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LEX OMNIA MOOT COURT COMPETITION – 2016, BITS PILANI – K.K.

BIRLA GOA
CAMPUS
RAKESH AGGARWAL MEMORIAL NATIONAL MOOT COMPETETION,2017

TEAM CODE: TC-

IN THE SUPREME COURT OF INDIA

WRIT PETITION (CIVIL)

IN THE MATTER OF:

Mrs. SALMA …PETITIONER


V.
Mr. SULAIMAN …RESPONDENT

MEMORANDUM SUBMISSION ON BEHALF OF PETITIONER

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TABLE OF CONTENTS

S.NO. PARTICULARS PAGE NO.

1. TABLE OF ABBREVIATIONS 3

2. INDEX OF AUTHORITIES 5

3. STATEMENT OF JURISDICTION 10

4. STATEMENT OF ISSUES 11

5. STATEMENT OF FACTS 12-14

6. SUMMARY OF ARGUMENTS 15-16

7. ARGUMENTS ADVANCED 17-36

8. PRAYER 37

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TABLE OF ABBREVIATIONS

ABBREVIATION FULL FORM


AIR All India Reporter

All. Allahabad

Anr. Another

Bom. Bombay

Cal. Calcutta

CrPC Criminal Procedure Code

CrLJ Criminal Law Journal

Dy. Deputy

Edn. Edition

Hon’ble Honorable

i.e. That is

Ibid Ibidem

ICCPR International Covenant on Civil and

Political Rights

ILR Indian Law Reporter

Ker Kerala

Ltd. Limited

No. Number

Ori. Orissa

Ors. Others

Pat. Patna

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Punj. Punjab

QB Queen’s Bench

Ran. Ranchi

S. Section

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Report

ss. Sections

u/s Under Section

V. Versus

& And

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INDEX OF AUTHORITIES

A. CASES CITED

S.NO. CASE CITATION

1. Aveek Sarkar V. State of West Bengal 2014 4 SCC 257

2. Azizul Haq Kausar Naquvi V. State AIR 1980 All. 149

3. Balwant Singh V. State of Punjab (1995) 3 SCC 214 : AIR

1995 SC 1785

4. Baragur Ramchandrappa V. State of Karnataka 1998 Cri LJ 3639

5. Bennett Coleman & Co. &Ors. V. Union of India &Ors. [1973] 2 S.C.R. 757 at 829

6. Bijoe Emmanuel & Ors V. State Of Kerala 1987 AIR 748

7. Bilal Ahmad Kaloo V. State of Andhra Pradesh 1997 Cri.LJ 4091 (SC)

8. Chintaman Rao V. State of M.P. AIR 1951 SC 11

9. CT Prim V. State AIR 1961 Cal. 177

10. Dr. VinayakBinayak Sen 2 Pijush V. State Of Criminal Appeal No 20 of

Chhattisgarh 2011

11. Emperor V. Hari Singh (1905) 28 All. 100

12. Gopal Vinayak Godse V. State of Maharashtra AIR 1971 Bom. 56

13. Gopal Vinayak Godse V. State of Maharashtra (1969) 72 Bom. LR 871

14. Gurjatinder Pal Singh V. State of Punjab (2009) 3 RCR (Cri) 224

15. Hanif Qureshi V. State of Bihar AIR 1958 SC 731

16. Har Shankar V. dy. Excise & Taxation Commissioner (1975) 1 SCC 737

17. Harnam Das V. State of UP (1957) 1 All. 528

18. Indra Das V. State of Assam (2011) 3 SCC 380)

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19. John Calder Publications V. Powell 1965, 1 QB 509

20. Kali Charan Sharma V. Emperor AIR 1927 All. 649

21. Kedarnath V. State of Bihar 1962 AIR 955

22. Kherode Chandra Roy Chowdhury V. Emperor (1911) 39 Cal 377

23. King Emperor V. Sadashiv Narayan Bhalerao (1944) 46 BOMLR 459

24. King V. Nga Shwe Hpi AIR 1939 Ran 199

25. Knuller Ltd. V. DPP 1973 AC 435 House Of

Lords

26. LIC V. Manubhai D. Shah AIR 1993 SC 171

27. Maneka Gandhi V. Union of India 1978 AIR 597, 1978 SCR

(2) 621

28. Maniben Liladhar Kara V. Emperor AIR 1941 Oudh. 33 at 41

29. Miller V. California 413 U.S. 15

30. MLC Gupta V. Emperor AIR 1936 All. 314

31. MM Haries 2005 Cri LJ 3314, Ker.

32. Mogul Steamship Co V. McGregor & Co. (1889) 29 QBD 598

33. Narayan Das V. State AIR 1952 Ori. 149

34. Narendra V. Union Of India AIR 1960 SC 430

35. Niharendu Dutt MajumdarV. King Emperor AIR 1939 Cal 703

36. Ozhair Hussain V. Union Of India Air 2003 Del 103

37. Papnasam Labour Union V Madura Coats Ltd, 1995 AIR 2200, 1995 SCC

(1) 501

38. Queen Empress V Bal Gangadhar Tilak ILR (1898) 22 Bom. 112.

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39. Ramnandan V. State AIR 1959 All 101

40. Ranjit D. Udeshi V. State Of Maharashtra AIR 1965 SCC 882

41. Rev. Stanislaus V. State of Madhya Pradesh AIR 1977 SC 908

42. Romesh Thappar V. Union of India [1950] S.C.R. 594

43. Roth V. United States 354 US 476

44. S. Khushboo V. Kanniamal & Anr (2010) 5 SCC 600

45. Sakal Papers (P) Ltd. & Ors. V. Union of India, (1962) 3 S.C.R. 842 at 866

46. Sanskar Marathe V. State of Maharathra, Cri.PIL 3-2015

47. Satya Ranjan Bakshi V. Emperor AIR 1929 Cal. 309 at 314

48. ShreyaSinghalV. Union of India AIR 2015 SC 1523

49. Speiser V. Randall 357 US 513

50. State of Andhra Pradesh V. Challa Ramakrishna Reddy AIR 2000 SC 2083

51. State of Assam V. FasiullahHussain (2013) 4 GLT

52. State of Bihar V. GhulamSarwar AIR 1965 Pat 393

53. State of Gujarat V. Mirzapur Moti Kureshi Kassab Jamat AIR 2006 SC 212

54. State Of Punjab V. Devans Modern Breweries Ltd (2004) 11 SCC 26

55. State of Rajasthan V. RavindraSinghi (2001) 3 WLN 242

56. Sushila Saw Mill V. Sate of Orissa (1995) 5 SCC 615

57. Tara Singh Gopi Chand V. State AIR 1951 Punj. 27

58. Union of India V. Motion Picture Association AIR 1999 SC 23345

59. Ward (1872) LR 1 CCR

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B. BOOKS REFERRED

S. No. NAME

1. Code of Criminal Procedure (in 2 Vols.), B.B.Mitra, revised by Justice

S.R.Roy

2. Indian Penal Code – RatanLal and DheerajLal Volume 1

3. Indian Penal Code – Ratanlal And DheerajLal Volume 2

4. Ram Jethmalani – On Indian Penal Code Volume 1 and 2

5. The Code of Criminal Procedure (CRPC), Ratanlal&Dhirajlal, with a

Foreword Justice M.N.Venkatachaliah

6. The Code of Criminal Procedure (CRPC), 21th edition, 2014

7. Commentary On Constitutional Law, Durga Das Basu, Volume 2, 2008, 8th

Edtion

8. Commentary On Constitutional Law, Durga Das Basu, Volume 3, 2007

Edition

9. Shorter Constitution of India, Durga Das Basu, Volume 1, 2010, 14th Edition

10. Human Rights in Constitutional Law, Durga Das Basu, 2008, 3rd Edition

11. Universal’s Criminal Manual, 2014

12. Commentary on the Constitution of India, Durga Das Basu, 1989

13. Introduction to the Constitution of India, Durga Das Basu, 2002 Edition

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C.ACT, RULES AND INSTRUCTIONS

1. The Indian Penal Code 1860

2. The Criminal Procedure Code 1973

3. The Constitution of India 1950

D.ONLINE DATABASES

1. Manupatra www.manupatra.com

2. SCC Online www.scconline.in

3. Indian Kanoon www.indiakanoon

4. JSTOR www.jstor.org

5. Indian Kanoon www.indiakanoon

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STATEMENT OF JURISDICTION

The Petitioner have approached this Hon’ble Court under Article 321 of the
Constitution. The writ petition has been accepted.

1
Article 32 of The Constitution of India:
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction all or any of
the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution. 2

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STATEMENT OFISSUES

A. WHETHER SECTION 124A OF THE INDIAN PENAL CODE, 1860,


CONSTITUTES AN UNREASONABLE RESTRICTION ON THE FREEDOM
OF SPEECH AND EXPRESSION UNDER ARTICLE 19(1)(A) OF THE
CONSTITUTION OF INDIA ?

B. WHETHER THE BAN OF PRODUCTION OF CDS BY I LOVE


TRUMP LIMITED CONSTITUTES AN UNREASONABLE RESTRICTION
ON THE FREEDOM TO CARRY OUT ANY TRADE OR OCCUPATION
UNDER ARTICLE 19(1)(G) OF THE CONSTITUTION OF INDIA ?

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STATEMENT OF FACTS

A. DharmanandPover V. Union of India (Special Leave Petition


no. 1996/2016)
1. Kamlala Nohru University (“KNU”) is an established, elite educational
institution located in New Delhi, India, which offers inter alia, post graduate
and higher courses in the field of liberal arts.The student politics has
traditionally been dominated by students affiliated to the Championist Party
Of India - Farcist (“CPI-F”), a left-leaning political party with communism as
its core ideology. The other significant political presence on the KNU campus
is of students affiliated to the Desh Jalao Party (“DJP”), a right-wing political
party with a pro-Hindutva agenda (promoting the Hindu religions and its
beliefs). Verbal spats between rival political groups have become a common
occurrence, and there have been instances of physical altercation as well.
Sanwariya Kumar, Kabmar Khalid and Kamiban Bhattacharya are CPI-F
affiliated PhD scholars at KNU, and Sanwariya Kumar is the president of the
university’s student council for the academic year 2016-’17.
2. Every year, a few students at KNU conduct a rally to condemn the occupation
of certain parts of the territory of Kashmir by the Republic of India. At the
annual rally conducted on February 9, 2016, various slogans were raised
against the tyranny of the Indian state. The slogans were initially about
“Azadi” (an expression commonly understood to connote the struggle of the
Kashmiri people against Indian rule), but as the rally progressed, the slogans
soon took a turn towards aggression and the tenor changed to anti-India
chants. It is alleged that slogans to the effect of “death to India”, “we will
wage war against this tyrannical state till it crumbles” and “we will avenge the
murder of Taqbool” were raised.
3. Members of DJP filmed the entire event and subsequently alerted the police,
who arrived at the KNU campus in order to put an end to the rally. The police
arrested Sanwariya Kumar, Kabmar Khalid and Kamiban Bhattacharya from
amongst the rally, on charges of sedition under section 124A of the Indian
Penal Code, 1860. They were subsequently released on conditional bail, and
criminalproceedings against them are currently pending. As a result of which,

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the CPI-F affiliated students held several ralliesdefending their freedom of


speech and expression.
4. On hearing about this matter, Dharmanand Pover, a public-spirited advocate,
agreed to representthe students of KNU. He filed a writ petition in the High
Court of Delhi under Article 226 of the Constitution of India, arguing that:
(i) the crime of sedition within the meaning of Section 124A of Indian
Penal Code 1860, constituted an unreasonable restriction on the right
to freedom of speech and expression set out in Article 19 of the
Constitution of India;
(ii) Article 19 protects the freedom of the individual to disagree with state
policy and dissent against actions of the state. on charges of sedition
under section 124A of the Indian Penal Code, 1860.
5. The High Court disagreed with Mr. Pover’s submissions andupheld the
constitutionality ofSection 124A, holding it to be a reasonable restriction on the
right to freedom of speech andexpression set out in Article 19, stating that :

“The thoughts reflected in the slogans raised by some of the students of KNU
who organized and participated in that programme cannot be claimed to be
protected as fundamental rightto freedom of speech and expression. I consider
this as a kind of infection from which such students are suffering which needs
to be controlled/cured before it becomes an epidemic.Whenever some infection
is spread in a limb, effort is made to cure the same by givingantibiotics orally
and if that does not work, by following second line of treatment. Sometimesit
may require surgical intervention also. However, if the infection results in
infecting the limbto the extent that it becomes gangrene, amputation is the
only treatment.”

6. However, the High Court of Delhi granted Dharmanand Pover leave to appeal
to the Supreme Court. Hence, the present appeal.
B. Gentlemanian Swamy v. Laveesta Ketalvad (Special Leave
Petition no. 1997/2016)
7. Gentlemanian Swamy is a Member of Parliament with a strong pro-Hindutva
ideology. He is a well known political figure who enjoys mass support from
various categories of people, particularly members of the RandomSelf-

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Helping Sods (“RSS”). Gentlemanian routinely writes negatively about


various fellowpoliticians and members of minority communities, and has in
the past filed various casesquestioning transactions involving other politicians.
8. To propagate his ideology of Hindu superiority over other religions,
Gentlemanian runs a flourishing CDbusiness through his wholly-owned
company, I Love Trump Limited, which specialises inproducing and
distributing provocative songs and videos targeting minority communities
withexplicit threats of mass murder and sexual violence. His CDs are very
popular in North India,and his songs and videos are routinely played at
meetings of the RSS.
9. Laveesta Ketalvad, an advocate specialising in representing victims of
communal violence, filed awrit petition before the H.C. of Delhi under Article
226 of the Constitution of India,seeking a ban on the production and sale of
CDs by I Love Trump Limited on the ground that the CDs were provocative
and sought to create discord between communities, and disrupt the harmony in
society leading to escalated tension and the outbreak of communal riots, and
the production and distribution of CDs constituted the crime of promoting
enmity between communities within the meaning of section153A of the Indian
Penal Code, 1860. In reply to this contention, Gentlemanian argued that the
right to carry on any trade or occupation under Article 19 of the Constitution
of India protected his right to produce anddistribute CDs. The High Court of
Delhi ruled in favour of Laveesta, and held that the ban onproduction and
distribution of CDs was a reasonable restriction on Gentlemanian’s right to
carry on any trade or occupation. The single judge bench of the High Court
observed:
“The respondent is well-known to the world as a mischief monger. A bare
perusal of theliterature distributed by him reveals his evil intentions to
heighten animosity and distrustbetween communities. He advocates for the
killing of all non-Hindus if they do not accept theirHindu ancestry. Such a
man must not be allowed to air his venomous thoughts to the gullibleyouth of
this great nation. Accordingly, we find that an outright ban on the production
anddistribution of CDs by I Love Trump Limited is a reasonable restriction on
the respondent’sright to carry out any trade or occupation.”

