Final Respondent Memo

1st IMS ONLINE MOOT COURT COMETITION
Team Code: TC-027
BEFORE THE HON’BLE SUPREME COURT OF

SINDHUSTAN
SPECIAL LEAVE PETITION
UNDER ARTICLE 136 OF THE CONSTITUTION OF

SINDHUSTAN
ALADDIN MOSAI AND ORS.

..........................................................................................RESPONDENT
V.
MAHASENA PARTY AND ORS.

............................................................................................APPELLANT
MEMORIAL ON BEHALF OF THE RESPONDENT
1ST ONLINE NATIONAL MOOT COURT COMPETITION,

2020
1
MEMORIAL ON BEHALF OF RESPONDENT
TABLE OF CONTENTS
LIST OF ABBRIEVIATIONS............................................................................................................3
INDEX OF AUTHORITIES...............................................................................................................5
STATUTES.........................................................................................................................................6
BOOKS................................................................................................................................................7
STATEMENT OF JURISDICTION...................................................................................................8
STATEMENT OF FACTS..................................................................................................................9
STATEMENT OF ISSUES...............................................................................................................11
1) WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGNS BE

BROUGHT UNDER ‘CORRUPT PRACTICES’ WITHIN S. 123 OF RoPA, 1951?..........................11
2) WHETHER AN ACT SAID AND DONE IN EXERCISE OF RIGHT TO RELIGION

AND FREEDOM OF SPEECH CAN BE BROUGHT UNDER ‘CORRUPT
PRACTICES’?
..................................................................................................................................................11
3)WHETHER AN APPEAL FROM A PERSON FROM MINORITY COMMUNITY

WILL AMOUNT TO CORRUPT PRACTICE IN THE LIGHT OF PROTECTIVE
DISCRIMINATION PRINCIPLE ENSHRINED UNDER THE CONSTITUTION OF
SINDHUSTAN?..............................................................................................................................11
SUMMARY OF ARGUMENTS......................................................................................................12
1) WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGN AMOUNT

TO CORRUPT PRACTICES UNDER RoPA 1951......................................................................12
2) WHETHER AN ACT SAID AND DONE IN EXERCISE OF RIGHT TO RELIGION

AND FREEDOM OF SPEECH CAN BE BROUGHT UNDER CORRUPT PRACTICES.
..............................................................................................................................................12
3) WHETHER AN APPEAL FROM A PERSON FROM MINORITY

COMMUNITY WILL AMOUNT TO CORRUPT PRACTICE IN THE LIGHT OF
2
PROTECTIVE
3

INDIA?.......................................................................................................................................13
PLEADINGS.....................................................................................................................................14
1. WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGN AMOUNT

TO CORRUPT PRACTICES UNDER RPA 1951?..........................................................................14
1.1. Statements of Mosai are a clear violation of §.123(3a) of RPA, 1951, and amount to
corrupt practices...........................................................................................................................14
1.2. Statements made by Bhootnath Jogi will amount to appeals on grounds of ‘religion’ under
§. 123(3A) of RPA, 1951...........................................................................................................16
2. WHETHER AN ACT SAID AND DONE IN EXERCISE OF RIGHT TO RELIGION

AND FREEDOM OF SPEECH CAN BE BROUGHT UNDER CORRUPT PRACTICES? 18
2.1. Mosai’s statements will not be covered under freedom of religion and speech and it is a clear
violation of §. 123 of RPA, 1951.......................................................................................................18
2.2. The statements of Bhootnath Jogi are not covered under the right to speech and right to
religion............................................................................................................................................21
3. WHETHER AN APPEAL FROM A PERSON FROM MINORITY COMMUNITY

INDIA?...............................................................................................................................................24
3.1. That statements made by Kamlawati are an appeal on grounds of ‘caste’ under mischief of
§.123(3), (3A) and §.125 of RPA, 1951........................................................................................24
4
LIST OF ABBRIEVIATIONS
ABBREVIATION FULL FORM

§ Section
¶ Paragraph
AIR All India Reporter
Art. Article
ASMA All Sindhustan Mislamic Alliance
CILQ Central India Law Quarterly
C.J. Chief Justice
cl Clause
Const. Constitution
DPSPs Directive Principles of State Policy
E.g. Exempli gratia- for example
Etc et cetera
GH Gujarat High Court
HC High Court
Id Ibidium
IPC Indian Penal Code
MANU Manupatra
No. Number
Ors. Others
P.W. Prosecution Witness
RoPA Representation of People Act

5
SC Supreme Court
SCR Supreme Court Reporter
SMC Sindiabad Municipal Corporation
SSP Sahujan Samajwadi Party
Supra Above
v. versus
6
INDEX OF AUTHORITIES
CASES:
NAME OF THE CASE CITATION
Abdul Hussain Mir v. Shamsul Huda and Ors. 1975 AIR SC 1612
Abhiram Singh vs C.D. Commachen (Dead) By Lrs. & Ors. 1996 3 SCC 665
Akhil Bharatiya Soshit Karmchari Sangh (Railway) v. Union 1981 1 SCC 246
of India,
Ambika Saran Singh v. Mahant Mahadev Nand Giri, 1969 3 SCC 492
Amjad Ali and Ors. v. Nazmut Haque 1959 MANU GH 0135
Arvind Kejriwal v. The State Of U.P and Ors. 2015 MANU UP 1112
Bhupendra Narain Mandal v E.K. Narain Lai Das, 1965 AIR Pat. 332.
Bishwanath Rai v. Sachhidanand Singh 1971 AIR S.C. 1949.
Damodar Tatyaba v. Vamanrao Mahadik, 1991 Bombay AIR 373
Dr. Ramesh Yeshwant Prabhoo and Ors. v. Prabhakar AIR 1996 SC 1113
Kashinath Kunte and Ors.,
Ebrahim Suleiman Sait v. M.C. Mohammed and Ors. AIR 1980 S.C. 354
Ghayar Ali Khan v. Keshav Gupta AIR 1959 All 264
Indra Sawhney v. Union of India AIR 1993 S.C. 477
Jumuna Prasad Mukhariya and Ors. v. Lachhi Ram and Ors. 1954 AIR 686
Kanti Prasad Jayshanker Yagnik v. Purshottamdas 1969 MANU 0263

