Team Code : 3C

BEFORE THE HON’BLE HIGH COURT OF TRANCOMAL

U/ART. 226 OF THE CONSTITUTION OF INDIA

R/W

SEC. 482 OF THE CODE OF CRIMINAL PROCEDURE

IN THE MATTER OF
B.K. PAL

PETITIONERS

V.
STATE OF TRANCOMAL
RESPONDENTS

MEMORANDUM ON BEHALF OF THE PETITIONERS

Memorandum on behalf of Petitioners i

 TABLE OF CONTENTS

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

TABLE OF CASES ..................................................... Error! Bookmark not defined.
STATEMENT OF JURISDICTION.............................................................................vi
STATEMENT OF FACTS ......................................................................................... vii
STATEMENTS OF ISSUES ......................................................................................... 1
SUMMARY OF ARGUMENTS ................................................................................... 2
1. WHETHER SECTION 228A, INDIAN PENAL CODE, 1860 IS VIOLATIVE OF
ARTICLE 14, 19 AND 21 OF THE CONSTITUTION OF INDIA?............................ 5
1.1 ARTICLE 14 ........................................................................................................ 5
1.2 ARTICLE 19 ........................................................................................................ 9
1.3 ARTICLE 21 ..................................................................................................... 12
2. WHETHER RIGHT TO PRIVACY AND PRIVILIGED COMMUNICATION OF
B.K. PAL IS VIOLATED OR NOT ? ......................................................................... 15
3.WHETHER THE POLICE ACTION AGAINST MR. PAL IS DISCRIMINATORY,
MALICIOUS AND VIOLATIVE OF HIS FUNDAMENTAL RIGHT TO
EQUALITY?................................................................................................................ 19
PRAYER .......................................................................................................................ix

Memorandum on behalf of Petitioners ii

 INDEX OF AUTHORITIES
STATUTES:
1. The Indian Penal Code,1860
2. The Indian Evidence Act,1872
3. The Criminal Procedure Code, 1973
4. The Juvenile Justice Act, 2000

TREATISES:
1. Ratanlal & Dhirajlal, THE INDIAN PENAL CODE, 1860, Lexis Nexis Butterworths
Wadhwa, 32nd Ed., 2013
2. Prof. T. Bhattacharya, THE INDIAN PENAL CODE, 1860, Central Law Agency,
6th Ed.,
1994, Reprint 2010
3. P.S.A. Pillai, edited by Dr. K.I. Vibhute, CRIMINAL LAW (IPC), 12th
Edition,Reprint
2016
4. M.P. Tandon & J. Rajesh Tandon, THE INDIAN PENAL CODE (IPC), 23rd edition
2005,
reprint 2006
5. BASU’S INDIAN PENAL CODE, VOL. 2, Ed. 9, 2006 Ashok law house, New
Delhi.
6. Batuklal, THE LAW OF EVIDENCE, (2006), Central Law Agency, Allahabad.
7. S.K. Sarkar & Ejaz Ahmadh, LAW OF EVIDENCE, VOL. 1, (2006) 6th Ed., New
Delhi:
Ashoka Law House.
8. R.A. Nelson, INDIAN PENAL, CODE (Lexis Nexis Butterworth New Delhi, 2003)
9. Durga Das Basu, SHORTER CONSTITUTIONAL LAW OF INDIA (14th ed.
2009).
10. H.M Seervai., CONSTITUTIONAL LAW OF INDIA (3th ed. 1983).
11. P.K. Majumdar & R.P. Kataria, COMMENTARY ON THE CONSTITUTION OF
INDIA (3 ed. 2009).
12. Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA (8th
ed. 2007).

Memorandum on behalf of Petitioners iii

14. Durga Das Basu, CASE BOOK ON INDIAN CONSTITUTIONAL LAW (2nd ed.
2007).
15. Durga Das Basu, INDIAN CONSTITUTIONAL LAW (3d ed. 2011).
16. H.K. Saharay, THE CONSTITUTION OF INDIA: AN ANALYTICAL
APPROACH (4th ed.2012).
18. L.M Singhvi & Jagdish Swarup, CONSTITUTION OF INDIA (2nd ed. 2007).
19. K.D. Gaur, A TEXTBOOK ON THE INDIAN PENAL CODE (Lexis Nexis
Butterworths
New Delhi, 2005)
20. M.L. Singhal & Sahiba, THE INDIAN PENAL CODE, Vol. 2 (Premier Publishing
Co.,
Allahabad) Ed. 2, 2007.

DICTIONARIES REFERRED:
1. Bryan A. Ganer, Black’s Law Dictionary (8th Ed. 2001) W
2. Webster’s New International Dictionary
3. Stroud‘S Judicial Dictionary, Volume 4 (Iv Edition)
4. Advanced Law Lexicon, 4th Edition Shorter Oxford Dictionary (3rd Ed.)
5. Black’s Law Dictionary, Bryan Garner, (1999), Ed. 7, West Group.
6. Jowit's Dictionary of English Law II Edn. Vol. 1.
WEBSITES REFERRED:
1. http://www.manupatra.com
2. http://www.judis.nic.in
3. http://www.scconline.com
4. http://www.supremecourtcaselaw.com
5. http://www.lawstudentshelpline.com
6. http://www.supremecourtofindia.nic.in
7. http://www.indiankanoon.org
8. http://www.legalservicesindia.com
9.http://www.lawfinder.co

Memorandum on behalf of Petitioners iv

 Table of Cases
1. A.L. Kalra v. Project and Equipment corporation, ............................................... 24
2. Ajay Hasia v. Khalid Mujib Sehravardi .............................................................. 25
3. Bachan Singh V. State of Punjab ............................................................................ 5
4. Benett Coleman & Co. v, Union of India............................................................ 20
5. Bodhisattwa Gautham v. Subhira Chakroborthy, ................................................. 14
6. Chiranjit Lal Chowdhuri vs The Union Of India And Others ............................ 6, 7
7. Cox Broadcasting Corp. v. Cohn .......................................................................... 13
8. D.S. Nakara & Others v. Union of India ............................................................ 23
9. Dr. Chandra Prakash & Ors vs State Of U.P. & Anr .............................................. 7
10. E. P. Royappa vs State of Tamil Nadu .................................................................. 23
11. Express Newspapers v. Union of India, ................................................................ 11
12. Gauri Shankar v. Union of India ........................................................................ 23
13. Karthi @ Karthick v. State represented by Inspector of police, Tamil Nadu....... 6
14. M.C. Verghese v. TJ Poonan and another ............................................................ 17
15. Maneka Gandhi vs Union Of India ....................................................................... 13
16. Om Kumar v. Union of India ............................................................................ 8, 24
17. Pratap Singh v. State of Punjab .......................................................................... 22
18. R. Rajagopal v. State Of T.N, ............................................................................... 12
19. Rajoo v. State of Madhya Pradesh .......................................................................... 8
20. Scott v. Scott: .......................................................................................................... 9
21. Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket
Association of Bengal ........................................................................................... 10
22. Sharma Transport v. Government of A.P ............................................................. 24
23. State of H.P. v. Pawan Kumar............................................................................. 20
24. State of UP v Raj Narain....................................................................................... 11
25. State of Uttar Pradesh v. Raj Narain ..................................................................... 10
26. The State Of West Bengal vs Anwar Ali Sarkar ................................................ 6, 8

Memorandum on behalf of Petitioners v

 STATEMENT OF JURISDICTION

The instant writ petition has been filed by the petitioners in the Hon’ble High Court of
Trancomal under Article 226 of the Constitution of India,1949 which states:

Power of High Courts to issue certain writs

1. Notwithstanding anything in Article 32 every High Court shall have powers,

throughout the territories in relation to which it exercise jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose

2. The power conferred by clause ( 1 ) to issue directions, orders or writs to any

Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in
part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those territories.
4. The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme court by clause ( 2 ) of Article 32.