Hence, the present appeal.

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SUMMARY OF ARGUMENTS

A. WHETHER SECTION 124A OF THE INDIAN PENAL CODE, 1860,


CONSTITUTES AN UNREASONABLE RESTRICTION ON THE FREEDOM
OF SPEECH AND EXPRESSION UNDER ARTICLE 19(1)(A) OF THE
CONSTITUTION OF INDIA?

It is humbly submitted that section 124A of Indian Penal Code, 1860 constitutes an
unreasonable restriction to freedom of speech and expression under article 19(1)(a)
of the Constitution of India and further the does not fall within the ambit of section
124A .
Every citizen has the right to Freedom of Speech and expression and the same can be
restricted by imposing reasonable restrictions .The offence of sedition has an essential
requirement of disturbance of public order or incitement to violence. The alleged
slogans which were raised by the students did not lead to any public disorder or
incitement to violence and thereby arrest of these students by the police by applying
section 124A of IPC is an unreasonable restriction on the Freedom of Speech and
Expression granted under Article 19(1)(a) of the Constitution of India . Even the High
Court has failed to acknowledge the fact that the alleged offence did not per se fall
within the ambit of Section 124A of IPC.

B. WHETHER THE BAN OF PRODUCTION OF CDS BY I LOVE


TRUMP LIMITED CONSTITUTES AN UNREASONABLE RESTRICTION
ON THE FREEDOM TO CARRY OUT ANY TRADE OR OCCUPATION
UNDER ARTICLE 19(1)(G) OF THE CONSTITUTION OF INDIA?

Itis submitted that the decision of the H.C. in banning the production and distribution
of I Love Trump Limited does not constitute an unreasonable restriction as it is well
within the scope of Article 19(6) and it is further in violation of Sections 153A, 292,
293, 295A of the Indian Penal Code1860, Article 21, 25,38 &51A, (e), (f) of the
Constitution of India, and Section 95 of Criminal Procedural Code, 1973.

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The content of Mr. Swamy’s CD’s is of such a nature that it is in violation of several
provisions of law, due to which, the High Court was correct in banning the production
and distribution of the same. The CD’s contain explicit threats of murder and sexual
violence towards minorities if they do not accept Hinduism as their religion, which is
detrimental to communal peace, societal interest, violative of freedom of trade and
profession, right to dignity, right to religion which may be found in Articles
19,21,25,38 and 51A of the Constitution of India, as well as of a nature to encourage
communal violence, hurt religious sentiments and of an obscene and/or corrupting
nature as under Sections 153A, 292,293, 295A, 298 of the Indian Penal Code 1860
and Section 95 of Code Of Criminal Procedure, 1973.
In light of the same, it is contented that the decision of the High Court was correct as
there has been no infringement of Mr. Swamy’s right, under Article 19(1)(g), for the
banning of his CD business was a reasonable restriction.

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ARGUMENTS ADVANCED

A. WHETHER SECTION 124A OF THE INDIAN PENAL CODE, 1860,


CONSTITUTES AN UNREASONABLE RESTRICTION ON THE FREEDOM
OF SPEECH AND EXPRESSION UNDER ARTICLE 19(1)(A) OF THE
CONSTITUTION OF INDIA?

It is humbly submitted that section 124A of Indian Penal Code, 1860 constitutes an
unreasonable restriction to freedom of speech and expression under article 19(1)(a).
1. As per the facts, Sanwariya Kumar, Kabmar Khalid, and Kamiban Bhattacharya
were accused of allegedly raising Anti India Chants and Slogans of Azaadi. It is
imminently clear that their acts did not create any Public Disorder or any
incitement of violence, nor do they fall within the ambit of Section 124A of
IPC,1860.
Freedom of speech, considered the basic freedom by most philosophical thinkers,
consists of several facets, including the right to express one’s opinion unhindered,
unfettered by the fear of retribution. It is one of the most basic elements for a
healthy, open minded democracy and is foundation of any democratic society2.
2. Under Indian Constitution Freedom of speech and expression has been guaranteed
under Article 19(1)(a) Article 19(1)(a) reads as :“Protection of certain rights
regarding freedom of speech, etc.—All citizens shall have the right— (a) to
freedom of speech and expression.”
2.1 The freedom of speech under Article 19(1)(a) includes the right to express one’s
views and opinions at any issue through any medium. It thus includes the right to
propagate opinion. The Preamble of the Constitution of India inter alia speaks of
liberty of thought, expression, belief, faith and worship.
As in RomeshThappar V. Union of India3, Justice Patanjali has rightfully held
that 19(1)(g) is the very basis and essence of the constitution and our democracy
which is further supported by Maneka Gandhi V. Union of India 4 ,Bhagwati
J.,has emphasized on the significance of the freedom of speech & expression in
these words:“Democracy is based essentially on free debate and open discussion,

2
Union of India V. Motion Picture Association , AIR 1999 SC 23345
3
[1950] S.C.R. 594
4
1978 AIR 597, 1978 SCR (2) 621

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for that is the only corrective of government action in a democratic set up. If
democracy means government of the people by the people, it is obvious that every
citizen must be entitled to participate in the democratic process and in order to
enable him to intelligently exercise his rights of making a choice, free & general
discussion of public matters is absolutely essential.”The right of free speech is
absolutely indispensable for the preservation of a free society in which
Government is based upon the consent of an informed citizenry and is dedicated
to the protection of the rights of all, even the most despised minorities.5
2.2 In a separate concurring judgment Beg,J. said in Bennett Coleman & Co. &Ors.
V. Union of India &Ors.6,that the freedom of speech and of the press is the Ark
of the Covenant of Democracy because public criticism is essential to the working
of its institutions.In S. Khushboo V. Kanniamal & Anr.7, this Court stated that
the importance of freedom of speech and expression though not absolute was
necessary as we need to tolerate unpopular views.

3. It is submitted that when it comes to democracy, liberty of thought and


expression is a cardinal value that is of paramount significance under our
constitutional scheme. 8 However this right is subject to reasonable restrictions
being imposed under Article 19(2)9. The freedom to air ones views is the lifeline
of every democratic institution and any attempt to stifle, suffocate this right would
be inconsistent with the democratic setup.10 So, it can be construed that freedom
of speech, is crucial to the working of a democratic Constitution and is an aspect
of human self fulfilment or autonomy.

