Professional Documents
Culture Documents
APPEAL NO.____/2016
CLUBBED WITH
WRIT PETITION NOS.___/2016 & ___/2016
IN THE MATTER
OF
Petitioners
Respondent
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
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.
2.2.
2.3.
2.4.
2.5.
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
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.
PRAYER ..25
BIBLIOGRAPHY...26
LIST OF ABBRIVIATIONS
Abbreviation
Definition
&
And
AC
Appeal Cases
AIR
All.
Allahabad
Art.
Article
Cr.P.C.
Govt.
Government
HL
House of Lords
IPC
Ker.
Kerala
Mad.
Madras
Para.
Paragraph
PCI
r/w
Read With
Section
SC
Supreme Court
SCALE
SCC
SCJ
SCR
UOI
Union of India
v.
Versus
INDEX OF AUTHORITIES
CASES CITED
S.No.
1.
Case
Citation
2.
3.
4.
5.
6.
7.
8.
10.
11.
K. Neelamangalam v. State
13.
14.
15.
16.
17.
19.
20.
21.
22.
23.
24.
25.
27.
28.
29.
30.
Rex v. Aldred
(1909) Cox CC 1
31.
32.
33.
34.
35.
36.
37.
38.
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).
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.
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.
8
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
9
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.
10
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.
11
SUMMARY OF ARGUMENTS
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.
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 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.
12
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
13
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
14
15
11
16
19
20
17
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
18
It is the humbly submitted that the Petitioner is not guilty of sedition, and has been wrongfully
convicted in the instant case.
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
19
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
20
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
21
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
22
39
23
42
24
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
25
BIBLIOGRAPHY
BOOKS REFERRED
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