You are on page 1of 24

LEX OMNIA MOOT COURT COMPETITION 2016

3RD- 6TH NOVEMBER 2016

BEFORE THE HONBLE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION 1996/2016


DHARMANAND POVERCLAIMANT
V.
UNION OF INDIA.......RESPONDENT

SPECIAL LEAVE PETITION 1997/2016


GENTLEMANIAN SWAMYCLAIMANT
V.
LAVEESTA KETALVAD.RESPONDENT

MEMORIAL SUBMITTED ON BEHALF OF THE CLAIMANT

LEX OMNIA MOOT COURT COMPETITION2016

TABLE OF CONTENTS
TABLE OF ABBREVIATIONS...03
INDEX OF AUTHORITIES..............................................................................................04

Case....04

Books.....05

Acts....05

Article....05

STATEMENT OF JURSIDICTION..................................................................................06
QUESTION PRESENTED................................................................................................07
STATEMENT OF FACTS................................................................................................08
SUMMARY OF PLEADINGS.........................................................................................11
ADVANCED ARGUMENTS...........................................................................................14
1. Whether section 124A of the Indian Penal Code, 1860, constitutes an
unreasonable restriction on freedom of speech and expression under article
19(1)(a) of the constitution of India?.....................................................................14
1.1 Whether sedition can be caused by mere words and speech?..........................14
1.2 Whether action taken by the state appropriate?..............................................16
2. Whether the ban of production of CDs by the I Love Trumph Limited constitutes
an unreasonable restriction on the freedom to carry out any trade or occupation
under Article 19(1) (g) of the constitution of India?..............................................18
2.1 Does bare perusal of the literature distributed by him reveals his evil
intentions to heighten animosity?....................................................................18
2.2 Is the ban an infringement of right to equality?..............................................20
PRAYER...........................................................................................................................21

2|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

TABLE OF ABBREVIATIONS
&

And

Paragraph

AIR

All India Reporter

Anr.

Another

Art.

Article

Co.

Company

Corpn.

Corporation

CPI-F

Championist Party if India Farcist

CPC

Code of Civil Procedure

CrPC

Code of Criminal Procedure

DJP

Desh Jalao Party

Govt.

Government

HC

High Court

Honble

Honourable

Ibid

Ibidium

KNU

Kamlalal Nohru University

Ltd

Limited

No.

Number

Ors.

Others

RSS

Random Self- Helping Sods

SLP

Special Leave Petition

SC

Supreme Court

SCC

Supreme Court Cases

Sec.

Section

V.

Versus

W.P.

Writ Petition

Sec.

Section
3|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

INDEX OF AUTHORITIES

CASES
1. Arup Bhuyan v. State of Assam, (2011) 3 SCC 377
2. Ram Nandan v. State 1959 All 101
3. Niharendu Dutt Mazumdar v. Kings Emperor, AIR 1942 FC 29
4. Kedarnath v. State of Bihar, AIR 1962 SC 955
5. Tara Singh Gopi Chand v. State, 1951 Cri LJ 44
6. S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574
7. Gurjatinder Pal Singh v. State of Punjab, (2009) 3 RCR (Cri) 224
8. Partap Singh v. UT, Chandigarh, Cri Misc No. 11926-M of 1991
9. Sabir Raza v. State, Cri App No. 1434 of 1955
10. Dr Vinayak Binayak Sen v. State of Chhattisgarh, Criminal Appeal No 20 of
2011 & Criminal Appeal No54 of 2011
11. Balwant Singh v. State of Punjab,
12. Indra Das v. State of Assam, Criminal Appeal No. 1383 of 2007
13. Queen Empress v. Jogendra Chunder Bose, ILR (1892) 19 Cal 35
14. Kamal Krishna Sircar v. Emperor, AIR 1935 Cal 636
15. P.J. Manuel v. State of Kerala, ILR (2013) 1 Ker 793
16. Alavi v. State of Kerala, 1982 KLT 205
17. Pankaj Butalia v. Central Board of Film Certification, WP (C) 675 of 2015
18. Sanskar Marathe v. State of Maharashtra, Cri PIL No. 3 of 2015
19. Mohd. Yaqub v. State of West Bengal, (2004) 4 CHN 406
20. State of Assam v. Fasiullah Hussain (2013) 4 GLT 284
4|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

