Memorandum On Behalf of Petitioner
Memorandum On Behalf of Petitioner
BIRLA GOA
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RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COMPETETION,2017
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TABLE OF CONTENTS
S.NO
TABLE OF ABBREVIATIONS
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All. Allahabad
Anr. Another
Bom. Bombay
Cal. Calcutta
Dy. Deputy
Edn. Edition
Hon’ble Honorable
i.e. That is
Ibid Ibidem
Political Rights
ILR Indian Law Reporter
Ker Kerala
Ltd. Limited
No. Number
Ori. Orissa
Ors. Others
Pat. Patna
Punj. Punjab
QB Queen’s Bench
Ran. Ranchi
S. Section
SC Supreme Court
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ss. Sections
V. Versus
& And
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INDEX OF AUTHORITIES
A. CASES CITED
1995 SC 1785
4. Baragur Ramchandrappa V. State of Karnataka 1998 Cri LJ 3639
5. Bennett Coleman & Co. &Ors. V. Union of India &Ors. [1973] 2 S.C.R. 757 at 829
6. Bijoe Emmanuel & Ors V. State Of Kerala 1987 AIR 748
7. Bilal Ahmad Kaloo V. State of Andhra Pradesh 1997 Cri.LJ 4091 (SC)
8. Chintaman Rao V. State of M.P. AIR 1951 SC 11
9. CT Prim V. State AIR 1961 Cal. 177
10. Dr. VinayakBinayak Sen 2 Pijush V. State Of Criminal Appeal No 20 of
Chhattisgarh 2011
11. Emperor V. Hari Singh (1905) 28 All. 100
12. Gopal Vinayak Godse V. State of Maharashtra AIR 1971 Bom. 56
13. Gopal Vinayak Godse V. State of Maharashtra (1969) 72 Bom. LR 871
14. Gurjatinder Pal Singh V. State of Punjab (2009) 3 RCR (Cri) 224
15. Hanif Qureshi V. State of Bihar AIR 1958 SC 731
16. Har Shankar V. dy. Excise & Taxation Commissioner (1975) 1 SCC 737
17. Harnam Das V. State of UP (1957) 1 All. 528
18. Indra Das V. State of Assam (2011) 3 SCC 380)
19. John Calder Publications V. Powell 1965, 1 QB 509
20. Kali Charan Sharma V. Emperor AIR 1927 All. 649
21. Kedarnath V. State of Bihar 1962 AIR 955
22. Kherode Chandra Roy Chowdhury V. Emperor (1911) 39 Cal 377
23. King Emperor V. Sadashiv Narayan Bhalerao (1944) 46 BOMLR 459
24. King V. Nga Shwe Hpi AIR 1939 Ran 199
25. Knuller Ltd. V. DPP 1973 AC 435 House Of
Lords
26. LIC V. Manubhai D. Shah AIR 1993 SC 171
27. Maneka Gandhi V. Union of India 1978 AIR 597, 1978 SCR
(2) 621
28. Maniben Liladhar Kara V. Emperor AIR 1941 Oudh. 33 at 41
29. Miller V. California 413 U.S. 15
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35. Niharendu Dutt MajumdarV. King Emperor AIR 1939 Cal 703
36. Ozhair Hussain V. Union Of India Air 2003 Del 103
37. Papnasam Labour Union V Madura Coats Ltd, 1995 AIR 2200, 1995 SCC
(1) 501
38. Queen Empress V Bal Gangadhar Tilak ILR (1898) 22 Bom. 112.
39. Ramnandan V. State AIR 1959 All 101
40. Ranjit D. Udeshi V. State Of Maharashtra AIR 1965 SCC 882
41. Rev. Stanislaus V. State of Madhya Pradesh AIR 1977 SC 908
42. Romesh Thappar V. Union of India [1950] S.C.R. 594
B. BOOKS REFERRED
S. No. NAME
S.R.Roy
2. Indian Penal Code – RatanLal and DheerajLal Volume 1
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Edtion
8. Commentary On Constitutional Law, Durga Das Basu, Volume 3, 2007
Edition
9. Shorter Constitution of India, Durga Das Basu, Volume 1, 2010, 14th Edition
10. Human Rights in Constitutional Law, Durga Das Basu, 2008, 3rd Edition
11. Universal’s Criminal Manual, 2014
12. Commentary on the Constitution of India, Durga Das Basu, 1989
13. Introduction to the Constitution of India, Durga Das Basu, 2002 Edition
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D.ONLINE DATABASES
1. Manupatra www.manupatra.com
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STATEMENT OF JURISDICTION
The Petitioner have approached this Hon’ble Court under Article 321 of the
Constitution. The writ petition has been accepted.
