lOMoARcPS

MOOT COURT MEMORIAL-1

SUBMITTED BY – NIDHI P GOPAN(180401420032)

SRI SAI HARSHA
COURSE - BBALLB

Under the supervision of:

Prof.

Date of Submission: 07.06. 2021

 lOMoARcPSD|9608741

IN THE HON’BLE SUPREME COURT OF INDIVA

Democratic reformers Association……………………....Petitioner

Versus.

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

MEMORIAL ON BEHALF OF RESPONDENT

 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

MEMORIAL ON THE BEHALF OF RESPONDENTS

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

3
MEMORIAL ON THE BEHALF OF RESPONDENTS
 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 Honorable

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

4
MEMORIAL ON THE BEHALF OF RESPONDENTS
 14. SCR Supreme Court Report

15. u/s Under Section

16. v. Versus

17. & And

INDEX OF AUTHORITIES

CASE LAWS:

PAGE
FOREIGN CASE LAWS NUMBER
Charles T. Schenck V. United States, 1919 U.S., 294 U.S. 47 26
Clarence Brandenburg Vs. State of Ohio, 1969 U.S., 395 U.S. 444 26
Debs V. United States, 1919 U.S., 249 U.S. 211 26
Dennis V. United States, 1951 U.S., 341 U.S. 494 26
Patterson V. Colorado, 1907 U.S., 205 U.S. 454 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 31
R. V. Hicklin, 1868 LR 3 QB 360 22
Valentine V. Chrestensen, 1942 U.S., 316 U.S. 52 22

PAGE
INDIAN CASE LAWS & CITATION
NUMBER
A.K. Gopalan V. State of Madras, AIR 27 1950 SCR 88 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
 Hamdard Dawakhana (WAKF) Lal Kuan, Delhi V. Union Of India, AIR 554 22
1960 SCR (2) 671
Indramani Singh V. State Of Manipur 1955 CriLJ 184 25
In Re : Arundhati Roy (2002) 27
Kedarnath Singh V. State Of Bihar, AIR 955 1962 SCR Supl. (2) 769 15, 18, 24, 27
Kishori Mohan V. State Of West Bengal, AIR 1972 SC 1749, (1972) 3 SCC 22
845, 1973 (5) UJ 98 SC
Maneka Gandhi V. Union Of India, AIR 597 1978 SCR (2) 621 13
Narendra Kumar V. Union Of India, AIR 430 1960 SCR (2) 375 15
Narottamdas V. State Of Madhya Pradesh, AIR 1667 1964 SCR (7) 820 16
Nazir Khan V. State Of Delhi, AIR 2003 SC 4427 SCC 461 29
Niharendu Majumdar V. Emperor, AIR 1939 Cal 703 14
Om Prakash V. State, AIR 1956 All 241, 1956 CriLJ 452 22
Queen Emperor V. Bal Gangadhar Tilak, 1917) 19 BOMLR 211 14
Raghubir Singh V. State Of Bihar, AIR 149, 1986 SCR (3) 802 SCC 481 29
Ram Nandan V. State Of Uttar Pradesh, AIR 1959 All 101, 1959 CriLJ 1 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 28
State Of Madhya Pradesh V. Bablu Natt, Cri. Appeal No. 2060 Of 2008 32
State Of Punjab V. Prem Sagar & Ors. (2008) (unreported) 31
State Of Uttar Pradesh V. Lalai Singh Yadav, AIR 202 1977 SCR (1) 616 34
Tara Singh Gopi Chand V. The State, 1951 CriLJ 449 14
The Superintendent, Central Jail, Fatehgarh V. Ram Manohar Lohia, AIR 633 27
1960 SCR (2) 821
Union Of India V. Motion Pictures Association, 1999 (3) SCR 875 19
Virendra V. State Of Punjab, AIR 1957 PH1 1957 CriLJ 88 22

 LAWS & STATUTES :

1. Constitution Of India, 1950
2. Indian Penal Code, 1860
3. Criminal Procedure Code, 1973
• BOOKS & OTHER AUTHORITIES
1. Andrew Ashworth, Principles of Criminal Law
2. S.C. Sarkar, The Code of Criminal Procedure
3. M.P. Jain, Indian Constitutional Law
4. Smith & Hogan’s Criminal Law 29 (David Ormerod ed., 13th edn., 2011)
5. K.D. Gaur Textbook on Indian Penal Code
6. Malimath Committee Report, 2003
7. 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.
 STATEMENT OF FACTS

 Union of Indiva is a Democratic country and 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.

