TEAM CODE

20

Aligarh Muslim University Centre

Malappuram, Kerela

Indra-Departmental Moot Court Competition,2022

BEFORE THE HONOURABLE SUPREME COURT OF INDICA

IN THE MATTER OF: -

Mr. Zukriwala And Mr. Petra Appellants

v.

State of Indica Respondent

BEFORE SUBMISSION TO
THE HONOURABLE CHIEF JUSTICE AND HIS COMPANION JUSTICES
OF
THE HONOURABLE SUPREME COURT OF INDICA

MEMORANDUM ON BEHALF OF THE APPPELANTS

MEMORIAL ON BEHALF OF THE APPELLANT

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 TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS……………………………………… 3

2. INDEX OF AUTHORITIES………………………………………...4-5

3. STATEMENT OF JURISDICTION………………………………...6

4. STATEMENT OF FACTS………………………………………….7-8

5. OUESTIONS PRESENTED ……………………………………… .9

6. SUMMARY OF ARGUMENTS………………………………… 10-11

7. ARGUMENT ADVANCED……………………………………….12-18

8. PRAYER…………………………………………………………...19

MEMORIAL ON BEHALF OF THE APPELLANT

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 LIST OF ABBREVIATIONS

AIR ………………….……………………………All India Reporter

Art. …………………….……………………………………. Article

Ed. …………………….……………………………………...Edition

Govt. ……………………………………………………Government

Hon’ble ……………………………………………………Honorable

Sec …………………………………………………………...Section

SCC ……………………………………………Supreme Court cases

Sd/ ……………………………………………………………Signed

v………………….……………………………………………versus

Crpc………….…….………………………Criminal procedure code

Ltd……………………………………………………………Limited

No………………………………………………… ………. number

Ors………………………………………………………………others

s………………….……………………………………………section

u/s………………………………………………………under section

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 INDEX OF AUTHORITIES

A. Act. RULES AND INSTRUCTIONS

• Indica penal code ,1860

• The constitution of Indica ,1950
• Universal Declaration of human rights

B. BOOKS

• M.P. Jain and S.N. Jain, principles of administrative law, P.No.1975-

1978(LexisNexis, Gurgaon, Haryana, seventh edition, ,2013)
• Walter Russel Donogh, The history and law of sedition and cognate
Offences, penal and preventive, P.No.62 (Thacker, spink & co., Calcutta
,1911)
• K.I. Vibhute (ed.), PSA Pillai’s: Criminal Law P.no. 390-392(LexisNexis,
Gurgaon, Haryana,14th edition,2019)
• Dr. . J. N. Pandey, constitutional law of India (central law publication,
Prayagraj, uttar Pradesh ,59Th edition,2022)
• S.N. Mishra, Indian penal code P. NO.320 (central law publication,
Prayagraj, Uttar Pradesh,19 th edition, 2013)
• K.D. Gaur, Indian penal code, P. No.220-222(universal law publishing co.
pvt. ltd., New Delhi, India, 5th edition ,2014)

C. Cases cited
• Arunachalam v. P.S.R. Setharathnam,(1979) 2 SCC 297
• Kartar Singh v. State of Punjab, 1994 (4) SCC 569

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 • Pritam Singh vs. The State (1950) SCR 453
• Mathai@ Joby v. George & (2010) 4 SCC 358
• Queen-Empress v. Jogendra Chunder Bose and others(1892)ILR19CAL35
• (Indirect Tax Practitioners Assn. v. R. K. Jain (2010) 8 SCC 281)
• Kedar Nath Singh vs State Of Bihar (1962) AIR 955, 1962 SCR Supl.(2)769
• Javed Habib v. Govt. of NCT Delhi (2007) SCC
• (State of Madras v. V. G. Row 952 AIR 196,( 1952 )SCR 597 at Pg 607
• Arjun Arora v. Emp AIR (1937) All. 295.
• R. Rajagopal v. State of T.N (1994)SCC 632
• Balwant Singh vs State Of Punjab ( 1976) AIR 230
• Tara Singh Gopi Chand v. The State (1951) CriLJ 449

