Team Code: TC 11

IN THE SUPREME COURT OF INDIVA

of
Criminal Writ Petition No. 2017

Kamla Mehta and ANR…………………………PETITIONER

v.

State Of Indiva …..………………………………..Respondent

Most Respectfully Submitted before the Supreme Court of Indiva

MEMORANDUM ON BEHALF OF Respondent

DRAWN AND FILED BY THE COUNSELS FOR Respondent

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS................................................................................................................... 1

INDEX OF AUTHORITIES.....................................................................................................................2

STATEMENT OF JURISDICTION............................................................................................................3

STATEMENT OF FACTS…………………………………………………………………………......4

ISSUES RAISED………………………………………………………………………………… …..5

SUMMARY OF ARGUMENTS……………………………………………………………………… 6-7

ARGUMENTS ADVANCED………………………………………………………………………...8-14

PRAYER………………………………………………………………………………………….15
Memorandum Drawn And Filed By The Respondent
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LIST OF ABBREVIATIONS

§                                                 :                                   Section

§§                                               :                                   Sections
¶                                                 :                                   Paragraph
¶¶                                               :                                   Paragraphs
A.P.                                           :                                   Andhra Pradesh
A.C.                                           :                                   Appellate Cases
AIR                                           :                                   All India Reporter
Anr.                                           :                                   Another
Bom.                                          :                                   Bombay
Cri.L.J.                                       :                                   Criminal Law
Journal
K.B.                                           :                                   King’s Bench
Mad.                                          :                                   Madras
n.                                                :                                   Note
Ors.                                            :                                   Others
P.C.A.                                        :                                   Prevention of
Corruption Act
SC                                              :                                   Supreme Court
SCC                                           :                                   Supreme Court
Cases
Sd/-                                            :                                   Signed
Supp.                                         :                                   Supplementary
U.P.                                           :                                   Uttar Pradesh
U.S.                                           :                                   United States
U.T.                                           :                                   Union Territory
v.                                                :                                   Versus
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INDEX OF AUTHORITIES

Romesh Thapar vs State Of Madras

Kishor Mohan vs State of Bengal

R vs Hicklin

Ranjit D. Udeshi vs State of Maharashtra AIR 1965 SC 881

BOOKS REFFERED

CONSTITUTION OF INDIA ---P.M. BHAKSHI

INDIAN PENAL CODE 1963

SITES REFFERED

INDIANLEGALSERVICES
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STATEMENT OF JURISDICTION

THE HON’BLE SUPREME COURT OF JUDICATE AT DELHI EXERCISES

JURISDICTION TO HEAR AND ADJUDICATE OVER THE MATTER UNDR ARTICLE 32
OF THE CONSTITUTION OF INDIVA

THE HON”BLE SUPREME COURT HAS THE AUTHORITY TO MAKE THE

NECESSARY CHANGES IN THE SECTION 124A OF THE INDIAN PENAL
CODE 1973 AS IT NOT VIOLATIVE OF FUNDAMENTAL RIGHTS PROVIDED BY
CONSTITUTION OF INDIVA . THE PETITIONER HAS FILED A PUBLIC INTEREST
LITIGATION BEFORE THE HON’BLE COURT THE PROVISION UNDER WHICH THE
PETITIONER HAS APPROACHED THE COURT IS READ AS IN

Article 32 of Constitution of Indiva states that

 (1)The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed

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

Without prejudice to the powers conferred on the Supreme Court by clause ( 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 )

 The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution
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STATEMENT OF FACTS

.)Indiva is a small country where in the freedom of speech and expression is a

fundamental right under Indiva’s Constitution.Bangistan is the neighboring
country of Indiva

2.)During the last few months Indiva has witnessed various incidents where the
freedom of speech and expression has come under the radar.

3.)Kamla Mehta, an actor turned politician who is a member of the Indian

National Party, the largest opposition party posted on social media that, ‘Minister
Mohan Singh said that ‘going to bangistan is like going to hell. ‘People there are
just like us and there is no difference. They treated us very well.”
For making such a statement Mr.Pappu Yadav filed a criminal case under section
124A of IPC (Indiva Penal Code) against Kamla Mehta.

4.)Summons were issued against Kamla Mehta on receipt of the complaint .He,
being aggrieved by the summons, challenged the constitutionality of sections
124A of the IPC stating it to be violative of Article 19(1)(a) of the constitution of
Indiva before the Supreme Court of Indiva

5.) Vienna is a state in Indiva.A campaign named “Broken families of Vienna” was
conducted by a NGO called Lamnesty International. A debate about human rights
violations by Indiva Army on the people of Vienna was held and the victims of
these violations were invited to speak about it.

6.)During the debate the Indiva People’s Party, the ruling party, got heavily
criticized for its inaction. Some anti-indica slogans were raised at the end of the
program me as the debate got heated up

7.)In the campus of Murli Shankar University, protests could be witnessed on the
hanging of Faizal Khan, who was convicted of terror attack on the Parliament of
Indiva. Democratic Students Union (DSU) had held the protests. However the
University had denied permission for it.

8.)Raju Kumar,the President of DSU was charged with sedition and a complaint
was filed. After the investigation by the Disciplinary Committee of the University
conducetd an investigation, it came into light that the slogans were intact raised by
a group of outsiders wearing masks
 9.)A complaint was filed against Raju Kumar and Lamnesty International under
section 124A of the IPC.It was filed by All India Student Organization
(AISO),which is a student body associated with the Indiva Peoples Party

10.)In 2014,as many as 47 cases of sedition were filed leading to the arrest of 58
people according to the National Crime Records Bureau. There have been an
alarming increase in the case in 2015 and in 2016 as many as 21 cases have been
filed

11.)A Public Interest Litigation was filed by Kamla Mehta, lamnesty International
and Raju Kumar challenging the validity of section 124A as being violative of
Article 19(1)(a) and Article 21.

This was placed before a special bench of the Supreme Court of Indiva to decide
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ISSUES RAISED

1. Whether Section 124A of IPC infringes the fundamental right of freedom of speech and
expression enshrined under Article 19(1)(a) of the Constitution?

2. Whether the people enjoy unfettered right to freedom of speech and expression?

3. Whether someone who advocates the use of violence to overthrow the government is entitled to
protection under Art. 19(1)(a)? Does a harsh criticism of the government amount to an act that
undermines the security of the state or a disruption of public order to make a case under Section
124A?

4. Whether Sections 124A of the IPC infringes the fundamental right to life and liberty enshrined
under Art.21 of the Constitution?
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SUMMARY OF ARGUMENTS

Issue [1] - Weather Section 124A of IPC infringes the fundamental right of freedom of
speech and expression enshrined under Article 19(1)(a) of the Constitution?

*The criminal case filed by Pappu Yadav is maintainable under section 124A of IPC. Kamal
Mehta is inciting the people against the government. He is indirectly provoking the people to
go against the current government by contradicting what Minister Mohan Singh said.

*In the Lamnesty International Case anti Indiva slogans were raised which surely amounts to
sedition as it is creating among the people hatred towards the government.

Issue [2] - Weather the people enjoy enfettered right to freedom of speech and expression?

According to Article 19(2) of the constitution of India people cannot enjoy enfettered freedom
of speech and expression.

*The restrictions given in Article 19(2) are reasonable because if there are no restrictions
then people may say something which may endanger the sovergenity and integrity of India,
security of state and may cause public disorder.

Issue [3] – Weather someone who advocates the use of violence to overthrow the government
is
entitled to protection under Art 19(1)(a)? Does a harsh criticism of the government amount to
an act that undermines the security of the state or a disruption of public order to make a case
under section 124A?

*According to Article 19(1)(a) one has the right to freedom of speech and expression but in
clause (2) if violence is used this will result in harming the sovereignty and integrity of India,
security of state,etc.Thus one is not entitled to protection under Art 19(1)(a) of the
constitution.

*Under section 124A sedition is defined. Harsh criticism of the government will lead to
hatred ,contempt and disaffection towards to government. It will cause public disorder and
undermine the security of state.
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Issue [4] – Weather sections 124A of the IPC infringes the fundamental right to life and liberty
enshrined under Art21 of the constitution?

*According to section 124A of the IPC if someone by words either spoken or written or by visble
representation brings or attempts to bring hatred or disaffection towards the goverment is said to
commit sedition.This is a restriction which is required to maintain the sovereignty and integrity of
India.

*Under article 21 it is said that no person should be deprived of his life or personal liberty but if
section 124A of the IPC is called infringing then it would give people the liberty to do anything
which may harm the security of state,public order,etc.Thus section 124A of the IPC does not
infringe the fundamental right to life and liberty enshrined under Art21 of the constitution.
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ARGUMENTS ADVANCED

Issue [1] - Weather Section 124A of IPC infringes the fundamental right of freedom of
speech and expression ensrined under Article 19(1)(a) of the Constitution?

1) The counsel for the respondent argues that section 124A of the IPC does not infringe the
fundamental right to freedom of speech and expression of an individual enshrined under Art
19(1)(a) of the Constitution of Indiva.

2) Rights guaranteed under the Indivian Constitution are not absolute. Every right under article
19(1) is restricted by certain limitations which have been provided by the constitution under Art
19(2). These restrictions are extremely necessary. Absolute freedom leads to a situation of
anarchy and the Constituent Assembly had that in mind while making the Constitution, which is
why they have put some reasonable restriction on the freedom of speech and expression in Art
19(2).

Art 19(2) states ‘Nothing in sub clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub clause in the interests of the
sovereignty and integrity of India, the security of the State, friendly relations with foreign States,
public order, decency or morality or in relation to contempt of court, defamation or incitement to
an offence’. Since the Constituent Assembly has made sure the legislature can make laws or let a
pre-existing law not be affected by the right to freedom of speech of an individual, 124A is just
one such restriction by a statutory law.

3) Section 124A is important for the proper functioning of the country. Indiva’s preamble to the
constitution ensures that the unity and integrity of the country be protected. For protecting the
unity of the country, it needs to be made sure that there is no uprising against the government.
Section 124A ensures just that. It is very important that whoever by words, either spoken or
written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into
hatred or contempt, or excites or attempts to excite disaffection towards the Government

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established by law must be punished so that the country can function as a united entity. This law
is necessary for the government to maintain peace and order in the country

4) In the facts of this case, Kamla Mehta, on whom sedition charges were levied, argues that he
was wrongly accused of sedition. Kamla Mehta tried to incite the people against the government.
He accused a minister of the government of lying to the people. This might lead to the people
losing faith in the Government. If the people lose confidence in their government, it becomes
tougher for the government to do its functions. So Kamla Mehta was in fact inciting the people
against the Government. The other case of sedition was the one against Lamnesty International.
The discourse conducted by the NGO ended up in a heated debate and it ended by people
screaming anti-Indiva slogans. The expression “disaffection” in Section 124A pertains to
disloyalty and all feelings of enmity. Shouting anti-Indiva slogans is an act of disloyalty towards
one’s nation. Hence the counsel argues that in both these cases sedition actually happened and
there was no misuse of the law. Along with that the counsel has also given the importance of
sedition law and why it is important for the harmonious functioning of the state.

5) Even if we do consider the opposing counsel’s argument that the law against sedition has
been misused multiple times, it still doesn’t give us a reason to strike it off. Just because a
law is misused does not mean it is unconstitutional or should be declared null and void. It
just means that there should be amendments made to it in order for it to accommodate the
present day misuse. The legislature has the duty of looking into the misuse of laws and
make amendments regarding the same and considering the righteousness of the legislature
elected by the people, it can be said that the legislature would have looked into amending
the law in order to adjust to the present day situation.

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Issue [2] - Weather the people enjoy enfettered right to freedom of speech and expression?

According to Article 19(2) of the constitution of India people cannot enjoy enfettered freedom of
speech and expression. Nothing in sub clause (a) of clause (1) shall affect the operation of any
existing law ,or prevent the state from making any law ,in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub clause in the interests of the
sovereignty and integrity of India, the security of state, friendly relations with foreign states,
public order, decency or morality or in relation to contempt of court, defamation or incitement to
an offence.

The word offence has not been defined in the Constitution but according to the general offences
act it means any act or omission made punishable by law. This is a broad concept and not
possible for the legislature to create an offence and make incitement thereto punishable. In a
way ,the freedom of speech can be effectively circumscribed as any subject can be precluded
from public discussion by making it an offence.

These restrictions are for proper governance an functioning of the country Section 124A of the
IPC(Indian penal code) is one such restriction which is very important for governance and
functioning of the country. It is very important because it helps curb anti national activities. So
the state should have extra powers to put an end to it and protect the unity and integrity of the
country. The constitution guarantees freedom of speech but it is never absolute and hence
reasonable restrictions are there and they are valid

The essentials restrictions are:-

*The essential restrictions are :-

1)Security of the State: Reasonable restrictions can be imposed on the freedom of speech and
expression, in the interest of the security of the State. All the utterances intended to endanger the
security of the State by crimes of violence intended to overthrow the government, waging of war
and rebellion against the government, external aggression or war, etc., may be restrained in the
interest of the security of the State

2) Friendly relations with foreign States: This ground was added by the Constitution (First
Amendment) Act of 1951. The State can impose reasonable restrictions on the freedom of speech
and expression, if it tends to jeopardise the friendly relations of India with other State.

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3) Public order: This ground was added by the Constitution (First Amendment 1951 in order to
meet the situation arising from the Supreme Court's decision in Romesh Thapar, s case (AIR
1950 SC 124)1. The expression 'public order ' connotes the sense of public peace, safety and
tranquillit. Kishori Mohan v. State of West Bengal2, the Supreme Court explained the differences
between three concepts: law and order, public order, security of State. Anything that disturbs
public peace or public tranquillity disturbs public order. But mere criticism of the government
does not necessarily disturb public order. A law punishing the utterances deliberately tending to
hurt the religious feelings of any class has been held to be valid as it is a reasonable restriction
aimed to maintaining the public order.

Decency and morality: The word 'obscenity' is identical with the wor 'indecency' of the Indian
Constitution. In an English case of R. v. Hicklin3, the test was laid down according to which it is
seen 'whether the tendency of the matter charged as obscene tend to deprave and corrupt the
minds which are open to such immoral influences'. This test was upheld by the Supreme Court in
Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881)4. In this case the Court upheld the
conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and keeping
the book Lady Chatterley's Lover. The standard of morality varies from time to time and from
place to place

1
Romesh thapar vs state of Madras

2
Kishor mohan vs state f bengal

3
R. vs Hicklin

4
Ranjit .d. Udeshi vs state of maharashthra AIR 1965 SC881
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Issue [3] - Weather someone who advocates the use of violence to overthrow the government is
entitled to protection under Art 19(1)(a)?
Does a harsh criticism of the government amount to an act that undermines the security of the
state or a disruption of public order to make a case under section 124A?

* According to Article 19(1)(a) one has the right to freedom of speech and expression but in
clause (2) if violence is used this will result in harming the sovereignty and integrity of India,
security of state, etc. Thus one is not entitled to protection under Art 19(1)(a) of the constitution.

*Such activity of overthrowing the government by violence is against the spirit of the constitution
of the country as it goes against the ideal of protecting the unity and integrity of the country. The
preamble says that the unity and integrity should be protected. An act which attempts to
overthrow the government by violence is not protected under Art 19(1)(a) of the constitution.

*Thomas Hobbes devised the Social Contract theory in the 17th Century. It stated that common
security should be favoured and that a bit of individual liberty should be sacrificed by each
person to achieve it. Under the Social Contract, the natural right to liberty would be mutually
transferred . The Social Contract Theory states that some amount of individual liberty must
be given up in favour of common security. Thomas Hobbes stated that men would always be in
a condition of war if
they did what they wanted all of the time.

*Supreme Court in Kedar Nath Sigh Vs State of Bihar (1962 AIR 955) upheld the constitutional validity
of S. 124A of Indian Penal Code however with certain caveats of safeguards. It held that only those
matters that had the intent or tendency to inside public disorder or violence would be made penal in this
section of IPC.

*One has to see that Sedition is an import from era when English ruled India and the needed provisions. In
a landmark judgment delivered in 1962 in the Kedar Nath Singh vs State of Bihar case, the Supreme Court
upheld the constitutionality of the sedition provision contained in Section 124A of the IPC. But for it do so
subject to the condition that the sedition charge can be made only against those who misuse their freedom
of speech to instigate an armed rebellion against the state.
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Issue [4] – Weather sections 124A of the IPC infringes the fundamental right to life and liberty enshrined under
Art21 of the constitution?

* To avert the constitutional difficulty as a result of the above referred case. The constitutional 1st
(Amendment) Act, 1951 added in Art 19 (2) two words of widest import, wiz., “in the interest of” “public
order”. Thereby including the legislative restrictions on freedom of speech and expression. The
advocates of the other view held that section 124-A, of I.P.C is constitutional and is not in contravention
of Art 19(1) (a) as it is saved by the expression “in the interest of public order” in Art
19(2).

* It has been stated that the expression in the interest of public order is of wider connotation, and
includes not only the Acts which are likely to disturb public order but something more than that. In
accordance with this interpretation, section 124-A, I.P.C. has been held intra vires of the constitution.

*This view found  blessings from the Supreme Court in the case of Kedarnath v. State of Bihar (supra)
wherein it was held that any law which is enacted in the interest of public  order may be saved from th
voice of constitutional invalidity. The court had further observed in the said case that the right
guaranteed under Art 19(1) (a) is subject to such reasonable restriction as would come within the
purview of clause (2), to Art 19 which comprises (a) security of the State, (b) friendly relations with
foreign states, (c) public order, (d) decency or morality, etc

*With reference to the constitutionality of section 124-A, of the I.P.C, as to how far they are consistent
with the requirements of clause (2) of Art 19 with particular reference to security of state and public
order, the section, it must be noted penalizes any spoken or written words or science or visible
representations, etc, which have the effect of bringing, or which attempt to bring into hatred or contemp
or excite or attempt to excite disaffection towards “the government established by law” has to be
distinguished from the persons for the time being engaged in carrying on the administration.

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*“Government established by law” is the visible symbol of the state would be in jeopardy, where the
government established by law is subverted. The continued existence of the government established
by law is an essential condition of the stability of the state. Hence, any act within the meaning of sectio
124-A, which has the effect of subverting the Government by bringing that Government into contempt o
hatred, or creating disaffection against it, would be within the penal statute because the feeling of
disloyalty to the Government established by law or enmity to it imports the idea of tendency to public
disorder by the use of actual violence or incitement to violence. In other words, any written or spoken
words, etc., which have implicit in them the idea
of subverting

*Government by violent means, which are compendiously included in the term revolution’, have been
made penal by the section in question. But the section has taken care to indicate clearly that strong
words under lawful means used to express disapprobation of the measures of the Government with th
view to their improvement or alteration would not come within the section. Similarly, comments,
however, strongly worded, expressing disapprobation of actions of the Government, without exciting
those feelings which generate the inclination to cause public disorder by acts of violence, would not be
penal. In other words
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PRAYER
In light of the legal precedents and principles cited, and in light of the provisions of the
constitution applied and arguments advanced ; and in the light of scientific study relating to
the issue reffered to, the respondent most humbly prays to the Hon’ble High Court that :
1) Rights provided under Article 19(1) and 21 of the constitution of Indiva are not
violative
2) Pass any order/orders or other remedy which the court may deem fit to grant to the
respondent.

And any other relief that the honorable Court may be pleased to grant in the interests
of justice, equity and good conscience.

All of which is humbly submitted.

Filed on: __/__/2017 Sd/-

Counsels for the Respondent

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