R-17

IN THE HIGH COURT OF DILI

PETITION NO. ****/2018

IN THE CASE

CONCERNING

Krishna Kumar………………..PETITIONER

V.

State of Dili……………….RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ II

LIST OF ABBREVIATIONS ....................................................................................................... IV

LIST OF AUTHORITIES............................................................................................................. VI

STATEMENT OF JURISDICTION.......................................................................................... VIII

STATEMENT OF FACTS ........................................................................................................... IX

ISSUES RAISED .......................................................................................................................... XI

SUMMARY OF ARGUMENTS ................................................................................................. XII

ARGUMENTS ADVANCED ........................................................................................................ 1

1. THE PETITION FOR QUASHING OF FIR IS NOT MAINTAINABLE IN THE COURT

OF LAW ...................................................................................................................................... 1

1.1. THAT THE HIGH COURT DOES NOT POSSESS ORIGINAL JURISDICTION
TO HEAR THE MATTER ...................................................................................................... 1

1.2. THAT THE MATTER IS STILL UNDER INVESTIGATION .................................. 2

1.3. THAT THE ESSENTIALS LAID DOWN IN SEC. 482 OF CR.P.C. ARE NOT
BEING FULFILLED ............................................................................................................... 3

1.4. THAT THERE IS THE PRESENCE OF AN EFFECTIVE ALTERNATIVE

REMEDY FOR THE MATTER ............................................................................................. 4

1.5. THAT THE JURISDICTION OF THE HIGH COURT IS DISCRETIONARY ........ 5

2. THE SPEECH DELIVERED BY KRISHNA KUMAR WAS SEDITIOUS IN NATURE 6

2.1. THAT THERE WAS AN INTENTION TO INCITE HATRED OR DISAFFECTION

TOWARDS THE GOVERNMENT ESTABLISHED BY LAW ........................................... 7

2.2. THAT IT RESULTED IN DISTURBING THE PUBLIC ORDER OF DILI ............. 8

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3. THERE WERE DEFAMATORY CONTENTS IN THE SPEECH OF KRISHNA

KUMAR ...................................................................................................................................... 8

3.1. THAT IT FULFILLS THE ESSENTIALS OF DEFAMATION ................................. 9

3.2. THAT IT IS VIOLATIVE OF THE RIGHT TO LIFE .............................................. 10

3.3. THAT THERE NEEDS TO BE REASONABLE RESTRICTIONS ON THE

FREEDOM OF SPEECH AND EXPRESSION ................................................................... 11

3.4. THAT IT DOES NOT COME UNDER THE AMBIT OF THE EXCEPTIONS
MENTIONED ....................................................................................................................... 12

PRAYER ....................................................................................................................................... 13

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LIST OF ABBREVIATIONS
¶ Paragraph

AIR All India Reporter

Anr. Another

Art. Article

BJP Bhoomi Jai Party

BLJR Bihar Law Journals Report

Cr.P.C. Code of Criminal Procedure

CriLJ Criminal Law Journal

FIR First Information Report

HC High Court

Hon’ble Honourable

ILI Indian Law Impetus

IPC Indian Penal Code

ISP Indian Secular Party

JNU Justice National University

MCRC Miscellaneous Criminal Cases

Ors. Others

RCR Recent Criminal Reports

Sec. Section

SC Supreme Court

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SCC Supreme Court Cases

Supp. Supplementary

TMI Tax Management India

V. Versus

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LIST OF AUTHORITIES

A. Cases
1. Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj and Ors. v. The State of
Gujarat and Ors ................................................................................................................. 11
2. Charu Khurana and Ors. v. Union of India and Ors ......................................................... 10
3. D.C. Saxena (Dr.) v. Hon'ble The Chief Justice of India.................................................. 11
4. Jagdish Valecha v. The State of Madhya Pradesh .............................................................. 5
5. Kedar Nath Singh v. State of Bihar ................................................................................ 7, 8
6. Kurukshetra University and Anr. v. State of Haryana and Ors. ......................................... 1
7. Madhu Limaye v. State of Maharashtra .............................................................................. 4
8. Md. Kalam v. State of Rajasthan ........................................................................................ 2
9. Narender G. Goel v. State of Maharashtra .......................................................................... 2
10. Parbatbhai Aahir & Ors. V.. State of Gujarat & Anr. ......................................................... 3
11. R.P. Kapur v. State of Punjab ............................................................................................. 5
12. Simon and Ors. v. State of Karnataka ................................................................................. 2
13. Sri. Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of
A.P. and Ors. ....................................................................................................................... 2
14. State of Bihar and Anr. v. K.J.D. Singh .............................................................................. 3
15. State of Karnataka v. Muniswami ....................................................................................... 3
16. State of Punjab v. Davinder Pal Singh Bhullar and Ors. .................................................... 1
17. State of West Bengal and Ors. v. Sujit Kumar Rana .......................................................... 1
18. Subramaniam Swamy v. Union of India ............................................................................. 9
19. The State of Punjab And Ors. v. Subhash Trading Company And Ors. ............................. 2
20. Union of India and Anr. v. W.N. Chadha ........................................................................... 2