Section 482 in The Code Of Criminal Procedure, 1973

482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to
limit or affect the inherent powers of the High Court to make such orders as may be
necessary to give effect to any order under this Code, or to prevent abuse of the process
of any Court or otherwise to secure the ends of justice.

Memorandum on behalf of Petitioners vi

 STATEMENT OF FACTS

 On 5th May 2017, Mr. B.K.Pal was invited to give a lecture on the theme "police
protection of the marginalized people". While addressing the audience, as his
usual practice, Mr Pal left the podium and started interacting with the audience
on the floor. Mr. Pal was speaking through a collar mike and was totally
immersed in the delivery of his speech.
 A call came to his cell phone and it was from Mrs Manoranjini Pal. Asking the
audience to excuse, Mr. Pal took the call. Unfortunately, Mr Pal forgot to switch
off his collar mike and the conversation in which Mr. Pal was talking to his wife
about the meeting being organised by her in solidarity of the rape victim, Ms
Monica, was heard by the audience.
 Some of the audience who were recording the speech recorded the telephonic
conversations also. This bit of telephonic conversation was uploaded by
unknown persons in "WatsApp" and it became viral.
 Mr. Pal was charge sheeted under sec 228A of Indian Penal Code and initiated
investigation. When Monica was asked about this incident by journalists, she
replied that she has no personal complaints against Mr. Pal.
 Mr. Pal requested the police to drop the investigation against him in the light of
Monica's statement. The police however rejected his appeal and went on with
the investigation on the basis of FIR filed against him.
 Earlier On 16/02/2017 the Celluloid Sisters held a meeting at 'Queencia
Convention Centre' to declare their solidarity for Monica. In the course of her
speech she disclosed the name of Monica. Some social activists who were
present as the audience in the meeting complained to the police against Raveena
for disclosing the identity of the victim of rape and sexual assault in public. The
police took cognizance of the case and charge sheeted Raveena under Sec. 228A
of IPC.
 When the incident of "Raveena's offence" came to her notice, Monica issued a
statement that she has no complaints against 'Raveena' and that she had herself
prompted them to organize a meeting. Based on this statement, the police
initiated steps to wind up the investigation and subsequent proceedings against
'Raveena'.

Memorandum on behalf of Petitioners vii

 Hence Mr. Pal IPS claims that the police action is discriminatory, malicious and
violative of his fundamental right to equality. He further claims that sec 228A
of IPC is unconstitutional as it is violative of Articles 14, 19 and 21 of the
Constitution of India and that he does not fall within the ambit of Section 228A,
IPC.

Memorandum on behalf of Petitioners viii

 STATEMENTS OF ISSUES
ISSUE I
WHETHER SECTION 228A, INDIAN PENAL CODE, 1860 IS VIOLATIVE OF
ARTICLE 14, 19 AND 21 OF THE CONSTITUTION OF INDIA?
ISSUE II
WHETHER THERE IS NO OFFENCE UNDER SECTION 228-A IPC AND THE
RIGHT TO PRIVACY AND PRIVILIGED COMMUNICATION OF B.K. PAL IS
VIOLATED OR NOT?
ISSUE III
WHETHER THE POLICE ACTION AGAINST MR. PAL IS DISCRIMINATORY,
MALICIOUS AND VIOLATIVE OF HIS FUNDAMENTAL RIGHT TO
EQUALITY?

Memorandum on behalf of Petitioners 1

 SUMMARY OF ARGUMENTS

1. WHETHER SECTION 228A, INDIAN PENAL CODE, 1860 IS VIOLATIVE

OF ARTICLE 14, 19 AND 21 OF THE CONSTITUTION OF INDIA?

 Article 14 gives “equal protection of laws”, which directs that equal protection
shall be secured to all persons within the territorial jurisdiction of the Union in
the enjoyment of their rights and privileges without favouritism or
discrimination. It implies equality of treatment in the equal circumstances.
 A classification which is arbitrary and which is made without any basis is no
classification and a proper classification must always rest upon some
difference and must hear a reasonable and just relation to the things in respect
of which it is proposed.
 There is no statutory prohibition on courts themselves using victims’ names in
their judgments through which victims’ names enter the public domain.
 The classification is unreasonable as the protection is provided only to the
victims of rape and not to the victims of other serious offences which will also
affect the future life of the victim.
 Constitutional provision of equality and without having any nexus with the
object sought to be achieved arbitrarily classifies only a few people to be
covered under the protection without any rational basis for the same.
 Article 19 gives freedom of speech and expression that ensures to all citizens
inter alia, liberty of thought, expression, belief, faith and worship.
 Privacy is a constitutionally protected right which not only emerges from the
guarantee of life and personal liberty in Article 21 of the constitution.
 A law which prescribes fair and reasonable procedure for curtailing or taking
away the personal liberty guaranteed by article 21 has still to meet a possible
challenge under other provisions of the Constitution like, for example, articles
14 and 19.
 By not naming rape victims, we are participating in a conspiracy of silence
which does a disservice to the public by reinforcing the idea that there is
something shameful about being raped.

Memorandum on behalf of Petitioners 2

2. WHETHER THERE IS NO OFFENCE UNDER SECTION 228-A IPC RIGHT
TO PRIVACY AND PRIVILIGED COMMUNICATION OF B.K. PAL IS
VIOLATED OR NOT?
 Privacy is the constitutional core of human dignity. It safeguards individual
autonomy and recognizes the ability of the individual to control vital aspects of
his or her life.
 Mr. Pal was talking to his wife on the phone when his conversation was
recorded and circulated on a social networking site thus his privileged
communication with his wife and right to privacy are being infringed.
 Right to privacy is an essential component of right to life and personal liberty
under Article 21 Privileged Communication is an exchange of information
between two individuals in a confidential relationship.
 No component of section 228 A is being fulfilled here as he is not directly
disclosing the name of a rape victim rather, communicating with his wife and
showing his disinterest in attending the event, that statement neither falls under
228 A nor is defamatory as it is a privileged communication b/w husband and
wife.