Ranchhoddas Patel and Ors.
7
Kultar Singh v. Mukhtiar Singh 1965 AIR S.C. 141
Lachhiram v. Jamuna Prasad 9 E.L.R. 149
Mohd. Hanif Quareshi v. State of Bihar 1959 SCR 629
M.R. Balaji v. State of Mysore 1963 AIR 649
Preeti Srivastava v. State of Andhra Pradesh 1999 SC AIR. 2894
Ramesh Dalal v. Union of India, 1988 SCC 1 668
S.Harcharn Singh v. S. Sajjan Singh and Ors. 1985 AIR 236
State of Kerala v. N.M. Thomas 1976 AIR SC 490
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas 1976 2 SCC 17

Mehra and Ors.
STATUTES AND REGULATIONS:
1. Kerala Education Bill, 1976.

2. Model Code of Conduct, 2019.
3. The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013.
4. Representation of the People Act, 1951.
5. The Constitution (Seventy Fourth Amendment) Act, 1992.
6. The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013.
7. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
8. Law Commission of India Report No. 267.
9. Law Commission of India Report No. 256.
8
BOOKS:
1. B. Shiva Ramayya, Protective Discrimination and Ethnic mobilization, 22 JIL 480 (1980).
2. Justice S.M.N. Raina, Reservation with justice, 1990 (111) CILQ, P-1
3. M.P. Jain, Indian Constitutional Law, Volume 1, (5, 2003)
4. R. Dworkin, Taking Rights Seriously,227 (1977)
WEB RESOURCES:
1. Heinonline, India available at: https://home.heinonline.org

2. Manupatra Online Resources, India available at: https://www.manupatra.co.in
3. SCC Online, India available at: https://www.scconline.com
9
STATEMENT OF JURISDICTION
The Hon’ble Supreme Court of Sindhustan has the inherent jurisdiction to try, entertain and dispose
of the present case by virtue of Article 136 of The Constitution of Sindhustan.
“Article 136- Special Leave to Appeal by the Supreme Court.”
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1 ) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces
10
STATEMENT OF FACTS
Sindhusthan is a constitutional democracy with a parliamentary system of government, and at the

heart of the system is a commitment to hold regular, free and fair elections. There are four major
religions in Sindusthan viz Sindu, Mislam, Kristain, Jarsi. Every five years the elections are held.
The general elections to constitute 17th Loksabha were held on 15June 2017.
In the aftermath of election, the Sindhusthan Janata Party (SJP) has formed the government with
majority. However, the opposition is led by Rational Nongrace And Alliance (RNAA).
Meanwhile there have been three different instances where the election petitions are filed for
corrupt practices and similar charges. Interestingly the election commission has cancelled the
candidature of the returned candidates.
The instances are as follow,
Aladdin Mosai is a Sindhustan politician, who is the President and chief of the ASMA (All
Sindhusthan Mislamic Alliance). He contested and won election to Loksabha 2017 from the
Sindiabad constituency. During election campaign to woo his Mislam vote he promised that out of
total budget of the Rs 34,000 crore he will allocate Rs 5,400 crore to Mislam population. And also,
to get the support of the Mislam population he said Mislamic population has always been
suppressed in terms of proper representation and development by other higher communities who
are holding the power for decades.
II
Mr. Bhootnath Jogi, a candidate of ruling SJP party contested and won from the constituency of
Luckpur a town with major Mislamic population campaigned on various grounds like Mow Animal
protection, (Mow is an animal worshiped by Sindhus) Jam Temple (Temple worshiped by
Sindhus), and protecting the dignity of women of Sindusthan against Mislamic aggressors.
III
11
Kamlawati the first Malit (Malit is a weaker section of society) Chief Minister of Chhatarpradesh
belonging to SSP (Sahujan Samajwadi Party) had reigned as the Chief Minister of the State for
three continuous terms thriving on support from the Malit community. Fearing her loss with
incumbency factor, the party strategically developed Malit specific appeasement Agenda. In her
fiery speech she lambasted Grahmins, telling Malits that they were kept enslaved by upper caste
conspiracies and should beat the Grahmins with their shoes. We all know that upper caste
(Grahmins) do not want Malits to eat well, dress well or do well. She promised to replace more
than 1000 upper caste civil servants with lower caste ones while neglecting almost equally
deprived ones with higher caste population. She also promised that the Manual scavenging
should be done by other upper caste persons as well. She also assured that once she is in power
the she will reserve 30% of the funds for the welfare of Malits and ensure that police and
prosecutors to rigorously enforce a law that made it easier for Malit victims of caste based
violence to bring charges against their assailants and promised stiff jail terms for those convicted.
12
STATEMENT OF ISSUES
1) WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGNS BE

BROUGHT UNDER ‘CORRUPT PRACTICES’ WITHIN S. 123 OF RoPA, 1951?
2) WHETHER AN ACT SAID AND DONE IN EXERCISE OF RIGHT TO

RELIGION AND FREEDOM OF SPEECH CAN BE BROUGHT UNDER ‘CORRUPT
PRACTICES’?

