesh, (2011) 3 SCC 306

40
Re: Jayaraman Case, AIR 1949 Mad. 66
Similarly, in our case, firstly there is neither active nor passive conduct on the part of the
respondent, Shikhar and Sarda. That is lack of Actus Reus in the case and secondly, there is no
incident recorded which infers the guilty mind or action of the respondent which tend to result in
such consequences (i.e. Arundathi’s death).

Burden of Proof on Prosecution and Benefit of Doubt to respondent:

The inalienable interface of presumption of innocence and the burden of proof in a criminal case
on the prosecution has been succinctly expounded in the following passage from the treatise "The
Law of Evidence" fifth edition by Ian Dennis at page 445:

The presumption of innocence states that a person is presumed to be innocent until proven guilty.
As explained above, the burden of proof Rule has a number of functions, one of which is to provide
a Rule of decision for the fact finder in a situation of uncertainty. Another function is to allocate
the risk of misdecision in criminal trials. Because the outcome of wrongful conviction is regarded
as a significantly worse harm than wrongful acquittal the Rule is constructed so as to minimise the
risk of the former. The burden of overcoming a presumption that the Defendant is innocent
therefore requires the state to prove the Defendant's guilt.

The above quote thus seemingly concedes a preference to wrongful acquittal compared to the risk
of wrongful conviction. Such is the abiding jurisprudential concern to eschew even the remotest
possibility of unmerited conviction.

• The Concise Dictionary of Law, Oxford Paperbacks has this comprehensive yet
succinct definition of burden of proof which is worthy of reproduction:

"Burden of Proof: The duty of a party to litigation to prove a fact or facts in issue. Generally the
burden of proof falls upon the party who substantially asserts the truth of a particular fact (the
prosecution or the Plaintiff). A distinction is drawn between the persuasive (or legal) burden,
which is carried by the party who as a matter of law will lose the case if he fails to prove the fact
in issue; and the evidential burden (burden of adducing evidence or burden of going forward),
which is the duty of showing that there is sufficient evidence to raise an issue fit for the
consideration of the trier of fact as to the existence or non-existence of a fact in issue.
This applies with full force particularly in fact situations where the charge is the sought to be
established by circumstantial evidence.

• Addressing this aspect, however, is the following extract also from the same treatise
"The Law of Evidence" fifth edition by Ian Dennis at page 483:

Where the case against the accused depends wholly or partly on inferences from circumstantial
evidence, fact finders cannot logically convict unless they are sure that inferences of guilt are the
only ones that can reasonably be drawn. If they think that there are possible innocent explanations
for circumstantial evidence that are not "merely fanciful", it must follow that thereis a reasonable
doubt about guilt. There is no rule, however, that judges must direct juries in terms not to convict
unless they are sure that the evidence bears no other explanation than guilt.

• Jose vs. The Sub-Inspector of Police, Koyilandy and Ors.,41it is held that,
“The circumstances brought forth by the prosecution do not Rule out in absolute terms the
hypothesis of the innocence of the Appellant. We thus consider it to be wholly unsafe to maintain
his conviction as recorded by the courts below. We are therefore inclined to extend benefit of doubt
to him. The conclusions drawn by the courts below are not tenable on the basisof the evidence
available. The appeal is thus allowed and the conviction and sentence recorded by the courts below
is hereby set aside. The Appellant be released from the jail forthwith if he is not required in any
other case.”

Hence, by referring to all the above mentioned points, and linking it with our present case, it is
clear that the prosecution failed to establish the case beyond the reasonable doubt and when there
is any hypothesis and even a certain doubt as to guilt then the benefit of doubt must go in the favour
of the accused. Hence, both Shikhar and Sarda have right to be acquitted.

Preparation and subsequent conduct:

Section 8 of The Indian Evidence Act, 1872 provides with:

“The conduct of any party to any suit or proceeding is relevant if such conduct influences or is
influenced by any fact in issue or relevant fact or whether it was previous or subsequent

41Jose vs. The Sub-Inspector of Police, Koyilandy and Ors., (2013) [Link] 919 SC
thereto.”And in our case the subsequent conduct of the respondents is positive they tried to save
her by shouting for help and bringing water to douse the fire, and took her to the hospital. In these
kinds of cases the accused tend to flee away but herein the subsequent conduct of accusedis
positive and that should be taken into consideration as relevant. Secondly, there no such pre
planned Preparation of the act or any negative previous conduct; if it was so then she could not
manage to run away from the spot. If they pre planned the murder of Arundhati, they would not
let her ran out of the house. Hence, they are innocent and should be acquitted.
Evidentiary Value of Dying Declaration:
• In case of Sukhar V. State of Uttar Pradesh,42 it was held that, “the statement given by
the injured to the investigating officer is not admissible as Dying Declaration under section
32.
• In case State of Rjasthan V. Ashfaq Ahmad,43it was held that, “when the statement of the
deceased was recorded by the Investigation officer it was not a Dying declaration, the
conviction recorded only on the basis of this statement were therefore not correct.

So, in our present case, the statement made by the deceased before the investigating officer
(sub-inspector) shall not be relied upon solely to convict the Accused Shikhar and Sarda.

42Sukhar V. State of Uttar Pradesh, 2000 (2) KLT SN 10

43
State of Rjasthan V. Ashfaq Ahmad, 2010 (AIR 2009 SC 2307)
ISSUE NO.3 WHETHER THE ACCUSED SHIKHAR AND SARDA ARE
LIABLE FOR ABETMENT OF SUICIDE UNDER SECTION 306 OF IPC?
It is most humbly submitted by the counsel that the respondent Shikhar and Sarda are not liable
for abetment of suicide under Section 306 of IPC as on careful reading of Section 306 read with
Section 107 of IPC, the ingredients of the offence under Section 306 are not made out.

The counsel want to rely upon the judgment of Amalendu Pal alias Jhantu Vs. State of West
Bengal44where SC held that," The legal position as regards Sections 306 IPC which is long settled
was recently reiterated by the Court in the case of Randhir Singh v. State of Punjabas follows:
"Abetment involves a mental process of instigating a person or intentionally aiding that person in
doing of a thing. In cases of conspiracy also it would involve that mental process of entering into
conspiracy for the doing of that thing. More active role which can be described as instigating or
aiding the doing of a thing is required before a person can be said to be abetting the commission of
offence under Section 306IPC.

In case of State of W.B. v. Orilal Jaiswal45l the Court has observed that the courts should be
extremely careful in assessing the facts and circumstances of each case and the evidence adduced
in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced
her to end the life by committing suicide. If it transpires to the court that a victim committing
suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite
common to the society to which the victim belonged and such petulance, discord and differences
were not expected to induce a similarly circumstanced individual in a given society to commit
suicide, the conscience of the court should not be satisfied for basing a finding that the accused
charged of abetting the offence of suicide should be found guilty."

Similarly, in our present case Arundhati acted in a hypersensitive manner as there were small or
trivial differences between them which is quite common and that may be possible because Shikhar
was disturbed and suffering from mental depression due to financial complications. Moreover,
there is nowhere provided in the facts that Arundhati had ever any kind of scuffle

44Amalendu Pal alias Jhantu Vs. State of West Bengal (2010) 1 Supreme Court Cases (Cri) 896
45State of W.B. v. OrilalJaiswal, (1994) SCC 73
with her mother-in-law that would instigate her to commit suicide. Hence, there is not even a single
statement or record which shows the abetment for the commission of suicide.

In order to hold an accused guilty of an offence under Section 306 IPC, the Court must
scrupulously examine the facts and circumstances of the case and also assess the evidence adduced
before it in order to find out whether the cruelty and harassment meted out to the victim had left
the victim with no other alternative but to put an end to her life. It is also to be borne in mind that
in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement
to the commission of suicide. Merely on the allegation of harassment without their being any
positive action proximate to the time of occurrence on the part of the accused which led or
compelled the person to commit suicide, conviction in terms of Section 306 IPC should not be
sustainable.

Therefore, in order to bring a case within the purview of Section 306 of IPC, the person who is
said to have abetted the commission of suicide must have played an active role by an act of
instigation or by doing certain act to facilitate the commission of suicide. As held by Supreme
Court in case, Praveen Pradhan v. State of Uttaranchal46that offence of abetment by instigation
depends upon the intention of the person who abets. Also in case, Madan Mohan Singh Vs. State
of Gujarat and Another. ,47 SC is of the view that:"In order to bring out an offence under Section
306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with
an intention to bring out the suicide of the concerned person as a result ofthat abetment
is required. The intention of the accused to aid or to instigate or to abet the deceased to commit
suicide is a must for this particular offence under Section 306, IPC.

And the counsel is of the clear opinion that there is no question of presence of such intention in
our present case, required for offence under Section 306, IPC as nothing has been provided in the
facts with regard to this.

In Ramesh Kumar V. State of Chhattisgarh (2001) 9 SCC 618, the Court acquitting the accused
said: "A word uttered in a fit of anger or emotion without intending the consequences to

46PraveenPradhan v. State of Uttaranchal, (2012) 9 SCC 734

47
Madan Mohan Singh Vs. State of Gujarat and Another. (2010) 8 Supreme Court Cases 628
actually follow cannot be said to be instigation.”Therefore, firstly the presence of mens rea is the
necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel
or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and
emotional. Secondly, their marital relations get ruined after the birth of the second child, i.e.,
after 10thApril, 2014 ensued by the financial instability then the suicide note by Arundhati dated
9thNovember 2014 and then Arundhati committed suicide on 4th January 2015.

Assuming that the deceased had taken the arguments seriously, but she had enough time in between
to think over and reflect and to weigh the pros and cons of the act by which she ultimately ended
her life. Therefore, it cannot be said that the arguments, which had been done between the deceased
and respondent drived the deceased to commit suicide. Suicide by the deceased on 4th January
2015 is not proximate to the arguments made. The fact that the deceased committed suicide on 4th
January 2015 would itself clearly pointed out that it is not the direct result of the quarrel taken
place between them.

Hence, Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". What
constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a
reasonable certainty to incite the consequence must be capable of being spelt out. The present one
is not a case of that where the accused had by his acts or omission or by a continued courseof
conduct created such circumstances that the deceased was left with no other option except to
commit suicide in which case an instigation may have been inferred as word uttered in the fit of
anger or emotion without intending the consequences to actually follow cannot be said to be
instigation."

It is extremely unfortunate that person has committed suicide and brought her life to an end for
stress arising out of matrimonial dispute which in these days is not a rare of the rarest happenings
in the social spectrum. Thus, continuance of proceedings against respondents shall be the abuse of
process of law. Because, guilt of the accused must be proved by the direct evidence and active role
on the part of him in the abetment by direct or indirect instigation or to act or facilitate to
commission of suicide which will have the necessary ingredients but are not there in our present
case. Hence, they are not liable under section 306 of IPC for abetment of suicide.
 PRAYER

In the light of arguments advanced and authorities cited, the counsel on the behalf of

Respondents will like to pray before the honorable Sessions Court to kindly –

Acquit the defendant of all the charges-

Of Dowry Death, thereby, acquit from any punishment under section 304-B, IPC;
Of murder and, thereby, acquit from any punishment under section 302, IPC;
Of Abetment of suicide U/S- 306, IPC;

And to pass any other judgment which it may deem fit and proper in the light of natural justice,
equity and good conscience for which the counsels on the behalf of respondents shall duty bound
forever pray.

Humbly submitted by:

Counsel on the behalf of Respondents

IN THE HON’BLE SUPREME COURT OF
AKHAND BHARAT

CIVIL ORIGINAL JURISDICTION

Under Article 139A r/w Article 32 of the Constitution of Akhand Bharat

IN THE MATTER OF

Ms. GINNY POTTER & Ors .................................................................................PETITIONERS

Vs.

UNION OF INDIA…............................................................................................. RESPONDENT

Written Submission on behalf of the

Petitioners

Page |
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS ............................................................................................................. 22

INDEX OF AUTHORITIES ............................................................................................................... 24
DOCUMENTS CITED ............................................................................................................ 25

STATEMENT OF JURISDICTION.................................................................................................. 26
STATEMENT OF FACTS.................................................................................................................. 27
STATEMENT OF ISSUES ................................................................................................................. 29
SUMMARY OF ARGUMENTS......................................................................................................... 30
ARGUMENTS ADVANCED ............................................................................................................. 32
I. THAT THE 103rd CONSTITUTIONAL AMENDMENT IS NOT CONSTITUTIONALLY
VALID ................................................................................................................................................... 32
A. VIOLATION OF EQUALITY CODE..................................................................32
(i) Reservation for Backward Classes.....................................................................32
(ii) Economic Backwardness cannot be sole criteria for Reservation .................................... 34
B. CONTRAVENTION OF BASIC STRUCTURE DOCTRINE ....................................... 35
(i) Width and Identity Test................................................................................. 35
C. VIOLATION OF ART. 19(1)(g) OF CONSTITUTION ..............................................37
II. THAT THE KARNAIL SINGH JUDGMENT IS NOT IN VIOLATION OF MANDIRA
SAWHNEY JUDGMENT OF 1993 ................................................................................................... 38
A. APPLICATION OF THE CREAMY LAYER EXCLUSION PRINCIPLE ON SCs & STs ....38
(i) Acceptance of Creamy layer exclusion principle ......................................................................... 38
(ii) Creamy layer exclusion principle can be extended to SCs and STs .......................................... 40
B. VALIDITY OF THE ART. 16(4A) AND ART. 16(4B) OF CONST. OF AKHAND BHARAT…42
III. THAT THE “CREAMY LAYER EXCLUSION” PRINCIPLE SHOULD BE EXTENDED TO
SCHEDULED CASTES (SCS) AND SCHEDULED TRIBES (STs) RESERVATION................ 45
A. THE “CREAMY LAYER EXCLUSION” PRINCIPLE AS APPICABLE TO SCs AND STs
STANDS ON THE CONSTITUTIONAL PEDESTAL OF ART. 14. ................................. 45
(i) Test of Reasonable Classification ......................................................................45
(ii) Principle of Substantive Equality ................................................................................................. 46
(iii) International Case study .............................................................................................................. 47
B. APPLICABILITY OF CREAMY LAYER EXCLUSION PRINCIPLE ON SCs AND STs DOES
NOT VIOLATE THE BASIC STRUCTURE OF THE CONSTITUTION ............................. 47

C. CASTE SHOULD NOT BE TREATED AS THE SOLE CRITERIA FOR DETERMINING

BACKWARDNESS WITH RESPECT TO SCs and STs ................................................ 49
D. “PROTECTIVE DISCRIMINATION” UNDER ART. 15(4) AND ART. 16(4) .................... 50
PRAYER............................................................................................................................................... 52
 LIST OF ABBREVIATIONS

TERMST MEANING

Hon’ble Honourable

SC Supreme Court

A.I.R. All India Reporter

Ors. Others

Art. Article

v. Versus

J. Justice

CJI Chief Justice Of India

SCs Scheduled Castes

STs Scheduled Tribes

SEBC Socially and Educationally Backward Classes

OBCs Other Backward Classes

Supp. Supplement

SCR Supreme Court Reports

Pg. Page

SAT Scholastic Assessment Test

CAD Constituent Assembly Debates

Para. Paragraph

IAS Indian Administrative Services

IPS Indian Police Service

AIS All India Services

 INDEX OF AUTHORITIES

CASES REFERRED T PAGE NO.

1. General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36. 13,22

2. M.C. Sharma v. The Punjab University ,Chandigarh ,AIR 1997 P&H 87. 13

3. Maneka Gandhi v. Union of India ,(1978) 1 SCC 248 13

4. [Link] v. State of Tamil Nadu ,(2007) 2 SCC 1 13

5. Shayara Bano v. Union of India & Ors.,(2017) 9 SCC 1. 13

6. M. Nagraj v. Union of India & Ors., (2006) 8 SCC 212. Passim

7. State of Kerala v. N.M. Thomas (1976) 2 SCC 10. Passim

8. Indira Sawhney v. Union of India ,1992 Supp (3) SCC 217. Passim

9. M.R. Balaji v. Union of India (1963) Supp. 1 S.C.R 439. 15

[Link] Bharti v. State of Kerala AIR 1973 SC 1461 16

11. AIIMS Students Union v. AIIMS (2002) 1 SCC 428. 17

12. State of Andhra Pradesh v. Balaram, AIR 1972 SC 1375. 17

13. C.A. Rajendran v. Union of India, AIR 1968 SC 507. 17

14. Jarnail Singh Vs. Lachhmi Narain Gupta, (2018) 10 SCC 396. Passim

[Link] Captive Power Co. Pvt. Ltd. v. Lafarage India Pvt. Ltd., AIR 2014 22
SC 525
16. Union of India v. Pfizer Ltd., AIR 2018 SC 265 22

17. Keshav Mills Co. Ltd. v. Commissioner of Income-Tax, Bombay 24

North,(1965) 2 SCR 908.

18. K. Thimmappa v. Chairman, Central Board of Directors, SBI AIR 2001 SC 24

467.
19. Akhil Bharatiya Soshit Karamchari Sangh [Link] of India,1981 24
SCR (2) 185
20. Ashok Kumar Thakur v. Union of India, 2008 (6) SCC 1 24,28

21. Shri Ram Krishna Dalmia v. S.R. Tendolkar, AIR 1958 SC 538 28

BOOKS REFERRED PAGE PPAGE NO. P

DD BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (2010) 10

WEBSITES PAGE NO.

[Link] Passim

[Link] Passim

[Link] 17

[Link] 21

STATUTE REFERRED PAGE PPAGE NO. P

THE CONSTITUTION OF INDIA ( 1950 ) Pasim

DOCUMENTS CITED
1. Sandra Fredman, ‘Substantive equality revisited’, Oxford University Press and New York
University School of Law International Journal of Constitutional Law, (Vol. 14 Issue 3), Jul. 2016.

2. Veronica Frisancho Robles and Kala Krishna, Affirmative Action in Higher Education in India:
Targeting, Catch up and Mismatch at IIT Delhi, Indian Statistical Institute, (Nov. 2011),
[Link]

3. Virendra Kumar, Dynamics of Reservation Policy: Towards a more inclusive social order , Journal
of Indian Law Institute, (2008), [Link]/stable/43952175
 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Akhand Bharat has the jurisdiction to hear the present matter in the case
of Ms. Ginny Potter & Ors. v. Union of India in furtherance of the fact:

A. That the petitioners in the instant case have approached the SC under Art.321 of the Constitution
of Akhand Bharat invoking the original jurisdiction of the SC.

B. In order to dispose the case judicially the Hon’ble SC has suo moto tagged the petitions by setting
up a 11 judge Constitutional bench for deciding the legal questions involved in the matter under Art.
139A2 of the Constitution of Akhand Bharat.

1
Remedies for enforcement of Rights conferred by Part III of the Constitution – (1) The right to move the SC
by appropriate proceedings for the enforcement of rights conferred by Part III is guaranteed.
(2) The SC shall have the 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 rights conferred by Part III.
(3) Without prejudice to the powers conferred on the SC by clauses (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 SC
under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution. 2 Transfer of certain cases – (1) Where cases involving the same or substantially the same questions
of law are pending before the SC and one or more HCs or before two or more HCs and the SC is satisfied on its own
motion or an application made by the Attorney – General of India or by a party to any such case that such questions
are substantial questions of general importance, the SC may withdraw the case or cases pending before the HC or
the HCs and dispose of all the cases itself:
Provided that the SC may after determining the said questions of law return any case so withdrawn together with a
copy of its judgment on such questions to the HC from which the case has been withdrawn, and the HC shall on
receipt thereof, proceed to dispose of the case in conformity with such judgment.
(2) The SC may, if it deems it is expedient so to do for the ends of justice, transfer any case, appeal orother
proceedings pending before any HC to any other HC.
 STATEMENT OF FACTS

I. Republic of Akhand Bharat

An independent union of states consisting of 28 states and 9 union territories got its independence from
British rule in 1947 by non-violent revolution. The Constitution of Akhand Bharat was drafted by the
members of its Constituent Assembly by taking inspiration from the Constitutions of major democracies
of the world. Democracy, Equality and Secularism are the essence of the Constitution. It encompasses the
values of Human Dignity and Equality. It guarantees to its citizens certain fundamental rights whose
scope is considerably enlarged by the dynamic judgments of the Supreme Court of Akhand Bharat.

