Escolar Documentos
Profissional Documentos
Cultura Documentos
APPEAL NO.____/2016
CLUBBED WITH
WRIT PETITION NOS.___/2016 & ___/2016
IN THE MATTER
OF
Petitioners
v.
Union of Indiana
Respondent
CONTENTS
LIST OF
ABBREVIATIONS..3
INDEX OF
AUTHORITIES4-6
STATEMENT OF
JURISDICTION.7
STATEMENT OF FACTS
8-10
STATEMENT OF
ISSUES...11
SUMMARY OF
ARGUMENTS12
ARGUMENTS
ADVANCED...13-24
1. THE WRIT PETITION IS
MAINTAINABLE13
1.1.
The Petitioner No.1s Fundamental Right to Peaceful Assembly was Infringed by the
State..
1.2.
...13
That the Police Carried out Lathi Charge without Warning thus Violating Due
Procedure.
1.3.
...14
That the Petitioner No.1 is Entitled to Compensation..
.15-16
2. 124A OF THE INDIANA PENAL CODE, 1860 IS UNCONSTITUTIONAL..
16
2.2.
Constitution..16-17
That 124A is Violative of Art. 14 of the Constitution.
2.3.
...17
That 124A is Violative of Art. 21 of the
2.4.
Constitution..17-18
That there has been a History of Blatant Misuse of this Law.
2.5.
.18
124A is Contrary to the Countrys International Human Rights
Obligations.18
3. THE CONVICTION OF THE ACCUSED IS LIABLE TO BE QUASHED.
19
3.1.
That the Speech Made by the Petitioner No.2 is not
3.2.
Seditious.19-20
That the Statements made by Petitioner No. 2 are within the Exercise of his Right to Speech
and Expression...
3.3.
20-21
That Strict Evidentiary Requirements have not been Met by the State..
21-22
.22-23
That 24A is in Violation of Art. 21 of the
Constitution24
PRAYER ..
25
BIBLIOGRAPHY..
.26
LIST OF ABBRIVIATIONS
Abbreviation
Definition
&
And
AC
Appeal Cases
AIR
Allahabad
Article
Cr.P.C.
Govt.
Government
HL
IPC
House of Lords
Indiana Penal Code, 1860
Ker.
Mad.
Kerala
Madras
Para.
PCI
Paragraph
Press Councils Act, 1978
r/w
Read With
Section
SC
Supreme Court
SCALE
SCC
SCJ
SCR
UOI
Union of India
v.
Versus
INDEX OF AUTHORITIES
CASES CITED
S.No
Case
Citation
.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
(Bom)
AIR 2015 SC 1523
(2013) 4 GLT 284
(2001) 3 WLN 242
AIR 1960 SC 633
BOOKS REFERRED
1. V. DICEY, THE LAW OF THE CONSTITUTION (10th ed. 1959)
2. ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA (2nd ed. Reprint 2010)
3. DR. DURGA BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA (20th ed. Reprint 2012)
4. DR. J.N.PANDEY, CONSTITUTIONAL LAW OF INDIA (38th ed. 2002)
5. DR.DURGA BASU, CONSTITUTIONAL LAW OF INDIA (8th ed. 2011)
6. H.M.SEERVAI, CONSTITUTIONAL LAW OF INDIA (4th ed.)
7. A. SABITHA, PUBLIC HEALTH: ENFORCEMENT AND LAW (1st ed. 2008).
8. JUSTICE G.P.SINGH, PRINCIPLES OF STATUTORY INTERPRETATION (12th ed. Reprint 2011)
9. M.P.JAIN, INDIAN CONSTITUTIONAL LAW (5th ed. 2003)
10. DARREN J OBYRNE, HUMAN RIGHTS: AN INTRODUCTION (1st ed. 2003).
11. DURGA DAS BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW (3rd ed. 2008).
12. COLETTE DAIUTE, HUMAN DEVELOPMENT & POLITICAL VIOLENCE (1st ed. 2010).
13. DARREN J OBYRNE, HUMAN RIGHTS: AN INTRODUCTION (1st ed. 2003).
14. R. SATYA NARAYANA, NATURAL JUSTICE: EXPOANDING HORIZONS (1st ed. 2008).
ARTICLE
1. Goran Simic, Universal Jurisdiction and its Interplay with Sovereign Immunity 1 INDIAN JOURNAL
OF LAW AND INTERNATIONAL AFFAIRS
STATEMENT OF JURISDICTION
The Petitioners have approached the Honble Supreme Court of Indiana that has the jurisdiction to
hear this matter under Art. 131, Art. 139A and Art. 32 of the Constitution of Indiana.