SINDHUSTAN?
13
SUMMARY OF ARGUMENTS
1)WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGN AMOUNT

TO CORRUPT PRACTICES UNDER RoPA 1951-
The Counsel on behalf of Respondent most humbly submit that the cancelling of election
action imposed on him is valid and justifiable.
The statements that were made during election campaign by the Aladdin Mosai and
Bhootnath Jogi are violative of section 123(3A) and that will amount to corrupt practices
under section 123(3A) Of RoPA 1951 and 100 of RoPA,1951 that is they are made to the
promotion of, or attempt to promote, feelings of enmity or hatred between different classes of
the citizens of India on grounds of religion and that will amount to corrupt practices and they
can be held liable for hate speech as well.
2)WHETHER AN ACT SAID AND DONE IN EXERCISE OF RIGHT TO RELIGION

AND FREEDOM OF SPEECH CAN BE BROUGHT UNDER CORRUPT
PRACTICES.
The Counsel on behalf of Respondent most humbly submits that the cancelling of election
action imposed on him is valid and justifiable.
The statement that are made by Mosai and Bhootnath Jogi will not be covered under article
19(1)(a) that is freedom of speech and article 25 that is right to religion of Indian constitution
because the statements that were made by them are clear made for the promotion of, or
attempt to promote, feelings of enmity or hatred between different classes of the citizens of
India on grounds of religion and they are liable under section 123(3A) of ROPA 1951 for
corrupt practices.
14

INDIA?
The counsel on behalf of the Respondent most humbly submit that appeal from a person of
minority community will amount to corrupt practice under section 123, of RoPA, 1951, and
cannot take defence under the principle of protective discrimination.
Statements made by Kamlawati were against the upper caste population, which were not only
mischief under §. 123(3) and (3A) RoPA, 1951 but also were a violation of §. 125 of the
RoPA, 1951.
15
PLEADINGS
1. WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGN

AMOUNT TO CORRUPT PRACTICES UNDER RPA 1951?
The appeals which are made based on religion, caste, ethnicity, region to bring prejudice,
hatred, discrimination among the group, relations of inferiority and superiority to differences
between subdivisions within a group is termed as Sectarian appeals.
According to the §. 123 (3) A of RPA, 1951:
“The promotion of, or attempt to promote, feelings of enmity or hatred between different
classes of the citizens of India on grounds of religion, race, caste, community, or language,
by a candidate or his agent or any other person with the consent of a candidate or his
election agent for the furtherance of the prospects of the election of that candidate or for
prejudicially affecting the election of any candidate.”1
1.1. Statements of Mosai are a clear violation of §.123(3a) of RPA, 1951, and amount to
corrupt practices.
Mosai’s statements -
1. He said that “Mislams account for around 23 percent of the population in the
Metropolis. If the budget of SMC (Sindiabad Municipal Corporation) is around Rs
34,000 crore, then Rs 5,500 crore should have been allotted for the development of
Mislams.”2
The counsel humbly submits before the court that the first statement made by the
Mosai is a violation of the §. 123 (3) A of the RPA because to gain the support of
Mislam vote bank he promised them to allocate 5500 crore rupees fund out of 34,000
crore which is nearly 16.17 percentage of the total funds and granting funds on the
basis of religion that is a clear violation of this section as he promised them the
allocation of funds based on religion and Indian being a secular country it is
Violation per se.
According to the 12th schedule of the Indian constitution, there is a list of subjects that
1
2
Representation
of People Act, 1951, §. 123, cl. 3.
Moot Proposition, ¶, Plot-1.
16
municipal corporations is responsible for. Corporations may be entrusted to perform

functions and implement schemes including those concerning the matters listed in
the Twelfth Schedule/ article 243 W of Indian Constitution.3
And nowhere it is written that you can divide the fund for the benefit of a particular
religion, that is why it is a proper violation of schedule 12 of the Constitution and it
will amount to Sectarian appeals and corrupt practices.
The Statements that are made by Mosai that - “Mislamic population has always been
suppressed in terms of proper representation and development by other higher
communities who are holding the power for decades”.4
The counsel humbly submits before the court that the said statement will amount to
the promotion of, or attempt to promote, feelings of enmity or hatred between
different classes of the citizens of India on grounds of religion. By these words, he is
appealing the Mislamic voters that if they choose someone from the higher
community or other religion so they will suppress them (those from the higher
community) if comes in power. Which implies that he indirectly appealing others not
to vote someone from other religion or community, just vote for him if they want
proper representation.
In Abhiram Singh v. C.D. Commachen (Dead) By Lrs. & Ors,5 it was stated that:
Be it the candidate, the agent of the candidate, any person with the consent of the
candidate, or even the religion of the voters would amount to a corrupt practice. The
majority in its Judgment gave a broad construction to the words of §. 123 of the
Representation of the People Act, 1951, and has expanded its boundaries to take in
any appeal on the grounds of religion, caste, language, or race.
In the case Kultar Singh v. Mukhtiar Singh,6 it was stated that:
“In order that the democratic process should thrive and succeed, it is of utmost
importance that our elections to Parliament and the different legislative bodies must
be free from the unhealthy influence of appeals to religion, race, caste, community,
or language. If these considerations are allowed anyway in election campaigns, they
would vitiate the secular atmosphere of democratic life, and so, §. 123(3) wisely
3
4
India
Const. art. 243, cl.W, amended by The Constitution (Seventy Fourth Amendment) Act, 1992.
17
5
Abhiram Singh v. C.D. Commachen (Dead) By Lrs. & Ors, 1996 3 SCC 665.
6
Kultar Singh v. Mukhtiar Singh, 1965 AIR 141.
18
provides a check on this undesirable development by providing that an appeal to any

of these factors made in furtherance of the candidature of any candidate as therein
prescribed would constitute a corrupt practice and would render the election of the
said candidate void.”
In the case of S. Harcharn Singh v. S. Sajjan Singh And Ors, 7 Respondent No. 3 was
guilty of corrupt practice under §. 123 (3) of the Representation of the People Act, 1951.
As a result of the amendment of sub-section (3) of §. 123 of the Act even a single appeal by
a candidate or his agent or by any other person with the consent of the candidate or his
election agent to vote or refrain from voting for any person on the ground of his religion,
race, caste, community or language would be a corrupt practice.
The statement made by the Appellant is a clear violation of section 123(3A) as mentioned
in the above case because even a single appeal made by a candidate to vote or refrain from
voting for any individual on the ground of his religion is an offence. Here, an offence has
been committed since he made appeals to vote for him in the name of Mislam.
1.2. Statements made by Bhootnath Jogi will amount to appeals on grounds of

‘religion’ under §. 123(3A) of RPA, 1951.
Jogi made the following statements, “Various grounds like Mow Animal protection, (Mow is
an animal worshiped by Sindhus), Jam Temple (Temple worshiped by Sindhus), and
protecting the dignity of women of Sindusthan against Mislamic aggressors.”
Hate speech has not been defined in any law in India. However, legal provisions in certain
legislations prohibit select forms of speech as an exception to freedom of speech.8
Provisions related to Hate speech:
1. Section 153 A of IPC9 penalizes ‘promotion of enmity between different groups on

grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial
to maintenance of harmony’.
7
8
S.Harcharn Singh v. S. Sajjan Singh And Ors, 1985 AIR 236
Law Commission of India Report No. 267.
9
Indian Penal Code, Act No. 45, §. 153, cl. A.
19
2. §. 153B IPC10 penalizes ‘imputations, assertions prejudicial to national-integration’
3. §. 811 disqualifies a person from contesting election if he is convicted for indulging in acts
amounting to the illegitimate use of freedom of speech and expression.
4. §. 123(3A) and §. 125 prohibits the promotion of enmity on grounds of religion, race,
caste, community or language in connection with election as a corrupt electoral practice and
prohibits it.12
§. 123 (3A) and 125 of the Representation of Peoples Act 1951 deals with the prohibition of
enmity on the ground of religion, race, case, community, or language in connection with
election as a corrupt electoral practice and prohibits it.
§. 123 (3A)- “The promotion of, or attempt to promote, feelings of enmity or hatred between
different classes of the citizens of India on grounds of religion, race, caste, community, or
language, by a candidate or his agent or any other person with the consent of a candidate or
his election agent for the furtherance of the prospects of the election of that candidate or for
§. 125- “ Promoting enmity between classes in connection with election.—Any person who in
connection with an election under this Act promotes or attempts to promote on grounds of
religion, race, caste, community or language, feelings of enmity or hatred, between different
classes of the citizens of India shall be punishable with imprisonment for a term which may
extend to three years, or with fine, or with both.”14
Ramesh Yeshwant Prabhoo and Ors. v. Prabhakar Kashinath Kunte and Ors. 15
“The provision is made with the object of curbing the tendency to promote or
attempt to promote communal, linguistic, or any other factional enmity or hatred
to
prevent the divisive tendencies. The provision in the I. P. C. as well as in the R. P.
Act was made by amendment at the same time for this purpose. The amendment in the
R.
P. Act followed amendments made in the Indian Penal Code to this effect in a bid
to curb any tendency to resort to divisive means to achieve success at the polls oil
the
20
10
Id. §.153, cl.B.
11
Id. §.8.
12
Supra note 8.
13
Representation of People Act, 1951, §. 123, cl. 3A.
14
Id. §. 125.
15
Dr.Ramesh Yeshwant Prabhoo and Ors. v. Prabhakar Kashinath Kunte and Ors., 1996 AIR 1113
21
ground of religion or narrow communal or linguistic affiliations. Any such

attempt during the election is viewed with disfavour under the law and is made a
corrupt practice under Sub-section (3A) of §. 123.”16
Shri Jethmuluni is right that in Sub-section (3A), the element of prejudicial
effect on public order is implicit. Such divisive tendencies promoting enmity or
hatred
between different classes of citizens of India tend to create public unrest and disturb
public order. This is a logical inference to draw on proof of the constituent parts of
Sub-section (3A). The meaning of Sub-section (3A) is not seriously disputed between
the parties and, therefore, it does not require any further discussion. However,
whether the act complained of falls within the net of Sub-section (3A) is a question
of fact in each case to be decided on the basis of the evidence led to prove the
alleged act.
2. WHETHER AN ACT SAID AND DONE IN EXERCISE OF RIGHT TO

