TEAM CODE: 66

LATE SHRI ABHAY BHARADWAJ MEMORIAL NATIONAL MOOT COURT

COMPETITION, 2022

BEFORE THE HON’BLE SUPREME COURT OF CLOUD9

WRIT PETITON NO ___ / 2022

UNDER ARTICLE 32 OF THE CONSTITUTION OF CLOUD9

SHUMAAN ...……………………………………………………………..PETITIONER 1

v.

STATE OF PAREL………………………………………………………….RESPONDENT 1

CLUBBED WITH

CRIMINAL LAW AWARENESS GROUP MARWADI UNIVERSITY … PETITIONER 2

v.

UNION OF CLOUD9……….……………………………………………. RESPONDENT 2

UPON SUBMISSION TO
THE HON‟BLE CHIEF
JUSTICE AND HIS
COMPANION
 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

JUSTICES OF THE
SUPREME COURT OF
RAMBO
UPON SUBMISSION TO
THE HON‟BLE CHIEF
JUSTICE AND HIS
COMPANION
JUSTICES OF THE
SUPREME COURT OF
RAMBO
UPON HUMBLE SUBMISSION BEFORE THE HON’BLE SUPREME COURT OF
CLOUD9

MEMORIAL ON BEHALF OF THE RESPONDENT

CONTENTS

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

LIST OF ABBREVIATION...............................................................................................................2
INDEX OF AUTHORITIES...............................................................................................................3
CASE LAWS....................................................................................................................................3
BOOKS.............................................................................................................................................5
ONLINE ARTICLES........................................................................................................................5
STATUES.........................................................................................................................................6
DICTONARIES................................................................................................................................6
1. Black's Law Dictionary, Pocket Edition, 10th Edition................................................................6
ONLINE DATABASE......................................................................................................................7
STATEMENT OF JURISDICTION..................................................................................................8
STATEMENT OF FACTS..................................................................................................................9
ISSUES RAISED................................................................................................................................11
1. Whether the reverse onus clause crafted in Section GG of the Cloud9 Vidhi Virudh Dharma
Samparivartan Pratishedh Adhyadesh, 2022 is in consonance with the Constitution of Cloud9......11
2. Whether the directions passed to reveal passwords of personal electronic possessions are valid
in light of Article 20(3)....................................................................................................................11
SUMMARY OF ARGUMENTS.......................................................................................................12
ARGUMENTS ADVANCED............................................................................................................13
PRAYER............................................................................................................................................32

UPON SUBMISSION TO
THE HON‟BLE CHIEF
JUSTICE AND HIS
COMPANION
JUSTICES OF THE
SUPREME COURT OF
RAMBO
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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

UPON SUBMISSION TO
THE HON‟BLE CHIEF
JUSTICE AND HIS
COMPANION
JUSTICES OF THE
SUPREME COURT OF
RAMBO

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

LIST OF ABBREVIATION

01. W.P. Writ Petition

02. IPC Indian Penal Code

03. Ltd. Limited

04. M.P. Madhya Pradesh

05. Mad. Madras

06. v. Versus

07. Ors. Others

08. Pg. Page

09. Pvt. Private

10. r/w Read with

11. Retd. Retired

12. S.C. Supreme Court

13. S.C.C. Supreme Court Cases

14. S.C.R. Supreme Court Reporter

15. Sec. Section

16. U.P. Uttar Pradesh

17. Hon’ble Honorable

18. Vol. Volume

19. UOI Union of India

20. A.I.R All India Report

21. Cr.P.C. Code of Criminal Procedure

22. HC High Court

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

INDEX OF AUTHORITIES

CASE LAWS

1. Rishi Kesh Singh And Ors. vs The State AIR 1970 All 51, 1970 CriLJ 132
2. Queen- Empress v Ramana MANU/TN/0035/1889
3. Ashraf Ali v Emperor MANU/WB/0218/1917
4. Noor Aga v State of Punjab  ( 2008 ) 16 SCC 417
5. P. N. Krishnalal v. Government of Kerala 1995 AIR SCW 1325
6. Juhi Gupta, “Interpretation of Reverse Onus Clauses”, 5 NUJS Law Review, 2012,
pp. 49-64, at 63
7. Law Commission Report No. 47- The Trial and Punishment of Social and Economic
Offences
8. 91st Law Commission Report's on Dowry Death and Law Reforms
9. Article 25 of the Constitution of India
10. Arun Ghosh vs. State of West Bengal AIR 1970 SC 1228
11. Rev. Stainislaus vs. State of Madhya AIR 1977 SC 908
12. International Covenant on Civil and Political Rights (ICCPR), 16 December 1966,
Article 18, United Nations
13. People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301
14. Sunil Batra (2) v. Delhi Administration, AIR 1980 SC 1579 
15. Gramophone Company Of India Ltd vs Birendra Bahadur Pandey, 1984 SCR (2)
664. 
16. M/s. Seema Silk & Sarees & Anr. v. Directorate of Enforcement & Ors, 2008 (7)
SCALE 624
17. Hiten P. Dalal v. Bratindranath Banerjee,(2001) 6 SCC 16 ; M.S. Narayana Menon v.
State of Kerala, (2006) 6 SCC 39
18. K. Veeraswamy v. Union of India, [1991] 3 SCC 655
19. Brown v. Stott [2003] 1 A.C. 681 at page 704, per Lord Bingham. 
20. R. v. DPP ex parte Kebilene [2000] 2 A.C. 326 at page 384
21. Justin Renjith v. Union of India 2020 (4) Crimes 49 (Ker.)
22. Shaikh Zahid Mukhtar v. State of Maharashtra (2017) 2 AIR Bom R 140
23. Dharampal Singh v. State of Punjab (2010) 9 SCC 608
24. Bhola Singh v. State of Punjab (2011) 11 SCC 653
25. Ram Gulam Chaudhary and Ors. v. State of Bihar AIR 2001 SC 2842
26. State of HP v Shree Kant Shekari, AIR 2004 SC 4404
27. Justice K.S.Puttaswamy (Retd) v. The Union of India AIR 2017 SC 4161
28. State of West Bengal v. Mohd. Omar, AIR 1989 SC 1785
29. R vs S & Anr. [2008] EWCA Crim 2177
30. M. P. Sharma And Others vs Satish Chandra 1954 AIR 300
31. Tofan Singh vs. State of Tamil Nadu:MANU/SC/0797/2020
32. The State Of Bombay vs Kathi Kalu Oghad 1961 AIR 1808
33. Ritesh Sinha vs State Of U.P.& Anr 2019 SCC OnLine SC 956
34. Virendra Khanna vs. State of Karnataka and Ors. MANU/KA/0728/2021
35. Dastagir v. State of Madrass, AIR 1960 SC 756
36. Ram Swarup v. State of Uttar Pradesh, AIR 1958 All 119, 

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37. Subbiah v. Ramaswami, AIR 1970 Mad 85, 

38. Pokhar Singh v. State of Punjab, AIR 1958 Punj 294
39. Ajay Bhardawaj v. Union of India W.P.(Crl.) No. 231/2019
40. Selvi v. State of Karnataka AIR 2010 SC 1974
41. P Gopalakrishnan alias Dileep & Ors v. State of Kerala & Ors Crl.MC.No.758 OF
2020(D)
42. Dinesh Dalmia vs State By Spe 2006 CriLJ 2401
43. P. Chidambaram v. Directorate of Enforcement 2019CriLJ4754
44. Santokben Sharmanbhai Jadeja v. State of Gujarat  2008CriLJ68

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1. 2 DD Basu, CODE OF CRIMINAL PROCEDURE (6th ed.