D. WEB SOURCES

• www.casemine.com
• www.legalserviceindia.com
• www.lexisnexis.com
• www.enricalexi.com
• www.supremecourt.com
• www.justia.com
• www.lawkhoj.com
• www.manupatra.com
• www.Indiankanoon.com

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 E. REPORTS

• National crime record bureau ,2019

• Law commission consultation paper on “sedition”,2018

F. Journals
• All India Reporters
• Supreme Court Cases

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 STATEMENT OF JURISDICTION
This Hon’ble supreme court of indica has the jurisdiction to try, entertain and dispose of the
present case by virtue of article 136 of the constitution of Indica,1950 which reads as follows:
“Article 136 in The Constitution of India 1949
136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the Armed
Forces.”

The appellant most humbly and respectfully submits to the jurisdiction of the Hon’ble
supreme court of indica.

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 STATEMENT OF FACTS
For the sake of brevity and convenience of this hon’ble Court the facts of the present
case are summarized as follows:
1. Indica is a country situated in South Asia region of the world and is rapidly
developing country and has one of the biggest populations, the biggest democracy which has
many Religions, Cultures and Traditions.

2. The downside of the Indica is that still people not having access to the basic amenities
required to lead a dignified life. The corruption level has rendered the country crippled and its
presence has influenced people to such an extent that bribery has become a common trait.

3. The poverty level is astounding and to much surprise the inequality levels amongst
the rich and the poor is ever staggering and has become a matter of concern and thought.
Unemployment has risen to an extent that graduates and post graduates are forced to sell food
stuffs to run their houses.

4. Almica, is an NGO which has been founded in 2022 by Mr. Zukriwala (a Senior
Advocate practicing in The Supreme Court of Indica) and his associates, among whom, Mr.
Petra is the most prominent. The Almica has been founded on the Preamble which is as
follows: -

“We, the members of Almica, pledge to route the corruption from each and every sector
through lawful means and clinging to the constitutional values. The people responsible for
ruining the country shall be dealt with iron fists and shall meet their end. The people of Indica
now have awaken to revolutionize the country and get rid of the corrupt people, who have
failed the country. The Almica shall stand always in the way of oppressors and corrupters of
the land and shall always provide resistance of the highest degree”

5. The NGO’s official website was created by Mr. Petra and Mr. Zukriwala, who also
invited membership applications. Meanwhile, Mr. Zrosh, (an advocate practicing in Supreme
Court in Indica) gave a complaint on which police filed an FIR against the accused.

6. The FIR was registered against Mr. Zukriwala and Mr. Petra alleging sedition against
the NGO that works against the government and has objectives of only brainwashing
innocents against the Government and order to create outright law and orders situation and
incitement to public.

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 Trial Court:
After the case was committed to the court of Sessions, all the accused were charged. Learned
session Judge convicted all the accused persons under section 124A of IPC for offence of
sedition and sentenced two years of simple imprisonment.
High Court:
Appellant referred the matter to the High Court for confirmation under section 124A of IPC.
The High Court affirmed the conviction and confirm the two years of imprisonment of all the
accused.

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 QUESTION PRESENTED

1. Whether the present case is maintainable before the Hon’ble Supreme Court under

appropriate jurisdiction?

2. Whether the State and Institutional actors have failed in their duty and obligation under
constitutional democracy by invoking Section 124 (a) of IPC, in the light of Article 19(1) a and
clause 2 of the Constitution of Indica?

3.How far the trial court and High Court are correct in their findings and in holding conviction
against Mr. Zukriwala and Mr. Petra?

