Respondent Final

1st NSL INTRA MOOT COURT COMPETITION
TEAM CODE – 18
1ST NSL INTRA MOOT COURT COMPETITION, 2021
BEFORE THE HON’BLE SUPREME COURT OF INDIVA

(PUBLIC INTEREST LITIGATION)
PUBLIC INTEREST LITIGATION NO. /2021
1. KAMLA MEHTA
2. LAMNESTY INTERNATIONAL
3. RAJU KUMAR.
.................................................................................................PETITIONER
VS.
UNION OF INDIA.
..................................................................................................RESPONDET
UPON SUBMISSION TO THE SPECIAL BENCH OF THE SUPREME

COURT OF INDIVA
THE HUMBLE SUBMISSION ON BEHALF OF THE RESPONDENT
MEMORIAL for RESPONDENT Page 1 of 41

-TABLE OF CONTENTS-
LIST OF ABBREVIATIONS ............................................................................................... 04
INDEX OF AUTHORITIES ................................................................................................. 06
STATEMENT OF JURISDICTION .................................................................................... 10
STATEMENT OF FACTS .................................................................................................... 11
ISSUES RAISED.................................................................................................................... 12
SUMMARY OF ARGUMENTS ........................................................................................... 13
ARGUMENTS ADVANCED ................................................................................................ 16
I. FUNDAMENTAL RIGHT OF FREEDOM OF SPEECH AND EXPRESSION AS

ENSHRINED UNDER ARTICLE 19(1)(A) OF THE CONSTITUTION OF INDIVA IS NOT
INFRINGED BY SECTION 124 A OFTHE I.P.C..................................................................16
A.) SEDITION HAS BEEN HELD CONSTITUTIONALLY VALID BY THE SUPREME
COURT…………………………………………………………………………………….…16
B.) 'REASONABLE RESTRICTIONS' .................................................................................. 17
C.) 1.3.GUIDELINES REGARDING REASONABLE RESTRICTION .............................. 18
2. [A] THAT THE KEDAR NATH SINGH RULING OF THE SUPREME COURT OF INDIA
DOES NOT LIMIT THE INTERPRETATION OF SEDITION TO ‘PUBLIC DISORDER-
CAUSING SPEECH’ AND THUS, DOES NOT MAKE IT EASY FOR IT TO BE INVOKED
AGAINST ALL DISSENTERS .............................................................................................. 20
I. KEDAR NATH SINGH RULING DOES NOT LIMIT SEDITION TO PUBLIC DISORDER
CAUSING SPEECH ................................................................................................................ 20
II. EXPRESSION OF DISSENT DOES NOT AMOUNT TO SEDITION ............................ 21
2. [B] SUCH INTERPRETATION IS COMPATIBLE WITH FREE SPEECH UNDER ART.

19 (A) OF THE INDIAN CONSTITUTION........................................................................... 23
I. THE RESTRICTION PRESCRIBED PASSES THE REASONABLE TEST OF PUBLIC

ORDER, AND THE SECURITY OF THE STATE ................................................................ 23
i. The restriction prescribed passses the reasonable test of public order ................................ 24
ii.the restriction prescribed passes the reasonable test of security of state ............................. 25

II. IT IS IN ACCORDANCE WITH THE DOCTRINE OF PRSEUMPTION OF

CONSTITUTIONALITY AND INTERNATIONAL OBLIGATIONS ................................. 25
III. SEDITION LAW IS NOT UNCONSTITUTIONAL IN NATURE, HENCE SHOULD

NOT BE STRUCK DOWN………………………………………………………………......26
3. FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IS NOT

UNFETTERED BUT SUBJECT TO CERTAIN RESTRICTIONS WHICH MAY BE
IMPOSED UNDER ARTICLE 19(2) OF THECONSTITUTION OF INDIVA…………….29
A. RIGHT TO FREEDOM OF SPEECH & EXPRESSION IS NOT ABSOLUTE ................ 29
B. VARIOUS ASPECTS OF FREEDOM OF SPEECH & EXPRESSION ARE SUBJECT TO

REASONABLE RESTRICTIONS .......................................................................................... 30
4. SOMEONE WHO ADVOCATES THE USE OF VIOLENCE TO OVERTHROW THE

GOVERNMENT IS NOT ENTITLED TO PROTECTION UNDER ART.
19(1)(A)....................................................................................................................................32
A. SEDITION MUST BE UNDERSTOOD IN COMPARISON WITH FOREIGN
CASES ..................................................................................................................................... 33
B. CASE LAWS RELATED TO SEDITION AND ARTICLE 19(1)(a) MUST BE STUDIED

CLOSELY………………………………………………………………………………….. ..35
5. SECTION 124A OF IPC DOES NOT INFRINGES THE FUNDAMENTAL RIGHT TO

LIFE AND DIGNITY ENSHRINED UNDER ARTICLE 21 OF THE CONSTITUTION OF
INDIVA……………………………………………………………………………………. 37
A. PUNISHMENT MUST BE PROPORTIONAL TO THE GRAVITY OF THE
OFFENCE ................................................................................................................................ 37
B. NO PROPER GUIDELINE FOR SENTENCING OR PUNISHMENT IS PRESENT
IN INDIA ................................................................................................................................. 38
C. PUNISHMENT IS CASE OF SEDITION IS PROPORTIONATE WITH THE GRAVITY

OF THAT OFFENCE…………………………………………………………………….......39
PRAYER ................................................................................................................................. 41

-LIST OF ABBREVIATIONS-
Abbreviations Full-Form
¶ Paragraph
AIR All India Reporter
Anr. Another
Cr.P.C Criminal Procedure Code
Dy. Deputy
Edn. Edition
Hon'ble Honourable
NGO Non-Government Organization
i.e. That Is
Ltd. Limited
Cent. Central
cl. Clause
No. Number
Const. Constitution
Cri. Criminal
CrLJ Criminal Law Journal
Del Delhi
Ed. Edition
HC High Court
u/s Under Section
No. Number
ICCPR International Covenant on Civil and Political

Rights
Id. Ibidem
ILR Indian Law Review

IPC Indiva Penal Code
J&K Jammu & Kashmir
J. Justice
NCT National Capital Territory
No. Number
Ors. Others
Para Paragraph
PC Privy Council
PIL Public Interest Litigation
& And
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
U.S. United States
UAPA Unlawful Activities Prevention Act
UP Uttar Pradesh
v. Versus
Viz. Namely
WP Writ Petition

-INDEX OF AUTHORITIES-
INDIAN CASES
A.K. Gopalan V. State of Madras, AIR 27 1950 SCR 88. ...................................................... 17, 29
Alister Antony Pareira V. State of Maharashtra, (2012) 2 SCC 648. ......................................... 39
Arup Bhuyan V. State of Assam, (2011) 3 SCC 377. ............................................................ 27, 34
Asit Kumar Sen Gupta V. State of Chhattisgarh, Cr. Appeal No. 86 Of 2011. ........................... 36
Binayak Sen V. State of Chhattisgarh, (2011) 266 ELT 193. ...................................................... 35
Emperor V. Sadashiv Narayan Bhalerao, (1944) 46 BOMLR 459............................................. 17
Hamdard Dawakhana (WAKF) Lal Kuan, Delhi V. Union of India, AIR 5541960 SCR (2) 671 .... 31
Indramani Singh V. State of Manipur 1955 CriLJ 184. .............................................................. 32
In Re: Arundhati Roy (2002). .................................................................................................... 34
Kedarnath Singh V. State of Bihar, AIR 955 1962 SCR Supl. (2) 769. ...................... 17, 19, 32, 34
Kishori Mohan V. State of West Bengal, AIR 1972 SC 1749, (1972) 3 SCC
845, 1973 (5) UJ 98 SC ............................................................................................................. 31
Maneka Gandhi V. Union of India, AIR 597 1978 SCR (2) 621 .................................................. 16
Narendra Kumar V. Union of India, AIR 430 1960 SCR (2) 375................................................. 17
Narottamdas V. State of Madhya Pradesh, AIR 1667 1964 SCR (7) 820. ................................. 18
Nazir Khan V. State of Delhi, AIR 2003 SC 4427 SCC 461. ......................................................... 36
Niharendu Majumdar V. Emperor, AIR 1939 Cal 703. .............................................................. 16
Om Prakash V. State, AIR 1956 All 241, 1956 CriLJ 452. ........................................................... 30
Queen Emperor V. Bal Gangadhar Tilak, 1917) 19 BOMLR 211. .............................................. 17
Raghubir Singh V. State of Bihar, AIR 149, 1986 SCR (3) 802 SCC 481. .................................... 35
Ram Nandan V. State of Uttar Pradesh, AIR 1959 All 101, 1959 CriLJ 1. .................................. 17
Ranjit D. Udeshi V. State of Maharashtra, AIR 881 1965 SCR (1) 65. ....................................... 31
Romesh Thappar V. State of Madras, AIR 124 1950 SCR 594. ...................................... 16, 24, 27
Soman V. State of Kerala, Cri. Misc. No. 3083 & 3189 Of 2014 ............................................... 38
S. Rangarajan V. P. Jagjivan Ram, 1989 SCR (2) 204 SCC (2) 574. ............................................. 34
State of Bihar V. Shailabala Devi, AIR 329 1952 SCR 654. .................................................. 28, 31
State of Karnataka V. Dr. Praven Bhai Togadia, SLP (Crl.) No. 3085/2003................................ 35
State of Madhya Pradesh V. Bablu Natt, Cri. Appeal No. 2060 Of 2008. ................................. 18
State of Punjab V. Prem Sagar & Ors. (2008) (unreported). .................................................... 38
State of Uttar Pradesh V. Lalai Singh Yadav, AIR 202 1977 SCR (1) 616.................................... 39

Tara Singh Gopi Chand V. The State, 1951 CriLJ 449. ............................................................... 17
The Superintendent, Central Jail, Fatehgarh V. Ram Manohar Lohia, AIR 6331960 SCR (2) 821.
.................................................................................................................................................. 34
Union of India V. Motion Pictures Association, 1999 (3) SCR 875............................................ 29
Virendra V. State of Punjab, AIR 1957 PH1 1957 CriLJ 88......................................................... 31
FOREIGN CASES
Charles T. Schenck V. United States, 1919 U.S., 294 U.S. 47 ................................................. 33