 They have framed WhatsApp groups and Facebook Communities and other social media
groups through which they share thoughts and different initiatives taken by their group.
People from different places have also joined their group. There are different kinds of
discussions that happens on the group. The office bearers of the Association always request
other members to add people of different communities in this Association. Members meet
with each other and post discussions on WhatsApp and other social media group about the
decisions taken by the government which includes giving reservations and curtailing the
reservations for certain communities.

 Later the discussions started became 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. Furious arguments were shared 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. Certain 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. The Government also authorized its Security and Intelligence Agencies for
the purposes of interception; monitoring and decryption of any information generated,
transmitted, received or stored in any computer resource.

 The Democratic Reformers Association argued that it is the ultimate assault on fundamental
rights and the right to privacy. This kind of order is violation of right to privacy which is a
fundamental right. In this background, 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.
 STATEMENT OF ISSUES

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.?

II. 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.?

III. WHETHER SECTION 124 OF IPC INFRINGES THE FUNDAMENTAL RIGHT

TO LIFE AND DIGNITY ENSHRINED UNDER ARTICLE 21 OF THE

CONSTITUTION.?
 SUMMARY OF ARGUMENTS

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

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 Indivi 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.

 II. 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

shows that the outsiders were influenced with such campaign. Hence, the organizers of the rally

are liable to be punished for keeping the security, sovereignty and integrity of the State on stake.
 III. 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 undermine 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.

 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 infringe 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 Shastri .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 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.

1.1.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
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
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 three years, to which fine may be added, or with fine.
4
Niharendu Majumdar V. Emperor AIR 1939 Cal 703
 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 towards the Government is sufficient to make one guilty
under 124A.

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
root of constitution which is free speech7. Similarly, in 1958 Allahabad High Court also struck
down section 124A on the ground of being violative of the Constitution8. But the view that the
judiciary at present holds was given by the apex court in the case of Kedarnath Singh V. State
of Bihar9 in which sedition law was held to be constitutional and the court observed it to be the
only tool available to the Government to safeguard itself .

1.2 'REASONABLE RESTRICTIONS'

The meaning of the term reasonable restriction has been a matter of judicial discussion. There
has been a doubt whether the term “ reasonable restriction ” also includes “ total prohibition ”.
In A.K. Gopalan V. State of Madras10, Patanjali Shastri 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.

5
Emperor V. Sadashiv Narayan Bhalerao (1944) 46 BOMLR 459
6
Queen Emperor V. Bal Gangadhar Tilak (1917) 19 BOMLR 211
7
Tara Singh Gopi Chand V. The State 1951 CriLJ 449
8
Ram Nandan V. State of Uttar Pradesh AIR 1959 All 101, 1959 CriLJ 1
9
Kedarnath Singh V. State of Bihar AIR 955 1962 SCR Supl. (2) 769
10
A.K. Gopalan V. State Of Madras AIR 27 1950 SCR 88
 Later the Supreme Court in another decision11, 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. The restriction when it
is unreasonable 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
right alleged 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 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 particular
right and the restriction must be a reasonable one.

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.

1.3 GUIDELINES REGARDING REASONABLE RESTRICTION

The following are some of the principles which the Supreme Court of India has affirmed in
Narottamdas V. State of Madhya Pradesh12for ascertaining the reasonableness of restrictions on
the exercise of the rights secured under Article 19 of the Constitution, which are as follows:

 The phrase “reasonable restriction” connotes that the limitation imposed upon a person in
the 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

11
Narendra Kumar V. Union of India AIR 430 1960 SCR (2) 375
12
Narottamdas V. State of Madhya Pradesh AIR 1667 1964 SCR (7) 820
 individual freedom. Not only substantive but also procedural provisions of a statute also
enter into 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.

