NHRC SLS NAGPUR NATIONAL MOOT COURT COMPETITION, 2024

TC :- 30A

NHRC- SLS NAGPUR NATIONAL MOOT COURT COMPETITION,

2024

BEFORE THE HON’BLE SUPREME COURT OF ZENDIA

UNDER THE ARTICLE 32 OF ZENDIAN CONSTITUTION

WRIT PETITION NO. ……..

IN THE MATTER OF
ZENDIA PEOPLE’S FORUM & Ors………………………………………………PETITIONER

VERSUS
UNION OF ZENDIA ……………………………………….….………..RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND OTHER HON’BLE

JUSTICE OF THE HON’BLE SUPREME COURT OF ZENDIA

MEMORANDUM ON BEHALF OF THE APPELLANT

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TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................ ii

TABLE OF ABBREVIATIONS ............................................................................................ iv
INDEX OF AUTHORITIES ................................................................................................... v
STATEMENT OF JURISDICTIONS.................................................................................... x
ISSUES ................................................................................................................................... xiii
SUMMARY OF ARGUMENTS .......................................................................................... xiv
ARGUMENTS ADVANCED .................................................................................................. 1
ISSUE-1: WHETHER THE WRIT PETITION IS MAINTABLE OR NOT? .............. 1
1.1 The Petitioner has Locus Standi and Sufficient Interest............................................... 1
1.2 Right to approach SC under article 32 is a fundamental right in itself ....................... 2
1.3 The Supreme Court is a ‘Sentinel on the Qui Vive’. ..................................................... 2
1.4 There is no alternate and effective Remedy Available. ................................................ 3
1.5 There are Substantial Questions of law involved ......................................................... 3
ISSUE-2: WHETHER THE BLANKET BAN ON UNDER-TRIAL PRISONERS
CASTING THEIR VOTES IN ZENDIA’S ELECTION LAW VIOLATES THEIR
CONSTITUTIONAL RIGHTS........................................................................................... 4
2.1 Does the provision of blanket ban on the under trial prisoners casting their votes,
raises concerns about its constitutionality? ....................................................................... 4
2.2 Does restriction from casting their votes violate the Democratic System of Zendia? 5
2.2.1 Democracy constituent of the basic structure of the Zendia Constitution. ............... 6
2.3 Does restriction from casting their votes violate the principle of equality .................. 6
2.4 Does the blanket ban on casting their votes violates Article 19(1)(a)? ....................... 7
ISSUE 3: WHETHER INCARCERATED INDIVIDUALS RETAIN THE RIGHT TO
CONJUGAL COHABITATION, AND TO WHAT EXTENT SUCH RIGHTS CAN
BE CURTAILED? ............................................................................................................... 8
3.1. Incarcerated individuals have a right to conjugal visits ............................................. 8
3.2 Restriction shall not be such that it curtails the right to life ..................................... 10
3.2. Incarcerated Individuals have rights to Limited Periods of Conjugal Visitation. .... 11
ISSUE-4: WHETHER MANDATORY HIV TESTING FOR PRISONERS ALIGN
WITH THEIR FUNDAMENTAL RIGHTS, AND WHAT MEASURES CAN BE
TAKEN TO PROTECT THE RIGHTS OF HIV+ PRISONERS? ............................... 12

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4.1 Mandating HIV testing for prisoners is a justifiable restriction on privacy, driven by
the state's compelling interest in curbing HIV transmission in prisons and the broader
community. ........................................................................................................................ 12
4.2. HIV testing forms part of the right to health as enshrined under Article 21. ............ 13
PRAYER ............................................................................................................................. xvi

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TABLE OF ABBREVIATIONS

ABBREVIATION ACTUAL TERM

AIR All India Reporter
AIDS Acquired Immune Deficiency Syndrome
ANR. Another
ART Article
CJ Chief Justice
Cl. Clause
COI Constitution of India
COZ Constitution of Zendia
CONS Constitution
CRI Criminal
E.P. Execution Petition
F. R Fundamental Rights
HIV Human Immunodeficiency Viruses
HON’BLE Honourable
ICCPR International Covenant on Civil and Political Rights
ISCR Indian Society for Clinical Research
MOOT PROP. Moot Proposition
ORS Others
SC Supreme Court
ST State
SCC Supreme Court Cases
UDHR Universal Declaration of Human Rights
UOI Union Of India
U/A Under Article
VOL. Volume
V./VS Verses
PG Page Number
ZPF Zendia People’s Forum
& And
¶ Paragraph