1
Article 32 of The Constitution of India:
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction all or any of
the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution. 2
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STATEMENT OFISSUES
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STATEMENT OF FACTS
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“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 rightto 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
givingantibiotics orally and if that does not work, by following second line of
treatment. Sometimesit may require surgical intervention also. However, if the
infection results in infecting the limbto the extent that it becomes gangrene,
amputation is the only treatment.”
6. However, the High Court of Delhi granted Dharmanand Pover leave to appeal
to the Supreme Court. Hence, the present appeal.
B. Gentlemanian Swamy v. Laveesta Ketalvad (Special Leave
Petition no. 1997/2016)
7. Gentlemanian Swamy is a Member of Parliament with a strong pro-Hindutva
ideology. He is a well known political figure who enjoys mass support from
various categories of people, particularly members of the RandomSelf-
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SUMMARY OF ARGUMENTS
It is humbly submitted that section 124A of Indian Penal Code, 1860 constitutes an
unreasonable restriction to freedom of speech and expression under article 19(1)(a)
of the Constitution of India and further the does not fall within the ambit of section
124A .
Every citizen has the right to Freedom of Speech and expression and the same can be
restricted by imposing reasonable restrictions .The offence of sedition has an essential
requirement of disturbance of public order or incitement to violence. The alleged
slogans which were raised by the students did not lead to any public disorder or
incitement to violence and thereby arrest of these students by the police by applying
section 124A of IPC is an unreasonable restriction on the Freedom of Speech and
Expression granted under Article 19(1)(a) of the Constitution of India . Even the High
Court has failed to acknowledge the fact that the alleged offence did not per se fall
within the ambit of Section 124A of IPC.
Itis submitted that the decision of the H.C. in banning the production and distribution
of I Love Trump Limited does not constitute an unreasonable restriction as it is well
within the scope of Article 19(6) and it is further in violation of Sections 153A, 292,
293, 295A of the Indian Penal Code1860, Article 21, 25,38 &51A, (e), (f) of the
Constitution of India, and Section 95 of Criminal Procedural Code, 1973.
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The content of Mr. Swamy’s CD’s is of such a nature that it is in violation of several
provisions of law, due to which, the High Court was correct in banning the production
and distribution of the same. The CD’s contain explicit threats of murder and sexual
violence towards minorities if they do not accept Hinduism as their religion, which is
detrimental to communal peace, societal interest, violative of freedom of trade and
profession, right to dignity, right to religion which may be found in Articles
19,21,25,38 and 51A of the Constitution of India, as well as of a nature to encourage
communal violence, hurt religious sentiments and of an obscene and/or corrupting
nature as under Sections 153A, 292,293, 295A, 298 of the Indian Penal Code 1860
and Section 95 of Code Of Criminal Procedure, 1973.
In light of the same, it is contented that the decision of the High Court was correct as
there has been no infringement of Mr. Swamy’s right, under Article 19(1)(g), for the
banning of his CD business was a reasonable restriction.
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ARGUMENTS ADVANCED
It is humbly submitted that section 124A of Indian Penal Code, 1860 constitutes an
unreasonable restriction to freedom of speech and expression under article 19(1)(a).
1. As per the facts, Sanwariya Kumar, Kabmar Khalid, and Kamiban Bhattacharya
were accused of allegedly raising Anti India Chants and Slogans of Azaadi. It is
imminently clear that their acts did not create any Public Disorder or any
incitement of violence, nor do they fall within the ambit of Section 124A of
IPC,1860.
Freedom of speech, considered the basic freedom by most philosophical thinkers,
consists of several facets, including the right to express one’s opinion unhindered,
unfettered by the fear of retribution. It is one of the most basic elements for a
healthy, open minded democracy and is foundation of any democratic society2.
2. Under Indian Constitution Freedom of speech and expression has been guaranteed
under Article 19(1)(a) Article 19(1)(a) reads as :“Protection of certain rights
regarding freedom of speech, etc.—All citizens shall have the right— (a) to
freedom of speech and expression.”
2.1 The freedom of speech under Article 19(1)(a) includes the right to express one’s
views and opinions at any issue through any medium. It thus includes the right to
propagate opinion. The Preamble of the Constitution of India inter alia speaks of
liberty of thought, expression, belief, faith and worship.