3. WHETHER THE POLICE ACTION AGAINST MR. PAL IS

DISCRIMINATORY, MALICIOUS AND VIOLATIVE OF HIS
FUNDAMENTAL RIGHT TO EQUALITY?
 Mr. Pal did not ‘publish’ the name of the victim; he was merely talking on the
phone with his wife. The conversation was heard by the audience solely because
the petitioner forgot to take off his collar mike.
 Publication was done by the members of the audience. The investigation and
proceedings against one “Raveena Tandon”, who was accused of committing
an offence under Section 228-A, was wound up on the basis of a statement made
by the victim in her favour. For Ms. Tandon to not be liable under this offence
there should have been a “written authorization” for disclosure of identity given
by the victim. The victim did not provide for any such written authorization
given by her to Ms. Tandon in her statement.
 The petitioner appealed to the Police to drop the investigation against him in
light of a similar statement in which she states that she has no personal
complaints against the petitioner. This appeal was rejected. It was actually Ms.

Memorandum on behalf of Petitioners 3

 Tandon who deliberately and publically declared the name of the victim and her
liability has been absolved whereas Mr. Pal who did not even deliberately do
the act of offence and he is still being investigated.
 It also appears that there existed an enmity between Mr. Pal and the party in
Power, RPP. It appears as if the action taken by the police is motivated by
‘political vengeance’ of the ruling party against the petitioner and it is mala
fide/malicious and therefore arbitrary.
 The yardstick for deciding whether an action is arbitrary or not is the
Wednesbury Test and the current action of the Police does not satisfy it.
Therefore, the executive action is arbitrary and constitutes denial of equal
protection by law and that it should be struck down by the Court as being
violative of Article 14 of the Constitution.

Memorandum on behalf of Petitioners 4

 ARGUMENTS ADVANCED

1. WHETHER SECTION 228A, INDIAN PENAL CODE, 1860 IS VIOLATIVE

OF ARTICLE 14, 19 AND 21 OF THE CONSTITUTION OF INDIA?
It is humbly submitted that Section 228A of Indian Penal Code1 is violative of Article
14, 19 or 21 of the Constitution of India.

1.1 ARTICLE 14
As per Article 14 of the Constitution of India, “The state shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India.”
It is humbly submitted that article 14 guarantees to every person the right to equality
before the law or the equal protection of laws. The first expression ‘equality before the
Law’ is a declaration of equality of all persons within the territory of India, implying
thereby the absence of any special privilege in favour of any individual. The second
expression, “equal protection of laws”, directs that equal protection shall be secured to
all persons within the territorial jurisdiction of the Union in the enjoyment of their rights
and privileges without favouritism or discrimination. It implies equality of treatment in
the equal circumstances. According to Dr. Jennings, “Equality before the law means
that among equals the law should be equal and should be equally administered, that the
like should be treated alike.2
In Bachan Singh V. State of Punjab3, arbitrariness or unreasonableness means denial of
rule of law and violation of Art. 14. Every action of the state must be informed by
reason and guided by public interest. Actions uninformed by reason may be questioned
as arbitrary. Art. 14 strikes at arbitrariness in state action and ensures fairness and equity
of treatment.

1
228A. Disclosure of identity of the victim of certain offences etc.—
Whoever prints or publishes the name or any matter which may make known the identity of any person
against whom an offence under section 376, section 376A, section 376B, section 376C or section 376D
is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be
punished with imprisonment of either description for a term which may extend to two years and shall
also be liable to fine.
Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an
offence referred to in sub-section (1) without the previous permission of such Court shall be punished
with imprisonment of either description for a term which may extend to two years and shall also be liable
to fine. Explanation.—The printing or publication of the judgment of any High Court or the Supreme
Court does not amount to an offence within the meaning of this section
2
Dr. Jennings, Law of Constitution, (3rd Edn.), p. 49
3
AIR 1980 SC 898

Memorandum on behalf of Petitioners 5

Section 228A of the Indian Penal Code gives protection with a view to protect the rape
victim’s privacy from general public and so that the media may not cast stigma on the
victim by disclosure of her identity.
Article14 forbids class legislation in the sense of making improper discrimination by
conferring privileges or imposing liabilities upon persons arbitrarily selected out of a
large number of other persons similarly situated in relation to the privileges sought to
be conferred or the liability proposed to be imposed.4 A classification which is arbitrary
and which is made without any basis is no classification and a proper classification
must always rest upon some difference and must hear a reasonable and just relation to
the things in respect of which it is proposed.5
The state can make a reasonable classification for the purpose of legislation and that
the classification in order to be reasonable must satisfy two tests;
 It should not be arbitrary, artificial or evasive. It should be based on an
intelligible differentia, some real and substantial distinction, which
distinguishes persons or things grouped together in the class from other left out
of it.

 the differentia must have a rational relation with the object sought to be achieve
by the legislation in question. The object itself should be lawful and it cannot
be discriminatory.

However, Section 228A, IPC does not satisfy either of the 2 tests. Printing and
publishing of any judgment of High Court or Supreme Court is not covered within the
ambit of Section 228 A, IPC, so anyone can with impunity reproduce the judgments of
High Courts or Supreme Court. According to this section there is no statutory
prohibition on courts themselves using victims’ names in their judgments through
which victims’ names enter the public domain.

In Karthi @ Karthick v. State represented by Inspector of police, Tamil Nadu6, Supreme

Court showed utmost judicial laxity by mentioning the names of the rape victim 62

4
The State Of West Bengal vs Anwar Ali Sarkar AIR 1952 SC 75
5
Chiranjit Lal Chowdhuri vs The Union Of India And Others 1950 SCR 869
6
(2013) 3 MLJ (Crl.) 458 (SC).

Memorandum on behalf of Petitioners 6

times in a nine page judgment which invariably would have attracted the offence under
Section 228 A, if it were others.

The importance of a Supreme Court judgment lies not only in the fact that it is the final
one but also because they are referred to time and again by legal fraternity and others.
Besides, Article 141 of the Indian Constitution says that it is binding on all the Courts
in India.7 Moreover, in the internet age where all the information concerning a case
reproduced in a judgment is easily available through search engines, the identities of
the victims, which find mention in the judgments, are very easily accessible to all the
users.

Also, it is submitted that the classification is unreasonable as the protection is provided

only to the victims of rape and not to the victims of other serious offences which will
also affect the future life of the victim, for example, adultery, bigamy, victims of acid
attack, sexual assault, molestation, harassment, stalking, kidnapping, abduction,
voyeurism, etc. These offences might be no less than the offence of rape, for the women
or their family. Therefore, since Section 228A does not fulfill the mandate of Article
14, it cannot be said to be constitutional. A classification which is arbitrary and
which is made without any basis is no classification and a proper classification must
always rest upon some difference and must hear a reasonable and just relation to the
things in respect of which it is proposed.8 It need not even be in extreme situations such
as sexual assault. Matrimonial disputes might involve the revelation of very personal
information to the court and get reproduced in a judgment that is widely and instantly
accessible to anyone, and might even be the first result when one searches for a person‘s
name. Even Section 8(6) of the Electronic Media Code of Conduct, 2015, as opposed
to Section 228A, IPC provides protection to the victims' identity of different offences
of rape , sexual abuse, terrorism or kidnapping or such victim’s family shall not be
revealed without prior permission of the victim or victim’s guardian where victim is a
minor.

