Académique Documents
Professionnel Documents
Culture Documents
APPEAL NO.____/2016
CLUBBED WITH
WRIT PETITION NOS.___/2016 & ___/2016
IN THE MATTER
OF
Petitioners
Respondent
CONTENTS
LIST OF ABBREVIATIONS..3
INDEX OF AUTHORITIES4-7
STATEMENT OF JURISDICTION.8
STATEMENT OF FACTS.9
STATEMENT OF ISSUES...10
SUMMARY OF ARGUMENTS11
ARGUMENTS ADVANCED12
That the Petitioner No.1s Fundamental Right to Peaceful Assembly was not Infringed by the
State...12-14
1.2.
1.3.
That the rule of Exhaustion of Local Remedy is not Violative of Art. 3215
1.4.
3.
2.1.
2.2.
That Section 124A does not Violate Art. 19(1) (a) of the Constitution..17-20
2.3.
2.4.
4. 24A OF THE PRESS COUNCILS ACT, 1978 IS NOT ULTRA-VIRES THE CONSTITUTION..24
4.1.
4.2.
4.3.
4.4.
That the Restriction Placed by 24A is Reasonable and falls under the Ambit of Art. 21 of the
Constitution.27
PRAYER ..28
BIBLIOGRAPHY...29
INDEX OF ABBREVIATION
Abbreviation
Definition
&
And
AC
Appeal Cases
AIR
All.
Allahabad
Art.
Article
Cr.P.C.
Govt.
Government
HL
House of Lords
IPC
Ker.
Kerala
Mad.
Madras
Para.
Paragraph
PCI
r/w
Read With
Section
SC
Supreme Court
SCALE
SCC
SCJ
SCR
UOI
Union of India
v.
Versus
INDEX OF AUTHORITIES
CASES CITED
S.No.
Case
Citation
1.
2.
(1957) 1 All ER 49
3.
4.
Achyuta Rao
5.
6.
7.
8.
9.
10.
11.
12.
13.
AIR 1951 SC 41
15.
16.
17.
(2003) 3 SCC 57
Carriers
18.
of India
19.
20.
Congress
22.
23.
24.
25.
(1950) SCR 88
26.
27.
(2012) 5 SCC 1
28.
Ors
29.
30.
31.
32.
33.
34.
35.
Maharashtra
36.
37.
Gurudasmal
38.
39.
Nadu
40.
Maunsell v. Olins
41.
Mohd. Usmanbhai
42.
43.
44.
45.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
(2015) 5 SCC 1
61.
62.
63.
64.
65.
66.
67.
68.
69.
Co. Ltd.
70.
BOOKS REFERRED
1. V. DICEY, THE LAW OF THE CONSTITUTION (10th ed. 1959)
2. ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA (2nd ed. Reprint 2010)