21. State of Rajasthan v. Ravindra Singhi, (2001) 3 WLN 242


22. Shreya Singhal v. Union of India, (2013) 12 SCC 73
23. Ram Manohar v. State of Bihar, AIR 1966 SC 740
24. S.H. Jhabwala v. Emperor, ILR (1933) 55 All 1040
25. Hasan Khan v. State of Bihar, AIR 1951 Pat 60
26. Papnasam Labour Union v. Madura Coats Ltd, AIR 1995 SC 2200
27. AK Gopalan v. State of Madras, AIR 1950 SC 27
28. Maneka Gandhi v. Union of India, AIR 1978 SC 597
29. Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118
30. Brandenburg v. Ohio, 23 L Ed 2d 430 : 395 US 444 (1969).
31. Bilal Ahmed Kaloo V. State of Andhra Pradesh AIR 1997 SC 3483, (1997) 7 SCC 431, (1997) Cr
LJ 4091 (SC).

32. Emperor V. Mohandas Karamchand Gandhi and Shankarlal Ghelabhai Sankar, Session case
No. 45/1922.

33. Reg. V. Alexander Martin Sullivan (1868) 11 Cox's Criminal Cases 44.
34. Reg. V. Aldred (1909) 22 Cox's Criminal Cases 1, p.3
.

BOOKS
1. BLACKS LAW DICTIONARY
2. K.D. GAUR, COMMENTARY ON INDIAN PENAL CODE
3. M.P. JAIN, INDIAN CONSTITUTIONAL LAW
4. P.M.BAKSHI, THE CONSTITUTION OF INDIA
5. PSA PILLAI, CRIMINAL LAW
6. HARI SINGH GOUR, PENAL LAW OF INDIA

5|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

ACTS
1. Constitution of India, 1950
2. Indian Penal Code, 1860
3. Contempt of Court, 1971

OTHER AUTHORITIES

1. M.K. Gandhi, Young India, 15-12-1921, published from Ahmedabad.


2. 43RD LAW COMMISSION OF INDIA

6|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

STATEMENT OF JURISDICTION

It is humbly submitted that the petition invokes the jurisdiction of Honble Supreme
Court of India under Article 1361 of Constitution of India. The present Memorandum sets
forth the facts, contentions and arguments.

Article 136 of Constitution of India read as Special leave to appeal by the Supreme Court (1)
Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made
by any court or tribunal in the territory of India (2) Nothing in clause ( 1 ) shall apply to any judgment,
determination, sentence or order passed or made by any court or tribunal constituted by or under any law
relating to the Armed Forces.

7|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

QUESTION PRESENTED

1. Whether section 124A of the Indian Penal Code, 1860, constitutes an


unreasonable restriction on freedom of speech and expression under article
19(1)(a) of the constitution of India?
1.1 Whether sedition can be caused by mere words and speech?
1.2 Whether action taken by the state appropriate?

2. Whether the ban of production of CDs by the I Love Trumph Limited constitutes
an unreasonable restriction on the freedom to carry out any trade or occupation
under Article 19(1) (g) of the constitution of India?
2.1 Does bare perusal of the literature distributed by him reveals his evil intentions
to heighten animosity?
2.2

Is the ban an infringement of right to equality?

8|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

STATEMENT OF FACTS

A. Dharmanand Pover v. Union of India (Special Leave Petition no. 1996/2016)


I. 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 Desh Jalao 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 as
a President of KNU Students Council for the academic year 2016-2017.
II. 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 Taqbool Jatt, 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 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
9|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

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.
III. On hearing about this matter, Dharmanand Pover, 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.
IV. The High Court disagreed with Mr. Povers 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.
V. However, the High Court of Delhi granted Dharmanand Pover leave to appeal to the
Supreme Court. Hence, the present appeal.
10|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

B. Gentlemanian Swamy v. Laveesta Ketalvad (Special Leave Petition no.


1997/2016)
VI. Gentlemanian Swamy is a Member of Parliament with a strong pro-Hindutva
ideology. He enjoys mass support from various categories of people, particularly
members of the Random 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.
VII. 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.
VIII. 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 Gentlemanians 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
11|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

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 respondents right to carry out any trade or occupation. Hence, the
present appeal.

12|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

SUMMARY OF PLEADINGS

1. SECTION 124A OF THE IPC, 1860, IS AN UNREASONABLE


RESTRICTION ON 19(1)(a)
Yes the Section 124A of the Indian Penal Code is an unreasonable restriction on
freedom of speech. Speech is an integral part of democracy where a person is free
to express himself. Descent against the government should be acknowledged and
must be looked into rather than the person should be accused of incitement of
war. The speech is held to be in purview of sedition if due to it someone is
instigated there has been no such instance. Moreover the state has arrested the
students on the basis of the speech given by the other students about the slogans
to the effect death to India. There is no evidence whether the students arrested
have chanted them. The Supreme Court also in the meantime curtailed its
meaning and limited its application to acts involving intention or tendency to
create destruction, or disorder of law and order, or incitement to violence. The
Supreme Court read down that the offence of sedition in consequence to remove
speech which could be exciting disaffection against the government but which did
not have the tendency to create a disorder or disturbance from within the ambit of
the provision. The judges perceived that if the sedition law were to be given a
more extensive and wider interpretation, it would not survive the test of
constitutionality.2 The precedents prove that mere chanting some slogans cant be
sedition and the incitement to violence was considered an essential ingredient of
the offence of sedition. In the present case the apeallant were mere chanting
slogans and the facts clearly reveals that there was no incitement of violence from
the side of apeallants. Mere chanting slogans like Azadi will not constitute

Kedar Nath v. State of Bihar, AIR 1962 SC 955

13|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

sedition and the expression is not Azadi from India, its against poverty,
hunger, corruption. The effect of the words must be judged from the standards of
reasonable, strong-minded, firm and courageous men, and not those of weak and
vacillating minds, nor of those who scent danger in every hostile point of view.
Raising of some lonesome slogans, a couple of times by two individuals, without
anything more, did not constitute any threat to the Government of India as by law
established not could the same give rise to feelings of enmity or hatred among
different communities or religious or other groups. According to Bhagwati, J.,
Democracy is based essentially on the free debate and open discussion. If
democracy means government of the people by the people its obvious that every
citizen is entitled to participate in the democratic process and in order to enable
him to intelligently exercise his right of making a choice, free and general
discussion of public matters is absolutely essential.3 Even explicit demands for
secession and the establishment of a separate State would also not constitute a
seditious act.4 In Balwant Singh v. State of Punjab5 the Honorable Supreme Court
observed that raising some slogan only a couple of times by the two lonesome
appellants, which neither evoked any response nor any reaction from anyone in
the public can neither attract the provisions of Section 124A. Hence this is an
unreasonable restriction on Article 19(1) (a). In this present case the apeallants
have exercised their fundamental right of expression. According to the
observations made by Kania C.J. and Das J. restriction didnt mean deprivation of
fundamental right.6 The principles and guidelines laid down by the Apex Court
while considering the restriction or constitutionality of any provisions has been
violated7 and the restrictions of fundamental rights are deprivations of the same.

Maneka Gandhi v. Union of India, AIR 1978 SC 597 at 77


Partap Singh v. UT, Chandigarh, Cri Misc No. 11926-M of 1991
5
AIR 1995 SC 1785
6
AK Gopalan v. State of Madras AIR 1950 SC 27
7
Papnasam Labour Union v. Madura Coats Ltd AIR 1995 SC 2200; (1995) 1 SCC 501 15
4

14|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

Section 124A has failed the test of reasonableness8 and is ultra vires against
Article 19 (1) (a).
2. THE BAN OF PRODUCTION OF CDs BY I LOVE TRUMP LIMITED
CONSTITUTES

AN

UNREASONABLE

RESTRICTION

ON

THE

FREEDOM TO CARRY OUT ANY TRADE OR OCCUPATION UNDER


ARTICLE 19(1)(G) OF THE CONSTITUTION OF INDIA.
Yes the ban of production of CDs by I love Trump Limited constitutes an
unreasonable restriction on the freedom to carry out freedom to carry out trade or
occupation under Article 19(1) (g). Bare perusal of the literature cannot be
restriction as it curtails the right to freedom of speech and expression. The CDs
produced has not incited any violence or any communal riots against any
community and thus the ban is unreasonable. There is no reasonable connection
or proximate nexus between the restrictions imposed and the object sought to be
achieved. The ban is arbitrary and excessive in nature. The test of reasonable
restriction cannotes that the limitation imposed on a person in enjoyment of the
right should not be arbitrary or of an excessive nature. The word "reasonable"
implies intelligent care and deliberation, that is, the choice of a course which
reason dictates. Legislation which arbitrarily or excessively invades the right
cannot be said to contain the quality of reasonableness and unless it strikes a
proper balance between the freedom guaranteed in article 19 (1) (g) and the
permitted by clause (6) of article 19, it must be held to be wanting in that quality.9
The CDs promotes the Hindutva ideology and is very popular among the masses
in North India. Hence the ban on it is violative of Article 19(1) (g).

8
9

Ibid
Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118

15|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

PLEADINGS

1.

YES SECTION 124A OF THE IPC, 1860, IS AN UNREASONABLE

RESTRICTION ON ARTICLE 19(1)(a)


(1) Section 124A says that whoever, by words, either spoken or written, or by signs, or
by visible representation, or otherwise, brings or attempt to bring into hatred or contempt,
or excites or attempts to excite disaffection towards the government established by law in
India10
1.1

SEDITION CANNOT BE CAUSED BY MERE WORDS AND SPEECH

(2) In the case of Tara Singh Gopichand v State

11

for the first time the constitutional

validity of Sec124A was put into judicial scrutiny, it was contended that the section goes
against the letter of spirit of art19(1)(a) of the Constitution that guarantees the freedom of
speech and expression. The east Punjab high court declared the section ultra vires to the
constitution as it curtail the freedom of speech and expression in a manner not permitted
by constitution. The court was of the opinion that sec124A has no place in the new
democratic pattern. The same was also held in the case of Ram Nandan v State of Uttar
Pradesh

12

and Parasnath Tripathi v State of Uttar Pradesh it was said that imposed

restriction on the freedom of speech and expression not in the interest of the general
public. Still there have been no changes in the section. The section was made by the
British government to suppress the Indian voice against the government are we still living
in the same scenario? Democracy means that the people are free to express themselves.
But still there has been no change in this draconian rule to democracy. Coming to the

10

The Indian Penal Code, 1860


Tara Singh Gopichand v State AIR 1951 East Punjab 27
12
Ram Nandan v State of Uttar Pradesh, AIR 1959 Cr LJ 128
11

16|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

problem the students use to conduct rally every year since 1984 there has been no
argument ever since then why the police has arrested the students? Also if this is the
opinion of the youth of India it is of greatest concern to the country. There should be a
brief discussion with the students as to why do they have this kind of thinking rather than
putting them in the jail. In the case of Balwant Singh v State of Punjab13the accused
were alleged to have raised some slogans on the day Smt. Indra Gandhi, the then Prime
Minister of India was assassinated in a crowded place. The accused were government
servants prosecution case was that they raised slogans a couple of times, which however
did not, evoke any response from the public. The court held that the police officials read
too much into the slogans and exhibited lack of maturity and sensitivity in arresting the
government servant. This affirms the point that dissent is allowed in a true democracy
under the right to freedom of speech. In the case of Shreya Singhal v Union of Indian14 it
was held that there is difference between advocacy and incitement and it is the only
latter one which could be punished. It clearly suggests that the statement made should
have potential to incite the animosity, heartedness, hostility towards nation etc. So even
advocating for violent overthrow of government would not amount to incitement but
asking people to get prepared to overthrow should active complicity, so it may amount to
incitement to offence. In the case M.L. Sharma v Election Commission15 the apex court
held that a persons speech might qualify as hate speech because individuals are entitled
to their personal views and opinions. In the case Gujatinder Pal Singh v. State of
Punjab16 the Punjab and Haryana High Court quashed the First Information Report that
had been filed against the accused under 124A at a religious ceremony organised in the
memory of the martyrs during Operation Blue Star, the petitioner gave a speech to the
people present the establishment of a buffer sate between Pakistan and India known as
Khalistan. He stated that the Constitution was a worthless/ useless book for the Sikhs

13

Balwant Singh v. State of Punjab, AIR1995


Shreya Singhal v. Union of India, (2012) Cri. W.P. 167 of 2012
15
M.L. Sharma v. Election Commission, (2014)Crl. W.P. 47 of 2014
16
Gujatinder Pal Singh v. State of Punjab, (2009) 3 RCR (Cri) 224
14

17|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

and in case of Anup Bhuyan v State of Assam17 the apex court applied the modern
American test of a clear and present danger, the test require that restriction cannot be
placed on speech unless it is directed to inciting, and is likely to incite imminent lawless
action, the case laid down most prominently in the decision of the Supreme Court of the
United States in Brandenburg case18. In the problem proposed the students were
presenting their thought which has been done since past two decade an d there has been
no one who has been in sighted by these rallies and slogans also the slogans were said in
the heat of moment the student had an impulsive behavior and the slogans were the
outcome of feelings of the students. Even if there was a demand of a separate state in the
slogans they have done no sedition as in the case of Partap Singh v UT, Chandigarh19 it
was held that even explicit demands for the secession and the establishment of a separate
state would also not constitute a seditious act. It is clearly mentioned in the facts that
Sanwariya Kumar was the elected president of the KNU students council so it is just that
he has full faith in democracy and hence should not have been arrested.
1.2

Action taken by the state not appropriate

(3) No the action taken by the state were not appropriate and were taken in urgency were
the police just got to know about the act and arrested the party member who were having
a peaceful protest. The students caught were of left wing and as we know the video was
being made by the person of the right wing this clearly intimidates us about the
conspiracy of the government. How can the police know who were the people in the
protest? This shows that the police have arrested the people under the pressure of certain
political force. Also the government should have discussion with these students as to why
they are saying these statements. The democracy can only evolve from the dissent from
the people. If these voices are suppressed it only shows that the government is just like a
monarchy which will not allow its people to say anything against it. In the article written
by Mahatma Gandhi when he was himself punished under the act he said that section

17

Anup Bhuyan v. State of Assam, (2011) 3 SCC 377


Brandenburg v. Ohio, 23 L Ed 2d 430 : 395 US 444 (1969)
19
Partap Singh v. UT, Chandigarh, Cri Misc No.11926-M of 1991
18

18|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

124A, under which I am happily charged, is perhaps the prince among the political
section of the Indian Penal Code designed to suppress the liberty of the citizens.
Affection cannot be manufactured or regulated to give the fullest expression to his
disaffection; so long as he does not mere promotion of disaffection is a crime: I have
studied some of the cases tried under it; I know that some of the most loved of Indians
patriots have been convicted under that section. I consider it a privilege, therefore, to be
charged under that section.20 This clearly shows that the freedom fighters were also not
happy with this law. Further in the article he has also mentioned that non-cooperation
with evil is as much as is co-operation with the good. We are living in a democratic state
rather we are the largest democracy in the world. Democracy allows us full right to
criticize the government. But the section makes it very easy for a government to stop the
people who are rather helping the government after pointing out the flaws to put behind
the bars. This shows that the independence for which there have been so many battles and
due to this section those battles could not be won are still in continuance and hence the
independence which the freedom fighters fought for is still not achieved. Why does the
government require such acts? If the people are behind the sufferers, the government
must yield or be overthrown. If the people are not with them they have at least the
satisfaction of not having sold their freedom.21 These are the words of Gandhi before
independence this is what he was fighting for. The students here are living in a
democratic country what is the government to say if the people are not happy with their
work? Students are the future to the state what are we showing to the future? What is the
example being set in this case? The court in its judgment has said that this is a kind of
infection22 but it is humbly said in the court that it is only a bruise. Just because of
bruise in a body part we should cut the part or we should foment it with hot water? In the
Case of Kedar Nath23

Sinha, C.J., speaking through the court observed that the

provision of the section read as a whole, along with the explanations, make it reasonably

20

M.K. Gandhi, Young India, 15-12-1921, published from Ahmedabad.


supra note 9 at 14
22
4 of the moot problem
23
Kedar Nath v. State of Bihar AIR 1962 SC 955
21

19|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

clear that the section, aims at rendering penal, only such activities as would be intended,
or have a tendency, to create disorder or disturbance, of public peace by resort to
violence. The explanations appended to the main body of the section make it clear that
the criticism of public measures or comment on government action would be consistent
with the fundamental right of speech and expression. After examining the various
aspect of saving clause (2) of the article 1924 the court said the clause 2 of the article 19
protects the section aforesaid. The expression in the interest of ....public order are
words of great amplitude and are much more comprehensive than the expression for the
maintenance of as observed by this court in the case of Virendra v. State of Punjab25. Any
law which is enacted in the interest of public order may be saved from the vice of
constitutional invalidity. If, on other hand, we were to hold that even without tendency to
disorder or intention to create disturbance of law and order, by the use of words written
or spoken which merely create sedition is complete, then such an interpretation of the
section would make them unconstitutional in view of article 19(1)(a) read with clause 2.
This is exactly what has been done in the above mentioned problem the students slogans
and the rallies have been interpreted to have intention of causing disorder and hence these
students were arrested but the case mention says that this could not be done and hence the
arrest is unconstitutional.
2.

THE BAN OF PRODUCTION OF CDS BY THE I LOVE TRUMPH

LIMITED CONSTITUTES AN UNREASONABLE RESTRICTION ON THE


FREEDOM TO CARRY OUT ANY TRADE OR OCCUPATION UNDER
ARTICLE 19(1)(g) OF THE CONSTITUTION OF INDIA
(4) The article 19(1) (g) says all citizen shall have the right to practice any profession,
or to carry on any occupation, trade or business.26

24

The Constitution of India, 1950


Virendra v. State of Punjab, AIR 1957 SC 896(899)
26
supra note 18at 16
25

20|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

1.

No bare perusal of the literature distributed by him does not reveasl his evil

intentions to heighten animosity.


Gentlemanian Swamy is a member of parliament which shows he is a public figure and
the public is happy by the conduct of the person. Also the CDs are subject to some price
and are not just they freely distributed. It has also been proposed in the problem that the
CDs are very popular in the North India and there has been no violence due to the
ideology. Also the difference in the success of the CDs in other part of India shows that it
is clearly a choice of the people to buy or not to buy the CDs and no one is forced to buy
and believe in the ideology. So the ban on CDs on the condition that they are provocative
and sought to create animosity between communities within the meaning of section 153A
is vague as the CDs have been very popular in the north India and there are no instance of
communal violence in these parts. Sec. 153A talks about promoting enmity between
different groups on the ground of religion, race, place of birth, residence, language, etc.
and doing act prejudicial to maintenance of harmony.27 It is clear that the CDs have
already been released and harmony is not disturbed also it is a restriction on article 25
and 26 of constitution of India which talks about the freedom of conscience and free
promotion, practice and propagation of religion and freedom to manage religious affair.
Also the ban cannot come under the purview of sec 295A which says that deliberate and
malicious acts, intended to outrage religious feelings of any class by insulting its religion
or religious beliefs28 in this section there has been a talk about intend the CDs are
already in the market and have been liked buy the north Indian people and there has been
no violence in north or any other part. Also the CDs are played in the meeting of RSS
Under sec 296 it is mentioned that whoever voluntarily causes disturbance to any
religious assembly lawfully engaged in the performance of religious worship or religious
ceremonies shall be punished with imprisonment. This shows that the gathering of RSS
and playing of videos which are in favour of the Hindu does not constitutes to cause any

27
28

The Indian Penal Code, 1860


Ibid at 15

21|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

animosity in the mass. Also sec 505 of the Indian Penal Code says that whoever
publishes or circulates any statement, rumor or report with intent to cause or likely to
cause, fear or alarm in the public this is also not the case in the problem. In Master Tara
Singh Case29 it was said that 153A imposed restriction on the fundamental right set-out in
article 19(1)(a). This also shows how the government is trying to impose restriction on
certain group to make happy certain other society of the country. Also the high court has
said that he is a mischief monger and talks about his evil intention30 the court is well
aware that the said man he is calling a mischief monger is the member of parliament he
is having a huge mandate behind him calling him a person of evil intention is a question
on people choice. This also shows that the personality of person is that of a helping
nature. This is every much equivalent to the case presented earlier where the students
were held liable for their peaceful protest and also the protest did not cause any sedition.
Also a fair and rational criticism of religious tenets, couched in the restrained language,
does not affect section 153A. In the case Peoples Union for Civil Liberties v. Union of
India31 it was held that freedom includes the right to express ones conviction and
opinions freely, and is ensured by the freedom of circulation. So the ban on circulation is
clearly a ban on the fundamental right of the aggrieved and so on the person who are
helping their religion and propagating the religion by fair means where they propose the
things that their religion allows.
2. YES THE BAN IS AN INFRINGEMENT OF RIGHT TO EQUALITY
Yes the ban is the infringement of right to speech and expression. In the earlier case the
students were making the speech against the country which is the largest democracy and
still let off but when it comes to the religious view the judgment is harsh and does not
allows a single case of acquittal. So the judgment seems to be an appeasement to the
minority. This curtails the right to equality where it is said that the state shall not deny
any person equality before the law or the equal protection of the laws within the territory

29

Tara Singh v State of Punjab, AIR 1951 Punjab 27


8 of the moot problem
31
Peoples Union for Civil Liberties v. Union of India, (1997) 1 SCC 301
30

22|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

of India. In this there has been no mention of the ideology which has caused an ambiguity
due to which we are seeing such type of cases.

23|P a g e

LEX OMNIA MOOT COURT COMPETITION2016

PRAYER FOR RELIEF

In the light of the authorities cited, indictments issued and the arguments, it is most
respectfully prayed before this Honble Court that it may adjudge and declare that:
1. The Sec.124A of the Indian Penal Code should be repealed.
2. Article 19(1) (a) should be made more powerful by not curtailing it with the help
of Sec124A.
3. Sanwariya Kumar, Kabmar Khalid and Kamiban Bhattacharya should be
acquitted as there is no evidence whether they chanted the slogans.
4. Article 19(1) (g) should not be curtailed in cases where there is no harm caused
even after the flourishing of opinions.
5. Article 25 and Article 26 should be given an upper hand in religious sentiment
cases.
6. Article14 should also be interpreted as to right of equality of ideology.

And pass any order that the Honble court may deem fit in the interest of equity,
justice and good conscience.
And for this act of kindness, the counsel for the claimant shall duty bound forever
pray.

Sd/(Counsel for Claimant)

24|P a g e