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B. Statutes
1. Section 124A, Indian Penal Code ................................................................................... 6, 7
2. Section 482, Code of Criminal Procedure ...................................................... 1, 2, 3, 4, 5, 6

C. Constitutional Provisions
1. Right to Freedom of speech and expression ..................................................................... 11
2. Right to Life ...................................................................................................................... 10

D. Other Authorities
1. Batuk Lal, Commentary on the Code of Criminal Procedure (Thomas Reuters, 2016). .... 3
2. Ratanlal & Dhirajlal, The Indian Penal Code (LexisNexis, 2018). .................................. 12
3. Singh & Associates, Overview of Sec. 482 of Cr.P.C. (2018) ........................................... 5

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STATEMENT OF JURISDICTION
The respondents have appeared before the Hon‘ble High Court of Dili in response to the petition
filed by the petitioner for the quashing of FIR under Sec. 482 of the Code of Criminal Procedure.
The respondent humbly submits to the jurisdiction of this Hon‘ble Court. The present
memorandum sets forth the facts, contentions and arguments for the respondent in the present
case.

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STATEMENT OF FACTS

Background

Chanakya is a multilingual state, rich in cultural diversity. Being a democratic nation, which was
under Butish Raj previously, it has adopted a Constitution with secularism and socialism
engraved in it, and which aims to promote Justice, Equality, Fraternity, Unity and Integrity
among its diverse population. It grants fundamental rights, which comes with certain reasonable
restrictions. There are two major religions i.e. Sanatan and Mahmud, where Mahmuds are in
minority. Bhoomi Jai Party (BJP) is in power in the nation of Chanakya, which is a Sanatan
dominated state.

Law on beef ban

The practice of cow slaughter is strictly prohibited by the dominant Sanatan dharma, but
included in the practices of the Mahmuds. The State of Uttam Pradesh had passed a law on beef
ban i.e. Consumption of Beef (Prohibition) Act, 2018. After many criticisms, the bill on beef ban
was also passed in Lok Sabha, but it is yet to be passed in Rajya Sabha.

Justice National University

The Justice National University (JNU), a university in the capital of Chanakya i.e. Dili, is
majorly funded by the Central Government. The student body of JNU is very active towards the
political scenario and continues to affect the socio-political environment of the nation to a very
large extent. Krishna Kumar is the president of students‘ Union of JNU, with an influencing
personality and was an aspiring political leader. He has links with prime faces of Opposition
Party i.e. Indian Secular Party (ISP).

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Krishna Kumar‘s speech

Krishna Kumar called a gathering outside the university campus to protest in order to pressurise
the government to put a stay on laws like the beef ban. He believes that the ruling government
are ―bestial devotees of religion in power‖ who are trying to outrage the modesty of the
Constitution by making such laws. His speech criticised the beef law and criticised the
government for making such laws. He even made some disaffectionate comments towards the
Prime Minister.

Public disorder in Dili

The speech delivered by Krishna Kumar created a public disorder, with a sudden outburst of
hatred and disaffection towards the government. There were anti-national slogans emerging from
the crowd like ―CHANAKYA TERE TUKDE HONGE, MILKAR RAHEGI AZAADI‖. The
slogans were recited again and again by the crowd that resulted in disturbing the public order of
Dili.

