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TEAM CODE: TE-1-P

IN THE HONBLE SUPREME COURT OF INDIANA

APPEAL NO.____/2016
CLUBBED WITH
WRIT PETITION NOS.___/2016 & ___/2016

IN THE MATTER
OF

Petitioners

Tomar Rashid & Ors.


v.
Union of Indiana

Respondent

MEMORIAL ON BEHALF OF THE PETITIONERS

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COURT COMPETITION, 2016

IMS UNISON UNIVERSITY 4TH NATIONAL MOOT COURT COMPETITION, 2016

CONTENTS

LIST OF ABBREVIATIONS..3

INDEX OF AUTHORITIES4-6

STATEMENT OF JURISDICTION.7

STATEMENT OF FACTS8-10

STATEMENT OF ISSUES...11

SUMMARY OF ARGUMENTS12

ARGUMENTS ADVANCED...13-24

1. THE WRIT PETITION IS MAINTAINABLE13


1.1.

The Petitioner No.1s Fundamental Right to Peaceful Assembly was Infringed by the
State.....13

1.2.

That the Police Carried out Lathi Charge without Warning thus Violating Due
Procedure....14

1.3.

That the Petitioner No.1 is Entitled to Compensation...15-16

2. 124A OF THE INDIANA PENAL CODE, 1860 IS UNCONSTITUTIONAL..16


2.1.

That 124A is Violative of Art.19(1) (a) of the Constitution..16-17

2.2.

That 124A is Violative of Art. 14 of the Constitution....17

2.3.

That 124A is Violative of Art. 21 of the Constitution..17-18

2.4.

That there has been a History of Blatant Misuse of this Law..18

2.5.

124A is Contrary to the Countrys International Human Rights Obligations.18

3. THE CONVICTION OF THE ACCUSED IS LIABLE TO BE QUASHED.19


3.1.

That the Speech Made by the Petitioner No.2 is not Seditious.19-20

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3.2.

That the Statements made by Petitioner No. 2 are within the Exercise of his Right to Speech
and Expression...20-21

3.3.

That Strict Evidentiary Requirements have not been Met by the State..21-22

4. 24A OF THE PRESS COUNCILS ACT, 1978 IS ULTRA-VIRES THE CONSTITUTION..22


4.1.

That 24A is in Violation of Art. 19(1) (a) of the Constitution and has a Chilling Effect on the
Freedom of Speech and Expression...22-23

4.2.

That 24A is in Violation of Art. 21 of the Constitution24

PRAYER ..25

BIBLIOGRAPHY...26

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LIST OF ABBRIVIATIONS

Abbreviation

Definition

&

And

AC

Appeal Cases

AIR

All India Reporter

All.

Allahabad

Art.

Article

Cr.P.C.

Code of Criminal Procedure, 1973

Govt.

Government

HL

House of Lords

IPC

Indiana Penal Code, 1860

Ker.

Kerala

Mad.

Madras

Para.

Paragraph

PCI

Press Councils Act, 1978

r/w

Read With

Section

SC

Supreme Court

SCALE

Supreme Court Almanac

SCC

Supreme Court Cases

SCJ

Supreme Court Journal

SCR

Supreme Court Reporter

UOI

Union of India

v.

Versus

IMS UNISON UNIVERSITY 4TH NATIONAL MOOT COURT COMPETITION, 2016

INDEX OF AUTHORITIES
CASES CITED
S.No.
1.

Case

Citation

Arun Jaitley v. State Of U.P.

APPLICATION U/S 482


No. - 32703 of 2015

2.

Arunachala Nadar, M.C.V.S. v. State of Madras

AIR 1950 SC 300

3.

Arup Bhuyan v. State of Assam

(2011) 3 SCC 377

4.

Balwant Singh And Anr v. State Of Punjab

AIR 1995 SC 1785

5.

Bhagwati Charan Shukla v. Provincial Government

AIR 1947 Nag 1

6.

Bharat Desai v. State of Gujrat

Cri. App 7536 of 2008 (Guj)

7.

Confed. of Ex-serviceman Association v. Union of India

(2006) 8 S.C.C. 399

8.

H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia

AIR 1971 SC 530

Bahadur and Ors. v. Union of India


9.

Indra Das v. State of Assam

(2011) 3 SCC 380

10.

Javed Habib v. State (NCT of Delhi)

(2007) 96 DRJ 693

11.

K. Neelamangalam v. State

Cri OP (MD) No. 14086 of


2011 (Mad)

13.

Kameshwar Prasad and Ors v. State of Bihar

1962 AIR 1166

14.

Kedar Nath v. State of Bihar

AIR 1962 SC 955

15.

Khatri v. State of Bihar

AIR 1981 SC 928

16.

LIC of India v. Prof. Manubhai D. Shah

(1988) 1 SCC 668

17.

Maneka Gandhi v. Union of India

1978 SCR (2) 6

19.

Mohd. Yakub v. State of W.B.

(2004) 4 CHN 406

20.

Om Kumar v. Union of India

(2001) 2 SCC 386

21.

Ozhair Hussain v. Union of India

A.I.R. 2003 Del 103

22.

P.J. Manuel v. State of Kerala

ILR (2013) 1 Ker 793

23.

Pankaj Butalia v. Central Board of Film Certification

WP (C) 675 of 2015 (Del)

24.

Papnasam Labour Union v. Madura Coats Ltd.

1995 SCC (1)

25.

