IMS Unision 4th Nat. Moot Memo(Respondent)

.

TEAM CODE: TE-1-R

IN THE HON’ BLE SUPREME COURT OF INDIANA

APPEAL NO.____/2016 CLUBBED WITH WRIT PETITION NOS.___/2016 & ___/2016

IN THE MATTER OF

Tomar Rashid & Ors.

…Petitioners

v. Union Union of Indi Indiana ana

…Respondent

MEMORIAL ON BEHALF OF THE RESPONDENT

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IMS UNISON UNIVERSITY 4 NATIONAL MOOT COURT COMPETITION, 2016

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IMS UNISON UNIVERSITY 4

NATIONAL MOOT COURT COMPETITION, 2016 2016

CONTENTS

· LIST OF ABBREVIATIONS………………………………………………………………………………..3 · INDEX OF AUTHORITIES………………………………………………………………………………4 ………………………………………………………………………………4-7 -7 · STATEMENT OF JURISDICTION………………………………………………………………………….8 · STATEMENT OF FACTS………………………………………………………………………………….9 · STATEMENT OF ISSUES………………………………………………………………………………...10 · SUMMARY OF ARGUMENTS……………………………………………………………………………11 · ARGUMENTS ADVANCED………………………………………………………………………………12 1. THE WRIT PETITION IS NOT MAINTAINABLE………………………………………………………...12 1.1.

That the Peti Peti ti oner oner No.1’ s Fundamental Fundamental Right to Peace Peaceful ful Ass Assembly was not I nfr inged by the ……………………………..………………………………………………………….12-14 State……………………………..…………………………………………………………. 12-14

1.2. 1.2.

……………………………………14-15 That That the there re exis exists ts an an Alte Altern rnat atee and and Effic Efficac acio ious us Rem Remed edyy …………………………………… 14-15

1.3. 1.3.

………………………15 That That the rule rule of of Exhau Exhausti stion on of of Local Local Rem Remed edyy is not not Viola Violativ tivee of Art. Art. 32………………………15

1.4. 1.4.

………………………………………15 That That in in any any case case no no Fund Fundame amenta ntall Righ Rights ts we were re Violat Violated ed ………………………………………15

1860 IS NOT UNCONSTITUTIONAL…………………..15 2. SECTION 124A OF THE INDIANA PENAL CODE, 1860

3.

2.1. 2.1.

………………………………………..…..16-17 That That the there re is is a pres presum umpt ptio ion n of con const stit itut utio iona nali lity ty………………………………………..….. 16-17

2.2. 2.2.

That That Secti Section on 124A 124A does does not not Violat Violatee Art. Art. 19(1 19(1)) (a) (a) of of the Consti Constitut tution ion……………………..17-20 ……………………..17-20

2.3. 2.3.

That That Secti Section on 124A 124A does does not not Viola Violate te Art. Art. 14 of of the the C Cons onstitu titutio tion n ……………………………….21

2.4. 2.4.

That That Secti Section on 124A 124A does does not not Viola Violate te Art. Art. 21 of of the the C Cons onstitu titutio tion n ………………………………21

THE CONVICTION OF THE ACCUSED SHOULD BE UPHELD……………………………………...… ……………………………………...…21-22 21-22

4. § 24A OF THE PRESS COUNCILS ACT, 1978 ……………..24 1978 IS NOT ULTRA-VIRES THE CONSTITUTION……………..24 4.1.

That there is Presum Presumption ption of Constitutio Constitutionality nality of a law…………………………………… law……………………………………23-24 23-24

4.2. 4.2.

……………………………………24-25 That That § 24A 24A does does not not Viol Violat atee Art Art.. 14 of the the Cons Consti titu tuti tion on…………………………………… 24-25 1

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4.3 4.3.

…………………………………………………25-27 That That § 24A 24A do does no not Vio Viollate ate Art Art.. 19 19(1) (a)………………………………………………… 25-27

4.4.

That the Restriction Restriction Placed by § 24A is Reasonable Reasonable and falls under under the Ambit of Art. Art. 21 of the

…………………………………………………………………………………….27 Constitution…………………………………………………………………………………… .27 · PRAYER ……………………………………………………………………………………………… ………………………………………………………………………………………………..28 ..28 · BIBLIOGRAPHY…………………………………..…………………………………………………… …………………………………..…………………………………………………….29 .29

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INDEX OF ABBREVIATION

Abbreviation

Definition

&

And

AC

Appeal Cases

AIR

All India Reporter

All.

Allahabad

Art.

Article

Cr.P.C.

Code of Criminal Procedure, 1973

Govt.

Government

HL

House of Lords

IPC

Indiana Penal Code, 1860

Ker.

Kerala

Mad.

Madras

Para.

Paragraph

PC I

Press Councils Act, 1978

r/w

Read With

§

Section

SC

Supreme Court

SCALE

Supreme Court Almanac

SC C

Supreme Court Cases

SCJ

Supreme Court Journal

SC R

Supreme Court Report

UOI

Union of India

v.

Versus

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INDEX OF AUTHORITIES CASES CITED

S.No.

Case

Citation

1.

A. K. Gopalan v. State of Madras

(1950) SCR 88 (253-4)

2.

AG v. HRH Prince Ernest Augustus

(1957) 1 All ER 49

3.

Amrit Banaspati Ltd v. Union of India India

AIR 1995 SC 1340

4.

AP Coop All Seeds Seeds growers Federation Ltd. Ltd. V. D.

(2007) 13 SCC 320

Achyuta Rao

5.

Arun Jaitley v. State Of U.P

APPLICATION U/S 482 No. No. - 3270 32703 3 of 2015 2015

6.

Arunachala Nadar, M.C.V.S. v. State of Madras

AIR 1950 SC 300

7.

Arup Bhuyan Bhuyan v. State of Assam

(2011) 3 SCC 377

8.

Asstt. Collector of of Central Excise Excise v. Jainson Hosiery Hosiery

AIR 1979 SC 1889

9.

B.R. Enterprises Enterprises v. State of Uttar Pradesh

AIR 1999 SC 1867

10.

Bachan Singh Singh v. State of Punjab

AIR 1982 SC 1325

11.

Bennett Coleman Coleman & Co. Ltd. v. Union Union of India

AIR 1973 SC 106 106

12.

Bombay v. F.N. Balsara

AIR 1951 SC 318

13.

Captain Subhash Kumar v. The Principal Officer,

1991 (2) SCC 449

Mercantile Marine Marine Deptt .

14.

Charanjit lal Chowdhary v Union of India

AIR 1951 SC 41

15.

Chief Justice, Andhra Pradesh v. LVA Dikshitulu

AIR 1979 SC 628

16.

CIT v. S. Teja Singh

AIR 1959 SC 352

17.

Commissioner of Income Tax v. Hindustan Bulk

(2003) 3 SCC 57

Carriers

18.

Confederation of Ex-serviceman Association Association v. Union

(2006) 8 SCC 399

of India

19.

Daryao v. The State of Uttar Utt ar Pradesh

AIR 1961 SC 1457.

20.

Delhi Cloth and Gen. Gen. Mill Co. Ltd. V. Union Union of India

AIR 1983 SC 937

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21.


Delhi Transport Corporation Corporation v. D.T.C. D.T.C. Mazdoor

AIR 1991 SC 101

Congress

22.

Dr. D.C. Saxena Saxena v.Hon'ble the Chief Chief Justice of India India

(1996) 5 SCC 216

23.

Express Newspapers v. Union of India

AIR 1958 SC 578

24.

Girdharilal & Sons v. Balbirnath Mathur

AIR 1986 1986 SC SC 1099 1099

25.

Gopalan v. State of Madras

(1950) SCR 88

26.

Harakchand Harakchand v. Union of India India

AIR 1970 SC 1453

27.

Hardik Bharatbhai Bharatbhai Patel Thro. His Fater Bharatbhai Bharatbhai

Special Criminal Application

Narsibhai Patel v. State Of Gujarat

No. 6330 of 2015

In Re Ramlila Ramlila Maidan Incident v. Home Secretary Secretary &

(2012) 5 SCC 1

28.

Ors

29.

Indra Das v. State of Assam (2011) 3 SCC 380

(2011) 3 SCC 380

30.

Kedar Nath v. State of Bihar

AIR 1962 SC 955

31.

Krishna Kakkanth v. Govt. of Kerala

AIR 1997 SC 128

32.

Laxmi v. State of U.P.

AIR 1971 SC 873

33.

M. Pentiah v. Veeramallappa Muddala

AIR 1961 SC 1107

34.

M.J. Sivani v. State of Karnataka

AIR 1995 SC 1770

35.

Madhav Hayawadanrao Hayawadanrao Hoskot Hoskot v. State of

(1978) 3 SCC 544

Maharashtra

36.

Mahant Moti Das v. S.P. S.P. Sahi Sahi

AIR 1959 SC 942

37.

Management Management of Advance Insurance Insurance Co. Co. Ltd. v.

AIR 1970 SC 1126

Gurudasmal

38.

Maneka Gandhi Gandhi v. Union of India

AIR 1978 SC 597

39.

Maranadu & Anr v. State by Inspector of Police, Tamil

(2008) Cr LJ 4562 (SC)

Nadu

40.

Maunsell v. Olins

(1975) I All ER 16 (HL)

41.

Municipal Corporation, Corporation, City of Ahmedabad Ahmedabad v. Jan Jan

AIR 1986 SC 1205

Mohd. Usmanbhai Usmanbhai

42.

Municipal Council, Council, Madurai v. Narayanan

AIR 1975 SC 2193

43.

Mylapore Club v. State of Tamil Nadu

(2005) 12 SCC 752

44.

Naraindas v. State of M.P.

AIR 1974 SC 1232

45.

Narendra Kumar Kumar v. Union of India

AIR 1960 SC 430 5

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46.

Nazir Khan And Others v. State Of Delhi

(2003) (2003)8 8 SCC 461

47.

O.K. Ghosh v. E.X. Joseph

AIR 1963 SC 812

48.

Om Kumar v. Union of India

AIR 2000 SC 3689

49.

Osmania Osmania U niversity Teache Teacherr ’ s Ass Assoctn. v. State of A.P.

(1987) 4 SCC 671

50.

P.P. Enterprises v. Union of India

1982 C.C. (Cr.)341

51.

Philips India Ltd. v. Labour Court

(1985) 3 SCC 103

52.

Prem Chand Garg v. Excise Commissioner Commissioner

AIR 1963 SC 996.

53.

Prithi Pal Singh v. Union of India

AIR 1982 SC 1413

54.

R.K. Garg v Union of India

1985 1 SCC 641

55.

Ram Krishna Dalmia Dalmia v. S.R. Tendolkar Tendolkar

AIR 1958 SC 638

56.

Ramjilal v. Income Tax Tax Officer

AIR 1951 SC 97.

57.

Ramkrishna Dalmia v. Tendolkar Tendolkar

AIR 1957 SC 532

58.

RMD Chamarbaugwala Chamarbaugwala v. Union of India

AIR 1957 SC 628

59.

Santosh Singh v. Delhi Administration

AIR 1973 SC 1091

60.

Shreya Singhal v. Union of India

(2015) 5 SCC 1

61.

State of Andhra Pradesh v. McDowell & Co.

AIR 1996 SC 1628 at 1641

62.

Stat Statee of Madr Madras as v. V.G. V.G. Row Row

1952 AIR 196

63.

Stock v. Frank Jones (Tipton) Ltd .

(1978) 1 All ER 948 (HL)

64.

Sukhnandan Sukhnandan v. Union of India

AIR 1982 SC 902

65.

Sunil Fulchand Shah v. Union of India

AIR 2000 SC 1023

66.

Superintendent Superintendent Central Prison v. Ram Manohar Lohia,

AIR 1960 SC 633

67.

Thakorebhai v. State of Gujrat

AIR 1975 SC 270

68.

Tinsukhia Electric Supply Co. Ltd. v. State of Assam

AIR 1990 SC 123

69.

Union of India v Elphinstone Spinning and Weaving

AIR 2001 SC 724

Co. Ltd .

70.

Vrajlal Manilal & Co. v. State of Madhya Pradesh

6

AIR 1970 SC 129

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BOOKS REFERRED th

1. V. DICEY, THE LAW OF THE CONSTITUTION (10 ed. 1959) nd

2. ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA (2 ed. Reprint 2010) th

3. DR. DURGA BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA (20 ed. Reprint 2012) th

4. DR. J.N. J.N.P PANDEY, CONSTITUTIONAL LAW OF INDIA (38 ed. 2002) th

5. DR.DURGA BASU, CONSTITUTIONAL LAW OF INDIA (8 ed. 2011) th

6. H.M.SEERVAI, CONSTITUTIONAL LAW OF INDIA (4 ed.) 7. A. SABITHA, PUBLIC HEALTH: ENFORCEMENT AND LAW (1st ed. 2008). th

8. JUSTICE G.P.SINGH, PRINCIPLES OF STATUTORY INTERPRETATION (12 ed. Reprint 2011) th

9. M.P.JAIN, INDIAN CONSTITUTIONAL LAW (5 ed. 2003) 10. DARREN J OBYRNE, HUMAN RIGHTS: AN INTRODUCTION (1st ed. 2003). 11. DURGA DAS BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW (3rd ed. 2008). 12. COLETTE DAIUTE, HUMAN DEVELOPMENT & POLITICAL VIOLENCE (1st ed. 2010). 13. DARREN J OBYRNE, HUMAN RIGHTS: AN INTRODUCTION (1st ed. 2003). 14. R. SATYA NARAYANA , NATURAL JUSTICE: EXPOANDING HORIZONS (1st (1st ed. 2008). 2008).

CONSTITUTIONS, STATUTES, CONVENTIONS , ARTICLES ET RTICLES ET AL . 1. Internatio International nal Covenan Covenantt on Economic, Economic, Socia Sociall and Cultural Cultural Rights, Rights, 1966. 1966. 2. Internatio International nal Conven Convention tion on Civil Civil and and Political Political Right Rights, s, 1966. 1966. 3. United United Nation Nation Declaration Declaration of Human Human Rights, Rights, 1948. 1948. 4. Consti Constituti tution on of India India,, 1950 1950.. 5. Indi Indian an Pen Penal al Cod Code, e, 196 1966. 6. 6. Code Code of Crimin Criminal al Proc Procedu edure, re, 1925. 1925. 7. Press Press Cou Counci ncill of Ind India ia Act, Act, 1978 1978..