II. Reservation- Meaning and Aim

Reservation is about reserving access to seats in the government jobs, educational institutions and even
legislatures to certain sections of the population. An affirmative action and Positive Discrimination has
two aims;

1.) Advancement of SC and ST or any socially educationally backward classes of citizens - Article
15(4) & Article 15(5).
2.) Adequate representation of any backward class of citizens in the services under the State - Article
16(4).

III. 103rd Amendment of the Constitution

It provides reservation of jobs in Central Government as well as governmental educational institutions. It
applies to citizens belonging to economically weaker sections from the unreserved category subject to
maximum 10 percent over and above the existing reservation.

IV. Rationale behind 103 rd Amendment

Article 46 of the Constitution of Akhand Bharat which urges the government to protect the educational
and economic interests of the weaker sections of society.

Enable the economically weaker sections to attend higher educational institutions and public employment.

V. Amended Articles
Article 15 (6) is added to provide reservations to economically weaker sections for admission to
educational institutions including private educational institutions, whether aided or unaided by the State,
other than the minority educational institutions referred to in clause (1) of Article 30. The amendment
aims to provide reservation to those who do not fall in 15 (5) and 15(4) (effectively, SCs, STs and OBCs).

Article 16 (6) is added to provide reservations to people from economically weaker sections in
government posts.

An explanation states that "economic weakness" shall be decided on the basis of "family income" and
other "indicators of economic disadvantage."

VI. Ms. Ginny Potter, a leading legal activist has filed a petition in Supreme Court challengingthe
Constitutional validity of 103rd Constitutional Amendment.

VII. Karnail Singh Case

A five judge Constitutional judge bench of SC ruled that “creamy layer exclusion principle can be
extended to SCs and STs to deny reservation to the “elite” among the two underprivileged communities
and ordered the government to notify appropriate norms.

VIII. Government’s Inaction and Claim

Mr. Ron Weasley has approached the Supreme Court against the inaction of the government
Government on its part claim that creamy layer principle was originally introduced in context of OBCs
only. By extending it to SC and STs reservation this 5 judge bench is in violation of Mandira Sawhney
judgment of 9 judge Constitutional bench of 1993.
 STATEMENT OF ISSUES

-I-

Whether the 103rd Constitutional Amendment is Constitutionally valid or not?

-II-
Whether the Karnail Singh Judgment is in violation of Mandira Sawhney Judgment of 1993 or
not?

-III-

Whether the “creamy layer exclusion" principle should be extended to Scheduled Castes (SCs) and
Scheduled Tribes (STs) reservation or not?
 SUMMARY OF ARGUMENTS

I. Whether the 103rd Constitutional Amendment is Constitutionally valid or

not?

It is most humbly submitted that the 103rd Constitutional Amendment is not Constitutionally valid
as it manifestly violates reasonable classification under Art. 14 by treating SC,ST and OBC on the
same footing with economically weaker sections of the society who are not socially backward. The
Amendment inserts Art. 15(6) and Art.16(6) that provides reservation among the unreserved
category, solely on the basis of economic criteria. Thus, departing from the objective of providing
reservations as envisaged by the framers of the Constitution of Akhand Bharat. The 103rd
Constitutional Amendment is in contravention with the doctrine of basic structure as it fails to fulfill
the width and identity test . Moreover,the equality code comprising of Art.14, Art. 15 and Art. 16
is compromised under the existing scheme of reservation exceeding the ceiling limit of 50%.Any
reservation apart from being sustainable on the constitutional anvil must also be reasonable to be
permissible. One of the factors in assessing reasonability would be the character and quantum of
reservation which would either stall or accelerate the pace in achieving the ultimate goal of
excellance enabling the nation to constantly rise at higher levels. In the case at hand, the 103rd
Constitutional Amendment by providing reservation to the extent of 10% over and above the
ceiling limit is uneasonable and arbitrary thus striking at the equality code. Furthermore, the
Amendment is silent in the methods to be utilized for balancing the claims of economically weaker
sections with the demands for administrative efficiency. Lastly, the Amendment violates the
Constitutional Gurantee of freedom of trade, business and profession under Art. 19(1)(g) of the
Constitution of Akhand Bharat.

II. Whether the Karnail Singh Judgment is in violation of Mandira Sawhney

Judgment of 1993 or not?

Mandira Sawhney judgment while explaining the concept of Affirmative Actions and Reservation-
Generally held that Reservation itself contains seeds of termination and is not an end. It is a
meansto achieve equality and is a transient passage to the end. Thus paved the way for creamy layer
exclusion as a measure to terminate reservation. Being followed by the lines of reasoning 9 judge
bench decision was binding on 5 judge bench which has honoured the same. In accordance with
Mandira Sawhney, SCs & STs indubitably fall in the category of backward class which does
not require any quantifiable data. A precondition to collect data on their backwardness imposed
on Art. 16(4A) & Art. 16(4B) of the Const. in M Nagraj was found contrary to Mandira in
Karnail Singh thus leading to the reverence of the 9 judge bench decision.
III. Whether the “creamy layer exclusion" principle should be extended to
Scheduled Castes (SCs) and Scheduled Tribes (STs) reservation or not?

The principle as applicable to SCs and STs does not violate Art.14 of the Constitution since the
concerned intelligible differentia that allows the creation of a class within a class is the economic
status of SCs and STs and the rational object which is to be achieved is their economic and social
upliftment in society. Furthermore, the principle of ‘equality of opportunity’ as enshrined by Art.16
encompasses the doctrine of substantive equality which is validly reflected as long as it meets the
criteria of reasonable classification stated in Art.14. The principle of equality standing as one of
the pillars of the basic structure doctrine drawing a strong correlation from Art.14, 15 and 16 along
with Art.46 in respect of the interest of backward classes upheld the exclusion of creamy layer
from SCs and STs as a constitutional mandate. It is further submitted that the concept of reservation
has acquired a dynamic character on account of fast pace of development thus it is protective
discrimination on part of the State to exclude the well off sections so as to arrive at a truly backward
class which is a necessity in the 21st century. Moreover, the caste criteria on account of which the
SCs and STs population enjoyed a superior position for long needs to be analysed more critically.
 ARGUMENTS ADVANCED

I. Whether the 103rd Constitutional Amendment is Constitutionally valid or

not?

A. VIOLATION OF EQUALITY CODE

The principle of Equality is embodied under Art. 14 to Art. 18 of the Constitution of Akhand
Bharat. Art. 14, Art. 15 and Art. 16 taken together form part of the same constitutional code of
guarantees that supplement each other. 48 While Art. 14 lays down the general principle of equality
forming a genus, Art. 15 and Art. 16 constitute the species under the Equality Code. 49 The Hon’ble
Supreme Court of Akhand Bharat has time and again upheld the equality code as one of the
foremost basic features of the Constitution whose value has been repeatedly emphasized as playing
an integral role in ensuring that equals are not treated unequally. 50The Counsel contends that the
103rd Constitutional Amendment that provides for reservation of jobs in Central Government as
well as government educational institutions for citizens belonging to economically weaker sections
from the unreserved category is violative of equality code.

(i) Reservation for Backward Classes

The framers of the Constitution empowered the State to make special provisions for the upliftment
of socially disadvantaged groups under Art. 14, Art.15 and Art. 16 of the Constitution. This is
evinced by the two main aims for providing Reservation under the Constitution:

a. The advancement of the SC and ST or any socially and educationally backward classes

(SEBC) of citizens as embodied under Art. 15(4) and Art. 15(5)

48 General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36.

49 M.C. Sharma v. The Punjab University ,Chandigarh ,AIR 1997 P&H 87.
50 Maneka Gandhi v. Union of India ,(1978) 1 SCC 248 ; [Link] v. State of Tamil Nadu ,(2007) 2 SCC 1 ;

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

b. To secure the adequate representation of any backward class of citizens in the services under
the State embodied under Art. 16(4).51
During the debates in the Constituent Assembly pertaining to the question as to whether the term
backward class referred to in Art. 16 (4) was based on economic status or caste ,Dr. B.R.

Ambedkar expressed his intention “that a formula had to be produced which would reconcile two
points of view, firstly, that there shall be equality of opportunity; secondly that there shall be
reservations in favour of certain communities which have not so far had a `proper look-in' so to
say into the administration.” 52 .The Constituent Assembly debates evidently show that the framers
intended Reservation to serve as a tool to ensure representation of socially marginalised classes or
political minorities—SCs, STs, as well as other classes of citizens setback by structural, social
disadvantage. Therefore, the 103rd Constitutional Amendment excludes from its ambit the
backward classes consisting of the SC, ST and OBC for whom reservations were envisaged by the
framers of the Constitution of Akhand Bharat.

J. Mathew and [Link] Iyer in State of Kerala v. N.M. Thomas 53

observed that “Equality
meant taking into account and compensating for historical and social circumstances that impeded
an individual’s access to basic public goods in order to sustain life” Thus indicating that
Compensatory Discrimination as a facet of Equality arose on account of social and historical
circumstances of the SC, ST and OBC and not on account of their economic backwardness. J.
Sawant concurring with the majority in Mandira Sawhney v. Union of India54 observed that
“to bring about equality among unequals ,it is necessary to adopt positive measures to abolish
inequality. The equalising measures will have to be the same tools by which inequality was
introduced and perpetuated. Otherwise, equalisation will not be of the unequals.”
The above instances depict that reservation were devised as means necessary for transcending caste
and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate
casteism in the country. Reservation is under-written by a special justification.55 It is contended
that the 103rd Constitutional Amendment treats the SC, ST and OBC on the same
51 Moot Proposition para 2.
52 CADDebates, Constituent Assembly Debates,Center for Law and Policy
Research, [Link] debates.
53 (1976) 2 SCC 10.
54 Indira Sawhney v. Union of India ,1992 Supp (3) SCC 217.
55 Supra note 4
footing with the Economically Weaker Sections (EWS) who are not socially backward. A person
belonging to the backward class under Article 15(4) is disadvantaged on three parameters- social,
economic and educational. On the other hand, the class introduced under Article 15(6) would only
be disadvantaged economically. Moreover, for a person to be eligible for reservation under

Art 16(4), he will have to surpass an extra obstacle of ‘inadequacy of representation in the state’,

unlike the reservation provided under Art 16(6) where he is just required to belong to economically
weaker section of the society. This manifestly violates reasonable classification as it has the effect
of treating unequals equally thus impinging upon equality.

It is submitted that in order to ensure non-discrimination and equality of opportunity under Art. 15
and Art. 16, reservations must not be unreasonable, excessive or extravagant as that would have
the effect of eliminating competition and materially affect efficiency. 56 The 103rd Constitutional
Amendment provides for 10% reservation over and above the existing reservation limit of 50%,
thus being excessive and having an detrimental effect on efficiency as the existing reservations
would exceed the desire limit of 50% . As the reservation for the economically weaker section will
be over and above the existing scheme of 15 per cent, 7.50 per cent and 27 per cent reservations
respectively for the SC, ST and OBC thus the total reservations would amount to 59.50 per cent.

(ii) Economic Backwardness cannot be sole criteria for Reservation

Reservations contemplated under the Constitution of Akhand Bharat sought to remedy the social
backwardness prevalent in the society and to consequently remedy the economic and educational
backwardness. Pandit Jawaharlal Nehru during the discussion on the insertion of Art. 15(4) in the

Constitution, that sought to make a special provision for advancement of the SC,ST and SEBC

,argued that the amendment served the need “to put an end to all those infinite divisions that have
grown up in our social life or in our social structures..” 57 Furthermore, he proclaimed that the
social disadvantage to be remedied was a result of cumulative factors including economic

56M.R. Balaji v. Union of India (1963) Supp. 1 S.C.R 439.

57 CADDebates, Constituent Assembly Debates,Center for Law and Policy
Research, [Link] debates.
considerations. This creates an understanding that reservations take a holistic view of all factors
and are not merely focused on remedying economic backwardness.

In Mandira Sawhney v. Union of India58, the Constitution Bench of the Hon’ble Supreme Court
specifically stated that the economic criteria cannot be the sole basis for reservations under the

Constitution by holding that “a backward class cannot be determined only and exclusively with
reference to economic criterion. It may be a consideration or basis along with and in addition to
social backwardness, but it can never be the sole criterion”. [Link] further noted that “any
reservation or affirmative action on economic criteria or wealth discrimination cannot be upheld
under doctrine of reasonable classification...Indigence cannot be a rational basis forclassification
for public employment.”

In light of the above it is most humbly submitted that the 103rd Constitutional Amendment is
invalid by considering that economic criteria cannot be the sole basis of reservation and reservation
which violates reasonable classification has the effect of infringing upon the equality code, hence
making the Amendment invalid.

B. CONTRAVENTION OF BASIC STRUCTURE DOCTRINE

The doctrine of basic structure developed by the Hon’ble Supreme Court in Keshavananda Bharti
v. State of Kerala59 contain principles that give coherence to the Constitution and makeit an
organic whole although they may be not expressly stated in the form of rules. Some of these
principles may be so important and fundamental, as to qualify as 'essential features' or part of the
'basic structure' of the Constitution.60

(i) Width and Identity Test

The Hon’ble Supreme Court expounded the Width and Identity Test in M. Nagraj v. Union of

58 Supra note 8.
59 AIR 1973 SC 1461.
60 M. Nagraj v. Union of India & Ors., (2006) 8 SCC 212.
India & Ors.61. While the ‘width test’ examines the boundaries of the amending power of the
Parliament and whether any of the constitutional requirements have been obliterated by the
amendments or not, the ‘identity test’examines whether the amendment has altered the identity
of the Constitution beyond [Link] Constitution bench of the Hon’ble SC in [Link]
case17 reiterated that “the ceiling-limit of 50%, the concept of creamy layer and the compelling
reasons, namely, backwardness, inadequacy of representation and overall administrative
efficiency are all constitutional requirements without which the structure of equality of opportunity
in Article 16 would collapse.”

It is humbly submitted that the 103rd Constitutional Amendment falls foul of the identity and width
test. The 103rd Constitutional seeks to alter the identity of the constitution by impinging upon the
scheme of equality envisaged under the Constitution. The 10% reservation to the economically
weaker sections of the society is over and above the existing ceiling limit of 50%. 62It is contended
that the power to make special provisions for reservation of posts and appointments in favour of
backward classes must not be excessive which would in effect efface the guarantee of equal
opportunity in the matter of public employment or at best make itillusory.63 Any reservation apart
from being sustainable on the constitutional anvil must also be reasonable to be permissible. One
of the factors in assessing reasonability would be the character and quantum of reservation which
would either stall or accelerate the pace in achieving the ultimate goal of excellance enabling the
nation to constantly rise at higher levels .64

In the Mandira Sawhney case65, the Hon’ble court opined that “Reservation being extreme form of
protective measure or affirmative action it should be confined to minority of seats. Even though
the Constitution does not lay down any specific bar but the constitutional philosophy being against
proportional equality the principle of balancing equality ordains reservation, of any manner, not
to exceed 50%”.In Jarnail Singh Vs. Lachhmi Narain Gupta,22 the Hon’ble SC reiterated the rule
of 50% ceiling.

61 Ibid. 17
Ibid.
62 Moot Proposition para 3.
63 Supra note 10.
64 AIIMS Students Union v. AIIMS (2002) 1 SCC 428.
65 Supra note 8. 22

(2018) 10 SCC 396 23

Supra note 14.
It is humbly submitted that reservations provided under the scheme of Art. 15 and Art.16 cannot
be arbitrary, excessive and unreasonable.23 Furthermore, it is contended that there is absence of
quantifiable data to justify the 10% limit on reservation for the economically weaker sections of
the society. Moreover, making special provisions for the weaker sections for higher education the
State cannot weaken the standards of education or lower the efficiency of scholars to thedetriment
of national interests.66 It must not be forgotten that the efficiency of administration isof such
paramount importance that it would be unwise and impermissible to make any reservation at the
cost of efficiency of administration. That undoubtedly is the effect of Art.
335.67 While special provisions made for the SC and ST are sought to be balanced with Art. 335
of the Constitution, the 103rd Constitutional Amendment that inserts Art. 15(6) and Art.(6) is silent
on the method of the maintenance of efficiency in administration.

C. VIOLATION OF ART. 19(1)(g) OF CONSTITUTION

Fundamental rights occupy a unique place in the lives of civilized societies and have been variously
described as "transcendental", "inalienable" and "primordial as they constitute the ark of the
Constitution68. It is humbly submitted that the 103rd Constitutional Amendment is violative of the
Constitutional guarantee under Art. 19(1)(g) of the Constitution of Akhand [Link] Hon’ble
Supreme Court has consistently upheld that reservations cannot be extended to unaided private
institutions. These include the judgements in [Link] Foundation v. State of Karnataka69 and
[Link] v. State of Maharastra, 70 that state in the clearest of terms that the State’s reservation
policy cannot be imposed on unaided educational institutions. The private educational institutions
are not receiving any aid from the State, they can have their ownadmissions provided that the
procedure adopted is fair, transparent, non-exploitative and based on merit. It is therefore
submitted that the 103rd Constitutional Amendment violates Art. 19(1)(g) of the Constitution of
Akhand Bharat.

66 State of Andhra Pradesh v. Balaram, AIR 1972 SC 1375.

67 C.A. Rajendran v. Union of India, AIR 1968 SC 507.
68 Supra note 13.
69 (2002) 8 SCC 481.
70 (2005) 6 SCC 537.
II. Whether the Karnail Singh Judgment is in violation of Mandira
Sawhney Judgment of 1993 or not?

The counsel most humbly submits that the Karnail Singh judgment is in consistency with the
Mandira Sawhney judgment as is patently demonstrated directly from the excerpts of SC
judgments in the light of (A) Application of the creamy layer exclusion principle on SCs & STs;
(B) Validity of the Art. 16(4A) and Art. 16(4B) of Constitution of Akhand Bharat.

A. APPLICATION OF THE CREAMY LAYER EXCLUSION PRINCIPLE ON SCs & STs

The counsel submits that while holding the applicability of creamy layer principle to SCs and
STs as valid71 the Karnail Singh case has revered and bolstered the Mandira's judgment as is
discernible from the fact that eight out of nine judges in Mandira's judgment applied the creamy
layer principle as a facet of the larger equality principle.72

(i) Acceptance of Creamy layer exclusion principle

While explaining the Affirmative Actions and Reservations- Generally in Part-1 in Mandira
Sawhney judgment, the Hon'ble SC said;

“13. The immediate target to which every affirmative action programme contemplated by Art.
15 or Art. 16 is addressed is poverty causing backwardness.”

Along with this the provisions for reservation under Art. 16(4) is specifically designed to give due
share in the State power to those who have remained out of it mainly on account of their social,
educational and economic backwardness.73 Further in the context of Reservation SC said;

“255. Reservation is not an end in itself. It is a means to achieve equality. Reservation must not
outlast it’s constitutional object and must not allow a vested interest to develop and perpetuate
itself. Every reservation founded on benign discrimination and justifiably adopted to achieve the

71 Jarnail Singh v. LachhmiNarainGupta, (2018) 10 SCC 396.

72 IndraSawhney v. Union of India, (2000) 1 SCC 168.
73 IndraSawhney v. Union of India, 1992 Supp (3) SCC para 482 and 492.
constitutional mandate of equality must necessarily be a transient passage to that end. It is
temporary in concept, limited in duration, conditional in application and specific in object.
Reservation must contain within itself the seeds of its termination. Any attempt to perpetuate
reservation and upset the constitutional mandate of equality is destructive of liberty and fraternity
and all the basic values enshrined in the constitution.”