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INDEX OF AUTHORITIES

(A) TABLE OF CASES

1. A.L. Kalra V. Project and Equipment Corpn. Of India Ltd. (1984) 3 SCC 316…..…...….7
2. Anoop Baranwal Vs. Union of India(Election Commission) 2023 SCC Online SC
216…………………………………………………………………………………………7
3. Ashby V. White (1793) 92 ER 126…………………………………………………………5
4. Assam Sanmilta Mahasangh v. Union of India, (2015) 3 SCC 1 (India)………………….3
5. Bhim Rao Baswanth Rao Patil Vs. K. Madan Mohan Rao & Ors. (2023) SCC Online SC
871…………………………………………………………………………………………5
6. Bodhisattawa v. Subhra Chakraborty, (1996) 1 SCC 490 : AIR 1996 SC 922……………2
7. Budhadev Karmaskar v. State of West Bengal AIR 2011 SC 2636……………………….13
8. Charles Sobaraj V. Superintendent Central Jail Tihar AIR 1978 SC 1514……….……..11
9. D. Bhuvan Mohan Patnaik and Others V. State of Andhra Pradesh and Others AIR 1974
SC 2092…………………………………………………………………….……..……….9
10. D.S. Nakara V. Union of India (1983) 1 SCC 305………………………………..……….7
11. Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457………………..…….….…..……...2
12. Dharam Dutt Vs. Union of India (2004) 1 SCC 712…………………..………….……….7
13. E.P. Royappa Vs. State of Tamil Nadu 1974 AIR 555…………………………………….6
14. Fertilizer Corporation Kamgar Union (regd.) Sindri V. UOI, (1981) 1 SCC 568 : AIR
1981 SC
344……………………………………………………………………………………….1,2
15. Francis Coralie Mulin Vs. The Administrator, Union Territory of Delhi AIR 1981 SC
746……………………………………………………………….………………………10
16. Gobind Singh v. Shanti Sarup, (1979) 2 SCC 267………………………………………..1
17. Golaknath Vs. State of Punjab AIR 1967 SC 1643……………………………………......8
18. Hansraj Gordhandas v. H.H. Dave and Ors. 1969 2 SCR 253…………………………….1
19. Hari Prasad Mulshanker Trivedi v. V.B. Raju and Ors AIR 1973 SC 2602………………5
20. Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 98 : AIR 1979 SC
1369 (India) ………………………………………………………………….……………2
21. Indira Nehru Gandhi V. Raj Narayan AIR 1975 SC 2299…………………………..…..5,6
22. Jasvir Singh and Anr v. State of Punjab and others (1978) 4 SCC 494……………...........9
23. Joseph Shine Vs. Union of India 2018 SCC Online SC 1676……………………………..6
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24. K. Ramadas Shenoy v. Chief Officers, Town Municipal Council, Udipi and Ors, (1974) 2
SCC 506……………………………………………………………………….……..……1
25. K.K. Kouchunni v. State of Madras, AIR 1959 SC 725 (India)……………….……..……3
26. Karam Kapahi and Ors. V. Lal Chand Public Charitable Trust and Ors. AIR 2010 SC
2077……………………………………………………………………….…….…………5
27. Kesavananda Bharati V. State of Kerala (1973) 4 SCC 225……………………………6,8
28. Kharak Singh v. State of U.P AIR 1963 SC 1295……………..…………………………..9
29. Kuldip Nayar V. Union of India & Ors AIR 2006 SC 3127……….…….…………..…….5
30. Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244………………………………6
31. M. Janardhan Rao v. Joint Commissioner of Income Tax, (2005) 2 SCC 324……………3
32. M. Vijay v. Chairman and Managing Director ………………………………………….13
33. Madhav Rao Jivaji Rao Scindia Bahadur and Ors. V. Union of India and Ors. (1971) 1
SCC 85……………………………………………………………………………..….…..6
34. Maneka Gandhi Vs. Union of India (1975) 1 SCC 248……………………...………6,8,10
35. Manoj Narula Vs. Union of India (2006) SCC Online SC 344……………………….......5
36. Meharaj Singh v. State of Tamil Nadu and others 1994 SCC (5) 188…………………9,11
37. Minarva Mills Ltd. V. Union of India (1980) 2 SCC 591…………………………………6
38. Mini v. Commissioner of Police 2016 SCC Online Ker 28812…….……………….…….11
39. Mohan Reddy v. State of Madhya Pradesh AIR 2010 SC 327……….……………………4
40. Mohini v. State of Karnataka (1992) 3 SCC 666……………..…………………..….…….3
41. Munn V. Illinois 944 U.S. 113 (1876)………………………………………….…….…..10
42. Murpokku Dravida Vs. Election Commission of India (2011) 4 SCC 224………………..4
43. Navtej Singh Jauhar Vs. Union of India 2018 SCC Online SC 1350….,…………………6
44. Peoples Union for Civil Liberties Vs. The Union of India (2003) 5 SCC 399…………….4
45. Praveen Kohli v. Smt. Komal Alias Kamlesh 2016 SCC Online Del 4400……………....11
46. Prem Chand Garg v. Excise Commissioner, UP, AIR 1963 SC 996………………………2
47. Public Interest Foundation and Ors. V. Union of India and Ors. AIR 018 SC 4550……..5
48. R. Rajagopal and Ors. V. State of Tamil Nadu and Ors. (1994) 6 SCC 632………..…….6
49. Rajbala Vs. State of Haryana (2016) 2 SCC 445………………………………….………4
50. Ramesh Kumar v. State of Chhatishgarh AIR 2001 SC 3837……………………………..4
51. Randhir Singh and Anr. V. State of Punjab Air 2004 SC 5097………………………..….4
52. Rasbihari Panda and Ors. V. State of Orissa (1969) 1 SCC 414…………………...……6
53. Ratlam Municipality v. Vardhichand (1980) 4 SCC 162……………………………........1
54. Romesh Thappar v. The State of Madras 1950 SCC Online SC 19…………………….3,7
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55. S.P. Gupta v. Union of India, 1981 Supp SCC 87 : AIR 1982 SC 149…………………….1
56. S.R. Bommai V. Union of India AIR 1994 SC 1918……………………………………….6
57. Sadhu R. Pall v. State of Punjab 1994 (1) R.S.J. 335…………………………………....13
58. Safiya Sultana Vs. State of U.P 2021 SCC Online All 19……………………………..…..6
59. Sejal Glass Ltd. V. Navilan Merchant Pvt. Ltd. AIR 2017 SC 4477………………………5
60. Shafin Jahan v. Ashokan K.M. and Ors (2018) 16 SCC 368………………………..…….6
61. Shankari Prasad Singh Deo v. Union of India & State of Bihar 1951 SCC Online SC
59…………………………………………………………………………………………..6
62. Shayara Bano Vs. Union of India 2017 SCC Online SC 963………………………..…….6
63. Siddharam Satilngappa Mhetre v. State of Maharashatra, JT 2010 (13) SC 247……….13
64. State of Andhra Pradesh and Ors. McDowell and Co. and Ors AIR 1996 SC 1627……...5
65. State of Andhra Pradesh V. Challa Ram Krishna Reddy (2000) 5 SCC 712…………....10
66. State of Madras v. V.G. Row AIR 1952 SC 196 (India)……………………………..……2
67. State of Mysore v. R. V. Bidap (1974) 3 SCC 337State of Punjab Vs. M.S. Chawla 1997
(2) SCC 83………………………………………………………………………...……….1
68. State of Punjab v. M.S. Chawla, 1997 (2) SCC 83……………………………….………13
69. State of U.P. Vs. Deoman Upadhyaya (1961) 1SCR 14…………………………..……….7
70. State of West Bengal Vs. Anwar Ali Sarkar 1952 SCC Online SC 1………………………6
71. Sunil Batra v. Delhi Administration and Others 1978 SCC 494………………...……..9,10
72. T.N. Seshan, CEC of India V. Union of India & Ors (1995) 4 SCC 611…………….……5
73. Tribhuban Prakash Nayyar v. The Union of India (1969) 3 SCC 99…………………..…6
74. Upendra Baxi v. State of Uttar Pradesh, (1986) 4 SCC 106 : AIR 1987 SC 191…………2
75. Virajlal Manilal and Co. and Ors. vs. State of Madhya Pradesh and Ors.(1969) 2 SCC
248…………………………………………………………………………………………6
76. Waman Rao V. Union of India (1980) 3 SCC 587………………………..……………….6
77. Wolff v. McDonnell 418 U.S. 539 (1974)………………………………………………...10

(B) STATUTORY COMPILATION

1. The Human Immunodeficiency Virus and Acquired Immune Deficiency

Syndrome(Prevention and Control) Act, 2017.
2. The Constitution India, 1949.
3. The Code of Criminal Procedure, 1973.
4. The Prisoners Act, 1894.

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(C) BOOKS AND COMMENTARIES

1. M.P Jain, Indian Constitutional law , Eighth Edition by Lexis Nexis.

2. Dr. J.N. Pandey, Constitutional Law of India, Fifty Seventh Edition, by Central Law
agency.
3. V.N. Shukla’s, Constitution of India, Thirteenth Edition by EBC Publication.
4. Ranjanan Sharraf and Dr. Rakhi Sharraf, Master guide to Constitution of India by Law &
Justice Publishing and Company.
5. DD Basu, Constitution of India (2010).
6. V. G. Ramchandran, law of Writs 7th edition 2022 by EBC Publication.
7. H. M. Seervai, Constitution of India, 4th Edition 2015 by Universal Law Publishing.

(D) CONVENTIONS AND STATUTES

1. International Covenant on Civil and Political Rights, 1966.

2. International Covenant on Economic, Social and Cultural Rights, 1966.
3. Universal Declaration Human Rights, 1948.
4. United Nations Office on Drugs and Crime by World Health Organisation, 2021.
5. HIV and TB Intervention in Prisons & Other Closed Setting by National AIDS Control
Organisation.
6. Rights of Prisoners by National Human Rights Commission India.
7. 78th Law Commission Report on Congestion of Under-Trial Prisoners in Jails, 1979.
8. Report of the National Consultation on HIV Intervention in Prisons and Other
Correctional Institutions, 6 December, 2017- New Delhi.

(E) ARTICLES AND JOURNALS

1. Michigan Law Review, Conjugal Visitation Rights and the Appropriate Standard of
Judicial review for Prison Regulations, 73 Mich. L. Rev 395(1974).
2. Anita Yadav, Prisoner’s Rights in India: An Analysis of Legal Framework, 6 No. 2, IJLJ,
131 (2015).
3. Harshavarthan. G, Prisoner’s Right to Vote, 20, Supremo Amicus 176 (2020).
4. Dr. Shruti Goyal, Conjugal Rights of Prisoners, Bharti Law Review, 57, (2018).

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5. Bhavana C.M Dhoundiyal & C. Suganya Jeba Sarojini, Conjugal Rights of Prisoners.
Imprisonment Does Not Mean Farewell to Fundamental Rights, 7, IRJMSH, 232, 2016.
6. Shama Nargis, Prisoners, Their Rights and Reformation, 9, IJEMR, 1, 2019.
7. Ekta Kumari, Restitution of Conjugal Rights: An Analysis, 4, 1, 2015.
8. Mohammad Zaheer Moqimy, Rights of Prisoners in India, 4, IJLSI, 607, 2022.
9. Samrin Sulaiman & Prof. Dr. Anju Mohan, A Study on Prison Reforms and Prisoners
Rights, 15, BJLP, 586, 2022.
10. Pamini Kasera, Rights of Women Prisoners In India.
11. John. K. Andrus, MD. David, W Fleming, Catherine Knox, HIV Testing In Prisoners: Is
Mandatory Testing Mandatory, 79, AJPH, 840, 1989.
12. Anjali Sharma and Dr. B. S. Reddy, Right to Vote Behind Bars: Is Imprisonment not
Enough?, 05, GLSLJ, 25, 2023.

(F) LEGAL DATABASE REFERRED

1. WWW.MANUPATRA.COM
2. WWW.SCCONLINE.COM
3. WWW.LEXIXNEXIS.COM
4. WWW.JSTOR.COM
5. WWW.HEINONLINE.COM

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STATEMENT OF JURISDICTIONS

The Appellant humbly submits to the jurisdiction of the Hon’ble Supreme Court of
Zendia.

The Hon'ble Court has Jurisdiction to hear the instant matter under Art. 32 of the
Constitution of Zendia, 1950.

Art. 32 of the Constitution of Zendia reads as:

Remedies for enforcement of rights conferred by this Part:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of
its jurisdiction all or any of the powers exercisable by the Supreme Court under clause
(2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.

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

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STATEMENT OF FACTS

BACKGROUND OF THE CASE:

Zendia is a quasi-federal democracy in South Asia. The country holds a reputable position in
the global arena and has intervened in bringing the conflicting states to the table. Here, the
constitution is the supreme law of the land. Zendia's Constitution establishes a single, unified
legal system. Zendian courts are arranged in a pyramidal fashion, with the Supreme Court at
the top, the High Courts in the middle, and district and subordinate courts at the base. The rate
of disposal of cases is getting better, but still, 50 million cases are pending in all the courts in
Zendia. The state witnessed an overall 20% rise in criminal cases in the preceding years. The
cases against women and children rose alarmingly, at a rate of 35%. Prisons, as penal and
correctional institutions. Prisons incarcerate criminals, convicts, and undertrials. The primary
purpose of prisons is to isolate or alienate such people from society.

The prison population of Zendia is nearly one million, with 75% of them being under trial.
Prisoners are also guaranteed certain rights, and it is provided that every prisoner should be
treated as a person. However, with the increased crime rate, the prisons also got a bit
overcrowded.

CAUSE OF ACTION:

Zendia will elect its new government with the next general election. Mr. X is a respected person
from Samrudh Pradesh, the largest state in Zendia. He is believed to be a staunch reformist and
has always advocated the need for and importance of human rights. He has always stood for
the rights of the people and will continue striving for them. A provision in election law that
imposes a blanket ban on undertrials.

In another state of Zendia, Zikaland, Mr.Y was a notorious man. He eloped with a girl staying
in his locality and solemnized the marriage as per the customary rites of both parties. After a
month, he came back to his home with his wife. His uncle raised objections to his marriage.
The next day, his uncle was found dead, and Mr.Y was arrested for his murder. The trial court
found him guilty, and he was sentenced to death. The punishment was confirmed by the high
court of Zikaland. In appeal, the Supreme Court of Zendia upheld his conviction.

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Zendia People’s Forum (ZPF) is an organization which is renowned for its work in the field of
social welfare and health particularly towards the prevention and control of AIDS, and
estimated 2 million people have been tested HIV+ in Zendia. ZPF arranges the medication for
people who have been tested HIV+ and also carries awareness drives in various parts of the
country for educating about the disease. The leading newspaper of Zendia published an article
concerning the rising cases of HIV+ prisoners in Zendia. The report mentioned that in three
different prisons, 120 prisoners were tested HIV+, also alarmed that the numbers can be much
higher if the tests are conducted across prisons in Zendia.

ACTION TAKEN BY THE PARTIES:

Mr. X approached the supreme court of Zendia through a petition challenging a provision in
the election law that imposes the blanket ban on undertrials, persons confined in civil prisons,
and convicts serving their sentence in jails from casting their vote. He petitioned that the
undertrials must be allowed to cast their votes.

Mr. Y’s wife, Ms. Aby filed a petition in the Supreme Court of Zendia for the conjugal
visitation rights to her incarcerated husband. She petitioned for the command of the jail
authorities to allow them to stay together and resume their conjugal life for the sake of progeny.

ZPF filed a petition in the Supreme Court of Zendia seeking an HIV test for all the prisoners
in Zendia. They petitioned that the test would help the government identify all the prison
inmates infected by it and treat them accordingly. They also petitioned that separate
arrangements must be made for the prisoners who are tested HIV+.

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ISSUES

ISSUE-1: WHETHER THE WRIT PETITION IS MAINTABLE OR NOT?

ISSUE-2: WHETHER THE BLANKET BAN ON UNDER-TRIAL PRISONERS

CASTING THEIR VOTES IN ZENDIA’S ELECTION LAW VIOLATES
CONSTITUTIONAL RIGHTS?

ISSUE-3 : WHETHER INCARCERATED INDIVIDUALS RETAIN THE RIGHT TO

CONJUGAL VISITS, AND TO WHAT EXTENT SUCH RIGHTS CAN BE
CURTAILED?

ISSUE-4 : WHETHER MANDATORY HIV TESTING FOR PRISONERS ALIGN

WITH FUNDAMENTAL RIGHTS, AND WHAT MEASURES CAN BE TAKEN TO
PROTECT THE RIGHTS OF HIV+ PRISONERS?

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SUMMARY OF ARGUMENTS

ISSUE -1: WHETHER THE WRIT IS MAINTAINABLE OR NOT?

It is humbly submitted that the petition is maintainable under Article 32 of the constitution of
Zendia. To that effect, the petitioner seeks to establish that, [1.1] The petitioner has Locus
Standi and sufficient interest. [1.2] Right to approach SC under Article 32 is a fundamental
right in itself. [1.3] The Supreme Court is a Sentinel on the Qui Vive. [1.4] There is no
alternative and effective remedy available. [1.5] There is a substantial question, followed by
the law involved.

ISSUE-2: WHETHER THE BLANKET BAN ON UNDER-TRIAL PRISONERS

CASTING THEIR VOTES IN ZENDIA’S ELECTION LAW VIOLATES THEIR
CONSTITUTIONAL RIGHTS?
It is humbly submitted that the blanket ban on under-trial prisoners casting their votes under
Zendia’s election law violates their constitutional rights. To that effect, the petitioner seeks to
establish that [2.1] The provision of a blanket ban on under-trial prisoners casting their votes
raises concerns about its constitutionality. [2.2] The restriction on casting their votes violates
the Democratic System of Zendia. [2.2.1] Democracy constitutes the basic structure of the
Zendia Constitution. [2.3] Does the restriction on casting their votes violate the principle of
equality? [2.4] The blanket ban on casting their Votes Violates Article 19(1)(a).
ISSUE-3: WHETHER INCARCERATED INDIVIDUALS RETAIN THE RIGHT TO
CONJUGAL VISITATION, AND TO WHAT EXTENT SUCH RIGHTS CAN BE
CURTAILED?

It is humbly submitted that incarcerated individuals retain the rights to conjugal visits, and the
curtailment of such rights shouldn’t abridge or violate any other rights (whether constitutional
or human). To that effect, the petitioner seeks to establish that: [3.1] Incarcerated individuals
have a right to conjugal visits. [3.2] Restriction shall not be such that it curtails the right to
conjugal visits. [3.3] Incarcerated individuals have rights to limited periods of conjugal
visitation.

ISSUE-4: WHETHER MANDATORY HIV TESTING FOR PRISONERS ALIGN

WITH THEIR FUNDAMENTAL RIGHTS, AND WHAT MEASURES CAN BE
TAKEN TO PROTECT THE RIGHTS OF HIV+ PRISONERS?

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It is humbly submitted that mandatory HIV testing for prisoners aligns with their fundamental
rights, and measures must be taken to protect the rights of HIV+ prisoners. To that effect, the
petitioner seeks to establish that [4.1] Mandating HIV testing for prisoners is a justifiable
restriction on privacy, driven by the state’s compelling interest curbing HIV transmission in
prisons and the broader community. [4.2] HIV testing forms part of the right to health as
enshrined under Article 21.

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ARGUMENTS ADVANCED

ISSUE-1: WHETHER THE WRIT PETITION IS MAINTABLE OR NOT?

[¶1] It is humbly submitted that the petition is maintainable under Article 32 of the constitution
of Zendia. To that effect, the petitioner seeks to establish that, [1.1] The petitioner has Locus
Standi and Sufficient Interest. [1.2] Right to approach SC under Article 32 is a fundamental
right in itself. [1.3] The Supreme Court is a Sentinel on the Qui Vive. [1.4] There is no
alternative and effective remedy available. [1.5] There is a substantial question, followed by
the law involved.

1.1 The Petitioner has Locus Standi and Sufficient Interest.

[¶2] It is most humbly submitted that this Hon'ble Court has held that a writ petition under
Art. 32 by an organization on behalf of a section of society that complains of a violation of
fundamental rights is maintainable.1 Any member of the public or a social action organization
working in good faith may seek restitution from the High Courts or the Supreme Court for
violations of the fundamental rights of individuals who are unable to approach the Court owing
to social, economic, or other disabilities.2

[¶3] Zendia People’s Forum (hereinafter ZPF) is an organization that renowned for its work
in the field of social welfare and health, particularly towards the prevention and control of
AIDS has the requisite locus standi to approach this court in the present matter. Locus
Standi means the right to bring an action, to be heard in court, or to address the court on a
matter before it.3 In other words, the term “locus standi” can be understood as legal capacity
to challenge legislation, an order or a decision.4

1
Ratlam Municipality v. Vardhichand, (1980) 4 SCC 162; Gobind Singh v. Shanti Sarup, (1979) 2 SCC 267
2
S.P. Gupta v. Union of India, 1981 Supp SCC 87 : AIR 1982 SC 149; Hansraj Gordhandas v. H.H. Dave and
Ors. 1969 2 SCR 253; K. Ramadas Shenoy v. Chief Officers, Town Municipal Council, Udipi and Ors, (1974) 2
SCC 506; Jasbhai Moti bhai Desai v. Roshan Kumar and Ors., (1976) 1 SCC 671; Fertilizer Corporation Kamgar
Union, Sindri and Ors. v. Union of India and Ors. (1981) 1 SCC 568; State of Mysore v. R.V. Bidap (1974) 3
SCC 337.
3
Supra Note 3.
4
2, V.G. Ramchandran, Law of Writs, 26, 6th ed. (EBC,2022).

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[¶4] In the instant case, it is observed that the petitioner, Zendia People’s Forum is filing the
aforesaid writ petition for the pro bono interest5 of the general public and general welfare of
the people of Zendia. ZPF by representing the people of Zendia, in general have the requisite
locus standi and public interest in the present case.

1.2 Right to approach SC under article 32 is a fundamental right in itself

[¶5] Art. 32 constitutes the basic right of citizens to seek constitutional remedies, which works
on the doctrine ‘Ubi Jus Ibi Remedium’, i.e. ‘where there is right, there is a remedy.’ Courts
have time and again acknowledged the role of SC as ‘Sentinel on the qui vive’. The right to
seek remedy under Art. 32 is contained in Part III of the Constitution of India, which makes it
a fundamental right in itself.6 Right to approach SC under Art. 32 is not only conferred as the
cornerstone of the democratic edifice7 raised by the constitution but has also been recognized
as one of the most highly cherished rights.8

[¶6] It not only confers powers on the SC but also lays upon it a duty to guard and uphold the
fundamental rights of the citizens of the country. The SC has affirmed that fundamental rights
are not only intended to protect an individual's basic rights, but they are also based on high
public policy, which makes these rights the essence of the Constitution and obliges the Apex
Court to render its duty as its custodian. The court cannot refuse to entertain or issue an
appropriate writ unless it is provided by the Constitution itself.9 In the present petition, the SC
has a constitutional obligation to discharge its role of the ‘guarantor’, which is also invested
with the petitioners as their fundamental right to seek constitutional remedy under Art. 32.

1.3 The Supreme Court is a ‘Sentinel on the Qui Vive’.

[¶7] The Hon'ble Court has repeatedly assumed the role of the “sentinel on the qui vive”10to
enforce the fundamental rights of the people. In light of the prevailing circumstances in Zendia,
which are continuously depriving a large section of the native population of their fundamental

5
Upendra Baxi v. State of Uttar Pradesh, (1986) 4 SCC 106.
6
Bodhisattawa v. Subhra Chakraborty, (1996) 1 SCC 490.
7
Prem Chand Garg v. Excise Commissioner, UP, AIR 1963 SC 996.
8
Fertilizer Corporation Kamgar Union (regd.) Sindri V. UOI, (1981) 1 SCC 568.
9
Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457.
10
State of Madras v. V.G. Row, AIR 1952 SC 196 (India).

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rights, the Court has the constitutional duty and obligation11 to entertain this petition. It is the
duty of the courts to examine the merits of each case with respect to the prevailing situation,
looking at the fundamental rights violations alleged, and make a decision in view of the
changing notions of life and personal liberty of humans.12

1.4 There is no alternate and effective remedy available.

[¶8] Approaching the SC under Art. 32 for the protection of fundamental rights is itself a
fundamental right.13 It is unnecessary to first approach the High Court and exhaust the remedy
under Art. 226 before approaching the SC.14 Hence, it was held by this Hon'ble court that the
mere existence of an adequate alternative legal remedy cannot per se be a good and sufficient
ground for dismissing a petition under Art. 32.15

1.5 There are Substantial Questions of law involved

[¶8] The facts and circumstances of the case must disclose a substantial question of law for a
petition to be maintainable.16 In the present case, substantial questions of law have been framed
to be decided by this Hon'ble Court.17 Adjudication on these pertinent issues necessitates the
admission of the petition.

Hence, it is humbly submitted that the writ petition is maintainable under article 32 of the
Constitution of Zendia.

11
Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 98.
12
Assam Sanmilta Mahasangh v. Union of India, (2015) 3 SCC 1 (India).
13
Mohini v. State of Karnataka, (1992) 3 SCC 666 : AIR 1992 SC 1858.
14
Romesh Thapar v. State of Madras, AIR 1950 SC 124.
15
K.K. Kouchunni v. State of Madras, AIR 1959 SC 725
16
M. Janardhan Rao v. Joint Commissioner of income Tax, (2005) 2 SCC 324.
17
Memorandum on behalf of the Petitioner.

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ISSUE-2: WHETHER THE BLANKET BAN ON UNDER-TRIAL PRISONERS

CASTING THEIR VOTES IN ZENDIA’S ELECTION LAW VIOLATES THEIR
CONSTITUTIONAL RIGHTS.

[¶9] It is humbly submitted that the blanket ban on under-trial prisoners casting their votes
under Zendia’s election law violates their constitutional rights. To that effect, the petitioner
seeks to establish that [2.1] The provision of a blanket ban on under-trial prisoners casting their
votes raises concerns about its constitutionality. [2.2] The restriction on casting their votes
violates the Democratic System of Zendia. [2.2.1] Democracy constitutes the basic structure of
the Zendia Constitution. [2.3] Does the restriction on casting their votes violate the principle
of equality? [2.4] The blanket ban on casting their Votes Violates Article 19(1)(a).

2.1 Does the provision of blanket ban on the under trial prisoners casting their votes,
raises concerns about its constitutionality?

[¶10] The petitioner contends that denying under-trial prisoners the right to vote raises
constitutional concerns. Voting rights are a constitutional right;18Article 32619expressly states
that every citizen has the right to vote. The right to vote is also a basic human right20 protected
under21 Everyone shall have the right to freedom of expression; this right shall include the
freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other media of his choice,
and also mentioned in the constitution. The status of the right to vote in India22 is that the right
to vote is not absolute.23 The Peoples Union for Civil Liberties vs. The Union of India also

18
Indian Constitution. Art. 326.
19
Constitution of India, 1950
20
UDHR, 1948
21
ICCPR, 1946
22
The ‘Fundamentals’ of the right to vote and its constitutional status2005, 1 NSLR 39).
23
Rajbala v. State of Haryana (2016) 2 SCC 445; Murpokku Dravida v. Election Commission of India (2011) 4
SCC 224; Mohan Reddy v. State of Madhya Pradesh AIR 2010 SC 327 ; Randhir Singh and Anr. v. State of
Punjab Air 2004 SC 5097; Ramesh Kumar v. State of Chhattisgarh AIR 2001 SC 3837.

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discusses the status of the right to vote in India.24 Prohibiting anyone from casting their vote
will lead to a violation of their fundamental right.25

2.2 Does restriction from casting their votes violate the Democratic System of Zendia?
[¶11] The petitioner argues that restricting under-trial prisoners from voting undermines
Zendia’s democratic system. The petitioner Refers to the following case laws in support of
these contentions: Zendia is a democratic Country.26 When we discuss the concept of
democracy.27 Major Indira Nehru Gandhi v. Raj Narayan28 stated that democracy is an
essential feature of the constitution and is unassailable. This above-stated principle was
repeated in T.N. Seshan, CEC of India v. Union of India & Ors.,29 and Kuldip Nayar v. Union
of India & Ors.30 Everyone has the right to life, liberty, and the security of their lives.31 The
will of the people shall be the basis of the authority of the government; this will shall be
expressed in periodic and genuine elections, which shall be by universal and equal suffrage and
shall be held by secret vote or by equivalent free voting procedures.32 No person shall vote at
any election if he is confined in a prison, whether under a sentence of Imprisonment,
transportation, or otherwise or is in the lawful custody of the police.33 Undertrial means a
person who is in judicial custody on remand during the investigation.34

[¶12] In Ashby v. White,35 Ashby was prevented by the right to vote, but the court held that the
right to vote is a legal right, and restraining someone from using his right to vote amounts to
legal injury. In such a way, restriction on casting votes36 by under-trial prisoners violates the
democratic system of Zendia.

24
(2003) 5 SCC 399.
25
Bhim Rao Baswanth Rao Patil v. K. Madan Mohan Rao & Ors (2023) SCC Online SC 871; Sejal Glass Ltd. v.
Navilan Merchant Pvt. Ltd. AIR 2017 SC 4477; Karam Kapahi and Ors. v. Lal Chand Public Charitable Trust and
Ors. AIR 2010 SC 2077; Public Interest Foundation and Ors. v. Union of India and Ors. AIR 2018 SC 4550
26
Preamble of COI, 1950.
27
Manoj Narula v. Union of India (2006) SCC Online SC 344.
28
AIR 1975 SC 2299.
29
(1995) 4 SCC 611.
30
AIR 2006 SC 3127; State of Andhra Pradesh and Ors. McDowell and Co. and Ors AIR 1996 SC 1627; Hari
Prasad Mulshanker Trivedi v. V.B. Raju and Ors AIR 1973 SC 2602.
31
Article 8, UDHR 1948.
32
Article 21, UDHR 1948.
33
Sec 62(5), The Representation of the People Act, 1951.
34
78th Report of Law Commission, 1979.
35
(1793) 92 ER 126.
36
Moot Prop.

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2.2.1 Democracy constituent of the basic structure of the Zendia Constitution.

[¶13] The petitioner asserts that democracy is a constituent of the basic structure of the Zendian
Constitution. The Basic structure is that part of the constitution that cannot be changed or
amended under any condition. In support of this contention, cite the leading case laws and
relevant provisions. The term basic structure is not defined in the Zendian constitution. And it
is also not mentioned in the Constitution. In the case of Kesavananda Bharati v. State of
Kerala,37 it was held that parliament amends any part of the constitution, but it does not alter
or amend the basic structure or essential features of the constitution. Shankari Prasad Singh
Deo v. Union of India and State of Bihar38 also discussed the amending power of Parliament,
but here it was also declared that they have no right to amend the basic structure of the
Constitution.

[¶14] In Indira Nehru Gandhi v. Raj Narayan,39 Minarva Mills Ltd. v. Union of India,40 Waman
Rao v. Union of India,41 and S.R. Bommai v. Union of India42 the judgment delivered that
parliament cannot alter the basic structure of the Constitution. In Kesavananda Bharati v. State
of Kerala,43 Justice H.R. Khanna said that democracy is a basic feature of the constitution and
includes free and fair elections. Restricting anyone from casting votes, including under-trial
prisoners, would therefore amount to altering the basic structure of the Constitution.

2.3 Does restriction from casting their votes violates the principle of equality

[¶15] The petitioner highlights the right to equality enshrined in the Zendian Constitution,
stating that the state shall not deny equality before the law. “The State shall not deny to any
person equality before the law or the equal protection of the laws within the territory of

37
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225.
38
1951 SCC Online SC 59.
39
AIR (1975) SC 2299; B.P. Maurya v. Prakash Vir Shastri and Ors AIR 1970 SC 522; Kanwar Lal Gupta v.
Amar Nath Chawla and Ors. AIR 1975 SC 308; Rahim Khan v. Khurshid Ahmed and Ors. (1974) 2 SCC 660
40
(1980) 2 SCC 591.
41
(1980) 3 SCC 587.
42
AIR 1994 SC 1918.
43
(1973) 4 SCC 225; Rasbihari Panda and Ors. v. State of Orissa (1969) 1 SCC 414; Tribhuban Prakash Nayyar
v. The Union of India (1969) 3 SCC 99; Virajlal Manilal and Co. and Ors. v. State of Madhya Pradesh and
Ors.(1969) 2 SCC 248; Madhav Rao Jivaji Rao Scindia Bahadur and Ors. v. Union of India (UOI) and Ors. (1971)
1 SCC 85.

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India.44” The right to equality is available to all the citizens of the country.45 State action must
not be arbitrary and must fulfill the requirement of reasonableness, which gives meaning to the
constitutional guarantees in Part III.46 Article 14 is unalienable; it cannot be ruled out,47 and no
one can curtail the fundamental rights of the citizens of the country. Article 14 comprises both
positive and negative content, equality before the law, and equal protection of the law.48 In D.S.
Nakara v. Union of India49 and A.L. Kalra v. Project and Equipment Corp. of India Ltd.,50 Case
a new dimension to Article 14 is added by holding that arbitrariness does not always require a
comparative evaluation between two persons for recording a finding of discriminatory
treatment. Denying under-trial prisoners the right to vote would be arbitrary and in violation of
their right to equality.

2.4 Does the blanket ban on casting their votes violates Article 19(1)(a)?

[¶16] The petitioner asserts that the blanket ban on casting votes by under-trial prisoners
violates Article 19(1)(a), which guarantees all citizens shall have the right to freedom of speech
and expression.51 In the case of Romesh Thappar v. The State of Madras,52 the interpretation
of freedom of speech and expression was delivered. The Supreme Court held that a law that
authorizes an executive authority to impose restrictions on freedom of speech goes against a
constitutional right. The right in subclause (a) is not merely a right of speech and expression
but a right to the freedom of speech and expression. The enumeration of other rights is not in
reference to freedom.53 The freedom of speech under Article 19(1)(a) includes the right to
express one’s views and opinions on any issue through any medium, e.g., by word of mouth,
writing, printing, picture, film, movie, etc. It thus includes the freedom of communication and
the right to propagate or publish an opinion.54

44
Article 14, COI.
45
Shayara Bano v. UOI & Ors. 2017 SCC Online SC 963; Joseph Shine v. UOI, 2018 SCC Online SC 1676;
Navtej Singh Singh Jauhar v. UOI, 2018 SCC Online SC 1350; Maneka Gandhi v. UOI, (1975) 1 SCC 248; E.P.
Royappa v. State of Tamil Nadu, 1974 AIR 555.
46
Safiya Sultana v. Stae of U.P 2021 SCC Online All 19; Lakshmi Kant Pandey v. Union of India (1984) 2 SCC
244; R. Rajagopal and Ors. v. State of Tamil Nadu and Ors. (1994) 6 SCC 632; Shafin Jahan v. Ashokan K.M.and
Ors. (2018) 16 SCC 368.
47
State of West Bengal v. Anwar Ali Sarkar, 1952 SCC Online SC 1.
48
State of U.P. V. Deoman Upadhyaya, (1961) 1SCR 14.
49
(1983) 1 SCC 305: AIR 1983 SC 130.
50
(1984) 3 SCC 316: AIR 1984 SC 1361.
51
Article 19(1)(a), COI 1949.
52
1950 SCC Online SC 19.
53
Dharam Dutt V. UOI, (2004) 1 SCC 712: AIR 2004 SC 1295.
54
M.P. Jain, Indian Constitutional law, 8th Edition, 2018, EBC.

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[¶17] The casting of a vote also comes under the domain of Article 19(1)(a),55 by casting the
vote, an individual also expresses their thought to elect the representative of their own choice.
In the case of Anoop Baranwal v. UOI (Election Commission), the court held that casting a
vote is a fundamental right. Therefore, the blanket ban on casting the vote by prisoners violates
Article 19(1)(a).

[¶18] In light of the above argument presented, it is evident that the blanket ban on under-trial
prisoners casting their votes in Zendia’s election law raises serious constitutional, democratic,
and equality concerns. The petitioner urges the court to carefully consider these arguments in
the pursuit of justice and the protection of fundamental rights.

Hence, it is humbly submitted that the blanket ban on under trial prisoners casting their votes
in Zendia’s election law violates their constitutional rights.

ISSUE 3: WHETHER INCARCERATED INDIVIDUALS RETAIN THE RIGHT TO

CONJUGAL COHABITATION, AND TO WHAT EXTENT SUCH RIGHTS CAN BE
CURTAILED?

[¶18] It is humbly submitted that incarcerated individuals retain the rights to conjugal visits,
and the curtailment of such rights shouldn’t abridge or violate any other rights (whether
constitutional or human). To that effect, the petitioner seeks to establish that: [3.1] Incarcerated
individuals have a right to conjugal visits; [3.2] Restriction shall not be such that it curtails the
right to conjugal visits; and [3.3] Incarcerated individuals have rights to limited periods of
conjugal visitation.

3.1. Incarcerated individuals have a right to conjugal visits

[¶19] Conjugal right means “the rights that are the recognized inherent rights of married
couples in society.56” During incarnation, conjugal rights can be enjoyed by the prisoner if the

55
Anoop Baranwal v. UOI Election Commission 2023 SCC Online SC 216.
56
Rachel Wyatt, “Male Rape in U.S. Prisons: Are Conjugal Visit the answer; Case Western Reserve Journal of
International Law, Vol. 37, Issue 2, 2006, pp. 579-614, at p. 598.

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state has provisions for allowing a ‘conjugal visit’ in jails. A conjugal visit means “when a
prisoner is allowed to spend some time in privacy with his spouse and family members in the
precinct of Jail.57’ Mississippi was the first state to allow for conjugal visits to occur in
prisons58. Prisoners of both sexes were permitted to have three-day, two-night family visits.59
Since the commencement of the Constitution, from the Kesavananda Bharti60 case to the
Maneka Gandhi61 case not to forget the death of Ajmal Kasab, laws have been making their
way towards justice and goodness, which almost engrossed the attention of our esteemed
legislative body as well as conjugal rights.

[¶20] In the case of Sunil Batra v. Delhi Administration and Others,62 Mr. Justice V.R. Krishna
Iyer pronounced: “Prisoners have enforceable liberties, devalued maybe but not demonetized,
and under our basic scheme. Prison power must bow before judge power if fundamental
freedoms are in jeopardy.” No one shall be subjected to arbitrary interference with his privacy,
family, home, or correspondence,63 “Every human being has the inherent right to life. This
right shall be protected by law. No one shall be arbitrarily deprived of his life.”64

[¶21] Furthermore, considering the legal scenario in Zendia, the petitioner could underscore
the constitutional framework's role in recognizing the right to conjugal visits, drawing parallels
to relevant cases such as:

[¶22] In the case of Jasvir Singh and Anr v. State of Punjab and others,65 it was held that “the
right to procreation is available to prisoners as well. The court finally established that Article
21, which is available to prisoners, includes their right to conjugal visits or artificial
insemination. In the case of Meharaj Singh v. State of Tamil Nadu and others,66 the court stated
that conjugal rights are a very important aspect of a man’s right to life. And also upheld that
the right to conjugal visit is within the ambit of the right to life of prisoners, and therefore
prisoners are entitled to the same.

57
Dr. Shruti Goyal, “Conjugal Rights of Prisoners” Bharti Law Review, April-June, 2018, pp. 57-73, at p. 60.
58
IRJMSH, “Conjugal Rights of Prisoners: Important Does not mean farewell to fundamental right, Vol -7 Issue
12, 2016, ISSN 277-9809 Online, p. 5.
59
Supra Note at 41.
60
Kesavananda Bharti case (1973) 4 SCC (225); Golaknath v. State of Punjab AIR 1967 SC 1643.
61
1978 SCR (2) 621.
62
1978 SCC 494: 1979 SCC (Cri) 155.
63
Article 12, UDHR 1948.
64
Article 6(1), ICCPR, 1966.
65
(1978) 4 SCC 494: 1979 SCC (Cri) 155.
66
1994 SCC (5) 188.

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[¶23] The restitution of conjugal rights violates equality and the right to life.67 In the case of
Kharak Singh v. State of U.P.68 Justice, Subba Rao stated that “any definition of the right to
privacy must encompass and protect the personal intimacies of the home, family, marriage,
motherhood, procreation, and child-rearing.” Rights of conjugation come after the completion
of marriage, the marriage that comes under the ambit of the right of life. In the case of D.
Bhuvan Mohan Patnaik and Others v. State of Andhra Pradesh and Others,69 it was declared
that convicts cannot be denied the protection of fundamental rights that they possess merely
because of their conviction. “The Supreme Court expanded the expression “personal liberty”
embedded in Article 21 of the constitution, in the context of the right to detenue and it held that
the prisoner or detenue has all the fundamental rights and other legal rights available to a free
person, save those which are incapable of enjoyment because of incarceration.70”

3.2 Restriction shall not be such that it curtails the right to life

[¶24] It is contended that the Right to Life “no person shall be deprived of his life or personal
liberty except according to procedure established by law.”71 Convicts are not, by mere reason
of their conviction, denuded of all the fundamental rights that they otherwise possess,72. In the
case of Munn v. Illinois,73 Justice Field observed that the term ‘life’ here used something more
than a mere animal existence. Thus, it embraces within itself not only the physical existence
but also the quality of life. In Maneka Gandhi v. Union of India.74 It was held that the right to
life embodied in Article 21 of the Indian Constitution, is not merely a physical right but also
includes within its ambit the right to live with human dignity. Moreover, relating these
arguments to the specific challenges faced by Zendia, the petitioner may emphasize the
constitutional protection of life and dignity, particularly in the context of the concerning rise in
crime rates, crimes against women and children, and the decline in conviction rates.

67
Article 21, COI, 1950.
68
AIR 1963 SC 1295.
69
AIR 1974 SC 2092.
70
Francis Coralie Mulin v. The Administrator, Union Territory of Delhi; AIR 1981 SC 746.
71
Article 21, COI, 1950.
72
Sunil Batra v. Delhi Administration and Ors. 1978 AIR 1675, 1979 SCR (1) 392
73
94 U.S. 113 (1876).
74
AIR 1978 SC 597.

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[¶25] In the case of Francis Coralie vs. Union Territory of Delhi,75 it was held that the right to
live includes the right to live with human dignity with the bare necessities of life. In the case of
State of Andhra Pradesh v. Challa Ram Krishna Reddy,76 it is also relied upon to urge that a
prisoner, whether a convict, undertrial, or a detenue, continue to enjoy the fundamental right
to life.

[¶26] In the case of State of A.P. v. Challa Ramkrishna Reddy & Ors.,77 the Supreme Court
held that a prisoner is entitled to all his fundamental rights unless his liberty has been
constitutionally curtailed. In the case of Charles Wolff v. McDonnell78 and DBM Patnaik v.
State of Andhra Pradesh,79 court stated that it must be realized that a prisoner is a human being
as well as a natural person or a legal person. If a person gets convicted of a crime, it does not
reduce him to the status of a non-person whose rights could be snatched away at the whims of
the prison administration. In the case of Charles Sobaraj v. Superintendent Central Jail Tihar,80
it was ruled that all the rights available to prisoners under Articles such as 14, 19, and 21 are
limited but cannot be said to be static. They are bound to, or rather will rise to, new human
heights when challenging circumstances arise.

[¶27] In the case of Praveen Kohli v. Smt. Komal Alias Kamlesh,81 the court denied the
visitation right for the respondent’s wife. In case of Mini v. Commissioner of Police82 also held
that they opposed the right to visitation.

[¶28] Furthermore, to bolster this argument within the Zendian context, the petitioner might
reference the specific legal challenges presented by Mr. X’s case, advocating for human rights
and challenging election laws, thereby weaving the broader theme of prisoners’ rights into the
intricate tapestry of Zendia’s legal, social, and political issues.

3.2. Incarcerated Individuals have rights to Limited Periods of Conjugal Visitation.

[¶29] Conjugal visitation rights allow prison inmates and spouses to visit privately and have
sexual relations. Many countries, particularly in Latin America, permit conjugal visits.83 In the

75
1981 SCR (2) 516.
76
(2000) 5 SCC 712C.
77
(2000) 5 SCC 712.
78
418 U.S. 539 (1974) .
79
1975 SCC (3) 185.
80
AIR 1978 SC 1514.
81
2016 SCC Online Del 4400.
82
2016 SCC Online Ker 28812.
83
A 1963 survey revealed that 39 countries prohibit conjugal visitation and 22 permit it. C. HOPPER, SEX IN
PRISON 5-6 (1969).

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case of Meharaj v. State,84 the court held that even though conjugal visit could not be held as a
fundamental right, the prisoners would still be eligible to avail leave for the conjugal visit if
there were extra ‘extraordinary reasons’ such as ‘infertility treatments.’

[¶30] The petitioner demands conjugal cohabitation,85 which will be for a limited period. The
above landmark judgment established that prisoners have the right to conjugal visitation, so
from the above argument, the petitioner demands limited conjugal visitation.

Hence, it is humbly submitted that incarcerated prisoners retain the right to conjugal visits, and
that any restrictions on such rights should not jeopardize other rights

ISSUE-4: WHETHER MANDATORY HIV TESTING FOR PRISONERS ALIGN

WITH THEIR FUNDAMENTAL RIGHTS, AND WHAT MEASURES CAN BE
TAKEN TO PROTECT THE RIGHTS OF HIV+ PRISONERS?

[¶31] It is humbly submitted that mandatory HIV testing for prisoners aligns with their
fundamental rights, and measures must be taken to protect the rights of HIV+ prisoners. To
that effect, the petitioner seeks to establish that [4.1] Mandating HIV testing for prisoners is a
justifiable restriction on privacy, driven by the state’s compelling interest curbing HIV
transmission in prisons and the broader community. [4.2] HIV testing forms part of the right to
health as enshrined under Article 21.

4.1 Mandating HIV testing for prisoners is a justifiable restriction on privacy, driven by the
state's compelling interest in curbing HIV transmission in prisons and the broader
community.
[¶32] The petitioner submits that mandatory HIV testing for prisoners is a necessary measure
for their right to health, which enables the early diagnosis and treatment of HIV infection and
the provision of appropriate medical care and support services for the HIV+ prisoners

84
1994 SCC (5) 188.
85
Moot Prop ¶.

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[¶33] In Paschim Banga Khet Mazdoor Samity v. State of West Bengal 86, the Supreme Court
held that the right to health under Article 21 of the Constitution is an integral part of the right
to life and that the state is under a constitutional obligation to provide adequate medical
facilities and services for the people, especially the poor and the vulnerable sections of the
society.
[¶34] In State of Punjab v. Ram Lubhaya Bagga,87 the Supreme Court held that the right to
health under Article 21 of the Constitution is an essential component of the right to life and
that the state is under a constitutional duty to ensure the availability and accessibility of quality
health care and medicines for the people, especially the disadvantaged and marginalized groups
of the society.
[¶35] In GUIDELINES ON HIV AND TB INTERVENTIONS IN PRISONS AND OTHER
CLOSED SETTINGS88, a document prepared by NACO, it was stated that mandatory HIV
testing for prisoners is a necessary measure for their right to health, which enables the early
diagnosis and treatment of HIV infection and the provision of appropriate medical care and
support services for the HIV+ prisoners, and the state can provide HIV and TB interventions
for prisoners as per the guidelines issued by NACO.

4.2. HIV testing forms part of the right to health as enshrined under Article 21.

[¶36] Right to life and personal liberty ‘No person shall be deprived of his life of personal
liberty except according to procedure established by law’.89 ‘Right to life is one of the basic
human rights, and not even the state has the authority to violate that right.’90 ‘The word life in
Article 21 means a life of dignity and not just an animal life.’91 It is well settled that the right
to life guaranteed under Article 21 is not mere animal existence. It is a right to enjoy all the
facilities of life. As a necessary corollary, the right to life includes the right to a healthy life.92

86
Paschim Banga Khet Mazdoor Samity v. State of West, AIR 1996 SC 2426.
87
State of Punjab v. Ram Lubhaya Bagga , AIR 1998 SC 1703.
88
GUIDELINES ON HIV AND TB INTERVENTIONS IN PRISONS AND OTHER CLOSED SETTINGS,
National AIDS Control Organisation, Ministry of Health and Family Welfare, Government of Zendia, 2018,
available at.
http://naco.gov.in/sites/default/files/Guidelines%20on%20HIV%20and%20TB%20Interventions%20in%20Pris
ons%20and%20Other%20Closed%20Settings.pdf.
89
COI, 1950.
90
Siddharam Satilngappa Mhetre v. State of Maharashatra, JT 2010 (13) SC 247: (2010) 12 SCALE 691.
91
Budhadev Karmaskar v. State of West Bengal AIR2011 SC 2636.
92
M. Vijay v. Chairman and Managing Director.

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In the case of Pt. Paramananda Kataria v. Union of India,93 the apex court again reiterated the
same observation that Article 21 of the Constitution casts an obligation on the state to preserve
and protect life. In the case of State of Punjab v. M.S. Chawla,94 the Supreme Court held that
the right to a healthy life is a fundamental right. The citizen’s right to healthy life and the
state’s compelling constitutional obligation to protect other citizens from AIDS present a
situation where the right to privacy and public interest conflict with each other.

[¶37] HIV-AIDS patients come in conflict with the rights of the other citizens as well as the
duty of the state under Article 47,95 Which Duty of the state to raise the level of nutrition and
the standard of living and to improve public health. The state shall regard the raising of the
level of nutrition and the standard of living of its people and the improvement of public health
as among its primary duties, and, in particular, the state shall endeavor to bring about the
prohibition of consumption except for medicinal purpose of intoxicating drinks and drugs that
are injurious to the health of the citizens of India to endeavor to improve the health of the
citizen.

Hence, it is humbly submitted that HIV testing of prisoners is one of the major aspects of their
fundamental rights and measures taken on the light of it.

93
1989 SCR (3) 997.
94
1997 (2) SCC 83; Sadhu R. Pall v. State of Punjab, 1994 (1) R.S.J. 335.
95
Constitution of India, art. 47.

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 NHRC SLS NAGPUR NATIONAL MOOT COURT COMPETITION, 2024

PRAYER

In light of the facts stated, arguments advanced and authorities cited, the Petitioner, humbly
prays before the Hon’ble Court, to be graciously pleased to:

1. Allow the writ petition filed by the Petitioner as it is maintainable under Article 32 of the
Constitution of Zendia.

2. Strike down the blanket ban on under-trial prisoners casting their votes in Zendia's election
law as it violates their constitutional rights.

3. Uphold the right of incarcerated individuals to conjugal cohabitation, subject to reasonable

restrictions and conditions imposed by the prison authorities.

4. Mandatory HIV testing for prisoners align with their fundamental rights and separate
arrangements must be made for the prisoners who are HIV+.

AND / OTHERWISE

PASS ANY OTHER ORDER OR DIRECTION THAT THIS HON’BLE COURT MAY DEEM FIT
IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE FOR THIS ACT OF
KINDNESS, THE COUNSELS SHALL FOREVER PRAY.

The Petitioner further pray that the Court may make any such order as it may deem fit in
terms of equity, justice and good conscience.

SD/-

(Counsel for the Petitioner)

TC – 30A

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