TD-4-P

IMS UNISON UNIVERSITY 4TH NATIONAL MOOT COURT COMPETITION

TEAM CODE TD-4-P


IN THE HON’BLE SUPREME COURT OF INDIANA IN THE MATTER OF

RAMAIYA KUMAR AND ORS. (Petitioner ) v.

UNION OF INDIANA

( Respondent Respondent )

MEMORANDUM ON BEHALF OF PETITIONERS

IMS UNISON UNIVERSITY 4TH NATIONAL MOOT COURT C OMPETITION

TABLE OF CONTENTS

ABBREVIATIONS……………………………………………………………..………… ... II INDEX OF AUTHORITIES.............. AUTHORITIES.......................... ......................... ...................................... ...................................... .......................... ................. ....

III

STATEMENT OF JURISDICTION .............. ....................... ....................... .....................….................... .....................…....................IX STATEMENT OF FACTS…………………………………………………………… FACTS…………………………………………………………….. ..……. ……. X STATEMENT OF ISSUES………………………………………………….………… ISSUES………………………………………………….…………..…... XI SUMMARY OF ARGUMENTS ......................... ....................................... ........................... ........................... ......................... ........... ... ….. XII ARGUMENTS ADVANCED ........................................... ................................................................. ............................................ ....................................1 ..............1 CONTENTION I- SECTION 14- A OF PRESS COUNCILS ACT, 1978 IS UNCONSTITUTIONAL….....1 [1.1] THE IMPUGNED AMENDMENT V IOLATES THE FREEDOM OF PRESS U NDER ART . 19 (1)(A)……………………………………………………………………………………… ……………………………………………………………………………………….....1 .....1 [1.1.1] IMPUGNED AMENDMENT ACT AIMS AT RESTRICTING THE CIRCULATION OF IDEAS ANTITHESIS TO ITS POLICES.............................. ............................................. .............................. ................................. .................................. ....................2 ....2 IGHT TO K NOW ’ IS INCLUDED UNDER ARTICLE 19 (1) (A) OF THE CONSTITUTION….2 [1.1.2] ‘R IGHT

[1.2] THE IMPUGNED ACT IS HIGHLY EXCESSIVE

AND DISCRETIONARY DISCRETIONARY IN NATURE ...............3

[1.2.1] IMPUGNED AMENDMENT ACT IS EXCESSIVE IN NATURE.............................. ............................................3 ..............3 [1.2.2] IMPUGNED ACT IS HIGHLY DISCRETIONARY IN NATURE............................................4 CONTENTION II-SEDITION U NDER SECTION 124-A OF I NDIA N PENAL CODE IS UTI ONAL L......................... U NCON STIT UTIONA ...................................... ......................... ......................... .......................... ......................... ................................5 ....................5 [2.1] OFFENCE OF SEDITION IS AGAINST THE CONSTITUTION OF I NDIA ...................... .…….. …… .. 5 [2.2]THE DOCTRINE OF PRESUMPTION IN FAVOUR OF CONSTITUTIONALITY IS NOT APPLICABLE …….............. ……................................ ................................ .............................. ............................... .............................. ................................. ............................... ......................6 .........6 [2.3]SECTION 124A OF THE IPC VIOLATES ART . 19(1) (A ) OF THE I NDI AN CONSTITUTION AS THE CHILLING EFFECT CREATED BY SEC. 124-A RESTRICTS THE EXERCISE OF ARTICLE I9(1)(A)............................. )........................................ ...................................... .......................................... ............................. ........................... ......................... .................6 .....6 [2.4] STRICT SCRUTINY TEST IS APPLICABLE........................... ................................................ ................................ ........................7 .............7 CONTENTION III- ACCUSED R AMAIYA AMAIYA K UMAR UMAR WILL N OT BE LIABLE FOR SEDITION......8 AMAIYA K UMAR UMAR IS VIOLATED BY HIS [3.1] FREEDOM OF SPEECH AND EXPRESSION OF R AMAIYA ARREST........................... ...................................... ........................ ........................... ......................... ........................ ........................... ......................... ............... .... ........10

[3.1.1] MERE CRITICISM OF GOVERNMENT IS NOT PUNISHABLE.......................... ..........................................10 ................10 AMAIYA K UMAR UMAR [3.1.2] FREEDOM OF SPEECH OF R AMAIYA

IS NOT

ESTRICTED U NDER 19 (2)… R ESTRICTED (2) …....11

CONTENTION IV-L ATHI CHARGE CHARGE BY POLICE INFRINGED R IGHT IGHT TO PEACEFUL ASSEMBLY OF TOMAR R ASHID ............................................... ...................................... ............................... ............................... ............................ ....................13 ........13 ASHID......................... PRE TATI ON O F H IGHWAY ACT , 1959 ON THE ISSUE…......................................14 [4.1.1.]I NTER PRETATI …. .....................................14

[4.1.2.]ASSEMBLY BY SUPPORTERS WAS LAWFUL.............................. ............................................... ............................... .................15 ...15 [4.2] ACTS PROHIBITED TO BE DONE BY POLICE IN CASE OF APPREHENSION OF BREACH OF THE PEACE.......................... ........................................ ........................... ........................... ......................... ........................ ........................... .................... ...... ..................15 ..................15 PRAYER………………………………………………………………………....... ....……...17 ....……...17 i


ABBREVIATIONS

¶

Paragraph

A.I.R.

All India Reporter

ALL

Allahabad

ALL ER

All England Reporter

Anr.

Another

Art.

Article

Bom.

Bombay

Co.

Company

CriLJ

Criminal Law Journal

Del.

Delhi

Edn.

Edition

Etc.

Etcetera

Guj.

Gujarat

Id.

Ibid

LLJ

Labour Law Journal

Ltd.

Limited

M.P.

Madhya Pradesh

Mad.

Madras

MANU

Manupatra

Ors.

Others

Re.

Reference

S.C.

Supreme Court

S.C.C.

Supreme Court Cases

S.C.R.

Supreme Court Reporter

UOI

Union of India

U.P.

Uttar Pradesh

U.S.

United States

V.

Versus

Vol.

Volume

W.B.

West Bengal

ii

IMS UNISON UNIVERSITY 4TH NATIONAL MOOT COURT C OMPETITION INDEX OF AUTHORITIES

I. CONSTITUTION /STATUTES/ RULES REFERRED 

CODE OF CRIMINAL PROCEDURE,1973.



INDIAN PENAL CODE ,1860.



PRESS COUNCIL ACT ,1978.



THE CONSTITUTION OF INDIA.



THE HIGHWAY ACT , 1959.

II. TABLE OF CASES INDIAN CASES S.N O

NAME OF CASE

CITATIOION

1. 2.

P.N O.

Ahmed v. State All India Bank Employees Assn. v. National Industrial Tribunal 3. Anand Patwardhan V. UOI 4. AP v. P. Laxmi Devi 5. Arup Bhuyan v. State of Assam 6. Association For Democratic Reforms v. UOI 7. Aurunalachanm Nadar v. State of Madras 8. Babulal v. State of Maharashtra AIR 9. Badri Narain v. Chief Secy. 10. Bal Gangadhar Tilak v. Queen Empress 11. Balwant Singh v. State of Punjab 12. Bennett Coleman & Co. v. UOI

AIR 1951 All 459 (1962) 3 SCR 269

1,10 1

AIR 1997 BOM 25 AIR 2008 SC 1604 AIR 2011 SC 957 957 AIR 2001 Del 126 AIR 1959 SC 300 1961 SC 884. AIR 1941 Pat 132 (1897) 22 Bom 112 1995 3 SCC 214. AIR 1973 SC 106

10 12 8,7,12 3 4 15 12 13 7,11 2

13. 14. 15. 16. 17.

AIR 1974 SC 255 AIR 1982 SC 33 AIR 1996 SC 1846 1950CriLJ1525 (2011) 8 SCC 497

13 4 10 1,2,3 3

Bhupal v. Arif Bishmbar Dayal Chandra Mohan v. State Of U.P. Bobby Art International v. Om Pal Singh Hoon Brij Bhushan & Anr. v. The State of Delhi CBSE v. Aditya Bandopadhya

18. Chintamanrao v. State of M.P. 19. Commissioner of Police v. C. Anitha 20. Devidas Ramachandra Tuijapurkar v. State of Maharashtra, 21. Duda V. Shiv Shankar 22. Dwarka Prasad Lakshmi Narayan v. State Of U.P.

AIR 1951 SC 118 (2004) 7 SCC 467 (2015) 6 SCC 1

3,4 13 10,11

AIR 1988 SC 1208 AIR 1954 SC 224

12 4

23. Emperor v. Tucker

(1882) 7 Bom 42.

15

iii


24. Express Newspapers (P) Ltd. v. UOI

AIR 1986 SC 872

1,2,3

25. Express Newspapers Anr. v. UOI and Ors. 26. F.A. Pictures International v. CBFC 27. G. Jairaj v. State of Karnataka

AIR 1958 SC 578 AIR 2005 BOM 145 (1998) AIHC 3960 Kant.