“258.... Reservation must one day become unnecessary and the relic of an unfortunate past. Every
such action must be a transient self liquidating programme. That is the hope and dream cherished
by the constitution makers and that is the end to which the state has to address itself in making
special provisions for the chosen classes of people for special constitutional protection.”

“314.... The sooner the need for reservation is brought to an end, the better it would be for the
nation as a whole. The sooner we redressed all the disabilities and wiped out all traces of historical
discrimination, and stopped identifying classes of citizens by the stereotyped, stigmatized and
ignominious label of backwardness, the stronger, healthy and better united we would have emerged
as a nation founded on diverse customs practices and languages but knitted together by
innumerable binding strands of common culture and tradition.”

In pursuance of the above discussion a Means test or Creamy layer principle was propounded
by Hon'ble SC in Mandira Sawhney judgment by accepting the fact that some members of the
designated backward classes are highly advanced socially as well as economically and
educationally constituting the forward section of that particular backward class as forward as any
other forward class member. And that they are lapping up all the benefits of reservations meant for
that class without allowing the benefits to reach the truly backward members of that class, these
persons are by no means backward and with them a class cannot be treated as backward. The same
proposition has been accepted in the Karnail Singh judgment74. Both these judgments have
accepted the fact that some members are far too advanced socially which necessarily means
economically and may also mean educationally and they would be misfits in the class. Such an
exclusion benefits the truly backward.75
The counsel humbly further submits that both the judgments accept the fact that the basis of
exclusion of the creamy layer must not be merely economic unless economic advancement is so

74 Suprapg. 17.
75 Supra para 790 & 792.
high that it necessary means social advancement. The income limit as a criterion has been accepted
when it means and signifies social advancement. Relying on the same Karnail Singh has accepted
the illustrations of Mandira Sawhney judgment of some officers like IAS, IPS or others in AIS
who can be treated as socially advanced without any further inquiry. Because their social status in
the society rises quite high and the person is no longer socially disadvantaged. Their children get
full opportunity to realise their potential and they are no longer handicapped in the race of life and
it is logical that children of such persons are not given the benefits of reservation.

The Karnail Singh judgment in the same light propounded the following to support and strengthen
what Mandira Sawhney accepted in the context of creamy layer exclusion principle;

“26....The whole object of reservation is to see that backward classes of the citizens move forward
so that they may march hand in hand with other citizens of India on an equal basis. This will not
be possible if only the creamy layer within that class bag all the coveted jobs in the public sector
and perpetuate themselves leaving the rest of the classes backward as they always were.”

“27. Constitutional courts when applying the principle of reservation will be well within their
jurisdiction to exclude the creamy layer from such groups or subgroups when applying the
principles of equality under article 14 and 16 of the Constitution of India” .

Thus in order to promote the aim and objective of reservation in its true sense both the Karnail
Singh and Mandira Sawhney judgments have accepted the creamy layer exclusion principle.

(ii) Creamy layer exclusion principle can be extended to SCs and STs

The counsel most respectfully submits that the Bench of Mandira Sawhney was constituted to
finally settle the legal position relating to reservations. The idea was to have a final look at the said
question by a larger Bench to settle the law in an authoritative way. 76 Pursuant to the same itis
further submitted that while explaining the concept of reservation the Hon'ble SC said;

76 Supra para 821 and 249.

“250. The Constitution permits the state to adopt such affirmative action as it deems necessary
to uplift the backward classes of citizens to levels of equality with the rest of our countrymen. It
is therefore open to the government to reserve a certain number of seats in places of learning and
public services in favour of the Scheduled castes and Scheduled tribes and other backward classes
to the exclusion of all others irrespective of merits.”

The counsel further submits that the last sentence of para 792 of Mandira Sawhney judgment
stating that the discussion therein is confined to OBC only and has no relevance in the case of SC
and ST and cannot lead to the conclusion that creamy layer exclusion principle will not apply on
them as is justified by the Hon'ble court as follows;

“781... At the outset, we may state that for the purpose of this discussion we keep aside the
Scheduled tribes and Scheduled castes since they are admittedly included within the backward
classes.”

“796.... The test or requirement of social and educational backwardness cannot be applied to
Scheduled castes and Scheduled tribes who indubitably fall within the expression of backward
class of citizens.”

Further it is submitted that under Art. 16(4) of the Constitution of Akhand Bharat SCs and STs
were already enjoying the benefit of reservations so, the discussion in this case was confined to
OBC only. But this does not correspond to the fact that one of the measure adopted for providing
the benefits of reservation to the deserving in the backward class i.e, creamy layer exclusion
principle evolved in this case only will not apply to them.

It is submitted that a nonspeaking order of the SC which does not set out the facts, the reason for
the conclusion or direction given cannot be treated as a binding precedent.77In addition to this it
is the ratio decidendi of a case that is binding on the courts. Ratio decidendi of a judgement is a
principle of law adopted having regard to the line of reasoning of judge which binds in future cases.
It is a rule of law upon which the decision is founded. Ratio decidendi of a judgement is not to be
discerned from a stray word or phrase read in isolation. It has to be found out only by reading the
entire judgment.78 A stray sentence in a judgment without a focused argument cannot

77 Govt. of India v. Workmen of State Trading Corpn., AIR 1999SC.

78 Arasmeta Captive Power Co. Pvt. Ltd. v. Lafarage India Pvt. Ltd., AIR 2014 SC 525 at pg. 535,536.
be considered as the ratio of such judgement.79 In the present case, the last sentence of para 792 of
Mandira Sawhney restricting the discussion to OBC only does not contain reasons for such an
exclusion but the principle of law i.e, creamy layer exclusion principle is accompanied with the
reasons mentioned from para 790 to para 792. On a pervasive study of the excerpts of the judgment
especially from Part-1 explaining Affirmative Actions and Reservations generally it is crystal clear
that exclusion of creamy layer is to benefit the backwards in the backward class and slowly-slowly
sow the seeds of termination which are contained within the reservation itself. Creamy layer is a
matter of applying the equality principle, as unequals within the same class are sought to be weeded
out as they cannot be treated as equal to the others. The whole basis for application of the creamy
layer principle is that those genuinely deserving of reservation would otherwise not get the benefits
of reservation and conversely, those who are undeserving, get the said benefits.

Thus Karnail Singh judgment has not violated the Mandira Sawhney judgment by applying the
creamy layer exclusion principle on SCs and STs.

B. VALIDITY OF THE ART. 16(4A) AND ART. 16(4B) OF CONST. OF AKHAND

BHARAT

The counsel most humbly submits that in Mandira Sawhney judgment it was held that the
expression appointment does not include promotion for the purpose of reservation, overruling a
80
contrary view in General Manager, Southern Railway v. Rangachari. Reservation of
appointments or post under article 16(4) is confined to the initial appointment only and cannot be
extended to provide reservation in the matter of promotion and reservation in promotion might
impair efficiency.81 Subsequently, Art. 16 (4A)of the Const. of Akhand Bharat inserted by 77th
Constitutional Amendment Act, 1995 provides that the State can make reservation in promotion
with consequential seniority for SCs & STs provided it is in the opinion of the State that they are
not adequately represented in the services under the State. Because it is patently in
contradistinction with what was held in Mandira Sawhney, the Constitutional validity of 77th

79 Union of India v. Pfizer Ltd., AIR 2018 SC 265 at pg. 279.

80 General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36.
81 IndraSawhney v Union of India, AIR 1993 SC 477.
Constitutional Amendment was challenged in M Nagaraj v. Union of India82 wherein it was held
in this regard that;

“123....the state concerned will have to show in each case the existence of compelling reasons,
namely backwardness, inadequacy of representation and overall administrative efficiency before
making provisions for reservation. The state is not bound to make reservation for SC and ST in
matters of promotions. However if they wish to exercise their discretion and make such provision
the state has to collect quantifiable data showing backwardness of the class and inadequacy of
representation of that class in public employment in addition to compliance with Article 335. Even
if the state has compelling reasons the state will have to see that its reservation provision does not
lead to excessiveness so as to breach the ceiling limit of 50%, obliterate the creamy layer or extend
the reservation indefinitely.”

The counsel submits that in consonance with the Mandira Sawhney judgment firstly,it is not
mandatory for the states to make provisions for reservation in promotions for SCs and STs.
Secondly, for showing their backwardness the State is not required to collect quantifiable data of
the SCs and STs because they indubitably fall within the expression of backward class of citizens.
Thirdly, ceiling limit of 50% reservation has been imposed along with the application of creamy
layer exclusion principle. Fourthly, Reservation must not lead to compromise of administrative
efficiency because there are certain services and positions where either on account of the nature of
duties attached to them all the level at which they obtain merit alone counts.83

At this juncture, M Nagaraj is contrary to Mandira Sawhney on the point when it says that the state
has to collect quantifiable data showing the backwardness of the class and inadequacy of the
representation of that class in public employment as a precondition. Thus we can say that the
conclusion of Karnail Singh considering M Nagaraj to be a good law and the precondition
requiring State to collect quantifiable data showing backwardness of SC and ST, being contrary
to the nine- Judge Bench in Mandira Sawhney as invalid is in consistency with Mandira Sawhney
judgment.
The counsel on behalf of the petitioners submit that it is important to bear in mind the admonition
of the Constitution Bench judgment in Keshav Mills wherein it was held that when

82 (2006) 8 SCC 212.

83 Supra para 838.
this Court decides questions of law, its decisions are, under Article 141, binding on all courts
within the territory of India, and so, it must be the constant endeavour and concern of this Court to
introduce and maintain an element of certainty. Frequent exercise by this Court of its powerto
review its earlier decisions on the ground that the view expressed before it later appears to the
Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion
which must be consistently. In consonance with Keshav Mills Co. Ltd. v. Commissioner of
Income-Tax, Bombay North84 Constitution Bench judgement which has stood the test of time,
ought not to be revisited, and if the parameters of Keshav Mills (supra) are to be applied, it is clear
that Nagaraj (supra) ought not to be revisited. Thus it is patently crystal clear that Karnail Singh is
not in violation of Mandira Sawhney judgment.

84 (1965) 2 SCR 908.

III. Whether the “creamy layer exclusion" principle should be
extended to Scheduled Castes (SCs) and Scheduled Tribes (STs)
reservation or not?

The counsel most humbly submits that the “creamy layer exclusion” principle should be extended
to the SCs and STs reservation in the light of the following arguments:

A. THE “CREAMY LAYER EXCLUSION” PRINCIPLE AS APPICABLE TO SCs AND

STs STANDS ON THE CONSTITUTIONAL PEDESTAL OF ART. 14.

(i) Test of Reasonable Classification.

Art. 14 of the Constitution provides that a reasonable classification is permitted subject to:

i. Intelligible differentia.

ii. Rational nexus to the object sought to be achieved.85

In the context of reservation among SCs and STs, the creamy layer principle is apt since it does
not aim to make a division among the equally placed individuals of a group but instead it tends to
create a sub – group within the group so that the benefits of the reservation system must flow to
the weakest within the group.86 It was made explicit that if an intelligible differentia which
separated a group within a class from the rest exist and that differentia has nexus with the object
of classification then there would be no question of objection to a further classification within a
class. 87J. Krishna Iyer has rightly observed the perils associated with the reservation system:46

i. Firstly, the benefits are outrightly acquired by the topmost creamy layer.

85 K. Thimmappa v. Chairman, Central Board of Directors, SBI AIR 2001 SC 467.

86 State of Kerala v. N.M. Thomas, AIR 1976 SC 490; Mandira Sawhney v. Union of India, 1992 Supp (3) SCC 217.
87 Ibid. 46

Ibid.
 ii. This section exaggerates its claim against historical oppression to “wear the weaker
section label” as a means to score over near equals who are formally categorized as upper
brackets.
iii. Lastly, the creamy layer has a vested interest as to perpetuate its backward position to
obtain the benefits of positive affirmation.

A reasonable class can only be formed by excluding the creamy layer or the well – off population
from the backward group. 88 Reservation is not an end in itself but is a means to achieve equality.89
Thus, the intelligible differentia associated with the creamy layer exclusion principle which
permits creation of a class within a class is the economic status of the SCs and STs and the
concerned object which is to be achieved is their economic and social upliftment in society.90 The
creamy layer exclusion principle is a measure of equality which operates on the principle of
classification which is considered a facet of compensatory discrimination in the broader sense.91

(ii) Principle of Substantive Equality

Art.14 is a general equality provision stating that “there is equality only among equals and to
equate unequals is to perpetuate inequality.”92 This Art. envisages upon the state a positive
obligation to treat backward classes more favourably. 93 The Constitution engrains the terminology
of substantive equality which works through four pillars:94

i. The right to substantive equality should aim to redress disadvantage.

ii. It should aim to counter prejudice, stigma, stereotyping, humiliation and violence based on
a protected characteristic.

88 Akhil Bharatiya Soshit Karamchari Sangh v. Union of India, 1981 SCR (2) 185; K.C. Vasanth Kumar
v. State of Kerala, AIR 1985 SC 1495.
89 Supra note 2.
90 Mandira Sawhney v. Union of India, 1992 Supp (3) SCC 217.
91 Ashok Kumar Thakur v. Union of India, 2008 (6) SCC 1; M. Nagraj v. Union of India, 2006 8 SCC 212.
92 Supra note 8.
93 M. Nagraj v. Union of India, 2006 8 SCC 212.

94 Sandra Fredman, ‘Substantive equality revisited’, Oxford University Press and New York University School of Law

International Journal of Constitutional Law, (Vol. 14 Issue 3), Jul. 2016, pg. 713 – 714.
 iii. It should encourage voice and participation countering both political and social exclusion.
iv. It should accommodate difference and achieve structural difference.

Art.16(4) is not an exception to Art.16(1) but rather a facet of the same imbibing the doctrine of
substantive equality flowing from Art.16(1) i.e. the guarantee of equality of opportunity in matters
of public employment as long as it meets the basic threshold of reasonable classification stated in
Art.14.95

(iii) International Case study

In US for the higher educational institutions the selection criteria is vague. The relevant criteria
i.e. the SAT scores, extracurricular activities, essays, alumni ties, interviews, the perceived
likelihood of the student coming and donations matter but there is preponderance for the race
system as a result the Blacks, Latino and native Americans stand a better chance against white and
Asian students irrespective of the SAT scores.55 After selection through the criteria set forth by
university the population of Blacks, Latino and native Americans must be filtered by applying the
creamy layer exclusion principle.56 Furthermore, the Constitution of Akhand Bharat was wisely
drafted by the members of its Constituent [Link] encompases dignity and equality toextend
the exclusion principle to SC and ST.

B. APPLICABILITY OF CREAMY LAYER EXCLUSION PRINCIPLE ON SCs AND

STs DOES NOT VIOLATE THE BASIC STRUCTURE OF THE CONSTITUTION.

Equality is a part of the basic structure96 and it is impossible to conceive the Constitution without
equality as one of its basic component. In the light of the same Art. 16 is integral to equality and
it has to be read with Art.14 and with consonance to Part IV. 97 The apex court has stated that the
ceiling limit of 50%, the concept of creamy layer and the compelling reasons, i.e. backwardness,
inadequacy of representation and overall administrative efficiency are all Constitutional

95 State of Kerala v. [Link], 1976 SCR (1) 906; Mandira Sawhney v. Union of India, 1992 Supp (3) SCC
217. 55
Veronica Frisancho Robles and Kala Krishna, Affirmative Action in Higher Education in India: Targeting,Catch
up and Mismatch at IIT Delhi, Indian Statistical Institute, (Nov. 2011), [Link] 56 Id.
96 Kesavananada Bharati v. State of Kerala AIR 1973 SC 1461.
97 M. Nagraj v. Union of India, 2006 8 SCC 212.
requirements without which the structure embarking upon equality in matters of public
employment as envisaged in Art.16 would fall.98 The creamy layer inclusion will be deemed to
violate the right to equality in Art.14, 15 and 16 thereby directly attacking upon the basic structure.
Originally the creamy layer exclusion principle was applied to OBCs. 99 Same must be extended to
SCs/STs since it was rightly observed, “Society does not remain static. The industralisation and
the urbanization which necessarily followed in its wake, the advance on political, social and
economic fronts made particularly after the commencement of constitution, the social reforms
movements of the last several decades, the spread of education and the advantages of the special
provisions including reservations secured so far have all undoubtedly seen at least some
individuals and families in the backward classes, however small in number, gaining sufficient
means to develop their capacities to compete with others. Legally, therefore, they are not entitled
to be any longer called part of the backward classes to which they belong as the same would defeat
the very purpose of the special provisions made in the constitution for advancement of backward
classes and for enabling them to come to the level of and compete with the forward classes as
equal citizens.” 100 Thus, the process of reservation at present provides:101

i. Reservation as an integral part of equality principle thereby drawing a strong correlation

to the concept ‘equality of opportunity’ specified by Art.16.
ii. Reservation has acquired a dynamic social character.

Since the concept of reservation has significantly changed in the 21st century it becomes incumbent
upon the State to exclude creamy layer from the ambit of SCs and STs.

98 Ibid.
99 Moot Proposition, para 7.
100 Supra note 8 para 520.
101 Virendra Kumar, Dynamics of Reservation Policy: Towards a more inclusive social order , Journal of IndianLaw

Institute, (2008), [Link]/stable/43952175.

C. CASTE SHOULD NOT BE TREATED AS THE SOLE CRITERIA FOR
DETERMINING BACKWARDNESS WITH RESPECT TO SCs and STs.

The whole aim of reservation is a means to end discrimination based on caste which is prevalent
in the Indian society for years. The terminology of creamy layer did not originate from the
Constitution but was first applied by the Sattanathan Commission in 1971 to say that the
financially affluent people from OBCs should not be given reservation. 102
The Court’s
interpretation took a strict and exhaustive view while upholding the constitutional validity of
Central Educational Institutions (Reservation in Admission) Act, 2006 and stated that the
identification of backward classes cannot be done solely on caste.103 “Inclusion of castes in the list
of backward classes cannot be mechanical and cannot be done without adequate relevant data,
nor can it be done on extraneous considerations. Care should be taken that forward classes do not
get included in this list. Periodic examination of a backward class could lead to its exclusion if it
ceases to be socially backward or if it is adequately represented in the services. Once backward,
always backward is not acceptable. In any case, creamy layer has no place in the reservation
system.”104 J. Chandarchud highlighted two tests to be conjunctively appliedfor determining
‘Backward Classes’:105

i. One they should be comparable to SCs and STs in the matter of their backwardness.

ii. Two they should satisfy the means test i.e. the test laid down by the State government in
the context of the prevailing economic backwardness.

J. Desai is of the same opinion that the only realistic criteria that should be applied to determine
106
backwardness is that of economic backwardness. Further, it must be presumed that the
legislature understands and correctly appreciates the need of its own people, that its laws are
directed to problems made manifest by experience and that its discriminations are based on
adequate grounds.107 The term was also construed by J. Gajendragadkar that the ultimate

102 Supra Note 8.

103 Ashok Kumar Thakur v. Union of India, 2008 (6) SCC 1.
104 Supra note 8 para 9.
105 K.C. Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714.
106 Ibid at 1506.
107 Shri Ram Krishna Dalmia v. S.R. Tendolkar, AIR 1958 SC 538.
analysis of social backwardness is the result of poverty to a very large extent. 108 Since Art.15(1)
forbids discrimination on grounds of religion, race, caste thus caste cannot be recognized as a
criteria for determining social and educational backwardness under Art.15(4) as it will nullify
Art15(1).109 The original framers of the Constitution deemed to include the vision as imbibed in
the term ‘backwardness’ is inclusive of economic in the very use of the term ‘social’.110 Thus,
the creamy layer exclusion principle does not aim to divide the backward classes on the basis of
their economic status but instead it uses the economic conditions of the individuals in a group to
grant the benefits of the affirmative beneficial legislation to the weakest of the lot.