3. DR. DURGA BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA (20th ed. Reprint 2012)
4. DR. J.N.PANDEY, CONSTITUTIONAL LAW OF INDIA (38th ed. 2002)
5. DR.DURGA BASU, CONSTITUTIONAL LAW OF INDIA (8th ed. 2011)
6. H.M.SEERVAI, CONSTITUTIONAL LAW OF INDIA (4th ed.)
7. A. SABITHA, PUBLIC HEALTH: ENFORCEMENT AND LAW (1st ed. 2008).
8. JUSTICE G.P.SINGH, PRINCIPLES OF STATUTORY INTERPRETATION (12th ed. Reprint 2011)
9. M.P.JAIN, INDIAN CONSTITUTIONAL LAW (5th ed. 2003)
10. DARREN J OBYRNE, HUMAN RIGHTS: AN INTRODUCTION (1st ed. 2003).
11. DURGA DAS BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW (3rd ed. 2008).
12. COLETTE DAIUTE, HUMAN DEVELOPMENT & POLITICAL VIOLENCE (1st ed. 2010).
13. DARREN J OBYRNE, HUMAN RIGHTS: AN INTRODUCTION (1st ed. 2003).
14. R. SATYA NARAYANA, NATURAL JUSTICE: EXPOANDING HORIZONS (1st ed. 2008).
ARTICLE
1. Goran Simic, Universal Jurisdiction and its Interplay with Sovereign Immunity 1 INDIAN JOURNAL OF
LAW AND INTERNATIONAL AFFAIRS 121 (New Delhi 2016)
7
STATEMENT OF JURISDICTION
The Petitioners have approached the Honble Supreme Court of Indiana that has the jurisdiction to hear
this matter under Art. 131, Art. 139A and Art. 32 of the Constitution of Indiana. The Respondent
humbly submits to the same.
STATEMENT OF FACTS
I
Indiana is a federal republic country situated in south-east Asia along the equator. The country gained
freedom in 1957 after a long drawn struggle against a European nation which established the common
law system. New Delporto is an education hub of the country as the city has some of the best colleges &
universities of the nation. One such university is Great Northern University (GNU) which has earned
special reputation in the field of research and academic contributions.
II
On June 8, 2016, a countrywide strike was called by the parent body of GNUSU and during the strike; a
national highway was allegedly blocked by the supporters of AISU in Utkal, another Union Territory in
Indiana. The protestors were lathi charged by the police and some of them were seriously injured and
were subsequently admitted to the hospital.
III
On 16th of June, 2016, a rally was organized in New Delporto by GNUSU to show solidarity to the
injured students of Utkal. Meanwhile, some posters were put up across the campus of GNU which
claimed that the rally was also in solidarity with the hanging of Chengiz Khan. As the rally began, the
protestors began to shout slogans against the so called dictatorship of the government and pledged to
fight against the government till the date
IV
As the monsoon session began, the government by virtue of its majority made an amendment to the
Press Councils Act, 1978. 14A was incorporated into the Act. One of them, Mr. Kamal Kapoor filed a
petition in the Supreme Court of Indiana and challenged the constitutionality of 14A of the Press
Councils Act, 1978. The Supreme Court of Indiana in the interest of justice clubbed the 3 matters given
their inter connection and listed them for final hearing.
9
STATEMENT OF ISSUES
1. WHETHER OR NOT THE WRIT PETITION IS MAINTAINABLE.
2. WHETHER OR NOT 124A OF THE INDIANA PENAL CODE, 1860 IS UNCONSTITUTIONAL.
3. WHETHER OR NOT THE CONVICTION OF THE ACCUSED IS LIABLE TO BE QUASHED.
4. WHETHER OR NOT 24A OF THE PRESS COUNCILS ACT, 1978 IS ULTRA-VIRES THE CONSTITUTION.
10
SUMMARY OF ARGUMENTS
It is the humble submission of the Respondent that the instant Writ Petition is not maintainable because
Petitioner No.1s Fundamental Right to Peaceful Assembly has not been infringed by the as the
Petitioner was part of an unlawful assembly and the Police rightfully dispersed them using necessary
force and consequently Petitioner No.1 is not entitled to compensation.
It is respectfully urged that 124A is not unconstitutional because it does not violate any Fundamental
Rights given in Part III of the Constitution.
3.
The Respondent vociferously argues that the conviction of the accused should be upheld, as the speech
made by Petitioner No.2 was seditious.
It is respectfully submitted that 24A of the PCI Act, 1978 is intra-vires the Constitution as it falls
within and is constitutionally protected by Art.19(3) that lays out the reasonable restrictions that can be
put on free speech.
11
ARGUMENTS ADVANCED
TO
PEACEFUL ASSEMBLY
STATE.
141 (fourth) of the IPC defines Unlawful Assembly as:
An assembly of five or more persons is designated an Unlawful Assembly, if the
common object of the persons composing that assembly is by means of criminal
force, or show of criminal force, to any person, to take or obtain possession of any
property, or to deprive any person of the enjoyment of a right of way, or of the use
of water or other incorporeal right of which he is in possession or enjoyment, or
to enforce any right or supposed right.