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 SUMMARY OF THE ARGUMENT

1.THE PRESENT CASE IS MAINTANABLE BEFORE THE HON’BLE SUPEREME

COURT UNDER APPROPRIATE JURISDICTION

The counsel on behalf of appellant most humbly submits that the present case is maintainable
before the Honorable supreme court of indica Under article 136. session court and High
court have erroneously charged the appellant under u/s 124 A of IPC without any substantial
evidence. the charges framed against the appellant are totally unwarranted. Hence, there is an
imminent need to relook the invocation of sedition under section 124A, and ensure that the
offence is used within defined legal limits, so as to strike a balance between national security
and the fundamental rights of citizens.

Article 136 (1) does not define the nature of proceedings from which the SC may hear appeal.
therefore, the court can hear appeal in any kind of proceeding whether criminal or civil.

The SC must interfere wherever it is required to do so for securing the ends of the justice and
to avoid injustice.

The appeal can succeed as an important question of law involved in the case. Hence the
appeal can be held maintainable.

2. The state and institutional actors have failed in their duty and obligation
under constitutional democracy by invoking section 124A of IPC in, in the
light of the article 19(1)(a) and clause 2 of the Indian constitution

The counsel on behalf of the appellant most humbly submits that section 124 A is a relic of
colonial legacy and unsuited in a democracy. the British, who introduced sedition to oppress
Indians, have themselves abolished the law in their country. Indica is a rapidly developing
country and it has the biggest democracy so, the law should also change as per the needs and
changing conditions of the state. there is no reason why should not indica abolish this section.
it is a constraint on the legitimate exercise of constitutionally guaranteed freedom of speech
and expression. article 19 (1)(a) guarantees the freedom of speech and expression to all
citizens. Freedom of speech and expression is the foundation of a democratic society.

Article 19 (a) is a fundamental right and cannot be taken away. However, it is not absolute
and is subject to reasonable restrictions under Article 19(2) in the interest of the sovereignty
and integrity of nation.

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The supreme court also held that if anyone criticizing the government then it is his
democratic right as long as he does not incite people to violence the preamble on which the
Almica has been founded is merely the exercise of right given under article 19 (1)(a) and it
has not caused any public disorder and is not threat to public disorder.

3. the trial court and High Court are not correct in their findings and in

holding conviction against Mr. Zukriwala and Mr. Petra

The counsel on behalf of appellant most humbly submits that the conviction of Mr. Zukriwala
and mr. Petra by the trial court and the same has been upheld by the high court is totally
wrong and the appellants have not violated any law in force. section 124A is ultra vires as it
contravenes the provision of 19(1)(a) of the constitution. in a democratic set up a citizen is
entitled to criticize the government with a view to change it.

The judgement by the trial court was not correct for the reason that it was not in the interest
of public order and that the restrictions imposed thereby were not reasonable restriction on
the freedom of speech and expression, was erroneous.

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 ARGUMENT ADVANCED

1. WHETHER THE PRESENT CASE IS MAINTAINABLE BEFORE

THE HON’BLE SUPREME COURT UNDER

APPROPRIATE JURISDICTION?

It is most humbly submitted before the hon’ble court that Art. 136 of the Indian constitution
allows the supreme court to grant special leave to appeal against any judgment or order made
by any court. The SC actually explains how the discretionary powers will be exercised in
granting leave to appeal, unless it is shown that exceptional and special circumstances exist,
that substantial and grave injustice has been done.

It is noted in the case Arunachalam v. P.S.R. Setharathnam(1979)the hon’ble court ruled

that the Supreme court has plenary jurisdiction under Article 136 to prevent miscarriage of
justice or to correct grave errors.

SLP has provided Residual power in the hands of supreme courts of indica when -:

A. there is substantial question of law: -

As in the present case not only enforcement of the fundamental but also substantial question

of law and constitutional question is involve and the appellant has been wrongfully convicted

under section 124A by trial and high court. Section has also been challenged on the basis of

vagueness. As per the decision of Hon’ble supreme court in kartar Singh v. state of Punjab

(1994), an enactment can be declared as void on the ground of vagueness. In the case of

Joby v. Mathai @George senior advocate k.k venu Gopalan; all matters involving substantial

questions of law interpreting will come under residuary jurisdiction of SC under article 136.