RELIGION AND FREEDOM OF SPEECH CAN BE BROUGHT UNDER CORRUPT
PRACTICES?
2.1. Mosai’s statements will not be covered under freedom of religion and speech and it is a
clear violation of §. 123 of RPA, 1951.
The Counsel humbly submits before the court that the said act of Mosai is violative of §.
123 (3A) of RPA and will not be covered under 19(1A) and Article 25.
According to the §. 123 (3) A of RPA, 1951:
“The promotion of, or attempt to promote, feelings of enmity or hatred between different
classes of the citizens of India on grounds of religion, race, caste, community, or language,
by a candidate or his agent or any other person with the consent of a candidate or his
election agent for the furtherance of the prospects of the election of that candidate or for
22
16
Id. at 1120.
17
Supra note 1.
23
According to §. 100(1)B of the RPA 1951, grounds for declaring election to be void are as
follows:
“(1) that any corrupt practice has been committed by a returned candidate or his
election agent or by any other person with the consent of a returned candidate or his
election agent; or”18
Under Article 19 (1)(a) of the Constitution of India, it states that- “All citizens shall have the
right to freedom of speech and expression. But this right is subject to reasonable restrictions
imposed on the expression of this right for certain purposes under.”19
Article 19 (1)(a) also comes with a certain restriction which is under article 19 (2):
“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty
and integrity of India, the security of the State, friendly relations with foreign States, public
order, decency or morality or in relation to contempt of court, defamation or incitement to an
offence.”20
The counsel humbly submits before the Hon’ble court that the statements made by Mosai will
not cover under article 19(1)(a) because that article prescribes certain restrictions that must be
followed when exercising your right under article 19 (1)(a), Constitution of India.
The statements made by Mosai will amount to corrupt practice under §. 123(3A) of RPA,
1951 because the statements amount to “The promotion of, or attempt to promote, feelings of
enmity or hatred between different classes of the citizens of India on grounds of religion”.21
Article 25- Freedom of conscience and free profession, practice, and propagation of religion.
Cl. 1 states: Subject to public order, morality and health and to the other provisions of this
Part, all persons are equally entitled to freedom of conscience and the right freely to profess,
practice and propagate religion.22
18
19
Representation of People Act, 1951, §. 100, cl. 1B.
India Const. art. 19, cl. 1(a).
20
RoPA, 1951, §. 123 cl. 3A.
21
Id. §. 123, cl. 3A.
22
India Const. art. 25, cl. 1.
24
Statements which create hatred amongst individuals are prohibited under Article 25 which
states that the right to religion is subject to public order, morality, and health. This means that
if the statements create hatred amongst individuals on the basis of religion it will be violative
of this Article.
Jumuna Prasad Mukhariya and Ors. v. Lachhi Ram and Ors.23
“Both these provisions, namely §. 123(5) and 124(5), were challenged as ultra
vires article 19(1)(a) of the Constitution. It was contended that article 245(1)
prohibits the making of laws that violate the Constitution and that the impugned
sections interfere with a citizen's fundamental right to freedom of speech. There is
nothing in this contention. These laws do not stop a man from speaking. They merely
prescribe conditions which must be observed if he wants to enter Parliament. The
right to stand as a candidate and contest an election is not a common law right. It is a
special right created by statute and can only be exercised on the conditions laid down
by the
statue. The Fundamental Rights Chapter has no bearing on a right like this created by
a statute. The appellants have no fundamental right to be elected members of
Parliament.
If they want that they must observe the rules. If they prefer to exercise their right of
free speech outside are these rules, the impugned sections do not stop them. We
hold that these sections as intra vires.”24
In Ziyauddin Bukhari v. Brijmohan Mehra (Ziyauddin Bukhari)25, the Supreme Court

had discussed the need for §. 123(3A), stating that, it is evident that, if such propaganda was
permitted here, it would injure the interests of members of religious minority groups more
than those of others. It is forbidden in this country to preserve the spirit of equality, fraternity,
and amity between rivals even during elections. Indeed, such prohibitions are necessary in the
interests of elementary public peace and order.
Abhiram Singh v. C.D. Comachen26, the Supreme Court held that elections were a ‘secular
exercise’ and that any appeal to religion would not be permitted.
25
23
Jumuna Prasad Mukhariya and Ors. v. Lachhi Ram and Ors., 1954 AIR 686
24
Id.
25
Ziyauddin Bukhari v. Brijmohan Mehra, 1976 2 SCC 17.
26
Supra note 2.
26
In the present case, he (the appellant) made appeals during the election campaign on the
ground of religion, stating that he promised allocation of funds to the Mislamic population.
He also stated that the Mislamic population is not given proper representation by the higher
communities of the society. These statements are indicative of the fact that he is making
appeals on the ground of religion which is violative of section 123 of the RPA, 1951.
2.2. The statements of Bhootnath Jogi are not covered under the right to speech and right to
religion.
So the statements that were made by Bhootnath Jogi will amount to hate speech that is
spreading communal violence on the basis of religion as he was being a Sindu leader talking
about protection of Mow which is the sacred animal of Sindus, then he is giving reference of
Jam Mandir in order to gain the votes of the locals, and he is making allegations on the
Mislamic community of doing aggressions against the women’s of Sindustan27, which is a
clear violation of Model Code of conduct as well as a violation of §. 123 (3A) and §. 125 of
RPA, 1951.
Under Model code of conduct,2019 it is mentioned:
“There shall be no appeal to caste or communal feelings for securing votes. Mosques,
Churches, Temples, or other places of worship shall not be used as a forum for election
propaganda.”28
As Jogi referred Jam Temple that is a place of worship in his speeches during the election
campaign, it will amount to misconduct under the Model code of conduct, 2019.
Also, Jogi is attacking only the Mislamic population for aggression against women which
also amount to hate speech and making communal appeals and promotion of enmity and
hatred on the grounds of religion.
Under article 19 (1)(A) of the Indian Constitution it is said that: “all citizens shall have the
right to freedom of speech and expression. But this right is subject to reasonable restrictions
imposed on the expression of this right for certain purposes under.”
Article 19 clause (a) also comes with certain restriction which is under article 19 (2):
27
28
Manual on Model Code of Conduct, 2019.
27
“Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub clause in the interests of the sovereignty
and integrity of India, the security of the State, friendly relations with foreign States, public
order, decency or morality or in relation to contempt of court, defamation or incitement to an
offence.”
Article 25- Freedom of conscience and free profession, practice and propagation of religion.
Clause 1 states:
Subject to public order, morality, and health and the other provisions of this Part, all persons
are equally entitled to freedom of conscience and the right freely to profess, practise and
propagate religion.29
The Supreme Court considered the constitutionality of §. 123(3A) in Ramesh Yeshwant

Prabhoo.30 The Court found that §. 123(3A) was consistent with Article 19(1)(a) since it fell
within the permissible exceptions of ‘public order’ and ‘incitement to an offence’ listed under
Article 19(2). According to the Supreme Court, the element of prejudicial effect on public
order is implicit in §. 123(3A). The Court explained its reasoning saying ‘such divisive
tendencies promoting enmity or hatred between different classes of citizens of India tend to
create public unrest and disturb public order’.
Jumuna Prasad Mukhariya and Ors. v. Lachhi Ram and Ors.31