As in RomeshThappar V. Union of India3, Justice Patanjali has rightfully held
that 19(1)(g) is the very basis and essence of the constitution and our democracy
which is further supported by Maneka Gandhi V. Union of India4,Bhagwati
J.,has emphasized on the significance of the freedom of speech & expression in
these words:“Democracy is based essentially on free debate and open discussion,
for that is the only corrective of government action in a democratic set up. If
2
Union of India V. Motion Picture Association , AIR 1999 SC 23345
3
[1950] S.C.R. 594
4
1978 AIR 597, 1978 SCR (2) 621
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democracy means government of the people by the people, it is obvious that every
citizen must be entitled to participate in the democratic process and in order to
enable him to intelligently exercise his rights of making a choice, free & general
discussion of public matters is absolutely essential.”The right of free speech is
absolutely indispensable for the preservation of a free society in which
Government is based upon the consent of an informed citizenry and is dedicated
to the protection of the rights of all, even the most despised minorities.5
2.2 In a separate concurring judgment Beg,J. said in Bennett Coleman & Co. &Ors.
V. Union of India &Ors.6,that the freedom of speech and of the press is the Ark
of the Covenant of Democracy because public criticism is essential to the working
of its institutions.In S. Khushboo V. Kanniamal & Anr.7, this Court stated that
the importance of freedom of speech and expression though not absolute was
necessary as we need to tolerate unpopular views.
4. It is submitted that The Constitution of India does not define the word sedition.
Section 124-A of the Indian Penal Code defines the offence of ‘Sedition’ and
provides as follows “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
5
Speiser V. Randall, 357 US 513.
6
[1973] 2 S.C.R. 757 at 829 ; See also Sakal Papers (P) Ltd. & Ors. V. Union of India, (1962) 3 S.C.R.
842 at 866; RomeshThappar V. The State Of Madras,1950 AIR 124
7
(2010) 5 SCC 600(Para 45)
8
ShreyaSinghal V. Union of India AIR 2015 SC 1523
9
Article 19(2) The Constitution of India, 1950
10
LIC V. Manubhai D. Shah, AIR 1993 SC 171
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Governmentestablished by law in India11, As per the Indian law, sedition is any
form of speech, action, writing that incites hatred against the established order and
harms the systematic peace of the country.12
4.1 With increasing incidents of mutiny and the rising wave of nationalism, the
offence of sedition was incorporated by the British Government under Section
124A of the IPC.The main object to bring in such a tool was to suppress the
voices against the British, not to serve the people but to rule. Bal Gangadhar Tilak
was tried under sedition law, was convicted and sentenced to six years
imprisonment to Mandalay jail13.
Mahatma Gandhi was tried in 1922 for his articles published in the
magazine Youth India. Mahatma Gandhi said that ‘the section 124-A under which
he was charged is perhaps the prince among the political sections of the IPC
designed to suppress the liberty of the citizen’14.
4.2 In Niharendu Dutt MajumdarV. King Emperor 15, The Federal Court held that
“public disorder or the reasonable anticipation or likelihood of public disorder is
the gist of the offence”. The court was of the view that sedition implies resistance
or lawlessness in some form. In King Emperor V. Sadashiv Narayan
Bhalerao16 ,the Privy Council overruled the decision of the Federal Court and
held that excitement of feelings of enmity to the government is sufficient to make
one guilty under Section 124A of IPC.
4.3 A prominent objection to the inclusion of sedition as an exception to the freedom
of speech and expression under Article 19(2) was raised by SardarHukum Singh 17.
He also criticised the validation of laws on the ground that they were “in
the interest of public order” or undermined the “authority or foundation of the
state” as classifications that were too vague.18. Most vocal opposition to the
inclusion of the term sedition came from Mr. K.M. Munshi 19.The term ‘sedition’
11
Section 124A of Indian Penal Code,1860
12
Kedarnath V. State of Bihar , 1962 AIR 955
13
Queen Empress V. Bal Gangadhar Tilak, ILR (1898) 22 Bom. 112.
14
A.G. Noorani Indian Political Trials: 1775-1947, page no. 235
15
AIR 1939 Cal 703
16
(1944) 46 BOMLR 459
17
Constituent Assembly Debates on December 7, 1948,
18
Constituent AssemblyDebates on December 7, 1948
19
Constituent Assembly Debates on 1 December, 1948 Part I Volume VII
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Parliamentary Speech on the Bill relating to the First Constitution of India Amendment 1951
21
The Constitution (First Amendment) Act, 1951
22
AIR 1959 All 101
23
1962 AIR 955
24
1962 AIR 955
25
Sanskar Marathe V. State of Maharathra, Cri.PIL 3-2015
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It is submitted that the charges of sedition against the accused have failed to stand
up to judicial scrutiny. Charges for the offence of sedition today are framed with a
view to instil fear and to scuttle dissent and are in complete violation of the scope
of sedition laid down Kedarnath’s case26.
4.6 In 1979, India ratified the International Covenant on Civil and Political Rights
(ICCPR), which sets forth internationally recognized standards for the protection
of freedom of expression27. However, misuse of sedition law under Section 124A
and arbitrary slapping of charges continue to restrict speech in ways inconsistent
with ICCPR.
4.7 It is acknowledged that the words which directly provoke violence or which
directly threaten the maintenance of public order may deserve censure under the
restrictions mentioned in Article 19(2) of the Indian Constitution 28. However, that
is not what the misapplication of sedition law seeks to achieve. The present
practice of misapplication of sedition law aims to crush all opposition to the ruling
political party. Its regular use continues to hamper freedom of speech and
expression in the country.
4.8 It is submitted that though a very small number of sedition cases leads to actual
conviction,it causes harassment of individuals till the time judgment comes out.
There have been many cases :
(i) Prof. Binayak Sen, a civil right activist was arrested and convicted of the
offence of sedition in 2007 for having links with naxalites. Prof. Sen was
granted bail on an appeal filed before Chhattisgarh HC.29
(ii) In November 2010, noted writer and activist Arundhati Roy was charged
with Sedition by Delhi Police for allegedly having made anti-India
remarks at an event organized in Kashmir on 21.10.2010.
(iii) In September 2011 Anti-Nuclear activist S.P. Udayakumar, faced
several cases of sedition for protesting against Kudankulam Nuclear power
Plant in Tamil Nadu.
(iv)In September 2012 Aseem Trivedi, a noted political cartoonist was
arrested on the 09.09.2012, based on a political activist’s complaint that
26
Kedarnath V. State of Bihar , AIR 1962 SC 955
27
Artcile 19 of International Covenant on Civil and Political Rights
28
Article 19(2) of The Constitution of India, 1950
29
Dr VinayakBinayak Sen 2 Pijush ... V. State Of Chhattisgarh, Criminal Appeal No 20 of 2011
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4.10 With reference to facts of the present case32 in Gurjatinder Pal Singh V.
State of Punjab33, Punjab & Haryana HC quashed the FIR filed against him under
Section 124A of the IPC, where in a religious ceremony organised in memory of
the martyrs during Operation Blue Star, the petitioner gave a speech to the people
present advocating the establishment “Khalistan”. He stated that the Constitution
was a “worthless/useless” books for the Sikhs. The supporters of the petitioner
then raised aggressive slogans and naked swords were raised in the air. The High
30
Sanskar Marathe V. State of Maharashtra , Cri.PIL 3-2015
31
National Crime Records Bureau (NCRB) Report, 2014
32
Moot Proposition (Para 2)
33
(2009) 3 RCR (Cri) 224
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Court cited the decision of the SC in Balwant Singh V. State of Punjab34, where
it was held that the mere casual raising of slogans a couple of times without the
intention to incite people to create disorder would not constitute a threat to the
Government of India.
The court have acquitted the citizens accused of the charge of sedition on the
grounds that the prosecution had failed to produce sufficient evidence to prove
that they had committed a seditious act35.
4.11 In the light of cases mentioned under 4.8, sedition law is used to threaten
civilians with legal action. The Law is misunderstood by the Police Authority, in
carrying out arrests and slapping charges, rarely have they given respect to the
restriction of ‘incitement to violence or threat of public disorder’.36 In spite of the
fact that there being no imminent threat, even then it is used to curb the right to
free speech and expression.
4.12 The foundational reason adopted by the SC for validating the provision was
the retention of the sedition law in England at that time 37.That law of sedition was
abolished in Britain in 2009,38 as it was found untenable in the light of the Human
Rights Act, 1998. The emphasis on free speech by the European Convention on
Human Rights (ECHR) accelerated the process of expulsion of sedition laws from
many democracies. New Zealand followed suit after noting that in the United
States, Canada and Australia, the law is practically in disuse. Therefore, it is clear
that the British legislation is no longer a good law in the legal or political sense.
5. A law like Sedition is a colonial law and has no place in a country like India.
When we construe Article 19(1)(a) and Section 124A of IPC together it is made
out that the current application of law goes way beyond its ambit.
5.1 This law creates an unreasonable restriction on the fundamental right to speech
and expression. This right of freedom to speech and expression granted by Article
19(1)(a) is not completely unchecked.Article 19(2) empowers the state to place
restriction on the fundamental right of speech and expression in the interest of:-
34
(1995) 3 SCC 214 : AIR 1995 SC 1785
35
Indra Das V. State of Assam ((2011) 3 SCC 380) ; State of Assam V.FasiullahHussain (2013) 4 GLT
284. ; State of Rajasthan V. RavindraSinghi (2001) 3 WLN 242
36
Sanskar Marathe V. State of Maharashtra , Cri.PIL 3-2015
37
Kedarnath V. State of Bihar , AIR 1962 SC 955
38
Coroners and Justice Act, 2009
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Sovereignty and Integrity of India ,The Security of the State, Friendly relations
with foreign states, Public order, Decency or Morality, Contempt of Court,
Defamation, Incitement to an offence.
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from the person for the time being engaged in carrying on the administration 43.
Thus India and Government cannot be equated.
7. In the alternative, the present appeal before this Hon’ble court arises out of
Special Leave to appeal from the decision of High court. Prima facie the case is
not made out due to the absence of any public disorder or imminent threat. Even
the judiciary have failed to take notice of this and has convicted the accused for
the crime of sedition.
Itis submitted that the decision of the H.C. in banning the production and distribution
of I Love Trump Limited does not constitute an unreasonable restriction as it is well
within the scope of Article 19(6) and it is further in violation of Sections 153A, 292,
293, 295A of the Indian Penal Code1860, Article 21, 25,38 &51A, (e), (f) of the
Constitution of India, and Section 95 of Criminal Procedural Code, 1973.
1. As per The Constitution of India, Article 19(1)(g) confers upon the citizens the
fundamental right to engage in any profession, trade or business. it is important to
take into account that every fundamental comes with reasonable restrictions, and
so Article 19(6)44, statesthe freedom is available till such time that it does not
hamper the “interests of the general public”, which is an expression commonly
used to connote that an individual’s activity, shall be restricted by the State in case
they are endangering the health, life and the safety of public. It is to be borne in
mind that the term ”public 45” is a collective word that is used to represent the
aggregate of all the residents of a nation, i.e., it unquestionably includes minority
communities as well. Therefore the restrictions under Article 19 have to be
43
Kedarnath V. State of Bihar , AIR 1962 SC 955
44
Constitution of India, 1950
45
Black’s Law Dictionary, available at http://thelawdictionary.org/public/
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considered from the standpoint of the public46, and not from the point of view of
individual persons upon whom the said restrictions have been imposed. In simpler
terms, it refers to welfare of the public being given superiority over the welfare of
a private individual or company.
1.1. Further, the Universal Declaration Of Human Rights, 1948, to which India is
a signatory, states under Article 29(2) that, in the exercise of his rights and
freedoms, everyone shall be subject only to such limitations as are determined
by law solely for the purpose of morality, public order and the general
welfare in a democratic society.47
1.2. It is therefore apparent, that across the world, the place of interest and welfare
of the publicis placed above an individual person’s fundamental right. India
too upholds the same :
Har Shankar V. Dy. Excise & Taxation Commissioner 48, laid down that
freedom of trade can be completely curtailed in certain circumstances, depending
on the nature of the mischief to be remedied. Similarly, inNarendra V. Union Of
India49, the SC held that as under Clause (6), restriction can be either partial or
can be a total prohibition upon a business activity, and the “nature of the
business” would be taken to be an important element in determining how far the
restriction may go.
1.3. In the case at hand, mischief in question refers to attacking the minorities’
right to dignity and religion, circulating obscene content, creating enmity between
different groups on the basis of religion and hurting religious sentiments, all of
which, taken together, are a gross transgression of interest of the general; public,
and cannot under any circumstance be justified.
In State of Gujarat V. MirzapurMotiKureshiKassabJamat 50it was stated
“restriction” under Article 19(6) includes prohibition. The standard for judging
reasonability of restriction, amounting to prohibition remains the same, excepting
that a total prohibition must also satisfy the test - a lesser alternative would be
inadequate. Whether restriction amounts to a total prohibition is a question of fact
46
NALSAR Pro, Chapter 4
47
United Nations’ Universal Declaration Of Human Rights, 1948 see also; See Also Constitution of
Japan, 1947, Article 22 see also; Swiss Constitution, Article 36(2)
48
(1975) 1 SCC 737
49
AIR 1960 SC 430 ; see also Sushila Mill v State Of Orissa, (1995) 5 SCC 615
50
AIR 2006 SC 212
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which will have to be determined with regard to the facts and circumstances of
each case, the ambit of the right and the effect of the restriction upon the exercise
of that right.
1.4. In the given case, partial prohibition would be an inadequate restriction as the
business is primarily that of producing and distributing the CD’s in question 51, i.e.,
it specializesin the content being circulated, which is grossly detrimental to public
order and the interest of the general public.
2. Other than Article 19(6), the CD’s also violate Article 25 52, which discusses one’s
right to profess any religion of his choice, “25. Freedom of conscience and free
profession, practice and propagation of religion”. It is thus clear that every citizen
has the right to choose his own faith and profess it. Be that as it may, no
fundamental right is known to be an absolute right, therefore, Article 25 is subject
to certain restrictions expressly made subject to public order, morality and health.
Thus, it cannot be predicted that freedom of religion can have no bearing
whatsoever on the maintenance of public order.
2.1. To come back to the facts of the case, the content on the CD’s in circulation
clearly infringes this right as it “advocates for the killing of all non-Hindus if they
do not accept their Hindu ancestry” 53 which shows Mr. Swamy intended to
violate the rights of the minority communities with respect to religion. The mala
fide intention behind the production of such harsh content is clearly forcible
conversion, which has been held to be in violation of Article 25 as per
ReV.Stanislaus V. State of Madhya Pradesh 54, which states that forcible
conversion amounts to disturbance of public order and raises communal passions,
which is likely to affect the community at large.
2.1.1. Upon scrutiny of the CD’s they can additionally be found to violate
Article 21, for the ideas being propagated strip the minority citizens of
their beliefs and identities, and force upon them, an alien religion, which
is a credible, violation of Article 21, in terms of right to dignity, as was
held in the case of Bijoe Emmanuel &Ors V. State Of Kerala 55.The
same is being done via the CD’s.
51
Moot Proposition, Page3, Paragraph 7
52
Constitution Of India, 1950
53
Moot Proposition, Page 3, Paragraph8
54
AIR 1977 SC 908
55
1987 AIR 748
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3. The sheer importance and unparalleled weightage of Article 21, i.e., Right to life
and personal liberty, in our country, can be easily understood from various
judgments such as –
3.1. “Article 21 is one of the basic human rights and not even the State has the
authority to violate it.” –State of Andhra Pradesh V. Challa Ramakrishna
Reddy56.
“Article 21 is a declaration of deep faith and belief in human rights. In this
pattern of guarantee woven in Part III of the Constitution, personal liberty of man
is at the root of Article 21 and each expression used in this Article enhances
human dignity and values.”-OzhairHussain V. Union Of India57.
4. The controversial content is also found to be contradictive to Articles 38 and
various sub-clauses of Article 51A, which are Directive Principles of State Policy
and Fundamental Duties, respectively. The Directive Principles of State Policy are
the guidelines or principles given to the Government of India, and Fundamental
Duties are obligations upon every citizen, which the State expects them to fulfil.
These provisions are not enforceable by any court, but are to be interpreted in
harmonious construction with Part III.58
4.1. The SC has stated inn State Of Punjab V. Devans Modern Breweries
Ltd.59, that implementation of a directive principle is to be deemed to be within
the scope of restrictions in the general interest of the public.
4.2.ThusArticle 38 is valid in the present scenario, i.e., “....promote the welfare of
the people by securing and ‘protecting’ as effectively as it may a social... and the
H.C.’s decision to ban the CD’s was in furtherance of Article 38, i.e., protecting
the welfare and societal order, by preventing animosity between communities due
to religious beliefs and in doing so, the court was prudently shielding the society
from likely communal riots and unrest due to the offensive ideas that the CD’s
preach. The said ban also sought to prevent the circulation of obscene content in
society, and especially to the gullible youth of the nation 60. In case the restriction
had not been placed, Mr. Swamy would have fulfilled his agenda of targeting the
minorities by poisoning the mind of the impressionable youth.
56
AIR 2000 SC 2083
57
Air 2003 Del 103
58
D.D. Basu, Commentary on Constitutional Law (Wadhwa and Co., Nagpur, 2008 Edition)
59
(2004) 11 SCC 26
60
Moot Proposition, Page3, Paragraph 8
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4.3.Article 51A61 (e) to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious…diversities; (f) To value
and preserve the rich heritage of our composite culture. The CD’s however, seek
to establish Hindu dominance by way of violence and terror, which violates the
aforementioned values.
Therefore, that the extent of the mischief the CD’s were seeking to cause was
massive, and the court has acted prudently in banning them before they could
cause an upheaval in society and spread discord , thereby tainting India’s
religious diversity.
5. With further reference to the Indian Penal Code, 1860, the CD’s contain content
which is expressly banned under the Indian Penal Code under section 153A via
sections 292, 293 and 295A, 298.
6. The constitutionality of Section 153A has been established for once and for all
when it was re-added to the Code in 1969, after the case of GopalVinayakGodse
V. State of Maharashtra62. The crux of which talks about professing hatred and
ill feeling by one community towards another community.
6.1. The object of the section is to prevent racial or sectarian quarrels resulting in
the disturbance of public peace. It aims to punish those who either ‘attempt to
promote or promote class hatred or class enmity.’63The section also makes it clear
that it is unnecessary to establish the success of an attempt. A man cannot escape
from the consequences of uttering words, with intent to promote feelings
mentioned in the section, solely because the community to whom they are
addressed may be too wise or temperate to react to them.64
6.2.It is also important to correctly understand the meaning of the word“class”.
ManibenLiladhar Kara V. Emperor65 “classes” refers to any well defined and
readily ascertainable group of subjects having some element of permanence or
stability and sufficiently numerous and widespread to be designated as a class.
6.3. Section 153A mentions “intention”. Allahabad High Court that to promote
hatred or enmity between different classes is not a necessary ingredient for the
offence under this section. Even if a question of intention could arise, it has to be
61
Constitution Of India, 1950
62
AIR 1971 Bom.56 ; see also AIR 1951 Punj. 27
63
Section 153A, Indian Penal Code, 1860
64
Ratanlal&Dhirajlal, Commentary On Law Of Crimes, 711, (26th Edition)
65
AIR 1941 Oudh. 33 at 41
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66
gathered from the words used, and they themselves would be conclusive. - If the
words spoken or written are couched in a temperate, dignified, mild language and
do not have the tendency to insult the feelings or the deepest religious convictions
of any section of the people, the penal consequences will not follow. 67In the case
of Kali Charan Sharma V. Emperor68 it has been stated by the Allahabad H.C.
that if the language used is of a calculated nature to produce or promote feelings
of enmity or hatred, for a person must be presumed to intend the natural
consequences of his acts.
6.4.Furthermore, in order to ascertain the intention of the accused, the offending
article must be read as a whole and the circumstances of publication must be
considered.69and that intention must be inferred from the nature of the words used
and their effect upon the class referred to as also from the state of feeling between
the two communities at the time of the act complained of, which was stated in the
case ofSatyaRanjanBakshi.70
6.5. It is thereby apparent in the present case 71, the usage of explicit threats of
mass murder and sexual violence, to promote Hindutva are in no way mild or
dignified, but rather, are dishonourableand aim to illicit a reaction from both
communities to act upon (Hindu) or against (minority) them. It can therefore be
said that the content of the CD’s stemmed from a mala fide,intention. This crafty
method sought to degrade the minority, by means of usage of language and
depictions which showed malice and was bound to offend the minority religions
and create feeling of enmity, which has been emphasized as a perquisite for the
section being discussed, in the case of Harnam Das72.
6.6.1. Whether the CD’s are examined in whole or in part, the content is of
such offensive nature that it cannot be interpreted as not being violative of
section 153A due to the simple fact that no person or community would take
the threat of being butchered and/or take a threat of being subjected to sexual
violence lightly, specially if it comes from a person in power and a man with
wide reach and support. Further, there have been innumerable instances of
66
MLC Gupta V. Emperor AIR 1936 All. 314
67
Azizul Haq Kausar Naquvi V. State, AIR 1980 All. 149
68
AIR 1927 All. 649
69
State of Bihar V. GhulamSarwar, AIR 1965 Pat 393
70
SatyaRanjanBakshi, AIR 1929 Cal. 309 at 314
71
Moot Proposition, Page 3, Paragraph 7
72
(1957) 1 All. 528
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73
see also ; Amarnath Massacre, 2000 see also ; Tripura unrest, 2004
74
(1969) 72 Bom. LR 871
75
1997 Cri.LJ 4091 (SC)
76
Indian Penal Code, 1860
77
Indian Penal Code, 1860
78
Ibid 76
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is no defence for the accused to say that he did so in order to call attention to some
matter in need of reform as this is not the proper way to secured proper reform.79
7.2.In order for, section 295A and 298 to apply, the Law Commissioners have
observed that there should exist a malicious intent & intention must be deliberate
i.e., not conceived on the sudden in the course of discussion, but premeditated.
Also, if a party were to force himself upon the attention of another, addressing to
him, an involuntary hearer, he would be conceived to fall under the definition of
deliberate intention.80 The term “maliciously” denotes an evil or perverse
disposition.81 It means and implies an intention to do an act which is wrongful and
to the detriment of another.82
7.3. As per theGazette of India83“the essence of the offence is that the insult to
religion or the outrage to religious feelings must be the sole, or primary, or at least
the deliberate and conscious intention.” Mr. Swamy’s CD’s deliberately intended
to hurt the religious sentiments of the minority communities by way of threats and
forcible conversion. Sexual violence and mass murder would be repulsive to any
reasonable man and therefore; it would amount to deliberate intention.
7.4. Another facet of deliberate intention under both Section 295A and 298
is that intention has undoubtedly to be inferred from the words spoken, the
place where they were spoken, and the persons to whom they were addressed
and other surrounding circumstances, as was held in the case of Narayan Das
V. State84.
7.5. In light of the mentioned case, it is clear that the content on the CD’s was
addressed to the Hindu community in order to ignite a feud between the Hindus
and other religions, given Mr. Swamy’s influence as a politician and a powerful
man in terms of wide reach and mass support, it is clear that he did in fact, attempt
to hurt religious sentiments and cause communal disorder.
8. Furthermore, the act of banning production of his CD’s is further justified by
Section 95 of the Code of Criminal Procedure, which provides for the confiscation
and/or seizure ofthat any document (painting, drawing, photograph or any other
79
King v NgaShweHpi AIR 1939 Ran 199
80
Ratanlal and Dhirajlal’s Commentary on Law Of Crimes, 26th Edition, Page 1273
81
Ward (1872) LR 1 CCR
82
Mogul Steamship Co V. McGregor & Co. (1889) 29 QBD 598
83
Gazette Of India, September 17, 1927, Part V, Page 251
84
AIR 1952 Ori. 149
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actions, which yet again establishes the nature of the content on the CD’s, for a
reasonable man is presumed to know the consequences of his actions.
10.3. It may be argued that “obscene” prima facie seems to convey sexual content,
but it has been established that its scope is wider that merely sexual content. In
Roth V. United States92, Knuller Ltd. V. DPP93, John Calder Publications V.
Powell94, it was held that the definition of “obscenity” was not limited to
publications on sex and “deprave and corrupt” should not be construed narrowly
to mean sexual depravation. The SC in Ranjit D. Udeshi V. State Of
Maharashtra95 was of the view that it is an important interest of society to
suppress obscenity. There is of coursesome difference between obscenity may,
etc. not intended to offend against public decency and morals do, but which have
the tendency to do so.”
10.4.If a publication is detrimental to public morals and calculated to produce a
pernicious effect in depraving and debauching the minds of the persons in whose
hands it may come, it will be an obscene publication, which it is the intention of
the law to suppress.96Anything distinctly calculated to incite a reader to indulge in
acts of indecency or immorality is obscene.97If the publication in question has the
tendency to corrupt the minds of the readers, it falls within the mischief of this
section, notwithstanding innocent or laudable object of the author or publisher.98
10.5.Another facet of section 292 to be kept in mind is that there must be
widespread circulation. Sending the content directly to the personal residence of a
particular person does not attract Section 292.99
10.6. The Community Standard Test, which was developed in the case of Miller
V. California100in 1973, and its aim is to determine what is obscene. It works on
three parameters, namely –
Whether "the average person, applying contemporary community standards",
would find that the work, taken as a whole, appeals to the prurient interest,
92
354 US 476
93
1973 AC 435 House Of Lords
94
1965, 1 QB 509
95
AIR 1965 SCC 882
96
Emperor V. Hari Singh (1905) 28 All. 100
97
Kherode Chandra Roy Chowdhury V. Emperor (1911) 39 Cal 377
98
CT Prim V. State, AIR 1961 Cal. 177
99
MM Haries Case, 2005 Cri.LJ 3314 Ker.
100
413 U.S. 15
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101
2014 4 SCC 257
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PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, the
Appellant mostrespectfullypleads and requests this Hon’ble court todeclare:
A. That Section 124A of the Indian Penal Code, 1860 constitutes an unreasonable
restriction on the right to freedom of speech and expression under Article 19(1)(a) of
the Constitution and thus be declared unconstitutional; and
B. That the ban imposed on I love trump limited be upheld as it constitutes a
reasonable restriction on the freedom to carry out trade and occupation under Article
19(1)(g) of the Constitution of India; and
And pass any other order it may deem fit, in the interest of Justice, Equity and Good
Conscience.
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