Clarence Brandenburg Vs. State of Ohio, 1969 U.S., 395 U.S. 444 ........................................ 34
Debs V. United States, 1919 U.S., 249 U.S. 211...................................................................... 33
Dennis V. United States, 1951 U.S., 341 U.S. 494 .................................................................. 34
Patterson V. Colorado, 1907 U.S., 205 U.S. 454 ..................................................................... 33
Pennekamp V. Florida, 1946 U.S., 328 U.S. 331 ..................................................................... 34
Reg. V. Alexander Martin Sullivan, 1868 11 Cox CC44 ......................................................... 33
R. V. Arcand, 2010 ABCA 363 ................................................................................................ 37
R. V. Hicklin, 1868 LR 3 QB 360 ............................................................................................ 31
Valentine V. Chrestensen, 1942 U.S., 316 U.S. 52 .................................................................. 31
BOOKS
BLACK'S LAW DICTIONARY, 556, (4th ed. 1968).............................................................. 34

K.D GAUR, INDIAN PENAL CODE 675 (9th ed. 2019) ....................................................... 36
RATANLAL AND DHIRAJLAL, LAW OF CRIMES 491 (24th ed. 1997). .......................... 36
RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE 501 (36th ed. 2019) ......... 29
M.P JAIN, INDIAN CONSTITUTIONAL LAW ................................................................... 29
S.C SARKAR, THE CODE OF CRIMINAL PROCEDURE ................................................. 29
STATUTES
INDIA CONST. Art 19 cl. (1). ................................................................................................ 23

INDIA CONST. art. 19 cl. (2), amended by The Constitution, (First Amendment) Act, 1951 6
INDIA CONST. art. 19 cl. (2). ................................................................................................ 23
The Indian Penal Code 1860, No. 45 of 1860, § 124(A). ........................................................ 29
The Indian Penal Code 1860, No. 45 of 1860, § 505 cl. (1) sub cl. (b) and 505 cl. (1) sub cl.
(c) of IPC.................................................................................................................................. 34
The National Security Act, 1980, No. 65, Acts of Parliament, 1980 (India) ........................... 37
The Unlawful Activities (Prevention) Act, 1967, No. 37, § 3 (2). .......................................... 39

The Unlawful Activities (Prevention) Act, 1967, No. 37, § 3(1)(a). ....................................... 19
The Unlawful Activities (Prevention) Act, 1967, No. 37, § 8 (1). .......................................... 21
The Unlawful Activities (Prevention) Act, 1967, No. 37, Acts of Parliament, 1967 (India) .. 16
INDIAN LAW REPORTS
Law Commission Report on Consultation Paper on Sedition, 2018 ....................................... 17

NATIONAL CRIME RECORDS BUREAU (NCRB), CRIME IN INDIA (2019). ............... 16
JOURNALS AND ARTICLES
Akshita Saxena, Presumption of Constitutionality Doesn’t Apply To Pre-Constitutional Laws:

former Union Minister Arun Shourie Moves Supreme Court Against Sedition Law,
LIVELAW, (Oct. 02, 2021, 2:34 P.M), https://www.livelaw.in/columns/sedition-ipc-124a-
article-19-1-a-of-the-indian-constitution-independence-of-the-judiciary-178280. ................. 35
Ananya Kuthiala, Sedition and the Right to Freedom of Speech and Expression, THE SCC
ONLINE BLOG. (Oct. 06, 2021, 9:27 A.M)
https://www.scconline.com/blog/post/2017/12/12/sedition-right-freedom-speech-expression/
.................................................................................................................................................. 35
Criminal libel and sedition offences abolished, PRESS GAZETTE, (July. 31st, 2021, 3:09
P.M), https://www.pressgazette.co.uk/criminal-libel-and-sedition-offences-abolished. ......... 31
Deepak Gupta, Justice Deepak Gupta: Law of Sedition Needs to be Toned down if not
Abolished, THE WIRE, (Oct. 01, 2021, 5:30 AM) https://thewire.in/law/justice-deepak-
gupta-supreme-court-sedition .................................................................................................. 17
Judith S. Koffler and Bennett L. Gershman, New Seditious Libel, CORNELL LAW
REVIEW, (Sep. 29, 2021, 7:14 A.M),
https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4352&context=clr. .............. 34
Narayanan Aishawarya, A Theoretical Analysis of the Law on Sedition in India, CHRIST
UNIVERSITY LAW JOURNAL, (Oct. 05, 2021, 10:20
AM),https://journals.christuniversity.in/index.php/culj/article/view/490................................ 21
Parthasarathy Suhrith, Sedition and the Government, THE HINDU, (Oct. 17th, 2021, 4:23
PM) http://www.thehindu.com/opinion/lead/Sedition-and-the-
government/article14082471.ece. ............................................................................................ 15
Rae Langton, Speech Acts and Unspeakable Acts, JSTOR, (Oct 24, 2021 2:18 PM)
www.jstor.org/stable/2265469 ................................................................................................... 22

Reema Omer, India’s Sedition law is just another colonial hangover and has no place in
democracy, SCROLL.IN, (Oct. 06, 2021, 8:25 PM), https://scroll.in/article/952017/indias-
sedition-law-is-just-another-colonial-hangover-and-has-no-place-in-a-democracy................ 25
Sarah Sorial, Can Saying Something Make it So? The Nature of Seditious Harm, JSTOR,
(Oct. 07, 3:10 PM)www.jstor.org/stable/40783443................................................................... 32
Sruthy Sriram, Whatdistinguishes Disturbance to Public Order from Sedition? A 1950
Decision shows the way, VIDHI LEGAL POLICY, (Oct. 15, 12:30 PM),
https://vidhilegalpolicy.in/blog/what-distinguishes-disturbance-to-public-order-from-sedition-
a-1950-sc-decision-shows-the-way/ ........................................................................................ 37
Sunil Abraham, Shreya Singhal and 66-A: A Cup Half Full and Half Empty, ECONOMIC
AND POLITICAL WEEKLY, (Sep, 30th, 2021, 5:08 P.M),
https://www.epw.in/journal/2015/15/commentary/shreya-singhal-and-66a.html ................... 29
OTHER AUTHORITIES
Constitutional Assembly Debates, 1948. ................................................................................. 28

POOJAYA SRI JAGADGURU MAATE MAHADEVI, BASAVA VACHANA DEEPTHI
(Poojaya Sri Jagadguru Maate Mahadevi) (1998) ................................................................... 20

-STATEMENT OF JURISDICTION-
The Petitioners, hereby approached this Hon’ble Court’s Jurisdiction under Article 32 1 of the
Constitution of Indiva. The Hon’ble Court has the requisite jurisdiction for the adjudication of
the present dispute., and the respondent humbly submits to the jurisdiction of the Hon’ble court.
Thereby, the Respondent submits this memorial which sets forth the facts and the laws
on which the claims are based.
1
Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred
by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by
law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

-STATEMENT OF FACTS-
1. Indiva is a small developing country where the freedom of speech and expression is guaranteed
as a fundamental right under the Constitution of Indiva.
2. Bangistan is a neighbouring country of Indiva. However, in the last few months there have been
various instances where freedom of speech and expression has come under the scanner in
Indiva.
3. Mr. Pappu Yadav filed a criminal complaint u/s 124A of IPC against Kamla Mehta. An actor –
politician who is the member of the Indiva National Party, the largest opposition party, for her
comment on social media: “Minister Mohan Singh said that going to Bangistan is like going to
hell.” People there is no difference. They treated us very well.
4. On the receipt of the complaint, summons was issued against Kamla Mehta. Being aggrieved
by these summons, she challenged the constitutionality of section 124A of IPC to be violative
of Art 19(a)(a) of the Constitution of Indiva.
5. Lamnesty International, a NGO, conducted a campaign named “Broken Families of Vienna”
(Vienna being a state of Indiva) where they talked about the human right violation by Indiva
Army on the people of Indiva and invited the victims of these violations to speak.
6. During the debate, the Indiva People Party (IPP, which is the ruling party) was heavily criticized
for its inaction. Moreover, at the end of the program the debate got heated and there were heard
some anti – Indiva slogans.
7. On the campus of Murli Shankar University, Democratic Students Union (DSU) held a protest
on the hanging of Faizal Khan convicted of terror attacks on the Parliament of Indiva. Anti –
Indiva slogans & slogans to overthrow the government were raised in the event.
8. A complaint was filed against Raju Kumar (President of DSU) for the charges of Sedition. The
disciplinary committee of the University investigated the matter to find that the slogans were
raised by a group of outsiders wearing masks.
9. All Indiva Student Organization, a student body associated with Indiva People Party (IPP) were
responsible for filing the complaint against Lamnesty International & Raju Kumar u/s 124A
IPC.
10. National Crime Record Bureau in its report stated that in 2014 as many as 47 cases of sedition
were filed leading to the arrest of 58 people and there has been an alarming increase in the cases
in 2015. In 2016 as many as 21 cases have been filed.
11. Kamla Mehta, Lamnesty International and Raju Kumar filed a PIL challenging the validity of
Section 124A as being violative of Article 19(1)(a) and Article 21 of the Constitution of Indivia.

-ISSUES RAISED-
THE RESPONDENT VERY RESPECTFULLY PUT FORTH TO THE HON’BLE SUPREME

COURT, THE FOLLOWING ISSUES:
ISSUE-1
WHETHER SECTION 124A OF IPC INFRINGES THE FUNDAMENTAL RIGHT OF

FREEDOM OF SPEECH AND EXPRESSION ENSHRINED UNDER ARTICLE 19(1) (a)
OF THE CONSTITUTION.?
ISSUE - 2
WHETHER KEDAR NATH SINGH RULING OF SUPREME COURT OF INDIA

LIMITING INTERPRETATION OF SEDITION TO PUBLIC DISORDER-CAUSING
SPEECH MAKES IT EASY FOR OT TO BE INVOKED AGAINST ALL DISSENTERS?
WHETHER SUCH AN INTERPRETATION IS COMPATIBLE WITH FREE SPEECH
GUARANTEED UNDER ART (1)(A) OF THE CONSTITUTION?
ISSUE-3
WHETHER THE PEOPLE ENJOY UNFETTERED RIGHT TO FREEDOM OFSPEECH

AND EXPRESSION.?
ISSUE - 4
WHETHER SOMEONE WHO ADVOCATES THE USE OF VIOLENCE TO OVERTHROW

THE GOVERNMENT IS ENTITLED TO PROTECTION UNDER ARTICLE 19(1)(a).?
DOES A HARSH CRITICISM OF THE GOVERNMENT AMOUNT TO AN ACT THAT
UNDERMINES THE SECURITY OF THE STATE OR ADISRUPTION OF PUBLIC ORDER
TO MAKE A CASE UNDER SECTION 124A.?
ISSUE - 5
WHETHER SECTION 124 OF IPC INFRINGES THE FUNDAMENTAL RIGHT TO LIFE

AND DIGNITY ENSHRINED UNDER ARTICLE 21 OF THE CONSTITUTION.?