In the light of the above arguments the ‘creamy layer exclusion’ principle must be extended to SCs
and STs reservation.

D. “PROTECTIVE DISCRIMINATION” UNDER ART. 15(4) AND ART. 16(4).

In light of Art. 15(4) and Art. 16(4) it is incumbent upon the State to promote and safeguard the
interests of backward classes, SCs and STs. However, Art. 15(4) is in the nature of a general
provision enabling the State to offer protective discrimination to the backward classes in all its
dealings whereas Art. 16(4) is a special provision confined to the matter of employment in the
services under the State with regard to furtherance of protective discrimination. 111 Backwardness
under Art.16(4) is largely social backwardness and thereby the classes which are not covered under
Art.16(4) will deemed to be covered under Art.15(4) providing the latter a wide arena of
operation.73 In order to establish equality before law in a practical sense, a certain amount of
preferential treatment is necessary to provide a platform as to equalize the unequals in society; thus
protective discrimination is a facet of equality before law.74 The concept of Protective
Discrimination draws strong corollary to economic justice and requires SCs and STs to shed their
creamy layer. 112 The Court’s prescription of means test to exclude the creamy layer is a

108 M.R. Balaji v. State of Mysore AIR 1963 SC 649.

109 State of Madras v. Srimathi Champakam Dorairajan AIR 1951 SC 226.
110 CADDebates, Constituent Assembly Debates,Center for Law and
Policy Research,
[Link]
111 DD Basu, Commentary on the Constitution of India 2028

(Ed. 73 DD Basu, Commentary on the Constitution ofIndia 2030

74 Pradeep Jain v. Union of India, AIR 1984 SC 1420.
112 Karnail Singh and Ors. v. Lachhmi Narain Gupta and Ors, (2018) 10 SCC 396. 76
Supra note 8.
necessary bargain to ensure that the benefits of protective discrimination would fall under the
ambit of actually deserving section.76
 PRAYER

Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities cited,
it is most humbly and respectfully prayed that this Hon'ble Court may be pleased to adjudge and
declare that:

1.) The 103rd Constitutional Amendment is Constitutionally invalid.

2.) The Karnail Singh judgment is not in violation of Mandira Sawhney judgment of 1993.

3.) The “creamy layer exclusion” principle should be extended to Scheduled Castes (SCs) and
Scheduled Tribes (STs) reservation.

And pass any other order or direction that this Hon’ble Court may deem fit in the interest of justice,
equity and good conscience.

All of which is humbly prayed,

Counsels for the Petitioners.

 IN THE
HON’BLE SUPREME COURT OF
AKHAND BHARAT

CIVIL ORIGINAL JURISDICTION

Under Article 139A r/w Article 32 of the Constitution of Akhand Bharat

IN THE MATTER OF

Ms. GINNY POTTER & Ors ......................................................................... PETITIONERS

Vs.

UNION OF INDIA… ........................................................................................ RESPONDENT

Written Submission on behalf of the

Respondent

5
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………………………………

INDEX OF AUTHORITIES ..................................................................................................... 24

DOCUMENTS CITED ................................................................................................................

STATEMENT OF JURISDICTION…………………………………………………………

STATEMENT OF FACTS………………………………………………………………………

STATEMENT OF ISSUES………………………………………………………………………

SUMMARY OF ARGUMENTS………………………………………………………………...

ARGUMENTS ADVANCED……………………………………………………………………

I. THAT THE 103rd CONSTITUTIONAL AMENDMENT IS NOT

CONSTITUTIONALLY VALID ………………………………………………………………

A. VIOLATION OF EQUALITY CODE …………………………………………………….

(i) Reservation for Backward Classes………………………………………………………….
(ii) Economic Backwardness cannot be sole criteria for Reservation…………………………
B. CONTRAVENTION OF BASIC STRUCTURE DOCTRINE ……………………………
(i) Width and Identity Test ……………………………………………………………………
C. VIOLATION OF ART. 19(1)(g) OF CONSTITUTION……………………………. ........
II. THAT THE KARNAIL SINGH JUDGMENT IS NOT IN VIOLATION OF MANDIRA
SAWHNEY JUDGMENT OF 1993……………………………………………………... .….

A. APPLICATION OF THE CREAMY LAYER EXCLUSION PRINCIPLE ON SCs &

STs……………………………….……
(i) Acceptance of Creamy layer exclusion principle……………………………………………

(ii) Creamy layer exclusion principle can be extended to SCs and STs……………………
..............................................................................................................................................……

B. VALIDITY OF THE ART. 16(4A) AND ART. 16(4B) OF CONST. OF AKHAND

BHARAT…………………………….
III. THAT THE “CREAMY LAYER EXCLUSION” PRINCIPLE SHOULD BE
EXTENDED TO SCHEDULED CASTES (SCS) AND SCHEDULED TRIBES (STs)
RESERVATION………………

A. THE “CREAMY LAYER EXCLUSION” PRINCIPLE AS APPICABLE TO SCs AND

STs STANDS ON THE CONSTITUTIONAL PEDESTAL OF ART. 14……………
(i) Test of Reasonable Classification…………………………………………………….
(ii) Principle of Substantive Equality……………………………………………………….

(iii) International Case study…………………………………………………………… ........

B. APPLICABILITY OF CREAMY LAYER EXCLUSION PRINCIPLE ON SCs AND STs

DOES NOT VIOLATE THE BASIC STRUCTURE OF THE CONSTITUTION……..
C. CASTE SHOULD NOT BE TREATED AS THE SOLE CRITERIA FOR DETERMINING
BACKWARDNESS WITH RESPECT TO SCs and STs.……………………………….
D. “PROTECTIVE DISCRIMINATION” UNDER ART. 15(4) AND ART. 16(4)…….
PRAYER………………………………………………………………………………….........
 LIST OF ABBREVIATIONS

TERMST MEANING

Hon’ble Honourable

SC Supreme Court

A.I.R. All India Reporter

NCRB National Crime Records Bureau

Art. Article

v. Versus

Consti. Constitution

SEBC Socially and Educationally Backward Classes

CJI Chief Justice Of India

SCC Supreme Court Cases

SCs Scheduled Castes

STs Scheduled Tribes

OBCs Other Backward Classes

SBI State Bank of India

Supp Supplement

SCR Supreme Court Reports

Vol. Volume

Pg. Page

I.T. Commr. Income Tax Commissioner

J. Justic5e6
Ors. Others
 INDEX OF AUTHORITIES

STATUTES PAGE NO.

CONSTITUTION OF INDIA Passim

CASES REFERRED PAGE NO.

1. Kuldip Nayar v. Union of India & Ors, AIR 2006SC 3127. 13

2. Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1431. 13

3. N.M. Thomas v. State of Kerala, (1976) 2 SCC 10. 13

4. Charu Khurana v. Union of India, AIR 2015 SC 839. 13

5. Indra Sawhney v. Union of India, AIR 1993 SC 477. 14,19,20,22,23,

25,27,29

6. Vasanth Kumar v. State of Karnataka, AIR 1985 SC 1495. 14,29

7. Staete of Andhra Pradesh v. Balaram, AIR 1972 SC 1375. 14

8. General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36. 14

9. M.C. Sharma v. The Punjab University, Chandigarh, AIR 1997 P&H 87. 15

10. Minerva Mills v. Union of India, (1980) 2 SCC 591. 15

11. Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1. 16

12. M. Nagraj v. Union of India & Ors., (2006) 8 SCC 212. 23,24

13. M.R. Balaji & Ors. v. State of Mysore & Ors., 18

14. S.V. Joshi v. State of Karnataka, (2012) 7 SCC 41. 18

15. Fuzlumbi v. Khader Vali, AIR 1980 SC 1730. 21

16. Jarnail Singh v. Lachmmi Narain Gupta, (2018) 10 SCC 396. 21

17. Arasmeta Captive Power Co. Pvt. Ltd. V. Lafarage India Pvt. Ltd., AIR 21
2014 SC 525.

18. Union of India v. Pfizer Ltd., AIR 2018 SC 265. 21

19. I.T. Commissioner V. Vazir Sultan, AIR 1959 SC 814. 21

20. Municipal Committee v. Hazara Singh, AIR 1975 SC. 21

21. Sarwan Singh Lamba v. Union of India, AIR 1995 SC 1729. 21

22. Janki Prasad Parimoo v. State of J.K., (1973) 3 SCR 236. 26

23. K. Thimmappa v. Chairman, Central Board of Directors, SBI AIR 2001 27

SC 467.

24. E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394. 28

DOCUMENTS CITED
1. K.C. Suri, “Caste Reservations in India: Policy and Politics”, The Indian Journal of
Politcal Science.

2. Government of India Act, 1935.

3. National Commission for Scheduled Tribes Report (2009-10)

4. Sandra Fredman, ‘Substantive Equality Revisited’, International Journal of

Constitutional Law.

5. NCRB Reports 2018.

WEBSITES REFERRED

1. [Link]
BOOKS REFERRED

1. Durga Das Basu,Commentary on the Constitution of India (Ed. 8th, 2007)

 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Akhand Bharat has the jurisdiction to hear the present
matter in the case of Ms. Ginny Potter & Ors. v. Union of India in furtherance of the
fact:

A. That the petitioners in the instant case have approached the SC under Art.321
of the Constitution of Akhand Bharat invoking the original jurisdiction of the SC.

B. In order to dispose the case judicially the Hon’ble SC has suo moto tagged the
petitions by setting up a 11 judge Constitutional bench for deciding the legal questions
involved in the matter under Art. 139A2 of the Constitution of Akhand Bharat.

1
Remedies for enforcement of Rights conferred by Part III of the Constitution – (1) The right to
move the SC by appropriate proceedings for the enforcement of rights conferred by Part III is
guaranteed.
(2) The SC shall have the 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 rights conferred by Part III.
(3) Without prejudice to the powers conferred on the SC by clauses (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 SC under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution. 2 Transfer of certain cases – (1) Where cases involving the same or substantially
the same questions of law are pending before the SC and one or more HCs or before two or more HCs
and the SC is satisfied on its own motion or an application made by the Attorney – General of India or
by a party to any such case that such questions are substantial questions of general importance, the SC
may withdraw the case or cases pending before the HC or the HCs and dispose of all the cases itself:
Provided that the SC may after determining the said questions of law return any case so withdrawn
together with a copy of its judgment on such questions to the HC from which the case has been
withdrawn, and the HC shall on receipt thereof, proceed to dispose of the case in conformity with such
judgment.
(2) The SC may, if it deems it is expedient so to do for the ends of justice, transfer any case, appeal or
other proceedings pending before any HC to any other HC.
 STATEMENTS OF FACTS

I. Republic of Akhand Bharat

An independent union of states consisting of 28 states and 9 union territories got its
independence from British rule in 1947 by non-violent revolution. The Constitution of
Akhand Bharat was drafted by the members of its Constituent Assembly by taking
inspiration from the Constitutions of major democracies of the world. Democracy,
Equality and Secularism are the essence of the Constitution. It encompasses the values
of Human Dignity and Equality. It guarantees to its citizens certain fundamental rights
whose scope is considerably enlarged by the dynamic judgments of the Supreme Court
of Akhand Bharat.

II. Reservation- Meaning and Aim

Reservation is about reserving access to seats in the government jobs, educational

institutions and even legislatures to certain sections of the population. An affirmative
action and Positive
Discrimination has two aims;

1.) Advancement of SC and ST or any socially educationally backward classesof

citizens - Article 15(4) & Article 15(5).
2.) Adequate representation of any backward class of citizens in the services under
the State - Article 16(4).

III. 103rd Amendment of the Constitution

It provides reservation of jobs in Central Government as well as governmental

educational institutions. It applies to citizens belonging to economically weaker
sections from the unreserved category subject to maximum 10 percent over and above
the existing reservation.
IV. Rationale behind 103 rd Amendment

Article 46 of the Constitution of Akhand Bharat which urges the government to protect
the educational and economic interests of the weaker sections of society.

Enable the economically weaker sections to attend higher educational institutions and
public employment.

V. Amended Articles

Article 15 (6) is added to provide reservations to economically weaker sections for

admission to educational institutions including private educational institutions, whether
aided or unaided by the State, other than the minority educational institutions referred
to in clause (1) of Article 30. The amendment aims to provide reservation to those who
do not fall in 15 (5) and 15(4) (effectively, SCs, STs and OBCs).
Article 16 (6) is added to provide reservations to people from economically weaker
sections in government posts.
An explanation states that "economic weakness" shall be decided on the basis of "family
income" and other "indicators of economic disadvantage."

VI. Ms. Ginny Potter, a leading legal activist has filed a petition in Supreme Court
challenging the Constitutional validity of 103rd Constitutional Amendment.

VII. Karnail Singh Case

A five judge Constitutional judge bench of SC ruled that “creamy layer exclusion
principle can be extended to SCs and STs to deny reservation to the “elite” among the
two underprivileged communities and ordered the government to notify appropriate
norms.
VIII. Government’s Inaction and Claim

Mr. Ron Weasley has approached the Supreme Court against the inaction of the
government

Government on its part claim that creamy layer principle was originally introduced in
context of

OBCs only. By extending it to SC and STs reservation this 5 judge bench is in

violation of Mandira Sawhney judgment of 9 judge Constitutional bench of 1993.
 STATEMENT OF ISSUES

-I-
Whether the 103rd Constitutional Amendment is Constitutionally valid or not?

-II-
Whether the Karnail Singh Judgment is in violation of Mandira Sawhney Judgment of
1993 or not?

-III-
Whether the “creamy layer exclusion" principle should be extended to
Scheduled Castes (SCs) and Scheduled Tribes (STs) reservation or not?
 SUMMARY OF ARGUMENTS

I. WHETHER THE 103rd CONSTITUTIONALAMENDMENT

IS VALID.
It is most humbly contended that the 103rd Constitutional Amendment seeks to give
effect to mandated duty of the State of Akhand Bharat to promote the interests of weaker
sections of society under the enforceable directive of Art. 46 of the Constitution.
Equality before law as dynamic concept embodies substantive equality which strikes at
inequalities arising on account of vast social and economic differentials and is
consequently an essential ingredient of social and economic justice. The 103rd
Constitutional Amendment being a measure to promote substantive equality preservers
the equality code which constitutes a basic feature of the constitution. Reservation
solely on the basis of economic criteria is valid as it is in the nature of Affirmative
Action by the State. The Amendment does not violate the doctrine of basic structure as
it fulfils the width and identity test and falls outside ambit of the limit of 50% rule of
reservation which was contemplated when clause 4 of Art. 16 was considered as an
exception to clause 1 of Art. 16. Furthermore, the103rd Constitutional Amendment
does not violate the fundamental rights ofaided/unaided private educational institutions
under 19(1)(g) as it is justified on the ground of reasonable restriction in the nature of
general public interest under clause 6 of Art. 19.

II. WHETHER THE KARNAIL SINGH JUDGEMENT IS IN

VIOLATION OF MANDIRA SAWHNEY JUDGMENT OF
1993 ?
In consonance with Mandira Sawhney judgment, SCs, STs & OBCs have been
classified into two groups one comprising of SCs & STs and the other comprising of
OBCs. The rationale behind such a classification is the fact of SCs & STs being the
weakest of the weak per [Link] backwardness do not require testimony of any
quantifiable data. Pursuant to this creamy layer exclusion principle was not exclusively
applied on SCs and STs.
M Nagraj v. Union of India applied it to SCs & STs thus indubitably dishonoured the
observations of 9 judge Bench even when they were bound by it. Karnail Singh repeated
the same by upholding Nagraj’s view on creamy layer exclusion principle and thus is
in violation of Mandira Sawhney.
Reservation in promotion was expressly denied by placing reliance on the fact that
Crutches cannot be provided throughout one’s career. But the same was was accepted
and allowed in Nagraj and consequently in Karnail Singh increasing the degree of
inconsistency between the two.

III. WHETHERTHE “CREAMY LAYER EXCLUSION”

PRINCIPLE SHOULD NOT BE EXTENDED TO SCs AND
STs RESERVATION.
Firstly, the three backward classes (OBCs, SCs and STs) comprise different groups for
the purpose of reservations as evident from the Mandira Sawhney dictum relying on
the historical background of the three classes. The applicability of the principlewas
originally extended to OBCs only but by purview of Karnail Singh judgment its
application was extended to SCs and STs. There is judicial fallacy on account of Karnail
Singh judgment which failed to address the difference between OBCs, SCs and STs. It
is further submitted that the application of creamy layer exclusion principle to the SCs
and STs violates Art.14 of the Constitution of Akhand Bharat since further classification
in the two groups is impermissible and will frustrate the very object of excluding the
two classes who inhabit and belong to different social realities thereby hampering the
very purpose of substantive equality as enshrined in Art.16(1) thus violating the basic
structure of the Constitution of Akhand Bharat. It is further stated that the criteria of
caste cannot be ignored while excluding the creamy
layer from the ambit of SCs and STs in furtherance of the fact that the constitution and
the law makers treat OBCs and SCs/STs as distinct groups but the parameters to identify
and indicate their backwardness in society are the same as implicit from judicial
interpretations, juristic opinions and existing laws thereby amounting to fallacy on part
of the judiciary and government.
 ARGUMENTS ADVANCED

I. WHETHER THE 103rd CONSTITUTIONAL AMENDMENT IS VALID.

A. ARTICLE 46 & PREAMBLE

The Preamble of Akhand Bharat sets out the ideological aspirations of the citizens
which are delineated in the various provisions of the Constitution.113The objective of
securing economic and social justice for all the citizens which is expressly provided in
the Preamble also constitutes a part of the basic structure of the Constitution.114

It is most humbly submitted that the 103rd Constitution Amendment that provides for
reservation of jobs in Central government as well as government educational
institutions for citizens belonging to economically weaker sections from the unreserved
category seeks to fulfill the aspiration of securing economic and social justice for the
citizens of Akhand Bharat. Furthermore the 103rd Constitutional Amendment is drafted
with a will to mandate Art. 46 of the Constitution that seeks to protect the educational
and economic interests of the weaker sections of the society.115

(i) Article 46 as a Constitutional Mandate

Part IV of the Constitution of Akhand Bharat contain the Directive Principles of State
Policy that are fundamental to the governance of the country and which impose a duty
on the State to apply these principles in making of the laws.116 The Directive Principles
have been regarded as the soul of the Constitution as Akhand Bharat is a welfare State
and these principles provide guidance to interpretation of fundamental rights of citizens
as well as statutory rights.117 J. Mathew in N.M

113 Kuldip Nayar v. Union of India & Ors, AIR 2006 SC 3127.
114 Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
115 Moot proposition para 4.
116 IND. CONST. art. 37.
117 Charu Khurana v. Union of India, AIR 2015 SC 839.
 Thomas v. State of Kerala 118 observed that “not only is the directive principle
embodied in Art.

46 binding on the law-maker as ordinarily understood but it should equally inform and
illuminate the approach of the court”. J. Krishna Iyer in the same case pointed out that “Art.
46 has to be given an emphatic expression while interpreting Art. 16(1) and Art. 16(2).”

Art. 46 is wider and includes people who cannot be classed as backward either under
Art. 15(4) or Art. 16(4).119 The expression weaker sections can also take within its
compass individuals who constitute weaker sections or weaker parts of society. 120 As
the State of Akhand Bharat is charged with the duty to protect the interests of weaker
sections in light of Art. 46 of the Constitution.121 Hence it is submitted that the 103rd
Constitutional Amendment is valid giving due regard to the mandated duty under the
directive of Art. 46 of the Constitution.

B. PRESERVATION OF EQUALITY CODE

Art. 14, 15 and 16 taken together form part of the same constitutional code ofguarantees
that supplement each other.122 Equality under Art. 14 accomodates within its ambit not
only equality before law but also protective discrimination suffered by SCs, STs
&OBCs.

(i) Promotion of Substantive Equality

123
The essence of the Constitution of Akhand Bharat is equality. The concept of
‘Equality before law’ in its total magnitude and dimension does not speak of mere
formal equality before the law but embodies the real and substantive equality which
strikes at inequalities arising on account of vast social and economic differentials

118 State of Kerala v. N.M Thomas, (1976) 2 SCC 10.

119 Indra Sawhney v. Union of India, AIR 1993 SC 477.
120 Vasanth Kumar v. State of Karnataka, AIR 1985 SC 1495.
121 State of Andhra Pradesh v. Balaram, AIR 1972 SC 1375.
122 General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36.
123 Moot proposition para1.
 and is consequently an essential ingredient of social and economic justice.124 The 10%
reservation for the economically weaker sections provided under Art. 15(6) and 16(6)
do not infringe the aims of the Art.15(4),Art. 15(5) and Art. 16(4) in the
communities they cater to. The Amendment seeks to create an egalitarian orderkeeping
in mind that a large segment of population of India falls below poverty line or comprises
of the lower middle class, thus compelling the state to fulfill its directive under Art. 46.
There can be no doubt that the intention of the Constitution makers was that the
Fundamental Rights should operate within the socioeconomic structure or a wider
continuum envisaged by the Directive Principles, for then only would the Fundamental
Rights become meaningful, exercisable by all and a proper balance and harmony
between Fundamental Rights and Directive Principles be secured.125Hence, the
Amendment seeks to promote substantive equality for millions of poor and deprived
people of Akhand Bharat by promoting their educational and economic interests.

(ii) Affirmative Action by State includes Reservation solely on Economic

Criteria

It is humbly submitted that economic criteria can be the sole basis for Affirmative
Action by the State in order to promote the educational interests of weaker sections of
the society. In Mandira Sawhney v. Union of India126 , among other things the SC held that
“the concept of equality before the law contemplates minimizing inequalities in income,
eliminating inequalities in status, facilities and opportunities not only amongst individuals but
also among groups of people , securing adequate means of livelihood to its citizens and to
promote with special care the educational and economic interests of the weaker sections of
the society.”
The consideration of Economic criteria as a factor for determination of social and
educational backwardness came before this Hon’ble court in Ashok Kumar Thakur v.
Union of India127, wherein it was held by the court that “upon expiry of the time-limit,

124 Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591.

125 Ibid.
126 Supra note 7.
127 (2008) 6 SCC 1.
 the criteria for identifying OBCs should only be economic in nature because our
ultimate aim is to establish a casteless and classless society.”Similar observations were
made by the Hon’ble SC in Vasanth Kumar v. State of Karnataka 128
by J. Chinnappa
Reddy, J. who recognized among other things that “using purely economic criteria for
ascertaining backward classes would lighten the identification load, as ascertaining
caste would no longer be required… If economic reservation were limited to a
reasonable number, it could be upheld.”
It is most humbly submitted that the 103rd Constitutional Amendment has been made
for the benefit of large sections of the society who are not covered within the existing
schemes of reservations envisaged under the Constitution. It is contended that the 10%
limit on reservation is reasonable and not arbitrary or excessive as it seeks to achieve
the goal of economic justice that is an essential feature of the constitution.

C. CONFIRMITY WITH BASIC STRUCTURE DOCTRINE

The doctrine of basic structure developed by the Hon’ble Supreme Court in
129
Keshavananda Bharti v. State of Kerala comprises of systematic principles
underlying and connecting the provisions of the Constitution that give coherence to the
Constitution and make it an organic whole although not expressly stated in the form of
rules. Some of these principles may be so important and fundamental, as to qualify as
'essential features' or part of the 'basic structure' of the Constitution.130
The theory of basic structure is based on the concept of constitutional identity that highlights
that 'the personality of the constitution must remain unchanged' despite the constitutional
amendment.131 J. Khanna in Kesavananda Bharati case quoted the words of Prof. Conrad
to point out what must be avoided to preserve the basic structure :“The amending procedure
is concerned with the statutory framework of which it forms part itself. It may effect changes
in detail, remould the legal expression of underlying principles, adapt the system to the
needs of changing conditions, be in the words of Calhoun ‘the medicatrix (Sic) of the
system’, but should not touch its foundations.”

128 Supra note 8.

129 Supra note 2.
130 M. Nagraj v. Union of India & Ors., (2006) 8 SCC 212.
131 Ibid.
 In light of the above it can be observed that for a constitutional amendment to be
challenged it is necessary that it must strike at the very foundation or core of the
Constitution and must not merely affect an article embodying a feature of the basic
structure. Therefore it is submitted that the 103rd Constitutional Amendment is in
conformity with the basic structure as it inserts Art. 15(6) and Art. 16(6) which are in
consonance with the policy of Affirmative Action that seeks to protect equality and is
permissible under Article 15(1), Article 15(2), Article 16(1) and 16(2) of the
Constitution of Akhand Bharat.

(i) Fulfilment of Width and Identity Test

The Hon’ble Supreme Court expounded the Width and Identity Test in M. Nagraj v.
Union of India & Ors.132. The ‘width test’ examines the boundaries of the amending
power of the Parliament and whether any of the constitutional requirements have been
obliterated by the amendments or not. The ‘identity test’, on the other hand, examines
whether the amendment has altered the identity of the Constitution beyond recognition.

In light of the arguments mentioned above, it is humbly submitted that the 103 rd
Constitutional Amendment Act does not impinge upon the identity of the Constitution
thus fulfilling the Identity Test. For the fulfilment of the Width test, the main issues that
require to be surmounted are the presence of the quantitative and qualitative restrictions
in the form of the 50% ceiling limit on reservations as well compelling reasons, namely,
backwardness, inadequacy of representation and overalladministrative efficiency.23

(ii) 50% ceiling not a binding rule

It is humbly submitted that the 50% ceiling limit on reservation has evolved and been
regarded as binding only in cases pertaining to the interpretation of Art. 15(4), Art.
15(5) and Art. 16(4) of the Constitution of Akhand Bharat i.e. reservations for SC,ST,

132 Ibid. 23 Ibid.

 SEBC or for classes not adequately represented in the services of the State. 133 It is
pertinent to note that the issue of harmonising the extent of reservation with the main
principle of equality only arose when Art. 16(4) was regarded as an exception to Art.
16(1). However this position has been changed with the decision of the SC in N.M
Thomas v. State of Kerala,25 wherein a majority of four out of seven judges held that
Article 16(4) is not an exception to 16(1), but an ‘emphatic restatement’ of the same.
Following the above proposition, it is submitted that the 50% ceiling limit of reservation
does not apply to Art. 15(6) and Art. 16(6). Furthermore, the principles enunciated in
Mandira Sawhney case134 do not hold good in the context of the case at hand. The
decision in Mandira Sawhney case was made when an Office Memorandum issued by
the government in 1990 to provide reservation for backward classes was challenged, on
the other hand the present case deals with the exercise of constituent power of
Parliament under Art. 368 of the Constitution of Akhand Bharat. Another point of
differentiation that requires consideration is that the decision of Sawhney was purely on
the anvil of the yardsticks available under Art.16(4) and Art.16(1), which are distinct
from Art. 15(6) and Art. 16 (6) and will have to, therefore, be tested independently. In
S.V. Joshi vs. State of Karnataka135, the Hon’ble SC held that if a State wants to exceed fifty
per cent reservation, then it is required to base its decision on the quantifiable data giving due
136
regard to judgements in [Link] and Ashok Kumar Thakur29. It is submitted that several
committees have been set up such as the S.R. Sinho Commission on Backward Classes by
the State of Akhand Bharat for collection of quantifiable data pertaining to economically weaker
sections. The Commision in its report in 2010 recommended that all BPL (Below Poverty Line)
families among general category as notified from time to time and also all families whose
annual family income from all sourcesis below the taxable limit (as may be revised from
time to time) should be identified as

133 M.R Balaji & Ors. v. State of Mysore & Ors.; Indira Sawhney v. Union of India, AIR 1993 SC 477.
25 Supra note 6.
134 Supra note 21.
135 (2012) 7 SCC 41.
136 Supra

note 17.
29 Supra
note 16.
 EBCs. 137 Therefore in light of the above arguments, it is submitted that the 103rd Constitutional
Amendment fulfils the Width test of the doctrine of basic structure and is hence Constitutionally
valid .

D. AMENDMENT DOES NOT VIOLATE ARTICLE 19(1)(G)

OF CONSTITUTION

The 103rd Constitutional Amendment being made in the interests of general public is
covered under Art. 19(6) of the Constitution that constitutes a valid reasonable
restriction to Art. 19(1)(g). It is submitted that access to higher education, including
professional education to students belonging to weaker segments of the society is a
matter of major concern for the welfare State of Akhand Bharat.

137 Commission for Economically Backward Classes Submitted Report to Shri Mukul Wasnik,Ministry
of Social Jusice and Empowerment , [Link]
 II. WHETHER THE KARNAIL SINGH JUDGMENT IS IN
VIOLATION OF MANDIRA SAWHNEY JUDGMENT OF
1993
The counsel most humbly submits that Karnail Singh judgment is in inconsistency with
the Mandira Sawhney judgement as is patently demonstrated from the excerpts of SC
judgments in the light of (A) Application of the creamy layer exclusion principle on
SCs & STs; (B) Validity of the Art. 16 (4A) and Art. 16 (4B) of Const. of Akhand
Bharat.

A. Application of the creamy layer exclusion principle on SCs & STs

The counsel submits that Mandira Sawhney judgment138 while dealing with SCs, STs
& OBCs made a distinction and classified SCs & STs in one group and OBCs in another
group. The rationale behind such a classification was the difference in their level of
Backwardness. The degree of backwardness of both these groups is not the same. One
group is the weakest of the weak per se and does not require a question of showing
backwardness as it confronts extreme cases of acute backwardness as a result of prior
discrimination. And that group is of SC &ST who indubitably fall within the expression
of backward classes. The testimony to this is provided by the following;

“367...The Scheduled Castes and Scheduled Tribes being the weakest of the weak per
se Satish the test of Socially and educationally backward classes.”

“319... Reservation should be avoided except in extreme cases of acute backwardness

resulting from prior discrimination as in the case of the Scheduled Castes and Scheduled
Tribes and other classes of persons in comparable positions. In all other cases,
preferential treatment short of reservation can be adopted.”

“365...(e) There may be a class which is inadequately represented in the state services
and it may be backward as a whole like the Scheduled Castes and Scheduled Tribes.
Such a class as a whole is eligible for the reserved posts.”

138 Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.
 “274.... Historically, backwardness has been the curse of people most of whom are
characterized as the Scheduled Castes and Scheduled Tribes....these are classified as
such by means of presidential notifications owing to their extreme backwardness and
other disadvantages.”
This classification between SCs & STs in one and OBC in the other is further
strengthened by the fact that the creamy layer principle has been applied only on OBCs
by restricting the discussion on creamy layer concept to OBCs only as is illustrated
from the following;

“790... This discussion is confined to Other Backward Classes only and has norelevance
in the case of Scheduled Tribes and Scheduled Castes.”

This exclusion of SC & ST from Creamy layer principle can be made more clear from
the fact that Mandira Sawhney judgment was concerned more with real equality rather
than abstract equality as is clear from the following;

“616... Abstract equality is neither the theme nor philosophy of our Constitution. Really
equality through practical means is the avowed objective.”

Thus it can be concluded from the discussion above that Mandira Sawhney judgment
has not through some stray words or phrases or sentences excluded SC & ST from
creamy layer principle and has rather provided a proper line of reasoning throughout
the judgment by classifying and describing them as the weakest of the weak. For whom
the collection of the data is not required for showing their backwardness. Karnail
Singh139while upholding the validity of the applicability of creamy layer principle to
SCs and STs has dishonoured and disrespected the 9 judge Bench decision in Mandira
Sawhney. Even when no judge in India except a larger bench of the Supreme Court
without a departure from the judicial discipline can whittle down,

139 (2018) 10 SCC 396.

 wish away or be bound by the ratio thereof.140 The counsel further submits that the
shield of petitioners that the statement of the Mandira Sawhney judgment does not
amount to the ratio decidendi and does not bound the lower court is baseless because
Ratio decidendi of a judgement is not to be discerned from a stray word or phrase read
in isolation. It has to be found out only by reading the entire judgement. 141A stray
sentence in a judgement without a focused argument cannot be considered as the ratio
of such judgement.142 Further it is submitted that even the obiter dicta of the supreme
court is regarded as binding by the courts below.143 Thus it is crystal clear that Karnail
Singh judgment is in inconsistent and violating the Mandira Sawhney judgment on the
point of creamy layer exclusion principle on SCs and STs.

B. Validity of the Art. 16 (4A) and Art. 16 (4B) of Const. of Akhand Bharat.

The counsel most respectfully submit that the very purpose for which A.16 (4A) and
A.16(4B) were inserted in itself has the seeds of something which is constitutionally
impermissible as is ostensible in the Statement of Reasons and Objects of the
Constitution (Seventy- Seventh Amendment) Act, 1995. The hon'ble Supreme Court
which is the apex constitutional interpreter has been devoid of its power of
constitutional interpretation. SC in Mandira Sawhney judgment even after not
confronting the question of reservation in promotions took it because;

“821... It must be remembered that reference to this larger bench was made with a view
to finally settle the legal position relating to reservations. The idea was to have a
final look at the said question by a larger bench to settle the law in an authoritative way.
It is for this reason that we have been persuaded to express ourselves on this question.”

140 Fuzlumbi v. Khader Vali, AIR 1980 SC 1730.

141 Arasmeta Captive Power Co. Pvt. Ltd. v. Lafarage India Pvt. Ltd., AIR 2014 SC 525 at pg. 535,536.
142 Union of India v. Pfizer Ltd., AIR 2018 SC 265 at pg. 279.
143 I.T. Commr. v. Vazir Sultan AIR 1959 SC 814; Municipal Committee v. Hazara Singh, AIR 1975 SC; Sarwan

Singh Lamba v. Union of India, AIR 1995 SC 1729.

 In pursuance of the same, eight out of nine judges in the Mandira Sawhney bench
presented their opinions on reservation in promotion. The judges unanimously opined
that reservation in promotion is unconstitutional, though they arrived at the concurring
conclusion through different reasons. Jeevan Reddy, J.’s concern was with the
efficiency of administration. He opined,

“...efficiency of administration demands that these members too compete with others
and earn promotion like all others; no further distinction can be made thereafter with
reference to their
“birth-mark”, as one of the learned Judges of this Court has said in another
connection…..Crutches cannot be provided throughout one’s career. That would not be
in the interest of efficiency of administration nor in the larger interest of the nation.”144
It was held by the majority in Rangachari that Article 335 may be read harmoniously
with

Article 16 of the Constitution since such construction is permissible. However, from

Reddy, J.’s judgment in Mandira Sawhney, it is evident that Article 335 subsequently
gained prominence to emerge as the sole guiding principle in declaring reservation in
promotion unconstitutional.

Thommen, J. commented that “affirmative action can function only during appointment
to a service. Once appointment is made, any further discrimination with respect to
salary, increment, service conditions, promotion or retirement benefits etc., amounts to
negation of equality, fairness and justice.”145 He claimed that reservation beyond strict
confines of Article 16(4) in public employment does not have warrant in the law since
then such practice becomes antithetical to equality.146 Kuldip Singh, J. Expressed his
opinion in that context as;

“A backward class entrant cannot be given less privileges because he has entered
through easier ladder and similarly a general class candidate cannot claim better rights

144 Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.
145 Id. 458.
146 Id. 459.
 because he has come through a tougher ladder. After entering the service through their
respective resources they are placed on equal footing and thereafter there cannot be any
discrimination in the matter of promotion….Even otherwise when once a member of the
backward class has entered service via reserve post it would not be fair to keep on
providing him easier ladders to climb higher rungs of the State services in preference
to the general category.”147

Sawant, J. also brought to notice the ill effect of reservation in promotion on the
superseding candidates. According to him, “since the superseding candidates are
assured of their promotion, there will be no motivation to work hard. Also, their attitude
towards their colleagues and towards their duties would be coloured with this
assurance.”41

Further it is submitted that the Supreme Court also relied on the debates in the
Constituent Assembly, wherein none referred to the reservation in promotions it does
not appear to have been within their contemplation.148 SC rejected the reservations in
promotions on the line of reasonings and focused argument. Mandira Sawhney held that
it would impermissible for the states to extend concessions and relaxations to members
of reserved categories in the matter of promotion without compromising the efficiency
of the administration. Concessions namely carrying forward of vacancies and
provisions for lowering qualified marks a lesser level of evaluation for the members of
reserved categories was held not permissible since that would compromise the
efficiency of administration.149

In contrary to this Art. 16(4B) and Proviso to Art. 335 was inserted via Constitution's
eighty first and eighty second Amendment Act of 2000.

147 Id.

490. 41
Id.
564
.
148 Id. 828.

149 Supra note 31 para 831 and 859(7).

 However, when in M Nagaraj v. Union of India150 Art. 16(4A) was challenged it
upholded it along with Art. 16(4B) and Proviso of Art. 335 which patently is violating
and is inconsistent with the 9 judge bench decision.

Now, when M Nagaraj was challenged in Karnail Singh case, the Supreme Court
upholded the same as valid. This clearly demonstrates the ignorance and negation of a
higher bench decision corresponding to the fact that it is inconsistent and in violation
of Mandira Sawhney judgment.

The argument that Mandira Sawhney judgment was concerned only with OBCs is
irrelevant as under Art. 16(4) SC, ST and OBC all have been included and it does not
permit provision for reservations in the matter of promotion.151 The Constitutional
Amendments by which Art. 16(4A), Art. 16(4B) have been inserted flow from Article
16 (4).152

150 (2006) 8 SCC 279.

151 Supra note 31Pg 552.
152 Supra note 44 Pg. 121.
 III. THAT THE “CREAMY LAYER EXCLUSION”
PRINCIPLE SHOULD NOT BE EXTENDED TO
SCHEDULED CASTES (SCS) AND SCHEDULED TRIBES
(STS) RESERVATION.

