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IN THE HON’BLE SUPREME COURT OF INDIVAMrs. Kamla Mehta............................................ 1Lamnesty International...................................... 2Mr. Raju Kumar............................................... 3Versus.Union Of Indiva...............................................MEMORI...

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SHRI RAMSWAROOP MEMORIAL UNIVERSITY INTRA MOOT 2020

IN THE HON’BLE SUPREME COURT OF INDIVA

Mrs. Kamla Mehta……………………………………...Petitioner 1 Lamnesty International………………………………...Petitioner 2 Mr. Raju Kumar……………………………………......Petitioner 3 Versus.

Union Of Indiva…….…………………………………..Respondent

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TABLE OF CONTENTS LIST OF ABBREVIATIONS…………………………………………………………….…4 INDEX OF AUTHORITIES…………………………………………………………….….5 STATEMENT OF JURISDICTION……………………………………………………….7 STATEMENT OF FACTS……………………………………………………………….…8 STATEMENT OF ISSUES…………………………………………………………………9 SUMMARY OF ARGUMENTS……………………………………………………………10 ARGUMENTS ADVANCED I.

WHETHER SECTION 124A OF IPC INFRINGES THE FUNDAMENTAL RIGHT OF FREEDOM OF SPEECH AND EXPRESSION ENSHRINED UNDER ARTICLE 19(1)(a) OF THE CONSTITUTION.?………………………………..13 1.1.SEDITION HAS BEEN HELD CONSTITUTIONALLY VALID BY THE SUPREME COURT. ………………………………………………………………..13 1.2 'REASONABLE RESTRICTIONS'……………………………………………..15 1.3.GUIDELINES REGARDING REASONABLE RESTRICTION ……………...16

II.

WHETHER THE PEOPLE ENJOY UNFETTERED RIGHT TO FREEDOM OF SPEECH AND EXPRESSION.? …………………………………………………...19 2.1.RIGHT TO FREEDOM OF SPEECH & EXPRESSION IS NOT ABSOLUTE…19 2.2.VARIOUS ASPECTS OF FREEDOM OF SPEECH & EXPRESSION ARE SUBJECT TO REASONABLE RESTRICTIONS……………………………….......20

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III.

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 A DISRUPTION OF PUBLIC ORDER TO MAKE A CASE UNDER SECTION 124A.?.....…………………………………………………………….24 3.1.SEDITION MUST BE UNDERSTOOD IN COMPARISON WITH FOREIGN CASES......………………………………………………………………………..25 3.2.CASE LAWS RELATED TO SEDITION AND ARTICLE 19(1)(a) MUST BE STUDIED CLOSELY......………………………………………………………..28

IV.

WHETHER SECTION 124 OF IPC INFRINGES THE FUNDAMENTAL RIGHT TO LIFE AND DIGNITY ENSHRINED UNDER ARTICLE 21 OF THE CONSTITUTION.?.............………………………………………………….....30 4.1.PUNISHMENT MUST BE PROPORTIONAL TO THE GRAVITY OF THE OFFENCE……………………………………………………………………..…30 4.2.NO PROPER GUIDELINE FOR SENTENCING OR PUNISHMENT IS PRESENT IN INDIA…………………………………………………………………………31 4.3.PUNISHMENT IS CASE OF SEDITION IS PROPORTIONATE WITH THE GRAVITY OF THAT OFFENCE………………………………………………..33

PRAYER…………………………………………………………………………………35

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LIST OF ABBREVIATIONS

S. No .

ABBREVIATION

FULL FORM

1.

AIR

All India Reporter

2.

Anr.

Another

3.

Cr.P.C

Criminal Procedure Code

4.

Dy.

Deputy

5.

Edn.

Edition

6.

Hon'ble

Honourable

7.

i.e.

That Is

8.

Ltd.

Limited

9.

No.

Number

10.

Ors.

Others

11.

Sec.

Section

12.

SC

Supreme Court

13.

SCC

Supreme Court Cases

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14.

SCR

Supreme Court Report

15.

u/s

Under Section

16.

v.

Versus

17.

