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22IP63022

RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW

BEFORE THE SESSIONS COURT OF PASCHIM MEDINIPUR,

WEST BENGAL

S.C. NO. _____/2023

State of West Bengal............................................................................................Prosecution

versus

Mohan................................................................................................................Defence

FOR OFFENCES CHARGED UNDER:

SECTION 121 OF THE INDIAN PENAL CODE, 1860

As Submitted to the Sessions judge & other Companion judges of the Honorable
Sessions Court of Paschim Medinipur

Written Submissions on Behalf of Prosecution

Mannam Jeevanthika
22IP63032

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TABLE OF CONTENTS

TABLE OF CONTENTS......................................................................................................2

INDEX OF AUTHORITIES..................................................................................................3

STATEMENT OF JURISDICTION.......................................................................................7

STATEMENT OF FACTS.................................................................................................viii

ISSUES RAISED..............................................................................................................11

SUMMARY OF ARGUMENTS.........................................................................................12

ARGUMENTS ADVANCED.............................................................................................14

I. WHETHER THE ORDER PASSED BY THE DHANPUR GOVERNMENT

ON AUGUST 15, 2022, VIOLATES THE FUNDAMENTAL RIGHTS
ENSHRINED IN THE CONSTITUTION OF INDIS?...............................................14

A. The Executive order violates the fundamental right to freedom of speech and expression guaranteed
under the Indis Constitution............................................................................................................................14

B. THE EXECUTIVE ORDER IS NOT GOVERNED BY A DEFINED LAW..................................18

C. THE EXECUTIVE ORDER IS ARBITRARY AND HENCE VIOLATIVE OF ARTICLE 14.....19

D. The Executive order is Violative of Article 21.................................................................................21

E. The executive order is violative of Article 19(1)(g) and not reasonable under 19(6).......................22

II. WHETHER SECTION 124A OF THE INDIS PENAL CODE IS

VIOLATIVE OF THE FUNDAMENTAL RIGHTS ENSHRINED IN THE
CONSTITUTION OF INDIS?.....................................................................................23

III. WHETHER THE GOVERNMENT ORDER SHALL REQUIRE JOSHI’S

BOOK TO BE SUBMITTED FOR PRE-CENSORSHIP REVIEW, AND WHETHER
PRE-CENSORSHIP OF THIS TYPE IS VIOLATIVE OF THE FUNDAMENTAL
RIGHTS?......................................................................................................................26

A. Should the government order require Joshi’s book to be submitted for pre-publishing review?......27

B. Is the pre-censorship is violative of fundamental rights?.................................................................28

IV. Whether the invocation of Section 124 A of the IPC is in contravention of the
order of the Hon’ble Supreme Court, given by a 3-judge Bench, in S.G. Vombatkere’s
case on May 11.2022....................................................................................................31

PRAYER FOR RELIEF......................................................................................................34

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INDEX OF AUTHORITIES

LIST OF CASES

1. Sakal Papers (P) Ltd. v. Union of India [1962] SC 842, [1962] 3 SCR

2. State of Karnataka and others v Associated Management of (Government Recognised -

Unaided - English Medium) Primary and Secondary Schools [2014] SC 485, [2014] 9
SCC

3. Romesh Thappar v. State of Madras [1950] SC 124, [1950] AIR

4. Bennet Coleman & Co. v. Union of India [1972] SC 7881, [1972] 2 SCC

5. N. Radhakrishnan v. Union of India [2018] SC 725, [2018] 9 SCC

6. Indian Express Newspapers v. Union of India [1986] SC 641, [1986] SCC

7. Bishambhar dayal Chandra Mohan v. State of UP [1982] SC 39, [1982] 1 SCC

8. N.K Bajpai v. Union of India and Another [2012] SC 653, [2012] 4 SCC

9. Pathumma and others v. State of Kerala and ors. [1978] SC 1, [1978] 2 SCC

10. State of Madras v. V.G Row [1952] SC 410, [1952] 1 SCC

11. M/s Laxmi Khandsari and Others v. State of U.P and Others [1981] SC 600, [1981] 2
SCC

12. Sherya Singhal v. Union of India [2015] SC 1523, [2015] AIR

13. The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia [1960] SC 633,
[1960] AIR

14. Om Kumar v. Union of India [2001] SC 386, [2001] 2 SCC

15. N.K Bajpai v. Union of India and Another [2012] SC 653, [2012] 4 SCC

16. Bennet Coleman & Co. v. Union of India [1972] SC 7881, [1972] 2 SCC, Sakel Papers
(P) Ltd. v. Union of India [1962] SC 842, [1962] 3 SCR.

17. State of T.N. v. P. Krishnamurthy [2006] SC 517, [2006] 4 SCC.

18. AP Aggarwal v. Government of NCT Delhi [1999] SC 205, [1999] AIR.

19. Bachan singh v. State of Punjab [1982] SC 24, [1982] 3 SCC.

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20. E.P. Royappa v. State of Tamil Nadu and Ors. [1974] SC 3, [1974] 4 SCC.

21. AL Karla v. P & E Corporation of India Ltd. [1984] SC 1361, [1984] AIR.

22. Workman v. Meenakshi Mills Ltd [1992] SC 336, [1992] 3 SCC.

23. Dwarkadas Marfatia & Sons v. Board of Trustees, Bombay Port [1989] SC 1642, [1989]
AIR; LIC v. Escorts [1986] SC 1370, [1986] AIR.

24. Shrilekha Vidyarthi v. State of Uttar Pradesh [1991] SC 537, [1991] AIR.

25. Union of India v. Amrik Singh [1991] SC 597, [1991] AIR; DK Yadav v. JMA Industries
[1993] SC 259, [1993] 9 SCC.

26. Maneka Gandhi v. Union of India [1978] SC 248, [1978] 1 SCC.

27. Haji Abdool Shankoor & Corporation v. Union of India [1978] SC 248, [1978] 1 SCC.

28. Central Inland Water Transport Corporation v. Brojo Nath Ganguly [1978] SC 248,
[1978] 1 SCC.

29. Francis Coralie v. Administrator, Union Territory of Delhi [1981] SC 608, [1981] 1 SCC.

30. Board of Trustees of the Port of Bombay v. Dilipkumar R Nandkarni [1983] SC 124,
[1981] 1 SCC.

31. Olga Tellis v. Bombay Municipal Corporation [1985] SC 545, [1981] 3 SCC.

32. Ashoka Kumar Thakur v. Union of India [2008] SC 1, [2008] 6 SCC.

33. I.R. Coelho v. State of T.N. [2007] SC 1, [2007] 2 SCC.

34. Ashoka Kumar Thakur v. Union of India [2008] SC 1, [2008] 6 SCC.

35. State of Karnataka v. Associated Management of English of Medium Primary and

Secondary Schools [2014] SC 2094, [2014] AIR.

36. Alagaapuram R. Mohanraj v. T.N. Legislative Assembly [2016] SC 82, [2016] 6 SCC.

37. Society for Unaided Private Schools of Rajasthan v. Union of India [2012] SC 1, [2012] 6
SCC.

38. Cellular Operators Association of India v. TRAI[2016] SC 703, [2016] 7 SCC.

39. National Legal Services Authority v. Union of India, [2014] SC 438, [2014] 5 SCC;
Navtej Singh Johar v. Union of India, [2018] SC 1, [2018] 10 SCC.

40. Re-Ramlila Maidan, [2012] SC 1, [2012] 5 SCC..

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41. Tehseen S. Poonawalla v. Union of India, [2018] SC 501, [2018] 9 SCC.

