BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

BEFORE THE HON’BLE SUPREME COURT OF INDIVA

W/P NO. / 2019

IN THE MATTER OF:

KAMLA MEHTA, LAMNESTY INTERNATIONAL AND RAJU KUMAR

VS.

UNION OF INDIVA

MEMORIAL ON BEHALF OF PETITIONER 1

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

TABLE OF CONTENTS

SERIAL PARTICULARS PAGE NO.

NO.
1 THE TABLE OF ABBREVIATIONS 3
2 THE INDEX OF AUTHORITIES 4
3 THE STATEMENT OF JURISDICTION 5
4 THE STATEMENT OF FACTS 6-7
5 THE STATEMENT OF ISSUES RAISED 8
6 THE SUMMARY OF ARGUMENTS 9
7 THE ARGUMENTS ADVANCED 10-16
8 PRAYER 17

MEMORIAL ON BEHALF OF PETITIONER 2

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

THE TABLE OF ABBREVIATIONS

• AIR : All India Reporter

• SC : Supreme Court
• SCC : Supreme Court Cases
• C.J. : Chief Justice
• C.J.I : Chief Justice of India
• Ors. : Others
• v. : Versus
• SCR : Supreme Court Reporter
• Hon’ble : Honorable
• Art. : Article
• UOI : Union Of India
• PIL : Public Interest Litigation
• HC : High Court
• u/a : Under Article

MEMORIAL ON BEHALF OF PETITIONER 3

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

INDEX OF AUTHORITIES

CASES REFFERED

 Dharma Dutt v. Union Of India

 Kedar Nath v. State of Bihar
 Sanskar Marathe v. State of Maharashtra
 Romesh Thapper v. State of Madras
 Ram Nandan v. State of Uttar Pradesh
 State of Bihar v. Lal Krishna Advani 16
 Maneka Gandhi v. Union of India

BOOKS REFFERED

 MP JAIN, INDIAN CONSTITUTIONAL LAW, (7TH ED. 2014)

 DURGA DAS BASU, INDIAN CONSTITUTIONAL LAW

WEBSITES AND INTERNET SOURCES REFFERED

 http://www.lawcommissionofindia.nic.in/reports/CP-on-Sedition.pdf
 https://scroll.in/articles/859826/Sedition-in-india-only-two-of-112-cases-registered-between-
2014-and-2016-resulted-in-convictions

MEMORIAL ON BEHALF OF PETITIONER 4

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

STATEMENT OF JURISDICTION

THE PETITIONER HAS APPROACHED THE HON’BLE SUPREME COURT BY WAY OF PUBLIC
INTEREST LITIGATION AND DERIVES THIS RIGHT UNDER ARTICLE 32 1 OF THE
CONSTITUTION OF INDIA.2

1
Art. 32: Remedies for enforcement of rights conferred by this part.
2
Constitution of Grand-Line is in pari matria to the laws of India.

MEMORIAL ON BEHALF OF PETITIONER 5

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

STATEMENT OF FACTS

1. Indivia is a small developing country where the freedom of speech and expression is guaranteed
as a fundamental right under the Constitution of Indivia.
2. Bangistan is a neighboring country of Indivia. However, in the last few months there have been
various instances where freedom of speech and expression has come under the scanner in Indivia.
3. Mr. Pappu Yadav filed a criminal complaint u/s 124A IPC against Kamla Mehta, an actor-
politician who is the member of the Indivia National Party, the largest opposition party, for her
comment on social media: “ Minister Mohan Singh said that going to Bangistan is like going to
hell.” People there are just like us and there is no difference. They treated us very well.
4. On the receipt of the complaint, summons was issued against Kamla Mehta. Being aggrieved by
these summons challenged the constitutionality of Section 124A of the Indivia Penal Code stating
it to be violative of Article 19(1)(a) of the Constitution of Indivia.
5. Lamnesty International, an NGO, conducted a campaign named “ Broken Families of Vienna”
(Vienna being a state of Indivia) where they talked about the human rights violations by Indivia
Army on the people of Indivia and invited the victims of these violations to speak.
6. During the debate the Indivia People Party (IPP, which is the ruling party) was heavily criticized
for its inaction. Moreover at the end of the program the debate got heated and there were heard
some anti-Indivia slogans.
7. Democratic Students Union (DSU) held protests on the hanging of Faizal Khan convicted of
terror attacks on the parliament of Indivia on the campus of Murli Sarkar University, for which
the permission was refused by the university. Anti Indivia slogans and slogans to overthrow the
government were raised in the event.
8. A complaint was filed against Raju Kumar the President of the DSU for the charges of Sedition.
The disciplinary committee of the university investigated the matter to find that the slogans were
raised by a group of outsiders wearing masks.
9. All Indivia Student Organization, a student body associated with Indivia Peoples Party (IPP) was
responsible for filing the complaint against Lamnesty International and Raju Kumar u/s 124A
IPC.
10. National Crime Record Bureau in its report stated that in 2014 as many as 47 cases of sedition
were filed leading to the arrest of 58 people and there has been an alarming increase in the cases
in 2015. In 2016 as many as 21 cases have been filed.