“Both these provisions, namely section 123(5) and 124(5), were challenged as ultra vires
article 19(1)(a) of the Constitution. It was contended that article 245(1) prohibits the making
of laws which violate the Constitution and that the impugned sections interfere with a
citizen's fundamental right to freedom of speech. There is nothing in this contention. These
laws do not stop a man from speaking. They merely prescribe conditions which must be
observed if he wants to enter Parliament. The right to stand as a candidate and contest an
election is not a common law right. It is a special right created by statute and can only be
exercised on the conditions laid down by the statue. The Fundamental Rights Chapter has no
bearing on a right like this created by statue. The appellants have no fundamental right to be
elected members of
29
Supra note 15.
28
30
Supra note 6.
31
Id.
29
Parliament. If they want that they must observe the rules. If they prefer to exercise their right
of free speech outside are these rules, the impugned sections do not stop them. We hold that
this section intra vires.”
Truth is not a defence in hate speech prosecutions under the RPA, 1951. In Ebrahim
Suleiman Sait32, the Supreme Court rejected the argument that the appellants would not be
liable if the statements were based on facts. According to the Court, the relevant test is
whether the statements promoted feelings of enmity. If the answer is in the affirmative, ‘then
it is immaterial whether what was said was based on facts or not, especially when in this case
the events mentioned occurred years ago’.
The Supreme Court discussed the Parliament’s objective in inserting §. 123(3A) in Dr.
Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte.33 The Court’s views were as
follows: The provision in the IPC (§. 153A) as well as in the RPA for this purpose was made
by amendment at the same time. The amendment in the RPA followed amendments made in
the Indian Penal Code to this effect in a bid to curb any tendency to resort to narrow
communal or linguistic affiliations. Any such attempt during the election is viewed with
disfavour under the law and is made a corrupt practice under sub-section (3A) of §. 123.
In Ziyauddin Bukhari v. Brijmohan Mehra34 (Ziyauddin Bukhari), the Supreme Court had
discussed the need for §. 123(3A), stating: It is evident that, if such propaganda was permitted
here, it would injure the interests of members of religious minority groups more than those of
others. It is forbidden in this country in order to preserve the spirit of equality, fraternity, and
amity between rivals even during elections. Indeed, such prohibitions are necessary in the
interests of elementary public peace and order.
The statement made by the Appellant will not be covered under Article 25, that is, the right to
freedom of religion, as he is appealing to the voters on the ground of religion by appealing
them to help him stop the slaughter of mows, which are sacred to Sindus. The issue made by
him for Jam temple will amount to violation of Article 25 as this will be subject to public
order, health, and morality.
32
Ebrahim Suleiman Sait v. M.C. Muhammad, 1980 SCR (1) 1148
33
Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130.
34
Ziyauddin Bukhari v. Brijmohan Mehra, (1976) 2 SCC 17.
30
3. WHETHER AN APPEAL FROM A PERSON FROM MINORITY COMMUNITY

WILL AMOUNT TO CORRUPT PRACTICE IN THE LIGHT OF
PROTECTIVE DISCRIMINATION PRINCIPLE ENSHRINED UNDER THE
CONSTITUTION OF INDIA?
It is humbly submitted that an appeal on the ground of ‘caste’ from a person of minority
community will amount to ‘corrupt practice under’ §. 123 of RPA, 1951, and cannot use
the principle of ‘protective discrimination’ enshrined under the constitution.
3.1. That statements made by Kamlawati are an appeal on grounds of ‘caste’ under
mischief of §.123(3), (3A) and §.125 of RPA, 1951.
It has been seen that caste plays a crucial rule in election campaigning. As the SC
pointed out that Indian leadership has long condemned electoral campaigns on the
lines of caste and community as being destructive of the country's integration and the
concept of secular democracy which is the basis of our constitution and it is this
condemnation which is reflected in §. 123(3) of the Act. In spite of the repeated
condemnation, the Court further pointed out, experience has shown that where there
is such a constituency it has been unfortunately too tempting for a candidate to resist
appealing to sectional elements to cast their votes on caste basis.35
There are different modes of securing votes through appeal to caste or religion. The
most ordinary form is to seek votes for a candidate from electors belonging to the
same caste or religion.36 In such a situation the candidate ignores all other
considerations and requests of the electorate and implores them to cast their votes
looking only at his religion or caste. It is to be noted that this mode of campaign
would thwart the very foundation of the secular democratic process.
In the case of Bishwanath Rai v. Sachhidanand Singh,37 the appellant, the returned
candidate, was Brahmin by caste. Swami Bimlanand Saraswathi Awadh Behri San
was a person having a considerable influence upon that section of Brahmins. A
considerable
35
Ambika Saran Singh v. Mahant Mahadev Nand Giri 1969 3 S.C.C. 492.
31
36
Lachhiram v. Jamuna Prasad 9 E.L.R. 149.
37
Bishwanath Rai v. Sachhidanand Singh AIR 1971 S.C. 1949.
32
percentage of voters in the constituency also belonged to the same caste and even
within the same caste, they belonged to the 'Bhawandhi' sect of Swamiji. The
allegation was that Swamiji accompanied by the appellant and one Bhola Raj of the
same caste went to a number of villages and appealed to individual voters there to
vote for the appellant on the ground that he was a member of their caste, that he had
with great difficulty obtained a ticket from the Central Board of Congress Party, and
that if he was defeated on that occasion, the members of the caste would lose prestige
and position in various villages.
In the following case, there was ample evidence to show that the candidate appealed
for votes on the ground of his caste. The HC declared the election void. On Appeal the
SC reaffirmed the decision of the HC.38
Appeal on the basis of caste was once again the issue before the Patna High Court in
Bhupendra Narain Mandal v. E.K. Narain Lai Das. 39 At the Parliamentary election
from the Saharsa Parliamentary constituency, there were three contestants, one each
belonging to the Socialist, the Swatantra and the Congress party. B.N. Mandal, the
Socialist candidate, was declared duly elected. Therefore, election petitions were filed
seeking two-fold declarations, namely, (1) that the election of B.N. Mandal was void
and should be set aside and (2) that Shri Lalit Narain Mishra, the Congress candidate
should be declared to have been duly elected. Earlier the election of B.N. Mandal was
declared to be void by the Tribunal, but the other prayer was rejected. The main
allegation was that the appellant, his election agent and other agents of his, with his
consent, made appeals to the voters through meetings and propaganda, in particular,
by the distribution of printed hand-bills and leaflets appealing to the voters belonging
to the Yadav caste to refrain from voting for the respondent on the ground of his being
a Brahmin and to vote for him on the ground that he was a Yadav. It was further
alleged that the unwholesome propaganda carried on by the appellant on caste basis
inevitably induced an atmosphere of hostility and acrimony between the people of the
Yadav and the Brahmin castes and thus promoted enmity and hatred between the
castes. On the above allegations, the petitioners asserted that the appellant and his
election agent and other persons with the consent of the appellants or his election
agent had committed
33
38
Id. at 1959.
39
Bhupendra Narain Mandal v. E.K. Narain Lai Das, AIR 1965 Pat. 332.
34
corrupt practice under sub-section (3) and (3-A) of §. 123 of the Act, and accordingly,
his election should be declared to be void. The Election Tribunal had earlier accepted
the petitioner's case and had come to the conclusion that from the context, language
and tenor of the leaflet, it was clear that it constituted an appeal to the Yadav voters to
vote for the appellant and to refrain from voting for the respondent on the ground of
caste. Delivering the judgment of the High Court, Sinha, J., with whom Misra, J.,
agreed, accepted the finding of Tribunal.
Appeal to vote on the basis of the candidate's caste was one of the issues for annulling
the election before the Supreme Court in Kanti Prasad Jayshankar Yagnik v.
Purshottam Das Rauchhoddas Patel.40 The speech objected to on the ground of
being delivered on the basis of caste was the following: "Vijay Kumar Bhai has gone.
A Brahmin minister must be there and hence Kantilal Bhai is going to be a minister,
hence vote for him. We must have at least one minister who is a Brahmin. Hence vote
for Kantilal Bhai. At the same time vote for Bhaikaka and H.M. Patel by putting your
voting mark on the star". Two judges upheld the finding of the Gujrat High Court. The
third judge K.S. Hegde dissented. Thus, the Supreme Court by a majority of 2:1 held
that the passage at issue clearly fell within the mischief of §. 123(3). Under §. 123(3)
of the Act, an appeal by any person to vote for any person on the ground of his caste
or community is a corrupt practice, provided, of course, that such person had made
such appeal with the consent of the candidate concerned. It is clear that in this
particular passage an appeal was being made to the electors to cast their votes for the
first respondent because the first respondent is a Brahmin and also because of the
promise which had been put forward in this passage, that there should be at least one
Brahmin Minister in the Ministry.
Similarly, in our present case, Kamlawati was the first Malit Chief Minister of
Chhatar Pradesh. It is stated that she has reigned as the Chief Minister of the state for
three consecutive terms, thriving on the support from the Malit community.41
40
Kanti Prasad Jayshankar Yagnik v. Purshottam Das Rauchhoddas Patel, (1969) 3 S.C.R. 400; AIR 1969 S.C.
85.
41
35
It is fair to assume that Kamlawati wields a considerable amount of power and

influence over her community. In her election campaign, to be re-elected into office
for another term, she required the support of her community. To regain the support of
the self- proclaimed down-trodden community, her election campaign speeches often
reflected appeasement in the garb of hatred and biases towards the upper caste of the
society. In the concerned speech of her election campaign, Kamlawati lambasted
Grahmins, telling them that it was the upper caste who kept them enslaved and wanted
them to remain down-trodden. She also said that they should beat the Grahmins with
their shoes. She made multiple promises to the community, some of which promised
them progress at the expense of other communities. For instance, she promised to
replace more than 1000 upper-caste civil servants, with lower caste ones, while
neglecting almost equally deprived ones within a higher caste population. She also
promised that the manual scavengers of the state most of which are Malits or other
lower caste people, would not be required to do such degrading menial labour.
Instead, she said that people from other caste, especially people from upper-caste,
were just as capable of doing this labour and should do so when required.
The Prohibition of Employment as Manual Scavengers and their Rehabilitation

Act, 201342 makes it an offense to employ ‘any person’ as manual scavengers to clean
insanitary latrines and to clean sewers and septic tanks without protective gear.
Kamlawati’s promise to replace manual scavengers belonging to the lower caste with
those belonging to the upper caste not only dredges up caste differences but is also an
offence under the Manual Scavengers Act, 2013 since it prohibits employment of ‘any
person’ irrespective of their caste.
This not only attracts mischief under sub-section 3 and 3A of §. 123 of the RoPA, but
also attracts mischief under §. 125 which states:
“Promoting enmity between classes in connection with election. —Any person who
in connection with an election under this Act promotes or attempts to promote on
grounds of religion, race, caste, community or language, feelings of enmity or hatred,
between
36
42
Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, (hereinafter: Manual
Scavengers Act, 2013) §. 5 (1)(b).
37
different classes of the citizens of India shall be punishable, with imprisonment for a
term which may extend to three years, or with fine, or with both.”43
In the case of Arvind Kejriwal v. The State Of U.P and Ors.44 Aditya Nath Mittal,
J. observed:
“The present case relates to the alleged speech of the petitioner on 02.05.2014 in
connection with an election which allegedly attempts to promote feelings of enmity or
hatred between different classes of the citizens of India. The politicians are required
to observe more caution in their speeches as they have to rule the country and they
should promote the spirit of common brotherhood, fraternity and harmony amongst
all the people of India transcending religious, linguistic and regional or sectional
diversities. The politicians as a citizen of India have also to abide by fundamental
duties as provided in Article 51-A of the Constitution of India, apart from the
restrictions and guidelines imposed by Representation of People Act, 1951, because
they are not above the Constitution.
But what we are experiencing nowadays is that some of the politicians have no
control over their fire-brand speeches with a view to attract or misguide the voters in
their favour. Such a tendency should be discontinued because the public of India has
now become much more aware of the real truth. The politicians must use the
Parliamentary Language.”45
The parts of Kamlawati’s speech which encourage the people of Malit community, to
beat the Grahmins with the shoes, and which say that the Grahmins do not want
Malits to do well, eat well and dress well, clearly promotes feelings of enmity and
hatred between these two communities.
Hence it is submitted that Kamlawati’s statements do attract mischief under §, 123 of