Pathunma v. State of Kerala

AIR 1978 SC 771


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26.

R. D. Shetty v. International Airport Authority

1979 SCR (3) 1014

27.

R.C. Cooper v. Union of India

(1970) 1 S.C.C. 248

28.

Ramji Lal v. State of Uttar Pradesh

AIR 1957 SC 620

29.

Rangarajan v. P. Jagjivan Ram

(1989) 2 SCC 574

30.

Rex v. Aldred

(1909) Cox CC 1

31.

Romesh Thappar v. State of Madras

AIR 1950 SC 124

32.

Rudul Shah v. State of Bihar

AIR 1983 SC 1086

33.

S.C.L.A.C v. Union of India

(1991) 3 SCC 482

34.

Sanskar Marathe v. State of Maharashtra

Cri PIL No. 3 of 2015


(Bom)

35.

Shreya Singhal v. Union of India

AIR 2015 SC 1523

36.

State of Assam v. Fasiullah Hussain

(2013) 4 GLT 284

37.

State of Rajasthan v. Ravindra Singhi

(2001) 3 WLN 242

38.

Superintendent Central Prison v. Ram Manohar Lohia

AIR 1960 SC 633

BOOKS REFERRED
1. V. DICEY, THE LAW OF THE CONSTITUTION (10th ed. 1959)
2. ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA (2nd ed. Reprint 2010)
3. DR. DURGA BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA (20th ed. Reprint 2012)
4. DR. J.N.PANDEY, CONSTITUTIONAL LAW OF INDIA (38th ed. 2002)
5. DR.DURGA BASU, CONSTITUTIONAL LAW OF INDIA (8th ed. 2011)
6. H.M.SEERVAI, CONSTITUTIONAL LAW OF INDIA (4th ed.)
7. A. SABITHA, PUBLIC HEALTH: ENFORCEMENT AND LAW (1st ed. 2008).
8. JUSTICE G.P.SINGH, PRINCIPLES OF STATUTORY INTERPRETATION (12th ed. Reprint 2011)
9. M.P.JAIN, INDIAN CONSTITUTIONAL LAW (5th ed. 2003)
10. DARREN J OBYRNE, HUMAN RIGHTS: AN INTRODUCTION (1st ed. 2003).
11. DURGA DAS BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW (3rd ed. 2008).
12. COLETTE DAIUTE, HUMAN DEVELOPMENT & POLITICAL VIOLENCE (1st ed. 2010).
13. DARREN J OBYRNE, HUMAN RIGHTS: AN INTRODUCTION (1st ed. 2003).
14. R. SATYA NARAYANA, NATURAL JUSTICE: EXPOANDING HORIZONS (1st ed. 2008).

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CONSTITUTIONS, STATUTES, CONVENTIONS, ARTICLES ET AL.


1. International Covenant on Economic, Social and Cultural Rights, 1966.
2. International Convention on Civil and Political Rights, 1966.
3. United Nation Declaration of Human Rights, 1948.
4. Constitution of India, 1950.
5. Indian Penal Code, 1966.
6. Code of Criminal Procedure, 1925.
7. Press Council of India Act, 1978.

ARTICLE
1. Goran Simic, Universal Jurisdiction and its Interplay with Sovereign Immunity 1 INDIAN JOURNAL OF
LAW AND INTERNATIONAL AFFAIRS 121 (New Delhi 2016).

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STATEMENT OF JURISDICTION

The Petitioners have approached the Honble Supreme Court of Indiana that has the jurisdiction to hear
this matter under Art. 131, Art. 139A and Art. 32 of the Constitution of Indiana.

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STATEMENT OF FACTS
I

Indiana is a federal republic country situated in south-east Asia along the equator. The country gained
freedom in 1957 after a long drawn struggle against a European nation which established the common
law system. The Penal Code of Indiana was drafted in the 19th century and is still operational with some
minor changes. The Indiana Constitution is acknowledged worldwide for the fundamental rights
guaranteed to its citizens. Indiana with the capital at New Delporto (also a Union Territory) is
constituted of 24 states & 5 union territories that are directly administered by the Central Government.
New Delporto has a special status as it has its own Government. However, public order is maintained by
the Home Ministry of the Union Government.

II

New Delporto is an education hub of the country as the city has some of the best colleges & universities
of the nation. One such university is Great Northern University (GNU) which has earned special
reputation in the field of research and academic contributions. GNU has a very active culture of student
politics which sometimes turns violent as clashes between students of opposite ideologies is very
common. Among a large number of student unions in the university, Great Northern University Students
Union (GNUSU) is the largest. The GNUSU has been winning the students council elections since the
last 10 years at a stretch as a result of which the President of this union always has a substantial
influence among the other members of the union.

III

The GNUSU is a branch of the All Indiana Students Union (AISU), a left inclined organization which
has a traditional history of holding protests and student revolutions on various issues. The Indiana
Peoples Party subscribes to right wing ideologies and the GNUSU has always been opposed to it
politically. After coming to power, the IPP government embarked on an economic reform mission
which looked to liberalize the economy to bring more foreign investments. These ideas did not go well
with the GNUSU and as a result, countrywide protests were held by them.
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IV

On June 8, 2016, a countrywide strike was called by the parent body of GNUSU and during the strike; a
national highway was allegedly blocked by the supporters of AISU in Utkal, another Union Territory in
Indiana. The protestors were lathi charged by the police and some of them were seriously injured and
were subsequently admitted to the hospital. The protesters claimed that they were not given any warning
before the lathi charge despite the fact that they were just sitting peacefully on the road. As soon as the
news of lathi charge broke out through electronic and social media, violent protests were held all across
the country, especially in New Delporto. The GNUSU led the protest in capital city and its president
Ramaiya Kumar became the face of the movement. One of the injured students, Tomar Rashid filed a
writ petition against the Union government claiming that his right to peaceful assembly was infringed by
the state and claimed adequate compensation for his injuries.

