SPECIAL LEAVE PETITION NO.

__ OF 2017

BEFORE THE HON’BLE SUPREME COURT OF INDISTAN

IN THE MATTER OF:

KRISHAN & OTHERS ... PETITIONER

V.

STATE OF AWADH ... RESPONDENT

SPECIAL LEAVE PETITION NOS. ___/2017,

For the offence charged under:

Section 124A, 121, 120B, 34, 153, 499, 505 OF IPC and Section 2 of the Prevention of
Insults to National Honour Act,1971

UPON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDISTAN

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDISTAN

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

COUNSEL APPEARING ON BEHALF OF THE PETITIONER

1
 TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................... 2

INDEX OF AUTHORITIES ...................................................................................................... 3

STATEMENT OF JURISDICTION .......................................................................................... 6

STATEMENT OF FACTS.................................................................................................... 7VII

STATEMENT OF ISSUES ...................................................................................................... 10

SUMMARY OF ARGUMENTS ............................................................................................. 11

ARGUMENTS ADVANCED ................................................................................................. 13

PRAYER .................................................................................................................................. 30

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 INDEX OF AUTHORITIES

BOOKS AND COMMENTARIES

1. ARVIND P. DATAR, DATAR ON CONSTITUTION OF INDIA, Wadhwa & Company,

ed.2001.
2. DURGA DAS BASU, COMMENTARY ON CONSTITUTION OF INDIA, Vol. 2, 2007.
3. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, Vol. 3, 8th ed.,
2008.
4. Kelkar,R.V., Criminal Procedure, Eastern Book Company, 6th Edition, 2015
5. KT Shah‟s “Note on Fundamental Rights”,
6. M.P. JAIN, INDIAN CONSTITUTIONAL LAW, Vol. 1, 5th ed., 2003, p. 1309
7. Pillai, PSA, Criminal Law, Leexis Nexis,12th Edition, 2016
8. Essay on Indian Penal Code, 1860 – K.N. Chandrashekhar, Pillai, Universal Law
Publication, 2012.

9. Indian Penal Code, 1860 – S.N. Mishra, 17th ed. Central Law Publication Company,
2012.

10. The Indian Penal Code, 1860 – K.D. Gaur, 4th Ed., Universal Law Publishing Co.
Pvt. Ltd, 2013

11. The Indian Penal Code, 1860 – Prof. T. Bhattacharya, 6th Ed., Central Law Agency,
First Ed. – 1994, Reprint 2010.

CASES
1. Anita Thakur & Ors. v. Govt. Of J & K & Ors............................................................ 17
2. Babulal v. State of Maharashtra ................................................................................... 19
3. Balwant Singh v. State of Punjab ................................................................................ 21
4. Beatty v. Gilbanks,(1882 ............................................................................................. 21
5. Beaty v. Gilbanks ......................................................................................................... 22
6. Bennett Coleman & Co. and Ors. v. Union of India and Ors ...................................... 16
7. Brij Bushan v. State of Delhi ....................................................................................... 23
8. Chintaman Rao v. The State of Madhya Pradesh ........................................................ 17

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9. Indian Express Newspaper (Bombay) (P) Ltd. v. Union of India ............................... 25
10. Kedar Nath Singh v. State of Bihar ............................................................................. 17
11. Maneka Gandhi v. Union of India ............................................................................... 15
12. Nazir Khan & Ors. v. State of Delhi ............................................................................ 18
13. Niharendu Dutt Majumdar v. Emperor ........................................................................ 13
14. Queen Emperor v. Jogendur Chandra Bose ................................................................. 12
15. Queen Empress v. Amba Prasad .................................................................................. 12
16. Queen Empress v. Bal Gangadhar Tilak ...................................................................... 12
17. Queen Empress v. Ramchandra Narayan..................................................................... 12
18. Ram Nandan v. State of Uttar Pradesh ........................................................................ 14
19. Re Harijai Singh ........................................................................................................... 24
20. S. Khushboo v. Kanniamal & Anr ............................................................................... 21
21. Sakal Papers (P) Ltd. & Ors. v. Union of India ........................................................... 21
22. Shreya Singhal v. Union of India ................................................................................. 22

STATUTES

1. THE CONSTITUTION OF INDIA, 1950

2. THE INDIAN PENAL CODE, 1860

TABLE OF ABBREVIATIONS

1. AIR- All India Reporter

2. All- Allahabad
3. AP-Andhra Pradesh
4. Art.- Article
5. Bom.- Bombay
6. CJ.-Chief Justice
7. CriLJ- Criminal Journal
8. Edn.,-Edition
9. Gau- Gauhati
10. Guj.- Gujarat
11. ILR- Indian Law Reporter
12. IPC- Indian Penal Code

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13. J.- Justice
14. Ker.-Kerala
15. MP-Madhya Pradesh
16. PC- Privy Council
17. SC- Supreme Court
18. SCC- Supreme Court Cases
19. SCJ- Supreme Court Journal
20. SCR-Supreme Court Reporter
21. Sec.- Section
22. UP-Uttar Pradesh

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 STATEMENT OF JURISDICTION

The Petitioner have moved toward the Hon'ble Supreme Court of Indistan by method of
special leave which the Hon'ble Court is vested with the remarkable purview to hear and
arrange off as gave upon this Hon'ble Court by Article 136 of the Constitution of Indistan,
recreated as under:
136. Special leave to appeal by the Supreme Court- (1) Notwithstanding anything in this
Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any
judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

