ARGUMENTS ADVANCED

1. THAT THE HIGH COURT OF AWADH IS NOT JUSTIFIED IN

UPHOLDING THE CHARGES AGAINST PETITIONERS EXCEPT OMAR
UNDER SEC.34 AND SEC. 120B OF IPC ?
It is humbly submitted before the Hon’ble Supreme Court of Indistan that High Court of
Awadh was not justified in upholding the charges against petitioners except Omar under
Sec.34 and Sec.120B of IPC.

1.1.There was no common intention between petitioners and also no criminal act
was done by them in furtherance of common mensrea under the definition of
Sec. 34 of IPC.

There was no common intention amongst petitioners and also no criminal act was committed
by them in furtherance of a common objective under the definition of Sec.34 of IPC. The
counsel would further like to plead that the acts committed were in the individual capacity of
each of the petitioners, rather than it being a common objective. The language of Sec. 34 of
IPC is as follows- “Acts done by several persons in furtherance of common intention. —
When a criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if it were done by him
alone.” 1

The principle ingredients of to attract the application of Sec.34 in any act are following:

1. A criminal act must be done by several persons

2. There must be a common intention of all to commit that criminal act
3. There must be a participation of all in the commission of the offence in furtherance of
that common intention2

The essence of joint liability under this section lies in the existence of common intention to
do a criminal act in furtherance of that intention. “There is no contradiction that common

1
2
Parichhat v State of Madhya Pradesh AIR 1972 SC 535
intention pre-supposes prior consent, which requires pre-arranged plan of the participation of
accused in criminal act. But also common intention can be formed previously or in the course
of occurrence and on spur of the movement.”3

And most importantly if we talk about common intention then it is necessary that “common
intention should be requisite guilty mind and such intention is shared amongst all accused
persons. The words ‘common intention’ must be read to be meant ‘common mens rea’
whatever the mens rea of the offence may be.”4

There is also requirement of some act to attract Sec. 34. Two main ingredients of this Section
are common intention and a criminal act should have been done.

In the case of Zabar singh v State of U.P.5 , it was held held that physical participation of
accused in the criminal act is necessary condition in order to attract Sec. 34.

Once the criminal act and common intention/common mens rea are proved , then by fiction of
law , criminal liability of having done that act by each person individually would arise .6

In the case of Pandurang v State of Hyderabad 7 , SC held that to attract the applicability of
Sec.34 , prosecution is under an obligation to establish that there existed a common intention
which requires a pre-arranged plan and the act must have been done in the furtherance of
common intention of all.

In the present situation, it is clear from the moot proposition that there was no common
intention / common mens rea is present. Students exercised their right to propagation of
ideology and conducted a rally for the same. This comes under their fundamental right of
freedom of speech and expression under Article 19(1)(a)
of the constitution. Moreover, there were no criminal acts done by students in the rally. They
exercised their rights under art.14,19 and 21. For application of Sec.34 of IPC, it is necessary
that there should be some criminal act was done by accused in furtherance of common
intention .The criminal acts committed by the appellants were done in the individual capacity
of the students concerned and not in furtherance of a common objective as required under the
provisions of Section 34 of IPC. Section 34 intends to meet a case in which it is not possible

3
Suresh and Anr v State of U.P. (2001) 3 SCC 673 , Sheoram Singh v State of U.P. AIR 1972 SC 2555
4
Abrahim Sheikh v State of W.B. AIR 2001 SC 1344
5
Zabar Singh v State of U.P. AIR 1957 SC 546
6
Ratanlal dhirajlal
7
to distinguish between the criminal acts of the individual members of a party, who act in
furtherance of the common intention of all the members of the party or it is not possible to
prove exactly what part was played by each of them. In the absence of common intention, the
criminal liability of a member of the group might differ according to the mode of the
individual’s participation in the act. Common intention means that each member of the group
is aware of the act to be committed as said in Abdul Sayeed v State of MP.8On the similar
lines, the objectionable acts were committed by Waseem and Krishna going by the factual
information in the proposition, Hence every member of the group cannot be held liable for
the activities of one or two members.

Also, the petitioners used their fundamental right of freedom to assemble under Art.19(1)(b)
this right guarantees to the citizen of Indistan the right to assemble peacefully and without
arms. Hence, in present situation there was no common mens rea between students and the
acts that followed did not have common intention. Section 34 intends to meet a case in which
it is not possible to distinguish between the criminal acts of the individual members of a
party, who act in furtherance of the common intention of all the members of the party or it is
not possible to prove exactly what part was played by each of them. In the absence of
common intention, the criminal liability of a member of the group might differ according to
the mode of the individual’s participation in the act. Common intention means that each
member of the group is aware of the act to be committed

1.2. There was no criminal agreement between petitioners under Sec.120A of IPC
for doing any illegal act or any legal act with the illegal means , so the application
of Sec.120B of IPC upon petitioners is not valid .
According to IPC definition of criminal conspiracy under Sec.120A is following9-

When two or more persons agree to do, or cause to be done,—

(1) an illegal act, or

8
Abdul Sayeed v State of MP (2010) 10 SCC 259.
9
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal
conspiracy: Provided that no agreement except an agreement to commit an offence shall
amount to a criminal conspiracy unless some act besides the agreement is done by one or
more parties to such agreement in pursuance thereof.