ARTICLE

Universall Jurisdiction Jurisdiction and and its Interpla Interplayy with Sovereign Sovereign Immunity Immunity 1 INDIAN JOURNAL OF 1. Gora Goran n Simic imic,, Universa

LAW AND INTERNATIONAL AFFAIRS 121 (New Delhi 2016) 7

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STATEMENT OF JURISDICTION

The Petitioners have approached the Honble Suprem Supremee Court Court of of Indian Indianaa that that has has the jurisd jurisdict iction ion to hear hear this this matter matter unde underr Art. 131, 131, Art. Art. 139A 139A and Art. Art. 32 of the the Cons Constitu titutio tion n of Indi Indiana ana.. The Resp Respond onden entt humbly submits to the same.

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STATEMENT OF FACTS I

Indiana is a federal republic country situated in south-east Asia along the equator. The country gained freedom in 1957 after a long drawn struggle against a European nation which established the common law system. New Delporto is an education education hub of the country as the city city has some of the best colleges colleges & universities of the nation. One such university is Great Northern University (GNU) which has earned special reputation in the field of research and academic contributions. contributions.

II

On June 8, 2016, a countrywide strike was called by the parent body of GNUSU and during the strike; a national highway was allegedly blocked by the supporters of AISU in Utkal, another Union Territory in Indiana. The protestors were lathi charged by the police and some of them were seriously injured and were subsequently admitted to the hospital.

III

On 16th of June, 2016, a rally was organized in New Delporto by GNUSU to show solidarity to the injured students of Utkal. Meanwhile, some posters were put up across the campus of GNU which claimed that the rally was also also in solidarity with the hanging of Chengiz Chengiz Khan. As the rally began, the protestors began to shout slogans against th e so called “dictatorship” of the government and pledged to fight against the government till the date

IV

As the monsoon session began, the government by virtue of its majority made an amendment to the Press Press Councils Councils Act, 1978. 1978. § 14A was was incorp incorporate orated d into the the Act. One of them, them, Mr. Mr. Kamal Kamal Kapoor Kapoor filed a petition petition in the Supreme Supreme Court Court of Indiana Indiana and challeng challenged ed the constituti constitutiona onality lity of § 14A of the Press Press Councils Act, 1978. The Supreme Court of Indiana in the interest of justice clubbed the 3 matters given their inter connection and listed them for final hearing. 9

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STATEMENT OF ISSUES 1. WHETHER OR NOT THE WRIT PETITION IS MAINTAINABLE . 2. WHETHER OR NOT § 124A OF THE INDIANA PENAL CODE, 1860 IS UNCONSTITUTIONAL. CCUSED IS LIABLE TO BE QUASHED . 3. WHETHER OR NOT THE CONVICTION OF THE ACCUSED

4. WHETHER OR NOT § 24A OF THE PRESS COUNCILS ACT, 1978 1978 IS ULTRA-VIRES THE CONSTITUTION.

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SUMMARY OF ARGUMENTS

1. THE WRIT PETITION IS NOT MAINTAINABLE.

It is the humble submission of the Respondent that the instant Writ Petition is not maintainable because Petitioner No.1s Fundamental Fundamenta l Right Right to Peaceful Peaceful Assembly Assembly has not been been infringed infringed by the the as the the Petitioner was part of an unlawful assembly and the Police rightfully dispersed them using necessary force force and conseque consequently ntly Petitioner Petitioner No.1 No.1 is not entitled entitled to compensa compensation. tion.

2. § 124A OF THE INDIANA PENAL CODE, 1860 1860 IS NOT UNCONSTITUTIONAL.

It is respectfully respectfully urged that § 124A is not unconstitutional unconstitutional because because it does does not violate violate any Fundamental Fundamental Rights given given in Part III of the Constitution. Constitution.

3.

THE CONVICTION OF THE ACCUSED SHOULD BE UPHELD.

The Respondent vociferously argues that the conviction of the accused should be upheld, as the speech made by Petitioner No.2 was seditious.

4. § 24A OF THE PRESS COUNCILS ACT, 1978 1978 IS INTRA-VIRES THE CONSTITUTION

It is respectfu respectfully lly submitted submitted that that § 24A of the PCI Act, Act, 1978 is intra-vire intra-viress the Constitutio Constitution n as it falls within and is constitutionally protected by Art.19(3) that lays out the reasonable restrictions that can be put on free speech.

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ARGUMENTS ADVANCED

1. THE WRIT PETITION IS NOT MAINTAINABLE. It is humbly submitted that Petitioner No.1s Fundamental Right to assemble peacefully and without arms was not violated by the State and same is contended on the following grounds: 1.1. PETITIONER’ S FUNDAMENTAL RIGHT

TO

PEACEFUL ASSEMBLY

WAS NOT INFRINGED BY THE

STATE.

§ 141 (fourth) of the IPC IPC defines Unlawful Assembly Assembly as:

“ An ass assembly of fi ve or more per per sons is des desi gnated gnated an ‘ U nlaw ful Ass Assembly’ , if the common object object of the persons composing composing that assembly assembly is by means of criminal force, or show show of criminal force, force, to any person, person, to take or obtain obtain possession possession of any property, or to deprive deprive any person person of the enjoyment enjoyment of a right of way, or of the use use of water or other incorporeal right of which he is in possession possession or enjoyment, enjoyment, or

to enforce any any ri ght or suppose upposed r ight.”

The right to peacefully peacefully assemble and and without arms is given given in Art. 19(1) (b) of the Constitution and, and, idem quod other rights, a bar has been placed on the same provided under Art. 19(3) which lists the reasonable restrictions that can be constitutionally put on t he same and it states:

“ Art. Art. 19 19(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said

sub clause”

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In the present factual matrix, the members of GNUSU and AISU blocked a National Highway, with the present and immediate purpose of carrying a protest into effect.

1

This act of blocking a National

Highway potentially caused the citizens using and/or depending on the highway for business, transit of goods, medical emergencies, emergencies, or other purposes a considerable considerable loss.

The respondents submit that the blocking of highway by the protester amounted in violation of law as the National highway is for the regular movement of traffic making it of paramount importance. The decision to choose national highway as the location of protest is in itself violation of law. The right which flows from Art. 19 (1) (b) is not a right to hold a meeting at any place and time. It is a ri ght which can be regulated.

2

It is not surprising that the Constitution makers makers conferred a fundamental fundamental right on all citizens 'to assemble assemble peaceab peaceably ly and without without arms'. arms'. While prior to the coming coming into force of the Consti Constitution tution the right right to assemble assemble could could have been been abridged abridged or taken away away by law, now that that cannot cannot be done except except by imposing imposing reason reasonable able restric restrictions tions within within Art. 19(3). 19(3). It is urged that that the right right to assemble assemble does does not mean that that that right can be exercised at any and every every place.

The action of lathi charge by police is just as they followed due process. Any action taken by a public authority which is entrusted with the statutory power power has to be tested by the application of two standards- first , the action must be within the scope of the authority conferred by law and, second , it must be reasonable. reasonable. If any action, within the scope of the authority conferred by law is found to be unreasonable, it means that the procedure established under which that action is taken is itself 3

unreasonable.

' procedure established by law ' changed its character after the judgment of this Court in The concept of procedure 4

the case of Maneka Maneka Gandhi Gandhi v. UOI where this Court took the view as under:

“ The pri ncipl e of r easonablene asonablenesss, which l egall y as well as phil osophically is an essential element element of equality equality or non arbitrariness, arbitrariness, pervades pervades Art. 14 like a brooding brooding

1

Maranadu & Anr v. State by Inspector of Police, Tamil Nadu, (2008) Cr LJ 4562 (SC). In Re Ramlila Maidan Incident v. Home Secretary & Ors Ors , (2012) 5 SCC 1. 3 In Re Ramlila Maidan Incident v. Home Secretary & Ors Ors , (2012) 5 SCC 1. 4 AIR 1978 SC 597. 2

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omnipresence omnipresence and the procedure procedure contemplated contemplated by Art. 21 must answer answer the test of reasonab reasonablene leness ss in order order to be right and just just and fair and and not arbitra arbitrary ry fanciful fanciful or oppressive otherwise it would be no procedure at all and the requirement of Art. 21 woul d not be satisfied.” satisfied.”

5

This was also noted in the case of Madhav Hayawadanrao Hoskot v. State of Maharashtra where this Court took the following view:

“ Pr ocedure ocedure establ establ ished ished by law are wor ds of of deep deep meaning for all lovers of liberty and judi j udi ci al sent sentii nels.” nel s.” It is furthermore submitted by the respondent that the right to protest of the petitioner does not have to be at the cost of others. It is pertinent to mention that the protesters blocked the highway which is of paramount national interest while stopping the movement of the traffic; thus taking away the Fundamental Right to movement of the masses which has been enshrined under Art. 19(1)(d) of the Constitution. 6

Saxena v. Hon'ble Hon'ble the Chief Justice Justice of India , this Court held: In Dr. D.C. Saxena

“ There There is a cor cor relati ve duty not not to interfere with the liberty of others. Each is entitled to dignity dignity of person person and of reputat reputation. ion. Nobody Nobody has has a right to denigrate denigrate other others' s' right to

person or reputation.”

The Police, in compliance with the law, dispersed the unlawful assembly using standard practice as given in various police manuals, manuals, upon the mob conducting itself in such such a manner that showed a determination

not

to

disperse,

and

by

continuing

to

block

a

National

Highway.

1.2. 1.2. THAT THEIR EXISTS AN ALTERNATE AND EFFICACIOUS REMEDY.

7 It was held this Honble apex court in Asstt. Collector of Central Excise Excise v. Jainson Hosiery Hosiery where there

is alternative statutory remedy court should not intervene. In the instant matter, it is the humble

5

(1978) 3 SCC 544. (1996) 5 SCC 216. 7 AIR 1979 SC SC 1889. 6

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submission of the Respondent that the Petitioners remedy, if any, lays in tort and not under writ jurisdiction of the Apex Court. Thus, the present writ petition in not maintainable and should be dismissed at once.

1.3. 1.3. THE RULE OF EXHAUSTION OF LOCAL REMEDI ES IS NOT A VIOLATION OF ART. 32.

The Petitioner may contend that the rule of exhaustion of local remedies is unconstitutional and volatile of the guarantee in Art. 32(1). However, it is submitted that the right under Art. 32(1) is not so absolute that no rules of procedure apply to it. Art. 32(1) confers a right to move the SC by " appropriate proceedings proceedings". “ Appropriate proceedings proceedings” interpreted to mean “ procedure relating relating to form, conditions of 8

lodgment of petitions, and compliance with a reasonable directions” . Indeed, procedural factors such as 9

res judicata, delay in filing the petition and parallel proceedings in another Court are considered before entertaining the appropriateness appropriateness of a particular particular proceeding. It is submitted that the rule of exhaustion of local remedies is another such procedural guideline and does not violate the right under Art. 32.

1.4. 1.4. IN ANY CASE, NO FUNDAMENTAL RIGHTS WERE VIOLATED.

The jurisdiction under under Art.32 can be invoked only when Fundamental Rights are violated. violated. It has been held that if a right, other than a fundamental right, is claimed to be violated then such questions can be addressed only in the appropriate proceedings and not on an application under Art. 32.

10

In the instant

case, it is submitted no fundamental fundamental rights of the Petitioner Petitioner have been been violated; therefore, this this petition must fail.

124A OF THE INDIANA PENAL CODE, 186 1860 IS NOT UNCONSTITUTIONAL. 2. § 124 It is the humble submission of the Respondents that S. 124A of the Indiana Penal Code, 1860 is not unconstitutional. This § is extremely necessary for the security security of of state and and maintaining peace and and public tranquility.

8

Prem Chand Garg v. Excise Commissioner , AIR 1963 SC 996. Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457. 10 Ramjilal v. Income Tax Officer , AIR 1951 SC 97. 9

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2.1 THAT THERE IS A PRESUMPTION OF CONSTITUTIONALITY

The power to legislate is a plenary power vested in the legislature and unless those who challenge the legislation clearly establish that their fundamental rights under the Constitution are affected or that the legislature lacked legislative competence, they do not succeed in their challenge to the enactment brought forward in the wisdom of the legislature. Challenge on ground of wisdom of legislation is not permissible as it is for the legislature to balance various interests.

11

The Legislature composed composed as it is of the elected representatives representatives of the people people is presumed to know and be aware of the needs of the people and what is good or bad for them and that a Court cannot sit in judgment over the wisdom of the legislature.

12

The Legislature appreciates and understands the needs of

the people, that it knows what is good or bad for them, that the laws it enacts are directed to problems which are made manifest by experience, that the elected representatives in a legislature enact laws which they consider to be reasonable, for the purposes for which these laws are enacted and that a legislature would not deliberately flout a constitutional safeguard or right.

13

The courts are not to be concerned with the need or propriety of laws. The judicial function is not to canvass the legislative judgement, or to hold the impugned statute to be ill-advised or unjustified or not justified by the facts on which it is based. The function of the Courts is to see whether the law in question transgresses any constitutional restriction imposed on the legislature.

14

First, attempt should be made by the Courts to uphold the charged provision and not to invalidate it merely because one of the possible interpretations leads to such a result, howsoever attractive it may 15

be.

Therefore usually the presumption is in the favour of the Constitutionality of the statute and the onus to prove that it is unconstitutional lies upon the person who is challenging it.

16

The allegations regarding

the violation of a constitutional provision should be specific, clear and unambiguous and it is for the person who impeaches impeaches the law as violative of the constitutional constitutional guarantee to show show that the particular

11

Mylapore Club v. State of Tamil Nadu, (2005) 12 SCC 752. State of Andhra Pradesh v. McDowell & Co., AIR 1996 SC 1628 at 1641. 13 Ram Krishna Dalmia v. S.R. Tendolkar , AIR 1958 SC 638; Vrajlal Manilal & Co . v. State of Madhya Pradesh, AIR 1970 SC 129; Bachan Singh v. State of Punjab, AIR 1982 SC 1325. 14 Charanjit Lal Chowdhary v. Union of India, AIR 1951 SC 41. 15 B.R. Enterprises v. State of Uttar Pradesh, AIR 1999 SC 1867. 16 Charanjit lal Chowdhary v. Union of India, AIR 1951 SC 41; Bombay v. F.N. Balsara, AIR 1951 SC 318; Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942; Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101. 12

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provision is infirm for the reasons stated by him.

