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
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
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
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
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
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
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
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
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

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

SHRI RAMSWAROOP MEMORIAL UNIVERSITY INTRA MOOT 2020

SUMMARY OF ARGUMENTS

Fundamental Right Of Freedom Of Speech And Expression As Enshrined Under

Article 19(1)(a) Of The Constitution Of Indiva Is Not Infringed By Section 124 A Of

The I.P.C.

The counsel on the behalf of the respondents most humbly submits that in a democracy like

Indiva every citizen must have the right to freedom of speech and expression. Thus, article 19(1)

(a) of the Constitution Of Indiva ensures this particular right to all its citizens. However, the

same article also elaborates that this right is subject to certain restrictions which can be imposed

on the basis of certain grounds as enshrined under article 19(2).

Section 124 A of the Indivian Penal Code, 1860 constitutes a reasonable restriction to freedom of

speech and expression under article 19(1)(a) of the Constitution of Indiva. Also, section 124A is

applied only in rare cases and such application on the part of the authorities is made with due

care and caution. Thus, it does not infringes right to freedom of speech and expression of any

individual in any aspect.

Fundamental Right To Freedom Of Speech And Expression Is Not Unfettered But

Subject To Certain Restrictions Which May Be Imposed Under Article 19(2) Of The

Constitution Of Indiva.

The counsel on the behalf of the respondents most humbly submits that every right brings with it

certain liabilities and so is the case of right to freedom of speech and expression. Through the

citizens have this right, they have to use it in a positive way and in a way that their enjoyment

does not lead to infringement of someone else's right. Thus, any wrong use of this right may lead

to imposition of restriction under article 19(2) in the interests of the sovereignty and integrity of

10

MEMORIAL ON THE BEHALF OF RESPONDENTS

SHRI RAMSWAROOP MEMORIAL UNIVERSITY INTRA MOOT 2020

Indiva, the security of the State, friendly relations with foreign States, public order, decency or

morality or in relation to contempt of court, defamation or incitement to an offence. Thus, the

counsel would like to conclude that right to freedom of speech and expression is not unfettered.

Someone who advocates the use of violence to overthrow the government is not

entitled to protection under Art. 19(1)(a).

The counsel on the behalf of the respondents most humbly submits that someone who advocates

use of violence to overthrow the Government established by law is not entitled to protection

under article 19(1)(a) because such opinion of that person may lead to public disorder thus

attacking the sovereignty, integrity and security of the State. Though strong or harsh criticism is

not covered under the umbrella of section 124 A I.P.C but if such criticism undermines the

security of the State or leads to disruption of public order then one is liable for punishment under

124 A. Section 124 A clearly says that whoever, by words, either spoken or written, or by signs,

or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or

excites or attempts to excite disaffection towards, the Government established by law in Indiva,

shall be punished. Under this section, for the determination of criminality the court in each case

has to determine the whether the words in question have pernicious tendency and whether the

person uttering those words had the intention of creating public disorder or disturbance of law

and order. On the basis of these two factors liability can be imposed.

In the present case anti-Indiva slogans were raised during a campaign organised by Lamnesty

International, which is clearly disruption of public order. Moreover, Democratic Students Union

organized a rally against the conviction of Faizal Khan, the terrorist behind the attack on the

parliament of Indiva and there also anti-Indiva slogans were raised by some outsiders which

11

MEMORIAL ON THE BEHALF OF RESPONDENTS

SHRI RAMSWAROOP MEMORIAL UNIVERSITY INTRA MOOT 2020

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

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

Section 124A of IPC does not infringes the fundamental right to life and dignity

enshrined under Article 21 of the Constitution of Indiva.

The counsel on the behalf of the respondents most humbly submits that like every other right or

liability section 124A is also subject to doctrine of proportionality. Under this section the person

convicted for the offence of sedition is liable to be punished with be punished with imprisonment
for life to which fine may be added, or with imprisonment which may extend to three years, to

which fine may be added or with fine. Section 124A comes under the category named as '

offences against state' and thus the punishment described under this section is
completely

proportionate even if it extends to imprisonment for life. Imprisonment for life in case of sedition

is given in the rarest of rare cases and mostly in cases where such offence is summed up along

with the offence of waging war against State etc.

Moreover, it has been made very clear by the Constitution of Indiva that if any
statutory

provision runs counter to such a right it must be held unconstitutional. Right to life and personal

liberty are compendium terms, which include a variety of rights and attributes. The expanded

meaning includes the right to hold a particular opinion, to sustain and to nurture that opinion. An

opinion which does not disrupts public order or does not undermines the sovereignty, integrity

and security of the State does not comes under the purview of sedition. Therefore, the impugned

section of the IPC is not violative of the fundamental right to life and personal liberty guaranteed

under the Constitution of Indiva.