4. It is submitted that The Constitution of India does not define the word sedition.
Section 124-A of the Indian Penal Code defines the offence of ‘Sedition’ and
provides as follows “Whoever, by words, either spoken or written, or by signs, or
by visible representation, or otherwise, brings or attempts to bring into hatred or
contempt, or excites or attempts to excite disaffection towards, the
5
Speiser V. Randall, 357 US 513.
6
[1973] 2 S.C.R. 757 at 829 ; See also Sakal Papers (P) Ltd. & Ors. V. Union of India, (1962) 3 S.C.R.
842 at 866; RomeshThappar V. The State Of Madras,1950 AIR 124
7
(2010) 5 SCC 600(Para 45)
8
ShreyaSinghal V. Union of India AIR 2015 SC 1523
9
Article 19(2) The Constitution of India, 1950
10
LIC V. Manubhai D. Shah, AIR 1993 SC 171

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Governmentestablished by law in India11, As per the Indian law, sedition is any


form of speech, action, writing that incites hatred against the established order and
harms the systematic peace of the country.12
4.1 With increasing incidents of mutiny and the rising wave of nationalism, the
offence of sedition was incorporated by the British Government under Section
124A of the IPC.The main object to bring in such a tool was to suppress the
voices against the British, not to serve the people but to rule. Bal Gangadhar Tilak
was tried under sedition law, was convicted and sentenced to six years
imprisonment to Mandalay jail13.
Mahatma Gandhi was tried in 1922 for his articles published in the
magazine Youth India. Mahatma Gandhi said that ‘the section 124-A under which
he was charged is perhaps the prince among the political sections of the IPC
designed to suppress the liberty of the citizen’14.

4.2 In Niharendu Dutt MajumdarV. King Emperor15, The Federal Court held that
“public disorder or the reasonable anticipation or likelihood of public disorder is
the gist of the offence”. The court was of the view that sedition implies resistance
or lawlessness in some form. In King Emperor V. Sadashiv Narayan
Bhalerao 16 ,the Privy Council overruled the decision of the Federal Court and
held that excitement of feelings of enmity to the government is sufficient to make
one guilty under Section 124A of IPC.
4.3 A prominent objection to the inclusion of sedition as an exception to the freedom
of speech and expression under Article 19(2) was raised by SardarHukum
Singh17. He also criticised the validation of laws on the ground that they were “in
the interest of public order” or undermined the “authority or foundation of the
state” as classifications that were too vague. 18 . Most vocal opposition to the
inclusion of the term sedition came from Mr. K.M. Munshi 19.The term ‘sedition’

11
Section 124A of Indian Penal Code,1860
12
Kedarnath V. State of Bihar , 1962 AIR 955
13
Queen Empress V. Bal Gangadhar Tilak, ILR (1898) 22 Bom. 112.
14
A.G. Noorani Indian Political Trials: 1775-1947, page no. 235
15
AIR 1939 Cal 703
16
(1944) 46 BOMLR 459
17
Constituent Assembly Debates on December 7, 1948,
18
Constituent AssemblyDebates on December 7, 1948
19
Constituent Assembly Debates on 1 December, 1948 Part I Volume VII

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was thus dropped from the suggested amendment to Article 13 of the


Draft Constitution.
Even P.M. Jawaharlal Nehru was against the existence of offence of
sedition 20 ,Nehru’s government decided to amend the Constitution inserting the
words ‘public order’ and ‘relations with friendly states’ into Article19 (2) and the
word ‘reasonable’ before ‘restrictions’, which was meant to provide a safeguard
against misuse by the government21.
4.4 In the case of Ramnandan V. State22, Allahabad HC declared Section 124A of
IPC unconstitutional as the Court was of the opinion that the said section
transgressed its authority by imposing unreasonable restriction on the freedom of
speech enshrined under Article 19(1)(a). As a result of this, the meaning of the
term “Sedition” given by the Privy Council was rejected.
The after math of the case is reflected in Kedarnath V. State of Bihar23 where
the Privy council’s interpretation of “Sedition” was edited i.e. it was narrowed
down to fit the current scenario as well as to fall within the ambit of 19(2) thereby
becoming a reasonable restriction.The SC made it clear that allegedly seditious
speech and expression may be punished only if the speech is an ‘incitement’ to
‘violence’, or ‘public disorder’.The crime of sedition over the years has been
narrowed down to the extent that merely criticizing the policies and actions of
government will not attract the crime of sedition but if the actions and words
incite the feelings of hatred and disaffection in the minds of the audience, it will
be considered as sedition.24
4.5 It is submitted that now sedition is being used as a political tool. The law has been
misinterpreted time and again. More than fifty years have passed since Kedarnath
judgment, which laid down the interpretation of sedition as it is understood today.
The provision under Section 124A is being allowed to be put to use irrespective of
whether or not the alleged act or words are, in fact, seditious acts, or words
constituting a “tendency to cause public disorder or incitement to violence”25.

20
Parliamentary Speech on the Bill relating to the First Constitution of India Amendment 1951
21
The Constitution (First Amendment) Act, 1951
22
AIR 1959 All 101
23
1962 AIR 955
24
1962 AIR 955
25
Sanskar Marathe V. State of Maharathra, Cri.PIL 3-2015

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It is submitted that the charges of sedition against the accused have failed to stand
up to judicial scrutiny. Charges for the offence of sedition today are framed with a
view to instil fear and to scuttle dissent and are in complete violation of the scope
of sedition laid down Kedarnath’s case26.
4.6 In 1979, India ratified the International Covenant on Civil and Political Rights
(ICCPR), which sets forth internationally recognized standards for the protection
of freedom of expression27. However, misuse of sedition law under Section 124A
and arbitrary slapping of charges continue to restrict speech in ways inconsistent
with ICCPR.
4.7 It is acknowledged that the words which directly provoke violence or which
directly threaten the maintenance of public order may deserve censure under the
restrictions mentioned in Article 19(2) of the Indian Constitution28. However, that
is not what the misapplication of sedition law seeks to achieve. The present
practice of misapplication of sedition law aims to crush all opposition to the ruling
political party. Its regular use continues to hamper freedom of speech and
expression in the country.
4.8 It is submitted that though a very small number of sedition cases leads to actual
conviction,it causes harassment of individuals till the time judgment comes out.
There have been many cases :
(i) Prof. Binayak Sen, a civil right activist was arrested and convicted of the
offence of sedition in 2007 for having links with naxalites. Prof. Sen was
granted bail on an appeal filed before Chhattisgarh HC.29
(ii) In November 2010, noted writer and activist Arundhati Roy was charged
with Sedition by Delhi Police for allegedly having made anti-India
remarks at an event organized in Kashmir on 21.10.2010.
(iii)In September 2011 Anti-Nuclear activist S.P. Udayakumar, faced several
cases of sedition for protesting against Kudankulam Nuclear power Plant
in Tamil Nadu.
(iv) In September 2012 Aseem Trivedi, a noted political cartoonist was
arrested on the 09.09.2012, based on a political activist’s complaint that

26
Kedarnath V. State of Bihar , AIR 1962 SC 955
27
Artcile 19 of International Covenant on Civil and Political Rights
28
Article 19(2) of The Constitution of India, 1950
29
Dr VinayakBinayak Sen 2 Pijush ... V. State Of Chhattisgarh, Criminal Appeal No 20 of 2011

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his cartoons insulted the country. The charge was in connection to a


cartoon he had made depicting the national emblem in support of the anti-
corruption movement in the country.30
(v) In 2014 67 Kashmiri students were charged with sedition by the Uttar
Pradesh police for supporting Pakistan in a cricket match between India
and Pakistan. Later the Uttar Pradesh government dropped the charges.
(vi) In October 2015 Tamil folk singer S Kovan was slapped with a sedition
case for singing songs critical of Tamil Nadu Chief Minister J Jayalalithaa
and her liquor policy. He had criticized the state government for allegedly
profiting from state-run liquor shops at the expense of the poor. The
petition was later dismissed.
(vii) A resident of Kerala, Anwar Sadhik was arrested by police under
Section 124A for a derogatory Facebook comment.
(viii) On 15.02.2016 Former DU lecturer S.A.R Geelani was arrested on
sedition charge related to an event conducted at the Press Club in New
Delhi. The police had claimed to have registered the FIR taking suomotu
cognizance of media clips of the incident. Sessions court granted bail to
Geelani.
4.9 It is submitted that according to the National Crime Records Bureau (NCRB)
Report, 201431 as many as 47 sedition cases were reported in 2014 alone, across
India which did not involve violence or incitement to violence. As per the NCRB
figures total of 58 persons were arrested for the same with only one conviction.

