Beruflich Dokumente
Kultur Dokumente
TC-04
&
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
2|Page
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
3|Page
LIST OF ABBREVIATIONS
ABBREVIATIONS
EXPANSIONS
&
AND
PARAGRAPH
PARAGRAPHS
A.P.
ANDHRA PRADESH
APPEAL CASES
AIR
ART.
ARTICLE
BOM.
BOMBAY
CAL
CALCUTTA
CJ
CHIEF JUSTICE
CO.
CORPORATION
CO.
COMPANY
CPIF
CR LR
CRI LJ/ CR LJ
CRI.
CRIMINAL
DEL
DELHI
DY.
DEPUTY
ED.
EDITION
ETC
ET-CETERA
FIR
GOVT.
GOVERNMENT
GOVT.
GOVERNMENT
H.P.
HIMACHAL PRADESH
HC
HIGH COURT
HONBLE
HONOURABLE
HP
HIMACHAL PRADESH
HP
HIMACHAL PRADESH
4|Page
ILR
IPC
J&K
JMC
JAMNAGAR MUNICIPAL
CORPORATION
JT
JOINT TRIBUNAL
KANT.
KARNATAKA
KER.
KERALA
KNU
L.
LAW
LD.
LEARNED
LTD.
LIMITED
M.P.
MADHYA PRADESH
MDMK
MARUMALARCHI DRAVIDA
MUNNETRA KAZHAGAM
N.C.T.
NCT
NO.
NUMBER
ORI.
ORISSA
ORS.
OTHERS
P&H
P./ PG.
PAGE
PUNJ.
PUNJAB
PVT.
PRIVATE
RAJ.
RAJASTHAN
REV.
REVIEW
S.
SECTION
SC
SUPREME COURT
SCC
SEB
SLP
SS.
SECTIONS
SUPP.
SUPPLEMENTARY
TN
TAMIL NADU
U.P.
UTTAR PRADESH
US/U.S.
W.B.
WEST BENGAL
WLR
WP
WRIT PETITION
6|Page
INDEX OF AUTHORITIES
SL. NO.
1.
PG.
NO.
37
28
3.
36
4.
All India Bank Employees Association v. National Industrial Tribunal & Ors.,
38
32
6.
32
7.
Bangalore Water Supply & Sewerage Board v. A. Rajjapa & Ors., (1978) 2
32
SCC 213
8.
32,
37
9.
Centre for Public Interest Litigation and Ors. v. UOI, (2012) 3 SCC 1
32
10.
21
11.
Chandra Bhavan Boarding and Lodging Bangalore v. The State of Mysore &
32
22
13.
21
14.
Dharam Dutt and others v. Union of India and others, (2004) ISCC 712
38
15.
22
16.
28,
36
17.
35
18.
37
19.
36
20.
Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212
32
21.
38
7|Page
35
SCC 665
23.
28
24.
25
25.
21
26.
22
27.
Kharak Singh v. State of Uttar Pradesh & Ors., AIR 1963 SC 1295
32
28.
32
SCC 226
29.
21
30.
28
31.
28,
32,
36
32.
Minerva Mills Ltd. & Ors. v. Union of India & Ors., AIR 1980 SC 1789
32
33.
23
Modern Dental College & Res. Cen. v. State Of M.P., (2016) 7 SCC 353
22
35.
37
36.
Regional Settlement Commissioner, Jaipur & Ors. v. Sunar Das Bhasin, AIR
37
1963 SC 181
37.
36
38.
32
39.
21
40.
35
41.
36
42.
32
37
44.
37
45.
28
46.
37
8|Page
21
48.
28
49.
36
21
51.
Sir Chunilal Mehta & Sons Ltd. v. Century Spinning & Manufacturing Co.
21
21
53.
36
54.
36
55.
21
56.
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.
38
60.
The State Trading Corporation of India Ltd v. The Commercial Tax Officer,
37
Union of India v. Chaman Lal Loona and Co., AIR 1957 SC 652
21
62.
28
63.
29
64.
29
65.
32
66.
32
67.
28
SL. NO.
1.
PG.
NO.
22
9|Page
26
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.
24
5.
25
6.
Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277
30
7.
37
HP 21
8.
37
Manipur 24
9.
36
10.
36
11.
The Commercial And Ahmedabad v. Union Of India & Ors., AIR 1993 Guj.
35
20
PG.
SL. NO.
1.
NO.
29
Griswold v. State of Connecticut, 381 U.S. 479 (1965, Supreme Court of US)
30
3.
30
4.
30
5.
30
6.
29
7.
Neat R. Wooby v. George Maynard, 430 US 705 (1977, Supreme Court of the
29
US)
8.
28
22
Human Rights)
10.
22
22
of Human Rights)
12.
23
SL. NO.
INDIAN STATUTE
1.
2.
3.
4.
SL. NO.
1.
PG.
NO.
22
22
24
4.
Centre for the Study of social Exclusion and Inclusive Policy, National
27
The National Crime Records Bureau Records, Chap. 21, 2014, available at
28
http://ncrb.nic.in/StatPublications/CII/CII2014/Compendium%202014.pdf
6.
29
David Barnum, The Clear and Present Danger Test in Anglo-American and
European Law, San Diego Journal of International Law (2006)
11 | P a g e
30,31
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
The
Search
for
31
31
31
31
31
S. Cal.
Interdisc. L. J. (2001)
15.
31
31
31
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)
12 | P a g e
31
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
32
32
32
(2005)
SL. NO.
BOOKS
PG.
NO.
1.
22
2.
K.N.C. Pillai & Shabistan Aquil, Law of Sedition, Essays on the Indian Penal
23,
24
28
3.
Chandrachud, Justice S.S. Subramani, Justice B.P. Banerjee (8th ed., 2007)
4.
29
1987)
SL. NO.
P G.
NO.
1.
26
2.
Times News Network, Gujarat High Court quashes sedition cases against 27,26
TOI, Times of India (19/04/2012)
3.
13 | P a g e
27
SL. NO.
WEB RESOURCES
1.
2.
www.manupatrafast.com (MANUPATRA)
3.
4.
www.jstor.org (JSTOR)
5.
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27
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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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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STATEMENT OF ISSUES
SPECIAL LEAVE PETITION NO. 1996/2016
I.
WHETHER
THE
II.
WHETHER S.124A
OF THE IPC,
1860,
CONSTITUTES AN UNREASONABLE
I.
WHETHER
THE
II.
18 | P a g e
SUMMARY OF ARGUMENTS
SPECIAL LEAVE PETITION NO. 1996/2016
I.
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,
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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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.
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.
]
20 | P a g e
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.
21 | P a g e
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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
23 | P a g e
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
24 | P a g e
31
25 | P a g e
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
26 | P a g e
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.
27 | P a g e
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.
28 | P a g e
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.
29 | P a g e
including Griswold
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
30 | P a g e
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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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.
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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 &
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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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106
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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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134
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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.
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