BEFORE THE HON’BLE SUPREME COURT OF INDIVA

ASSOCIATION OF DEMOCRATIC REFORMER

..............PETITIONER

UNION OF INDIA. .............

RESPONDENT

THE HUMBLE SUBMISSIONS ON BEHALF OF RESPONDENT

 TABLE OF CONTENTS

TABLE OF AUTHORITIES………………………………………………………………..3

Cases Cited ….....3

Books ………….....5

Internet Sources and Database...................................................................................................5

Abbreviations..............................................................………………………………….…......6

STATEMENT OF JURISDICTION …….... 7

STATEMENT OF FACT ……..…8

STATEMENT OF ISSUES …..…….9

SUMMARY OF ARGUMENTS .……….10

ARGUMENTS ADVANCED ……...…11

PRAYER …….23

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 INDEX OF AUTHORITIES

CASES CITED

CASES CITED

1. State of Bihar v. Shailabala Devi AIR 1952 SC329

2. RomeshThappar v. State of Madras (1950) S.C.R. 594

3. Debi Soren v. State AIR 1954 PATNA

4. KedarNath v State of Bihar AIR 1962 SC 955

5. Lowell v. Griffin 1939 US 444

6. NiharenduDuttMajumdar v. The King Emperor (Federal Court)

7. SatyaranjanBakshi v. Emperor (AIR 1927 Cal 698)

8. Hanumanthaiya v. Govt of Mysore (1948) 52 Mys HCR 265

9. Paramanand v. Emperor AIR 1941All 156, 1941 All LJ26, 42 CrLJ 46

10. Ramchandra v. Emperor, 29 CrLJ 381 (Lah)

11. BalgangadgarTilak (1897) 22 Bom 112

12. SadashivNaraya, (1947) 49 Bom LR 526

13. KidarNathSahgal v. Emperor, AIR 1929 Lah 817

14. ManibenLiladhar v. Emperor, AIR 1933 Bom 65

15. VishambharDayal v. Emperor; AIR 1941 Oudh 33

16. Raghuvir Singh v. State of Bihar, AIR 1987 SC 149

17. Nirinjan Das v. Emperor, AIR 1931 Lah 31

18. Naurang Singh, 1986 Cr LJ 846 (P&H)

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19. Balwant Singh v. State of Punjab, (1995) 3 SCC 214, 1995 SCC (Cri) 432.

20. ShreyaSinghalvs U.O.I AIR 2015 SC 1523

21. BrijBhusan v. State of Delhi AIR 1950 SC 129.

22. Dr.VinayakBinayakSenv. State of Chhattisgarh 2011 ELT 193 (Chhattisgarh).

23. Kanhaiya Kumar v. State (NCT of Delhi) (2016) 227 DLT 612.

24. V.A. Pugalenthiv. State Crl. O.P. No. 21463 of 2017, decided on 9/11/2017

25. Gompers v. Buck’s Stove & Range Co 221 U.S 418 (1911)

26. A.K. Gopalanv. State of Madras AIR 1950 SC 27

27. Snyder v. Phelp 562 U.S. 443 (2011)

28. Ram ManoharLohiyav. State of BiharAIR 1966 SC 740

29. N.R. Narayana Murthy v. Kannada RakshanaVakeelara AIR 2007 Kant 174

30. P Hamalatha v. The Govt. of Andra Pradesh AIR 1976 AP 375 (India)

31. ArunGhosh v. State of West Bengal, [1970] 3 S.C.R. 288

32. Terminiello v. City of Chicago 93 L. Ed. 1131 (1949) at page 1134-1135

33. Brandenburg v. Ohio 23L. Ed. 2d 430 (1969) at 434-435 & 436

34. Virginia v. Black 155 L. Ed. 2d 535 (2003) at page 551, 552and 553[4]

35.S. Rangarajan v. P. Jagjivan&Ors., (1989) 2 SCC 574

36.Queen-Empress v. JagendraChunder Bose

37.Reg v. Alexander Martin Sullivan

38. The Bengal Immunity Company Limited v. The State of Bihar

39. R.M.D. Chamarbaugwalla v. The Union of India

40. Nazir Khan v. State of Delhi 2003 SCC 461

41. Bilal Ahmed Kaloo v State of A.P (1997 SCC 430)

42. State of Karnataka v. Dr. Praveen BhaiThogadia AIR 2004 SC 20181

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 BOOKS

STATUTES REFERRED

● The Code of Criminal Procedure, 1973

● The Indian Penal Code, 1860
● The Constitution of India, 1949
● Information and technology act,2000
● The Government of India Act, 1935

