MOOT COURT

IN THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA,

1950.

KAMLA MEHTA………………. (PETTIONER)

V.

UNION OF INDIA……………………. (RESPONDENT)

MEMORIAL SUBMITTED ON BEHALF OF THE

RESPONDANT
 CONTENTS

LIST OF ABBREVIATIONS 3
INDEX OF AUTHORITIES 4
STATEMENT OF JURISDICTION 6
STATEMENT OF FACTS 7
ISSUES RAISED 9
ISSUES CONCERNED 10
SUMMARY OF ARGUMENTS 11
ARGUMENT ADVANCED 12
PRAYER 14
 LIST OF ABBREVIATIONS

AC Appeal Cases
A.I.R All India Reporters
All Indian Law Reports Allahabad series
A.P Andhra Pradesh
Art. Article
BLJ Bombay Law Journal
Bom LR Bombay Law Reporter
Cr. LJ Criminal Law Journal of India
CrPC Criminal Procedure Code
DPs Directive Policy
Edn. Edition
FRs Fundamental Rights
Guj Gujrat
Hon’ble Honorable
IPC Indian Penal Code
Jul July
Ors. Others
QBD Queen’s Bench Division (Eng)
pat Indian Law Reports Patna series
r/w Read with
S Section
SC Supreme Court
SCR Supreme Court Reporters
Sec. Section
TLR Times Law Reports (Eng)
U.P Uttar Pradesh
u/s Under section
V. Versus
 INDEX OF AUTHORITIES

 LEGISLATION
1. THE INDIAN CONSTITUTION ACT, 1950.
2. INDIAN PENAL CODE, 1860.
3. CODE OF CRIMINAL PROCEDURE, 1973.

 CASES REFERRED
1. Reg.V.AlexanderMartinSullivan,

2. PattersonV.Colorad.

3. Charles T. Schenck V. United States.

4. Debs V. UnitedStates

5. Brandenburg Case

6. Arup Bhuyan V. The State Of Assam

7. S.Rangarajan V.P .Jagjivan Ram

8. Lohia Case and Kedarnath

9. Arundhati Roy Case

10. Frank futer J. in Pennekamp Vs. Florida

11. State Of Karnataka V. Dr.Praven Bhai Togadia

12. Binayak Sen V.State Of Chhattisgarh

  BOOKS REFERRED
1. V.N. SHUKLA, CONSTITUTION OF INDIA (12TH ED., 2013).
2. DR. D.D. BASU, CONSTITUTIONAL LAW OF INDIA, (8TH ED., 2009).
3. P.M. BAKSHI, THE CONSTITUION OF INDIA, (14TH ED., 2017).
4. DR. J.N. PANDEY, THE CONSTITUTIONAL LAW OF INDIA, (51ST ED., 2014).
5. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, (4TH ED., 2010).
6. R.S. BEDI, THE CONSTITUION OF INDIA, (10TH ED., 2013).
7. DR. S.C. KASHYAP, CONSTITUTIONAL LAW OF INDIA, (1ST ED., 2008).
8. DR. J. N. PANDEY, CONSTITUTIONAL LAW OF INDIA,54TH EDITION, 2017.
9. K D GAUR, TEXTBOOK ON INDIAN PENAL CODE, SIXTH EDITION, 2018.
10.UNIVERAL’S CRIMINAL MANUAL, 2017 EDITION.
11.SHAILENDER MALIK, THE INDIAN PENAL CODE, TWENTY FIFTH
EDITION, 2011.
12.RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, THIRTHY
FOURTH EDITION, 2012
 LEGAL DATABASES
 WWW.YOURARTICLELIBRARY.COM
 WWW.LEGALSERVICEINDIA.COM
 WWW.INDIANKANOON.ORG
 WWW.LAWRATO.COM
 WWW.MANUPATRA.COM
 WWW.INDIANCASELAWS.ORG
 WWW.INDLAW.COM
 WWW.JUDIC.NIC.IN
 WWW.LEXISNEXIS.COM
 WWW.SCCONLINE.CO.IN
 WWW.WESTLAW.COM
 WWW.NCBI.NLM.NIH.GOV
 STATEMENT OF JURISDICTION

It is most humbly submitted that the Respondent has appeared before this Hon’ble
Court in response to the notice sent to the Respondent with regard to writ petition
filed by the Petitioners under Article 321of the Constitution of India.

1
Article 32 in The Constitution Of India, 1950-
32. Remedies for enforcement of rights conferred by this Part-

(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 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 ).
(4) The right guaranteed by this Article shall not be suspended except as otherwise provided for by
this Constitution.
 STATEMENT OF FACTS

1. India is the small developing country where freedom of speech and expression
is guaranteed as a fundamental right under the constitution of India. Bangistan
is the neighboring country of India.
2. That in last few months there have been various instances where freedom of
speech and expression has came under the scanner in India.
3. That Mr. Pappu Yadav an actor-politician who is member of the Indian
National party (INP) the largest opposition party for her comment on social
media "Minister Mohan Singh said that Going to Bangistan is like going to hell.
4. That Mr. Pappu Yadav filed a criminal case under section 124(A) of IPC
against Kamla Mehta.
5. That It is nothing like that. People there are just like us and there is no
difference. They treated us very well".
6. That on the receipt of the complaint, summons were issued against Kamla
Mehta. Kamla Mehta being aggrieved by these summons challenged the
constitutional validity of section 124 (A) of IPC stating it to be violative of
Article 19 (1) (a) of the Constitution of India before Supreme Court of India.
7. That Lamnesty International, an NGO conducted a campaign named "Broken
Families of Vienna (Vienna being a State of India)" where they talked about the
human rights violations by Indian Army onthe people of Vienna.
8. That the debate the Indian People Party (IPP), which is the ruling was heavily
criticized for its inaction. Moreover at the end of Program the debate got heated
and there were heard some Indian slogans.
9. That Democratic Students Union (DSU) held protests on the hangit Faizal Khan
convicted of terror attack on the Parliament of India on the campus of Murli
Santhar University for which the permission was refused by the University.
10.That Anti-Indian slogans and slogans to overthrow the government were raised
in the event.
11.That A complaint was filed against Raju Kumar the President of DSU for the
charges of sedition. The disciplinary committee of the University investigated
the matter to find out that slogans were raised by a group of outsiders wearing
masks.
12.That All India Students Organisation (AISO) a student body associated with
Indian People Party (IPP), was responsible for filing the complaint against
Lamnesty International and Raju Kumar under Section 124A of the IPC.
13.That National Crime Records Bureau in its report stated that in 2014 as many as
47 cases of sedition were filed leading to the arrest of 58 people and there has
been alarming increase in the cases in 2015.
14.That In 2016 as many as 21 cases have been filed.
15.That Kamla Mehta, Lamnesty International and Raju Kumar filed a PIL
challenging the validity of Section 124A as being violative of Article 19 (1) (a)
and Article 21 of the Constitution of India. As all the above issues concerns
interpretation of Article 19 (1) (a), 19 (2) and 21 of the Indian Constitution, it
was placed before a special bench of Supreme Court of India to decide.
 ISSUES RAISED

ISSUE 1. Whether Section 124A of IPC infringes the fundamental rights of

freedom of speech and expression enshrined under article 19(1)(a) of the
constitution?

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

ISSUE 3. Whether someone who advocates the use of violence to overthrow the
government is entitled to protection under Article 19 (1) (a)?

ISSUE 4. 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?

ISSUE 5. Whether Section 124A of IPC infringes fundamental right to life and
liberty under Article 21 of the Constitution?
 ISSUE CONCERNED

 Whether someone who advocates the use of violence to overthrow the

government is entitled to protection under Article 19 (1) (a)?
 SUMMARY OF ARGUMENTS

 Whether someone who advocates the use of violence to overthrow the

government is entitled to protection under Article 19 (1) (a)?

The counsel on the behalf of the respondents most humbly submits that someone
who advocates use of violence to overthrow the Government established by law is
not entitled to protection under article 19(1)(a) because such opinion of that person
may lead to public disorder thus attacking the sovereignty, integrity and security of
the State. Though strong or harsh criticism is not covered under the umbrella of
section 124 A I.P.C but if such criticism undermines the security of the State or
leads to disruption of public order then one is liable for punishment under 124A.
Section 124Aclearly says 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 established by law in Indiva, shall be punished. Under this section, for
the determination of criminality the court in each case has to determine the whether
the words in question have pernicious tendency and whether the person uttering
those words had the intention of creating public disorder or disturbance of law and
order. On the basis of these two factors liability can be imposed.

In the present case anti-Indiva slogans were raised during a campaign organised by
Lamnesty International, which is clearly disruption of public order. Moreover,
Democratic Students Union organized a rally against the conviction of Faizal
Khan, the terrorist behind the attack on the parliament of India and the real so
anti-India slogans were raised by some outsiders which shows that the outsiders
were influenced with such campaign. Hence, the organisers of the rally are liable
to be punished for keeping the security, sovereignty and integrity of the State on
stake.
 ARGUMENTSADVANCED
1. WHETHER SOME ONE WHO ADVOCATES THE USE OF
VIOLENCE TOOVER THROW THE GOVERNMENT IS ENTITLED
TO PROTECTION UNDER ARTICLE 19 (1) (a). ? DOES AHARSH
CRITICIS OF THE GOVERNMENTAMOUNT TO AN ACT THAT
UNDER MINES THE SECURITY OF THE STATE OR A
DISRUPTION OF PUBLIC ORDER TO MAKE A CASE UNDER
SECTION 124A.?

The counsel on the behalf of the respondents humbly submits before the Hon’ble
Bench that someone who advocates the use of violence to overthrow the
government is not at all entitled to protection under article 19(1)(a). Right to
freedom of speech & expression is not an absolute right and the person enjoying
such right is protected only till certain limits and not when he exceed -s his right
and does an act that is considered seditious in nature. Grounds under article 19(2)
circumscribe the limits of the right of freedom of speech & expression and thus an
individual can be restricted from enjoying this right in the interests of security,
sovereignty and integrity of state, disruption of public order, incitement of an
offence another such grounds elaborated under article 19(2). Moreover, someone
who advocates the use of violence to overthrow the Government established by
law, also becomes liable for sedition under section 124A as he shows his
disaffection towards the Government by doing so. In present case also, anti- India
slogans and slogans to overthrow the Government were raised thus making the
petitioners liable for sedition as it clearly shows their disaffection towards the
government.

The counsel also submits that mere harsh criticism of the government does not
amount to an act that undermines the security of the State or disrupts public order
but the intent behind such an act can make a person liable under 124A IPC, if
such an act leads to disaffection towards the Government established by the law.
If the individual deliberately criticizes the government in a way that it excited
hatred or contempt against the government established be law,then he may be
booked under section 124A for sedition.

In the present case where Kamla Mehta gave pro-Bangistan statement or where in
a program conducted by Lamnesty Internation a government established by law
was harshly criticized which led to raising of anti-India slogans, such acts where
done with the intent to excite hatred against the government established by law
and thus they were rightfully charged for sedition.

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  SEDITION MUST BE UNDER STOOD IN COMPARISON WITH
FOREIGN LAWS
Sedition is a controversial term that is rampantly and carelessly thrown about in
today's societal dialogue. There has always been a clash between section 124A
and article 19(1)(a). Despite several cases challenging the validity of section
124A, it's present status is that it has been constitutionally upheld. Over the
years, the Indian Judiciary has, through various cases, established its stand on
the sedition laws in the country. The legal viewpoints considered and the tests
applied by the Indian courts are very similar to foreign system, especially the
American system. With this regard, a basic understanding of the foreign rules
will warrant a much easier approach on our part regarding the judicial stand in
our own country.

In Reg. V. Alexander Martin Sullivan, Fitzgerald J., defined sedition as any

practice by word, deed or writing, which intends to disturb the peace in state
and incite discontentment against the government in the state and the laws of
the empire. It is indication of disloyalty in State.

The initial test applied to speech in America that criticised the Government was
the “bad tendency” test. The bad tendency principle is a test which permits
restriction of freedom of speech & expression by Government, if it is believed
that a form of speech has a sole tendency to incite or cause illegal activity. The
principle was formulated in the case of Patterson V. Colorad.

However, one of the first cases related to sedition after passing of the Bill Of
Rights in which the Supreme Court of America was requested to strike down a
law violating the free speech clause was Charles T. Schenck V. United States.
In this case, Holmes J. added a new dimension to laws related to speech against
State even as they accepted the bad tendency test. Holmes J. introduced the
“clear & present danger” test in the American legal system by asking ‘whether
the word sued in such circumstances are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has
a right to prevent.’

This test was further extended by Holmes J. in Debs V. UnitedStates in which

Debs, apolitical activist, had not spoken any words that posed a clear and
present danger but a speech in which he denounced militarism, was none the

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 less found to be sufficient ground for his conviction. Holmes J. suggested that
the speech had “natural tendency” to occlude the draft. In Dennis V. United
States, clear and present danger test was again upheld. Later, a doctrinal shift
began in a case where the majority reiterated “bad tendency” test but Holmes J.
dissented and relied on his “clear & present danger” test.

The present day Court’s follow the principle that was established in the
Brandenburg Case. In this case, it was held that “clear & present danger” test
may have some value in times of emergency but in ordinary circumstances, it
had no place in assisting the interpretation. In this case, “Brandenburg Test”
was laid down which works on the three distinct elements of intent, imminence
and likelihood. The two step test currently stands as the prevailing standard to
determine protectable speech.

Current position of the Indian case laws is similar to that of the American ones.
In Arup Bhuyan V. The State Of Assam, the Hon’ble Supreme Court held the
two step “Branden burg Test” as the determinant of sedition. Despite such clear
cut process being set up by the Apex Court, there is one more analogy to
determine the scope of incitement that has been accepted by the Indian judiciary.
One of the most significant tests that have emerged after the Lohia Case and
Kedarnath Case is the analogy of 'spark in a powder keg'. The court in paragraph
13 of the case of S. Rangarajan V.P .Jagjivan Ram, explicitly held that while
there has to be a balance between free speech and restrictions for special interest,
the two cannot be balanced as though they were of equal weight. One can infer
that the courts are making it clear that exceptions have to be construed precisely
as deviations from the norm that free speech should prevail except in exceptional
circumstances. Later, In Re: Arundhati Roy Case, the Supreme Court of India
followed the view taken in the American Court by Frank futer J. in Pennekamp
Vs. Florida in which the US Supreme Court observed that :

“If men, including judges and journalists were angels there would be no
problem of contempt of court. Angelic judges would be undisturbed by extra
neous influences and angelic journalists would not seek to influence them. The
power to punish for contempt as a means of safeguarding judges in d eciding on
behalf of the community be as impartially assign to the lo to men to decide in
not a privilege accorded to judges. The power to punish for contempt of court is
a safe guard not for judges as persons but for the function which they exercise.”

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 Thus, the counsel on the behalf of the respondents most humbly submits that
sedition is not a power in the hands of the Government established by law but is
a tool to safeguard itself from such individuals who try to excite hatred and
disaffection towards the State, leading to instability. On this note, section 124A
is completely valid and is applied by the authorities with due care and caution.

 CASE LAWS RELATED TO SEDITION AND ARTICLE19(1)(a)

MUST BE STUDIED CLOSELY

Article 19(1)(a) of the Constitution as well as section 124Aof IPC on first look
seem very strait jacketed and clear but these provisions are very deep in their
implementation. For better understanding of these concepts, on must closely
study the interpretation given by the judiciary in various cases related to these
provisions.

Right to freedom of speech & expression is undoubtedly, one of them is essential

rights that the Constitution ensures to every individual. However, in the case of
State Of Karnataka V. Dr. Praven Bhai Togadia, it was held that the valuable
and cherished right to freedom of speech and expression may at times have to be
subjected to reasonable subordination of social interests, needs and necessities to
preserve the very chore of democratic life, preservation of public order and rule
of law.

In Binayak Sen V.State Of Chhattisgarh mere possession and distribution of

objectionable literature led to conviction. One Mr. Piyush Guha confessed that
Binayak Sen, a public health advocate had delivered certain letters to him to be
delivered to Kolkata. These letters allegedly contained naxal literature and
convicting the accused on this basis, the High Court cited the wide spread
violence by banned Naxalite groups against members of armed forces .Similarly,
in one case it was held that the accused does not necessarily have to be the author
of seditious material for a charge of sedition to be established.

In another case of Chhattisgarh the accused was found to be in possession of

Maoist literature and was a member of banned organisation CPI(M). He was also
accused of inciting and provoking people to join the organisation, with the
intention of overthrowing the current capitalist Government through armed
rebellion. The accused in this case was also convicted for sedition.

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 Hon’ble Apex Court accepted that the line dividing preaching disaffection
towards the Government and legitimate political activity in a democratic setup
cannot be neatly drawn. The objects of sedition generally are to induce discontent
and insurrection and stir up opposition to the Government and bring the
administration of justice into contempt; and the very tendency of sedition is to
incite the people to insurrection and rebellion.

Thus, the counsel would like to conclude that in the present case also, the intent
of Kamla Mehta, Lamnesty International and Democratic Students Union was to
incite disaffection towards the Government which led to disruption of public
order where anti-India slogans and slogans to overthrow the Government were
raised and hence the speech & and expression of these individuals is not at all
protectable under article 19(1)(a) and charges of sedition imposed on these
individuals is also completely fair.

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 PRAYER

WHEREFOREINTHELIGHTOFTHEISSUESRAISED,ARGUMENTSADVAN
CEDANDAUTHORITIESCITED,ITISHUMBLYPRAYEDTHATTHISHON’BL
ECOURTMAYBEPLEASED:
1. ToDeclare, thatsection 124Aof IPC, which deals with sedition and its punishment, does
not infringes the right to freedom of speech & expression given under article 19(1)(a) of the
Constitution.

2. ToDeclare, the right to freedom of speech & expression enshrined in article 19(1)(a) is not
unfettered but subject to certain reasonable restrictions.

3. Tohold, Ms. Kamla Mehta, Lamnesty International & Democratic Students Union guilty
for the offence of sedition under 124Aas they were engaged in seditious activities.

4. ToDeclare, that the punishment under section 124A of IPC is proportional and it does not
violates right to life & personal liberty as enshrined under article 21 of the Constitution.

AND/OR

PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT THIS

HON‟BLE COURT MAY DEEM FIT IN THE INTERESTS OF JUSTICE,
EQUITY AND GOOD CONSCIENCE.

All of which is humbly prayed.

SD/-

Counsels for the Respondents

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