42. Ram Nandan v. State of U.P., 1958 SCC Online All 117 : AIR 1959 All 101.

43. Kedar Nath Singh v. State of Bihar [1962] SC 955, [1962] AIR.

44. Shreya Singhal v. Union of India, [2015] SC 1, [2015] 5 SCC.

45. Ram Manohar Lohia v. State of Bihar [1966] SC 740, [1966] AIR.

46. S.S. Cheena v. Vijay Kumar Mahajan [2010] SC 190, [2010] 12 SCC.

47. Indian Express Newspapers v. Union of India [1985] SC 641, [1985] 1 SCC.

48. S. Rangarajan v. P. Jagjivan Ram, [1989] SC 574, [1989] 2 SCC.

49. Anuradha Bhasin v. Union of India (SC) WP No. 1031/2019.

50. Shayara Bano v. Union of India [2017] SC 1, [2017] 9 SCC; Navtej Singh Johar v. Union
of India [2018] SC 1, [2018] 10 SCC; Joseph Shine v. Union of India [2019] SC 39,
[2019] 3 SCC.

51. Vol. III, Speech of Somnath Lahiri, Indian Constituent Assembly, 29 April 1947.

52. Tara Singh Gopi Chand v. State [1950] P&H 113, [1950] SCC OnLine: [1951] P&H 27,
[1951] AIR.

53. Harakchand Ratanchand Banthia and Ors. v. Union of India [1969] SC 166, [1969] 2
SCC.

54. The State of Uttar Pradesh v. Lalai Singh Yadav [1977] SC 202, [1977] AIR

55. Ajay Gautam vs. Union of India [2015] 147 DRJ 514

56. Baragur Ramachandrappa and Ors. v. State of Karnataka and Ors. [2007] SC 1086,
[2007] 5 SCR.

57. Union of India v. Naveen Jindal and Anr. [2004] SC 510, [2004] 2 SCC.

58. Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. v. Union of India and Ors.
[1986] SC 515, [1986] AIR.

59. S. Khushboo v. Kanniammal and Anr. [2010] SC 600, [2010] 5 SCC.

60. Government of Andhra Pradesh and Ors. v. P. Laxmi Devi [2008] SC 720, [2008] 4 SCC.

61. S. Tamilselvan and Ors. vs. The Government of Tamil Nadu and Ors. WP No. 1215 of
2015.

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62. Maqbool Fida Hussain v. Rajkumar Pandey, 2008 Cr. L.J. 4107.

63. Near v. Minnesota 283 U.S. 607, at 717-8, L Ed p. 1368.

64. Nachiketa Walhekar v. Central Board of Film [2018] SC 945, [2018] AIR.

65. Secretary, Ministry of Information & Broadcasting, Govt. of India and Ors. v. Cricket
Association of Bengal and Ors. [1995] SC 161, [1995] 2 SCC

66. Bobby Art International and Ors. v. Om Pal Singh Hoon and Ors. [1996] SC 1846, [1996]
AIR

67. Vinod Dua v. Union of India & Ors. [2020] Writ Petition (Crl.) No. 154

68. Brij Bhushan v. State of Delhi [1950] SC 129, [1950] AIR

69. Dink v. Turkey, Application Numbers 2668/07

70. Blackstone's Commentaries, Vol. IV. pp. 151, 152

71. Express Newspaper Ltd. v. Union of India [1958] SC 578, [1958] AIR

72. S.G. Vombatkere Vs. Union of India W.P.C. No. 682/2021,W.P.C. No. 552/2021

73. Mohan v. Union of India [2001] Writ Petition (Crl.) No. 169

74. Aman Chopra v. State of Rajasthan and Ors [2022] Criminal Misc(Pet.) No. 2516

75. Waheed Ur Rehman Parra vs. UT of J and K [2021] Crl. M. No. 1064

BOOKS AND ARTICLES

1. Mahendra Pal Singh, V.N. Shukla’s Constitution of India (13th ed, 2021)

2. M.P. Jain, Indian Constitutional Law: With Constitutional Documents

3. D.D. BASU, Shorter Constitution Of India (14th ed. 2009)

4. Prof. K.N.C. Pillai, Essays on the Indian Penal Code

5. Dr. Hari Singh Gour’s Penal Law of India (Vol. 2, 2006)

6. Indian Penal Code, 1860 (Act 45 of 1860)

7. Film Censorship in India: A "Reasonable Restriction" on Freedom of Speech and

Expression, [1972] JILI 501

8. Bridging the Gaps in Sedition Stay Order: Analysis of S.G. Vombatkere v. Union of
India by Deepak Singh

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9. The Code of Criminal Procedure, 1973 (Act 2 of 1974), Bare Act

10. The Muslim Women (Protection of Rights on Divorce) Act, 1986, Bare Act

11. The Constitution of India, 2023 as amended by The Constitution Act (105th
Amendment) Act 2021

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STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Section 177, read
with Section 209 of the Code of Criminal Procedure, 1973.

Section 177:

177. Ordinary place of inquiry and trial

Every offence shall ordinarily be inquired into and tried by a Court within whose
local jurisdiction it was committed.

Read with Section 209:

209. Commitment of case to Court of Session when offence is triable exclusively

by it

When in a case instituted on a police report or otherwise, the accused appears or is

brought before the Magistrate, and it appears to the Magistrate that the offence is
triable exclusively by the Court of Session, he shall-

(a) commit the case to the Court of Session;

(b) subject to the provisions of this Code relating to bail, remand the accused to
custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any,
which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of
Session.

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STATEMENT OF FACTS

1. Mohan (Accused) is a contract worker employed by ABK Agency (PW6) in Salua for the
construction of roads connecting to Kolkata. On August 6, 2018, PW 6 received the
tender for road construction, which will begin at Air Base Salua, and for that, PW6 has
obtained official permission from the Indian Airforce (PW3) for construction.

2. The accused, along with three other workers named Siva (PW7), Mukesh (PW2), and
Praveen (PW8), assisted workers in the vicinity of the Controlling Room. Because the
controlling room is close to the construction, most of the time, the workers can hear
official conversations and information dissemination. And the majority of the information
disseminated contained strategies and blueprints for maintaining national security and
planning to counter the nearby terrorist areas.

3. Research and Analytical Wing (RAW), the Government of India's foreign intelligence
agency, received information that certain terrorist activity is taking place near the West
Bengal border area and that they may launch a major attack on Indian territories. PW3
also received an alert based on RAW's information.

4. On September 4, 2018, at around 9 p.m., two serial blasts occurred simultaneously in

Salua Airbase Station. As a result, many Air Force personnel were killed, and many more
were injured. Another blast had occurred, this time aimed at the control room, destroying
all of the information stored there.

5. As a result of police investigation it was revealed that the accused had been missing since
the night of September 3rd, when he failed to return with PW7, PW2, and PW8 to the tent
house that PW6 had temporarily constructed near Salua. Further the statements given by
PW7, PW2 and PW8, on September 3, 2018, reveals that the accused was working
hurriedly and kept going and coming unnecessary on the grounds of brining raw
materials, despite the fact that that much raw material was not used on that day.

6. According to the supervisor's statement, Ram (PW13), it was discovered that the accused
roamed around the controlling room after that side of construction was completed on
September 1st, 2018.

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7. On September 3, 2018, and he left Salua immediately after their daily work was
completed to Kolkata. Since then, he has not returned nor contacted anyone.

8. Furthermore, the police learned from Army personnel that the strategic information
designed a few days ago in Salua station had already been hacked by terrorist
organizations.

9. Based on witness statements and circumstantial evidence, police arrested the accused in
Bhubaneswar Railway Station.

10. The prosecution was initiated by the State, and a case of waging war under section 121 of
the IPC has now been filed against the accused .

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ISSUES RAISED

THE PETITIONERS VERY RESPECTFULLY PUT FORTH TO THE HON’BLE

SESSIONS COURT THE FOLLOWING QUERIES:

ISSUE 1:

WHETHER THE ACCUSED IS LABIALE FOR THE OFFENCE OF WAGING WAR

UNDER SECTION 121, IPC?

ISSUE 2:

WHETHER THE ACT OF THE ACCUSED GIVES HIM THE BENEFIT OF THE
DOUBT WITH RESPECT TO THE ACT OF WAGING THE WAR?

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SUMMARY OF ARGUMENTS

I. WHETHER THE ACCUSED IS LABIALE FOR THE OFFENCE OF WAGING

WAR UNDER SECTION 121, IPC?

II. WHETHER THE ACT OF THE ACCUSED GIVES HIM THE BENEFIT OF THE
DOUBT WITH RESPECT TO THE ACT OF WAGING THE WAR?

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ARGUMENTS ADVANCED

I. WHETHER THE ORDER PASSED BY THE DHANPUR GOVERNMENT ON

AUGUST 15, 2022, VIOLATES THE FUNDAMENTAL RIGHTS ENSHRINED IN
THE CONSTITUTION OF INDIS?

1. The executive order passed by the Dhanpur government to prohibit the publication of any
book relating to history, culture, tradition, and geography without the approval of a
committee is invalid because the order violates the fundamental right to freedom of
speech and expression, the order is arbitrary, violates right to livelihood, and violates
freedom of profession recognised under the Indis Constitution.

A. The Executive order violates the fundamental right to freedom of speech

and expression guaranteed under the Indis Constitution.

2. The Fundamental Right to freedom of speech and expression can be reasonably restricted
on the grounds of sovereignty and integrity of Indis, the security of the State, friendly
relations with foreign States, public order, decency or morality or in relation to contempt
of court, defamation or incitement to an offence1. The importance of the right to freedom
of expression regarding individuals and societies has been recognised in multiple

judgements across jurisdictions. The Supreme Court has widened the scope of this right

by including the freedom to publish 2. Presently, this right has been violated by the
executive order because it restricts the freedom to publish and it is not reasonable under
article 19(2) of the Indis constitution.

i. The right to publish which is a right under freedom of speech and expression have been
violated.

3. The freedom of speech and expression is absolutely necessary for an individual to

develop his personality in his own way and this is one reason, if not the only reason, why
under Article 19(1)(a) of the Indis constitution every citizen have been guaranteed this
right3. The right to freedom of speech and expression includes the propagation of ideas 4
and carries with it the right to publish and circulate one’s ideas, opinion and views (supra
1
Article 19 of Indis Constitution
2
Sakal Papers (P) Ltd. v. Union of India [1962] SC 842, [1962] 3 SCR
3
State of Karnataka and others v Associated Management of (Government Recognised - Unaided - English
Medium) Primary and Secondary Schools [2014] SC 485, [2014] 9 SCC
4
Romesh Thappar v. State of Madras [1950] SC 124, [1950] AIR

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3). The right of freedom of speech and expression also includes right of citizens to speak,
publish and express their views as well as right of people to read5.

4. The culture of banning books directly impacts the free flow of ideas and is affront to the
freedom of speech, thought and expression. Any direct and veiled censorship or ban of
book, unless defamatory or derogatory to any community for abject obscenity, would
create unrest and disquiet among the intelligentsia 6. Hence, going by the precedent set by
the supreme court, this ban on book published by the petitioner, Merenk Jamir, violates
this right guaranteed to him.

5. Freedom of speech and expression has four broad social purposes to serve: (i) it helps the
individual to attain self-fulfilment, (ii) it assists in the discovery of truth, (iii) it
strengthens the capacity of an individual to participate in decision making and (iv) it
provides a mechanism by which it would be possible to establish a reasonable balance
between stability and social change7. In this instant case, the executive order prohibits the
author from assisting in the discovery of truth and prohibits his decision-making
capabilities. In this case the petitioner is a young scholar who obtained a PhD from Yale
University in archaeological anthropology and wrote a book based on his PhD. By
prohibiting his works, the government also prohibits him from attaining his self-
fulfilment, which is a social purpose of freedom of speech and expression under 19(1)(a).

6. A free, uncensored and unhindered publication is essential in any society to ensure

freedom of opinion and expression and the enjoyment of other rights. The court also held
that freedom of speech and expression are the foundation of all democratic organisations
and are essential for the proper functioning of the processes of democracy (supra 4).
Hence it is humbly submitted before the court that the executive order passed by the
Dhanpur government is violative of the right to publish and hence violative of freedom of
speech and expression guaranteed under 19(1)(a) of the Indis constitution.

ii. The restriction of freedom of speech and expression is not reasonable under 19(2).

7. The executive order passed by the Dhanpur government, which restricts the right to
freedom of speech and expression, is not reasonable under 19(2) of the constitution of

5
Bennet Coleman & Co. v. Union of India [1972] SC 7881, [1972] 2 SCC
6
N. Radhakrishnan v. Union of India [2018] SC 725, [2018] 9 SCC
7
Indian Express Newspapers v. Union of India [1986] SC 641, [1986] SCC

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Indis. The supreme court has laid down multiple guidelines and tests to determine
whether or not the restriction imposed is reasonable in many landmark cases.

8. The expression “reasonable restrictions” signifies that the limitation imposed on a person
in the enjoyment of the right should not be arbitrary of an excessive nature, beyond what
is required in the interests of the public8. Going by the above precedent, the executive
order by the Dhanpur government is excessive in nature and beyond what is required in
the interests of the public as it covers wide range of topics such as “history, culture,
tradition and geography of the State” and there is no criteria in the order clarifying about
the how any book would be scrutinized by the committee.

9. Test to determine the validity/reasonableness of the restrictions: (a) the restriction can be
imposed only by or authority under law, (b) each restriction must be reasonable, and (c)
restriction must be related to purpose mentioned in art.19(2) to (6) – If the restriction is
not able to satisfy these tests or either of them, it will vitiate law so enacted and the
action9. The government order is not backed by any law and the purpose of restriction
imposed is not clearly spelt out. Hence the restriction imposed is not related to any
purpose mentioned in 19(2).

10. In another landmark case the following tests have been laid down as guidelines to indicate
in what particular circumstances a restriction can be regarded as reasonable (i)The
restriction must not be arbitrary or of an excessive nature so as to go beyond the
requirements of the interests of the general public, (ii) The legislature must take
intelligent care and deliberation in choosing the course which is dictated by reason and
good conscience so as to strike a just balance between the freedom in the article and the
social control permitted by the restrictions under the article, (iv) No abstract or general
pattern or fixed principle can be laid down so as to be of universal application. It will
have to vary from case to case and having regard to the changing conditions, values of
human life, social philosophy of the constitution, prevailing conditions and the
surrounding circumstances all of which must enter into the judicial verdict,(v) The court
is to examine the nature and extent, the purpose and content of the right, the nature of the
evil sought to be remedied by the statute, the ratio of harm caused to the citizen and the

8
Bishambhar dayal Chandra Mohan v. State of UP [1982] SC 39, [1982] 1 SCC
9
N.K Bajpai v. Union of India and Another [2012] SC 653, [2012] 4 SCC

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benefit conferred on the person or the community for whose benefit the legislation is
passed10.

11. Again, applying the above-mentioned tests, the executive order excessive in nature and
goes beyond the requirements of the interests of the general public because it covers
books from wide fields. The order also does not strike a balance between guaranteed
freedom and social control as it seeks to refer every book under the mentioned fields to
the committee. The court specifically said there could not be any general or fixed pattern
to be followed. Changing conditions, values of human life, and social philosophy of the
constitution have to be considered. In this instant case, the nature and extent of the
restriction are more than the evil sought to be remedied. Hence it is humbly submitted
that the order is not reasonable under 19(2).

12. In considering the reasonableness of laws imposing restrictions on fundamental right,

both the substantive and procedural aspects of the impugned law should be examined
from the point of view of reasonableness 11. In this instant case, the executive order
violated both the substantive and procedural aspects as it does not specify on what
grounds the book will be scrutinized and it also doesn’t specify any provision for the
representation of the views of the author.

