LEX OMNIA MOOT COURT COMPETITION 2016- BITS PILANI- K.K.

BIRLA GOA CAMPUS

TEAM CODE: 75

BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTERS OF:

DHARMANAND POVER AND LAVEESTA KETALVAD ..............CLAIMANTS

V.

THE UNION OF INDIA AND GELTLEMANIAN SWAMY …...... RESPONDENTS

WRIT PETITION NOS. 1996/2016

CLUBBED WITH

WRIT PETITION NOS. 1997/2016

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS

COUNSEL APPEARING ON BEHALF OF THE RESPONDENTS

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TABLE OF CONTENTS

TABLE OF ABBRIEVATION………………………………………………………………i
INDEX OF AUTHORITIES……………………………………………………………..iii-iv
STATEMENT OF JURISDICTION………………………………………………………..v
STATEMENT OF FACTS………………………………………………………………vi-ix
STATEMENT OF ISSUES………………………………………………………………….X
SUMMARY OF ARGUMENTS…………………………………………………………..1-2
ARGUMENTS ADVANCED………………………………………………………………3

1. THAT SECTION 124A OF THE INDIAN PENAL CODE, 1860, CONSTITUTES AN

UNREASONABLE RESTRICTION ON THE FREEDOM OF SPEECH AND
EXPRESSION UNDER ARTICLE 19(1)(A) OF THE CONSTITUTION OF
INDIA……………….....................................................................................................3

1.1] That the intention of the legislature behind framing of Section 124Awas not to
take away the right to speech and expression………………………………………3
1.2] That the right to dissent and disagree are provided by section 124A……….4
1.3] That right to dissent or to disagree with the government does not mean
right to excite hatred or disaffection towards the government established by
law…………………………………………………………………………………….7
1.4] That the Section124A is in the interest of ‘sovereignty and integrity of India’,
‘security of the State’, ‘public order’ and ‘incitement to an
offence’………………………………………………………………………………8

2. THAT THE BAN ON PRODUCTION OF CDS IS AN UNREASONABLE

RESTRICTION ON ARTICLE 19(1) (G) OF THE CONSTITUTION OF
INDIA……………………………………………………………………………….12
2.1] That the writ petition is not maintainable in the
High
Court………………………………………………………………………………….12
2.2] That the reasonable restrictions cannot mean blanket ban……………........13

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PRAYER……………………………………………………………………………………19

LIST OF ABBREVIATION

AIR ...................................................................................................... ALL INDIA

REPORTER

SCC ................................................................................................ SUPREME COURT

CASES

HON’BLE ........................................................................................................
HONOURABLE

UOI ............................................................................................................... UNION OF

INDIA

SC ................................................................................................................ SUPREME
COURT

IPC ....................................................................................................... INDIAN PENAL

CODE

HC ....................................................................................................................... HIGH
COURT

EDN...............................................................................................................................
EDITION

COI ............................................................................................... CONSTITUTION OF

INDIA

ART.............................................................................................................................
ARTICLE

US ................................................................................................................. UNITED STATES

BOM. ...........................................................................................................................
BOMBAY

LR .................................................................................................................................. BUS
LR

CRLJ ............................................................................................ CRIMINAL LAW

JOURNAL

IT .......................................................................................... INFORMATION
TECHNOLOGY

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A/Q .......................................................................................................................
ACCORDING

ICCPR .................. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL

RIGHTS

CERD ................. COMMITTEE ON THE ELIMINATION OF RACIAL

DISCRIMINATION

CJA ...................................................................................... CORONERS AND JUSTICE

ACT HRA ...................................................................................................... HUMAN

RIGHTS ACT

U.P .............................................................................................................. UTTAR PRADESH

INDEX OF AUTHORITIES

STATUTES

CONSTITUTION OF INDIA, 1950

INDIAN PENAL CODE, 1860
INFORMATION TECHNOLOGY ACT, 2000

BOOKS, ARTICLES & TREATISES

M.P.JAIN INDIAN CONSTITUTIONAL LAW 7TH EDITION 2014

D.D.BASU COMMENTARY ON CONSTITUTION OF INDIA, 8TH EDITION VOLUME

1, 2, 3&9

RATANLAL & DHIRAJLAL COMMENTARY ON INDIAN PENAL CODE 1860

PSA PILLAI’S CRIMINAL LAW

CONSTITUTION LAW OF INDIA BY- H.M.SEERVAI, 4TH EDITION (VOL.1)

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DIGESTS
ALL INDIA REPORTER
SUPREME COURT CASES

DOCUMENTS REFERRED
THE QUINT JOURNAL
LIVE LAW
NALSAR UNIVERSITY; THE INDIAN JOURNAL OF CONSTITUTIONAL LAW (ISSN
0975-0134)
THE WIRE LAW JOURNAL

WEBSITES REFERRED
MANUPATRA
SCC ONLINE
INDIA KANOON
LEGALLY INDIA

CASES

ARUNGHOSH V. STATE OF WEST BENGAL, (1970) 3 S.C.R. 288

BALWANT SINGH AND ANOTHER V. STATE OF PUNJAB, (1995) 3 SCC 214
BRIJ BHUSHAN VS STATE OF DELHI, (1950) SCR 605
CHINTAMAN RAO V. THE STATE OF MADHYA PRADESH, (1950) S.C.R. 759
DEVIDAS TULJAPURKAR VS STATE OF MAHARASHTRA &ORS., CRIMINAL
APPEAL NO.1179 OF 2010
GAJANANVISHESHWANRVS UNION OF INDIA, 1994 SCC (5) 550 KEDAR
NATH SINGH V. STATE OF BIHAR, AIR (1962) SC 955.
KING-EMPEROR V. SADASHIV NARAYAN, (1947) 74 IA 89.
MAGANBHAI ISHWARBHAI PATEL V. UNION OF INDIA & ANR., AIR 1969 SC 783
NIHARENDU DUTT MAJUMDAR V. EMPEROR, AIR 1942 FC 1.
QUEEN EMPRESS V. JOGENDRA CHUNDER BOSE, ILR 19 CAL 35.
QUEEN-EMPRESS V. BAL GANGADHAR TILAK, ILR 22 BOM 112.
REG. V. ALEXANDER SULLIVAN, (1868) 11 COX CC 44.

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ROMESH THAPPAR VS THE STATE OF MADRAS, 1950 SCR 594

RE ROBERT V. CATTING, (1877) 24 LAW ED 45 (51): 94 US 14
S. RANGARAJAN V. P. JAGJIVAN & ORS, 1989) 2 SCC 574
SUPERINTENDENT, CENTRAL PRISON, FATEHGARH V. RAM MANOHAR LOHIA,
[1960] 2 S.C.R. 821
STATE OF MADRAS V. V.G. ROW, (1952) S.C.R. 597
OUDH SUGAR MILLS LTD. V. UNION OF INDIA, AIR 1970 SC 1070
SAKAL PAPERS (P) LTD. &ORS. V. UNION OF INDIA, [1962] 3 S.C.R. 842
SHREYA SINGHAL VS U.O.I (2015) 5 SCC 1
STATE OF MAHARASHTRA &ANRVS INDIAN HOTEL & RESTAURANTS ASSN,
CIVIL APPEAL NO.2704 OF 2006
WALLACE-JOHNSON V. R, [1940] 1 ALL ER 241.

STATEMENT OF JURISDICTION

The appellants have approached the Supreme Court of India under Article 136 of the
Constitution of India, 1950.
The present memorandum sets forth the facts, contentions and arguments in the present
case.

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STATEMENT OF FACTS

1. The material case arises out of two separate claims: first, a claim by Dharmanad Pover,
a public spirited advocate, for the students of Kamlalal Nohru University (“KNU”) before the
Supreme Court of India against the Union of India; Second, a claim by Laveesta Ketalvad, an
advocate specialising in representing victims of communal violence, for banning the
production and sale of CDs by I Love Trump Limited before the Supreme Court of India
against Gentlemanian Swamy.

DHARMANAND POVER V UNION OF INDIA

I. BACKGROUND

2. Kamlalal Nohru University (“KNU”) is an elite educational institution located in

Delhi, India, that offers, inter alia, post-graduate courses in the liberal arts. The student
politics at KNU has traditionally been dominated by students affiliated to the Championist
Party of India – Farcist (“CPI-F”), a left-leaning political party with communism as its core
ideology. The other significant political presence on the KNU campus is of students affiliated
to the DeshJalao Party (“DJP”), a right-wing political party with a pro-Hindutva agenda.
Verbal spats between rival political camps are common, and there have been instances of
physical violence in the past between CPI-F and DJP affiliated students at KNU. Sanwariya
Kumar, Kabmar Khalid and Kamiban Bhattacharya are CPI-F affiliated PhD scholars at
KNU. Sanwariya Kumar was elected president of the KNU students” council for the
academic year 2016-2017.

3. Every year, certain students at KNU conduct a rally to condemn the occupation of
certain parts of the territory of Kashmir by the Republic of India. This rally has been
conducted every year since 1984, the year of the hanging of TaqboolJatt, a Kashmiri
separatist leader. At the annual rally conducted on February 9, 2016, various slogans were
raised against the tyranny of the Indian state. The slogans were initially about “Azadi” (an
expression commonly understood to connote the struggle of the Kashmiri people against
Indian rule), but the tenor of the slogans soon changed to anti-India chants. It is alleged that
slogans to the effect of “death to India”, “we will wage war against this tyrannical state till it
crumbles” and “we will avenge the murder of Taqbool” were raised. Members of DJP filmed
the entire event and subsequently alerted the police. The police arrived at the KNU campus
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and arrested Sanwariya Kumar, Kabmar Khalid and Kamiban Bhattacharya on charges of
sedition under section 124A of the Indian Penal Code, 1860 (“Section 124A”). They were
subsequently released on conditional bail, and criminal proceedings against them are
currently pending. The CPI-F affiliated students held several rallies subsequently, and
committed themselves to defending their freedom of speech and expression.

II. THE CRITICISM

4. On hearing about this matter, DharmanandPover, a public-spirited advocate, agreed to

represent the students of KNU. He filed a writ petition before the High Court of Delhi under
Article 226 of the Constitution of India, arguing that: (i) the crime of sedition within the
meaning of Section 124A constituted an unreasonable restriction on the right to freedom of
speech and expression set out in Article 19 of the Constitution of India; and (ii) Article 19
protects the freedom of the individual to disagree with state policy and dissent against actions
of the state

5. The High Court disagreed with Mr. Pover’s submissions and upheld the
constitutionality of Section 124A, holding it to be a reasonable restriction on the right to
freedom of speech and expression set out in Article 19. The single judge bench of the High
Court observed: “The thoughts reflected in the slogans raised by some of the students of KNU
who organized and participated in that programme cannot be claimed to be protected as
fundamental right to freedom of speech and expression. I consider this as a kind of infection
from which such students are suffering which needs to be controlled/cured before it becomes
an epidemic. Whenever some infection is spread in a limb, effort is made to cure the same by
giving antibiotics orally and if that does not work, by following second line of treatment.
Sometimes it may require surgical intervention also. However, if the infection results in
infecting the limb to the extent that it becomes gangrene, amputation is the only treatment.”