17

Such grounds must be corroborated by Constitutional

provisions, such such as, Art. 14, 19 or or 21.

Moreover, it is a well well settled principle of interpretation that that a statute must be be interpreted in the light light of – the mens or sentential legi s,18 as a whole in its context – ex visceribus the intention of the legislature legislature – actus

19

and

in

way

to

make

it

effective – ut

res

magis

valeat

quam

pereat .

20

When more than one interpretation may be given to a legal provision, it must uphold that interpretation that makes a provision constitutional. Any interpretation that makes a provision ultra vires the Constitution must be rejected.

21

Therefore, the court is to presume that the impugned law is

constitutional until it has compelling grounds to declare it unconstitutional. In Kedar Nath v. State of Bihar ,

22

which is the locus classicus and binding authority on the issue of

sedition, § 124A was was interpreted in the narrower sense sense and was thus thus sustained against a challenge under Art. 19(2). Sedition was defined as meaning words, deeds or writings having a tendency or intention to disturb public tranquility, to create public disturbance or to promote disorder. disorder. The Supreme Court rejected the broader view of § 124A that incitement to public public order was not an essential essential element of the offence of sedition sedition under this section. This This broad view view would have have made § 124A unconstitutional unconstitutional vis-avis Art. 19(1)(a) 19(1)(a) read with Art. Art. 19(2). 19(2). 2.2 THAT § 124A OF

THE

INDIANA PENAL CODE, 1860 DOES

NOT VIOLATE

ARTICLE 19(1)(a)

While it is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary necessary to place place some curbs on this freedom for the maintenance maintenance of social social order. No right is an an absolute right in a welfare state, all individual rights are subservient to the rights of the public at large.

17

Amrit Banaspati Ltd v. Union of India, AIR 1995 SC 1340 at 1343. RMD Chamarbaugwala v. Union of India, AIR 1957 SC 628; Chief Justice, Andhra Pradesh v. LVA Dikshitulu, AIR 1979 SC 628; Prithi Pal Singh v. Union of India, AIR 1982 SC 1413; Girdharilal & Sons v. Balbirnath ., Mathur , AIR 1986 SC 1099; Maunsell v. Olins, (1975) I All ER 16 (HL); Stock v. Frank Jones (Tipton) Ltd ., (1978) 1 All ER 948 (HL). 19 Philips India Ltd. v. Labo Labour ur Cou Court rt , (1985) 3 SCC 103; Osmania University Teacher’s Association v. State of A.P., (1987) 4 SCC 671; Captain Subhash Kumar v. The Principal Officer, Mercantile Marine Deptt ., 1991 (2) SCC 449; Union of India v. Elphinstone Spinning and Weaving Co. Ltd. (2001) 4 SCC 139 (Constitution Bench); AG v. HRH Prince Ernest Augustus, (1957) 1 All ER 49. 20 CIT v. S. Teja Singh, AIR 1959 SC 352; M. Pentiah v. Veeramallappa Muddala, AIR 1961 SC 1107; Tinsukhia Electric Supply Co. Ltd. v. State of Assam, AIR 1990 SC 123; Management of Advance Insurance Co. Ltd. v. Gurudasmal, AIR 1970 SC 1126; Municipal Council, Madurai v. Narayanan, AIR 1975 SC 2193; Commissioner of Income Tax v. Hindustan Bulk Carriers , (2003) 3 SCC 57. 21 RMD Chamarbaugwalla v. Union of India, 1957 SCR 930. 22 AIR 1962 SC 955. 18

17

TH



There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint for that would lead to anarchy and disorder. The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed to be essential to the safety, health, peace, general order and morals of the community. What the Constitution attempts in declaring the rights off the people is to strike a balance between individual and social control. Art. 19 gives a list of individual liberties and prescribes in the various various clauses the restraints that that may be placed upon upon them by law so that they do not 23

conflict with public welfare or general morality.

Accordingly, under Art. 19(2), the state may make a law imposing ‘reasonable restrictions on the exercise of the right to freedom of speech and expression ‘in the interests of the securities of the State, S tate, friendly relations with foreign States, public order, decency, decency, morality, sovereignty and integrity of India, or ‘in relation to contempt of Court, defamation or incitement to an offence. The Constitution of India guarantees guarantees the right to freedom of Speech and expression, expression, under Art. 19(1)(a), but the same are subject to reasonable restriction imposed under Clause (2) of Art. 19. The test of reasonableness of restriction has to be considered in each case in the light of the nature of right infringed, the purpose of the restriction, the extent and nature of the mischief required to be suppressed and the prevailing social order and conditions at the time. There can be no abstract standard of reasonableness reasonableness and our Constitution provides reasonably reasonably precise general guidance in that matter.

24

In determining the reasonableness of a law challenged as an unreasonable restriction upon a Fundamental Right guaranteed by Art. 19, the court has to balance the need for individual liberty with the need for social control and the magnitude of the evil which is the purpose of the restrictions to curb or eliminate so that the t he freedom guaranteed to the individual subserves the larger public interests.

25

‘The

expression “reasonable restriction” signifies that the limitation imposed im posed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interest of the 26

public.

The question of what constitutes a “reasonable restriction” upon an Art. 19(1) fundamental right, for the purposes of Art. 19(2) to 19(6), was answered by the Supreme Court as early as 1952, in State of

23

Gopalan v. State of Madras, (1950) SCR 88 (253-4); Santokh Singh v. Delhi Administration, AIR 1973 SC. Santosh Singh v. Delhi Administration, AIR 1973 SC 1091. 25 Harakchand v. Union of India, AIR 1970 SC 1453. 26 P.P. Enterprises v. Union of India; 1982 C.C. (Cr.)341. 24

18

TH



27

Madras v. V.G. V.G. Row Row . The Court outlined a classic proportionality enquiry, holding that in adjudicating

reasonableness: “…t “…the nature of the righ ight alleged to have been infringed, the underlyi lying purpose of the restrict iction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the impo imposi sitio tion, n, the the prev prevai ailin ling g cond condit itio ions ns at the the time, time, shou should ld all all ente enterr into into the the judi judici cial al verd verdic ict. t....” While upholding the constitutinal constitutinal validity of § 124A of the IPC, a Constitution Bench of the Supreme 28

Court through its pronouncement in Kedar Nath v. State of Bihar observed that:

“ ..the sec secur ur i ty of the th e State, whi ch depends depends upon the maint enance of law and order is the very basic consideration upon which legislation, with a view to punishing offences against the State, is undertaken. Such a legislation has, on the one hand, fully to protect and guarantee the freedom of speech and expression, expression, which is the sine quo non of a democratic form form of Government Government that our Constitution has

established… But the freedom has to be guarded again becoming a licence for vilification and condemnation of the Government Government established established by law, in words words which incite incite violence or or have the tendency to create public disorder. 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 Government established by law or with the intention intention of cr eating publi c disorder.” disorder.”

It is the fundamental fundamental right of every every citizen to have have his own political political theories and ideas and to propagate them and work for their establishment so long as he does not seek to do so by force and violence or contravene any provision of law. What is not permissible in order to attain such object is any act which have the effect of bringing or which attempt to

bring

into

hatred

attempts to excite disaffection towards the Government established by law. In another landmark judgemnet,

30

or

contempt or excites or

29

the Apex Court made certain observations about the freedom under

Art. 19(1)(a). The Court observed that: "There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular 27

1952 AIR 196. supra note 22. 29 Hardik Bharatbhai Patel Thro. His Fater Bharatbhai Narsibhai Patel v. State Of Gujarat , Special Criminal Application (Quashing) No. 6330 of 2015. 30 Shreya Singhal v. Union of India, (2015) 5 SCC 1. 28

19

TH



cause howsoever howsoever unpopular is at the heart of Article 19(1)(a). 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc."

Under certain circumstances, therefore, a law depriving a citizen of his Fundamental Right may be regarded as reasonable.

31

The offence of sedition does not no t penalize ‘discussion or ‘advocacy. It does

not curb the freedom to have healthy political discussions. It only comes into the picture when the words or actions of a person reach reach the level of incitement, which which is likely to disrupt the security of state, public order and public tranquility. Hence, there is no ‘extinction of the Freedom of Speech and Expression. If at all, it is merely a “regulation”. Under Art. 19(2), a restriction can be imposed ‘in the interests of public order, security of state, et etc. c. However, the restrictions imposed in the interest of security of state to be a reasonable restriction, should be one that has a proximate and reasonable connection

32

or nexus with security of State.

33

The provisio provisions ns of the § 124A read read as a whole, whole, along with the Explanations, make it reasonably clear that the sections penalises only such activities that are intended, or have a tendency, to create disorder or disturbance of public peace by inciting violence. 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, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech speech and expression. expression. It is only when the words, written or spoken spoken etc., which have the pernicious tendency or intention of creating public dis order or disturbance of law and order that the l aw steps in to prevent such activities in the interest of public order. So construed the section strikes the correct balance between individual fundamental rights and the interest of public order. § 124A has a direct direct and proximate nexus nexus to its object i.e. i.e. security of state. It It is a regulatory measure measure which inter-alia provides against apprehended threat the security of the state. It has a direct nexus to preservation of public tranquility. Therefore, even if it operates harshly in isolated cases, its ultimate object is the maintenance of security of state and public order. 31

Narendra Kumar v. Union of India, AIR 1960 SC 430. Arunachala Nadar, M.C.V.S. v. State of Madras, AIR 1950 SC 300. 33 O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812. 32

20

TH



2.3. 2.3. THAT § 124A 124A DOES NOT VIOLATE ARTICLE 14 14

It is humbly humbly submitte submitted d that § 124A is not violative violative of A.14 of of the Constituti Constitution. on. When When a statute statute is impugned under Art. 14, it is the function of the court to decide whether the statute is so arbitrary or unreasonable that it has to be struck down. Mere factor that some hardship or injustice is caused to someone is no ground to strike down the rule altogether if otherwise the rule appears to be just, fair and reasonable and not constitutional.

34

The test of of arbitrariness lies in whether the provision provision is reasonable,

and whether there is a nexus between the restriction imposed by the provision, and the object sought to be achieved achieved by it. § 124A imposes restriction on the fundamental fundamental right to freedom freedom of speech and and expression in the interest of security of state and for maintenance of public order. Therefore, there is a nexus nexus between between the restricti restriction on impose imposed d by § 124A and and the its object. object. Therefore, Therefore, § 124A doesnt violate Art. 14. 2.4. THAT § 124A 124A DOES NOT VIOLATE ARTICLE 21 21

It is reverentially reverentially submitted submitted that § 124A is not violative violative of Art.14 of the Constitution. The right of life and liberty so guaranteed under Art. 21 is subject to the rule of proportionality. Where individual liberty comes into conflict conflict with an interest interest of the security of the state or public public order, the liberty of the individua individuall must give way way to the larger larger interest interest of the nation. nation. § 124A penalize penalizess those acts acts which which induce induce discontent and insurrection, 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.

35

Since the the restriction restriction imposed imposed under under § 124A is a reasona reasonable ble restrictio restriction n under Art. 19(2), 19(2), this penal penal provision constitutes ‘procedure established law. Hence, it is not a violation of Art. 21 of the Constitution. 3. THE CONVICTION OF THE ACCUSED SHOULD BE UPHELD.

It is the humble submission of the Respondents that the Petitioner is guilty of committing the crime of A, IPC. In order for an individuals words to be within Sedi Sediti tion on und under er § 124124-A, within the ambit ambit of § 124A, 124A, they

34

AP Coop All Seeds growers Federation Ltd. v. D. Achyuta Rao, (2007) 13 SCC 320. (2003)8 SCC 461 at para 37. 37. Nazir Khan And Others v. State Of Delhi, (2003)8

35

21

TH



would necessarily have to qualify as having a ’’pernicious tendency” of creating public disorder or disturbance of law and order. Only then would the law step in to prevent such activity.

36

The essentia essentials ls of of the offence offence under under § 124-A is: 1.

Bringi Bringing ng or attempt attempting ing to brin bring g into into hatred hatred or contem contempt pt or or exc excitin iting g or

attempting to excite disaffection towards, the Government of India. 2.

Such Such act act or atte attempt mpt may be done done (i) (i) by words words,, either either spoke spoken n or writte written, n, or or (ii) (ii)

by signs, or (iii) by by visible representation. representation.

37

The Supreme Court of United state laid down the test of ‘clear and present danger in the case of 38

Brandenburg Brandenburg v. Ohio , which requires that restrictions cannot be placed on speech unless it is directed

to inciting, and is likely to incite ‘imminent lawless action. The Supreme Court has applied the same test in deciding several cases.

39

In the instant case, the speech of the Petitioner satisfies the conditions that are necessary for it to be considered as seditious seditious under under the meaning meaning of of § 124A. The The students students of the political political bodies bodies in GNU have have a notorious reputation for resorting to violence

40

and the GNUSU has always been opposed to the IPP

government because of opposite political ideology. The Petitioner claimed in his speech that they will seek independence of Mashkir ‘at any cost.

41

This statement was clearly aimed at exciting disaffection

towards the government. Moreover, the petitioner holds an important post as the President of largest student union of GNU, and has a substantial influence influence over other other members.

42

Making provocative

remarks about a Mashkir is bound to add fuel to the unrest. The petitioners comments also gained 43

endorsement endorsement from the Prime Minister of Paristan. This created a situation of ‘clear and present danger capable of inciting inciting ‘imminent lawless action. Therefore, it is humbly contended that the Petitioners speech was seditious in nature, inciting hatred against the established order and harms the systematic peace of the country; hence, this Honbl e Court should uphold the conviction. 36

APPLICATI ATION ON U/S U/S 482 No. No. - 32703 32703 of 2015. 2015. Arun Jaitley v. State Of U.P, APPLIC PILLAI, Criminal Law 1131 (K. I. Vibhute Vibhute eds., 2009). 38 23 L Ed 2d 430: 395 US 444 (1969). 39 Indra Das v. State of Assam, (2011) 3 SCC 380; Arup Bhuyan v. State of Assam , (2011) 3 SCC 377; Shreya Singhal v. Union of India, (2015) 5 SCC 1. 40 Moot Proposition, Para 4. 41 id , at para 11. 42 id , at para 5. 43 id , at para 13. 37

22

TH



4. § 24A O F THE PRESS COUNCILS ACT, 1978 1978 IS NOT ULTRA VIRES THE CONSTITUTION.

It is reverentia reverentially lly submitted submitted by the the Responde Respondents nts that § 24A of the Press Press Council Council Act, Act, 1978 is not not in violation of the provisions of the Constitution.

4.1 THAT THERE IS A PRESUMPTION OF CONSTITUTIONALITY OF THE LAW.

The power to legislate is a plenary power vested in the legislature and unless these who challenge the legislation clearly establish that their fundamental rights under the Constitution are affected or that the legislature lacked legislative competence, they do not succeed in their challenge to the enactment brought forward in the wisdom of the legislature. A statute cannot be struck down merely because the Court thinks it to be arbitrary arb itrary or unreasonable. Any such ground of invalidity must be related to a Constitutional provision, such as, Arts. 14, 19 or 21. Challenge on ground of wisdom of legislation is not permissible as it is for the legislature to balance various interests.

44

The Legislature appreciates and understands the needs of the people, that it knows what is good or bad for them, that the laws it enacts are directed to problems which are made manifest by experience, that the elected representatives in a legislature enact laws which they consider to be reasonable, for the purposes for which these laws are enacted and that a legislature would not deliberately flout a constitutional safeguard or right.

45

The Legislature composed as it is of the elected representatives of the people is presumed to know and be aware of the needs of the people and what is good or bad for them and that a Court cannot sit in judgment over the wisdom of the Legislature.

46

Therefore usually the presumption is in the favor of the

Constitutionality of the statute and the onus to prove that it is unconstitutional unconstitutional lies upon the person who is challenging it.

47

The allegations regarding the violation of a constitutional provision should be

44

Mylapore Club v. State of Tamil Nadu, (2005) 12 SCC 752. Ram Krishna Dalmia v. S.R. Tendolkar, AIR 1958 SC 638; Vrajlal Manilal & Co. v. State of Madhya Pradesh, AIR 1970 SC 129; Bachan Singh v. State of Punjab, AIR 1982 SC 1325. 46 State of Andhra Pradesh v. McDowell & Co., AIR 1996 SC 1628. 47 Charanjit Lal Chowdhary v. Union of India, AIR 1951 SC 41; Bombay v. F.N. Balsara, AIR 1951 SC 318; Mahant Moti 1991 SC 101. 101. Das v. S.P. Sahi, AIR 1959 SC 942; Delhi Transport Corporation v. D.T.C. Mazdoor Congress, Congress, AIR 1991 45

23

TH



specific, clear and unambiguous and it is for the person who impeaches the law as violative of the constitutional guarantee guarantee to show that the particular provision is infirm for the reasons stated by him.

48

The Courts are not concerned with the need or propriety of laws. The judicial function is not to canvass the legislative judgement, or to hold the impugned statute to be ill-advised or unjustified or not justified by the facts on which it is based. The function of the Courts is to see whether the law in question transgresses transgresses any constitutional restriction imposed on the legislature. l egislature. down merely because the court thinks it to be unjustified or unwise.

49

Therefore a law cannot be struck

50

Delhi Cloth and Gen. Gen. Mill Co. Ltd. V. Union Union of India, the Supreme Court has stated: In the case of Delhi

“ What form a r egulator y meas measur ur e mus mustt take is for the legislature to decide and the court would not examine its wisdom or efficacy excepts to the extent that Art. 13 of

the Consti Consti tuti on is attr acted.” acted.” 51 4.2. 4.2. THAT § 24A OF THE PRESS COUNCILS ACT, 1978 DOES NOT VIOLATE ART. 14. Firstly, the print media is a disseminator of information, information, and is responsible for for educating the masses masses

about various socio-political issues, making it imperative to have a legal provision that covers expediently the need of the country. Like individual rights, the freedom of press cannot be absolute and should be reconciled with collective interests of the Society. Sovereignty and integrity of a state are crucial to its existence. Therefore, it becomes the impediment of the state to ensure that there is no threat to its existenc existence. e. § 24A intends intends to achieve achieve the same. same. Secondly , the possibility of abuse of a statute otherwise valid does not impart to it any invalidity.

52

Some

constitutional infirmity has to be be found before invalidating an an Act. Once the policy is laid laid down by law it cannot be held invalid merely on the ground that the discretion conferred conferred by it may be abused in some cases and may be exercised in a manner, which is in fact discriminatory.

48

53

If the power is actually

Amrit Banaspati Ltd v. Union of India, AIR 1995 SC 1340. Charanjit lal Chowdhary v. Union of India, AIR 1951 SC 41. 50 State of Andhra Pradesh v. McDowell & Co., AIR 1996 SC 1628. 51 AIR 1983 SC 937. 52 1985 1 SCC SCC 641; Union of India v. Elphinstone Spinning and Weaving Co. Ltd ., ., AIR 2001 R.K. Garg v. Union of India, 1985 SC 724. 53 Ramkrishna Dalmia v. Tendolkar , AIR 1957 SC 532. 49

24

TH



abused in any case the exercise of the power is actually abused in any case, the exercise of the power may be challenged as discriminatory or mala fide,

54

55

but the statute will not fail on that ground.

The Supreme Court has reiterated the principle that mere likelihood of abuse of discretionary power conferred under statute would not render the statutory provision unconstitutional. Mere factor that some hardship or injustice is caused to someone is no ground to strike down the rule altogether if otherwise the rule appears to be just, fair and reasonable and not constitutional.

56

A statute carries with it a presumption of constitutionality. Such a presumption extends also in relation to a law, which has enacted for reasonable restrictions on the fundamental right. A further presumption may also also be drawn that that the statutory statutory authority authority would not not exercise exercise the power power arbitrarily arbitrarily.. § 24A is the substantive law whereas the safeguards against its improper use have been adequately provided in the Press Council (Procedure for Enquiry) Regulations, 1979.

4.3. THAT § 24A DOES NOT VIOLATE ART. 19(1)(a). reasonable ble restrictio restriction n under Art. Art. 19(2) of the Constitu Constitution. tion. There There cannot cannot be any Firstly, that § 24A is reasona such thing as absolute or uncontrolled liberty wholly freed from restraint for that would lead to anarchy and disorder. Art. 19 give a list of individual liberties and prescribe in the various clauses the restraints that may be placed upon them by law so that they do not conflict with public welfare or general morality.

57

While it is necessary to maintain and preserve freedom of speech and expression in a

democracy, so also it is necessary to place some curbs on this freedom for the maintenance of social order. Accordingly, under Art. 19(2), the state may make a law imposing ‘reasonable restrictions on the exercise of the right to freedom of spe ech and expression ‘in the interests of the securities of the State, friendly relations with foreign States, public order, decency, decency, morality, sovereignty and integrity of India, or ‘in relation to contempt of Court, defamation or incitement to an offence.  In Santosh Singh v. Delhi Administration,

58

it was held that the test of reasonableness of restriction has

to be considered in each case in the light of the nature of right infringed, the purpose of the restriction, the extent and and nature of the mischief required to be suppressed and and the prevailing prevailing social order order and 54

Naraindas v. State of M.P., AIR 1974 SC 1232; Thakorebhai v. State of Gujrat; AIR 1975 SC 270. Ramkrishna Dalmia v. Tendolkar , AIR 1957 SC 532. 56 AP Coop All Seeds Growers Federation Ltd. v.. D. Achyuta Rao, (2007) 13 SCC 320. 57 Gopalan v. State of Madras, (1950) SCR 88; Santosh Singh v. Delhi Administration, AIR 1973 SC 1091; Laxmi v. State of U.P., AIR 1971 SC 873. 58 AIR 1973 SC SC 1091 55

25

TH



conditions at the time. There can be no abstract standard of reasonableness and our Constitution provides reasonably precise general guidance in that matter. When a law is impugned as having imposed a restriction upon a Fundamental Fundamental Right, what the Court has to examine is the substance of the legislation without being beguiled by the mere appearance of the 59

legislation.

Regulation and not ‘extinction is, generally speaking, the extent to which p ermissible

restriction may go in order to satisfy the test of reasonableness.

60

The possible or remote effects of

legislation upon any fundamental right cannot be said to constitute a restriction upon the right.

61

In determining the reasonableness of a law challenged as an unreasonable restriction upon a Fundamental Right guaranteed by Art. 19, the court has to balance the need for individual liberty with the need for social control and the magnitude of the evil which is the purpose of the restrictions to curb or eliminate so that the freedom guaranteed to the individual sub serves the larger public interests. restriction can be said to be unreasonable merely because in a given case it operates harshly.

62

No

63

§ 24A lays lays down mere regulatory measures measures for control control of publications that threaten the sovereignty sovereignty and integrity of the country or manipulate the public opinion against the elected govt.

64

Hence, there is no

‘extinction of the Freedom of Speech and Expression. If at all, it is just ‘ regulation. Hence, it is is submitted that the restriction imposed by § 66A is a reasonable restriction under Art. 19(2). Second Secondly, ly, that that § 24A has a “ Direct and Proximate nexus ” to its object. The limitation imposed in the interests of public order to be a reasonable restriction, should be one which has a proximate connection or approximate and reasonable connection connection

65

hypothetical, problematic or too remote.

or nexus with public order, but not one which is far-fetched, f ar-fetched,

66

It must be rationally proximate and direct to be called

67

reasonable.

59

Express Newspapers Newspapers v. Union of India, AIR 1958 SC 578; Bennett Coleman & Co. Ltd. v. Union of India, India, AIR 1973 SC SC 106; Sukhnandan v. Union of India, AIR 1982 SC 902. 60 Bennett Coleman & Co. Ltd. v. Union of India, AIR 1973 SC 106. 61 Express Newspapers Newspapers v. Union of India, AIR 1958 SC 578; Bennett Coleman & Co. Ltd. v. Union of India, AIR 1973 SC 106; Sukhnandan v. Union of India, AIR 1982 SC 902. 62 Harakchand v. Union of India, AIR 1970 SC 1453. 63 Krishna Kakkanth v. Govt. of Kerala, AIR 1997 SC 128; See also, Municipal Corporation, City of Ahmedabad v. Jan Mohd. Usmanbhai, AIR 1986 SC 1205; M.J. Sivani v. State of Karnataka, AIR 1995 SC 1770. 64 Moot Para 14. 65 Arunachala Nadar, M.C.V.S. v. State of Madras, AIR 1950 SC 300. 66 Superintendent Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633. 67 O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812. 26

TH



Under Art. 19(2), a restriction can be imposed ‘in the interest of the sovereignty and integrity of India. The expression ‘in the interests of gives a greater leeway to the legislature to curtail freedom of speech and expression. However, the restrictions imposed must have a reasonable and rational relation with the integrity and sovereignty of state. It is, therefore, humbly submitted that Art. 24A has a direct and proximate nexus to its object i.e. protecting sovereignty sovereignty and integrity of the state. It has a direct nexus to preservation preservation of public tranquility, as it can be used to make sure that the press doesnt exercise its freedom in a way that threatens peace and security.

4.4 THAT

THE RESTRICTION I MPOSED BY §

24A IS REASONABLE

AND FALLS UNDER THE A MBIT OF

ART. 21.

Individual rights cannot be absolute in a welfare state. It has to be subservient to the Rights of the public at large.

68

The right of life and liberty so guaranteed under Art.21 is also subject to the rule of 69

proportionality. Where individual liberty comes into conflict with an interest of the security of the state or public order, the liberty of the individual must give way to the larger interest of the nation.

68

Confederation of Ex-serviceman Association v. Union of India, (2006) 8 SCC 399; AIR 2006 SC 2945. Om Kumar v. Union of India, (2001) 2 SCC 386; AIR 2000 SC 3689. 70 Sunil Fulchand Shah v. Union of India, AIR 2000 SC 1023. 69

27

70

TH



PRAYER

In view of the aforesaid facts and circumstances, it is mo st respectfully prayed that this Honble Court may be pleased to:

1. DISMISS the Writ Petition filed by Petitioner No.1. AND 2. DISMISS the Writ Petition filed by Petitioner No. 2s Counsel and uphold Petitioner No.2s Conviction. AND 3. DISMISS the Writ Petition filed by Petitioner No. 3. AND 4. PASS any other order and directions, as this Honble Court may deem fit and proper in the facts and circumstances of the case in the interest of justice and in favour of the Respondent.

Respondent

Date: Place: Through: Advocate

28

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BIBLIOGRAPHY BOOKS REFERRED

th

1.

V. DICEY, THE LAW OF THE CONSTITUTION (10 ed. 1959)

2.

ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA (2 ed. Reprint 2010)

3.

DR. DURGA BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA (20 ed. Reprint 2012)

4.

DR. J.N. J.N.P PANDEY, CONSTITUTIONAL LAW OF INDIA (38 ed. 2002)

5.

DR.DURGA BASU, CONSTITUTIONAL LAW OF INDIA (8 ed. 2011)

6.

H.M.SEERVAI, CONSTITUTIONAL LAW OF INDIA (4 ed.)

7.

A. SABITHA, PUBLIC HEALTH: ENFORCEMENT AND LAW (1st ed. 2008).

8.

JUSTICE G.P.SINGH, PRINCIPLES OF STATUTORY INTERPRETATION (12 ed. Reprint 2011)

9.

M.P.JAIN, INDIAN CONSTITUTIONAL LAW (5 ed. 2003)

10.

DARREN J OBYRNE, HUMAN RIGHTS: AN INTRODUCTION (1st ed. 2003).

11.

DURGA DAS BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW (3rd ed. 2008).

12.

COLETTE DAIUTE, HUMAN DEVELOPMENT & POLITICAL VIOLENCE (1st ed. 2010).

13.

DARREN J OBYRNE, HUMAN RIGHTS: AN INTRODUCTION (1st ed. 2003).

14.

R. SATYA NARAYANA , NATURAL JUSTICE: EXPOANDING HORIZONS (1st ed. 2008).

nd

th

th

th

th

th

th

ARTICLE

1. Gora Goran n Simic imic,, Universal Jurisdiction and its Interplay with Sovereign Immunity 1 INDIAN JOURNAL OF LAW AND INTERNATIONAL

AFFAIRS 121 (New Delhi 2016)

29

IMS Unision 4th Nat. Moot Memo(Respondent)

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