-SUMMARY OF ARGUMENTS-
1. FUNDAMENTAL RIGHT OF FREEDOM OF SPEECH AND EXPRESSION AS

ENSHRINED UNDER ARTICLE 19(1)(A) OF THE CONSTITUTION OF INDIVA IS
NOT INFRINGED BY SECTION 124 A OFTHE I.P.C.
The counsel on the behalf of the respondents most humbly submits that in a democracy like
Indiva every citizen must have the right to freedom of speech and expression. Thus, article
19(1)(a) of the Constitution of Indiva ensures this particular right to all its citizens. However,
the same article also elaborates that this right is subject to certain restrictions which can be
imposed on the basis of certain grounds as enshrined under article 19(2).
Section 124 A of the Indivian Penal Code, 1860 constitutes a reasonable restriction to freedom
ofspeech and expression under article 19(1)(a) of the Constitution of Indiva. Also, section
124A is applied only in rare cases and such application on the part of the authorities is
made with duecare and caution. Thus, it does not infringe right to freedom of speech and
expression of any individual in any aspect.
2. THAT THE KEDAR NATH RULING OF SUPREME COURT OF INDIA LIMITING

THE INTERPRETATION OF SEDITION TO PUBLIC ORDER DOES NOT THRIVE
TO INVOKED AGAINST ALL DISSENTERS. THIS INTERPRETATION IS
COMPATIBLE WITH FREE SPEECH GUARANTEED UNDER ART. 19 (1)(a) OF
THE CONSTITUTION.
It is humbly submitted that the Kedar Nath Singh ruling does not limit the interpretation of
sedition to public order, as it associated the history of the offence to conclude the vital caveat of
violence in the same. It does not make it easy for sedition to be invoked against any dissenter, as
it cannot be invoked unless there is a disturbance in other forms of law and order; there is a clear
distinction between disagreement with the people who are administrating the government for time
being and the institution of the state. It is compatible with free speech guaranteed in article 19(1)
(a), as firstly it passes the test of reasonable restriction. Secondly, it is in accordance with the
doctrine of presumption of constitutionally and international obligations. Thirdly, it is not
unconstitutional in nature, hence must not be struck down.

3. FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IS NOT

UNFETTERED BUT SUBJECT TO CERTAIN RESTRICTIONS WHICH MAY BE
IMPOSED UNDER ARTICLE 19(2) OF THECONSTITUTION OF INDIVA.
The counsel on the behalf of the respondents most humbly submits that every right brings with
it certain liabilities and so is the case of right to freedom of speech and expression. Through
the citizens have this right, they have to use it in a positive way and in a way that their
enjoyment does not lead to infringement of someone else's right. Thus, any wrong use of this
right may leadto imposition of restriction under article 19(2) in the interests of the sovereignty
and integrity of Indiva, 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
offence. Thus, the counsel would like to conclude that right to freedom of speech and
expression is not unfettered.
4. SOMEONE WHO ADVOCATES THE USE OF VIOLENCE TO OVERTHROW THE

GOVERNMENT IS NOT ENTITLED TO PROTECTION UNDER ART. 19(1)(A).
The counsel on the behalf of the respondents most humbly submits that someone who
advocates use of violence to overthrow the Government established by law is not entitled to
protection under article 19(1)(a) because such opinion of that person may lead to public
disorder thus attacking the sovereignty, integrity and security of the State. Though strong or
harsh criticism is not covered under the umbrella of section 124 A I.P.C but if such criticism
undermines the security of the State or leads to disruption of public order then one is liable for
punishment under124 A. Section 124 A clearly says that whoever, by words, either spoken or
written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into
hatred or contempt, or excites or attempts to excite disaffection towards, the Government
established by law in Indiva, shall be punished. Under this section, for the determination of
criminality the court in each case has to determine the whether the words in question have
pernicious tendency and whether the person uttering those words had the intention of creating
public disorder or disturbance of law and order. On the basis of these two factors liability can
be imposed.
In the present case anti-Indiva slogans were raised during a campaign organised by Lamnesty
International, which is clearly disruption of public order. Moreover, Democratic Students
Union organized a rally against the conviction of Faizal Khan, the terrorist behind the attack
on the parliament of Indiva and there also anti-Indiva slogans were raised by some
outsiders which shows that the outsiders were influenced with such campaign. Hence, the
organisers of the rally are liable to be punished for keeping the security, sovereignty and

integrity of the State on stake.
5. SECTION 124A OF IPC DOES NOT INFRINGES THE FUNDAMENTAL RIGHT TO

LIFE AND DIGNITY ENSHRINED UNDER ARTICLE 21 OF THE CONSTITUTION
OF INDIVA.
The counsel on the behalf of the respondents most humbly submits that like every other right
or liability section 124A is also subject to doctrine of proportionality. Under this section the
person convicted for the offence of sedition is liable to be punished with be punished with
imprisonmentfor life to which fine may be added, or with imprisonment which may extend to
three years, to which fine may be added or with fine. Section 124A comes under the category
named as ' offences against state' and thus the punishment described under this section is
completely proportionate even if it extends to imprisonment for life. Imprisonment for life in
case of seditionis given in the rarest of rare cases and mostly in cases where such offence is
summed up along with the offence of waging war against State etc.
Moreover, it has been made very clear by the Constitution of Indiva that if any
statutoryprovision runs counter to such a right it must be held unconstitutional. Right to life
and personal
liberty are compendium terms, which include a variety of rights and attributes. The expanded
meaning includes the right to hold a particular opinion, to sustain and to nurture that opinion.
An opinion which does not disrupts public order or does not undermines the sovereignty,
integrity and security of the State does not come under the purview of sedition. Therefore, the
impugned section of the IPC is not violative of the fundamental right to life and personal
liberty guaranteedunder the Constitution of Indiva.

-ARGUMENTS ADVANCED-
1. FUNDAMENTAL RIGHT OF FREEDOM OF SPEECH AND EXPRESSION AS

ENSHRINED UNDER ARTICLE 19(1)(A) OF THE CONSTITUTION OF INDIVA IS
NOT INFRINGED BY SECTION 124 A OF THE I.P.C.
(¶ 1.) It is humbly submitted before the Hon'ble bench that Section 124 A of the IPC, which
deals with sedition, does not infringes the fundamental right of speech and expression
enshrined underarticle 19(1)(a) of the Constitution of Indiva, in any aspect. In Romesh
Thappar V. The State of Madras2, Patanjali Sastri. J., rightfully held that article 19(1) (a) is
the basis and essence of theconstitution and our democracy. This view was further supported
by Bhagwati J., in Maneka Gandhi V. Union of India3, by emphasizing on the significance of
the freedom of speech and expression. However,the article that provides this right to each and
every citizen, the very same article in its clause (2) says that reasonable restrictions can be
imposed on the right provided under this article on the basis of certain grounds. Section 124 A
of the IPC is one such reasonable restriction.
A. SEDITION HAS BEEN HELD CONSTITUTIONALLY VALID BY THE

SUPREME
(¶ 2.) Sedition is a pre-constitutional law and has been upheld by the Supreme Court. Sedition
refers to overt actions, gestures or speech by a person in oral or written form which express his
or herdiscontent against the established Government in the State, with the aim the incite violence
or hatred against it. Section 124A4 of the IPC (Chapter VI) defines the offence of sedition. There
are several in which this law has been challenged. Most of these cases deals with
constitutionality of Section 124A. In Niharendu Majumdar V. Emperor5, the Federal Court
held that publicdisorder or the reasonable anticipation of likelihood of public disorder is the
gist of the offence. In the present case where anti-Indiva slogans were raised there was a clear
anticipation of likelihood of public disorder and hence charges of sedition have been rightfully
imposed in the present case. However, in Emperor V. Sadashiv Narayan Bhalerao6, the Privy
2
Romesh Thappar V. The State of Madras AIR 124 1950 SCR 594
3
Maneka Gandhi V. Union of India AIR 597 1978 SCR (2) 621
4
124A. Sedition. —Whoever, by words, either spoken or written, or by signs, or by visible representation, or
otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection
towards, 102 [***] the Government established by law in 103[India], [***] shall be punished with 104 [imprisonment
for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may
be added, or with fine.
5
Niharendu Majumdar V. Emperor AIR 1939 Cal 703
6
Emperor V. Sadashiv Narayan Bhalerao (1944) 46 BOMLR 459

Council not only reiterated the law on sedition enunciated in Bal Gangadhar Tilak7 case, but
also held that the Federal Court’s statement in Majumdar case was wrong. Privy council held
that excitement of feelings of enmity towards the Government is sufficient to make one guilty
under 124A.
(¶ 3.) Moving further, the sedition law was declared as ultra vires by the Punjab-Haryana High
Court in 1951 and was held unconstitutional citing that it restricts article 19 in disregard of
whether the interest of public order or the security of State is involved and is capable of striking
the very rootof constitution which is free speech8. Similarly, in 1958 Allahabad High Court also
struck down section 124A on the ground of being violative of the Constitution9. But the view
that thejudiciary at present holds was given by the apex court in the case of Kedarnath Singh V.
State of Bihar10 inwhich sedition law was held to be constitutional and the court observed it to
be the only tool available to the Government to safeguard itself.
B. 'REASONABLE RESTRICTIONS'
(¶ 4.) The meaning of the term reasonable restriction has been a matter of judicial discussion.
Therehas been a doubt whether the term “r e a son ab l e restriction” also includes “t ot al
prohibition”. In A.K. Gopalan V. State of Madras11, Patanjali Sastri J., Kania C.J., and Das J.
tried to explain the term “restriction”. Das J. was of the view that the word “restriction” implies
that the fundamental right is not destroyed in entirety but passport of it remained. Patanjali Sastri
J. was of the view that the term did not mean “total prohibition”. Kania C.J. interpreted it as
“partial control” and distinguish it from deprivation. Later the Supreme Court in another
decision12, interpreted the term to mean “total prohibition” where the restriction was reasonable.
It is submitted that what is restrained in not the “fundamental right” which continues
unaffected, but the “exercise” of it.
(¶ 5.) The restriction when it isunreasonable does not affect the right and when it is reasonable
it only restrains the exercise of that right. Such a restraint on the exercise of right, when
reasonable, may be partial or total. Further, in reasonable restrictions, the test of reasonableness
depends upon the nature of the rightalleged to have been infringed, the underlying purpose of
the restriction 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 of imposition of such
7
Queen Emperor V. Bal Gangadhar Tilak (1917) 19 BOMLR 211
8
Tara Singh Gopi Chand V. The State 1951 CriLJ 449
9
Ram Nandan V. State of Uttar Pradesh AIR 1959 All 101, 1959 CriLJ 1
10
Kedarnath Singh V. State of Bihar AIR 955 1962 SCR Supl. (2) 769
11
A.K. Gopalan V. State of Madras AIR 27 1950 SCR 88
12
Narendra Kumar V. Union of India AIR 430 1960 SCR (2) 375