Dispute

The situation was subsequently controlled by the police, and an FIR was lodged against Krishna
Kumar for sedition and defamation, and he was arrested. He went to the High Court under Sec.
482 of the Cr.P.C. for quashing of FIR on the grounds that he was merely exercising his
Fundamental Right of freedom of speech and expression

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ISSUES RAISED

-I-

The petition for quashing of the FIR is not maintainable in the Dili HC

-II-

The speech delivered by Krishna Kumar was seditious in nature

-III-

There were grounds of defamation under Sec. 499 of the IPC, 1860

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SUMMARY OF ARGUMENTS
I. WHETHER THE PETITION FOR QUASHING OF FIR IS MAINTAINABLE IN THE
DILI HC OR NOT

It is humbly submitted before the Hon‘ble High Court of Dili that the petition for quashing of
FIR by the petitioner Krishna Kumar is not maintainable in this court of law as: (1) the high
court does not possess original jurisdiction to hear the matter; (2) the matter is still under
investigation; (3) the essentials laid down under the Sec. are not being fulfilled; (4) there is the
presence of an effective alternative remedy and (5) the jurisdiction of the high court is
discretionary.

II. WHETHER THE SPEECH DELIVERED BY KRISHNA KUMAR IS SEDITIOUS

It is submitted before the Court that the speech delivered by Krishna Kumar was seditious in
nature as it aimed to incite hatred or disaffection towards the Government established by law. In
the process, the petitioner made certain remarks on the head of the government, that were meant
to undermine the authority of the Government in power.

III. WHETHER THE SPEECH DELIVERED BY KRISHNA KUMAR HAD

DEFAMATORY CONTENTS

It is humbly submitted before the Hon‘ble High Court that the speech delivered by Krishna
Kumar had defamatory contents against the head of the government i.e. the Prime Minister. The
speech was meant to harm the reputation of the Prime Minister, as well as to undermine the
authority of the Government established by the law.

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ARGUMENTS ADVANCED

1. THE PETITION FOR QUASHING OF FIR IS NOT

MAINTAINABLE IN THE COURT OF LAW

It is humbly submitted before the Hon‘ble Court that the instant matter is not maintainable in the
court of law under the jurisdiction of Sec. 482 of the Code of Criminal Procedure, as: (1) the
high court does not possess original jurisdiction to hear the matter; (2) the matter is still under
investigation; (3) the essentials laid down under the Sec. are not being fulfilled; (4) there is the
presence of an effective alternative remedy and (5) the jurisdiction of the high court is
discretionary.

1.1. THAT THE HIGH COURT DOES NOT POSSESS ORIGINAL

JURISDICTION TO HEAR THE MATTER

The inherent power of the High Court can be exercised under Sec. 482 of Cr.P.C. only in respect
of a proceeding pending before an inferior criminal Court. It can be inferred that it is the duty of
the petitioner to approach the lower courts first, rather than just approaching the High Court.
This particular principle has been held in cases like Kurukshetra University and Anr. v. State of
Haryana and Ors.1; State of West Bengal and Ors. v. Sujit Kumar Rana2 and State of Punjab v.
Davinder Pal Singh Bhullar and Ors.3

1
Kurukshetra University vs Anr. V. State of Haryana and Ors. (1977) 4 SCC 451.
2
State of West Bengal and Ors. V. Sujit Kumar Rana (2011) 14 SCC 770.
3
State of Punjab v. Davinder Pal Singh Bhullar and Ors. (2004) 4 SCC 159.

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In the instant case, the maintainability of the petition for quashing of the FIR cannot be proved as
the high court does not possess the original jurisdiction for hearing this case. Hence, the case
should be directed to the lower court.

1.2. THAT THE MATTER IS STILL UNDER INVESTIGATION

Any constitutional court cannot quash a FIR or any such criminal proceedings when it is in the
order of investigation. In the case of The State of Punjab And Ors. v. Subhash Trading Company
And Ors.4, the SC held that the High Court acted more as an investigating agency at a stage when
the FIR was under investigation. So, the quashing of FIR by entering into the factual arena was
held wholly impermissible.

This may be in tune with the law laid down by the Apex Court in Union of India and Anr. v.
W.N. Chadha5; Narender G. Goel v. State of Maharashtra6; Simon and Ors. v. State of
Karnataka7; Md. Kalam v. State of Rajasthan8 etc, where it has been held that the accused have
no right to interfere with the investigation by the police and in Sri. Bhagwan Samardha Sreepada
Vallabha Venkata Vishwandadha Maharaj v. State of A.P. and Ors.9., where it has been held that
the accused have no right to question further investigation conducted under Sec. 173 (8) Cr.P.C.
Thus, until the matter reaches the Court and a stage has reached when it could be said that
the case is pending before the Court, there cannot be any abuse of the process of Court or a right
to challenge the FIR under Sec. 482 of Cr.P.C..

In the instant case, the investigation is not complete as the conditions of the offences of sedition
and defamation need to be verified. Hence, the quashing of FIR cannot be allowed as the
investigation is still in process.

4
The State of Punjab And Ors. v. Subhash Trading Company And Ors.(1976) 1 SCC 278.
5
Union of India and Anr. v. W. N. Chadha, 1993 CriLJ 859.
6
Narender G. Goel v. State of Maharashtra (2009) 2 SCC (Cri.) 933.
7
Simon and Ors. v. State of Karnataka (2004) 2 SCC 694.
8
Md. Kalam v. State of Rajasthan (2008) 2 RCR (Criminal) 631.
9
Sri. Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of A.P. and Ors., 1999 (7)
TMI 688.

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1.3. THAT THE ESSENTIALS LAID DOWN IN SEC. 482 OF CR.P.C.

ARE NOT BEING FULFILLED

The quashing of this particular FIR is not in line with the existing provisions of the Cr.P.C.. In
the case of State of Karnataka v. Muniswami10, the Hon‘ble Supreme Court held that the Sec.
482 of Cr.P.C. envisages three circumstances in which the inherent jurisdiction may be
exercised, namely, ―to give effect to an order under Cr.P.C., to prevent abuse of the process of
the court, and to secure the ends of justice‖.11

In the exercise of its wholesome power, the High Court is entitled to quash a proceeding if it
comes to the conclusion that allowing the proceeding to continue would be an abuse of the
process of the Court or that the ends of justice require that the proceeding ought to be quashed.
The SC also affirmed this principle in the case of Parbatbhai Aahir & Ors. V.. State of Gujarat
& Anr.12

In State of Bihar and Anr. v. K.J.D. Singh13, the Hon‘ble Supreme Court had a question whether
the Criminal Proceedings can be quashed even before the commencement of the Trial. The SC
went ahead and held that the inherent power under Sec. 482 has to be exercised for the ends of
the justice and should not be arbitrarily exercised to cut short the normal process of a criminal
trial.

However, in this particular case, Krishna Kumar is only taking the defense of freedom of speech
and expression. It can be seen that none of these circumstances are being fulfilled as the
situations of Krishna Kumar is completely different from the conditions laid down in this
particular Sec. i.e. there is neither any order of Cr.P.C. nor is there any abuse of the court or even
an attempt to secure the ends of justice.

Hence, the petition for quashing of FIR is not maintainable in the court of law as the High Court
is in no position to exercise its inherent jurisdiction.

10
State of Karnataka v. Muniswami, 1977 AIR 1489.
11
2 BATUK LAL, COMMENTARY ON THE CODE OF CRIMINAL PROCEDURE (Thomas Reuters, 2016).
12
Parbatbhai Aahir & Ors v. State of Gujarat & Anr. (2017) 9 SCC 641.
13
State of Bihar and Anr. v. K.J.D. Singh (1993) 41 BLJR 1401.

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1.4. THAT THERE IS THE PRESENCE OF AN EFFECTIVE

ALTERNATIVE REMEDY FOR THE MATTER

(a) There is the presence of specific provisions to redress the

grievances

The following principles govern the exercise of inherent jurisdiction of the HC:

(a) that power is not to be resorted to, if there is specific provision in code for redress of
grievances of aggrieved party;

(b) that it should be exercised sparingly to prevent abuse of process of any Court or otherwise to
secure ends of justice;

(c) that it should not be exercised against the express bar of the law engrafted in any other
provision.14

This principle has been laid down by the Supreme Court in the case of Madhu Limaye v. State of
Maharashtra15. In the instant case, the petitioner can seek redressal through other provisions of
the law, rather than resorting to the provisions of Sec. 482 of Cr.P.C..

Hence, with the presence of specific provisions that can handle and redress the grievances of the
petitioner, the petition for the quashing of the FIR cannot be maintainable in the court of law.

(b) Other remedies can be sought under the common law

It is well settled that the inherent powers under Sec. 482 can be exercised only when no other
remedy is available to the litigant and not where a specific remedy is provided by the statute.

14
Singh & Associates, Overview of Sec. 482 of Cr.P.C., 11 ILI 21-23 (2018)
15
Madhu Limaye v. State of Maharashtra, 1978 AIR 47.

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In the case of R.P. Kapur v. State of Punjab16, Hon‘ble Supreme Court went on to limit the
powers of the Hon‘ble High Court within the ambit of the Cr.P.C. It held that the inherent
powers of the High Court cannot be invoked in regard to matters which are directly covered
by specific provisions in the Cr.P.C.

If an effective alternative remedy is available, the High Court will not exercise its powers under
this section, especially when the applicant may not have availed of that remedy17. Hence, since
Sec. 499 of the Cr.P.C. deals with defamation and Sec. 196 of Cr.P.C. with sedition, the
petitioner needs to specifically look for remedies under the same.

1.5. THAT THE JURISDICTION OF THE HIGH COURT IS

DISCRETIONARY

In the case of Jagdish Valecha v. The State of Madhya Pradesh18, the court held that even though
the High Court has inherent power and its scope is very wide, it is a rule of practice that it will
only be exercised in exceptional cases. Sec. 482 is a sort of reminder to the High Courts that they
are not merely courts of law, but also courts of justice and possess inherent powers to remove
injustice.

The inherent power of the High Court is an inalienable attribute of the position it holds with
respect to the courts subordinate to it. These powers are partly administrative and partly judicial.
They are necessarily judicial when they are exercisable with respect to a judicial order and for
securing the ends of justice.

16
R.P. Kapur v. State of Punjab, 1960 AIR 862.
17
Singh & Associates, Overview of Sec. 482 of Cr.P.C., 11 ILI 23 (2018)
18
Jagdish Valecha v. The State of Madhya Pradesh (2016) 1 MCRC 4782.

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The jurisdiction under Sec. 482 is discretionary; therefore the High Court may refuse to exercise
the discretion if a party has not approached it with clean hands. This principle has also been
stated by the Allahabad HC.19

However, in the instant case, it had been alleged that the petitioner was involved in criminal
offences like sedition and defamation, which in themselves are unlawful offences and therefore,
the ―clean hands‖ principle does not stand.

2. THE SPEECH DELIVERED BY KRISHNA KUMAR WAS

SEDITIOUS IN NATURE

It is humbly submitted before the Hon‘ble Court that the speech delivered by Krishna Kumar
was seditious in nature, and therefore, he is liable for sedition under Sec. 124A of the Indian
Penal Code. According to Sec. 124A of the Indian Penal Code, sedition is defined as follows –
―Whoever, by words, either spoken or written, or by signs, or by visible representation, or
otherwise, brings into hatred or contempt, or excited or attempts to excite disaffection towards
the government.‖20

Explanation 1 – The expression ―disaffection‖ includes disloyalty and all feelings of enmity.

Explanation 2 – Comments expressing disapprobation of the measures of the attempting to excite

hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3 – Comments expressing disapprobation of the administrative or other action of the

Government without exciting or attempting to excite hatred, contempt or disaffection, do not
constitute an offence under this section.‖

19
Singh & Associates, Overview of Sec. 482 of Cr.P.C., 11 ILI 22 (2018)
20
35 RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE (LexisNexis, 2018).

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In the landmark case of Kedar Nath Singh v. State of Bihar21, the Supreme Court laid down the
various constituents of sedition, which included two main contentions –

(i) the acts complained of must be intended to have the ―effect of subverting the Government‖ by
violent means; and

(ii) the acts complained of must be intended, or have a tendency, to create disorder or disturbance
of public peace/ law and order by resort to violence and must incite violence.

2.1. THAT THERE WAS AN INTENTION TO INCITE HATRED OR

DISAFFECTION TOWARDS THE GOVERNMENT ESTABLISHED
BY LAW

In its analysis of Sec. 124A, the Supreme Court first noted that the words ―Government
established by law" were not a reference to ―the person's for the time being engaged in carrying
on the administration" but referred to the Government as the visible symbol of the State. The SC
clarified that the crime of sedition was a crime against the State and was intended to protect the
very existence of the State. 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 of the stability of the State‖.

It can be said that, in the present case, Krishna Kumar‘s speech was aimed towards the Prime
Minister, who was also represented as the head of the state, and therefore, it was an attempt to
incite disloyalty or feelings of enmity towards the visible symbols of the State. Hence, it can be
established that he fulfills one of the essentials of sedition under Sec. 124A of IPC.