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B. Gross injustice has been done

The hon’ble court in the case of Pritam Singh v. state (1950)propounded that where there is
substantial and grave injustice has been done, and the case in question presents features of
sufficient gravity to warrant a review of the decision appealed or there has been departure
from legal procedure such as vitiates the whole trial or the finding of the fact. Hence the
appellant has made the rcorrect choice by filling an SLP u/s 136 instead of filling a writ
petition under article 32 of the Indian constitution which is only limited to enforcement of
fundamental rights .

rightly pointed out by Krishna Iyer, J.7,

“When extraordinary power under Article 136 chases injustice, sky is the limit.”

Thus, the Supreme Court while exercising power under Article 136, not only acts as a “court
of law” but also as a “court of equity” and such a power is exercised for doing full and
complete justice. Article 136 (1) does not define the nature of proceedings from which the SC
may hear appeal. therefore, the court can hear appeal in any kind of proceeding whether
criminal or civil.

2. WHETHER THE STATE AND INSTITUTIONAL ACTORS HAVE FAILED IN

THEIR DUTY AND OBLIGATION UNDER CONSTITUTIONAL DEMOCRACY BY
INVOKING SECTION 124 (A) OF IPC, IN THE LIGHT OF ARTICLE 19(1) A AND
CLAUSE 2 OF THE CONSTITUTION OF INDICA?

It is most humbly submitted before the Hon’ble court that criminalization of sedition violates
the article 19(1)(a) and is a ‘unreasonable restriction’ on the right to freedom of speech and
expression. In the case Queen empress v. Jogendra chundar Bose (1891) chief justice of
Calcutta high court explained the term DISAFFECTION(“disaffection means a feeling
contrary to affection ,in other words dislike or hatred”) and its distinction with the term
DISAPPROBATION ( “disapprobation men’s disapproval .One may disapprove of man’s
sentiments or actions and yet he may like him”) .In the present case Mr. zukriwala and Mr.
Petra are innocent and the the preamble of the NGO was only a positive and legitimate criticism
against the corruption committed by the member of the incumbent government and not against
the state . the objective of the preamble was not to propagate any sense of enmity and hatred
against the government established by law of Indica but to “route the corruption from each

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and every sector through lawful means and clinging to the constitutional values”which is
definitely not a threat against the security of the state. Hence the conviction of both the accused
is wrong and again sedition law has been misused to suppress the voices of the people of indica.

The essence of democracy,” as Munshi put it in the Constituent Assembly “is criticism of
government.” The sedition law disregards this core spirit. It criminalises censure and
opposition and it enervates, to the point of exhaustion, the basic structure of a
democratic republic.

that “change through free speech is basic to our democracy, and to prevent change through
criticism is to petrify the organs of democratic Government.” It was held that freedom of
expression is not only politically useful “but that it is indispensable to the operation of a
democratic system”. (Indirect Tax Practitioners Assn. v. R. K. Jain (2010) 8 SCC 281).

In 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR), which
sets forth internationally recognized standards for the protection of freedom of expression.
However, misuse of sedition and arbitrary slapping of charges are inconsistent with India's
international commitments.

It has been explicitly recognized by the Human Rights Council of the United Nations General
Assembly that Freedom of expression is a cornerstone of democratic rights and freedoms and
the exercise of the right to freedom of opinion and expression is one of the essential foundations
of a democratic society. The Human Rights Council has also recognized that the effective
exercise of the right to freedom of opinion and expression is an important indicator of the level
of protection of other human rights and freedoms in member states. When other human rights
violations occur in states, typically freedom of expression is restricted by governments in a bid
to cover up other atrocities and governmental failure.

in case of kedar Nath Singh v. state of Bihar (1962) Supreme Court of India decided on the
scope of Section 124-A.

The Court read down the section; “holding that acts involving intention or tendency to create
disorder, or disturbance of law and order, or incitement to violence would be made penal
by section 124-A. It is respectfully submitted that the Supreme Court in Kedar Nath’s case did

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not go far enough in reading down the section. Retaining ‘intention’ and ‘tendency’ as basis
for criminal liability means that these inherently subjective terms can be used (and abused) to
penalize those who have not caused any violence or public disorder.”

It is submitted that when this interpretation, as defined by Kadar Nath’s case is applied, there
are two “scenarios” where a person could be guilty of sedition;

a) “Scenario A” is the obvious one; person A take an action (makes a speech or publishes a
pamphlet, etc., etc.) which actually results in violence or public disorder. “A” is guilty of
sedition.

b) In “Scenario B” the words or acts of person B do not actually result in any violence or
public disorder, however the authorities feel that the words or acts had this “tendency”, or
person B had had the subjective “intention” to cause this mischief. “B” is also
guilty of sedition.

It is submitted that the use of sedition in Scenario B is not use, but rather misuse – it is most
frequently employed in India to suppress democratic debate, criticism of the government and
the advocacy of new ideas.

In the case of Javed Habib vs, The State(2007), the Delhi High Court aptly described criticism
of the government as the ‘hallmark of democracy.

As per accepted constitutional principles, in considering the reasonableness of laws imposing

restrictions on fundamental right, a court should take into account various factors, these are:

the nature of the right alleged to have been infringed; the underlying purpose of the restrictions
imposed; the extent and urgency of the evil sought to be remedied thereby; the disproportion
of the imposition; and the prevailing conditions at the time. (State of Madras v. V. G. Row 952
AIR 196, 1952 SCR 597 at Pg 607).

. It is submitted that the situation with regard to these factors has materially changed, both
legally and factually, since the Supreme Court’s adjudication of this issue in 1962.

section 124-A of the IPC clearly infringes Article 19(1)(a) of the Constitution. And the
restrictions imposed by 124A on the freedom of speech and expression is unreasonable.

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 3. HOW FAR THE TRIAL COURT AND HIGH COURT ARE NOT CORRECT IN
THEIR FINDINGS AND IN HOLDING CONVICTION AGAINST MR.
ZUKRIWALA AND MR. PETRA?

It is most humbly submitted that before the hon’ble court Explanation 1 to 124A reads as
follows: - the expression disaffection includes disloyalty and feelings of enmity.

“The provisions of the sections read as whole with explanations, make it reasonably clear that
the sections that disaffection means disloyalty and feeling of enmity towards the gov. Est. by
law. the preamble on which the Almica NGO has been founded on is only a positive criticism
of the corrupt members of the government and it is not against the security of the state
because it is only criticizing the corrupts persons holding the offices not the government
established by Law.

What is considered under this section is the collective body of the individual in the
government, as established by the Penal Code, is what the Section considers. one specific
group of people may be subject to criticism, and inciting hatred against them does not
inevitably incite hatred against the government.

in Arjun Arora v. Emp (1937) the hon’ble court held as follows: -

“To suggest in the form of government cannot be said to be causing disaffection towards the
government established by law or to bring present government into hatred or contempt”.

In the instant case the appellants while criticizing the incumbent for corruption has not caused
disaffection but the appellant their right fully exercised his fundamental right to freedom of
speech and expression.

It is submitted that The Supreme Court in (R. Rajagopal v. State of T.N 1995). has said, “In
a free democratic society it is almost too obvious to need stating that those who hold office in
Government and who are responsible for public administration must always be open to
criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the
most insidious and objectionable kind.” .