MEMORIAL ON BEHALF OF PETITIONER 6

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

11. Kamla Mehta, Lamnesty International and Raju Kumar filed a PIL challenging the validity of
Section 124A as being violative of Article 19(1)(a) and Article 21 of the Constitution of Indivia.

MEMORIAL ON BEHALF OF PETITIONER 7

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

THE STATEMENT OF ISSUES RAISED

1. WHETHER SECTION 124A OF IPC INFRINGES THE FUNDAMENTAL RIGHT OF

FREEDOM OF SPEECH AND EXPRESSION ENSHRINED UNDER ARTICLE 19(1)(a)
OF THE CONSTITUTION?

2. WHETHER SECTION 124A OF IPC INFRINGES THE FUNDAMENTAL RIGHT TO

LIFE AND LIBERTY ENSHRINED UNDER ARTICLE 21 OF THE CONSTITUTION?

MEMORIAL ON BEHALF OF PETITIONER 8

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

THE SUMMARY OF ARGUMENTS

1. WHETHER SECTION 124A OF IPC INFRINGES THE FUNDAMENTAL RIGHT OF

FREEDOM OF SPEECH AND EXPRESSION ENSHRINED UNDER ARTICLE 19(1)(a) OF
THE CONSTITUTION?
Section 124A IPC violates the fundamental right as guaranteed u/a 19(1) (a) of the Constitution of
Indivia. The basic right provided by the impugned article is infringed by the words used in sec
124A. The statute when read as a whole ignores the basic element of any criminal offence, i.e.,
mens rea.
Also, the essential of democracy (by the people, of the people, for the people) being free
discussion and debate for the measures of the government steps is curtailed by this impugned
section. Hence, this is violative of freedom of speech and expression.

2. WHETHER SECTION 124A OF IPC INFRINGES THE FUNDAMENTAL RIGHT TO LIFE

AND LIBERTY ENSHRINED UNDER ARTICLE 21 OF THE CONSTITUTION?

Section 124A IPC violates article 21 as it curtails the right to life with liberty and dignity
imprisonment of a lot of citizens only on the basis accusation levied and later if they are acquitted, their
dignity in the society is lost. It is therefore curtailing the right guaranteed under article 21 of the
Constitution.

MEMORIAL ON BEHALF OF PETITIONER 9

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

THE ARGUMENTS ADVANCED

1. WHETHER SECTION 124A OF IPC INFRINGES THE FUNDAMENTAL RIGHT OF

FREEDOM OF SPEECH AND EXPRESSION ENSHRINED UNDER ARTICLE 19(1) (a) OF
THE CONSTITUTION?

It is humbly submitted before the Hon’ble Bench that section 124A of IPC infringes the Fundamental Right
of speech and expression enshrined u/a 19(1)(a) of the Constitution of Indivia.

Sec. 124A IPC states that:

Whoever, by words, either spoken or written, or by signs, or visible representation, or otherwise, brings or
attempts to bring into hatred or contempt, or excites disaffection towards, [***] the government established
by law in [India], [***] shall be punished with [imprisonment for life], to which fine may be added, or with
imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1: The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2: Comments expressing disapprobation of the measures of the Government with the view to
obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section.

 Speech and Expression is not merely a right, it is the right to Freedom of Speech and
Expression.

It was held in the case of:

 Dharma Dutt v. Union Of India3

Out of several rights enumerated in clause (1) of Article 19, the right in sub-clause (a) is not merely a right
of speech and expression but a right to freedom of speech and expression. The enumeration of other rights
is not by reference to freedom.