BOOKS REFERRED

● Durga Das Basu, Introduction to The Constitution of India (22nd Ed)

● Dr. N. V. Paranjape, Studies in Jurisprudence and Legal Theory (8th Ed)
● Ratanlal and Dhirajlal, The Indian Penal Code, 1860 (35th Ed)
● Ratanlal and Dhirajlal, The Code of Criminal Procedure, 1973 (22nd Ed)

DICTIONARIES &LEXICON

● Bryan A. Garner, Black’s Law Dictionary (10 ed. 2014)

● P. RamanathaAiyar, Concise Law Dictionary (4 ed. 2012)

INTERNET SOURCES AND DATABASES

● www.manupatra.com
● www.scconline.com
● www.supremecourtofindia.nic.in
● www.westlawindia.com
● indiankanoon.org
● www.livelaw.in

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 LIST OF ABBREVIATIONS

● & - And
● IPC – Indiva Penal Code, 1860
● Act – The Indian Penal Code, 1860
● AIR – All India Reporter
● Anr – Another
● Art. – Article
● Ed. – Edition
● i.e. – That is
● Ltd. - Limited
● Ors. - Others
● Pvt. – Private
● SC – Supreme Court
● SCC – Supreme Court Cases
● SCR – Supreme Court Report
● Sec – Section
● V. – Versus
● It – Information technology
● Crpc – criminal procedure law

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STATEMENT OF JURISDICTION

THE PRESENT PUBLIC INTEREST LITIGATION HAS BEEN FILED FOR

ENFORECEMENT OF RIGHTS AND CHALLENGING THE VALIDITY OF SECTION
124 (A) OF IPC AS BEING VIOLATIVE OF ARTICLE 19 (1) (A) & 21 OF THE
CONSTITUION OF INDIVA HAS BEEN FILED BY THE PETITIONER BEFORE THIS
HON’BLE SUPREME COURT PURSUANT TO ART.32 1OF THE CONSTITUTION OF
INDIVA AND BOTH THE PARTIES HAVE PUT THEIR ISSUES BEFORE THE
HON’BLE SUPREME COURT OF INDIVA.

1
Art. 32. 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.

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STATMENT OF FACTSSTATEMENT OF FACTS

For the purpose of brevity and convenience of the Hon’ble Supreme Court, the Respondent
most respectfully submits the facts of the matter as:

● Indiva is a small developing country where the freedom of speech and expression is
guaranteed as a fundamental right under the Constitution of Indiva. Democratic
Reformers Association is a group of certain Professionals working in this country
which has large network throughout the country.
● In this Association many Doctors, Lawyers, Cine Artists, Engineers, Writers are
working together for social cause and social problems.
● The discussion started aggressive arguments about the government and many
members expressed their critical views about the government. Few people who were
the members of the existing Ruling party protested against this on WhatsApp group
and other Social media group.
● Some people brought these arguments to the notice of Ruling party members and thus
it reached up to some of the ministers. An urgent cabinet meeting was called and a
resolution was passed for banning these kinds of activities in the country.
● Police complaints were made against the members of the Democratic Reformers
Association. Some members of this group were arrested by the police stating that they
are disseminating false information about the government and its policies with the aim
of instigating people against the government.
● There were also violent protests against the resolution by the opposition party.
Members found to have propagated such information were charged under section 124-
A of Indiva Penal Code. Their anticipatory bail applications were rejected by Trial
Court and High Court.
● The Home Ministry of the country passed order in exercise of the powers conferred
by the Information Technology Act, which talks about Monitoring and Decryption of
Information.
● Democratic Reformers Association has filed a petition by challenging the
constitutional validity of the order passed by the Home Ministry of Indiva, Section
124-A of Indiva Penal Code, and against the order of rejection of bail applications
before the Hon’ble Supreme Court of indiva.

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● Mr.PappuYadav filed a criminal case under Section 124 (A) of Indiva Penal Code,
1860 against Kamla Mehta an actor – politician who is a member of 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”. It is nothing like that. People
are just like us and there is no difference. They treated us very well” On the receipt of
the complaint, summons were issued against Kamla Mehta. Kamla Mehta being
aggrieved by the summons challenged the constitutionality of Sections 124(A) of The
Indiva Penal Code stating it to be violative of Article 19(1) (a) of the Constitution of
Indiva before the Supreme Court of Indiva.
● Lamnesty International, an NGO, conducted a campaign named “Broken Families of
Vienna” (Vienna being a state of Indiva) where they talked about the human rights
violations by Indiva Army on the people of Veinna and invited the victims of these
violations to speak. During the debate the Indiva Peoples Party (IPP, which is the
ruling party) was heavily criticised for its inaction. Moreover at the end of the
program the debate got heated and there were heard some anti – Indiva slogans.
● Democratic Students Union (DSU) held protests on the hanging of Faizal Khan
Convicted of terror attack on the Parliament of Indiva on the campus of MurliSankar
University for which the permission was refused by the University. Anti – Indiva
slogans and slogans to overthrow the government were raised in the event. A
complaint was filed against Raju Kumar the president of DSU for the charges of
Sedition. The disciplinary committee of the University investigated the matter to find
that slogans were raised by a group of outsiders wearing masks. All Indiva Student
Organization (AISO) a student body associated with Indiva Peoples Party (IPP) was
responsible for filing the complaint against Lamnesty International and Raju Kumar
under Sec. 124 (A) of the Indiva Penal Code, 1860.
● National Crime Records 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 cases have been filed.
● Kamla Mehta, Lamnesty International and Raju Kumar filed a PIL challenging the
validity of Section 124(A) as being violative of Article 19 (1) (A) and Article 21 of
the Indiva Constitution.

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● As all the above issues concern interpretation of Article 19(1) (a), 19 (2) and 21 of Indiva
Constitution it was placed before a Special Bench of the Supreme Court of Indiva to
decide.

STATEMENT OF ISSUE

Following issues had been raised for consideration of this Hon’ble Court in the instant matter:

ISSUE I. WHETHER SECTION 124 (A) OF INDIVA PENAL CODE INFRINGES THE
FUNDAMENTAL RIGHT OF FREEDOM OF SPEECH AND EXPRESSION
ENSHRINED UNDER ARTICLE 19 (1) OF THE CONSTITUTION?

ISSUE II. WHETHER SECTION 124 (A) OF INDIVA PENAL CODE INFRINGES THE
FUNDAMENTAL RIGHT OF FREEDOM TO LIFE AND LIBERTY ENSHRINED
UNDER ARTICLE 21 OF THE CONSTITUTION?

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SUMMARY ARUGUMENTS

ISSUE I: WHETHER SECTION 124 (A) OF INDIVA PENAL CODE INFRINGES THE
FUNDAMENTAL RIGHT OF FREEDOM OF SPEECH AND EXPRESSION ENSHRINED
UNDER ARTICLE 19 (1) (A) OF THE CONSTITUTION?

It is humbly submitted before this Hon’ble Supreme Court that legislature is in best
position to understand and appreciate the needs of the people. That the Court, will
therefore, interfere with the legislative process only when a statute is clearly violative of
rights conferred on the citizen under Part III of the Constitution. There is a presumption in
favour of the constitutionality of an enactment. Further, the Court would so construe a
statute to make it workable and in doing so can read into it or read down the provisions that
are impugned. The Constitution does not impose impossible standards of determining
validity. Mere possibility of abuse of a provision cannot be a ground to declare a provision
invalid. Loose language may have been used in Section 124A to deal with novel methods
of disturbing other people's rights by using the internet as a tool to do so. Further,
vagueness is not a ground to declare a statute unconstitutional if the statute is otherwise
legislatively competent and non-arbitrary.

ISSUE II:WHETHER SECTION 124 (A) OF INDIVA PENAL CODE INFRINGES

THE FUNDAMENTAL RIGHT OF FREEDOM TO LIFE AND LIBERTY
ENSHRINED UNDER ARTICLE 21 OF THE CONSTITUTION?
It is humbly submitted before this Hon’ble court that the restrictions have been enshrined in
the constitution vides. Article 19 (2) and Article 21 further restrictions have been imposed
on the freedom of speech and expression. Under Article 51 A expressly states No one should
in exercise of the freedom of expression or the press do any of the following acts:
(1) To Disparage the Constitution, its ideals and institutions, the National Flag or the
National Anthem.
(2) To Undermine the Sovereignty, Unity and Integrity of India.
(3) To disrupt the spirit of common brotherhood among all the people.
(4) To Insult the rich Heritage of our composite culture.

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 ADVANCE ARGUMENT

I. WHETHER SECTION 124 (A) OF INDIVA PENAL CODE INFRINGES

THE FUNDAMENTAL RIGHT OF FREEDOM OF SPEECH AND
EXPRESSION ENSHRINED UNDER ARTICLE 19 (1) (A) OF THE
CONSTITUTION?