restriction. There are two conditions imposed by the Constitution to validate the restriction on
the freedoms guaranteed by Article 19(1). These conditions are that the restrictions must be for
a particular purpose mentioned in the clause permitting the imposition of the restriction on
that particularright and the restriction must be a reasonable one.
(¶ 6.) In the present case the Government has acted within its powers while imposing charges
of sedition to restrict the excessive use of right to freedom of speech & expression, by Ms.
Kamla Mehta, Lamnesty International & Democratic Students’ Union, which in turn would
have led to incitement of enmity against the Government established by law and hence curbing
such speech was the need of the time.
C. GUIDELINES REGARDING REASONABLE RESTRICTIONS
(¶ 7.) The following are some of the principles which the Supreme Court of India has affirmed
in Narottamdas V. State of Madhya Pradesh13 for ascertaining the reasonableness of restrictions
onthe exercise of the rights secured under Article 19 of the Constitution, which are as follows:
(¶ 8.) The phrase “reasonable restriction” connotes that the limitation imposed upon a person
inthe enjoyment of a right should not be arbitrary or of an excessive nature. In determining
the reasonableness of statute, the court should see both to the nature of the restriction and
procedure prescribed by the statue for enforcing the restrictions on the individual freedom.
Not only substantive but also procedural provisions of a statute alsoenter in to the verdict of
its reasonableness. The reasonableness of a restriction has to be determined in an objective
manner and from the standpoint of the interests of the general public and not from the
point of view of persons upon whom the restrictions are imposed or upon abstract
considerations.
(¶ 9.) The court is called upon to ascertain the reasonableness of the restrictions and not of the
law which permits the restriction. A law may be reasonable but the restriction imposed byit on
the exercise of freedom may not be reasonable. The word “restriction” also includes cases of
prohibition and the State can establish that a law, though purporting to deprive a person of his
fundamental right, under circumstancesamounts to a reasonable restriction only.
(¶ 10.) The Indian Constitution provides reasonably precise general guidance in the matter
of reasonableness. The test of the reasonableness of the restriction has to be considered in each
case in the light or the nature of the right infringed, the purpose of the restriction,the extent
and the nature of the mischief required to be suppressed and the prevailing social and other
13
Narottamdas V. State of Madhya Pradesh AIR 1667 1964 SCR (7) 820

conditions at the time. A restriction that is imposed for securing the objects laid down in the
Directive Principles of State Policy may be regarded as reasonable restriction.
(¶ 11.) If a restriction is not imposed by legislation but is the result of a contract freely entered
into by the citizen, he cannot complain of the reasonableness of the law. The conferment of
wide powers exercisable on the subjective satisfaction of the Government cannot be
regarded as reasonable restriction because the Government is the best authority to judge and
take anticipatory action for preventing a threat to the breach ofthe peace.
(¶ 12.) The retrospective operation of legislation is a relevant factor in deciding
its reasonableness, but it is not always a decisive test. It is not correct to say that because the
retrospective operation covers a long period, the restriction imposed by it must be unreasonable.
(¶ 13.) On the basis of the guidelines of the Narottamdas case, the counsel on the behalf of the
respondents humbly concludes before the Hon'ble Bench that section 124A clearly falls within
the ambit of a reasonable restriction based on the grounds of restrictions in the interests of
security, sovereignty & integrity of State, disruption of public order and incitement of an offence
as enunciated under 19(2) of the Constitution and does not infringes any of the fundamental
rights, especially the right to freedom of speech & expression. As it was held by the Supreme
Court, section 124A is constitutional in all aspects and sedition has been ruled as a crime to
prevent the subversion of the Government by inciting contempt or hatred towards it, which can
rock the very stability of the society14.
14

2. THAT THE KEDAR NATH RULING OF SUPREME COURT OF INDIA

LIMITING THE INTERPRETATION OF SEDITION TO PUBLIC ORDER DOES
NOT THRIVE TO INVOKED AGAINST ALL DISSENTERS. THIS
INTERPRETATION IS COMPATIBLE WITH FREE SPEECH GUARANTEED
UNDER ART. 19 (1)(a) OF THE CONSTITUTION.
(¶ 14.) It is humbly submitted before the court that the Kedar Nath Singh ruling of SC of Indicus
does not limit the interpretation of sedition, rather it attached the historical context to it and
provides a better understanding of the same.
A. KEDAR NATH SINGH RULING DOES NOT LIMIT SEDITION TO PUBLIC

DISORDER CAUSING SPEECH
(¶ 15.) The Kedar Nath Judgement provided a stricter meaning to an otherwise broad term,
“public disorder”.15 It pointed out “the reasons for introduction of S.124A and the history of
sedition,”16. The provisions of the Sections read as a whole, along with the explanations, make
it reasonably clear that the sections aim at rendering penal only such activities as would be
intended, or have a tendency, to create disorder or disturbance of public peace by resort to
violence.17
(¶ 16.) According to the dissenting judgement of Fazl Ali, J. in Brij Bhushan case, it was pointed
out that the concept of social security is very much allied to public disorder. The opinion was
accepted by the amendment made by the parliament, (First Amendment) Act, 1951, by s. 3 of
the Act.
(¶ 17.) In Ram Manohar Lohia,18 the public order has been a secondary part of the hierarchy
of the security of state, thus making public disorder a requirement of the offence of sedition,
rather than a restrain.
(¶ 18.) There is a distinction between slight public disorder and sedition.19 In the judgements
of Romesh Thapar20and Ram Manohar Lohia21, the distinguistion was made between
aggravated forms of public disorder which are calculated to endanger the security of the State
15
Nivedita Saksena and Siddhartha Srivatava, An analysis of the modern offence of Sedition, MANUPATRA,
(Oct. 01, 2021, 6:11 P.M), http://docs.manupatra.in/newsline/articles/Upload/37E592F0-BE2A-475F-AF99-
2F6909F3CF11.pdf.
16
Kedar Nath v. State of Bihar, AIR (1962) SC 955 (India)
17
PSA PILLAI, CRIMINAL LAW, 1131 (14 th ed. 2019).
18
Ram Manohar Lohia&Ors. v. Union of India (1960) 2 SCR 821(India).
19
Sruthy Sriram, Whatdistinguishes Disturbance to Public Order from Sedition? A 1950 Decision shows the way,
VIDHI LEGAL POLICY, (Oct. 17, 12:30 PM),https://vidhilegalpolicy.in/blog/what-distinguishes-disturbance-to-
public-order-from-sedition-a-1950-sc-decision-shows-the-way/.
20
Romesh Thapar v. State of Madras AIR 1950 SC 124 (India).
21
Ram Manohar Lohia&Ors. v. Union of India (1960) 2 SCR 821(India).

and the relatively minor breaches of the peace of a purely local significance. In Bilal Ahmed
Kaloo v. State of Andhra Pradesh22 , the court quashed the charges under the said section, as it
was not established before the court that the appellant had done anything, which would threaten
the existence of the Government, established by law or might cause public disorder
(¶ 19.) In the case of Balwant Singh23, the statements raised by the petitioner were inciteful and
rebellious in nature, but he was not convicted for sedition as there was an absence of
disturbance in any other law and order.
B. EXPRESSION OF DISSENT DOES NOT AMOUNT TO SEDITION
(¶20.) Dissenters are people who refuse to accept the common opinion or agree with something
already stated or adjudged. 24 In this context, it means the people who disagrree with the ruling
government. Since sedition is an offence against the State, it is necessary to protect fair and
reasonable criticisms and dissenting opinions from unwarranted State suppression. Legitimate
speech must be protected and care must be taken that the grounds of limitation are reasonable
and just.25
(¶ 21.) According to the guidelines laid by Kedar Nath v. state of Bihar26:
(I) “Comments, however strongly worded, expressing disapprobation of actions of the

Government, without exciting those feelings which generate the inclination to cause public
disorder by acts of violence, would not be penal.”
(II) “A citizen has a right to say or write whatever he likes about the Government, or its
measures, by way of criticism or comment, so long as he does not incite people to violence
against the Government established by law or with the intention of creating public disorder.
(III) “It is only when the words, written or spoken, etc. which have the pernicious tendency or
intention of creating public disorder or disturbance of law and order that the law steps in to
prevent such activities in the interest of public order.”
(¶ 22.) In Common Cause &Anr. v. UOI 27, it was held that while dealing with Section 124(A)
of IPC, authorities are to be guided by the principles laid down by the principles laid down in
22
Bilal Ahmed Kaloo v. State of Andhra Pradesh, AIR 1997 SC 3438 (India).
23
Balwant Singh &Anr. v. State of Punjab, (1995) 3 SCC 214 (India).
24
BLACK LAW’S DICTIONARY, 559, (4th ed. 1968).
25
Meera Mathew, -Expression, Advocacy and Incitement, Working Paper submitted to the Law Commission of
India (2017).
26
27
Common Cause &Anr. v. UOI (2016) 15 SCC 269 (India)

Kedar Nath Singh28. In Nazir Khan &Ors. v. State of Delhi,29 the court concluded that Sedition
has been described as disloyalty in action, and the law considers as sedition all those practices
which have for their object to excite discontent or dissatisfaction, to create public disturbance,
or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the
laws or constitutions of the realm, and generally all endeavors to promote public disorder.
(¶ 23.) In Kedar Nath Singh v. State of Bihar30 the court drew a line between the terms, 'the
Government established by law' and the persons for the time being engaged in carrying on the
administration‘ observing:
'Government established by law' is the visible symbol of the State. The very existence of the
State will be in jeopardy if the Government established by law is subverted. Hence, the
continued existence of the Government established by law is an essential condition of the
stability of the State.
(¶ 24.) In Brij Bushan v. State of Delhi31, it was stated that Government established by law has
to be distinguished from the person's for the time being engaged in carrying on the
administration. The clear distinction between Government and Administration does not leave
space for the violation of rights of dissenters.
(¶ 25.) In the case of Sanskar Marathe v. State of Maharashtra &Anr.,32 a cartoonist Aseem
Trivedi was booked under section 124A IPC for defaming the Parliament, the Constitution of
India and the National Emblem and attempting to spread hatred and disrespect against the
Government through his cartoons. The court distinguished between strong criticism and
disloyalty observing:
“… disloyalty to Government established by law is not the same thing as commenting in strong
terms upon the measures or acts of Government, or its agencies, so as to ameliorate the
condition of the people or to secure the cancellation or alteration of those acts or measures by
lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply
excitement to public disorder or the use of violence.”
28
29
Nazir Khan &Ors. v. State of Delhi, AIR 2003 SC 4427 (India).
30
31
Brij Bushan v. State of Delhi, (1950) SCR 605 (India).
32
Sanskar Marathe v. State of Maharashtra,2015 SCC OnLine Bom 587 (India).