4.10 With reference to facts of the present case 32 in Gurjatinder Pal Singh V.
State of Punjab 33 , Punjab & Haryana HC quashed the FIR filed against him
under Section 124A of the IPC, where in a religious ceremony organised in
memory of the martyrs during Operation Blue Star, the petitioner gave a speech to
the people present advocating the establishment “Khalistan”. He stated that the
Constitution was a “worthless/useless” books for the Sikhs. The supporters of the
petitioner then raised aggressive slogans and naked swords were raised in the air.

30
Sanskar Marathe V. State of Maharashtra , Cri.PIL 3-2015
31
National Crime Records Bureau (NCRB) Report, 2014
32
Moot Proposition (Para 2)
33
(2009) 3 RCR (Cri) 224

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The High Court cited the decision of the SC in Balwant Singh V. State of
Punjab34, where it was held that the mere casual raising of slogans a couple of
times without the intention to incite people to create disorder would not constitute
a threat to the Government of India.
The court have acquitted the citizens accused of the charge of sedition on the
grounds that the prosecution had failed to produce sufficient evidence to prove
that they had committed a seditious act35.
4.11 In the light of cases mentioned under 4.8, sedition law is used to threaten
civilians with legal action. The Law is misunderstood by the Police Authority, in
carrying out arrests and slapping charges, rarely have they given respect to the
restriction of ‘incitement to violence or threat of public disorder’. 36 In spite of the
fact that there being no imminent threat, even then it is used to curb the right to
free speech and expression.
4.12 The foundational reason adopted by the SC for validating the provision was
the retention of the sedition law in England at that time37.That law of sedition was
abolished in Britain in 2009,38 as it was found untenable in the light of the Human
Rights Act, 1998. The emphasis on free speech by the European Convention on
Human Rights (ECHR) accelerated the process of expulsion of sedition laws from
many democracies. New Zealand followed suit after noting that in the United
States, Canada and Australia, the law is practically in disuse. Therefore, it is clear
that the British legislation is no longer a good law in the legal or political sense.
5. A law like Sedition is a colonial law and has no place in a country like India.
When we construe Article 19(1)(a) and Section 124A of IPC together it is made
out that the current application of law goes way beyond its ambit.
5.1 This law creates an unreasonable restriction on the fundamental right to speech
and expression. This right of freedom to speech and expression granted by Article
19(1)(a) is not completely unchecked.Article 19(2) empowers the state to place
restriction on the fundamental right of speech and expression in the interest of:-

34
(1995) 3 SCC 214 : AIR 1995 SC 1785
35
Indra Das V. State of Assam ((2011) 3 SCC 380) ; State of Assam V.FasiullahHussain (2013) 4 GLT
284. ; State of Rajasthan V. RavindraSinghi (2001) 3 WLN 242
36
Sanskar Marathe V. State of Maharashtra , Cri.PIL 3-2015
37
Kedarnath V. State of Bihar , AIR 1962 SC 955
38
Coroners and Justice Act, 2009

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Sovereignty and Integrity of India ,The Security of the State, Friendly relations
with foreign states, Public order, Decency or Morality, Contempt of Court,
Defamation, Incitement to an offence.

In Chintaman Rao V. State of M.P. 39 SC said:"The phrase 'reasonable


restriction' connotes that the limitation imposed on a person in enjoyment of the
right should not be arbitrary or of an excessive nature, beyond what is required in
the interests of the public. The word 'reasonable' implies intelligent care and
deliberation, that is, the choice of a course which reason dictates. Legislation
which arbitrarily or excessively invades the right cannot be said to contain the
quality of reasonableness and unless it strikes a proper balance between the
freedom guaranteed in Article 19(1)(g) and the social control permitted by clause
(6) of Article 19, it must be held to be wanting in that quality."
5.2 The following principles and guidelines has been laid down for considering the
constitutionality of a statutory provision upon a challenge on the alleged vice of
unreasonableness of the restriction imposed by it40:
(a) The restriction sought to be imposed on the Fundamental Rights guaranteed by
Article 19 of the Constitution must not be arbitrary or of an excessive nature
so as to go beyond the requirement of felt need of the society and object
sought to be achieved.
(b) There must be a direct and proximate nexus or a reasonable connection
between the restriction imposed and the object sought to be achieved.
(c) It is imperative that for consideration of reasonableness of restriction imposed
by a statute, the Court should examine whether the social control as envisaged
in Article 19 is being effectuated by the restriction imposed on the
Fundamental Rights.
(d) Although Article 19 guarantees all the seven freedoms to the citizen, such
guarantee does not confer any absolute or unconditional right but is subject to
reasonable restriction, which the Legislature may impose in public interest. It
is therefore necessary to examine whether such restriction is meant to protect
social welfare satisfying the need of prevailing social values.
39
AIR 1951 SC 11
40
Papnasam Labour Union V. Madura Coats Ltd, 1995 AIR 2200, 1995 SCC (1) 501

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(e) Restriction imposed on the Fundamental Rights guaranteed under Article 19 of


the Constitution must not be arbitrary, unbridled, uncanalised and excessive
and also not unreasonably discriminatory.
In the light of above findings, it is submitted that the object of section 124A is to
punish any person for bringing the government into contempt or to excite
disaffection towards the government by ‘violent means’ and in the present there
has been an expression of an opinion by the students. The charge of sedition
section 124A of IPC is arbitrary and excessive which goes beyond the requirement
of the need of the society.A rally had been conducted every year inside the college
premises and the alleged raising of slogans did not result in any disturbance to
public order or any violence. There is no direct and proximate nexus or a
reasonable connection by charging the students for sedition and the object sought
to be achieved by this. The test of reasonableness has to be determined in an
objective manner and from the standpoint of the interest of general public41.The
charge of sedition is unreasonableness restriction and no social control can be
effectuated by imposing such restriction.
At best, the offence alleged to be committed in the present case is covered by
another law in force in India. Unlawful Activities (prevention) Act,1967,
Section2(1)(o) says that : “Unlawful Activity in relation to an individual or
association, means any action taken by suchindividual or association (whether by
committing an act or by words, either spoken or written, orby signs or by visible
representation or otherwise), and(iii) which causes or is intended to cause
disaffection against India”
It is humbly submitted that the restriction imposed by Section 124A of IPC
constitutes and unreasonable restriction on the Right to Freedom of Speech and
Expression (Article 19) and the same should be declared unconstitutional.
6. A state is an abstract and Government is one of the elements of the state, it is a
limb of the state. The word "Government" is not defined anywhere; what is stated
in Section 3(23) of the General Clauses Act is simply this that "Government"42
includes both the Central Government and the State Government. Each
government has acted time and again under the presumption that government and

41
Hanif Qureshi V. State of Bihar AIR 1958 SC 731
42
3(23) General Clauses Act ,1897; Section 17 IPC

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Nation are synonymous. Government established by law has to be distinguished


from the person for the time being engaged in carrying on the administration43.
Thus India and Government cannot be equated.