It is most respectfully submitted before this Hon’ble Supreme Court that Section
124 (A) of Indiva Penal Code is constitutionally valid as that while exercising the
right to freedom of speech and expression under Article 19(1) (a) of the
Constitution, one has to remember that Part-IV Article 51A of the Constitution
provides Fundamental Duties of every citizen, which form the other side of the
same coin. Furthermore the freedom has to be guarded against becoming a license
for vilification and condemnation of the Government established by law, in
words, which incite violence or have the tendency to create public disorder. A
citizen has a right to say orwrite whatever he likes about the Government, or
itsmeasures, 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. (Emphasis added)
SUBMISSION-A: Preliminary Objections regarding Petitioner (s) approaching
the Hon’ble Supreme Court directly as the Respective High Court of the
Petitioner (s) have concurrent jurisdiction to deal with this matter under Article
226 of the Constitution.
A preliminary objection, not indeed to the jurisdiction of this Court to entertain
the application under article 32, but to the petitioner (s) resorting to this Court
directly for such relief in the first instance. That, as a matter of orderly procedure,
the petitioner (s) should first resort to the concerned high courts in which
jurisdiction the offences have been registered. That under article 226 of the
Constitution has concurrent jurisdiction to deal with the matter. That criminal
revision petitions under section 401 of the Criminal Procedure Code, applications
for bail and applications for transfer under section 24 of the Civil Procedure Code

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as instances where, concurrent jurisdiction having been given in certain matters to
the High Court and the Court of a lower grade, a rule of practice has been
established that a party should proceed first to the latter Court for relief before
resorting to the High Court. That in Emperor v. Bisheswar Prasad Sinha1 where
such a rule of practice was enforced in a criminal revision case, and also in certain
American decisions Urquhart v. Brown2andHooney v. Kolohan3 as showing that
the Supreme Court of the United States ordinarily required that whatever judicial
remedies remained open to the applicant in Federal and State Courts should be
exhausted before the remedy in the Supreme Court --- be it habeas corpus or
certiorari—would be allowed.
SUBMISSION-B: Reasonable Restrictions on the exercise of the Right
conferred by the constitution enshrined in Article 19 (1) (A) in the interest of
the sovereignty and integrity of Indiva , the security of State, friendly relations
with Foreign States, public order, decency morality, or in relation to contempt
of court, defamation or incitement of offence.

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 1
Emperor v. Bisheswar Prasad Sinha
2
Urquhart v. Brown
3
Hooney v. Kolohan

● That Article 19(1) (a) of the Constitution of Indiva guarantees freedom of speech and
expression to all citizens. However, this freedom is subjected to certain restrictions namely,
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. The constitutional validity of section 124A IPC
came to be challenged in the case of KedarNath Singh v. State of Bihar4. The Constitution
Bench upheld the validity of section 124A and kept it at a different pedestal. 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. That is why 'sedition', as the offence in Section 124-A has been
characterised, comes, under Chapter VI relating to offences against the State. Hence any
acts
within the meaning of Section 124-A which have the effect of subverting the Government by
bringing that Government into contempt or hatred, or creating disaffection against it, would
be within the penal statute because the feeling of disloyalty to the Government established by
law or enmity to it imports the idea of tendency to public disorder by the use of actual
violence or incitement to violence”. In Nazir Khan &Ors v. State of Delhi 5 the court
reiterated this principal stating: “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”.

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__________________________
4
KedarNath Singh v. State of Bihar
5
Nazir Khan &Ors v State of Delhi AIR 2003 SC 4427

● The harm is to be of such a potentially that it threatens the very existence of the
society: it disturbs the public order and results into the chaos in the society. Justice
Holmes, inGompers v. Buck’s Stove & Range Co.6opined: In the name of freedom of
speech and expression, the protection is not extended to the ones who utter words that
may have all the effect of force.
● The Supreme Court has been consistently pronouncing in various judgments that the
right to free speech and expression is not absolute in nature. It is subjected to the
reasonable restrictions as enshrined in Article 19(2) and other laws, such as section
124A of IPC. In the case of A.K. Gopalan v. State of Madras7, 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”
Potentiality and impact of expression has always been looked into by the court to
determine the permissibility of its restriction.In order to qualify as sedition, the act
must be intentional and must cause hatred.Disturbance of public order has been
recognised as an important ingredient of sedition in India8. The term public order has
been defined and distinguished from law and order and security of State ‘in Ram
ManoharLohiya v. State of Bihar.9The Court observed the difference between the
three of them is that of degree. One has to imagine three concentric circles. Law and
order represents the largest circle within which is the next circle representing public
order and the smallest circle represents security of State. It is then easy to see that an
act may affect law and order but not public order just as an act may affect public order
but not security of the State.
_____________________________
6 Gompers v. Buck’s Stove& Range Co