It is humbly submitted that rape causes the greatest distress and humiliation to the
victim but at the same time a false allegation of rape can cause equal distress,

7
Dr. Chandra Prakash & Ors vs State Of U.P. & Anr on 4 December, 2002, Writ Petition (Civil) No. 43
of 1998
8
Chiranjit Lal Chowdhuri vs The Union Of India And Others, 1950 SCR 869.

Memorandum on behalf of Petitioners 7

humiliation and damage to the accused as well. 9 It is submitted that making of an
allegation of rape against any man imposes upon him an equally unpleasant,
humiliating and embarrassing experience in respect of which he should be entitled to
the same protection as may be accorded to the alleged victim. 10 His name and his
reputation is dragged into the public domain without regard to what might happen to
him should he be acquitted. Suspects are not necessarily rapists.11 The law commission
recommended a law for the preservation of anonymity of the accused of rape and 'allied
offences' but this proposition has been completely ignored on no valid grounds and
protection has been arbitrarily given only to the victims of rape, though in both the
cases, the persons' reputation and life ahead is involved.
Article 14 includes the principle of proportionality according to which the Court will
see that the legislature must maintain a proper balance between the adverse effects
which the legislation may have on the rights, liberties or interests of person, seeking in
mind the purpose which they were intended to serve.12
The object of Section-228-A was to ensure that to some extent the victim who already
under goes trauma of physical and mental torture, is not put to further uncomfortable
situation. However, against the constitutional provision of equality and without having
any nexus with the object sought to be achieved arbitrarily classifies only a few people
to be covered under the protection without any rational basis for the same.

It is humbly submitted that mere classification, however, is not enough to get over the
inhibition of the Article. The classification must not be arbitrary but must be rational,
that is to say, it must not only be based on some qualities or characteristics which are
to be found in all the persons grouped together and not in others who are left out but
those qualities or characteristics must have a reasonable relation to the object of the
legislation.13 It postulated a rational basis and did not mean herding together of certain
persons and classes arbitrarily.14

9
Rajoo v. State of Madhya Pradesh, AIR 2009 SC 858.
10
84th law commission report
11
Michael Gartner, The Privacy Rights of Rape Victims in the Media and the Law, Panel Discussion, 61
Fordham L. Rev. 1133 (1993).
12
Om Kumar v. Union of India, AIR 2000 SC 3689.
13
The State Of West Bengal vs Anwar Ali Sarkar, AIR 1952 SC 75
14
Re Special Courts Bill , 1978 AIR 1979 SC 478

Memorandum on behalf of Petitioners 8

Alongwith Section 228A, IPC, the provisions of Section 327(2) of the Cr.P.C. are to be
read which mandates that an inquiry as also a trial in respect of an offence of rape
should be carried out in camera. demonstrates the increasing awareness of the citizenry
to know, how the three principal organs of the State are functioning because criminal
justice system mandates that any investigation into the crime should be fair, in
accordance with law and not be tainted. It is equally important that interested or
influential persons are not able to misdirect or hijack the investigation, so as to throttle
fair investigation resulting in offenders escaping the punitive course of law. In the
darkness of secrecy, sinister interest and evil in every shape have full swing. Only in
proportion as publicity has place can any of the checks applicable to judicial injustice
operate. Where there is no publicity there is no justice.The provisions of Section 327
cannot be used to cover the inadequacy of the State, in particular those of the police. A
blanket ban is illegal. These are important facets of the rule of law. Breach of rule of
law, amounts to negation of equality under Article-14.

Moreover, the crime is a wrong done more to the society than to the individual. It
involves a serious invasion of rights and liberties of some other person or persons. The
people are, therefore, entitled to know whether the justice delivery system is adequate
or inadequate. Whether it responds appropriately to the situation or it presents a pathetic
picture. 15 Limiting the amount of private information about an individual being
available in the public domain is a pressing concern, but this needs to be balanced
equally with the need to prevent people escaping consequences for their morally and
legally dubious actions in the public eye.

Hence, Section 228A, IPC is violative of Article 14 of the Constitution of India.

1.2 ARTICLE 19

Article 19(1)(a) provides that all citizens shall have the right to freedom of speech and
expression.

It is humbly submitted that freedom of speech enjoys special position as far India is
concerned. The importance of freedom of expression and speech can be easily

15
Scott v. Scott: 1913 A.C. 417

Memorandum on behalf of Petitioners 9

understood by the fact that preamble of constitution itself ensures to all citizens inter
alia, liberty of thought, expression, belief, faith and worship. It therefore includes the
right to propagate one’s views through the print media or through any other
communication channel e.g. the radio and the television. Every citizen of this country
therefore has the right to air his or their views through the printing and or the electronic
media subject of course to permissible restrictions imposed under Article 19(2) of the
Constitution. In sum, the fundamental principle involved here is the people’s right to
know. Freedom of speech and expression should, therefore, receive generous support
from all those who believe in the participation of people in the administration. The
Supreme Court in has held that Article 19(1)(a) of the Constitution guarantees the
freedom of speech and expression to all citizens in addition to protecting the rights of
the citizens to know the right to receive information regarding matters of public
concern.16
The essence of free speech is the ability to think and speak freely and to obtain
information from others through publications and public discourse without fear of
retribution, restriction, or repression by the government. It is through free speech,
people could come together to achieve political influence, to strengthen their morality,
and to help others to become moral and enlightened citizens. It includes the right to
voice one’s opinion, the right to seek information and ideas, the right to receive
information and the right to impart information. The Indian State is under an obligation
to create conditions in which all the citizens can effectively and efficiently enjoy the
aforesaid rights.

It is humbly submitted that the prerequisite for enjoying right u/A 19(1)(a) is knowledge
and information. The absence of authentic information on matter of public interest will
only encourage wild rumors and speculation and avoidable allegation against
individuals and institutions. Therefore, the Right to Information becomes a
constitutional right, being an aspect of the right to free speech and expression which
includes the right to receive and collect information. According to Mr. P.B. Sawant, It
facilitates clandestine deals, arbitrary decisions, manipulations and embezzlements.
Transparency in dealings, with their every detail exposed to the public view, should go
a long way in curtailing corruption in public life.

16
State of Uttar Pradesh v. Raj Narain; Secretary, Ministry of Information and Broadcasting, Govt. of
India v. Cricket Association of Bengal

Memorandum on behalf of Petitioners 10

Secrecy ought not to be more than what is absolutely necessary. A regime of secrecy
is antithetical to a democratic society. The peoples’ right to know, therefore, is a
prerequisite to a healthy and meaningful political intercourse between the people and
the democratic State. In a Government where all the agents of the public must be
responsible for their conduct, there can be but few secrets. The people have a right to
know every public act, everything that is done in a public way, by their public
functionaries.17

The fundamental freedom under Article 19 (1)(a) can be reasonably restricted only for
the purposes mentioned in Article 19 (2). 18 The restriction which may be imposed
under any of the clauses must be reasonable restriction. The restrictions cannot be
arbitrary. Hence a restriction to be constitutionally valid must satisfy the following two
tests:
 The restriction must be for the purposes mentioned in clauses 2 to 6 of Art. 19.
 The restriction must be a reasonable restriction.