The movement gathered momentum and soon, more and more students joined in. Political colours were
also added to the movement by the fiery speeches of the GNUSU leaders. On 16th of June, 2016, a rally
was organized in New Delporto by GNUSU to show solidarity to the injured students of Utkal.
Meanwhile, some posters were put up across the campus of GNU which claimed that the rally was also
in solidarity with the hanging of Chengiz Khan, a separatist leader who was the main accused in a
terrorist attack at the Indiana Parliament back in 2006, who was hanged 3 years ago on the same date.
All such posters had the signature of Ramaiya Kumar. Chengiz Khan belonged to the northern most
state of Mashkir, which has always been an issue of dispute between the neighboring nation of Paristan.
Mashkir has been the centre of controversy for decades as a separatist movement has been going on
since 1960.

VI

As the rally began, the protestors began to shout slogans against the so called dictatorship of the
government and pledged to fight against the government till the date. Some of the incidents of the rally
were recorded by various news agencies. Although the rally ended peacefully, some videos began to
circulate in social media where it was seen that Ramaiya Kumar in his speech claimed that Mashkir
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deserved to be independent and that they will seek independence at any cost. This video became viral
and soon the government arrested Ramaiya Kumar late at night and charged him with sedition. The
session court held Ramaiya guilty and sentenced him to one year of imprisonment. He filed an appeal in
the High Court of New Delporto where his lawyer also challenged the constitutionality of the provision
of sedition and argued that it is a colonial provision and has no relevance in an independent nation like
Indiana. The New Delporto High Court while upholding the order of the session court issued a
certificate under Art. 134A stating that the case involved a substantial question of law that should be
decided by the Supreme Court.

VII

The news of Ramaiya Kumars arrest soon became a nationwide topic of discussion. Some of the news
channels repeatedly telecasted the speech of Ramaiya Kumar and sympathies began to pour in from
certain sections of political and intellectual class of the nation who were ideologically opposed to the
IPP. The Paristani Prime Minister also made a statement sympathizing with Ramaiya and passively
endorsed his views on Mashkir.

VIII

As the monsoon session began, the government by virtue of its majority made an amendment to the
Press Councils Act, 1978. 14A was incorporated into the Act. As soon as the amendment was passed,
a number of newspapers and news channels were censured and some fined. One of them, Mr. Kamal
Kapoor, who is the head of Indiana 24*7, an English news channel, filed a petition in the Supreme
Court of Indiana and challenged the constitutionality of 14A of the Press Councils Act, 1978. The
Supreme Court of Indiana in the interest of justice clubbed the 3 matters given their inter connection and
listed them for final hearing.

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STATEMENT OF ISSUES
1. WHETHER OR NOT THE WRIT PETITION IS MAINTAINABLE.
2. WHETHER OR NOT 124A OF THE INDIANA PENAL CODE, 1860 IS UNCONSTITUTIONAL.
3. WHETHER OR NOT THE CONVICTION OF THE ACCUSED IS LIABLE TO BE QUASHED.
4. WHETHER OR NOT 24A OF THE PRESS COUNCILS ACT, 1978 IS ULTRA-VIRES THE CONSTITUTION.

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SUMMARY OF ARGUMENTS

1. THE WRIT PETITION IS MAINTAINABLE

It is the humble submission of the Petitioner that the instant Writ Petition is maintainable because
Petitioner No.1s Fundamental Right to Peaceful Assembly was infringed by the State through the
Police carrying out Lathi Charge without warning thus violating due procedure and consequently
Petitioner No.1 is entitled to compensation.

2. 124A OF THE INDIANA PENAL CODE, 1860 IS UNCONSTITUTIONAL

It is respectfully urged that 124A is unconstitutional by virtue being violative of Arts. 19(1) (a),
14, and 21 of the Constitution because, amongst other things, there has been a history of blatant
misuse of this law. 124A is also contrary to the countrys international human rights obligations.

3.

THE CONVICTION OF THE ACCUSED IS LIABLE TO BE QUASHED

The Petitioner vociferously argues that the conviction of the accused is liable to be quashed as the
speech made by Petitioner No.2 was not seditious. Also, that the statements made by Petitioner No.
2 are within the exercise of his right to speech and expression. It is also submitted that strict
evidentiary requirements have not been met by the State.

4. 24A OF THE PRESS COUNCILS ACT, 1978 IS ULTRA VIRES THE CONSTITUTION

It is respectfully submitted that 24A of the PCI Act, 1978 is ultra-vires the Constitution as it is in
violation of Art. 19(1) (a) of the Constitution and has a chilling effect on the Freedom of Speech and
Expression. It is also urged that it is in Violation of Art. 21 of the Constitution.

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ARGUMENTS ADVANCED
1. THE WRIT PETITION

IS

MAINTAINABLE

AND THE

STATE

OWES COMPENSATION TO

THE PETITIONER.

