Team Code: TC -13

5th Intra Moot Court Competition, 2022

BEFORE THE HON’BLE SUPREME COURT OF MELUHA

WRIT PETITION
W.P. NO. /2021

IN THE MATTERS OF

Rohan and NGO Pragati.....................................................................................................Petitioner

U/Art. 32 of The Constitution of Meluha, 1950
v.
Union of Meluha..............................................................................................................
Respondent
BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE OF MELUHA
AND HIS COMPANION JUSTICES ALONGWITH
OF THE HON’BLE SUPREME COURT OF
The Phantom.......................................................................................................................Petitioner
MELUHA
The Voice ..........................................................................................................................
Petitioner
MEMORIAL ON BEHALF OF THE
PETITIONER v.
MEMORIAL FOR PETITIONER

TABLE OF CONTENTS

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 MEMORIAL FOR PETITIONER

LIST OF ABBREVIATIONS

¶ Paragraph
§ Section
AIR All India Reporter
Anr. Another
Art. Article
Bom.C.R Bombay Criminal Cases
CRL.A. Criminal Appeal
Cr LJ Civil Rules for Courts of Limited
Jurisdiction
CrPC Criminal Procedural Code
Const. Constitution
FIR First Information Report
HC High Court
Hon’ble Honourable
i.e That is
MPC Meluha Penal Code
J. Justice
NCT National Capital Territory
NCRB National Crime Records
Bureau
para Paragraph
PINHA Prevention of Insults to National
Honour Act, 1971
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Report
Sd\- Signature with name and date
UOI Union of India

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INDEX OF AUTHORITIES

STATUTES AND REGULATIONS

● Prevention of Insults to National Honour Act, 1971

● The Code of Criminal Procedure, 1973
● The Constitution of India, 1950
● The Evidence Act, 1872
● The Indian Penal Code, 1860
● The Cinematograph Act, 1952

BOOKS

● Dr. Durga Das Basu, Shorter Constitution of India, 14th Ed., 2013.
● Dr. Subhash C. Kashyap, Constituional Law of India, Vol. 1, (2nd Ed., 2015)
● M.P. Jain, Indian Constitutional Law, (7th Ed., 2016)
● R.A. Nelson’s, Indian Penal Code 12th edition
● K. D. Gaur, Textbook on Indian Penal Code (Universal Law Publications, 6th Edition, 2016)
● R.V Kelkar’s Criminal Procedure, Sixth Edition
● The Indian Penal Code, Ratanlal & Dhirajlal, Thirty Sixth Edition
● Surya Narayan Mishra, Shriniwas Gupta (ed.), Indian Penal Code (Central Law Agency,
Allahabad, 20th Edi, 2016)

REPORTS AND INDICES

● Oljana Hoxhaj, Freedom of Expression, 3 Juridical Trib. 168 (2013).

● The Representative on Freedom of the Media, RECOMMENDATIONS
● Organization for security and co-operation in europe (June 14, 2003).
● Toby Mendel, Restricting Freedom of Expression

ONLINE DATABASE

● HeinOnline
● JSTOR
● LexisNexis India (Advance)
● Manupatra
● SCC Online
● Westlaw India & International

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CASES REFERRED

1. Abdul Karim and Others v. State Of West Bengal, 1969 SCR (3) 479......................... ¶38
2. Anuradha Bhasin v. UOI, (2020) 3 SCC 637................................................................ ¶12
3. Banka Sneha Sheela v. The State of Telangana, CRIMINAL APPEAL NO. 733 OF 2021
……………………………………………………………………………………….….¶35
4. Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788….................................. ¶20
5. Bilal Ahmed Kaloo v. State of Andhra Pradesh, Crl. A. No, 81/97............................... ¶29
6. CBI v. Abdul Karim Ladsab Telgi, 2005 CRI. L.J. 2868…........................................... ¶45
7. Common Cause v. Union of India, Writ Petition (Civil) No. 215 of 2005.....................¶29
8. Gobind v. State of M.P., AIR 1975 SC 1378.................................................................. ¶41
9. Griswold v. State of Connecticut, 381 US 278 (1965)................................................... ¶25
10. Hanumanthaiya v. Govt of Mysore, (1948) 52 Mys HCR 265....................................... ¶31
11. IAS & Anr. & Popular Muthiah v. State, Appeal (crl.) 107 of 2003............................. ¶53
12. In Rekha v. State of Tamil Nadu, (2011) 5 SCC 244..................................................... ¶34
13. Jagdish Valecha v. The State of Madhya Pradesh, MCRC 10333/2016........................ ¶50
14. Justice K.S. Puttaswamy (Retd) v. Union of India, 2017 10 SCC 1............................... ¶17
15. Katz v. United States, 389 U.S. 347................................................................................ ¶44
16. Kedar Nath Singh v. State of Bihar, 1962 SCR Supl. (2) 769......................................... ¶29
17. Kerala State Beverages (M&M) Corp. Ltd. v. P.P. Suresh, (2019) 9 SCC 710..............¶12
18. Kharak Singh v. Union of India, AIR 1963 SC 1295..................................................... ¶41
19. Liversidge v. Anderson, (1941) 3 All ER 338................................................................. ¶20
20. Maneka Gandhi v. UOI, (1978) 1 SCC 248.................................................................... ¶22
21. Mangalbhai Motiram Patel v. State of Maharashtra & Ors, 1981 SCR (1) 852..............¶38
22. NAACP v. Alabama, 377 US 288 (1964)....................................................................... ¶41
23. NALSA v. UOI, Writ Petition, (Civil) No. 400 of 2012................................................. ¶41
24. Om Kumar v. Union of India, (2001) 2 SCC 386........................................................... ¶12
25. People's Union for Civil Liberties v. Union of India, 1996 Supp 10 SCR 321...............¶17
26. Pritam Nath Hoon v. Union of India & Others, 1981 SCR (1) 682................................ ¶38
27. R. v. Secy. of State for the Home Deptt., ex p Stafford, [1998] 1 WLR 503 (CA).........¶34
28. Rakesh Bisht v. Central Bureau of Investigation, CRL REV. P. No.462/2006...............¶46
29. Romesh Thappar v. State of Madras,1950 SCR 594...................................................... ¶20
30. Sakal Papers (P) Ltd. v. UOI, AIR 1962 SC 305............................................................ ¶20
31. Sakiri Vasu v. State of U.P. and others, 2008(1) RCR (Criminal) 392........................... ¶52
32. Sanskar Marathe v. State of Maharashtra, 2015 SCC OnLine Bom 587........................ ¶30
33. Satyaranjan Bakshi v. Emperor (AIR 1927 Cal 698)...................................................... ¶33
34. Shreya Singhal v. Union of India, (2015) 5 SCC 1......................................................... ¶21
35. Smt. Selvi and Ors. v. State of Karnataka, Criminal Appeal No. 1267 of 2004..............¶47
36. State of Karnataka v. L. Muniswamy & Ors, 1977 SCR (3) 113.................................... ¶52
37. State of Sikkim v. Suren Rai, LNIND 2018 SIK 5......................................................... ¶44
38. State of W.B. & Ors. v. Sujit Kumar Rana, 2004) 4 SCC 129........................................ ¶55
39. Suchitra Srivastava v. Chandigarh Administration, (2009) 14 SCR 989........................¶41
40. Union of India v. Prakash P. Hinduja and Another, 2003 (6) SCC 195.......................... ¶54
41. Vatal Nagaraj v. R. Dayanand Sagar, (1975) 4 SCC 127................................................ ¶46
42. Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14................................................. ¶36

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STATEMENT OF JURISDICTION

THE PETITIONER HAS THE HONOUR TO SUBMIT BEFORE THE HON'BLE

SUPREME COURT OF MELUHA, THE MEMORANDUM FOR THE PETITIONER
UNDER ARTICLE 32 OF THE CONSTITUTION OF MELUHA, 1950.

THE CONSTITUTION OF MELUHA, ARTICLE 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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STATEMENT OF FACTS

INTRODUCTION

Rohan and Mirza are resident of Meluha, a country located in Asia, studying Political Science
(Hons.) in Oriental University of Social Studies (OUSS). The capital city of Meluha was
recovering from riots between two religious groups and was under night curfew. The ruling
party, People’s Respect Party, was under pressure to restore normalcy.