It is humbly submitted that a legislation arbitrarily invading the right of a person cannot
be regarded as reasonable. A restriction to be valid must have a direct and proximate
nexus with the object which the legislation seeks to achieve and the restriction must not
be in excess of that object i.e., a balance between the freedoms guaranteed under Art.
19(1)(a) to (g) and the social control permitted by clauses (2) to (6) of Art. 19. If the
direct effect of the impugned law is to abridge a fundamental right, its object of subject
matter will be irrelevant. The Supreme Court approved this 'effect test' viz, whether the
effect of the impugned law is to abridge a fundamental right.19 It is the substance of
legislation and not its appearance or form which is to be taken into consideration while
assessing its validity. This introduces the principle of ‘proportionality’. This means the
court would consider whether the restriction imposed by legislation on the Fundamental
Rights are disproportionate to the situation and are “not the least restrictive of the
choices”. It is the direct, inevitable and the real, not the remote, effect of the legislation
on the Fundamental Right which is to considered.20 A restriction to be reasonable must

17
State of UP v Raj Narain
18
The Secretary, Ministry Of ... vs Cricket Association Of Bengal & ... 1995 AIR 1236
19
Bennett Coleman's case.
20
Express Newspapers v. Union of India, AIR 1958 SC 578.

Memorandum on behalf of Petitioners 11

also be consistent with Art. 14 of the Constitution since the restrictions cannot be
arbitrary or excessive.21

In the instant case, the prohibition under Section 228A does not fall under any of the
exception of Article 19(2) and therefore it unreasonably restricts the freedom of speech
and expression. Also, it infringes the important right to know of the public at large.
Hence it is violative of Article 19(1)(a) of the Constitution of India.

1.3 ARTICLE 21

Article 21 reads as:

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

Privacy is the constitutional core of human dignity. It safeguards individual autonomy

and recognizes the ability of the individual to control vital aspects of his or her life.
Personal choices governing a way of life are intrinsic to privacy. Hon’ble Supreme
Court in Justice K.S. Puttaswamy (Retd.) v. Union of India 22 unanimously held that
privacy is a constitutionally protected right which not only emerges from the guarantee
of life and personal liberty in Article 21 of the constitution, but also arises in varying
contexts from the other facets of freedom and dignity recognized and guaranteed by the
fundamental rights contained in Part III of the Indian constitution. According to Black’s
Law Dictionary, privacy means “right to be let alone; the right of a person to be free
from any unwarranted publicity; the right to live without any unwarranted interference
by thee public in matters with which the public is not necessarily concerned.
The right to privacy is however, subject to the exception that it does not survive once
the publication is a matter of public record.23 Any publication concerning the privacy
aspects would become unobjectionable if, such publication was based upon public
records including Court record. It is for this reason that once a matter becomes a matter
of public record, the right to privacy no longer subsists and it becomes a legitimate
subject for comment by press and media and others.24 But in contrast with this, Section

21
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2135681
22
Justice K.S. Puttaswamy (Retd.) v. Union of India (2014) 6 SCC 433
23
http://www.legalserviceindia.com/article/l88-Right-To-Information.html
24
R. Rajagopal v. State Of T.N, 1995 AIR 264

Memorandum on behalf of Petitioners 12

228A makes it a penal offence to disclose the name of the victim by anyone, even if it
is a part of the public record.

The Court emphasized that political institutions must weigh the interests in privacy with
the interests of the public to know and of the press to publish. The Court concluded that
the commission of a crime and the prosecutions and judicial proceedings relating to it
are without question events of legitimate concern to the public and consequently fall
within the responsibility of the press to report the operations of government. 25
According to Gartner, names and facts are news that make readers better informed. The
more we tell our viewers, the better informed they will be in making up their own minds
about the issues involved. Moreover facts such as names make a story more credible.
26

The procedure prescribed by law has to be fair, just and reasonable, not fanciful,
oppressive or arbitrary. Even the fullest compliance with the requirements of article
21 is not the journey's end because, a law which prescribes fair and reasonable
procedure for curtailing or taking away the personal liberty guaranteed by article 21 has
still to meet a possible challenge under other Provisions of the Constitution like, for
example, articles 14 and 19.27
The sounder alternative, however, may be to enact legislation protecting the names of
both the accused and the accuser, an approach potentially acceptable to both sides in an
alleged rape case.28
According to Michael Gartner, president of NBC News, society's incorrect impressions
and stereotypes about rape can be eliminated if the press more fully informs viewers
and readers about the key facts in a rape case including, in most circumstances, the rape
victim's name. 29 Geneva Overholser, editor of The Des Moines Register, agrees,
claiming that society contributes to rape's stigma by treating rape differently from other
crimes.30 We're not going to lessen the stigma by just publishing victims' names. We
need to educate society to what rape is.31

25
Cox Broadcasting Corp. v. Cohn.26
26
Shann Nix, Debate Over Naming Rape Victims, S.F. Chron., Apr. 18, 1991, at Al.
27
Maneka Gandhi v. Union Of India, 1978 AIR 597
28
National Victim Ctr. and Crime Victims Research and Treatment Ctr., Rape in America: A Report to
the Nation (Apr. 23, 1992) [hereinafter Rape in America] (reporting the results of The National Women's
Study).
29
Michael Gartner, Naming Rape Victims:" Usually, There Are Good Reasons to Do It, USA Today,
Apr. 22, 1991, at 6A.
30
James Warren, Naming Rape Victims a Debate for Media, Chi. Trib., Apr. 18, 1991, § 1 (News), at 5
31
Feedback Other Views on the Crime of Rape, supra note 102, at 13A.

Memorandum on behalf of Petitioners 13

By not naming rape victims, we are participating in a conspiracy of silence which does
a disservice to the public by reinforcing the idea that there is something shameful about
being raped. Rape is a despicable crime of violence, and rapists are deplorable people.
Rape victims, on the other hand, are blameless. One role of the press is to inform the
public, and one way of informing the public is to destroy incorrect impressions and
stereotypes.32 Right to life includes the right to live with human dignity. Women also
have the right to life and liberty; they also have the right to be respected and treated as
equal citizens. Their honour and dignity cannot be touched or violated. They also have
the right to lead a honourable and peaceful life.33

Therefore, in the instant case, Section 228A, by concealing the name of the victim,
pushes her to the darkness of shame and embarrassment for the rest of her life, making
her believe that she should be condemned for getting raped as if it was her own
wrongdoing. This infringes her right to lead a dignified life. Hence Section 228A is
violative of Article 21 of the Constitution of India.

32 Michael Gartner, The Privacy Rights of Rape Victims in the Media and the Law, Panel Discussion,
61 Fordham L. Rev. 1133 (1993). Available at: http://ir.lawnet.fordham.edu/flr/vol61/iss5/5
33
Bodhisattwa Gautham v. Subhira Chakroborthy, AIR 1996 SC 922

Memorandum on behalf of Petitioners 14

2. WHETHER RIGHT TO PRIVACY AND PRIVILIGED COMMUNICATION
OF B.K. PAL IS VIOLATED OR NOT ?

It is humbly submitted that privacy is the constitutional core of human dignity. It

safeguards individual autonomy and recognizes the ability of the individual to control
vital aspects of his or her life.

In the present case Mr. pal was talking to his wife on the phone when his conversation
was recorded and circulated on a social networking site thus his privileged
communication with his wife and right to privacy are being infringed.
In the case of Justice K.S. Puttaswamy (Retd.) v. Union of India34, it was held that
privacy is a constitutionally protected right which not only emerges from the guarantee
of life and personal liberty in Article 21 of the constitution, but also arises in varying
contexts from the other facets of freedom and dignity recognized and guaranteed by the
fundamental rights contained in Part III of the Indian constitution

The term privacy, in this context, refers to use and disclosure of certain private
information.
in the case of R Rajagopalan v. State of Tamil Nadu35 where the court stated that the
right to privacy is an implicit right which has been provided under Article 21 of the
Constitution. It was also observed by the Court that an individual has the right to protect
his privacy, the privacy of his family marriage, childbearing, procreation, education,
among other things and no one has the right to publish any details about these things
without the consent of the person.
According to Black’s Law Dictionary “right to be let alone; the right of a person to be
free from any unwarranted publicity; the right to live without any unwarranted
interference by the public in matters with which the public is not necessarily
concerned”.
Thus, Right to privacy is an essential component of right to life and personal liberty
under Article 21. Right of privacy may, apart from contract, also arise out of a particular
specific relationship, which may be commercial, matrimonial or even political.

34
Justice K.S. Puttaswamy (Retd.) v. Union of India (2014) 6 SCC 433.
35
(1994) 6 SCC 632.

Memorandum on behalf of Petitioners 15

Being part of a society often overrides the fact that we are individuals first. Each
individual needs his/her private space for whichever activity (assuming here that it shall
be legal). The state accordingly gives each individual that right to enjoy those private
moments with those whom they want to without the prying eyes of the rest of the world.
In this day and age, this right is becoming more essential as every day passes. With all
our lives being splattered over the media be it through social networking sites or the
spy cameras, we need protection so that we can function in a way we want to and not
think of others before our actions.
Privileged Communication is an exchange of information between two individuals in a
confidential relationship. A privileged communication is a private statement that must
be kept in confidence by the recipient for the benefit of the communicator. Even if it is
relevant to a case it can’t be used as evidence. Privileged communications exist because
society values the privacy of certain relationships. The established privileged
communications are those between husband and wife, physician and patient, lawyer
and client, the reason being to protect the sanctity of marriage and religion.

Anything said or made by the husband to wife or vice-versa is treated to be privileged

communication founded on law and ethic.
Therefore it is humbly submitted that no component of section 228 A is being fulfilled
here as he is not directly disclosing the name of a rape victim rather, communicating
with his wife and showing his disinterest in attending the event, that statement neither
falls under 228 A nor is defamatory as it is a privileged communication b/w husband
and wife. Rather his privacy is being infringed as his call was recorded and circulated
on social media without his knowledge or consent. His private life is being made public
, his opinions which are personal and privileged, being left open for public scrutiny .
According to Section 122 of the Indian Evidence Act , No person who is or has been
married, shall be compelled to disclose any communication made to him during
marriage by any person to whom he is or has been married; nor shall he be permitted
to disclose any such communication, unless the person who made it, or his
representative in interest, consents, except in suits between married persons, or
proceedings in which one married person is prosecuted for any crime committed against
the other.

Memorandum on behalf of Petitioners 16

In the eyes of law, husband and wife are one person and the communication of a
defamatory matter from the husband or wife is no publication.
In the case of M.C. Verghese v. TJ Poonan and another 36 Rathi was the daughter of
M.C. Verghese, was married to T.J. Poonan. Poonan wrote from Bombay letters to rathi
which contained defamatory imputations concerning Verghese. Rathi passed on those
to her father. He filed a complaint against Poonan charging him with the offence of
defamation. The Hon’ble High Court held that Ponnan was not held liable as the letters
were meant for the wife and thus cannot be used Here the Hon’ble Supreme Court
reversed the decision of the high court and held that the complaint cannot seek to
support his case upon the evidence of the wife of the accused , but if the communication
between the husband and the wife have fallen to his hands the same can be proved in
any other way. In this case the wife had the intention to give the letters to her father and
therefore the communication was not privileged anymore.
In the present case Mr. Pal and his wife were talking on mobile had he had no intention
to publish anything, hence his right to privacy has been infringed.
A statement made to one's own spouse will not be 'published' for the purposes of
defamation.37
S. 112 of the Telephone Act of Canada , 38 provides as follows: Every person who,
having acquired knowledge of any conversation or message passing over any telephone
line not addressed to or intended for such person, divulges the purport or substance of
the conversation or message, except when lawfully authorized or directed so to do, is
guilty of an offence and on conviction is liable to a fine of not more that $50.00 or to
imprisonment for a term of not more than thirty days, or to both.The Saskatchewan Act
states, in s. 1(4), that "Privacy may be violated by
eavesdropping or surveillance",

Moreover, in the Delhi gang rape case, the victim’s name was revealed by her mother
and she said “I am not ashamed of taking my daughter’s name. Whoever has suffered
should not hide their name. It is the offenders who should be ashamed and hide their
name.”

36
AIR 1970 SC 1876.
37
Wennhak v Morgan (1888) 20 QBD 635 at 639.
38
R.S.O. 1980, c. 496.

Memorandum on behalf of Petitioners 17

It was mere mistake of fact which falls under Section 79 IPC 39, as the petitioner was
merely talking to his wife on the phone and he believed that he was not committing any
crime by reason of mistake of the fact that he was still wearing his collar mike.
Hence, it is clear that there was a mistake of fact and the petitioner had no intention of
publically declaring the name of the alleged victim and the instant case falls within the
purview of section 79 of Indian Penal Code. Moreover nowhere has he mentioned that
the victim is a rape victim and merely said that “Are you talking about ‘Monica’, if so,
count me out. I have doubts about dubious characters like Monica. If something
happened to her she alone has to be blamed, no one else.”
It is thus humbly submitted that the victims name was already known to people , Mr.
pal was talking to his wife and he did not have any intention in revealing the victims
name it was mere mistake of fact on his part.

39Section 79. Act done by a person justified, or by mistake of fact believing himself justified, by law.—
Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake
of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in
doing it.

Memorandum on behalf of Petitioners 18

3.WHETHER THE POLICE ACTION AGAINST MR. PAL IS
DISCRIMINATORY, MALICIOUS AND VIOLATIVE OF HIS
FUNDAMENTAL RIGHT TO EQUALITY?