7 A.K. Gopalan v. State of Madras7

Kedarnath v. State of Bihar

8
9AIR 1966 SC 740

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● In the case of N.R. Narayana Murthy v. Kannada Rakshana Vakeelara10the
Karnataka High Court observed:
“According to Article 51A (a), it shall be the duty of every citizen of India to abide by the
Constitution and respect its ideals and institutions, the National Flag and the
National Anthem. National Flag, National Anthem and the Constitution of India are
the symbols of sovereignty and the integrity of the Nation. Public acts of insults to
these symbols must be prevented. The Prevention of Insults to National Honour Act,
1971 was enacted and brought on the Statute book. ……. Section 2 of the National
Honour Act deals with insult to Indian National Flag and Constitution of India.
Section 3 of the National Honour Act says that whoever intentionally prevents the
singing of the Indian National Anthem or causes disturbance to any assembly
engaged in such singing shall be punished with imprisonment for a term which may
extend to three years, or with fine, or with both". Section 3A prescribes enhanced
penalty on second and subsequent convictions under Sections 2 and 3 of the National
Honour Act.on the basis of knowledge of the mark to the geographical area of use, its
goodwill and reputation due to extensive promotion, publicity and advertisement,
extensive sales under the mark in India and abroad, and the numerous registrations
obtained of the mark”.
● Furthermore in this connection it may be recalled that the Federal Court had, in
defining sedition in NiharenduDuttMajumdar v. The King Emperor 11, held that "the
acts or words complained of must either incite to disorder or must be such as to satisfy
reasonable men that that is their intention or tendency", but the Privy Council
overruled that [1942] F.C.R. 38.
SUBMISSIONS - C: The reasons for introduction of Section 124 (A) and the security of
state which depends on Maintenance of Law and Order and it is the very basic
consideration upon which legislation with a view of punishing offences against the state is
undertaken. That a tendency to disturb public order is inherent in Sec. 124 (A) itself.

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________________

10
AIR 2007 Kant 174,
11
NiharenduDuttMajumdar v. The King Emperor

● It is most humbly submitted before this Hon’ble Supreme Court that criticism on
political matters is not of itself seditious. The test is the manner in which it is made.
Candid and honest discussion is permitted. That this section strikes a correct balance
between individual fundamental rights and the interest of public order. It is also well
settled that in interpreting an enactment the Court should have regard not merely to the
literal meaning of the words used, but also take into consideration the antecedent history
of the legislation, its purpose and the mischief it seeks to suppress (vide (1)). The
12
Bengal Immunity Company Limited v. The State of Bihar and R.M.D.
13
Chamarbaugwalla v. The Union of India . Viewed in that light, there is no
infringement so construing the provisions of the sections impugned in these cases as to
limit their application to acts involving intention or tendency to create disorder, or
disturbance of law and order, or incitement to violence.
● The statement of the law is derived mainly from the address to the Jury by Fitzerald, J.,
in the case of Reg v. Alexander Martin Sullivan 14. In the course of his address to the
Jury the learned Judge observed as follows:
"Sedition is a crime against society, nearly allied to that of treason, and it frequently
precedes treason by short interval. Sedition in itself is a comprehensive term, and it
embraces all those practices, whether by word, deed or writing, which are calculated to
disturb the tranquility of the State, and lead ignorant persons to endeavour to subvert
the Government and the laws of the empire. 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. Sedition has been described, as disloyalty in
action and the law considers as sedition all those practices which have for their object

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 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
constitution of the realm, and generally all endeavors to promote public disorder."
● It is further submitted that Article 19(1) (a) of the Constitution is restricting a person by
doing such Act which is against the integrity and sovereignty of the India. This ground
was also added subsequently by the Constitution 16 th amendment Act 1963. The main
object behind this is to prohibit anyone from making the statements that challenge the
integrity and sovereignty of India. Reasonable restrictions can be imposed on the
freedom of speech and expression, in the interest of the Security of the State.
12
The Bengal Immunity Company Limited v. The State of Bihar
13
R.M.D. Chamarbaugwalla v. The Union of India,
14
Reg v. Alexander Martin Sullivan

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.
15
ThatRight enshrined is subject to limitation imposed under Article 19(2) which empowers
the State to put ‘Reasonable’ restriction on the following grounds, like Security of the State,
friendly relations with the foreign States, public order, decency and morality. Contempt of
Court, Defamation, Incitement to Offence and Integrity and Sovereignty of India.

_________________________________________________________

15
State of Bihar v. Shailababa Devi AIR 1952 SC 329

II. WHETHER SECTION 124 (A) OF INDIVA PENAL CODE INFRINGES THE
FUNDAMENTAL RIGHT OF FREEDOM TO LIFE AND LIBERTY ENSHRINED
UNDER ARTICLE 21 OF THE CONSTITUTION?

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It is most humbly submitted before this Hon’ble Supreme Court that Freedom of Person or
Personal liberty is sought to be ensured by our constitution by means of two – fold guarantee,
namely –

A) By Providing that no person can be deprived of his liberty except according to law;
B) By laying down certain specific safeguards against arbitrary arrest and detention.

The Article reminds us of one of the famous clauses of the Magna Carta;

“No man shall be taken or imprisoned, disseized, or outlawed, or exiled, or in any way
destroyed save.... by the law of the land”

The word ‘law’ which figures in Art. 21 of the Constitution would mean a validity enacted
law and in order to be a valid law it must be just fair and reasonable and such law have been
strictly and scrupulously observed. But in no country can there be any absolute freedom of
the individual. The principle underlying the English Constitution is that the people’s
representatives, assembled in Parliament, who shall determine how far the rights of an
individuals should go and how far they should be curtailed in the collective interests or the
security of the state itself, according to the exigencies of the time. This was the theory
adopted by the Constitution of Indiva in saying that life and personal liberty are subject to
“the procedure established by law”.

SUBMISSION-A: “Words are, of course, the most powerful drug used by mankind” –
Rudyard Kipling, London 1923. “No democracy permits right to Sedition” The Right to
Free Speech and Personal Liberty enshrined in the Constitution cannot be used against
the country.

● Article 19 (1) (A) says that all citizens shall have the Right to Freedom of speech and
expression and besides that Article 21 gives fundamental right towards Protection of Life
and Personal Liberty. This right is subject to limitation imposed under Article 19(2) and
Article 21 of the constitution which empowers the State to put ‘Reasonable’ restriction on
the following grounds, like Security of the State, friendly relations with the foreign States,
public order, decency and morality. Contempt of Court, Defamation, Incitement to
Offence and Integrity and Sovereignty of India.

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● A Constitutional bench explained the meaning of the words ‘excite disaffection’ and also
upheld the Constitutional validity of Section 124-A. The Supreme Court observed:

The Security of the State which depends upon the Maintenance of Law and other is the
very basic consideration upon which legislation with a view to punishing offences against
the state is undertaken. Such legislation has on the one hand fully to Protect and
guarantee the freedom of speech and expression, which is a sine qua non of a democratic
form of Government that our Constitution has established. But the freedom has to be
guarded against becoming a licence for vilification and condemnation of the Government
established by Law, in words which incite violence or have a tendency to create public
disorder. 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.
The Supreme Court further held that ‘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 for the stability of the state. That is why
‘Sedition’ as the offence in Section 124-A comes under the offences related to State. In
other words any written or spoken words etc. Which have implicit in them the idea of
subverting Government by violent means, which are compendiously included in the term
‘revolution’ which have been made penal by the Section.

● Section 124-A of the Indian Penal Code which makes Sedition offence is constitutionally
valid. Though the Section imposes restriction on the fundamental freedom of speech and
expression. But the condition is that restrictions are in the interest of public order and are
within the ambit of permissible legislative interference with the fundamental right. Both
federal court and Privy Council had different opinion of the ambit of Section 124-A of the
Indian Penal Code. The federal court has held that words, deeds or writings constituted an
offence under Section 124-A only when they had intention or tendency to disturb public
tranquillity to create public disturbance or to promote disorder, whilst the privy council
has taken the view that it was not an essential ingredient of the offence of Sedition under
Section 124-A that the words etc, should be intended to or to be likely to incite public
disorder. Either view can be taken and supported on good reasons. If the view taken by

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 the federal court was accepted Section 124-A would be use Constitutional but if the view
of the Privy Council was accepted it would be unconstitutional. It is well settled that if
certain provision of law construed in one way would make them consistent with the
Constitution and another interpretation would render them unconstitutional the court
would lean in favour of the former construction. Keeping in and the reason for the
introduction of Section 124-A and the History of Sedition the Section must be so
construed as to limit its application to acts involving intention or tendency to create
disorder, or disturbance of law and order, or incitement to violence. The Supreme Court
held that Sec. 124 (A) is intra vires.
SUBMISSION-B: Section 124 – A of Indiva Penal Code is Constitutional, and is not in
contravention of Article 21 as it is saved by the expression “according to procedure
established by law”.