(¶ 26.) In the case of Arun Jaitley v. the State of U.P.,33the Allahabad High Court held that a
critique of a judgement of the Supreme Court on National Judicial Appointment Commission
does not amount to sedition.
(¶ 27.) Similarly in Javed Habib v. the State of Delhi34 , it was held:
Holding an opinion against the Prime Minister or his actions or criticism of the actions of
government or drawing inference from the speeches and actions of the leader of the government
that the leader was against a particular community and was in league with certain other
political leaders, cannot be considered as sedition under Section 124A of the IPC. The criticism
of the government is the hallmark of democracy. Similarly in Vino Dua v. Union of India35, it
was held that genuine criticism of the government cannot amount to sedition.
(¶ 28.) Therefore, owing to aforementioned arguments it is concluded that expression of dissent

does not amount to sedition, it is misconceptualised by many and focusing on that people
considered sedition considered it unconstitutional which is not the case.
2. [B] SUCH INTERPRETATION IS COMPATIBLE WITH FREE SPEECH UNDER

ART. 19 (A) OF THE INDIAN CONSTITUTION
A. THE RESTRICTION PRESCRIBED PASSES THE REASONABLE TEST OF

PUBLIC ORDER, AND THE SECURITY OF THE STATE
(¶ 29.) It is humbly submitted before the hon’ble apex court that the preservation of public order
is one of the grounds for imposing restrictions36on Fundamental Rights37 and is synonymous
with public peace, safety, and tranquility.38 In case of Public disorder in the society,39reasonable
restriction40 is imposed. If an activity tends to cause public disorder it would be restricted,41even
though the activity may not lead to a breach of public order.42
33
Arun Jaitley v. State of U.P, 2015 SCC OnLine All 6013 (India).
34
Javed Habib v. State of Delhi, 2007 SCC OnLine Del 891 (India).
35
Vinod Dua v. Union of India &Anr., 2020 SCC OnLine SC 1209 (India
36
Central Prison v. Dr. Ram Manohar Lohia, (1960) 2 SCR 821 (India); Sodi Shamsher Singh v. State of Pepsu,
AIR 1954 SC 276 (India).
37
MAHENDRA PAL SINGH, V.N. SHUKLA’S CONSITUTION OF INDIA 146 (12th ed. 2015).
38
Central Prison V. Dr. Ram Manohar Lohia, (1960) 2 SCR 821 (India); Sodi Shamsher Singh v. State of Pepsu,
1954 SC 276 (India).
39
Virendra v. State of Punjab, AIR 1957 SC 896 (India).
40
Surjan Singh v. State of Rajasthan, AIR (1965) SC 845 (India).
41
Babulal Parate v. State of Maharashtra, AIR 1961 SC 884 (India).
42
Ramji Lal Modi v. State of Uttar Pradesh, AIR (1957) SC 620 (India)

1. The restriction prescribed passes the reasonable test of public order
(¶ 30.) It is pertinent to mention here that Public order must be “maintained in advance in order
to ensure it”, and the restriction of Article 19 freedoms of expression and assembly in the
interests of public order is permissible.43But it is important to note that there is a need to be a
close and proximate connection between the application of a restriction on the freedom of
speech and expression and the achievement of a state of public order.44
(¶ 31.) Further, the addition of the phrase ‘in the interest of public order’ in Article 19(2)
through the first constitutional amendment with retrospective application was seen as an attempt
to validate the interpretation in Kedar Nath judgement45 that the section related to sedition was
a reasonable restriction both on grounds of ‘public order’ and ‘security of the state.46 The words
‘in the interest of public order’ include not only such utterances as are directly intended to lead
to disorder but also have the tendency to lead to disorder.47
(¶ 32.) Since then, however, a clear distinction has been drawn by courts between the terms
‘public order’ and ‘security of the state.48 It has been held that Section 124(A) impose
reasonable restriction in the interest of public order49and the state is entitled to curb freedom of
speech and expression if it is likely to trigger communal antagonism and hatred.50
(¶ 33.) The Court declared that the phrase "security of the State" covered only the "aggravated
forms of public disorder," and only serious and extreme conditions could justify curtailment of
freedom of speech and press under Clause 2 of Article 19.51
2.The restriction prescribed passes the reasonable test of security of state
(¶ 34.) The Court declared that the phrase "security of the State" covered only the "aggravated
forms of public disorder," and only serious and extreme conditions could justify curtailment of
freedom of speech and press under Clause 2 of Article 19.52
43
Babulal Parate v. State of Maharashtra, AIR 1961 SC 884 (India).
44
Virendra v. The State of Punjab, AIR 1957 SC 896 (India); Central Prison v. Ram Manohar Lohia, (1960) 2
SCR 821 (India).
45
Kedar Nath v. State of Bihar, AIR 1962 SC 955, (India).
46
Brij Bhushan v. State of Delhi, AIR 1950 SC 129:(1950) 51 Cri LJ 1525 (India).
47
Ramjilal Modi v. State of U.P., AIR 1957 SC 622 (India).
48
MAHENDRA PAL SINGH, V.N. SHUKLA’S CONSITUTION OF INDIA 135 (12th ed. 2015).
49
Devi Saren v. State, 1974 CriLJ 865 (India).
50
State of Karnataka v.Dr.Pravin Bhai Thogadia, AIR 2004 SC 2081 (India).
51
Romesh Thappar v. State of Madras, AIR 1950 SC 124 (India).
52
Id.

(¶ 35.) In Kishori Mohan v. State of W.B 53, the Supreme Court explained the
differences between three concepts: law and order, public order, security of State. The
difference between these concepts, the Court said, can be explained by three functional
concentric circles, the largest representing law and order, the next public order, and the smallest,
the security of the State.
(¶ 36.) Therefore, in the present case, the restriction was in the interest of public order and
security of the state was reasonable with lieu of right to freedom of speech and expression
which, therefore, passes the test of reasonableness.
B. IT IS IN ACCORDANCE WITH THE DOCTRINE OF PRSEUMPTION OF

CONSTITUTIONALITY AND INTERNATIONAL OBLIGATIONS
(¶ 37.) It is humbly submitted before the apex court that if we critically analyse the other side
of debate, the restrictions which have been imposed by the impugned provision is in the interest
of public order, within the legislative interference as already stated. If a certain provision of law
is construed to be consistent with the Constitution and another interpretation renders the same
unconstitutional, the court would lean towards the former construction.54
(¶ 38.) The court ought not to interpret the statutory provisions, unless compelled by their
language, in such a manner as would involve its unconstitutionality, since the legislature of the
rule making authority is presumed to enact a law which does not contravene or violate the
constitutional provisions.55
(¶ 39.) Therefore, there is a presumption in favour of constitutionality of a legislation or

statutory rule unless ex facie it violates the fundamental rights guaranteed under Part III of the
Constitution. If the provisions of a law or the rule is construed in such a way as would make it
consistent with the Constitution and another interpretation would render the provision or the
rule unconstitutional, the Court would lean in favour of the former construction. (“ex facie”
meaning ‘on the face’).56
(¶ 40.) It is a cardinal principle of construction that the Statute and the Rule or the Regulation
must be held to be constitutionally valid unless and until it is established they violate any
specific provision of the Constitution. Further it is the duty of the Court to harmoniously
53
Kishori Mohan v. State of W.B,(1972), (1972)3 SCC 845 (India).
54
Indra Das v. State of Assam, (2011) 3 SCC 380 (India).
55
M.L Kamra v New India Assurance, (1992) 2 SCC 36 (India).
56
Id.

construe different provisions of any Act or Rule or Regulation, if possible, and to sustain the
same rather than striking down the provisions out right.57
(¶ 41.) The Rabat Plan of Action on the prohibition of advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or violence, suggests a high
threshold for defining restrictions on freedom of expression, incitement to hatred, and for the
application of article 20 of the ICCPR.58 It outlines a six-part threshold test-taking into account
(1) the social and political context, (2) status of the speaker, (3) intent to incite the audience
against a target group, (4) content and form of the speech, (5) extent of its dissemination and
(6) likelihood of harm, including imminence.
(¶ 42.) Under the International human rights standards, which are intended to guide legislation
at the national level, expression labelled as “hate speech” can be restricted on different grounds
and one such ground is public order or sometimes national security. 59Adding to this, any
advocacy of national, racial or religious hatred that constitutes incitement to discrimination,
hostility or violence shall be prohibited by law.60
(¶ 43.) Therefore, owing reliance to the above-mentioned arguments it is submitted that

Sedition law is in accordance with the doctrine of presumption of constitutionality, and
International obligations.
C. SEDITION LAW IS NOT UNCONSTITUTIONAL IN NATURE, HENCE

SHOULD NOT BE STRUCK DOWN
(¶ 44.) It is submitted to hon’ble court that the Explanations provided to the main body of
Section 124-A makes it clear that criticism of public measures or a comment on governmental
action however strongly worded would be within the ambit of the fundamental right of freedom
of speech and expression. It is only when the words, written or spoken have a tendency or
intention of disturbing the law and order in the society, the law steps in to prevent such activities
in the greater interest of public order. It is contended that this provision strikes the correct
balance between individual fundamental rights and the interest of public order.61
(¶ 45.) The constitutionality of Section 124-A cannot be questioned as it is the fundamental

duty of the State to maintain peace and public tranquility as envisaged by the drafters of the
57
K Anjaiah v. K. Chandraiah, (1998) 3 SCC 218 (India).
58
Human Rights Council, Rabat Plan of Action on the prohibition of advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or violence, U.N DOC. A/HRC/ 22/17, (Jan. 11,
2017).
59
International Covenant on Civil and Political Rights, art. 18 & 19.
60
International Covenant on Civil and Political Rights, art. 20 cl. (2).
61
Sanskar Marathe v. State of Maharashtra, 2015 SCC OnLine Bom 587 (India).