The counsel most humbly submits that the “creamy layer exclusion” principle should
not be extended to SCs and STs reservation in consonance of the following arguments:

A. THE TERM ‘OBCs’ DOES NOT ENVELOPE SCS AND STS.

SC that members of the SCs and STs are most backward classes and they must not be
subjected to any exclusions as far as social, economic and educational backward is
concerned.153 Therefore, the standard of adjudicating claims of OBCs and SCs/STs
cannot be applied in conformity with the same norms. The ambit of the term ‘OBC’
excludes SCs and STs.154

(i) SCs, STs and OBCs comprise different groups

The SCs are communities considered outside the Varna system.155“The SCs means
such castes, races or tribes or parts of groups within castes, races or tribes, being
castes, races, tribes, parts or groups which appear to his Majesty in council to
correspond to the classes of persons formally known as the ‘depressed classes’ as his
Majesty may specify.”156 The concept of backward classes cannot be circumscribed in
any particular arena. 157 Whereas factors such as Primitiveness, geographical isolation,
shyness and social, educational and economic backwardness that distinguish STs from
the other communities.”52 On the other hand communities that
153 Supra note 31.
154 Suri, K.C. “CASTE RESERVATIONS IN INDIA: POLICY AND POLITICS.”, The Indian Journal of
Political Science, Vol.55, no.1, (1994), [Link]/stable/41855679.
155 Ibid.
156 Government of India Act, 1935, Draft of Instruments of Instructions which it is proposed to recommend His

Majesty to issue to the governors of Indian Provinces, London, H.M. Stationery off, Part14.
157 M.R. Balaji v. State of Mysore, AIR 1963 SC 649; Janki Prasad Parimoo v. State of J.K., (1973) 3 SCR 236.
52 National Commission for Scheduled Tribes, 5th Report (2009-10), Ch. 1.
 have been historically marginalized in India, and continue to face oppression as well
as social, economic and educational isolation but do not fall into the SCs and STs
comprise OBCs these groups have to be notified by the State machinery from time to
time.158

(ii) The Union Legislature has also maintained a division between SCs, STs and
OBCs

The union legislature acting on the lines of the Constitution of Akhand Bharat and
interpretations and judgments by the SC has established different commissions for
safeguarding the interests of
the three backward classes : SCs, STs and OBCs such as National Commission for
Backward Classes Act, 1993; The Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989.

(iii) Test of backwardness

The criteria for determining backward classes as evolved from the Mandira Sawhney
dictum is as follows:159 1) A caste must be socially backward. 2) At the same time it
must educationally and economically backward owing to its social backwardness.

Since both SCs and STs as well as OBCs fulfill the above criteria but they cannot be
equated on the same pedestal with OBCs. 160 Thus, SCs/STs comprise a distinct fraction
separate from the OBCs.

B. APPLICATION OF CREAMY LAYER EXCLUSION PRINCIPLE TO SCs

AND STs IS IN VIOLATION OF MANDIRA SAWHNEY JUDGMENT OF
1993.

In consideration with the Mandira Sawhney judgment there was agreement among eight
out of nine judges (8:9) on the application of creamy layer exclusion principle to

158 Supra note 31.

159 Supra note 31.
160 Supra note 31.
 OBCs.161 The question as to application of creamy layer principle to SCs and STs is not
dealt in the case. The ratio of the case therefore places a line of caution providing while
dealing with the applicability of the creamy layer exclusion principle, “this discussion
is confined to OBCs only and has no relevance to SCs and STs.”57

(i) Judicial Fallacy to group SCs, STs and OBCs in on group .

Thus, there is judicial fallacy in the Karnail Singh judgment since Art.46 has itself made
distinction between the SCs and STs and OBCs upholding the reality that SCs and STs
162
population are presumed backward. Furthermore, the Karnail Singh judgment did
not go into the depth of the historical and ongoing discrimination with reference to SCs
and STs as in contrast with the Mandira Sawhney judgment.

(ii) Creamy layer: An economic criteria backed by Social Advancement not

applicable to SCs and STs.

With regard to the origin of the concept of creamy layer in Mandira Sawhney case it
was stated that the exclusion of creamy layer must be on the basis of social advancement
and the degree of social advancement would be determined with regard to economic
status. 163 The judgment in this context further provides, “while the income of a person
is taken as measure of his social advancement, it must be ensured that it does not result
in taking away what is given by the other.”164 Moreover, the judgment also emphasized
that there is no need to collect to quantifiable data showing backwardness as far as SCs
and STs are concerned.165

161

Ibi
d.
57

Ibi
d.
162 Jarnail Singh and Ors. v. Lachhmi Narain Gupta and Ors, (2018) 10 SCC 396.
163 Supra note 31.
164 Supra note 31 , para 792.
165 Ibid.
 Thus, the Karnail Singh judgment extending the principle of creamy layer exclusion
to SCs and STs relies on the arguments of Mandira Sawhney case which were
specifically directed towards OBCs imposing an obligation on the State to collect
quantifiable data with respect to OBCs only and for a periodic revision of the same.

C. “CREAMY LAYER EXCLUSION” PRINCIPLE IS VIOLATIVE OF ART. 14

AND ART. 16(1).

(i) The Test of Reasonable Classification

The essence of equality is governed by Art.14 which permits reasonable classification

for the purpose of effective legislation provided that:

i. The classification must be founded on an intelligible differentia.

ii. The classification must have a rational relation to the object

sought to be achieved.166

Further, the SC restated that the means test/wealth test/income test is to be applied to
OBCs in admission to government universities as well as government – aided private
universities in which
the then CJI of India K.G. Balakrishnan had remarked that the creamy layer principle
is inapplicable to SCs and STs because it is merely a principle of identification of the
backward classes and not applied as a principle of equality. 167 The classification as
drawn in Karnail Singh judgment as to exclude the creamy layer from SCs and STs was
not founded on an intelligible differentia since the same would lead to injustice to the
community as a whole so the question of rational nexus does not arise. Since it hasbeen
well established by the Mandira Sawhney dictum that the classes SCs and STs are the
most backward classes not because they were poor but because they were excluded of
the realm of socialization there is an absolute breach of equality by subjecting them to
the means test since equals within a group would be treatedunequally by subjecting
them to classification. The principle of creamy layer subjects

166 K. Thimmappa v. Chairman, Central Board of Directors, SBI AIR 2001 SC 467.
167 Ashok Kumar Thakur v. Union of India, 2008 (6) SCC 1
 the SCs and STs to a sub - classification within the group with reference to their
economic status in society which was considered impermissible.168

(ii) The Principle of Substantive Equality

The Indian constitution engrains the terminology of substantive equality which works
through four pillars:169

i. The right to substantive equality should aim to redress disadvantage.

ii. It should aim to counter prejudice, stigma, stereotyping, humiliation and violence based
on a protected characteristic.
iii. It should encourage voice and participation countering both political and social
exclusion. iv. It should accommodate difference and achieve structural difference.

The Karnail Singh judgment treated the creamy layer exclusion principle as a facet of
larger equality principle and applied the same to SC and ST population. The application
of the income test violates the principle of substantive equality enshrined in Art.16(1)
as it uses one single parameter to judge the backwardness and entitlement of two
different classes of persons who inhabit materially different social realities.

(iii) Ground Realities In 2018 the total crime rate against the SCs as estimated by
NCRB is 21.6% in the States and 21.3% in the UTs whereas the total crime rate against
the STs is 6.3% in States as well as in UTs.170 The rate of crime shows clearly implies
that these communities are still subject to discrimination.

Furthermore, the Constitution of Akhand Bharat was wisely drafted by the membersof
its Constituent Assembly. It encompasses values of human dignity and equality. 67 Thus,
by extending the principle of creamy layer exclusion to SCs and STs is violative of
Art.14 and Art.16(1) thereby directly attacking the basic structure of the Constitution
of Akhand Bharat.

168 E.V. Chinnaiah v. State of A.P, (2005) 1 SCC 394; Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.
169 Sandra Fredman, ‘Substantive equality revisited’, Oxford University Press and New York University Schoolof
Law International Journal of Constitutional Law, (Vol. 14 Issue 3), Jul. 2016, pg. 713
– 714. 170 Crime in India, National Crime Records Bureau, Ministry of Home Affairs,
Statistics Vol.2, (2018). 67 Moot Proposition, para 1.
 (iv) CASTE CANNOT BE IGNORNED AS A CRITERIA FOR DETERMINING
BACKWARDNESS WITH RESPECT TO SCs AND STs.

While explaining backward classes under Art. 16(4) a nexus between social
backwardness and poverty, caste, occupation and social backwardness has been created.
Further holding the opinion that it was virtually impossible to eliminate the use of caste
as a criterion for determining backwardness the court held that it could not be used as
a criterion for identification of OBC without it being established:171

i. That the caste as a whole is a backward class.

The caste – occupation nexus exists despite of urbanization thus even when the
backward classes move forward the social stigma subsists. 172 SCs and STs comprise
those classes of the society which were not able to advance themselves socially and
educationally because of the taboos and handicaps put by society in the past or by
reasons of geographical or similar factors.173 It was rightly observed in the Mandira
Sawhney judgment, “ Reservation is exclusively for the Harijans, the Girijans, the
Adivasis, the Dalits or other like “Depressed” classes or races or tribes most
unfortunately referred to in the past as the “untouchables” or the “outcasts” by reason
of their being born in what was wrongly regarded as low castes and any other class of
citizens afflicted by like degree of poverty and degradation caused by prior and
continuing discrimination and exploitation whatever be their professed faith, religion
or caste. These classes of citizens segregated in slums and ghettos and afflicted by
grinding poverty, disease, ignorance, ill health and backwardness, and haunted by fear
and anxiety, are the constitutionally intended beneficiaries of reservation, not because
of their castes or occupations, which are merely incidental facts of history, but because
of their backwardness and disabilities stemming from identified past or continuing
inequities and discrimination.”174 But in case of OBCs the onus of proof lies on the
State to prove that they have been subject to

171 Supra note 31

172 K.C. Vasanth Kumar v. State of Kerala, AIR 1985 SC 1495.
173 Balaji v. State of Mysore, AIR 1963 SC 649; Janki Prasad Parimoo v. State of J.K., (1973) 3 SCR 236.
174 Supra note 31, para 323(4).
 discrimination in the past and are reduced to a state of backwardness as in case of SCs
and STs.175
Despite the fact that the constitution and the law makers treat OBCs and SCs/STs as
distinct groups, the parameters to identify and indicate their backwardness in society
are the same as is implicit from judicial interpretations, juristic opinions and existing
laws thereby amounting to a fallacy on the part of the judiciary and government. The
creamy layer exclusion principle as originally evolved from the perspective of OBCs
need not be extended to SCs and STs.

175 Supra note .

 PRAYER
Wherefore in the light of the facts stated, issues raised, arguments advanced and
authorities cited, it is most humbly and respectfully prayed that this Hon'ble Court may
be pleased to adjudge and declare that:

1.) The 103rd Constitutional Amendment is Constitutionally valid.

2.) The Karnail Singh judgment is in violation of Mandira Sawhney judgment of

1993.

3.) The “creamy layer exclusion” principle should not be extended to Scheduled
Castes (SCs) and Scheduled Tribes (STs) reservation.

And pass any other order or direction that this Hon’ble Court may deem fit in the
interest of justice, equity and good conscience.

All of which is humbly prayed,

Counsels for the Respondent.

 IN THE HON’BLE STSTE CONSUMER
REDRESSAL COMMISSION WESTROSI

CIVIL APPEAL NO. ******/2019

CASE CONCERNING OFFENCE U/S 17 OF CONSUMER PROTECTION ACT 1986

IN THE MATTER OF
Mr. SNOW ..................................................................................... PLAINTIFF

V/S

DRAGON AUTOMOBILES...........................................................DEFENDANT

UPON THE SUBMISSION TO THE HON’BLE JUDGE IN

THE STATE COMMISSION OF WESTROSI

9
 TABLE OF CONTENTS

Statement of jurisdiction ........................................................... Error! Bookmark not defined.

Statement of facts ....................................................................... Error! Bookmark not defined.

Background Error! Bookmark not defined.

Relevant facts Error! Bookmark not defined.
SUMMARY OF ARGUMENTS ............................................... Error! Bookmark not defined.

Whether the dragon automobile is liable for negligence or not? Error! Bookmark
not defined.
Whether the company dragon automobile is liable for product liability?
Error
! Bookmark not defined.
Whether the Mr. Snow is liable of the defamation of the dragon automobiles or not?
Error! Bookmark not defined.
Whether the Dragon Automobiles is liable for compensation or not? Error! Bookmark not
defined.
Pleadings ..................................................................................... Error! Bookmark not defined.

WHETHER THE DRAGON AUTOMOBILE IS LIABLE FOR NEGLIGENCE OR

NOT? Error! Bookmark not defined.
a. Essentials of the negligence Error! Bookmark not defined.
b. Mr. Snow is an habitual offender Error! Bookmark not defined.
WHETHER THE PETITIONER MR. SNOW IS LIABLE FOR DEFAMATION OR
NOT? ........................................................................................... Error! Bookmark not defined.

(A) The statement is a matter of truth Error! Bookmark not defined.

(B) The statement made was a fair comment Error! Bookmark not defined. WHETHER
THE COMPANY DRAGON AUTOMOBILE IS LIABLE FOR PRODUCTLIABILITY
? Error! Bookmark not defined.

Liability under COPRA? Error! Bookmark not defined.

How long are producers liable for?Error! Bookmark not defined.
What is a 'defective product'? Error! Bookmark not defined.
whether the Dragon automobile is liable for the compensation or not?Error! Bookmark not
defined.

PRAYER ................................................................................................................................. 20
 LIST OF ABBREVIATION

& And

AIR All India Reporter

Anr. Another

Art. Article

CA Criminal Appeal

[Link] Criminal Law Journal

[Link] Code of Criminal Procedure

DV Domestic Violence

FIR First Information Report

HC High Court

Hon’ble Honorable

IPC Indian Penal Code

IEA Indian Evidence act

MLR Medical Report

Ors Others

P&HC Punjab and Haryana High Court

PW Prosecution Witness

PMR Post Mortem Report

SC Supreme Court
SCC Supreme Court cases

SCR Supreme Court Record

SLP Special Leave Petition

UOI Union of India

v. Versus
 LIST OF AUTHORITIES

• CASES:

1. Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. (2017)

2. Minor Veeran v. T.V. Krishnamurthy, AIR 1986 Ker 172
3. Hedley Byrne Co. Ltd. V. Heller & Partners Ltd., [1964] AC 465
4. Donoghue v. Stevenson, 1932 UKHL 100
5. P. Narasinkha Rao v. Gundaverapu Jayaprakashan, AIR 1990 AP 207
6. Blyth v. Birmingham Waterworks Co,. (1856) 11 Ex Ch 781
7. Scott v. London & St. Katherine Dock Company, 159 E.R. 665 (1865)
8. Ravneet Singh Bagga v. K.L.M. Royal Dutch Airlines & Another, 1997
9. Redley v. L. & N.W. Rly & Co., 1876 1 A.C. 759
10. Rudul Shah v. State of Bihar, 1983 4 SCC 141
11. Dainik Bhaskar v. Madhusudan Bhaskar, AIR 1991 MP 162
12. Slim v. Daily Telegraph Ltd., CA 1968
• BOOKS REFERRED:

1. Law of Torts and Consumer Protection by Dr. J.N. Pandey.

2. The Law of Torts by M.N. Shukla.

3. Law of Torts by R.L. Anand.

4. Law of Defamation & Malicious Prosecution by V. Mitter.

5. Law of Torts by Ramaswamy Iyer.

6. Trademarks by D.P. Mittal.

7. Law of Torts and Consumer Protection Act by Dr. S. [Link].

8. The Law of Torts by Durga Das Basu.

9. The Law of Torts by Ratanlal & Dhirajlal.

10. Law of Torts by Dr. R.K. Bangia

ACTS AND STATUTES:

• The Consumer Protection Act, 1986

• The Motor Vehicle Act, 1988

• The Indian Penal Code, 1860

• The Indian Constitution, 2019.

LAWS DICTIONARIES:

• Greenberg Daniel, Stroud’s Judicial Dictionary of Words and Aiyer P.R., Advanced Law
Lexicon, (3rd ed., 2005).

• Phrases, (4th ed.), Sweet and Maxwell, Vol. 4

• Mish F.C., Merriam-Webster’s Collegiate Dictionary,(11th ed. 2003)

• Garner B.A. Black’s Law Dictionary, (9th ed. 2009)

• Oxford Advanced Learners Dictionary, (7th Ed. 2008)

WEBSITES REFFERED:
• [Link]

• [Link]

• [Link]

• [Link]
 STATEMENT OF JURISDICTION

The Hon’ble State Consumer Disputes Redressal Commission has jurisdiction to try the instant
matter under Section 17 of CONSUMER PROTECTION ACT, 1986.
 SUMMARY OF FACTS

• Mr. Snow is an Investment banker associated with Iron Bank in Westrosi. On March 3, 2016,
Mr. Snow purchased a sports utility vehicle Dragon VX from Targareyn Dealers where the
Targareyn Dealers had an authorized dealership with Dragon Automobiles.

• On November 12, 2016, the car purchased by Mr. Snow was due for its first complementary
service. Mr. Snow complained that he encountered problems related to gear transmission.
Targareyn Dealers stated that these problems were manufacturing defect and the car had to
be sent to the Dragon Automobiles Service Center.

• On March 5, 2017, the second service day of the car, Mr. Snow pointed out that after the first
service he had been facing wheel alignment troubles. He complained that on two isolated
occasions gear shifting was stiff. The Targareyn Dealer’s expert assured him the minor repairs
which were in the shifter cable.

• On July 21, 2018, Mr. Snow was returning from the party at around 2 a.m. from Hotel Golden
Tusk and met with an accident resulting in the direct collision with a telephone pole. After the
collision the air bags deployed and Mr. Snow suffered minor injuries. He was taken to Redkeep
Hospital where a test and treatments were undertaken.

• A blood test was conducted on Mr. Snow and it revealed that his BAC (Blood Alcohol Content)
level was 0.35 mg/ml. In maternity clinic, Ms. Cersei, a pregnant lady, that was 100m away
from the accident site, incidentally saw the accident of Mr. Snow’s car and was under a shock
which resulted in miscarriage. She alleged that she suffered a nervous shock and Mr. Snow
was responsible for it.

• On August 12, 2018 Mr. Snow filed a complaint to the State Consumer Disputes Redressal
Commission, alleging that the cause of the accident was the manufacturing defect of the
negligence. It was alleged by him that he encountered trouble with shifting of gears as a
result the car was swerve and collided with telephone pole. Whereas, Dragon Motors asserted
that there was no manufacturing defect in the car. Mr. Snow had already been fined twice for
the offence of drunk and drive which cause the direct negligence.
 STATEMENT OF ISSUES

-I-WHETHER THE DEFENDANT DRAGON AUTOMOBILIES IS LIABLE

FOR ACCIDENT OR NOT?

-II-WHETHER THE DEFENDANT DRAGON AUTOMOBILE IS LIABLE

FOR NEGLIGENCE OR NOT?

-III-WHETHER THE DEFENDANT DRAGON AUTOMOBILE IS LIABLE

FOR COMPENSATION OR NOT?

-IV-WHETHER THE PETITIONER MR. SNOW IS LIABLE FOR

DEFAMATION OR NOT?
 SUMMARY OF ARGUMENTS

• WHETHER THE DEFENDANT DRAGON AUTOMOBILIES IS

LIABLE FOR ACCIDENT OR NOT?

It is most humbly submitted before this Hon’ble Court that the defendant company Dragon
Automobiles is liable for the accident. The Company fulfills the essential elements. The Company
Dragon Automobiles are also liable for product liability. Therefore the defendant Company
Dragon Automobiles is liable for the accident.

• WHETHER THE DEFENDANT DRAGON AUTOMOBILE IS

LIABLE FOR NEGLIGENCE OR NOT?

It is most humbly submitted before this Hon’ble Court that the defendant Company Dragon
Automobiles is liable for the negligence and also fulfill the conditions and essential points. The
Dragon Automobiles are also liable for the defendant owed a duty of care to the plaintiff (A); the
defendant made a breach of that duty (B); the Plaintiff suffered damage as a consequence thereof
(C). Also, the Rule of Last Opportunity (D), therefore, the defendant Company Dragon
Automobiles is liable and guilty for the negligence.

• WHETHER THE DEFENDANT DRAGON AUTOMOBILE IS

LIABLE FOR COMPENSATION OR NOT?

It is most humbly submitted before this Hon’ble Court that the defendant company Dragon
Automobiles is liable for the compensation. The Company Dragon Automobiles fulfill all the
essential elements. The Company is also liable for vicarious liability and also violation of the
fundamental rights. Therefore, the defendant Company Dragon Automobiles is liable for the
compensation.
 • WHETHER THE PLAINTIFF MR. SNOW IS LIABLE FOR
DEFAMATION OR NOT?