LexisNexis (2017).

2. 2 DD BASU, SHORTER CONSTITUTION OF INDIA

(16th ed.LexisNexis 2021).

3. 2 RA NELSON, INDIAN PENAL CODE (11th ed. LexisNexis

2015).
4. 2 SANJIVA ROW & M L SINGHAL, CODE OF
CRIMINAL PROCEDURE, (4th ed. Universal Law Publishing
2016)
5. VN SHUKLA’S, CONSTITUTION OF INDIA, (13th ed.
Eastern Book Company 2019).

6. Batuk Lal, The Law of Evidence, 2018th ed Central Law Agency

BOOKS

ONLINE ARTICLES

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1. India Tv News Desk, “UP Love-Jihad Law: It's not about Hindus or Muslims only, says CM
Yogi Adityanath”, India TV, Dec. 23, 2020, available at:
https://www.indiatvnews.com/news/india/up-love-jihadlaw-unlawful-religion-conversion
2. Atul Chandra, “SC Rebuke has its Effect: UP Mulls Law to Regulate Religious Places”, The
Leaflet, Jan. 9, 2021, available at: https://www.theleaflet.in/sc-rebuke-has-its-effect-up-mulls-
law-to-regulate-religiousplaces.
3. Nirmalya Chaudhuri, “Dilution of the Presumption of Innocence Principle in India” Oxford
Human Rights Hub: http://ohrh.law.ox.ac.uk/dilution-of-thepresumption-of-innocence-
principle-in-india/
4. Pamela R. Ferguson, “The Presumption of Innocence and its Role in the Criminal Process”
Criminal Law Forum (2016) 27, 131: https://link.springer.com/content/pdf/10.1007/s10609-
016-9281-8.pdf
5. Dennis, ‘Reverse Onus Clauses And The Presumption Of Innocence: In Search Of Principle’
[2005] Crim. L.R. 901

STATUES

S. NO.
1. The Indian Evidence Act 1872
2. The Constitution of India,
3. The Code of Criminal Procedure, 1973
4. Narcotic Drugs and Psychotropic Substances Act of 1985

5. Protection of Children from Sexual Offences Act, 2012

S. NO. INTERNATIONAL
STATUES
1.  Universal Declaration of Human Rights (UDHR) 1948
2. International Covenant on Civil and Political Rights, ICCPR, 1966

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DICTONARIES

1. Black's Law Dictionary, Pocket Edition, 10th Edition

ONLINE DATABASE

S. NO.
1. AIR Online (All Indian Reporter)
2. EBC
3. Jstor
4. Live law
5. Manupatra
6. SCC Online

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STATEMENT OF JURISDICTION

SHUMAAN v. STATE OF PAREL

It is most humbly submitted that the petitioner has approached this Hon’ble Court under
Article 321 of the Constitution of Cloud9.

THE CRIMINAL JUSTICE AND POLICE ACCOUNTABILITY GROUP v. UNION

OF CLOUD9

It is most humbly submitted that the petitioner has approached this Hon’ble Court under
Article 32 of the Constitution of Cloud9.

The Hon’ble Supreme Court has accepted and clubbed all the above petitions and the same is
listed for hearing.

1
Article 32- Remedies for enforcement of rights conferred by this part:
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of rights conferred by
this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or 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 clauses (1) and (2), Parliament may by
law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

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STATEMENT OF FACTS

BACKGROUND

Cloud9 became independent on 15th August 1997. It has a population of over 1.1 billion
majority of whom belonged to a religious sect called Undus. They are staunch believers of
the occult, worshipped natural forces and have a strict policy against forcible/induced
conversion.

Parliament of Cloud9 also enacted the Cloud9 Criminal Major (Application of Indian Laws)
Act, 2001 by virtue of which it adopted the Indian Penal Code, 1860, the Criminal Procedure
Code, 1973, the Indian Evidence Act, 1872 were made applicable to Cloud9 mutatis
mutandis.
The term ‘secularism’ was included in the preamble of the Constitution of Cloud9 in the
2000’s. In response to this several states started to enact laws prohibiting religious
conversions. There are currently eight such states. Efforts to make such laws at the national
level failed due to lack of support in the parliament.
The president of Cloud9 promulgated the Cloud9 Vidhi Virudh Dharma Samparivartan
Pratishedh Adhyadesh, 2022 under Article 123 of the Constitution of Cloud9 which made
unlawful religious conversion a non-bailable and cognizable offence.
Sections of the ordinance prohibit people from converting religion by marriage, or by other
unlawful means as described in the ordinance. It also places the burden of proof on the
accused through its reverse onus clause.
Several thousands of people came on the streets to protest the promulgation of thE ordinance
as they believed that while the laws may be neutral, it cannot be viewed separately from the
social and political context of Cloud9. They maintain that the ordinance is made to punish the
converted and the convertor alike which is wrong.

INSTANT MATTER
Shumaan was caught in the crosshairs of the law enforcement agencies during the protest.
The police alleges that Shumaan’s phone is important for advancing the investigation. They

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

went before the trial court asking for court orders to direct Shumaan to unlock his mobile
phone and grant access to email accounts as Shumaan, they say, had refused to cooperate.
The court passed such orders and Shumaan appeared to have complied.
The police then moved another application before the trial court asking for directions to
subject Shumaan to a polygraph test to confirm the mobile/email passwords claiming that
Shumaan had been lying during the investigation The court allowed this application as well.

Shumaan filed a petition against both the orders alleging that they violate Articles 20(3) and
21 of the Constitution. The High Court of Parel opined that those passcodes or biometrics
wouldn’t amount to a testimonial compulsion.

FILING OF PETITION BEFORE THE HON’BLE SUPREME COURT BY PETITIONER 1

Shumaan has now moved the Supreme Court asserting that any direction to reveal a password
to unlock a smartphone would amount to a testimonial compulsion.

FILING OF PETITION BEFORE THE HON’BLE SUPREME COURT BY PETITIONER 2

Criminal Justice and Police Accountability, a criminal law awareness group run by the
students of Cloud9 Marwadi University has filed a Public Interest Litigation before the
Supreme Court challenging the constitutionality of Section GG of the Cloud9 Vidhi Virudh
Dharma Samparivartan Pratishedh Adhyadhesh, 2022.

CLUBBING OF PETITIONS

A constitution bench of the Supreme Court has decided to admit, club and decide both the
petitions.

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

ISSUES RAISED

1. Whether the reverse onus clause crafted in Section GG of the Cloud9 Vidhi Virudh
Dharma Samparivartan Pratishedh Adhyadesh, 2022 is in consonance with the
Constitution of Cloud9.

2. Whether the directions passed to reveal passwords of personal electronic possessions

are valid in light of Article 20(3).

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SUMMARY OF ARGUMENTS

1. Whether the reverse onus clause crafted in Section GG of the Cloud9 Vidhi
Virudh Dharma Samparivartan Pratishedh Adhyadesh, 2022 is in consonance
with the Constitution of Cloud9.

It is humbly contended that presumption of innocence is neither a statutory nor a

constitutional right and is used to tackle cases of socio-economic/public welfare
offence like unlawful religious conversion. The reverse onus clause expedites the
process of a trial and helps in attaining fast justice. It satisfies the four-fold test laid
down in the case of Shaikh Zahid Mukhtar v. State of Maharashtra and is in line with
Articles 14, 15, 20(3), 21 and 25 of the Constitution of Cloud9. Therefore, Section
GG of the ordinance is valid.

2. Whether the directions passed to reveal passwords of personal electronic

possessions are valid in light of Article 20(3).

It is humbly submitted that first order which directed Petitioner 1 to provide

passwords to his mobile phone and e-mail accounts was necessary to further the
process of investigation. It is in compliance with Article 20(3) of the Constitution and
is validated by legal provisions which empower the court to pass orders for an
accused to disclose passwords. It is also not violative of the Right to Privacy. Thus,
the first order is valid.

There is a need to introduce scientific methods of collection of evidence in the justice

system such as the polygraph test. The second order of the trial court which directed
the petitioner to be subjected to a polygraph test is in line with the Right Against Self-
Incrimination given under Article 20(3) and with Selvi v. State of Karnataka. Thus,
the second order is valid as well.
Since there is nothing wrong with the directions legally and the decision of the High
Court of Parel should be upheld. The court has no authority to interfere in the process
of investigation until it is in consonance with law as in the current case. Therefore, the
petitions filed before the court are not maintainable.

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ARGUMENTS ADVANCED

1. Whether the reverse onus clause crafted in Section GG of the Cloud9 Vidhi Virudh
Dharma Samparivartan Pratishedh Adhyadesh, 2022 is in consonance with the
Constitution of Cloud9.

1.1. Presumption of innocence is neither a statutory nor a constitutional right.

1.1.1. Section GG of the ordinance states:

The burden of proof as to whether a religious conversion was not effected through
misrepresentation, force, undue influence, coercion, allurement, or by any fraudulent
means or by marriage, lies on the person who has caused the conversion and, where
such conversion has been facilitated by any person, on such person.2

This section thus establishes reverse onus and puts the burden of proof on the
accused.

1.1.2. In cases of reverse onus, the court presumes the mens rea of the accused once the
prosecution proves the actus reus beyond reasonable doubt by establishing certain
fundamental facts. The onus of proving the absence of mens rea of the accused thus
falls on the accused himself.3
1.1.3. The notion of presumption of innocence for the accused was not created by any
legislation in India, such as the Indian Evidence Act of 1872, and is also not
mentioned in the Constitution of India. It was rather created by Indian courts through
precedents. Like in the case of Queen-Empress v Ramana4 and Ashraf Ali v Emperor.5
1.1.4. As a result, in Cloud9, even after being an important legal principle, the right of an
accused person to be presumed innocent until proven guilty is neither a constitutional
right nor a statutory right. Therefore, there exists no binding legal basis for the
principle of presumption of innocence to be compulsorily applied in all cases. In Noor

2
Moot Proposition Page 7
3
Rishi Kesh Singh And Ors. vs The State AIR 1970 All 51, 1970 CriLJ 132
4
Queen- Empress v Ramana MANU/TN/0035/1889
5
Ashraf Ali v Emperor MANU/WB/0218/1917

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Aga v State of Punjab6, the Supreme Court of India held that reverse onus clauses
were constitutional even when they impose a legal burden of establishing innocence
upon the accused.
1.1.5. In P. N. Krishnalal v. Government of Kerala 7, the Indian court held that the
presumption of innocence is not a constitutional guarantee and can be dispensed with
by legislative imperatives and action.

1.1.6. The counsel humbly submits that the presumption of innocence is thus mainly
revoked in two cases:
1. when there is an express statutory provision reversing the burden of proof, and
2. when the accused appeals against a lower court judgment where his presumption
is that of guilt and not innocence.8

1.2. Unlawful religious conversion is a socio-economic/public welfare offence.

1.2.1. In its 47th report, the Law Commission of India9 recommended that there are certain
offences that affect and damage society, and so it is necessary to remove the burden of
proof for the prosecution for such offences. In order to avoid crimes that the Indian
judiciary has identified as public welfare offences, reverse onus clauses have been
declared necessary. In crimes where deterrence is more important, the onus of proof is
usually transferred to secure a guilty sentence. Thus, explicit legislation clauses are
frequently drafted to address significant socio-economic offences that directly or
indirectly jeopardise public welfare.
1.2.2. Dowry death is an example which is seen as a serious crime that has a negative impact
on societal morality, and the prohibition of cruelty due to dowry demands is
warranted. It is thus classified as a socio-economic offence crime in the second
category according to the 47th Law Commission Report. Dowry death was enacted as
a crime with presumption of guilt in the Criminal Law Amendment Act No. 43 of
1986, as part of the 91st Law Commission Report's 10 implementation.

6
Noor Aga v State of Punjab ( 2008 ) 16 SCC 417
7
P. N. Krishnalal v. Government of Kerala 1995 AIR SCW 1325
8
Juhi Gupta, “Interpretation of Reverse Onus Clauses”, 5 NUJS Law Review, 2012, pp. 49-64, at 63
9
Law Commission Report No. 47- The Trial and Punishment of Social and Economic Offences
10
91st Law Commission Report's on Dowry Death and Law Reforms

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1.2.3. Similarly, unlawful religious conversion by misrepresentation, force, undue influence,

coercion, allurement or by any fraudulent means or by marriage not only affects the
individual but it also harms the society at large, thus it is a socio-economic offence
and is against public welfare as it violates the fundamental right to freedom of religion
under Article 2511 of the Cloud9’s constitution. The Supreme Court of India, in
reference to the Arun Ghosh vs. State of West Bengal12 verdict of 1950, holds that an
attempt to raise communal passions through forcible conversions would be a breach
of public order and affect the community at large.
1.2.4. In Rev. Stainislaus vs. State of Madhya Pradesh13 the Supreme Court of India
analyzed Article 25 to hold that the Article does not grant the right to convert other
persons to one’s own religion but to transmit or spread one’s religion by an exposition
of its tenets. What is freedom for one is freedom for the other in equal measure and
there can, therefore, be no such thing as a fundamental right to convert any person to
one’s own religion,” the court interpreted.
1.2.5. Article 18 of the International Covenant on Civil and Political Rights (ICCPR)14
requires signatories, including the Indian government, to ensure that no one is
subjected to coercion that restricts his or her freedom to have or adopt a religion or
belief of their choice. The freedom to express one's religion or views may be limited
only by legal restrictions that are essential to maintain public safety, order, health, or
morals, as well as other people's basic rights and freedoms.
1.2.6. It is contended that Cloud9 also has a responsibility to abide by legal principles
recognised by the international community 15. Thus, the ordinance will help in
furthering the objectives of Article 18 of the ICCPR by curbing unlawful religious
conversion which is a public welfare offence.

1.3. The ordinance is in line with Articles 14, 15, 20(3), 21 or 25 of the Constitution of
Cloud9.
11
Article 25 of the Constitution of India
12
Arun Ghosh vs. State of West Bengal AIR 1970 SC 1228
13
Rev. Stainislaus vs. State of Madhya AIR 1977 SC 908
14
International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, Article 18, United Nations
15
People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301; Sunil Batra (2) v. Delhi
Administration, AIR 1980 SC 1579; Gramophone Company Of India Ltd vs Birendra Bahadur Pandey, 1984
SCR (2) 664. Also See Art 51 of the constitution of India

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1.3.1. The counsel contends that the ordinance does not assume all religious conversion as
unlawful for the purpose of establishing the reverse onus clause. The Ordinance does
not prohibit interfaith marriage; rather, it attempts to regulate the illegal component of
it for the sake of public order. Furthermore, it is argued that only marriages that are
exploited as a deception to achieve a conversion objective or vice versa are
punishable.
1.3.2. In M/s. Seema Silk & Sarees & Anr. v. Directorate of Enforcement & Ors.16, in a case
where the constitutionality of the provisions of Sections 18(2) and 18 (3) of the
Foreign Exchange Regulation Act, 1973 were questioned on the ground of infringing
the `equality clause' enshrined in Article 14 of the Constitution of India, this Court
held: A legal provision does not become unconstitutional only because it provides for
a reverse burden. The question as regards burden of proof is procedural in nature. 17
1.3.3. In K. Veeraswamy v. Union of India18, when the constitutionality of section 5 (1) (e)
and section 5 (3) of the Prevention of Corruption Act of India was challenged, the
Constitution Bench held that a statute placing the burden on the accused cannot be
regarded as unreasonable, unjust or unfair nor can it be regarded as contrary to Article
21 of the Constitution of India.
1.3.4. The Ordinance's provisions are religiously neutral and will apply equally to all
communities and so it doesn’t discriminate against any religious group. The sole
purpose of the ordinance is to uphold the Right to Freedom of Religion and
Conscience as given under Article 25 of the Cloud9’s constitution (as stated in a
paragraph above). It just strives to regulate religious freedom to the extent that it does
not impinge on the rights of other individuals and to maintain public order.

1.4. The reverse onus clause expedites the process of a trial and helps in attaining justice
faster.

1.4.1. Reverse burdens are justified as serving the same goals as the presumption of
innocence in its ordinary operation as they both aim to achieve a “fair balance

16
M/s. Seema Silk & Sarees & Anr. v. Directorate of Enforcement & Ors, 2008 (7) SCALE 624
17
Hiten P. Dalal v. Bratindranath Banerjee,(2001) 6 SCC 16 ; M.S. Narayana Menon v. State of Kerala, (2006)
6 SCC 39
18
 K. Veeraswamy v. Union of India, [1991] 3 SCC 655

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

between the general interest of the community and the personal rights of the
individual”. 19
1.4.2. It is further argued that with reverse onus, it is more convenient and easier for the
prosecution to prove the underlying fact that transfers the burden of proof. 20 Because
it is difficult for the prosecution to enter private locations such as a person's home and
conduct investigations, searches, and seizures, the inconvenience to the prosecution in
criminal cases of unlawful religious conversion is generally greater. The legislature
uses this rationale to invert the burden for the sake of expediency and judicial
economy.
1.4.3. For the same reason Section 106 of the Cloud9’s Evidence Act, 187221 statutorily
legitimizes for the establishment of an evidentiary reversal of the burden of proof in
situations where the evidence is solely within the knowledge of the accused.
1.4.4. In Rev. Stainislaus vs State Of MP & Ors (1977) 22, provisions of conversion by
inducement or allurement were considered in light of India's first two anti-conversion
legislations. The Supreme Court of India upheld the stated extent of 'allurement,'
which is remarkably similar to the existing ordinance's definition of allurement. As
emphasised in Justin Renjith v. Union of India23, Parliament is justified in reversing
the burden of proof in context of aspects which lie exclusively within the domain of
the accused’s knowledge.
1.4.5. While examining the issue of allurement and the concerns expressed by opponents of
the ordinance about its alleged misuse or abuse, it is important to remember that any
criminal or penal legislation is founded on the concepts of intent, whereas any law —
civil or criminal — is founded on the principle of causality. As a result, the notion that
a co-incidental and simple taking of a gift from a person of another faith before
conversion would void the conversion is not only false, but also risky from a legal
standpoint.

1.5. The reverse onus satisfies the four-fold test laid down in the case of Shaikh Zahid
Mukhtar v. State of Maharashtra.

19
Brown v. Stott [2003] 1 A.C. 681 at page 704, per Lord Bingham. Also see R. v. DPP ex parte Kebilene
[2000] 2 A.C. 326 at page 384, per Lord Hope.
20
 Paul Roberts, “Taking the Burden of Proof Seriously”, Criminal L. Rev. (1985) 783 at page 785. 
21
Section 106 of the Evidence Act of India, 1872
22
Supra note 13
23
Justin Renjith v. Union of India 2020 (4) Crimes 49 (Ker.)

