13TH K.K.

LUTHRA MEMORIAL MOOT COURT, 2017

URN: 1350

XIII K.K. LUTHRA MEMORIAL MOOT COURT, 2017

BY WAY OF SPECIAL LEAVE PETITION

Before
THE SUPREME COURT OF CAMELOT

GOVERNMENT OF EREHWON

ELIZABETH BENNET
v.

(THE PETITIONER)

(THE RESPONDENT)

-MEMORIAL ON BEHALF OF THE PETITIONERS-

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TABLE OF CONTENTS
-INDEX OF AUTHORITIES- ............................................................................................................. II
-STATEMENT OF FACTS- ............................................................................................................... VI
-ISSUES RAISED- ......................................................................................................................... VII
-PLEADINGS- ................................................................................................................................... 1
I.

THAT 421-A IS CONSISTENT WITH FUNDAMENTAL RIGHT OF FREEDOM OF SPEECH 1

A. THE IMPUGNED LAW PUTS A REASONABLE RESTRICTION ON FREEDOM OF EXPRESSION .... 1
B. THE LAW SATISFIES THE IMPERATIVE TEST AND TEST OF REASONABLENESS .............. 2
C. THE LAW CARRIES AMPLE JUDICIAL GLOSS ...................................................................... 3
D. 421-A

IS NEITHER VAGUE NOR OVERBROAD; THE PUNISHMENTS PRESCRIBED ARE

JUSTIFIABLE .............................................................................................................................. 3

E. RETENTION OF SEDITION LAW IS JUSTIFIABLE.................................................................... 5

II. THAT MS. BENNET IS GUILTY OF THE CHARGED OFFENCES UNDER THE PCC ............. 5
A. RESPONDENT IS LIABLE FOR THE CRIME OF SEDITION UNDER 421-A ........................... 6
B.

THAT THERE IS A CRIMINAL CONSPIRACY TO SUBVERT THE GOVERNMENT....................... 8

C. THE RESPONDENT IS LIABLE FOR THE HATE SPEECH UNDER 351-A ............................. 12
III. THAT THE DEATH PENALTY IS A VALID PUNISHMENT IN THE INSTANT CASE ............. 13
A. THE PUNISHMENT FITS THE REAL LIKELIHOOD TEST..................................................... 14
B. THE APPROPRIATE PENALTIES PRESCRIBED BY THE STATUTE MUST BE METED OUT. ........ 14
C.

THE PUNISHMENT PROVIDED IS A VALID EXERCISE OF DETERRENT EFFECT OF LAW. ........ 15

D.

THE REFORMATIVE THEORY OF PUNISHMENT IS INAPPLICABLE IN THE INSTANT CASE. ... 15

E.

THE FOLLOWING IS AN ACTION NOT PROTECTED BY THE RIGHT OF FREE SPEECH ............. 16

F.

THERE EXIST SPECIAL REASONS FOR THE EXECUTION OF THE DEATH SENTENCE .............. 16

IV. THAT WHETHER THE SANCTION GRANTED BY LT. GOVERNOR IS A VALID SANCTION ... 17
PRAYER ......................................................................................................................................... 18
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-INDEX OF AUTHORITIES-BOOKS1. 2 Kaye et al., MCCORMICK ON EVIDENCE 432-35 (4th ed. 1992) ..................................... 10
2. BUZZARD et al., Phipson on Evidence 63 (12th Edn, Sweet & Maxwell, London) .......... 10
3. JACKSON, NATURAL JUSTICE 34 (Sweet & Maxwell, 1980) .............................................. 14
4. JO SHAW ET AL., EVIDENCE RAYMOND EMSON 15 (Palgrave Macmillan, 4th ed. 2006) ... 11
5. JUDITH BUTLER, EXCITABLE SPEECH: A POLITICS OF THE PERFORMATIVE 21 (Routledge
1997) ................................................................................................................................... 8
6. KENNY, OUTLINES OF CRIMINAL LAW 294, (13 ed.1902) ................................................... 9
7. MAXWELL, ON THE INTERPRETATION OF STATUTES 53 (Butterworth 7th ed., 1969) ........ 15
8. RICHARD GLOVER & PETER MURPHY, MURPHY ON EVIDENCE, 18 (Oxford University
Press, 1995) ....................................................................................................................... 11
9. WAYNE R LAFAVE, SUBSTANTIVE CRIMINAL LAW 12.2(a) (2d ed. 2003) ....................... 9
-INDIAN CASES1. ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.................................................. VII
2. Anz Grindlays Bank Limited & Ors. v. Directorate of Enforcement & Ors., (2004) 6 SCC
531..................................................................................................................................... 15
3. Arun Gosh v. State of West Bengal, (1970) 1 SCC 98 ..................................................... 13
4. Asit Kumar Sen Gupta v. State Of Chhattisgarh, Cri App No. 86 of 2011 (Chh) .............. 2
5. Azizul Haq Kausar Naquvi And Anr. v. The State, 1980 Cri LJ 448 ............................... 12
6. Babu Rao Patel v. State (Delhi Administration), AIR 1980 SC 763 ................................ 14
7. Bodha and Ors. v. State of Jammu and Kashmir, (2002) 8 SCC 45 ................................. 12
8. Debi Soren and Ors. v. The State, AIR 1954 Pat 254 ......................................................... 2
9. Ebrahim Sulaiman Sait vs M. C. Muhammad And Anr., AIR 1980 SC 354 ................... 13
10. Emperor v. Narayan Vasudev Phadke, (1940) 42 BOMLR 861 ...................................... 13
11. Emperor v. Narayan Vasudev Phadke, AIR 1940 Bom 379............................................... 7
12. Gopal Vinayak Godse vs The State of Maharashtra, 1961 SCR (3) 440 .......................... 12
13. Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 .............................................. 4
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14. Harakchand v. Union of India, AIR 1970 SC 1453. ........................................................... 2

15. Inderjeet v. State of Uttar Pradesh, AIR 1979 SC 1867 ..................................................... 5
16. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 ...................................................... 2
17. Kehar Singh and others v. State (Delhi Admn.), (1988) 3 SCC 609 ................................ 10
18. Mark Netto v. Government of Kerala and ors., AIR 1979 SC 83....................................... 3
19. Mohd. Khalid v. State of West Bengal, (1995) 1 SCC 684 ................................................ 9
20. Municipal Committee v. State of Punjab, (1969) 1 SCC 475 ............................................. 4
21. Nagen Murmu v. State Of W.B. AIR 1973 SC 884. ........................................................... 2
22. Naurang Singh v. Union Territory, 1986 Cr LJ 846 (P&H) ............................................... 7
23. Om Prakash v. Emperor, AIR 1948 Nag 109 ..................................................................... 2
24. Pravasi Bhalai Sangathan v. Union of India and Ors., (2014) 11 SCC 477 ..................... 13
25. Pravasi Bhalai Sangathan v. Union of India and Ors., AIR 2014 SC 1591 (India), 7 ...... 13
26. Prithipal Singh vs. State of Punjab and Anr., (2012) 1 SCC 10 ......................................... 8
27. Pushpadevi M. Jatia v. M.L. Wadhawan, AIR 1987 SC 1748 ........................................... 2
28. R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 193............................................................... 18
29. RomeshThapar v. The State of Madras, AIR 1950 SC 124 ................................................ 5
30. S. Rangarajan vs. P. Jagjivan Ram, (1989) 1 SCC 574. 45 ................................................ 8
31. Shailesh Jasvantbhai v. State of Gujarat, (2006) 2 SCC 359 ............................................ 16
32. Sirajuddin v. State of Madras, (1970) 1 SCC 595 ............................................................ 18
33. State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru, 2005 (11) SCC 600 ............... 18
34. State of Bihar and Ors. v. Bihar Distillery Ltd. AIR 1997 SC 1511 .................................. 4
35. State of H.P. V. M.P. Gupta, 2004 (2) SCC 349 .............................................................. 18
36. State of Maharashtra v. Somnath Thapa and others, AIR 1996 SC 1744 ......................... 10
37. State of U P. v. Lalji Singh Yadav, AIR 1977 SC 202 ....................................................... 2
38. State of West Bengal Vs. Shyamadas Banerjee & Ors., 2008 (3) SCC (Cri.) 678 ........... 18
39. Supt. Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633 ....................................... 2
40. The Secretary, Ministry of Information and Broadcasting v. Cricket Association of
Bengal & Anr., AIR 1995 SC 1236 .....................................................................................6
INTERNATIONAL CASES
1. Abrams v. U.S., 250 U.S. 616 (1919) ................................................................................. 1

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2. Anderson v. Superior Court, 78 Cal. App. 2d 22, 177 P.2d 315 (1947) ........................... 10
3. Beauharnais v Illinois, 343 US 250, 262 (1952) ................................................................. 3
4. Brandenburg v. Ohio, 395 US 444.................................................................................... 16
5. Bridges v. California, 314 US 252 (1941) .......................................................................... 1
6. Burns v. Ransley and Sharkey, (1949) 79 CLR 101, 115 ................................................... 4
7. Cantu v. State, 939 S.W.2d 627, 634-35 (Tex. Crim. App. 1997).................................... 10
8. Cantwell v. Connecticut, 310 US 296 (1940) ..................................................................... 1
9. Dennis v. United States, 341 US 494, 584 (1951) .............................................................. 7
10. Frohwerk v. United States, 249 US 204 (1919). ................................................................. 1
11. Gawda v. Poland, 2002-II Eur. Ct. H.R. 105, 118 ............................................................ 2
12. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949) ..................................... 9
13. Goodwin v United Kingdom, (2002) 35 EHRR 447 .......................................................... 4
14. Haig v. Agee, 453 US 280 (1981)....................................................................................... 3
15. Lingens v Austria, 8 EHRR 407 (1986); Barthold v Germany, 7 EHRR 383 (1985) ........ 3
16. Masses Pub. Co. v. Patten, 244 U.S. 535 (1917) ................................................................ 7
17. Melvin R Laird v Arlo Tatum 408 US 1 (1972); Meese v Keene 481 US 465 (1987)....... 4
18. National Socialist Party of America v. Village of Skokie, 432 U.S. 32 (1977) ............... 16
19. Near v. Minnesota Olson, 283 US 697 (1931).................................................................... 3
20. Paradis v. R, 61 CCC 184,186 (1934) ................................................................................ 9
21. Pinkerton v. United States, 328 U.S. 640 (1946) .............................................................. 10
22. R v Aldred (1909) 22 Cox C.C. 1 ....................................................................................... 7
23. R v Collins (1839) 9 C. & P. 912 ........................................................................................ 7
24. R v. Chief Metropolitan Stipendiary Magistrate, 1 Q.B. 429, 453 (1991) ......................... 7
25. R. v. Exall, (1866) 176 ER 850 ......................................................................................... 11
26. R. v. Shayler, (2003) 1 AC 247 .......................................................................................... 2
27. Roth v U.S., 354 US 476 (1956) ......................................................................................... 1
28. Roth v. United States, 354 U.S. 476, 514 (1957) ............................................................... 7
29. Schenck v. U.S., 249 US 47 (1919) .................................................................................... 1
30. Shaffer v. United States, 251 US 466 (1920 ....................................................................... 1
31. Spicer v. Holt (1976) 3 All ER 71, pp. 78, 79 (HL) ......................................................... 15
32. Stromberg v. California, (1931) 283 US 359. ..................................................................... 1
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33. Teminiello v. Chicago, 337 US 1 (1949) ............................................................................ 1

34. The Sunday Times v United Kingdom 2 EHRR 245 (1979) .............................................. 2
35. U.S. v. Lanier, 520 US 266 (1997); U.S. v. Morison, 529 US 598 (2000) ......................... 3
36. U.S. V. Morison, 529 US 598 (2000) ................................................................................. 4
37. Van Riper v. United States, 13 F.2d 961 (1940) ............................................................... 11
38. Watts v. United States, 394 US 705(1969) ......................................................................... 1
-INTERNATIONAL AGREEMENTS1. Art. 19(3), The International Covenant on Civil and Political Rights. ............................... 1
2. Art. 29 (2), Universal Declaration of Human Rights .......................................................... 8
3. Art. 29, Universal Declaration of Human Rights. .............................................................. 1
4. Principle 2, Art. 19, The Johannesburg Principles, Freedom of Expression and Access to
Information. ........................................................................................................................ 3
-OTHER AUTHORITIES1. 43rd Report of the Law Commission of India, OFFENCES AGAINST THE NATIONAL
SECURITY, (1971) ............................................................................................................ 5
2. Freedom of Expression, Center For Internet and Society, available at http://cisindia.org/Internetgovernance/blog/freedom-of-speech.pdf (last visited November 13,
2016) ................................................................................................................................. 13
3. General Comment No. 11, Article 20, Prohibition of Propaganda for War and Inciting
National, Racial or Religious Hatred, U.N. GAOR, Hum. Rts. Comm., 19th Sess., 2,
U.N. Doc. CCPR/C/GC/11 (29 July 1983) ....................................................................... 17