BACKGROUND OF THE CASE

A cultural evening event was organized by OUSS for celebrations of 73rd Independence Day
of Meluha, in which various dignitaries, from different political party were invited. Rohan
and Mirza started giving a speech on the matter of atrocities being committed against a
certain group of people and blamed the present government for the same.

DELIVERY OF SPEECH

Rohan in his speech said “People have elected a government of fools. They are incapable of
protecting us. Inflation is at an all-time high. Time has come to take matters into our hands
and these corrupt politicians should be hanged publicly. We need a new political regime .”
His speech got a huge response and massive crowd was gathered in the college campus and
shouted slogans like “Azadi Chahiye Murkhon Se, Azadi Chahiye Beimaanon Se, Garibi Se,
Azadi Hamara Haq Hai Hum Lekar Rahenge. Sarkar ko bahar karo, bahar karo.

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Raising of Slogans
Further some more slogans were raised by Mirza, Rohan and others pertaining to free Kashimpur, which is
integral part of Meluha and later Mr. X climbed the stage and tried to host the flag of the neighboring country
over the Meluhan flag but he was stopped by Rohan and Mirza just before he could hoist the neighboring
country’s flag. Rohan and Mirza next day along with their other friend Sahil created memes and drew pictures
of the cabinet and parliament building, which was widely circulated. Leading National Dailies of Meluha
published this news, and a new clip of Rohan was released by the media in which he was heard saying “Time
for change has arrived. We were waiting for this day. This government needs to be kicked out. If they don’t
quit, we bring them down. War is on the horizon. There is no other way to protect ourselves.”
Filing of Complaint
Due to publication of the cartoon, newspaper did a brisk business and due to wide circulation of news clips
students from across the country started holding gatherings equally in favor of the OUSS incident. The
President of the youth wing of ruling party PRP filed a criminal complaint under Sections 124A, 121, 120B,
34, 153 and 505 of Penal Code of Meluha and also under Section 2 of The Prevention of Insults to National
Honour Act, 1971 against Rohan, Mirza, Sahil and others in the local lower court.

Violation of fundamental Rights

Further, arrest warrant were issued against Rohan, Mirza, Sahil and others and also publication of two leading
national dailies “The Phantom” and “The Voice” was banned by the government.
Before the arrest, Rohan, along with NGO Pragati, challenged the constitutionality of Section 124A of the
MPC stating it to be violative of Article 19(1)(a) and Article 21 of the Constitution of Meluha before the
Supreme Court of Meluha. Interim relief was sought for stay on arrest and quashing of the proceedings before
the lower court. At the same time two leading dailies approached the Supreme Court under Article 32 for
appropriate relief.

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STATEMENT OF ISSUES

ISSUE ONE

JURISDICTION: DOES THE SUPREME COURT OF MELUHA HAVE THE JURISDICTION

TO HEAR AND DECIDE THE MATTER.

ISSUE TWO

CONSTITUTIONALITY OF SECTION 124A OF MELUHA PENAL CODE (MPC):

WHETHER SECTION 124A OF MPC INFRINGES THE FUNDAMENTAL RIGHTS UNDER
ARTICLE 19 AND ARTICLE 21 OF THE CONSTITUTION OF MELUHA.

ISSUE THREE

DOES CRITICISM OF THE GOVERNMENT AMOUNT TO AN ACT OF SEDITION AS

PER SECTION 124A OF MELUHA PENAL CODE (MPC)?

ISSUE FOUR

WAS THE BANNING OF NEWSPAPERS A CONSTITUTIONALLY VALID

ACT OF THE GOVERNMENT OF MELUHA?

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SUMMARY OF ARGUMENTS

ISSUE 1
JURISDICTION: DOES THE SUPREME COURT OF MELUHA HAVE THE JURISDICTION
TO HEAR AND DECIDE THE MATTER.

It is humbly contended that the

ISSUE 2
CONSTITUTIONALITY OF SECTION 124A OF MELUHA PENAL CODE (MPC):
WHETHER SECTION 124A OF MPC INFRINGES THE FUNDAMENTAL RIGHTS UNDER
ARTICLE 19 AND ARTICLE 21 OF THE CONSTITUTION OF MELUHA.

It is humbly contended that the charges levied under Sec 124 A of IPC are not sustainable under law
as mere dissent to the policies or working of the Government does not amount to sedition unless there
is evident that there is a call for violence. There was no intention on the part of the petitioners to incite
any violence via their statements and there was no intention of disruption of public order in the
country. It was a mere exchange of ideas and opinions and the detention is invalid. There was non-
communication of grounds of detention and the order of detention is invalid on the basis of non-
observance of rights and freedoms under Articles 21 and 22(5) of the Constitution.

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ISSUE 3
DOES CRITICISM OF THE GOVERNMENT AMOUNT TO AN ACT OF SEDITION AS
PER SECTION 124A OF MELUHA PENAL CODE (MPC)?

It is humbly submitted before this Hon’ble Court that

ISSUE 4
WAS THE BANNING OF NEWSPAPERS A CONSTITUTIONALLY VALID
ACT OF THE GOVERNMENT OF MELUHA?

It is humbly submitted that the

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ARGUMENTS ADVANCED

ISSUE ONE
JURISDICTION: DOES THE SUPREME COURT OF MELUHA HAVE THE
JURISDICTION TO HEAR AND DECIDE THE MATTER.

It is humbly submitted before this hon’ble court that the present writ petition is maintainable
and twofold arguments are submitted [1.1] The Supreme Court has the jurisdiction under
Article 32 of The Constitution of India [1.2] The Mandamus is maintainable in the present
case.
1.1 THE SUPREME COURT HAS JURISDICTION UNDER ARTICLE 32
“Article 32:  'Heart and soul of Constitution” – B.R Ambedkar. It is humbly submitted before
this hon’ble court that Article 32 of the Indian Constitution gives the right to individuals to
move to the Supreme Court to seek justice when they feel that their right has been ‘unduly
deprived’. The apex court is given the authority to issue directions or orders for the execution
of any of the rights bestowed by the constitution as it is considered ‘the protector and
guarantor of Fundamental Rights’. Thus, it is not subject to the requirement of exhaustion of
local remedies.
That The judiciary, especially the Supreme Court of Meluha is known for being the fiercely
independent and mighty defender of rights guaranteed by the constitution. 1 That Article 32
can be invoked only when there is infringement of Fundamental Rights of the citizen. It is
humbly submitted that the Fundamental Rights of the Petitioner guaranteed under Article
19(1)(a) and 212 have been violated by the authorities. It is further submitted that the
existence of alternate remedies is no bar in the instant case as the Fundamental Rights of the
Petitioner has been violated and he has the right to approach the Hon'ble Supreme Court
under Article 32 of the Constitution of Meluha.

The Petitioners are the students and arrest warrants were issued against them for merely giving the
opinion about the government and the inter religion that already happened in the country and was not
ongoing. Furthermore, two national dailies, “The Phantom” and “The Voice” which are banned were
giving news and performing their duties by giving coverage to the incident.

It is humbly submitted that the Fundamental Rights to Speech and Expression and Right to life and
Personal Liberty have been violated by the aforesaid unreasonable act of the Government. Further, a

1
Para 1, factsheet.
2
Constitution of India, 1950.

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substantial question of law is involved in the present petition. The constitutionality of Section 124 A
has been challenged by the Petitioner. It is further submitted that the existence of alternate remedies is
no bar in the instant case as the Fundamental Rights of the Petitioner has been violated and he has the
right to approach the Hon'ble Supreme Court under Article 32 of the Constitution of India.

Therefore, Article 32 provides right to move the Supreme Court, acting in a bona fide manner, in case
of violation of fundamental right, for the benefit of the society at large. 3 Thus, in the present case, by
virtue of power conferred under Article 32 of the constitution Supreme Court has jurisdiction to
entertain the present writ.