2,3 5 9

28. Ghosh v. Joseph 29. Ghulam v. UOI

AIR 1963 SC 812 AIR 1981 SC 2198

9 15

30. Gupta v. President 31. Hamdard Dawakhana v. UOI 32. Hardik Bharatbhai Patel v. State of Gujarat

AIR 1982 SC 149 AIR 1960 SC 554 MANU/GJ/1070/2016

4 7 15

33. Harichand v. Mizo Dtr. Council 34. Harpreet Kaur v. State of Maharashtra

AIR 1967 SC 829 (1992) 2 SCC 177

10 2

35. Himmat Lal v. Police Commissioner. 36. I.R Coelho v. State of T.N 37. ICAI v. Shaunak H. Satya

AIR 1973 SC 87. (2007) 2 SCC 1 AIR 2011 SC 3336

9 2 4

38. In Re, Harijai Singh 39. In Re, Mohandas Karamchand Gandhi 40. In Re:Arundhati Roy

3 13 12

41. Indian Express Newspapers v. UOI 42. Indra Das v. State of Assam 43. Jawali v. State of Mysore

AIR 1997 SC 73 (1920) 22 BOMLR 368 Contempt Petition (crl.) 10 of 2010 (1985) 1 SCC 641 (2011) 3 SCC 380 AIR 1966 SC 1387

44. 45. 46. 47. 48.

K.A. Abbas v. UOI Kama Krishna Sircar v. Emperor Kameshwar Prasad v. State of Bihar Kedar Nath Singh v. State of Bihar Kishori Mohan Beral v. State of W.B.

(1970) 2 SCC 780 AIR 1935 Cal 636 AIR 1962 SC 1166 AIR 1962 SC 955. AIR 1972 SC 1749

7 8,6 7 8,11,12 8

49. 50. 51. 52. 53.

Kuso Sah v. State Of Bihar LIC India v. Madhubai D. Shah Maneka Gandhi v. UOI Maneklal Chotana v. Makwana Manohar Damodar Patil v.Govt of Bombay

(1974) 2 SCC 177 (1992) 2 SCC 637 (1978) 1 SCC 248 AIR 1967 SC 1373 AIR 1950 Bom 210

9 1 5 10 6,8

54. Manohar v. State of Bombay 55. Ministry of Information & Broadcasting Govt. of of India v. Cricket Assn Bengal

AIR 1950 Bom 210 AIR 1995 SC 1236

6,8 3

56. MRF Ltd v. Inspector Kerala Government 57. N.K. Bajpai v. UOI 58. NALSA v. UOI

AIR 1999 SC 188 AIR 2012 SC 1310 1310 AIR 1962 SC 305 305

9 8 3,7

59. 60. 61. 62. 63.

(1974) 4 SCC 788 : (1947) 4 SCC 788. AIR 2003 SC 4427. 4427. (2001) CTC 423(Mad) AIR 1942 FC 22

5 5 12 4 6,8

Naraindas Indurkhya v. State of M.P.. NarainDas v. State of M.P. Nazir Khan v. State of Delhi Nekkeragopal v. State Of Tamil Nadu Niharendu Dutt Majumdar v. Emperor iv

2,7 8,11,15 5,10


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

AIR 1963 SC 812

9

65. Odyssey Comunications pvt. Ltd v. Lokvidayan Sanghatana 66. Om Kumar v. UOI 67. Ozair Hussain v. UOI 68. P.P. Enterprises v. UOI 69. Pannalal Bringraj v. UOI

(1988) 3 SCC 410

2

AIR 2000 SC 3689 AIR 2003 Del 103 AIR 1982 SC 1016 1957 SCR 233

9,10 6 6 9

70. 71. 72. 73. 74.

Papanasam Labour Union v. Madura Coats Pathumma v. State Of Kerala Prakash Jha Productions v. UOI Printers (Mysore) Ltd. v. Asstt. CTO PUCL v. UOI

AIR 1995 SC 2200 AIR 1978 SC 771 (2011) 8 SCC 372 (1994) 2 SCC 434 AIR 2004 SC 1442

9 9 5 7 4

75. 76. 77. 78. 79. 80. 81.

Queen Empress v. Bal Gangadhar Tilak . Queen-Emprees v. Jogendra Chunder Bose, R Rajgopal v. State of Tamil Nadu R.P. Ltd v. Indian Express News Papers Ram Manohar Lohia v. State of Bihar Ram Nandan v. State Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte. Ramji Lal Modi v. State of U.P. Ramlila Maidan Incident In Re Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay Ltd. Romesh Thapar v. State Of Madras

ILR (1898) 22 Bom 112 (1891) 19 Cal 35 44 (1994) 6 SCC 632 AIR 1989 SC 190 AIR 1966 SC 740 AIR 1959 All 101. (1996) 1 SCC 130

13 2 2 4 8,9 14 7

AIR 1957 SC 620 (2012) 5 SCC 1

7 9

AIR 1989 SC 190

2,4,8

AIR 1950 SC 124

1

86. S Rangarajan & ors. v. P Jagjivan Ram ors. 87. S. Khushboo v. Kanniammal

(1989) 2 SCC 574 (2010) 5 SCC 600

1,7,8 5

88. Sabbaya v. Falauddin 89. Sabir Raza v.The State 90. Sakal Papers (P) Ltd. and Ors. v. UOI

(1928) CLJ 509 (Mad.). Cri App No 1434 of 1955 AIR 1962 SC 305

9 12 3,7

91. Sanskar Marathe v. State of Maharashtra 92. Sarju v. State

2015 Cri LJ 3561 AIR 1956 ALL 589

15 5,10

93. Saroj Iyer v. Maharashta Mediacal Council of Indian Medicine 94. Secretary Ministry of of Information and Broadcasting GOI v. Cricket Association Of Bengal

AIR 2002 Bom 97

2

(1995)2 SCC 161

4

95. Shreya Singhal v. UOI

AIR 2015 SC 1523

11

96. Sodhi Samsher v. State of Pepsu 97. Srinivas v. State of Madras

AIR 1954 SC 276 AIR 1931 Mad 70

7,9 2

98. State of Bihar v. Sailabala 99. State of Bombay v. Balsara

AIR 1952 SC 329 AIR 1951 SC 318

7,8 9

82. 83. 84. 85.

v


100. State of Kerala v. Raneef

(2011) 1 SCC 784

8

101. State of Madras v. V.G. Row 102. State Of U.P. v. Sajay Pratap Gupta 103. Sundram v. R.

AIR 1952 SC 196 . (2004) 8 SCC 591 (1882) 6 Mad 208

2 2 16

104. Supt. Central Prison v. Ram Manohar Lohia 105. T.K. Gopal v. State of Karnataka

AIR 1960 SC 633 (2000) 6 SCC 168

7 2

106. Tara Singh Gopi Chand v. State of Punjab 107. Tata Press Ltd. v. MTNL 108. The Central Board of Film Certification v. Yadavalaya Films 109. Tiger Muthaiya v. State of Tamil Nadu 110. Vinayak Binayak Sen v. State of Chhattisgarh

AIR 1951 Punj. 27 AIR 1995 SC 2438 (2007) 1 LW 374 (Mad.)

1 7 3

2001 (1) CTC 1 2011 SCC Online Chh 30

1 12

111. Virendra v. The State of Punjab

[1958]1 SCR 308

3

(1919) 250 US 616 (1969) 395 US 444 128 ALR 1352 (1940) 476 US 488 (1986)

5 9 7 4

412 US 94 (1973):

3

(1999) 1 AC 69

9

US CASES

112. 113. 114. 115.

Abraham v. U.S. Brandenburg v. Ohio Cantwell v. Connecticut City of L.A. & Department of Water and Power v. Preferred Communications Inc.

116. Columbia Broadcasting System v. Democratic National Committee. 117. De Frestar v. Ministry of Agriculture Fisheries and Housing 118. 119. 120. 121. 122.

De Jonge v. Oregon Elbrandt v. Russel Ex parte Jackson FCC v. WNCN Listeners Guild Gompers v. Buck's Stove & Range Co.

(1937) 301 US 242 (1984) 384 US 11 1877 96 U.S. 727 67 L Ed 2d 521 (1981) 34 LRA (NS) 874 (1911)

11 8 1 4 7

123. 124. 125. 126. 127.

Grosjean v. American Press Co. Hirst v. Chief Constable Joseph Burstyn v. Lewis A. Wilson. Lovell v. City of Griffin. Lowdens v. Keaveny.

1935 297 U.S. 233 (1987) 85 Cr AR 143 343 US 495 (1952) 1937 303 U.S. 444. (1903) IR 82

3 9 3 1 6

128. Lowell v. Griffin 129. Mutual Film Co. v. Industrial Commission of Ohio 130. NAACP 130. NAACP v. Claiborne Hardware Co. 131. National 131. National Broadcasting Co. v. U.S

(1939) 303 US 444 236 US 247 (1915):

1 3

(1982) 458 US 886 886 319 US 190 (1943) (1943)

8 3

132. Noto 132. Noto v.U.S. 133. Red Lion Broadcasting Co. v. FCC

(1961) 367 US 290 290 395 US 367 (1969).

9 1,4

134. Stromberg v. Griffs 135. Schenck v. United States

(1931) 283 US 359 63 L Ed 470(1919)

6 7

vi


136. Schneider v. Irvinton

(1939) 308 US 147

5

137. Terminiello v. Chicago. 138. Thornhill v. Alabama 139. Tinker v. Des Monis School Distt.

337 US 1 (1949): (1940) 310 US 88 (1969) 393 US 503

7 2 8

140. United States v. Robel 141. Virginia v. Black.

(1967) 389 US 258 538 US 343 (2003)

8 7

142. Watts v. United States. 143. Whitney v. California

394 US 705 (1969) (1927) 278 US 357

7 2

144. Advocate Manuel P.J. v. State 145. Beauty v. Gilbanks

2012(4) KLT 708 (1882) 9 QBD 308

11 16

146. Chaptinsky v. New Hampshire 147. Hickman v. Maisey 148. Humphires v. O’Connor

86 L Ed 1031 (1900) 1 QB 752 (CA) (1864) 17 Ir. CLR 1.

7 15 20

149. 150. 151. 152. 153.

(1898) 2 QB 91 (1839) 9 C&P 456 (1983) 1 WLR 151 2006 UKHL 16. (1909) 22 Cox. CC.1

7 15 9 12 19

1976 EHRR 737 (1965) 1 All ER 78

1,8 18

UK CASES

Kruse v. Johnson R v. Collins R v. Goldsmith R v. Jones R. v. Aldred

154. Handyside v. United Kingdom 155. Nagy 155. Nagy v. Weston

III. 

BOOKS , DIGESTS, COMMENTARIES –

ARVIND P DATAR , COMMENTARY ON THE CONSTITUTION OF I NDIA (L EXIS NEXIS, NEW EPRINT, 2010) DEL., 2 ND EDN . R EPRINT



NDI A (L EXIS N EXIS, N EW DEL ., D.D. BASU , COMMENTARY ON THE CONSTITUTION OF I NDIA

8TH EDN ., 2008) 

D.D. BASU , SHORTER CONSTITUTION

OF I NDIA NDI A

(L EXIS NEXIS, N EW DEL., 14 TH EDN .

EPRINT, 2015) R EPRINT 

NIV ERSAL AL’S LAW PUBLISHING, NEW DELHI, H.M. SEERVAI, CONSTITUTION OF I NDIA (U NIVERS

4TH EDN ., VOL . 1, 2014) 

NIV ERSAL AL’S LAW PUBLISHING, NEW DELHI, H.M. SEERVAI, CONSTITUTION OF I NDIA (U NIVERS

4TH EDN ., VOL . 3, 2014) 

RD EUTERS, NEW D ELHI, 3 EDN ., JAGDISH SWARUP, CONSTITUTION OF I NDIA (T HOMSON R EUTERS

VOL . 1, 2013) 

JUSTICE BHAGBATI PROSAD BANERJEE

AND

BHASKAR PROSAD BANERJEE, JUDICIAL

CONTROL OF ADMINISTRATIVE ACTION (W ADHWA A ND CO. NAGPUR , ED . 2001) vii




M.P. J AIN, I NDIA N CONSTITUTIONAL LAW (L EXIS NEXIS , NEW DELHI, 7TH EDN ., 2015)



RD NTE REST T L ITIGATION (A SHOKA LAW HOUSE, N EW D ELHI,3 E DN ., P M BAKSHI, PUBLIC I NTERES

2012) T.K. TOPE , CONSTITUTIONAL LAW



EDN .,

OF I NDIA NDI A

(E ASTERN BOOK C O., N EW DELHI, 3RD

2010)

V.N. SHUKLA, CONSTITUTION OF I NDIA (E ASTERN BOOK CO., N ., NEW DELHI, 12 TH



2013) 

TH ATANLAL & DHIRAJLAL’S, THE I NDIA P ENAL C ODE , 34 EDITION 2014. R ATANLAL



KI VIBHUTE’S PSA P ILLAI’S CRIMINAL LAW , 12 TH EDITION.



DR . HARI S INGH GOUR ’S I NDIA N PENAL CODE , 14 TH EDITION.

V. DICTIONARIES

VI.

th



BRYAN A. GARNER , BLACK ’S LAW DICTIONARY (9 edn., 2009)



P.R. AIYAR , THE LAW LEXICON (2 edn., 1997)



WEBSTER ’S NEW E NCYCLOPEDIC DICTIONARY (1993)

nd

ONLINE AUTHORITES –



scconline.com



manupatra.com



westlawindia.com



heinonline.com



lexisnexis.com



bloomsburycollection.com

viii

EDN .,


STATEMENT OF JURISDICTION

The Petitioner Petitioner has approached this Hon’ ble Supreme Court for writ petition under Art. 32 for Contention 1,3 and 4 and Criminal Appeal under Article 134-A for Contention 2,of the Constitution of Indiana. Article 32 of Indian Constitution Says:-

“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 t he 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 clause ( 2 ) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution” Article 134 Of Indian Constitution Says:134. Appellate jurisdiction of Supreme Court in regard to criminal matters (1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or (c) certifies under Article 134A that the case is a fit f it one for appeal to the Supreme Court: Provided that an appeal under sub clause (c) shall lie subject to such provisions as may be made in that behalf under clause ( 1 ) of Article 145 and to such conditions as the High Court may establish or require (2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law

All the Laws of Indiana are pari materia to the Laws of India.

ix


STATEMENT OF FACTS

1. Indiana is a federal republic country situated in south-east Asia New Delporto is the capital as well as an education hub of the country. The city has some of the best colleges & universities of the nation. One such university is Great Northern University (GNU). GNU has a very active culture of student politics. 2. The Great Northern University Students Union (GNUSU) is the largest Student Union of GNU. The GNUSU is a branch of the AISU (All Indiana Students Union), a left inclined organization in 2015 the Indiana Peoples Party (IPP) came to power which subscribes to right wing ideologies. After coming to power, the government embarked on an economic reform mission which looked to liberalize the economy to bring more foreign investments. These ideas did not go well with the GNUSU and as a result country wide protests were held by them. 3. On June 8, 2016 a countrywide strike was called by the parent body of GNUSU in Utkal, another Union Territory in Indiana. The protestors were lathi charged by the police and some of them were seriously injured. The protestors were just sitting peacefully on the road and that they were not given any warning by the police before the lathi charge. One of the injured students, Tomar Rashid filed a writ petition against the Union government claiming that his right to peaceful assembly was infringed by the state and claimed adequate compensation for his injuries. 4. The GNUSU led the protest in capital city and its president Ramaiya Kumar became the face of th e movement. On 16th of June, 2016 a rally was organized in Delporto by GNUSU to show solidarit y to the injured students 5. Some of the incidents of the rally were recorded re corded by various news agencies. Although the rally ended peacefully, some videos began to circulate in social media about the speeches given by Ramaiya Kumar. This video became viral and soon the government arrested Ramaiya Kumar late at night and slapped him with the charges of sedition. 6. The session court held Ramaiya guilty and. He filed an appeal in the High Court of Delporto which was rejected and hence the present appeal in this court came. 7. As the monsoon session began, the government by virtue of its majorit y made an amendment to the Press Councils Act, 1978. Section 14A was incorporated into the Act, whose constitutionality is challenged in the present petition 8. The Constitution, Press Councils Act & other laws of Indiana are pari materia with the Constitution, Press Councils Act & other laws of India.

x

IMS UNISON UNIVERSITY 4TH NATIONAL MOOT COURT C OMPETITION STATEMENT OF ISSUES

1. WHETHER SECTION 14-A OF PRESS COUNCILS ACT , 1978 IS C ONSTITUTIONAL? 2. WHETHER SEDITION UNDER SECTION 124-A

OF

INDIAN PENAL CODE

IS

CONSTITUTIONAL? 3. WHETHER ACCUSED R AMAIYA KUMAR WILL BE LIABLE FOR SEDITION? 4. WHETHER LATHI CHARGE DONE BY POLICE INFRINGED RIGHT TO PEACEFUL ASSEMBLY OF TOMAR RASHID UNDER ARTICLE 19(1)(B) OF C ONSTITUTION OF INDIA?

xi


SUMMARY OF ARGUMENTS

I S UNCONSTITUTIONAL:- Section 14-A Of [1.]SECTION 14-A O F PRESS COUNCILS ACT , 1978 IS

Press Councils Act, 1978 is unconstitutional as it violates the freedom of press under Art. 19 (1)(a) (1.1), Impugned Amendment Act aims at restricting the circulation of ideas antithesis to its (1.1.2) and is highly Arbitrary and discretionary in nature polices(1.1.1), polices(1.1.1), takes takes away right to know (1.1.2) and (1.2) [2.]SEDITION UNDER S ECTION 124-A OF INDIAN PENAL CODE IS UNCONSTITUTIONAL:-

It is contended before the Hon’ble Supreme Court that Section 124 -A of Indian Penal Code, 1860 in unconstitutional because it is against the Constitution of India (2.1) (2.1) and The doctrine of presumption in favour of constitutionality is not applicable to pre-constitutional pre-constituti onal legislations(2.2). legislations (2.2). Moreover, Section 124A of the I PC violates Art. 19(1) (a) of the Indian Constitution as the chilling effect created by sec. 124A restricts the exercise of Article I9(1)(a) (2.3) (2.3) and it fails in Strict Scrutiny test. (2.4) [3.] ACCUSED RAMAIYA KUMAR WILL NOT B E LIABLE FOR SEDITION

It is submitted that the statement made by Ramaiya Kumar will not come within the ambit of Section 124A of Indian Penal Code, as the statement made b y him, was only an expression of opinion on a debatable academic issue, and in no way intended to incite violence. Also the statement of Ramaiya Kumar will come within the ambit of Explanation 2&3, which says that, comment on Govt. action and policies will not be punishable under Section 124A. [4] LATHI CHARGE DONE BY POLICE INFRINGED RIGHT TO PEACEFUL ASSEMBLY OF TOMAR RASHID.:- It violates freedom of assembly under 19(1)(b) because Assembly on Highway in this

(4.1), Highway act allows the same (4.1.1), and (4.1.1), and Assembly by supporters was lawful case lawful (4.1), Highway (4.1.2) and (4.1.2) and lathi charge was prohibited to be done by Police in case of apprehension of breach of the peace . (4.2)

xii


ARGUMENTS ADVANCED [1.]SECTION 14-A

OF

PRESS COUNCILS ACT , 1978 IS UNCONSTITUTIONAL:- Section 14-

A Of Press Councils Act, 1978 (herein after referred as PCA) is unconstitutional as it violates the freedom of press under Art. 19 (1)(a) (1.1), Impugned Amendment Act aims at restricting (1.1.2) and is the circulation of ideas antithesis to its polices(1.1.1), polices (1.1.1), takes takes away right to know (1.1.2) and highly Arbitrary and discretionary in nature (1.2) [1.1] THE IMPUGNED AMENDMENT VIOLATES THE FREEDOM OF PRESS UNDER ART . 19 (1)(A):- It must be recognized that freedom of speech and expression is one of the most valuable

rights guaranteed to a citizen by the Constitution and should be jealously guarded by the Court. 1 There can be no doubt that freedom of speech and expression i ncludes freedom of propagation, Publication2 of ideas, and that freedom is ensured e nsured by the freedom of circulation 3, which in this contemporary world is done by the Press. Every person has got right to express his views and publish the same through the medium of Press. 4 .It is now firmly established by a series of decisions of Supreme Court and is a rule written into the Constitution that Freedom of the press is comprehended within the right to freedom of speech and expression guaranteed under under Art. 19(1 )(a).5 Impugned Amendment takes away freedom of press :- It is humbly submitted before this Hon’ble Court that the Section 14A , which was inserted through through an amendment in the the Press Councils Act, 1978, violates the freedom of press under Article 19(1)(a) of the Constitution, because it puts unreasonable burden on the circulation of information by press. It It was held that that “If a law were to single out the press for laying down prohibitive burdens on it that would restrict the circulation, penalise its freedom f reedom of choice as to personnel, prevent newspapers from being started and compel the press to Government aid, this would violate Art. 19(1)(a) and

1

Brij Bhushan & Anr. v. The State of Delhi, 1950 Cri LJ 1525; S Rangarajan and Ors. v. P Jagjivan Ram and Ors. (1989) 2 SCC 574; Handyside v. United Kingdom, 1976 EHRR 737. 2 Romesh Thapar v. State of Madras, AIR 1950 SC 124; Life I nsurance Corpn. of India v. Madhubai D. Shah, (1992) 2 SCC 637; Ex parte Jackson, (1877) 96 U.S. 727; Lovell v. City of Griffin, (1937) 303 U.S. 444 3 All-India Bank Employees' Assn. v. National Industrial Tribunal, (1962) 3 SCR 269; Tiger Muthaiya v. State of Tamil Nadu, 2001 (1) CTC; Srinivas v. State of Madras, AIR 1931 Mad 70; Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410 4 Tiger Muthaiya v. State of Tamil Nadu, 2001 (1) CTC 1. 5 Express Newspapers (P) Ltd. v. UOI, (1986) 1 SCC 133; I.R Coelho v. State of T.N., (2007) 2 SCC 1 Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay (P) Ltd., (1988) 4 SCC 592; Saroj Iyer v. Maharashta Mediacal Council of Indian Medicine; AIR 2002 Bom 97; Express Newspapers (Private) Ltd. and Anr. v. The UOI (UOI) and Ors., AIR 1958 SC 578; Brij Bhushan & Anr. v. The State of Delhi, 1950 Cri LJ 1525; Sakal Papers (P) Ltd. and Ors. v. UOI.

1


would fall outside the protection afforded by Art. 19(2). 6” ‘Freedom’, again, means freedom not only from previous restraints, but also from fear of subsequent punishment, except, on constitutionally permissible grounds."7 It would not be legitimate to subject the press to laws which take away or abridge the fre edom of speech and expression or adopt measures calculated and intended to curtail circulation 8 and thereby narrow the scope of dissemination of information or fetter its freedom to choose its means of exercising the right or would undermine its independence. 9 A law which lays upon the Press excessive and prohibitive burdens which would restrict the circulation of a newspaper would not be saved by Article 19(2) if the Constitution. 10 [1.1.1] IMPUGNED AMENDMENT ACT AIMS AT RESTRICTING THE CIRCULATION OF ANTITHESIS TO ITS POLICES

IDEAS

:- It is humbly submitted before this Hon’ble Court that it is not

right on the part of the Respondent to enact an Amendment Act which aims at restricting the flow of ideas and information not in favour of its policies. Critical appraisal is the corner-stone of democracy and power of the press as a medium of expression lies in its ability to contribute to the appraisal.11 Prohibiting the publication p ublication of one’s own views or the views of correspondents about the burning topics of the day is a serious encroachment on the valuable right of freedom of speech12 . The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgements.13 [1.1.2]

I GHT ‘R IGHT

TO KNOW ’ IS INCLUDED

UNDER ARTICLE 19 (1) (A) OF

THE

CONSTITUTION :- It is humbly submitted before this Hon’ble court that the main aim of the

Impugned Amendment Act is to prevent the broadcast of the News of Incidents like Ramaiya Kumar which are not in favour of its policies .Broadcasting through electronic media is covered under Article 19(1)(a).14 Thus the main effect of the said Amendment would be that The Press 6

Bennett Coleman & Co. v. UOI, (1972) 2 SCC 788; R Rajgopal v. State of T amil Nadu, (1994) 6 SCC 632. Indian Express Newspapers v. UOI, (1985) 1 SCC 641; Thornhill v. Alabama, (1940) 310 US 88; Whitney v. California, (1927) 278 US 357. 8 H.M. Seervai, Constitutional Law of India 721 (4 th edn., 2014). 9 Sakal Papers (P) Ltd. and Ors. v. UOI, AIR 1962 SC 305; Express Newspapers (Private) Ltd. and Anr. v. The UOI (UOI) and Ors., AIR 1958 SC 578. 10 Sakal Papers (P) Ltd. and Ors. v. UOI, AIR 1962 SC 305. 11 The Central Board of Film Certification v. Yadavalaya Films, (2007) 1 LW 374 (Mad.). 12 Brij Bhushan & Anr. v. The State of Delhi, 1950 Cri LJ 1525; Virendra v. The State of Punjab, AIR 1986 SC 872; Grosjean 872; Grosjean v. American Press Co., (1935) 297 U.S. 233. 13 In Re Harijai Singh, AIR 1997 SC 73. 14 Ministry of Information & Bro adcasting, Govt. of India v. Cricket Assn, Bengal, AIR 1995 SC 1236; National Broadcasting Co. v. U.S., 319 US 190 (1943); Joseph Burstyn v. Lewis A. Wilson, 343 US 495 (1952); Mutual Film Co. v. Industrial Commission of O hio, 236 US 247 (1915); Red Lion Broadcasting Co. v. FCC, 395 US 367 (1969); Columbia Broadcasting System v. Democratic National Committee, 412 US 94 (1973); FCC v. WNCN 7

2


will not give coverage some of the aspects of current life, hence would take away the Right to Know of the general masses. Freedom of speech includes right to acquire information and disseminate it15. The right to know relating to public affairs has been held up as a ‘basic right’ under the Constitution of India. 16 The right to receive information may be deduced as a counterpart of the right to impart information, which is an ingredient of the freedom of expression guaranteed by Art. 19(1)(a) 17. People at large have a right to know 18 in order to be able to take part in a participatory development of the industrial life and democracy 19. Without adequate expression, a person cannot form an informed opinion. 20 Hence we can say that all the citizen has got the Right To know, subject to constitutional provisions and any encroachment upon this right right will infringe the Right to Freedom Of Speech and Expression under Art. 19(1)(a). [1.2] THE IMPUGNED ACT IS HIGHLY EXCESSIVE AND DISCRETIONARY IN NATURE :[1.2.1] IMPUGNED AMENDMENT ACT IS EXCESSIVE IN NATURE :- In R v. Goldsmith Goldsmith21 Lord

Diplock said: “...proportionality prohibits the use of a steam hammer to crack a nut if a nutcracker would do".

22

Hence we always have to see that if the restriction being used is in

proportionality with the problem caused. 23Whether the restriction infringes the rights “excessively” or not is for the Court to decide 24 .A legislation arbitrarily or excessively invading the right cannot be characterised as reasonable 25. A restriction should strike a proper balance between the freedom guaranteed by any an y of the clauses and social control, so that the freedom is limited only to the extent necessary to protect the society. 26 This introduces the

Listeners Guild, 67 L Ed 2d 521 (1981); City of Los Angeles & Department of Water and Power v. Preferred Communications, Inc., 476 US 488 (1986). 15 Secretary, Ministry of Information and Broadcasting, G.O.I. v. Cricket Association of Bengal, (1995) 2 SCC 161. 16 R.P. Ltd V. Indian Express News Papers ,AIR 1989 SC 190; Indian Express Newspapers V. UOI, (1985) 1 SCC 641, 17 Hamdard Dawakhana v. UOI, (1960) 2 SCR 671; Association Of Democratic Reforms v. UOI, AIR 2001 Del 126 [This right is expressly guaranteed by Art. 19(2) of the International Covenant, 1966 and Art. 10(1) of the European Convention, 1953: vide SCW 66,68]. 18 R.P. Ltd v. Indian Express News Papers, AIR 1989 SC 190; Gupta v. President, AIR 1982 SC 149. 19 Nekkeragopal v. State Of Tamil Nadu, (2001) ( 2001) CTC 423(Mad); Association For Democratic Reforms v. UOI AIR 2001 Del 126; PUCL v. UOI, AIR 2004 SC 1442. 20 ICAI v. Shaunak H. Satya, AIR 2011 SC 3336; CBSE v. Aditya Bandopadhya (2011) 8 SCC 497.; Red Lion Broadcasting Co. v. FCC, 23 L. Ed. 2d 371. 21 (1983) 1 WLR 151. 22 See also De Frestar v. Ministry of Agriculture, Fisheries Fisheries and Housing, (1999) 1 AC 69. 23 State of Madras v. V.G. Row, AIR 1952 SC 196. 24 Om Kumar v. UOI, AIR 2000 SC 3689; Papanasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200; Chintamanrao v. State of M.P., AIR 1951 SC 118; Pathumma v. State Of Kerala, AIR 1978 SC 771. 25 O.K. Ghosh v. Joseph E.X., AIR 1963 SC 812; NALSA v. UOI, AIR 1962 SC 305; Sodhi Samsher v. State of Pepsu, AIR 1954 SC 276. 26 G. Jairaj v. State of Karnataka, (1998) AIHC 3960 Kant; Pannalal Bringraj v. UOI, 195 7 SCR 233.

3


principle of proportionality27. “Reasonable restriction” which which the State could impose on the fundamental rights “should not be arbitrary or of excessive nature beyond what is required” in the interests of public. 28 But in the present case the Amendment Act passed is neither is proportional nor is serving the purpose under Art.19(2) of the Constitution. The Amendment act does not consider the social conditions of present and encroaches upon the Freedom of speech and expression, by levying excessive burden on the circulation of press. [1.2.2] IMPUGNED ACT

IS

HIGHLY DISCRETIONARY

IN

NATURE:- The impugned act is

highly arbitrary and discretionary in nature. The Act adds a clause saying “Where, on receipt of a complaint…… that a newspaper or news agency has offended against the sovereignty or integrity of the nation or national …. tried to manipulate public opinion against the sovereignty

& integrity of the nation or against the elected government” 29. As soon as the Act puts restriction on criticism of government it goes out of the umbrella of 19(2). Mere criticism of government and its policies30 and expressing views against a particular party 31 are not punishable and does not comes within ambit ambit of 19(2). It is thus highly arbitrary in nature. Again whether whether the restriction infringes the rights “excessively” or not is for the th e Court to decide32, but in the present case the Impugned Act gives unlimited right to Press Council, which is in itself a Government body to decide the excessiveness. It was held that “Another “ Another type of excessiveness takes place where the Legislature confers unfettered power upon the Executive to impose restriction upon the exercise of the fundamental right without offering a guide or standard for canalising such power 33 For a restriction to be reasonable it must offer a standard or policy for the guidance of the administrative authority for the exercise of its subjective power.34 But in the present case none none of the above conditions conditions are fulfilled and hence the Act is passed only of subjugate specific views which the government thinks is against its policies . Hence it is pleaded before the Hon’ble court to declare the said act as Arbitrary.

27

MRF Ltd. v. Inspector, Kerala Government, AIR 1999 SC 188; Aurunalachanm Nadar v. State of Madras, AIR 1959 SC 300. 28 Bishmbar Dayal Chandra Mohan v. State Of U.P., AIR 1982 SC 33; Chintamanrao v. State of M.P., AIR 1951 SC 118. 29 Moot problem ¶ 14. 30 Jawali v. State of Mysore, AIR 1966 SC 1387. 31 Ahmed v. State, AIR 1951 All 459; Sarju v. State, AIR 1956 All 589. 32 Om Kumar v. UOI, AIR 2000 SC 3689. 33 Dwarka Prasad Lakshmi Narayan v. State Of U.P., AIR 1954 SC 224; P.P. Enterprises v. UOI, AIR 1982 SC 1016. 34 Harichand v. Mizo Dtr. Council, AIR 1967 SC 829; Maneklal Chotana v. Makwana, AIR 1967 SC 1373. Himmatlaw v. Police Commissioner, AIR 1975 SC 87.

4

IMS UNISON UNIVERSITY 4TH NATIONAL MOOT COURT COMPETITION [2.]SEDITION UNDER S ECTION 124-A OF INDIAN PENAL CODE IS UNCONSTITUTIONAL:-

It is contended before the Hon’ble Supreme Court that Section 124-A 124 -A of Indian Penal Code, 1860 in unconstitutional because it is against the constitution of India (2.1) and (2.1) and The doctrine of presumption in favour of constitutionality is not applicable to pre-constitutional legislations(2.2). legislations(2.2). Moreover, Section 124A of the IPC violates Art. 19(1) (a) of the Indian Constitution as the chilling effect created by sec. 124A restricts the exercise of Article I9(1)(a) (2.3) and (2.3) and it fails Strict Scrutiny test. (2.4) [2.1] OFFENCE OF SEDITION IS AGAINST THE C ONSTITUTION OF INDIA :-

It is argued that the Constitution has a noble and grand vision as contained i n the Preamble 35and it has been said that, “The Preamble to the Constitution is the lodestar and guides those who find themselves in a grey area while dealing with its provisions 36.” The Preamble of the Constitution serves two purposes – (1) it indicates the source from which the Constitution derives its authority viz., the people of India; (2) it states the objects which the Constitution seeks to establish and promote37. Moreover, in Kesavananda Bharati Bharati v. State of Kerala 38 it was held that the Preamble to the Constitution is

39

an integral part of the basic structure of the

Constitution40.One of the main objects of preamble is ‘Liberty’ 41 which it provides to the citizens of country. So the main ideal of Constit ution is to grant Freedom or Liberty, which can be further substantiated by Article 19 of Indian Constitution, Constitution, which provides a comprehensive comprehensive list of freedoms provided to Individuals. But on the other hand the Offence of Sedition under 124-A takes away the freedom or is aimed at curtailing the freedom. Constituent Assembly Debates condemn the very existence of ‘sedition as a crime’ in a democratic society:- Further it is Evident from Constitutional Assembly Debates that it was

never intention of Constitutional makers , to use sedition sedition as a tool for curtailing freedom. The drafting committee members like K.M. Munshi 42 and Mahboob Ali Bahadur 43 and many others were against this law. Deletion of the word ‘sedition’ from the draft of Art. 19(2) portray the intention of the Constituent Assembly. During the Debates the framers of the Constitution specifically relied on the advocacy of replacement of one Government as the only bulwark

35

State of Bihar v. Kameshwar Singh , AIR 1952 SC 252 Steel Authority of India Ltd. v. National Union Water Front Workers , AIR 1995 SC 3527 (3535) 37 Golak Nath v. State of Punjab , AIR 1967 SC 1643 38 AIR 1973 SC 1461 39 Kuldip Nayar v. UOI , AIR 2006 SC 3127 40 M. Nagaraj v. UOI , AIR 2007 SC 71 41 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 42 Statement of K.M. Munshi, CONSTITUENT ASSEMBLY DEBATES, Vol. VII, 34 (December 01, 1948). 43 Statement of Mahboob Ali, CONSTITUENT ASSEMBLY DEBATES, Vol. VII, 28 (December 01, 1948). 36

5


against democracy and hence the exclusion of sedition. The Constitution must be interpreted to give effect to the intention of the Constituent Assembly. 44 So by virtue of Constitution being a grund norm 45 , the validity of all the laws are checked with respect to the Constitution and Section 124-A, being a subsidiary law, is going against the constitution and is liable to be struck down. [2.2]THE

DOCTRINE OF PRESUMPTION IN FAVOUR OF CONSTITUTIONALITY IS NOT

APPLICABLE TO PRE - CONSTITUTIONAL LEGISLATIONS

India Penal Code is a pre-

constitutional legislation as it came into force on January 1, 1862. 46 The Supreme Court has observed that a pre-constitutional legislation has no barrier at the time of its enactment, and various limitations have now been brought in by the Constitution, therefore doctrine of presumption in favour favour of constitutionality does not not apply to it.47 Reiterating the same position, judge Bench had observed that this doctrine ‘is not of infinite application and has a nine- judge recognized limitations’. This doctrine is not applicable to Sec. 124A and the court is therefore not ‘free to stretch stretch or pervert the language of the enactment in the interests of any legal or constitutional theory’. 48 [2.3]SECTION 124A OF THE I PC VIOLATES ART . 19(1) (A) OF THE INDIAN CONSTITUTION AS THE CHILLING EFFECT CREATED BY SEC.

124A RESTRICTS THE EXERCISE OF ARTICLE

I9(1)(A):- It is submitted that an unconstitutional abridgment can be caused not only by

prohibition but also by inhibiting the exercise of fundamental rights 49 which can have a deterrent effect or chilling effect, which the Court should declare unconstitutional.50 The vague definition of sedition under sec. 124A and the wide ancillary powers of detention deter the legitimate exercise of freedom of speech and expression. The chilling effect inhibits the legitimate exercise of fundamental rights. The mere threat of sanction can deter the exercise almost as potently as the actual application of the sanctions. 51

44

Lt. Col. Khajoor Singh v. The UOI and and Anr., AIR 1961 SC 532; R. R. M. D. Chamarbaugwalla v. The UOI, (1957) 1 SCR 930. 45 Pradip Kumar Maity v. Chinmoy Kumar Kumar Bhunia, (2013) 11 SCC 122; Saiyad Mohammad Bakar El-Edroos v. Abdulhabib Hasan Arab, (1998) 4 SCC 343; K.P Sudhakaran v. State of Kerala, (2006) 5 SCC 386. 46 K.D. GAUR , TEXTBOOK O N THE I NDIAN PENAL CODE cxxiv (4 lh ed., Universal Law Publishing Co. Pvt. Ltd. 2009). 47 New Delhi Municipal Committee v. Suite of Punjab, AIR AIR 1997 SC 2847. 48 In Re, The Central Provinces and Berar Act No. XIV of 1938, (1939) F.C.R. 18 at 37; Diamond Sugar Mills Ltd. v. The State of Uttar Pradesh (1961) 3 SCR 242; Gulabbhai v. UOI, (1967) I SCR 602. 49 Durga Das Basu, Commentary On The Constitution Of India 2417 (8th cd., Lexis Nexis Butterworths Wadhwa 2007). 50 Lamont v. Postmaster General, 381 U.S. 301 (1965). 51 Cantwell v. Connecticut, 310 U.S. 296,311 (1940); Gooding v. Wilson, 405 U.S. 518(1972).

6


Also offence offence of sedition sedition is used as as Tool for curbing the Free Free Speech Speech of Dissenting Voices :It is humbly submitted before this Hon’ble court tha t the by disguise of this section the government is supressing the voices of the the people not in conformity to its policies. In an English case of “R v. Collins”52 it was observed by the House of Lords that “Seditious intention is an essence of the offence”. Hence offence”. Hence we can say that to be prosecuted for the crime of Sedition a person must have some intention to overthrow the government by violent means53. But this is not the practice in relation to this section as can be deduced by a series of cases. In all these cases the offence of sedition was slapped on the dissenting voices against the government. None of these cases have in support any argument which can affirm that any of the accused had any seditious intention to overthrow the Government by any violent means. But in all these cases the tool of Sedition was just used to put a gag in the mouth of any dissenting voice against the government. In Balwant Singh Case 54, Arundhati Roy case 55, Binayak Sen Case 56, Aseem Trivedi Case57 this tool was used to supress the voices voices and the misuse crossed limits when in Hardik Patel Case58 The Gujarat government booked a Patel leader under sedition for sending messages containing “offensive language against the Prime Minister, the State Chief Minister and Amit Shah, the President Presiden t of BJP”. [2.4] STRICT SCRUTINY TEST IS APPLICABLE The Supreme Court in Subhash Chandra case 59

has laid down varies categories of cases when ‘strict scrutiny’ test can be applied. One of the categories laid down was where the general presumption as regards the constitutionalit y of the statute or action cannot be invoked. 60 Therefore, the Petitioner submits that this test will be applicable in the instant' case, since the law in question is a provision of pre-constitutional legislation, where presumption in favour of constitutionality does does not apply. To pass this test, the State has to prove, among other things, (a) that the law was enacted for a compelling reason (b) that there is a minimal mi nimal interference with the rights in question, (c) that it was made in the absence of any alternative, and (d) that it is proportionate. 52

(1839) 9 C&P 456. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955; Indra Das v. State of Assam, (2011) 3 SCC 380; Arup Bhuyan v. State of Assam, AIR 2011 SC 957. 54 Balwant Singh v. State of Punjab, 1995 3 SCC 214. 55 In Re: Arundhati Roy, Contempt Petition (Crl.) 10 of 2010. 56 Vinayak Binayak Sen v. State of Chhattisgarh, 2011 SCC Online Chh 30. 57 Sanskar Marathe v. State of Maharashtra, 2015 Cri LJ 3561. 58 Hardik Bharatbhai Bharatbhai Patel V. State of Gujarat , MANU/GJ/1070/2016 59 Subhash Chandra v. Delhi Subordinate Services Selection Board, (2009) 11 SCALE 276. 53

60

Id.

7


The petitioner submits that the Section 124 -A of IPC fails to satisfy the second and third conditions of this test. Firstly, it is required that there should be minimum interference with the rights, but Section 124-A encroaches excessively on the freedoms granted in 19(1)(a). Secondly there are alternatives to the Section 124-A. Again even if the section is declared unconstitutional, the main objective parts of section 124-A will be saved by Section 5, of the Seditious Meetings Act, 1911 and Section 2(o) & Section 13 the Unlawful Activities (Prevention) Act, 1967, which aims at curtailing offences against state. Hence the Petitioner

submits that Sec. 124A does not pass the test, t hus Unconstitutional. The above examples demonstrate that Article 19(1)(a) continues continues to be held hostage by Section 124-A. and the tool of sedition is continuously used by the government to silence the diss enting voices Thus it is humbly submitted before this Hon’ble Hon’ble Court to declare this section Unconstitutional in the lights of recent facts, social conditions of society so that it is not misused. [3.] ACCUSED RAMAIYA KUMAR WILL NOT BE LIABLE FOR SEDITION :- By looking into

the very facts of the case, it can be clearly clear ly deduced that, Ramaiya Kumar have been held liable for sedition, for his speech in rally, in which he claimed that Mashkir deserved to be independent and that they will seek independence at any cost. In the case of Advocate Manuel was said by the Hon’ble Court that, if there is Manuel P.J. v. State61, it was any offence that is committed under Chapter IV of the IPC, it has to be examined within the letter and spirit of the Constitution and not as previously done under the imperial rule. So as per the constitution of India, it guarantees freedom of speech and expression 62. If any act is against any law, but is within the ambit of freedom provided by the constitution, then it will be just and fair. In Indra Das v. State of Assam63 and Arup Bhuyan v. State of Assam 64, the Supreme Court unambiguously stated that only speech that amounts to “Incitement to imminent lawless action” can be criminalized. In Shreya Singhal v. UOI 65, the famous 66A of Information Act, 2000 judgment, the Supreme Court drew a clear distinction between between “advocacy” and “incitement”, stating that only the latter could be punished. And as Ramaiya Kumar only expressed his vie w on an academic issue, that will only come under ‘advocacy’ and not under ‘incitement’. Also, advocating revolution or advocating even violent overthrow of the State, does not amount to 61

2012 (4) KLT 708. Constitution of India, Art 19 (1) (a). 63 (2011) 3 SCC 380. 64 AIR 2011 SC 957. 65 AIR 2015 SC 1523. 62

8


sedition, unless there is incitement to violence, and more importantly, the incitement is to ‘imminent’ violence.66. And as per the facts of the case, there is no imminent violence, and also the assembly was ended peacefully. Tara Singh Gopi Chand v. The State of Punjab

67

in which Mr. Chief Justice Westen, in order

to examine the validity of section 124-A adopted the interpretation given to it by Mr. Justice Strachey in the Tilak 68 case. According to Mr. Justice Strachey, the offence consisted in exciting or attempting to excite in others certain bad feelings towards the government irrespective of the consequences that may or may not follow. In the case of Nazir Khan v. State of Delhi69, it was said that-‘T that-‘The he very tendency of sedition is to incite the people to insurrection and rebellion’, but as we can clearly assert that, by presenting view on a debatable academic issue, Ramaiya Kumar nowhere tried to incite people people to insurrection and rebellion. In the case of Niharendu Dutt Majumdar 70, it was said that, the wordings on the basis of which a person is charged for the offence of sedition, should lead to incitement to violence, mere against words used are not enough. So by looking into the facts, it is very clear that, rally in which Ramaiya Kumar delivered speech concluded peacefull y, thus not leading any incitement of violence, and thus will not be l iable with the charge of sedition. So by the facts it is very clear, that the t he meaning of the sentence said by Ramaiya Kumar in his speech was not to incite violence, and thus will not be liable for the charge of Sedition. Explanation 2&3 of Section 124AAlso it is very important to note that, t hat, Explanation 2 & 3 of Section 124A of Indian Penal Code, specifically points out that, any Comments expressing disapprobation of the measures of the Government, or any administrative or other action of the Government, without exiciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Disapprobation used in Explanation 2&3 simply means disapproval 71. So if we will relate the facts of the case with the Explanation 2&3, It is only the disapprobation of the Kanahiya Kumar, with the new policies that the Government is bringing, and not in any way, is raising any incitement against the State. And as it has been stated in the case of Jogendra Chunder Bose 72, that disapproval could be there against any step or policy, and that would in no way amount to sedition. 66

Balwant Singh v. State of Punjab, AIR 1987 SC 1080. AIR 1951 Punj 27. 68 Queen Empress v. Bal Gangadhar Tilak, ILR (1898) 22 Bom 112. 69 AIR 2003 SC 4427. 70 (1942) FCR 38. 71 Jogendra Chunder Bose, (1891) 19 Cal 35, 44; Bal Gangadhar Tilak, (1897) 22 Bom 112, 137. 72 6. Ibid 6. 67

9

IMS UNISON UNIVERSITY 4TH NATIONAL MOOT COURT COMPETITION [3.1] FREEDOM ARREST

OF SPEECH AND EXPRESSION OF

RAMAIYA KUMAR

IS

VIOLATED

BY HIS

:- It is humbly submitted before this Hon’ble court that the arrest of Ramaiya Kumar

and slapping of Sedition charges on him is violative of his Right to speech and expression. Ramaiya Kumar, like any other person has the right to free speech and expression and this right covers in its ambit all types of beliefs and expressions expressible subject to the provisions of Constitution. The public discussion with people's participation is a basic fea ture and a rational process of democracy which distinguishes it from all other forms of Government. 73.The Right also includes the views which are unpalatable to the Government. 74 An environment in which human rights are respected is nurtured by a vibrant flow information and avenues for a critical assessment of governance75. In Bobby Art International v. Om Om Pal Singh Hoon,76 the Supreme Court said that in democracy, it is not necessary that everyone should sing the same song, different views are allowed all owed to be expressed by proponents and opponents not because they are correct or valid but because there is freedom in this country for expressing even different views on any issue 77. [3.1.1] MERE CRITICISM OF GOVERNMENT IS NOT PUNISHABLE:-

Ramaiya Kumar in his speeches has criticised crit icised many of the views of the government and hence when his views became popular was slapped with the charges of sedition. But it is humbly submitted before this court that mere criticism of government policies 78 and expressing views against a particular party79 are not punishable and does not comes within ambit of 19(2). In short, freedom of expression means freedom not only for the thought we cherish, but also for the thought that we hate.80 Discussion and advocacy are core of freedom of speech and expression81 and even if they cause annoyance, inconvenience or grossly offend, 82 etc., they cannot be curbed by law. 83 Free criticism is the foundation of free Government, 84for, it is only

73

Maneka Gandhi v. UOI, (1978) 1 SCC 248; Naraindas Indurkhya v. State of M.P., (1974) 4 SCC 788; Abramson v. United States, 250 US 616; Whitneys v. California, 21A US 357 (1927). 74 Anand Patwardhan v. UOI, AIR 1997 BOM 25; F.A. P ictures International v. CBFC, AIR 2005 Bom 145. 75 F.A. Pictures International v. CBFC, AIR 2005 Bom 145. 76 AIR 1996 SC 1846. 77 Narain Das v. State of M.P., (1947) 4 SCC 788. 78 Jawali v. State of Mysore, AIR 1966 SC 1387. 79 Ahmed v. State, AIR 1951 All 459; Sarju v. State, AIR 1956 All 589. 80 Narain Das v. State of M.P., (1947) 4 SCC 788. 81 Abraham v. United States, 250 US 616. 82 Devidas Ramachandra Tuijapurkar v. State of Maharashtra, (2015) 6 SCC 1. 83 Prakash Jha Productions v. UOI, (2011) 8 SCC 372. 84 Schneider v. Irvinton, (1939) 308 US 147.

10


through free debate and free exchange of ideas 85 that the Government remains responsive to the will of the people and peaceful change is effected. 86 The State cannot prevent open discussion and open expression, however hateful to its policies.87 Everyone has a fundamental right to form his own opinion on any issue of general concern . Dissent is quintessence of democracy democrac y 88 Hence in the lights of above authorities and cases we can say that a person is free to criticise the government and its policies and will be protected under the umbrella of Art. 19(1)(a). Hence the arrest of Ramaiya Kumar and charges against him are not sound in law. [3.1.2] FREEDOM OF SPEECH OF RAMAIYA KUMAR IS

NOT

RESTRICTED UNDER 19 (2):-

It is humbly submitted before this Hon’ble court that in the present case the Speech of Ramaiya Kumar does not comes within the ambit of these restrictions. Moreover, the Restriction imposed by the impugned Amendment Act does not fall in any of grounds under Art. 19 (2). Speech of Ramaiya Kumar does not fall in any grounds mentioned under Art 19(2): - The restrictive clauses in 19(2-6) are exhaustive and must be construed strictly.89 Freedom of speech can only be restricted on the grounds mentioned in 19 (2). 90 It cannot like the freedom to carry business, be curtailed in the interests of general public 91. The courts are always there to strike down curtailment of I freedom of the pre ss by unconstitutional means.92 Sovereignty, integrity and Security of state is not no t threatened by the said speech: -. In order

to check the above grounds, the ‘Clear ‘Clear and Present Danger Test’ evolved evolved by the U.S. Supreme Court in Schenck v. United States 93 is followed which says “The “ The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the legislature has 85

S. Khushboo v. Kanniammal, (2010) 5 SCC 600; Whitney California, 274 US 357 (1927) Terminillio v. Chicago, (1949) 337 US 1; Stromberg v. Griffs, (1931 ) 283 US 359. 87 Arvind P Datar, Commentary On The Constitution Of India 582 (2 nd edn., 2010). 88 S Rangarajan and Ors. v. P Jagjivan Ram and Ors., (1989) 2 SCC 574 ; Ozair Hussain v. UOI, AIR 2003 Del 103. 89 Supt. v. Ram Manohar, AIR 1960 SC 633; Kedar Nath v. State of Bihar; Sodhi Samsher v. State of Pepsu, AIR 1954 SC 276. 90 Sakal Papers (P) Ltd. and Ors. v. UOI, AIR 1962 SC 305; T ata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139; Hamdard Dawakhana (Wakf), Lai Kuan v. UOI, AIR 1960 SC 554; Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana, 1988 Supp (1) SCR 486; S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574; Printers (Mysore) Ltd. v. Asstt. CTO, (1994) 2 SCC 434; K.A. Abbas v. UOI, (1970) 2 SCC 780. 91 Shreya Singhal v. UOI , AIR 2015 SC 1523; Chaptinsky v. New Hampshire, 86 L Ed 1031 ;Kameshwar Prasad v. State \of\ Bihar,AIR 1962 SC 1166; AIR 1962 SC 305; Supt., Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633; Cantwell v. Connecticut, 128 ALR 1352 (1940); Devidas Ramachandra Tuljapurkar v. State{of\ Maharashtra, (2015) 6 SCC 1. 92 Kruse v. Johnson, (1898) 2 QB 91; Indian Express Newspapers v. UOI, (1985) 1 SCC 641; State of Madras v. V.G. Row, AIR 1952 SC 196. 93 63 L. Ed. 470 (1919). 86

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a right to prevent. It is a question of proximity and degree ”. This test is test is followed in India. 94 The Supreme Court in some other cases has used the expression "tendency" to create immediate public disorder.95 The 'clear and present danger test is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that the legislature has the right to prevent.”96 The anticipated danger should not be remote, conjectural or far-fetched.97 It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interests. It should be inseparably locked up with the action contemplated like the equivalent of a "spark in a powder keg". 98 Emotionally charged rhetoric by itself is not sufficient to hold that speeches are likely to incite lawless action unless the language is followed by acts of violence. 99Even the advocacy of ‘revolution of the toiling masses,’ has been held not to be prejudicial to the security of the State, where it was not suggested that the toiling masses should effect the revolution by resorting to arms.100 Public Order is not threatened by the said acts :- It is humbly Submitted that the acts of

Press and Ramaiya Kumar does not create a public disorder Mere apprehension of disturbance is not enough to overcome the right ri ght to freedom of expression. 101 Public order is an expression of wide connotations and includes public safety or interest and signifies that the State of tranquillity prevailing among the members of a political society. 102 Mere Support of a banned organisation cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence or does an act intended to create disorder or disturbance of public peace by resort to imminent violence 103 Law and Order’ comprehends disorders of

94

S Rangarajan and Ors. v. P Jagjivan Ram and Ors., (1989) 2 SCC 574 ; State of Bihar v. Shailabala Devi, AIR 1952 SC 329; Ramji Lal Modi v. State of U.P., AIR 1957 SC 620; Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955; Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130. 95 Schenck v. United States, 249 US 47 (1919); Terminiello v. Chicago, 337 US 1 (1949); Brandenburg v. Ohio. 395 US 444 (1969); Virginia v. Black, 538 US 343 (2003); Abrahm v. United States, 63 L. Ed. 1173 (1919); Gompers v. Buck's Stove & Range Co., 34 LRA (NS) 874 (1911); Virginia v. Black, 538 US 343 (2003); Watts v. United States, 22 L. Ed. 2d 664: 394 US 705 (1969). 96 Duda v. Shiv Shankar, AIR 1988 SC 1208; R.P. Ltd. v. Indian Express, AIR 1989 SC 190; AP v. P. Laxmi Devi, AIR 2008 SC 1604. 97 N.K. Bajpai v. UOI, AIR 2012 SC 1310; Kama Krishna Sircar v. E mperor, AIR 1935 Cal 636. 98 Manohar Damodar Patil v. Government of Bombay, AIR 1950 Bom 210; Niharendu Dutt Majumdar v. Emperor, AIR 1942 FC 22; Handyside v. United Kingdom, 1976 EHRR 737. 99 State of Bihar v. Sailabala, AIR 1952 SC 329; NAACP v. Claiborne Hardware Co., (1982) 458 US 886. 100 Manohar v. State of Bombay, AIR 1950 Bom 210; Badri Narain v. Chief Secy., AIR 1941 Pat 132. 101 Tinker v. Des Monis School Dist., (1969) 393 US 503. 102 Ram Manohar v. State Of Bihar, AIR 1966 SC 740; Kishori Mohan Beral v. State o f W.B., AIR 1972 SC 1749. 103 Arup Bhuyan v. State of Assam, AIR 2011 SC 957; Indra Das v. State of Assam, (2011) 3 SCC 380; State of Kerla v. Raneef, (2011) 1 SCC 784; Kedar Nath v. State of Bihar, AIR 1962 SC 955; Elbrandt v. Russel, (1984) 384 US 11; United States v. Robel, (1967) 389 US 258.

12


less gravity than those effecting “public order” just as public or der der comprehends disorders of less gravity then those effecting “Security “Securit y of State”104 Hence an activity which affects ‘law and order’ may not necessarily affect ‘public order’ 105. Hence it can be concluded that acts of Ramaiya Kumar and press can lead to law and order but not public disorder, thus not restricted. [4] LATHI

CHARGE DONE BY POLICE INFRINGED

RIGHT

TO PEACEFUL ASSEMBLY OF

TOMAR RASHID.:- It violates freedom of assembly under 19(1)(b) because Assembly on

(4.1), Highway act allows the same (4.1.1), (4.1.1), and Assembly by Highway in this case lawful (4.1), (4.1.2) and lathi charge was prohibited to be done by Police in case of supporters was lawful (4.1.2) and apprehension of breach of the peace .(4.2) As per the facts of the case, it has been stated that strike was held on National Highway, and for same, protestors were lathi charged by the police without any warning and as a result Tomar Rashid, one of the protestor got injured and had to be admitted in hospital. This is the clear violation of his Fundamental Right to peaceful ass embly as provided in Article 19(1) (b), which says that, All citizens shall have the right right to assemble assemble peacefully and without without arms and as it has nowhere mentioned in the facts of the case that, protestors were doing strike with arms, so the main debatable concern is that, whether the as sembly was lawful or not. This can be proved b y analyzing 4 law points regarding same. [4.1.] ASSEMBLY ON HIGHWAY IN THIS CASE LAWFUL. With regard to this matter before the

Hon’ble Supreme Court, it Court, it is contended that assembly on Highway was totally lawful. This can be proved with the help of relevant cases on the same issue. In the case of Hickman v. Maisey106 , Nagy v. Weston107and Hirst v. Chief Constable Constable108, it was said that a person or Group of Person can temporary stop on Highway, but he has no right to occupy a highway to erect some permanent structure which causes obstruction to the tariff. So it is clearly mentioned here that one can stop on Highway for a temporary period, which is incidental to the purpose of his passage, and in regard to the present matter, the protesters were allegedly on Highway for for a temporary period, against the policy of Indiana Peoples Party (IPP) and as they did not erected any permanent structure, which would cause any obstruction to the

104

Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740; Ramlila Maidan Incident, In Re, (2012) 5 SCC 1; Commissioner of Police v. C. Anitha, (2004) 7 SCC 467; T.K. Gopal v. State of Karnataka, (2000) 6 SCC 168; Harpreet Kaur v. State of Maharashtra, (1992) 2 SCC 177; Kuso Sah v. State of Bihar, (1974) 2 SCC 177; State of U.P. v. Sajay Pratap Gupta, (2004) 8 SCC 591. 105 Bhupal v. Arif, AIR 1974 SC 255. 106 (1900) 1 QB 752 (CA). 107 (1965) 1 All ER 78. 108 (1987) 85 Cr AR 143.

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passer by, so there act will wi ll be lawful la wful and Police is liable for infringing there ther e right to peaceful assembly. Also in the similar case of Lowdens v. Keaveny 109 , in which A band which marched through Belfast playing Party airs, with a result r esult that a crowd of several hundred collected, by which the road was blocked with obvious reasons, it was held by the Hon’ble Hon’ble court that, they were not liable for causing a “material obstruction”. So it can be clearly compared that, if the assembly of several hundred is not a material obstruction, then how can be the assembly of few supporters would amount to material obstruction, so that the police did lathi charge on them. Also the problem caused to the public or deemed to be caused, cannot be differentiated only on the basis of purpose. So from the above cases, it is clear that, the supporters were lawfully exercising their right of peaceful assembly. [4.1.1.]INTERPRETATION OF HIGHWAY ACT , 1959 ON THE ISSUE . Section 8B of Highway

Act, 1959 provides for anything mischief done on National Highway. It saysSection 8B-Punishment for mischief by injury to national highway. “Whoever commits

mischief by doing any act which renders or which he knows to be likely to render an y national highway referred to in sub-section (1) of section 8A impassable or less safe for travelling or conveying property, shall be punished with imprisonment of either description for a term which may extend to five years, or with a fine, or with both.” both. ” So it will only amount to mischief only onl y in two conditions A. Any act which makes it impassable. So if will analyze the facts of the case, taking into

concern first condition, to render any act on a Highway to mischief, then in nowhere in the facts of the case it is stated that, Strike made the Highway impassable. It was only alleged by the Police, that it was blocked, with no substantial proof. So if it was not blocked, then there can be many possibilities of strike on Highway. They may be sitting in a row giving way to passer-by, or may be sitting on the side of Highway, not blocking Highway at all. So as the protestors are not making Highway impassable, they are not violating First condition for mischief mentioned in Section 8B of Highway Act. B. Any act act which makes it less safe for travelling or or conveying conveying property. property. As it has already been

mentioned, that in the facts of the case, it is nowhere mentioned that protestors were on strike along with arms, or anything that would affect the safety of passerby, and also it is important to note that, facts of the case specifically points out that, the object of the strike

109

(1903) IR 82.

14


was to express Solidarity, and also the strike ended peacefully. Mention of these two phrases in the facts clearl y indicates that, from beginning till end, the purpose was only to assemble peacefully and to express solidarity, and that was only done. And thus the protestors did not violated condition 2, mentioned in section 8B of Highway Act. Thus by looking into the two conditions of Section 8B of Highway Act, it can be clearly said that, strike stri ke done on Highway, will not come within the ambit of Section 8B of Highway Act. [4.1.2.] ASSEMBLY BY SUPPORTERS WAS LAWFUL. According to Section 129(1) of Code of

Criminal Procedure, 1973 authorities the Magistrate or the Police to dispers e assembly-“if assembly-“if it is likely to cause a d isturbance isturbance of the peace”. So it is very clear that, a lawful assembly becomes unlawful, if it is likely to cause a disturbance of the peace. And as per the facts of the case, assembly by the supporters of AISU was for expressing solidarity and also it ended peacefull y, thus in no way caused disturbance of peace. Also in the case of Beauty v. Gilbanks110, and Emperor v. Tucker 111, it was said that a lawful meeting may ma y be dispersed if it is likely to excite such opposition as may endanger the public peace. So as per the facts of the case, as the assembly was peacefully conducted on Highway, where only the protest ors were there, then it, it , in no way would lead to disturbance of public peace. Also it was only due to the action of Lathi charge by police that lead to the nationwide violent protest, and in no way supporters were liable, to cause disturbance of public peace. In one of the cases112, it was observed that to interfere with the private rights of individuals on anything short of strongest necessity 113 would make-“ make- “not the law of the land but the law of the mob supreme.” 114In the case of Babulal v. State of of Maharashtra115, the action cannot be taken unless danger to public order is imminent. But in the present case, there was no imminent danger to public and thus the assembly was lawful, and not became unlawful. [4.2] .A CTS PROHIBITED TO BE DONE BY POLICE IN CASE OF APPREHENSION OF BREACH OF THE PEACE .

A study of the Supreme Court decisions 116 and the mass of previous decisions

which have been reviewed therein will lead to the propositions as to what the Police cannot do under colour of maintenance of the peace. In this case it was said that- “The Police have no power, nor duty to suppress the lawful exercise of a legal right simply because obstruction on the part of wrongdoers wrongdoers might lead to breach of the peace.” As in this case, supporters were 110

(1882) 9 QBD 308. (1882) 7 Bom 42. 112 Humphires v. O’Connor,(1864) 17 Ir. CLR 1. 113 Robertson, Freedom, The Individual and the Law 85 (1989). 114 Humphires v. O’Connor, (1864) 17 Ir. CLR 1. 115 AIR 1961 SC 884. 116 Sundram v. R. (1882) 6 Mad 208, approved by the Supreme Court in Ghulam v. UOI, AIR 1981 SC 2198. 111

15


peacefully protesting, but the police went against them and lathi charged, only because there was an apprehension of breach of peace. The reason is quite patent, namely, that it is the duty of the administrative and Police authorities to maintain the law by upholding legal rights and not by suppressing them. 117 So as per the facts of the case, it is very clear that, the assembly was peaceful, and by act of police of lathi charge is in a way suppressing the legal rights of the supporters to assemble peacefully. In Falauddin’s case118, The Hindus of a certain place, applied for leave to take procession along the streets and the Magistrate issued an order under Section 144, Criminal Procedure Court, forbidding the Hindus to conduct that procession, holding that “the likelihood of rioting and bloodshed was too great to allow them to exercise their lawful rights”. The High court held that this waswas - A confession of impotence on the Part of the authorities. The same scenario is in this case also, in which there was no outbreak of violence on the part of supporters, even then also, Police did lathi charge, as according to them, there was apprehension of violence, so the act done by the police was not valid. Hence it is contended to the Hon’ble Court that by above mentioned legal grounds given in various cases, it is very clear that the act done by Police was unlawful, and infringed the Fundamental Right of Tomar Rashid to assemble peacefully.

117

Himmat Lal v. Police Commr., AIR 1973 SC 87. Sabbaya v. Falauddin, (1928) CLJ 509 (Mad.).

118

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PRAYER

Wherefore, in the light of the facts stated, issues raised, argument advanced and authorities citied, it is most humbly prayed by the Petitioners and Appellant in this matter that the Hon’ble Supreme Court of Indiana, be pleased to: 1. Declare section 14-A of Press Council Act as a s Unconstitutional. 2. Declare Section 124-A of Indian Penal Code, 1860 as unconstitutional. 3. Acquit Ramaiya Kumar from act of Sedition under Section 124-A of Indian Penal Code, 1860. 4. Declare the act of lathi charge by Police unlawful as it is in violation with Article 19(1) (b) of the Constitution.

and/or

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

For this act of kindness, the Appellant shall forever humbly pray.

Place: New Delporto

Respectfully Submitted by,

Date: ………………….

Counsels for the Petitioners & Appellant

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TD-4-P

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