STATEMENT OF FACTS
I
Indiana is a federal republic country situated in south-east Asia along the equator. The country
gained freedom in 1957 after a long drawn struggle against a European nation which established the
common law system. The Penal Code of Indiana was drafted in the 19th century and is still
operational with some minor changes. The Indiana Constitution is acknowledged worldwide for the
fundamental rights guaranteed to its citizens. Indiana with the capital at New Delporto (also a Union
Territory) is constituted of 24 states & 5 union territories that are directly administered by the Central
Government. New Delporto has a special status as it has its own Government. However, public order
is maintained by the Home Ministry of the Union Government.
II
New Delporto is an education hub of the country as the city has some of the best colleges &
universities of the nation. One such university is Great Northern University (GNU) which has earned
special reputation in the field of research and academic contributions. GNU has a very active culture
of student politics which sometimes turns violent as clashes between students of opposite ideologies
is very common. Among a large number of student unions in the university, Great Northern
University Students Union (GNUSU) is the largest. The GNUSU has been winning the students
council elections since the last 10 years at a stretch as a result of which the President of this union
always has a substantial influence among the other members of the union.
III
The GNUSU is a branch of the All Indiana Students Union (AISU), a left inclined organization
which has a traditional history of holding protests and student revolutions on various issues. The
Indiana Peoples Party subscribes to right wing ideologies and the GNUSU has always been opposed
to it politically. After coming to power, the IPP government embarked on an economic reform
9
10
11
STATEMENT OF ISSUES
1. WHETHER OR NOT THE WRIT PETITION IS MAINTAINABLE.
2. WHETHER OR NOT 124A OF THE INDIANA PENAL CODE, 1860 IS UNCONSTITUTIONAL.
3. WHETHER OR NOT THE CONVICTION OF THE ACCUSED IS LIABLE TO BE QUASHED.
4. WHETHER
OR NOT
24A
OF THE
CONSTITUTION.
12
IS
ULTRA-VIRES
THE
SUMMARY OF ARGUMENTS
1. THE WRIT PETITION IS MAINTAINABLE
It is the humble submission of the Petitioner that the instant Writ Petition is maintainable because
Petitioner No.1s Fundamental Right to Peaceful Assembly was infringed by the State through
the Police carrying out Lathi Charge without warning thus violating due procedure and
consequently Petitioner No.1 is entitled to compensation.
2. 124A OF THE INDIANA PENAL CODE, 1860 IS UNCONSTITUTIONAL
It is respectfully urged that 124A is unconstitutional by virtue being violative of Arts. 19(1) (a),
14, and 21 of the Constitution because, amongst other things, there has been a history of blatant
misuse of this law. 124A is also contrary to the countrys international human rights
obligations.
3.
THE
The Petitioner vociferously argues that the conviction of the accused is liable to be quashed as
the speech made by Petitioner No.2 was not seditious. Also, that the statements made by
Petitioner No. 2 are within the exercise of his right to speech and expression. It is also submitted
that strict evidentiary requirements have not been met by the State.
4. 24A OF THE PRESS COUNCILS ACT, 1978 IS ULTRA VIRES THE CONSTITUTION
It is respectfully submitted that 24A of the PCI Act, 1978 is ultra-vires the Constitution as it is
in violation of Art. 19(1) (a) of the Constitution and has a chilling effect on the Freedom of
Speech and Expression. It is also urged that it is in Violation of Art. 21 of the Constitution.
13
ARGUMENTS ADVANCED
1. THE WRIT PETITION
TO THE
IS
MAINTAINABLE
AND THE
STATE
OWES COMPENSATION
PETITIONER.
It is most humbly submitted before the Honble Court that the instant writ petition is maintainable as
the Fundamental Rights of the petitioner to peacefully assemble without arms enshrined under Art.
19(1) (b), and further under 19(1) (a) and 19(1) (d) in the Constitution have been violated by the
Respondent. The same is contended by the Petitioner on the following grounds:
1.1. THAT THE PETITIONERS FUNDAMENTAL RIGHT
AND
FUNDAMENTAL RIGHT
TO
SPEECH
AND
EXPRESSION
GOVERNMENT.
That the Petitioner enjoys the right to assemble peacefully without arms throughout the nation. There
are plethoras of judgments of the Apex Court where it held that the protest is a form of expression
and are also covered under Art. 19(1)(a) of the Constitution. In the instant case, AISU was known for
holding protests on various issues in the past 1 without causing any threat to security and public
order; therefore there was no reason for the police to reasonably apprehend violent behavior from
them.
14
15
1.2 THAT
THE
POLICE
CARRIED
LATHI CHARGE
WITHOUT
WARNING
THUS
VIOLATING DUE
PROCEDURE.
In the instant case there was no imminent threat to public order, nor was there any need for
immediate prevention or speedy remedy. The lathi charge by police is an unfortunate incident. The
conduct of the police goes to indicate that the police action was politically motivated and resulted
from instructions from the IPP government actions of the Respondents neither substantively nor
procedurally reasonable.
In the case of H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and Ors. v. Union of
India5, Court held that even in civil commotion or even in war or peace, the State cannot act
catastrophically outside the ordinary law and there is legal remedy for its wrongful acts against its
own subjects or even a friendly alien within the State.
It is therefore most humbly submitted that the police failed to follow the due process resulting in the
violation of the right to protect.
1.3 THAT THE PETITIONERS ARE ENTITLED TO COMPENSATION.
16
17
18
19
20
22 Rex v. Aldred, (1909) Cox CC 1; Kedarnath v. State of Bihar, AIR 1962 SC 955.
21
2.5. THAT
124A
IS
CONTRARY
TO
THE
COUNTRYS
INTERNATIONAL
HUMAN
RIGHTS OBLIGATIONS.
Art. 51 (c) of the Constitution makes it the states imperative to respect its international law
obligations arising out of various treaties.
24 Ozhair Hussian v. Union of India, AIR 2003 Del 103.
26 P.J. Manuel v. State of Kerala, ILR (2013) 1 Ker 793; Bharat Desai v. State of Gujrat, Cri Misc App
7536 of 2008 (Guj); Javed Habib v. State(NCT of Delhi), (2007) 96 DRJ 693; K. Neelamangalam v.
State, Cri OP (MD) No. 14086 of 2011 (Mad); Pankaj Butalia v. Central Board of Film Certification,
WP (C) 675 of 2015 (Del); Sanskar Marathe v. State of Maharashtra, Cri PIL No. 3 of 2015 (Bom).
22
27
Art.19(3) of ICCPR.
28
Arun Jaitley v. State Of U.P, APPLICATION U/S 482 No. - 32703 of 2015.
23
3.2 THAT
PETITIONER
In landmark case of Shreya Singhal v. Union of India33 the Apex Court made certain observations
about the freedom under Art. 19(1)(a). The Court observed:
"There are three concepts which are fundamental in understanding the reach
of this most basic of human rights. The first is discussion, the second is
advocacy, and the third is incitement. Mere discussion or even advocacy of a
particular cause howsoever unpopular is at the heart of Art. 19(1)(a). It is
only when such discussion or advocacy reaches the level of incitement that
Art. 19(2) kicks in. It is at this stage that a law may be made curtailing the
speech or expression that leads inexorably to or tends to cause public
disorder or tends to cause or tends to affect the sovereignty & integrity of
India, the security of the State, friendly relations with foreign States, etc.".
Indra Das v. State of Assam, (2011) 3 SCC 380; Arup Bhuyan v. State of Assam, (2011) 3 SCC 377;
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
33
(2015) 5 SCC 1.
25
4. 24A
OF
THE
IS
ULTRA VIRES
THE
CONSTITUTION.
It is most respectfully submitted by the Petitioner before this Honble Court that S.24A of the Press
Councils Act, 1978 is unconstitutional. The same is contended on the following grounds:
4.1. THAT 24A IS IN VIOLATION OF ART. 19(1)(a) OF THE CONSTITUTION AND HAS A CHILLING
EFFECT ON THE FREEDOM OF SPEECH AND EXPRESSION
In the case of Romesh Thappar v State of Madras,38 Patanjali Sastri, C.J. observed as follows:
36
Mohd. Yakub v. State of W.B. ,(2004) 4 CHN 406; State of Assam v. Fasiullah Hussain, (2013) 4 GLT
284; State of Rajasthan v. Ravindra Singhi, (2001) 3 WLN 242.
37
29
42
43
44
30
PRAYER
In view of the aforesaid facts and circumstances, it is most respectfully prayed that this Honble
Court may be pleased to:
1. HOLD that the Fundamental Right of Petitioner No. 1 under Art. 19(1) (b) of the Constitution
has been violated by the State and order the Government to pay appropriate compensation for
the same.
AND
2. HOLD that 124A of the Indiana Penal Code is ultra-vires the provisions of the Constitution
and quash the conviction of Petitioner No 2 given by the the Honbe High Court of Delporto.
AND
3. HOLD that 24A of the Press Council Act, 1978 is ultra-vires the Constitution.
AND
4. Pass any other order and directions, as this Honble Court may deem fit and proper in the facts
and circumstances of the case in the interest of justice and in favour of the Petitioners.
Petitioners
31
Date:
Through:
Place:
Advocate
BIBLIOGRAPHY
BOOKS REFERRED
ARTICLE
1. Goran Simic, Universal Jurisdiction and its Interplay with Sovereign Immunity 1 INDIAN JOURNAL
OF LAW AND INTERNATIONAL AFFAIRS
32