MEMORIAL ON BEHALF OF PETITIONER 10

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

It is most humbly submitted before this bench that Right of Freedom of Speech and Expression is being
violated by the impugned section. The section itself is vague. The said legislation is misapplied and there
is being wide abuse of law under the cover of this impugned section.

 The sedition law is becoming a tool of harassment.

While the provision of sedition can only be applied under extraordinary circumstances, accompanied by
sanctions from relevant authorities, practically it has become a tool of harassment.

It was observed in the case of:

 Kedar Nath v. State of Bihar4

“Comments” however strongly worked expressing disapprobation of action of Government, without

exercising those feelings which generate the inclination to cause public disorder by acts of violence, would
not be penal. In other words, disloyalty to government established by law is not the same thing as
commenting in strong terms upon the measures or acts of government or its agencies so as to ameliorate
the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful
means, that is to say, without exciting those feeling of enmity or disloyalty which imply excitement to
public disorder or the use of violence.”

 Difference between hate speech and sedition:

The 267th Report of the Commission on ― Hate Speech,(2017), distinguished between ‘sedition‘ and ‘hate
speech‘, providing that the offence of hate speech affects the State indirectly by disturbing public
tranquility, while the sedition is directly an offence against the State. The Report adds, that to qualify as
sedition, the impugned expression must threaten the sovereignty and integrity of India and the security of
the State.

In the present matter at hand, the petitioner Kamla Mehta, while giving her comment stated that People
there are just like us and there is no difference. They treated as well.

Being an actor-politician, the petitioner was trying to maintain harmonious relationship with the
neighboring country Bangistan. It is rightly known to all that these public figures have influential value on
the public- at- large. The intention behind the comment was not to create the feeling of hatred or disaffection
towards Indivia as it was just a praise for that particular country and nothing mentioned in the comment

MEMORIAL ON BEHALF OF PETITIONER 11

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

was exciting hatred towards Indivia. Moreover, to constitute any offence mens rea is an important aspect
which is not present in the said comment in the present matter.

It was held in the case of

 Romesh Thapper v. State of Madras5

It was rightly observed by Shastri J. Freedom of Speech and Expression and of press lay at the foundation
of all democratic organization, for without free political discussion, no public education, so essential for
the proper functioning of the process of Government, is possible.

The petitioner, Lamnesty International is an NGO working on the human rights of the people. The
organization organized a debate which is totally legal. As the facts is clear on the part that the citizens of
Vienna were already the victims of violation of human rights, the debate was not the point of extended
heated up arguments and rage in the particular state.

It was held in case of:

 Sanskar Marathe v. State of Maharashtra6

A citizen has a right to say or write whatever he likes about the government or its measures, by way of
criticism or comments, so long as he does not incite people to violence against the government established
by law or with the intention of creating public disorder.

In the impugned case, petitioner Lamnesty International did not intended or provoke people to create
violence against the government.

The petitioner Raju Kumar also, did not incite people to violence. The facts are very clear on this part,
where it was in the reports of the disciplinary committee that the slogans were raised by a group of outsiders
wearing masks. The case filed against Raju Kumar is also politicized. It is very obvious that the AISO, who
filed the complaint was associated with the IPP which is the ruling party. Raju Kumar being in a position
which is not secured by any member of the ruling party, is a victim of the game plan and politics. Hence,
there is abuse of law.

In the case of

5
6

MEMORIAL ON BEHALF OF PETITIONER 12

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

 Ram Nandan v. State of Uttar Pradesh7

66 the Court quoted Pt. Jawaharlal Nehru, who while introducing the first Constitution of India
(Amendment) Bill 1951, referred to sedition and stated: Now so far as I am concerned that particular
section is highly objectionable and obnoxious and it should have no place both for practical and historical
reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better. We might
deal with that matter in other ways, in more limited ways, as every other country does but that particular
thing, as it is, should have no place, because all of us have had enough experience of it in a variety of ways
and apart from the logic of the situation, our urges are against it.

The counsel on behalf of petitioner humbly submits that section 124 A IPC is violating the freedom of
speech and expression enumerated under article and hence is ultra vires and unconstitutional.

MEMORIAL ON BEHALF OF PETITIONER 13

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

2. WHETHER SECTION 124A OF IPC INFRINGES THE FUNDAMENTAL RIGHT TO LIFE

AND LIBERTY ENSHRINED UNDER ARTICLE 21 OF THE CONSTITUTION?

It was said by Pope John Paul II:

“When freedom does not have a purpose, when it does not wish to know anything about the rule of law
engraved in the hearts of men and women, when it does not listen to the voice of conscience, it turns against
humanity and society.”

In the present matter at hand, it is humbly submitted that section 124A IPC is violative of Right to life and
liberty. The facts of the case states a Report by National Crime Records Bureau stated that in 2014 as many
as 47 cases of sedition were filed leading to arrest of 58 people and there has been alarming increase in the
cases in 2015. In 2016, as many as 21 cases have been filed.

However, the report is silent on the part of convictions. The counsel on behalf of petitioner would like to
draw the attention of the bench on an article8

“The primary reason for the abysmally low conviction rate for sedition cases is that the law is misapplied,”

One must understand that only an act of violence committed to overthrow the government qualifies as a
case of sedition,” said senior advocate Prashant Bhushan. “But these days we get to see people getting
charged with sedition for comments on social media and even celebrations after cricket matches. Such
cases, which are pursued more as a tool of harassment, finally stand weak in the court of law and so the
conviction rate is abysmally low.”

In the present case, the liberty of the petitioners is violated by charging them under 124A IPC. The
petitioners are dignified citizens of the country and by accusing them, their dignity was stained black. A
social stigma is created by such accusations. It is very evident through a lot of examples like those of
Rohtak Sisters. Once a person is accused or is charged with certain offence, it becomes really difficult for
them to survive peacefully with dignity in the society. All the three petitioners are socially active members
of the country and have good social standing.

In the case of:

 Maneka Gandhi v. Union of India9

8
9
AIR 1978 SC 597: (1978) 1 SCC 836

MEMORIAL ON BEHALF OF PETITIONER 14

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

The court has reinterpreted Art.21 and practically overruled Gopalan case which can be regarded highly
creative judicial pronouncement on the part of Supreme Court. Since Maneka Gandhi case Supreme
Court has given Art. 21, broader and broader interpretation so as to imply many- more fundamental
rights. In course of time, Art.21 has proved to be very fruitful source of rights of the people. The
expression personal liberty in Art. 21 were given an expansive interpretation. The court emphasized
that the expression personal liberty is of wide stamp-litude covering a variety of rights which go to
constitute the personal liberty of man. Thus Article 21 in its widest sense included the right to
reputation.

In the case of

 State of Bihar v. Lal Krishna Advani 1610

It has been stated that “Right to reputation is a facet of the right to life of a citizen under article 21.

According to the report of the Law Commission11

The 42nd report (1971) titled “Indian Penal Code”, the commission made three crucial suggestions to be
incorporated in section 124A IPC. They were:

1. Incorporation of mens rea.

2. The scope of the section be widened. , incorporating Constitution of India, Legislatures and the
administration of justice (Judiciary), along with the executive government, against whom
disaffection would not be tolerated, and,
3. Bridging the odd gap between imprisonment of life and imprisonment which may extend to three
years, or fine, by fixing a maximum punishment for sedition at seven years rigorous imprisonment
and fine.

In the present case at hand, the right of live with dignity of all the petitioners in is question and section
124A IPC is violating that right, hence it is unconstitutional. The basic motive behind the drafting of the
legislation was to control the activities but that is now being used a tool to harass citizens by curbing their
right u/a 124A IPC. Also, accusing citizens under such a law will also defeat the motive of democracy.

10
11
Law Commission Report on Sedition

MEMORIAL ON BEHALF OF PETITIONER 15

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

The petitioners hereby submits in the words of M.P. Jain,

Democracy is based essentially on free debates and open discussion for that is the only corrective steps in
the democratic setup.

Also, right to live with dignity is basic human right as K. Iyer J. rightly mentioned “the spirit of a manis at
the root of Art. 21”, “personal liberty makes for the worth of the human person.”

MEMORIAL ON BEHALF OF PETITIONER 16

 BALAJI LAW COLLEGE, 1ST INTERNAL MOOT COURT, 2019

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is humbly
requested that this Hon’ble Court may be pleased to adjudge and declare:

1. Allow the present petition.

2. Section 124A of IPC ultra vires and unconstitutional.

And pass any such order, writ or direction as this Honorable Court deems fit and proper in the present
case and for this act of kindness, the respondents shall be duty bound and always pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

SD/-

COUNSEL FOR THE PETITIONERS

MEMORIAL ON BEHALF OF PETITIONER 17