The ingredients of Sec.120A are-

That there must be an agreement between the persons who are alleged to conspire,

That the agreement should be for doing an illegal act or doing by illegal means an act which
is not illegal itself10 The elements as defined by judicial authority of criminal conspiracy are-

1. an object to be accomplished ,
2. a plan or scheme embodying means to accomplished that object ,
3. an agreement or understanding between two or more accused whereby, they become
definitely committed to cooperate for the accomplishment of the object by the
effectual means 11

The gist of the offence is bare agreement and association to break the law. 12 Meeting of
minds is essential, mere knowledge or discussion is not sufficient.13 The question for
consideration in a case is did all the accused had the intention and did they agree that the
crime be committed .it would not be enough for this crime , when some of the accused
merely entertained a wish that offence be committed.14 In the absence of agreement , only
intention to commit crime does not constitute the offence.15 For criminal agreement ,physical
manifestation is required but express agreement need not be proved . evidence relating to
transmission of thoughts leading to sharing of thought relating to the unlawful act is sufficient

.16 . “A conspiracy is a march under a banner. The very agreement, concert or league is the
ingredient, of the offence like most crimes, conspiracy requires an act (actus reus) and an
accompanying mental state (mens rea). From the definition of conspiracy in Section 120-A, it
is evident that the agreement constitutes the act and the intention to achieve unlawful object

10
Ratanlal dhirajlal
11
Ram Narayan Popli v CBI (2003) SCC 641
12
Chamman Lal v State of Punjab AIR2009 SC 2972
13
Baldev Singh v State of Punjab (2009) 6 SCC 564
14
State of TamilNadu through CBI/SIT v Nalini AIR1999 SC 2640
15
R.Venkatakrishna v CBI (2009) 11 SCC 737
16
Eshar Singh v State of A.P. (2004) 11 SCC 585
constitutes the mental state17. And also it is, however, necessary that a charge of conspiracy
should contain particulars of the names of the place or places where it was hatched, person
hatching it, how was it hatched and what was the purpose of the conspiracy. 18and if no
agreement is reached between the parties , the charge of conspiracy will fail , but it is no
defence to a charge of conspiracy that the agreement is not carried out.19

The counsel humbly pleads that in the present situation, petitioners had the common intention
to organize a rally , and protest by legal and nonviolent means in interest of the people of
Indistan, thus exercising their right to freedom of speech and expression. But in the course of
the rally they never had common intention regarding any illegal act, or any legal act by illegal
means. Petitioners only used their fundamental rights given to them by constitution under
article 14,19 and 21.

Also there was no agreement to break any law, even the speeches and lowering of the
national flag were the acts done in the spur of the moment without any prior consensus
among the appellants.

2. THAT THE HIGH COURT OF AWADH IS NOT JUSTIFIED IN IMPOSING

RESTRICTION ON THE FREEDOM OF SPEECH AND EXPRESSION BY
CONTINUING BAN ON TIMES OF INDISTAN AND HOLDING THAT
PETITIONERS ARE GUILTY UNDER SEC. 2 OF THE PREVENTION OF
INSULTS TO NATIONAL HONOURS ACT , 1971 ?

It is very humbly submitted before the Supreme Court of Indistan that High Court of Awadh
is not justified in imposing restriction on freedom of speech and expression by continuing ban
on Times Of Indistan and holding that petitioners are guilty under Sec.2 of The Prevention of
Insults to National Honour Act,1971.

17
State v Mohd. Afazal & Ors 2003 VIIAD Delhi 1,
18
Mahavir Prasad Akela v State of Bihar 1987 CrLJ 1545 Pat,
19
R. v Thomson , (1966) 50 Cr App R1
Section 2 of the Act strictly prohibits disrespect to the National Symbols. It lays down that no
person shall show disrespect to national symbols in a public place national symbol shall
include national flag, national anthem and the constitution. The act in clear words lays that
whoever inorder to insult national symbols whether by burns, mutilation, defaces, defiles, dis-
figuration, destroys, tramples, shows disrespect or brings contempt weather by words either
spoken or written shall be punished with imprisonment for three years or with fine or with
both.

However the Act also lays certain explanation to section 2 which can be stated to be its
exceptions. The one explanation lays that whenever national flag, anthem or constitution is
criticised in order to bring amendment to either of these it shall not be deemed as insult.
National Flag under Acts shall mean picture, painting, drawing, photograph and visible
representation of the Indian National Flag, or of any part its parts. Public place under the Act
shall mean any place easily accessible to public.

2.1.The appellants exercised their right to freedom of speech and expression

guaranteed under art.19(1)(a) of the constitution of Indistan.
Article 19(1)(a) of constitution guarantees right to freedom of speech and expression.
Freedom of speech and expression is bulwark of the democratic government. This freedom is
essential for proper functioning of the democratic process. It has been truly said that it is the
mother of all other liberties20. It has been variously described as “ basic human right” or “
natural right”. This right talk about freedom of propagation and interchange of ideas ,
opinions , and view points and debates on matter of public concerning .The appellants
exercised their right of freedom of speech and expression and their deeds and statements
cannot be said to be ultra vires. In Ramesh Thapar v. State of Madras21 Supreme court held
that freedom of speech and expression includes the freedom of supporting an idea,
propagation of ideas, their publication and circulation. In Supdt. Central Prison, Fatehgarh v.
22
Ram Manohar Lohiya Subba Rao J. said that in order to be reasonable, a restriction
imposed in interest of public order should have proximate connection or nexus with public
order and it would not be enough if the nexus instead of being proximate was too farfetched
hypothetical or remote. He further pointed out that the restriction imposed should be relevant

20
Report of Second Press Comm.Vol.1,34-35.
21
Ramesh Thapar v State of Madras AIR 1950 SC 124.
22
Suptd. Central Prison, Fatehgarh v Ram Manohar Lohiya AIR 1960 SC 633.
to the ground for the protection of which it was imposed and also in order to be reasonable it
should not be excessive..
But, in this particular case there is unnecessary and excessive interference in the activities of
the petitioners. In the present case, just by the expression of individual opinions public order
was not disturbed i.e. the restriction imposed and the objective of public order did not have
any proximity and also the restriction imposed is excessive. Also in Ramesh Thapar v. State
of Madras majority of the Supreme court draw a distinction between the security of state and
that of public order. It was held that security of state get threatened only by serious and
aggravated form of public disorder and not by relatively minor breaches of peace of a purely
local significance. In the present case, security of state was not threatened by the expression
of views by Waseem and Krishna . Clearly, it was not a serious public disorder. On the
similar lines The Supreme Court on Monday 3 March 2014, dismissed a PIL by Advocate M
L Sharma seeking intervention by the court in directing the Election Commission to curb hate
speeches. Dismissing the plea, the Apex court said that it could not curb the fundamental
right of the people to express themselves. "We cannot curtail fundamental rights of people. It
is a precious rights guaranteed by Constitution," a bench headed by Justice RM Lodha said,
adding "we are a mature democracy and it is for the public to decide. We are 1280 million
people and there would be 1280 million views. One is free not accept the view of others".
Also the court said that it is a matter of perception, and a statement objectionable to a person
might not be normal to other person. Speech and expression is God’s gift to human. Speech is
form of expression by virtue of which the bare requirement of communication is fulfilled and
it is therefore a basic human right. Every person must have a right to express his thoughts,
opinions, ideas in any form without any unreasonable interference . In Indistan the freedom
of press is regarded as “a species of which freedom of expression is genus.”23

As Louis Brandies,J. talk about freedom of speech in Whitney v California24. that “ those
who won our independence believed that the final end of state was to make men free to
develop their faculties. They believed that the freedom to think as you will and to speak as
you think are means indispensible to the discovery and spread of political truth ; that without
free speech and assembly discussion would be futile… that public discussion is political duty
and this should be a fundamental principle of American government.”

23
Sakal Papers v Union of India AIR 1962 SC 305
24
Whitney v California 247 U.S. 357 (1927).
In Maneka Gandhi v Union of India .25,Bhagwati, J. held that “ Democracy is based on
essentially on free debate and open discussion . if democracy means government of the peorle
, by the people , it is obvious that every citizens must be entitled to participate in the
democratic process and in order to enable him to intelligently exercise his right of making a
choice , free and general discussion of public matters is absolutely essential.” Freedom of
Speech include right to express one’s views at any issue through any medium.

“The Constitution of Indistan provides for freedom of speech and of the press, and the
Government generally respects these rights in practice; however, there are some limitations.
A vigorous and growing press reflects a wide variety of political, social, and economic
beliefs. Newspapers and magazines regularly publish investigative reports and allegations of
government wrongdoing, and the press generally promotes human rights and criticizes
perceived government lapses. Under the Official Secrets Act, the Government may restrict
publication of sensitive stories; nonetheless, while Government at times interprets this power
broadly to suppress criticism of its policies.”26If aright is not in expressed terms
“FUNDAMENTAL” within the meaning of part 3, Does it escape article 13, read with the
trammels of article 19, even if the immediate impact, the substantial effect the proximate
import or the necessary result in prevention of free speech or practise of one’s own
profession? The answer is that associated rights totally integrated, must enjoy the same
immunity. 27

In present situation waseem wanted to express his views, opinions over kashmirpur and
Indistan and Constitution provide him these rights. And Omar also expressed his views and
opinions over present situation and both used their fundamental rights that are given to them
by Constitution of Indistan.

In the famous case of Sanskar Marathe v State of Maharashtra28 Bombay HC said that ,
Freedom of speech cannot be encroached upon if there is no incitement to violence or
intention of disrupting public order. A citizen has a right to say or write whatever he likes
about the Government, or its measures, by way of criticism or comments, so long as he does
not incite people to violence against the Government established by law or with the intention

25
Maneka Gandhi v Union of India AIR 1978 SC 597.
26
Annual Human Rights Report by the U.S.Department of State Vol.26b,p.2408(2001)
27
Maneka Gandhi v Union of India AIR 1978 SC 597.
28
of creating public disorder'. The speech of Krishna and Waseem cannot said to be disrupting
public peace and order. Instead, their acts were in pursuance of their fundamental rights.