21
Kedar Nath Singh v. State of Bihar, 1962 AIR 955.

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2.2. THAT IT RESULTED IN DISTURBING THE PUBLIC ORDER OF

DILI

The case of Kedar Nath Singh v. State of Bihar also held ―incitement to violence or the tendency
or the intention to create public disorder‖ as an essential ingredient of the offence of sedition.
The Supreme Court justified this stand by pointing out that the crime of sedition was a crime
against ―the security of the State, which depends upon the maintenance of law and order‖.

In the instant case, the speech of Krishna Kumar led to a ―sudden outburst in the crowd with
hatred and disaffection towards the government‖, with slogans like ―CHANAKYA TERE
22
TUKDE HONGE, MILKAR RAHEGI AZAADI‖. The speech resulted in disturbing the
―public order‖ of Dili. Hence, it can be said that the speech led to an incitement of violence in
the crowd, and therefore, it fulfills the essentials of sedition.

3. THERE WERE DEFAMATORY CONTENTS IN THE

SPEECH OF KRISHNA KUMAR

It is humbly submitted before the Hon‘ble Court that the speech on Krishna Kumar contained
defamatory contents, or there were grounds of defamation under Sec. 499 of the Indian Penal
Code, 1860.

According to section 499 of IPC, whoever, by words either spoken or intended to be read, or by
signs or by visible representations, makes or publishes any imputation concerning any person
intending to harm, or knowing or having reason to believe that such imputation will harm, the
reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

22
¶ 7, Moot Proposition.

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In the landmark case of Subramaniam Swamy v. Union of India23, the petitioners questioned the
constitutional validity of the laws of defamation, but the Supreme Court emphasized on the
importance of the concepts of constitutional fraternity and fundamental duty, under which every
citizen is expected to respect the dignity of the other. Noting that this is a constitutional duty, the
Court held that it could not conclude that the existence of criminal defamation is obnoxious to
freedom of speech and expression.

3.1. THAT IT FULFILLS THE ESSENTIALS OF DEFAMATION

Defamation, under Sec. 499 of the IPC, is defined as follows – ―Whoever, by words either
spoken or intended to be read, or by signs or by visible representations, makes or publishes any
imputation concerning any person intending to harm, or knowing or having reason to believe that
such imputation will harm, the reputation of such person, is said, except in the cases hereinafter
expected, to defame that person.‖24

Explanation 1.— It may amount to defamation to impute anything to a deceased person, if the
imputation would harm the reputation of that person if living, and is intended to be hurtful to the
feelings of his family or other near relatives.

Explanation 2.— It may amount to defamation to make an imputation concerning a company or

an association or collection of persons as such.

Explanation 3.— An imputation in the form of an alternative or expressed ironically, may

amount to defamation.

Explanation 4.— No imputation is said to harm a person‘s reputation, unless that imputation
directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that
person, or lowers the character of that person in respect of his caste or of his calling, or lowers

23
Subramaniam Swamy v. Union of India (2016) 7 SCC 221.
24
35 RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE (LexisNexis, 2018).

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the credit of that person, or causes it to be believed that the body of that person is in a loathsome
state, or in a state generally considered as disgraceful.

In the particular case, Krishna Kumar aims to harm the reputation of the Prime Minister, who is
also considered as the head of the state, through words of his speech where he says that the
Prime Minister ―could not handle his own family‖ and calls him ―a proof of failure on his
personal fronts‖25. Hence, it can be said that he has committed the offence of defamation.

3.2. THAT IT IS VIOLATIVE OF THE RIGHT TO LIFE

Dignity and reputation are inherent qualities an individual needs to fully enjoy his/her life. The
concept of ‗reputation‘ was included in the protection of ‗dignity‘, which was part of the
constitutionally protected Right to Life. In Charu Khurana and Ors. v. Union of India and Ors26,
it has been ruled that dignity is the quintessential quality of a personality, for it is a highly
cherished value. Thus perceived, right to honour, dignity and reputation are the basic constituents
of right under Art. 21.

It has also been observed that the Right to Life takes precedence over all other rights. In the case
of Ram Jethmalani and Ors. v. Union of India and Ors.27, it has been held that the rights of
citizens, to effectively seek the protection of fundamental rights have to be balanced against the
rights of citizens and persons Under Art. 21. The latter cannot be sacrificed on the anvil of fervid
desire to find instantaneous solutions to systemic problems through defamation speech, for it
would lead to dangerous circumstances and anarchy may become the order of the day.

25
¶ 6, Moot Proposition.
26
Charu Khurana and Ors. v. Union of India and Ors (2015) 1 SCC 192.
27
Ram Jethmalani and Ors. v. Union of India and Ors. (2011) 8 SCC 1.

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3.3. THAT THERE NEEDS TO BE REASONABLE RESTRICTIONS ON

THE FREEDOM OF SPEECH AND EXPRESSION

The right to freedom of speech and expression, represented under Art. 19(1)(a) of the Indian
Constitution, is not absolute in itself, and, therefore, it must be subjected to reasonable
restrictions. It is common ground that the right is subject to such reasonable restrictions as would
come within the purview of clause (2), which comprises of (a) security of the State, (b) friendly
relations with foreign States, (c) public order, (d) decency or morality, etc28. It has been held in
D.C. Saxena (Dr.) v. Hon'ble The Chief Justice of India29, though in a different context, that if
maintenance of democracy is the foundation for free speech, society equally is entitled to
regulate freedom of speech or expression by democratic action. The reason is obvious that
society accepts free speech and expression and also puts limits on the right of the majority.

―Public interest‖ must include the interest of the people involved in the acts of expression and it
should be looked at not only from the perspective of the speaker but also the place at which he
speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and
the place and the forum in which the citizen exercises his freedom of speech and expression.

The Court had further observed that the State has legitimate interest, therefore, to regulate the
freedom of speech and expression which liberty represents the limits of the duty of restraint on
speech or expression not to utter defamatory or libellous speech or expression.

A balance needs to be maintained with regards to exercise of one right over the other. In Acharya
Maharajshri Narendra Prasadji Anandprasadji Maharaj and Ors. v. The State of Gujarat and
Ors.30, it has been observed that a particular fundamental right cannot exist in isolation in a
watertight compartment. One fundamental right of a person may have to co-exist in harmony
with the exercise of another fundamental right by others and also with reasonable and valid
exercise of power by the State in the light of the Directive Principles in the interests of social
welfare as a whole.
28
INDIAN CONSTITUTION, art. 19, clause 2.
29
D.C. Saxena (Dr.) v. Hon'ble The Chief Justice of India (1996) 5 SCC 216.
30
Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj and Ors. v. The State of Gujarat and Ors (1975) 1
SCC 11.

COUNSEL ON BEHALF OF THE RESPONDENT

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Therefore, there needs to be reasonable restrictions on the grounds of morality, decency or public
order on the freedom of speech and expression, and also, one right should not infringe some
other right of an individual, with regards to social welfare. Hence, the petitioner would be liable
for the offence of defamation as the defense of speech and expression cannot be taken, and for
the interests of social welfare, the right cannot take precedence, in this particular case.

3.4. THAT IT DOES NOT COME UNDER THE AMBIT OF THE

EXCEPTIONS MENTIONED

Sec. 499 of the IPC also cites exceptions. These include ―imputation of truth‖ which is required
for the ―public good‖ and thus has to be published, on the public conduct of government
officials, the conduct of any person touching any public question and merits of the public
performance.31

In the instant case, the plaintiff‘s statements in the speech were not in line with the exceptions
cited in Sec. 499 of the IPC as it did not revolve around the imputation of truth for public good,
but only aimed at harming the reputation of the head of the state.

31
35 RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE (LexisNexis, 2018).

COUNSEL ON BEHALF OF THE RESPONDENT

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PRAYER

Wherefore, in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed and implored before the Hon‘ble Court that it may be
graciously pleased to adjudge and declare that:

1. The petition for quashing of FIR is not maintainable in the Dili HC.
2. The speech delivered by Krishna Kumar was seditious in nature.
3. The speech delivered by Krishna Kumar had defamatory contents.

And pass any other order as it deems fit in the interest of equity, justice and good conscience.

All of which is most humbly and respectfully submitted.

FOR WHICH THE RESPONDENT SHALL FOREVER PRAY.

COUNSEL FOR THE RESPONDENT

COUNSEL ON BEHALF OF THE RESPONDENT