B. GentlemanianSwamy v. LaveestaKetalvad

I. BACKGROUND

6. GentlemanianSwamy is a Member of Parliament with a strong pro-Hindutva

ideology. He enjoys mass support from various categories of people, particularly members of
the Self-Helping Sods (“RSS”). Gentlemanian routinely writes negatively about various
fellow politicians and members of minority communities, and has in the past filed various
cases questioning transactions involving other politicians.
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7. To propagate his ideology of Hindu superiority, Gentlemanian also runs a flourishing

CD business through his wholly-owned company, I Love Trump Limited, which specialises
in producing and distributing provocative songs and videos targeting minority communities
with explicit threats of mass murder and sexual violence. His CDs are very popular in North
India, and his songs and videos are routinely played at meetings of the RSS.

II. THE CRITICISM

8. Laveesta Ketalvad, an advocate specialising in representing victims of communal violence,

filed a writ petition before the High Court of Delhi under Article 226 of the Constitution of
India, seeking a ban on the production and sale of CDs by I Love Trump Limited. She argued
that the CDs were provocative and sought to create discord between communities, leading to
escalated tension and the outbreak of communal riots, and the production and distribution of
CDs constituted the crime of promoting enmity between communities within the meaning of
section 153A of the Indian Penal Code, 1860. Gentlemanian argued that the right to carry on
any trade or occupation under Article 19 of the Constitution of India protected his right to
produce and distribute CDs. The High Court of Delhi ruled in favour of Laveesta, and held
that the ban on production and distribution of
CDs was a reasonable restriction on Gentlemanian’s right to carry on any trade or occupation.
The single judge bench of the High Court observed: “The respondent is well-known to the
world as a mischief monger. A bare perusal of the literature distributed by him reveals his
evil intentions to heighten animosity and distrust between communities. He advocates for the
killing of all non-Hindus if they do not accept their Hindu ancestry. Such a man must not be
allowed to air his venomous thoughts to the gullible youth of this great nation. Accordingly,
we find that an outright ban on the production and distribution of CDs by I Love Trump
Limited is a reasonable restriction on the respondent’s right to carry out any trade or
occupation.”

III. THE RESULTANT LITIGATION

9. Pursuant to the aforementioned factual matrix, the High Court of Delhi granted
Dharmanand Pover, claiming that section 124A is an unreasonable restriction on the freedom
of speech and expression, a leave to appeal to the Supreme Court and Gentlemanian Swamy,
claiming against the ban on the production of CDs as it constitutes an unreasonable restriction
on the freedom of carry out trade under the constitution ,has moved the Supreme Court after
the single judge bench ruled against him. Both the matters have been clubbed by the Hon’ble
Chief Justice of India.
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STATEMENT OF ISSUES

I. Whether section 124A of the Indian Penal Code, 1860, constitutes an unreasonable
restriction on the freedom of speech and expression under Article 19(1) (a) of the
Constitution of India?

II. Whether ban on production of CDs constitutes unreasonable restriction on the

freedom to carry out any trade or occupation under Article 19(1) (g) of the Constitution of
India?

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SUMMARY OF ARGUMENTS

I. THAT SECTION 124A OF THE INDIAN PENAL CODE, 1860, CONSTITUTES AN

UNREASONABLE RESTRICTION ON THE FREEDOM OF SPEECH AND
EXPRESSION UNDER ARTICLE 19(1)(A) OF THE CONSTITUTION OF INDIA.

The law of sedition clearly provides the right to dissent and to disagree and cannot be said to
infringe the right of freedom of speech and expression, it is argued that : 1.1]the intention of
the legislature behind framing of Section 124Awas not to take away the right to speech and
expression; 1.2] That the right to dissent and disagree are provided by section 124A 1.3] That
right to dissent or to disagree with the government does not mean right to excite hatred or
disaffection towards the government established by law. That the scope of Section 124A is
clear and cannot be said to be arbitrary, vague or wide. Under the constitution of India
freedom provided under article 19(1) (a) is not absolute and have certain restrictions. Such
restrictions are reasonable and exhaustive in nature. There are eight subject matters
mentioned under article 19(2) in the interest of which legislative power has been given to
frame even those laws which restrict the freedom of speech and expression. To this end, it is
argued that: 1.4] the Section124Ais in the interest of ‘sovereignty and integrity of India’,
‘security of the State’, ‘public order’ and ‘incitement to an offence’ and; Without the law of
sedition or Section 124A there would be an anarchy and any state will not be able to function
in a peaceful and democratic manner: that harmonious construction of Section 124A and
article 19(1) (a) is within the ambit of the constitution and is not contradictory to each other.

II. THAT THE BAN ON PRODUCTION OF CDS IS AN UNREASONABLE RESTRICTION ON ARTICLE

19(1) (G) OF THE CONSTITUTION OF INDIA

The claimant filed a writ petition invoking and relying upon various offences under Sec.
153A of the IPC. The said section talks about promoting enmity between different groups on
grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial
to maintenance of harmony. The claimant should, the counsel submits, take recourse in the
procedural law of CrPC and file an F.I.R. as provided under Sec. 154 of the CrPC,1973. For,
any allegation of breach of section 153A IPC entails a criminal prosecution by process
established by law. Suffice it to say that evidence has to be led during the course of such a

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criminal trial. Therefore it is argued that 2.1] The writ petition is not maintainable in the High
Court; 2.2] That reasonable restrictions cannot mean blanket ban.

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ARGUMENTS ADVANCED

I. THAT SECTION 124A OF THE INDIAN PENAL CODE, 1860, CONSTITUTES AN

UNREASONABLE RESTRICTION ON THE FREEDOM OF SPEECH AND EXPRESSION
UNDER ARTICLE 19(1) (A) OF THE CONSTITUTION OF INDIA

1.1] THE INTENTION, MEANING, OBJECT AND PURPOSE BEHIND Section 124A IS NOT TO
TAKE AWAY THE RIGHT TO SPEECH AND EXPRESSION

1. Sedition is nothing but libel (defamation) of the established authority of law, i.e.,
Government. Hence it is called seditious libel in England. Sedition in the ordinary sense
means a stirring up of rebellion against the government. 1 However in law it has a technical
meaning and includes all those acts and practices which have for their object to excite
discontent or dissatisfaction towards the constitution, or government, or parliament to
create public disturbance or to lead to civil war, and generally all endeavours to promote
public discord and disorder.2
2. In England the growth of liberty of speech and expression, particularly with regard to the
criticism of Government, was gradual. The courts began to introduce guiding principles so
as to govern the judges in deciding when an intention to excite ill-will and hostility is
seditious and when it is not.
This statement of the law is derived mainly from the address to the Jury by Fitzerald, J., in the
case of Reg v. Alexander Martin Sullivan3. In the course of his address to the Jury the learned
Judge observed as follows:

"Sedition in itself is a comprehensive term, and it embraces all those practices,whether by

word, deed or writing, which are calculated to disturb the tranquility of the State, and lead
ignorant persons to endeavour to subvert the Government and the laws of the empire. The
objects of sedition generally are to induce discontent and insurrection and stir up
opposition to the Government, and bring the administration of justice into contempt; and
the very tendency of sedition is to incite the people to insurrection and rebellion."

1 Kedarnath v State of Bihar AIR (1962) SC 955.

2 Webster’s Third New International Dictionary (G.C Merriam Co., USA, (1976), ¶ 652.
3
(1868) 11 Cox CC 44.

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3. The crime has thus been described by J. Stephen in these words.

"Section IX. Sedition and Inciting to Disaffection-

Sedition may be defined as conduct which has, either as its object or as its natural
consequence, the unlawful display of dissatisfaction with the Government or with the existing
order of society. The seditious conduct may be by words, by deed, or by writing.”

4. The object and the sole principle of a sedition law is that every state, whatever be the
form of government, has to be armed with the power to punish those who by their conduct
jeopardise the safety and stability of the State or disseminate such feelings disloyalty as have
the tendency to lead to the disruption of the State or to public disorder.
The provision of sedition law under IPC under Section 124A is based on the common law
the purpose of which is as discussed above and that is why this offence, occurs in Chapter VI
of the Indian Penal Code, headed 'Of offences against the State'. This species of offence
against the State was not an invention of the British Government in India, but has been
known in England for centuries.3

1.2.] THAT THE RIGHT TO DISSENT AND TO DISAGREE ARE PROVIDED BY Section 124A

5. The law of sedition as laid down under 124A of the Indian Penal Code states-

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, the Government established by law in India, shall
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.
Explanation 1. The expression ‘disaffection’ includes disloyalty and all feelings of enmity
Explanation 2. Comments expressing disapprobation of the measures of the Government with
a view to obtain their alteration by lawful means, without, exciting or attempting to excite
hatred, contempt or disaffection, do not constitute an offence under this section
Explanation 3. 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.”

3 Kedarnath v State of Bihar AIR (1962) SC 955.

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The following are the essential ingredients4 of the section:

1. Bringing or attempting to bring into hatred; or
2. Exciting or attempting to excite disaffection against the government of India;
3. Such act or attempt may be done by (a) by words, either spoken or written, or (b) by signs
or by (c) visible representation; and
4. The act must be intentional

6. The first case in India that arose under the section is what is known as the Bangobasi
case (Queen-Empress v. JagendraChunder Bose5) which was tried by a Jury before Sir
Comer Petheram, C J. while charging the jury, the learned Chief Justice explained the law to
the jury in these terms:

“Disaffection means a feeling contrary to affection, in other words, dislike or hatred.

Disapprobation means simply disapproval. It is sufficient for the purposes of the section
that the words used are calculated to excite feelings of ill will against the Government and
to hold it up to the hatred and contempt of the people, and that they were used with the
intention to create such feeling.”

7. The language of the section suggests at first blush that any expression of disloyalty or
“disaffection” against the government would amount to sedition without requiring very
much more that is how it has been interpreted in the pre independence India. The famous trial
of BalgangadharTilak678 and Mahatama Gandhi shows the strict and literal interpretation of
the provision.

8. The Court was then required to address a controversy that had divided the bench in
Brij Bhushan vs State of Delhi8 and Romesh Thappar vs The State Of Madras9. In Niharendru
Datt Majumdar v. The King-Emperor9 Maurice Gwyer C.J. had expressly linked sedition and
public order, by holding that “public disorder, or the reasonable anticipation or likelihood of
public disorder, is thus the gist of the offence.” (objective test).

4 KD Gaur, Indian Penal Code text book

5 (1892) ILR 19 Cal 35
6 Q.E. v. Balagangadbar Tilak19 , . I.L.R. (1897) 22 Bom. 112.
7 SCR 605
8 SCR 594
9 AIR 1942 FC 1.

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But in King-Emperor v. Sadashiv Narayan Bhalerao10, this viewpoint was rejected by the
Privy Council, that relied upon Tilak to hold that incitement to violence was not a necessary
precondition towards constituting the crime of sedition. The Hon’ble Court opined that -
observed –“The offence consisted in exciting or attempting to excite in others certain bad
feelings towards the government and not in exciting or attempting to excite mutiny or
rebellion, or any sort of actual disturbance, great or small.”

9. The position has been different in the post-independence India. The SC in the
landmark judgement of KedarNath Singh v State of Bihar11when a challenge was made to the
constitutional validity of the offence of sedition as incorporated in Section 124A of the Indian
Penal Code — held that it preferred to follow the more liberal interpretation of the term
“sedition” as given by the Federal Court in 1942 rather than the pedantic and strictly
“colonial” interpretation of “sedition” rendered in the Privy Council opinion of 1947.

10. The Learned Bench agreed with the judgment of the Federal Court in the Niharendru
Datt121314 case, and also applied the Brij Bhushan14 and the Romesh Thapar15 judgments, thus
opining that: “we propose to limit its operation only to such activities as come within the
ambit of the observations of the Federal Court, that is to say, activities involving incitement
to violence or intention or tendency to create public disorder or cause disturbance of public
peace.”.

11. This particular case, the counsel argues is falling well within the ambit of what jurists,
thinkers and lawyers across the world have defined sedition to be. The counsel would like to
bring to the notice of this Hon’ble Court, lines 6-8 of Para 3 of the Factsheet. Slogans to the
effect of “death to India”, “we will wage war against this tyrannical state till it crumbles” and
“we will avenge the murder of Taqbool” were raised. India’s history has been quite a
tumultuous one, so has the issue of Kashmir. Political “disapproval” might not call for Sec.
124A, but statements inciting violence or with a tendency to create public disorder are very
well punishable. These slogans and the tenor of the protest was nothing but an incitement,

10 (1947) 74 IA 89.
11 AIR (1962) SC 955.
12 AIR 1942 FC 1.
13 SCR 605.
14 SCR 594.

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with an inherent tendency to create public disorder, and the counsel urges this Hon’ble Court
to immediately book the accused for sedition.

1.3.] THAT RIGHT TO DISSENT OR TO DISAGREE WITH THE GOVERNMENT DOES NOT MEAN
RIGHT TO EXCITE HATRED OR DISAFFECTION TOWARDS THE GOVERNMENT ESTABLISHED
BY LAW

12. The section is wrongly construed as to denying the basic right of dissent or
disagreement or criticism as provided by the right to freedom of speech and
expression under the constitution. If we carefully scrutinize the section then it
becomes evidently clear that no such rights have been curbed. It only restricts
such exercise of right to speech and expression which ‘brings or attempts to bring
into hatred or contempt’- many courts have interpreted the meaning of hatred
under this section –Hatred means ill will and contempt means low opinion –which
means the state of mind in relation to the object
Under the constitution of India freedom provided under article 19(1) (a) is not absolute and
have certain restrictions. Such restrictions are reasonable and exhaustive in nature. There are
eight subject matters mentioned under article 19(2) in the interest of which legislative power
has been given to frame even those laws which restrict the freedom of speech and expression.

13. In the case of Brij Bhushan vs State of Delhi16, this very Court held that,

“But the Constitution itself has prescribed certain limits for the exercise of the freedom of
speech and expression and this Court is only called upon to see whether a particular case
comes within those limits. In my opinion, any law which is fully saved by article 19 (2) and
if it cannot be successfully assailed it is not possible to grant the remedy which the
petitioners are seeking here.”

14. In the very famous case of Devidas Ramachandra Tuljapurkar vs State of

Maharashtra & Ors.17,Hon’ble Dipak Misra, J. very sensibly said that :

“We have already opined that freedom of speech and expression as enshrined under
Article 19(1)(a) of the Constitution is not absolute in view of Article 19(2) of the
Constitution. We reiterate the said right is a right of great value and transcends and with
the passage of time and growth of culture, it has to pave the path of ascendancy, but it

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cannot be put in the compartment of absoluteness. There is constitutional limitation

attached to it.”

16
1950 SCR 605.
17
CRIMINAL APPEAL NO.1179 OF 2010.
1.4] THE SECTION 124A IS IN THE INTEREST OF ‘SOVEREIGNTY AND INTEGRITY OF INDIA’,
‘SECURITY OF THE STATE’, ‘PUBLIC ORDER’ AND ‘INCITEMENT TO AN OFFENCE’.

15. It is pertinent to have a comprehensive understanding of what is actually implied by

the term “reasonable” and why such “restrictions” are crucial to be imposed upon the
freedom to exercise the fundamental right of freedom of speech and expression.
“The State has a duty to protect itself against certain unlawful actions and,
therefore, may enact laws which would ensure such protection. The right that
springs from Article 19(1)(a) is not absolute and unchecked. There cannot be any
liberty absolute in nature and uncontrolled in operation so as to confer a right
wholly free from any restraint. Had there been no restraint, the rights and
freedoms may become synonymous with anarchy and disorder15.”

16. Article 19(2) of the Constitution of India lays down-

Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub clause in the interests of the sovereignty
and integrity of India, the security of the State, friendly relations with foreign States, public
order, decency or morality or in relation to contempt of court, defamation or incitement to an
offence.

17. This Hon’ble Court opined in the landmark judgment of Shreya Singhal that –
There are three concepts which are fundamental in understanding the reach of
this most basic of human rights. The first is discussion, the second is advocacy,
and the third is incitement. Mere discussion or even advocacy of a particular
cause howsoever unpopular is at the heart of Article 19(1) (a). It is only when

15 State of West Bengal v. Subodh Gopal Bose AIR 1954 SC 92.

19
ShreyaSinghal vs. Union of India (2015) 5 SCC 1.

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such discussion or advocacy reaches the level of incitement that Article 19(2)
kicks in. It is at this stage that a law may be made curtailing the speech or
expression that leads inexorably to or tends to cause public disorder or tends to
cause or tends to affect the sovereignty & integrity of India, the security of the
State, friendly relations with foreign States, etc.19

18. Preservation of order – (not to disturb law and order) Now freedom of such
amplitude might involve risks of abuse but as pointed out by PatanjaliShastri J., in
Romesh Thapper v. State of Madras20 "the framers of the Constitution may well have
reflected, with Madison who was 'the leading spirit in the preparation of the first
Amendment of the Federal Constitution' that "it is better to leave a few of its noxious
branches to their luxuriant growth, than, by pruning them away, to injure the vigour
of those yielding the proper fruits"21; While conceding the imperative necessity of
freedom of speech and expression in its full width and amplitude, it is necessary at
the same time to remember that the first and most fundamental duty, of every
Government is the preservation of order, since order is a condition precedent to all
civilization and the advance of human happiness. The security of the State and
organized Government are the very foundation of freedom of speech and expression
which maintains the opportunity for free political discussion to the end that
Government may be responsive to the will of the people and it is therefore, essential
that the end should not be lost sight of in an over-emphasis of the means. The
protection of freedom, of speech and expression should not be carried, to an extent
where it may be permitted to disturb law and order or create public disorder with a
view to subverting Government established by law. It is, therefore, necessary to
strike a proper balance between the competing claims of freedom of speech and
expression on the one hand and public order and security of the State on the other.
This balance has been found by the Legislature in the enactment of Section 124A
which defines the offence of sedition for our country

19. This Court noticed as under in S. Rangarajan v. P. Jagjivan&Ors22 at paragraph 45:

“The anticipated danger should not be remote, conjectural or far-fetched. It
should have proximate and direct nexus with the expression. The expression of
thought should be intrinsically dangerous to the public interest. In other words,

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the expression should be inseparably locked up with the action contemplated like
the equivalent of a "spark in a power keg"
20. Sovereignty and integrity of India has always been held to be of utmost
importance by the framers of the constitution and it is undoubtedly the supreme
and the basic tenets of our constitution. Section 124 A protects the sovereignty
and integrity of India by impeding those speeches which are bring or attempt to
bring into hatred or contempt, or excites or attempts to excite disaffection
towards the government established by law in India.

20
950CriLJ1514.
21
Near v. Minnesotta (1930) 283 US 697. 22
(1989) 2 SCC 574.
21. In Arun Ghosh v. State of West Bengal 16, Ram Manohar Lohia's case was referred to
with approval in the following terms:
“It means therefore that the question whether a man has only committed a breach of law
and order or has acted in a manner likely to cause a disturbance of the public order is a
question of degree and the extent of the reach of the act upon the society. The question to
ask is: Does it lead to disturbance of the current of life of the community so as to amount
to a disturbance of the public order or does it affect merely an individual leaving the
tranquility of the society undisturbed?”

22. A Constitution Bench of this Court has stated the law in Kedar Nath Singh vs. State
of Bihar17as under:
"Now the expression 'the Government established by law' has to be distinguished by law'
has to be distinguished from the persons for the time being engaged in carrying on the
administration. 'Government established by law' is the visible symbol of the State. The very
existence of the State will be in jeopardy if the Government established by law is subverted.
Hence, the continued existence of the Government established by law is an essential
condition of the stability of the State. That is why 'section', as the offence in S.124A has
been characterised, comes, under Chapter VI relating to offences against the State. Hence
any acts within the meaning of S.124A which have the effect of subverting the Government
by bringing that Government into contempt or hatred, or creating disaffection against it,
would be within the penal statute because the feeling of disloyalty to the Government
16 (1970) 3 S.C.R. 288.
17 AIR 1962 SC 955, 967.

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established by law or enmity to it imports the idea of tendency to public disorder by the use
of actual violence or incitement to violence."

This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the
duty cast upon it of striking down any law which unduly restricts the freedom of speech and
expression with which we are concerned in this case. But the freedom has to be guarded
against becoming a licence for vilification and condemnation of the Government established
by law, in words, which incite violence or have the tendency to create public disorder.

23. The incident at KNU, the counsel argues has all tendency to disrupt public order, and
is a direct attack on the security of the State. Calling out to the death of the nation,
advocating and supporting separatist ideologies which is one of the most
controversial issues in India, and talking of waging war against the nation is absolute
misuse and abuse of the freedom of speech and must be put to such permissible
restrictions, keeping in mind the interests of the integrity and sovereignty of India.
Educational institutions are a storehouse of ideas and the nation’s talent and skill.
They should not become platform of such extreme incitement. There is a vast
difference between mere political disapproval and such kind of statements against
the very unity of the country, and should not come under the ambit of any sort of
freedom.
Lest it be a sad demise of our country’s ethos.

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II. THAT THE BAN ON PRODUCTION OF CDS IS AN UNREASONABLE RESTRICTION ON ARTICLE

19(1) (G) OF THE CONSTITUTION OF INDIA

24. Article 19(1) (g) provides the right-

“to practise any profession or to carry on any occupation, trade or business”
It is argued that a right to carry on any occupation, trade or business is guaranteed to all
citizens by article 19(1) (g) of the Constitution. The restriction seeking to completely ban the
production and distribution of CDs them from pursuing that trade or business conflicts
therefore with the fundamental right guaranteed under article 19(1)(g) of the Constitution.

2.1] THAT THE WRIT PETITION IN THE DELHI HIGH COURT IS NOT
MAINTAINABLE

25. The claimant filed a writ petition invoking and relying upon various offences under
Sec. 153A of the IPC. The said section talks about promoting enmity between
different groups on grounds of religion, race, place of birth, residence, language, etc.,
and doing acts prejudicial to maintenance of harmony.

26. Section 153A. Promoting enmity between different groups on grounds of religion,
race, place of birth, residence, language, etc., and doing acts prejudicial to
maintenance of harmony.— (1) Whoever—

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(a) by words, either spoken or written, or by signs or by visible representations or otherwise,

promotes or attempts to promote, on grounds of religion, race, place of birth, residence,
language, caste or community or any other ground whatsoever, disharmony or feelings of
enmity, hatred or ill-will between different religious, racial, language or regional groups or
castes or communities.
27. It is settled law that Sec 153A IPC, does not mean that any person who publishes
words that have a tendency to promote class hatred can be convicted under that section. The
words ‘promotes or attempts to promote feeling of hatred’ are to be read as connoting a
successful or unsuccessful attempt to promote feelings of enmity. It must be the purpose or
part of the purpose of the accused to promote such feelings and, if it is no part of his purpose,
the mere circumstance that there may be tendency is not at all sufficient. Intention is the
essential ingredient for getting charged under this section, as held by the Hon’ble Supreme
Court in the case of (Balwant Singh v. State of Punjab). The gist of the offence is the
intention to promote the feelings of enmity or hatred between different classes of people. The
intention to cause disorder or incite the people to violence is sine qua non of the offence
under section 153A and prosecution has to prove prima facie the existence of mensrea on the
part of the accused.
28. Section 153A makes any act which promotes enmity between the groups on grounds
of religions and race etc. or which are prejudicial to national integration punishable. The
purpose of enactment of such a provision was to “check fissiparous communal and separatist
tendencies and secure fraternity so as to ensure the dignity of the individual and the unity of
the nation”. Undoubtedly, religious freedom may be accompanied by liberty of expression of
religious opinions together with the liberty to reasonably criticise the religious beliefs of
others, but as has been held by courts time and again, with powers come responsibility.18

29. The respondent seeks to challenge this contention on the grounds that mere advocacy
of opinions does not amount to promoting enmity and ill will. This Court has held in Balwant
Singh and another vs. State of Punjab26 that mens rea is a necessary ingredient for the
offence under Section 153A. The intention to cause disorder or incite people to violence is
the sine qua non of the offence under Section 153 A IPC and the prosecution has to prove
the existence of mens rea in order to succeed.

18 Ms.Nancy JamshedAdajania v. State Of Maharashtra. on 23 April, 1993

26
1995 3 SCC 214

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30. For this purpose, the claimant should, the counsel submits, take recourse in the
procedural law of CrPC and file an F.I.R. as provided under Sec. 154 of the CrPC,1973. For,
any allegation of breach of section 153A IPC entails a criminal prosecution by process
established by law. Suffice it to say that evidence has to be led during the course of such a
criminal trial.

31. Moreover, on the issue on proving mens rea, the counsel would like to proceed with
its arguments stating that mere speculation or apprehension that an act will lead to damage is
not sufficient reason to impose any penalty or punishment.

32. In re Robert v. Catting,19 it was held that Mandamus is never granted in anticipation
of an omission but only after actual default. In MaganbhaiIshwarbhai Patel v. Union of
India and Anr.,20 Apex Court laid down that a mere apprehension of petitioners that they
would be deprived of their fundamental rights in future is not enough to issue of
mandamus.

33. There is no single instance of violence or communal tension AS A RESULT OF the

production and distribution of CDs of the respondent. As long as his business is not
infringing upon the rights of any other person, no writ petition in either the High Court or the
Supreme Court is justified and/or maintainable. In-fact, the counsel argues that it is the
respondent's right to profession and freedom of speech and expression which are being
denied to him on mere speculation. The writ petition therefore, is not maintainable and is an
infringement to enjoyment of fundamental rights of the respondent that our Constitution
Makers envisaged for the citizens of this nation. Any infringement and danger to the
existence of these rights should be held void and bad in the eyes of law

2.2.] THAT REASONABLE RESTRICTIONS CANNOT MEAN BLANKET BAN

34. Two aspects of freedom should be taken into consideration in this case. Firstly, about
the more superficial “right to practise trade and profession”, and secondly, on a
deeper level, “right to freedom of speech and expression.” With this ‘ban’, evidently
two fundamental rights of the respondent have been violated with impunity. Article
19(6) postulates

19 (1877) 24 Law ED 45 (51): 94 US 14

20 AIR 1969 SC 783

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“reasonable restrictions”, but such a blanket ban on the production of CDs is absolutely
uncalled for and not at all contemplated by Article 19(6).

35. In State of Madras v. V.G. Row,21 this Court said:

"This Court had occasion in Dr. Khare's case to define the scope of the judicial review
under clause (6) of Article19 where the phrase "imposing reasonable restriction on the
exercise of the right" also occurs and expressed the view that both the substantive and the
procedural aspects of the impugned restrictive law should be examined from the point of
view of reasonableness. It is important in this context to bear in mind that the test of
reasonableness, where ever prescribed, should be applied to each, individual statute
22
impugned and no abstract standard, or general pattern of reasonableness can be laid
down as applicable to all cases.”

36. This Hon’ble Court in Gajanan Visheshwanrvs Union Of India,30 quoting from Oudh
Sugar Mills Ltd. v. Union of India,23 said that:

"It must be remembered that right to trade is a guaranteed freedom. That right can be
restricted only by law, considered by the Courts as reasonable in the circumstances. Not
only the law restricting the freedom should be reasonable, the orders made on the basis of
that law should also be reasonable."

37. In Sakal Papers (P) Ltd. &Ors. v. Union of India,24 this Court said:

"It may well be within the power of the State to place, in the interest of the general public,
restrictions upon the right of a citizen to carry on business but it is not open to the State to
achieve this object by directly and immediately curtailing any other freedom of that citizen
guaranteed by the Constitution and which is not susceptible of abridgment on the same
grounds as are set out in clause (6) of Article 19. Therefore, the right of freedom of speech
cannot be taken away with the object of placing restrictions on the business activities of a

21 1952] S.C.R. 597

22 SCC (5) 550
23 AIR 1970 SC 1070
24 [1962] 3 S.C.R. 842

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citizen. A citizen is entitled to enjoy each and every one of the freedoms together and
clause (1) does not prefer one freedom to another. That is the plain meaning of this clause.
It follows from this that the State cannot make a law which directly restricts one freedom
even for securing the better enjoyment of another freedom. All the greater reason,
therefore for holding that the State cannot directly restrict one freedom by placing an
otherwise permissible restriction on another freedom."
The blanket ban on the production of CDs is violating not only the right to trade and business
but also the right to speech and expression.

38. In the case of Municipal Corporation of the City of Toronto v. Virgo(1), Lord
Davey while discussing a statutory power conferred on a Municipal Council to
make byelaws for regulating and governing a trade made the following
observation:
"No doubt the regulation and governance of a trade may involve the imposition of
restrictions on its exercise...... where such restrictions are in the opinion of the public
authority necessary to prevent a nuisance or for the maintenance of order. But their
Lordships think that there is a marked distinction to be drawn between the prohibition or
prevention of a trade and the regulation or governance of it, and indeed a power to
regulate and govern seems to imply the continued existence of that which is to be regulated
or governed."

39. In State Of Maharashtra & Anr v. Indian Hotel & Restaurants Assn., this Court
opined that:
“the main purpose of restricting the exercise of the right is to strike a balance between
individual freedom and social control. The freedom, however, as guaranteed under article
19(1)(g) is valuable and cannot be violated on grounds which are not established to be in
public interest or just on the basis that it is permissible to do so. For placing a complete
prohibition on any professional activity there must exist some strong reason for the same
with a view to attain some legitimate object and in case of nonimposition of such
prohibition, it may result in jeopardizing or seriously affecting the interest of the people in
general. If it is not so, it would not be a reasonable restriction if placed on exercise of the
right guaranteed under article 19 (1)(g).”

40. In the landmark judgment of this Hon’ble Court in Shreya Singhal v. U.O.I33

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“There are three concepts which are fundamental in understanding the reach of this most
basic of human rights. The first is discussion, the second is advocacy, and the third is
incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular
is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the
level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made
curtailing the speech or expression that leads inexorably to or tends to cause public
disorder or tends to cause or tends to affect the sovereignty &integrity of India, the security
of the State, friendly relations with foreign States, etc.”

33
2015 5 SCC 1

41. The counsel argues that the respondent's business or distribution of CDs has left no
trace of incitement of any sort of violence or disruption of public order. It is a form of mere
“advocacy” of his opinion and it is nowhere hinted in either clause (2) or (6) that a total
prohibition or blanket ban is the means to exercise “reasonable restrictions”.
“We cannot curtail fundamental rights of people. It is a precious rights guaranteed by
Constitution,” a bench headed by Justice RM Lodha said, adding “we are a mature democracy
and it is for the public to decide. We are 128 million people and there would be
128 million views. One is free not accept the view of others”. Also the court said that it is a
matter of perception, and a statement objectionable to a person might not be normal to other
person.

42. It is obvious these sections mirror the anxiety of the then Indian government to
maintain peace and harmony in a multi-religious, multi-cultural and multi-lingual nation. One
can understand this anxiety considering the socio-political conditions existing in 1972: the
Bangladesh war had just ended, and the nation was yet to recover from the huge refugee
influx. It was also during that period that regional parties such as Shiv Sena and
AsomGanaParishad were becoming more strident, and religious-cultural organisations like
the RSS and Jamat-e-Islami had become aggressive in their tone and acts. Still, there is no
doubt that the Indian government over-reacted in enacting the draconian IPC sections referred
to above and, later, in imposing the Emergency.

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43. It is true that to be accused under these sections, the “intention” and “result” of the
acts of the accused are crucial. But the problem is that it is almost impossible to concretely
identify either “intention” or “public order” and “morality” as, at best, they can only be
speculative. But what is not speculative is that scores of writers, speakers and thinkers of all
castes, creed, and social positions have suffered, and are suffering, due to these “reasonable
restrictions”

44. The judgment is not sustainable in the eyes of law because it imposes unreasonable
restrictions on the respondent and is taking away his right to practise an occupation as well as
his freedom of speech and expression merely on apprehension. This is not permissible in the
eyes of law in view of the constitutional guarantee under Articles 19(1) (a)& (g) and 19(6).
Such an order, the counsel humbly submits, deserves to be set aside.

45. The counsel would thus like to close its arguments by quoting John Stuart Mill from
his famous essay “On Liberty”:
“… Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of
our life to suit our own character; of doing as we like, subject to such consequences as may
follow: without impediment from our fellow creatures, so long as what we do does not
harm them, even though they should think our conduct foolish, perverse, or wrong.”

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PRAYER

Wherefore in the light of the facts stated, issues raised, authorities cited, and
arguments advanced, it is most humbly prayed before this Honorable Court that it may be
pleased to adjudge and declare:

1. That Section 124A of the Indian Penal Code is constitutional and is a reasonable
restriction on Article 19(1) (a) of the Constitution of India.
2. That Ban on production and distribution on CDs be removed as it is an unreasonable
restriction on the Article 19(1) (g) of the Constitution of India.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good
Conscience.

And for this, the Respondent as in duty bound, shall humbly pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

PLACE : NEW DELHI

DATE: JULY 30, 2016 COUNSEL FOR THE RESPONDENTS

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