It is most humbly submitted before the Honble Court that the instant writ petition is maintainable as the
Fundamental Rights of the petitioner to peacefully assemble without arms enshrined under Art. 19(1)
(b), and further under 19(1) (a) and 19(1) (d) in the Constitution have been violated by the Respondent.
The same is contended by the Petitioner on the following grounds:

1.1.THAT THE PETITIONERS FUNDAMENTAL RIGHT TO PEACEFULLY ASSEMBLE WITHOUT ARMS AND
FUNDAMENTAL RIGHT TO SPEECH AND EXPRESSION HAS BEEN VIOLATED BY THE GOVERNMENT.

That the Petitioner enjoys the right to assemble peacefully without arms throughout the nation. There are
plethoras of judgments of the Apex Court where it held that the protest is a form of expression and are
also covered under Art. 19(1)(a) of the Constitution. In the instant case, AISU was known for holding
protests on various issues in the past1 without causing any threat to security and public order; therefore
there was no reason for the police to reasonably apprehend violent behavior from them.
As pointed out by the Supreme Court in LIC of India v. Prof. Manubhai D. Shah 2 freedom of speech
and expression is a natural right which a human being acquires on birth and therefore it is a basic human
right. This basic human right has been recognized by the Universal Declaration of Human Rights
(1948). In the Preamble of the Constitution of India, the People of India declared their solemn resolve to
secure to all its citizen liberty of thought and expression. This resolve is reflected in Art. 19(1)(a) of the
Constitution which guarantees to all citizens the fundamental right to freedom of speech and expression.
The petitioner submits that protest is a form of expression protected under Art. 19(1) of the
Constitution. In Kameshwar Prasad and Ors v. State of Bihar 3, the Supreme Court considered the
question whether the right to make a "demonstration" is covered by either or both of the two freedoms
guaranteed by Art. 19(1)(a)or 19(1)(b) of the Constitution i.e. the freedom of speech and expression and
1

Para 6, Moot Proposition.


(1988) 1 SCC 668.
3
1962 AIR 1166.
2

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the right to assemble peaceably and without arms. The Supreme Court has held in the said case that a
"demonstration" is a visible manifestation of the feelings or sentiments of an individual or a group and
thus a communication of one's ideas to others to whom it is intended to be conveyed. It has also been
held that "demonstration" is in effect a form of speech or of expression and that it might also take the
form of an assembly and even then the intention is to convey to the person or authority to whom the
communication is intended, the feelings of the group which assembles. There are forms of
demonstration which would fall within the freedoms guaranteed by Art. 19(1). The State had the duty to
protect the Fundamental rights of the people which it failed to do in the instant case.
Even if a right is not specifically named in Art. 19, it may still be a fundamental right covered by some
clause of that Article if it is an integral part of a named fundamental right or partakes of the same basic
nature and character as that fundamental right. What is necessary to be seen is whether the exercise of
such right is in reality and substance nothing but an instance of the exercise of the named fundamental
right. Hence the holding of a peaceful and orderly demonstration by way of protest is an exercise of the
fundamental rights guaranteed by Art. 19(1)(a) and 19(1)(b) of the Constitution. In a democratic society
every citizen has a right to protest. The right to protest through civil disobedience also has come to be
recognized as a right of the citizen in a democratic polity.4

1.2 THAT

THE

POLICE

CARRIED

LATHI CHARGE

WITHOUT

WARNING

THUS

VIOLATING DUE

PROCEDURE.
In the instant case there was no imminent threat to public order, nor was there any need for immediate
prevention or speedy remedy. The lathi charge by police is an unfortunate incident. The conduct of the
police goes to indicate that the police action was politically motivated and resulted from instructions
from the IPP government actions of the Respondents neither substantively nor procedurally reasonable.
In the case of H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and Ors. v. Union of
India 5 , Court held that even in civil commotion or even in war or peace, the State cannot act
catastrophically outside the ordinary law and there is legal remedy for its wrongful acts against its own
subjects or even a friendly alien within the State.
It is therefore most humbly submitted that the police failed to follow the due process resulting in the
violation of the right to protect.
4
5

Maneka Gandhi v. Union of India, 1978 AIR 597.


AIR 1971 SC 530.

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1.3 THAT THE PETITIONERS ARE ENTITLED TO COMPENSATION.
It is most humbly submitted to the Honble Court that there has been gross violation of the fundamental
rights when the police lathi charged the petitioners resulted in severe injury to the petitioners. The
petitioners are entitled to receive compensation for having their rights being violated and for injuries
caused by the polices unlawful action.
Social and economic justice is the signature tune of the Indian Constitution. It guarantees fundamental
rights which cannot be ordinarily derogated from. Often the rights are violated by state for which the
state is entitled to pay compensation. An important dimension of these remedies is the award of
compensation as part of the relief that can be granted to the affected person. This arises from the fact
that not only does the state have a legal duty in protecting the rights guaranteed, but also a social duty to
compensate the affected, when the state violated these rights. 6
Through various courts decisions in India, it may be stated that this dream of human rights enthusiasts is
now an obligation of the state.7 The rights have been interpreted to imply a contract between the state
and the citizens, a breach of which may be regressive monetarily.
According to the factual matrix, the protestors were lathi charged by the police and some of them were
seriously injured and had to be admitted to the hospital. The protestors were just sitting peacefully on
the road and that they were not given any warning by the police before the lathi charge. 8
The question of liability to compensate for infringement of fundamental rights was first raised in the
Bhagalpur Blinding Case.9 The Supreme Court refused to order compensation under its writ jurisdiction
until Rudul Shah v. State of Bihar10 in which compensation was granted for wrongfully detaining an
innocent person. Rudul Shah's Case heralded a new era of compensatory jurisprudence in Indian Legal
History.
In this area, interestingly enough, the court's attention is being drawn to the Mandal Commission Case
where the shabby treatment of those injured in police lathi charge was questioned by the Court. The