It is most humbly submitted before this Hon’ble Court that the plaintiff Mr. Snow is not liable for
the defamation. The petitioner Mr. Snow does not fulfil any condition and essentials of the
defamation. The Plaintiff is not guilty for the defamation of Dragon Automobiles.
 ARGUMENTS ADVANCED

I. WHETHER THE DRAGON AUTOMOBILIES IS LIABLE FOR

ACCIDENT OR NOT?

It is humbly submitted to the Hon’ble court that the company Dragon Automobiles is
liable for accident.

The company Dragon Automobiles is liable for product liability

PRODUCT LIABILITY: “Products liability refers to the liability of any or all parties along
the chain of manufacture of any product for damage caused by that product.”

This includes the manufacturer of component parts, an assembling manufacturer, the wholesaler,
and the retail store owner. Products containing inherent defects that cause harm to a consumer of
the product would be the subjects of products liability suits. While products are generallythought
of as tangible personal property, products liability has stretched that definition to include
intangibles (i.e. gas), naturals (i.e. pets), real estate (i.e. house), and writings (i.e. navigational
charts). Products liability is derived mainly from torts law.

Prima Facie Case (for the commercial seller of the defective product)

• The defendant sells a product that the plaintiff uses.

• The defendant is the commercial seller of such a product.

• The plaintiff suffers an injury.

• When the defendant sold the item, the item was defective.

• The defect was an actual and proximate cause of the plaintiff's injury.

Types of Products Liability Claims

Products liability claims can be based on negligence, strict liability, or breach of warranty of
fitness. This will typically depend on the jurisdiction within which the claim is based, due to the
fact that there is no federal products liability law. This lack of uniformity has resulted in the United
States Department of Commerce publishing the Model Uniform Products Liability Act (MUPLA),
which has tried to encourage uniform procedures for the products liability tort.

Defects That Create Liability

There are three types of product defects that incur liability in manufacturers and suppliers:

• Design Defects

• Design defects are inherent, as they exist before the product is manufactured. While
the item might serve its purpose well, it can be unreasonably dangerous to use due
to a design flaw.

• The plaintiff has the burden of proof to prove the existence of a design defect.
However, the defendant must justify the product’s design to show why there was
no defect.

• Manufacturing Defects

• Manufacturing defects occur during the construction or production of the item

• Only a few out of many products of the same type are flawed.

• Defects in marketing

• Defects in marketing deal with improper instructions and failures to warn

consumers of latent dangers in the product

Strict Liability

Products Liability is generally considered a strict liability offence. With regard to products
liability, a defendant is liable when the plaintiff proves that the product is defective, regardless of
the defendant's intent. It is irrelevant whether the manufacturer or supplier exercised great care;
if there is a defect in the product that causes harm, he or she will be liable for it.

Overcoming Liability Even When the Product is Defective .Even when a product is defective due
to a design flaw, some courts will use one of two tests to find that the defendant has no liability.
• Risk-Utility Test

• The defendant is not liable for a design defect if evidence shows that the product’s
utility outweighs its inherent risk of harm.

• Consumer Expectation Test

• A reasonable consumer would find the product defective when using the product in
a reasonable manner.

• If a reasonable consumer would not find the product to be defective even when
using it in a reasonable manner, then the defendant is not liable, even if the product's
design flaw resulted in injury.
 II. WHETHER THE DEFENDANT DRAGON AUTOMOBILE IS
LIABLE FOR NEGLIGENCE OR NOT?

The counsel humbly submits to the Hon’ble Court that the defendant is liable for negligence
and therefore the plaintiff is entitled to damages. In Minor Veeran v. T.V.
Krishnamurty176, it has been observed that negligence involves - The defendant owed a
duty of care to the plaintiff (A); the defendant made a breach of that duty (B); the Plaintiff
suffered damage as a consequence thereof (C). Also, the Rule of Last Opportunity (D).

(A) The Defendant owed a Duty of Care to the Plaintiff

1. It is humbly submitted to this Hon’ble Court that the defendant is a highly reputed
private limited company which provides travel services exclusively and was hired by the
plaintiff for arranging his trip to Australia. Hence, the defendant was under a duty to take
reasonable care towards the plaintiff to avoid the damage complained of.

2. In Hedley Byrne Co. Ltd. V. Heller and Partners Ltd.177, the House of Lords has held
that the law will imply a duty of care when a party seeking information from a party who
possessed special skill trusts him to exercise due care and that a negligent, though honest,
misrepresentation in breach of his duty may give rise to an action for damages. When
anyone is engaged in a transaction in which he holds himself as having professional skill,
the law expects him to show average amount of competence associated with the proper
discharge of the duties of that profession, and if he falls short of that and injures someone
in consequence, he is not acting reasonably.

3. It has been held by the House of Lords in the case of Donoghue V. Stevenson178 – “You
must take reasonable care to avoid acts or omissions which you can reasonable foresee
would be likely to injure your neighbor.” The duty depends upon reasonable foreseeability
of the injury to the plaintiff. If at the time of the act or omission the defendant could
reasonably foresee injury to the plaintiff he owes a duty to prevent that injury and failure
to do so makes him liable. It is mentioned in para 4 of the problem that
176 AIR 1966 Ker 172
177 [1964] AC 465
178 1932 UKHL 100
 the plaintiff acted on the advice of the defendant to book his flight to Sydney through
Chennai instead of Mumbai. Later, it was discovered by the plaintiff that while the flight
from Mumbai to Sydney was refundable, the one from Chennai to Sydney was
nonrefundable. Hence, the plaintiff suffered a huge loss on account of this negligence of
the defendant which makes the defendant liable.

4. In the case of [Link] Rao v. Gundaverapu Jayaprakashan179, it was held by

Andhra Pradesh High Court held that “ In case of persons who undertake work requiring
special skill must not only exercise reasonable care but measure up to the standard of
proficiency that can be expected from persons of such profession. Failure to conform to the
required standard of care resulting in material injury is actionable negligence if thereis
proximate connection between the defendant’s conduct and the resultant injury.”

5. In the case concerned, the defendant has failed to establish a reasonable degree of care.
It is important to mention here that it is stated in Para 11, that the plaintiff was acting on
the assurance made by the defendant that the passports would reach the Chennai Airport
directly which reached only by the time when plaintiff had missed the flight.

(B) The Defendant made a Breach of the Duty

6. It is noteworthy that the defendant being a highly reputed company assured theplaintiff
for the best comforts during the entire tour, to arrange the bookings and to provide all types
of services including getting visa etc. The expression ‘negligence’ is well expounded and
propounded in Blyth v. Birmingham Waterworks Co. 180 – “Negligence is the omission to
do something which a reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human affairs, would do, or doing something which a prudent and
reasonable man would not do.”

179 AIR 1990 AP 207

180 (1856) 11 Ex Ch 781
 7. The counsel humbly submits to this Hon’ble Court that the defendant has failed to act
as a prudent man and failed to establish a standard of care. It is important to mention here
that it was the duty of Mr. Tommen of the defendant to scrutinize all the documents for the
processing of visa and then file it with embassy.

8. The happening of the unfortunate incident affords prima facie evidence that it was the
result of want of due care. The very negligence of the defendant can be proved by the
maxim Res Ipsa Loquitur which means ‘the thing speaks for itself’. The doctrine of 'Res
Ipsa Loquitur' applies and it is proved by the plaintiff that the defendant has not taken due
care while arranging for the Australian trip.

9. It was said in Scott v. London & St. Katherine Dock Company181, “where the thing is
shown to be under the management of the defendant or his servant and the accident is such
that, in ordinary course of the thing, it does not happen, if those, who have management
use the proper care, it affords the reasonable evidence, in absence of explanation by the
defendant, that accident arose from want of care.”

(C) The Plaintiff suffered damage as a consequence thereof

11. It is submitted before this Hon’ble Court that not merely the defendant was negligent
but also there was actual damage and the damage resulted to the plaintiff in consequence
of negligent act was the direct and proximate cause of the damage. The plaintiff requested
the defendant to send the visas immediately after they were issued but it was again advised
by defendant that owing to the paucity of time, the passports will be sent to Chennai airport
directly which only reached at 21:00 hours on 08.09.2017 i.e. by the time when the plaintiff
had already missed the flight.

181 159 E.R. 665 (1865)

 12. The plaintiff relies upon the Judgment of Hon’ble Supreme Court in the case titled
“Ravneet Singh Bagga V/s K.L.M. Royal Dutch Airlines & Another 182”, where Hon’ble
Supreme Court has held that the deficiency in service cannot be alleged without attributing
fault, imperfection, shortcoming or inadequacy in quality, nature and manner of
performance which is performed by a person in pursuance of a contract or otherwise in
relation to any services”. This Judgment goes against the defendant because the facts
clearly show that the defendant had committed deficiency in service and even provided
inadequate and substandard services as were promised, due to which the plaintiff had to
suffer grave harassment, trauma along with financial losses.

182 8701 of 1997

 III. WHETHER THE DEFENDANT DRAGON AUTOMOBILE IS
LIABLE FOR COMPENSATION OR NOT?

It is humbly submitted to the Hon’ble court that the company Dragon Automobiles is liable for
compensation. a) The defendant is liable for compensation on grounds of violation of
fundamental rights. b) Further, they are also liable under Art. 300(1) of the INDIAN
CONSTITUTION which states the common law principle of vicarious liability.

• Compensation must be provided, if there is violation of fundamental rights

• The seed of compensation for the infraction of the rights implicit in the article 21 was
first sowed in Khatri, Sant Bir and Veena Sethi, which sprouted with such a vigorous
growth that is finally enabled the court to held that the defendant is liable of the
compensation. This dynamic move of the court resulted in the emergency of the
compensatory jurisprudence for the violation of right to personal liberty though Rudul
Shah v. State of Bihar183, which recognized the principle of monetary compensation for
the violation of fundamental rights. In this case, the plaintiff’s fundamental rights are
violated under freedom of speech and expression enshrined in Art. 19 (1) (a) of
constitution, under freedom of peaceful assembly without arms enshrined in Art. 19 (1)
(b) of constitution, by arbitrary action of company and used unreasonably which is
violative of Art. 14 of constitution, under right to sleep which is violative of Art. 21
enshrined in constitution.

• A claim in public law for compensation justifies award of monetary compensation for
contravention of fundamental rights guaranteed by the constitution, when that is the only
practicable mode of redress available for the contravention made by the company Dragon
Automobile or its servants in the purported exercise of their power.

The defendant is liable under the common law principle of vicarious liability

• The legal basis of liability of the respondent comes under Art. 300 (1) of the Indian
Constitution. It provides a platform for the state to sue or be sued as juristic personality. It

183 1983 4 SCC 141

is well settled that ambit of Article 300 included tortious liability of state and its scope is
not limited to suit or right to one in respect of contractual liability only.
 IV. WHETHER THE PETITIONER MR. SNOW IS LIABLE FOR
DEFAMATION OR NOT?

It is humbly submitted before this Hon’ble court that the plaintiff is not liable for
defamation as the defendant has not come to the court with clean hands. The statements
made by the plaintiff are not defamatory in nature as-The statement is a matter of Truth

(A) ; the statement made was a fair comment

(B);The statement is a matter of truth

1. The counsel on behalf of the plaintiff contends that the words complained of are in
substance and in fact true. The statement made was – “Travel Solutions Private Limited –
a bunch of liars, cheats and thieves with no ethics. The worst company ever. A statement
is true in substance if the erroneous details in no way aggravate the defamatory character
of the statement or alter its nature. In the case of Dainik Bhaskar v. Madhusudan
Bhaskar184, it was held that it is not necessary to justify every detail of the charge, provided
that the gist of the libel is proved to be in substance correct, and that the details, etc., which
are not justified, produce no different effect on the mind of the reader than the actual truth
would do.

2. It is important to mention here that every single time the plaintiff was acting on the
advice given by the defendant as he booked the flight tickets from Chennai instead of
Mumbai to Sydney according to the advice given by the defendant. It shows that plaintiff
reposed all of his trust and confidence in the defendant which was breached by them time
and again.

The statement made was a fair comment

3. The matter complained of as defamatory, was an honest expression of opinion made in

good faith and for the good of the public. A matter of public interest is a matter which
invites public attention, is of public importance or in which public is legitimately
concerned.
184 AIR 1991 MP 162
4. A man has the right to publish, for the purpose of giving the public information that
which it is proper for the public to know. It is a matter of grave public concern that a highly
reputed company like the defendant has failed miserably in discharging its liability towards
its client. The defendant serves clients all over the country and certainly the subject matter
complained of invites public attention.

5. Hence, the plaintiff had no malicious intention in doing so as the plaintiff

communicated the matter to the public from a sense of duty and legal morality being a law-
abiding citizen of the country. Therefore, it is well established before this Hon’ble Court
that the comment is fair as it is stated on facts. The defendant has expressed the opinions
honestly, done so upon facts accurately stated and hence there is hardly any scope for
complaint of defamation.
 PRAYER

Wherefore, in the light of facts stated, the cases cited, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and implored before the Hon’ble High Court of Mumbai, that it may be
graciously pleased to adjudge and declare that:

• The defendant is liable for accident.

• The defendant is liable for negligence and the plaintiff is entitled to damages as sought.

• The defendant is liable for the compensation.

• The plaintiff is not liable for defamation.

Also, pass any other order that the court may deem fit in the favour of plaintiff to meet the ends
of equity, justice and good conscience.

For this act of Kindness, the Defendant shall duty bound forever pray.

All of which is most humbly and respectfully submitted.

Sd/-
Counsels for the DEFENDANT
IN THE HON’BLE STSTE CONSUMER REDRESSAL COMMISION
WESTROSI

CIVIL APPEAL NO. ******/2019

CASE CONCERNING OFFENCE U/S 17 OF CONSUMER
PROTECTION ACT 1986

IN THE MATTER OF
Mr. SNOW ............................................................................. PLAINTIFF

Vs.

DRAGON AUTOMOBILES .......................................... DEFENDANT

Written Submission on behalf of the

DEFENDENT

11
 TABLE OF CONTENTS

STATEMENT OF JURISDICTION................................................................................................ 120

SUMMARY OF FACTS ................................................................................................................... 121
STATEMENT OF ISSUES ............................................................................................................... 123
SUMMARY OF ARGUMENTS....................................................................................................... 124
ARGUMENTS ADVANCED ........................................................................................................... 126
WHETHER THE DRAGON AUTOMOBILE IS LIABLE FOR NEGLIGENCE OR NOT? . 126
Essentials of the negligence ........................................................................................................... 126
Mr. Snow is an habitual offender ................................................................................................. 128
WHETHER THE PETITIONER MR. SNOW IS LIABLE FOR DEFAMATION OR NOT?. 130
(A) The statement is a matter of truth .................................................................................... 130
(B) The statement made was a fair comment......................................................................... 131
WHETHER THE COMPANY DRAGON AUTOMOBILE IS LIABLE FOR PRODUCT
LIABILITY ? .................................................................................................................................... 133
Liability under COPRA? .............................................................................................................. 134
How long are producers liable for? .............................................................................................. 134
What is a 'defective product'? ...................................................................................................... 134
WHETHER THE DRAGON AUTOMOBILE IS LIABLE FOR THE COMPENSATION OR
NOT? ................................................................................................................................................... 136
PRAYER ...............................................................................................................................................22
 LIST OF ABBREVIATION

& And

AIR All India Reporter

Anr. Another

Art. Article

CA Criminal Appeal

[Link] Criminal Law Journal

[Link] Code of Criminal Procedure

DV Domestic Violence

FIR First Information Report

HC High Court

Hon’ble Honorable

IPC Indian Penal Code

IEA Indian Evidence act

MLR Medical Report

Ors Others

P&HC Punjab and Haryana High Court

PW Prosecution Witness

PMR Post Mortem Report

SC Supreme Court
SCC Supreme Court cases

SCR Supreme Court Record

SLP Special Leave Petition

UOI Union of India

v. Versus
 LIST OF AUTHORITIES

CASES

1. Union of India and state of tamil nadu vs. K. balu ..................................................................... 7

2. Balasubramania v. Rajagopalachariar, AIR 1944 Mad 484:46 Cr LJ 71 ................................. 11
3. Branson v. Bower, (2002) 2 WLR 452 ..................................................................................... 12
4. Christile v. Robertson, (1889) 10 New South Wales LR 161................................................... 10
5. Cox v. Feeney, (1863) 4 F&F 13 .............................................................................................. 11
6. Dainik Bhaskar v. Madhusudan Bhaskar.................................................................................. 10
7. J.B. Jeyaretnam v. Goh ChokTong (1985) 1 MLJ 334............................................................. 11
8. London Artists, Ltd. v. Littler, (1969)2 QB 375 ...................................................................... 11
9. Silikin v. Peaverbook Newspapers, (1958) 2 All ER 516 ................................................... 11, 12
10. V. Mitter, Law of Defamation and Malicious Prosecution....................................................... 12
11. V. Mitter, Law of Defamation and Malicious Prosecution....................................................... 11
12. VishanSarup v. NardeoShastri AIR 1965 All 439, 1965 Cr LJ 334 ......................................... 12
13. W.S. Irwin v. D.F. Reid, AIR 1921 Cal 282:63 IC 467:48 Cal 304:25 CWN .......................... 12

BOOKS REFERRED:

1. Law of Torts and Consumer Protection by Dr. J.N. Pandey.

2. The Law of Torts by M.N. Shukla.

3. Law of Torts by R.L. Anand.

4. Law of Defamation & Malicious Prosecution by V. Mitter.

5. Law of Torts by Ramaswamy Iyer.

6. Trademarks by D.P. Mittal.

7. Law of Torts and Consumer Protection Act by Dr. S. [Link].

8. The Law of Torts by Durga Das Basu.

9. The Law of Torts by Ratanlal & Dhirajlal.

10. Law of Torts by Dr. R.K. Bangia

ACTS AND STATUTES:

• The Consumer Protection Act, 1986

• The Motor Vehicle Act, 1988

• The Indian Penal Code, 1860

• The Indian Constitution, 2019.

LAWS DICTIONARIES:

• Greenberg Daniel, Stroud’s Judicial Dictionary of Words and Aiyer P.R., Advanced Law
Lexicon, (3rd ed., 2005).

• Phrases, (4th ed.), Sweet and Maxwell, Vol. 4

• Mish F.C., Merriam-Webster’s Collegiate Dictionary,(11th ed. 2003)

• Garner B.A. Black’s Law Dictionary, (9th ed. 2009)

• Oxford Advanced Learners Dictionary, (7th Ed. 2008)

WEBSITES REFFERED:
• [Link]

• [Link]

• [Link]

• [Link]
 STATEMENT OF JURISDICTION

The Hon’ble State Consumer Disputes Redressal Commission has jurisdiction to try the instant
matter under Section 17185 of CONSUMER PROTECTION ACT, 1986.

185
17. Jurisdiction of the State Commission.: -
(1) ] Subject to the other provisions of this Act, the State Commission shall have jurisdiction—(a) to entertain—

(i) complaints where the value of the goods or services and compensation, if any, claimed 2[exceeds rupees twenty
lakhs but does not exceed rupees one crore]; and

(ii) appeals against the orders of any District Forum within the State; and

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been
decided by any District Forum within the State, where it appears to the State Commission that such District Forum
has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in
exercise of its jurisdiction illegally or with material irregularity.

(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,—

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of
the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for
gain; or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually
and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in
such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on
business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

 SUMMARY OF FACTS

• Mr. Snow is an Investment banker associated with Iron Bank in Westrosi. On March 3, 2016,
Mr. Snow purchased a sports utility vehicle Dragon VX from Targareyn Dealers where the
Targareyn Dealers had an authorized dealership with Dragon Automobiles.

