Chagla 2016 - Team OO - Memorial for Petitioner

TEAM CODE: OO

IN THE HIGH COURTOF JUDICATURE AT LYS ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.

OF 2016

(UNDER ARTICLE 226 OF THE T HE CONSTITUTION OF BRAAVOS) ARCHANA STARK

…PETITIONER

Versus THE FREE REPUBLIC OF BRAAVOS AND ORS.

…RESPONDENTS

ALONG WITH WRIT PETITION NO.

OF 2016

VARYS CORPORATION v. STATE OF LYS AND ORS.

MEMORIAL ON BEHALF OF THE PETITIONER

23rd M.C. CHAGLA MEMORIAL GOVERNMENT LAW COLLEGE NATIONAL MOOT COURT COMPETITION, 2016

I

23RD M. C. CHAGLA MEMORIAL GOVERNMENT LAW COLLEGE NATIONAL MOOT COURT COMPETITION, 2016

TABLE OF CONTENTS

SR . NO.

PARTICULARS

PAGE NO. III-V

1.

I NDEX OF AUTHORITIES

2.

STATEMENT OF JURISDICTION

3.

SYNOPSIS OF FACTS

4.

STATEMENT OF ISSUES

5.

SUMMARY OF ARGUMENTS

6.

ARGUMENTS ADVANCED

1-20

7.

PRAYERS

XIV

VI VII-IX X-XI XII-XIII

II


INDEX OF AUTHORITIES

TABLE OF CASES

SR . NO.

NAME OF THE CASE

CITATION

PAGE NO.

1.

State of WB v. Anwar Ali Sarkar.

AIR 1952 SC 75

2

2.

Amita v. Union of India and Anr.

(2005) 13 SCC 721

2,3,11,13

3.

TMA Pai Foundation v. State of Karnataka.

(2002) 8 SCC 481

2,11

4.

M Nagraj v. Union of India.

(2006) 8 SCC 212

2,11

5.

State of Punjab v. Kalkaran Singh.

(2006) 12 SCC 709

2, 10

6.

Budhan Choudhry v. State of Bihar.

AIR 1955 SC 191

2,5,13

(1994) 2 SCC 176

3,13

AIR 1987 SC 1690

3,13

7.

General

Manager,

Kerala

SRTC,

Trivandrum v. Susamma Thomas and Ors. Gujarat State Road Transport Corporation,

8.

Ahmedabad v. RamanbhaiPrabhatbhai and Anr.

9.

Fizabai and Ors. v. Nemichand and Ors.

AIR 1993 MP 79

3,13

10.

Chiranjit Lal Chowdhuri v. Union of India.

AIR 1951 SC 41

5

AIR 2013 SC 2582

5

11.

12.

13.

14.

15. 16.

State of Maharashtra and Anr.v. Indian Hotel and Restaurants Association and Ors. Maneka Gandhi v.Union of India. AK Bindal and Anr. v. Union of India and Ors. Yogesh Shantilal Choksi v. Home Secretary, Govt. of Kerala and Anr. Shri DK Basu, Ashok K. Johri v. State Of West Bengal, State Of UP. Reliance Energy Limited v. Maharashtra

III

AIR 1978 SC 597.

5,6,14,15,1 6,19

AIR 2003 SC 2189

6, 14

1983 CriLJ 393

6,14

AIR 1997 SC 610

6,14

(2007) 8 SCC 1

6,14


State Road Development Corporation Ltd. 17.

Rylands v. Fletcher.

(1868) LR 3 HL 330

6

18.

MP Electricity Board v. Shail Kumar.

AIR 2002 SC 551

7

19.

Kartar Singh v. State of Punjab.

(1994) 3 SCC 569.

8,16

(2007) 4 SCC 669

11

Management of Coimbatore District Central 20.

Co-operative Bank v. Secretary, Coimbatore District

Central

Co-operative

Bank

Employees Association and Anr. 21.

Dharam Dutt v. Union of India.

(2004) 1 SCC 712

12

22.

RBI v. Peerless General Finance.

(1996) 1 SCC 642

12

23.

DTC v. Mazdoor Union DTC.

AIR 1991 SC 101

15

AIR 1999 Ker 385

15

AIR 2000 SC 2083

15

AIR 1950 SC 27

15

AIR 1980 SC 470

18

AIR 1969 SC 783

18,20

2010(2)ALLMR81

18,20

AIR 1994 Bom 323

20

24.

K Ramakrishnan and Anr v. State of Kerala and Ors.

25.

State of AP v. Challa Ramakrishna Reddy.

26.

Gopalan v. State of Madras.

27.

28. 29. 30.

Jolly George Varghese and Anr. v. The Bank of Cochin. Maganbhai Ishwarbhai Patel etc. v. Union of India and Anr. Karan Dileep Nevatia v. Union of India. PB Samant and Ors. v. Union of Indiaand Anr.

EFERRED BOOKS R EFERRED

D. D. Basu, Shorter Constitution of India, India , 14th Edition, Edition, 2009, Vol. 1 & 2. D. D. Basu, Commentary on the Constitution of India, India, 8th Edition, Edition, 2008, Vol. 2 & 3. M.P. Jain, Indian Jain, Indian Constitutional Law, Law, 6th Edition, Edition, 2010, Vol. 1. IV


STATUTES

THE CONSTITUTION OF BRAAVOS THE CONSTITUTION OF I NDIA BRAAVOSI MERCHANT SHIPPING ACT PROTECTION OF MARITIME TRADE ACT THE FATAL ACCIDENTS ACT, 1855

INTERNATIONAL CONVENTIONS

CONVENTION ON PREVENTION OF PIRACY IN THE BRAAVOSI ARCHIPELAGO

V


STATEMENT OF JURISDICTION

THE PETITIONER HAS FILED THE PRESENT WRIT PETITION INVOKING THE JURISDICTION OF THE HON’BLE HIGH COURT OF LYS UNDER ART ICLE 226 OF THE CONSTITUTION OF BRAAVOS. THE PETITIONER STATES THAT THE PRESENT PETITION DEALS WITH SUBSTANTIAL QUESTIONS OF LAW AND THAT THE PETITIONER HAS NO ALTERNATIVE EFFICACIOUS REMEDY EXCEPT TO APPROACH THIS HON’BLE COURT.