6
 STATEMENT OF FACTS

1. Krishna is the resident of Awadh in the state of Indistan, studying law at Awadh
University. He is an active member of student political body known as Awadh
University Vidyarthi Parishad (AUVP) and elected as its president in recent
conducted elections.
2. Waseem is resident of Kashmirpur , a state of Indistan, elected as Vice-president. He
is an active member of Kashmirpur Azadi Sangh (KAS), a youth organization,
professing ideology that Kashmirpur should not be an integral part of Indistan and
should be separated as independent sovereign state.
3. A cultural evening was organized by the Cultural Committee of the University, in
which various competitions were held including debate competition. Krishna and
Waseem started giving a speech on the atrocities against the Dalits and blamed the
present Governmnet for the same.
4. Krishna who was a Dalit, in his speech said, “We've elected a Government full of
donkeys and they won't do anything to protect us. All the leaders are corrupt and are
interested only in filing money in their pockets rather than working for the people. All
these government leaders should be shot publicly." He got a massive response and as
a result next day, Krishna with his four friends namely Anindya, Raghav, Waseem
and Sukarma decided to conduct a rally and almost ten thousand people including the
students of Awadh University participated in the rally which culminated near the
Vidhan Sabha. They shouted slogans like "Azadi Chaiye Puniivad Se. Brahrnanvad
Se. Azadi Chaiye Bhrashtachar Se. Bhukhmari Se. Azadi Hmara Haq Hai Harn lekar
Rahenge. Nahi Milegi Azadi jab tak ye Sarkar hai." Waseem stood up and shouted
slogans for a free Kashmirpur, like "Kashmirpur ki Azadi tak. Jang rahegi jari"
5. Krishna mentioned in his speech "We should revolt against the Governrnent and
destroy their fake policies until full attention is given to our community & our
security is guaranteed. otherwise we will wage war against this Government." He also
said that. "Reservation policies for our community, are less than what we actually
require for appropriate representation in all the fields. Government should increase the
reservation. But this government is doing nothing and we are treated like second class
citizens. Thus we should boycott all the policies and choose our leaders wisely, next
time."

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6. Krishna next day with the help of his friend Omar, student of Awadh University and
also a cartoonist in Times of Indistan, printed a cartoon of the Prime Minister,
Parliament and the National Flag of Indistan. After the copies of Times of Indistan
were sold the next day Krantikari Yuva Morcha, youth wing of the Krantikari Janta
Party which is the ruling party started protesting in front of Vidhan Sabha and shouted
that AUVP is an anti-national organisation and such student body should be banned.
Due to wide media coverage this issue gained a lot of publicity and led to social
disorder as students came out on roads.
7. Police lodged an FIR due to public unrest against Krishna, Waseem and their three
other friends and slapped charges against them under Sections 124A, 121, 120B, 34,
153, 505 of Indian Penal Code and also section 2 of the Prevention of Insults to
National Honour Act. l97l. One separate FIR was also filled against Omar charging
him under Sections 499 and l24A of IPC and also Section 2 0f The Prevention of
lnsults to National Honour Act, 1971. Police arrested Krishna, Waseem, Omar and
three other accused. They were subsequently released on conditional bail and criminal
proceedings against them are still pending. A ban has also been imposed on the Times
of Indistan on publishing such cartoons. The ban gave rise to major unrest in the
media against the government. However, AUVP is continuoulsy conducting student
rallies in order to defend their freedom of speech and expression.
8. The case came for hearing before the Sessions Court but due to wide media coverage
and public outrage. High court of Awadh took cognizance of the matter and heard the
case. The High Court of Awadh decided the case in favour of the state and held that
the law under Section l24A of the IPC puts reasonable restrictions on the freedom of
speech and expression and also held that the petitioners were involved in seditious
activities and also upheld the charge against them. The High Court also ordered for
continuing the ban on Times of Indistan against the publication of such cartoons.
After this decision of the High court, the petitioners were again arrested by the police.

9. One public spirited advocate agreed to represent the students‟ body AUVP, and filed
an appeal in the Supreme Court of Indistan against the order of the Awadh High Court
challenging the arrest of Krishna, Waseem. Omar and three others claiming violation
of their fundamental rights guaranteed under Articles 14, 19 & 21 of the Constitution
of Indistan, and also challenging the constitutionality of the Section l24A of the IPC
arguing that it puts unreasonable restrictions on the fundamental right to freedom of
viii
speech and expression enshrined in Article l9(l)(a). ln appeal the ban against Times of
Indistan is also challenged for its being violative of the freedom of Press flowing from
the aforesaid freedom. The appeal is presented before the Chief Justice of Supreme
Court on an urgent basis. Thus, the present petition has been filed in the Hon‟ble
Supreme Court of Indistan claiming that Section 124A is unconstitutional for
imposing unreasonable restrictions on the fundamental right under Article 19(1)(a)
read with Article 19(2) & is in violation of other fundamental rights enshrined in
the Constitution of Indistan and thus the charges under different sections as filed in
the FIR fall apart.

ix
 STATEMENT OF ISSUES

1. Whether or not Section 124A of the Indian Penal Code is in direct clash with the
Fundamental Rights revered under Part III of the Constitution of Indistan and
consequently, ought to be proclaimed unconstitutional?

2. Whether or not Krishna, Waseem, and others have rightfully charged under the offense
of Sedition under Section 124A of the Indian Penal Code, 1860?

3. Whether or not giving open discourse or distributing a toon in the daily paper out in
the open intrigue adds up to Defamation?

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 SUMMARY OF ARGUMENTS

1. Whether or not Section 124A of the Indian Penal Code is in direct clash with the
Fundamental Rights revered under Part III of the Constitution of Indistan and
consequently, ought to be proclaimed unconstitutional?

Say something bad to me- It‟s okay!

Say something bad to my family- it‟s not okay, but it‟s okay!
Say something bad about my nation- now you are in trouble!

The sentiments, emotions, anger of Indians can all be seen effortlessly when they listen to
something against their country. They will prove you wrong with all their sweat and blood.
Moreover, they will immediately put allegations on you for trying to incite them against their
nation. Consequently, they will put you behind bars on SEDITION CHARGES
The sedition law was introduced as an offence through clause 113 of the Draft Indian Penal
Code by Thomas Macaulay in the year 1837. The reason for its incorporation in the draft was
the increase in rebel by the Indian revolutionaries against the company rulers. The British
seeing that the Indians were spreading hatred against them felt the need of a law which can
suppress their rebel. As a result, the law of Sedition was introduced in the draft of Indian
Penal Code. However, the Law of Sedition was not present in the original Indian Penal Code
of 1860. It was in 1870 when due to rising rebels and unrest, the British government amended
the Indian Penal Code and inserted Sec 124A.

The law of sedition under section124A of the IPC is an obsolete law and has an undemocratic
nature. The Colonial Government in India inserted Section 124A in the code for the purpose
of suppressing the Indian Voice. It was one of the many draconian laws enacted to stifle any
voices of dissent at that time. Sedition was not acceptable to the framers of the Constitution
as a restriction on the freedom of speech and expression, but it remained as it is in the penal
statute post-independence.

In today‟s time, where free speech is considered to be another pillar of democracy, such laws
constitute unreasonable restrictions and hinder the free and full exercise of the right to
freedom of speech and expression. They are in direct conflict with the fundamental rights
enshrined in the Constitution such as Articles 14, 19 and 21.There are many other sufficient

11
laws to prosecute persons who are guilty of spreading hatred against the Government and
State and this draconian and ambiguous law should find no place in Indian Penal Code and
should be repealed immediately being contrary to the spirit of the Constitution.

2. Whether or not Krishna, Waseem, and others have rightfully charged under the
offense of Sedition under Section 124A of the Indian Penal Code, 1860?

It is most humbly submitted before the Hon‟ble bench that no offence of sedition was
committed by Krishna, Waseem, Omar and their three other friends, all students of Awadh
University and therefore section 124A of IPC in this particular case constitutes an
unreasonable restriction on their right to freedom of speech and expression.

It is fundamental to stress here that vote based system isn't another name of majoritarianism
despite what might be expected it is a framework to incorporate each voice, where thought of
each individual is tallied, regardless of the quantity of the general population backing that
thought. In a vote based system, it is normal that there will be extraordinary and clashing
translation of a given record of an occasion. Not just perspectives which comprise the greater
part are to be considered, and yet, contradicting and basic assessments ought to likewise be
recognized. Free discourse is secured in light of the fact that it is important to accomplish
some more prominent, regularly extreme, social great.

The trademarks ascended by Krishna, Waseem and others are insignificant supports which
are being raised against the monstrosities and not well drafted approaches of the Government.
They had simply made an endeavor to place it in the hard of hearing ears of the Government
the terrible organization that is doing insufficient for the welfare of its kin. In addition for the
offense of rebellion to be submitted it is exceptionally essential that the general population
who are being routed, to get impelled yet the advice might want to convey it to the notice of
the Hon'ble seat that no such scenes have been seen or detailed in or outside the grounds of
the college.

3. Whether or not giving open discourse or distributing a toon in the daily paper out in
the open intrigue adds up to Defamation?

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It is submissively submitted under the steady gaze of this Hon'ble court that Krishna and
Waseem can't be charged under section 499 of IPC as they are simply giving discourse in the
social night composed by the Cultural Committee in the Awadh University. Omar
additionally can't be charged under section 499 of IPC for distributing a toon in the daily
paper as it isn't slander to credit anything which is genuine concerning any individual, on the
off chance that it is for the general population great that the ascription ought to be made or
distributed and it isn't criticism to express in accordance with some basic honesty any feeling
whatever regarding the direct of any individual contacting any open inquiry..

ARGUMENTS ADVANCED

1. Whether or not Section 124A of the Indian Penal Code is in direct clash with the
Fundamental Rights revered under Part III of the Constitution of Indistan and
consequently, ought to be proclaimed unconstitutional?

1. It is modestly presented that the arrangement for subversion under Section 124A of
the Indian Penal Code, 1860 is obsolete, out of date, vague, ambiguous, age-old and
draconian. It has lost its importance in the present day world, particularly in India
which is the world's biggest popular government. With regards to the quintessential
exercise of basic rights ensured by the Constitution and the need of the natives to
express their contradiction against the State, this segment ought to be pronounced
unlawful.
2. The offense of dissidence is given under segment 124A of the Indian Penal Code,
1860 (hereinafter IPC). The pertinence of this segment in a free and popularity based
country is nil as it is a relic of provincial inheritance and along these lines unsuited in
a vote based system. There is a misgiving that this arrangement may be abused by the
legislature to stifle disagree.

1.1 THAT SEDITION WAS AN APPARATUS TO CHECK POLITICAL

DISPUTE IN PRE-CONSTITUTION PERIOD.

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 1. Section 124A IPC penalised disaffection and not disapprobation. Disaffection was
defined as a feeling contrary to affection; like dislike or hatred and disapprobation as
merely disapproval. The following interpretation was ascribed to the term disaffection
under section 124A IPC:
“If a person uses either spoken or written words calculated to create in the minds of
the persons to whom they are addressed a disposition not to obey the lawful authority
of the Government, or to subvert or resist that authority, if and when occasion should
arise, and if he does so with the intention of creating such a disposition in his hearers
or readers, he will be guilty of the offence of attempting to excite disaffection within
the meaning of the section, though no disturbance is brought about by his words or
any feeling of disaffection, in fact, produced by them.”1
2. In Queen Empress v. Bal Gangadhar Tilak2 the defendant was accused of sedition for
publishing an article in newspaper- Kesari invoking the example of the Maratha
warrior Shivaji to incite overthrow of British rule. In this case Justice Strachey placed
relevant material before the jury for interpreting „disaffection‟ by saying:
“It means hatred, enmity, dislike, hostility, contempt and every form of ill-will to the
Government. 'Disloyalty' is perhaps the best general term, comprehending every
possible form of bad feeling to the Government. That is what the law means by the
disaffection which a man must not excite or attempt to excite: he must not make or try
to make others feel enmity of any kind towards the Government. ….. the amount or
intensity of the disaffection is absolutely immaterial, ……….. if a man excites or
attempts to excite feelings of disaffection, great or small, he is guilty under the
section. In the next place it is absolutely immaterial whether any feelings of
disaffection have been excited or not by the publication in question. ……….the section
places absolutely on the same footing the successful exciting of feelings of disaffection
and the unsuccessful attempt to excite them…...”
3. Two important decisions pursuant to Tilak judgement were Queen Empress v.
Ramchandra Narayan3 and Queen Empress v. Amba Prasad4. In Ramchandra
Narayan (supra), attempt to excite feelings of disaffection to the Government was
defined as equivalent to an attempt to produce hatred towards the Government as
established by law, to excite political discontent, and alienate the people from their

1
Queen Emperor v. Jogendur Chandra Bose (1892) 19 ILR Cal 35.
2
ILR (1898) 22 Bom 112.
3
ILR (1898) 22 Bom 152.
4
50 ILR (1897) 20 All 55.

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 allegiance. However, it was clarified that every act of disapprobation of Government
did not amount to disaffection under section 124A IPC, provided the person accused
under this section is loyal at heart and is ready to obey and support Government.
4. A similar interpretation was given to disapprobation in Amba Prasad (supra), who
was booked under section 124A IPC, for publishing an article in a newspaper called
Jami-ul-ulam. The court after analysing the meaning of disaffection held that any
disapprobation will only be protected as free speech if it did not lead to disloyalty or
subverting the lawful authority of the State. The court remarked that:
“..the disapprobation must be 'compatible' with a disposition to render obedience to
the lawful authority of the Government and to support the lawful authority of the
Government against unlawful attempts to subvert or resist that authority.”
5. These cases reflect the tendency of the then Government to use sedition to suppress
any kind of criticism. It was more of a tool in the hands of the British to curb political
dissent and to crush ruthlessly any attempt that was made to unify people for the
common object of overthrowing the British power.

1.2 THAT SEDITION WAS INTENTIONALLY FORGOTTEN FROM THE

CONSTITUTION AS IT WAS A SORRY EXCUSE FOR PROVINCIAL
OCCASIONS.

6. After India got independence and the Constitution was being drafted, from the
Constituent Assembly Debates, it is understood that there had been serious opposition
for inclusion of sedition as a restriction on freedom of speech and expression under
the then Article 13 of the draft Indian Constitution. Such a provision was termed as a
shadow of colonial times that should not see light of the day in free India. The
Constituent Assembly was unanimous in having the word „sedition‟ deleted from
Article 13 of the draft Constitution.
7. During the discussions, it was said: If we find that the government for the time being
has a knack of entrenching itself, however bad its administration might be it must be
the fundamental right of every citizen in the country to overthrow that government
without violence, by persuading the people, by exposing its faults in the
administration, its method of working and so on. The word 'sedition' has become
obnoxious in the previous regime. We had therefore approved of the amendment that
the word 'sedition' ought to be removed, except in cases where the entire state itself is

15
 sought to be overthrown or undermined by force or otherwise, leading to public
disorder; but any attack on the government itself ought not to be made an offence
under the law. We have gained that freedom and we have ensured that no government
could possibly entrench itself, unless the speeches lead to an overthrow of the State
altogether (Emphasis added).
8. The then Chief Justice of India, in Niharendu Dutt Majumdar v. Emperor5 wherein a
distinction between ―what „sedition‟ meant when the Indian Penal Code was enacted
and „Sedition‟ as understood in 1942, said: This (sedition) is not made an offence in
order to minister to the wounded vanity of Governments but because where
Government and the law ceases to be obeyed because no respect is felt any longer for
them, only anarchy can follow. Public disorder, or the reasonable anticipation or
likelihood of 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 that is their intention or tendency.
9. In the case of Ram Nandan v. State of Uttar Pradesh6 the Court quoted Pt. Jawaharlal
Nehru, who while introducing the first Constitution of India (Amendment) Bill 1951,
referred to sedition and stated:
“Now so far as I am concerned that particular Section is highly objectionable and
obnoxious and it should have no place both for practical and historical reasons, if
you like, in any body of laws that we might pass. The sooner we get rid of it the better.
We might deal with that matter in other ways, in more limited ways, as every other
country does but that particular thing, as it is, should have no place, because all of us
have had enough experience of it in a variety of ways and apart from the logic of the
situation, our urges are against it.”

1.3 THAT SEDITION SHOULD BE REPEALED IN A COUNTRY LIKE

INDIA- THE LARGEST DEMOCRACY OF THE WORLD, CONSIDERING
THAT IT VIOLATES THE MOST ESSENTIAL FUNDAMENTAL RIGHTS
ENSURED UNDER ARTICLES 14, 19 AND 21 OF THE CONSTITUTION.

10. The issue of revisiting „sedition‟ has been taken up by the Law Commission
previously as well. The Commission, in its 42nd Report (1971) titled ― “Indian Penal

5
AIR 1942 FC 22 (26).
6
AIR 1959 All 101.

16
 Code”, the Commission made three crucial suggestions to be incorporated in section
124A, IPC. They were:
 Incorporation of mens rea in the section,
 The scope of the section be widened, incorporating Constitution of India, Legislatures
and the administration of justice (Judiciary), along with the executive Government,
against whom disaffection would not be tolerated, and
 Bridging the „odd gap‟ between imprisonment for life and imprisonment which may
extend to three years, or fine, by fixing the maximum punishment for sedition at seven
years rigorous imprisonment and fine„.
However, the Government did not accept the revision proposed by the Commission.
11. Also, the 267th Report of the Commission on ― “Hate Speech” (2017), distinguished
between „sedition‟ and „hate speech‟, providing that the offence of hate speech affects
the State indirectly by disturbing public tranquillity, while the sedition is directly an
offence against the State. The Report adds, that to qualify as sedition, the impugned
expression must threaten the sovereignty and integrity of India and the security of the
State. Further, it is required to be noted that we have certain sets of established tests
for understanding what speech amounts to sedition and what would be merely an
expression of dissatisfaction or disaffection which may even be productive criticism
or a necessary indication of problems in the state and society. Laws governing both
hate speech and sedition must preserve the right to offend.

1.4 THAT IT DISREGARDS APPROPRIATE UNIFORMITY UNDER

ARTICLE 14 OF THE CONSTITUTION.

12. Equality is one of the magnificent corner stone of democracy. This equality is
enshrined in the Article 14 of the Constitution which envisages guaranteeing every
person the right to equality before law and equal protection of law. The Supreme
Court in Maneka Gandhi v. Union of India7, clearly ruled out the room for
arbitrariness. It held that: “Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The principle of reasonableness, which
logically and philosophically, is an essential element of equality or non-arbitrariness,
pervades Article 14 like a brooding omnipresence.”

7
AIR 1978 SC 597.

17
 13. The three explanation to Section 124A defines “disaffection” to include disloyalty and
all feelings of enmity but excludes “disapprobation” of the measures and actions of
the Government from the scope of this provision. Although the Court have defined the
term “disaffection” to be a positive aversion against the government and not mere
absence of affection, there exists an inherent ambiguity between a harmless
disapprobation and a failed attempt at excitement of disaffection.
14. A statement innocent of the intention required under Section 124A can still be
construed as a failed attempt at excitement of disaffection and be charged under this
section. The right of every organised society to protect itself against attempts to
overthrow it cannot be denied but the attempts which have seemed grave to one age
may be the subject of ridicule in another. This inherent ambiguity embodied in this
section paves way to the arbitrary application of law whereby two equals may be
treated unequally under Section 124A, thus violating the august principle enshrined
under Article 14.
15. In the words of Lord Potter, “A man should not be put in peril on an ambiguity.” Law
must be expressed with clarity and certainty as to give reasonably precise and
adequate guidance.8

1.5 THAT IT DISREGARDS APPROPRIATE RIGHT TO SPEAK FREELY

AND ARTICULATION UNDER ARTICLE 19(1)(A) OF THE
CONSTITUTION.

16. Section 124A is a showpiece of our colonial hangover as it gives the Government the
chance of stepping into the shoes of a colonial master. This should be no law at all as
it basically prevents any form of political dissent. The Preamble of the Constitution of
India, inter alia, speaks of the liberty of thought, expression, belief, faith and worship.
It also says that India is a sovereign democratic republic. It cannot be over
emphasized that when it comes to democracy, liberty of thought and expression is a
cardinal value that is of paramount significance under our constitutional scheme.
17. Section 124A of the IPC deals with the offence of sedition. The word disaffection that
is used in the above mentioned section includes disloyalty and all feelings of enmity.
Mere excitement of disaffection or bad feelings against the Government or even an
unsuccessful attempt to excite bad feelings may not necessarily undermine the

8
Avais v. Hartford Social Club Ltd., (1969) 1 ALL ER 130 HL.

18
 „security of the state‟ as explained by the Supreme Court in Romesh Thapar v. State
of Madras, Sastri J., Unequivocally observed: “Deletion of the word „sedition‟ from
draft Article 13(2), therefore, shows that criticism of Government exciting disaffection
or bad feelings towards it is not to be regarded as a justifying ground for restricting
the freedom of expression and of the press, unless it is such as to undermine the
security or tend to overthrow the state.”
18. If, therefore, Section 124A of the IPC includes within its ambit innocuous
expressions, having no proximate or reasonable connection with public disorder, it
would cover restrictions both within and without the limits of constitutionally
permissible legislative action and must be struck down as an unreasonable restriction
within the meaning of Article 19 (2).
19. The constitutional validity of section 124A IPC came to be challenged in the case of
Kedar Nath Singh v. State of Bihar9. The Constitution Bench upheld the validity of
section 124A and kept it at a different pedestal. The Court struck a balance between
the right to free speech and expression and the power of the legislature to restrict such
right observing thus:
“…the security of the State, which depends upon the maintenance of law and order is
the very basic consideration upon which legislation, with view to punishing offences
against the State, is undertaken. Such a legislation has, on the one hand, fully to
protect and guarantee the freedom of speech and expression, which is the sine quo
non of a democratic form of Government that our Constitution has established. … But
the freedom has to be guarded against becoming a licence 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. (emphasis
added).”
20. As Justice Oliver Wendall Holmes said: “Every idea is an incitement...eloquence
may set fire to reason.” Therefore, it is contended that Section 124A of the Indian
Penal Code is violative of Article19 (1)(a) and is not saved by Article 19 (2).

1.6 THAT IT VIOLATES RIGHT TO LIFE UNDER ARTICLE 21 OF THE CONSTITUTION.

9
AIR 1962 SC 955.

19
 21. It has been stated in the FC Mullin Case10 that right to life includes facilities for
reading, writing and expression for oneself in diverse forms which covers the basic
necessity.
22. Also, in Shreya Singhal v. Union of India11, it has been by the Hon‟ble Supreme
Court that “A penal law is void for vagueness if it fails to define the criminal offence
with sufficient definiteness Ordinary people should understand what conduct is
prohibited and what is permitted. Also those who administer the law must know what
offence has been committed so that arbitrary and discriminatory enforcement of law
does not take place.”
23. Owing to the manifestly ambiguous words of Section 124A the government is at an
unfettered liberty to arrest any person who has expressed a bona fide criticism,
forcefully subjecting him to the judicial process and the sufferings of an under-trial,
by taking advantage of the absence of clarity between a harmless disapprobation and a
failed attempt at exciting disaffection.
24. Therefore, it is contended that section 124A is violative of Article 21 and prayed that
this „prince‟ among the political sections of the Indian Penal Code designed to
suppress the liberty of the citizens be given the speedy and unceremonious burial it
deserves.
25. Therefore, this controversial legislation has no relevance in the present times and
hence, in the interest of the public at large and it‟s right to express its dissent against
the Government in a democratic set up, this section should be declared
unconstitutional and be repealed with immediate effect.

2. Whether or not Krishna, Waseem, and others have rightfully charged under the
offense of Sedition under Section 124A of the Indian Penal Code, 1860?

26. It is most modestly submitted before the Hon'ble seat that no offense of sedtition was
submitted by Krishna, Waseem, Omar and their three different companions, all
understudies of Awadh University and thusly area 124A of IPC in this specific case

10
AIR 1981 SC 746.
11
2015 (5) SCC 1.

20
 establishes a preposterous limitation to their right side to the right to speak freely and
articulation. It is fundamental to stress here that popular government isn't another
name of majoritarianism in actuality it is a framework to incorporate each voice,
where thought of each individual is tallied, regardless of the quantity of the general
population backing that thought. In a vote based system, it is regular that there will be
unique and clashing translation of a given record of an occasion. Not just perspectives
which comprise the greater part are to be considered, and yet, contradicting and basic
sentiments ought to likewise be recognized. Free discourse is ensured in light of the
fact that it is important to accomplish some more noteworthy, frequently extreme,
social great.
27. In Nazir Khan & Ors. v. State of Delhi12, the court stated that:
“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 dissatisfaction,
to create public disturbance, or to lead to civil war; to bring into hatred or contempt
the Sovereign or the Government, the laws or constitutions of the realm, and
generally all endeavours to promote public disorder.”

2.1 WHETHER OR NOT THE ESSENTIAL INGREDIENTS TO CONSTITUTE THE

OFFENCE OF SEDITION UNDER SECTION 124A OF THE INDIAN PENAL CODE, 1860

ARE FULFILLED?

28. Krishna, who was a Dalit, in his discourse stated, "We've chosen a Government
brimming with jackasses and they won't successfully secure us. Every one of the
pioneers are degenerate and are intrigued just in filling cash in their pockets instead of
working for the general population. All these administration pioneers cash in their
pockets as opposed to working for the general population." The understudies yelled
mottos like "Azadi chahiye punjivad se, brahmanvad se, azadi chahiye bhrashtachar
se, bhukmari se, azadi hmara haq hai murmur lekar rahenge, nahi milegi azadi punch
tak ye sarkar hai." Krishna made reference to in his discourse "We should rebel
against the Government and crush their phony arrangements until the point when
complete consideration is given to our locale and our security is ensured, else we will
take up arms against this Government." He additionally said that, "Reservation
strategies for our locale are not as much as what we really require for proper portrayal

12
AIR 2003 SC 4427.

21
 in every one of the fields. Government should expand the reservation. Be that as it
may, this legislature is doing nothing and we are dealt with like peasants. In this way
we should blacklist every one of the approaches and pick our pioneers admirably next
time."
29. Section 124A of the Indian Penal Code, 1860 defines the offence of Sedition. The
word sedition does not occur in the body of the section. It finds place only as a
marginal note to the section which is not an operative part of the sedition, but simply
states the name by which the offence defined in the section is known.13 The following
are the essential ingredients of the section, viz.,
1. Bringing or attempting to bring into hatred; or
2. Exciting or attempting to excite disaffection against the Government of India;
3. Such act or attempt may be done (a) by words, either spoken or written, or (b) by
signs, or (c) by visible representation; and
4. The act must be intentional.
30. It is, in particular, emphasized that the explanation to section 124A of the Indian
Penal Code itself states that:
“Such a disapprobation of the measures of the Government as is compatible with a
disposition to render obedience to the lawful authority of the Government, and to
support the lawful authority, of the Government, against unlawful attempts to subvert
or to resist that authority, is not disaffection. Therefore the making of comments on
the methods of the Government, with the intention of exciting only this species of
disapprobation, is not an offence within this clause.”
Explanation 1 to the section sets out the scope if disaffection and Explanations 2 and
3 state what is not considered seditious intention as indicated under the English Law.
That is to say, criticism of Government measures and administrative and other actions
of the Government, if done without exciting or attempting to excite hatred, contempt
or disaffection towards the Government established by law, is not sedition.
31. The petitioners have only made an endeavour to bring into light the corrupt practices
of the elected representatives of the people who aren‟t doing an iota of what they were
elected for. They are misguiding the people in the name of development and progress.
They have merely highlighted the termites that are slowly eating up the country and
will very soon, finish it. In their mode of demonstration, they unequivocally lacked

13
Emperor v. Sadashiv Narayan Bhalerao, AIR 1947 PC 82.

22
 the intention to commit any seditious act in any manner. In the exercise of their right
to free speech and expression as granted by Article 19 (1) (a) of the Constitution of
Indistan, they have criticized the ineffectiveness of the policies of the Government
and have in no manner, incited any kind of rebellion against the Government.
32. Furthermore, in the case of Kedarnath v. State of Bihar14, it was clearly stated that
words, deeds or writings, constituted an offence under section 124A only when they
had the intention or tendency to disturb public tranquillity to create public disturbance
or to promote disorder. This requisite intention is clearly missing in this case. After
the pronouncement in the case of Kedar Nath (Supra) by the Supreme Court, public
disorder has been considered to be a necessary ingredient of section 124A IPC by the
courts.
33. Moreover, in the case law of Sakal Papers (P) Ltd. & Ors. v. Union of India15, a
Constitution Bench of this Court said freedom of speech and expression of opinion is
of paramount importance under a democratic constitution. In a separate concurring
judgment Beg,J. said, in Bennett Coleman & Co. & Ors v. Union of India & Ors16,
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.
34. Equally, in S. Khushboo v. Kanniamal & Anr17, this Court stated, that the importance
of freedom of speech and expression though not absolute was necessary as we need to
tolerate unpopular views. This right requires the free flow of opinions and ideas
essential to sustain the collective life of the citizenry. While an informed citizenry is a
pre-condition for meaningful governance, the culture of open dialogue is generally of
great societal importance.
35. This last judgment is important in that it refers to the “market place of ideas” concept
that has permeated American Law. This was put in the felicitous words of Justice
Holmes in his famous dissent in Abrams v. United States18, thus:
“But when men have realized that time has upset many fighting faiths, they may come
to believe even more than they believe the very foundations of their own conduct that
the ultimate good desired is better reached by free trade in ideas-that the best test of
truth is the power of thought to get itself accepted in the competition of the market,

14
1962 AIR 955, 1962 SCR Supl. (2) 769.
15
1962 3 S.C.R. 842 at 866.
16
1973 2 S.C.R. 757 at 829.
17
2010 5 SCC 600.
18
250 US 616 (1919),

23
 and that truth is the only ground upon which their wishes safely can be carried out.
That at any rate is the theory of our Constitution.”
36. The slogans raised by Krishna, Waseem and others are mere approbations which are
being raised against the atrocities and ill-drafted policies of the Government. They
had merely made an attempt to put it in the deaf ears of the Government the shoddy
administration that is doing inadequate for the welfare of its people. Moreover for the
offence of sedition to be committed it is very necessary that the people who are being
addressed, to get incited but the counsel would like to bring it to the notice of the
Hon‟ble bench that no such scenes have been seen or reported in or outside the
campus of the university.
37. Also, in the present case, it becomes really important to figure out the difference
between advocacy, approbation and incitement. This difference was highlighted in the
case law of Shreya Singhal v. Union of India19, which states that:-
“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 Article 19(1)(a). It is only when such
discussion or advocacy reaches the level of incitement that Article 19(2) kicks in.”
38. Therefore, in furtherance of all these judgments, it is pleaded that there was no
intention on the part of Krishna, Waseem and others to incite any group of people
against the government of India as established by law. They have not committed the
offence of sedition in any manner.

3. WHETHER OR NOT GIVING OPEN DISCOURSE OR DISTRIBUTING A TOON IN THE

DAILY PAPER OUT IN THE OPEN INTRIGUE ADDS UP TO DEFAMATION?

39. Ingredients of defamation20:-

1. Making or publishing any imputation concerning any person.
2. Such imputation must have been made by-
a. Words, either spoken or intended to be read, or
b. Signs, or
c. Visible representations.

19
Writ Petition (Criminal) No.167 Of 2012.
20
Section 499, The Indian Penal Code,1860.

24
 3. Such imputation was made with the intention of harming or with knowledge or reason
to believe that it will harm the reputation of the person concerning to whom it is
made.
40. Balwant Singh and Anr v. State of Punjab21 After the assassination of Prime

Minister Indira Gandhi, the accused had raised the slogan “Khalistan Zindabad”

outside a cinema hall. It was held that two individuals casually raising slogans could

not be said to be exciting disaffection towards the Government. Section 124A would

not apply to the circumstances of this case.

41. Romesh Thapar v. State of Madras22 The petitioner contended before the Supreme

Court that the said order of banning his paper „Cross Roads‟ by the Madras State. It

has contravened his Fundamental Right of freedom of speech and expression

conferred on him by Article 19(1) of the Constitution. The Supreme Court held that

the Article 19(2) where the restriction has been imposed only in the cases where

problem to public security is involved. Cases where no such problem could arise, it

cannot be held to be constitutional and valid to any extent. Supreme Court quashed

the order of Madras State and allowed the application of the petitioner under Article

32 of the Constitution Samaresh Bose Vs. Amal Mitra23, where the Court held that in

judging the question of obscenity, the judge in the first place should try to place

himself in the position of the author and from the viewpoint of the author, the judge

should try to understand what is it that the author seeks to convey and whether what

the author conveys has any literary and artistic value. Judge should thereafter place

himself in the position of a reader of every age group in whose hands the book is

likely to fall and should try to appreciate what kind of possible influence the book is

likely to have on the minds of the reader.

21
AIR 1985 SC 1785 .
22
[1950; SCR 594].
23
AIR 1986 SC 967.

25
 S.Khusboo vs Kanniamma24l The appellant expressed her personal opinion wherein
she had noted the increasing incidence of pre-marital sex, especially in the context of
live-in relationships and called for the societal acceptance of the same. However,
appellant had also qualified her remarks by observing that girls should take adequate
precautions to prevent unwanted pregnancies and the transmission of venereal
diseases. This can be readily inferred from the statement which was published, a
rough translation of which is reproduced below:
"According to me, sex is not only concerned with the body; but also concerned with
the conscious. I could not understand matters such as changing boyfriends every
week. When a girl is committed to her boyfriend, she can tell her parents and go out
with him. When their daughter is having a serious relationship, the parents should
allow the same. Our society should come out of the thinking that at the time of the
marriage, the girls should be with virginity. None of the educated men, will expect
that the girl whom they are marrying should be with virginity. But when having
sexual relationship the girls should protect themselves from conceiving and getting
venereal diseases."
In the present case, the appellant has merely referred to the increasing incidence of
pre-marital sex and called for its societal acceptance. At no point of time appellant
described the sexual act or said anything that could arouse sexual desires in the mind
of a reasonable and prudent reader. Furthermore, the statement has been made in the
context of a survey which has touched on numerous aspects relating to the sexual
habits of people in big cities. Even though this survey was not part of a literary or
artistic work, it was published in a news magazine thereby serving the purpose of
communicating certain ideas and opinions on the above- mentioned subject.
It is our considered view that there is no prima facie case of defamation in the present
case. With regard to the complaints in question, there is neither any intent on part of
the appellant to cause harm to the reputation of the complainants nor can we discern
any actual harm done to their reputation. In short, both the elements i.e. mens rea and
actus reus are missing. Knupffer Vs. London Express Newspaper Ltd.25, wherein it
had been held that it is an essential element of the cause of action for defamation that
the words complained of should be published "of the complainant/plaintiff". Where he
is not named, the test would be whether the words would reasonably lead people

24
AIR 2010 SC 3196..
25
AIR (1944) 1 ALL ER 495.

26
 acquainted with him to the conclusion that he was the person referred to. In fact, it is
the reputation of an individual person which must be in question and only such a
person can claim to have "a legal peg for a justifiable claim to hang on".
Harbhajan Singh vs State Of Punjab26 The criminal proceedings against the
appellant were started on a complaint filed by Surinder Singh Kairon, son of S. Partap
Singh Kairon, who was at the relevant time the Chief Minister of the State of Punjab.
In his complaint, the complainant Surinder Singh alleged that the appellant had
published in the Press a statement against him which was highly defamatory of him.
The said statement was published in the "Blitz", which is a weekly magazine of
Bombay, on July 23, 1957, and extracts from it were given publicity in the "Times of
India" and certain other papers. According to the, complaint, the defamatory
statement was, absolutely untrue and by publishing it, the appellant had rendered
himself liable to be punished under s. 500, I.P.C. The court held that our conclusion is
that the appellant is entitled to claim the protection of the Ninth Exception under
section 499 of The Indian Penal Code,1860.
Kameshwar Prasad vs. State of Bihar27 observed : "Without going very much into
the niceties of language it might be broadly stated that a demonstration is a visible
manifestation of the feelings or sentiments of an individual or a group. It is thus a
communication of one's ideas to others to whom it is intended to be conveyed. It is in
effect therefore a form of speech or of expression, because speech need not be vocal
since signs made by a dumb person would also be a form of speech." In L.I.C. vs.
Professor Manubhai D. Shah28, it was observed :
“Speech is God's gift to mankind. Through speech a human being conveys his
thoughts, sentiments and feelings to others. Freedom of speech and expression is thus
a natural right which a human being acquires on birth. It is, therefore, a basic human
right. Everyone has the right to freedom of opinion and expression; the right includes
freedom to hold opinions without interference and to seek and receive and impart
information and ideas through any media and regardless of frontiers."
In Dennis v. United States29, Justice Frankfurter observed : The words "freedom of
speech and expression" must, therefore, be broadly construed to include the freedom
to circulate one's views by words of mouth or in writing or through audio-visual

26
1966 AIR 97, 1965 SCR (3) 235.
27
AIR 1962 SC 1166.
28
AIR (1992) 3 SCC 637.
29
341 US 494 : 95 L Ed 1137 (1951).

27
 instrumentalities. It, therefore, includes the right to propagate one's views through the
print media or through any other communication channel e.g. the radio and the
television. Every citizen of this free country, therefore, has the right to air his or her
views through the printing and/or the electronic media subject of course to
permissible restrictions imposed under Article 19(2) of the Constitution. The print
media, the radio and the tiny screen play the role of public educations, so vital to the
growth of a healthy democracy. In Secretary, Ministry of Information and
Broadcasting vs. Cricket Association of Bengal and Others30, it was observed : "The
freedom of speech and expression includes right to acquire information and to
disseminate it. Freedom of speech and expression is necessary, for self-expression
which is an important means of free conscience and self- fulfilment. It enables people
to contribute to debates on social and moral issues. It is the best way to find a truest
model of anything, since it is only through it that the widest possible range of ideas
can circulate. It is the only vehicle of political discourse so essential to democracy.
Equally important is the role if plays in facilitating artistic and scholarly endeavours
of all sorts."
The burden is on the authority to justify the restrictions. Public order is not the same
thing as public safety and hence no restrictions can be placed on the right to freedom
of speech and expression on the ground that public safety is endangered
Thus, the right to impart and receive information by air waves and otherwise is a
species of the right of freedom of speech and expression guaranteed by Article
19(1)(a) of the Constitution.
Tata Press Ltd. vs. MTNL and Others31, it was observed : "In a democratic economy
free flow of commercial information is indispensable. There cannot be honest and
economical marketing by the public at large without being educated by the
information disseminated through advertisements. The economic system in a
democracy would be handicapped without there being freedom of "commercial
speech". Thus, commercial speech has been held to be part of freedom of speech and
expression guaranteed under Article 19(1)(a) of the Constitution of India.
Bennett Coleman & Co. vs. Union of India & Ors.32, it was held : “The faith of a
citizen is that political wisdom and virtue will sustain themselves in the free market of

30
(1995) 2 SCC 161.
31
(1995) 5 SCC 139.
32
( 1972) 2 SCC 788.

28
ideas so long as the channels of communication are left open. The faith in the popular
Government rests on the old dictum, "let the people have the truth and the freedom to
discuss it and all will go well." The liberty of the press remains an "Art of the
Covenant" in every democracy. Steel will yield products of steel.

29
 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited,
it is humbly requested that this Hon‟ble Court may be pleased to adjudge and declare:

1. Whether or not Section 124A of the Indian Penal Code is in direct clash with the
Fundamental Rights revered under Part III of the Constitution of Indistan and
consequently, ought to be proclaimed unconstitutional?

2. Whether or not Krishna, Waseem, and others have rightfully charged under the
offense of Sedition under Section 124A of the Indian Penal Code, 1860?

3. Whether or not giving open discourse or distributing a toon in the daily paper out in
the open intrigue adds up to Defamation?

And pass any such order, writ or direction as the Hon‟ble Court deems fit and proper,
for this the Petitioner shall duty bound pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE PETITIONER

30
31