 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 by
it 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 circumstances
amounts to a reasonable restriction only.

 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 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.

 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 of
the peace.

 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.

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
society.
 2. 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.?

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 absolute right
and the person enjoying such right is protected only till certain limits and not when he exceed -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 an other such grounds elaborated under article 19(2).

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.

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 order26 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 be booked under
section 124A for sedition13.

In the present case where Kamla Mehta gave pro-Bangistan statement or where in a program
conducted by Lamnesty International government established by law was harshly criticized which

13
Indramani Singh V. State of Manipur 1955 CriLJ 184
led to raising of anti- Indiva slogans, such acts were done with the intent to excite hatred against the
government established by law and thus they were rightfully charged for sedition.

2.1.SEDITION MUST BE UNDERSTOOD IN COMPARISON WITH FOREIGN LAWS

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, its 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.

In Reg. V. Alexander Martin Sullivan14, 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.
The initial test applied to speech in America that criticized 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. Colorado15.

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 States16. In this case, Holmes J. added a new dimension to laws
related 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 words used 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.’

14
Reg. V. Alexander Martin Sullivan 1868 11 Cox CC44
15
Patterson V. Colorado 1907 U.S., 205 U.S. 454
16
Charles T. Schenck V. United States 1919 U.S., 294 U.S
This test was further extended by Holmes J. in Debs V. United States17in which Debs, a political
activist, had not spoken any words that posed a clear and present danger but a speech in which he
denounced militarism, was nonetheless found to be sufficient ground for his conviction.
Holmes.J suggested that the speech had “natural tendency” to occlude the draft. In Dennis V. United
States18, 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.

The present-day Court’s follow the principle that was established in the Brandenburg Case19. 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.

Current position of the Indian case laws is similar to that of the American ones. In Arup Bhuyan V.
The State of Assam20, 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 Case21 and Kedarnath Case22is
the analogy of 'spark in a powder keg'.

The court in paragraph 13 of the case of S. Rangarajan V. P. Jagjivan Ram23, 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.

17
Debs V. United States 1919 U.S., 249 U.S. 211
18
Dennis V. United States 1951 U.S., 341 U.S. 494
19
Clarence Brandenburg V. State of Ohio 1969 U.S., 395 U.S. 444
20
Arup Bhuyan V. The State of Assam (2011) 3 SCC 377
21
The Superintendent, Central Jail, Fatehgarh V. Ram Manohar Lohia AIR 633 1960 SCR (2) 821
22
Kedarnath Singh V. State of Bihar AIR 955 1962 SCR Supl. (2) 769
23
S. Rangarajan V. P. Jagjivan Ram 1989 SCR (2) 204 SCC (2) 574
Later, in Arundhati Roy Case24, the Supreme Court of India followed the view taken in the American
Court by Frankfuter J. in Pennekamp Vs. Florida25 in which the US Supreme Court observed that :
“ If men, including judges and journalists where angels there would be no problem of contempt
of court. 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 a 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. ”

Thus, the counsel on the behalf of the respondents most humbly submits that sedition is not a power
in the hands of the Government established by law but is a tool to safeguard 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.

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

CLOSELY

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 judiciary in
various cases related to these provisions.

Right to freedom of speech & expression is undoubtedly, one of the most essential rights that the
Constitution ensures to every individual. However, in the case of State of Karnataka V. Dr.
Praveen Bhai Togadia26, 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.

24
InRe : Arundhati Roy (2002)
25
Pennekamp V. Florida 1946 U.S., 328 U.S. 331
26
State Of Karnataka V. Dr. Praveen Bhai Togadia SLP (Crl.) No. 3085/2003
In Binayak Sen V. State of Chhattisgarh27mere 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 case28 it was held that
the accused does not necessarily have to be the author of seditious material for a charge of sedition
to be established.

In another case29of Chhattisgarh the accused was found to be in possession of Maoist literature and
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.
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.44

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.

27
Binayak Sen V. State of Chhattisgarh (2011) 266 ELT 193
28
42 Raghubir Singh V. State Of Bihar AIR 149, 1986 SCR (3) 802 SCC 481
Asit Kumar Sen Gupta V. State Of Chattisgarh Cr. Appeal No. 86 Of 2011 44 Nazir Khan V. State Of Delhi AIR 2003
SC 4427 SCC 461
29
42 Raghubir Singh V. State Of Bihar AIR 149, 1986 SCR (3) 802 SCC 481
Asit Kumar Sen Gupta V. State Of Chattisgarh Cr. Appeal No. 86 Of 2011 44 Nazir Khan V. State Of Delhi AIR 2003
SC 4427 SCC 461j
3. WHETHER SECTION 124 OF IPC INFRINGES THE FUNDAMENTAL RIGHT TO

LIFE AND DIGNITY ENSHRINED UNDER ARTICLE 21 OF THE

CONSTITUTION.?

42

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MEMORIAL ON THE BEHALF OF RESPONDENTS
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.

4.1. PUNISHMENT MUST BE PROPORTIONAL TO THE GRAVITY OF OFFENCE

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. 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. Hence, the State alone, as the embodiment of the

body 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’45. Proportionality is considered to be so important in criminal sentencing because it

45 R. V. Arcand 2010 ABCA 363

31
MEMORIAL ON THE BEHALF OF RESPONDENTS
‘accords with principles of fundamental justice and with the purpose of sentence - to maintain

respect for the law and a safe society by imposing just sanctions’

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'.

4.2. NO PROPER GUIDELINE FOR SENTENCING OR PUNISHMENT IS PRESENT IN

INDIA

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.

In 2008, the Supreme Court of India, in State of Punjab v. Prem Sagar & Ors.46, also noted the

absence of judiciary-driven guidelines in India’s criminal justice system, stating, “ in our judicial

system, 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
46 State Of Punjab V. Prem Sagar & Ors. (2008) (unreported)

32
MEMORIAL ON THE BEHALF OF RESPONDENTS
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 regards

the 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 been

noticed in regard to imposition of fines.”

In 2013 the Supreme Court, in the case of Soman v. State of Kerala47, 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

the accused facing trial before it after he is held guilty of the charges.”

In State of M.P. v. Bablu Natt48, 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.”

Moreover, in Alister Anthony Pareira v. State of Maharashtra49, 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 courts

have evolved certain principles: the twin objective of the sentencing policy is deterrence and

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

2014 48 State Of M.P. V. Bablu Natt Cri. Appeal No. 2060
Of 2008
49 Alister Antony Pareira V. State Of Maharashtra (2012) 2 SCC 648

33
MEMORIAL ON THE BEHALF OF RESPONDENTS
 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

for the crime, nature of the offence and all other attendant circumstances.”

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.

4.3. PUNISHMENT IN CASE OF SEDITION IS PROPORTIONATE WITH THE

GRAVITY OF THAT OFFENCE

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 used to

incite violence and disorder against the state and citizens. In order to protect itself and its citizens

the 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 according

to the due procedure established by law as emphasized in article 2150.

50 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.

34
MEMORIAL ON THE BEHALF OF RESPONDENTS
In State of U.P. V. Lalai Singh Yadav51, the Supreme Court upheld “ordered security” as a

constitutional value, ensuring that where free speech and public order seem to clash, the latter is

given precedence.

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). 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

51 State Of U.P. V. Lalai Singh Yadav AIR 202 1977 SCR (1) 616

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MEMORIAL ON THE BEHALF OF RESPONDENTS
WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

AND AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HON’BLE COURT

MAY BE PLEASED :

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 OTHER ORDER, DIRECTION, OR RELIEF THAT THIS HON‟BLE

COURT MAY DEEM FIT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD

CONSCIENCE.

All of which is humbly prayed,

Counsels for the Respondents

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MEMORIAL ON THE BEHALF OF RESPONDENTS