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

1.5.1. On the basis of the fundamental rights of equality and liberty inherent in Articles 14
and 2124 of Indian Constitution, Justice Gupte in Shaikh Zahid Mukhtar v. State of
Maharashtra25 established a four-fold test to examine the legitimacy of reverse onus
clauses. The following were the four conditions that were emphasised:
1. Is the State required to prove enough basic or essential facts constituting a crime
so as to raise a presumption of balance of facts (considering the probative
connection between these basic facts and the presumed facts) to bring home the
guilt of the accused, and to disprove which the burden is cast on the accused?
2. Does the proof of these balance of facts involve a burden to prove a negative fact?
3. Are these facts within the special knowledge of the accused?
4. Does this burden, considering the aspect of relative ease for the accused to
discharge it or the State to prove otherwise, subject the accused to any hardship or
oppression?
The counsel would now submit an analysis of each of the above points with respect to
Section GG.

1.5.2. The first condition of the test requires the prosecution to establish certain basic
foundational facts which must have a rational connection with the presumed facts in
such a way that the presumed facts become highly probable. This presumption of
balance of facts is a prerequisite for presuming guilt of the accused. The Supreme
Court of India upheld the constitutionality of Sections 34 and 54 of the Narcotics
Drugs and Psychotropic Substances Act, 198526 (from here-on referred to as the
NDPS) in the case of Noor Aga Khan v. State of Punjab 27[also inder sain] by stating
that the presumption of guilt only arises when the prosecution proves certain
foundational facts which would shift the burden on the accused to rebut this
presumption. The same was upheld in Dharampal Singh v. State of Punjab 28 and
Bhola Singh v. State of Punjab29.
1.5.3. The evidence provided by the prosecution must have probative value i.e., it must
sufficiently point towards the conclusion that the accused committed the crime. Only

24
Articles 14 and 21of the Indian Constitution
25
Shaikh Zahid Mukhtar v. State of Maharashtra (2017) 2 AIR Bom R 140
26
Narcotics Drugs and Psychotropic Substances Act, 1985, Act of the Parliament of India
27
Noor Aga Khan v. State of Punjab Supra note 5
28
Dharampal Singh v. State of Punjab (2010) 9 SCC 608
29
Bhola Singh v. State of Punjab (2011) 11 SCC 653

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

when the evidence with probative values is established can it be justified for the
accused to disprove this presumption of guilt.
In the NDPS, this standard of proving essential facts would be fulfilled once the
prosecution establishes that (i) there was contraband and (ii) the accused had
conscious knowledge of the same.
In Justin Renjith v. Union of India30 the Kerala High court talked about the
importance of proving certain foundational facts such as the age of the victim, and the
occurrence of the alleged incident in order to uphold the reverse onus clause in the
Protection of Children from Sexual Offences Act, 2012.31
1.5.4. The counsel contends that Section GG32 presumes the guilt of the accused after a
probative connection is established between the basic fact, that a religious conversion
has taken place, and the presumed fact, that the conversion was unlawful.
1.5.5. The Niyogi Committee report published in 195633 prompted the enactment of anti-
conversion bills in several states of India. Its key findings are summarised below:
i. Enormous sums of foreign money flow into the country for Missionary work,
comprising educational, medical and evangelist activities. It was out of such
funds received from abroad that in Surguja the Lutherans and other
proselytizing agencies were able to secure nearly 4,000 converts.
ii. Conversions are mostly brought about by undue influence, misrepresentation,
etc., or in other words not by conviction but by various inducements offered
for proselytization in various forms.
iii. A vile propaganda against the religion of the majority community is being
systematically and deliberately carried on.
iv. Schools, hospitals and orphanages are used as a means to facilitate
proselytization.
v. Tribals and Harijans are the special targets of aggressive evangelization for the
reason that there is no adequate provision of hospitals, schools, orphanages
and other social welfare services in the scheduled or specified areas.
Based on this information the Committee recommended that “Suitable control on
conversions brought about through illegal means should be imposed.”

30
Supra note 23
31
Protection of Children from Sexual Offences Act, 2012, Act of Indian Parliament
32
Supra note 2
33
The Niyogi Committee Report 1956 On Christian Missionary Activities, India

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1.5.6. The counsel wants to further argue that the only foundational fact to be established in
the present case is that of the occurrence of a religious conversion. This fact alone is
sufficient to establish a probative connection. It is better for the person converting to
prove consent than for the prosecution to prove lack of consent. This is so due to the
committee’s finding that most religious conversions are non-consensual. It thus
becomes highly probable that the specific case of conversion is unlawful. Thus, the
ordinance fulfils the first condition.
1.5.7. The second element of Justice Gupte's test is whether the aforementioned "balance of
facts” involves a burden of proof to prove negative facts. Conversion by
‘misrepresentation, force, undue influence, allurement, or by any fraudulent methods
or through marriage' is illegal in Cloud9 ordinance.
1.5.8. In Ram Gulam Chaudhary and Ors. v. State of Bihar 34 it is held that all the positive
facts must be proven by the prosecution however, it is not responsible to prove
negative facts that something which is impossible or which is not within the
knowledge of the party. Hence, shifting of the burden is not a violation of any statute
or the provision of law as it helps in the establishment of truth which is important for
a fair trial. In the present case, the accused would need to prove the existence of free
consent from the person being converted 35. Furthermore, the need to prove free
consent would require the person converting to gather relevant evidence for the same
before conducting the conversion. This will make the process of conversion more
transparent and easier to examine if the need arises. So unlawful conversions will
become easier to prove due to the lack of evidence and thus will also act as a factor
for deterrence of in offences. Thus, the second condition is satisfied.
1.5.9. The third condition checks whether the balance of facts is within the special
knowledge of the accused. If it is then the third condition is satisfied. Section 106 of
the Cloud9’s Evidence Act, 1872 statutorily legitimizes for the establishment of an
evidentiary reversal of the burden of proof in situations where the evidence is solely
within the knowledge of the accused. The justification for this was predicated on the
notion that there may not have been any eye witnesses to the incident. Another
example of such a need is Section 114 A of the Cloud9‘s Evidence Act 36, which
stipulates that if the woman indicates in her evidence that she did not consent to the

34
Ram Gulam Chaudhary and Ors. v. State of Bihar AIR 2001 SC 2842
35
State of HP v Shree Kant Shekari, AIR 2004 SC 4404
36
Section 114 A of the Indian Evidence Act 1872, Act of Parliament

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sexual intercourse, the court will draw a presumption that she did not consent to the
sexual intercourse. Though it has been argued that this presumption is based on the
assumption that Indian women will not testify in court unless the rape is true, the
more compelling justification for such a presumption is that there may be no other
evidence than the victim woman's statement regarding the absence of consent. As a
result, if there is no such presumption, the prosecution will have a difficult time
proving that the woman did not consent37. In a nutshell, the point here is that, because
it is difficult to establish some facts, legal presumptions are necessary.
1.5.10. Conversion being one of the cases that might not usually get reported due to power
asymmetry, for socio-cultural and institutional factors, devaluation of self-identity or
general fear of societal backlash, the reverse onus clause is a solution that aids in
coming to the rescue of the victim and punishing the accused.
1.5.11. As per the Niyogi Committee report38 conversions are mostly brought about by undue
influence, misrepresentation, etc., or in other words not by conviction but by various
inducements offered for proselytization in various forms and thus the knowledge that
the conversion was consensual or not lies with the accused.
1.5.12. Therefore, the mere proof of conversion leads to a presumption that the act was in
furtherance of an unlawful and harmful purpose. Thus, the standard for imputing
knowledge to the accused is satisfied in the present case. With this in mind, Cloud9's
ordinance fulfils the third condition of the test.
1.5.13. This leads us to the fourth condition of the test, which enquires whether the burden of
proving innocence will subject the accused to any hardship or oppression. As
recommended by the 47th Law Commission of India39 report ‘there are types/kinds of
socio-economic crimes which damage the society at large and are difficult to prove
before the court in conformity with traditional standard of proof. In such terms the
Reverse onus clauses are justified in those situations. The Supreme Court of India in
Justice K.S.Puttaswamy (Retd) v. The Union of India 40 case ruled that “a statute
cannot be struck down on the ground that there is scope for misuse”. According to the
Ordinance, anyone wishing to convert needs to apply for the scrutiny by the state so
that they can ascertain his willingness and be satisfied that there is no coercion or

37
Reverse Burden:-A Threat to Presumption of Innocence By Veena Bharti IPS & K.Pattabhi Rama Rao
38
Supra note 33
39
Supra note 09
40
Justice K.S.Puttaswamy (Retd) v. The Union of India AIR 2017 SC 4161

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

inducement involved. He or she will be allowed to convert once this is completed.

Thus, if the converter/accused is not following any agenda of planned and forced
conversions then they will not be subject to any hardship or oppression.
1.5.14. The above analysis of the reverse onus clause under the Cloud9‘s Ordinance, leads to
the conclusion that the ordinance meets the criteria of the four-fold test and thus is in
accordance with the law and the constitution.
1.5.15. In cases of unlawful conversion, it is generally presumed that the victims are in a
weaker or submissive position than the accused. In this situation, if a person's faith is
converted under any circumstances without his/her will and a complaint is filed, this
minimum privilege of reverse onus is justified, as that individual is placed on a lower
pedestal. Justice Thomas in the case of State of West Bengal v. Mohd. Omar 41 stated
that “the traditional approach that the burden of proof will always lie upon the
prosecution would only benefit the accused of the heinous crimes and would create
casualties for the society. In such cases where the prosecutor is successful in proving
certain facts of the case, the court has to presume the existence of the facts and has to
rely on such circumstances”
1.5.16. Thus, taking into account everything submitted above, the counsel would like to
humbly submit that the reverse onus clause in Section GG of Vidhi Virudh Dharma
Samparivartan Pratishedh Adhyadhesh,2022 is constitutionally valid.

2. Whether the directions passed to reveal passwords of personal electronic

possessions are valid in light of Article 20(3) or not.

a) Whether the trial court was right in passing orders to direct Petitioner 1 to
unlock his mobile phone and grant access to email accounts.

2.1. The order was necessary to further the investigation.

41
State of West Bengal v. Mohd. Omar, AIR 1989 SC 1785

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2.1.1. The data stored in the mobile phone and E-mail address of Petitioner 1 is necessary to
further the investigation by the police. The investigation officer thus asked him to
provide the same but he refused to do so.42
2.1.2. The police thus had to approach the court seeking directions for the same in order to
conduct their investigation. Had Petitioner 1 complied with the request of the
Investigating officer, there would have been no need to issue such an order. An
English court in R v S & Another43 held that a password is similar to a locked drawer
and has an independent existence to that of the will of the accused. Thus, as one can
be compelled to produce a key to open a drawer, the court can also compel the
accused to provide these passwords.

2.2. The order passed by the trial court is in compliance with Article 20(3) of the
Constitution of Cloud9.

2.2.1. Article 20(3) of the Constitution of India provides that no person accused of an
offence shall be compelled to be a witness against himself i.e., no person can be
forced to give a testimonial that would directly lead to his incrimination 44. In order to
be eligible for this provision, the Petitioner must show that:
i) The disclosure of the password of his mobile phone and E-mail accounts is in
the nature of testimonial compulsion; and
ii) The disclosure of the password of his phone and E-mail accounts would
directly lead to self-incrimination.

The counsel would now submit arguments as to how both the conditions fail in the
present case.

2.2.2. The disclosure of the password is not in the nature of testimonial compulsion. To
establish this the counsel relies on the following paragraphs of the judgement from
Kathi Kalu Oghad45 given by a 11-judge bench of the Supreme Court of India:

The Court determined that testimonial evidence means "to be a witness," and that
being a witness "may be equivalent to furnishing evidence in the sense of making oral

42
Moot Proposition Page 8
43
R vs S & Anr. [2008] EWCA Crim 2177
44
M. P. Sharma And Others vs Satish Chandra 1954 AIR 300;Tofan Singh vs. State of Tamil Nadu:
MANU/SC/0797/2020
45
The State Of Bombay vs Kathi Kalu Oghad 1961 AIR 1808

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

or written statements, but not in the larger sense of giving thumb impressions or
impressions of palm, foot, or fingers, specimen writing, or exposing a part of the body
by an accused person for the purpose of identification." As a result, physical traits
such as hair, blood, saliva, and fingerprints are not considered as testimonial
compulsion.”

2.2.3. The logic cited in Kathi Kalu was also adopted by the Supreme Court of India in a
subsequent case to rule that the compelled production of voice samples did not violate
Article 20(3).46
2.2.4. In order to be a testimonial, there should be an oral or written statement submitted by
the accused47. A password cannot be considered a ‘statement’. So, it cannot be a
testimonial. This argument was reinforced in the Virendra Khanna judgement48, which
decided that a password would not be in the nature of testimonial compulsion but
would be similar to providing any other documentary evidence. The rules and
guidelines for the collection of such data are also given in the same judgement. Thus,
the first condition is not satisfied.
2.2.5. The Kathi Kalu judgement49 stated that:

Article 20 clause (3) prohibits an accused person from incriminating himself. Self-
incrimination must imply the transmission of information based on a person's personal
knowledge. It cannot simply imply the mechanical process of producing documents in
Court that may shed light on any of the issues in dispute but do not contain any
statement of the accused based on his personal knowledge. When an accused
individual is asked to produce his finger impression, signature, or a specimen of his
handwriting by the Court or any other authority conducting an investigation, he is not
delivering "personal testimony." Giving a "personal testimonial" must be voluntary on
his part. He has the ability to make any remark he wants or to refuse to make any
comment at all. Attempts to disguise the genuine nature of his finger impressions or
handwriting, however, are powerless to modify their essential character. Thus, while
an accused person's supplying of finger impressions, specimen writing, or signatures
may amount to furnishing evidence in the larger sense, it is not included under the
definition of "to be a witness." For a testimony by an accused person to be considered

46
Ritesh Sinha vs State Of U.P.& Anr 2019 SCC OnLine SC 956
47
supra note 44
48
Virendra Khanna vs. State of Karnataka and Ors. MANU/KA/0728/2021
49
Supra note 45

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

self-incriminatory, the compulsion of which is prohibited by the constitutional clause,

it must be of such a nature that it has the inclination, if not the ability, to incriminate
the accused. In other words, it should be a statement that, taken alone, makes the case
against the accused person at least plausible. A sample handwriting, signature, or
finger impression by themselves are completely benign because they are
unchangeable, except in rare circumstances where the ridges of the fingers or the
manner of writing have been changed. They are just resources for comparison to give
the Court confidence that its inference based on other pieces of evidence is correct.
They aren't oral or documentary evidence; instead, they fall into the third category of

material evidence, which isn't limited to "testimony." The immunity under article
20(3) does not extend to compulsory production of material objects or compulsion to
give specimen writing, specimen signature, finger impression or compulsory
exhibition of the body or giving of blood specimens50.

2.2.6. It is further argued that providing a password does not have the ability to “inclination,
if not the ability, to incriminate the accused”. It is also not a “statement that, taken
alone, makes the case against the accused person at least plausible”.
2.2.7. It is the interpretation of the data extracted in the investigation process from the
mobile phone and the e-mail accounts which might lead to incrimination if found so.
The data itself would not be incriminatory in nature. 51
Thus, the second condition
fails as well.
2.2.8. Therefore, the counsel submits that the order does not violate the Petitioner's rights
under Article 20(3) of the Constitution because neither of the prerequisites are met.

2.3. Legal provisions exist which empower the court to pass orders for an accused to
disclose passwords.
2.3.1. A person may be asked to produce a "document," according to Section 139 of the
Cloud9’s Evidence Act52. In Section 3 of the Indian Evidence Act, the term
"evidence" is defined as "all documents, including electronic recordings." As a result,
any electronic record in the Petitioner's possession qualifies as a "document" under
Section 139 of the Cloud9’s Evidence Act. As a result, Section 139 of the Cloud9’s
50
Dastagir v. State of Madrass, AIR 1960 SC 756; See also Ram Swarup v. State of Uttar Pradesh, AIR 1958
All 119, Palani, (in re), AIR 1955 Mad 495, Subbiah v. Ramaswami, AIR 1970 Mad 85, Pokhar Singh v. State
of Punjab, AIR 1958 Punj 294
51
Supra note 48
52
Section 139 of the Indian Evidence Act 1872

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

Evidence Act allows the Petitioner to disclose the password. In Ajay Bhardawaj v.
Union of India53 the supreme court of India asked the accused to provide the username
and password of his cryptowallet and make full disclosures to the investigating
agency.
2.3.2. Apart from that, Section 54-A of the Code of Criminal Procedure, 197354, states,
among other things, that,
i) where a person is charged with committing an offence; and
ii) his identification is necessary for the purpose of investigation of an offence,
The Court may order the individual who has been arrested to submit to
identification by any person the Court considers appropriate.
2.3.3. The password is simply a 'identifying mark' of the Accused/Petitioner by the service
providers storing his data in this case. As a result, under Section 54-A of the Code, the
revelation of the password is legal. The sharing of a password is similar to providing a
sample signature or handwriting. As a result, under Section 311-A of the Code of
Criminal Procedure, 1973,55 the revelation of a password might be imposed. In the
event that a direction is given and the accused fails to comply, the Investigating
Officer may ask the Court seeking for necessary orders to the accused to provide the
password, passcode, or biometrics and/or conduct a search of the smartphone or any
electronic equipment as a last resort56.
2.3.4. There are provisions in the Cloud9’s Code of Criminal Procedure, 1973 as well as the
Cloud9’s Evidence Act, 1872 that empowered the Trial Court to direct the Petitioner
to disclose the password. Therefore, the order has statutory backing.

2.4. The order passed by the trial court asking the petitioner to provide his passwords to
the police is in consonance with the Right to Privacy

2.4.1. In the Justice Puttaswamy57 case, the Supreme Court of India said that the Right to
Privacy is not absolute and is subject to reasonable restrictions. These reasonable
restrictions need to satisfy the following conditions in order to be applied:

53
Ajay Bhardawaj v. Union of India W.P.(Crl.) No. 231/2019
54
Section 54-A of the Code of Criminal Procedure of India, 1973
55
Section 311-A of the Code of Criminal Procedure of India, 1973
56
Supra note 48
57
Supra note 40

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

1. Legality, i.e., existence of law;

2. Legitimate/compelling state interest;
3. The action must be proportionate, i.e., there is a rational nexus between the
object and the means adopted to achieve them.

The order passed by the Trial Court satisfies all of the conditions given above.

2.4.2. The existence of statues which empower the court to pass such a direction has been
proved previously. Therefore, the first condition is satisfied.
2.4.3. The second condition checks whether the state has any legitimate/compelling interest
in restricting the right to privacy in any case. In the current case password must be
revealed in order to investigate a crime. In the Justice K. Puttaswamy 58 the Supreme
Court of India stated that "crime prevention and investigation" are among the state's
legitimate interests. Therefore, the second condition is satisfied as well.
2.4.4. The third condition requires that a rational nexus exists between the object and the
means adopted to achieve them. The order passed by the trial court only seeks the
password to help further the investigation. The object here is the data that is required
from the mobile phones and e-mail accounts and the means adopted is the collection
of passwords. The only rational way to collect the required data is through unlocking
them. Therefore, a rational nexus also exists and the third condition is also satisfied.
2.4.5. All three conditions are met in the current case. The order passed by the court meets
the criteria set out by the Puttaswamy judgement to impose restrictions on the right to
privacy.
2.4.6. Also, the data which could be available on the said electronic equipment being
personal in nature and could also be misused by the investigating agency and/or the
investigating agency would obtain the possession of personal data which are held
secret by that person has nothing to do with the investigation at all.
2.4.7. When an investigating agency obtains access to electronic equipment, such as
smartphones and/or laptops, the Investigating Officer has unrestricted access to all
data stored on the equipment, as well as any cloud service connected to it, including
personal information, financial transactions, privileged communications, and so on.
The rules that apply to physical documents, such as whether a document is privileged
communication or strictly private and confidential, do not apply to data stored on a
smartphone or other electronic device, because an investigating officer has complete
58
Id.

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

access to the data once he has access to the smartphone, electronic device, or e-mail
account.
2.4.8. In order to overcome this, the Supreme Court of India in Virendra khanna judgement
59
has laid down the procedure to be followed in such cases. The people responsible for
such data can be prosecuted for dereliction of duty if the guidelines are not followed.
Thus, the use of such data in the course of the investigation would not be a violation
of the right to privacy and would fall within the exceptions outlined in Justice
Puttaswamy's case.
2.4.9. The counsel thus submits unlocking the mobile password does not constitute a
violation of Article 20(3) of the Constitution as providing a password to unlock a
mobile phone or e-mail does not constitute self-incrimination. Also, the order was
necessary to passed to further the investigation, it was in consonance with and there is
no reason for it be declared invalid. So, the Trial Court's order to the Petitioner to
cooperate with the Investigating Officer by unlocking the mobile phone and giving
access to his e-mail accounts is valid.

b) Whether the trial court was right in directing Petitioner 1 to be subjected to a

polygraph test?

2.5. The order of the trial court directing the petitioner to be subjected to a polygraph
test is in line with the Right Against Self-Incrimination given under Article 20(3)
and with Selvi v. State of Karnataka.
2.5.1. The counsel humbly submits that the giving of password would not amount to
testimonial compulsion under Article 20(3) as argued previously. The only question
which then remains is whether the court was legally justified in directing the accused
to a polygraph test to obtain the said passwords.
2.5.2. The Supreme Court of India ruled in Selvi v. State of Karnataka 60
that obligatory
polygraph testing breaches the "right against self-incrimination" entrenched in Article
20(3) of the Indian Constitution. If such a test is conducted with the Petitioner's
consent, there will be no infraction of Article 20(3) of the Constitution of India.

59
Supra note 48
60
Selvi v. State of Karnataka AIR 2010 SC 1974

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2.5.3. It is submitted before the court that the trial court merely ordered the Petitioner to take
the polygraph test. There is no order whatsoever for the test to be compulsorily
conducted on the Petitioner without his consent. It is wrong to question the order
without taking the entire procedure into account. The investigation authorities would
have asked for the consent of the accused before conducting the test.
2.5.4. The counsel contends that on the facts and circumstances of the present case, the dicta
in the case of Selvi vs. State of Karnataka does not apply because subjecting the
Accused to a polygraph test for the limited purpose of unlocking the mobile phone
using the password and providing the password to open e-mail does not constitute a
violation of the Accused's right against self-incrimination61 as argued in paragraphs
above.

2.6. There is a need to introduce scientific methods of collection of evidence in the

justice system.

2.6.1. Traditionally the methods used by investigation agencies to extract information from
a person have been too violent and harmful. There exists a great need to change to
methods which are less violent in nature. The easiest way to do this is through using
scientific methods because they are less harmful. The drafting committee on
“National Criminal Justice System Policy” headed by Prof. N. R. Madhavanan has
recommended various measures to be taken up by the Govt. for effective management
of not only traditional Forensic Science requirements but also to overall Science and
technology needs of Criminal Justice System to raise the levels of capability and
sophistication62.
2.6.2. In Dinesh Dalmia vs State By Spe,63 the Supreme Court of India while deciding the
validity of the order to conduct polygraph test held that:
“the Investigating Officer did not use third degree methods to extract incriminating
materials through the mouth of the accused. Only a scientific test on the accused is
prayed for by the respondent-complainant. The contention of the petitioner that the
accused will face health hazards and his physical frame will be endangered if he
undergoes such scientific tests is totally without any scientific basis. As rightly

61
P Gopalakrishnan alias Dileep & Ors v. State of Kerala & Ors Crl.MC.No.758 OF 2020(D)
62
Report of the Committee on Draft National Policy On Criminal Justice 2007, Government of India
63
Dinesh Dalmia vs State By Spe 2006 CriLJ 2401

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

pointed out by the learned counsel for the respondent, the scientific tests are like
taking MRI or CT Scan. As the accused had not allegedly come forward with the
truth, the scientific tests are resorted to by the investigating agency. When there is a
hue and cry from the public and the human rights activists that the investigating
sleuths adopt third decree methods to extract information from the accused, it is high
time the investigating agency took recourse to scientific methods of investigation. As
a result, submitting an accused to such scientific testing will not amount to coercion in
breaking his silence. He may be taken to the lab against his will for such tests, but the
information he discloses during such tests is entirely voluntary.” In Santokben
Sharmanbhai Jadeja v. State of Gujarat 64, the high court of Gujarat dealt with the need
for narco analysis test and brain mapping test and the advantages of the aforesaid
tests. The court said that “the Investigating Agency has statutory right to investigate
the crime and to find out the truth and to reach to the accused. Narco Analysis Test for
criminal interrogation is valuable technique which would profoundly affect both the
innocent and the guilty and thereby hasten the cause of justice.
2.6.3. The same view was supported in 41st Report on the Cr.P.C. 1898, by the Law
Commission of India65 which recommended that a provision authorizing the
examination of the person of an accused by a qualified medical practitioner be
inserted. The Commission was of the opinion that such a provision was necessary for
effective investigation and the same would not offend Article 20 (3) of the
Constitution of India.
2.6.4. Equally, Section 161(2) of Cr.P.C. provides:

Such person shall be bound to answer truly all questions relating to such case put to
him by such officer, other than question the answers to which would have the
tendency to expose him to criminal charge or to penalty or to forfeiture.

2.6.5. If a person refuses to cooperate with the authorities, then scientific methods like the
polygraph test can be used as long the questions are in line with Article 20(3) of the
constitution.

2.7. The Hon’ble Supreme Court need not interfere in the process of investigation.

64
Santokben Sharmanbhai Jadeja v. State of Gujarat  2008CriLJ68
65
41st Law Commission of India Report on the Cr.P.C. 1898-vol1

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

2.7.1. It is humbly contended that the investigating officer has acted within the four corners
of Law so as to conduct proper investigation. Relying upon P. Chidambaram v.
Directorate of Enforcement66, the Supreme court of India stated that “it is not the
court’s function to monitor investigation process as long as it does not violate any
provision of law, and it should be left to agencies to proceed in their own manner in
interrogation of accused and nature of questions put to him.” On the basis of all the
arguments presented above, the decision of the High Court of Parel should be upheld
and the writ petitions should be dismissed.

66
P. Chidambaram v. Directorate of Enforcement 2019CriLJ4754

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 Late Shri Abhay Bharadwaj Memorial National Moot Court Competition, 2022

PRAYER

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

1. that, the reverse onus clause crafted in Section GG of the Cloud9 Vidhi Virudh Dharma
Samparivartan Pratishedh Adhyadesh, 2022 is constitutional;

2. that, the directions passed to reveal passwords of personal electronic possessions are valid
in light of Article 20(3).

3. that, the petitions are not maintainable.

AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.
All of which is most humbly and respectfully submitted and for such act of kindness the
respondent shall be duty bound as ever pray

Place: S/d __________________

Date:
COUNSEL FOR RESPONDENT

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