&

And

INDEX OF AUTHORITIES 

CASE LAWS :

Charles T. Schenck V. United States, 1919 U.S., 294 U.S. 47 Clarence Brandenburg Vs. State Of Ohio, 1969 U.S., 395 U.S. 444 Debs V. United States, 1919 U.S., 249 U.S. 211 Dennis V. United States, 1951 U.S., 341 U.S. 494 Patterson V. Colorado, 1907 U.S., 205 U.S. 454

PAGE NUMBER 26 26 26 26 26

Pennekamp V. Florida, 1946 U.S., 328 U.S. 331

27

Reg. V. Alexander Martin Sullivan, 1868 11 Cox CC44

25

R. V. Arcand, 2010 ABCA 363 R. V. Hicklin, 1868 LR 3 QB 360 Valentine V. Chrestensen, 1942 U.S., 316 U.S. 52

31 22 22

FOREIGN CASE LAWS

A.K. Gopalan V. State Of Madras, AIR 27 1950 SCR 88

PAGE NUMBER 15, 20

Alister Antony Pareira V. State Of Maharashtra, (2012) 2 SCC 648

32

Arup Bhuyan V. State Of Assam, (2011) 3 SCC 377

27

Asit Kumar Sen Gupta V. State Of Chhattisgarh, Cr. Appeal No. 86 Of 2011

29

Binayak Sen V. State Of Chhattisgarh, (2011) 266 ELT 193

28

Emperor V. Sadashiv Narayan Bhalerao, (1944) 46 BOMLR 459

14

INDIAN CASE LAWS & CITATION

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Hamdard Dawakhana (WAKF) Lal Kuan, Delhi V. Union Of India, AIR 554 1960 SCR (2) 671

22

Indramani Singh V. State Of Manipur 1955 CriLJ 184

25

In Re : Arundhati Roy (2002) Kedarnath Singh V. State Of Bihar, AIR 955 1962 SCR Supl. (2) 769

27 15, 18, 24, 27

Kishori Mohan V. State Of West Bengal, AIR 1972 SC 1749, (1972) 3 SCC 845, 1973 (5) UJ 98 SC

22

Maneka Gandhi V. Union Of India, AIR 597 1978 SCR (2) 621 Narendra Kumar V. Union Of India, AIR 430 1960 SCR (2) 375 Narottamdas V. State Of Madhya Pradesh, AIR 1667 1964 SCR (7) 820 Nazir Khan V. State Of Delhi, AIR 2003 SC 4427 SCC 461 Niharendu Majumdar V. Emperor, AIR 1939 Cal 703 Om Prakash V. State, AIR 1956 All 241, 1956 CriLJ 452 Queen Emperor V. Bal Gangadhar Tilak, 1917) 19 BOMLR 211 Raghubir Singh V. State Of Bihar, AIR 149, 1986 SCR (3) 802 SCC 481 Ram Nandan V. State Of Uttar Pradesh, AIR 1959 All 101, 1959 CriLJ 1

13 15 16 29 14 22 14 29 14

Ranjit D. Udeshi V. State Of Maharashtra, AIR 881 1965 SCR (1) 65

22

Romesh Thappar V. State Of Madras, AIR 124 1950 SCR 594

13

Soman V. State Of Kerala, Cri. Misc. No. 3083 & 3189 Of 2014

32

S. Rangarajan V. P. Jagjivan Ram, 1989 SCR (2) 204 SCC (2) 574

27

State Of Bihar V. Shailabala Devi, AIR 329 1952 SCR 654

23

State Of Karnataka V. Dr. Praven Bhai Togadia, SLP (Crl.) No. 3085/2003 State Of Madhya Pradesh V. Bablu Natt, Cri. Appeal No. 2060 Of 2008 State Of Punjab V. Prem Sagar & Ors. (2008) (unreported) State Of Uttar Pradesh V. Lalai Singh Yadav, AIR 202 1977 SCR (1) 616 Tara Singh Gopi Chand V. The State, 1951 CriLJ 449 The Superintendent, Central Jail, Fatehgarh V. Ram Manohar Lohia, AIR 633 1960 SCR (2) 821

28 32 31 34 14 27

Union Of India V. Motion Pictures Association, 1999 (3) SCR 875 Virendra V. State Of Punjab, AIR 1957 PH1 1957 CriLJ 88

19 22

 1. 2. 3.

LAWS & STATUTES : Constitution Of India, 1950 Indian Penal Code, 1860 Criminal Procedure Code, 1973

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 1. 2. 3. 4. 5. 6. 7.

BOOKS & OTHER AUTHORITIES Andrew Ashworth, Principles of Criminal Law S.C. Sarkar, The Code of Criminal Procedure M.P. Jain, Indian Constitutional Law Smith & Hogan’s Criminal Law 29 (David Ormerod ed., 13th edn., 2011) K.D. Gaur Textbook on Indian Penal Code Malimath Committee Report, 2003 Madhava Menon Committee Report, 2008

STATEMENT OF JURISDICTION The petitioner has approached this Hon’ble Court under Art. 32 of the Constitution of Indiva. The respondents have appeared to the Hon’ble Supreme Court of Indiva in response to the petitions filed by the petitioners.

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STATEMENT OF FACTS 

In a country like Indiva, where freedom of speech and expression is guaranteed as a fundamental right, there has been recent cases in which it has been challenged a lot of times.



One Kamla Mehta, an actor-politician of largest opposition party was booked in a criminal case u/s 124A of Indian Penal Code filed by Mr. Pappu Yadav for her comment on social media where she wrote a controversial pro-Bangistan (Indiva's neighbour) statement.



Likewise, in another case when an NGO names Lamnesty International conducted a campaign where they talked to the victims about the violations by Indian Army on the people of Vienna, the debate got heated and anti-Indiva slogans were raised.



In another case where Democratic Students Union (DSU) protested against the death sentence of Faizal Khan, a terrorist who was convicted for terror attack on the Parliament of India, and organised a rally, anti-Indiva slogans, along with the slogans to overthrow the government were raised.



Eventually, All India Students Organisation (AISO), a student body which is associated with Indiva People Party (current government) filed the complaint against Lamnesty International and Raju Kumar (President of DSU) u/s 124A IPC.



Finally, all the aggrieved persons i.e. Kamla Mehta, Lamnesty International and Raju Kumar filed a PIL challenging the validity of section 124A as being violative of Article 19(1)(a), 19(2) and 21 of the Constitution.

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STATEMENT OF ISSUES

V.

WHETHER SECTION 124A OF IPC INFRINGES THE FUNDAMENTAL RIGHT OF FREEDOM OF SPEECH AND EXPRESSION ENSHRINED UNDER ARTICLE 19(1) (a) OF THE CONSTITUTION.?

VI.

WHETHER THE PEOPLE ENJOY UNFETTERED RIGHT TO FREEDOM OF SPEECH AND EXPRESSION.?

VII.

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 A DISRUPTION OF PUBLIC ORDER TO MAKE A CASE UNDER SECTION 124A.?

VIII.

WHETHER SECTION 124 OF IPC INFRINGES THE FUNDAMENTAL RIGHT TO LIFE

AND

DIGNITY

ENSHRINED

CONSTITUTION.?

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UNDER

ARTICLE

21

OF

THE

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SUMMARY OF ARGUMENTS 

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.

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 of speech 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 due care and caution. Thus, it does not infringes right to freedom of speech and expression of any individual in any aspect. 

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.

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 lead to imposition of restriction under article 19(2) in the interests of the sovereignty and integrity of 10 MEMORIAL ON THE BEHALF OF RESPONDENTS

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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. 

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 under 124 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

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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. 

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 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. 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 sedition is 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 statutory provision 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 comes under the purview of sedition. Therefore, the impugned section of the IPC is not violative of the fundamental right to life and personal liberty guaranteed under the Constitution of Indiva.

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ARGUMENTS ADVANCED 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.? 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 under article 19(1)(a) of the Constitution of Indiva, in any aspect. In Romesh Thappar V. The State Of Madras1, Patanjali Sastri .J ., rightfully held that article 19(1) (a) is the basis and essence of the constitution and our democracy . This view was further supported by Bhagwati J. , in Maneka Gandhi V. Union of India2, 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

1 Romesh Thappar V. The State Of Madras AIR 124 1950 SCR 594 2 Maneka Gandhi V. Union Of India AIR 597 1978 SCR (2) 621

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1.1.SEDITION HAS BEEN HELD CONSTITUTIONALLY VALID BY THE SUPREME COURT. 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 her discontent against the established Government in the State , with the aim the incite violence or hatred against it . Section 124A3 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. Emperor4, the Federal Court held that public disorder 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 Bhalerao5, the Privy Council not only reiterated the law on sedition enunciated in Bal Gangadhar Tilak6 case , but also held that the Federal Court’s statement in Majumdar case was wrong . Privy council held that excitement of feelings of enmity 3 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 thre...