Constitution.62The security of the State depends upon the maintenance of law and order and
offences against the State need to be punished.63
(¶ 46.) The Court in various cases has accepted the same interpretation.64And recently
in Common Cause v. Union of India,65 the Supreme Court held that authorities while dealing
with offence under Section 124-A IPC, shall be guided by the principles laid down by the
Constitution Bench in Kedar Nath Singh,66. A theoretical advocacy of the abstract doctrine of
the violent overthrow of Government cannot be punished, but action towards that end can be
suppressed.67
(¶ 47.) It would be perilous to abolish this section68 as an anachronistic colonial provision.69 We

cannot forget that dozens of districts in different States face a Maoist insurgency70 and rebel
groups virtually run a parallel administration. These groups openly advocate the overthrow of
the State Government by revolution. Against the backdrop of this stark reality, the abolition of
Section 124-A would be ill-advised merely because it has been wrongly invoked in some highly
publicised cases.71
(¶ 48.) As far as maintenance of public order is concerned it is an expression of wide

connotations and includes public safety or interest and signifies that the state of tranquillity
prevailing among the members of a political society, as a result of the internal regulations
enforced by the Government which they have instituted. In short, public order implies an
orderly state of affairs in which citizens can peacefully pursue their normal avocations of life.72
(¶ 49.) Even though the legislature has the right to curb tendencies to create a breach of public
order in cases where the breach of peace has actually taken place73, this would not enable the
legislature to provide for situations which have only a problematic relationship with public
order. Whether in a particular case an utterance would have tendency to create a breach of
62
Subramanian Swamy v. Union of India, (2016) 7 SCC 221 (India).
63
Id.
64
Indra Das v. State of Assam, (2011) 3 SCC 380 (India); Arup Bhuyan v. State of Assam, (2011) 3 SCC 377
(India).
65
Common Cause v. Union of India,(2016) 15 SCC 269 (India).
66
Kedar Nath v. State of Bihar, AIR 1962 SC 955, (India).
67
Schenck v. United States, 249 U.S 47 (1919).
68
Romesh Thappar v. State of Madras, AIR 1950 SC 124 (India).
69
Arvind P. Datar, Section 124-A should stay, THE INDIAN EXPRESS, (Oct, 02, 2021, 7:09
P.M)http://indianexpress.com/article/opinion/columns/section-124a-should-stay-2.
70
Asad Ismi, Maoist Insurgency Spreads to Over 40% of India: Mass Poverty and Delhi Embrace of Cooperate
Neo-Liberalism Fuels Social Uprising, GLOBAL RESEARCH, (Oct, 15, 2021, 8:43 A.M),
http://www.globalresearch.ca/maoist-insurgency-spreads-to-over-40-of-india-mass-poverty-and-delhis-embrace-
of-corporate—neolliberalism-fuels-uprising/5362276.
71
Id.
72
Supt., Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633 (India).
73
Ramji Lal Modi v. State of U.P., AIR 1957 SC 620 (India).

public order is to be determined objectively from the circumstances in which the utterance is
made, the nature of audience and the like.74
(¶ 50.) It is pertinent to note that the restriction can only be imposed in cases where there exists
incitement of enmity or hatred feelings between different sections of the society75or insulting
the religious feelings of any class of citizens, with a deliberate and malicious intention not in
cases of mere criticism of a Government or any of its policies.76
(¶ 51.) Therefore, it is submitted before the hon’ble apex court that the sedition law is not
unconstitutional in nature, hence should not be struck down.
74
State of Bihar v. Shailabala Devi, AIR 1952 SC 329 (India).
75
Virendra v. State of Punjab, AIR 1957 SC 896 (India).
76
V.K. Jawali v. State of Mysore, AIR 1966 SC 1387 (India).

3. FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IS

NOT UNFETTERED BUT SUBJECT TO CERTAIN RESTRICTIONS WHICH MAY
BE IMPOSED UNDER ARTICLE 19(2) OF THE CONSTITUTION OF INDIVA.
(¶ 52.) It is most humbly submitted before the Hon’ble Bench that though the Constitution
provides the fundamental right of speech and expression to all its citizens, such right is not
unfettered, and thus the petitioners in this case cannot claim their right of speech and
expression has been infringed by imposing restrictions on it.
A. RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IS NOT ABSOLUTE
(¶ 53.) Freedom of speech is considered as the basic freedom by most philosophical thinkers. It
is one ofthe most basic element for a healthy, open minded democracy and is foundation of any
democratic society77. Under the Constitution of Indiva, freedom of speech and expression has
been guaranteed under article 19(1)(a) which reads as: "Protection of certain rights regarding
freedom of speech etc.- All citizens shall have the right- (a) to freedom of speech and expression.
(¶ 54.) The Constituent Assembly debated on freedom of speech and expression on 1 December
& 2 December, 1948 and finally on 17 October, 1949. Most members of the constituent
assembly welcomed the inclusion of right to freedom of speech and expression but conflict was
regarding the provision in the article that placed restrictions. Those who were in the favour of
the restrictions argued that:
(a) Restrictions are fine as the Government is now not a colonial one.
(b) Nowhere in the world freedom of speech and expression is absolute.
(c) Law and order and security of State cannot be compromised.
In the end, the Constituent Assembly voted on the article and included freedom of speech and
expression in the Constitution with restrictions mentioned with it78.
(¶ 55.) In A.K. Gopalan V. State of Madras79, the Supreme Court observed: 'Man as a rational
being desires to do many things but in civil society his desires have to be controlled, regulated,
and reconciled with the exercise of similar desires by other individuals. Liberty has therefore to
be limited in order to be effectively possessed. '
77
Union of India V. Motion Pictures Association 1999 (3) SCR 875
78
The draft article read: 'Subject to the other provisions of this article, all citizens shall have the right – (a) to
freedom of speech and expression;
79
Gopalan V. State of Madras AIR 27 1950 SCR 88

Thus, we can conclude this issue by saying that the right to freedom of speech & expression is
not at all absolute but subject to certain restrictions as provided under 19(2)80.
B. VARIOUS ASPECTS OF FREEDOM OF SPEECH & EXPRESSIONS ARE

SUBJECTED TO REASONABLE RESTRICTIONS
(¶ 56.) Over the years, judicial creativity, judicial wisdom and judicial craftsmanship have
widened thescope of freedom of speech and expression by including in it the following aspects:
(a) Freedom of Press

(b) Freedom of Commercial Speech
(c) Right to Broadcast
(d) Right to Information
(e) Right to Criticize
(f) Right to Expression Beyond National Boundaries
(g) Right Not to Speak or to Remain Silent
(¶ 57.) These aspects have widened the scope of this right but still the right has not become
absolute andis subject to reasonable restrictions on the following grounds under clause (2) of
article 19 of the Constitution:
• security of the State

• friendly relations with foreign states
• public order
• decency and morality
• contempt of court
• defamation
• incitement to an offence
• sovereignty and integrity of the State.
(¶ 58.) In the case of Om Prakash V. Emperor81, the court held that the expression 'public order'
connotesthe sense of public peace, safety and tranquility. Anything that disturbs public peace
disturbs public order. Moreover, Supreme Court explained the differences between 3 concepts:
80
19(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the
State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub clause in the interests of the sovereignty and integrity of India, 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 offence.
81
Om Prakash V. Emperor AIR 1956 All 241, 1956 CriLJ 452

law & order, public order and security of State and held that a law, punishing the utterances
delivered deliberately tending to hurt the religious feelings of any class, is valid as it is a
reasonable restriction aimed at maintaining public order.82
(¶ 59.) While dealing with the aspect of advertising under freedom of speech & expression in
Hamdard Dawakhana (WAKF) Lal Kuan, Delhi V. Union of India83, the court primarily relied
on the judgment of the United States Supreme Court in Valentine V. Chrestensen84 for the
proposition that "purely commercial advertising" is not protected by Article 19(1)(a) of the
Constitution.
(¶ 60.) While dealing with the aspect whether obscenity is protectable speech, the Supreme
Court in Ranjit D. Udeshi V. State of Maharashtra85 upheld the test of obscenity used in R. V.
Hicklin86 and upheld the conviction of a book seller who was prosecuted under section 292
IPC for selling and keeping the obscene book 'Lady Chatterley's Love'. Thus, it was held that
obsceneness of any kind is not covered under 19(1)(a) of the Constitution.
(¶ 61.) People often say that censorship and other such restrictions must only be made in case
of emergency or war and not otherwise, but in another case87 Hon’ble Supreme Court held
that pre- censorship even in times of peace is warranted in certain circumstances under article
19(2) of theConstitution.
(¶ 62.) Reasonable restrictions can be imposed on freedom of speech and expression in the
interest of security of the State. All the utterance intended to endanger the security of the State
by crimes of violence intended to overthrow the government, waging war and rebellion
against the government, external aggression or war etc. may be restrained in the interest of
the security of the State.88
(¶ 63.) Hence, the counsel on the behalf of the respondents would humbly conclude that the
judiciary itself, at times, has upheld the restrictions on freedom of speech & expression, thus
making this right subject to restrictions rather that absolute or unfettered.
82
Kishori Mohan V. State of West Bengal AIR 1972 SC 1749, (1972) 3 SCC 845, 1973 (5) UJ 98 SC
83
Hamdard Dawakhana (WAKF) Lal Kuan, Delhi V. Union of India AIR 554 1960 SCR (2) 671
84
Valentine V. Chrestensen 1942 U.S., 316 U.S. 52
85
Ranjit D. Udeshi V. State of Maharashtra AIR 881 1965 SCR (1) 65
86
R. V. Hicklin 1868 LR 3 QB 360
87
Virendra V. State of Punjab AIR 1957 PH1 1957 CriLJ 88
88
State of Bihar V. Shailabala Devi AIR 329 1952 SCR 654

4. SOMEONE WHO ADVOCATES THE USE OF VIOLENCE TO OVERTHROW

THE GOVERNMENT IS NOT ENTITLED TO PROTECTION UNDER ART.
19(1)(A).
(¶ 64.) The counsel on the behalf of the respondents humbly submits before the Hon’ble Bench
that someone who advocates the use of violence to overthrow the government is not at all
entitled to protection under article 19(1)(a). Right to freedom of speech & expression is
not an absoluteright and the person enjoying such right is protected only till certain limits and
not when he exceeds -s his right and does an act that is considered seditious in nature. Grounds
under article 19(2) circumscribe the limits of the right of freedom of speech & expression and
thus an individual can be restricted from enjoying this right in the interests of security,
sovereignty and integrity of state, disruption of public order, incitement of an offence and other
such grounds elaborated under article 19(2).
(¶ 65.) Moreover, someone who advocates the use of violence to overthrow the Government
established by law, also becomes liable for sedition under section 124A as he shows his
disaffection towards the Government by doing so. In present case also, anti- Indiva slogans
and slogans to overthrow the Government were raised thus making the petitioners liable for
sedition as it clearly shows their disaffection towards the government.
(¶ 66.) The counsel also submits that mere harsh criticism of the government does not amount
to an act that undermines the security of the State or disrupts public order89 but the intent
behind such an act can make a person liable under 124A IPC, if such an act leads to disaffection
towards the Government established by the law. If the individual deliberately criticizes the
government in a way that it excited hatred or contempt against the government established be
law, then he may bebooked under section 124A for sedition90.
(¶ 67.) In the present case where Kamla Mehta gave pro-Bangistan statement or where in a
program conducted by Lamnesty Internationa government established by law was harshly
criticized which led to raising of anti- Indiva slogans, such acts where done with the intent to
excite hatred againstthe government established by law and thus they were rightfully charged
for sedition.
89
90
Indramani Singh V. State of Manipur 1955 CriLJ 184