ARGUMENTS
ADVANCED
1. WHETHER SECTION
124A OF IPC INFRINGES
THE FUNDAMENTAL
RIGHT OF
FREEDOM OF SPEECH
AND EXPRESSION
ENSHRINED UNDER
ARTICLE 19(1)
(a) OF THE
CONSTITUTION.?
It is humbly submitted before
the Hon'ble bench that Section
124 A of the IPC, which deals
with
sedition , does not infringes
the fundamental right of
speech and expression
enshrined under
article
19(1)(a) of the Constitution
of Indiva, in any aspect. In
Romesh Thappar V. The
State Of
1
Madras ,
Patanjali Sastri .J .,
rightfully held that article
19(1) (a) is the basis and
essence of the
constitution
and our democracy . This view
was further supported by
Bhagwati J. , in Maneka
Gandhi V.
Union
2
of India , by emphasizing on
the significance of the freedom
of speech and expression.
However,
the article that provides this
right to each and every citizen,
the very same article in its
clause (2)
says that reasonable
restrictions can be imposed on
the right provided under this
article on the
basis of certain grounds .
Section 124 A of the IPC is
one such reasonable restriction
1 Romesh Thappar V. The State Of
Madras AIR 124 1950 SCR 594
2 Maneka Gandhi V. Union Of India
AIR 597 1978 SCR (2) 621
ARGUMENTS ADVANCED

1. WHETHER SECTION 124A OF IPC INFRINGES THE FUNDAMENTAL RIGHT OF

FREEDOM OF SPEECH AND EXPRESSION ENSHRINED UNDER ARTICLE 19(1)

(a) OF THE CONSTITUTION.?

It is humbly submitted before the Hon'ble bench that Section 124 A of the IPC, which deals with

sedition , does not infringes the fundamental right of speech and expression enshrined under

article

19(1)(a) of the Constitution of Indiva, in any aspect. In Romesh Thappar V. The State Of

Madras1,

Patanjali Sastri .J ., rightfully held that article 19(1) (a) is the basis and essence of
the

constitution

and our democracy . This view was further supported by Bhagwati J. , in Maneka Gandhi V.

Union

of India2, by emphasizing on the significance of the freedom of speech and expression. However,

the article that provides this right to each and every citizen, the very same article in its clause (2)
says that reasonable restrictions can be imposed on the right provided under this article on the

basis of certain grounds . Section 124 A of the IPC is one such reasonable restriction

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

2 Maneka Gandhi V. Union Of India AIR 597 1978 SCR (2) 621

1.1.SEDITION HAS BEEN HELD CONSTITUTIONALLY VALID BY THE SUPREME

COURT.

Sedition is a pre-constitutional law and has been upheld by the Supreme Court . Sedition refers

to overt actions , gestures or speech by a person in oral or written form which express his or her

discontent against the established Government in the State , with the aim the incite violence or

hatred against it . Section 124A3 of the IPC (Chapter VI) defines the offence of sedition . There

are several in which this law has been challenged. Most of these cases deals with

constitutionality

of Section 124A. In Niharendu Majumdar V. Emperor4, the Federal Court held that public

disorder

or the reasonable anticipation of likelihood of public disorder is the gist of the offence . In the

present case where anti-Indiva slogans were raised there was a clear anticipation of likelihood of

public disorder and hence charges of sedition have been rightfully imposed in the present case.

However , in Emperor V. Sadashiv Narayan Bhalerao5, the Privy Council not only reiterated the

law on sedition enunciated in Bal Gangadhar Tilak6 case , but also held that the Federal Court’s

statement in Majumdar case was wrong . Privy council held that excitement of feelings of enmity

3 124A. Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible

representation, or

otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite
disaffection

towards, 102 [***] the Government established by law in 103[India], [***] shall be punished with
104 [imprisonment for

life], to which fine may be added, or with imprisonment which may extend to three years, to
which fine may be

added, or with fine.

