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LEX OMNIA MOOT COURT - 2016

TC-04

LEX OMNIA MOOT COURT - 2016


IN THE HONBLE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

SPECIAL LEAVE PETITION NO. 1996/2016


DHARMANAND POVER V. UNION OF INDIA

&
SPECIAL LEAVE PETITION NO. 1997/2016
GENTLEMANIAN SWAMY V. LAVEESTA KETALVAD

UPON SUBMISSION TO THE HONBLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE
SUPREME COURT OF INDIA

ON SUBMISSION TO THE REGISTRY OF THE COURT


OF THE HONBLE SUPREME COURT OF INDIA

~MEMORIAL FOR THE APPELANTS ~

LEX OMNIA MOOT COURT - 2016


TABLE OF CONTENTS

LIST OF ABBREVIATIONS ................................................................................................ 4


INDEX OF AUTHORITIES .................................................................................................. 7
STATEMENT OF JURISDICTION .................................................................................... 15
STATEMENT OF FACTS................................................................................................... 16
STATEMENT OF ISSUES .................................................................................................. 18
SUMMARY OF ARGUMENTS ......................................................................................... 19
ARGUMENTS ADVANCED ............................................................................................. 21
SPECIAL LEAVE PETITION NO. 1996/2016
I. THE SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE THE HONBLE SUPREME
COURT OF INDIA. .................................................................................................................. 21
1. APPEAL FROM JUDGMENT. ................................................................................................ 21
2. SUBSTANTIAL QUESTION OF LAW ..................................................................................... 21
3. DECISION OF THE HON'BLE HIGH COURT OF DELHI HAS CAUSED GREAT MISCARRIAGE OF
JUSTICE ............................................................................................................................... 21

II. S. 124-A OF THE IPC, 1860, CONSTITUTES AN UNREASONABLE RESTRICTION ON THE


FREEDOM OF SPEECH AND EXPRESSION UNDER ART. 19 (1) (A) OF THE CONSTITUTION OF
INDIA .................................................................................................................................... 22

1. FREEDOM OF EXPRESSION IS THE CORNERSTONE OF A DEMOCRATIC SOCIETY. .................. 22


2. THE STATE IS THE ULTIMATE GUARANTOR OF THE PRINCIPLE OF PLURALISM..................... 23
3. KEDAR NATH SINGH IS AN AMBIVALENT JUDGEMENT TRAPPING INNOCENTS. .................... 25
3.1 JUDGEMENT GIVEN BY THE HONBLE COURT IN KEDARNATH SINGHS CASE IS A FAILURE
ON THE PART OF INDIAN JUDICIARY. ...................................................................................... 26
4. S. 124A CONFERS UNCONSTITUTIONAL AND UNFETTERED POWER TO THE STATE. ............. 27
5. THE CONSTITUTIONAL REQUIREMENT OF NON-ARBITRARINESS IS NOT MET. ...................... 28
6. INDIAN CONSTITUTION AND ITS UNIVERSALISTIC INTERPRETATION. .................................. 29
7. INTERNATIONAL LAW AND CONSTITUTIONAL INTERPRETATION. ....................................... 31
8. THERE ARE OTHER SECTIONS IN IPC WHICH COMPLETES THE PURPOSE & OBJECTIVE OF S.
124-A. ................................................................................................................................... 33

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LEX OMNIA MOOT COURT - 2016


SPECIAL LEAVE PETITION NO. 1997/2016
I. THE SPECIAL LEAVE PETITION FILED BY MR. GENTLEMANIAN SWAMY IS MAINTAINABLE
IN THE HONBLE SUPREME COURT. ...................................................................................... 34

II. THE BAN ON THE PRODUCTION OF CDS BY I LOVE TRUMP LTD. IS A REASONABLE
RESTRICTION ON THE RIGHT TO PRACTISE ANY PROFESSION, OR TO CARRY ON ANY
OCCUPATION, TRADE OR BUSINESS ENSHRINED UNDER ART. 19 (1) (G). ............................ 34

1. THE RESPONDENT COMPANYS ACTS FELL WITHIN THE AMBIT OF S. 153A OF IPC. .............. 34
2. THERE WAS NO VIOLATION OF FUNDAMENTAL RIGHTS AS THE ACT ITSELF WAS RESTRICTED
BY THE CONSTITUTION OF INDIA............................................................................................ 35
3. FUNDAMENTAL RIGHT UNDER ART. 19 (1) (G) DOES NOT APPLY TO COMPANIES. ............... 36

PRAYER ................................................................................................................................ 39

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LEX OMNIA MOOT COURT - 2016

LIST OF ABBREVIATIONS
ABBREVIATIONS

EXPANSIONS

&

AND

PARAGRAPH

PARAGRAPHS

A.P.

ANDHRA PRADESH

AC/ APP. CASE

APPEAL CASES

AIR

ALL INDIA REPORTER

ART.

ARTICLE

BOM.

BOMBAY

CAL

CALCUTTA

CJ

CHIEF JUSTICE

CO.

CORPORATION

CO.

COMPANY

CPIF

CHAMPIONIST PARTY OF INDIAFARCIST

CR LR

CRIMINAL LAW REVIEW

CRI LJ/ CR LJ

CRIMINAL LAW JOURNAL

CRI.

CRIMINAL

DEL

DELHI

DY.

DEPUTY

ED.

EDITION

ETC

ET-CETERA

FIR

FIRST INFORMATION REPORT

GOVT.

GOVERNMENT

GOVT.

GOVERNMENT

H.P.

HIMACHAL PRADESH

HC

HIGH COURT

HONBLE

HONOURABLE

HP

HIMACHAL PRADESH

HP

HIMACHAL PRADESH

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LEX OMNIA MOOT COURT - 2016


IACHR

INTER AMERICAN COURT OF HUMAN


RIGHTS

ILR

INDIAN LAW REPORTS

IPC

INDIAN PENAL CODE

J&K

JAMMU AND KASHMIR

JMC

JAMNAGAR MUNICIPAL
CORPORATION

JT

JOINT TRIBUNAL

KANT.

KARNATAKA

KER.

KERALA

KNU

KAMALALAL NOHRU UNIVERSITY

L.

LAW

LD.

LEARNED

LTD.

LIMITED

M.P.

MADHYA PRADESH

MDMK

MARUMALARCHI DRAVIDA
MUNNETRA KAZHAGAM

N.C.T.

NATIONAL CAPITAL TERRITORY

NCT

NATIONAL CAPITAL TERRITORY

NO.

NUMBER

ORI.

ORISSA

ORS.

OTHERS

P&H

PUNJAB AND HARYANA

P./ PG.

PAGE

PUNJ.

PUNJAB

PVT.

PRIVATE

RAJ.

RAJASTHAN

REV.

REVIEW

S.

SECTION

SC

SUPREME COURT

SCC

SUPREME COURT CASES

SEB

STATE ELECTRICITY BOARD

SLP

SPECIAL LEAVE PETITION


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LEX OMNIA MOOT COURT - 2016


SLP

SPECIAL LEAVE PETITION

SS.

SECTIONS

SUPP.

SUPPLEMENTARY

TN

TAMIL NADU

U.P.

UTTAR PRADESH

US/U.S.

UNITED STATES OF AMERICA

W.B.

WEST BENGAL

WLR

WEEKLY LAW REPORT

WP

WRIT PETITION

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LEX OMNIA MOOT COURT - 2016

INDEX OF AUTHORITIES

INDIAN SUPREME COURT CASES

SL. NO.
1.

Acharya Maharajshri Narendra Prasad Ji Angad Prasad Ji Maharaj v. State of

PG.
NO.
37

Gujarat, AIR 1974 SC 2098


2.

Aeltemesh v. Union of India, AIR 1988 SC 1768

28

3.

Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722

36

4.

All India Bank Employees Association v. National Industrial Tribunal & Ors.,

38

(1962) 3 SCR 269


5.

Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759

32

6.

Bachan Singh v. Union of India, AIR 1980 SC 898

32

7.

Bangalore Water Supply & Sewerage Board v. A. Rajjapa & Ors., (1978) 2

32

SCC 213
8.

Bennett Coleman v. Union of India, AIR 1973 SC 106

32,
37

9.

Centre for Public Interest Litigation and Ors. v. UOI, (2012) 3 SCC 1

32

10.

Chain Singh v. State of Punjab, AIR 1973 SC 2677

21

11.

Chandra Bhavan Boarding and Lodging Bangalore v. The State of Mysore &

32

Anr., (1969) 3 SCC 84


12.

Chintaman Rao v. State of M.P., (1950) SCR 759

22

13.

D.V Shanmughan v. State of A.P, AIR 1997 SC 2583

21

14.

Dharam Dutt and others v. Union of India and others, (2004) ISCC 712

38

15.

Dwarka Prasad v. State of U.P., AIR 1954 SC 224

22

16.

E. P. Royappa v. State Of Tamil Nadu & Anr, (1974) 4 SCC 3

28,
36

17.

Fertilizer Corporation Kamgar v. UOI & Others, AIR 1981 SC 344

35

18.

Ghodra Electricity Co. Ltd. v. State of Gujarat, AIR 1975 SC 32

37

19.

In re Special Courts Bill, AIR 1979 SC 478

36

20.

Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212

32

21.

J. V. Gokar & Co. (P) Ltd. v. Assistant Collector of Sales-tax (inspection),

38

(1960) 2 SCR 852

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LEX OMNIA MOOT COURT - 2016


22.

J.K. Industries Limited Etc. v. The Chief Inspector Of Factories, (1996) 6

35

SCC 665
23.

Kasturi v. State of J&K, AIR 1980 SC 1992

28

24.

Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955

25

25.

Kerala SEB v. Kurien E. Kalathil, AIR 2000 SC 2573

21

26.

Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461

22

27.

Kharak Singh v. State of Uttar Pradesh & Ors., AIR 1963 SC 1295

32

28.

Kumar Shantilal Gosalia v. Gangadhar Narsingdas Agarwal & Ors., (1981) 4

32

SCC 226
29.

M.M Gupta v. State of J & K, (1982) 3 SCC 41

21

30.

Mahajan v. J.M.C., (1991) 3 SCC 91

28

31.

Maneka Gandhi v. Union of India, AIR 1978 SC 597

28,
32,
36

32.

Minerva Mills Ltd. & Ors. v. Union of India & Ors., AIR 1980 SC 1789

32

33.

Ministry of Information & Broadcasting v. Cricket Association of Bengal &

23

Anr., AIR 1995 SC 1236


34.

Modern Dental College & Res. Cen. v. State Of M.P., (2016) 7 SCC 353

22

35.

Municipal Committee, Amritsar v. State of Punjab, AIR 1969 SC 1100

37

36.

Regional Settlement Commissioner, Jaipur & Ors. v. Sunar Das Bhasin, AIR

37

1963 SC 181
37.

Pathumma v. State of Kerala, AIR 1978 SC 771

36

38.

R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264

32

39.

Raghunath Prasad Singh v. Dy. Commr. of Partabgarh, AIR 1927 PC 110

21

40.

Ram Chand v. Union Of India, 1994 SCC (1) 44

35

41.

Ram Krishna Dalmia v. Justice S. R. Tendolar, AIR 1958 SC 538

36

42.

Rev. Mons. Sebastiao Francisco Xavier Dos Remedios Monterio v. State of

32

Goa, (1969) 3 SCC 419


43.

Romesh Thappar v. State of Madras, AIR 1950 SC 124

37

44.

S. Khushboo v. Kanniammal, (2010) 2 SCC (Cri) 1299

37

45.

Sachidanand v. State of W.B., AIR 1987 SC 1109

28

46.

Sakal Papers Ltd. v. Union Of India, AIR 1962 SC 305

37

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LEX OMNIA MOOT COURT - 2016


47.

Santosh Hazari v. Purushottam Tiwari, AIR 2001 SC 965

21

48.

Sharma Transport v. Government of A.P., AIR 2002 SC 332

28

49.

Shreya Singhal v. Union of India, Writ Petition (Criminal) No.167 OF 2012

36

(Supreme Court of India, 24/03/2015)


50.

Shrinivas Pannalal Chokani v. State of M.P., AIR 1954 SC 23

21

51.

Sir Chunilal Mehta & Sons Ltd. v. Century Spinning & Manufacturing Co.

21

Ltd., AIR 1962 SC 1314


52.

State of J & K v. Hazara Singh, AIR 1981 SC 451

21

53.

State of Maharashtra v. Himmatbhai, AIR 1970 SC 1157

36

54.

State of Orissa v. Radheyshyam Meher, AIR 1995 SC 855

36

55.

State of Rajasthan v. Narayan, AIR 1992 SC 2004

21

56.

State of T.N. v. K. Shyam Kumar, (2011) 8 SCC 737

28

57.

State Trading Corporation v. Commercial Tax Officer & Ors., AIR 1963 SC

32,

1811

37

58.

T.N. Godavarman Thirumulpad v. Union of India & Ors., (1997) 2 SCC 267

28

59.

Tata Engineering & Locomotive v. State of Bihar, AIR 1965 SC 40

38

60.

The State Trading Corporation of India Ltd v. The Commercial Tax Officer,

37

AIR 1963 SC 1811


61.

Union of India v. Chaman Lal Loona and Co., AIR 1957 SC 652

21

62.

Union of India v. G. Ganayutham, (1997) 7 SCC 463

28

63.

Union of India v. Naveen Jindal, (2004) 2 SCC 570

29

64.

Union of India v. The Motion Pictures Association, AIR 1999 SC 2334

29

65.

Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715

32

66.

Vishakha v. State of Rajasthan, AIR 1997 SC 3011

32

67.

Workmen v. Meenakshi Mills, (1992) 3 SCC 336

28

SL. NO.
1.

INDIAN HIGH COURT CASES


F.A Picture International v. Central Board of Film Certification, Mumbai and

PG.
NO.
22

anr., AIR 2005 Bom 145


2.

Sanskar Marathe v. The State of Maharashtra, 2015 Cri LJ 3561

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LEX OMNIA MOOT COURT - 2016


3.

Dr. Binayak Sen Pijush Babun Guha v. State of Chhattisgarh, Criminal Appeal

27

No 20. of 2011 & Criminal Appeal No. 54 of 2011 (Chattisgarh High Court,
10/02/2011)
4.

Ghulam Mohammad Khan v. The Crown, 1950 CrLJ 77 Sind (DB)

24

5.

Tara Singh v. The State, AIR 1951 E.P. 27

25

6.

Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277

30

7.

Himachal Transport Workers Union v. Secretary to Govt. of H.P, AIR 1967

37

HP 21
8.

D.L. Pureiomba of Lambi v. Chief Commissioner of Manipur, AIR 1960

37

Manipur 24
9.

Habibullah v. Gulam Ahmed Baba, 1979 Kashmir Law Journal 309

36

10.

S. Bhagvathi v. State of Tamil Nadu, (2007) 2 MLJ 526 (SB)

36

11.

The Commercial And Ahmedabad v. Union Of India & Ors., AIR 1993 Guj.

35

20

PG.
SL. NO.
1.

COURT DECISIONS AROUND THE WORLD


Turner Broadcasting System Inc v. Federal Communications, 512 US 622

NO.
29

(1997, Supreme Court of the US)


2.

Griswold v. State of Connecticut, 381 U.S. 479 (1965, Supreme Court of US)

30

3.

Profitt v. Florida, 428 U.S. 242 (1976, Supreme Court of US)

30

4.

Arnold v. Georgia, 224 S.E.2d 386 (1976, Supreme Court of US)

30

5.

Furman v. Georgia, 408 U.S. 238 (1972, Supreme Court of US)

30

6.

Kovas v. Cooper, 336 U.S. 77 (1949, Supreme Court of US)

29

7.

Neat R. Wooby v. George Maynard, 430 US 705 (1977, Supreme Court of the

29

US)
8.

Associated Provincial Picture House v. Wednesbury Corporation, (1948) KB

28

223, 226 (1948, Court of Appeal of England and Wales)


9.

Ivcher-Bronstein v. Peru, IACHR Series C No. 74 (Inter-American Court of

22

Human Rights)
10.

Herrera-Ulloa v. Costa Rica Judgment, [2004] IACHR 3 (Inter-American


Court of Human Rights)
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LEX OMNIA MOOT COURT - 2016


11.

Handyside v. United Kingdom, (5493/72) [1976] ECHR 5, (European Court

22

of Human Rights)
12.

Informationsverein Lentia & others v. Austria, Application No. 13914/88;

23

15717/89; 17207/90, (European Court of Human Rights)

SL. NO.

INDIAN STATUTE

1.

The Companies Act, 2013

2.

The Indian Penal Code, 1860

3.

The Press (Emergency Powers) Act, 1931

4.

The Societies Registration Act, 1860

JOURNALS & REPORTS

SL. NO.
1.

Sexual orientation, Gender identity and International Human Rights Law,

PG.
NO.
22

47, Practitioners Guide No. 4, International Commission of Jurists


2.

Inter- American Commission on Human Rights, Annual Report on

22

Human Rights 1994, Report on the Compatibility Desacato Laws with


the American Convention on Human Rights, OEA/Ser.L/V/II.88., Doc. 9
rev. (1995)
3.

M.G. Wallace, Constitutionality of Sedition Laws, 6 Virginia L. R. (1920)

24

4.

Centre for the Study of social Exclusion and Inclusive Policy, National

27

Law School of India University, Bangalore, Overview of Sedition Laws in


India, Sedition Laws and the Death of Free Speech in India (2011)
5.

The National Crime Records Bureau Records, Chap. 21, 2014, available at

28

http://ncrb.nic.in/StatPublications/CII/CII2014/Compendium%202014.pdf
6.

Rajeev Dhavan, Borrowed Ideas: On the Impact of American Scholarship

29

on Indian Law, The American Journal of Comparative Law (1985)


7.

David Barnum, The Clear and Present Danger Test in Anglo-American and
European Law, San Diego Journal of International Law (2006)
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8.

L.W. Maher, The Use and Abuse of Sedition, Sydney L. R., (1992)

30

9.

Bruce Carolan, The Supreme Court, Constitutional Courts and the Role of

31

International Law in Constitutional Jurisprudence:

The

Search

for

Coherence in the Use of Foreign Court Judgments by the Supreme


Court of Ireland., Tul. J. Comp. & Intl L. (2004)
10.

Alonso Reis Freire, Evolution of Constitutional Interpretation in Brazil

31

and the Employment of Balancing Method by Brazilian Supreme Court


in Judicial Review, Paper presented at 7th World Congress of the
International Association of Constitutional Law (2010)
11.

Andrea Lollini, The South African Constitutional Court Experience:

31

Reasoning Patterns Based on Foreign Law, Utrecht L. Rev. (2012)


12.

Riley J. Graebner, Dialogue and Divergence: The Vienna Convention on

31

Consular Relations in German, American, and International Courts, Geo. J.


Intl L. (2011)
13.

David Schneiderman, Exchanging Constitutions: Constitutional Bricolage in

31

Canada, Osgoode Hall L.J. (2002)


14.

Rebecca Lefler, A Comparison of Comparison: Use of Foreign Case

31

Law as Persuasive Authority by the United States Supreme Court, The


Supreme Court of Canada, and the High Court of Australia,

S. Cal.

Interdisc. L. J. (2001)
15.

Duc. V. Trang, Beyond the Historical Justice Debate: The Incorporation of

31

International Law and the Impact on Constitutional Structures and Rights


in Hungary, V and. J. Transnatl L. J. (1995)
16.

Victor V Ramraj, Comparative Constitutional Law in Singapore, Singapore

31

J. Intl & Comp. L.J., (2002)


17.

Wen-Chen Chang, The Convergence of Constitutions and International

31

Human Rights: Taiwan and South Korea in Comparison, N.C. J. Intl L.


& Com. Reg. (2010)
18.

Elaine Mak, Reference to Foreign Law in the Supreme Courts of Britain and
the Netherlands: Explaining the Development of Judicial Practices., Utrecht
L. Rev. (2012)

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19.

Leonard M. Hammer, Reconsidering the Israeli Courts Application of

31

Customary International law in the Human Rights Context, ILSA J Intl &
Comp L., (1998)
20.

James Allan, Grant Huscroft, and Nessa Lynch, The Citation of Overseas

31

Authority in Rights Litigation in New Zealand: How Much Bark? How


Much Bite? 11 Otago L. Rev. (2007)
21.

Anthony J Bellia Jr & Bradford R Clark, The Law of Nations as

32

Constitutional Law, Va. L. Rev. (2012)


22.

Austen L. Parrish, Storm in a Teacup: The U.S. Supreme Courts Use of

32

Foreign Law, Uni. Ill. L. Rev. (2007)


23.

Ernesto Sanchez, A Case Against Judicial Internationalism, Conn. L. Rev.

32

(2005)

SL. NO.

BOOKS

PG.
NO.

1.

Halsburys Laws of India (2nd ed., 2007)

22

2.

K.N.C. Pillai & Shabistan Aquil, Law of Sedition, Essays on the Indian Penal

23,

Code (2nd ed., 2005)

24

Durga Das Basus, Commentary on the Constitution of India (Justice Y. V.

28

3.

Chandrachud, Justice S.S. Subramani, Justice B.P. Banerjee (8th ed., 2007)
4.

Konrad Zweigert & HeinKotz, Introduction to Comparative law (2nd ed.,

29

1987)

SL. NO.

MAGAZINES & NEWSPAPERS

P G.
NO.

1.

Kaleeswaram Raj, A Case Against the Sedition Law, Frontline (18/03/2016)

26

2.

Times News Network, Gujarat High Court quashes sedition cases against 27,26
TOI, Times of India (19/04/2012)

3.

P. Sudhakar, S. Vijay Kumar, Kudankulam, 11 Protestors Held on Sedition


Charges, The Hindu (20/03/2012)

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4.

Press Trust of India, Kashmir debate: Amnesty International India booked


for sedition, Amnesty International, Indian Express (15/08/2016)

SL. NO.

WEB RESOURCES

1.

www.westlaw.india.com (WEST LAW INDIA)

2.

www.manupatrafast.com (MANUPATRA)

3.

www.judis.nic.in (SUPREME COURT OF INDIA OFFICIAL)

4.

www.jstor.org (JSTOR)

5.

www.scconline.com (SCC ONLINE)

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LEX OMNIA MOOT COURT - 2016

STATEMENT OF JURISDICTION
The Appellants herein have invoked the plenary jurisdiction of this Honourable Court under
Article 136 of the Constitution of India, 1950. Article 136 read as:
136. Special leave to appeal by the Supreme Court(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India
(2)Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

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LEX OMNIA MOOT COURT - 2016

STATEMENT OF FACTS
SPECIAL LEAVE PETITION NO. 1996/2016
BACKGROUND
1. KNU is an elite educational institution located in Delhi, offering post-graduate courses in
the liberal arts. The campus has two political parties, the left-leaning CPI-F, and the right-wing
DJP. Verbal spats and physical violence between rival political camps are common. Sanwariya
Kumar, the President of KNU Student Council, Kabmar Khalid and Kamiban Bhattacharya are
CPI-F affiliated PhD scholars.
CIRCUMSTANCES LEADING TO THE FILING OF THE PETITION
2. At the annual rally conducted on February 9, 2016, various slogans were raised against the
tyranny of the Indian state. The slogans were about Azadi of the Kashmiri people. However
it was alleged by the members of DJP that the slogans also included, death to India, we will
wage war against this tyrannical state till it crumbles and we will avenge the murder of
Taqbool were raised. Members of DJP called the police. The police arrived at the KNU
campus and arrested Sanwariya Kumar, Kabmar Khalid and Kamiban Bhattacharya on charges
of sedition under S. 124A of the IPC. The CPI-F affiliated students held several rallies
subsequently, and claiming to be defending their freedom of speech and expression. At this
time, Dharmanand Pover, agreed to represent the KNU students and filed a writ petition under
Art. 226 challenging the constitutionality of S. 124A saying that it violates Art. 19.
DECISION OF THE HIGH COURT
3. The High Court disagreed with Mr. Povers submissions and upheld the constitutionality
of Section 124A, holding it to be a reasonable restriction on the right to freedom of speech and
expression set out in Article 19.
APPEAL TO THE SUPREME COURT
4. The High Court granted a leave to appeal to Mr. Dharmanand Pover, who moved the
Honble SC.

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LEX OMNIA MOOT COURT - 2016

SPECIAL LEAVE PETITION NO. 1997/2016


BACKGROUND
1. Gentlemanian Swamy is a MP with a strong pro-hindutva ideology. He enjoys mass
support from various categories of people, and is known to write negatively about various
fellow politicians and members of minority communities. To propagate his ideology of Hindu
superiority, he also runs CD business through his wholly-owned company, I Love Trump
Limited, which specialises in producing and distributing provocative songs and videos
targeting minority communities with explicit threats of mass murder and sexual violence. His
CDs are very popular in North India, and his songs and videos are routinely played at meetings
of the RSS.
CIRCUMSTANCES LEADING TO THE CASE
2. Laveesta Ketalvad, an advocate specialising in representing victims of communal violence,
filed a WP before the Honble HC of Delhi under Art. 226, seeking a ban on the production
and sale of CDs by I Love Trump Ltd because they were provocative and sought to create
discord between communities, leading to escalated tension and the outbreak of communal riots,
and the production and distribution of CDs constituted the crime of promoting enmity between
communities within the meaning of S. 153A of the IPC, 1860.
APPEAL TO THE HONBLE SUPREME COURT
3. Honble High Court of Delhi ruled in favour of Laveesta, and held that the ban on
production and distribution of CDs was a reasonable restriction on Gentlemanians right to
carry on any trade or occupation. Hence the present appeal.

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LEX OMNIA MOOT COURT - 2016

STATEMENT OF ISSUES
SPECIAL LEAVE PETITION NO. 1996/2016

I.

WHETHER

SPECIAL LEAVE PETITION

THE

IS MAINTAINABLE BEFORE THE

HONBLE SUPREME COURT OF INDIA?

II.

WHETHER S.124A

OF THE IPC,

1860,

CONSTITUTES AN UNREASONABLE

RESTRICTION ON THE FREEDOM OF SPEECH AND EXPRESSION UNDER ART. 19

(1) (A) OF THE CONSTITUTION OF INDIA?


SPECIAL LEAVE PETITION NO. 1997/2016

I.

WHETHER

THE

SPECIAL LEAVE PETITION

IS MAINTAINABLE BEFORE THE

HONBLE SUPREME COURT OF INDIA?

II.

WHETHER THE BAN ON THE PRODUCTION OF CDS BY I LOVE TRUMP LTD. IS A


REASONABLE RESTRICTION ON THE RIGHT TO PRACTISE ANY PROFESSION, OR
TO CARRY ON ANY OCCUPATION, TRADE OR BUSINESS ENSHRINED UNDER
ART. 19 (1) (G)?

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LEX OMNIA MOOT COURT - 2016

SUMMARY OF ARGUMENTS
SPECIAL LEAVE PETITION NO. 1996/2016
I.

THE SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE THE HONBLE SUPREME


COURT OF INDIA.

We are approaching the Hon'ble Supreme Court under Art. 136 of the Constitution of
India. This Petition of Special Leave constitutes the primary substantial question of law
in the form of the disputed constitutionality of section 124A of the Indian Penal Code,
1890 talking about sedition. Thus, the question of its constitutionality itself is the
substantial question of law, and moreover the existence and application of this law has
caused great miscarriage of justice which the appellants seek to change with this
petition.

II.

S.

124A

OF THE IPC,

1860,

CONSTITUTES AN UNREASONABLE RESTRICTION ON THE

FREEDOM OF SPEECH & EXPRESSION UNDER ART. 19 (1) (A) OF THE CONSTITUTION OF
INDIA.

Firstly, the law of sedition is an imperial law in need of urgent review and removal. It
is in blatant contravention to the freedom of speech and expression guaranteed under
Art. 19 (1) (a) of the Constitution of India. In the name of reasonable restriction it is
silencing opinions and is the reflection of a dissent and criticism fearing state. The
survival of this imperial law owes it survival to the judgment of the Supreme Court in
Kedar Nath Singh v. State of Bihar which has an archaic and restrictive approach.
Secondly, in comparison to constitutional interpretation of sedition laws all over the
world it is observed that no other nation is still implementing the age old law that is
clearly the epitome of gross human right violations. The universalistic interpretation of
the constitution is much needed to interpret the constitutional provisions in light of the
modern legal evolution and in appreciation of human right ideals.

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SPECIAL LEAVE PETITION NO. 1997/2016


I.

THE SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE THE HONBLE SUPREME


COURT OF INDIA.

The matter filed by Mr. Gentlemanian Swamy under Art. 136 is not maintainable
because there is no substantial question of law present in the case, which is an important
prerequisite for the filing of a Special Leave Petition. Also as the judgment of the High
Court was correct, there was no grave miscarriage of justice taking place. Thus, the
leave of Special Leave should be rejected.
II.

THE BAN ON THE PRODUCTION OF CDS BY I LOVE TRUMP LTD. IS A REASONABLE


RESTRICTION ON THE RIGHT TO PRACTISE ANY PROFESSION, OR TO CARRY ON ANY
OCCUPATION, TRADE OR BUSINESS ENSHRINED UNDER ART. 19 (1) (G).

That the CDs produced by I Love Trump ltd. specialises in producing and distributing
provocative songs and videos targeting minority communities with explicit threats of
mass murder and sexual violence, which in itself is violative of the Indian Penal Code.
Such an act can cause communal tension and discord in society. Therefore banning the
production and distribution of such CDs would be a reasonable restriction under Art.
19(1) (g). Moreover, the right under Art. 19(1) (g) cannot be claimed by a company viz.
I Love Trump Ltd.

]
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ARGUMENTS ADVANCED
SPECIAL LEAVE PETITION NO. 1996/2016
I. THE SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE THE HONBLE
SUPREME COURT OF INDIA.
1. The Petitioner has approached The Honble Supreme Court of India under Art. 136 of the
Constitution of India. The requirements of Special Leave Petition are satisfied in the following
case.
1. APPEAL FROM JUDGMENT.
2. In this case this appeal is made against the judgment passed by the Single Judge of the
High Court of Delhi,1 filed by Dharmanand Pover.
2. SUBSTANTIAL QUESTION OF LAW.
3. The second criteria of a Special Leave petition is the existence of a substantial question of
law2 of public importance. In this case, the question of constitutionality of S. 124-A of the
Indian Penal Code, 1860 is the substantial question of law of public importance.
3. DECISION OF THE HON'BLE HIGH COURT OF DELHI HAS CAUSED GREAT MISCARRIAGE
OF JUSTICE3.
4. It is the humble contention of the appellants that the laws of sedition are grossly violative
of the very fundamentals on which our Constitution has been founded. The constitutionality of
S. 124-A is an absolute bar to personal freedoms and the very concept of modern day liberty.
The Appellant humbly submits before this Hon'ble Court that the failure of the Honble High
Court to strike down sedition laws as unconstitutional has caused great injustice to the
Appellant and it is his right to approach the Hon'ble Supreme Court under the said provision.
Therefore we humbly request the Court to use its discretion to admit the said appeal.

MOOT PROPOSITION, LEX OMNIA MOOT COURT 2016 , PAGE 2 4


Santosh Hazari v. Purushottam Tiwari, AIR 2001 SC 965. See also, Pankaj Bhargava v. Mohinder Nath, AIR
1991 SC 1233; Raghunath Prasad Singh v. Dy. Commr. of Partabgarh, AIR 1927 PC 110; Sir Chunilal Mehta &
Sons Ltd. v. Century Spinning & Manufacturing Co. Ltd., AIR 1962 SC 1314; Union of India v. Chaman Lal
Loona and Co., AIR 1957 SC 652; M.M Gupta v. State of J & K, (1982) 3 SCC 41.
3
Kerala SEB v. Kurien E. Kalathil, AIR 2000 SC 2573. See also, Chain Singh v. State of Punjab, AIR 1973 SC
2677; Shrinivas Pannalal Chokani v. State of M.P., AIR 1954 SC 23; State of Rajasthan v. Narayan, AIR 1992
SC 2004; D.V Shanmughan v. State of A.P, AIR 1997 SC 2583; State of J & K v. Hazara Singh, AIR 1981 SC
451.
1
2

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II. S. 124-A OF THE IPC, 1860, CONSTITUTES AN UNREASONABLE
RESTRICTION ON THE FREEDOM OF SPEECH AND EXPRESSION UNDER ART.
19 (1) (A) OF THE CONSTITUTION OF INDIA.
1. It is most humbly submitted before this Honble Supreme Court that S. 124-A4 be annulled
for it is at best an unconstitutional, unnecessary and democratically untenable provision. It pits
against each other the binary of personal liberty and patriotism. An introspective gesture of the
Supreme Court is the only hope for a society which believes in libertarianism.
The Constitution of India5 guarantees freedom of speech and expression, which means
the right to express ones own convictions and opinions freely by words of mouth,
writing, printing, pictures or any other mode.6 Art. 19 is a basic structure7.8 The requirement
of validity of law with reference to Art. 19 is that it should not be arbitrary9 and the restrictions
or limitations of the rights under Art. 19 (1) (a) must comply with the reasonable restrictions
mentioned in Art. 19 (2)10.
1. FREEDOM OF EXPRESSION IS THE CORNERSTONE OF A DEMOCRATIC SOCIETY. 11
1. A society that is not well informed is not a society that is truly free.12 Freedom of expression
is indispensable for the development for the development of public opinion.13 It implies a
collective right to receive any information whatsoever and to have access to thoughts expressed
by other14. In light of such exemplary constitutional ideals we have in our legal framework a
law which penalises dissent and that is rampantly ironical. This provision criminalises words
which brings or attempts to bring, hatred or contempt or disaffection15 towards the
government established by law.

S. 124-A, The Indian Penal Code, 1860.


Art. 19 (1) (a), the Constitution of India.
6
Halsburys Laws of India, 94 (2nd ed., 2007).
7
The Doctrine of Basic Structure is a judge- made doctrine to put a limitation on the amending powers of the
Parliament so that the basic structure of the basic law of the land cannot be amended in exercise of its
constituent power under the Constitution of India.
8
Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
9
Dwarka Prasad v. State of U.P., AIR 1954 SC 224; Chintaman Rao v. State of M.P., (1950) SCR 759.
10
Art. 19 (2), the Constitution of India.
11
F.A Picture International v. Central Board of Film Certification, Mumbai and anr., AIR 2005 Bom 145; Modern
Dental College & Res. Cen. v. State Of Madhya Pradesh & Ors., (2016) 7 SCC 353.
12
Herrera-Ulloa v. Costa Rica Judgment, [2004] IACHR 3 (Inter-American Court of Human Rights).
13
Sexual Orientation, Gender Identity and International Human Rights Law, 47, Practitioners Guide No. 4,
International Commission of Jurists.
14
Ivcher-Bronstein v. Peru, IACHR Series C No. 74 (Inter-American Court of Human Rights).
15
Supra 4, Explanation 1. The expression disaffection includes disloyalty and all feelings of enmity.
5

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2. THE STATE IS THE ULTIMATE GUARANTOR OF THE PRINCIPLE OF PLURALISM16.
1.The protection of freedom of expression must encompass not only the glow of
information or ideas that are received favourably or without offence, but also expressions
that offend, shock or disturb; such are the demands of pluralism, tolerance and
broadmindedness without which there is no democratic society.17 It is the only vehicle of
political discourse so essential to democracy.18 The dissemination of political ideas that do
not conform to the views of a ruling elite and are not incompatible themselves with the
principles of democracy cannot be considered themselves as jeopardizing the integrity or
the national security of a country.19
2. Therefore, we humbly submit to this Honble SC that the present laws on sedition in the
country which are at best a part of the colonial framework of laws be subverted. It began in
England to curb dissent and soon featured in its colonies in its utmost draconian form. It is
highly surprising that such laws have survived the demise of the colonial rule which should
have ideally been declined under the light of Art. 1320, and has transcended into the present
society. The denial of the Honble Bilaspur HC to grant bail to Binayak Sen, incarceration of
cartoonist and satirist Aseem Trivedi and arrest of CPI-F activist and student council president
of the KNU, Sanwariya Kumar and his associates21 are nothing but a desperate attempt of a
criticism and dissent fearing state, sustaining colonial measures to supress liberty.
3. Today, the laws regarding sedition has assumed controversial importance because of
primarily two things: (i) The Change in the body politics22 (ii) Constitutional guarantees of
freedom of speech and expression. The law of sedition was contained in laws other than the
Indian Penal Code, 1860 as well, for example: Press Emergency Powers Act23 & Defence of
India Rules24, all of which stands repealed today.

16

The Observer and Guardian v. The United Kingdom, 51/1990/242/313, (European Court of Human Rights)
Handyside v. United Kingdom, (5493/72) [1976] ECHR 5, (European Court of Human Rights); Inter- American
Commission on Human Rights, Annual Report on Human Rights 1994, Report on the
Compatibility Desacato Laws with the American Convention on Human Rights, OEA/Ser.L/V/II.88., Doc. 9 rev
(1995).
18
Ministry of Information & Broadcasting v. Cricket Association of Bengal & Anr., AIR 1995 SC 1236.
19
Informationsverein Lentia & others v. Austria, Application No. 13914/88; 15717/89; 17207/90, (European
Court of Human Rights).
20
Art. 13, the Constitution of India.
21
MOOT PROPOSITION, LEX OMNIA MOOT COURT 2016, PAGE 1 2
22
K.N.C. Pillai & Shabistan Aquil, Law of Sedition, Essays on the Indian Penal Code, 13, (2nd ed., 2005).
23
The Press (Emergency Powers) Act, 1931.
24
Defence of India Rules, 1962.
17

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4. The Common Law on the subject was too wide and severe in the initial stages25. The
changes in the English too was gradual, from a strict interpretation of the law to giving leeway
for judicial discretion. Therefore, it is important to note here that the nation that introduced this
law has itself pronounced it to be imperial, moreover, there has not been any use of it since
190926. The use of sedition has been reduced to mere libel suits and that indicates volumes on
the actual utility of this imperial law.
5. This law was made at par with the British law and punishes exciting or attempts which
excite feelings of disaffection27, however great or small, making it immaterial whether or not
this causes any outbreak or disturbance at all. To bring home the offence under this section28
there surely has to be an element of discontentment among the people, such discontentment
which has perhaps been expressed in words of dangerous import, but such words have not been
followed by any overt physical act of execution29. Which essentially boils the statement made
down to opinionated statements, however strongly worded. So, in its essence, this section 30 in
its imperial and colonial spirit bars citizens from having opinions regarding the governments
and its flaws. This is a law with the shadows of a chequered and abusive colonial rule with no

In the seventeenth century (Seven Bishops Case, 1688, 12 St. T. 183) it was held to be the right of the state
to punish anyone who had the temerity to arraign the sovereign or any of his acts or the policy of his government
either while uttering seditious words or writing or publishing seditious libel.
Sir James Fitz James Stephen has defined the common law of sedition thus Everyone commits a misdemeanour
who publishes verbally or otherwise any words or any document with a seditious intention.
A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person
of Her Majestys subjects or promote feelings of ill-will and hostility between different classes of Her Majestys
subjects.
An intention to show that Her Majesty has been misled or mistaken in her measures, or to point out errors or
defects in the government or Constitution or State by law established, with a view to their defamation , or to
exercise Her Majestys subjects to attempt by lawful means such alteration of any matter in Church or state by
law established, or to point out errors or defects, in order to their removal , matters which are producing or have
a tendency to produce, feelings of hatred and ill-will between different classes of Her Majestys subjects is not a
seditious intention.
The abolition of Star Chamber in 1641 and the expiry of the Licensing Act in 1694 did not make much difference
with respect to the law of seditious libel in R. v. Tutinchin, (1704) S.T.I. 1125, it was held that it was very
necessary for all governments that the people should have a good opinion of it. A century later Lord Ellenborough
gave vent to similar feelings in R. v. Covet (1804) S.T.I. The passing xs Libel Act, 1792 (32 Geo. III C. 60)
however, it improvised a safeguard in such trials by leaving the whole matter in the hands of the Jury; K.N.C.
Pillai & Shabistan Aquil (Rev.), Law of Sedition - Essays on the Indian Penal Code (The Indian Law Institute,
2005).
26
R. v. Aldred 22 Cox C.C.I. The modern tendency is to ignore offences falling under this category but to try
them as ordinary libel. In this case King George V was alleged to have contracted morganatic marriage before
marrying the Queen. It was tried as an ordinary libel although many considered it to be seditious in nature.
27
Queen Empress v. Jogesh Chunder Bose, I.L.R. (1891) 19 Cal 36, Sir Petheram, C.J, in the charge to the jury
explained that the words disaffection in S. 124-A means a feeling contrary to affection would render a person
liable to prosecution under the section.
28
Supra 4.
29
M.G. Wallace, Constitutionality of Sedition Laws, Virginia Law Review, 385, 399 (1920).
30
Supra 4.
25

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eye for causal relationships and designed to protect the government that fears contention and
shies away from criticism.
6. The motivating idea behind the judgement of the Honble HC, presumably, is the
statements made by the accused persons. However, it is our humble contention that this
Honble Court be pleased to take cognizance of the fact that such words cannot be made subject
to the offence of sedition because declaring any kind of criticism to be prejudicial and seditious
is a gross violation of the constitutional guarantees of Art. 19 (1) (a).
It has been rightly observed in Ghulam Mohammad Khan v. The Crown31:
The mere making of speeches, however extravagantly worded, charging members of the
government with inefficiency, corruption and personal animosity, cannot rightly be regarded
as acts intended or likely to bring into hatred or contempt, or to excite disaffection towards the
government established by law
7. Weston, C.J. has stated in a judgement what our courts of late has failed to appreciate. The
necessity to reform laws of offences against the state. India is a sovereign democratic state.
Governments may go and be caused to go without the foundations of the State being impaired.
A law of sedition though necessary during a period of foreign rule has become inappropriate
by the very nature of the change which has come about.32
3. KEDAR NATH SINGH IS AN AMBIVALENT JUDGEMENT TRAPPING INNOCENTS.
1. S. 124-A draws its legitimacy from the Constitutional Bench decision of Kedar Nath Singh
v. State of Bihar33 which itself is irresolute and erroneous and whose review is of urgent
impendency. This judgement has failed the test of constitutional experience in the ever
evolving nation and the incident at KNU34 makes out a formidable argument as to the necessity
to annul this nefarious provision. In 25 of the judgement, the court said:
If it is held.that the gist of the offence of sedition is incitement to violence, then the law will
be within the permissible limits laid down in clause (2) of Article (19) of the Constitution. If,
on the other hand, we give a literal meaning to the section.it will be true to say that the I
section is not only within but also very much beyond the limits laid down in clause 2.

31

Ghulam Mohammad Khan v. The Crown, 1950 Cri LJ 77 Sind (DB).


Tara Singh v. The State, AIR 1951 E.P. 27, The constitutional validity of the S. 124-A was being contended
and was declared void by the High Court of Judicature at East Punjab as it curbed and curtailed the freedom of
speech and expression in a manner not permitted by the constitution. The court was of the opinion that the sec
124-A has no place in the new democratic set up.
33
Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
34
MOOT PROPOSITION, LEX OMNIA MOOT COURT 2016, PAGE 1 2
32

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2. The same judgement talks about a dialectical logic that if certain provisions can be
construed as consistent with the Constitution and another interpretation renders them
unconstitutional, the courts favour the former construction.
3. Thus, in the case of Kedar Nath Singh35 the court made a contextual and contingent
decision even while accepting that this law will soon take form of a gargantuan unconstitutional
measure to supress individual liberty. Hence, proving that the ratio in this case is dangerously
incomplete.
4. It is our humble submission before this Honble Court that it be pleased to appreciate the
fact that penal provisions, unlike other statutes, are imposed and interpreted by the executive.
This provision makes the use of it a subjective decision which makes the executive the jury on
the street. There are numerous instances36 wherein the provision has been put to
unconstitutional use. It is stifling journalists37, artists38 merely for having an opinion.
3.1 JUDGEMENT GIVEN BY THE HONBLE COURT IN KEDARNATH SINGHS CASE IS A FAILURE ON THE
PART OF INDIAN JUDICIARY.
1. It is most humbly submitted before this Honble SC to take into consideration a substantive
and pertinent question of law that courts of this country have time and again suppressed under
the garb of enforced nationalism. S. 124-A is what is widely known as a law drafted for public
interest or order. Any restriction imposed on the applicability of the constitutional guarantee of
freedom of speech and expression of individuals and the press has to be well within what
encompasses public interest and maintenance of public order; justifying the insertion of the
phrase, interest of public or order by the Constitution (First Amendment) Act, 1951. Thus,
the question arises, does S. 124-A enact a law that is in the interests of public order?
2. It is only reasonable to believe that the acts or words complained of must either incite an
outbreak of disorder or must be such as to satisfy reasonable men that that is their intention or
tendency . If therefore, S. 124-A of the IPC includes within its ambit innocuous expressions
having no proximate or reasonable connection to public disorder, as is seen in the situation
created by the words of Sanwariya Kumar and his associates, it would cover restrictions both

35

Supra 33.
Kaleeswaram Raj, A Case Against the Sedition Law, Frontline (18/03/2016), available at
http://www.frontline.in/cover-story/a-case-against-the-sedition-law/article8299363.ece, last seen on 26/09/2016.
37
Times News Network, Gujarat High Court quashes sedition cases against TOI, Times of India (19/04/2012),
available at http://timesofindia.indiatimes.com/city/ahmedabad/Gujarat-HC-quashes-sedition-cases-againstTOI/articleshow/12723661.cms, last seen on 26/09/2016.
38
Sanskar Marathe v. The State of Maharashtra, 2015 Cri LJ 3561.
36

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within and without the limits of constitutionally permissible legislative action and must be
struck down as an unreasonable restriction within the meaning of Art. 19 (2).
3. The Kedar Nath Singh ratio completely disregards another judgement it had given in 1960
in the case of The Superintendent, Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia . It
held that to prevent complete arbitrariness, and to give effect to Art. 19(2)s requirement of
reasonableness, there needs to be some kind of test of causation or proximity which the courts
can use to hold someone responsible. Kedar Nath however, failed to develop any such tests and
remains as a binding judgement that sowed many a prosecutions on ill premise.
4. This judgement pretends to be benevolent but is only paternalistic in nature and actually
hinders the freedom of individuals to pursue their own opinions and is thus contrary to the
common good as it boasts its objective is.
5. This idea of clothing stringent measures of control in the garb of public interest and order
and calling such restrictions to be reasonable enough to curb freedoms like that of speech and
expression undermines the dignity of individuals. It is imperative that such politically
motivated law treat citizens not as children but as subjects free to develop their potentialities
by learning from the consequences of their own actions. This S. espouses an utilitarian
approach which has found its expression in J.S. Mills Harm Principle , that is, purpose for
which power can be exercised over any member of a civilized community, against his will, is
to prevent harm to others and that qualifies as a state action for ensuring greater good. But this
is most likely to soon transform itself into a mammoth moral condemnation of any action free
of societal norms. Therefore, whether any person is not patriotic of the nations governmental
set up or is critical of the same cannot be policed through laws. Hence, making one question
the desirability of such laws in our penal system.
4. S. 124A CONFERS UNCONSTITUTIONAL AND UNFETTERED POWER TO THE STATE.
1. The Koodankulam Anti-Nuclear Plant activists amounting to ten thousand people have
each been booked under sedition for protesting against nuclear testing and enrichment. 39 A
whole village of Tamil Nadu today remains under the shadow of the S. 124-A because the
government fears dissent. Of late the Amnesty International was booked under this for
organising debates on Kashmir issues.40 The resident editor at Ahmedabad for The Times of
39

P. Sudhakar, S. Vijay Kumar, Kudankulam, 11 Protestors Held on Sedition Charges, The Hindu (20/03/2012),
available at http://www.hindustantimes.com/delhi/nearly-7-000-cases-of-sedition-filed-in-kudankulam/storyiWOdCNRxlWetgMBmiOUbhP.html, last seen on 26/09/2016.
40
Press Trust of India, Kashmir debate: Amnesty International India booked for sedition, Amnesty International,
The Indian Express, (15/08/2016), available at http://indianexpress.com/article/india/india-news-india/firregistered-against-amnesty-international-india-2977287/, last seen on 26/09/2016.

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India too was booked under this section for questioning the competency of the police forces
and alleging them of having mafia linkages.41 In 2009, MDMK leader, Vaiko was booked under
the provision for having made a statement that he was fearful whether India would remain
united if the Sri Lankan war did not end.42 Adding to this list of bizarre usage of this provision
is cartoonist Aseem Trivedi with his satirical impressions of the Indian government, Human
Rights activist Dr. Binayak Sen43 criticising the Chattisgarh government for aiding vigilantism
in Chattisgarh and the recent incident at KNU itself44. The vague law of sedition in India which
makes the executive its jury and judge has led to an unprecedented rise in cases where the
people have disaffection towards the government. 176 cases with the most in Bihar has seen a
considerable rise in the arrest rate and the rampant usage of this provision45.
5. THE CONSTITUTIONAL REQUIREMENT OF NON-ARBITRARINESS IS NOT MET.
1. It is submitted that under the expanded interpretation of Art. 1446, substantive nonarbitrariness has been held to be a constitutional requirement under Art. 1447. Inasmuch quoted
paragraph in Royappa48, Honble Justice Bhagwati famously railed against the classification
doctrine and emancipated the principle of equality from its confinement by holding that mere
arbitrariness will suffice to constitute a violation of Art. 14. The new doctrine laid down in
Royappa49 has been affirmed by several subsequent judgments50.
2. Reasonableness as recognised by common law51 and Indian law52 requires an action to be
free of irrationality. For the purpose of Art. 14, the expression arbitrarily means in an
41

Times News Network, Gujarat High Court quashes sedition cases against TOI, Times of India (19/04/2012),
available at http://timesofindia.indiatimes.com/city/ahmedabad/Gujarat-HC-quashes-sedition-cases-againstTOI/articleshow/12723661.cms, last seen on 26/09/2016.
42
Centre for the Study of social Exclusion and Inclusive Policy, National Law School of India University,
Bangalore, Overview of Sedition Laws in India, Sedition Laws and the Death of Free Speech in India, 31 (2011).
43
Dr. Binayak Sen Pijush Babun Guha v. State of Chhattisgarh, Criminal Appeal No 20. of 2011 & Criminal
Appeal No. 54 of 2011 (Chattisgarh High Court, 10/02/2011).
44
MOOT PROPOSITION, LEX OMNIA MOOT COURT 2016.
45
The National Crime Records Bureau Records, Chapter 21, 2014, available at
http://ncrb.nic.in/StatPublications/CII/CII2014/Compendium%202014.pdf, last seen on 26/09/2016.
46
Art. 14, the Constitution of India.
47
Durga Das Basus Commentary on the Constitution of India, 3449, (Justice Y. V. Chandrachud, Justice S.S.
Subramani, Justice B.P. Banerjee, (8th ed., 2007).
48
E. P. Royappa v. State Of Tamil Nadu & Anr, (1974) 4 SCC 3.
Equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule
of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it
is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative
of Art. 14.
49
Ibid.
50
Maneka Gandhi v. Union of India, AIR 1978 SC 597; Anwar Ali Sarkar v. The State Of West Bengal, AIR
1952 Cal 150.
51
Associated Provincial Picture House v. Wednesbury Corporation, (1948) KB 223, 226 (1948, Court of Appeal
of England and Wales).
52
Union of India v. G. Ganayutham, (1997) 7 SCC 463.

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unreasonable manner, as fixed or done capriciously or at pleasure.53 Any administrative act,
even though it may involve policy;54 or that it involved an improper use55 of the statutory
power; or that the power was exercised by an unfair procedure;56 or that the action taken by the
State or its instrumentality is not conducive to the public interest.57
Henceforth, the impugned section is infected with the vice of arbitrariness because of the
reasons mentioned in the above-mentioned issues as it is prima-facie arbitrary and
unreasonable in nature.
6. INDIAN CONSTITUTION AND ITS UNIVERSALISTIC INTERPRETATION.
1. The Universalistic interpretation provides that all the constitutional guarantees are cut out
from the same cloth.58 The courts should interpret such guarantees in a manner in which the
concept of liberty transcends national boundaries. It states that different legal systems give the
same or similar solutions, despite the great differences in their historical development,
conceptual structure, and style of operation.59
Indian laws are modelled on British statutes and enactments. The fundamental rights60 of
citizens of India are based entirely on the U.S. Bill of Rights. As a result, Indian courts have
been following the precedents of foreign courts in clarifying the parameters of statutes
applied.61
2. Since the promulgation of its Constitution in 1950, Indian courts have frequently relied on
foreign constitutions and foreign precedents (external aid)62 to interpret case63. In Union of
India v. The Motion Pictures Association64, the court referred Neat R. Wooby v. George

53

Sharma Transport v. Government of A.P., AIR 2002 SC 332; State of T.N. v. K. Shyam Kumar, (2011) 8 SCC
737.
54
Workmen v. Meenakshi Mills, (1992) 3 SCC 336.
55
Mahajan v. J.M.C., (1991) 3 SCC 91.
56
Aeltemesh v. Union of India, AIR 1988 SC 1768.
57
Kasturi v. State of J&K, AIR 1980 SC 1992; Sachidanand v. State of W.B., AIR 1987 SC 1109.
58
Choudhry Sujit, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional
Interpretation, Indiana Law Journal, 74, 111 (1999)
59
Konrad Zweigert & HeinKotz, Introduction to Comparative law, 36 (2nd ed., 1987) (Basil Markensinis has
expressed the same view: Unashamedly, therefore, the series and the book, while not going the differences, were
aimed at underlying and underlining similarities, common problems, and the advantages of searching together for
similar or common answers.)
60
PART III, Fundamental Rights, the Constitution of India.
61
Rajeev Dhavan, Borrowed Ideas: On the Impact of American Scholarship on Indian Law, The American Journal
of Comparative Law 505, 526 (1985).
62
Union of India v. Naveen Jindal, (2004) 2 SCC 570.
63
Chief Justice K.G. Balakrishnan, The Role of Foreign Precedents in a Countrys Legal System, Lecture at
Northwestern University (2008), available at
http://www.supremecourtofindia.nic.in/speeches/speeches_2008/28%5B1%5D.10.08_Northwestern_University
_lecture.pdf, last seen on 26/09/2016.
64
Union of India v. The Motion Pictures Association, AIR 1999 SC 2334.

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Maynard65 and Turner Broadcasting System Inc v. Federal Communications66 to examine the
ambit of Art. 1967. The Honble SC in another instance concerning freedom of the press, the
Court relied on the U.S. Supreme Courts decision in Kovas v. Cooper68. While subsequently
upholding the death sentence, the Honble SC relied on the U.S. cases of Furman v. Georgia69,
Arnold v. Georgia70, and Profitt v. Florida.71
3. In a recent decision, the Honble Delhi HC declared S. 37772, which describes the offense
of homosexuality as violative of fundamental rights guaranteed under the Constitution73. In
declaring the provision unconstitutional, the Honble HC relied on a number of U.S.
decisions,

including Griswold

v. State of Connecticut74, where the Honble U.S. SC

invalidated a state law prohibiting the use of drugs or devices of contraception in protecting
the right of privacy.
4. Criminalising sedition has obviously met with disfavour among modern constitutional
democracies.75 There is an understanding that criminalising dissent directed at the government
offends democratic values.76 Some countries, like the U.S. and many countries in Europe adopt
an effects-based test (based on the implications of the words) rather than a content-based test
(which examines the text closely).77 Based on the former, most of the courts where sedition
laws are still retained allow the charges only when there is a clear and present danger78, for
instance, where there is a direct incitement to violence.
5. However, a separate crime of sedition, archaic in its origins and enacted in a particular
historical context to silence dissent, is probably unnecessary to prevent incitement to violence.
Further, in silencing dissent, it only further fosters discontent among the people and could just
as easily lead to situations of public disorder, which is what it is intended to prevent. For this

65

Neat R. Wooby v. George Maynard, 430 US 705 (1977, Supreme Court of the United States).
Turner Broadcasting System Inc v. Federal Communications, 512 US 622 (1997, Supreme Court of the
United States).
67
Art. 19, the Constitution of India.
68
Kovas v. Cooper, 336 U.S. 77 (1949, Supreme Court of the United States).
69
Furman v. Georgia, 408 U.S. 238 (1972, Supreme Court of the United States).
70
Arnold v. Georgia, 224 S.E.2d 386 (1976, Supreme Court of the United States).
71
Profitt v. Florida, 428 U.S. 242 (1976, Supreme Court of the United States).
72
S. 377, The Indian Penal Code, 1860.
73
Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277.
74
Griswold v. State of Connecticut, 381 U.S. 479 (1965, Supreme Court of the United States).
75
Supra 23, at 35.
76
David Barnum, The Clear and Present Danger Test in Anglo-American and European Law, San Diego
Journal of International Law, 264, 292 (2006).
77
L.W. Maher, The Use and Abuse of Sedition, Sydney Law Review, 287, 312 (1992).
78
Supra 67.
66

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reason, a consensus seems to have emerged that a crime of sedition should not exist in common
law jurisdictions.79
7. INTERNATIONAL LAW AND CONSTITUTIONAL INTERPRETATION.
1. The UDHR80 and ICCPR81, as well as the major regional human rights treaties82 safeguard
the freedom of expression, which includes both receiving and expressing information and
ideas.
2. The employment of foreign law and international law as interpretive tools has gained a lot
of momentum around the world.83 The jurisprudence related to countries like Ireland84,
Brazil85, South Africa86, Germany87, Canada88, Australia89, Hungary90, Singapore91, Taiwan,
South Korea92, Netherlands93, Israel94 and New Zealand95 perfectly highlights the same.

79

Supra 77.
Art. 19, Universal Declaration of Human Rights, 1948.
81
Art. 8, International Covenant on Economic, Social and Cultural Rights, 1966.
82
Art. 9, African Charter on Human and Peoples Rights, 1990; Art. 13, American Convention on Human Rights,
1969; Art. 10, European Convention on Human Rights, 1950; Art. 26, Arab Charter on Human Rights, 2008;
Art. 8, International Covenant on Economic, Social and Cultural Rights, 1966; Art. 13 and 15, Convention
on the Rights of the Child, ; Art. 24 & Art. 7, International Convention for the protection of all persons
from Enforced Disappearance, 2007.
83
Hakim Yasir Abbas, Domestication Of International Law In India: A Connubial Or A Concubine-Al
Indulgence? Part I, available at https://srilindia.org/2015/08/23/domestication-of-international-law-in-india-aconnubial-or-a-concubine-al-indulgence-part-i/. last seen on 26/09/2016.
84
Bruce Carolan, The Supreme Court, Constitutional Courts and the Role of International Law in Constitutional
Jurisprudence: The Search for Coherence in the Use of Foreign Court Judgments by the Supreme Court
of Ireland., Tul. J. Comp. & Intl L., 123 (2004).
85
Alonso Reis Freire, Evolution of Constitutional Interpretation in Brazil and the Employment of Balancing
Method by Brazilian Supreme Court in Judicial Review, Paper presented at 7th World Congress of
the International Association of Constitutional Law.
86
Andrea Lollini, The South African Constitutional Court Experience: Reasoning Patterns Based on Foreign
Law, Utrecht L. Rev., 55 (2012).
87
Riley J. Graebner, Dialogue and Divergence: The Vienna Convention on Consular Relations in German,
American, and International Courts, Geo. J. Intl L. 605 (2011).
88
David Schneiderman, Exchanging Constitutions: Constitutional Bricolage in Canada, Osgoode Hall L.J.
401, 403 (2002).
89
Rebecca Lefler, A Comparison of Comparison: Use of Foreign Case Law as Persuasive Authority by
the United States Supreme Court, The Supreme Court of Canada, and the High Court of Australia, S.
Cal. Interdisc. L. J. 165, 191 (2001).
90
Duc. V. Trang, Beyond the Historical Justice Debate: The Incorporation of International Law and the Impact
on Constitutional Structures and Rights in Hungary, V and. J. Transnatl L.,1, 4 (1995).
91
Victor V Ramraj, Comparative Constitutional Law in Singapore, Singapore J. Intl & Comp. L., 302, 334
(2002).
92
Wen-Chen Chang, The Convergence of Constitutions and International Human Rights: Taiwan and South
Korea in Comparison, N.C. J. Intl L. & Com. Reg., 594, 598 (2010).
93
Elaine Mak, Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands: Explaining the
Development of Judicial Practices., Utrecht L. Rev. 20, 34 (2012).
94
Leonard M. Hammer, Reconsidering the Israeli Courts Application of Customary International law in
the Human Rights Context, ILSA J Intl & Comp L., 23, 29 (1998).
95
James Allan, Grant Huscroft, and Nessa Lynch, The Citation of Overseas Authority in Rights Litigation in New
Zealand: How Much Bark? How Much Bite? 11 Otago L. Rev., 433, 451 (2007).
80

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3. Constitutional courts in India consider international law as an important96 but persuasive
tool of interpretation97. Unlike USA, where the debate surrounding the practice of citing foreign
law and international law seems to be polarised98, India has engaged in the same
enthusiastically.99 A large portion of Indian constitutional jurisprudence reflects the nature and
extent to which constitutional courts in India have used international law.100 The existing
international environmental law principles have been enshrined in a number of international
law instruments such as the Stockholm Declaration101, the Rio Declaration102 and various
framework conventions. The Honble SC has referred to most of these international instruments
to develop environmental jurisprudence in India.103
4. While international instruments can only be enforced in a country if the country has ratified
it, they still have an overbearing significance and influence law-making. As a member of the
UNGA, India has ratified the UDHR104 and ICCPR105 and, therefore, has enforcement value in
the country. In India, while the offence of sedition is per se not in violation of international

96

Arun K. Thiruvengadam, The Use of Foreign Law in Constitutional Cases in India and Singapore: Empirical
Trends and Theoretical Concerns, VIII World Congress of the International Association of Constitutional Law,
7, 10 (2010).
97
Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759; Centre for Public Interest Litigation and
Ors. v. Union of India & Ors. (2012) 3 SCC 1; Minerva Mills Ltd. & Ors. v. Union of India & Ors. 1980 AIR
1789; State Trading Corporation v. Commercial Tax Officer & Ors. 1963 AIR 1811; Rev. Mons. Sebastiao
Francisco Xavier Dos Remedios Monteriov. State of Goa 1969 (3) SCC 419; Bangalore Water Supply &
Sewerage Board v. A. Rajjapa & Ors. (1978) 2 SCC 213; Vinod Kumar Shantilal Gosalia v. Gangadhar
Narsingdas Agarwal & Ors. (1981) 4 SCC 226; Chandra Bhavan Boarding and Lodging Bangalore v. The State
of Mysore & Anr., (1969) 3 SCC 84.
98
Anthony J Bellia Jr & Bradford R Clark, The Law of Nations as Constitutional Law, Va. L. Rev., 729, 738
(2012); Austen L. Parrish, Storm in a Teacup: The U.S. Supreme Courts Use of Foreign Law, Uni. Ill. L. Rev.
637, 648 (2007); Daniel J. Frank, Constitutional Interpretation Revisited: The Effects of a Delicate Supreme Court
Balance on the Inclusion of Foreign law in American Jurisprudence., Iowa L. Rev., 1037,1039 (2007); Ernesto
Sanchez, A Case Against Judicial Internationalism, Conn. L. Rev.,185, 194 (2005).
99
Supra 83.
100
Constitutional courts in India have, in issues like right to privacy (Kharak Singh v. State of Uttar Pradesh &
Ors., AIR 1963 SC 1295), freedom of press (Bennett Coleman v. Union of India, AIR 1973 SC 106), restraints
on foreign travel (Maneka Gandhi v. Union of India, AIR 1978 SC 597), constitutionality of death
penalty (Bachan Singh v. Union of India, AIR 1980 SC 898), protection of women against sexual
harassment at workplace (Viskhaka v. State of Rajasthan, AIR 1997 SC 3011), prior restraints on publication (R.
Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264) and environmental matters (Vellore Citizens Welfare Forum
v. Union of India (1996) 5 SCC 647: AIR 1996 SC 2715 (Hereinafter Vellore 1996); Indian Council for EnviroLegal Action v. Union of India 1996 (3) SCC 212; T.N. Godavarman Thirumulpad v. Union of India & Ors.
(1997) 2 SCC 267), constructively relied on international law to formulate judicial opinions; See also K.G
Balakrishnan, The Role of Foreign Precedents in a Countrys Legal System, Lecture at North-Western
University, Illinois (2008).
101
Declaration of the United Nations Conference on the Human Environment, June 16, 1972.
102
Rio Declaration on Environment and Development, 1992.
103
Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715.
104
Universal Declaration of Human Rights, 1948.
105
International Covenant on Economic, Social and Cultural Rights, 1966.

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standards, any restriction on the freedom of speech and expression needs to be justified as
recognised by international covenants and treaties.
8. THERE ARE OTHER SECTIONS IN IPC WHICH COMPLETES THE PURPOSE & OBJECTIVE OF
S. 124-A.
1. It is further submitted that if the provision punishes only pernicious activities against the
state its utility is lost in the IPC. The court in its previous judgments have not examined the
sufficiency of other sections that fulfil the same purpose as S. 124-A. Apart from S. 124-A
there are a host of sections that can be employed as measures to reach the same end viz.
505106 relating to statements conducing to public mischief, further we have a host of provisions
that prevent the waging or physical unrest, disorder or war from SS. 121107, 121A108 and 122109.
126 makes depredation on territories of power at peace with the Government of India a
punishable offence. Chapter VII110, by way of SS. 131 to 140 deals with offences related to the
Army, Navy and the Air Force. Thus, the legal requirements of S. 124-A is met by the other
parts of the Indian Penal Code and since this section has a tendency of being to unconstitutional
use its retention is defiant of constitutional logic.

106

S. 505, The Indian Penal Code, 1860.


S. 121, The Indian Penal Code, 1860.
108
S. 377, The Indian Penal Code, 1860.
109
S. 122, The Indian Penal Code, 1860.
110
Chapter VII, The Indian Penal Code, 1860.
107

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SPECIAL LEAVE PETITION NO. 1997/2016
I. THE SPECIAL LEAVE PETITION FILED BY MR. GENTLEMANIAN SWAMY IS
MAINTAINABLE IN THE HONBLE SUPREME COURT.
The Appellant humbly submits that the Special Leave Petition filed by Mr. Gentlemanian
Swamy is not maintainable under Art. 136 of the Constitution. First, there is no substantial
question of law existing. The mere dispute of whether the reasonable restrictions will apply on
the business carried on by I Love Trump ltd. is a question of fact and cannot be considered as
a substantial question of law. This is especially true as the illegality of the contents of the CDs
was prima facie proved from the judgment of the High Court. Moreover, even though the
Respondents in the High Court were aggrieved they should have filed an appeal in front of the
Division Bench of the High Court before approaching the Supreme Court. Even though it is
well within their rights to approach under Art. 136, the remedies available to them in the High
Court should traditionally should have been utilised first.
II. THE BAN ON THE PRODUCTION OF CDS BY I LOVE TRUMP LTD. IS A
REASONABLE RESTRICTION ON THE RIGHT TO PRACTISE ANY
PROFESSION, OR TO CARRY ON ANY OCCUPATION, TRADE OR BUSINESS
ENSHRINED UNDER ART. 19 (1) (G).
1. THE RESPONDENT COMPANYS ACTS FELL WITHIN THE AMBIT OF S. 153A OF IPC.
1. It is humbly submitted before the Honble Court that the acts of I Love Trump Ltd.
involving the production and selling of CDs include provocative songs and videos targeting
minority communities with explicit threats of mass murder and sexual violence111. The act of
the said company clearly fulfils the requirements under 153A112. Further, clause (a) of subsection (1) of section 153A113 makes the acts of the company punishable as well. More than
the punishment in itself, this section makes the act of spreading communal hatred, ill-will or
enmity illegal.
2. It becomes crystal clear from the given factual matrix that the company, I Love Trump
Ltd. indulged in the production of CDs with provocative songs and verses indulging in sexual
MOOT PROPOSITION, LEX OMNIA MOOT COURT 2016, PAGE 3 7
S. 153-A, The Indian Penal Code, 1860.
Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language,
etc., and doing acts prejudicial to maintenance of harmony.
113
S. 153-A (1) (a), The Indian Penal Code, 1860.
Whoeverby words, either spoken or written, or by signs or by visible representations or otherwise, promotes
or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or
any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different reli-gious,
racial, language or regional groups or castes or communities.
111
112

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violence against minority communities.114 There is no doubt about the intentions of Mr.
Gentlemanian Swamy which was to create hatred and an environment of tension and hostility
in the religious sphere bringing this activity within the realm of the above mentioned provision.
2. THERE WAS NO VIOLATION OF FUNDAMENTAL RIGHTS AS THE ACT ITSELF WAS RESTRICTED
BY THE CONSTITUTION OF INDIA.
1. The Fundamental Rights enshrined under Art. 19115 have been provided with reasonable
restrictions116. Hence, there is a restriction on the right to do acts which are illegal in the eyes
of law117. Illegal acts will not be blanketed by the right enshrined by Art. 19(1) (g)118. This is
why the right to practise any profession, or to carry on any occupation, trade or business
enshrined under the said provision have been imposed with reasonable restrictions provided
under clause (6) of Art. 19.119
2. The expression reasonable restriction seeks to strike a balance120 between the freedom
guaranteed by Art. 19 (1) (g)121 and the social control permitted by the clause (6)122. It cannot
be said that the limitation imposed on a person in the enjoyment of a right should not be public.
In order to be reasonable the restriction must have a reasonable relation to the object which the
legislation seeks to achieve, and must not go in excess of that object123. The twin requirements
of clause (6) of Art. 19 are:
(1) The reasonableness of the restriction upon the fundamental right to trade, and
(2) The measure to the reasonableness being the compelling need to promote the interests of
general public.
3. It is upon a bare perusal of the provision which makes it amply clear that the Indian Penal
Code, an existing law, is imposing a restriction on the act of the company, I Love Trump Ltd.
MOOT PROPOSITION, LEX OMNIA MOOT COURT 2016, PAGE 3 7
Art. 19, the Constitution of India.
116
Ram Chand v. Union Of India, 1994 SCC (1) 44, JT 1993 (5) 465.
117
Fertilizer Corporation Kamgar v. Union Of India And Others, AIR 1981 SC 344.
118
Art. 19 (1) (g), the Constitution of India.
119
Art. 19 (6), the Constitution of India.
"Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes,
or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions
on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall
affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating
to,
(i) the professional or technical qualifications necessary for practising any profession or carrying on any
occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business,
industry or service, whether to the exclusion, complete or partial, of citizens or otherwise"
120
The Commercial & Ahmedabad v. Union of India & Ors. AIR 1993 Guj 20.
121
Supra 8.
122
Supra 9.
123
J.K. Industries Limited Etc. v. The Chief Inspector of Factories, (1996) 6 SCC 665.
114
115

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Therefore, the act of the company which is illegal under section 153A of the IPC can be banned
from being carried out, as a reasonable restriction to Art. 19 (1) (g). For this, it is important to
understand what a reasonable restriction is. Reasonable means that which stems from
reason, and that which is not arbitrary or capricious.124 A restriction, in order to be reasonable
must be one that has a reason to be imposed.125 There has to be, thus, a nexus between the
restriction and the object sought to be achieved and the object must not, itself, be repugnant of
the letter or the spirit of the Constitution.126 Thus, it is important to justify whether the
restriction i.e. the banning of the production and distribution of the CDs has a reasonable nexus
with the object which is being attempted to be sought.
4. The CDs pose a potential threat to communal peace and harmony, due to its explicit
content. The CDs contain provocative songs and sexually violent videos against minority127
communities which automatically have the potential of causing disruption of peace and a sense
of communal tension. This in itself goes against the principle of public order 128. As it is clear
that a reasonable restriction to any of the Fundamental Rights can be imposed on grounds of
public interest129, then the public interest here being communal peace and harmony, a
restriction in the form of banning of production and sale of such CDs can be imposed.
5. The reasonableness of a restriction has to be determined in an objective manner and the
standpoint of the interest of the general public and not from the point of view of the person
upon whom the restrictions are imposed130. In other words, a law cannot be said to be
unreasonable merely because, in a given case, it operates harshly, even if the persons affected
are petty traders.131
3. FUNDAMENTAL RIGHT UNDER ART. 19 (1) (G) DOES NOT APPLY TO COMPANIES.
1. The Fundamental Rights guaranteed under Art. 19 are available to citizens, i.e., living
natural persons having Indian citizenship.132 A non-citizen cannot challenge133 validity of laws
124

Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597; Ram Krishna Dalmia v. Justice S.
R. Tendolar, AIR 1958 SC 538; In re Special Courts Bill, AIR 1979 SC 478; E.P Royappa v. State of Tamil
Nadu, (1974) 4 SCC 3; Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722.
125 Shreya Singhal v. Union of India, Writ Petition (Criminal) No.167 OF 2012 (Supreme Court of India,
24/03/2015)
126
Habibullah v. Gulam Ahmed Baba, 1979 Kashmir Law Journal 309.
127
MOOT PROPOSITION, LEX OMNIA MOOT COURT 2016.
128
S. Bhgavathi v. State of Tamil Nadu, (2007) 2 MLJ 526 (SB).
129
State of Maharashtra v. Himmatbhai, AIR 1970 SC 1157.
130
State of Orissa v. Radheyshyam Meher, AIR 1995 SC 855.
131
Pathumma v. State of Kerala; AIR 1978 SC 771.
132
Sakal Papers Ltd. v. Union Of India, AIR 1962 SC 305; Romesh Thappar v. State of Madras, AIR 1950 SC
124; Benett Coleman & Company v. Union of India, (1972) 2 SCC 788; S. Khushboo v. Kanniammal, (2010) 2
SCC (Cri) 1299.
133
Martiner Monstant Joan v. Union of India, AIR NOC 2010 AP 87.

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under Art. 19. For the purpose of Article 19 (1) (g), the entities who have been held to be noncitizens are, a company incorporated134 under the Companies Act135 (however, the fundamental
rights of the shareholders of a company are not lost when they associate to form a company.136),
a religious denomination or a thereof137, Municipal committee,138 a juristic person like a
Union139, a deity140 and an association registered under the Societies Registration Act141.
Doubts were raised as to whether a corporation doing business can claim protection of Art. 19
(1) (g) of the Constitution. It was firmly held that a company has no Fundamental Rights under
Art. 19, but a shareholder and the managing director have the right under the Art. 19 (1) (g).
The Honble HC pronounced the following in this case142:
(i) The scope of Art. 19 (1) (g) is restricted merely to those natural human beings who are
Indian citizens, and that
(ii) The state can regulate private business corporations in a major way without caring for limits
prescribed by the Art. 19 (1) (g) of the Constitution.
2. It must be observed that the ban sought to be imposed is on the functioning of the company
I Love Trump Ltd. It is the company which is producing the offensive and objectionable
songs143 and videos and therefore in order to stop such production the Writ has been filed
against the body corporate. So the recipient of the order is the company and not Mr.
Gentlemanian Swamy. It becomes clear that the right provided under Art. 19 (1) (g) does not
apply to I Love Trump Ltd. because it is a body corporate144 i.e. an artificial legal entity and
therefore is not a natural person. Hence, the claim of the company against the ban in itself is
invalid.
3. This affords greater leeway to the government to regulate private enterprises to promote
national interests. It has however been held that Art. 19 grants rights to citizens as such
associations of citizens; corporations can lay claim to the Fundamental Rights guaranteed under
Art. 19 solely on the basis of their being aggregations of citizens145. As the stream can rise no

134

S. 7, The Companies Act, 2013.


Regional Settlement Commissioner, Jaipur & Ors. v. Sunar Das Bhasin, AIR 1963 SC 181.
136
Bennett Coleman & Co. v. Union of India, (1973) 1 SCJ 177.
137
Acharya Maharajshri Narendra Prasad Ji Angad Prasad Ji Maharaj v. State of Gujarat, AIR 1974 SC 2098.
138
Municipal Committee, Amritsar v. State of Punjab, (1969) I SCC 475.
139
Himachal Transport Workers' Union v. Secretary to Govt. of H.P, AIR 1967 H.P. 21.
140
D.L. Pureiomba of Lambi v. Chief Commissioner of Manipur; AIR 1960 Manipur 44.
141
S. 3, Societies Registration Act, 1860.
142
Ghodra Electricity Co. Ltd. v. State of Gujarat; AIR 1975 SC 32.
143
MOOT PROPOSITION, LEX OMNIA MOOT COURT 2016, PAGE 3 7
144
The State Trading Corporation of India Ltd v. The Commercial Tax Officer, AIR 1963 SC 1811.
145
Tata Engineering & Locomotive v. State of Bihar, AIR 1965 SC 40; All India Bank Employees Association v.
National Industrial Tribunal & Ors. (1962) 3 SCR 269; State of Trading Corporation of India Ltd. v. The
135

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longer than the source, associations of citizens/corporations cannot lay claim to right not open
to citizens or claim freedom from restrictions to which the citizens composing them are subject.
Conversely, a restriction on the activities of the association is not a restriction on the activities
of the individual citizens forming membership of the association.146
It is true that even though the company as an entity cannot take the defence of Art. 19 (1) (g),
the shareholder or the member of the company can. However, in this case not only is the act
undertaken by the company illegal, but also for Mr. Gentlemanian Swamy, the incomes
generated from I Love Trump Ltd. is not his only source of income. He doesn't even depend
on this income for his livelihood and thus in a cost-benefit analysis147, the business undertaken
by the company can easily be banned. Moreover, it is a mere ban on the production of CDs.
The company in itself is not being wound up, which leaves a scope for an alternate line of
business for the company.

Commercial Tax Officer & Ors. AIR 1963 SC 1811; J. V. Gokar & Co. (P) Ltd. v. Assistant Collector of Salestax (inspection), (1960) 2 SCR 852.
146
Dharam Dutt & Ors. v. Union of India & Ors., (2004) ISCC 712.
147
David, Rodreck; Ngulube, Patrick; Dube, Adock "A cost-benefit analysis of document management strategies
used at a financial institution in Zimbabwe: A case study" SA Journal of Information Management. 15, 17 (2013)
(Costbenefit analysis (CBA), sometimes called benefitcost analysis (BCA), is a systematic approach to
estimating the strengths and weaknesses of alternatives (for example in transactions, activities, functional business
requirements); it is used to determine options that provide the best approach to achieve benefits while preserving
saving.)

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PRAYER

In the lights of the facts stated, issues raised, arguments advanced and authorities cited, the
Appellant most humbly and respectfully pray and request to the Honourable Court to:
1. Quash the judgement of the Single Judge of the High Court of Delhi, which declared Section
124A of the Indian Penal Code to be constitutional
2. Declare Section 124A of the Indian Penal Code 1860 to be unconstitutional.
3. Uphold the judgement of the Single Judge of the High Court of Delhi which passed a Writ
of Mandamus banning the production and distribution of CDs by I Love Trump Ltd.
4. Pass any other order which the Hon'ble Court deems fit in the light of equity, justice and
good conscience.

All of which is most humbly and respectfully submitted.

Sd/COUNSEL FOR THE APPELLANTS

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