2.2. That the act of lowering the national flag of Indistan down and making of
alleged cartoons in Times of Indistan did not cause a breach of public order.
Yes, the act of lowered the national flag down and made cartoon over it did not cause the
breach of public order and also not had incitement to cause breach of public order.

The term ‘public order’ covers a small riot , affray , breach of peace and act disturbing public
peace . “there should be some element of disturbance of public peace to bring a matter under
public order”.29 Also “there is a direct nexus between restriction and public order .”30 But in a
present case there was no such conditions were present and there was no breach of public
order .

Here council cites some case laws to say that petitioners being arresting and ban over
newspaper are violative of their fundamental right. In Romesh Thappar v State of Madras
.31 it was held that by majority that , “ apart from Libel, Slander etc. unless law restricting
freedom of speech and expression is directed solely against undermining the security of state
or overthrow it , Such law cannot fall within the reservation of art. 19(2), although the
restrictions which it seeks to impose may have been conceived generally in the interest of
public order.” in present case there was no danger to public order. In Shreya singhal v Union
of India .32 ,there was dispute regarding Sec. 66A of IT Act which restrict offensive post on
internet. According to Justice Nariman , “ any law seeking to impose restriction on freedom
of speech can only pass muster , if it is proximately related to any of eight subject matters set
out in Art.19(2).” There were two tests that were put to the Sec.66A –clear and present
danger and probability of inciting hatred. But Sec. 66A failed to these tests and SC struck
down it,because there were no present danger and probability of inciting hatred. In the
present case also there were no present danger and probability of incite hatred, and also there
was no danger to public order.

29
D.Anantha Prabhu v Distt. Collector , Ernakulam, AIR1975KER117
30
V.K.Javali v State of MysoreAIR1966 SC 1387
31
Romesh Thappar v State of Madras AIR 1950 SC 124.
32
Shreya Singhal v Union of India W.P.(Crl). No.167 of 2012.
In the case of S.Rangarajan v P.Jagjivan Ram33. the Madras HC revoked U certificate
issued to a film on the ground that the exhibition of the film was likely to cause public
disorder and violence . But Supreme Court reversed judgment. Court held that if exhibition of
film can not be validly restricted under Art.19(2) then it cannot be suppressed on the ground
of threat of violence. In present case there was no apparent violence , and public disorder so
restriction does not fall under Art.19(2) so restriction violates his fundamental right.

In the case of OK.Ghose v E.X.Joseph .34 SC held that “A restriction can only be
said to be in public interest only if connection between restriction and public order is
direct and proximate. Indirect and unreal connection between public order and
restriction cannot fall under purview of in the interest of public order.” In the present
case there was no direct connection between public order and restriction because there
was no public disorder, so restriction can not fall under purview of Art.19(2).
In Supdt.Central Pison v Ram Manohar Lohia 35 , Subba Rao J. said that “ if any law
suppress the right to freedom of speech and expression in the interest of public order , this
does not mean that any remote or fanciful connection between said law and public order is
sufficient to sustain the validity of said law or act. There should be direct and proximate
connection between said law and pulic order.”

In the case of Jordan v burgoyne 36, Court laid down some preposition on which we can
assume the nature of speech. According to this case :

1. The words must be clearly insulting

2. The words used must be insulting to the person present at that time
3. The words used must be likely in that circumstances to provoke a breach there must
be probability of disorder

in the present case there were no breach of public order and also there was no direct
relation between acts of petitioners and public order , so that’s why the imposition of such
restriction over newspaper and arrest of petitioners are contrary to constitution of Indistan.
Based on the arguments advanced , the counsel humbly pleads that the appellants are not
liable to be booked under Section 2 of Prevention of Insults to National Honours Act.

33
S.Rangarajan v P.Jagjivan Ram 1989 SCR(2) 204.
34
O.K.Ghose v E.X.Joseph AIR 1963 SC 812.
35
Supdt.Central Police v Ram Manohar Lohia AIR1960 SC633
36
(1963) 2 W.L.R. 1045 (D.C.)
3) Section 124A of the Indian Penal Code fails the test of constitutionality owing to its
vague and archaic provisions. There was no incitement to violence in the speeches or
writings of the appellants and, neither there was an intention to create disorder which
forms an essential part of the section 124 of the IPC.

3.1) That the provisions in section 124A are inconsistent with the fundamental rights, thus,
rendering it unconstitutional under Article 13 of the Indian constitution.

It is humbly submitted before the Supreme Court of Indistan that the section 124a of the
Indian Penal Code is unconstitutional in nature. To bring home the point that sedition is
vague in the modern context , the counsel would build upon the arguments by taking the
history of the section into consideration. Sedition was introduced in the Indian Penal
Code in 1970 , ten years after the IPC came into effect. The basic purpose of the section
was to supress the Wahhabi movements in the era. Gandhi ji was one of the greatest
opponent of the sedition act. It is only appropriate to quote his defence, during the 1922
sedition trial. He said, “…Section 124 A under which I am happily charged is perhaps the
prince among the political sections of the IPC designed to suppress the liberty of the
citizen. Affection cannot be manufactured or regulated by the law. If one has no affection
for a person, one should be free to give the fullest expression to his disaffection, so long
as he does not contemplate, promote or incite to violence. But the section under which Mr
Banker and I are charged is one under which mere promotion of disaffection is a crime. I
have studied some of the cases tried under it, and I know that some of the most loved of
India’s patriots have been convicted under it. I consider it a privilege, therefore, to be
charged under that section. I have endeavoured to give in their briefest outline the
reasons for my disaffection. I have no personal ill-will against any single administrator,
much less can I have any disaffection towards the King’s person. But I hold it a virtue to
be disaffected towards a Government which in its totality has done more harm to India
than previous systems. India is less manly under the British rule than she ever was before.
Holding such a belief, I consider it to be a sin to have affection for the system. And it has
been a precious privilege for me to be able to write what I have in the various articles
tendered in as evidence against me.”
Section 124A of the IPC defines sedition and says: (i) 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, the government established by law; or (ii) whoever by the above means
excites or attempts to excite disaffection towards the government established by law, has
committed the offence of sedition. The punishment prescribed varies from imprisonment up
to three years to life imprisonment, with fine or without it. The first explanation says that
disaffection includes disloyalty and all feelings of enmity. Explanations 2 and 3 in effect say
that disapprobation of the measures or administrative action etc. of the government to obtain
their alteration by lawful means is not an offence. Section 124-A of the IPC curbs the right to
dissent, which is an essential condition of any reasonable government. Viewed thus, it is
Section 124-A that is “anti-India” that is opposed to the idea of a legitimate, liberal
democratic state. Moreover, Article 13 in The Constitution of India 1949 which renders
sedition unconstitutional being in contradiction to the fundamental rights.” Laws inconsistent
with or in derogation of the fundamental rights (1) All laws in force in the territory of India
immediately before the commencement of this Constitution, in so far as they are inconsistent
with the provisions of this Part, shall, to the extent of such inconsistency, be void. 37The court
in Ram Nandan v State of UP 38
overturned Ram Nandan’s conviction and declared section
124A to be unconstitutional. Justice Gurtu said, “As a result of the conventions as has been
remarked of Parliamentary Government, there is a concentration of control of both legislative
and executive functions in the small body of men called the Ministers and these are the men
who decide important questions of policy.The most important check on their powers is
necessarily the existence of a powerfully organised Parliamentary opposition. But at the top
of this there is also the fear that the Government may be subject to popular disapproval not
merely expressed in the legislative chambers but in the market place also which, after all, is
the forum where individual citizens ventilate their points of views. If there is a possibility in
the working of our democratic system as I think there is of criticism of the policy of Ministers
and of the execution of their policy, by persons untrained in public speech becoming criticism
of the Government as such and if such criticism without having any tendency in it to bring
about public disorder, can be caught within the mischief of Section 124-A of the Indian Penal
Code, then that Section must be invalidated because it restricts freedom of speech in
disregard of whether the interest of public order or the security of the State is involved, and is
capable of striking at the very root of the Constitution which is free speech (subject of limited
control under Article 19(2))” There can be no dispute that Section 124A is a restriction on the
freedom of speech and expression which is guaranteed to all citizens by Article 19 of the
Constitution. The question is whether the section is not saved by Clause (2) of Article 19. .”I
think, therefore, that the conclusion must be that Section 124A, Penal Code, ha3 become void
as contravening the right of freedom of speech and expression guaranteed by Article 19 of the

37
Constituton of india(golu edit kar lena)
38
Ram Nandan v State of UP
constitution.”39 The need for invalidating the section was again felt on the grounds that it is
violative of the fundamental rights.

3.1.1. That the provisions of section 124A put unreasonable

restrictions on the fundamental rights of the citizens.

The Counsel humbly submits that Section 124 A of the IPC cannot be deemed or termed
to be ‘reasonable’. The requirement of “reasonableness” runs like a golden thread
through the entire fabric of Fundamental Rights.40 A restriction is unreasonable if it
sweeps within its ambit activities which constitute a legitimate exercise of freedom of
speech and expression,41 or the restriction is in excess of what was necessary to suppress
or prevent the social mischief aimed at.42It is submitted that the word ‘reasonable’
enables the Court to determine not only whether the impugned restrictive law is, in fact,
in the interests of any such ground as enumerated but also whether the restriction sought
to be imposed by the legislation is reasonable, having regard to the objective test i.e.
whether the restriction has a reasonable relation to the authorized purpose or is an
arbitrary abridgement of the freedom guaranteed by the Article under the cloak of any of
the exceptions.43 In the case of Papnasam Labour Union v. Madura Coats Ltd44, the
Supreme Court has stated that the following principles and guidelines should be kept in
view while considering the constitutionality of a statutory provision: The restriction must
not be arbitrary or of an excessive nature; there must be a direct and proximate nexus
between the restriction imposed and the object sought to be achieved; No abstract or fixed
principle can be laid down which may have universal application in all cases. It is further
submitted that it has been held that any legislation would be an unreasonable restriction
within the purview of Article 19 if the punishment is too harsh in the present-day social
background, in relation to the offence committed.45 It is humbly submitted that, in the
instant case, Section 124A of IPC sweeps within its ambit activities which constitute a
legitimate exercise of freedom of speech and expression and therefore does not fall within

39
Tara Singh Gopi Chand vs The State 1951 CriLJ 449.
40
Javeed v State of Haryana AIR 2003 SC 3057.
41
Ramji Lal v State of Uttar Pradesh AIR 1957 SC 620.
42
Pathunma v State of Kerala AIR 1978 SC 771.
43
Chintamanrao v State of MP (1950) SCJ 571.
44
Papnasam Labour Union v Madura Coats Ltd. AIR 1995 SC 2200.
45
Inderjeet v State of Uttar Pradesh AIR 1979 SC 1867.
 the ambit of the restrictions enumerated in Section 19(2). Hence, Section 124 of IPC is
not reasonable and hence should be struck down as unconstitutional.

Also, the restriction imposed does not satisfy the “test of proportionality”.Under the “Principle
of Proportionality”, the Legislature should maintain a proper balance between the adverse
effects which the legislation may have on the rights and liabilities or interests of the persons
46
keeping in mind the purpose they were intended to serve. It must not be arbitrary or of an
excessive nature. Legislation which arbitrarily or excessively invades the Fundamental Right
cannot be said to contain the quality of reasonableness.47 By proportionality, we mean the
question whether while regulating exercise of fundamental rights, the appropriate or least
restrictive choice of measures has been made by the Legislature so as to achieve the purpose
of the Legislation.48It is humbly submitted, therefore, that Section 124 A does not satisfy the
“Test of Proportionality. It is, therefore, submitted that Section 124 of IPC violates Section
19(1) (a) of the Constitution as it of an excessive nature and fails to maintain a proper balance
between the adverse effects which it may have on the rights and liabilities or interests of the
persons in relation to the purpose that it was intended to serve. The Constitution which leans
in favour of liberty of people should be adopted in preference to one that curtails liberty.

3.2] There was no incitement to violence in the speeches or writings of the appellants
and, neither there was an intention to create disorder which forms an essential part of
the section 124 of the IPC.

The counsel would like to humbly submit that mere slogan shouting against the State by the
appellants does not amount to sedition under section 124 of IPC because the acts or speeches
by any of them is not intended to have the “effect of subverting the Government” by violent
means and nor has the tendency, to create disorder or disturbance of public peace/ law and
order by resort to violence and which does not incite violence will not amount to the crime of
sedition under section 124A.

46
Express Newspapers (P) Ltd. v Union Of India AIR 1986 SC 872.
47
Chintaman Rao v State of Madhya Pradesh AIR 1951 SC 118.
48
Chintaman Rao v State of Madhya Pradesh AIR 1951 SC 118.
 49
The Federal Court in Niharendu Dutt Majumdar And Ors. vs Emperor 's case had
interpreted Section 124A in alignment with British law on sedition and held that a tendency
to disturb public order was an essential element of the offence under s. 124A. On the other
50
hand, a line of cases including the sedition case of Emperor vs Bal Gangadhar Tilak and
culminating in the Privy Council decision in the case of King-Emperor v. Sadashiv Narayan
Bhalerao51 had held that incitement to violence or a tendency to disturb public order was not
a necessary ingredient of the offence under s. 124A.

The passage which follows is the most important passage in the Supreme Court decision in
Kedar Nath Singh v State of Bihar and contains the ratio decidendi of the case. “Hence any
acts within the meaning of s. 124A which have the effect of subverting the Government by
bringing that Government into contempt or hatred, or creating disaffection against it, would
be within the penal statute because the feeling of disloyalty to the Government established by
law or enmity to it imports the idea of tendency to public disorder by the use of actual
violence or incitement to violence. In other words, any written or spoken words, etc., which
have implicit in them the idea of subverting Government by violent means, which are
compendiously included in the term 'revolution', have been made penal by the section in
question.”

Clearly the appellants were voicing the opinions on the issues and the counsel very humbly
submits that, the speeches made were strong worded but the intention was not to spread
hatred against the government and even the policies and mind set was criticised in lawful
manner without disrupting public peace and order at large. In Kedar Nath Singh, the Supreme
Court also clarified what is not sedition. Thus it clarified that mere “strong words used to
express disapprobation of the measures of Government with a view to their improvement or
alteration by lawful means is not sedition.”52 Further the Supreme Court also held that
criticism of the government is an important feature of the democracy and every citizen has
the right to criticise the stand of government on any issue. The Supreme Court clarified that 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.”53 The

49
Niharendu Dutt Majumdar And Ors. vs Emperor AIR 1939 Cal 703
50
Emperor vs Bal Gangadhar Tilak (1908) 10 BOMLR 848
51
King-Emperor v. Sadashiv Narayan Bhalerao (1944) 46 BOMLR 459
52
supra
53
supra
Supreme Court expressly rejected a literal interpretation of Section 124A. It also expressly
rejected the Privy Council interpretation which did not require the prosecution to establish
“incitement to violence or the tendency or the intention to create public disorder” as an
essential ingredient of the offence of sedition.

So to summarize, the Supreme Court has stated that Section 124A cannot be interpreted
literally. The two essential ingredients required to establish the crime of sedition under
Section 124A are 54

(i) the acts complained of must be intended to have the “effect of subverting the
Government” by violent means; and
(ii) the acts complained of must be intended, or have a tendency, to create disorder or
disturbance of public peace/ law and order by resort to violence and must incite
violence.
The counsel is of the view that mere slogan shouting against the State by the
appellants which is not clearly intended to have the “effect of subverting the
Government” by violent means and which is not intended to, nor has the tendency,
to create disorder or disturbance of public peace/ law and order by resort to
violence which does not incite violence and is mere exercise of right of speech
and expression will not amount to the crime of sedition under section 124A. As
stated earlier, the decision of the Supreme Court in Kedar Nath laid down the
interpretation of the law of sedition as it is understood today. In this decision, five
appeals to the Apex Court were clubbed together to decide the issue of the
constitutionality of 124A of the IPC in light of Article 19(1)(a) of the
Constitution. In the Court's interpretation the incitement to violence was
considered an essential ingredient of the offence of sedition.55

But According to the judgment of the Supreme Court in Ram Manohar v. State of Bihar 1965
Indlaw SC 42189 ('Ram Manohar Lohia') these may be viewed as three concentric circles,
with 'law and order' forming the outermost circle, 'public order' the next circle and 'security of
the state' the innermost circle. These form a hierarchy of disturbances of peace, with security
of the state possessing the highest standard of proof. Thus, if a restriction is to be justified on
the grounds of 'security of the state', it would have to be subjected to a higher standard than

54
Supra
55
PSA PILLAI, CRIMINAL LAW 1131 (K.I. Vibhute eds., 2009), p482.
that applied in cases of 'public order'. As has already been stated, sedition is an offence
against the State and punishes an act intended to subvert the government established by law.
It is difficult to imagine how the mere disturbance of public order could attract a charge for
an offence against the state, given that the term 'in the interests of public order' is used in an
extremely localised context.56 The Government and the Police attempted to create an
atmosphere of fear by arresting the student union president of the university and by
unnecessary and disproportional police action against the appellants.

Laid down most prominently in the decision of the Supreme Court of the United States in
Brandenburg v. Ohio, the test requires that restrictions cannot be placed on speech unless it is
directed to inciting, and is likely to incite "imminent lawless action". A pledge to overthrow
capitalism and private ownership and to work for the establishment of a socialist state does
not amount to waging war against the state, because every person is entitled to propagate the
political faith of his choice.57 As long as a person does not excite or attempts to excite hatred,
contempt or disaffection, then expressing disapproval of the acts of the government in order
to bring about change by lawful means or criticising or disapproving the administration, does
not constitute an offence under this section. In other words ‘ commenting in strong terms
upon the measures or acts of the government or its agencies, so as to ameliorate the condition
of the people or to secure the cancellation or alteration of these acts or measures by lawful
means’58 is not attracted by this section. “A very narrow and stringent limits have been set to
permissible legislative abridgment of the right of free speech and expression, and this was
doubtless due to the realisation that freedom of speech and of the press lay at the foundation
of all democratic organisations, for without free political discussion no public education, so
essential for the proper functioning of all the processes of popular government, is possible, A
freedom of such amplitude might invoke risk of abuse. Therefore, unless a law restricting
freedom of speech and expression is directed solely against the undermining of the security of
the state or the overthrow of it, such law cannot fall within the reservation under Clause (2) of
the Art. 19, although the restrictions which it seeks to impose may have been conceived
generally in the interests of the public order. It follows that section 9(I-A)of Madras
Maintenance of Public Order Act, 1949(XXIII of 1949) which authorises imposition of
restrictions for the wider purpose of securing public safety or maintenance of the public order

56
Ram Manohar v. State of Bihar, AIR 1966 SC 740 : (1966) 1 SCR 709 1965 Indlaw SC 421.
57
Umayyathantagatatu Puthen Veetil Kuzhi Kadir v Emperor, (1922) 42 Mad LJ 108.
58
Queen Empress v Amba Prasad (1897) ILR 20 All 55.
falls outside the scope of authorised restrictions under Clause (2), and is therefore void and
unconstitutional.”

The essence of the offence of sedition under section 124A, IPC, is the intention with which
the language of a speech is used and that intention has to be judged primarily from the
language itself. In forming an opinion as to character of a speech charged as seditious, the
speech must be looked at and taken as a whole, freely and fairly, without giving undue weigh
to isolated passages and pausing upon an objectionable sentence here or a strong word there,
and, in judging of the intention of the speaker, each passage, should be considered in
connection with the others and with the others and with general drift of the whole. Use of
certain words by the appellants may seem to be objectionable if read individually but
altogether, collective speech does not in any way excite the public for use of violence .It is
humbly submitted that before a person is accused of having committed an offence of waging
war, the intention or purpose behind the defiance or raising against the Government should
also be looked into. He submitted that the agitation is for reservation. The object and purpose
of the agitation is not to strike at the sovereign authorities of the Rulers or the Government
but to make a comment on the present policies of the government in strong worded speeches.

In Kanhaiya Kumar v State of Delhi59 In February 2016, JNU, Jawaharlal Nehru university
student union president Kanhaiya Kumar was arrested on similar charges of sedition under
section124-A of Indian Penal Code. However this arrest has raised a political turmoil in the
country with academicians and activists marching and protesting against this move by the
government. While those associated with JNU, past and present feel that the government is
stifling and ruthlessly suppressing dissent. The videos purporting to show this activity
werethe persuasiv widely circulated in the media without any substantial check of their
veracity. The students were humiliated by the media trials that followed. Later the videos
were found to be fake and he was released after three weeks in jail. On the similar lines there
is no evident proof of the alleged sloganeering done by the students other than the media
coverage that it got. The news reports may have persuasive value but it does not have any
binding value in the court.

59
Kanhaiya Kumar v State of Delhi
 60
Queen Empress v. Bal Gangadhar Tilak in which the clearest exposition of the law was
made by Strachy J. While stating the law before the jury he said “the offence consists in
exciting or attempting to excite in others certain bad feelings towards the Government. It is
not the exciting or attempting to excite mutiny or rebellion or any sort of actual disturbance
great or small. Whether any disturbance or outbreak was caused by these articles is absolutely
immaterial”

Here, the court followed the interpretation given by the Federal Court in Niharendu
Majumdar Case. Thus, the crime of sedition was established as a crime against public
tranquillity61 as opposed to a political crime affecting the very basis of the State. In
Gurjatinder Pal Singh v. State of Punjab,62 for example, the accused petitioned the Punjab &
Haryana High Court for an order to quash the First Information Report ('FIR') that had been
filed against him under 124A and 153B of the IPC. At 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 of a buffer state between Pakistan and India known as
Khalistan. He stated that the Constitution was a "worthless / useless" book for the Sikhs. The
supporters of the petitioner then raised aggressive slogans and naked swords were raised in
the air. The High Court cited the decision of the Supreme Court in Balwant Singh v. State of
Punjab 1995 Indlaw SC 1412,63 where the accused were alleged to have raised some slogans
on the day Smt Indira Gandhi, the then Prime Minister of India was assassinated, in a
crowded place. The accused were Government Servants. The Prosecution case was that they
raised slogans a couple of times, which however didn’t evoke any response from the public.
No disturbance whatsoever was caused and the people in general were unaffected and carried
60
Queen Empress v. Bal Gangadhar Tilak (1897) ILR 22BOM)
61
Rex v. Aldred, (1909) 22 Cox CC 1.
62
Gurjatinder Pal Singh v. State of Punjab, (2009) 3 RCR (Cri) 224.
63
Balwant Singh v. State of Punjab, (1995) 3 scc 214 : AIR 1995 SC 1785 1995 Indlaw SC 1412.
on with their activities. The Supreme Court 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. Crucially, it held that even explicit demands for secession
and the establishment of a separate State would also not constitute a seditious act.64 Thus, the
FIR against the accused was quashed. (115-117)

The Full Meaning of Sedition was explained by Lord Fitzgerald in his address to the jury in
Reg v Alexander Martin Sullivan,65 which was later followed in Reg v Burns66, Thus:

“Sedition is a crime against society, nearly allied to that of treason, and it frequently
precedes treason by a short interval. Sedition in itself is a comprehensive term, and it
embraces all those practices, whether by word, deed, or writing which are calculated to
disturb the tranquillity of the State, a0nd lead ignorant persons to endeavour to subvert the
Government and laws of the Empire.

The objects of sedition generally are to induce discontent and insurrection, and to stir up
opposition to the Government and bring the administration of justice into contempt, and thXe
very tendency of sedition is to incite the people into insurrection and rebellion.

Sedition has been described as disloyalty in action, and the law considers as sedition all
those practices which have for their object to excite discontent or disaffection, to create
public disturbance or to lead to civil war, or to bring into hatred or contempt the sovereign
or the Government, the laws or constitution of the realm and generally all endeavours to
promote public disorder.”

The seditious conduct may be by words, deeds, or by writing. Five specific heads of sedition
may be enumerated according to the object of the accused. This may be either:

to excite disaffection against the king, government or constitution or against

Parliament or the administration of justice;

a. to promote, by unlawful means, any alteration in Church or state;

64
Partap Singh v. UT, Chandigarh, Cri Misc No. 11926-M of 1991.
65
(1868) 11 Cox’s Criminal Cases 44.
66
(1873) 16 Cox’s Criminal Cases 355.
 b. to incite a disturbance of the peace;
c. to raise discontent among the King’s Subjects;
d. to excite class hatred.

‘Wages war’: These words naturally import a person arraying himself in defiance of the
Government in like manner and by like means as a foreign enemy would do, having gained
footing within the realm. The expression ‘wages war’ in section 121 must be construed in its
ordinary sense. Overt acts such as collection of men, arms and ammunition for that purpose
do not mean waging war.67 So long as man only tries to inflame feeling, to excite a state of
mind, he is not guilty of anything more than sedition. It is only when he definitely and clearly
incites to action that he is guilty of instigation and, therefore of abetting the waging of war.68

67
Barendra Kumar Ghosh v Emperor (1910) 37 Cal 467.
68
Emperor v Hazrat Mohani, AIR 1922 Bom 284.