4 Niharendu Majumdar V. Emperor AIR 1939 Cal 703

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

6 Queen Emperor V. Bal Gangadhar Tilak (1917) 19 BOMLR 211

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
7
speech . Similarly, in 1958
Allahabad High Court also
struck down
section 124A on the ground
of being violative of the
8
Constitution . But the view
that the
judiciary
at present holds was given by
the apex court in the case of
Kedarnath Singh V. State of
9
Bihar 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.
10
Gopalan V. State of Madras ,
Patanjali Sastri J., Kania C.J.,
and Das J. tried to explain the
term
“restriction”. Das J. was of the
view that the word
“restriction” implies that the
fundamental right
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
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 Sastri J., Kania C.J., and Das J. tried to explain the term

“restriction”. Das J. was of the view that the word “restriction” implies that the fundamental right

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

is not destroyed in entirety but passport of it remained. Patanjali Sastri J. was of the view that the

term did not mean “total prohibition”. Kania C.J. interpreted it as “partial control” and

distinguish

it from deprivation.

Later the Supreme Court in another 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

11 Narendra Kumar V. Union Of India AIR 430 1960 SCR (2) 375

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
12
Madhya Pradesh for
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
individual freedom. Not only
substantive but also procedural
provisions of a statute also
enter in to the verdict of its
reasonableness.
 The reasonableness of a
restriction has to be
determined in an objective
manner and from
the standpoint of the interests
of the general public and not
from the point of view of
persons upon whom the
restrictions are imposed or
upon abstract considerations.
 The court is called upon to
ascertain the reasonableness of
the restrictions and not of the
12 Narottamdas V. State Of Madhya
Pradesh AIR 1667 1964 SCR (7) 820
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 Pradesh12 for 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

individual freedom. Not only substantive but also procedural provisions of a statute also

enter in to the verdict of its reasonableness.

The reasonableness of a restriction has to be determined in an objective manner and from

the standpoint of the interests of the general public and not from the point of view of

persons upon whom the restrictions are imposed or upon abstract considerations.

The court is called upon to ascertain the reasonableness of the restrictions and not of the

12 Narottamdas V. State Of Madhya Pradesh AIR 1667 1964 SCR (7) 820

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.
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 society13.

2. WHETHER THE PEOPLE ENJOY UNFETTERED RIGHT TO FREEDOM OF

SPEECH AND EXPRESSION.?

It is most humbly submitted before the Hon’ble Bench that though the Constitution provides the

fundamental right of speech and expression to all its citizens, such right is not unfettered, and

thus the petitioners in this case cannot claim their right of speech and expression has been

infringed by imposing restrictions on it.

13 Kedarnath Singh V. State Of Bihar AIR 955 1962 SCR Supl. (2) 769

2.1.RIGHT TO FREEDOM
OF SPEECH AND
EXPRESSION IS NOT
ABSOLUTE
Freedom of speech is
considered as the basic
freedom by most philosophical
thinkers. It is one of
the most basic element
for a healthy, open
minded democracy and is
foundation of any
14
democratic society . Under
the Constitution of Indiva,
freedom of speech and
expression has
been guaranteed under article
19(1)(a) which reads as:
"Protection of certain rights
regarding
freedom of speech etc.- All
citizens shall have the right-
(a) to freedom of speech and
expression.
"
The Constituent Assembly
debated on freedom of speech
and expression on 1 December
&2
December, 1948 and finally on
17 October, 1949. Most
members of the constituent
assembly
welcomed the inclusion of
right to freedom of speech and
expression but conflict was
regarding
the provision in the article
that placed restrictions.
Those who were in the
favour of the
restrictions argued that:
(a) Restrictions are fine as the
Government is now not a
colonial one.
(b) Nowhere in the world
freedom of speech and
expression is absolute.
(c) Law and order and security
of State cannot be
compromised.
In the end, the Constituent
Assembly voted on the article
and included freedom of
speech and
expression in the Constitution
with restrictions mentioned
15
with it.
14 Union Of India V. Motion
Pictures Association 1999 (3) SCR
875
15 The draft article read:
'Subject to the other provisions of
this article, all citizens shall have the
right – (a) to freedom of speech and
expression;
2.1.RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IS NOT ABSOLUTE

Freedom of speech is considered as the basic freedom by most philosophical thinkers. It is one of

the most basic element for a healthy, open minded democracy and is foundation of
any

democratic society14. Under the Constitution of Indiva, freedom of speech and expression has

been guaranteed under article 19(1)(a) which reads as: "Protection of certain rights regarding

freedom of speech etc.- All citizens shall have the right- (a) to freedom of speech and expression.