7. In the alternative, the present appeal before this Hon’ble court arises out of
Special Leave to appeal from the decision of High court. Prima facie the case is
not made out due to the absence of any public disorder or imminent threat. Even
the judiciary have failed to take notice of this and has convicted the accused for
the crime of sedition.

B. WHETHER THE BAN OF PRODUCTION OF CDS BY I LOVE

TRUMP LIMITED CONSTITUTES AN UNREASONABLE RESTRICTION

ON THE FREEDOM TO CARRY OUT ANY TRADE OR OCCUPATION

UNDER ARTICLE 19(1)(G) OF THE CONSTITUTION OF INDIA?

Itis submitted that the decision of the H.C. in banning the production and distribution
of I Love Trump Limited does not constitute an unreasonable restriction as it is well
within the scope of Article 19(6) and it is further in violation of Sections 153A, 292,
293, 295A of the Indian Penal Code1860, Article 21, 25,38 &51A, (e), (f) of the
Constitution of India, and Section 95 of Criminal Procedural Code, 1973.

1. As per The Constitution of India, Article 19(1)(g) confers upon the citizens the
fundamental right to engage in any profession, trade or business. it is important to
take into account that every fundamental comes with reasonable restrictions, and
so Article 19(6)44, statesthe freedom is available till such time that it does not
hamper the “interests of the general public”, which is an expression commonly
used to connote that an individual’s activity, shall be restricted by the State in case
they are endangering the health, life and the safety of public. It is to be borne in
mind that the term ”public45” is a collective word that is used to represent the
aggregate of all the residents of a nation, i.e., it unquestionably includes minority

43
Kedarnath V. State of Bihar , AIR 1962 SC 955
44
Constitution of India, 1950
45
Black’s Law Dictionary, available at http://thelawdictionary.org/public/

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communities as well. Therefore the restrictions under Article 19 have to be


considered from the standpoint of the public46, and not from the point of view of
individual persons upon whom the said restrictions have been imposed. In simpler
terms, it refers to welfare of the public being given superiority over the welfare of
a private individual or company.
1.1. Further, the Universal Declaration Of Human Rights, 1948, to which India is
a signatory, states under Article 29(2) that, in the exercise of his rights and
freedoms, everyone shall be subject only to such limitations as are determined
by law solely for the purpose of morality, public order and the general
welfare in a democratic society.47
1.2. It is therefore apparent, that across the world, the place of interest and welfare
of the publicis placed above an individual person’s fundamental right. India
too upholds the same :
Har Shankar V. Dy. Excise & Taxation Commissioner 48 , laid down that
freedom of trade can be completely curtailed in certain circumstances, depending
on the nature of the mischief to be remedied. Similarly, inNarendra V. Union Of
India49, the SC held that as under Clause (6), restriction can be either partial or
can be a total prohibition upon a business activity, and the “nature of the
business” would be taken to be an important element in determining how far the
restriction may go.
1.3. In the case at hand, mischief in question refers to attacking the minorities’
right to dignity and religion, circulating obscene content, creating enmity between
different groups on the basis of religion and hurting religious sentiments, all of
which, taken together, are a gross transgression of interest of the general; public,
and cannot under any circumstance be justified.
In State of Gujarat V. MirzapurMotiKureshiKassabJamat 50 it was stated
“restriction” under Article 19(6) includes prohibition. The standard for judging
reasonability of restriction, amounting to prohibition remains the same, excepting
that a total prohibition must also satisfy the test - a lesser alternative would be

46
NALSAR Pro, Chapter 4
47
United Nations’ Universal Declaration Of Human Rights, 1948 see also; See Also Constitution of
Japan, 1947, Article 22 see also; Swiss Constitution, Article 36(2)
48
(1975) 1 SCC 737
49
AIR 1960 SC 430 ; see also Sushila Mill v State Of Orissa, (1995) 5 SCC 615
50
AIR 2006 SC 212

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inadequate. Whether restriction amounts to a total prohibition is a question of fact


which will have to be determined with regard to the facts and circumstances of
each case, the ambit of the right and the effect of the restriction upon the exercise
of that right.
1.4. In the given case, partial prohibition would be an inadequate restriction as the
business is primarily that of producing and distributing the CD’s in question51, i.e.,
it specializesin the content being circulated, which is grossly detrimental to public
order and the interest of the general public.
2. Other than Article 19(6), the CD’s also violate Article 2552, which discusses one’s
right to profess any religion of his choice, “25. Freedom of conscience and free
profession, practice and propagation of religion”. It is thus clear that every citizen
has the right to choose his own faith and profess it. Be that as it may, no
fundamental right is known to be an absolute right, therefore, Article 25 is subject
to certain restrictions expressly made subject to public order, morality and health.
Thus, it cannot be predicted that freedom of religion can have no bearing
whatsoever on the maintenance of public order.
2.1. To come back to the facts of the case, the content on the CD’s in circulation
clearly infringes this right as it “advocates for the killing of all non-Hindus if they
do not accept their Hindu ancestry” 53 which shows Mr. Swamy intended to
violate the rights of the minority communities with respect to religion. The mala
fide intention behind the production of such harsh content is clearly forcible
conversion, which has been held to be in violation of Article 25 as per
ReV.Stanislaus V. State of Madhya Pradesh 54 , which states that forcible
conversion amounts to disturbance of public order and raises communal passions,
which is likely to affect the community at large.
2.1.1. Upon scrutiny of the CD’s they can additionally be found to violate
Article 21, for the ideas being propagated strip the minority citizens of
their beliefs and identities, and force upon them, an alien religion, which
is a credible, violation of Article 21, in terms of right to dignity, as was

51
Moot Proposition, Page3, Paragraph 7
52
Constitution Of India, 1950
53
Moot Proposition, Page 3, Paragraph8
54
AIR 1977 SC 908

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held in the case of Bijoe Emmanuel &Ors V. State Of Kerala55.The


same is being done via the CD’s.
3. The sheer importance and unparalleled weightage of Article 21, i.e., Right to life
and personal liberty, in our country, can be easily understood from various
judgments such as –
3.1. “Article 21 is one of the basic human rights and not even the State has the
authority to violate it.” –State of Andhra Pradesh V. Challa Ramakrishna
Reddy56.
“Article 21 is a declaration of deep faith and belief in human rights. In this
pattern of guarantee woven in Part III of the Constitution, personal liberty of man
is at the root of Article 21 and each expression used in this Article enhances
human dignity and values.”-OzhairHussain V. Union Of India57.
4. The controversial content is also found to be contradictive to Articles 38 and
various sub-clauses of Article 51A, which are Directive Principles of State Policy
and Fundamental Duties, respectively. The Directive Principles of State Policy are
the guidelines or principles given to the Government of India, and Fundamental
Duties are obligations upon every citizen, which the State expects them to fulfil.
These provisions are not enforceable by any court, but are to be interpreted in
harmonious construction with Part III.58
4.1. The SC has stated inn State Of Punjab V. Devans Modern Breweries
Ltd.59, that implementation of a directive principle is to be deemed to be within
the scope of restrictions in the general interest of the public.
4.2.ThusArticle 38 is valid in the present scenario, i.e., “....promote the welfare of
the people by securing and ‘protecting’ as effectively as it may a social... and the
H.C.’s decision to ban the CD’s was in furtherance of Article 38, i.e., protecting
the welfare and societal order, by preventing animosity between communities due
to religious beliefs and in doing so, the court was prudently shielding the society
from likely communal riots and unrest due to the offensive ideas that the CD’s
preach. The said ban also sought to prevent the circulation of obscene content in