It is submitted that in the case in Balwant Singh v. State of Punjab(1976), the Supreme
Court overturned the convictions for ‘sedition ‘and held that casually raising slogans like
‘Khalistan Zindabad’ without inciting any violence would not amount to sedition. likewise in
the present case where the preamble is only positively criticizing the corrupt members of the

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government and did not incite any violence instead talks about legal means as we can clearly
see in the following given lines of the preamble: -

“Pledge to route the corruption from each and every sector through lawful means and
clinging to the constitutional values”
It is submitted that according to data from the National Crime Records Bureau: “there has
been a significant increase in the number of cases filed under section 124A of the IPC, with
such cases rising by 160%, between 2016 and 2019, while the conviction rate for such
offences dropped from 33.3% to 3.3.% for the same period. This clearly indicates that the
State has been misusing this provision to file baseless or frivolous cases. Such abuse is bound
to affect the free speech of citizens by forcing them to self-censor”
It is further contended that section 124A of the IPC does not satisfy the Golden Triangle test
under article 14,19 and 21 of the Indian constitution.
Article 21 prescribes that no person shall be deprived of his life or personal liberty except
according to the procedure prescribed by law. The word ‘life’ has been given an expansive
meaning and has been now recognised to mean to live a life of decency and not a mere
animal existence. I am not dilating on the various aspects of the right to life but even if there
was no Article 19 (1) (a) we could include the right to freedom of belief, thought, expression,
faith and worship in the right to life enshrined in Article 21.
In case of Tara Singh Gopi Chand v. The State (1951 CriLJ 449) was the first instance of a
court in independent India adjudicating on the constitutional validity of section 124A The
then-Punjab High Court, in this case, recognised that section 124A was indisputably a
restriction on the freedom of speech and expression, and invalidated the provision on the
basis that it was in contravention of the fundamental right of freedom of speech and
expression under Article 19 of the Indian constitution.
No doubt, the state has the power to impose reasonable restriction on the exercise of such
rights in the interest of sovereignty and integrity of the country.
The right of freedom of opinion and the right of freedom of conscience by themselves include
the extremely important right to disagree. Every society has its own rules and over a period
of time when people only stick to the age-old rules and conventions, society degenerates.
New thinkers are born when they disagree with well accepted norms of society. If everybody
follows the well-trodden path, no new paths will be created, no new explorations will be done
If a person does not ask questions and does not raise issues questioning age old systems, no
new systems would develop and the horizons of the mind will not expand.
It is further submitted that Criticism of the government by itself cannot amount to sedition .
In a country which is governed by the rule of law and which guarantees freedom of speech,
expression and belief to its citizens, the misuse of the law of sedition and other similar laws is
against the very spirit of freedom for which the freedom fighters fought and
gave up their lives.

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It is further submitted that,
The provisions of the sections read as whole with explanations, make it reasonably clear that
the sections that disaffection means disloyalty and feeling of enmity towards the gov. Est. by
law. the preamble on which the Almica NGO has been founded on is only a positive criticism
of the corrupt members of the government and it is not against the security of the state
because it is only criticizing the corrupts persons holding the offices.

What is considered under this section is the collective body of the individual in the
government, as established by the Penal Code, is what the Section considers. one specific
group of people may be subject to criticism, and inciting hatred against them does not
inevitably incite hatred against the government. Hence the conviction held against both the
appellant is totally wrong.

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 PRAYER

Wherefore in the light of the issue raised, argument advanced and authorities cited, it is
humbly prayed that this hon’ble court may be pleased to adjudge, hold and declare that:

1. the present case is maintainable before the Hon’ble Supreme Court under
appropriate jurisdiction given under article 136.
2. the State and Institutional actors have failed in their duty and obligation under
constitutional democracy by invoking Section 124 (a) of IPC, in the light of Article
19(1) a and clause 2 of the Constitution of Indica and the restriction imposed are
unreasonable.
3. set aside the judgment given by the trial court and high court as criticism of the
corrupt members of the government cannot amount to Sedition.
And pass any other order that this hon’ble supreme court of indica may deem fit in the
interest of justice, equity and good conscience.

And for this act of kindness, the counsel for the appellant shall duty bound forever pray.

All of which is humbly prayed,

Counsel for the Appellant

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MEMORIAL ON BEHALF OF THE APPELLANT
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