• On November 12, 2016, the car purchased by Mr. Snow was due for its first complementary
service. Mr. Snow complained that he encountered problems related to gear transmission.
Targareyn Dealers stated that these problems were manufacturing defect and the car had to
be sent to the Dragon Automobiles Service Center.

• On March 5, 2017, the second service day of the car, Mr. Snow pointed out that after the first
service he had been facing wheel alignment troubles. He complained that on two isolated
occasions gear shifting was stiff. The Targareyn Dealer’s expert assured him the minor repairs
which were in the shifter cable.

• On July 21, 2018, Mr. Snow was returning from the party at around 2 a.m. from Hotel Golden
Tusk and met with an accident resulting in the direct collision with a telephone pole. After the
collision the air bags deployed and Mr. Snow suffered minor injuries. He was taken to Redkeep
Hospital where a test and treatments were undertaken.

• A blood test was conducted on Mr. Snow and it revealed that his BAC (Blood Alcohol Content)
level was 0.35 mg/ml. In maternity clinic, Ms. Cersei, a pregnant lady, that was 100m away
from the accident site, incidentally saw the accident of Mr. Snow’s car and was under a shock
which resulted in miscarriage. She alleged that she suffered a nervous shock and Mr. Snow
was responsible for it.

• On August 12, 2018 Mr. Snow filed a complaint to the State Consumer Disputes Redressal
Commission, alleging that the cause of the accident was the manufacturing defect of the
negligence. It was alleged by him that he encountered trouble with shifting of gears as a
result the car was swerve and collided with telephone pole. Whereas, Dragon Motors asserted
that there was no manufacturing defect in the car. Mr. Snow had already been fined twice for
the offence of drunk and drive which cause the direct negligence.
 STATEMENT OF ISSUES

-I-

WHETHER THE DEFENDANT DRAGON AUTOMOBILIES IS LIABLE

FOR ACCIDENT OR NOT?

-II-

WHETHER THE DEFENDANT DRAGON AUTOMOBILE IS LIABLE

FOR NEGLIGENCE OR NOT?

-III-

WHETHER THE DEFENDANT DRAGON AUTOMOBILE IS LIABLE

FOR COMPENSATION OR NOT?

-IV-

WHETHER THE PETITIONER MR. SNOW IS LIABLE FOR

DEFAMATION OR NOT?
 SUMMARY OF ARGUMENTS

-ISSUE I-

Whether the dragon automobile is liable for negligence or not?

It is humbly submitted to the court that the dragon automobiles is not liable for the negligence.
Here the facts self-states that the Mr. Snow was drunk at the level of 35/mg which is beyond the
permissible limit. At that level person lost his senses. It will not wrong if we assume that in the
previous year he had driven his car with drunk health. Also Mr. Snow has also been fined twice in
the previous year FOR THE DRINK N DRIVE OFFENCE. So the drunk health also effect the
health of the car. Just because of his negligence of the wrongful act of drinking, he has met with
accident, not with the negligence of the dragon automobiles.

-ISSUE II-

Whether the company dragon automobile is liable for product liability?

It is humbly submitted to the court that at the time of accident Mr. snow was found drunk. There
was no liability of the vehicle regarding the cause of accident. Petitioner has stated that he was
suffering from the problem of down shifting of gear at the time when he met the accident but Mr.
snow was also advised by the Targaryen dealers that the problem is beyond the servicing facility
and is only be corrected by dragon automobile and is was corrected on the part of dragon
automobiles. He has not brought his car to the service centre to correct his problem. If Mr. Snow
was encountering with the problem of downshifting of gears then why he has not brought his car
to the service centre after the second service it was his duty to took car to the service centre not the
duty of dragon automobiles.
 -ISSUE III-

Whether the Mr. Snow is liable of the defamation of the dragon automobiles or
not?

Here it is humbly submitted to the honourable court when Mrs. Cersie filled the case against Mr.
Snow he had not found any way to set out of this situation so he filed the case if not then why Mr.
Snow had not filled the case just after the accident? if he had no liability then why he had not filed
the case earlier? He has motive to file the case just to defame the company he filed the case dur to
which the company is defamed the market value of the company is going down even without no
liability. So here only mr. snow is liable for the defamation.

-ISSUE IV-

Whether the Dragon Automobiles is liable for compensation or not?

Here it is humbly submitted to the honourable court that the Dragon automobiles is not liable for
any type of compensation. Here the company has so many vehicles and have so many accidents
everyday. Company produce vehicles for the safety of the drivers and others riders and drivers
here the company did not produce the car in assuming if the accident happen the other person will
get nervous shock. Company produce vehicles by giving air bags for the passengers and some
other security features for others but in the whole world not any device is discovered for the
rescuing of the person from the nervous shock. Even there is no remoteness of damage of having
a person a nervous shock by the accident of the car from the company.
 ARGUMENTS ADVANCED

ISSUE I

Whether the dragon automobile is liable for negligence or not?

Here it is humbly submitted to the court that the dragon automobiles is not liable for the negligence.
Not where is stated that Mr. Snow has brought his car for the 3 rd service if he had facing some
problems. If did not brought the car to the service centre then how will the company will cure it?
It is his duty to brought car to the service centre and the company will cure his all the problems.

Essentials of the negligence

1. Duty: the defendant has a duty to others, including the plaintiff, to exercise reasonable
care,

Here if we refer to the present case the dragon automobiles have also duty to take care of
the car produced by them. And the company has done its duty but Mr. snow has not done
his duty by servicing it on time when Mr snow has brought his car to the service centre. But
it is his duty to take his car to the service centre and service it on time but Mr. snow has not
brought his car to the service centre. Here Mr. snow is liable for not the take care of his
duty.

Manvizhi and others vs. managing director and state of tamil nadu vs. K. balu and another

Here in this case it was held that, even drinking water is scarce in most parts of our country
but the alcohol flows aplenty in every nook and corner of the nation in which many families
are drowning. Liquor is a poison to the society. Liquor is the basic reason for many social
evils. 2 precious lives were lost in this case due to alleged drunken
 driving . every year, hundreds of lives were lost due to drunken drives, but no where is
stated that the due to the cause of the car the accident was happen186

2. Breach: the defendant breaches that duty through an act or culpable omission

Here it is humbly submitted to the court that mr. snow has breach his duty to not to take his car
to the service centre to service it if he has facing some problems, if he was facing some problems
then he had to took his cart to the service centre to cure it , but he did not did it. Due to which he
had met with the accident, also he found drunk at the time of accident. He had breach his duty to
not to drink and drive.

According to the sec. 185 of motor vehicle act the permissible limit of drinking is only0.03% or
0.30ml/100ml187 but mr. snow was found over it he was found drunk at the level of 0.35ml. he has
breached his duty to to not to drik over limit. Here he is liable for drink and drive.

3. Damages: as a result of that act or omission, the plaintiff suffers an injury, and

here it is humbly stated that Mr. Snow is liable for the damage for the company. Company is
facing some damages like image defamed by him because of his negligence and lack of care
and niot performing of the duty, he is liable for the accidents and compensation but he suited
against the company due to which the company is facing loss to the image. Here the damage
caused to the image of the company.

186 Manvizhi vs. managing director metropolitan transport corporation, Chennai

187
Section 185 in The Motor Vehicles Act, 1988

185. Driving by a drunken person or by a person under the influence of drugs.—Whoever, while driving, or
attempting to drive, a motor vehicle,— 1[

(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, or]

(b) is under this influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle,
shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine
which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within
three years of the commission of the previous similar offence, with imprisonment for a term which may extend to
two years, or with fine which may extend to three thousand rupees, or with both. Explanation.—For the purposes of
this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official
Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle.
 4. Causation: the injury to the plaintiff is a reasonably foreseeable consequence of the
defendant's act or omission.

Here it is humbly stated that mr. snow was found drunk . he knew that the consequences of
drink and driving will be harmful to him or to others also. Due to this he met with the accident
and met with some minor injuries. He had forseen the cause of over-drinking but he drove. Now
the situation is he suited the company for the manufacturable defect but it was not, due to which
the reputation of the company is fallen down and the selling of SUVs products Is also fallen
down.
b. Mr. Snow is an habitual offender here it is humbly submitted that Mr. Snow has also
been fined twice in the previous year for the act of drinking driving. According to the fact
we can assume that in the situation of drunk

he has also driven his car in an illmannered way due to which the health of the car damaged and
he faced some problems and he may met with accident with that problems and not the
manufacturing defects. Also he was in drunk situation, so at that situation he cannot drive the well
car, then how can he drive the defective car = although the defects were caused by himself Mr.
snow. Negligence per se: If the driver caused your accident was arrested for with driving under
the influence your lawsuit for damages will be based on negligence per se.

For example: While a drunk driver may have been the actual cause of your injuries, his or her
behaviour may not be the proximate cause of your injuries if you were driving extremely
aggressively dangerously exceeding the speed limit, or if a natural disaster caused the road to
buckle. To be successful your attorney must be able to prove that the driver’s intoxication was the
main reason you were injured.

The proximate cause is similar, but often invoice most DUI personal lawsuits fail.

Negligence per se means:

• the driver violated the statute , ordinance, or public regulation ;

• the violation was the proximate cause of the injury or death in question and;
• the injury or death resulted from the behaviour that the statute, ordinance, or public
regulation was designed to prevent
An arrest for DUI in California does most of the groundwork for a civil suit for damages. The first
prong of the required arrests is taken care of by the arrest and/or DUI, the victim must prove that
the injuries sustained was breached, and the breach was cause of the injury sustained
 ISSUE II

WHETHER THE PETITIONER MR. SNOW IS LIABLE FOR

DEFAMATION OR NOT?

It is humbly submitted before this Hon’ble court that the plaintiff is liable for defamation
as the defendant has not come to the court with clean hands. The statements made by the
plaintiff are defamatory in nature as-The statement is a matter of Truth (A); the statement
made was a fair comment (B);
(A) The statement is a matter of truth

1. The counsel on behalf of the respondent that the mr. snow contends that the words
complained of are in substance and in fact true. The statement made was –The worst
company ever. A statement is true in substance if the erroneous details in no wayaggravate
the defamatory character of the statement or alter its nature188. In the case of Dainik
Bhaskar v. Madhusudan Bhaskar189, it was held that it is not necessary to justify every
detail of the charge, provided that the gist of the libel is proved to be in substance correct,
and that the details, etc., which are not justified, produce no different effect on the mind
of the reader than the actual truth would do.

2. It is important to mention here that every single time the plaintiff was acting on the
advice given by the defendant. According to the advice given by the defendant. It shows
that plaintiff reposed all of his trust and confidence in the defendant which was breached
by them time and again. Not only the repair the car.

Hence, it is established that the plaintiff misguided the defendant, cheated him and lied
every single time about the visa issuance also. These characteristics are certainly not
possessed by a company which has ethics and consequently it proves that imputation is
true. The statement “the law will not permit a man to recover damages in respect of an

188
Clarke v Taylor, (1836) 2 Bing 654; Sutherland v Stopes, (1925) AC 78 -81
189
AIR 1991 MP 162.
 injury to a character which he does not or ought not to possess190” aptly fits on the
defendant.

(B) The statement made was a fair comment

3. It is humbly submitted before this Hon’ble Court that the statement made by the plaintiff
191
was a comment which is a statement of opinion of facts (which includes inference of
facts) and the matter alleged to be defamatory is nothing but a fair comment on a matter of
public interest, which a fair minded person can honestly make on the facts proved192. Any
person, whether he is a private individual has a right to hold any view he pleases on a matter
of public concern, and to express the same.

4. The matter complained of as defamatory, was an honest expression of opinion made in

good faith and for the good of the public193. A matter of public interest is a matter which
194
invites public attention, is of public importance or in which public is legitimately
concerned195.

5. A man has the right to publish, for the purpose of giving the public information that
which it is proper for the public to know196. It is a matter of grave public concern that a
highly reputed company like the defendant has failed miserably in discharging its liability
towards its client. The defendant serves clients all over the country and certainly the subject
matter complained of invites public attention. The comment was made by the plaintiff in
good faith so that the public comes to know the reality and the defendant can be abstained
from making false and frivolous assurances, thus cheating another common man like the
plaintiff. Fair comment is the name given to the right of every citizen to comment on
matters of public interest197.

6. Hence, the plaintiff had no malicious intention in doing so as the plaintiff

communicated the matter to the public from a sense of duty and legal morality being a

190
McPherson v. Daniels, (1829) 10 B & C 263
191
Christile v. Robertson, (1889) 10 New South Wales LR 161
192
J.B. Jeyaretnam v. Goh ChokTong (1985) 1 MLJ 334.
193
Balasubramania v. Rajagopalachariar, AIR 1944 Mad 484:46 Cr LJ 71
194
V. Mitter, Law of Defamation and Malicious Prosecution.
195
London Artists, Ltd. v. Littler, (1969)2 QB 375
196
Cox v. Feeney, (1863) 4 F&F 13.
197
Silikin v. Peaverbook Newspapers, (1958) 2 All ER 516.
 law-abiding citizen of the country. The comments made by the plaintiff are based on facts
as already mentioned about the delay in filing the documents with embassy on time, failing
to send the passports to plaintiff at the airport on time. Rather, the plaintiff has always acted
promptly and diligently. This statement is proved by the fact that even though the plaintiff
had a hectic work schedule always, the plaintiff took a full day off to send the required
document immediately by express courier on 22.08.2017 which was received by the
defendant the very next day i.e. on 23.08.2017.

7. The doctrine of fair comment is based on the hypotheses that the publication in question
is one which, broadly speaking, is true in fact, that the facts stated therein are such as would
go to serve the public interest198. It is said that nothing is libel which is a fair comment on
a subject fairly open to public discussion199. It is the expression of criticism that has to be
fair200.

8. The statement as tweeted by the plaintiff amounts mere to a ‘fair criticism’ which was
out of frustration. The plaintiff sincerely criticises the deficient services discharged by the
defendant. The defendant has breached the trust and confidence reposed by the plaintiff
which invites criticism.

Hence, the plaintiff states that the ‘fair criticism of plaintiff does not amount to defamation’
as the view expressed is honest201.

9. As remarked by Lord Denning in Slim v. Daily Telegraph Ltd.202, “He must honestly
express his real view. So long as he does this, he has nothing to fear, even though other
people may read more into it.”
10. Therefore, it is well established before this Hon’ble Court that the comment is fair as it is
stated on facts. The defendant has expressed the opinions honestly, done so upon facts
accurately stated and hence there is hardly any scope for complaint of defamation203.

198
VishanSarup v. NardeoShastri AIR 1965 All 439, 1965 Cr LJ 334
199
W.S. Irwin v. D.F. Reid, AIR 1921 Cal 282:63 IC 467:48 Cal 304:25 CWN 150.
200
V. Mitter, Law of Defamation and Malicious Prosecution
201
Silikin v. Peaverbook Newspapers, (1958) 2 All ER 516.
202
(1968) 2 QB 157.
203
Branson v. Bower, (2002) 2 WLR 452.
 ISSUE III

WHETHER THE COMPANY DRAGON AUTOMOBILE IS LIABLE FOR

PRODUCT LIABILITY ?
It is humbly submitted to Hon’ble court that dragon automobile is not liable under product
liability because Mr. Snow after second free service complained that on two isolated occasions
the gear shifting was stiff and as a consequence he faced great inconvenience in smooth shifting
of gears but at the same time experts at Targaryen dealers assured Mr. Snow

That it was a possible consequence of wearing in the shifter cable which required minor changes
and advised Mr. Snow to take the car to the Company Dragon Automobile to get minor repair in
gear shifting cable but Mr. Snow didn’t took the car to company for the repairs.

Product liability is the area of law in which manufacturers, distributors, suppliers and retailers
are held responsible for any injuries products cause. Regardless of any contractual limitations of
liability, if a product or any of its component parts are defective its manufacturer may be liable
for damage under the Consumer Protection Act (CPA) or the common law of negligence. An
action under the CPA or for negligence can be brought for death, personal injury and damage
caused to private property as the result of a product defect. Neither type of action can be used to
compensate for pure economic or consequential loss.

Applicability

The CPA applies to all consumer products and products used at a place of work. The inclusion of
'products used at a place of work' extends the scope of the law to include sales of products
between businesses rather than just sales to consumers if such products are used in a place of
work. A claim may be brought under the CPA by any person who is injured by a 'defective
product', regardless of whether that person purchased the product. A claim may be brought for
death, personal injury or damage to private property in excess of £275. However, no claim may
be brought for damage to business property or for 'pure' economic losses. In particular, the CPA
provides that a claim cannot be made for the loss of or damage to the defective product itself.
Other than these restrictions, the CPA imposes no financial limit on the producer's total liability.
Liability under COPRA?

Under the CPA, the 'producer' of a product is liable for any defects. The producer is the
manufacturer of the finished product or of a component of the finished product, or any person
responsible for an industrial or other process to which any essential characteristic of the product
is attributable. Liability may also be imposed on any party who holds itself out to be the producer
through the use of a name or trade mark, and any person who imported the product into the
European Community.

As such, there may be more than one party liable under the CPA in respect of the same damage.
Liability is joint and several, so the injured party may sue any or all of these people. Liability
cannot be excluded or limited.

How long are producers liable for?

The basic limitation period for claims under the CPA is three years from the date of damage or
injury. However, since damage may not be immediately apparent, an alternative period of three
years from the date when the producer knew - or could reasonably have known - of the claim, is
provided. Since a product may remain in circulation for many years, a claim cannot be made
more than ten years after the product was put into circulation.

What is a 'defective product'?

A 'product' can include goods, electricity and the component parts of any product. Where a
component of or raw material incorporated into a finished product is defective both the
manufacturer of the component and the manufacturer of the finished product are potentially
liable. A product is defective for the purposes of the CPA if its safety, including not only the risk
of personal injury but also the risk of damage to property, is "not such as persons generally are
entitled to expect". A product will not generally be considered defective just because a safer
version is later put on the market.

In assessing the safety of the product the court will take into account all of the circumstances,
specifically including:

• all aspects of the marketing of the product;

• the use of any mark in relation to the product;
• instructions and warnings;
• what might reasonably be expected to be done with the product at the time the product
was supplied.
 ISSUE IV

WHETHER THE DRAGON AUTOMOBILE IS LIABLE FOR THE

COMPENSATION OR NOT?
Here it is humbly submitted to the court that Dragon automobile is not liable for the nervous
shock or other any type of compensation. Here in every situation mr. snow was negligent but the
company is not. So no where is found any type of liability.

1. The negligence due to which the accident caused is totally the liability of mr. snow
because he did not brought his car to the service centre for curing his problems after the
second service if he was facing some problems. It was his duty to brought his car to the
service centre which he didn’t due tom which he met with the accident.
2. Here it is humbly submitted to the honourable court that the Dragon automobiles is not
liable for any type of compensation. Here the company has so many vehicles and have so
many accidents everyday. Company produce vehicles for the safety of the drivers and
others riders and drivers here the company did not produce the car in assuming if the
accident happen the other person will get nervous shock. Company produce vehicles by
giving air bags for the passengers and some other security features for others but in the
whole world not any device is discovered for the rescuing of the person from the nervous
shock. Even there is no remoteness of damage of having a person a nervous shock by the
accident of the car from the company.
 Prayer

Wherefore the, in the lights of the facts stated, issues raised, authorities sighted
argumentadvanced it is most humbly prayed and implored before the honourable
court that it may be graciously pleased to adjudge and declare that-

1. The accused must be acquitted from all the charges.

And pass any other order, direction, or relief that it may deem fit in the best
intrest of justice, fairness, equity, and good coincidence.

Date…………….. Sd/-

Place……………. (Council for

respondent)