It is contended that the police action against Mr. Pal, the petitioner, is discriminatory,
malicious and violative of his fundamental right to equality.
3.1 DISCRIMINATORY TREATMENT OF MR. B.K. PAL AS OPPOSED TO THAT
OF MS. RAVEENA TANDON.
The petitioner, Mr. B.K. Pal has been charged under Section 228-A of the Indian Penal
Code, 1860.40
Under this provision, if any person “prints or publishes” the identity of a person against
whom an offence under Section 376, Section 376-A, Section 376-B, Section 376-C,
Section 376-D or Section 376-E is alleged or found to have been committed is liable
for punishment extending to two years, with or without fine.
On 5th May, 2017, when the offence is alleged to have been committed, Mr. Pal was
delivering a speech through a collar mike and was totally immersed in the delivery of
the speech. He received a phone call from his wife, Mrs. Manoranjini Pal and asking
the audience to excuse him, he took the call. In an unfortunate accident, he forgot to
switch off his collar mike and his discussion with his wife ended up being heard by the
audience. It was in this communication with his wife, that he mentioned the name of
the alleged victim. Some members of the audience recorded this phone call and
uploaded it on social media app ‘whatsapp’ and the name of the victim was thus
published.
The police initiated action against Mr. Pal and he was charge sheeted under Section
228-A of Indian Penal Code and investigation was initiated.
It is a well settled rule of interpretation that the words of a statute should be construed
in their “plain and ordinary sense” and the language should not strained or twisted to

40 228-A. Disclosure of identity of the victim of certain offences, etc.—

(1) Whoever prints or publishes the name or any matter which may make known the identity of
any person against whom an offence under section 376, section 376-A, section 376-B, section 376-
C, section 376-D or section 376-E is alleged or found to have been committed (hereafter in this
section referred to as the victim) shall be punished with imprisonment of either description for a
term which may extend to two years and shall also be liable to fine.

Memorandum on behalf of Petitioners 19

arrive at a supposed meaning of the words.41 In State of H.P. v. Pawan Kumar42, it was
held that one of the basic principles of interpretation of statutes is to construe them
according to the plain, literal or grammatical meaning of the words. The word
‘Publication’ has been defined in Black Law’s Dictionary43 as- “Generally, the act of
declaring or announcing to the Public.”
It is humbly submitted that Mr. Pal did not ‘publish’ the name of the victim; he was
merely talking on the phone with his wife. The conversation was heard by the audience
solely because the petitioner forgot to take off his collar mike. Such a mistake does not
amount to the act of declaring or announcing to the public. The act of publishing was
actually done by the members of the audience who forwarded the recording on the
social media app. The Police did not make any efforts to find the members who actually
made and forwarded the recording. It has been held in the case of Benett Coleman &
Co. v, Union of India44, that “publication means dissemination and circulation”. It is
clear that Mr. Pal did not do any dissemination or publication. This was done by the
members of the audience. Therefore, he has not committed an offence under Section
228-A of IPC and the action taken against him is incorrect.
Also, the investigation and proceedings against one “Raveena Tandon” was wound up
on the basis of a statement made by the victim in her favour. Ms. Raveena Tandon, an
artist who is a co-founder of Celluloid Sister’s Association along with the victim, was
earlier charge-sheeted for committing an offence under Section 228-A of the Indian
Penal Code. The Celluloid Sisters held a meeting in which Ms. Tandon openly declared
the name of the victim and the offence committed against her. This was complained
against by some social activists present in the meeting and an FIR was lodged against
her and she was charge sheeted. Afterwards, the victim issued a statement stating that
she has no complaints against Ms. Tandon and the meeting was held on her own
prompting. On the basis of this statement, the investigation and proceedings against
Ms. Tandon were withdrawn.
As per Section 228-A(2)(b) a person is not liable under this offence if the publishing is
done-

41 Mathur, D.N.; Interpretation of Statutes; Central Law Publications, Allahabad; 5 th Edition, Page
no. 132.
42 (2005) 4 SCC 350.
43
44 (1972) 2 SCC 788.

Memorandum on behalf of Petitioners 20

“b)by, or with the authorization in writing of, the victim.” Therefore, for Ms. Tandon
to not be liable under this offence there should have been a “written authorization” for
disclosure of identity given by the victim. The victim did not provide for any such
written authorization given by her to Ms. Tandon in her statement. Solely stating that
the meeting was held under the victim’s prompting is not enough to absolve the accused
from her liability if the act done by her still falls within the purview of this section.
Therefore, Ms. Tandon is liable for committing this offence, but she has freed from
being prosecuted for it.
Nevertheless, when a similar statement was made in favor of Mr. Pal, in which the
accused stated that she does not have any personal complaints against him and let law
take its own course, the petitioner appealed to the Police to drop the investigation
against him in light of this statement. This appeal was rejected and the Police also
initiated steps to get Mr. Pal to custody.
This action of the Police is clearly an act of discrimination between Mr. Pal and Ms.
Tandon to the level that it comes across as malicious. The police are willing to take Mr.
Pal in custody for the very offence for which Ms. Tandon was barely investigated by
them. It was actually Ms. Tandon who deliberately and publically declared the name of
the victim and her liability has been absolved whereas Mr. Pal who did not even
deliberately do the act of offence and he is still being investigated.
It is humbly submitted that there has been discriminatory treatment of Mr. Pal as
opposed to that of Ms. Tandon at the hands of the Police. Such a treatment is an
unreasonable and arbitrary action of the Police.

3.2 THERE HAS BEEN A MALA FIDE EXERCISE OF POWER

As per the circumstances of the case, it appears that there exists an enmity between the
petitioner and the government currently in power, RPP which came into power on
January 15, 2016 after defeating the previous ruling party, NDP. Mr. Pal is believed to
be an officer having definite political inclinations to NDP. Mr. Pal had very intimate
relationships with many NDP leaders and is popularly believed as being an activist of
NDP during his college days. Hence, Mr. Pal is an open supporter of the NDP.
The new party RPP had, in the past, tried to put Mr. Pal to a lower position. Mr. Pal
was the D.G.P (law and order) during the years of 2015 and 2016. In January 2017 the
RPP government removed Mr. Pal from the post of DGP (law and order) and appointed

Memorandum on behalf of Petitioners 21

him as the M.D of a public sector undertaking. At that point, Mr. Pal had approached
the Supreme Court and prevented the government from abusing its power. Mr. Pal
through a Supreme Court decision quashed the government order and continued to hold
his position as D.G.P until his retirement in March 2017.
It is a well settled that if an authority vested with power has not exercised it properly,
lawfully and in good faith, it would be said to have been exercised ‘mala fide’. In the
context of exercise of statutory powers, “mala fide” comprise dishonestly and malice.45
“A power is exercised maliciously”, states De Smith46, if its repository is motivated by
personal animosity towards those who are directly affected by its exercise.
Pratap Singh v. State of Punjab47, is a clear case of mala fide exercise of power. In this
case the appellant, a civil surgeon, was granted leave preparatory to retirement. When
he proceeded on the leave, it was revoked and he was placed under suspension and
disciplinary action was initiated against him on the charge that he had accepted a bribe
of Rs. 16/from some patient prior to going on leave. The appellant alleged that the
proceeding had been initiated against him at the instance of the Chief Minister to
wreck personal vengeance on him as he had refused to yield to the illegal demands of
the former. From the sequence of event, certain tape recordings of his talk with the
Chief Minister and in the absence of an affidavit by the Chief Minister denying the
allegations made against him, the Supreme Court concluded that the charge of mala
fide exercise of power was proved and accordingly the Court quashed the action taken
against the appellant.48
Similarly, in this case as well, it appears as if the action taken by the police is motivated
by ‘political vengeance’ of the ruling party against the petitioner and should be quashed.
Therefore, the power here is not exercised in good faith and is thus, malicious.
It is humbly submitted that this action is a mala fide and malicious exercise of power.
Such an action does not conform to the standards of reasonableness and is therefore,
arbitrary.

