WHETHER MS.

MEHABOOBA SHEIKH IS GUILTY OF WAGING

WAR AGIANST GOVERNMENT AND SEDITION?
A.1 Distributing of pamphlet amongst the people of khamir does not
amounts to waging war against government.
Section 121- whoever wages war against the Government of India, or attempts
to wage such war, or abets the waging of such war, shall be punished with
death, or imprisonment for life, and shall also be liable to fine.1
Mehabooba sheikh has not acted vague against the government. The pamphlet
should be interpreted in a good sense. The pamphlet was issued to remind the
people of Khamir about the seriousness of the situation and not to create
disorder among the people of khamir.
Ms. Mehabooba sheik directed her confidential advisor Mr. Tareek Mehmood to
distribute a pamphlet amongst the people of khamir. It clearly shows that
Mehabooba sheikh has directed Mr. Tareek Mehmood to distribute the
pamphlet and she has not intended to release it in a vague manner therefore,
Mehabooba sheikh is not entitled to capital punishment.
A.2 Section 124- A is a restriction on the fundamental rights set out in
Article 19 of the Constitution:-
Section 124-A, Whoever by words spoken or written, or by signs, or by visual
representations, or otherwise brings or attempts to bring into hatred or
contempt, or excites or attempts to excite disaffection towards the Government
established by law in India shall be punished with imprisonment for life to
which fine may be added, or with imprisonment which may extend to three
years, to which fine may be added, or with fine.
Explanation 1. – The expression disaffection includes disloyalty and all feelings
of enmity.
Explanation 2 – Comments expressing disapprobation of the measures of the
Government with a view to obtain their alteration by lawful means, without
exciting or attempting to excite hatred, contempt or disaffection, do not
constitute an offence under this section.
Article 19(1)(a) provides Protection of certain rights regarding freedom of
speech, etc.- All citizens shall have the right to freedom of speech and
expression.2

1
THE INDIAN PENAL CODE, 1860 section 124-A.
2
M.P.SINGH, CONSTITUTION OF INDIA, Pg.no. 71, 5th edition, 2018.
The State cannot prevent open discussion and open expression, however, hateful
to its politics. Everyone has a fundamental right to form his own opinion on any
issue or general concern. He can form a inform by any legitimate means.3
In the Supreme Court when the question came up as to the constitutional
validity of Section 124-A in kedar Nath singh v. State of Bihar4, the court
differing from the Privy council, adopted the construction placed by the Federal
Court and held that on a correct construction, the provisions of Section 124-A
are limited in their application “ to acts involving intention or tendency to create
disorder or disturbance of law and order or incitement to violence” and one of
the reasons for adopting this construction was to avoid the result of
unconstitutionality in view of Article 19(1)(a) and 19(2) of the constitution.
Thus, the Supreme Court has ruled that the provisions of Section 124-A are not
unconstitutional. In kedar Nath case the gist of what the Supreme Court said
was that out of two interpretations, the one which is constitutional should be
adopted.
Moreover, “A citizen has a right to say or write whatever he likes about the
government; or its measures, by way of criticism, or comment so long as he
does not incite people to violence”. Therefore it is evident that section 124-A is
a proof of the fact that the government can be criticised by all legitimate means
and the State cannot do anything.
In Bilal Ahmed Kaloo v. State of A.P.5, The charge framed against the
appellant contained no averment that the appellant did anything as against the
government. In these circumstances, conviction for sedition is not justified.
Sedition covers everything that amounts to defamation of the government but
excludes any criticism in good faith of any particular measure or act of
administration.6
Recently upholding the right to freedom of speech and expression, the Bombay
High Court has held that citizens have the right to say or write anything
criticising the government and its measures, as far as it does not incite violence
or create problems in law and order.
Therefore, Mehabooba sheikh has not spread the pamphlet in order to create any
chaos among people or had any intention to commit a seditious act, the term "

3
Anand Patwardhan v. Union of India, AIR 1997. Bom.25
4
AIR 1962 SC 955: (1962) 2 Cri LJ 103.
5
B.M. GANDHI, INDIAN PENAL CODE, Pg. no.244, 4th edition, 2017.
6
BATUK LAL, INDIAN PENAL CODE, Pg.no.218, 3rd edition, 2015.
war" was a wrong choice of word instead it was meant as conflict therefore my
party has not committed any kind of sedition as per IPC 124-A.
The pamphlet was issued in a good sense to remind the people of their special
status and to fight back to retain their special status and the pamphlet does not
amounts to sedition and Mehabooba sheik cannot be sentenced with capital
punishment. Thus, the Appeal and writ petition is maintainable.
Fair criticism is a valid ground supported by Article 19(1)(a). The government
may express the concern, not exercise control over the people. Thus, the act of
my client does not amounts to sedition.