The right to peacefully assemble and without arms is given in Art. 19(1) (b) of the Constitution and,
idem quod other rights, a bar has been placed on the same provided under Art. 19(3) which lists the
reasonable restrictions that can be constitutionally put on the same and it states:
Art. 19(3) Nothing in sub clause (b) of the said clause shall affect the operation
of any existing law in so far as it imposes, or prevent the State from making any
law imposing, in the interests of the sovereignty and integrity of India or public
order, reasonable restrictions on the exercise of the right conferred by the said
sub clause
12
In the present factual matrix, the members of GNUSU and AISU blocked a National Highway, with the
present and immediate purpose of carrying a protest into effect. 1 This act of blocking a National
Highway potentially caused the citizens using and/or depending on the highway for business, transit of
goods, medical emergencies, or other purposes a considerable loss.
The respondents submit that the blocking of highway by the protester amounted in violation of law as
the National highway is for the regular movement of traffic making it of paramount importance. The
decision to choose national highway as the location of protest is in itself violation of law. The right
which flows from Art. 19 (1) (b) is not a right to hold a meeting at any place and time. It is a right which
can be regulated.2
It is not surprising that the Constitution makers conferred a fundamental right on all citizens
'to assemble peaceably and without arms'. While prior to the coming into force of the Constitution
the right to assemble could have been abridged or taken away by law, now that cannot be done except
by imposing reasonable restrictions within Art. 19(3). It is urged that the right to assemble does not
mean that that right can be exercised at any and every place.
The action of lathi charge by police is just as they followed due process. Any action taken by a public
authority which is entrusted with the statutory power has to be tested by the application of two
standards- first, the action must be within the scope of the authority conferred by law and, second, it
must be reasonable. If any action, within the scope of the authority conferred by law is found to be
unreasonable, it means that the procedure established under which that action is taken is itself
unreasonable.3
The concept of 'procedure established by law' changed its character after the judgment of this Court in
the case of Maneka Gandhi v. UOI 4 where this Court took the view as under:
The principle of reasonableness, which legally as well as philosophically is an
essential element of equality or non arbitrariness, pervades Art. 14 like a brooding
Maranadu & Anr v. State by Inspector of Police, Tamil Nadu, (2008) Cr LJ 4562 (SC).
In Re Ramlila Maidan Incident v. Home Secretary & Ors, (2012) 5 SCC 1.
3
In Re Ramlila Maidan Incident v. Home Secretary & Ors, (2012) 5 SCC 1.
4
AIR 1978 SC 597.
2
13
not
to
disperse,
and
by
continuing
to
block
National
Highway.
14
1.3. THE RULE OF EXHAUSTION OF LOCAL REMEDIES IS NOT A VIOLATION OF ART. 32.
The Petitioner may contend that the rule of exhaustion of local remedies is unconstitutional and volatile
of the guarantee in Art. 32(1). However, it is submitted that the right under Art. 32(1) is not so absolute
that no rules of procedure apply to it. Art. 32(1) confers a right to move the SC by "appropriate
proceedings". Appropriate proceedings interpreted to mean procedure relating to form, conditions of
lodgment of petitions, and compliance with a reasonable directions8. Indeed, procedural factors such as
res judicata,9 delay in filing the petition and parallel proceedings in another Court are considered before
entertaining the appropriateness of a particular proceeding. It is submitted that the rule of exhaustion of
local remedies is another such procedural guideline and does not violate the right under Art. 32.
The jurisdiction under Art.32 can be invoked only when Fundamental Rights are violated. It has been
held that if a right, other than a fundamental right, is claimed to be violated then such questions can be
addressed only in the appropriate proceedings and not on an application under Art. 32. 10 In the instant
case, it is submitted no fundamental rights of the Petitioner have been violated; therefore, this petition
must fail.
2. 124A OF THE INDIANA PENAL CODE, 1860 IS NOT UNCONSTITUTIONAL.