1.2 THE WRIT OF MANDAMUS IS MAINTAINABLE IN THE PRESENT PETITION

It is humbly submitted before this hon’ble court that Mandamus is a command issued by the
court commanding a public authority to perform public duty belonging to its office.4

In the case of Sanjay Singh v. UP Public Service Commission5, Allahabad, the Hon'ble
Supreme Court held that the mandamus can be issued where there is manifest arbitrariness or
irrationality, interference by the courts is permissible. It is humbly submitted in the instant
case a students of OUSS, Rohan, Mirza, Sahil and others were charged with sedition for
merely giving out their opinion and hence is contended as unconstitutional on the ground of
violation of Article 19 and 21.
That mandamus can be issued when the authority has some public duty to perform, which he
has failed to do so. It is pertinent to note that under the well-established doctrine of Parens
Patriae, it is the obligation of the State to protect and take into custody the rights and the
privileges of its citizens in discharging its obligations. In the instant case the petitioners were
charged wrongly with Sedition. Therefore the authority failed to perform it’s duty.
Hence, the writ of Mandamus could be issued in the present petition and therefore The
Supreme Court of Meluha has the jurisdiction to hear and decide the matter.
Public Function is one which “seeks to achieve some collective benefit for the public or a
section of thFurther under the well-established doctrine of Parens Patriae, it is the obligation of the
State to protect and take into custody the rights and the privileges of its citizens for discharging its
obligations.8

3
Smt Ujjam Bai vs State Of U.P, Writ Petition (civil) 79 of 1959
4
Devadasan vs State Of Kerala, (3) KLT 739.
5
Writ Petition (civil) 165 of 2005

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ISSUE TWO
CONSTITUTIONALITY OF SECTION 124A OF MELUHA PENAL CODE (MPC):
WHETHER SECTION 124A OF MPC INFRINGES THE FUNDAMENTAL RIGHTS
UNDER ARTICLE 19 AND ARTICLE 21 OF THE CONSTITUTION OF MELUHA.

It is humbly submitted, before this Hon’ble court that Section 124A of Meluha Penal Code is
violative of the Constitution of Meluha because it violates Article 19 and Article 21 of the
Constitution.

2.1 ARTICLE 19(1)(A) AS THE CORNERSTONE OF DEMOCRACY

Freedom of expression is widely accepted to be the “cornerstone of democracy”. Without

freedom of expression democracy cannot exist. In 2010 this Hon’ble Court in the case of
Indirect Tax Practitioners Assn. v. R. K. Jain6 expressed that “change through free speech is
basic to our democracy, and to prevent change through criticism is to petrify the organs of
democratic Government.” It was held that freedom of expression is not only politically useful
“but that it is indispensable to the operation of a democratic system”.

The democratic system necessarily involves an advocacy of the replacement of one government
by another. World-wide, the media and free speech are recognised as essential accountability
checks on governments. Citizens cannot exercise their right to vote effectively or take part in
public decision making if they do not have free access to information and ideas and are not
able to express their views freely.

The Supreme Court in The Secretary, Ministry Of Information and Broadcasting v. Cricket
Association Of Bengal (1995)7 has expressed that “the freedom of expression is a preferred
right which is always very zealously guarded by the Supreme Court”. The supreme court held
that Freedom of expression has various important functions, that “Free expression is
necessary: (1) for individual fulfillment (2) for attainment of truth, (3) for participation by the
members of the society in political or social decision making and (4) for maintaining balance
between ‘stability and change in society’.8

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

Freedom of speech is the soul of a democratic society. It is the basis for all of the individual
rights and for the protection of the democratic regime and social order. Repression of free
speech and of open criticism of government undermines the very foundations of this order.
Section 124A of MPC violates freedom of speech and expression as free speech can only be
6
(2010) 8 SCC 281)
7
2 SCC 161 at Para 14
8
(Bennett Coleman & Co. v. Union of India (1972) SCC 788 at pg 810 ).

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suppressed when there is a reasonable ground to believe that imminent danger will ensue if
free speech is practised.9 Even morally condemnable advocacy that violates the law cannot
justify denial of free speech when nothing signifies that such advocacy is immediately acted
upon. Further, a law is valid in curtailing free speech only when discussion/advocacy leads to
incitement.10 Merely discussing or advocating a cause, however unpopular, cannot be
curtailed in the garb of sedition. Thus, Section 124-A of the MPC in as much as it punishes or
is capable of punishing mere discussion and advocacy is violative of Article 19 of the Const.

The Petitioners do not dispute that this Hon’ble Court gave due recognition to the fundamental
nature of this right when in Kedar Nath’s case11, in fact the court expressed that “freedom of
expression is the sine quo non of democracy.” The right is, and has always been of an
essential nature and of paramount importance. Hence the situation with regard to the nature
of this fundamental right has not changed, save for the anticipation that India’s democracy
has matured in the last sixty years, to the extent that this right should be even more zealously
guarded today. The Supreme 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.12

Therefore, Section 124-A of the IPC clearly infringes Article 19(1)(a) of the Constitution. The
Constitutional bench of the Supreme Court held in Kedar Nath’s case that “there can be no
doubt that apart from the provisions of clause (2) of Art. 19, Sections 124 is clearly violative
of Art. 19(1)(a) of the Constitution.”13 The more important question which requires the
acknowledgement of this court is whether Section 124A is within the scope of restriction
under Article 19(2) of the Const.

2.1.1 SECTION 124A IS OUTSIDE THE SCOPE OF RESTRICTION UNDER ARTICLE

19(2)

It is humbly submitted that the question in dispute is whether the section constitutes a
reasonable restriction falling within the ambit of Article 19(2), thereby saving the section
from constitutional invalidity.

As per the case of State of Madras v. V. G. Row 14, in considering the reasonableness of laws
imposing restrictions on fundamental right, a court should take into account various factors,
these are: the nature of the right alleged to have been infringed; the underlying purpose of the
restrictions imposed; the extent and urgency of the evil sought to be remedied thereby; the
disproportion of the imposition; and the prevailing conditions at the time.

It is submitted that the situation with regard to these factors has materially changed,
pertaining to laws related to sedition, specifically Section 124A, both legally and factually,
since the Supreme Court’s adjudication of this issue in 1962 in the case of Kedar Nath Singh
v. State of Bihar.15

9
Whitney v. California, 274 U.S. 357.
10
Shreya Singhal, supra note 101.
11
1962 AIR 955, 1962 SCR Supl. (2) 769
12
Arun Jaitley v. State of U.P., 2015 SCC Online All 6013.
13
Kedar Nath Singh v. State of Bihar, para 26.
14
952 AIR 196, 1952 SCR 597 at Pg 607
15
Supra 11.

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It is submitted that when the section was originally inserted into IPC 16, its purpose was to
protect the British colonial power from any expressions of contempt, hatred or discontent; it
was liberally employed to silent political dissent and suppress India Nationalist however, the
underlying sentiments. Post-independence, purposes of restriction imposed on Article 19(1)
(a) Section 124-A, are accepted to be preventing ‘public violence’ and ‘public disorder’.

The Supreme Court in Kedar Nath’s case17, reading down the section, held these to be
legitimate purposes, falling within the interests of “security of the State” and of “public
order”, two of enumerated under article 19(2) of the Constitution.

The necessity and proportionality of the use of Section 124-A in this regard is disputed by the
petitioner. It is submitted that in 1962 there may have a need to use Section 124A as a means
to prevent the public violence and public disorder that fell short of waging war against the
state. Section 124-A, was, at the time a necessary tool in crime control. It is conceivable that
if sedition had been held unconstitutional in 1962, there may have been a lacuna in the law,
the mischief – public disorder and violence – going unpunished. Contrastingly, in 2021, this
is not the case.

Declaring Section 124-A unconstitutional will stop the prosecution of individuals who want
to air their legitimate (possibly controversial) views, start debates, write articles or make
films about controversial issues and possess literature discussing various ideologies. These
people are not terrorists, but right-thinking members of Indian society those who want to
excise their democratic and constitutional right to free speech and expression.

Therefore sedition is not necessary for the protection of national security or the public order.
All the overt acts that Section 124-A seeks to punish are covered by other penal sections. In
the present case we are not dealing which people who pose actual, direct threats to India’s
integrity or security, but rather those who are merely exercising their democratic right to
freedom of expression. Once charged with sedition, these people including petitioner face
possible life imprisonment.

The Supreme Court in the case of S. Khushboo v. Kanniammal 18 has held that “the law
should not be used in a manner that has chilling effects on the `freedom of speech and
expression’. It is submitted that sedition is being used in this way in the current instance. It is
submitted that the use of sedition against those who criticize the government is not ‘use’ but
rather inevitability ‘misuse’.

The five restrictions which can be imposed on free speech as per art. 19 are public order,
morality, national security, defamation and incitement to an offence. None of these cover
hatred, contempt or disaffection towards the Govt. Further, public order has been held not to
be synonymous with law and order but something which affects the public at large. 19
Similarly, incitement to an offence is not merely that the audience may have a feeling of
hatred, contempt or disaffection but should have been by abetment to commit an offence. 20
Thus, unless the presence of incitement to commit an offence is read into the section, it would
be rendered unconstitutional.21

16
Indian Penal Code, 1860.
17
Supra 11
18
((2010) 5 SCC 600 at Para 47)
19
Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740 (India).
20
S.S. Cheena v. Vijay Kumar Mahajan, (2010) 12 SCC 190 (India)
21
Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 (India).

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Therefore, Section 124-A is a disproportionate imposition on the freedom of expression, and

fails to constitute the least restrictive means and Section 124-A is unnecessary to protect the
interests of the state security and public disorder, and is duplicated by more recent legislation
which directly and sufficiently prevents and deals with the mischief of public disorder and
public violence.

[2.2] THERE WAS REPEAL IN OTHER COUNTRIES AND INDIA’S INTERNATIONAL LAW
OBLIGATION

A law that was brought in by the British government to squash the struggle for freedom has been
used by successive governments to throttle dissent and silence criticism. A recent observation
by a Supreme Court bench that it is time to review the application of Section 124A of the
Indian Penal Code and limit its use has renewed the hope that the country could see the back
of this law that has no place in a modern, democratic country.

Several countries have already junked their seditions law or amended them. The United
Kingdom, the country from which we adopted this law has abolished the sedition law back in
2009. The UK, New Zealand, Australia, Indonesia, the US – they have all either junked the
sedition law or have amended it to reflect the idea of freedom of expression in a modern
society . India’s 156-year-old, colonial-era sedition law has been discarded by the UK,
Scotland, South Korea and Indonesia.

These sections were done away with the fact that sedition offences were found to be;
a) unnecessary in light of more modern criminal offences, such as incitement and other public
order offences;
b) undesirable in light of their political nature and
history; and
c) inappropriate in modern liberal democracies; where it is accepted that it is a fundamental right
of citizens to criticize and challenge government structures and
processes.

Relevant considerations is that India now has obligations under International Law. India has
ratified and is bound by the International Covenant on Civil and Political Rights (“ICCPR”).
Article 19 of the ICCPR protects the freedom of expression as a right of all individuals in the
world. Although this right is not absolute, and can be restricted, international law sets
stringent standards which need to be met for States to validly restrict this right.

Various international instruments guild the interpretation of the ICCRP, of these the
Johannesburg Principles and the principles set out by the United Nations Special Rapporteur
on Freedom of Opinion and Expression are of particular importance. International law
provides that in order for a restriction on freedom of expression to be permissible, the
government must discharge the onus of proving that the restriction is;
a) ‘provided for by law’;
b) ‘necessary’; and
c) in pursuit of one of the legitimate aims set forth in the article (is for the respect of the rights or
reputations of others; for the protection of national security or of public order, or of public
health or morals.)

It is submitted before this Hon’ble Court that Section 124-A as a restriction on freedom of
speech and expression which falls short of these requirements in that it is neither “necessary”

17
 MEMORIAL FOR PETITIONER

nor sufficiently “provided by law”. “Necessity” entails that the limitation must be
proportionate, the least restrictive means available, and in line with democratic principles.
For similar to the reasons that make Section 124-A is an unreasonable restriction on Article
19(1)(a) in terms of Indian domestic law, Section 124-A fails to meet this International law
standard of ‘necessity’.

The requirement that any restriction on the freedom of expression be “provided by law” means
that Section 124-A not only needs to be national legislation, but that it must meet the
standards of “legality”. Therefore for Section 124-A to meet this requirement it needs to be
drawn narrowly, and with adequate precision to make clear exactly what is prohibited; it
must not be vague; and it cannot be uncertain. It is submitted that Section 124-A fails to
meet this International law standard of legality.

The terms “intention” and “tendency” are inherently subjective terms with no ascertainable
objective criterion for assessment; they are susceptible to wide and discretionary
interpretation, by both authorities and those subject to the law. A person may speak at a rally
or write a controversial article, their words fail to excite any violence or disorder, yet the
authorities have a wide measure of discretion in assessing whether their words had a
‘seditious intention’ or ‘tendency’.

Hence this law becomes the perfect tool for suppression of criticism. After the authority makes
their subjective assessment of the situation, the consequence for the ‘offender’ is a potential
life sentence in prison. The vague and uncertain nature of the provision also fails to provide
sufficient notice to citizens of exactly what conduct is prohibited. As a result, it exerts an
unacceptable “chilling effect” on freedom of expression. Citizens steer well clear of the
potential zone of application to avoid censure.

When individuals stop exercising their democratic rights for fear life imprisonment, the
entire democratic enterprise is gravely undermined. It is submitted that these
International law obligations, not in existence in 1962, should bear on the constitutional
enquiry undertaken today.

2.3 SUBSEQUENT LEGISLATIONS

It is submitted that the Supreme Court in Kedar Nath did not engage in an extensive enquiry into
the ‘necessity’ of Section 124-A in order to justify it. The necessity and effectiveness of the
offence of sedition as a means to ensure public order and state security seem to have been
unquestioningly assumed by the court. In the last sixty years, however new legislation has
been passed dealing directly with the overt conduct that sedition seeks to make penal–
inciting violence and public disorder.

2.3.1 UNLAWFUL ACTIVITIES (PREVENTION) ACT

In 1969, the Unlawful Activities (Prevention) Act 22 was passed to provide for the more effective
prevention of certain unlawful activities. ‘Unlawful activity’ is very broadly defined as ‘any
action including acts, words, either spoken or written, signs or any visible representation
which is intended, or supports any claim to bring about on any ground whatsoever… the
cession or succession of any part of India… or which incites any individual or group of
individuals to bring about such cession or succession or which disclaims, questions, disrupts
or is intended to disrupt the sovereignty and territorial integrity of India.’
22
ACT NO.37 of 1969
18
 MEMORIAL FOR PETITIONER

‘Unlawful association’ is also broadly defined by s 1 (g) as anyone who encourages or aids
persons to undertake ‘unlawful activities’, or encourages or aids persons to undertake any
activity punishable under Section 153A or Section 153B of the IPC.

Section 13 of UAPA provided punishment for ‘whoever:

(a) takes part in or commits, or (b) advocates abets, advises or incites the commission of, any
unlawful activity. It also provides a punishment for whoever, in any way, assists association
declared unlawful. The 2004 (Act No. 29 OF 2004) and 2008 (Act No. 35 OF 2008)
amendments to this Act broadened its scope to deal extensively with terrorism. The definition
of unlawful activity was broadened further to include any activity ‘which causes or is
intended to cause disaffection against India.’23

Not only actual terrorism is covered by the Act, but also “whoever conspires or attempts to
commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a
terrorist act or any act preparatory to the commission of a terrorist act” is liable for
punishment for conspiracy.

It can be seen that various acts which would fall under sedition, causing or inciting public
disorder or violence, would simultaneously be covered by this Act.

2.3.2 JAMMU AND KASHMIR PUBLIC SAFETY ACT

In 1978 the Jammu and Kashmir Public Safety Act24 was passed to provide measures for dealing
with acts with threatened the interests of the State and the public order. This Act gives the
government, once satisfied that a person is acting in a manner prejudicial to the ‘security of
the state of the maintenance of public order’, the power to detain that person.25

Acting in a manner prejudicial to ‘the maintenance of public order’ is broadly defined, and
included “making preparations for using, or attempting its use, or using, or instigating,
inciting, or otherwise abetting the use of force where such preparation, using, attempting,
instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order.” 26
Again it can be seen that conduct meeting the requirements for sedition would fall within the
purview of this Act.

2.3.3 THE NATIONAL SECURITY ACT

The National Security Act27 was passed in 1980. Section 8 (1) gives the Central Government or
the State Governments the power to detain persons if satisfied that it was necessary to do so
to prevent him from ‘acting in any manner prejudicial to the defence of India … or the
security of India’28, or to ‘prevent him from acting in any manner prejudicial to the security of
the State or from acting in any manner prejudicial to the maintenance of Public order.’29

This legislation would clearly also cover the same material offences as section 124A.

23
Section 2 (o) (iii).
24
Act No. 6 of 1978
25
Section 8 (1).
26
Section 3(b)(ii)
27
Act No. 6 of 1978
28
Section 3 (1)(a)
29
Section 3 (2)).
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 MEMORIAL FOR PETITIONER

It is submitted that these Acts, together with a myriad of state level safety and security legislation
now “cover the field” in dealing with public order and violence. If sedition was done away
with, bone fide terrorists and security threats would clearly not go unpunished.

The last nearly sixty years have seen the extensive enactment of new legislation dealing directly
with safety and security, public disorder and terrorism. Prominent among these legislative
enactments are the Unlawful Activities Act, the Public Safety Act and the National Security
Act. Various sections of these Acts deal directly with the overt conduct that sedition seeks to
make penal – inciting violence and public disorder.

In stark contrast to the situation in 1962, in 2021, various relevant sections of the Unlawful
Activities Act, Public Safety Act and the National Security Act constitute less restrictive
means’ to protect state security and public order. These sections punish only bona fide threats
to public disorder and violence, whereas the over-inclusive Section 124-A covers both real
threats and right-minded individuals attempting to exercise their democratic and
constitutional right to freedom of speech and expression. Consequently Section 124-A is an
excessive, unnecessary and disproportionate tool to protect the interests of state security and
public disorder.

The Supreme Court has held that restrictions on this fundamental freedom must “be justified on
the anvil of necessity and not the quicksand of convenience or expediency”. 30 Open criticism
of government policies and operations is not a ground for restricting expression.31

[2.4] THAT IT VIOLATES RIGHT TO LIFE UNDER ARTICLE 21

It was said by Pope John Paul II:

“When freedom does not have a purpose, when it does not wish to know anything about the
rule of law engraved in the hearts of men and women, when it does not listen to the voice
of conscience, it turns against humanity and society.”

In the present matter at hand, it is humbly submitted that section 124A IPC is violative of Right
to life and liberty enshrined under Article 21.32 The facts of the case states a Report by
National Crime Records Bureau stated that in 2014 as many as 47 cases of sedition were filed
leading to arrest of 58 people and there has been alarming increase in the cases in 2015. In
2016, as many as 21 cases have been filed. However, the report is silent on the part of
convictions.33

The counsel on behalf of petitioner would like to draw the attention of the bench on the fact that
the primary reason for the abysmally low conviction rate for sedition cases is that the law is
misapplied, and one must understand that only an act of violence committed to overthrow the
government qualifies as a case of sedition.

In the present case, the liberty of the petitioners is violated by charging them under 124A IPC.
The petitioners are dignified citizens of the country and are young minds and students of
30
Anand Patwardhan vs The Union Of India And Others, W.P No. 1958 of 1994

31
The Secretary, Ministry Of Information and Broadcasting v. Cricket Association Of Bengal
(1995) 2 SCC 161 at Para 17
32
Constitution of India,1950
33
Para 9 of the Factsheet

20
 MEMORIAL FOR PETITIONER

Polictical Science.

Once a person is accused or is charged with certain offence, it becomes really difficult for them
to survive peacefully with dignity in the society and its very difficult for those young students
to contitune with their normal lives and studies which actually teaches them about polity and
fundamental right but doesn’t let them practice the same.

In the case of:  Maneka Gandhi v. Union of India 34 the court has reinterpreted Art.21 and
practically overruled Gopalan case which can be regarded highly creative judicial
pronouncement on the part of Supreme Court. Since Maneka Gandhi case Supreme Court has
given Art. 21, broader and broader interpretation so as to imply many- more fundamental
rights.

In course of time, Art.21 has proved to be very fruitful source of rights of the people. The
expression personal liberty in Art. 21 were given an expansive interpretation. The court
emphasized that the expression personal liberty is of wide stamp-litude covering a variety of
rights which go to constitute the personal liberty of man. Thus Article 21 in its widest sense
included the right to reputation.

In the case of  State of Bihar v. Lal Krishna Advani 35 it has been stated that “Right to
reputation is a facet of the right to life of a citizen under article 21. Also, in Shreya Singhal
v. Union of India36 , it has been held by the hon”ble Supreme Court that “A penal law is void
for vagueness if it fails to define the criminal offence with sufficient definiteness ordinary
people should understand what conduct is prohibited and what is permitted. Also those who
administer the law must know what offence has been committed so that arbitrary and
discriminatory enforcement of law does not take place.” In the present case the Life and
personal liberty of the individual has been infringed and there existed arbitrary enforcement
of law as the action of Rohan, Sahil and Mirza and other doesn’t fall with-in the ambit of
sedition.

According to the report of the Law Commission the 42nd report37 titled “Indian Penal Code”, the
commission made three crucial suggestions to be incorporated in section 124A IPC.
They were: 1. Incorporation of mens rea. 2. The scope of the section be widened. , incorporating
Constitution of India, Legislatures and the administration of justice (Judiciary), along with
the executive government, against whom disaffection would not be tolerated, and, 3. Bridging
the odd gap between imprisonment of life and imprisonment which may extend to three
years, or fine, by fixing a maximum punishment for sedition at seven years rigorous
imprisonment and fine.

In the present case at hand, the right of live with dignity of all the petitioners in is question and
section 124A IPC is violating that right, hence it is unconstitutional. The basic motive behind
the drafting of the legislation was to control the activities but that is now being used a tool
to harass citizens by curbing their right u/a 124A IPC. Also, accusing citizens under such a
law will also defeat the motive of democracy.

The petitioners hereby submits that freedom of speech is based essentially on free debates and
open discussion for that is the only corrective steps in the democratic setup. Also, right to live
34
1978 AIR 597
35
AIR 1997 Pat 15
36
W.P. No. 167 of 2012
37
Law Commission Report 1971

21
 MEMORIAL FOR PETITIONER

with dignity is basic human right as “the spirit of a manis at the root of Art. 21”, “personal
liberty makes for the worth of the human person.”38

ISSUE THREE
DOES CRITICISM OF THE GOVERNMENT AMOUNT TO AN ACT OF SEDITION AS
PER SECTION 124A OF MELUHA PENAL CODE (MPC)?

It is humbly submitted before this Hon’ble Court that Mere Criticism And Dissent Does Not
Amount To Sedition As Per Section 124A of Meluha Penal Code (Mpc) .
The same is substantiated with the threefold argument [1.1] There exists a Right To
Criticism. [1.2]There was no attempt bring into hatred or to excite disaffection towards the
government. [1.3] Misuse of Section 124A.

3.1 THERE EXISTS A RIGHT TO CRITICISM

It is contented before this Hon’ble court that as per the provisions of Section 124-A MPC
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 disorder39, which was definitely not the intent of the Petitioner in present case.

The provisions of this section read as a whole, along with the explanations, make it
reasonably clear that the sections aim at rendering penal only such activities as would be
intended, or have a tendency, to create disorder or disturbance of public peace by resort to
violence and makes it clear that criticism of public measures or comment on Government
action, however strongly worded, would be within reasonable limits and would be
consistent with the fundamental right of freedom of speech and expression.40

As in the present case criticising the government for riots in the capital city of Meluha by
the petitioners cannot be considered as bringing into hatred or contempt or exciting or
attempting to excite disaffection towards the Government established by law and is
exempted under Explanation 2 of Section 124A MPC under disapprobation of the
measures of the government.

Also, It must be observed that criticism on political matters is not itself seditious. The test
is the manner in which it is made. Candid and honest discussion is permitted. 41 The law
only interferes when the discussion passes the bounds of fair criticism. More especially
this will be the case when the natural consequence of the prisoner’s conduct is to promote
public disorder” whereas in the case at hand the manner in which the speech was made by
the petitioner was lawful as well as was candid and honest without any intent of bringing
disaffection towards the government established by law and was therefore nothing but fair
criticism.