13. The court must examine the direct and immediate impact of the restriction on the rights of
the citizen and determine if the restrictions are in the larger public interest while deciding
the question whether they contain the quality of reasonableness12. The limitation imposed
in the interests of public order to be a reasonable restriction, should be one which has a
proximate connection or nexus with public order, but not one far-fetched, hypothetical or
problematical or too remote in the chain of its relation with the public order13.

14. In this case the petitioner’s book was published, on September 1, 2022 and his book was
referred to the committee on September 30, 2022 and he was arrested on October 24,
2022. But the demand for Banga land originated long before the publication of his book
and that is the reason why Armed Forces (Special Powers) Act, 1958 was imposed from
September 1980. Hence the arrest and ban of petitioner’s book is far-fetched, hypothetical

10
Pathumma and others v. State of Kerala and ors. [1978] SC 1, [1978] 2 SCC
11
State of Madras v. V.G Row [1952] SC 410, [1952] 1 SCC
12
M/s Laxmi Khandsari and Others v. State of U.P and Others [1981] SC 600, [1981] 2 SCC
13
Sherya Singhal v. Union of India [2015] SC 1523, [2015] AIR

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or problematical or too remote in the chain of its relation with the public order. Hence it is
humbly submitted before the court that the Executive order and the events that followed
does not pass the proximate nexus test.

15. The restriction made "in the interests of public order" must also have reasonable relation
to the object to be achieved, i.e., the public order. If the restriction has no proximate
relationship to the achievement of public order, it cannot be said that the restriction is a
reasonable restriction within the meaning of the said clause 14. Since the demand for
Banga land is long-drawn, the restriction of freedom of publish any content does not have
any proximate relationship to the achievement of the public order.

16. Any challenge to restrictions imposed by the Government under Articles 19(2) to 19(6)
are tested by Courts on the “principle of proportionality”. Whether restrictions placed are
reasonable or not is adjudicated on the basis of appropriate balance between rights
guaranteed and the control permissible under Article 19(2) to 19(6). When legislation is
challenged on the ground that restrictions placed on the fundamental right is
disproportionate, the Court conducts a primary review where the State has to justify the
necessity of restricting the fundamental rights. Proportionality involves balancing test and
necessity test. The “balancing test” relates to scrutiny of excessive onerous penalties or
infringement of rights or interest and a manifest imbalance of relevant considerations.
Whereas, the “necessity test” requires infringement of human rights in question to be by
the least restrictive alternative15.

17. Applying the above tests of proportionality in this instant case, the executive order passed
by the Dhanpur government fails to pass the balance test because it places an excessive
limitation on the right by placing books related to wide range of topics under the scrutiny
of the committee. Similarly, it also fails the necessity test as the government does not
contemplate for the least restrictive alternative. Hence it is humbly submitted before the
court that the restrictions imposed by the order is not reasonable under the ambit of 19(2),
and hence it is liable to be struck down.

14
The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia [1960] SC 633, [1960] AIR
15
Om Kumar v. Union of India [2001] SC 386, [2001] 2 SCC

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B. THE EXECUTIVE ORDER IS NOT GOVERNED BY A DEFINED

LAW

18. It is contended that that the executive order is in itself is not valid as it is not backed by
any law in existence. “No person can be divested of his fundamental rights. There are
incapable of being taken away or abridged. All the state can do, by the exercise of its
legislative power, is to regulate these rights by the imposition of reasonable restrictions
on them. Upon analysis of the law, the following tests emerge: (a) the restriction can be
imposed only by or under the authority of law. It cannot be imposed by executive power
without any law to back it up”16.

19. Applying the two-fold test set by the supreme court, in this instant case the executive
order by the government of Dhanpur is not backed by any law in existence which is
passed by a competent authority.

20. The executive order is to be invalid when it is not covered by any law in existence.
Hence, it is not even necessary for us to consider whether they are reasonable restrictions
warranted by either Article 19(2) or Article 19(6) of the Constitution. They must first
have the authority of some law to support them before the question of considering
whether they could be reasonable restrictions on the fundamental rights of the petitioners
could arise17. Hence the executive order is not based on any law in existence the, it is not
even necessary for the court to look into the reasonableness of the restriction imposed by
the order under 19(2) to 19(6).

21. The Supreme court held that subordinate legislation could be challenged on the following
grounds:(a) Lack of legislative competence to make the sub-ordinate legislation, (b)
Violation of Fundamental Rights guaranteed under the Constitution of India, (c) Violation
of any provision of the Constitution of India, (d) Failure to conform to the Statute under
which it is made or exceeding the limits of authority conferred by the enabling Act18.
Applying the above tests, it is humbly submitted before the court that the executive order
itself is invalid since it does not conform to any statute and is liable to be struck down.

16
N.K Bajpai v. Union of India and Another [2012] SC 653, [2012] 4 SCC
17
Bennet Coleman & Co. v. Union of India [1972] SC 7881, [1972] 2 SCC, Sakel Papers (P) Ltd. v. Union of
India [1962] SC 842, [1962] 3 SCR.
18
State of T.N. v. P. Krishnamurthy [2006] SC 517, [2006] 4 SCC.

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C. THE EXECUTIVE ORDER IS ARBITRARY AND HENCE

VIOLATIVE OF ARTICLE 14

i. The executive order passed by the Dhanpur government is arbitrary.

22. It is contended before the court that the executive order passed by the Dhanpur
government is arbitrary and hence violative of equality guaranteed under the constitution
of Indis. Article 14 outlaws arbitrary administrative action, and arbitrary state action
infringes the same19. Wherever here is arbitrariness or un reasonableness, there is a denial
of rule of law20.

23. Article 14 embodies “a guarantee against arbitrariness” on the part of administrative

action21. “Articles 14 strike at arbitrariness in State action and ensure fairness and equality
of treatment. They require that State action must be based on equivalent relevant
principles applicable alike to all similarly situated and it must not be guided by any
extraneous or irrelevant considerations because that would be denial of equality. Where
the operative reason for State action, as distinguished from motive inducing from the
antechamber of the mind, is not legitimate and relevant but is extraneous and outside the
area of permissible considerations, it would amount to mala fide exercise of power and
that is hit by Articles 14”22. In this instant case, the executive order is extraneous and
outside the area of permissible consideration because the executive order curtails the
freedom guaranteed under 19 without proper procedure.

24. Article 14 strikes at the arbitrariness in executive action because any action that is
arbitrary must involve the negation of equality 23. In view of the fact that some of the
grounds for challenging the validity of a section on the ground of violation of Article 19
can also be made the basis for challenging the ground of violation of article 1424.

25. Every action of state must be informed by reasons and guided by public interest. Actions
uninformed may be questioned as arbitrary. Whenever there is arbitrariness in state
action, Article 14 springs into life, and judicial review strikes such a state action 25. It is
19
AP Aggarwal v. Government of NCT Delhi [1999] SC 205, [1999] AIR.
20
Bachan singh v. State of Punjab [1982] SC 24, [1982] 3 SCC.
21
Jain MP, Pal S and Pal R, M.P. Jain Indian Constitutional Law: With Constitutional Documents (LexisNexis
Butterworths Wadhwa Nagpur 2010).
22
E.P. Royappa v. State of Tamil Nadu and Ors. [1974] SC 3, [1974] 4 SCC.
23
AL Karla v. P & E Corporation of India Ltd. [1984] SC 1361, [1984] AIR.
24
Workman v. Meenakshi Mills Ltd [1992] SC 336, [1992] 3 SCC.
25
Dwarkadas Marfatia & Sons v. Board of Trustees, Bombay Port [1989] SC 1642, [1989] AIR; LIC v. Escorts

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now well settled that every state action, in order to survive, must not be susceptible to the
vice of arbitrariness which is the crux of Article 14 of the constitution and the basic to the
rule of law, the system which governs us, arbitrariness being the negation of rule of law 26.
Hence it is humbly submitted before the court that the executive order is arbitrary and
violative of Article 14.

i. The executive order passed by the Dhanpur government violated the right of fair
hearing.

26. It is contended that the executive order passed by the Dhanpur government violated the
right of fair hearing. The Supreme court has observed that, “the Audi alteram partem rule,
in essence, enforces the equality clause in article 14 and it is applicable not only to quasi-
judicial bodies but also to administrative orders adversely affecting the party in question
unless the rule has been excluded by the act in question 27. The supreme court also held
that the principles of natural justice are an integral part of the guarantee of equality
assured by article 1428.

27. An order depriving a person of his civil right passed without affording him opportunity of
being heard suffers from the vice of violation of natural justice and is thus an arbitrary
order29.The court also held that the judicial concept of article 14 has progressed “from
prohibition against discriminatory class legislation to an invalidating factor for any
discriminatory or arbitrary state action”30. While any book is considered by the
committee, it does not provide any opportunity to the author of the book to present his
view and counterclaims. Hence it is humbly submitted before the court that the executive
order is violative of the principle of natural justice.

D. The Executive order is Violative of Article 21

28. The executive order is violative of the right to live with dignity, violative of right to
livelihood and hence violative of article 21. The Supreme court, while interpreting Article
21 observed that “the right to life includes the right to live with human dignity and all that

[1986] SC 1370, [1986] AIR.

26
Shrilekha Vidyarthi v. State of Uttar Pradesh [1991] SC 537, [1991] AIR.
27
Union of India v. Amrik Singh [1991] SC 597, [1991] AIR; DK Yadav v. JMA Industries [1993] SC 259,
[1993] 9 SCC.
28
Maneka Gandhi v. Union of India [1978] SC 248, [1978] 1 SCC.
29
Haji Abdool Shankoor & Corporation v. Union of India [1978] SC 248, [1978] 1 SCC.
30
Central Inland Water Transport Corporation v. Brojo Nath Ganguly [1978] SC 248, [1978] 1 SCC.

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goes along with it, viz the bare necessities of life such as adequate nutrition, clothing and
shelter over the head and facilities for reading, writing and expressing oneself in diverse
forms, freely moving about and mixing and mingling with fellow human beings31.

29. The court expanded the definition of the word ‘life’ in article 21 to include right to ‘right
to livelihood’32. In other case court held that the right to life includes right to livelihood
and the sweep of right to life conferred by article 21 is wide and far-reaching 33.
Deprivation of livelihood would not only denude the life of its effective content and
meaningfulness but it would make life impossible to live. In this instant case, the
petitioner’s right to live with dignity and his right to livelihood is violated.

30. Similarly, in various decisions, the supreme court has pointed out the connection between
the articles 14,19 and 21. Article 19(1)(g) belongs to the golden triangle – Article 14, 19
and 21 are three fundamental rights that stands above the rest. Without the triangle,
democracy is impossible34. The golden triangle of Article 14, 19 and 21, as it stands for
equality and the rule of law clearly forms part of the basic structure of the constitution
and cannot be abrogated35. Since in this instant case, it is already pointed out that the
executive order is violative of 19(1)(a), 19(1)(g), and 14, hence article 21 should be
viewed with this article as a whole not in isolation. Hence it is humbly submitted before
the court that the executive order is in violation of the Article since it violate the right to
live with dignity and livelihood.

E. The executive order is violative of Article 19(1)(g) and not reasonable

under 19(6)

31. It is contended that the executive order is violative of Article 19(1)(g) as it limits the right
to profession. In this instant case, the petitioner Merenk Jamir’s write to practice his
profession and earn a livelihood by authoring a book is restricted. Article 19(1)(g) is a
facet of basic structure of the constitution. The right to freedom under article 19 has long
been recognised as a natural and inalienable right that belongs to all the citizens36.

31
Francis Coralie v. Administrator, Union Territory of Delhi [1981] SC 608, [1981] 1 SCC.
32
Board of Trustees of the Port of Bombay v. Dilipkumar R Nandkarni [1983] SC 124, [1981] 1 SCC.
33
Olga Tellis v. Bombay Municipal Corporation [1985] SC 545, [1981] 3 SCC.
34
Ashoka Kumar Thakur v. Union of India [2008] SC 1, [2008] 6 SCC.
35
I.R. Coelho v. State of T.N. [2007] SC 1, [2007] 2 SCC.
36
Ashoka Kumar Thakur v. Union of India [2008] SC 1, [2008] 6 SCC.

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32. The word ‘any’ read with ‘freedom’ in the title of Article 19 implies an element of
choice, even though unlike Article 30(1) the word ‘choice’ is not specifically used.
Freedom to choose is thus available in all rights implicit in the right to practice any
profession or to carry on any occupation, trade or business 37. Hence the petitioner has the
right to choose his profession and occupation. Here, the petitioner preferred to author a
book and practice his profession.

33. The amplitude of the term “occupation” is limited by the economic imperative of
livelihood generation. Therefore, all the activities contemplated under Article 19(1)(g) are
essentially activities which enable a citizen to generate economic benefits and to protect
the fruits of one’s labour38. Here, the petitioner’s right to publish a book and earn
economic benefits out of it is prohibited by the Dhanpur government.

i. The executive order passed by the Dhanpur government is not reasonable under 19(6).

34. The amplitude of the term “occupation” is limited by the economic imperative of
livelihood generation. Therefore, all the activities contemplated under Article 19(1)(g) are
essentially activities which enable a citizen to generate economic benefits and to protect
the fruits of one’s labour (supra 38).

35. The grounds specified in 19(2) to 19(6) are exhaustive and are to be strictly construed.
The court is not concerned with the necessity of the impugned legislation or the wisdom
of the policy underlying it, but whether the restriction is in excess of the requirement and
whether the law has overstepped the constitutional limitations39.

36. The supreme court held that the law restricting right under Article 19(1)(g) has to satisfy
two distinctive tests, (i) being interest of general public, and (ii) being a reasonable
restriction. The regulation must pass the test of “manifest arbitrariness” and must be of
intelligent care and deliberation40.

37. The Supreme court has laid down the criteria to evaluate the reasonableness of a
restriction under Article 19(6). The court must take into account (i) whether the law has
struck the proper balance social control, on the one hand, and the right of the individual
37
State of Karnataka v. Associated Management of English of Medium Primary and Secondary Schools [2014]
SC 2094, [2014] AIR.
38
Alagaapuram R. Mohanraj v. T.N. Legislative Assembly [2016] SC 82, [2016] 6 SCC.
39
Society for Unaided Private Schools of Rajasthan v. Union of India [2012] SC 1, [2012] 6 SCC.
40
Cellular Operators Association of India v. TRAI[2016] SC 703, [2016] 7 SCC.

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on the other, (ii) factors such as the nature of the right enshrined, the underlying purpose
of the restriction imposed, evil sought to be remedied by the law, its extent and urgency,
how far the restriction is or is not proportionate to evil and the prevailing conditions at
that time.

II. WHETHER SECTION 124A OF THE INDIS PENAL CODE IS VIOLATIVE

OF THE FUNDAMENTAL RIGHTS ENSHRINED IN THE CONSTITUTION OF
INDIS?

38. It is contended that the Section 124-A of the Indis Penal Code violates freedom of speech
and expression and is constitutionally invalid because the Section does not pass the test of
reasonability and the section is extensive in its coverage, vague, stifles criticism of the
government, which is beyond constitutional morality.

i. Section 124A of the Indis Penal Code is violative of freedom of speech and expression
and not reasonable

39. Article 19, which guarantees the freedom of speech and expression, recognizes that it is a
natural right of an individual to be treated absolutely essential to his being41. The Supreme
Court of India has held a speech to be an undeniable human right from which almost all
other freedoms spring42. The right under Article.19 is essential to the sustenance of
democracy and is necessary as a tool for proper governance in a constituted democracy 43.
It is also to be noted that the Government of Indis is also party to the International
Covenant on Civil and Political Rights where Article 19 also guarantees freedom of
opinion and expression.

40. The Allahabad High Court held the section 124-A of IPC ultra vires of the Constitution
as it imposes a restriction on freedom of speech and expression, not in the interest of
general public and thereby infringed the fundamental right of freedom of speech and
expression44. Though the Supreme court overturned this decision in Kedar Nath Singh
case45, the observation made is still relevant.

ii. The Section 124-A is outside the scope of restrictions under art. 19 and not reasonable.

41
National Legal Services Authority v. Union of India, [2014] SC 438, [2014] 5 SCC; Navtej Singh Johar v.
Union of India, [2018] SC 1, [2018] 10 SCC.
42
Re-Ramlila Maidan, [2012] SC 1, [2012] 5 SCC..
43
Tehseen S. Poonawalla v. Union of India, [2018] SC 501, [2018] 9 SCC.
44
Ram Nandan v. State of U.P., 1958 SCC Online All 117 : AIR 1959 All 101.
45
Kedar Nath Singh v. State of Bihar [1962] SC 955, [1962] AIR.

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41. The supreme court held that mere discussion or even advocacy of a particular cause,
howsoever unpopular is at the heart of article 19(1)(a). It is only when such discussion or
advocacy reaches the level of incitement that 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 and integrity of
integrity, security of state, friendly relations with foreign states etc46.

42. None of the restrictions under 19(2) cover hatred, contempt or disaffection towards the
government. Further, the court held that public order had been held not to be synonymous
with law and order but something which affects the public at large 47. Along the same
lines, the court also held that incitement to an offence is not merely that the audience may
have a feeling of hatred, contempt or disaffection but should have been by abetment to
commit an offence48.

43. The attention must be drawn to the case of Kedar Nath Singh v. State of Bihar49 where the
Supreme Court of India held that mere expression of disaffection or disloyalty against the
government will not amount to sedition. The court limited the application of the section to
only those acts which have ‘tendency to public disorder by the use of actual violence or
incitement to violence’. Here the petitioner’s arrest under section 124A didn’t follow
these guidelines.

44. The test of legitimacy implies that restriction imposed on freedom of speech and
expression must be for one of the enumerated legitimate aims and must not be a
colourable exercise of power50. The test of necessity and proportionately implies that the
restrictions cannot be broad in their application and must be narrowly tailored so as to
restrict only what is absolutely necessary and must be justified on the anvil of necessity 51.
The test of proportionally is one of balancing means and ends and to see whether the
imposed restriction was least intrusive52. The action of State in imposing restriction is also
to be tested on propriety based on constitutional morality 53. Hence the Section 124A of

46
Shreya Singhal v. Union of India, [2015] SC 1, [2015] 5 SCC.
47
Ram Manohar Lohia v. State of Bihar [1966] SC 740, [1966] AIR.
48
S.S. Cheena v. Vijay Kumar Mahajan [2010] SC 190, [2010] 12 SCC.
49
Supra 45
50
Indian Express Newspapers v. Union of India [1985] SC 641, [1985] 1 SCC.
51
S. Rangarajan v. P. Jagjivan Ram, [1989] SC 574, [1989] 2 SCC.
52
Anuradha Bhasin v. Union of India (SC) WP No. 1031/2019.
53
Shayara Bano v. Union of India [2017] SC 1, [2017] 9 SCC; Navtej Singh Johar v. Union of India [2018] SC
1, [2018] 10 SCC; Joseph Shine v. Union of India [2019] SC 39, [2019] 3 SCC.

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Indis Penal Code doesn’t stand the test of reasonableness and is outside the scope of
restrictions mentioned in the Article 19 of the constitution of Indis. Hence it is humbly
submitted that the section 124A of Indis Penal Code is not constitutionally valid.

iii. Section 124-A of the Indis Penal Code is extensive and vague.

45. The grounds for sedition are too vague and provide discretionary power to the
government. Therefore, there is always a high possibility that the government will
arbitrarily use this vagueness to suppress the dissent of its own people. The essentials of
Section 124-A show that the spoken or written words by a person are punishable if the
effect of the object is to bring or attempt to bring into hatred or contempt or excite or
attempt to excite disaffection towards the government established by law.

46. While sedition as a restriction was discussed in the constitutional assembly, it was
criticised for its adverse effect on freedom of speech and expression. Discussion in the
constitutional assembly on 29th April 1947, sedition was trenchantly criticised by
Somnath Lahiri. He warned presciently enough that sedition would be used to crush
political dissent as it had been used in the colonial times. Consequently, sedition was
withdrawn from the Constitution as a ground for imposing a restriction on the freedom of
speech and expression54

47. In one of the earliest case, Punjab and Haryana high court observed that “India is now a
sovereign democratic state. A government may go and be caused to go without the
foundations of the state is impaired. A law of sedition thought necessary during a period
of foreign rule has become inappropriate by the very nature of the change which has
come about. The unsuccessful attempt to excite bad feelings is an offence within the
ambit of section 124A. In some instances, at least the unsuccessful attempt will not
undermine or tend to overthrow the state. It is enough if one instance appears of the
possible application of the section to curtailment of the freedom of speech and expression
in a manner not permitted by the Constitution. The section then must be held to have
become void.”55

48. The section is too vague that, in essence, any criticism of the government is made
punishable. The effect on the audience depends on the intellectual capacity of the
54
Vol. III, Speech of Somnath Lahiri, Indian Constituent Assembly, 29 April 1947.
55
Tara Singh Gopi Chand v. State [1950] P&H 113, [1950] SCC OnLine: [1951] P&H 27, [1951] AIR.

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viewers. Similarly, the absence of an objective basis to determine the offence makes the

offence vague and imprecise56. No action on the part of the audience or response of the
audience to objectively show whether hatred or contempt, or disaffection was excited
against the Govt is made necessary ingredient of the offence. Such broad and imprecise

wording makes the offence unspecific and the Section is void for its vagueness.

iv. Section 124 -A is against constitutional morality.

49. Working toward democracy requires discussion and criticism of the government, and
these activities are crucial components of freedom of speech and expression. As free
speech can only be prohibited where there is a good basis to assume that there would be
immediate harm if it is exercised, Section 124-A violates the right to freedom of speech

and expression. Even morally condemnable advocacy that violates the law cannot justify
denial of free speech when nothing signifies that such advocacy is immediately acted

upon. Further, a law is valid in curtailing free speech only when discussion/advocacy
leads to incitement (supra 47). Even if a cause is unpopular, simply advocating for it
cannot be restricted under the pretext of sedition. Therefore, Section 124-A of the IPC
violates Art. 19 of the Constitution inasmuch as it punishes or has the potential to punish
mere discussion and advocacy.

III. WHETHER THE GOVERNMENT ORDER SHALL REQUIRE JOSHI’S

BOOK TO BE SUBMITTED FOR PRE-CENSORSHIP REVIEW, AND WHETHER
PRE-CENSORSHIP OF THIS TYPE IS VIOLATIVE OF THE FUNDAMENTAL
RIGHTS?
A. Should the government order require Joshi’s book to be submitted for
pre-publishing review?

50. In the case of State of Uttar Pradesh v. Lalai Singh Yadav 57, while analyzing the ban on
the book “Ramayana: A True Reading” written by EVR Periyar, the honourable Supreme
Court of India held that the government had to necessarily state the reasons for banning a
book. It was held that the triple facets of a valid order banning a book are as follows: 1.
that the book or document contains any matter, 2. such matter promotes or intends to
promote feelings of enmity or hatred between different classes of the citizens of India, 3.
a statement on the grounds of Government’s opinion.
56
Harakchand Ratanchand Banthia and Ors. v. Union of India [1969] SC 166, [1969] 2 SCC.
57
The State of Uttar Pradesh v. Lalai Singh Yadav [1977] SC 202, [1977] AIR

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51. In the present case, two of the three criteria are fulfilled. The book contains matter and the
government had grounds for imposing the order. Concerned with the second criterion in
the above-mentioned list, the intention of the writer, the petitioner, Devanand Joshi, was
not to promote enmity or hatred between the different groups of society. He, on his blog,
had mentioned that the book was written with the intention of writing what he perceives
of the book. As per Article 19(1)(a) of the Indian Constitution, he is guaranteed freedom
of speech and expression. It is to be noted that the mass protests were sparked by people
without reading the entire book.

52. In the case of The State of Uttar Pradesh v. Lalai Singh Yadav58, the court further stated

“It is also to be noted that what offends primitive people may be laughable for
progressive communities. What is outrageous hearsay for one religion or sect or
country or time may be untouchably holy for another. The rule of human advance is
free thought and expression, but the survival of the society enjoins reasonable curbs
where public interest calls for it. The balance is struck by governmental wisdom
overseen by judicial review”.

53. In case of Ajay Gautam vs. Union of India59, a petition was filed seeking a restraint on the
exhibition of the movie titled ‘PK’ as it hurt the religious sentiments of a group of
society. The court, while declaring the judgement, stated that

“In a diverse country as ours, citizens and residents whereof profess nearly all religions,
people are used to a high level tolerance in the matters of religion and sequences of the
film to which objection is taken are not found to be surpassing such tolerance levels. The
more devoted a person in his religious belief, the greater should be his spirit of tolerance.
Our country enjoys a shared membership of human race and our future depends on
tolerance of distinctions that mark the richness and diversity of the plural community of
man which this country enjoys.... Freedom of speech and expression contributes to the
richness and equilibrium of the country. There is nothing in the religion particularly the
Hindu religion which prohibits free speech or debate or dissent. In fact, every religion
has variations even of dogma”.
Hence in the light of above precedents, it is humbly submitted that the government order

58
Supra 57
59
Ajay Gautam vs. Union of India [2015] 147 DRJ 514

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requiring the petitioner’s book to be reviewed is not warranted.

B. Is the pre-censorship is violative of fundamental rights?

54. It is contended that the pre-censorship is violative of fundamental rights mentioned in part
III of the constitution. The part III of the constitution of India guarantees its citizens
fundamental rights. One of these rights includes the freedom of speech and expression,
which is discussed in article 19(1)(a) of the constitution. The article guarantees every
citizen with the right to freedom of speech and expression, assembly, form associations,
free movement, etc. These rights are a vehicle in the direction of progress and social
change.60

55. Freedom of expression is a cornerstone for the functioning of the society and there is a
constitutional commitment to free speech.61 In the case of Indian Express Newspapers
(Bombay) Pvt. Ltd. and Ors. v. Union of India and Ors62., the court held:

“Freedom of expression, as learned writers have observed, has four broad social
purposes to serve: (i) it helps an individual to attain self-fulfilment, (ii) it assists in the
discovery of truth, (iii) it strengthens the capacity of an individual in participating in
decision-making and (iv) it provides a mechanism by which it would be possible to
establish a reasonable balance between stability and social change. All members of
society should be able to form their own beliefs and communicate them freely to others.
In sum, the fundamental principle involved here is the people's right to know.”

56. This freedom of speech and expression is not an absolute right and can be subjected to
reasonable restrictions on grounds of decency, morality, public disorder among others.
Stress must be laid on the need to tolerate unpopular views in the socio-cultural space.
The right of freedom of speech and expression was added to the constitution since the
Constitution framers recognized the importance of the free flow of opinions and ideals. 63
These freedoms are also essential for social and economic progress and without the
freedom to criticize, dissent amongst others, there can be no progress.64

60
Baragur Ramachandrappa and Ors. v. State of Karnataka and Ors. [2007] SC 1086, [2007] 5 SCR.
61
Union of India v. Naveen Jindal and Anr. [2004] SC 510, [2004] 2 SCC.
62
Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. v. Union of India and Ors. [1986] SC 515, [1986]
AIR.
63
S. Khushboo v. Kanniammal and Anr. [2010] SC 600, [2010] 5 SCC.
64
Government of Andhra Pradesh and Ors. v. P. Laxmi Devi [2008] SC 720, [2008] 4 SCC.

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57. As per the facts of the case, the order issued by the Government of Dhanpur prohibited
the publication of any book relating to history, culture, tradition and geography if the
constituted committee disapproved of the publication. Thus the publishing of book is
included in the freedom of speech and expression and despite having views different from
the popular opinion, Devanand Joshi had the right to freedom of speech and expression,
which the state must protect.65

58. In a democracy, the right to dissent is a hallmark. The dissenter must feel at home and
should not be feared of expressing unconventional and critical views. There should be
freedom for the thought we hate. Freedom of speech has no meaning if there is no
freedom after speech.66

59. In the rights guaranteed by Article 19(1)(a), there is included freedom of press. The
freedom of speech and press lay the foundation of the democratic organizations. In the
case of Romesh Thappar v. State of Madras, the majority opined that

“A freedom of such amplitude might involve risks of abuse. But the framers of the
Constitution may well have reflected with Madison who was 'the leading spirit in the
preparation of the First Amendment of the Federal Constitution', that 'it is better to leave
a few of its noxious branches to their luxuriant growth, than, by pruning them away, to
injure the vigour of those yielding the proper fruits'”67

60. In the case of Nachiketa Walhekar vs. Central Board of Film Certification and Ors.68, the
court mentioned that the freedom of speech and expression is sacrosanct and the said right
should not be ordinarily interfered with. The court, in paragraph 4, further said,

“a film or a drama or a novel or a book is a creation of art. An artist has his own
freedom to express himself in a manner which is not prohibited in law and such
prohibitions are not read by implication to crucify the rights of expressive mind. The
human history records that there are many authors who express their thoughts according
to the choice of their words, phrases, expressions and also create characters who may
look absolutely different than an ordinary man would conceive of. A thought-provoking

65
S. Tamilselvan and Ors. vs. The Government of Tamil Nadu and Ors. WP No. 1215 of 2015.
66
Maqbool Fida Hussain v. Rajkumar Pandey, 2008 Cr. L.J. 4107.
67
Near v. Minnesota 283 U.S. 607, at 717-8, L Ed p. 1368.
68
Nachiketa Walhekar v. Central Board of Film [2018] SC 945, [2018] AIR.

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film should never mean that it has to be didactic or in any way puritanical. It can be
expressive and provoking the conscious or the sub-conscious thoughts of the viewer. If
there has to be any limitation, that has to be as per the prescription in law.”

61. The print media further enjoys as in our country, freedom from pre-censorship unlike the
electronic media.69 As per the facts of the case, the details of the book revealed were
through the blog account of Devanand Joshi on Twitter. The book had not been released
at the time and the mass protests which sparked were through the excerpts mentioned on
the blog account. The book as a whole had to be looked at, and a stray sentence here or
there picked up out of context could not be taken into account, and the assessments made
on this principle are not justified.70

62. Every journalist is entitled to protection in case of prosecution under Sections 124A and
505 of the Indian Penal Code, 1860. This protection must be in strict conformity with the
law laid down by the Hon’ble Supreme Court in the case of Kedar Nath Singh. 71 Pre-
censorship on a book or journal is a restriction on the liberty of freedom of press which is
covered under Article 19(1)(a).72 There is a positive obligation on the state to prevent
There is a positive obligation of the State to the prevent censorship by such (mob) groups
and a positive obligation on the State to protect the life and freedom of expression of the
writer.73 Blackstone, in his commentaries, pointed out

"the liberty of the press consists in laying no previous restraint upon publications, and
not in freedom from censure for criminal matter when published. Every freeman has all
undoubted right to lay what sentiments he pleases before the public; to forbid this, is to
destroy the freedom of the press.”74

63. The Constitution Bench of this Court in Express Newspaper Ltd. v. Union of India 75 had
occasion to consider Article 19(1)(a) of the Constitution in context of freedom of press.
The Apex Court in the said case examined the Constitutional Law as well as American

69
Secretary, Ministry of Information & Broadcasting, Govt. of India and Ors. v. Cricket Association of Bengal
and Ors. [1995] SC 161, [1995] 2 SCC
70
Bobby Art International and Ors. v. Om Pal Singh Hoon and Ors. [1996] SC 1846, [1996] AIR
71
Vinod Dua v. Union of India & Ors. [2020] Writ Petition (Crl.) No. 154
72
Brij Bhushan v. State of Delhi [1950] SC 129, [1950] AIR
73
Dink v. Turkey, Application Numbers 2668/07
74
Blackstone's Commentaries, Vol. IV. pp. 151, 152
75
Express Newspaper Ltd. v. Union of India [1958] SC 578, [1958] AIR

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Law on the freedom of speech and expression. The Apex Court in the above case has laid
down the following:

“This is the concept of the freedom of speech and expression as it obtains in the United
States of America and the necessary corollary thereof is that no measure can be enacted
which would have the effect of imposing a pre-censorship curtailing the circulation or
restricting the choice of employment or unemployment in the editorial force. Such a
measure would certainly tend to infringe the freedom of speech and expression and
would therefore be liable to be struck down as unconstitutional.”
Hence in light of the above precedents cited, it is humbly submitted before the court that pre-
censorship is violative of fundamental rights mentioned in Part III of the constitution.

IV. Whether the invocation of Section 124 A of the IPC is in contravention of the
order of the Hon’ble Supreme Court, given by a 3-judge Bench, in S.G. Vombatkere’s
case on May 11.2022.

64. It is contended that the Police action to book the petitioner Jamir under Section 124-A of
the Indis Penal Code for sedition, is in contravention of order of the Hon’ble Supreme
Court, given by a 3-judge Bench, in S.G. Vombatkere’s case.

65. In S.G. Vombatkere Vs. Union of India76, the petitions were filed challenging the
Constitutionality of Section 124 A of the Indian Penal Code 1860 (hereinafter IPC)
relating to the offence of Sedition.

66. The Hon'ble Supreme Court, vide its order dated 11.05.2022 passed in S.G. Vombatkere
Vs. Union of India, in W.P.(C) 682/2021 passed on 11.05.2022 has decided to re-examine
and re-consider the provisions of Section 124-A of the IPC and has further directed that
all pending trials, appeals and proceedings with respect to the charge framed under
Section 124-A IPC be kept in abeyance and adjudication with respect to the other
Sections, if any, be proceeded with. It is further directed by the Hon'ble Supreme Court
that the State Governments and Central Government shall refrain from registering any
new FIR or continuing with any investigation or taking any coercive measures by
invoking Section 124-A IPC, while the aforesaid provision of law is under consideration.

76
S.G. Vombatkere Vs. Union of India W.P.C. No. 682/2021,W.P.C. No. 552/2021

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Hence, the usage of the aforesaid provision of law i.e. Section 124-A IPC has been kept
in abeyance by orders of the Hon'ble Supreme Court of India.

67. The order reads as follows:

a. ****

b. We hope and expect that the State and Central Governments will restrain from
registering any FIR, continuing any investigation or taking any coercive measures by
invoking Section 124A of IPC while the aforesaid provision of law is under
consideration.
c. If any fresh case is registered under Section 124A of IPC, the affected parties are at
liberty to approach the concerned Courts for appropriate relief. The Courts are
requested to examine the reliefs sought, taking into account the present order passed
as well as the clear stand taken by the Union of India.
d. All pending trials, appeals and proceedings with respect to the charge framed under
Section 124A of IPC be kept in abeyance. Adjudication with respect to other Sections,
if any, could proceed if the Courts are of the opinion that no prejudice would be
caused to the accused.
e. In addition to the above, the Union of India shall be at liberty to issue the Directive
as proposed and placed before us, to the State Governments/Union Territories to
prevent any misuse of Section 124A of IPC.
f. The above directions may continue till further orders are passed.

68. A reading of the above shows that, trials under Section 124-A of IPC have been kept in
abeyance temporarily, but, it is also stated that the trial courts can proceed with cases in
respect of other offences.77

69. In Aman Chopra v. State of Rajasthan and Ors.78, Honourable High Court taking note of
the S.G. Vombatkere, on the same day, directed the IO to not investigate the matter for
allegations covered by Section 124A of the Indian Penal Code. Hon. High Court also
directed that the petitioner not arrested in new FIRs likely to be filed in relation to original
issue.

77
Mohan v. Union of India [2001] Writ Petition (Crl.) No. 169
78
Aman Chopra v. State of Rajasthan and Ors [2022] Criminal Misc(Pet.) No. 2516

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70. In Waheed Ur Rehman Parra Vs. UT of J&K79, while disposing of the bail application
observed regarding the sedition charges under Section 124-A IPC, the issue is governed
by the recent judgment of the Supreme Court in the case of S.G. Vombatkere vs. Union of
India, 2022 Live Law (SC) 470, whereby the Supreme Court has directed that all the
pending trials, appeals and proceedings with respect to the charge framed under Section
124-A of IPC shall be kept in abeyance.

71. In Dharminder Singh and Ors. Vs. State of Punjab, Hon. High Court granted the bail
application following the order of the Supreme Court in the case of S.G. Vombatkere.

72. The attention must be drawn to the case of Kedar Nath Singh v. State of Bihar80 where the
Supreme Court of India held that mere expression of disaffection or disloyalty against the
government will not amount to sedition. The court limited the application of the section to
only those acts which have ‘tendency to public disorder by the use of actual violence or
incitement to violence’. Here the petitioner’s arrest under section 124A didn’t follow
these guidelines.

73. The book in question, nowhere it advocates for overthrow or subversion of the
Government established by law through violent means and it also does not bring or
attempt to bring into hatred or contempt and does not excite or attempt to excite
disaffection towards the Government established by law attracting the offence punishable
under Section 124A IPC. Hence it is humbly submitted before the court that, invocation
of Section 124 A of the IPC is in contravention of the order of the Hon’ble Supreme
Court, given by a 3-judge Bench, in S.G. Vombatkere’s case.

79
Waheed Ur Rehman Parra vs. UT of J and K [2021] Crl. M. No. 1064
80
Supra 45

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PRAYER FOR RELIEF

WHEREFORE, IN THE LIGHT OF THE FACTS STATED, ISSUES RAISED,

ARGUMENTS ADVANCED, REASONS GIVEN, AND AUTHORITIES CITED,
COUNSELS ON BEHALF OF THE PETITIONER HUMBLY PRAY BEFORE THIS
HON’BLE COURT TO KINDLY ADJUDGE AND DECLARE THAT:

A. THE ORDER PASSED BY THE DHANPUR GOVERNMENT ON AUGUST 15, 2022,

IS VIOLATIVE OF THE FUNDAMENTAL RIGHTS ENSHRINED IN THE
CONSTITUTION OF INDIS AND HENCE INVALID.

B. SECTION 124A OF THE INDIS PENAL CODE IS VIOLATIVE OF THE

FUNDAMENTAL RIGHTS ENSHRINED IN THE CONSTITUTION OF INDIS AND
HENCE ULTRA-VIRES TO THE CONSTITUTION.

C. THE GOVERNMENT ORDER THAT REQUIRES THE PETITIONER’S BOOK TO

BE SUBMITTED FOR PRE-PUBLISHING REVIEW IS VIOLATIVE OF THE
FUNDAMENTAL RIGHTS AND HENCE VOID.

D. THE INVOCATION OF SECTION 124A OF THE IPC IS IN CONTRAVENTION OF

THE ORDER OF THE HON’BLE SUPREME COURT IN S.G. VOMBATKERE’S
CASE.

RESPECTFULLY SUBMITTED,

COUNSEL FOR PETITIONER

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