"

The Constituent Assembly debated on freedom of speech and expression on 1 December & 2

December, 1948 and finally on 17 October, 1949. Most members of the constituent assembly

welcomed the inclusion of right to freedom of speech and expression but conflict was regarding

the provision in the article that placed restrictions. Those who were in the favour of
the
restrictions argued that:

(a) Restrictions are fine as the Government is now not a colonial one.

(b) Nowhere in the world freedom of speech and expression is absolute.

(c) Law and order and security of State cannot be compromised.

In the end, the Constituent Assembly voted on the article and included freedom of speech and

expression in the Constitution with restrictions mentioned with it.15

14 Union Of India V. Motion Pictures Association 1999 (3) SCR 875

15 The draft article read:

'Subject to the other provisions of this article, all citizens shall have the right – (a) to freedom of
speech and

expression;

In A.K. Gopalan V. State of Madras16, the Supreme Court observed :

'Man as a rational being desires to do many things but in civil society his desires have to be

controlled, regulated, and reconciled with the exercise of similar desires by other individuals.

Liberty has therefore to be limited in order to be effectively possessed. '

Thus, we can conclude this issue by saying that the right to freedom of speech & expression is

not at all absolute but subject to certain restrictions as provided under 19(2)17

These aspects have widened the scope of this right but still the right has not become absolute and

is subject to reasonable restrictions on the following grounds under clause (2) of article 19 of the

Constitution:

• security of the State

• friendly relations with foreign states

• public order

• decency and morality

• contempt of court

• defamation

• incitement to an offence

• sovereignty and integrity of the State.

In the case of Om Prakash V. Emperor18, the court held that the expression 'public order' connotes

the sense of public peace, safety and tranquillity. Anything that disturbs public peace disturbs
public order. Moreover, Supreme Court explained the differences between 3 concepts: law &

order, public order and security of State and held that a law, punishing the utterances delivered

deliberately tending to hurt the religious feelings of any class, is valid as it is a reasonable

restriction aimed at maintaining public order.19

18 Om Prakash V. Emperor AIR 1956 All 241, 1956 CriLJ 452

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

People often say that censorship and other such restrictions must only be made in case of

emergency or war and not otherwise, but in another case24 Hon’ble Supreme Court held that pre-

censorship even in times of peace is warranted in certain circumstances under article 19(2) of the

Constitution.

Reasonable restrictions can be imposed on freedom of speech and expression in the interest of

security of the State. All the utterance intended to endanger the security of the State by crimes of

violence intended to overthrow the government, waging war and rebellion against the

government, external aggression or war etc. may be restrained in the interest of the security of

the State.25

24 Virendra V. State Of Punjab AIR 1957 PH1 1957 CriLJ 88

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

3. 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 sedition27.

In the present case where Kamla Mehta gave pro-Bangistan statement or where in a program

conducted by Lamnesty Internationa government established by law was harshly criticized which

26 Kedarnath Singh V. State Of Bihar AIR 955 1962 SCR Supl. (2) 769

27 Indramani Singh V. State Of Manipur 1955 CriLJ 184

led to raising of anti- Indiva slogans, such acts where done with the intent to excite hatred against

the government established by law and thus they were rightfully charged for sedition.

3.1.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, it's present status is that it has been

constitutionally upheld. Over the years, the Indian Judiciary has, through various cases,

established its stand on the sedition laws in the country. The legal viewpoints considered and the

tests applied by the Indian courts are very similar to foreign system, especially the American

system. With this regard, a basic understanding of the foreign rules will warrant a much easier

approach on our part regarding the judicial stand in our own country.

In Reg. V. Alexander Martin Sullivan28, 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 criticised the Government was the
“bad
tendency” test. The bad tendency principle is a test which permits restriction of freedom of

speech & expression by Government, if it is believed that a form of speech has a sole tendency to

incite or cause illegal activity. The principle was formulated in the case of Patterson V.

Colorado29.

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

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

29 Patterson V. Colorado 1907 U.S., 205 U.S. 454

was Charles T. Schenck V. United States30. 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.’

This test was further extended by Holmes J. in Debs V. United States31 in 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

States32, 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 Case33. 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 Assam34, the Hon’ble Supreme Court held the two step “Brandenburg Test” as the

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

31 Debs V. United States 1919 U.S., 249 U.S. 211

32 Dennis V. United States 1951 U.S., 341 U.S. 494

33 Clarence Brandenburg V. State Of Ohio 1969 U.S., 395 U.S. 444

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

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 Case35
and

Kedarnath Case36 is the analogy of 'spark in a powder keg'. The court in paragraph 13 of the

case of S. Rangarajan V. P. Jagjivan Ram37, 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.