38
Supra 34
39
Section 124A, Indian Penal Code,1860
40
Kedar Nath Singh vs State Of Bihar, AIR 1962 SC 955
41
R v Collins, (1839) 9 C&P 456

22
 MEMORIAL FOR PETITIONER

3.1.1 DELETION OF THE WORD “SEDITION” FROM THE DRAFT ART. 13(2)

The Indian law of sedition acquired a new perspective with the commencement of the
Constitution. In the draft Constitution one of the grounds mentioned on which freedom of
speech and expression could be restricted by law was “sedition.” But the Constituent
Assembly dropped the word “sedition” and substituted it by the term “which undermines
the security of or tends to overthrow the State.”42

Mr. K.M. Munshi, speaking for the deletion of the word “sedition,” observed: “The public
opinion has changed considerably since and now that we have a democratic Government
a line must be drawn between criticism of the Government which should be welcome and
incitement which would undermine the security or order on which civilized life is based,
or which is calculated to overthrow the State. Therefore, the word “sedition” has been
omitted. As a matter of fact the essence of democracy is criticism of Government.”43

Deletion of the word “sedition” was also necessary, Mr. Munshi added, 44 “otherwise an
erroneous impression would be created that we want to perpetuate 124-A of the I.P.C.”
The move was unequivocally welcomed by all the sections of opinion in the Assembly.45

There was an oblique reference to the validity of section 124-A in the Supreme Court
decision in Romesh Thapper v. The State of Madras.46 although the validity of section
124-A was not in issue in the case, Mr. Justice Patanjali Sastri, speaking for the majority
of the Court, observed:

“Deletion of the word “sedition” from the draft Art. 13(2), shows that criticism of
Government exciting disaffection or bad feelings towards it is not to be regarded as a
justifying ground for restricting the freedom of expression and of the press, unless it is
such as to undermine the security or tend to overthrow the state.”47

Therefore with deletion of the word sedition, the constitution makers acknowledged the
scope of criticism in a democratic setup and hence the speech and statements made by the
petitioner was not sedition but merely criticism and hence does not amount to an act of
sedition as per section 124A of MPC.

3.1.2 EXPLANATION 2 AND 3 OF SECTION 124A

The single explanation to the section was replaced by three separate explanations as they
now stand.48
The single explanation in the original section has been replaced by the present
Explanations 2 and 3. With regard to them the select committee in their report said:
“We have added Explanation 3 to make it clear that criticism on the action of
Government is not confined to cases in which it is sought to bring about an alteration of
42
The other grounds provided in article 19(2) on which the right to freedom of speech and expression could be restricted were libel, slander,
defamation, contempt of court, and decency or morality
43
7 C.A.D. 731 (1948).
44
Id. at 731-32.
45
See, for example, the speeches of Mr. Govinda Das (id. at 750) and Mr. T.T. Krishnamachari (id. at 773).
46
AIR 1950 SC 124.
47
Supra note 31, at 128.
48
The section, in its present form, is the result of further amendments under several Adaptation Orders of 1937,
1948, 1950, 1951 and Act 26 of 1955.

23
 MEMORIAL FOR PETITIONER

what has been done. For example, suppose the Government makes an appointment which
is considered objectionable. That appointment may be criticised, although the criticism
may not have in view that cancellation of the appointment. We have made consequential
amendments in Explanation 2 to make the language of the two explanations uniform.
These explanations were added to remove any doubt as to the meaning of the legislature;
they do not add to or subtract from the section itself.”49

Explanation 2 provides for comments expressing disapprobation of the measure of the

Government with a view to obtain their alteration by lawful means, and explanation 3
provides for comments expressing disapprobation of the administrative or other action of
the government. It would not be wrong to say that both the explanations i.e. explanation
2 and 3 are in a negative form and are intended to protect criticism of Government
measures, and of administrative and executive action of government, and they give
perfect freedom to journalists, to publicists, to orators and public speakers, to discuss the
measures and administrative acts of the government, to disapprove of them, to attack
them, and to use forcible and strong language if necessary, and to do everything
legitimate and honest in bringing before the public or the Government the fact that their
measures or their actions are disapproved by a section of the public or by that particular
speaker or journalist.

In Kedar Nath Singh v. State of Bihar 50, it was held that the provisions of the sections
read as a whole, along with the explanations, make it reasonably clear that the sections
aim at rendering penal only such activities as would be intended, or have a tendency, to
create disorder or disturbance of public peace by resort to violence. As already pointed
out, the explanations appended to the main body of the section make it clear that criticism
of public measures or comment on Government action, however strongly worded, would
be within reasonable limits and would be consistent with the fundamental right of
freedom of speech and expression. 

Similarly in the present case the petitioner are charged for disapproving with the actions
and measures taken by the government to control the present riots in the country. As per
Section 124A of MPC there is nothing wrong to disapprove with the actions and measures
taken by the government.

The object of the explanations is to protect bona fide criticism of public measures and
institutions with a view to their improvement, and to the remedying of grievances and
abuses, and to distinguish this from attempts, whether open or disguised, to make the
people hate their rulers.51 Similarly petitioners comments pointing out the
mismanagement and incapability of the government to control riots and perform their
duties efficiently was within reasonable limits and consistent with the explanations
appended to the main body of Section 124A of MPC.

[3.2] THERE WAS NO ATTEMPT BRING INTO HATRED OR TO EXCITE

DISAFFECTION TOWARDS THE GOVERNMENT

49
Niharendu Dutt Mazumdar v Emperor, AIR 1942 FC 22 , p 25 : 43 Cr LJ 504.
50
1962 AIR 955, 1962 SCR Supl. (2) 769
51
Thakin Lay Maung v King, AIR 1939 Rang 169 , p 173 : 40 Cr LJ 668.

24
 MEMORIAL FOR PETITIONER

It is most humbly submitted before the Hon'ble court that there was no attempt to bring into
hatred or to excite disaffection towards the government and the act of the petitioners (rohan
mirza sahil and others) doesn’t create any disorder and mere criticism and disapprobation
would not amount to sedition. This assertion is based on the following argument:

3.2.1 Raising of slogans and drawing pictures and memes cannot be said to be aimed at
exciting hatred or disaffection towards the government

Criticising the present judicial set up or functioning of the Parliament or government cannot
be considered as bringing into hatred or contempt or exciting or attempting to excite
disaffection towards the Government established by law nor are the slogans alleged to have
been shouted by the petitioners capable of inciting any class or community of persons to
commit any offence. It is pertinent to note that seldom a day has passed in the state in the last
three decades when such or similar slogans have not been shouted in one or other part of the
state.

Disapprobation and reasonable criticism are quite compatible with loyalty. Whilst it is open
to everyone to express with moderation any disapprobation, he may feel regarding the acts
and measures of the government.

It is a established principle that Comments expressing disapprobation of the administrative or

other action of the Government without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section. 52 In the present case where
Rohan and Mirza who were students of Political Science (Hons.) presented their thoughts on
the day of independence and gave speech in the playground of the campus was a mere
disapprobation through the speech, where they picked up on the matter of the atrocities being
committed against a certain group of people in the country and being the students of political
science, they discussed the matter and they blamed the present Government for the same.

It is, in particular, emphasized that the explanation to section 124A of the Indian Penal Code
itself states that: “Such a disapprobation of the measures of the Government as is compatible
with a disposition to render obedience to the lawful authority of the Government, and to
support the lawful authority, of the Government, against unlawful attempts to subvert or to
resist that authority, is not disaffection. Therefore the making of comments on the methods of
the Government, with the intention of exciting only this species of disapprobation, is not an
offence within this clause.”53

Explanation 1 to the section sets out the scope if disaffection and Explanations 2 and 3 state
what is not considered seditious intention as indicated under the English Law. That is to say,
criticism of Government measures and administrative and other actions of the Government, if
done without exciting or attempting to excite hatred, contempt or disaffection towards the
Government established by law, is not sedition. The petitioners have only made an endeavour
to bring into light the well established data that inflation is all time high and They also stated
that we need a new political regime54 which no where constitutes the offence of sedition.

It is pertinent to note here that as held in Arjun Arora v. Emperor,55 that to suggest a change
in the form of government cannot be said to be causing disaffection towards the government
52
Supra 50
53
Queen-Empress vs Jogendra Chunder Bose And Ors. (1892) ILR 19 Cal 35
54
Para 4, Factsheet
55
AIR 1937 All 295
25
 MEMORIAL FOR PETITIONER

established by law or to bring present government into hatred or contempt.

As being in a country where social media is a vast medium of communication , the clips
circulated widely. The media rushed in to cover the incident. The crowd too shouted slogans
like “Azadi Chahiye Murkhon Se, Azadi Chahiye Beimaanon Se, Garibi Se, Azadi Hamara
Haq Hai Hum Lekar Rahenge. Sarkar ko bahar karo, bahar karo.”56

It is pertinent to mention that the Hon’ble Supreme Court in the Balwant Singh and Another
v State Of Punjab 57case, had observed: “The casual raising of the slogans by individuals
alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection
towards the Government…, Section 124A IPC, would in the facts and circumstances of the
case have no application whatsoever and would not be attracted to the facts and
circumstances of the case.”

Similarly, in the present case raising of slogans by the petitioners cannot be treated as
sedition as per Section 124A of the MPC as raising of such slogans did not cause any threat
to the Government of Meluha and neither raising of such slogans were aimed at exciting or
attempt to excite hatred or disaffection towards the government.

Section 124A IPC renders penal only such activities which are intended or have a tendency to
create disorder or disturbance of public order or disturbance of public peace by resort to
violence. Cartoons or caricatures are visual representations, words or signs which are
supposed to have an element of wit, humour or sarcasm. In the case of Sanskar Marathe v
State of Maharashtra,58 a cartoonist published cartoons on website, which the prosecution
contended, insulted and defamed Parliament and Government. Held, provisions of section
124A were not attracted. Therefore in the instant case also merely making of cartoon and
memes would not attract Section 124A.

Therefore, the criticism done by the petitioner neither there action pose threat to public order
nor there was any intention or attempt to incite people to create disorder against the
government established by law, hence doesn’t constitute the offence of Sedition.

3.2.2UNDUE WEIGHTAGE TO ISOLATED PASSAGES

The essence of the offence of sedition under section 124-A, I.P.C., is the intention with which
the language of a speech is used, and that intention has to be judged primarily from the
language itself.

It is contented before this Hon’ble court that the provisions of Section 124-A IPC cannot be
invoked to penalize criticism of the persons for the time being engaged in carrying on
administration or strong words used to express disapprobation of the measures of
Government with a view to their improvement or alteration by lawful means. The statements,
Time for change has arrived, We were waiting for this day, There is no other way to protect
ourselves or the statements like They are incapable of protecting us, We need a new political
regime.”59 are merely the opinions of the petitioners who are eventually students of political

56
Para 4, Factsheet
57
 AIR 1987 SC 1080
58
2015 Cr LJ 3561 (Bom) (DB) : 2015 (2) Ren CR (Criminal) 351
59
Para 6, Factsheet

26
 MEMORIAL FOR PETITIONER

science and are expected to speak about the matter happening in the country and has the
Freedom to speech in this democratic nation which gives Fundamental right to every citizen.

These statements nowhere instigates the people or incite any offence The essence of the
offence of sedition under section 124A I.P.C, is the intention with which the language of a
speech is used and that intention has to be judged primarily from the language itself. 60In
forming an opinion as to the character of speech charged as sedition, the speech must be
looked at and taken as a whole, freely and fairly, without giving undue weight to isolated
passages and without pausing upon an objectionable sentence here or a strong word there,
and, in judging of the intention of the speaker, each passage, should be considered in
connection with the others and with the general drift of the whole.61

It is submitted before this Hon'ble court that the citizens of the nation have the right to
criticise the Government. Criticism of the Government by itself cannot amount to sedition. In
a country which is governed by the rule of law and which guarantees freedom of speech,
expression and belief to its citizens, the misuse of the law of sedition and other similar laws is
against the very spirit of freedom.

Consequently, the criminal proceedings initiated against these statement of criticism doesnt
amount to sedition and is abuse of the process and violative of the fundamental rights
guaranteed under the Constitution of India, the same is required to be quashed.

3.3 MISUSE OF SECTION 124A

The last few years have given rise to a number of cases where the law of sedition or creating
disharmony have been misused rampantly by the police to arrest and humiliate people who
have not committed the crime of sedition. So, the arrest rate pertaining to sedition cases is
high, but conviction rate is very low, which shows the amount of misuse of this particular
provision of law. It should also be noted here that most of the persons accused of sedition are
writers, journalists, cartoonists or activist who do not have any army or weapon to throw the
government established by law. They are made scapegoat just because they have a business
and a right to express their views or opinions. Similarly the petitioner in the present case is a
student of political science (Hons.) in the department of political science OUSS and was
merely expressing his views in the playground of his college campus and does not poses
capability and resources to harm the government established by law.

3.3.1 NCRB DATA

The misuse of the section 124A can be understood from the data of National Crime Record

Bureau (NCRB) which states that most of the people charged with sedition never face trial
due to an incomplete investigation by police or lack of evidence against the accused.
Furthermore, even if police file charge sheet in few cases and the accused faces trial, the
conviction rate is minimal. But the story does not end even when an accused gets an acquittal.
Indian judiciary is infamous for its delayed justice. In fact, the process itself is a punishment
here. Till the time an accused gets an acquittal, he has already served some parts of his
punishment. Therefore, it would not be wrong to quote here that ‘justice delayed is justice
denied’.

60
Ram Nandan vs State, AIR 1959 All 101, 1959 CriLJ 1
61
Hanumanthaiya v. Govt of Mysore, (1948) 52 Mys HCR 265. )

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Also in the case of In Hussainara Khatoon v. Home Secretary, State of Bihar62, it was brought
to the notice of the Supreme Court that an alarming number of men, women, and children
were kept in prisons for years awaiting trial in courts of law. The Court took a serious note of
the situation and observed that it was carrying a shame on the judicial system that permitted
incarceration of men and women for such long periods of time without trials.
The Court held that detention of under-trial prisoners, in jail for a period longer than what
they would have been sentenced if convicted, was illegal as being in violation of Article of
21. The Court, thus, ordered the release from jail of all those under-trial prisoners, who had
been in jail for a longer period than what they could have been sentenced had they been
convicted.

As per the latest data as many as 25 sedition cases were filed after the anti-Citizenship
Amendment Act protests, 22 after the Hathras gang rape, and 27 after the Pulwama incident.
In all, 96 percent of the sedition cases filed against 405 Indians over the last decade were
registered after 2014 and the conviction rate is mere 4%.

ISSUE FOUR
WAS THE BANNING OF NEWSPAPERS A CONSTITUTIONALLY VALID
ACT OF THE GOVERNMENT OF MELUHA?

It is humbly submitted before this Hon’ble court that the ban on publication of two
national dailies “The Phantom” and “The Voice” is violative of Article 19 and 21 of the
Constitution and therefore the petitioner submits the following arguments in light of the
same.

4.1 THERE IS INFRINGEMENT OF FUNDAMENTAL RIGHT TO FREEDOM OF

SPEECH AND EXPRESSION

Freedom of right to speech and expression is enshrined under Article 19 of the Constitution
and the press editors and managers are all citizens, and when they write in newspapers they
are thereby exercising their individual right of expression. It is then, settled law in India that
the right of freedom of speech and expression includes the liberty of the press as well.63

4.1.1 THE BAN AGAINST NEWSPAPER IS VIOLATIVE OF FREEDOM OF RIGHT TO

PRESS

The press plays a vital and quintessential role for the democratic machinery to function on its
toes. Furthermore, it is the duty of the court to ensure the press freedom remains
intact,64 which include the freedom of publication, circulation and access to information by

62
1979 AIR 1369, 1979 SCR (3) 532

63
Romesh Thappar v. State of Madras, AIR 1950 SC 124.
64
Express Newspapers (P) Ltd. v. Union of India, AIR 1958 SC 578.

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 MEMORIAL FOR PETITIONER

the common populous.65

Therefore the trend of the judicial precedents on the press freedom indicates a liberal
interpretation of the concept in implementation of the freedom of the press with certain
limitations to make the press more balanced and effective. The Hon'ble Supreme Court has
played an instrumental role in time and again in expanding the horizons of the Constitutional
interpretation and thereby laying down a strong foundation to the freedom guaranteed under
Part III of the Constitution.

It was even opined66 that “merely because dissent, disapproval or criticism is expressed in

strong language is no ground for banning its publication 67. Also in Romesh Thappar v. State
of Madras68, the Supreme Court struck down section 9 (1) (A) of the Madras Maintenance of
Public Order Act of 1949 which sought to impose restrictions on the freedom of the press
guarant 19 (1 ){a) of the Constitution. The court held invalid the notification banning the
entry into, or the circulation, sale, or distribution in the State of Madras or any part thereof, of
a weekly journal entitled Cross Road, published in Bombay.

Therefore in light of the cases mentioned, the right to freedom of speech and expression
includes freedom of press and therefore the banning of the newspapers by the state should be
held in violation of the fundamental rights of the Const. of Meluha.

4.1.2 IT DENIES CITIZENS THE RIGHT TO ACCESS THE INFORMATION

Public’s right to access information regarding Meluha has been denied by the banning of the
two national dailies, “The Phantom” and “The Voice” as Right of the public to seek and
receive information69 on the matters of public importance is an important part of the right to
freedom of speech and expression70. It ensures public access to multitudes of ideas and
philosophies.71 The public's right to know and the journalists' right and duty to publish
information in the public interest constitutes an essential aspect of freedom of speech and
expression.72 This right embraces the public's need to seek the truth, its right to participate in
the debates of general interest73, social change and decision making.74

Public's right to access information includes the right of the general public to receive
information from the media on matters of public affairs and public importance. 75 Matters of
public importance include the well-being of the citizens or the welfare of a community. 76 As a
means to protect the right of media users, States parties are required to take particular care to
65
Soli J. Sorabjee, Freedom of the Press, its Contents and Facets, (December 1986), pp. 173-184, e
66
Binod Rao v. Minocher Rustom Masani, 1976 SCC OnLine Bom 100 : (1976) 78 Bom LR 125.
67
Manoj Kumar Sadual, Freedom of Press in Indian Constitution : A Brief Analysis, International Journal of Applied
Research 2015; 1(8) : 194-198.
68
 1950 AIR 124
69
Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294 (India)
70
Axel Springer v. Germany, App. No. 39954/08 Eur. Ct. H.R. ¶ 79 (2012)
71
Sarah Joseph and Melissa Castan, Commentary, The International Covenant on Civil and Political Rights,
OXFORD UNIVERSITY PRESS, 590 (2013).
72
Mail & Guardian Ltd. v. Maharaj, App No. 37510/2012, (May 12, 2016).
73
Von Hannover v. Germany, App. No. 59320/00 Eur. Ct. H.R. ¶ 60 (2004);
74
Michael G. Doherty, Politicians as a species of “public figure” and the right to privacy, 1 U.K. HUMANITAS
J. EUR.
STUD. 35 (2007);
75
Mavlonov and Sa'di v. Uzbekistan, Comm. No. 1334/2004, U.N. Doc. CCPR/C/95/D/1334/2004, (Mar. 19,
2009).
76
Gauthier v. Canada, Comm. No. 633/1995, U.N. Doc. CCPR/C/65/D/633/1995, (May 5, 1999).

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 MEMORIAL FOR PETITIONER

encourage independent and diverse media so that the public could receive a wide range of
information and ideas.77 The citizens can make a request for information 78 and the public
authority may provide such information if the public interests in disclosure outweigh the
harm to the protected interests.

Therefore in the present case it is the duty of the national newspaper to cover the
contemporary issues of the country, hence banning the publication of such newspaper is
violative of citizens right to access information that too in a case where country is suffering
from crisis and conflicts and it becomes the duty of the national newspapers to cover the
issues in depth so that the citizens can frame an opinion in the democratic setup like that of
Meluha. Also the respondents act to ban the publication of the above-mentioned newspapers
is also violative Right to Information Act of the citizens of Meluha.

4.1.3 LAW AND ORDER SITUATION CANNOT BE A GROUND TO BAN

NEWSPAPER

In para 8 of the Moot Proposition it is clearly cited by the respondents that due to law and
order situation the publication of the two national dailies “The Phantom” and “The Voice”
have been banned. But it is pertinent to note that as per article 19(2) reasonable restriction
can be imposed in the interest of ‘public order’ and not in the ‘interest of law and order’. The
distinction between `public order' and `law and order' is a fine one, but nevertheless clear.79

A proper test to distinguish between 'law and order' and 'public order' is whether the
complained acts led to disturbance of ordinary lives of the community so as to amount a
disturbance of the public order or it merely affected an individual leaving the tranquility of
society undisturbed. It is, therefore, said that the essential distinction between the concepts of
'public order' and 'law and order' is not in the nature or quality of the act but in the degree,
potentiality and extent of its reach upon society.80

In the case of Dr. Ram Manohar Lohia v. State of Bihar 81 this Hon’ble court stated that an
activity which affects `law and order' may not necessarily affect `public order' and an activity
which might be prejudicial to `public order' may not necessarily affect `security of the State'.
A restriction imposed with `law and order' in mind would be least intruding into the
guaranteed freedom while `public order' may qualify for a greater degree of restriction since
public order is a matter of even greater social concern.

Therefore 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 State82 and it can be construed that if law and order is infringed
than it does not mean that public order has also been infringed and if public order is infringed
it cannot be concluded that security of the state has been questioned.83

77
Art. 19 : Freedoms of opinion and expression, H.R.C. General comment No. 34, U.N. Doc. CCPR/C/GC/34, ¶
13 (July 29, 2011).
78
§ 6, Right to Information Act, 2005, No. 22, Acts of Parliament, 2005 (Flavia).
79
Re-Ramlila Maidan Incident Dt ... vs Home Secretary And Ors
80
Nilesh Bansilal Gaywal @ Ghaywal vs The State Of Maharashtra And Ors, WRIT PETITION NO.1768
OF 2021
81
AIR 1966 SC 740
82
The Superintendent, Central ... vs Ram Manohar Lohia 1960 AIR 633, 1960 SCR (2) 821
83
Ibid

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Therefore in light of the case of Romesh Thappar v. State of Madras, 84 in which the Court
took the view that local breaches of public order were no grounds for restricting the freedom
of speech guaranteed by the Constitution, it is submitted that the ground of law and order
cannot constitute a reasonable ground of restriction on fundamental right to speech and
expression of the two national dailies “The Phantom” and “The Voice”.

4.2 BAN ON CARTOON SECTION OF NEWSPAPER IS ARBITRARY

In the case of Sanskar Marathe v. State of Maharashtra & Anr. 85 a cartoonist Aseem Trivedi
was booked under section 124A IPC for defaming the Parliament, the Constitution of India
and the National Emblem and attempting to spread hatred and disrespect against the
Government through his cartoons. The court distinguished between strong criticism and
disloyalty observing: … disloyalty to Government established by law is not the same thing as
commenting in strong terms upon the measures or acts of Government, or its agencies, so as
to ameliorate the condition of the people or to secure the cancellation or alteration of those
acts or measures by lawful means, that is to say, without exciting those feelings of enmity and
disloyalty which imply excitement to public disorder or the use of violence.

Similarly, merely creating memes and drawing pictures of the cabinet and the parliament
building cannot amount to sedition and publication of such material by the newspaper cannot
be a ground to ban the publication of the same.

84
1950 SCR 594
85
2015 Cri LJ 3561.

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PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

AND AUTHORITIES CITED, IT IS MOST HUMBLY AND RESPECTFULLY
REQUESTED THAT THIS HON’BLE SUPREME COURT MAY BE PLEASED TO
ADJUDGE AND DECLARE THAT:

1. Appellate Tribunal erred in not interfering with the decision of the Data Protection
Authority justifying the interception of data
2. The High Court erred in its decision of approving the constitutionality of the proceedings
initiated by the Controller of the Certifying Authorities under Sec. 69 of the IT act, 2000
3. The charges levied under Section 124A of Meluha Penal Code and detention in judicial
custody are legally invalid.
4. The collection of voice samples is not legally sustainable and the
5. The High Court could not invoke inherent jurisdiction under Sec. 482 of the Avadh
Code of Criminal Procedure, 1973 to form a Special Investigation Team to probe into the
matter.

AND\OR

PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT DEEMS FIT IN THE

INTEREST OF JUSTICE, EQUITY, AND GOOD CONSCIENCE. FOR THIS ACT OF

KINDNESS, THE APPELLANTS DHALL DUTY-BOUND FOREVER PRAY.

Sd/-

Counsels for the Petitioner

32