]

Team Code: TC27_P

XXth All India Moot Court Competition, 2021

BEFORE THE HON’BLE SUPREME COURT OF AWADH

SPECIAL LEAVE PETITION

S.P.L. NO. /2021

IN THE MATTERS OF

Jameer Ali.............................................................................................................................Petitioner
U/Art. 136 of The Constitution of Awadh, 1950
Sameer Chowdhary.............................................................................................................Petitioner
v.
Union of Awadh...............................................................................................................Respondent
BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE OF AWADH
AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF AWADH
ALONGWITH
Union of Awadh..................................................................................................................Petitioner
v.
MEMORIAL ON BEHALF OF THE
Jameer Ali.........................................................................................................................Respondent
PETITIONER
Sameer Chowdhary..........................................................................................................Respondent
 MEMORIAL FOR PETITIONER

TABLE OF CONTENTS

LIST OF ABBREVIATIONS....................................................................................................3
INDEX OF AUTHORITIES.....................................................................................................4
STATEMENT OF JURISDICTION..........................................................................................6
STATEMENT OF FACTS.........................................................................................................7
STATEMENT OF ISSUES........................................................................................................9
SUMMARY OF ARGUMENTS.............................................................................................10
ARGUMENTS ADVANCED..................................................................................................12
1. WHETHER THE APPELLATE TRIBUNAL ERRED IN NOT INTERFERING WITH
THE DECISION OF THE DATA PROTECTION AUTHORITY JUSTIFYING THE
INTERCEPTION OF DATA AND HENCE WHETHER IS THE SAME SUSTAINABLE IN
LAW?
..................................................................................................................................................12
2. WHETHER THE HIGH COURT ERRED IN ITS DECISION APPROVING THE
CONSTITUTIONALITY OF THE PROCEEDINGS INITIATED BY THE CONTROLLER
OF THE CERTIFYING AUTHORITIES UNDER SEC. 69 OF THE IT ACT, 2000?
..................................................................................................................................................14
3. WHETHER THE CHARGE LEVIED UNDER SECTION 124A OF AWADH PENAL
CODE AND DETENTION IN JUDICIAL CUSTODY ARE SUSTAINABLE IN LAW?
..................................................................................................................................................19
4. WHETHER THE ORDER OF THE HIGH COURT ENDORSED THE
CONSTITUTIONALITY OF THE DECISION OF THE MAGISTRATE DIRECTING
COLLECTION OF VOICE SAMPLES OF DR. CHOWDHARY IS LEGALLY
SUSTAINABLE IN THE BACKDROP OF THE RIGHT AGAINST SELF-
INCRIMINATION GUARANTEED UNDER ARTICLE 20(3) OF THE CONSTITUTION?
..................................................................................................................................................23
5. WHETHER THE DECISION OF THE HIGH COURT TO SUO MOTU INVOKE THE
INHERENT JURISDICTION UNDER SEC. 482 OF THE AWADH CODE OF CRIMINAL
PROCEDURE, 1973 TO FORM A SPECIAL INVESTIGATION TEAM TO PROBE INTO
A MATTER UNDER INVESTIGATION IS SUSTAINABLE IN LAW AND FACTS? 26
6. PRAYER…........................................................................................................................29

2
 MEMORIAL FOR PETITIONER

LIST OF ABBREVIATIONS

¶ Paragraph
§ Section
AIR All India Reporter
Anr. Another
Art. Article
Bom.C.R Bombay Criminal Cases
CRL.A. Criminal Appeal
Cr LJ Civil Rules for Courts of Limited
Jurisdiction
CrPC Criminal Procedural Code
CW Court Witness
FIR First Information Report
HC High Court
Hon’ble Honourable
i.e That is
IPC Indian Penal Code
J. Justice
NCT National Capital Territory
Ors. Others
para Paragraph
P&H Punjab and Harayana
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Report
Sd\- Signature with name and date
UOI Union of India

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 MEMORIAL FOR PETITIONER

INDEX OF AUTHORITIES

STATUTES AND REGULATIONS

● The Citizenship (Amendment) Act, 2021

● The Code of Criminal Procedure, 1973
● The Constitution of India, 1950
● The Evidence Act, 1872
● The Indian Penal Code, 1860
● The Information Technology Act, 2000
● The Personal Data Protection Bill, 2019
● The Telegraph Act, 1885