3.3 THE ACTION OF THE POLICE IS VIOLATIVE OF MR. PAL’S

FUNDAMENTAL RIGHT TO EQUALITY.

45 Kumar, Narendra; Nature & Concepts of Administrative Law; 1st Edition; Allahabad Law Agency,
Faridabad. 487.
46 Judicial Review of Administrative Action, 1980, 335-36.
47 AIR 1964 SC 72.
48 Supra (6).

Memorandum on behalf of Petitioners 22

The fundamental right to equality has is the first fundamental right secured to the people
of India. It is contained in Article 14 to 18.49
Article 14 uses two expressions, namely-
(a) Equality before law; and

(b) Equal protection of Laws.50

Dr. Ivor Jennings explains51 : “Equality before the law means that among equals the
law should be equal and should be equally administered, that the like should be treated
alike.” “Equality before law”, thus, means absence of any special privileges for any
particular person. It also strikes at arbitrary power on the part of the government.52
The phrase “Equal protection of laws” is interpreted to mean “Subjection of equal laws
applying to all in equal circumstances.” It means that all persons have the right to same
treatment at same circumstances, both in privileges confirmed and liabilities imposed
by law 53. It requires that equal laws should be applied to all in same situations and that
there should not be discrimination between one person and another 54. The phrase lays
down the rule that “the like should be treated alike and not that the unlike should be
treated alike” 55.
An act per se arbitrary is violative of Article 14 of the Constitution. This concept has
been propounded in the case of E. P. Royappa vs State of Tamil Nadu 56 in which it was
observed that, “Equality is a dynamic concept with many aspects and dimensions and
it cannot be "cribbed cabined and confined" within traditional and doctrinaire limits.
From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality
and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while
the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it
is implicit in it that it is unequal both according to political logic and constitutional law
and is therefore violative of Art. 14.”

49 Article 14 provides, “The State shall not deny any person equality before the law or equal
protection of laws within the territory of India.” The obligation imposed on the State is for the
benefit of all persons within the territory of India.
50 Kumar, Narendra; Constitutional Law of India; Allahabad law agency, Faridabad (Haryana); 9 th

Edition, Page no. 110.

51 Law of the Constitution, 1971, 94.
52 Supra (3) page no. 112.
53 Re Special Courts Bill, 1978AIR 1978 SC 478.
54 D.S. Nakara & Others v. Union of India 1983 AIR SC 130.
55 Gauri Shankar v. Union of India AIR 1995 SCC (6) 349.
56 AIR 1974 SC 555.

Memorandum on behalf of Petitioners 23

Therefore, Article 14 strikes at arbitrariness in state action and ensures fairness and
equality of treatment.57 An action per se arbitrary, itself, would be held to be denial of
equality of protection by law.58
The term “arbitrary” has been defined by Supreme Court in Sharma Transport v.
Government of A.P., 59 as, “The expression ‘arbitrarily’ means: in an unreasonable
manner, as fixed or done capriciously or at pleasure, without adequate determining
principle, not founded in the nature of things, non-rational, not done or acting according
to reason or judgment, depending on the will alone.”
The yardstick for deciding whether an action is arbitrary or not is the Wednesbury Test.
This test has been laid down in the case of Om Kumar v. Union of India60, wherein it
was observed:
“Where, an administrative action is challenged as ‘arbitrary’ under Article 14 on the
basis of Royappa (as in cases where punishments in disciplinary cases are challenged),
the question will be whether the administrative order is ‘rational’ or ‘reasonable’ and
the test then is the Wednesbury test. The Courts would then be confined only to a
secondary role and will only have to see whether the administrator has done well in his
primary role, whether he has acted illegally or has omitted relevant factors from
consideration or has taken irrelevant factors into consideration or whether his view is
one which no reasonable person could have taken. If his action does not satisfy these
rules, it is to be treated as arbitrary.”
In the present case, the Police has “omitted relevant factors from consideration” that
Mr. Pal did not deliberately disclose the name of the victim and did not commit the act
of ‘publishing’ her identity. The Police also did not take into consideration the fact that
the victim had not given a written authorization to Ms. Tandon to disclose her identity.
The police “took irrelevant factors into consideration” by withdrawing proceedings
against Ms. Tandon on the sole basis of a statement of the victim in which she states
her absence of complaints and that the meeting was held on her prompting. Neither of
these factors absolves the accused Ms. Tandon from her liability and were thus,
irrelevant factors taken into consideration. The Police action was discriminatory and
motivated by mala fide intentions and the view was one which a reasonable person

57 Maneka Gandhi v. Union of India (1978) 1 SCC 248.

58 A.L. Kalra v. Project and Equipment corporation, AIR 1984 SC 1361.
59 (2002) 2 SCC 188.
60 (2001) 2 SCC 386.

Memorandum on behalf of Petitioners 24

would not take. Therefore, the action does not satisfy the rules provided by the case and
should be therefore treated as arbitrary.
Here, the action of the executive is arbitrary and it violates Mr. Pal’s fundamental right
to equality provided to him under Article 14 of the Constitution of India. For the
purposes of such an action, the Supreme Court explains in Ajay Hasia v. Khalid Mujib
Sehravardi61,
“It must therefore now be taken to be well settled that what Article 14 strikes at is
arbitrariness because any action that is arbitrary, must necessarily involve negation of
equality. The doctrine of classification which is evolved by the courts is not para-phrase
of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula
for determining whether the legislative or executive action in question is arbitrary and
therefore constituting denial of equality. . Wherever therefore there is arbitrariness in
State action whether it be of the legislature or of the executive or of “authority” under
Article 12, Article 14 immediately springs into action and strikes down such State
action.”
It is humbly submitted that the executive action is arbitrary and constitutes denial of
equal protection by law and that it should be struck down by the Court as being violative
of Article 14 of the Constitution.

61 (1981) 1 SCC 722.

Memorandum on behalf of Petitioners 25

 PRAYER
Whereof in the light of facts and circumstances of the instant case, arguments advanced
and authorities cited, the petitioner most respectfully prays that this Hon’ble Court may
kindly adjudge and declare:

a) That Section 228A, IPC, 1860 is violative of Article 14,19 and 21 of the
Constitution of India.

b) That privileged communication and right to privacy of Mr.Pal is infringed.

c) That the police action against Mr. Pal is discriminatory, malicious and violative
of his fundamental Right to Equality.

d) That the essentials of Section 228 A IPC are not being fullfiled.
And pass any other order, direction, or relief that this Hon’ble Court may deem fit in
the interests of justice, equity and good conscience.

AND FOR THIS ACT OF KINDESS THE PETITIONERS SHALL AS IN DUTY

BOUND FOREVER PRAY.

-Sd-
Counsel on Behalf of Petitioners

Memorandum on behalf of Petitioners ix