P. LEELAKRISHNAN, COMPENSATION FOR GOVERNMENT LAWLESSNESS, XVII C.U.L.R (December 1992).


P. SRIKRISHNA DEVA RAO, CUSTODIAL DEATHS IN INDIA , (NLSIU Bangalore 1993).
8
Para 7, Moot Proposition.
9
Khatri v. State of Bihar, AIR 1981 SC 928.
10
AIR 1983 SC 1086.
7

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Court ordered the government to pay compensation to the victims of police brutality. Furthermore, the
police are also accountable if care or medical attention has not been accorded.11
In sight of the above arguments and the decisions cited of the Apex Court, the Petitioners seek
compensation for the injuries suffered.

2. 124A OF THE INDIAN PENAL CODE, 1860 IS UNCONSTITUTIONAL.


It is reverentially submitted that S. 124A of the IPC is unconstitutional and ultra vires the provisions of
Part III of the Constitution.
2.1.THAT 124A IS VIOLATIVE OF ART. 19(1)(a) OF THE CONSTITUTION.
It is humbly submitted that the provision for Sedition is not a reasonable restriction under 19(2) and is
against the letter and spirit of Art. 19(1)(a) as it places an unreasonable restriction on the freedom of
speech.
The freedom provided under Art. 19(1)(a) is subject to imposition of reasonable restrictions by the state
on the grounds enumerated in clause (2) of Art.19. The requirement of reasonableness runs like a
golden thread through the entire fabric of fundamental rights. A restriction is unreasonable if it sweeps
within its ambit activities that constitute a legitimate exercise of freedom of speech and expression,12 or
the restriction is in excess of what was necessary to suppress or prevent the social mischief aimed at. 13
Therefore, for a restriction to be reasonable, it must not be arbitrary or of an excessive nature, and there
must be a direct and proximate nexus between the restriction imposed and the object sought to be
achieved.14
The limitation imposed in the interests of public order, or any other enumerated ground, to be
reasonable, should be one which has a proximate connection 15 or nexus with public order, but not one
which is far-fetched, hypothetical, problematic or too remote.16 Freedom of speech guaranteed to the

11

S.C.L.A.C v. Union of India (1991) 3 SCC 482.


Ramji Lal v. State of Uttar Pradesh, AIR 1957 SC 620.
13
Pathunma v. State of Kerala, AIR 1978 SC 771.
14
Papnasam Labour Union v. Madura Coats Ltd.,1995 SCC (1).
15
Arunachala Nadar, M.C.V.S. v. State of Madras, AIR 1950 SC 300.
16
Superintendent Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.
12

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citizens of this country under the Art.19 (1)(a) has enough room for every citizen to follow their own
ideology or political affiliation.

2.2.THAT 124A IS VIOLATIVE OF ART. 14 OF THE CONSTITUTION.


An important consequence of the rights to equality is the element of reasonableness. Arbitrariness and
reasonableness are sworn enemies.
In a landmark case17 the Apex Court held that:
The principle of reasonableness which legally as well as philosophically, is an essential element of
equality or non-arbitrariness pervades Art.14 like a brooding omnipresence.
In another decision,18 the Apex Court observed that where an act is arbitrary, it is implicit in it that it is
unequal both according to political logic and constitutional law and is therefore violative of Art. 14.
The restriction imposed under S.124A, as contended above, is unreasonable; therefore it fails the test of
arbitrariness. Hence, it violates the fundamental right guaranteed under Art. 14.
2.3.THAT 124A IS VIOLATIVE OF ART. 21 OF THE CONSTITUTION.
The right of life and liberty guaranteed under Art. 21 is also subject to the rule of proportionality.19 The
punishment proposed for the offence of sedition under S.124A is disproportionate to the nature of the
crime.
Sedition has been made an offence under the offences against state,20 instead of being under the head
of offences against public tranquility21, even though it has interpreted by the courts to be offence that
essentially affects peace and public tranquility. 22 As compared to the offences in the latter part of the
IPC, the punishment under S.124A is grossly disproportionate as it can extend to life imprisonment.
Moreover, the right to life guaranteed under Art.21 embrace within its sweep, not only physical
existence, but also the quality of life. If any statutory provisions run counter to such a right it must be
17
18

19

Maneka Gandhi v. Union of India, 1978 SCR (2) 6.


R. D. Shetty v. International Airport Authority, 1979 SCR (3) 1014.

Om Kumar v. Union of India, (2001) 2 SCC 386.

20

Chapter VI, Indiana Penal Code.