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-STATEMENT OF FACTS-BACKGROUNDCamelot is a democratic country which follows the principles of Common law. Erehwon is the
Capital of Camelot. Elections were held in Camelot and Erehwon in March, 2014 and April,
2015, respectively. The Vanity Fair Party came into power in Camelot and the Crouching Tiger
Party won in Erehwon. The elections witnessed the rise of the Hogwarts Party, with Ms.
Elizabeth Bennet, as its leader. The three parties had well publicized ideological differences,
which had been the subject of long standing acrimony between its leaders.
-PREJUDICIAL CAMPAIGNINGIn April, 2016, Ms. Elizabeth took up the campaign the Dawn of Justice, in which she extolled
the virtues of Genghizstan, a nation Camelot has been diplomatically antagonistic towards, with
several wars fought between the two nations. In the month of May, Ms Bennet launched the
Mock and Shame the Pseudo-Nationalist Government campaign, an attempt at deriding the
policy actions implemented by the Governments of Camelot and Erehwon.
Furthermore, she posted a selfie of hers on Twitter with the flag of Genghizstan in the
background. When a supporter of her called the establishment inept and pseudo-nationalistic
nature, she supported the remark. Later, in a rally, addressing 30,000 people, she talked about the
bringing of a fundamental overhaul, and the need to adopt any methods for the same. She praised
Genghizstan in an unbridled manner and at the same time accused the establishment of adopting
a narrow parochial line of thought. The speech was followed by violent outbursts and antiestablishment sloganeering. Even the Parliament of Camelot was imperiled with lakhs of people
gathering near its premises. Thousands of people and members of Hogwarts Party mocked the
government officials for their nave and childish support for the government of Erehwon.
-PENAL PROVISIONS ATTRACTEDOn the 5th of June, 2016, a complaint under 421-A/ 351-A/ and 210-B of the Penal Code of
Camelot was filed against Ms. Bennet and other unknown persons. Sanctions for prosecution for
the same were given under 196 of the Camelot Procedure Statute by the Government of
Erehwon in the name of the Lieutenant Governor. The trial court convicted all the accused of the
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said offences, prescribing the maximum permissible punishment of death for the accused. Ms.
Bennet filed an appeal before the High Court of Erehwon and was acquitted of all charges. Then
the State of Erehwon filed a Special Leave Petition in the Supreme Court of Camelot. The case is
listed for final hearing.
-ISSUES RAISEDI.
WHETHER 421-A IS CONSTITUTIONAL?
II.
WHETHER THE OFFENCES UNDER 421-A/351-A/ 210-B OF THE PENAL CODE OF CAMELOT HAVE
BEEN MADE OUT AGAINST MS. ELIZABETH BENNET IN THE INSTANT CASE?
III.
WHETHER THE DEATH SENTENCE AS SOUGHT BY THE GOVERNMENT OF EREHWON IS AN
APPROPRIATE PUNISHMENT FOR THE OFFENCE OF SEDITION AS MADE OUT BY THE FACTS OF THE
PRESENT CASE.

IV.
WHETHER THE SANCTION GRANTED BY THE LT. GOVERNOR IS A VALID SANCTION?

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-PLEADINGSTHAT 421-A IS CONSISTENT WITH FUNDAMENTAL RIGHT OF FREEDOM OF SPEECH

1.

It is humbly submitted that 421-A is consistent with the fundamental right of freedom

of speech and expression. Right to freedom of speech and expression is subject to the restrictions
as mentioned in Article 29 of the UDHR1 and Article 19(3) of ICCPR.2 It is herein submitted that
firstly, the impugned law is a reasonable restriction on freedom of speech [A]; secondly, the
impugned law satisfies the imperative test and Test of reasonableness' [B]; thirdly, 421-A is
neither vague nor overbroad and the punishments prescribed are justifiable [C]; whilst fourthly,
there exists ample judicial gloss on the sedition law [D] and lastly, the retention of sedition law is
justifiable [E].
A. THE IMPUGNED LAW PUTS A REASONABLE RESTRICTION ON FREEDOM OF EXPRESSION
2.

It is contended that Liberty is itself the gift of law and may by law be forfeited or

abridged.3 Freedom of speech is not an absolute right4, and restrictions are placed on speech that
may induce hearers or listeners to engage in unlawful conduct5; speech that threatens' harm to
others;6 speech that provokes a hostile audience response7 and vitiates public order. No State can
tolerate utterances which threaten the overthrow of organized Government by unlawful or
unconstitutional means.8 The essence is to balance the need for individual liberty with the need
for social control and the magnitude of the evil which is the purpose of the restrictions to curb or
eliminate so that the freedom guaranteed to the individual sub serves the larger public interests.9
3.

Also, public order implies an orderly state of affairs in which citizens can peacefully

pursue their normal avocations of life.10 The disturbance of public order is the potentiality of the
act to disturb even tempo of the life of the community which makes it prejudicial to the

Art. 29, Universal Declaration of Human Rights.

Art. 19(3), The International Covenant on Civil and Political Rights.
3
ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.
4
Roth v U.S., 354 US 476 (1956); Schenck v. U.S., 249 US 47 (1919); Abrams v. U.S., 250 U.S. 616 (1919).
5
Shaffer v. United States, 251 US 466 (1920); Schenck v. United States, 249 US 47 (1919)
6
Bridges v. California, 314 US 252 (1941); Watts v. United States, 394 US 705(1969).
7
Teminiello v. Chicago, 337 US 1 (1949); Cantwell v. Connecticut, 310 US 296 (1940)
8
Stromberg v. California, (1931) 283 US 359.
9
Harakchand v. Union of India, AIR 1970 SC 1453.
10
Supt. Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.
2

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maintenance of public order.11 Thus, public order would be synonymous with anything that
disturbs public tranquility disturbs public peace.12
4.

In Kedar Nath13, the constitutionality of 124A, IPC was upheld, which is similar in

substance as 421-A, holding that it imposes reasonable restrictions on fundamental freedom of

speech and expression in interest of the public order and it is well within the ambit of permissible
legislative interference with the fundamental right.14 The Government established by law is the
visible symbol of the State. The very existence of the State will be in jeopardy if the Government
established by law is subverted. The continued existence of the Government established by law
is an essential condition of the stability of the State.15 Therefore, the restriction imposed by
421-A of PCC is justified as it aims at the preservation of public order. Hence, is a reasonable
restriction and has a proximate and reasonable connection to its objective.
B. THE IMPUGNED LAW SATISFIES THE IMPERATIVE TEST AND TEST OF REASONABLENESS
5.

It is stated that in Sunday Times v. UK,16 the Court set out three requisites for the

sustenance of a law which is an infringement of the right to freedom of expression. Firstly, as

held in Gaweda v Poland17 the requirements flowing from the expression prescribed by law is
that of accessibility and sufficient precision to enable a citizen to regulate his conduct.18 The
requirement of prescribed by law is that of precision and clarity.19 Therefore, the widely accepted
definition of sedition law meets the required standards of precision which is matched by the
provision in question. Secondly, the courts have recognized a risk to national security as a valid
case for restricting expression.20 Restrictions sought to be justified on the ground of national
security are legitimate when they protect its capacity to respond to the use or threat of force. 21
421-A aims at preserving public order which is a legitimate aim of any establishment.

11

Pushpadevi M. Jatia v. M.L. Wadhawan, AIR 1987 SC 1748; Nagen Murmu v. State Of W.B. AIR 1973 SC 884.
Om Prakash v. Emperor, AIR 1948 Nag 109; State of U P. v. Lalji Singh Yadav, AIR 1977 SC 202.
13
Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
14
Debi Soren and Ors. v. The State, AIR 1954 Pat 254.
15
Asit Kumar Sen Gupta v. State Of Chhattisgarh, Cri App No. 86 of 2011 (Chh).
16
The Sunday Times v. United Kingdom, 2 EHRR 245 (1979.
17
Gawda v. Poland, 2002-II Eur. Ct. H.R. 105, 118
18
The Sunday Times v United Kingdom 2 EHRR 245 (1979).
19
R. v. Shayler, (2003) 1 AC 247
20
Near v. Minnesota Olson, 283 US 697 (1931); Haig v. Agee, 453 US 280 (1981)
21
Principle 2, Art. 19, The Johannesburg Principles, Freedom of Expression and Access to Information.
12

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6.

Thirdly, for a restriction to be necessary in a democratic society there must be a

pressing social need, and the law framed to address the pressing social need must be
proportionate to the legitimate aim pursued.22 Primarily, in Camelot people of multiple
ideologies live, which enhances the chances any malicious words acting as a spark in a powder
keg. By disallowing the venting of disaffection (that results to be an incitement to violence) is
proportionate. Also, the Government of Camelot enjoys the Margin of Appreciation23 in
Sedition law as it is, largely, in the interest of public order and national security.
C. THE LAW CARRIES AMPLE JUDICIAL GLOSS
7.

It is humbly contended that there is sufficient Judicial Gloss on the Sedition law. The

Court must make every effort to uphold the constitutional validity of a statute, even if that
requires giving a strained construction or narrowing down its scope.24 It is also well established
that clarity at the requisite level may be supplied by judicial gloss on an otherwise uncertain
statute.25 The Court should not approach the enactment with a view to pick holes or to search
for defects of drafting, much less inexactitude of language employed. Any such defects of
drafting should be ironed out as part of the attempt to sustain the validity/constitutionality of the
enactment.26 Thus, while the language of the provision, by itself, may lack precision, the gloss of
judicial precedent has clarified that the penal provision of Sedition is not attracted unless there is
incitement to violence or the tendency or the intention to create public disorder. Hence, the
law of sedition does not suffer from the anomaly of generality.
D. 421-A

IS NEITHER VAGUE NOR OVERBROAD; THE PUNISHMENTS PRESCRIBED ARE

JUSTIFIABLE

8.

It is argued that the judicial gloss of incitement to violence27 in the definition of

Sedition is precise enough to contain an intelligible standard and consequently qualify as a law
consistent with the reasonable restriction. The restrictions are justifiable because these do not
penalize lawful speech that is not accompanied by violence.

22

Lingens v Austria, 8 EHRR 407 (1986); Barthold v Germany, 7 EHRR 383 (1985).
Beauharnais v Illinois, 343 US 250, 262 (1952).
24
Mark Netto v. Government of Kerala and ors., AIR 1979 SC 83.
25
U.S. v. Lanier, 520 US 266 (1997); U.S. v. Morison, 529 US 598 (2000).
26
State of Bihar and Ors. v. Bihar Distillery Ltd. AIR 1997 SC 1511
27
Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
23

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a.
9.

421-A is neither vague nor overbroad

It is submitted that a law cannot be struck down as violative of a Fundamental Right

merely on the ground that it is vague.28 To excite disaffection included to inspire or kindle
disaffection.29 Furthermore, in IPC, the expression disaffection includes disloyalty and all
feelings of enmity. Also, all vagueness may be corrected by judicial construction which narrows
the sweep of the statute within the range of reasonable certainty. 30 Hence, the law does not suffer
from any vagueness.
10.

If the legislation indirectly or incidentally affects a citizens fundamental rights it will not

introduce any infirmity to the validity of the legislation.31 A citizen has a right to like or criticize
a Government or its measures, so long as he does not incite people to violence with the intention
of creating public disorder.32 Freedom guaranteed has to be guarded against becoming a license
for vilification and condemnation of the Government established by law, in words, which incite
violence or have the tendency to create public disorder. Also, there is no Chilling Effect and
even if chilling effect is caused, it is justified by the overriding public interest. 33 Consequently,
mere apprehension that people in Camelot would indulge in self-censorship cannot amount to
chilling effect.34 Hence, the law is not overbroad.
b.
11.

Punishments prescribed are justifiable

It is argued that the punishments prescribed are justifiable for the reasons involving

greater risk to national security. The 43rd Law Commission Report of India has recommended
abolition of death penalty for all crimes, barring only the offences involving terrorism and
sedition. The justification adduced was that the abolition of death penalty for terrorism related
offences and waging war will affect national security.35 As, National Security is of utmost
relevance, therefore, death is justified in cases involving such an act which puts the whole state
in great peril. Also, in its quest for reasonableness, the court would not question the penal policy

28

Municipal Committee v. State of Punjab, (1969) 1 SCC 475.

Burns v. Ransley and Sharkey, (1949) 79 CLR 101, 115
30
U.S. V. Morison, 529 US 598 (2000).
31
Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.
32
Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
33
Goodwin v United Kingdom, (2002) 35 EHRR 447.
34
Melvin R Laird v Arlo Tatum 408 US 1 (1972); Meese v Keene 481 US 465 (1987).
35
43rd Report of the Law Commission of India, OFFENCES AGAINST THE NATIONAL SECURITY, (1971).
29

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behind a law, e.g. the provision for absolute liability which a statutory minimum sentence of
imprisonment for the commission of anti-social offences, irrespective of gravity or otherwise of
the offence in a particular case.36 Thus, penal policy is a matter which should be well-left to the
discretion of the legislature and must not be altered, but abided, by the judiciary. Hence, the
punishments prescribed enjoy legislative will and consequently, are justifiable.
E. RETENTION OF SEDITION LAW IS JUSTIFIABLE
13.

The purpose of the crime of sedition was to prevent the Government established by law

from being subverted because the continued existence of the Government established by law is
an essential condition for the stability of the State.37 The power to punish those who, by their
conduct, jeopardize the safety and stability of the State must indeed vest within a state, with the
misuse of law not being a criterion to declare it unconstitutional.38 Incitement to violence or the
tendency or the intention to create public disorder is an essential ingredient of the offence of
sedition.39 Article 20(2) of the ICCPR requires States to prohibit certain forms of speech which
are intended to sow hatred, namely any advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence shall be prohibited by law. For
Article 20 to become fully effective there ought to be a law making it clear that propaganda and
advocacy as described therein are contrary to public policy and providing for an appropriate
sanction in case of violation, which stands as the chief achievement of the aforementioned law.40
I.
14.

THAT MS. BENNET IS GUILTY OF THE CHARGED OFFENCES UNDER THE PCC
It is respectfully submitted that Ms. Bennet is guilty of the offences charged under the

Code. Firstly, Ms. Bennet is liable for the crime of sedition [A] for her speech amounted to
incitement, (a), with an established intent to promote violence (b). Furthermore, her speech
satisfies the essential laid down in the Brandenburg II test (c) and there exists a direct, proximate
and causal relationship between the speech and action (d). Secondly, Ms. Bennet unquestionably
forms a material agent to the charge of conspiracy for her partaking in an unlawful agreement,
36

Inderjeet v. State of Uttar Pradesh, AIR 1979 SC 1867.

Kedar Nath v. State of Bihar, AIR 1962 SC 955.
38
RomeshThapar v. The State of Madras, AIR 1950 SC 124.
39
Supra note 37.
40
HRC, General Comment 11, Prohibition of propaganda for war and inciting national, racial or religious hatred
(Art. 20), 29 July 1983, 2.
37

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evidenced by a plan, leaving no reasonable doubt for the same [B]; thirdly, the accused has
committed the offence under 351-A, inciting hatred amongst certain groups [C].
A. RESPONDENT IS LIABLE FOR THE CRIME OF SEDITION UNDER 421-A
15.