55
1987 AIR 748
56
AIR 2000 SC 2083
57
Air 2003 Del 103
58
D.D. Basu, Commentary on Constitutional Law (Wadhwa and Co., Nagpur, 2008 Edition)
59
(2004) 11 SCC 26

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society, and especially to the gullible youth of the nation60. In case the restriction
had not been placed, Mr. Swamy would have fulfilled his agenda of targeting the
minorities by poisoning the mind of the impressionable youth.
4.3.Article 51A61 (e) to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious…diversities; (f) To value
and preserve the rich heritage of our composite culture. The CD’s however, seek
to establish Hindu dominance by way of violence and terror, which violates the
aforementioned values.
Therefore, that the extent of the mischief the CD’s were seeking to cause was
massive, and the court has acted prudently in banning them before they could
cause an upheaval in society and spread discord , thereby tainting India’s
religious diversity.
5. With further reference to the Indian Penal Code, 1860, the CD’s contain content
which is expressly banned under the Indian Penal Code under section 153A via
sections 292, 293 and 295A, 298.
6. The constitutionality of Section 153A has been established for once and for all
when it was re-added to the Code in 1969, after the case of GopalVinayakGodse
V. State of Maharashtra62. The crux of which talks about professing hatred and
ill feeling by one community towards another community.
6.1. The object of the section is to prevent racial or sectarian quarrels resulting in
the disturbance of public peace. It aims to punish those who either ‘attempt to
promote or promote class hatred or class enmity.’63The section also makes it clear
that it is unnecessary to establish the success of an attempt. A man cannot escape
from the consequences of uttering words, with intent to promote feelings
mentioned in the section, solely because the community to whom they are
addressed may be too wise or temperate to react to them.64
6.2.It is also important to correctly understand the meaning of the word“class”.
ManibenLiladhar Kara V. Emperor65 “classes” refers to any well defined and

60
Moot Proposition, Page3, Paragraph 8
61
Constitution Of India, 1950
62
AIR 1971 Bom.56 ; see also AIR 1951 Punj. 27
63
Section 153A, Indian Penal Code, 1860
64
Ratanlal&Dhirajlal, Commentary On Law Of Crimes, 711, (26 th Edition)
65
AIR 1941 Oudh. 33 at 41

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readily ascertainable group of subjects having some element of permanence or


stability and sufficiently numerous and widespread to be designated as a class.
6.3. Section 153A mentions “intention”. Allahabad High Court that to promote
hatred or enmity between different classes is not a necessary ingredient for the
offence under this section. Even if a question of intention could arise, it has to be
gathered from the words used, and they themselves would be conclusive. - 66 If the
words spoken or written are couched in a temperate, dignified, mild language and
do not have the tendency to insult the feelings or the deepest religious convictions
of any section of the people, the penal consequences will not follow.67In the case
of Kali Charan Sharma V. Emperor68 it has been stated by the Allahabad H.C.
that if the language used is of a calculated nature to produce or promote feelings
of enmity or hatred, for a person must be presumed to intend the natural
consequences of his acts.
6.4.Furthermore, in order to ascertain the intention of the accused, the offending
article must be read as a whole and the circumstances of publication must be
considered.69and that intention must be inferred from the nature of the words used
and their effect upon the class referred to as also from the state of feeling between
the two communities at the time of the act complained of, which was stated in the
case ofSatyaRanjanBakshi.70
6.5. It is thereby apparent in the present case71, the usage of explicit threats of
mass murder and sexual violence, to promote Hindutva are in no way mild or
dignified, but rather, are dishonourableand aim to illicit a reaction from both
communities to act upon (Hindu) or against (minority) them. It can therefore be
said that the content of the CD’s stemmed from a mala fide,intention. This crafty
method sought to degrade the minority, by means of usage of language and
depictions which showed malice and was bound to offend the minority religions
and create feeling of enmity, which has been emphasized as a perquisite for the
section being discussed, in the case of Harnam Das72.

66
MLC Gupta V. Emperor AIR 1936 All. 314
67
Azizul Haq Kausar Naquvi V. State, AIR 1980 All. 149
68
AIR 1927 All. 649
69
State of Bihar V. GhulamSarwar, AIR 1965 Pat 393
70
SatyaRanjanBakshi, AIR 1929 Cal. 309 at 314
71
Moot Proposition, Page 3, Paragraph 7
72
(1957) 1 All. 528

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6.6.1. Whether the CD’s are examined in whole or in part, the content is of
such offensive nature that it cannot be interpreted as not being violative of
section 153A due to the simple fact that no person or community would take
the threat of being butchered and/or take a threat of being subjected to sexual
violence lightly, specially if it comes from a person in power and a man with
wide reach and support. Further, there have been innumerable instances of
communal violence in the country, between Hindus and various minorities,
such as the 2013 Muzzafarnagar riots between Hindus and Muslims, 2012
Assam riots between Bodo’s and Bengalis, Anti-Sikh riots in 1984 etc.73which
further cements the minds of the minorities. Hence the CD’s are liable u/s
153A of the Indian Penal Code, 1860.
6.7. Moreover, with reference to the consequence of the circulation of the CD’s or
lack thereof, it was been established in Gopal’s case74 that under this section it is
not necessary to prove that the result of the objectionable matter, it is enough to
show that the language of the writing is of a calculated nature to promote feelings
of enmity or hatred, for a person must be presumed to intend the natural
consequences of his acts, thereby reducing the weightage of actual intention.
6.8.Another relevant precedent is the case of Bilal Ahmad Kaloo V. State of
Andhra Pradesh75, where the S.C. held that Section 153Arefers to promotion of
feeling of hatred or ill will between different religious/racial/regional
communities. Therefore, it is necessary that at least two such groups or
communities should be involved. Merely inciting the feeling of one community or
group without any reference to any other community or group cannot attract either
of the two sections.
This is highly relevant to the present case as the CD’s talks about the Hindu
superiority and targets minorities to make them accept Hinduism. It is therefore
clear that Swamy was fulfilling the requirement of involvement of more than one
community.In light of all the discussed points, Mr. Swamy is more than liable to
be convicted under section 153A.

73
see also ; Amarnath Massacre, 2000 see also ; Tripura unrest, 2004
74
(1969) 72 Bom. LR 871
75
1997 Cri.LJ 4091 (SC)

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7. Furthermore, Section 295A 76 , which deals with “…insulting its religion or


religious beliefs”.77 And section 298 which refers to “Uttering words etc., with
deliberate intent to wound religious feelings”78
7.1.Section 295A explicitly states that if the words used were bound to be
regarded by any reasonable man as grossly offensive, provocative and were
maliciously intended to be regarded as such, then an offence is committed, and it
is no defence for the accused to say that he did so in order to call attention to some
matter in need of reform as this is not the proper way to secured proper reform.79
7.2.In order for, section 295A and 298 to apply, the Law Commissioners have
observed that there should exist a malicious intent & intention must be deliberate
i.e., not conceived on the sudden in the course of discussion, but premeditated.
Also, if a party were to force himself upon the attention of another, addressing to
him, an involuntary hearer, he would be conceived to fall under the definition of
deliberate intention. 80 The term “maliciously” denotes an evil or perverse
disposition.81 It means and implies an intention to do an act which is wrongful and
to the detriment of another.82
7.3. As per theGazette of India83“the essence of the offence is that the insult to
religion or the outrage to religious feelings must be the sole, or primary, or at least
the deliberate and conscious intention.” Mr. Swamy’s CD’s deliberately intended
to hurt the religious sentiments of the minority communities by way of threats and
forcible conversion. Sexual violence and mass murder would be repulsive to any
reasonable man and therefore; it would amount to deliberate intention.
7.4.Another facet of deliberate intention under both Section 295A and 298 is that
intention has undoubtedly to be inferred from the words spoken, the place
where they were spoken, and the persons to whom they were addressed and
other surrounding circumstances, as was held in the case of Narayan Das V.
State84.

76
Indian Penal Code, 1860
77
Indian Penal Code, 1860
78
Ibid 76
79
King v NgaShweHpi AIR 1939 Ran 199
80
Ratanlal and Dhirajlal’s Commentary on Law Of Crimes, 26 th Edition, Page 1273
81
Ward (1872) LR 1 CCR
82
Mogul Steamship Co V. McGregor & Co. (1889) 29 QBD 598
83
Gazette Of India, September 17, 1927, Part V, Page 251
84
AIR 1952 Ori. 149

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7.5. In light of the mentioned case, it is clear that the content on the CD’s was
addressed to the Hindu community in order to ignite a feud between the Hindus
and other religions, given Mr. Swamy’s influence as a politician and a powerful
man in terms of wide reach and mass support, it is clear that he did in fact, attempt
to hurt religious sentiments and cause communal disorder.
8. Furthermore, the act of banning production of his CD’s is further justified by
Section 95 of the Code of Criminal Procedure, which provides for the confiscation
and/or seizure ofthat any document (painting, drawing, photograph or any other
visible representation), wherever printed, appears to the State Government to
contain any matter the publication of which is punishable under section 153A or
292 or 293 or 295A of the Indian Penal Code 1860.85The said order under section
95 of CrPC cannot be said to be violative of Article 19(1)(g) of the Constitution,
as the order is in pursuance of the reasonable restrictions imposed by the
parliament.86Therefore, it is evident that Mr. Swamy’s CD’s did aim to cause
communal disorder and clearly offended religious sentiments of the minority
society.
9. Another contention on part of the appellants is that the CD’s were obscene in
nature as under Section 292, i.e., they were lascivicious, in prurient interest and
had the ability to corrupt a viewer’s mind, therefore their circulation to the gullible
youth of the nation87, falls under the ambit of section 293 of the Indian Penal
Code, 1860.
10. “Obscene” meansimpure; indecent; calculated to shock the moral sense of man by
a disregard of chastity or modesty88.According to US Laws, "Obscene"89 means
that to the average person, applying contemporary standards, the predominant
appeal of the matter, taken as a whole, is to prurient interest, and is matter which
is utterly without redeeming social importance.
10.1. Hence one can infer that the material that the CD’s contained falls directly
within the scope of Section 292, as it is indecent, it would reasonably offend a
rational person.Section 292 also covers those who sell, circulate, publish or make

85
Section 95 Code of Criminal Procedure, 1973
86
Baragur Ramchandrappa V. State of Karnataka, 1998 Cri LJ 3639
87
Moot Proposition, Page 3, Paragraph 8
88
Black’s Law Dictionary
89
Californian Penal Code, 1872, Section 311

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profits out of any business dealing in the materials specified in the section, thereby
covering the I Love Trump Ltd. in its scope.
10.2.Mr. Swamy’s circulation of such material has been proved to influence the
opinions of those reading it, as it has garnered popularity in parts of North
India90and given Mr. Swamy’s societal standing91, it is not advised for him to pass
such remarks as they may prove to be unfavourable to the country’s national
interest. It is also stated that Mr. Swamy is known for passing numerous
controversial statements, thereby having no regard for the consequence of his
actions, which yet again establishes the nature of the content on the CD’s, for a
reasonable man is presumed to know the consequences of his actions.
10.3. It may be argued that “obscene” prima facie seems to convey sexual content,
but it has been established that its scope is wider that merely sexual content. In
Roth V. United States92, Knuller Ltd. V. DPP93, John Calder Publications V.
Powell94, it was held that the definition of “obscenity” was not limited to
publications on sex and “deprave and corrupt” should not be construed narrowly
to mean sexual depravation. The SC in Ranjit D. Udeshi V. State Of
Maharashtra95 was of the view that it is an important interest of society to
suppress obscenity. There is of coursesome difference between obscenity may,
etc. not intended to offend against public decency and morals do, but which have
the tendency to do so.”
10.4.If a publication is detrimental to public morals and calculated to produce a
pernicious effect in depraving and debauching the minds of the persons in whose
hands it may come, it will be an obscene publication, which it is the intention of
the law to suppress.96Anything distinctly calculated to incite a reader to indulge in
acts of indecency or immorality is obscene.97If the publication in question has the
tendency to corrupt the minds of the readers, it falls within the mischief of this
section, notwithstanding innocent or laudable object of the author or publisher.98

90
Moot Proposition, Page 3, Paragraph 7
91
Moot Proposition, Page 2, Paragraph 6
92
354 US 476
93
1973 AC 435 House Of Lords
94
1965, 1 QB 509
95
AIR 1965 SCC 882
96
Emperor V. Hari Singh (1905) 28 All. 100
97
Kherode Chandra Roy Chowdhury V. Emperor (1911) 39 Cal 377
98
CT Prim V. State, AIR 1961 Cal. 177

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10.5.Another facet of section 292 to be kept in mind is that there must be


widespread circulation. Sending the content directly to the personal residence of a
particular person does not attract Section 292.99
10.6. The Community Standard Test, which was developed in the case of Miller
V. California100in 1973, and its aim is to determine what is obscene. It works on
three parameters, namely –
 Whether "the average person, applying contemporary community standards",
would find that the work, taken as a whole, appeals to the prurient interest,
 Whether the work depicts or describes, in a patently offensive way, sexual
conduct or excretory functions, specifically defined by applicable state law,
 Whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value.
10.7The SC upheld the same, in the case of Aveek Sarkar V. State of West
Bengal101 and stated if it is acceptable to the society in general, the court must
accept it too. The message conveyed should be beneficial and helpful to the
society.
If this test is applied to the case at hand, it will be found that the average
person would find it offensive, society would not accept it and it contains
offensive sexual content, and it very much lacks social/political value.
11. To conclude, it is evident that the CDs are in violation of several provisions of
law, there has been no unreasonable restriction on his freedom of trade as
contended by him. Further, the High Court’s decision is sound and valid and the
ban on the production and distribution of his CD’s was needed as it is in public
interest.

99
MM Haries Case, 2005 Cri.LJ 3314 Ker.
100
413 U.S. 15
101
2014 4 SCC 257

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PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, the
Appellant mostrespectfullypleads and requests this Hon’ble court todeclare:

A. That Section 124A of the Indian Penal Code, 1860 constitutes an unreasonable
restriction on the right to freedom of speech and expression under Article 19(1)(a) of
the Constitution and thus be declared unconstitutional; and
B. That the ban imposed on I love trump limited be upheld as it constitutes a
reasonable restriction on the freedom to carry out trade and occupation under Article
19(1)(g) of the Constitution of India; and

And pass any other order it may deem fit, in the interest of Justice, Equity and Good
Conscience.

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