21
Chapter VIII, Indiana Penal Code.
22
Rex v. Aldred, (1909) Cox CC 1; Kedarnath v. State of Bihar, AIR 1962 SC 955.

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held unconstitutional.23 Right to life and personal liberty are compendium terms, which include a variety
of rights and attributes. The expanded meaning includes the right to hold a particular opinion, to sustain
and to nurture that opinion.24 Therefore, the impugned section of the IPC violates the fundamental right
guaranteed under the Constitution.
2.4.THAT THERE HAS BEEN A HISTORY OF BLATANT MISUSE OF THIS LAW.
Notwithstanding the Supreme Courts interpretation of the Art.124A in the case of Kedar Nath v. State
of Bihar 25 , the lower courts have time and again failed to distinguish between mere dissent and
disaffection towards the government. 26 This has led to bias towards anyone who holds a different
ideology from that of the government in power, or anyone who has unpopular political affiliation. This
provision is used now as a weapon to combat political dissent or any political philosophy that goes
against the policies and activities of the government.
This hinders the right of a person to freely engage in healthy debates and political discussion, which is
essential for realization of the right under Art. 19(1)(a) r/w Art. 21.

2.5. THAT

124A

IS

CONTRARY

TO

THE

COUNTRYS

INTERNATIONAL

HUMAN

RIGHTS OBLIGATIONS.

Art. 51 (c) of the Constitution makes it the states imperative to respect its international law obligations
arising out of various treaties.
The law on sedition is contrary to the provisions of various International obligations that Indiana is
bound to abide by. The International Covenant on Civil and Political Rights, which Indiana ratified in
1979, prohibits restrictions on freedom of expression on national security grounds 27 unless they are
provided by law, strictly construed, and necessary and proportionate to address a legitimate threat. Such
laws cannot put the right itself in jeopardy. Therefore, it is humbly contended that S.124A is ultra vires
the Constitution.

23

Confederation of Ex-serviceman Association v. Union of India, AIR 2006 SC 2945.


Ozhair Hussian v. Union of India, AIR 2003 Del 103.
25
AIR 1962 SC 955.
26
P.J. Manuel v. State of Kerala, ILR (2013) 1 Ker 793; Bharat Desai v. State of Gujrat, Cri Misc App
7536 of 2008 (Guj); Javed Habib v. State(NCT of Delhi), (2007) 96 DRJ 693; K. Neelamangalam v.
State, Cri OP (MD) No. 14086 of 2011 (Mad); Pankaj Butalia v. Central Board of Film Certification,
WP (C) 675 of 2015 (Del); Sanskar Marathe v. State of Maharashtra, Cri PIL No. 3 of 2015 (Bom).
27
Art.19(3) of ICCPR.
24

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IMS UNISON UNIVERSITY 4TH NATIONAL MOOT COURT COMPETITION, 2016

3. THE CONVICTION OF THE ACCUSED IS LIABLE TO BE QUASHED.

It is the humbly submitted that the Petitioner is not guilty of sedition, and has been wrongfully
convicted in the instant case.

3.1. THAT THE SPEECH MADE BY THE PETITIONER IS NOT SEDITIOUS.


The speech made by the Petitioner doesnt satisfy the elements necessary for it to be classified as an
offence under S. 124A, IPC.
In order for his words to be within the ambit of S. 124A, they would necessarily have to qualify as
having a pernicious tendency of creating public disorder or disturbance of law and order. Only then
would the law step in to prevent such activity.28 The essentials of the offence under S. 124A are:
1.

Bringing or attempting to bring into hatred or contempt or exciting or attempting to excite

disaffection towards, the Government of India.


2.

Such act or attempt may be done (i) by words, either spoken or written, or (ii) by signs, or (iii) by

visible representation.29
The essence of the offence of sedition under 124A, is the intention with which the language of a
speech is used and that intention has to be judged primarily from the language itself. In forming an
opinion as to the character of speech charged as sedition, the speech must be looked at and taken as a
whole, freely and fairly, without giving undue weight to isolated passages and without pausing upon an
objectionable sentence here or a strong word there, and, in judging of the intention of the speaker, each
passage, should be considered in connection with the others and with the general drift of the whole.
Also, comments expressing disapprobation of the administrative or other action of the Government
without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence
under this section.30

28

Arun Jaitley v. State Of U.P, APPLICATION U/S 482 No. - 32703 of 2015.
PILLAI, Criminal Law 1131 (K. I. Vibhute eds., 2009).
30
Explanation 3 to 124A, Indiana Penal Code, 1860.
29

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The Supreme Court of United States laid down the test of clear and present danger in the case of
Brandenburg v. Ohio,31 which requires that restrictions cannot be placed on speech unless it is directed
to inciting, and is likely to incite imminent lawless action. The Supreme Court has applied the same
test in deciding several cases.32
In the instant case, there has been no incident involving violence as a consequence of the Petitioners
alleged speech. The alleged speech made by the petitioner in the instant case was a critical observation
of a socio-political nature. The Petitioner merely expressed his political opinion on the status of
Mashkir. Nothing in his speech was intended to incite, or subsequently incited violence and disaffection
towards the government. There is an absence of clear and present danger in the instant case.
Therefore, nothing contained therein would qualify as amounting to incite violence and disaffection
towards the government in power.

3.2 THAT THE STATEMENTS MADE BY THE PETITIONER ARE WITHIN THE EXERCISE OF HIS FREEDOM
OF SPEECH AND EXPRESSION.

In landmark case of Shreya Singhal v. Union of India33 the Apex Court made certain observations about
the freedom under Art. 19(1)(a). The Court observed:

"There are three concepts which are fundamental in understanding the reach of
this most basic of human rights. The first is discussion, the second is advocacy,
and the third is incitement. Mere discussion or even advocacy of a particular
cause howsoever unpopular is at the heart of Art. 19(1)(a). It is only when such
discussion or advocacy reaches the level of incitement that Art. 19(2) kicks in. It
is at this stage that a law may be made curtailing the speech or expression that
leads inexorably to or tends to cause public disorder or tends to cause or tends
to affect the sovereignty & integrity of India, the security of the State, friendly
relations with foreign States, etc.".

31

23 L Ed 2d 430: 395 US 444 (1969).


Indra Das v. State of Assam, (2011) 3 SCC 380; Arup Bhuyan v. State of Assam, (2011) 3 SCC 377;
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
33
(2015) 5 SCC 1.
32

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In the case of Balwant Singh And Anr v. State Of Punjab,34 the Supreme Court observed that:
..It appears to us that the raising some slogan only a couple of times by the two
lonesome appellants, which neither evoked any response nor any reaction from any
one in the public can neither attract the provisions of 124A.The police officials
exhibited lack of maturity and more of sensitivity in arresting the appellants for
raising the slogans - which arrest -and act the casual raising of one or two slogans could have created a law and order situation, keeping in view the tense situation
prevailing on the date of the assassination of Smt. Indira Gandhi. In situations like
that, over sensitiveness sometimes is counterproductive and can result is inviting
trouble. Raising of some lonesome slogans, a couple of times by two individuals,
without anything more, did not constitute any threat to the Government of India as by
law established not could the same give rise to feelings of enmity or hatred among
different communities or religious or other groups.
In the instant case, the Petitioner, in his capacity as the President of GNUSU,35 was exercising his right
to freedom of speech and expression under Art. 19(1)(a) by engaging in a political discussion. His
comments about Mashkirs freedom is merely advocacy, and in no way incitement to violence. He did
not make statements encouraging violence or seeking overthrow of the government in power. The
petitioner did not make any comments on the hanging of Chengiz Khan, nor did his speech invoke any
kind of response or reaction from any one in Public. Therefore, there was no reasonable expectation of
immediate violence of any form.
3.3 THAT STRICT EVIDENTIARY REQUIREMENTS HAVE NOT BEEN MET BY THE STATE.
The courts have time and again emphasized on the importance of meeting strict evidentiary
requirements to convict the accused under the offence of sedition under Art. 124A.36

34

AIR 1995 SC 1785.


Moot Proposition, para 8.
36
Mohd. Yakub v. State of W.B. ,(2004) 4 CHN 406; State of Assam v. Fasiullah Hussain, (2013) 4 GLT
284; State of Rajasthan v. Ravindra Singhi, (2001) 3 WLN 242.
35

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The Apex court in the case of Indra Das v. State of Assam,37 echoed the principle of strict evidentiary
requirement where it acquitted the accused on the grounds that the prosecution had failed to produce
sufficient evidence to prove that the accused had committed a seditious act.
In the instant case, the video based on which the petitioner has been charged with the offence of
sedition, in no way satisfies the required elements of a seditious act. The speech of the Petitioner does
not have the effect of inciting people to violence.
Therefore, it is most respectfully submitted that Petitioner is not guilty of committing a seditious act,
and therefore the charges against the petitioner are liable to be quashed.

4. 24A OF THE PRESS COUNCILS ACT, 1978 IS ULTRA VIRES THE CONSTITUTION.
It is most respectfully submitted by the Petitioner before this Honble Court that S.24A of the Press
Councils Act, 1978 is unconstitutional. The same is contended on the following grounds:
4.1.THAT 24A

IS IN

VIOLATION

OF

ART. 19(1)(a)

OF THE

CONSTITUTION

AND HAS A

CHILLING

EFFECT ON THE FREEDOM OF SPEECH AND EXPRESSION


In the case of Romesh Thappar v State of Madras,38 Patanjali Sastri, C.J. observed as follows:
Freedom of speech lay at the foundation of all democratic organizations, for
without free political discussion no public education, so essential for the proper
functioning of the process of popular government, is possible.
The freedom of Press, as held by the Supreme Court in a plethora of judgments is covered under and is
an integral part of Art. 19(1)(a) which enshrines the Freedom of Speech and Expression.
24A of the Press Councils Act states:
Where, on receipt of a complaint made to it or otherwise, the Council has reason
to believe that a newspaper or news agency has offended against the sovereignty
or integrity of the nation or national interest or that an editor or working
journalist has by their conduct either by written or orally tried to manipulate
public opinion against the sovereignty & integrity of the nation or against the
37
38

supra note 32.


AIR 1950 SC 124.

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elected government, the Council may, after giving the newspaper, or news agency,
the editor or journalist concerned an opportunity of being heard, hold an inquiry
in such manner as may be provided by regulations made under this Act and, if it is
satisfied that it is necessary so to do, it may, for reasons to be recorded in writing,
warn, , admonish, censure the newspaper, the news agency, the editor or the
journalist, disapprove the conduct of the editor or the journalist as the case
maybe or may impose a fine not exceeding Rs 10,00,000/-.
Penalising free speech with a fine, or by admonishing, censuring, warning, or disapproving the content
of journalistic work, amounts to censorship which violates the core values of Art. 19(1)(a).
In the case of Rangarajan v. P. Jagjivan Ram,39 the Supreme Court overturned the High Court decision
while upholding the freedom of speech and expression. In doing so, the Court went on to observe that
the anticipated danger of the speech in question should not be remote, conjectural or farfetched but have
proximate and direct nexus with the expression and equivalent of a spark in a powder keg.
The Apex Court has many times emphasised that freedom of expression cannot be suppressed on
account of threat of demonstration and processions or threats of violence. It is the duty of the State to
protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot
plead its inability to handle the hostile audience problem. As censorship is permitted only on the
grounds listed under Art. 19(2), the standard to be applied by the courts should be that of an ordinary
man of common sense and prudence and not that of an out of the ordinary or hypersensitive man. 40
In Shreya Singhal v. Union of India, 41 Justice Nariman held that, any law seeking to impose a
restriction on the freedom of speech can only pass muster if it is proximately related to any of the eight
subject matters set out in Art. 19(2).
It is the Petitioners humble submission that true journalistic work can rarely, if ever, rise to the amount
of inciting violence or threatening the sovereignty or integrity of a nation and thus, the restrictions put
on it by 24A are not protected by the reasonable restrictions mentioned in Art. 19(2) of the
Constitution.

39

(1989) 2 SCC 574.


Bhagwati Charan Shukla v. Provincial Government, AIR 1947 Nag 1.
41
AIR 2015 SC 1523.
40

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4.2.THAT 24A IS IN VIOLATION OF ART. 21 OF THE CONSTITUTION.


The right to life includes the right to carry on such functions and activities adequate to give expression
to human self, and thus by extension, the society. A person is entitled to enjoy his personal rights and to
be protected from encroachments on such personal rights, freedoms, and liberties. Art. 21 of the
Constitution is of the widest amplitude, and it thus includes the right to personal liberty. 24A of the
PCI Act, 1978 chips away at the right to freedom of press as it makes any possible criticism of the
government a criminal offence. Where criminal offence is created, it should be created in clear
language.
The Right to Life guaranteed under Art. 21 embraces within its sweep not only physical existence but
the quality of life also. Any statutory provision running counter to such a right must be held
unconstitutional.42 It was held that the expanded meaning includes the right to hold a particular opinion,
to sustain and to nurture that opinion.43 The right to personal liberty under Art. 21 must be read with
Art. 19 and Art. 14, with a view to strengthen the right of personal liberty and to overcome the weakness
of guarantee of procedure established by law.44 Even apart from Art. 19, the requirement of fairness is
inherent in Art. 21, which is akin to the concept of reasonableness.
The Petitioner submits that the impugned Section is too broad in its sweep and contains several
undefined words/terms, making it susceptible to abuse. This keeps the Media from exercising their
constitutionally protected right to free press for fear of frivolous prosecution. Thus, 24A is violative of
Arts. 14, 19 and 21 of the Constitution of Indiana that guarantee citizens the Fundamental Rights to
equality, free speech, and life respectively.

42

Confederation of Ex-serviceman Association v. Union of India, (2006) 8 S.C.C. 399.


Ozhair Hussain v. Union of India, A.I.R. 2003 Del 103.
44 R.C. Cooper v. Union of India, (1970) 1 S.C.C. 248.
43

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PRAYER

In view of the aforesaid facts and circumstances, it is most respectfully prayed that this Honble Court
may be pleased to:

1.

HOLD that the Fundamental Right of Petitioner No. 1 under Art. 19(1) (b) of the Constitution has

been violated by the State and order the Government to pay appropriate compensation for the same.
AND
2.

HOLD that 124A of the Indiana Penal Code is ultra-vires the provisions of the Constitution and

quash the conviction of Petitioner No 2 given by the the Honbe High Court of Delporto.
AND
3.

HOLD that 24A of the Press Council Act, 1978 is ultra-vires the Constitution.
AND

4.

Pass any other order and directions, as this Honble Court may deem fit and proper in the facts and

circumstances of the case in the interest of justice and in favour of the Petitioners.

Petitioners

Date:

Through:

Place:

Advocate

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BIBLIOGRAPHY
BOOKS REFERRED

1. V. DICEY, THE LAW OF THE CONSTITUTION (10th ed. 1959).


2. ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA (2nd ed. Reprint 2010).
3. DR. DURGA BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA (20th ed. Reprint 2012).
4. DR. J.N.PANDEY, CONSTITUTIONAL LAW OF INDIA (38th ed. 2002).
5. DR.DURGA BASU, CONSTITUTIONAL LAW OF INDIA (8th ed. 2011).
6. H.M.SEERVAI, CONSTITUTIONAL LAW OF INDIA (4th ed.).
7. A. SABITHA, PUBLIC HEALTH: ENFORCEMENT AND LAW (1st ed. 2008).
8. JUSTICE G.P.SINGH, PRINCIPLES OF STATUTORY INTERPRETATION (12th ed. Reprint 2011).
9. M.P.JAIN, INDIAN CONSTITUTIONAL LAW (5th ed. 2003).
10. DARREN J OBYRNE, HUMAN RIGHTS: AN INTRODUCTION (1st ed. 2003).
11. DURGA DAS BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW (3rd ed. 2008).
12. COLETTE DAIUTE, HUMAN DEVELOPMENT & POLITICAL VIOLENCE (1st ed. 2010).
13. DARREN J OBYRNE, HUMAN RIGHTS: AN INTRODUCTION (1st ed. 2003).
14. R. SATYA NARAYANA, NATURAL JUSTICE: EXPOANDING HORIZONS (1st ed. 2008).

ARTICLE

1. Goran Simic, Universal Jurisdiction and its Interplay with Sovereign Immunity 1 INDIAN JOURNAL OF
LAW AND INTERNATIONAL AFFAIRS 121 (New Delhi 2016).

26