It is humbly submitted before this Honble Court that the respondent has committed the

crime of sedition under 421-A of PCC. The Language of 421-A must be interpreted in the
light of the broad principles underlying the concept of sedition as formulated by the common
law. Public disorder or the reasonable anticipation of public disorder is thus the gist of the
offense.
a. The speech amounted to incitement
16.

As argued, statement contained in the speeches of Ms. Bennet amounted to incitement as

she abused her right to freedom of speech and expression. The spectrum of the Fundamental
right is not broad enough to cover the right to criticize the government in an unlawful manner.41
Herein lies a grave transgression noticeable in the later part of speech, and the impression on
reading the speech as a whole is that the intention was to subvert the Government. 42 The
argument of the accused is that the government is following a narrow ideology and we must all
rebel against it in order to alter it. Having regard to the place, circumstances and the organized
party cadre and the group of people invited to listen to that sort of oratory, assuming that the
primary object of the meeting was to protest against the policy approach of governments, but the
group of people and enthusiastic party cadre in their ignorance was led to think on hearing the
accused that she was promoting subversion.43 That is clearly punishable.
b. There was intention to promote hatred against the Government established by law
17.

It is stated that under 421-A to render the intention seditious, there must be an intention

to incite to violence or resistance or defiance for the purpose of disturbing constituted

authority.44 It is stated that the incendiary speaker had personal contact as a leader with the
41

The Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal & Anr., AIR 1995 SC
1236.
42
1, Page 3, STATEMENT OF FACTS, The K.K. Luthra Memorial Moot Court, 2017.
43
Emperor v. Narayan Vasudev Phadke, AIR 1940 Bom 379.
44
Naurang Singh v. Union Territory, 1986 Cr LJ 846 (P&H) R v. Chief Metropolitan Stipendiary Magistrate, 1 Q.B.
429, 453 (1991).
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ultimate perpetrators of violence; it may, and probably should be, sufficient to tie her in with the
action. The case could be cemented by the particularities of intention which consist of group
hated and inciting violence to destabilize the government. In the instant case, there was a speech
plus action.45 It may well be argued that the speech is brigaded with the illegal action and thus
removes any need to consider the fundamental right available.46
c. The alleged speech satisfies the essential laid down in the Brandenburg II test
18.

Brandenburg Test is the modern incitement standard as enunciated in Brandenburg v.

Ohio, which established it. It relied on- imminent lawless action standard to determine whether
speech constituted unprotected incitement. A distinction is made between mere advocacy of
violence from actual incitement to imminent lawless action, since the petitioner seeks to penalize
incitement to hatred and speeches or conduct of accused that deliberately triggers violent
protests. It does not seek a punishment for a mere advocacy of opinion. Political agitation, by the
passions it arouses or the convictions it engenders, may in fact stimulate men to the violation of
law. Detestation of existing policies is easily transformed into forcible resistance of the authority
which puts them in execution, and it would be folly to disregard the causal relation between the
two as it has in the instant case.47
19.

In Collins, Littledale J., stated that it was seditious if the accused intended that people

should make use of physical force as their own source to obtain justice, should take the power
into their own hands to tumult and disorder. 48
d. There is a direct, proximate and causal relationship between the speech and action
20.

Indias Supreme Court stressed the requirement of a direct, causal relationship between a

statement and the feared unlawful consequences: The anticipated danger should not be remote,
conjectural or far-fetched. It should have a proximate and direct nexus with the expression
[which] should be inseparably locked up with the action contemplated like the equivalent of a
spark in a powder keg.49 Unity of purpose, passion and hatred, which merges the many minds
of a public into the mindlessness of a mob, almost invariably is supplied by speeches.
45

Dennis v. United States, 341 US 494, 584 (1951).

Roth v. United States, 354 U.S. 476, 514 (1957).
47
Masses Pub. Co. v. Patten, 244 U.S. 535 (1917).
48
R v Collins (1839) 9 C. & P. 912; R v Burns (1886) 16 Cox C.C. 355; and R v Aldred (1909) 22 Cox C.C. 1.
49
S. Rangarajan v. P. Jagjivan Ram, (1989) 1 SCC 574, 45.
46

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21.

In the case at hand, the words of Ms. Bennet could be characterized as having sovereign

force propelling the speech into action.50 Free speech should be curbed and speaker must be
penalized for based on it harmful repercussions51, which is in consonance with the proposition
salus republicae suprema lex (safety of the state is the supreme law).52A State may interfere
with freedom of expression and speech to prevent disorder and protects the rights of others.53 In
the light of the fact that the social harmony and establishment was at stake and that consequently,
the essential requirement of preservation of public order and rule of law was threatened.
B. THAT THERE IS A CRIMINAL CONSPIRACY TO SUBVERT THE GOVERNMENT
22.

The respondents are liable for the offence of conspiracy as defined under common law as

the seditious acts were done to further their cause. 120-A and 120-B of the Indian Penal Code
can be referred here as it is analogous to the settled definition of the common law offence of
conspiracy. Under Common law there are three essentials to prove Criminal conspiracy: (a) an
object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c)
an agreement or understanding between two or more of the accused persons whereby they
become definitely committed to cooperate for the accomplishment of the object by the means
embodied in the agreement, or by any effectual means.54
a. There is an unlawful agreement performed in an unlawful manner
23.

The lynchpin of criminal conspiracy is the existence of an agreement to commit an

unlawful act wherein a tacit understanding may be sufficient to prove the offence. Therefore the
circumstances proved before, during or after the occurrence have to be considered to decide
about the complicity of the accused. In the instant case, there is an agreement to break the law.
The pattern of events discloses sufficient unity as to be characterized generally as an undivided
scheme or conspiracy, the agreement stems from the communicated intentions. It is the

50

JUDITH BUTLER, EXCITABLE SPEECH: A POLITICS OF THE PERFORMATIVE 21 (Routledge 1997).

Will Cartwright, John Stuart Mill On Freedom Of Discussion, 5 RICHMOND PHIL. J. 5 (2003).
52
Prithipal Singh v. State of Punjab and Anr., (2012) 1 SCC 10.
53
Art. 29 (2), Universal Declaration of Human Rights.
54
Mohd. Khalid v. State of West Bengal, (1995) 1 SCC 684.
51

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communications that itself creates the agreement.55 Agreements are a longstanding category of
speech under common law that has been excluded from constitutional protection. 56
24.

Communication is the essence of every conspiracy, for only by it can common purpose

and concert of action be brought about or proved.57In these terms, the conspiratorial agreement is
capable of linking together the Ms. Bennets speech and her party members overt acts in one
general scheme. The seditious speech and associations suffice to paint a picture of conspiracy.
The petitioner need not prove every detail of the conspiracy so set out, but only sufficient detail
of general plan that makes out a conspiracy.
b. Surrounding circumstances must be viewed in the light of the speech act
25.

It is submitted, without prejudice to the above contentions, that even if the speech fails to

implicate Ms. Bennet on a direct basis, it is admissible and carries the requisite probative force
under the res gestae rule. The actions of party members provide concrete evidence about
agreement and intent behind the speech in the course of events which led to the indictments. The
principle is that the events should be seen in the context of their surrounding circumstances and
antecedents, and not in a factual vacuum. The actual agreement must be gathered from several
isolated doings58 having possibly little or no value taken by themselves, but the bearing of
which one must be interpreted: and their value cumulative effect, properly estimated in the light
of surrounding circumstances, may raise a presumption of concerted purpose entitling the court
to find the existence of unlawful agreement.59 These facts along with the circumstances, aid in
proving the accused guilt beyond a reasonable doubt.
c. There exists, a criminal intent, to achieve the object of subverting the Government
26.

The incitement through speech and the resultant public mobilization merges the criminal

intent with actus reus, forming a criminal intent. In the instant case the speech of Ms. Bennet is
integral part of criminal conduct. If the defendants had confined themselves to a discussion as to
the

soundness

of

their

views,

certainly

such

discussion

would

not

amount

to

55

Martin H. Redish & Michael J.T. Downey, Criminal Conspiracy as Free Expression 76 ALB. L. REV. 697, 698
700 (2013).
56
2 WAYNE R LAFAVE, SUBSTANTIVE CRIMINAL LAW 12.2(a) (2d ed. 2003).
57
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949).
58
3 Kenny, Outlines of Criminal Law 294(, 13 ed.1902). .
59
Paradis v. R, 61 CCC 184,186 (1934).
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a criminal conspiracy. Nothing prevented the Hogwarts Party from bringing about the change in
accordance with the law and the Constitution of Camelot. It cannot be refuted by the accused that
she has no knowledge of effect of her speech or taking recourse to illegal means by coconspirators, along with the intent to further the illegal act or facilitate the illegal means.60 The
evidence as to transmission of thoughts sharing the unlawful design may be sufficient. 61 The
above facts, succinctly point towards the clandestine way in which the various acts were done,
therefore strengthening the ground of a conspiracy between the accused.
d. The acts of the co-conspirators are imputable to the accused
27.

The violent outturn of the protest and acts of the party members is imputable to the

speeches made by Ms. Bennet. The Pinkerton Rule of conspiracy could be applied even if the
actions of a co-conspirator fall outside the scope of the criminal agreement as they were
reasonably foreseeable. Ms. Bennets acquiescence could be proved by adoptive admission of
the statement of her supporter; which in turn is suggestive of her endorsing the agreement of
belittling the government in the eyes of its citizenry. 62 The word uttered by participant is relevant
and admissible against accused in construing their intent under the Principle of Res Gestae63 as it
falls under the same transaction. Furthermore, the violent protests and circumscription of the
Parliament are substantial steps in furtherance of the conspiratorial agreement.64
28.

One who enters into a conspiratorial relationship is liable for every reasonably

foreseeable crime committed by every other member of the conspiracy in furtherance of its
objectives, whether or not he knew of the crimes or aided in their commission.65 The separate
acts of the accused are so connected and done in pursuance of the common criminal purpose, are
legal evidence against all the members of the conspiracy in purview of pre-existing concert in
contemplation of law. When men enter into an agreement for an unlawful end, they become ad
hoc agents for one another and have made a partnership in crime.66

60

State of Maharashtra v. Somnath Thapa and others, AIR 1996 SC 1744.

Kehar Singh and others v. State (Delhi Admn.), (1988) 3 SCC 609.
62
Cantu v. State, 939 S.W.2d 627, 634-35 (Tex. Crim. App. 1997).
63
BUZZARD ET AL., PHIPSON ON EVIDENCE 63 (12th Edn, Sweet & Maxwell, London).
64
2 Kaye ET AL., MCCORMICK ON EVIDENCE 432-35 (4th ed. 1992); MODEL PENAL CODE 5.01(1) (c).
65
Pinkerton v. United States, 328 U.S. 640 (1946); Anderson v. Superior Court, 78 Cal. App. 2d 22, 177 P.2d 315
(1947).
66
Van Riper v. United States, 13 F.2d 961 (1940).
61

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e. The circumstantial evidence is conclusive in nature

29.

An item of circumstantial evidence is an evidentiary fact from which an inference may be

drawn rendering the existence of a fact in issue more probable. In court as elsewhere, the acts
cannot 'speak for itself'.67 It has to be interpreted in the light of the competing hypotheses put
forward and against a background of knowledge and prevailing background. In the present case,
the plausibility of the hypothesis is conclusive in nature and leaves no reasonable doubt about the
existence of any other hypothesis. The proposition to be proved in the instant matter is that the
accused conspired to subvert the government and indeed committed the offence of sedition. The
speech of Ms. Bennet corroborated by the circumstances encompassing situation of public
disorder in the country successfully prove the factum probandum.
f. There exists a material proposition implicating the accused, completing a chain of action
leaving no scope for reasonable doubt.
30.

In the present case, as evident from the facts, the accused was instrumental in the

commission of the offences for which he was indicted. All the circumstances taken together
corroborate the same. One strand of the cord might be insufficient to sustain the weight, but three
stranded together may be quite of sufficient strength.

68

Thus, it may be in circumstantial

evidence-there may be a combination of circumstances, when taken as a whole may create a

strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit
of.69
31.

The conspiracy was hatched by Bennet and other principal figures and the plan of the

conspiracy was perfected by the party members and other unknown persons. In the present case,
the hypothesis put forth by the Petitioner sustains the evidence of a design or a plan, of intent, the
commissioning of the actual act, the disposition of the accused, reasonably concluding is that the
crimes can be accredited to the accused.70 It is therefore most respectfully submitted that there is
a chain of evidence inconsistent with the innocence of the accused, a necessity of the law 71, and
carries with it the probative force to sustain a conviction. Men may lie, but circumstances do not.

67

JO SHAW ET AL., EVIDENCE RAYMOND EMSON 15 (Palgrave Macmillan, 4th ed. 2006).
R. v. Exall, 1866) 176 ER 850.
69
RICHARD GLOVER & PETER MURPHY, MURPHY ON EVIDENCE, 18 (Oxford University Press, 1995)
70
Bodha and Ors. v. State of Jammu and Kashmir, (2002) 8 SCC 45.
71
State of Maharashtra v. Somnath Thapa and others, AIR 1996 SC 1744.
68

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C. THE RESPONDENT IS LIABLE FOR THE HATE SPEECH UNDER 351-A

32.

It is humbly submitted before the Honble Supreme Court of Camelot that the hate speech

given by the accused is punishable under the 351-A, for there exist two different groups[a],
with one establishing a malicious intent of promoting hatred against the other [b]. Under 153-A
of the IPC it is not necessary to prove that as a result of the objectionable matter, enmity or
hatred was in fact caused between the different classes.72 Intention to promote enmity or hatred,
apart from what appears from the speech itself, is not a necessary ingredient of the offence. It is
enough to show that the language of the speech is of a nature calculated to promote feelings of
enmity or hatred for, a person must be presumed to intend the natural consequences of his act. 73
a. There exists two different groups, sufficient for the application of 153-A.
33.

The counsels respectfully iterate to this Honble Court that hate speech is an effort to

marginalize individuals based on their membership in a group which seeks to delegitimize

members of that group in the eyes of the majority, thereby reducing their social standing, societal
acceptance lays the groundwork for broad attacks on vulnerable populations.74 The word
community referred in the above sub-section and states that it may even mean body of men
having common interest and such interest can be social, economic or political or ideological.
Thus, a group of people could be readily ascertained from those who believe in a strong
nationalistic ideology and those who do not as indicated herein.75
34.

If an act is found to disturb the life of the community, it constitutes a breach of public

order.76 A speech, though its immediate target is a political party, may yet be such as to promote
feeling of enmity or hatred between different classes of citizens.

77

The considerations are the

theme, the language, the innuendoes, the similes it employees and the moral of its story, if any. 78
The moment Ms. Bennet canvasses to the public to stand against government, she springs a
narrow ideology to promote feelings of enmity or hatred, and hence it is no defense to a charge

72

Gopal Vinayak Godse v. The State of Maharashtra, 1961 SCR (3) 440.
Azizul Haq Kausar Naquvi and Anr. v. The State, 1980 Cri LJ 448.
74
Pravasi Bhalai Sangathan v. Union of India and Ors., AIR 2014 SC 1591 (India), 7.
75
Emperor v. Narayan Vasudev Phadke, (1940) 42 BOMLR 861.
76
Arun Gosh v. State of West Bengal, (1970) 1 SCC 98.
77
Ebrahim Sulaiman Sait v. M. C. Muhammad And Anr., AIR 1980 SC 354.
78
Pravasi Bhalai Sangathan v. Union of India and Ors., (2014) 11 SCC 477.
73

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under 351-A that the speech contains a fair criticism of government or people belonging to
certain ideology.
b. There is present, an established malicious intent to promote hatred.
35.

The acts and speeches of the Ms. Bennet using Gengizstan as a symbol certainly indicate

her malicious intention to promote and divide the nation on ideological basis. The speech is
likely to create disharmony between different groups believing in certain ideology and the
offence will fall within the . Such purposeful attacks are nothing new. What is new, however, is
the existence of a mobile public opinion as the controlling force in politics, and the systematic
manipulation of that opinion by the use of calculated falsehood and vilification. 79 Ms. Bennet
was trying to exploit the enmity between Camelot and Genghizstan to further her own interests
by playing the card of divisive politics. The act of ventilating such propaganda is similar in
nature to incitement to commit an offence, since both are governed by laws designed to punish or
prevent such actions if they lead to a breach of the public order.80 Thus, if a political statement is
presented in a manner designed to promote feelings of enmity, hatred, or ill-will between
religious groups or communities, it will violate 351-A.81
II.
37.

THAT THE DEATH PENALTY IS AN APPROPRIATE PUNISHMENT IN THE INSTANT CASE

Death sentence is the strictest of penalties and must be necessitated under grave

circumstances. It is humbly submitted that the instant case, indeed makes out such a
circumstance. Firstly, the punishment fits the real likelihood test [A]; secondly, the appropriate
penalties prescribed by the statute must be meted out [B]; thirdly, the punishment exercises a
valid deterrent effect of law [C] and fourthly, the reformative theory of punishment is
inapplicable in the instant case [D]. Furthermore, fifthly, that the actions are not protected by the
right of free speech [E] and lastly, there exist special reasons for the execution of the death
sentence [F].

79

Reisman, Democracy And Defamation: Control Of Group Libel, 42 COL. L. REV. 727 (1942)
Freedom
of
Expression,
Center
For
Internet
and
Society,
available
india.org/Internetgovernance/blog/freedom-of-speech.pdf (last visited November 13, 2016).
81
Babu Rao Patel v. State (Delhi Administration), AIR 1980 SC 763.
80

at

http://cis-

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A. THE PUNISHMENT FITS THE REAL LIKELIHOOD TEST

38.

It is humbly submitted that there exists, in the instant regard, a real likelihood for further

mischief, threatened by an ideological outlaw, elevating the pedestal of debate to irreprehensible

dissent. The requirement that justice should be seen to be done may be regarded as a general
principle which in some cases can be satisfied only by the observance of the rules of natural
justice or as itself forming one of those rules.82That test has been adopted, in preference to a
differently expressed test that has been applied in England, for the reason that it gives due
recognition to the fundamental principle that justice must both be done, and be seen to be done 83.
It is based upon the need for public confidence in the administration of justice. The Court must
look at the impression which other people have.84 The call for a laying down of life,85 for the
caution, is a dangerous precedent and must be provided with the severest punishment. The penal
provisions should be construed in a manner which will suppress the mischief and advance the
object which the legislature had in view.86
B. THE APPROPRIATE PENALTIES PRESCRIBED BY THE STATUTE MUST BE METED OUT.
39.

It is submitted that the words of the statute are simple, to punish for the unlawful critique

of government, which Ms. Bennet and her Mock and Shame the Pseudo-Nationalist Government
campaign have done. Penal Statutes and the punishment clauses therein, must never be construed
so as to narrow the words of the statute to the exclusion of cases which those words would
simply comprehend. Where the thing is brought within the words and within the spirit, there a
penal enactment is to be construed, like any other instrument, according to the fair meaning of
the language used, and the court is not to find or make any doubt or ambiguity, which would
clearly not be found or made in the same language in any other instrument.87
40.

The maxim A Verbis legis non est recedendum means that you must not vary the

words of the statute while interpreting it. No construction is admissible which would sanction a

82

JACKSON, NATURAL JUSTICE 34 (Sweet & Maxwell, 1980).

President of the Republic of South Africa v. South African Rugby Football Union, 1999 (4) SA 147, Justice P.D.
Dinakaran v. Hon'Ble Judges Inquiry Committee, AIR 2011 SC 3711.
84
S. Parthasarthi v. State of A.P. (1974) 3 SCC 459.
85
1, Page 3, STATEMENT OF FACTS, The K.K. Luthra Memorial Moot Court, 2017.
86
State Of Maharashtra v. Natwarlal Damodardas Soni, AIR 1980 SC 593
87
EDGAR, CRAIES ON STATUTE LAW 21 (Sweet & Maxwell, 7th ed. 1971).
83

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fraudulent evasion of an Act.88Generally, ordinary meaning is to be assigned to any word or

phrase used or defined in a statute89. So when a statute dealing with criminal offence impinging
upon the liberty of citizens, a loophole is found, it is not for judges to cure it.90
41.

The Court must, as far as possible, adopt a construction which will carry out the obvious

intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by
the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court
cannot aid the legislature's defective phrasing of an Act, or add and mend, and, by construction,
make up deficiencies which are there.91
C.

THE PUNISHMENT PROVIDED IS A VALID EXERCISE OF DETERRENT EFFECT OF LAW.

It is submitted before the Honble Court that the object of the punishment should be to act

42.

as a deterrent, and sufficient punishment should be imposed in cases which involve the rights of
the masses. The object of the sentence is to protect the society and to deter the criminal, the
social impact of the crime and the effect of the sentence on the social order are relevant
considerations.92 The sentence should be proportionate to the gravity of the offence; it should
reflect the conscience of the society.93 Individual liberty must be subject to social interest to
ensure security of the State. A penal provisions constitutionality needs to be tested on the anvil
of the States responsibility to protect innocent citizens and hence, the rights of the accused and
societal interest need to be balanced.94
D.
43.

THE REFORMATIVE THEORY OF PUNISHMENT IS INAPPLICABLE IN THE INSTANT CASE.

It is herein submitted that the punishment of death, is just and fair in the instant

circumstance. Just punishment is the collective cry of the society.

95

An offender cannot be

allowed to be treated with leniency solely on the ground of discretion vested in a court. In the
presence of lawful means to protest national policy, and the political stature to raise similar
questions in the House of People, Ms. Bennets protest can be regarded to be one to motivate,
88

MAXWELL, ON THE INTERPRETATION OF STATUTES 53 (Butterworth 7th ed., 1969).

Anz Grindlays Bank Limited & Ors. v. Directorate of Enforcement & Ors., (2004) 6 SCC 531.
90
Spicer v. Holt (1976) 3 All ER 71, pp. 78, 79 (HL).
91
Dadi Jagganadhan v. Jammulu Ramulu and Ors., AIR 2001 SC 2699.
92
Union of India v. Kuldeep Singh, (2004) 2 SCC 590.
93
State of M.P. v. Babbu Barkare, (2005) 5 SCC 413.
94
Noor Aga v. State of Punjab, (2008) 16 SCC 417.
95
Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545.
89

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incite and disenfranchise people from legitimized governance. Undue sympathy to impose
inadequate sentence would do more harm to the justice system.
44.

It is, therefore, the duty of every court to award proper sentence having regard to the

nature of the offence and the manner in which it was executed or committed, etc.96 Ms. Bennet
had not espoused any intention to reform, with repeated interactions aimed at decrying the laws
of the land and had voluntary called for sacrifice of lives for her cause, in stark contrast to
repentance or amelioration of social conflict.
E.

THE FOLLOWING IS AN ACTION NOT PROTECTED BY THE RIGHT OF FREE SPEECH

45.

The speech and its subliminal messages in the instant regard can be effectively said to be

a product of effective incitement advocating political reform through violence, an act

frighteningly close of criminal syndicalism. In Brandenburg v. Ohio 97, the Court expressly held
that the protection of the First Amendment does not cover such advocacy is directed to inciting
or producing imminent lawless action and is likely to incite or produce such action. Furthermore,
the intention behind such an action is irrelevant. Ideological tyranny, no matter how worthy its
motivation, is forbidden to appointed judges, as it is to elected legislators.98
F.

THERE EXIST SPECIAL REASONS FOR THE EXECUTION OF THE DEATH SENTENCE

46.

354(3) of the Criminal Procedure Code of India cites the need of special reasons for the

grant of death sentence. Such a proposition is indeed a valid procedural requirement in

democratic nations and the necessitation of special reasons may be complied with in the case of
Ms. Bennet. It is respectfully pleaded that the following are the special reasons for the sentence.
i.

That Ms. Bennet had engaged in a grave and serious offence, wilfully and with full
knowledge of her actions.

ii.

That in addition to the offence of sedition, the accused had further committed to the
means of incitement public hatred, by the means of a vicious conspiracy.

iii.

That the accused disenfranchised of people from political process, by undermining

and shaming the government, thereby afflicting the democratic character of the State.

96

Shailesh Jasvantbhai v. State of Gujarat, (2006) 2 SCC 359.

Brandenburg v. Ohio, 395 US 444.
98
National Socialist Party of America v. Village of Skokie, 432 U.S. 32 (1977).
97

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iv.

That Ms. Bennet had been intentionally espousing values of grave violence upon the
failure of her objectives.

47.

The expression 'special reasons' in the context of this provision obviously means

'exceptional reasons' founded on the exceptionally grave circumstances of the particular case
relating to the crime as well as the criminal.99 The offence mandates that the punishments
therein, proportionate to the nature and gravity of the offences prescribed.100.This is indeed the
spirit of 421-A, and this is why such a law deserves to be implemented effectively.
III.
48.

THAT THE SANCTION GRANTED BY LT. GOVERNOR IS A VALID SANCTION

It is humbly submitted before this Honble Court that there is no need of sanction in

case of an M.P. as he is not a public servant. It has been held in no uncertain terms it that an M.P.
is not a public servant u/ 21 of I.P.C101 and no sanction was necessary to prosecute an M.P.102
A. THE SPEECH

DOES NOT FALL WITHIN

MS. BENNETS

OFFICIAL DUTIES.

ARGUENDO, SANCTION

GRANTED BY LT. GOVERNOR IS A VALID SANCTION

49.

It is submitted that even if it is accepted that an M.P. is a public servant in Camelot, the

offending act must be integrally connected with the discharge of duty and should not be fanciful
or pretended. Not every offence committed by a public servant requires sanction for prosecution,
acts by him, engaged under color of his duty that receives protection from prosecution 103. The
nexus between the discharge of the public duty and the offending act or omission must be
inseparable. But if the public servant commits an act in course of service not in discharge of his
duty then the bar under 197 of the Code is not attracted.104
50.

It is submitted that Lt. Governor is an appropriate authority under 196 of Camelot

procedure Statute. The Lt. Governor is an appropriate authority to grant sanction in the absence
of any specific authority to remove an M.P. from his office. A similar situation of the NCT of
India could be referred here, wherein; the Lt. Governor of NCT Delhi, who continues to be the

99

Rajendra Prasad v. State of U.P., (1979) 3 SCC 646.

Shatrughan Chauhan v. UOI, (2014) 3 SCC 1.
101
R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 193.
102
State of West Bengal v. Shyamadas Banerjee & Ors., 2008 (3) SCC (Cri.) 678.
103
Sirajuddin v. State of Madras, (1970) 1 SCC 595.
104
State of H.P. v. M.P. Gupta, 2004 (2) SCC 349.
100

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WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS

13TH K.K. LUTHRA MEMORIAL MOOT COURT, 2017

Administrator derives his or her authority to grant sanction by virtue of the legislative fiction
created by Clause (h) of 2 read with Article 239 of the Constitution of India.105
PRAYER
The petitioners humbly pray that this Honble Court may be pleased to adjudge and declare that:
1. 421-A of Penal Code of Camelot is Constitutional.
2. The offences under 421-A/351-A/ 210-B of the Penal Code of Camelot have been made
out against Ms. Elizabeth Bennet in the instant case.
3. The death sentence as sought by the Government of Erehwon is an appropriate punishment
for the offence of sedition as made out by the facts of the case.
And pass any other order this Honble Court may deem fit in the interests of justice.
All of which is respectfully submitted and prayed for.
ON BEHALF OF COUNSELS FOR PETITIONERS

105

State (N.C.T. Of Delhi) v. Navjot Sandhu@ Afsan Guru, 2005 (11) SCC 600.
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WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS