II.
Whether the powers given to the Police Officers under Section 113 of MNS are
arbitrary and violative of the fundamental rights under the Constitution of Maurya?
It is humbly contended that [II.1] The powers given to the Police Officers under Section 113
of MNS1 are arbitrary and [II.1] Violative of the fundamental rights under the Constitution of
Maurya.
[II.1] Whether powers granted to Police officers under Section 113 of MNS are arbitrary?
It is humbly submitted that the powers granted to the police officers under section 113 of the
MNS are arbitrary. The above will be contended in a two-fold matter: [II.1.1] The powers
granted to SP are arbitrary and [II.1.2] Jurisdictional Manipulation
[II.1.1] The powers granted to SP are arbitrary
It is humbly Argued before the Hon’ble Supreme Court of Maurya that, the powers granted to
the Police officers under Section 113 of BNS are arbitrary, based on the Judgement of
Harbhajan Singh v. State of Punjab2, the learned bench gave a ratio decidendi in favour of
the petitioner, stating that a person can only be prosecuted upon the lines of terrorist activities
after due care and attention to the matter, whereas, the Explanation attached to Section 113 of
the BNS explicitly transfers such power in the hands of the Superintendent of Police
The explanation gives unfettered discretion to the Superintendent of police which was already
held and reiterated as unconstitutional in the case of State of West Bengal & Ors vs Swapan
Kumar Guha & Ors,3 holding Emperor vs Khwaja Nazir Ahmed (1944),4 as a precedent to
the same.
It is humbly Argued before the Hon’ble Supreme Court of Maurya that, the powers granted to
the Police officers under Section 113 of BNS are violative of Fundamental Right as, it turns
the presumption of innocence on its head, giving the Government unfettered power to declare
any individual a terrorist. The UAPA also violates several fundamental rights along with their
various extensions, namely, the right to dissent, the right to reputation, and the right to access
the internet.
2
Harbhajan Singh vs State Of Punjab, 1966 AIR 97
3
State Of West Bengal & Ors vs Swapan Kumar Guha & Ors, 1982 (1) SCC 561
4
Emperor vs Khwaja Nazir Ahmed 1944 47 BOM LR245
The Court has scrutinised specific provisions of the above legislations on various occasions.
For instance, the Court in Sri Indra Das v. State of Assam,5 read down Section 10 of UAPA6
and Section 3(5) of TADA7, both of which made mere membership of a banned organisation,
criminal. The Court held that a literal interpretation of these provisions would make them
violative of Articles 198 and 21 of the Constitution.9
It is humbly Argued before the Hon’ble Supreme Court of Maurya that, the powers granted to
the Police officers under Section 113 of BNS are violative of Fundamental Right as, it turns
the presumption of innocence on its head, giving the Government unfettered power to declare
any individual a terrorist. The UAPA also violates several fundamental rights along with their
various extensions, namely, the right to dissent, the right to reputation, and the right to access
the internet.
[II.1.2] Jurisdictional Manipulation
The SP’s decision to register a case under either the UAPA or the BNS determines the
course of investigation. According to Section 6(1) of the National Investigation Agency
Act,10 On receipt of information and recording thereof under Section 154 of the Code11
(which includes UAPA) relating to any Scheduled Offence the officer-in-charge of the police
station shall forward the report to the State Government forthwith.
Section 45 of the UAPA12 mandates obtaining sanction of the relevant government before a
jurisdictional court can take cognizance under the Act. The offence of terrorist act (as under
the BNS) does not require obtaining sanction for initiation of proceedings before court. The
same safeguard has not been provided under the BNS.
Furthermore, the UAPA is the special law dealing with terrorist acts, which are scheduled
offenses under the NIA Act, giving the NIA jurisdiction to investigate such cases. The police
report goes from the state to the Union government, which decides within 15 days if the NIA
should investigate based on the offense's gravity. The NIA can also involve the state
government in the investigation if deemed necessary. The removal of these safeguards will
have widespread ramifications including potential misuse of the provisions.
5
Sri Indra Das vs State of Assam 2011 (3) SCC 380
6
(§) 10, Unlawful Activities (Prevention) Act, Acts of Parliament, 1967
7
(§) 3(5) Terrorist and Disruptive Activities (Prevention) Act, Acts of Parliament, 1987
8
INDIA CONST. art 19
9
INDIA CONST. art 21
10
(§) 6(1) National Investigation Agency Act, Acts of Parliament, 2008
11
(§) 154 National Investigation Agency Act, Acts of Parliament, 2008
12
(§) 45, Unlawful Activities (Prevention) Act, Acts of Parliament, 1967
In the case of NIA v. Zahoor Ahmad Shah Watali,13 the court observed that: “Section 45 of
the UAPA makes it clear that no court shall take cognizance of any offense punishable under
Sections 16, 17, 18, 18B, 19, 20 or 23 of the UAPA alleged to have been committed by any
person without the previous sanction of the Central Government or any officer authorized by
it in this behalf.”
The requirement of sanction is a safeguard so that no reckless prosecution can be
launched against any person....
The sanction is a check against arbitrary exercise of power by the prosecuting
agency.
The rationale for insisting upon sanction is that when the prosecution is based on
statutory provisions which impose drastic punishments, the court should be
circumspect in administering the law.
The State police may intentionally or unintentionally register cases under the Bombay
Natural Supplements Act (BNS) instead of the Unlawful Activities (Prevention) Act (UAPA)
to retain jurisdictional control and prevent the case from being transferred to the National
Investigation Agency (NIA), which operates under the Union government. In situations
where there is political divergence between the state and Union governments, there may be
an ego-driven reluctance to transfer the case to the NIA, posing a significant challenge to
effectively addressing the threat of terrorism.
[II.2] Whether the Powers accorded to Police under Section 113 of BNS violative of
Fundamental Rights?
It is humbly contended that the powers accorded to the police under 113 is violative of FR.
The above will be contended in a two-fold manner: [II.2.1] Violation of Article 14, [II.2.2]
Violation of Article 21.
[II.2.1] Violation of Article 14
It is humbly submitted that Article 14 of the Constitution of Maurya 14 has been violated. The
above will be contended in a three-fold manner. [II.2.1.1] Doctrine of Reasonable
Classification, [II.2.1.2] Doctrine of Arbitrariness, and [II.2.1.3] Special Law prevails over
General law
13
NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1
14
INDIA CONST. art 14
[II.2.1.1] Doctrine of Reasonable Classification
It is humbly contended that the same is violative of right to equality under Article 14 of the
Constitution of Maurya. In the landmark judgment of State of West Bengal v. Anwar Ali
Sarkar,15 permitting setting up of special courts for the ‘speedier trial’ of such ‘offences’, or
‘classes of offences’ or ‘cases’, or ‘classes of cases’, as the State Government might direct by
a general or special order was struck down as it made no reasonable classification. It laid
down “no yardstick or measure for the grouping either of persons or of cases or of offences”
so as to distinguish them from others outside the purview of the Act. The case laid down that
there must be
A. Intelligible Differentia
B. Nexus with the objective
Reasonable Classification is not based on Intelligible Differentia.
It is humbly contended that Section 113 of the UAPA fails the test of Reasonable
classification. Article 14, as already stated, permits reasonable classification which means
that the classification is to be based on an intelligible basis which distinguishes persons or
things grouped together from those that are left out of the group. It is humbly submitted that
in the present case there is no intelligible basis on which individuals are booked under UAPA
or MNS and no guidelines are provided for the same. Furthermore, it is solely decided by the
SP. Such an approach is ex facie arbitrary, unjust and violative of Article 14.
Differentia does not have a Rational Nexus to the object sought
In Deepak Sibal v. Punjab University,16 it was held that, “If the objective be illogical, unfair
and unjust, necessarily the classification will have to be held unreasonable.” In the present
case without any guidelines provided to decide on how a person is to be booked under UAPA
or MNS, it leaves the accused under the whims and caprices of the SP making it fair and
unjust and thus there is no rational nexus with the object, that is classifying terrorism.
In Ashutosh Gupta v. State of Rajasthan,17 the principle of equality necessitates differential
treatment for different classes or groups of people based on their varying needs and
circumstances. The courts have upheld that if the law in question is based on rational
classification, it is not considered discriminatory.
15
State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75
16
Deepak Sibal & Ors v. Punjab University and Anr., 1989 SCR (1) 689.
17
Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34, 40
It is humbly contended that in the present case, there is no reasonable classification, that is,
no guidelines provided as to when an accused can be booked under UAPA or MNS.
Furthermore, Ramesh and Rekha have been booked under different offences each without
any intelligible differentia and thus is violative of Article 14 of the Constitution of Maurya.
Additionally, in the case of D.S. Nakara v Union of India,18 fixation of cut off dates and
division of pensioners was not based on any reasonable classification and thus had no nexus
with the objective and was held invalid.
In the leading case of Nikesh Tarachand Shah v. Union of India,19 the Hon’ble Supreme
Court has cautioned that laws that “make drastic inroads into the fundamental right of
personal liberty guaranteed by Article 21” should only be applied when there is “compelling
state interest for tackling serious crimes.”
[II.2.1.2] Doctrine of Non-Arbitrariness
In the landmark judgment of E. P. Royappa v. State of Tamil Nadu20 it was held that the rule
of law is violated when there is arbitrariness or unreasonableness in state action. Article 14
primarily guards against arbitrary conduct and prohibits any legislative or executive state
action that suffers from the vice of arbitrariness. For a state action to be valid, it must be non-
arbitrary and reasonable; otherwise, the court would strike it down as unconstitutional.
Arbitrary state action infringes Article 14. In Bachan Singh v. State of Punjab,21 it was held
“Wherever we find arbitrariness or unreasonableness there is denial of the rule of law…
Article 14 enacts primarily a guarantee against arbitrariness and inhibits State action whether
legislative or executive, which suffers from the vice of arbitrariness.”
Furthermore, in Maneka Gandhi v. UOI22 it was held that, when a statute vests unguided and
unrestricted power in an authority to affect the rights of a person without laying down any policy or
principle which is to guide the authority in exercise of this power, it would be affected by the vice of
discrimination since it would leave it open to the Authority to discriminate between persons and
things similarly situated.
18
D.S. Nakara v. Union of India, AIR 1983 SC 130
19
Nikesh Tarachand Shah v. Union of India (2018) 11 SCC 1
20
E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555
21
Bachan Singh v. State of Punjab, AIR 1982 SC 1325
22
Maneka Gandhi v. Union of India, AIR 1978 SC 597
In Ajay Kumar Hasia v. Khalid Mujib Sehrawadi,23 the Supreme Court held that any law or
action that violates the principle of equality and non-discrimination enshrined in Article 14 of
the Constitution would be arbitrary and unconstitutional.
Furthermore, in Directorate of Enforcement v. Deepak Mahajan24, it was held that, any
statutory power that is uncanalized and unguided is arbitrary and violative of Article 14, as it
leaves the decision to the whims and caprices of the authority. By giving unfettered
discretion to the SP to choose between the MNS and UAPA without any guiding principles or
norms, violates the principles laid down in these cases and opens the accused to be at the
mercy of whims and caprices of those in power.
In Kharak Singh v. State of U.P.25 where the Supreme Court struck down certain provisions
of the Police Regulations as violative of the right to privacy and personal liberty due to their
potential for arbitrary application. Section 113 lacks clear guidelines or leaves room for
arbitrary or discriminatory application by the police and thus violates Article 14 and Article
21 of the Constitution of Maurya.
Invalidity Of the Possibility of Abuse of A Statute Argument.
The possibility of abuse of a statute otherwise does not impart to it any element of
invalidity.26 The converse must also follow that a statute which is otherwise invalid as being
unreasonable cannot be saved by its being administered in a reasonable manner. 27 The police
power of the State in respect of any offence committed in a state comes within the legislative
competence of the state. Therefore, in the present case just because there may be a possibility
of the SP abusing power does not by itself invalidate the cause of action and the defence is
invalid.
[II.2.1.3] Special law prevails over General law
The courts have consistently applied the “rule of harmonious construction” to resolve
conflicts between the general and special provisions of ‘conflicting’ laws. This legal maxim
dictates that when there is an apparent conflict between two independent provisions of law,
the provision of the special law must prevail over that of the general law. The UAPA is the
23
Ajay Hasia v. Khalid Majid, AIR 1981 SC 487
24
Directorate of Enforcement v. Deepak Mahajan 1994 AIR 1775
25
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295
26
Collector of Customs v. Nathella Sampath Chetty, AIR 1962 SC 316.
27
Collector of Customs v. Nathella Sampath Chetty, AIR 1962 SC 316.
special law addressing terrorism, whereas the BNS is a general statute that addresses offences
generally.
The Superintendent’s arbitrary power to book the case runs contrary to the general rule that –
if an act falls within the definition of a terrorist act under both the BNS and UAPA, the
special statute – i.e., the UAPA – will prevail, rendering the provisions of the BNS redundant.
It is the established precedent that in a situation involving both a general law and a special
law addressing a specific aspect (in this case a terrorist act) that is covered by the general law
(in this case the BNS), the rule of harmonious construction is invoked and the special law
prevails over the general.28
In Azad Transport Co. v. State of Bihar,29 the court held that tax is a specialized field. VAT
is a special provision and rules in CrPC are considered to be of a general nature. The
government made law with respect to a particular field thus, the specific law gains superiority
over general laws. The same principle was reiterated in Tridib Dutta Choudhury v. Pinak
Bhattacharjee30 and Damodar S. Prabhu v. Sayed Babalal.31
In the present case, it is humbly contended that discretion has been provided to the SP to
book the accused under either MNS or UAPA without any guidelines and ignores the already
established principle that a specific law overshadows a general law. Furthermore, the right to
equality has been violated as under UAPA there are several safeguards that have to be met.
[II.2.2] Whether there is a violation of Article 21?
28
Sharat Babu Digumarti v Govt (NCT of Delhi), (2017) 2 SCC 18
29
Azad Transport Co. P. Ltd v. State of Bihar, (2016) 93 VST 515
30
Tridib Dutta Choudhury v. Pinak Bhattacharjee, 2011 SCC OnLine Gau 63
31
Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663