 Section 124-A of the Indian Penal Code is Constitutional, and is not in contravention
of Article 19(1) (a) as it is saved by the expression ‘in the interest of public order’ in
Article 19(2) in addition also constitutional in view of Article 21 as it is saved by the
expression “ according to procedure established by law”. It has been stated that the
expression in the interest of public order is of wider connotation, and include not only
the acts which are likely to disturb public order but something more than that. The
Constitution 40th amendment act, 1976, incorporated the Prevention of Publication of
objectionable matter act, 1976, in the 9th schedule by objectionable matter we mean
the matter which incites disaffection towards the Government or to commit any
offence or to interfere with the production and distribution of essential commodities
or seduction of any matter or armed forces, defamation of the president, vice
president, prime minister, speaker, or governor of a state. Restriction imposed on any
of these grounds could not be challenged on the ground of unreasonableness.Also
with the inclusion of fundamental duties by the 42nd amendment, the implication is
that nobody should exercise his freedom of speech and expression so as to violate the
fundamental duties, and it is likely that the courts may be inclined to give a
harmonious interpretation to the restriction imposed on the exercise of the right for
the enforcement of the fundamental duties as they have done in the case of
fundamental rights and the directive principle of state policy. For instance if a person
is illegally detained, a writ of habeas corpus can be obtained by the detenue. But if the

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 Government does not separate judiciary from the executive or introduce free he and
compulsory education the court cannot help the aggrieved.

● Further restrictions have been imposed on the freedom of speech and expression by
Article 51-A defining fundamental duties of a citizen 42nd Amendment in 1976. Under
Article 51 A, No one should in exercise of the freedom of expression or the press do any
of the following acts:
(1) To Disparage the Constitution, its ideals and institutions, the National Flag or the
National Anthem.
(2) To Undermine the Sovereignty, Unity and Integrity of India.
(3) To disrupt the spirit of common brotherhood among all the people.
(4) To Insult the rich Heritage of our composite culture.
● Article 19(1) (a) of the Constitution of India promises right to free speech and expression
in India to all its citizens. However reasonable restriction can be imposed on the
enjoyment of this freedom by the state under clause 2 of the Article 19 on the grounds,
the interest of the sovereignty and integrity of India, the security of the state, friendly
relations with foreign states or incitement to an offence. The Supreme Court of India said
the very creation of ‘Disaffection’ leads to a ‘Feeling of disloyalty to the Government or
enmity to it imports the idea of tendency to public disorder by the use of violence.’ It
uphold the Constitutionality of Section 124-A. The citizen owes no loyalty to the
Government, only to the state.
● Democracy and freedom of speech and expression does not give anybody a right to
demand Sedition. No democracy permits right to Sedition. But some misconceived
representative of civil society has abolished it as free speech. However the right to
freedom and speech and expression is a fundamental right but it has certain restriction. 158
Restrictions have been imposed on the freedom of speech and expression by Article 51-A
defining fundamental duties of a citizen (42 amendment in 1976). Under Article 51-A, no
nd

one should in exercise of the freedom of expression or the press do any of the following
acts:
(1) To disparage the Constitution its ideals and institutions, the national flag or the
National Anthem,
(2) To Undermine the Sovereignty, Unity and Integrity of India,
(3) To disrupt the spirit of Common brotherhood among all the people,
(4) To Insult the Rich heritage of our Composite Culture.

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 If anybody speaks against the Sovereignty of India, Such exercise comes Under Penal
Law offences against State.

● The Supreme Court in State of Karnataka v. Dr. Praveen BhaiTogadiaheld that

“valuable and cherished right to freedom of expression and speech at many times have to
be subjected to reasonable subordination of social interest, needs and necessities to
preserve the very chore of democratic life, preservation of public order and rule of
law”.16
● As stated in KENNY- the Law of Sedition relates to the uttering of the seditious words,
the publication of seditious libels, and conspiracies to do an act for the furtherance of a
seditious intention. Sedition, whether by words spoken or written, or by conduct, is a
misdemeanor at common law punishable by fine and imprisonment. Sir JAMES
STEPHEN defined a seditious intention as “an intention to bring into hatred or contempt,
or to excite disaffection against, the person of his Majesty, his heirs or successors, or the
Government and the constitution of the United Kingdom by law established, or either
House of Parliament, or the administration of Justice or to excite his Majesty’s subjects to
attempt otherwise than by lawful means, the alteration of any matters in Church or State
by law established…..or to raise discontent or disaffection amongst his Majesty’s
subjects, or to promote feelings of ill will and Hostility between different classes of such
subjects.”
● To avert the constitutional difficulty as a result of the above referred case. The
constitutional 1st (Amendment) Act, 1951 added in Art 19 (2) two words of widest
import, wiz. “In the interest of” “public order”. Thereby including the legislative
restrictions on freedom of speech and expression. The advocates of the other view held
that section 124-A, of I.P.C is constitutional and is not in contravention of Art 19(1) (a) as
it is saved by the expression “in the interest of public order” in Art 19(2). It has been
stated that the expression in the interest of public order is of wider connotation, and
includes not only the Acts which are likely to disturb public order but something more
than that.

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_________________________________________________
16
State of Karnataka v. Dr. Praveen BhaiTogadia AIR 2004 SC 2081

● With reference to the constitutionality of s. 124A of the Indiva Penal

Code, as to how far they are consistent with the requirements of cl. (2)
of Art. 19 with particular reference to security of the State and public
order, the section, it must be noted, penalizes any spoken or written
words or signs or visible representations, etc., which have the effect of
bringing, or which attempt to bring into hatred or contempt or excites
or attempts to excite disaffection towards the Government established
by law" has to be distinguished from the person's for the time being
engaged in carrying on the administration. "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.
That is why 'sedition', as the offence in s. 124A has been characterised,
comes under Chapter VI relating to offences against the State. Hence
any acts within the meaning of s. 124A which have the effect of
subverting the Government by bringing that Government into
contempt or hatred, or creating disaffection against it, would be within
the penal statute because the feeling of disloyalty to the Government
established by law or enmity to it imports the idea of tendency to
public disorder by the use of actual violence or incitement to violence.
In other words, any written or spoken words, etc., which have implicit
in them the idea of subverting Government by violent means, which
are compendiously included in the term 'revolution', have been made
penal by the section in question. But the section has taken care to
indicate clearly that strong words used to express disapprobation of

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 the measures of Government with a view to their improvement or
alteration by lawful means would not come within the section.
● Similarly, 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. In other words, 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.
● It is further submitted that, this Court, as the custodian and guarantor of the
fundamental rights of the citizens, has the duty cast upon it of striking down any
law which unduly restricts the freedom of speech and expression with which we are
concerned in this case. But the freedom has to be guarded again becoming a license
for vilification and condemnation of the Government established by law, in words
which incite violence or have the tendency to create public disorder. 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.
This Hon’ble Court has, therefore, the duty cast upon it of drawing a clear line of
demarcation between the ambit of a citizen's fundamental right guaranteed under
Art. 19(1) (a) & Article 21 of the Constitution and the power of the legislature to
impose reasonable restrictions on that guaranteed right in the interest of, inter alia,
security of the State and public order. Section 124 – A strikes the correct balance
between the individual fundamental rights and the interest of Public Order. It is
also well settled that in interpreting an enactment the Court should have regard not
merely to the literal meaning of the words used, but also take into consideration the
antecedent history of the legislation, its purpose and the mischief it seeks to
suppress.

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 PRAYER

Therefore, In the light of issues raised, arguments advanced, reasons given and authorities
cited, it is most respectfully prayed before this Hon’ble Court that:

● It is therefore prayed that the main application as well as interim applications for
reliefs if any filed by the petitioner may kindly be dismissed with exemplary cost
saddled on the Petitioner.
● That the Hon’ble Court may please allow the respondent to make any amendments in
the prayers and reliefs sought in the present reply or submit additional prayers as and
when required.
● Kindly pass such other suitable orders as may deem fit and proper to meet the ends of
justice in the peculiar facts and circumstances of the case and for this act of kindness
and justice, the above named Respondent as in duty bound shall ever pray.

The Respondent additionally prays that the Hon’ble Court may make any such order or
orders as this Hon’ble Court deemed fit and proper in the facts and circumstances of the
matter.

AND FOR THIS ACT OF KINDNESS, THE RESPONDENT AS IS DUTY BOUND SHALL
EVER HUMBLY PRAY.

All of which is most respectfully submitted on behalf of,

The Respondent

Sd/-

Counsel for Respondent

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