A. SEDITION MUST BE UNDERSTOOD IN COMPARISON WITH FOREIGN

LAWS
(¶ 68.) Sedition is a controversial term that is rampantly and carelessly thrown about in today's
societal dialogue. There has always been a clash between section 124A and article 19(1)(a).
Despite several cases challenging the validity of section 124A, it's present status is that it has
been constitutionally upheld. Over the years, the Indian Judiciary has, through various cases,
established its stand on the sedition laws in the country. The legal viewpoints considered and
the tests applied by the Indian courts are very similar to foreign system, especially the American
system. With this regard, a basic understanding of the foreign rules will warrant a much easier
approach on our part regarding the judicial stand in our own country.
(¶ 69.) In Reg. V. Alexander Martin Sullivan91, Fitzgerald J., defined sedition as any practice by
word, deed or writing, which intends to disturb the peace in state and incite discontentment
against the government in the state and the laws of the empire. It is indication of disloyalty in
State.
(¶ 70.) The initial test applied to speech in America that criticised the Government was the “bad
tendency” test. The bad tendency principle is a test which permits restriction of freedom of
speech & expression by Government, if it is believed that a form of speech has a sole tendency
to incite or cause illegal activity. The principle was formulated in the case of Patterson V.
Colorado92.
(¶ 71.) However, one of the first cases related to sedition after passing of the Bill of Rights in
which the Supreme Court of America was requested to strike down a law violating the free
speech clause was Charles T. Schenck V. United States93. In this case, Holmes J. added a new
dimension to lawsrelated to speech against State even as they accepted the bad tendency test.
Holmes J. introduced the “clear & present danger” test in the American legal system by
asking ‘whether the wordsused in such circumstances are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that Congress has a right to
prevent.’
(¶ 72.) This test was further extended by Holmes J. in Debs V. United States94 in which Debs, a
politicalactivist, had not spoken any words that posed a clear and present danger but a speech in
91
Reg. V. Alexander Martin Sullivan 1868 11 Cox CC44
92
Patterson V. Colorado 1907 U.S., 205 U.S. 454
93
Charles T. Schenck V. United States 1919 U.S., 294 U.S. 47
94
Debs V. United States 1919 U.S., 249 U.S. 211

which he denounced militarism, was nonetheless found to be sufficient ground for his
conviction. Holmes
(¶ 73.) J. suggested that the speech had “natural tendency” to occlude the draft. In Dennis V.
United States95, clear and present danger test was again upheld. Later, a doctrinal shift began in
a case where the majority reiterated “bad tendency” test but Holmes J. dissented and relied on
his “clear& present danger” test.
(¶ 74.) The present day Court’s follow the principle that was established in the Brandenburg
Case96. In this case, it was held that “clear & present danger” test may have some value in times
of emergency but in ordinary circumstances, it had no place in assisting the interpretation. In
this case, “Brandenburg Test” was laid down which works on the three distinct elements of
intent, imminence and likelihood. The two step test currently stands as the prevailing standard
to determine protectable speech.
(¶ 75.) Current position of the Indian case laws is similar to that of the American ones. In Arup
Bhuyan V. The State of Assam97, the Hon’ble Supreme Court held the two step “Brandenburg
Test” as the determinant of sedition. Despite such clear cut process being set up by the Apex
Court, there is one more analogy to determine the scope of incitement that has been accepted by
the Indian judiciary. One of the most significant tests that have emerged after the Lohia Case98
andKedarnath Case99 is the analogy of 'spark in a powder keg'. The court in paragraph 13 of
the case of S. Rangarajan V. P. Jagjivan Ram100, explicitly held that while there has to be a
balance between free speech and restrictions for special interest, the two cannot be balanced as
though they were of equal weight. One can infer that the courts are making it clear that
exceptions have to be construed precisely as deviations from the norm that free speech should
prevail except in exceptional circumstances.
(¶ 76.) Later, InRe: Arundhati Roy Case101, the Supreme Court of India followed the view taken
in the American Court by Frankfuter J. in Pennekamp Vs. Florida102 in which the US Supreme
Court observed that:
95
Dennis V. United States 1951 U.S., 341 U.S. 494
96
Clarence Brandenburg V. State of Ohio 1969 U.S., 395 U.S. 444
97
Arup Bhuyan V. The State of Assam (2011) 3 SCC 377
98
The Superintendent, Central Jail, Fatehgarh V. Ram Manohar Lohia AIR 633 1960 SCR (2) 821
99
100
S. Rangarajan V. P. Jagjivan Ram 1989 SCR (2) 204 SCC (2) 574
101
InRe: Arundhati Roy (2002)
102
Pennekamp V. Florida 1946 U.S., 328 U.S. 331

“If men, including judges and journalists were angels there would be no problem of contempt
ofcourt. Angelic judges would be undisturbed by extraneous influences and angelic journalists
would not seek to influence them. The power to punish for contempt as a means of
safeguarding judges in deciding on behalf of the community bas impartially as is given to the
lot of men to decide in not a privilege accorded to judges. The power to punish for contempt
of court is a safeguard not for judges as persons but for the function which they exercise.”
(¶ 77.) Thus, the counsel on the behalf of the respondents most humbly submits that sedition
is not apower in the hands of the Government established by law but is a tool to safeguard
the itself from such individuals who try to excite hatred and disaffection towards the State,
leading to instability. On this note, section 124A is completely valid and is applied by the
authorities with due care and caution.
B. CASE LAWS RELATED TO SEDITION & ARTICLE 19(1)(a) MUST BE

STUDIED CLOSELY
(¶ 78.) Article 19(1)(a) of the Constitution as well as section 124A of IPC on first look seem
very straitjacketed and clear but these provisions are very deep in their implementation. For
better understanding of these concepts, on must closely study the interpretation given by the
judiciaryin various cases related to these provisions.
(¶ 79.) Right to freedom of speech & expression is undoubtedly, one of the most essential rights
that theConstitution ensures to every individual. However, in the case of State of Karnataka V.
Dr. Praven Bhai Togadia103, it was held that the valuable and cherished right to freedom of
speech and expression may at times have to be subjected to reasonable subordination of social
interests,needs and necessities to preserve the very chore of democratic life, preservation of
public order and rule of law.
(¶ 80.) In Binayak Sen V. State of Chhattisgarh104 mere possession and distribution of

objectionable literature led to conviction. One Mr. Piyush Guha confessed that Binayak Sen, a
public health advocate had delivered certain letters to him to be delivered to Kolkata. These
letters allegedly contained naxal literature and convicting the accused on this basis, the High
Court cited the widespread violence by banned Naxalite groups against members of armed
forces. Similarly, in one case105 it was held that the accused does not necessarily have to be the
103
State of Karnataka V. Dr. Praven Bhai Togadia SLP (Crl.) No. 3085/2003
104
Binayak Sen V. State of Chhattisgarh (2011) 266 ELT 193
105
Raghubir Singh V. State of Bihar AIR 149, 1986 SCR (3) 802 SCC 481

author of seditiousmaterial for a charge of sedition to be established.
(¶ 81.) In another case106 of Chhattisgarh the accused was found to be in possession of Maoist
literatureand was a member of banned organisation CPI(M). He was also accused of inciting
and provoking people to join the organisation, with the intention of overthrowing the current
capitalist Government through armed rebellion. The accused in this case was also convicted for
sedition.
(¶ 82.) Hon’ble Apex Court accepted that the line dividing preaching disaffection towards the
Government and legitimate political activity in a democratic setup cannot be neatly drawn. The
objects of sedition generally are to induce discontent and insurrection and stir up opposition to
the Government and bring the administration of justice into contempt; and the very tendency of
sedition is to incite the people to insurrection and rebellion.107
(¶ 83.) Thus, the counsel would like to conclude that in the present case also, the intent of Kamla
Mehta, Lamnesty International and Democratic Students Union was to incite disaffection
towards the Government which led to disruption of public order where anti-Indiva slogans and
slogans to overthrow the Government were raised and hence the speech & and expression of
these individuals is not at all protectable under article 19(1)(a) and charges of sedition imposed
on these individuals is also completely fair.
106
Asit Kumar Sen Gupta V. State of Chhattisgarh Cr. Appeal No. 86 Of 2011
107
Nazir Khan V. State of Delhi AIR 2003 SC 4427 SCC 461

5. SECTION 124A OF IPC DOES NOT INFRINGES THE FUNDAMENTAL RIGHT

TO LIFE AND DIGNITY ENSHRINED UNDER ARTICLE 21 OF THE
CONSTITUTION OF INDIVA.
(¶ 84.) It is most humbly submitted before the Hon’ble Bench that section 124A is not related
to article 21 in any way and thus does not infringes the fundamental right to life and dignity
enshrined under article 21 of the Constitution. The contention of the petitioners is that section
124A provides for disproportionate punishment and hence leads to disproportionate sentencing
by the judiciary. However, this contention is not appropriate in this particular case.
A. PUNISHMENT MUST BE PROPORTIONAL TO THE GRAVITY OF

OFFENCE
(¶ 85.) Intrinsic in the concept of justice is the idea that where the criminal justice system
imposes punishments, it should do so only in proportion to the crimes to which it seeks to
respond. The principle of proportionality in criminal punishment is a fundamental aspect of
most modern legal systems. However, it is ultimately an unattainable ideal and is, at best, a
goal to be continually strived for.
(¶ 86.) The traditional theory of criminal punishment provides that the state imposes sanctions
in response to the breaking of law. This theory finds its basis in the ideas of the social contract
through which free and rational individuals have collectively consented to relinquish certain
rights in order to subsist peaceably in society.
(¶ 87.) Hence, the State alone, as the embodiment of thebody politic, has the right to inflict
punishment on its members, and to determine the sort of sanctions to be imposed for different
crimes. Much has been written about the concept of proportionality, which has been held to be
the ‘dominant principle driving the determination of sentences’108. Proportionality is
considered to be so important in criminal sentencing because it ‘accords with principles of
fundamental justice and with the purpose of sentence - to maintainrespect for the law and a safe
society by imposing just sanctions’
(¶ 88.) Nevertheless, despite this strong recognition of the importance of proportionality in

criminal justice, ‘the law with respect to proportionality in sentencing is confused, and what
the law can be discerned rests on weak foundations'.
108
R. V. Arcand 2010 ABCA 363

B. NO PROPER GUIDELINE FOR SENTENCING OR PUNISHMENT IS

PRESENT IN INDIA
(¶ 89.) India does not have structured sentencing guidelines that have been issued either by the
legislature or the judiciary. In March 2003, the Committee on Reforms of Criminal Justice
System (the Malimath Committee), a body established by the Ministry of Home Affairs, issued
a report that emphasized the need to introduce sentencing guidelines in order to minimize
uncertainty in awarding sentences. In 2008, the Committee on Draft National Policy on Criminal
Justice (the Madhava Menon Committee), reasserted the need for statutory sentencing
guidelines. In an October 2010 news report, the Law Minister is quoted as having stated that the
government is looking into establishing a “uniform sentencing policy” in line with the United
States and the United Kingdom in order to ensure that judges do not issue varied sentences.
(¶ 90.) In 2008, the Supreme Court of India, in State of Punjab v. Prem Sagar & Ors.109, also
noted the absence of judiciary-driven guidelines in India’s criminal justice system, stating, “in
our judicialsystem, we have not been able to develop legal principles as regards sentencing.
The superior courts, except for making observations with regard to the purport and
object for which punishment is imposed upon an offender, had not issued any guidelines.”
The Court stated that the superior courts have come across a large number of cases that “show
anomalies as regardsthe policy of sentencing,” adding, “whereas the quantum of punishment
for commission of a similar type of offence varies from minimum to maximum, even where the
same sentence is imposed, the principles applied are found to be different. Similar discrepancies
have beennoticed in regard to imposition of fines.”
(¶ 91.) In 2013 the Supreme Court, in the case of Soman v. State of Kerala110, also observed
the absence of structured guidelines:
“Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in
our country, it is the weakest part of the administration of criminal justice. There are no
legislative or judicially laid down guidelines to assist the trial court in meting out the just
punishment to theaccused facing trial before it after he is held guilty of the charges.”
(¶ 92.) In State of M.P. v. Bablu Natt111, the Supreme Court stated that “the principle governing
imposition of punishment would depend upon the facts and circumstances of each case. An
offence which affects the morale of the society should be severely dealt with.”
109
State of Punjab V. Prem Sagar & Ors. (2008) (unreported)
110
Soman V. State of Kerala Cri. Misc. No. 3083 & 3189 Of 2014
111
State of M.P. V. Bablu Natt Cri. Appeal No. 2060 Of 2008

Moreover, in Alister Anthony Pareira v. State of Maharashtra112, the Court held that:
“Sentencing is an important task in the matters of crime. One of the prime objectives of the
criminal law is imposition of an appropriate, adequate, just and proportionate sentence
commensurate with the nature and gravity of the crime and the manner in which the crime is
done. There is no straitjacket formula for sentencing an accused on proof of crime. The
courtshave evolved certain principles: the twin objective of the sentencing policy is deterrence
and correction. What sentence would meet the ends of justice depends on the facts and
circumstances of each case and the court must keep in mind the gravity of the crime, motive
forthe crime, nature of the offence and all other attendant circumstances.”
(¶ 93.) Hence, after referring the aforementioned judgements, the counsel would like to submit
before the Hon’ble Bench that doctrine of proportionality is an ideal which our system must try
to achieve but on the basis of it the punishment under section 124A cannot be declared excessive
and violative of fundamental right enshrined under article 21 of the Constitution.
C. PUNISHMENT IN CASE OF SEDITION IS PROPORTIONATE WITH THE

GRAVITY OF THAT OFFENCE
(¶ 94.) The power of words can never be underestimated. Indeed, words and language may be
the only thing that separates man from beast. It is the importance of words in the continuing
development of Civilization and Humanity and for the spread of ideas and knowledge that
causes more states around the world to protect words. This is done through various means, the
most important of which is the guarantee of the right to free speech. However, words can be
double edged sword. They can be used to determine the authority of the very state that protects
them. They can have used toincite violence and disorder against the state and citizens. In order
to protect itself and its citizensthe state makes sedition an offence. Sedition is a crime against
society nearly allied to that of treason, and it frequently precedes treason by a short interval.
Thus, it can be said that sedition is prescribed by law or the person charged with sedition is
being deprived of the liberty accordingto the due procedure established by law as emphasized
in article 21113.
(¶ 95.) In State of U.P. V. Lalai Singh Yadav114, the Supreme Court upheld “ordered security”
as a constitutional value, ensuring that where free speech and public order seem to clash, the
112
Alister Antony Pareira V. State of Maharashtra (2012) 2 SCC 648
113
Article 21. Protection of life and personal liberty:
No person shall be deprived of his life or personal liberty except according to procedure established by law
114
State of U.P. V. Lalai Singh Yadav AIR 202 1977 SCR (1) 616

latter is given precedence.
(¶ 96.) The counsel humbly submits that in the present case where Kamla Mehta, Lamnesty
International & Democratic Students Union deliberately used their freedom of speech in order
to undermine the security of the State, such speech cannot be tagged as mere criticism and thus
made protectable under article 19(1)(a).
(¶ 97.) Moreover, charges of sedition on the petitioners are proportional to the gravity of their
offence and since their liberty has been restricted by due procedure of law, they cannot move
the court for violation of their fundamental right to freedom of speech and expression ensured
under article 21.

-PRAYER-
Wherefore, in the light of the facts stated, arguments advanced and authorities cited, it is most
humbly prayed and implored before the Hon’ble Supreme Court of Indiva, that it may be
graciously pleased to adjudge and declare that:
1. To Declare, that section 124A of IPC, which deals with sedition and its punishment, does not
infringes the right to freedom of speech & expression given under article 19(1)(a) of the
Constitution.
2. To Declare, the right to freedom of speech & expression enshrined in article 19(1)(a) is not
unfettered but subject to certain reasonable restrictions.
3. To hold, Ms. Kamla Mehta, Lamnesty International & Democratic Students Union guilty for
the offence of sedition under 124A as they were engaged in seditious activities.
4. To Declare, that the punishment under section 124A of IPC is proportional and it does not
violates right to life & personal liberty as enshrined under article 21 of the Constitution.
Or pass any such or other orders as this Hon’ble Court may deem fit in the interests of justice,
equity, and good conscience.
For this act of Kindness, the Petitioner shall duty-bound forever pray.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
S/d-
COUNSELS for THE RESPONDENT

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1st NSL INTRA MOOT COURT COMPETITION

1ST NSL INTRA MOOT COURT COMPETITION, 2021

BEFORE THE HON’BLE SUPREME COURT OF INDIVA

PUBLIC INTEREST LITIGATION NO. /2021

UPON SUBMISSION TO THE SPECIAL BENCH OF THE SUPREME

THE HUMBLE SUBMISSION ON BEHALF OF THE RESPONDENT

MEMORIAL for RESPONDENT Page 1 of 41

LIST OF ABBREVIATIONS ............................................................................................... 04

INDEX OF AUTHORITIES ................................................................................................. 06

STATEMENT OF JURISDICTION .................................................................................... 10

STATEMENT OF FACTS .................................................................................................... 11

SUMMARY OF ARGUMENTS ........................................................................................... 13

ARGUMENTS ADVANCED ................................................................................................ 16

I. FUNDAMENTAL RIGHT OF FREEDOM OF SPEECH AND EXPRESSION AS

B.) 'REASONABLE RESTRICTIONS' .................................................................................. 17

C.) 1.3.GUIDELINES REGARDING REASONABLE RESTRICTION .............................. 18

II. EXPRESSION OF DISSENT DOES NOT AMOUNT TO SEDITION ............................ 21

2. [B] SUCH INTERPRETATION IS COMPATIBLE WITH FREE SPEECH UNDER ART.

I. THE RESTRICTION PRESCRIBED PASSES THE REASONABLE TEST OF PUBLIC

MEMORIAL for RESPONDENT Page 2 of 41

II. IT IS IN ACCORDANCE WITH THE DOCTRINE OF PRSEUMPTION OF

III. SEDITION LAW IS NOT UNCONSTITUTIONAL IN NATURE, HENCE SHOULD

3. FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IS NOT

B. VARIOUS ASPECTS OF FREEDOM OF SPEECH & EXPRESSION ARE SUBJECT TO

4. SOMEONE WHO ADVOCATES THE USE OF VIOLENCE TO OVERTHROW THE

B. CASE LAWS RELATED TO SEDITION AND ARTICLE 19(1)(a) MUST BE STUDIED

5. SECTION 124A OF IPC DOES NOT INFRINGES THE FUNDAMENTAL RIGHT TO

B. NO PROPER GUIDELINE FOR SENTENCING OR PUNISHMENT IS PRESENT

C. PUNISHMENT IS CASE OF SEDITION IS PROPORTIONATE WITH THE GRAVITY

MEMORIAL for RESPONDENT Page 3 of 41

AIR All India Reporter

Cr.P.C Criminal Procedure Code

NGO Non-Government Organization

CrLJ Criminal Law Journal

u/s Under Section

ICCPR International Covenant on Civil and Political

ILR Indian Law Review

MEMORIAL for RESPONDENT Page 4 of 41

IPC Indiva Penal Code

J&K Jammu & Kashmir

NCT National Capital Territory

PIL Public Interest Litigation

SCC Supreme Court Cases

SCR Supreme Court Reporter

U.S. United States

UAPA Unlawful Activities Prevention Act

MEMORIAL for RESPONDENT Page 5 of 41

MEMORIAL for RESPONDENT Page 6 of 41

Charles T. Schenck V. United States, 1919 U.S., 294 U.S. 47 ................................................. 33

BLACK'S LAW DICTIONARY, 556, (4th ed. 1968).............................................................. 34

INDIA CONST. Art 19 cl. (1). ................................................................................................ 23

MEMORIAL for RESPONDENT Page 7 of 41

INDIAN LAW REPORTS

Law Commission Report on Consultation Paper on Sedition, 2018 ....................................... 17

JOURNALS AND ARTICLES

Akshita Saxena, Presumption of Constitutionality Doesn’t Apply To Pre-Constitutional Laws:

MEMORIAL for RESPONDENT Page 8 of 41

Constitutional Assembly Debates, 1948. ................................................................................. 28

MEMORIAL for RESPONDENT Page 9 of 41

MEMORIAL for RESPONDENT Page 10 of 41

MEMORIAL for RESPONDENT Page 11 of 41

THE RESPONDENT VERY RESPECTFULLY PUT FORTH TO THE HON’BLE SUPREME

WHETHER SECTION 124A OF IPC INFRINGES THE FUNDAMENTAL RIGHT OF

WHETHER KEDAR NATH SINGH RULING OF SUPREME COURT OF INDIA