BOOKS

● A Commentary on Indian Penal Code, G.D Gaur, Third Edition

● Cybercrime and Information Technology Act, 2000, Vikram Singh Jaswal,
Shweta Thakur Jaswal, First Edition
● Indian Evidence Act by Nageshwar Rao, Second Edition
● R.V Kelkar’s Criminal Procedure, Sixth Edition
● The Indian Penal Code, Ratanlal & Dhirajlal, Thirty Sixth Edition

REPORTS AND INDICES

● Calcutta Report of the Committee on Privacy and Related Matters, 1990

● International Principles on the Application of Human Rights to
Communication Surveillance, UNHCR, 2013
● Law Commission of India- 87th Report
● Protecting Privacy, Empowering Indians (Justice B.N. Srikrishna Committee
Report), 2018
● Report of the Group of Experts on Privacy (Justice A.P. Shah Committee
Report), 2012

ONLINE DATABASE

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

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 MEMORIAL FOR PETITIONER

CASES REFERRED

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

5
 MEMORIAL FOR PETITIONER

STATEMENT OF JURISDICTION

THE HON'BLE SUPREME COURT OF AWADH HAS JURISDICTION TO HEAR THE

MATTERS UNDER ART. 136 OF THE CONSTITUTION OF INDIA, 1950.
“ART.136. 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 AWADH.
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.”

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 MEMORIAL FOR PETITIONER

STATEMENT OF FACTS

THE PARTIES

The Appeal is filed by Mr. Jameer Ali and Dr. Sameer Chowdhary before the Hon’ble
Supreme Court of Awadh aggrieved by the order of the High Court and the Appellate
Tribunal.

BACKGROUND OF THE CASE

Awadh is a Democratic, Republic, and Secular Nation in the Asian Continent with a
population of over 100 billion. The country follows a federal structure of governance. On
15th July 2021, the Union Parliament passed the Citizenship (Amendment) Act, 2021
governing citizenship. The opposition heavily criticized the Act as it contained certain
provisions that could tamper with the Secular nature of Awadh. Massive protests,
movements, and dharnas broke out against the law following its notification. Opposition
leaders, various political organizations, and social activists took part in the protest.

On 25th July 2021 the Controller of Certifying Authorities issued an order directing J. K.
Technologies to intercept information with aid of spyware named ‘spygaus’ of some high-
level politicians, activists, and journalists in consonance with Sec. 69 of the IT Act, 2000.
Similar orders were issued by the telegraph authority to intercept information through
telegraph devices also. The interception of communication of people was proceeded with as
per the list forwarded by the Controller.

THE INCIDENT

On 27th July 2021, Mr. Jameer Ali, the editor in chief of People Today, sent the questions for
an interview to Dr. Chowdhary, a notable Constitutional Law expert and social activist via
Whatsapp, to which he responded in the form of voice messages. Dr. Chowdhary has
allegedly criticized the Prime Minister and the Home Minister. Mr. Ali had said, “the master

7
 MEMORIAL FOR PETITIONER

brains are trying to achieve their agenda of transforming the nation in accordance with their
political agenda”.

On 28th July 2021, at 2:00 AM, the local police arrested Dr. Chowdhary from his house and
Mr. Ali from his office at South Selhi without being given the reason for their arrest. Both
were charged under Sec. 124 A of Awadh Penal Code, 1860 before Magistrate. Judicial First
Class Magistrate of South Selhi issues an order to collect voice samples of both accused for
digital analysis under Sec. 311 A of Awadh Criminal Procedure Code. Later on, they were
released on conditional bail.

Mr. Ali and Dr. Chowdhary approached the High Court of New Selhi under Art. 226 of the
Constitution of Awadh challenging the constitutionality of the order of interception issued by
the Controller under Sec. 124A of the Awadh Penal Code and also the order of the Magistrate
under Sec. 311A of Criminal Procedure Code.

Simultaneously, they also filed a complaint before the Data Protection Authority of Awadh
alleging that the interception of their data by the State was in violation of rights protected
under the Protection of Personal Data Act, 2019. The Authority dismissed the complaint
stating that the WhatsApp chat does not come within the meaning of Personal Data as defined
under Sec. 2(29) of the Act. The Appellate Tribunal confirmed the order of the Authority.

The High Court of New Selhi upheld the constitutionality of the proceedings initiated by the
Controller against the Appellants and also the Order of the Magistrate under Section 311A. In
the same proceedings, the High Court formed a Special Investigation Team to probe into the
data interception using ‘spygaus’ by J.K. Technologies by invoking Sec. 482 of the Awadh
Criminal Procedure Code.

CURRENT STATUS

Mr. Ali and Dr. Chowdhary filed an appeal before the Hon‟ble Supreme Court of Awadh.
The State also filed an appeal against the Order of the High Court establishing SIT. All three
appeals came to be admitted by the Supreme Court and scheduled a hearing on all three
appeals on 06-11-2021.

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 MEMORIAL FOR PETITIONER

STATEMENT OF ISSUES

ISSUE ONE

JURISDICTION: DOES THE SUPREME COURT OF MELUHA HAVE THE JURISDICTION

TO HEAR AND DECIDE THE MATTER.

ISSUE TWO

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

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

ISSUE THREE

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

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

ISSUE FOUR

WAS THE BANNING OF NEWSPAPERS A CONSTITUTIONALLY VALID

ACT OF THE GOVERNMENT OF MELUHA?

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 MEMORIAL FOR PETITIONER

SUMMARY OF ARGUMENTS

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

It is humbly contended that the

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

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

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 MEMORIAL FOR PETITIONER

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

It is humbly submitted before this Hon’ble Court that

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

It is humbly submitted that the

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 MEMORIAL FOR PETITIONER

ARGUMENTS ADVANCED

ISSUE ONE
JURISDICTION: DOES THE SUPREME COURT OF MELUHA HAVE THE JURISDICTION
TO HEAR AND DECIDE THE MATTER.
¶1. The Counsel for Respondent humbly submits before the Hon’ble Supreme Court that the

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

it is submitted before the Hon’ble Supreme Court that the

1. It is submitted before this Hon'ble court that the citizens of the nation have the right to criticise
the Government. Criticism of the Government by itself cannot amount to sedition. In a country
which is governed by the rule of law and which guarantees freedom of speech, expression and
belief to its citizens, the misuse of the law of sedition and other similar laws is against the very
spirit of freedom Consequently, the criminal proceedings initiated against the Petitioner being
abuse of the process and being violative of the fundamental rights guaranteed under the
Constitution of India, the same is required to be quashed

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 MEMORIAL FOR PETITIONER

ISSUE THREE
DOES CRITICISM OF THE GOVERNMENT AMOUNT TO AN ACT OF SEDITION AS
PER SECTION 124A OF MELUHA PENAL CODE (MPC)?
It is humbly submitted before this Hon’ble Court that Mere Criticism And Dissent Does Not Amount
To Sedition As Per Section 124a Of Meluha Penal Code (Mpc)
The same is substantiated with the threefold argument [1.1] There exists a Right To Criticism. [1.2]
There was no attempt bring into hatred or to excite disaffection towards the government. [1.3] Misuse
of Section 124A.

3.1 THERE EXISTS A RIGHT TO CRITICISM

It is contented before this Hon’ble court that as per the provisions of Section 124-A MPC citizen has a right
to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as
he does not incite people to violence against the Government established by law or with the intention of creating
public disorder, which was definitely not the intent of the Petitioner in present case.

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

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

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

3.1.1 Deletion of the word “Sedition” from the draft Art. 13(2)

The Indian law of sedition acquired a new perspective with the commencement of the Constitution. In the
draft Constitution one of the grounds mentioned on which freedom of speech and expression could be
restricted by law was “sedition.” But the Constituent Assembly dropped the word “sedition” and
substituted it by the term “which undermines the security of or tends to overthrow the State.” 1 Mr. K.M.
Munshi, speaking for the deletion of the word “sedition,” observed:
The public opinion has changed considerably since and now that we have a democratic Government a line
must be drawn between criticism of the Government which should be welcome and incitement which
would undermine the security or order on which civilized life is based, or which is calculated to overthrow
the State. Therefore, the word “sedition” has been omitted. As a matter of fact the essence of democracy
is criticism of Government.2

1
The other grounds provided in article 19(2) on which the right to freedom of speech and expression could be restricted were libel, slander, defamation, contempt of court,
and decency or morality
2
7 C.A.D. 731 (1948).
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 MEMORIAL FOR PETITIONER
Deletion of the word “sedition” was also necessary, Mr. Munshi added,3 “otherwise an erroneous
impression would be created that we want to perpetuate 124-A of the I.P.C.” The move was unequivocally
welcomed by all the sections of opinion in the Assembly.4

There was an oblique reference to the validity of section 124-A in the Supreme Court decision in Romesh
Thapper v. The State of Madras.5 Although the validity of section 124-A was not in issue in the case, Mr.
Justice Patanjali Sastri, speaking for the majority of the Court, observed:
Deletion of the word “sedition” from the draft Art. 13(2), shows that criticism of Government exciting
disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the
freedom of expression and of the press, unless it is such as to undermine the security or tend to overthrow
the state.6

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

3.1.2 Explanation 2 and 3 of Section 124A

The single explanation to the section was replaced by three separate explanations as they now stand.7
The single explanation in the original section has been replaced by the present Explanations 2 and 3. With
regard to them the select committee in their report said:
We have added Explanation 3 to make it clear that criticism on the action of Government is not confined
to cases in which it is sought to bring about an alteration of what has been done. For example, suppose the
Government makes an appointment which is considered objectionable. That appointment may be
criticised, although the criticism may not have in view that cancellation of the appointment. We have
made consequential amendments in Explanation 2 to make the language of the two explanations uniform.
These explanations were added to remove any doubt as to the meaning of the legislature; they do not add
to or subtract from the section itself.8
Explanation 2 provides for comments expressing disapprobation of the measure of the Government with a
view to obtain their alteration by lawful means, and explanation 3 provides for comments expressing
disapprobation of the administrative or other action of the government. It would not be wrong to say that
both the explanations i.e. explanation 2 and 3 are in a negative form and are intended to protect criticism
of Government measures, and of administrative and executive action of government, and they give perfect
freedom to journalists, to publicists, to orators and public speakers, to discuss the measures and
administrative acts of the government, to disapprove of them, to attack them, and to use forcible and
strong language if necessary, and to do everything legitimate and honest in bringing before the public or
the Government the fact that their measures or their actions are disapproved by a section of the public or
by that particular speaker or journalist.
In Kedar Nath Singh v. State of Bihar 9, it was held that the provisions of the sections read as a whole,
along with the explanations, make it reasonably clear that the sections aim at rendering penal only such
activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by
resort to violence. As already pointed out, the explanations appended to the main body of the section make
it clear that criticism of public measures or comment on Government action, however strongly worded,
3
Id. at 731-32.
4
See, for example, the speeches of Mr. Govinda Das (id. at 750) and Mr. T.T. Krishnamachari (id. at 773).
5
AIR 1950 SC 124.
6
Supra note 31, at 128.
7
The section, in its present form, is the result of further amendments under several Adaptation Orders of 1937, 1948, 1950, 1951
and Act 26 of 1955.
8
Niharendu Dutt Mazumdar v Emperor, AIR 1942 FC 22 , p 25 : 43 Cr LJ 504.
9
1962 AIR 955, 1962 SCR Supl. (2) 769

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 MEMORIAL FOR PETITIONER
would be within reasonable limits and would be consistent with the fundamental right of freedom of
speech and expression. 
Similarly in the present case the petitioner are charged for disapproving with the actions and measures
taken by the government to control the present riots in the country. As per Section 124A of MPC there is
nothing wrong to disapprove with the actions and measures taken by the government.
The object of the explanations is to protect bona fide criticism of public measures and institutions with a
view to their improvement, and to the remedying of grievances and abuses, and to distinguish this from
attempts, whether open or disguised, to make the people hate their rulers. 10 Similarly petitioners comments
pointing out the mismanagement and incapability of the government to control riots and perform their
duties efficiently was within reasonable limits and consistent with the explanations appended to the main
body of Section 124A of MPC.

3.1.3 Fair criticism of the government is no offense

It is not sedition to criticise or comment upon administrative machinery or the officers of Government or
an act or measure of the Government and freely express one’s opinion thereon. One may express
condemnation and so long as he confines himself to that he will be protected.
Fair criticism of the Government is no offence, and it is quite possible to express dissatisfaction without
exciting disaffection.11 It has been said that in the present day an attempt to remove from power the
ministers in office, or any agitation for the repeal of an Act of Parliament cannot be seditious if no
unlawful means are employed.12
In the case of Vinod Dua v. Union of India and Ors. 13 it was observed that the law only interferes when
the discussion passes the bounds of fair criticism. More especially will this be the case when the natural
consequence of the prisoner's conduct is to promote public disorder.”
Similarly the speech given by the petitioner criticisng the present government for the atrocities being
committed against a certain group of people in the country must be categrosied under the domain fair
criticism as no unlawful means were employed by the petitioner.
Further, judicial pronouncements in this regard have clearly laid down the principle that anyone can fairly
criticize government policies and actions and demand reformations as long as they don't incite or attempt
to incite violence, rebellion, hatred or contempt against the established government of the state.

5 It is contented before this Hon’ble court that the provisions of Section 124-A IPC cannot be
invoked to penalize criticism of the persons for the time being engaged in carrying on
administration or strong words used to express disapprobation of the measures of Government
with a view to their improvement or alteration by lawful means. (Sanskar Marathe v. State of
Maharashtra, 2015 SCC OnLine Bom 587)

6 The charges levied on Petitioners are clearly not in tandem with the language of Section 124-A of IPC. A
citizen has a right to say or write whatever he likes about the government, or its measures, by way of
criticism or comment, so long as he does not incite people to violence against the government
established by law or with the intention of creating public disorder which was definitely not the intent of
the Petitioner in the present case. 

Viewed thus, the provisions of Section 124A of the IPC would not get attracted at all

10
Thakin Lay Maung v King, AIR 1939 Rang 169 , p 173 : 40 Cr LJ 668.
11
Re SS Batliwala, AIR 1938 Mad 758 [LNIND 1938 MAD 293] , p 763 : 39 Cr LJ 938.
12
Dhirendra Nath Sen v Emperor, AIR 1938 Cal 721 , p 723 : 40 Cr LJ 82.
13
2021 SCC OnLine SC 414

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 MEMORIAL FOR PETITIONER

1. THERE WAS NO ATTEMPT BRING INTO HATRED OR TO EXCITE DISAFFECTION

TOWARDS THE GOVERNMENT

1. The statements should be taken as whole

2. The essence of the offence of sedition under section 124A I.P.C.38, is the intention with which the
language of a speech is used and that intention has to be judged primarily from the language
itself. In forming an opinion as to the character of speech charged as sedition, the speech must
be looked at and taken as a whole, freely and fairly, without giving undue weight to isolated
passages and without pausing upon an objectionable sentence here or a strong word there, and,
in judging of the intention of the speaker, each passage, should be considered in connection with
the others and with the general drift of the whole.39   (38 The Indian Penal Code, 1860, § 124A,
Act No. 45 of 1860 (India). 
39 Hanumanthaiya v. Govt of Mysore, (1948) 52 Mys HCR 265. )

1. Not accompanied by an incitement or call for violence, criticism of the government cannot be labelled
sedition.
2. It is humbly submitted that the position of law has been reiterated many times including
in Bilal Ahmed Kaloo case and Common Cause v. Union of India In both these cases, the  Court
directed the Courts to exercise care while invoking charges of sedition. The Courts were advised
to follow the principles laid down in Kedar Nath, where the court held that unless accompanied by
an incitement or call for violence, criticism of the government cannot be labelled sedition. In the
present case, the act done by the Petitioner is clearly in line with the principles laid down in the
Kedar Nath case

1.1 THERE IS A DIFFFERENCE BETWEEN DISPROBATION AND DISAFFECTION

1.2 THERE WAS NO THREAT TO PUBLIC ORDER

The essence of Sedition lies in the intention with which the language is used and what is rendered punishable by section
124-A of the Penal Code is the intentional attempt, successful or otherwise, the ruse as against Government the feelings
enumerated in the section, a mere tendency in an Art. to promote such feelings is not sufficient to justify a conviction;
in other words, the prosecution must bring home to the accused that his intention was as is described in the section
itself.41 Commenting in strong terms upon the measures or acts of government, or its agencies, so as to ameliorate the
condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to
say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of
violence is not sedition”.42 

3.3 MISUSE OF SECTION 124A

The last few years have given rise to a number of cases where the law of sedition or creating disharmony have
been misused rampantly by the police to arrest and humiliate people who have not committed the crime
of sedition. So, the arrest rate pertaining to sedition cases is high, but conviction rate is very low, which shows
the amount of misuse of this particular provision of law. It should also be noted here that most of the persons
accused of sedition are writers, journalists, cartoonists or activist who do not have any army or weapon to
throw the government established by law. They are made scapegoat just because they have a business and a
right to express their views or opinions. Similarly the petitioner in the present case is a student of political
science (Hons.) in the department of political science OUSS and was merely expressing his views in the
playground of his college campus and does not poses capability and resources to harm the government
established by law.
3.3.1 NCRB Data
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The misuse of the section 124A can be understood from the data of National Crime Record Bureau (NCRB)
which states that most of the people charged with sedition never face trial due to an incomplete investigation
by police or lack of evidence against the accused. Furthermore, even if police file charge sheet in few cases
and the accused faces trial, the conviction rate is minimal. But the story does not end even when an accused
gets an acquittal. Indian judiciary is infamous for its delayed justice. In fact, the process itself is a punishment
here. Till the time an accused gets an acquittal, he has already served some parts of his punishment.
Therefore, it would not be wrong to quote here that ‘justice delayed is justice denied’.
Also in the case of In Hussainara Khatoon v. Home Secretary, State of Bihar 14, it was brought to the notice of
the Supreme Court that an alarming number of men, women, and children were kept in prisons for years
awaiting trial in courts of law. The Court took a serious note of the situation and observed that it was carrying
a shame on the judicial system that permitted incarceration of men and women for such long periods of time
without trials.

The Court held that detention of under-trial prisoners, in jail for a period longer than what they would have
been sentenced if convicted, was illegal as being in violation of Article of 21. The Court, thus, ordered the
release from jail of all those under-trial prisoners, who had been in jail for a longer period than what they
could have been sentenced had they been convicted
As per the Kedar Nath judgment in 1962, the sedition law was supposed to be applied in rare instances where
the security and sovereignty of the country is threatened. However, there are growing instances to show that
this law has been weaponised as a handy tool against political rivals, to suppress dissent and free speech. As
per the latest data presented by Article 14, as many as 25 sedition cases were filed after the anti-Citizenship
Amendment Act protests, 22 after the Hathras gang rape, and 27 after the Pulwama incident. In all, 96 percent
of the sedition cases filed against 405 Indians over the last decade were registered after 2014 and the
conviction rate is mere 4%.

3.3.2 Instances of false sedition cases

In Chhattisgarh, a 53-year-old man was arrested on charges of sedition for allegedly spreading rumours over
social media about power cuts in the State. It was said that this was done to tarnish the image of the then
Government running the State. The charge was absurd and again highlights the misuse of power. In Manipur,
a journalist made a vituperative attack on the Chief Minister of the State and used totally unparliamentary
language against the Prime Minister of the country. The language was intemperate and uncalled for but this
was not a case of sedition. It was at best a case of criminal defamation. The man was kept behind bars for
months under the National Security Act. In West Bengal, a party leader was arrested for morphing an image
of the Chief Minister and in U.P., a man was arrested for morphing the image of the Prime Minister of the
country and shockingly this image had been morphed 5 years’ back. What was the hurry to suddenly arrest
this man after 5 years? A rapper who does not even live in India has been charged for sedition.
The law of sedition is more often abused and misused. The people who criticise those in power are arrested by
police officials on the asking of those in power and even if a person may get bail the next day from court, he
has suffered the ignominy of being sent to jail. Similarly in the present case the petitioners are falsely charged
with sedition and issue of arrest warrant against the petitioners was complete misuse of the provision and the
right to life and liberty of the petitioner is prejudiced by such proceedings.

14
1979 AIR 1369, 1979 SCR (3) 532

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

¶33. The Counsel for Respondent submits that

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MEMORIAL FOR PETITIONER

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 MEMORIAL FOR PETITIONER

PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

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

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

AND\OR

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

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

KINDNESS, THE APPELLANTS DHALL DUTY-BOUND FOREVER PRAY.

Sd/-

Counsels for the Petitioner

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