It is the humble submission of the Respondents that S. 124A of the Indiana Penal Code, 1860 is not
unconstitutional. This is extremely necessary for the security of state and maintaining peace and
public tranquility.
15
11
16
Moreover, it is a well settled principle of interpretation that a statute must be interpreted in the light of
the intention of the legislature the mens or sentential legis,18 as a whole in its context ex visceribus
actus
19
and
in
way to
make
it
effective
ut
res
magis
valeat
quam
pereat.
20
When more than one interpretation may be given to a legal provision, it must uphold that interpretation
that makes a provision constitutional. Any interpretation that makes a provision ultra vires the
Constitution must be rejected. 21 Therefore, the court is to presume that the impugned law is
constitutional until it has compelling grounds to declare it unconstitutional.
In Kedar Nath v. State of Bihar,22 which is the locus classicus and binding authority on the issue of
sedition, 124A was interpreted in the narrower sense and was thus sustained against a challenge under
Art. 19(2). Sedition was defined as meaning words, deeds or writings having a tendency or intention to
disturb public tranquility, to create public disturbance or to promote disorder. The Supreme Court
rejected the broader view of 124A that incitement to public order was not an essential element of the
offence of sedition under this section. This broad view would have made 124A unconstitutional vis-avis Art. 19(1)(a) read with Art. 19(2).
2.2 THAT 124A
OF THE
ARTICLE 19(1)(a)
While it is necessary to maintain and preserve freedom of speech and expression in a democracy, so also
it is necessary to place some curbs on this freedom for the maintenance of social order. No right is an
absolute right in a welfare state, all individual rights are subservient to the rights of the public at large.
17
17
23
Gopalan v. State of Madras, (1950) SCR 88 (253-4); Santokh Singh v. Delhi Administration, AIR 1973 SC.
Santosh Singh v. Delhi Administration, AIR 1973 SC 1091.
25
Harakchand v. Union of India, AIR 1970 SC 1453.
26
P.P. Enterprises v. Union of India; 1982 C.C. (Cr.)341.
24
18
bring
into
hatred
or
contempt or excites or
19
20
34
35
AP Coop All Seeds growers Federation Ltd. v. D. Achyuta Rao, (2007) 13 SCC 320.
Nazir Khan And Others v. State Of Delhi, (2003)8 SCC 461 at para 37.
21
Such act or attempt may be done (i) by words, either spoken or written, or (ii)
Arun Jaitley v. State Of U.P, APPLICATION U/S 482 No. - 32703 of 2015.
PILLAI, Criminal Law 1131 (K. I. Vibhute eds., 2009).
38
23 L Ed 2d 430: 395 US 444 (1969).
39
Indra Das v. State of Assam, (2011) 3 SCC 380; Arup Bhuyan v. State of Assam, (2011) 3 SCC 377; Shreya
Singhal v. Union of India, (2015) 5 SCC 1.
40
Moot Proposition, Para 4.
41
id, at para 11.
42
id, at para 5.
43
id, at para 13.
37
22
The power to legislate is a plenary power vested in the legislature and unless these who challenge the
legislation clearly establish that their fundamental rights under the Constitution are affected or that the
legislature lacked legislative competence, they do not succeed in their challenge to the enactment
brought forward in the wisdom of the legislature.
A statute cannot be struck down merely because the Court thinks it to be arbitrary or unreasonable. Any
such ground of invalidity must be related to a Constitutional provision, such as, Arts. 14, 19 or 21.
Challenge on ground of wisdom of legislation is not permissible as it is for the legislature to balance
various interests.44
The Legislature appreciates and understands the needs of the people, that it knows what is good or bad
for them, that the laws it enacts are directed to problems which are made manifest by experience, that
the elected representatives in a legislature enact laws which they consider to be reasonable, for the
purposes for which these laws are enacted and that a legislature would not deliberately flout a
constitutional safeguard or right.45
The Legislature composed as it is of the elected representatives of the people is presumed to know and
be aware of the needs of the people and what is good or bad for them and that a Court cannot sit in
judgment over the wisdom of the Legislature. 46 Therefore usually the presumption is in the favor of the
Constitutionality of the statute and the onus to prove that it is unconstitutional lies upon the person who
is challenging it. 47 The allegations regarding the violation of a constitutional provision should be
44
23
48
24
Naraindas v. State of M.P., AIR 1974 SC 1232; Thakorebhai v. State of Gujrat; AIR 1975 SC 270.
Ramkrishna Dalmia v. Tendolkar, AIR 1957 SC 532.
56
AP Coop All Seeds Growers Federation Ltd. v.. D. Achyuta Rao, (2007) 13 SCC 320.
57
Gopalan v. State of Madras, (1950) SCR 88; Santosh Singh v. Delhi Administration, AIR 1973 SC 1091; Laxmi v. State
of U.P., AIR 1971 SC 873.
58
AIR 1973 SC 1091
55
25
59
Express Newspapers v. Union of India, AIR 1958 SC 578; Bennett Coleman & Co. Ltd. v. Union of India, AIR 1973 SC
106; Sukhnandan v. Union of India, AIR 1982 SC 902.
60
Bennett Coleman & Co. Ltd. v. Union of India, AIR 1973 SC 106.
61
Express Newspapers v. Union of India, AIR 1958 SC 578; Bennett Coleman & Co. Ltd. v. Union of India, AIR 1973 SC
106; Sukhnandan v. Union of India, AIR 1982 SC 902.
62
Harakchand v. Union of India, AIR 1970 SC 1453.
63
Krishna Kakkanth v. Govt. of Kerala, AIR 1997 SC 128; See also, Municipal Corporation, City of Ahmedabad v. Jan
Mohd. Usmanbhai, AIR 1986 SC 1205; M.J. Sivani v. State of Karnataka, AIR 1995 SC 1770.
64
Moot Para 14.
65
Arunachala Nadar, M.C.V.S. v. State of Madras, AIR 1950 SC 300.
66
Superintendent Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.
67
O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812.
26
4.4 THAT
THE
AND
OF
ART. 21.
Individual rights cannot be absolute in a welfare state. It has to be subservient to the Rights of the public
at large. 68 The right of life and liberty so guaranteed under Art.21 is also subject to the rule of
proportionality.69 Where individual liberty comes into conflict with an interest of the security of the state
or public order, the liberty of the individual must give way to the larger interest of the nation. 70
68
Confederation of Ex-serviceman Association v. Union of India, (2006) 8 SCC 399; AIR 2006 SC 2945.
Om Kumar v. Union of India, (2001) 2 SCC 386; AIR 2000 SC 3689.
70
Sunil Fulchand Shah v. Union of India, AIR 2000 SC 1023.
69
27
PRAYER
In view of the aforesaid facts and circumstances, it is most respectfully prayed that this Honble Court
may be pleased to:
1.
2.
DISMISS the Writ Petition filed by Petitioner No. 2s Counsel and uphold Petitioner No.2s
Conviction.
AND
3.
4.
PASS any other order and directions, as this Honble Court may deem fit and proper in the facts
and circumstances of the case in the interest of justice and in favour of the Respondent.
Respondent
Date:
Place:
Through:
Advocate
28
BIBLIOGRAPHY
BOOKS REFERRED
1.
2.
ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA (2nd ed. Reprint 2010)
3.
DR. DURGA BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA (20th ed. Reprint 2012)
4.
5.
6.
7.
8.
9.
10.
11.
DURGA DAS BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW (3rd ed. 2008).
12.
COLETTE DAIUTE, HUMAN DEVELOPMENT & POLITICAL VIOLENCE (1st ed. 2010).
13.
14.
ARTICLE
1. Goran Simic, Universal Jurisdiction and its Interplay with Sovereign Immunity 1 INDIAN JOURNAL
OF LAW AND INTERNATIONAL AFFAIRS
29