Later, InRe: Arundhati Roy Case38, the Supreme Court of India followed the view taken in the

American Court by Frankfuter J. in Pennekamp Vs. Florida39 in which the US Supreme Court

observed that :

“ If men, including judges and journalists were 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 the lot of men to

decide in not a privilege accorded to judges. The power to punish for contempt of court is a

safeguard not for judges as persons but for the function which they exercise. ”

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 the itself

35 The Superintendent, Central Jail, Fatehgarh V. Ram Manohar Lohia AIR 633 1960 SCR (2) 821

36 Kedarnath Singh V. State Of Bihar AIR 955 1962 SCR Supl. (2) 769

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

38 InRe : Arundhati Roy (2002)

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

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 th authorities with
due care and caution.

3.2. 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.

Praven Bhai Togadia40, 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.

In Binayak Sen V. State Of Chhattisgarh41 mere possession and distribution of objectionable

literature led to conviction. One Mr. Piyush Guha confessed that Binayak Sen, a public health

advocate had delivered certain letters to him to be delivered to Kolkata. These letters allegedly

contained naxal literature and convicting the accused on this basis, the High Court cited the

widespread violence by banned Naxalite groups against members of armed forces. Similarly, in

40 State Of Karnataka V. Dr. Praven Bhai Togadia SLP (Crl.) No. 3085/2003

41 Binayak Sen V. State Of Chattisgarh (2011) 266 ELT 193

42
one case 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.
43
In another case of
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
44
to insurrection and rebellion.
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.
4. WHETHER SECTION 124
OF IPC INFRINGES THE
FUNDAMENTAL RIGHT TO
LIFE AND DIGNITY
ENSHRINED UNDER
ARTICLE 21 OF THE
CONSTITUTION.?
42 Raghubir Singh V. State Of Bihar
AIR 149, 1986 SCR (3) 802 SCC
481
43 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
one case42 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 case43 of 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.

4. WHETHER SECTION 124 OF IPC INFRINGES THE FUNDAMENTAL RIGHT TO

LIFE AND DIGNITY ENSHRINED UNDER ARTICLE 21 OF THE

CONSTITUTION.?

42 Raghubir Singh V. State Of Bihar AIR 149, 1986 SCR (3) 802 SCC 481

43 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

t 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

‘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)

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

orrection. 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.

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.

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

DELETED
Fundamental Right Of Freedom Of Speech And Expression as enshrined under Article 19(1)
(a) of The Constitution Of Indiana 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 Indiana
every citizen must have the right to freedom of speech and expression. Thus, article 19(1)(a)
of the Constitution Of Indiana 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 Indiana Penal Code, 1860 constitutes a reasonable restriction to
freedom of speech and expression under article 19(1)(a) of the Constitution of Indiana. Also,
section 124A is applied only in rare cases and such application on the part of the authorities
is made with due care and caution. Thus, it does not infringes right to freedom of speech
and expression of any individual in any aspect.

Fundamental Right To Freedom Of Speech And Expression Is Not Unfettered But Subject To
Certain Restrictions Which May Be Imposed Under Article 19(2) Of The Constitution Of
Indiana.

The counsel on the behalf of the respondents most humbly submits that every right brings
with it certain liabilities and so is the case of right to freedom of speech and expression.
Through the citizens have this right, they have to use it in a positive way and in a way that
their enjoyment does not lead to infringement of someone else's right. Thus, any wrong use
of this right may lead to imposition of restriction under article 19(2) in the interests of the
sovereignty and integrity of Indiana, the security of the State, friendly relations with foreign
States, public order, decency or morality or in relation to contempt of court, defamation or
incitement to an offence. Thus, the counsel would like to conclude that right to freedom of
speech and expression is not unfettered.

Someone who advocates the use of violence to overthrow the government is not
entitled to protection under Art. 19(1)(a). The counsel on the behalf of the respondents
most humbly submits that someone who advocates use of violence to overthrow the
Government established by law is not entitled to protection under article 19(1)(a) because
such opinion of that person may lead to public disorder thus attacking the sovereignty,
integrity and security of the State. Though strong or harsh criticism is not covered under the
umbrella of section 124 A I.P.C but if such criticism undermines the security of the State or
leads to disruption of public order then one is liable for punishment under 124 A.

Section 124 A clearly says that whoever, by words, either spoken or written, or by signs,
or by visible representation, or otherwise, brings or attempts to bring into hatred or
contempt, or excites or attempts to excite disaffection towards, the Government
established by law in Indiana, 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.