THE PRESENT PETITION SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENTS IN THE PRESENT CASE.

VI


STATEMENT OF FACTS



Archana Stark (Petitioner ) is a citizen of the Free Republic of Braavos ( Braavos ).



Varys Corporation ( Varys Corporation ) is a company incorporated in the Republic of Volantis (Volantis ).



Braavos is an island country in the continent of Essos. Volantis is a neighbouring island country. Lys is a constituent state in Braavos (L ys ). ).



Before 2013: Export of Tullyfish ( Fish ) in large quantities was a valuable source of earning foreign exchange for Braavos. The catch of the Fish eventually reduced due to overfishing.



2013: The fishermen of Braavos were having problems in catching the Fish to sustain a living. The banking system of Braavos collapsed. Some fishermen turned to piracy to supplement their income. Braavos was located close to major shipping routes. The problem of piracy in and around the th e waters of Braavos posed a problem in shipping and trade in the region.



192 countries attended the ‘Third Conference on the Law of the Sea’ ( UNCLOS I I I ) to curb piracy and signed the ‘Convention on Prevention of Piracy in the Braavosi Archipelago’ (Dr agon ). The Dragon treaty inter alia provided alia provided that: agon Tr eaty “a) The preamble declared that the treaty was a measure “in continuance of the universal custom outlawing piracy” and was now “incorporated in the common maritime law of all nations to counter the scourge of piracy” ; b) Companies owning ships (who are incorporated in a signatory state) are entitled to hire armed security guards and place them on their vessels (if the flag state of the vessel is a signatory to the convention). (Article 15);

VII


c) The said armed guards shall be private personnel, and shall not be agents, or members of the armed forces of any country. They shall also not be considered seamen for any purposes whatsoever. (Article 18); d) In case of any criminal acts committed by these personnel, they would serve any sentence in the country of the flag state of the ship. (Article (Article 25); e) The employer’s civil civil liability in any of the wrongful acts committed by these personnel would be 20,000 Braavosi ducats. The liability is to be a strict liability and would be enforced by the ordinary Courts of the place of commission of the offence. (Article 26)” 26)” All the said the signatory nations ratified the Dragon Treaty. 

December, 2015: The said signatory nations reduced the employer’s liability for the acts of Second Sons to 15,000 Braavosi Ducats ( B D ). ).



Centr al Act January, 2016: The Braavosi Merchant Shipping Act ( Centr ) was amended to

give effect to the Dragon Treaty and the following provisions were added: “Section 2 (aa) – Convention shall mean ‘the Convention on Prevention of Piracy in the Braavosi Archipelago’ as amended from time to time. Section 235A – 235A – Notwithstanding Notwithstanding anything contained in any law in force, an employer shall be liable for any act committed by any Second Sons in the course of his/her duty/employment only upto the limits provided for under the Convention. For this provision to apply the em ployees must be a party to the Convention.” Convention.” 

February, 2016: The said signatory nations amended the Dragon Treaty to reduce the liability to 10,000 BD.



March, 2016: On March 1, 2016, Braavos and Volantis entered into ‘Treaty to amend the Dragon Treaty’ Treaty’ incorporating complete exclusion of liability for wrongful acts of the Second Sons( Bi later ). This move angered many people in Lys. ). later al Treaty Treaty

VIII




April, 2016: Government of Lys enacted the Protection of Maritime Trade Act ( PMT ) which inter alia imposed a liability of 20,000 BDfor the acts of Second Sons on A ct all ships irrespective of their flag state in the territory of Lys. The PMT Act received the assent of the President on April 24, 2016.



May 2, 2016: Andal, a ship owned by Varys Corporation, within 3 nautical miles of the coast of Lys suspected a pirate attack from a boat speeding in the waters of Braavos. The Second Sons on board opened fire on the boat, killing the sole person on board (Deceased ). The Deceased was a fisherman. ).



The Petitioner, wife of the Deceased, made a complaint acting upon which the said ship of Varys Corporation was intercepted.



The Petitioner is inter alia challenging the relevant provisions of the PMT Act which limit liability for acts of Second Sons to 20,000 BD ( Chal l enged Pr Pr ovision ovision s of th e ) and Section 235A of the Central Act before this Hon’ble High Court. PMT A ct Hence, this Petition ( Prese ). ). Present Wr it Petiti on



Varys Corporation was made a respondent in the Present Writ Petition. Varys Corporation also filed Writ Petition No.

of 2016 ( Tagged ) challenging Tagged Wri t Peti Peti tion

the PMT Act. Both the writ petitions have been tagged.

IX


STATEMENT OF ISSUES

1.

Whether Section 235A of the Central Act is violative of Articles 14 and 21?

1.1. Section 235A of the Central Act provides for a limit on compensation which is violative of Article 14. 1.2. Section 235A of the Central Act is violative of Article 21. 1.3. Section 235A of the Central Act is not based on the principle of strictliability as provided in the Dragon Treaty.

2.

Whether the Challenged Provisions of the PMT Act are unconstitutional being violative of Articles 14 and 21?

2.1. The Challenged Provisions of the PMT Act are ambiguous and vague. 2.2. The Challenged Provisions of the PMT Act are unconstitutional, inasmuch as it provides for a fixed sum of 20,000 20,000 BD for the wrongful acts of the Second Sons without without adjudication, being violative of Articles 14 and 21. 2.3. Without prejudice, the Challenged Provisions of the PMT Act are unconstitutional, inasmuch as they put a limit upto 20,000 BD for the wrongful acts of the Second Sons, being violative of Articles 14 and 21. 2.4. The Challenged Provisions of the PMT Act are arbitrary.

X


3.

Whether the provisions of the Bilateral Treaty are against Articles 14 and 21, and are not binding on the Petitioner?

3.1. The Bilateral Treaty does not have the force of law. 3.2. The provisions of the Bilateral Treaty are against Articles 14 and 21. 3.3. The Bilateral Treaty is not binding on the Petitioner.

XI


SUMMARY OF THE ARGUMENTS

1.

WHETHER SECTION 235A OF THE CENTRAL ACT IS VIOLATIVE OF ARTICLES 14 AND 21?

Section 235A of the Central Act provides for a limit to the compensation receivable by the victims of wrongful acts of the Seconds Sons. Such limit is the amount mentioned in the Dragon Treaty. Limit or a cap on compensation to the victims is arbitrary, unjust and violative of Articles 14 and 21 of the Constitution of Braavos. Furthermore, the amount of compensation under the Dragon Treaty has already reduced from 20,000 BD as it stood originally to 10,000 BD in February, 2016; which has reduced the limit of compensation under the Central Act. However, there has been no change in the circumstances existing in Braavos which warrant such reduction. Section 235A of the Central Act is also ambiguous, absurd and violative of Article 14 as it applies only when employees, that is, the Second Sons are a par ty to the Dragon Treaty.

2.

WHETHER THE CHALLENGED PROVISIONS OF THE PMT ACT ARE UNCONSTITUTIONAL?

The Challenged Provisions of the PMT Act are ambiguous and vague as to whether the compensation receivable by the victim from the owner is a fixed sum of 20,000 BD whatever may be the consequence of the wrongful act of the Second Sons or is the limit of upto 20,000 BD. The Challenged Provisions of the PMT Act are impermissibly vague and imprecise. It is also ambiguous as to whether the compensation of 20,000 BD is the sum receivable by a single victim of the wrongful act of the Second Sons or is the total sum receivable by multiple victims for wrongful acts of the Second Sons.

XII


Further, providing a fixed amount of compensation to the Petitioner without consideration to the facts and circumstances of the case results in an impermissible classification which is violative of Articles 14 and 21. Without prejudice, providing a limit of 20,000 BD upto which the liability of the owner extends is violative of Articles 14 and 21. Therefore, the Challenged Provisions of the PMT Act are arbitrary and should be struck down as unconstitutional.

3.

WHETHER THE PROVISIONS OF THE BILATERAL TREATY ARE AGAINST ARTICLES 14 AND 21, AND ARE NOT BINDING ON THE PETITIONER?

The Bilateral Treaty in itself does not have the force of law in Braavos unless it is incorporated into the laws of Braavos by the Parliament. The Bilateral Treaty is against Articles 14 and 21 of the Constitution as it seeks to exclude all civil liability for wrongful acts of the Second Sons when the ship is flagged in Volantis.The enactment of a law by Parliament in respect of treaties/agreements/conventions is necessary when the treaty or agreement restricts or affects the rights of citizens or others or modifies the law of Braavos.Therefore, the Bilateral Treaty Treat y is not binding on the Petitioner.

XIII


ARGUMENTS ADVANCED

1.

WHETHER SECTION 235A OF THE CENTRAL ACT IS VIOLATIVE OF ARTICLES 14 AND 21?

1.1. SECTION 235A OF THE CENTRAL ACT PROVIDES FOR A LIMIT ON COMPENSATION WHICH IS VIOLATIVE OF ARTICLE 14. 1.1.1.Limit on compensation is arbitrary and violative of Article 14 inasmuch as it treats the Petitioner differently from similarly placed victims in terms of adjudication of damages. Section 235A of the Central Act reads thus: Notwithstanding anything contained in any law in force, an employer shall be liable for any act committed by any Second Sons in the course of his/her duty/employment only upto the limits provided for under the Convention. For this provision to apply the employees must be a party to the Convention. It is submitted that the Central Act provides for a limit on the compensation receivable by the victims of wrongful acts of the Seconds Sons. Such limit is the amount mentioned in the Dragon Treaty. It is submitted that the imposed limit on compensation to the victims is arbitrary and violative of Article 14 of the Constitution of Braavos. Article 14 of the Constitution reads thus: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of Braavos. Article 14 has 2 facets; (i) Equality before the law, and (ii) Equal protection of the laws. The first expression contained in Article 14, has been taken from English Common law, whilethe

1


second expression has been borrowed from American jurisprudence. 1 ‘ Equality Equality before the law’ law’ means that amongst equals, the the law should be equal and should be equally administered.2 ‘ Equal Equal protection of the laws’ laws ’ deals with the implicit concept of equality that persons who are infact unequally circumstanced cannot be treated on a par 3 and equals cannot be treated as unequals4. ‘ It It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation.In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure. ’ 5 It is submitted that Section 235A of the Central Act places the Petitioner in a separate classthan similarly placed victims in other cases. The victims of wrongful acts committed by Second Sons are treated differently than the said similarly placed victims of wrongful acts committed by any employee/private security guard/any other person, when such an employee/private security guard/any other person does not fall into the category of Second Sons, even though the injury suffered and other circumstances are materially the same. The said similarly placed victims who have suffered similar amount of damage as the Petitioner

1

State of WB v. Anwar v. Anwar Ali Sarkar , AIR 1952 SC 75. Amita v. UoI and Anr , (2005) 13 SCC 721. 3 TMA Pai Foundation v. Foundation v. State of Karnataka, Karnataka , (2002) 8 SCC 481; M 481; M Nagraj v. Nagraj v. UoI , (2006) 8 SCC 212. 4 State of Punjab v. Punjab v. Kalkaran Kalkaran Singh, Singh, (2006) 12 SCC 709. 5 Budhan Choudhry v. State of Bihar, AIR 1955 SC 191. 2

2


have a right to approach a Civil Court for compensation inter alia under Torts, and Fatal Accidents Act, 1855. The compensation of the said similarly placed victims in a Civil Court is ascertained in accordance with the circumstances and the actual damage or injury suffered in each case without any limit on compensation. The said victims are entitled to receive a fair, just and equitable compensation.6 Various factors are taken into consideration7 while accessing compensationsuch as life expectancy of the deceased, income of the deceased, better employment opportunity, number of dependants, loss of consortium etc. The said similarly placed victims do not have a cap orlimit on the quantum of compensationreceivable while the amount mentioned in the Dragon Treaty is the maximum amount of compensation which can be received by the Petitioner as per Section 235A of the Central Act. It is submitted that this results in differential treatment and such differential treatment results in classification of victims into 2 categories, one which does not have a limit on compensation and the other with a limit on compensation, and seeks to treat the Petitioner differently from similarly placed victims without any plausible reason. It is submitted that ‘ Equality Equality before the law’ law’ forbids discrimination between persons who are substantially in the same or similar circumstances.8 It is submitted that the according to the test of permissible classification, a classification is valid only if it is found on intelligible differentia and has nexus to the object of the act sought to be achieved. It is submitted that there is no reasonable ground whatsoever to limit the compensation of the Petitioner when similarly placed victims have a right to receive damages in tune with the injury suffered. It is also submitted that there is no nexus whatsoever between limiting the compensation of the victims of the wrongful acts of the Second Sons

6

General Manager, Kerala State Road Transport Corporation, Trivandrum v. Mrs Susamma Thomas and Ors, Ors, (1994) 2 SCC 176, Gujarat State Road Transport Corporation, Ahmedabad v. Ahmedabad v. RamanbhaiPrabhatbhai RamanbhaiPrabhatbhai and Anr , AIR 1987 SC 1690. 7 Fizabai and Ors v. Nemichand v. Nemichand and Ors, Ors, AIR 1993 MP 79. 8 Supra, Supra, note 2.

3


and the object of curbing piracy. Therefore, such classification fails the dual test laid down under Article 14. Further, it is unjust and arbitrary to put a limit on the compensation of victims of wrongful acts of Second Sons without any reasonable grounds when the actual damage may amount to much more. It is thus submitted that Section 235A of the Central Act is violative of Article 14. 1.1.2.The Limit of compensation has reduced as a result of reduction of the amount provided for in the Dragon Treaty. It is submitted that the compensation amount under the Dragon Treaty has already been reduced from 20,000 BD as was originally envisaged by 192 nations, to 15,000 BD in December 2015 and to 10,000 BD in February, 2016. It is submitted that the limit of compensation has accordingly reduced in Braavos. However, the circumstances prevailing in Braavos have not changed which warrant a reduction in the limit of compensation. Moreover, compensation receivable by the victims is to be in tune with the actual damage suffered, therefore a reduction in liability merely because the Dragon Treaty lowers the compensation is arbitrary. 1.1.3.Section 235A applies only in cases when the Second Sons are party to the Dragon Treaty which is ambiguous, arbitrary and violative of Article 14. Section 235A of the Central Act states that ‘ for this provision to apply the employees must be a party to the Convention’. Convention ’. It is submitted that Section 235A is ambiguous, absurd and violative of Article 14 as it applies only when employees, that is, the Second Sons as individuals are a party to the Dragon Treaty. Without prejudice, even if it is assumed that the provision shall apply when the employees, that is, Second Sons are from States which are a party to the Convention, i.e. the Dragon Treaty, Section 235A of the Central Act is still violative of Article 14. It is submitted that Section 235A seeks to limit the compensation of victims for the wrongful acts of the Second

4


Sons and if such provision is to apply only when the Second Sons are from States which are parties to the Dragon Treaty, it results in a classification of victims. Victims of wrongful acts of a Second Son who is from a State which is a party to the Dragon Treatyare treated differently from victims of wrongful acts of a Second Son who is from a State which is not a party to the Dragon Treaty. Treat y. The former category of victims has a limit on the compensation receivable from the employer whereas the latter category of victims has no limit on the compensation receivable even though all other material circumstances are the same. Article 14 provides that ‘there ‘there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is the same same’’9. Therefore, Section 235A classifies thesimilarly placed victims of wrongful acts of Second Sons into 2 separate categories, one with a limit on compensation receivable and the other with no limit on compensation receivable. Such differential treatment is arbitrary and irrational and is not based on any reasonable ground whatsoever. Further, such classification has no nexus to the object of the Legislation which is to curb piracy and implement the Dragon Treaty. It is therefore submitted that Section 235A fails the two-fold test of Article 14 as laid down in Budhan Choudhry Choudhry 10.

1.2. SECTION 235A OF THE CENTRAL ACT IS VIOLATIVE OF ARTICLE 21. Violation of Article 14 is a violation of Article 21. 1.2.1.Article 21 is an amplitude of rights. Article 21 of the Constitution reads thus: No person shall be deprived of his life or personal liberty except according to procedure established by law.

9

Chiranjit Lal Chowdhuri v. Chowdhuri v. UoI , AIR 1951 SC 41. Supra, note 5; State of Maharashtra and Anr v. Indian v. Indian Hotel and Restaurants Association and Ors, Ors , AIR 2013 SC 2582. 10

5


It is submitted that in Maneka Gandhi 11 case, it was held that the expression personal liberty is of the widest amplitude. Right to life is the most fundamental of all human rights, and any decision affecting human life must call for the most anxious scrutiny. Right to life has been expanded to include a plethora of rights such as right to livelihood 12, right to access courts13 of justice, right to compensation for being deprived of one’s life and liberty 14 etc. 1.2.2.Test propounded byArticle 14 pervades Article 21. It is submitted that deprivation of one’s o ne’s life or liberty is not justified unless it is in accordance with a procedure established by law. However, if the procedure prescribed does not satisfy the requirements of Article 14, it would be no procedure at all within the meaning of Article 21.15 Article 14 and 21 are the heart of the Chapter on fundamental rights. ri ghts. They cover various aspects of life.16For reasons more particularly submitted in issue no 1.1, Section 235A of the Central Act is violative of Article 14. Therefore, Section 235A is also violative of 21.

1.3. SECTION 235A OF THE CENTRAL ACT IS NOT BASED ON THE PRINCIPLE OF STRICT LIABILITY AS PROVIDED IN THE DRAGON TREATY. Article 26 of the Dragon Treaty reads thus: The employer’s civil liability in any of the wrongful acts committed by these personnel would be 20,000 Braavosi ducats. The liability is to be a strict liability and would be enforced by the ordinary Courts of the place of commission of the offence. It is submitted that Section 235A of the Central Act is an implementation of Article 26 of the Dragon Treaty. Article 26 provides 26 provides that the employer’s liability will be strict liability. Strict

11

v.UoI , AIR 1978 SC 597. Maneka Gandhi v.UoI AK Bindal and Anr v. UoI v. UoI and Ors,AIR Ors,AIR 2003 SC 2189. 13 Yogesh Shantilal Choksi v. Home v. Home Secretary, Govt of Kerala and Anr , Anr , 1983 CriLJ 393. 14 Shri DK Basu, Ashok K. Johri v. State of West Bengal, State of U. P, AIR 1997 SC 610. 15 Supra, note 11. 16 Reliance Energy Limited v. Maharashtra v. Maharashtra State Road Development Corporation Limited, (2007) 8 SCC 1. 1. 12

6


Liability is a principle laid down in Rylands v. Fletcher v. Fletcher 17which provides that ‘if one brings upon his land anything which would not naturally come on it, and which is in itself is dangerous, and may become mischievous if not kept under proper control, though in so doing he may act without personal wilfulness or negligence, he will be liable in damages for any mischief thereby occasioned ’. The Supreme Supreme Court of India observed ‘… ‘ … a person person undertaking an activity involving hazardous or risky exposure of human life is liable under Law of Torts to compensate for the injury suffered by any other person irrespective of any negligence or carelessness on the part of the manager of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known in law as “strict liability”. liability”.18’ Theactivity of placing armed private security guards on vessels by shipping companies is a hazardous activity which puts human lives on board that vessel, and any other vessel, at risk. Wrongful acts of the said armed private security guards including unlawful firing and discharge of firearms,lack of proper training etc. can be fatal and can prejudice human lives. The risk involved is foreseeable in the very nature of the activity of placing the said armed private security guards on board. The shipping companies place the said armed private security guards on the vessels in furtherance of their own interests. The Dragon Treaty specifies that the saidarmed private security guards shall not be members or agents of armed forces of any State. The Dragon Treaty also provides that the employer’s civil liability for the wrongful acts of the said armed private security guards will be a strict liability. The rational being that the armed private security guards are placed on board vessels by shipping companies, in i n furtherance of their own interests, interes ts, thereby putting putti ng human lives at risk. Thus, they are accountable for the wrongful acts of the saidarmed private security

17

Rylands v. Fletcher v. Fletcher , House of Lords, (1868) LR 3 HL 330. MP Electricity Board v. Shail Kumar , AIR 2002 SC 551.

18

7


guards. It is the duty of the shipping companies to be diligent and vigilant in hiring, training and managing the said armed private security personnel. The nature of the risk involved is such that a very high degree of care is expected from the employers and very few defences are permissible. Accordingly, the nature of civil l iability of the employers a strict one. However, Article 235A of the Central Act does not recognise the employer’s civil liability as strict liability. It is submitted that for the following reasons, the employer’s civil liability ought to have been a strict liability (i) the nature of activity being inherently risky; (ii) the armed private security guards are placed on vessels in furtherance of the shipping company’s interests; (iii) the employer’s degree of degree of care ought to be very high; (iv) without strict liability, the defence of reasonable care and precaution is available to the employer which lowers the accountability of the employer; (v) if the liability of the employer were strict, the vigilance and diligence of the employer to train and manage the armed private security guards will increase and the occurrence of wrongful acts will reduce; (vi)the object of the Dragon Treaty is to curb piracy and to make international waters safe and allowing the armed private security guards to be placed on board without a strict liability on the employer’s is watering down the safety of international waters, and is thereby against the object of the Dragon Treaty.

8


2.

WHETHER THE CHALLENGED PROVISIONS OF THE PMT ACT ARE UNCONSTITUTIONAL?

2.1. THE CHALLENGED PROVISIONS OF THE PMT ACT ARE AMBIGUOUS AND VAGUE. 2.1.1.Inasmuch as it can be read that the liability of 20,000 BD for any wrongful acts of the Second Sons is (i) a fixed sum of 20,000 BD for any act, or (ii) a limit of upto 20,000 BD. In Kartar Singh19it was held,‘ It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law … judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.’ application. ’ The Challenged Provisions of the PMT Act impose a liability of 20,000 BD for the acts of the Second Sons on all ships. It is therefore submitted that it is ambiguous as to whether the compensation receivable by the victim from the owner is a fixed sum of 20,000 BD whatever may be the consequence of the wrongful act of the Second Sons or is the limit of upto 20,000 BD. The Challenged Provisions of the PMT Act are impermissibly vague and imprecise inasmuch as it is unclear whether the amount of 20,000 BD is an amount fixed as compensation or whether it is a cap on the amount of compensation that could be awarded. This inherent defect in the Challenged Provisions of the PMT Act can be read in the two aforementioned ways resulting in arbitrariness. There can be arbitrary application of the Challenged Provisions of the PMT Act for victims in a similar 19

Kartar Singh v. State v. State of Punjab, Punjab , (1994) 3 SCC 569.

9


situation resulting in discrimination, which consequently leads to a violation of Article 14. Clear and specific provisions remove the ambiguity in the statute and avoid dual interpretations, which safeguards the interest of individuals in similar circumstances. It is therefore submitted that the PMT Act is violative of Article 14 and should be struck down as void for vagueness. 2.1.2.Inasmuch as it reads that the liability of 20,000 BD for any wrongful acts of the Second Sons is (i) the compensation receivable by single victim, or (ii) the total compensation receivable by multiple victims? The Challenged Provisions of the PMT Act impose a liability of 20,000 BD for theactsof theSecondSonson allships. It is therefore submitted that it is ambiguous as to whether the compensation of 20,000 BD is the sum receivable by a single victim of the wrongful act of the Second Sons or is the total sum receivable by multiple victims of thewrongful acts of the Second Sons.The Challenged Provisions of the PMT Act are ambiguous and can lead to dual interpretations, which is violative of Article 14 and should be struck down as void for vagueness.

2.2. WHETHER THE CHALLENGED PROVISIONS OF THE PMT ACT ARE UNCONSTITUTIONAL, INASMUCH AS IT PROVIDES FOR A FIXED SUM OF 20,000 BD FOR THE WRONGFUL ACTS OF THE SECOND SONS WITHOUT ADJUDICATION, BEING VIOLATIVE OFARTICLES 14 AND 21? 2.2.1.Fixing the amount of 20,000 BD in all cases, irrespective of the facts, results in placing the Petitioner on the same pedestal as differentially victims placed. It is submitted that the Challenged Provisions of the PMT Act do not contemplate taking into consideration the various consequencesof the wrongful acts or the injury suffered as a result of the wrongful act. The injury suffered as a result of the wrongful act of the Second Sons

10


varies from one case to another, for instance it can vary from temporary disablement to permanent disablement or death, etc. Similarly, theChallenged Provisions of the PMT Act do not contemplate any difference between victims of intentional wrongful acts and victims of negligent wrongful acts.In each of the abovementioned instances, the compensation receivable by the victims from the owner would be the fixed sum of 20,000 BD. Therefore, the Challenged Provisions of the PMT Act result in placing the Petitioner on the same pedestal as differentially placed victims which is arbitrary. 2.2.2.Equal treatment of differentially placedpersons results in inequality, and is violative of Article 14. ‘ Equal Equal protection of the laws’ laws’ deals with the implicit concept of equality that persons who are infact unequally circumstanced cannot be treated on a par 20 and equals cannot be treated as unequals21. (a)

Equal protection of law means the right to equal treatment only in similar circumstances.

It is submitted that Article 14 covers within its ambit equality of treatment only to equals and not unequals. 22 Therefore, the laws need to be equally administered only between those who are placed in like or similar circumstances. 23 Therefore, equal treatment of differentially placed victims as provided by the Challenged Provisions of the PMT Act amounts to a violation of Article 14. (b)

Equal treatment of differentially placed victims is arbitrary.

It is submitted that the Challenged Provisions of the PMT Act seek to treat differentially placed victims at par as the compensation is a fixed sum of 20,000 BD. Such equal treatment

20

Supra, note 3. Supra, note 4. 22 Management of Coimbatore District Central Co-operative Bank v. Secretary, v. Secretary, Coimbatore District Central Cooperative Bank Employees Association and Anr , Anr , (2007)4SCC669. 23 Supra, Supra, note 2. 21

11


of differentially placed victims is wholly arbitrary. There is no reasonable ground to give equal treatment to victims who have suffered differentially. Therefore the Challenged Provisions of the PMT Act are arbitrary. (c)

In the absence of nexusto the object to be achieved by the PMT Act, equal treatment of unequals is discriminatory and violative of Article 14.

It is submitted that equal treatment of unequals is liable to be struck down as discriminatory in the absence of a rational relation to the object intended to be achieved by the law. 24 The Challenged Provisions of the PMT Act, inasmuch as they seek to treat the Petitioner equal to differentially placed persons has no nexus whatsoever with the object of the PMT Act and have no rational relation to providing compensation to the victims. Therefore, Challenged Provisions of the PMT Act are violative of Article 14. 2.2.3.The Challenged Provisions of the PMT Act put the Petitioner in a separate class than similarly placed victims in other cases. It is submitted that the Challenged Provisions of the PMT Act place the Petitioner in a separate class than similarly placed victims in other cases. The victims of wrongful acts committed by Second Sons are treated differentlythan the said similarly placed victims of wrongful acts committed by any employee/private security guard/ any other person, when such an employee/private security guard/any other person does not fall into the category of Second Sons, even though the injury suffered and other circumstances are materially the same. The said similarly placed victims who have suffered similar amount of damage as the Petitioner have a right to approach a Civil Court for compensation inter alia under Torts, and Fatal Accidents Act, 1855. The compensation of the said similarly placed victims in a Civil Court is ascertained in accordance with the circumstances and the actual damage or injury suffered in each case and is not a fixed quantum of compensation. The said victims are 24

Dharam Dutt v. v. UoI , (2004) 1 SCC 712; RBI 712; RBI v. Peerless v. Peerless General Finance, Finance, (1996) 1 SCC 642.

12


entitled to receive a fair, just and equitable compensation25. Various factors are taken into consideration26 while accessing compensation. Such victims do not have a fixed quantum of compensationreceivable irrespective of the facts of the case. This differential treatment of the Petitioner results in classification. It is submitted that ‘ Equality Equality before the law’ law’ forbids discrimination between persons who are substantially in the same or similar circumstances. 27 Therefore, the Challenged Provisions of the PMT Act are violativeof Article 14. 2.2.4.The Challenged Provisions of the PMT Act are arbitrary and create unreasonable and unjust classification which is violative of Article 14. It is submitted that the test of permissible classification is two-fold: (i) that the classification must be founded on intelligible differentia which distinguishes persons grouped together from others who are left out of the group, and (ii) that differentia must have a rational connection to the object sought to be achieved by the law. 28 A classification would not be justified if it is patently arbitrary. It is submitted that the classification made under the Challenged Provisions of the PMT Act is wholly unreasonable and unjust. There is no reasonable ground whatsoever to fix the quantum of compensation of the Petitioner without adjudication of damages when similarly placed victims have a right to have their claims adjudicated upon. Furthermore, giving a fixed sum as compensation is wholly arbitrary and unreasonable.It is further submitted that there is no nexus whatsoever between fixing the quantum of compensation of the Petitioner and the object of the PMT Act. Therefore, it is submitted that the Challenged Provisions of the PMT Act are violative of Article 14. 2.2.5.Violation of Article 14 is a violation of Article 21.

25

Supra, note 6. Supra, Supra, note 7. 27 Supra, note 2. 28 Supra, note 5. 26

13


It is submitted that in Maneka Gandhi 29 case, it was held that the expression personal liberty under Article 21 is of the widest amplitude. Right to life is the most fundamental of all human rights, and any decision affecting human life must call for the most anxious scrutiny. Right to life has been expanded to include a plethora of rights such as right to livelihood 30, right to access courts31 of justice, right to compensation for being deprived of one’s life and liberty32etc.It is also submitted that if the procedure prescribed does not satisfy the requirements of Article 14, it would be no procedure at all within the meaning of Article 21. 33 Article 14 and 21 are the heart of the Chapter on fundamental rights. They cover various aspects of life.34For reasons more particularly submitted in issue nos. 2.2.1 to 2.2.4, the Challenged Provisions of the PMT Act are violative of Article 14. Therefore, the Challenged Provisions of the PMT Act are also violative of 21. 2.2.6.Fixing the quantum of compensation to 20,000 BD is against the principles of Natural Justice, Justice, inasmuch as it curtails the Petitioner’s right to approach the Court for adjudication of damages. It is submitted that the Challenged Provisions of the PMT Act, inasmuch as they provide for the fixed sum of 20,000 BD to be given as compensation, are violative against the principles of natural justice.Victims placed in similar si milar position as the Petitioner, who have suffered a loss to the same extent, have a right to approach a Civil Court for compensation inter alia under Torts, and Fatal Accidents Act, 1855 where compensation is to be ascertained in accordance with the circumstances and injury suffered in each case.However, it is submitted that the Challenged Provisions of the PMT Act curtail such right of the Petitioner under which the Petitioner is entitled to receive only the fixed sum of 20,000 BD as compensation awardable 29

Supra, note 11. Supra, note 12. 31 Supra, note 13. 32 Supra, note 14. 33 Supra, note 11. 34 Supra, note 16. 30

14


by the th e Court. Court. Petitioner’s right to a fair hearing, hearing , and to approach the Court for adjudication and ascertainment of damages has been curtailed by the Challenged Provisions of the PMT Act. Audi alterampartemfacet alterampartem facet of natural justice is a requirement of Article 14, for, natural justice is the antithesis of arbitrariness.35 Violation of principles of natural justice is also violative of Article 21.36 Hence, the Challenged Provisions of the PMT Act are wholly violative of Articles 14 and 21. 2.2.7.The Challenged Provisions of the PMT Act are unreasonable, fanciful and oppressive; and take away the Petitioner’s right to approach the Court and ask for adjudication of claim, thus being violative of Article 21. It is submitted that the Petitioner is entitled to have her claim for damages adjudicated upon. The Petitioner also has a right to receive fair compensation as a result of such adjudication. These rights are a part of the most basic and essential rights guaranteed to every person in Braavos. These rights form a part of ‘Right to life’ guaranteed by Article 21 of the Constitution. The word ‘life’ is very significant as it covers all facets of human existence.The word ‘life’ has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. 37 Right to life is one of the basic human rights and not even the State has the authority to violate that right. 38 Article 21 provides that the Statecannot deprive a man of his life and personal liberty, unless a procedure established by law which provides for such deprivation of life and liberty is

35

DTC v. Mazdoor v. Mazdoor Union DTC , AIR 1991 SC 101. Supra, note 11. 37 K Ramakrishnan and Anr v. State v. State of Kerala and Ors,AIR Ors ,AIR 1999 Ker 385. 38 State of AP v. v. Challa Ramakrishna Reddy, Reddy, AIR 2000 SC 2083. 36

15


followed. followed. ‘Procedure’ means the manner and form of enforcing the law. 39 Supreme Court of India has further elaborated that ‘the ‘ the procedure contemplated by Article 21 is that the procedure has to be ‘right, just and fair and not arbitrary, arbitr ary, fanciful or oppressi ve’ ve’.40 Further, the Court held in Maneka in Maneka Gandhi 41 case, that the procedure should be right, just and fair and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 will not be satisfied. It is submitted that the Challenged Provisions of the PMT Act provide for a fixed sum of 20,000 BD which curtail the Petitioner’s right to life; to approach the Court for adjudication of damages, to receive a fair compensation, to receive a fair hearing, to compel the owner to pay for the wrongful act of the Second Sons etc. The procedure of such curtailment of Petitioner’s right to life is not fair, just and reasonable. Such procedure is not a procedure that can be upheld in law and is to be held as no procedure at all. Therefore, it is submitted that the Challenged Provisions of the PMT Act are violative of Article 21 and ought to be held unconstitutional.

2.3. WITHOUT PREJUDICE, WHETHER THE CHALLENGED PROVISIONS OF THE PMT ACT ARE UNCONSTITUTIONAL, INASMUCH AS THEY PUT A LIMIT UPTO 20,000 BD FOR THE WRONGFUL ACTS OF THE SECOND SONS, BEING VIOLATIVE OF ARTICLES 14 AND 21? Without prejudice, if 20,000 BD is considered as a limit upto which the liability of the owner extends for the wrongful acts of the Second Sons, it is submitted that the Challenged Provisions of the PMT Act are still unconstitutional, being violative of Articles 14 and 21. In addition to the submissions made in issue no.1, wherein it is submitted that a limit on

39

Gopalan v. State of Madras, Madras , AIR 1950 SC 27. Supra, note 19. 41 Supra, note 11. 40

16


compensation is violative of Articles 14 and 21, it is further submitted that the Civil Courts in Lys are bound by the four corners of laws prevailing in Lys. Civil Courts have no jurisdiction to act beyond a statute. Therefore, unless declared unconstitutional, the Court is bound by the Challenged Provisions of the PMT Act and Section 235A of the Central Act, and cannot award damages beyond 20,000 BD in any case even if the assessment of damages is infact more.

2.4. WHETHER THE CHALLENGED PROVISIONS OF THE PMT ACT ARE ARBITRARY? The Challenged Provisions of the PMT Act provide that the liability of the owner is 20,000 BD for the wrongful acts of the Second Sons. However, the Challenged Provisions of the PMT Act make no difference between negligent acts and malafide malafide acts, therefore treating victims of malafideacts malafideacts of Second Sons the same asvictims of negligent acts of Second Sons which is patently arbitrary. Arbitrariness is an antithesis to law. Therefore, the Challenged Provisions of the PMT Act ought to be struck down as void.

17


3.

WHETHER THE PROVISIONS OF ‘TREATY TO AMEND THE DRAGON TREATY’ ARE AGAINST ARTICLES 14 AND 21, AND ARE NOT BINDING

ON THE PETITIONER?

3.1. THE BILATERAL TREATY DOES NOT HAVE THE FORCE OF LAW. It is submitted that Braavos, like India, recognises the difference between formation of a treaty and incorporation of the treaty into the laws of the land. Braavos follows the dualist school42 of law in respect of implementation of international law at a domestic level. It is therefore submitted that international treaties do not automatically form part of the corpus juris43 in Braavos. As held by the Supreme Court of India in Maganbhai Patel 44case and by the Bombay High Court in Karan Nevatia 45 case, ‘the ‘the stipulations of a treaty duly ratified by the Central Government, do not by virtue of the treaty alone have the force of law ’. Further, Parliament alone has the power to legislate to implement international treaties, agreements or conventions entered into by the Union of Braavos. The Bilateral Treaty has merely been signed and has neither been ratified nor implemented into the laws of the land.There has been no legislation passed by the Parliament under Article 253 to make the Bilateral Treaty enforceable in Braavos. Thus, it is submitted that the Bilateral Treaty does not have the force of law in Braavos.

3.2. THE PROVISIONS OF THE BILATERAL TREATY ARE AGAINST ARTICLES 14 AND 21. 3.2.1.The nullification of thecompensation for wrongful acts of the Second Sons is against Article 14 of the Constitution. 42

Jolly George Varghese and Anr. v. The Bank of Cochin, AIR 1980 SC 470. Ibid. 44 Maganbhai Ishwarbhai Patel etc. v. UOI and Anr , AIR 1969 SC 783. 45 Karan Dileep Nevatia v. UOI, 2010(2)ALLMR81. UOI, 2010(2)ALLMR81. 43

18


Without prejudice, the victims of the wrongful acts of Second Sons where the owner of the ship is from a country other than Volantis have a right to approach a Civil Court for adjudication of compensation. The Bilateral Treaty seeks to treat the Petitioner and other victims of wrongful acts of Second Sons differently as the Bilateral Treaty provides a complete exclusion of liability for wrongful acts of Second Sons when the ship is flagged in Volantis. The Petitioner and the other victims of wrongful acts of Second Sons from a ship flagged in Volantis will become a part of a distinct class which is excluded from approaching a Civil Court for compensation from the owners of the ship. Such classification is arbitrary, unjust and unreasonable. It is submitted that ‘ Equality before the law’ law ’ forbids discrimination between persons who are substantially in the same or similar circumstances. Such classification is against Article 14. 3.2.2.The aforementioned provisions of the Bilateral Treaty are unreasonable, fanciful and oppressive; and would take away the Petitioner’s right to approach the Court and ask for adjudication of claim, thus being against Article 21. It is submitted that a complete exclusion of all liability for the wrongful acts of Second Sons of ships flagged in Volantis as provided for under the Bilateral Treatycurtails the Petitioner’s right to approach the Court for adjudication of damages, to receive a fair compensation, to receive a fair hearing and the right to access the courts for the redressal of just grievances. These rights form a part of Right to Life under Article 21. Moreover, the procedure prescribed to limit the Petitioner’s right to life is not one that is fair, just and reasonable. Such procedure is not a procedure that can be upheld in law and is to be held as no procedure at all.46 Therefore, it is submitted that the Bilateral Treaty is against Article 21.

3.3. THE BILATERAL TREATY IS NOT BINDING ON THE PETITIONER. 46

Supra, note 11.

19


The Bilateral Treaty has neither been ratified nor has it been incorporated in the municipal laws of Braavos. International treaties/agreements/conventions treaties/agreements/conventions ‘are ‘are not by their own force binding upon Indian nationals ’47. The enactment of a law by Parliament in respect of treaties/agreements/conventions is necessary when the treaty or agreement restricts or affects the rights of citizens or others or modifies the law of Braavos. 48 Therefore, the Bilateral Treaty is not binding on the Petitioner for it is wholly against Articles 14 and 21.

47

Supra, note 44, 45, PB 45, PB Samant and Ors v. UoI v. UoI and Anr , AIR 1994 Bom 323. Supra, note 45.

48

20


PRAYERS

It is, therefore, respectfully prayed in the Present Writ Petition that this Hon’ble Court be pleased to: a. Issue a writ of mandamus, or any other appropriate writ, or direction, or order declaring that Section 235A of the ‘Braavosi ‘Braavos i Merchant Shipping Act’ is unconstitutional, void and ultra vires being vires being violative of Articles 14 and 21; b. Issue a writ of mandamus, or any other appropriate writ, or direction, or order declaring that the Challenged Provisions of the ‘Protection of Maritime Trade Act’ areunconstitutional, void and ultra vires being vires being violative of Articles 14 and 21; c. Issue a direction, order or any appropriate writ holding that theprovisions of the ‘Treaty to amend the Dragon Treaty’ are not binding on the Petitioner; d. Costs; e. Pass any other direction di rection or order which the Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND PETITIONER SHALL EVER PRAY.

Sd/Advocate for the Petitioner

XIV


IN THE HIGH COURT OF JUDICATURE AT LYS ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2016 (UNDER ARTICLE 226 OF THE CONSTITUTION OF BRAAVOS)

Archana Stark…Petitioner v. The Free Republic of Braavos and Ors. …Respondents ALONG WITH Writ Petition No. of 2016 Varys Corporation v. State of Lys and Ors.

WRIT PETITION

TEAM OO Advocate on behalf of the Petitioner

Chagla 2016 - Team OO - Memorial for Petitioner

Recommend Documents