RoPA, 1951 and cannot be set aside because of the principle of protective
discrimination.
43
RPA, 1951, cl. 125.
44
Arvind Kejriwal v. The State Of U.P and Ors., 2015 MANU UP 1112.
45
Id. at 1134.
38
PRAYER
IN THE LIGHT OF THE ARGUMENTS ADVANCED AND AUTHORITIES CITED,

THE COUNSEL ON BEHALF OF REPONDENTS HUMBLY PLEADS BEFORE
THE HON’BLE SUPREME COURT OF SINDHUSTAN TO:
1. TO ABIDE BY THE DECISION OF THE HIGH COURT.
2. TO MAKE THE APPELLANTS LIABLE UNDER §. 123(3A), and 125 OF RoPA,

1951 UNDER CORRUPT PRACTICES.
ANY OTHER ORDER AS IT DEEMS FIT IN THE INTEREST OF EQUITY,

JUSTICE AND GOOD CONSCIENCE.
FOR THIS ACT OF KINDNESS, THE RESPONDENT FACTION SHALL BE DUTY

BOUND FOREVER.
SD/-
(COUNSEL ON BEHALF OF RESPONDENT)
39

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1st IMS ONLINE MOOT COURT COMETITION

Team Code: TC-027

BEFORE THE HON’BLE SUPREME COURT OF

SPECIAL LEAVE PETITION

UNDER ARTICLE 136 OF THE CONSTITUTION OF

ALADDIN MOSAI AND ORS.

MAHASENA PARTY AND ORS.

MEMORIAL ON BEHALF OF THE RESPONDENT

1ST ONLINE NATIONAL MOOT COURT COMPETITION,

1) WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGNS BE

2) WHETHER AN ACT SAID AND DONE IN EXERCISE OF RIGHT TO RELIGION

3)WHETHER AN APPEAL FROM A PERSON FROM MINORITY COMMUNITY

1) WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGN AMOUNT

2) WHETHER AN ACT SAID AND DONE IN EXERCISE OF RIGHT TO RELIGION

3) WHETHER AN APPEAL FROM A PERSON FROM MINORITY

DISCRIMINATION PRINCIPLE ENSHRINED UNDER THE CONSTITUTION OF

1. WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGN AMOUNT

2. WHETHER AN ACT SAID AND DONE IN EXERCISE OF RIGHT TO RELIGION

3. WHETHER AN APPEAL FROM A PERSON FROM MINORITY COMMUNITY

ABBREVIATION FULL FORM

AIR All India Reporter

ASMA All Sindhustan Mislamic Alliance

CILQ Central India Law Quarterly

C.J. Chief Justice

DPSPs Directive Principles of State Policy

E.g. Exempli gratia- for example

GH Gujarat High Court

IPC Indian Penal Code

P.W. Prosecution Witness

RoPA Representation of People Act

SCR Supreme Court Reporter

SMC Sindiabad Municipal Corporation

SSP Sahujan Samajwadi Party

NAME OF THE CASE CITATION

Amjad Ali and Ors. v. Nazmut Haque 1959 MANU GH 0135

Bishwanath Rai v. Sachhidanand Singh 1971 AIR S.C. 1949.

Damodar Tatyaba v. Vamanrao Mahadik, 1991 Bombay AIR 373

Ghayar Ali Khan v. Keshav Gupta AIR 1959 All 264

Indra Sawhney v. Union of India AIR 1993 S.C. 477

Kanti Prasad Jayshanker Yagnik v. Purshottamdas 1969 MANU 0263

Kultar Singh v. Mukhtiar Singh 1965 AIR S.C. 141

Lachhiram v. Jamuna Prasad 9 E.L.R. 149

Mohd. Hanif Quareshi v. State of Bihar 1959 SCR 629

M.R. Balaji v. State of Mysore 1963 AIR 649

Preeti Srivastava v. State of Andhra Pradesh 1999 SC AIR. 2894

Ramesh Dalal v. Union of India, 1988 SCC 1 668

S.Harcharn Singh v. S. Sajjan Singh and Ors. 1985 AIR 236

State of Kerala v. N.M. Thomas 1976 AIR SC 490

Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas 1976 2 SCC 17

STATUTES AND REGULATIONS:

1. Kerala Education Bill, 1976.

1. Heinonline, India available at: https://home.heinonline.org

“Article 136- Special Leave to Appeal by the Supreme Court.”

Sindhusthan is a constitutional democracy with a parliamentary system of government, and at the

The instances are as follow,

1) WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGNS BE

2) WHETHER AN ACT SAID AND DONE IN EXERCISE OF RIGHT TO

3)WHETHER AN APPEAL FROM A PERSON FROM MINORITY COMMUNITY

1)WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGN AMOUNT

2)WHETHER AN ACT SAID AND DONE IN EXERCISE OF RIGHT TO RELIGION

3)WHETHER AN APPEAL FROM A PERSON FROM MINORITY COMMUNITY

1. WHETHER SECTARIAN APPEALS DURING ELECTION CAMPAIGN

According to the §. 123 (3) A of RPA, 1951: