Code: 28R
MEMORIAL ON BEHALF OF RESPONDENTS
LAWCTOPUS LAW SCHOOL’S MOOT COURT
COMPETITION, 2021
IN THE SUPREME COURT OF INDIA
G.G Parwani (Petitioner)
V/s
Union of India (Respondent)
Petition NO ________ Of 2021
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The Constitutionality of Section 124A of the Indian Penal Code, Summaries of Indian Social Institutions
The constitutional validity of section 124a of the indian penal code, which defines the offense of sedition. It examines the arguments made by the respondents in a case challenging the constitutionality of this law, particularly in relation to the fundamental right of freedom of speech and expression under article 19(1) of the indian constitution. The document analyzes relevant case law and legal principles to determine whether section 124a strikes the right balance between individual rights and the interests of public order. It provides a detailed summary of the arguments and the supreme court's rulings on the matter, highlighting the nuanced interpretation of the sedition law and the limitations on its application.
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LAWCTOPUS LAW SCHOOL’S MOOT COURT
COMPETITION, 2021
IN THE SUPREME COURT OF INDIA
G.G Parwani (Petitioner)
V/s
Union of India (Respondent)
Petition NO ________ Of 2021
TABLE OF CONTENTS
- TABLE OF CONTENTS
- LIST OF ABREVIATIONS........................................................................................................
- INDEX OF AUTHORITIES
- STATEMENT OF JURIDICTION
- STATEMENT OF ISSUES
- I. The constitutional validity of S.124A of the Indian Penal Code
- article 19(1) of The Constitution of India a) Is 124-A violating the fundamental right of freedom of speech & expression given in
- upheld as being constitutional II. Whether the accused should be convicted on the merits of the case as well if Sec 124A is
- I. The constitutional validity of S.124A of the Indian Penal Code
- STATEMENT OF FACTS
- SUMMARY OF ARGUMENTS
- ADVANCED ARGUMENTS
- PRAYER
INDEX OF AUTHORITIES
A. ACT, RULES AND INSTRUCTIONS
B. BOOKS
C. CASES CITED
CASES CITATION Pg. No.
BrijBhushan & another v. State of Delhi AIR 1950 SC 129 9
Debi Soren & Ors v. The State Debi Soren & Ors v. The State
1954 CriLJ 758 10
Kedarnath Singh v. State of Bihar
AIR 1962 SC 955^10
Queen Emperor v. Ram Chandra Narayan and others (1897)I.L.R. 22 Bom. 152^
Reg. v. Alexander Martin Sullivan (1868) 11 Cox’s Criminal Cases 44 9
Niharendu Dutt Mazumdar v. Emperor AIR 1942 FC22 Pg- 26 13
R v. Burns and others 1886) 16 Cox CC 355 13
Indian Penal Code,
The Constitution of India, 1950 Indian Penal Code, 1860
The Constitution Of India,
Stephen, Commentaries on Law of England 1950 Vol.IV,Page- 141 - 142 Walter Russell Donogh, The History and Law of Sedition and Cognate Offences, Penal and Preventive, Thacker, Spink & Co., Calcutta, 1911 Page- 62
STATEMENT OF JURIDICTION
The Respondents have the honour to submit before the Hon’ble Supreme Court of India the memorandum of respondents in the case of G.G Parwani v/s The Union of India filed by petitioner asking the constitutional validity of section 124A of Indian Penal Code, 1860 under article 132 1 and 134-A 2 of The Constitution of India. (^1) Article 132 of The Indian Constitution : (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding,^1 [if the High Court certifies under article 134A] that the case involves a substantial question of law as to the interpretation of this Constitution.(3) Where such a certificate is given,^3 [] any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided^3 []. (^2) Article 134-A of The Indian Constitution : Certificate for appeal to the Supreme Court Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause ( 1 ) of Article 132 or clause ( 1 ) of Article 133, or clause ( 1 ) of Article 134(a) may, if it deems fit so to do, on its own motion; and(b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause ( 1 ) of Article 132, or clause ( 1 ) of Article 133 or, as the case may be, sub clause (c) of clause ( 1 ) of Article 134, may be given in respect of that case
STATEMENT OF FACTS
➢ Delhi, the national capital was a hotspot for political agitations and movements. The incumbent government headed by Mr Goyal has remained committed to his policies no matter what the opposition has to say. ➢ Rohan Chawla is a prominent free speech advocate residing in Delhi. He not only involved himself in public interest litigations but also, actively participates in people’s movement. One such movement was started by G.G Parwani against the human right abuses. ➢ Rishabh Tomar – a business executive turned spoke person of government was holding fort against the narrative of the people’s movement. ➢ Mr Chawla & Mr Tomar were from same law school in Beliaghata. However, they remained ideologically on opposite sides since their days in Beliaghata. They clashed on a prime-time TV debate where Mr Chawla suddenly started shouting slogans “ Goyal tu hai bewafa, abto dede istifaah.” This was quite unusual for Mr Chawla who usually remains very calm & composed. ➢ This rage continued till the next day at a fast unto death ( Anshan) organized by Mr Parwani. He was addressing crowds of over thousands. He delivered the most thrilling speech. Extracts of it are as under: “Mr Goyal you and your stooges in the government have destroyed this country. The thousand cuts that you have inflicted on our democracy will not be forgotten. Friends, ours is the day to seize and conquer. For, if we remain meek & hidden, this government which has till now obliterated our less privileged will come for you & me. Instead, it’s time that we get them. Remember what our mentors said “There are decades when nothing happens, and there are week when decades happen. Let this be week of revolution in this country. Let it be the final hurdle before we reclaim the country’s pride & honour.” ➢ Immediately thereafter a FIR was registered by jurisdictional police station, under section 124A of IPC. Mr Chawla filed a petition in HC to quash FIR. The HC rejected the petition on merits HC to quash FIR. Thereafter, Mr Chawla appealed to the SC. It was decided there was need to settle the modern law of sedition while the court also decides the petition.
SUMMARY OF ARGUMENTS
The constitutional validity of S.124A of the Indian Penal Code
Stephen^3 , delving into definition of sedition under English law enumerated five heads according to the object of the accused. They are follows: 1. to excite disaffection against the King, Government, or Constitution, or against Parliament or the administration of justice; 2. to promote by unlawful means, any alteration in Church or State; 3. to incite a disturbance of the peace ; 4. to raise discontent among the King’s subjects ; 5. to excite class hatred. None of the essentials of section 124-A violates any law of the constitution of India, if we speak about the violation of article 19 of the Indian constitution is unambiguous because even article 19(1)^4 is not an absolute right i.e. it is subjected to reasonable restriction laid down in article 19(2). Is 124-A violating the fundamental right of freedom of speech & expression given in article 19(1) of The Constitution of India “The provisions of the sections read as whole with explanations, make it reasonably clear that the sections aim at reasonably clear that the section aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. It is only when the words, written or spoken, etc. Which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So constructed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order.” Supreme Court while dismissing the appeal of Kedarnath Singh^5 giving a scope of 124-A Whether the accused should be convicted on the merits of the case as well if Sec 124A is upheld as being constitutional Mr.Parwani has imposed malicious statements by stating that Mr Goyal and his government have destroyed the country, he also provoke the crowd for a “revolution”. This directly amounts to inciting violence amongst the citizens and will definitely disturb public tranquillity. This directly amounts to inciting violence against the government and head of the government. He also tried to overthrow the government established by law stating “ Let this be final hurdle before we reclaim the throne”. The aforesaid act of Mr Parwani is an offence punishable under sections 12 4 - A of the IPC. (^3) Stephen, Commentaries on Law of England (1950), Vol.IV,Page- 141 - 142 (^4) Freedom of speech and expression, The constitution of India (^5) (1962) Supp. 2 SCR 769
“ Sedition is essentially an offence against public tranquillity and secondly that broadly speaking there are two classes of offences against public tranquillity: (a) those accompanied by violence including disorders which affect tranquillity of a considerable numbers of persons or an extensive local area, and (b) those not accompanied by violence but tending to cause it, such as seditious utterances, seditious conspiracies, etc. Both these classes of offences are such as will undermine the security of the State or tend to overthrow it if left unchecked, and, as I have tried to point out, there is a good deal of authoritative opinion in favour of the view that the gravity ascribed to sedition is due to the fact that it tends to seriously affect the tranquillity and security of the State.”^9 In Debi Soren & Ors v. The State^10 where the Patna High Court held that Section 124-A is saved by the ‘reasonable restrictions’ enlisted in Article 19(2).While holding it constitutional the court observed: “ The expression "in the interests of public order" has a wide connotation and should not be confined to only one aspect of public order, viz., and incitement to violence or tendency to violence. Public order can be affected in other ways also; and creating disaffection, hatred or contempt towards the Government established by law may seriously affect the interests of public order, even though there may be no tendency or incitement to violence. Incitement to violence no doubt directly affects the maintenance of public order” While upholding the constitutionality of Section124-A of IPC 1860, the Mr. Justice B. P. Sinha in the landmark judgement of Kedarnath Singh v. State of Bihar^11 “This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded again becoming a license for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.” Thus the Supreme Court upheld the constitutionality of the sedition law, but at the same time curtailing its meaning and limiting its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. (^9) AIR 1950 SC 129 (^10) 1954 CriLJ 758 (^11) AIR 1962 SC 955
Is 124-A violating the fundamental right of freedom of speech & expression given in article 19(1) of The Constitution of India The Fundamental Rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. These rights have been defined as the basic human freedoms which every individual has a right to enjoy for a proper and harmonious development of personality. However, this Freedom is not absolute right i.e. it is subjected to the reasonable restrictions laid down in 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.” A seditious speech must always be read as whole and not in parts, it gives us clear interpretation of what was the intention behind the speech , and whether the speech lies under the clause (2) of article 19. As per the facts the speech by Mr Parwani did not had any good intentions all he wanted was to create public disorder. In Debi Soren & Ors V. The State^12 supreme courtobserved: “The first point is that the speeches made must be considered as a whole and in a fair, free and liberal spirit, not dwelling too much upon isolated passages or upon a strong expression used here and there; in other words, an attempt should be made to gather the general effect of the speeches as a whole. The second point is that the intention of the speaker in using the words-complained of is relevant; but the intention must be gathered from the language used, as also from the whole of the circumstances in which the speeches were made including the audience to whom they were addressed .” “The provisions of the sections read as a whole, along with the explanations make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order .” Observed Supreme court in its judgement of Kedarnath Singh v. State Of Bihar. (^12) 1954 CriLJ 758
essential for the proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties giving support and protection to all other liberties. It has been truly said that it is the mother of all other liberties.^15 But we don’t get everything at once if this feedom is misused it can be dangerous to the country as well as the government. In Niharendu Dutt Mazumdar v. Emperor^16 , Mr Justice Gwyer, the then Chief Justice observed: “The first and foremost fundamental duty of every Government is the preservation of order, since order is the condition precedent to all civilization and the advance of human happiness. This duty has, no doubt, been sometimes performed in such a way as to make the remedy worse than the disease. It is to this aspect of the functions of the government that, in our opinion, the offence of sedition stands related. It is the answers of the State to those who, for the purpose of neither attacking nor subverting it, seek disturb its tranquillity, to create public disturbance and to promote disorder, or who incite others to do so. Words, deeds or writings constitute sedition, if they have this intention or this tendency; and it is easy to see why they may also constitute sedition, if they seek, as the phrase is, to bring Government into contempt. This is not made an offence in order to minister to the wounded vanity of Governments, but because where government and the law has ceased to obeyed because no respect is felt any longer for them only anarchy can follow. Public disorder, is thus the gist of the offence. The acts or words complained of must either incite to disorder, or must be such as to satisfy reasonable men that is their intention or tendency." I would request the honourable court that Section 124 - A of the Indian Penal Code 1860 defines the offence of sedition and prescribes punishment for sedition .The law is placed bang in the middle of Chapter VI of the section in the Indian Penal Code that deals with “Offences against the State”, a passage that deals with serious offences including waging war against the state. The punishment that this section carries extends up to life imprisonment, and the charge is both non-bailable and cognizable. All of these indicate the seriousness of the crime. If the court let go Mr Parwani today the seriousness of this crime would be taken for granted. In the case of R v. Burns and others^17 , Mr. Justice Cave, observed that "A man cannot escape from uttering words with intent to excite people to violence solely because the persons whom he addressed may e too wise or temperate to be induced to act with violence." (^15) Jain M,P., Indian Constitutional Law, 5th (^) edition. (^16) AIR 1942 FC22 Pg- 26 (^17) (1886) 16 Cox CC 355
PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, the Respondent most respectfully requests this Hon’ble court to declare A. That Section 124A of the Indian Penal Code, 1860 as constitutional B. The section 124- A doesn’t violate any fundamental right of the Indian Constitution C. Mr Parwani should be convicted under 124-A of The Indian Penal Code as it has held as constitutional. And pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience