13TH K.K.

LUTHRA MEMORIAL MOOT COURT, 2017

URN: 1350

XIII K.K. LUTHRA MEMORIAL MOOT COURT, 2017

BY WAY OF SPECIAL LEAVE PETITION

Before
THE SUPREME COURT OF CAMELOT

GOVERNMENT OF EREHWON

ELIZABETH BENNET
v.

(THE PETITIONER)

(THE RESPONDENT)

-MEMORIAL ON BEHALF OF THE RESPONDENTS-

13TH K.K. LUTHRA MEMORIAL MOOT COURT, 2017

TABLE OF CONTENTS

-INDEX OF AUTHORITIES- ............................................................................................................. II

-STATEMENT OF FACTS- ............................................................................................................... VI
-ISSUES RAISED- ......................................................................................................................... VII
-PLEADINGS- ................................................................................................................................... 1
1.

THE PROSECUTION SUFFERS FROM THE VICE OF PROCEDURAL ILLEGALITY ............... 1

A. THE SPEECHES FORM THE PART AND PARCEL OF THE OFFICIAL DUTIES .............................. 1
B. THE LT. GOVERNOR IS NOT A COMPETENT AUTHORITY IN CASE OF AN M.P. ..................... 2
C. THE SANCTION HAS BEEN GRANTED WITHOUT PROPER APPLICATION OF MIND .................. 2

2.

421-A IS UNCONSTITUTIONAL AND SHOULD BE STRUCK DOWN ................................... 3

A. THE LAW INVADES THE DEMOCRATIC VALUE OF FREE SPEECH .......................................... 3
B. THE LAW FAILS THE THREE PART TEST UNDER UDHR....................................................... 4
C. 421-A IS VAGUE, OVERBROAD AND PRESCRIBES INORDINATE SANCTIONS................... 5
D. THE IMPUGNED LAW HAS A POTENTIAL FOR MISUSE .......................................................... 7

3.

MS. BENNET IS NOT GUILTY OF THE OFFENCES CHARGED UNDER PCC ...................... 8
A. RESPONDENT IS LIABLE UNDER 421-A FOR THE ACT OF SEDITION .................................. 8
B. THE RESPONDENTS ARE NOT LIABLE FOR THE OFFENCE OF CONSPIRACY ......................... 10
C. THE OFFENCE UNDER 351-A IS NOT MADE OUT ............................................................ 13

4.

THE PUNISHMENT OF DEATH FAILS THE TEST OF PROPORTIONALITY ........................ 14

A. THE DOCTRINE OF LEAST DRASTIC ALTERNATIVE APPLIES .............................................. 15
B. THE PUNISHMENT FAILS THE PRINCIPLE OF PRUDENCE .................................................... 16
C. THE ACCUSED IS NEITHER AN ARDENT CRIMINAL NOR A MENACE TO THE SOCIETY ......... 16
D. THAT THE PENALTY IN THE INSTANT CIRCUMSTANCE FAILS THE BALANCING TEST ......... 17
E. THE PUNISHMENT FAILS TO SUBSUME THE MANDATE OF COLLECTIVE CONSCIENCE. ....... 18

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PRAYER ......................................................................................................................................... 18

-INDEX OF AUTHORITIES-

-BOOKS1. ARVIND P DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA 582 (2nd ed., 2010) 13
2. GUIDELINES ON POLITICAL PARTY REGULATION, Venice Commission, (CDLAD (2010)024) .................................................................................................................. 18
3. Martin v. Obsorne, (1936) 55 CLR 375 ............................................................................ 19
4. NICOL et al., MEDIA LAW AND HUMAN RIGHTS 28 (2nd ed. 2009) ................................... 11
5. REGALADO, REMEDIAL LAW COMPENDIUM 736(National Book Store, 1984) .................. 19
6. Z CHAFEE, FREE SPEECH IN THE UNITED STATES (2nd ed, 1954), 459 .............................. 13

-INDIAN CASES1. Albert West Meads v. King, AIR 1948 PC 156 .................................................................. 8
2. Allauddin Mian & Ors. v. State of Bihar, (1989) 3 SCC 5 ............................................... 23
3. Anand Chintamani Dighe And Anr. v. State Of Maharashtra And Ors., 2002 (2) MhLj 14
........................................................................................................................................... 20
4. Bhutnath Nayak v. State of West Bengal And Anr., 2005 (1) CHN 82 ........................... 25
5. Bilal Ahmed Kaloo v. State of A.P., (1997) 7 SCC 431 .................................................. 20
6. Bishnu Deo Shaw @ Bishnu Dayal v. State Of West Bengal,1979 SCR (3) 355 ............ 21
7. CBI vs. Ashok Kumar Aggarwal, AIR 2014 SC 827 ......................................................... 9
8. Chattar Singh v. State of Haryana, AIR 2009 SC 378 ...................................................... 19
9. Dahyabhai Chhaganbhai Thakker v. State Of Gujarat, AIR 1964 SC 1563 ..................... 18
10. Dalbir Singh v. State of Punjab, (2012) 3 SCC 346 ........................................................ 13
11. Devidas Ramachandra Tuljapurkar vs State of Maharashtra & Ors., (2015) 6 SCC 1..... 15
12. Dhananjoy Chatterjee @ Dhana v. State of West Bengal, (1994) 2 SCC 220 ................. 23
13. Emperor v. Maniben Liladhar Kara, (1932) 34 BOMLR 1642 ........................................ 20
14. Hardeo Singh v. State of Bihar & ors., (2000) Cr. LJ 2978.............................................. 18
15. Hori Ram Singh v. Emperor, AIR 1939 FC 43................................................................... 8
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16. Jafar Imam Naqvi v Election Comm of India, AIR 2014 SC 2537 .................................. 16
17. Jagannath Mishra v State of Orissa, 1974 Cut LT 1253 ................................................... 18
18. Jaswant Singh v. State of A.P., AIR 1958 SC 124 ............................................................. 9
19. Lehna v. State of Haryana, (2002) 3 SCC 76 ................................................................... 21
20. Machchi Singh vs State of Punjab, AIR 1983 SC 957 ..................................................... 24
21. Mansukhlal Vithaldas Chauhan vs. Gujarat, (1997) 7 SCC. 622 ....................................... 9
22. Manzar Sayeed Khan v. State Of Maharashtra & Anr., (2007) 5 SCC 1 ......................... 20
23. Md. Yaqub v. State of West Bengal, 2004(4) Cal. H.C.N. 406 .......................................... 9
24. Mohammad Giasuddin v. State Of Andhra Pradesh, AIR 1977 SC 1926 ........................ 22
25. Narayan Gopal Karadkar vs Hanumant Ramrao Palkar, (1969) 71 BOMLR 477 ........... 15
26. Ozair Hussain v. UOI., AIR 2003 Del 103 ....................................................................... 14
27. P.V. Narasimha Rao v. Sate, (1998) 4 SCC 626................................................................. 9
28. Padma Veera Reddy v. State of Andhra Pradesh, AIR 1990 SC 79 ................................. 19
29. Pravasi Bhalai Sangathan v Union of India and Ors., (2014) 3 SCALE 552 ................... 16
30. Ronny @ Ronald James Alwaris Etc. v. State of Maharashtra, (1998) 3 SCC 625 ......... 23
31. S Rangarajan and ors. v. P Jagjivan Ram & Ors., (1989) 2 SCC 574 .............................. 14
32. Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498 ....... 23
33. State of Maharashtra & Ors v. Sangharaj Damodar Rupawate & Ors., (2010) 7 SCC 398
........................................................................................................................................... 20
34. State of Maharashtra v. Goraksha Ambaji Adsul, (2011) 7 SCC 437 .............................. 24
35. State of Rajasthan v. Kheraj Ram, (2003) 8 SCC 224 ...................................................... 21
36. State Of U.P v. Satish, 2005 (3) SCC 114 ........................................................................ 21
37. State v. Siddhartha Vashisht, (2001) Cr. LJ 2404............................................................. 18
38. Sushil Murmu v. State of Jharkand, (2004) 2 SCC 338.................................................... 22
39. Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka, AIR 2008 SC
3040................................................................................................................................... 23
40. Tejichand v. State of UP, 1977 U.P. Cr C (All) 281 (283) ............................................... 18

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INTERNATIONAL CASES1. Ada v. Guam Socy of Obstetricians & Gynecologists, 506 U.S. 1011, 1012 (1992)...... 14
2. Argus Printing and Publishing Co. Ltd. v. Inkatha Freedom Party, (1992) ZASCA 63 .. 17
3. Ballina SC v. Ringland, (1994) 33 NSWLR 680 .............................................................. 14
4. Beauharnais v Illinois, 343 US 250 .................................................................................. 17
5. Brandenburg v Ohio 395 US 444 (1969) .......................................................................... 15
6. Cannon v. City and County of Denver, 998 F.2d 867, 876 (1993) ................................... 17
7. Chamberlin v. R, (1984) 153 CLR 521............................................................................. 20
8. Coker v. Georgia, 433 US 592 .......................................................................................... 14
9. Commonwealth v. Pratt, 208 Mass. 559, 95 N.E. 106...................................................... 21
10. Connally v. General Constr., 269 US 385, 391 (1926) ..................................................... 13
11. Cox v. Louisiana, 379 US 552 (1965) .............................................................................. 21
12. D.P.P. v. Boardman, 1975 AC 457 ................................................................................... 20
13. Delfi AS v Estonia, (2013) ECHR 941 ............................................................................. 18
14. Harmelin v. Michigan, 501 U.S. 957 (1991) .................................................................... 14
15. Herrero-Ulloa v Costa Rica, (2004) IACHR 3 ................................................................. 16
16. Incal v Turkey, (2000) 29 EHRR 449 ............................................................................... 18
17. Keyishian v Board of Regents, 385 US 589-599 (1967) .................................................. 15
18. Lamont v. Postmaster Gen, 381 US 301, 308 (1965) ....................................................... 16
19. Malone v United Kingdom (1984) 7 EHRR 14 ................................................................ 12
20. Media Rights Agenda v Nigeria, (2000) AHRLR 262 (ACHPR 2000) ........................... 18
21. Mller v Switzerland (1991) 13 EHRR 212 ..................................................................... 16
22. Nilsen and Johnsen v. Norway, 30 EHRR 878 (1999) ..................................................... 12
23. Olsson v. Sweden, (1988) 11 EHRR 259 ......................................................................... 13
24. Perrin v the United Kingdom ECHR 2005-XI 337 ........................................................... 16
25. PETA v. Rasmussen, 298 F.3d 1198, 1203 (2002) ........................................................... 17
26. R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295 ............................................................... 12
27. RAV v City of St Paul, 112 S Ct. 253 (1992) ................................................................... 17
28. Rosenberger v. Rector & Visitors of University of Virginia, 515 US 819,829 ................ 21
29. S v P, 1985 (4) SA 105 (N) ............................................................................................... 14
30. Silver and Ors. v. United Kingdom, (1983) 5 EHRR 347 ............................................... 13
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31. Smith v. The Queen, 34 CCC (3d) 97 (1987) ................................................................... 15

32. Tae Hoon Park v Republic of Korea Communication No. 628/1995, UN Doc
CCPR/C/64/D/628/1995 (1998) (HRC) ............................................................................ 18
33. Terminiello v. Chicago, 337 US 1(1949).......................................................................... 22
34. The Sunday Times v. United Kingdom, 2 EHRR 245 (197980) .................................... 12
35. United States v. Carolene Products Co., 304 U.S. 144 (1938) ......................................... 13
36. United States v. Viefhaus, 168 F.3d 392, 395 .................................................................. 18
37. United States v. Wallace, 85 F.3d 1063 (2d Cir. N.Y. 1996) ........................................... 19
38. Village of Hoffman Estates v. Flipside, 455 U.S. 489, 498-99 (1982) ............................. 13
39. Woodson v. North Carolina, 428 U.S. 280 (1976) ........................................................... 14

-INTERNATIONAL AGREEMENTS1. Art. 29, Universal Declaration of Human Rights. ............................................................ 10

-JOURNALS1. James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law,
7(3) HAR. L. REV. 141, 144 (1893). ................................................................................... 8
2. James Q Whitman, Between Self-Defense and Vengeance / Between Social Contract and
Monopoly of Violence (2004) 39 Tulsa L. Rev. 901, 913-917 ......................................... 20
3. Margaret Jane Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and
Unusual Punishments Clause, 126 U PA L. REV. 989, 1043-1056 (1978) ....................... 20
4. Philip Hamburger, The Development of the Law of Seditious Libel and the Control of the
Press, 37 STAN. L. REV. 668, 680 (1985) ......................................................................... 21
5. Principle 6(c), Johannesburg Principles on National Security, 1st October 1995 ............. 15
6. Richard G Singer, Sending Men to Prison: Constitutional Aspects of the Burden of Proof
and the Doctrine of the Least Drastic Alternative as Applied to Sentencing
Determinations 58 CORNELL L. REV. 51, 72-89, (1972) ................................................. 20
7. Thornton, Legislative Drafting 349 (Butterworths London 4th ed., 1996) ...................... 12

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-TREATISES1. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 2200 (8th ed., 2007)
........................................................................................................................................... 14
2. PERRY & ORMEROD, BLACKSTONES CRIMINAL PRACTICE A5.65 (Oxford University
Press, 2015) ....................................................................................................................... 18
-OTHER AUTHORITIES1. JOINT REPORT ON: UGANDA: CHALLENGING THE DEATH PENALTY (Oct. 30, 2016)........... 24
2. Law Commission of India, 43RD REPORT

ON

OFFENCES AGAINST NATIONAL SECURITY,

August 31, 1971 ................................................................................................................ 21

STATEMENT OF FACTS

BACKGROUND
Camelot is a democratic country which follows Common law. Erehwon is the Capital of
Camelot. Elections were held in Camelot and Erehwon in March, 2014 and April, 2015,
respectively. The Vanity Fair Party came into power in Camelot and the Crouching Tiger Party
won in Erehwon. The elections witnessed the rise of the Hogwarts Party, with Ms. Elizabeth
Bennet, an M.P., as its leader. The leaders of all three parties did not share a semblance of
cordiality.
CONFRONTING BAD GOVERNANCE
In April, 2016, Ms. Bennet started a campaign called Dawn of Justice. She started encouraging
the public to imbibe the good qualities of other nations, including Genghistan. This enraged the
CM of Erehwon, who in turn deprecated her acts and demanded an apology. Then another
movement followed in which her supporter lambasted the establishment for its inept governance
and pseudo-nationalism. Later on June 1, she addressed 30,000 people in the famous Grounds of
Erehwon. In her speech she accepted the fact that Genghistan is better than Camelot in many
ways and the people of Camelot must not feel any shame in looking up to them. She was highly
critical of Governments parochial outlook and its repugnance to new ideas. Towards the end,
she encouraged the crowd to lay down their lives, if the need be, to uphold the ideals contained
in the constitution.

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TRUMPED UP CHARGES
On June 5, 2015, a complaint under s 421-A/ 351-A/ and 210-B of the Penal Code of Camelot
was filed against Ms. Bennet and other unknown Persons, and an FIR was lodged. Duplicitous
charges were filed against her. On the same day sanction under 196 of the Camelot Criminal
Procedure Statute was granted by the Government of Erehwon in the name of the Lieutenant
Governor to prosecute. The Prime Minister of Camelot condemned the unilateral and illegal
actions of the Dragon Warrior Party. The trial was conducted and all the accused were convicted.
An appeal was filed by Ms. Bennet in the High Court of Erehwon and was acquitted of all
charges. Consequently, a Special Leave Petition was filed by the Government of Erehwon and
the case is listed before the Supreme Court of Camelot for final hearing.

ISSUES RAISED
I.
WHETHER THE SANCTION GRANTED UNDER 196 OF THE CAMELOT CRIMINAL PROCEDURE
STATUTE IS VALID?
II.
WHETHER 421-A OF PENAL CODE OF CAMELOT IS CONSTITUTIONAL?
III.
WHETHER THE OFFENCES UNDER S 421-A/351-A/ 210-B OF THE PENAL CODE OF CAMELOT HAVE
BEEN MADE OUT AGAINST MS. ELIZABETH BENNET IN THE INSTANT CASE?

IV.
WHETHER THE DEATH SENTENCE AS SOUGHT BY THE GOVERNMENT OF EREHWON IS AN
APPROPRIATE PUNISHMENT FOR THE OFFENCE OF SEDITION AS MADE OUT BY THE FACTS OF THE
PRESENT CASE?

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-PLEADINGS-

I.
1.

THAT THE PROSECUTION SUFFERS FROM THE VICE OF PROCEDURAL ILLEGALITY

It is argued that the petitioner has not obtained sanction from a competent or

appropriate authority, hence the procedure stands vitiated. As there is a reasonable connection
between the acts performed and the official duty of Ms. Bennet, thus, being a Member of
Parliament, she is subject to procedure, as under 196 of Camelot Criminal Procedure Statute. It
is herein submitted that firstly, the speeches form the part and parcel of the official duties [A] and
secondly, the Lieutenant Governor is not a competent authority in case of Member of Parliament
[B]. Thirdly, even if the Lt. Governor is competent authority still the sanction has been granted
without proper application of mind [C].
A. THE SPEECHES FORM THE PART AND PARCEL OF THE OFFICIAL DUTIES
2.

The counsels submit respectfully that the speech formulates an integral part of the official

duties of the accused. The sanction from appropriate authority is necessary when the act
complained of is committed in the performance of official duties.1 It is well established that the
protection under 196 is available when a public servant acts or purports to act in the discharge
of his official duty.2 It is submitted that it is the part of the duty of an M.P. towards his
constituents, political party and nation to fairly criticize the governmental policies, not only
inside the parliament but also outside of it.
3.

Therefore, if an act has been found to have been committed by a public servant in

discharge of his duty then it must be given liberal and wide construction so far its official nature
is concerned.3 Even if, while acting in her official duty, the Respondent acted in excess of her
duty, still there is a reasonable connection between the act and the performance of the official
duty, the excess will not be a sufficient ground to deprive the public servant from the protection.4
Thus, where the charge is of criminal in nature, the sanction would be necessary, if the acts
complained of are integrally connected with the office.5

Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan & Ors., 1998 (1) SCC 205.
Hori Ram Singh v. Emperor, AIR 1939 FC 43.
3
State of H.P. v. M.P. Gupta, 2004 SCC (Cri) 539.
4
Ibid, 8.
5
Albert West Meads v. King, AIR 1948 PC 156.
2

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B. THE LIEUTENANT GOVERNOR IS NOT A COMPETENT AUTHORITY IN CASE OF A MEMBER OF

PARLIAMENT
4.

It is argued that sanction from an appropriate authority, which is a sine qua non for

launching the prosecution under 196, is found to be invalid and consequently the cognizance
taken by Lt. Governor is bad in law.6 It is well-established that there is no authority competent to
remove a Member of Parliament [hereinafter M.P.] from his office. Therefore, the Speaker of the
House of Citizens will be the competent authority from which the prosecution will seek
sanction7. Furthermore, it is concreted by the fact that the Petitioner approached the Lt. Governor
for grant of sanction, which in itself, substantiates the fact that in Camelot, an M.P. is considered
as a public servant.8 The very objective of the sanction is to discourage frivolous and vexatious
prosecution and to protect the innocent9 which would be defeated in case the sanction is illegal
and thus, the prosecution must fail on this ground alone.
C. THE SANCTION HAS BEEN GRANTED WITHOUT PROPER APPLICATION OF MIND
5.

The sanctioning authority has to apply its own independent mind and the discretion

vested must not be affected by any extraneous consideration. If it is shown that the sanctioning
authority was unable to apply its independent mind for any reason whatsoever or was under an
obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason
that the discretion of the authority not to sanction was taken away and it was compelled to act
mechanically to sanction the prosecution.
6.

There is no occasion for grant of sanction soon after the lodging of F.I.R. nor can such a

power be exercised before the completion of investigation and collection of evidence.10

Furthermore, the orders of the sanction must ex-facie disclose that the sanctioning authority had
considered the evidence and other relevant material placed before it. In the instant case, an F.I.R.
was registered on 5th June11 and on the same day the sanction was granted which suggests that
the same was given without any proper perusal of the evidence. As no investigation has taken
place, thereby the trial stands vitiated.

Md. Yaqub v. State of West Bengal, 2004(4) Cal. H.C.N. 406.

P.V. Narasimha Rao v. Sate, (1998) 4 SCC 626.
8
1, Page 5, STATEMENT OF FACTS, The K.K. Luthra Memorial Moot Court, 2017.
9
Mansukhlal Vithaldas Chauhan vs. Gujarat, (1997) 7 SCC. 622.
10
CBI vs. Ashok Kumar Aggarwal, AIR 2014 SC 827, Jaswant Singh v. State of A.P, AIR 1958 SC 124.
11
4, Page 1, STATEMENT OF FACTS, The K.K. Luthra Memorial Moot Court, 2017.
7

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II.
7.

THAT 421-A IS UNCONSTITUTIONAL AND SHOULD BE STRUCK DOWN

421-A of the Penal Code of Camelot [hereinafter PCC] states the penal provision for

the offence of Sedition. Statutes that seem innocuous on their face will nonetheless be held
unconstitutional if the court concludes that the legislature enacted them in order to disadvantage
or to punish a disfavored individual.12 It is believed that 421-A is a tool of suppression and
selective persecution and must be declared unconstitutional. It is herein submitted that firstly, the
law invades the democratic value of free speech [A] and secondly, the law fails the three part test
under UDHR [B]. Thirdly, 421-A is vague, overbroad and prescribes inordinate sanctions [C],
whilst fourthly, the impugned law has a potential for misuse [D].
A. THE LAW INVADES THE DEMOCRATIC VALUE OF FREE SPEECH
8.

It is respectfully submitted that a Right to Freedom of Expression could be implied from

the constitutions description of Camelot as a democracy13, which is being vitiated by the instant
law. Democracy in its truest sense construes freedom of the individual and not selective freedom.
The right to freedom of expression is guaranteed in Article 19 of the Universal Declaration on
Human Rights [hereinafter UDHR], and Article 19(2) of International Covenant on Civil and
Political Rights [hereinafter ICCPR]. Admittedly, the aforementioned freedoms are not absolute
in nature. Freedom of expression is restricted only in extremely narrow circumstances. 14 Speech
that offends, shocks, or disturbs is nonetheless protected speech.15
9.

Speech is still protected even if it coerces others into action.16 Freedom of speech means

the right to say things which right-thinking people regard as dangerous.17 A robust and mature
democracy should be expected to absorb unpalatable ideas without prosecuting them.18 Such are
the demands of that pluralism, tolerance and broadmindedness without which there is no
democratic society.19 The limitation imposed in the interest of public order to be a reasonable
restriction, should be one which has a proximate connection and a reasonable connection.20

12

Nixon v. General Services Administration, 433 U.S 425 (1977).

Nationwide New Pty Ltd v Wills (1992) 177 CLR 1 (HCA).
14
Art. 19, International Covenant on Civil and Political Rights.
15
Handyside v United Kingdom (1976) 1 EHRR 737.
16
National Association for the Advancement of Colored People v Claiborne Hardware Co., 458 US 886 (1982).
17
R v Central Independent Television PLC., [1994] 3 All ER 641.
18
B Saul, Speaking of Terror: Criminalizing Incitement to Violence, 28 UNSW LJ, 868, 884.
19
Nilsen and Johnsen v. Norway, 30 EHRR 878 (1999).
20
Arunachala Nadar, M.C.V.S. v. State of Madras, AIR 1959 SC 300 (303).
13

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10.

Public order would be synonymous with Public Safety21 and tranquility22 and would also

refer to public disorders of a local significance as distinguished from national upheavals such as
revolution, civil strife and war.23 The restriction imposed is unreasonable for a minor disorder
can attract this penal provision. Therefore, it is submitted that the limitation imposed u/s. 421-A
invades the democratic value of free speech.
B. THE LAW FAILS THE THREE PART TEST UNDER UDHR
11.

There is a three part test under UDHR to determine whether a restriction on freedom of

expression is valid or not. Firstly, an infringement of free speech must be prescribed by law,
i.e., the law must be adequately accessible and formulated with sufficient precision to enable
citizens to regulate their conduct.24 Both purpose and effect are relevant in determining
constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate
legislation.25 Vagueness is inherent in 421-A, and it lacks precision; making the scope of law
broad beyond possibility. As a result the provisions of the act fail the test prescribed by law.
12.

Secondly, the requirement that the restriction must have a legitimate aim simply means

that the purpose of the interference with the freedom of expression must be one of the aims listed
in Article 19 of ICCPR. This long list is intended to be exhaustive. However, a number of
permitted aims are the prevention of disorder and the protection of the rights of others, which
are inherently broad.26 Thirdly, the requirement is that every restriction must be necessary in a
democratic society. This means that it must correspond to a pressing social need and be
proportionate to meet that need.27 Here, it is important to note that the impugned has become
anachronous and is capable of being used as a tool for curbing dissent. Hence, it should be
declared unconstitutional for the foregoing reasons.
13.

Also, Strict Scrutiny Test28 can be applied. To pass this test, the State has to prove,

among other things, (a) that the law was enacted for a compelling reason, (b) that there is a
minimal interference with the rights in question, (c) that it was made in the absence of any

21

Romesh Thapar v. State of Madras AIR 1950 SC 124.

Madhu Limaye v. S.D.M. Monghyar (1970) 3 SCC 746; Ghosh v. Joseph, AIR 1963 SC 812.
23
Karunanidhi v. Asst. Police Commr., AIR 1968 Mad 54.
24
The Sunday Times v. United Kingdom, 2 EHRR 245 (197980).
25
R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295.
26
Ahmed & others v. United Kingdom, 29 EHRR 1 (1998).
27
NICOL et al., MEDIA LAW AND HUMAN RIGHTS 28 (2nd ed. 2009).
28
United States v. Carolene Products Co., 304 U.S. 144 (1938).
22

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alternative, and (d) that it is proportionate. The Respondent submits that 421-A of PCC fails to
satisfy the second and third condition of this test. As it is required that there should be minimum
interference with the rights, but 421-A encroaches excessively on the freedoms of speech and
expression. Secondly, there are alternatives to the 421-A; even if the law is declared
unconstitutional, the main objectives 421-A will be saved by other provisions dealing with
offences against State. Thus, the court is urged to declare this law unconstitutional.
C. 421-A IS VAGUE, OVERBROAD AND PRESCRIBES INORDINATE SANCTIONS
a.
14.

421-A (a) is Void for Vagueness

A statute is vague if "men of common intelligence must necessarily guess at its meaning

and differ to its application."29 The crime of sedition, as set out in 421-A (a), is far too vague.
As the law infringes on free speech rights "a more stringent vagueness test should apply". 30 In
the instant circumstance, subjective words such as hatred, contempt, discontent, feelings of
ill-will and disaffection are used without any definition. Where the standard of guide furnished
by the statute is vague and uncertain it amounts to the absence of any guide at all. The
fundamental concept of criminal law states that crimes must be defined with appropriate
definiteness.
15.

Vague laws are inherently bad because of their chilling effect 31, because of uncertainty

of what is permitted and what isnt; they encourage citizens to steer clear of any controversial
topic, hence inhibiting even valid expression.32 An obligation on the State is there, when
pursuing legitimate aims, to have due regard for constitutional rights by tailoring restrictions as
narrowly as possible.33 It is also submitted that no exceptions to the general rule on sedition are
provided, hence, the law lacks sufficient precision and this makes the scope of the act broad
beyond foreseeability.

29

Connally v. General Constr., 269 US 385, 391 (1926).

Village of Hoffman Estates v. Flipside, 455 U.S. 489, 498-99 (1982).
31
The Sunday Times v. United Kingdom, 2 EHRR 245 (197980).
32
Gooding v Wilson 405 US 518 (1972).
33
Shelton v Tucker, 364 US 479 (1960).
30

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b.
16.

421-A (b) is Overbroad

A law could be held unconstitutional when the law-makers have made a mistake so clear

that it is not open to rational question.34 The idea of a democracy is that the people are
encouraged to express their criticisms, even their wrong-headed criticisms, of elected
governmental institutions, in the expectation that this process will improve the process of
government.35 421-A (b) of PCC is of worthless in a democratic society as it is an effort at
curbing all sorts of criticism of the establishment, whereas the disapprobation of the measures of
government is, generally, well-protected in democratic nations.36 Also, facial invalidity based on
over-breadth may render "a statute invalid in all its applications (i.e., facially invalid) if it is ultra
vires in any of them.37 Therefore, the impugned law is overbroad and does have a Chilling
Effect, hence, deserves to be declared unconstitutional.
c.
17.

Punishment prescribed are inordinate

A "punishment is 'excessive' and unconstitutional if it (1) makes no measurable

contribution to acceptable goals of punishment; (2) is grossly out of proportion to the severity of
the crime."38 Punishments prescribed u/s. 421-A of PCC are disproportionate, for it leaves no
margin for demarcating less severe form of crime from the severe ones. Corporal punishment is
inappropriate for crimes not involving elements of violence.39 If the text of 421-A is read
slavishly then no violence is required to convict an accused. The offender need not be punished
to the limit of justice. It is never just to punish a man more than he deserves.40
18.

The flaw in mandatory death penalty statutes is that they treat all persons convicted of a

designated offense not as uniquely individual human beings, but as members of a faceless,
undifferentiated mass to be subjected to the blind infliction of the penalty of death. 41 Interjurisdictional comparison leads to an inference of gross disproportionality.42 A law which is

34

James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7(3) HAR. L. REV. 141,
144 (1893).
35
Ballina SC v. Ringland, (1994) 33 NSWLR 680.
36
124-A, The Indian Penal Code, 1860, No. 45, Act of Parliament, 1860 (India).
37
Ada v. Guam Socy of Obstetricians & Gynecologists, 506 US 1011, 1012 (1992).
38
Coker v. Georgia, 433 US 592.
39
S v. P, 1985 (4) SA 105 (N).
40
K.G. ARMSTRONG, THE RETRIBUTIVIST HITS BACK: THE PHILOSOPHY OF PUNISHMENT 138, 155 (London:
Macmillan, 1969); H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 237
(Clarendon Press, Oxford 1968).
41
Woodson v. North Carolina, 428 U.S. 280 (1976).
42
Harmelin v. Michigan, 501 U.S. 957 (1991).
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inconsistent with notions of fairness while it imposes an irreversible penalty like death penalty is
repugnant to the concept of right and reason.43
19.

Life Imprisonment cannot be justified if it effectively amounts to a sentence which locks

the gates of the prison irreversibly on the offender without any prospect whatever of lawful
escape from that condition for the rest of his or her natural life and regardless of circumstances
which might subsequently arise.44 If a hypothetical case could be imagined for which the
minimum sentence would be grossly disproportionate, the legislation which created the
minimum would be unconstitutional.45 L.I in 421-A leaves no room with the judiciary to
punish appropriately. Therefore, 421-A contains an inappropriate procedure devised by
parliament for the infliction on offenders, through the instrumentality of the courts, of arbitrary
punishments of its own devising. Hence, the law deserves to be struck down.
D. THE IMPUGNED LAW HAS A POTENTIAL FOR MISUSE
20.

A law which is sufficiently permissive to create a likelihood or serious possibility of an

abuse of power will not pass constitutional scrutiny.46 An offence of uttering seditious words is
so broad that the possible scope of seditious utterances or acts has virtually no limit.47 Brennan J
held that it cast a pall of orthodoxy,48 enabling selective prosecution of people who articulated
views critical of the government. This has been described in the United States literature as
viewpoint discrimination.49 The State cannot prevent open discussion and open expression,
however hateful to its policies.50
21.

Everyone has a fundamental right to form his own opinion on any issue of general

concern. Dissent is quintessence of democracy;51 Governments, whether elected or not, have a

settled tendency to try to silence their critics.52 Such a sedition law is against Camelots tradition
of a diverse and pluralistic society. For a robust and vibrant democracy to flourish, the
Government of Camelot must stop criminalizing critical voices and respect legitimate criticism
43

Dalbir Singh v. State of Punjab, (2012) 3 SCC 346.

S. v. Tcoeib, 1996 (1) SACR 390.
45
Smith v. The Queen, 34 CCC (3d) 97 (1987).
46
DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 2200 (8th ed., 2007).
47
Keyishian v. Board of Regents, 385 US 589-599 (1967).
48
Brandenburg v. Ohio 395 US 444 (1969); Z CHAFEE, FREE SPEECH IN THE UNITED STATES (2nd ed, 1954), 459.
49
Keyishian v. Board of Regents 385 US 589 (1967), 598599 (Brennan J).
50
ARVIND P DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA 582 (2nd ed., 2010).
51
S Rangarajan and ors. v. P Jagjivan Ram & Ors., (1989) 2 SCC 574; Ozair Hussain v. UOI., AIR 2003 Del 103.
52
Thomas Scanlon, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 151, 204 (1972).
44

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and democratic disagreement. Also, for the purposes of achieving the same 421-A should be
held unconstitutional and consequently, struck down.
III.

THAT MS. BENNET IS NOT GUILTY OF THE OFFENCES CHARGED UNDER PCC

A. RESPONDENT IS LIABLE UNDER 421-A FOR THE ACT OF SEDITION

22.

It is humbly submitted before this Honble Court that that Ms. Bennet is not liable for the

speech under 421-A of the Camelot penal code. Democratic society relies on the healthy and
free exchange of ideas and news to ensure pluralism and tolerance. 53.
a.
23.

The construction of the 421-A must be done in favour of accused

It is submitted that 421-A of Camelot penal code not only talks about speeches that

incites hatred or contempt against the government, but also the criticism done in a lawful way. In
a constructive manner, A line can be drawn of a fine classification of 421-A into two parts. The
first part speaks about nature of the offense that what type of speeches are covered and second
part speaks of criticism done in unlawful manner and aiming to incite violence. Thus, the duty
lies on the court to do a beneficial construction in favour of accused whenever the law suffers
from the vice of uncertainty.54
24.

Penal provisions never stand alone; they form part of the wider criminal law and that

must never be disregarded. They are subject to restrictive construction and the benefit of doubt in
case of possible alternative construction will be given to the accused. 55 A fortiori, any words are
seditious which strike at the very existence state itself, call its legitimacy in question, or
endangers the government itself.56 Thus, in the instant matter the lawful speech given in public
spirit in a lawful manner must be protected.
b.
25.

There is no intention on the part of the accused to incite violence

It is submitted that in common law after the decision of Boucher, the courts required to

prove intention to incite disorder, violence or tumult is a necessary element of the offence of
sedition. The right to express opinions and positions that are unpopular, shocking, or offensive is

53

Herrero-Ulloa v. Costa Rica, [2004] IACHR 3; Perrin v. the United Kingdom ECHR 2005-XI 337, 15.
Narayan Gopal Karadkar vs Hanumant Ramrao Palkar, (1969) 71 BOMLR 477.
55
Thornton, Legislative Drafting 349 (Butterworths London 4th ed., 1996).
56
Ram Nandan v. State, AIR 1959 All. 101.
54

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particularly important because a function of free speech is to invite dispute.57 Limiting speech
creates a barren marketplace of ideas and opinions.58 Every idea is an incitement, but the idea
which does not directly advocate actual action should not be punished as sedition. The general
approach properly adopted by our courts is that wide latitude should be allowed in public debate
on political matters. 59 Debate on public issues should be uninhibited, robust and wide open, and
that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on
government and public officials. Thus, words and speech can be criminalized and punished only
in situations where it is being used to incite mobs or crowds to grave imminent violent actions.
c.
26.

The speech should be viewed in free and fair spirit

It is stated that the speech of accused must be adjudged in the light of public interest. The

court should recollect that they are dealing with a speech given in a fair spirit and bond fide
manner, which might be productive and of great public good, and necessary for political
discourse. They should therefore deal with them in a broad spirit, allowing a fair and wide
margin, looking upon the whole. It is only where the speaker passes the bounds of argument or
persuasion and undertakes incitement to riot than law penalizes. A persuasive speech given on
ideological differences cannot be equated with incitement even if minor disturbances may
occur.60
27.

Further, in Pravasi Bhalai Sangathan,61 it was held that it is desirable to put reasonable

prohibition on unwarranted actions but there may arise difficulty in confining the prohibition to
some manageable standard and in doing so, it may encompass all sorts of speeches which need to
be avoided.62 The court must rely on reasonable inferences drawn from concrete facts, not on the
mere apprehension or speculation that disturbances on large scale will occur. 63
28.

It is not proper to form an opinion by dwelling upon stray sentences or isolated passages

disregarding the main theme. Freedom of expression is the rule and it is generally taken for
granted. It cannot be so the farfetched. It should have proximate and direct nexus with the

57

Devidas Ramachandra Tuljapurkar v. State of Maharashtra & Ors., (2015) 6 SCC 1; Mller v. Switzerland (1991)
13 EHRR 212, 3235.
58
Lamont v. Postmaster Gen, 381 US 301, 308 (1965).
59
Argus Printing and Publishing Co. Ltd. v. Inkatha Freedom Party, (1992) ZASCA 63.
60
Cannon v. City and County of Denver, 998 F.2d 867, 876 (1993).
61
Pravasi Bhalai Sangathan v. Union of India and Ors., (2014) 3 SCALE 552.
62
Jafar Imam Naqvi v. Election Comm of India, AIR 2014 SC 2537; Beauharnais v. Illinois, 343 US 250 (1952);
Brandenburg v. Ohio, 395 US 444 (1969); RAV v. City of St Paul, 112 S Ct. 253 (1992).
63
PETA v. Rasmussen, 298 F.3d 1198, 1203 (2002).
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expression. The expression of thought should be intrinsically dangerous to the public interests. In
other words, the expression should be intrinsically locked up with the action contemplated like
the equivalent of a spark in a powder keg.
d.
29.

There is no imminent & grave danger to public order and security

For freedoms to be constricted, the expression must constitute a precise and imminent

threat to national security and public order. It is clear that allegedly seditious speech and
expression may be punished only if the speech is an incitement to violence, or public
disorder. 64 Therefore, advocating revolution, or advocating even violent overthrow of the State,
does not amount to sedition, unless there is incitement to violence, and more importantly, the
incitement is to imminent violence. There must be a direct and immediate connection between
the two65such that the absence of the restriction will necessarily lead to imminent violence.
30.

People (or a representative of people) may hold their government in contempt does not

mean that a situation exists which constitutes a danger to the security of the State or to the
maintenance of public order which puts the states life in danger. In fact, to stifle just criticism
could as likely lead to these undesirable situations. A true threat means a serious threat as
distinguished from words as mere political argument, idle talk.66 Only emergency can justify
repression of free speech. Words having little disturbance are not enough to constitute a threat to
national security or public order.67 Petitioner cannot punish Ms. Bennett for her words alone and
acts of her part members pursued in a peaceful manner. This is the antithesis of a democratic
society.68 Therefore, Bennetts speech was a legitimate and reasonable expression of his opinion.
B. THE RESPONDENTS ARE NOT LIABLE FOR THE OFFENCE OF CONSPIRACY
31.

In the instant matter, the Honble High court has acquitted Ms. Bennet from the offence

of Criminal Conspiracy punishable under 210-B of the Camelot procedure statute. It is

pertinent to note that the punishment for committing criminal conspiracy is mentioned under
210-B, Camelot Penal Code and has to fulfill essential of criminal conspiracy evolved under
64

Incal v. Turkey, (2000) 29 EHRR 449; Tae Hoon Park v. Republic of Korea Communication No. 628/1995, UN
Doc CCPR/C/64/D/628/1995 (1998) (HRC)
65
Principle 6(c), Johannesburg Principles on National Security, 1st October 1995.
66
United States v. Viefhaus, 168 F.3d 392, 395.
67
Tae-Hoon Park v. Republic of Korea, No. 628/1995 UN Doc CCPR/C/57/D/628/1995 (1998); Brandenburg v.
Ohio, 395 US 444 (1969). Media Rights Agenda v. Nigeria, (2000) AHRLR 262 (ACHPR 2000), 6971.
68
Delfi AS v. Estonia, (2013) ECHR 941.
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common law. Thus, this will be shown by the looking at the Actus Reus and Intention to conspire
by the petitioners. Furthermore there lies the presumption of innocence on the part of the
Respondent, until and unless the guilt is proved beyond reasonable doubt.
a.
32.

The illegal agreement cannot be inferred

It is submitted that the respondents are not guilty for the crime of criminal conspiracy as

there has been no agreement to do such illegal act and also there has been no establishment of
Mens Rea to prove the respondents guilty of beyond reasonable doubt. 69 Agreement is the rock
bottom of the offence of criminal conspiracy under common law without which no charge of
criminal conspiracy can succeed.70 An agreement to achieve lawful object by lawful means
cannot amount to conspiracy, however unscrupulous the object or means might be.71
33.

The charge of conspiracy cannot be merely made on the basis of inferences and has to be

backed by the cogent evidence to show72 that there was meeting of minds for commission of
illegal act or to achieve a particular object.73 An organized political movement working within
constitutional parameters attended with minute law and order problem while agitating for the
change of policy or outlook should not be viewed as conspiratorial agreement. The expression
conspiracy against government should not be stretched too far to hold that all the acts of law
and order problem irrespective to their general objective, manner, magnitude and repercussions
could be reckoned as agreement to conspiring against Government.
b.
34.

There must be a criminal intent based on primary facts

It is submitted that mere sloganeering of rebellion and ideological biasness does not

mean that there is a conspiracy against the government. For the offence of conspiracy to take
place, there has to be (a) an intention to enter into an agreement and while entering into the
agreement, (b) an intention that the illegal object be achieved. 74
35.

Ms. Bennet satisfies none of these elements. First, there is no direct evidence of his

agreement or intent. Second, his only speech famous at famous grounds of Erehwon suggests
hypothetical or abstract agreement but no actual agreement. Third, the party members action by
way of protest may become basis to infer intent to agree one way to a well concerted plan to
69

Dahyabhai Chhaganbhai Thakker v. State Of Gujarat, AIR 1964 SC 1563.

Jagannath Mishra v. State of Orissa, 1974 Cut LT 1253; Tejichand v. State of UP, 1977 U.P. Cr C (All) 281 (283).
71
PERRY & ORMEROD, BLACKSTONES CRIMINAL PRACTICE A5.65 (Oxford University Press, 2015).
72
Hardeo Singh v. State of Bihar & ors., (2000) Cr. LJ 2978.
73
State v. Siddhartha Vashisht, (2001) Cr. LJ 2404.
74
United States v. Wallace, 85 F.3d 1063 (2d Cir. N.Y. 1996).
70

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oppose the government but that is not malum in se.75 Thus, the principle of Res Gestae76 cannot
be invoked before prosecution satisfies the Court on existence of unlawful objective based on
primary facts.
c.
36.

The participation is not made in order to commit criminal acts

The alleged unity of purpose and pursuant protests of party members by prosecution

lacks the necessary probative force.77 Political parties are integral vehicles for political activity
and expression, their formation and way of functioning should not be limited 78. Furthermore, it
is submitted that there is no glaring dichotomy between the partys political programmes as and
partys actions and the positions it defends. The Hogwarts partys programme as painted by the
prosecution had been belied by practical actions taken by party members in democratic manner
working within the constitutional ideals-persuasion, protest, peace.
d.
37.

Circumstantial evidence is unreliable

The rule in criminal cases is that the coincidence of circumstances tending to indicate

guilt, however strong and numerous they may be avails nothing unless the corpus delicti, the fact
that the crime has been actually perpetrated must be first established.79 It is submitted that when
the prosecution relies on the circumstantial evidence then all the links in the chain of
circumstances must be complete and should be proved through cogent evidence. 80 When a link
breaks away, the chain of circumstances snap and then other circumstances fail to prove guilty
beyond reasonable doubt. Circumstantial evidence can prove the commission of a criminal
offence, only after two conditions must be met. First, the primary facts from which the inference
of guilt is to be drawn must be proved beyond reasonable doubt. Secondly, the inference of guilt
must be the only inference which is reasonably open on all the primary facts which the jury
finds.81
38.

Furthermore, it is put forth that disputable presumption could be drawn in favor of

innocence of accused on the cumulative inferences drawn from the facts. If two constructions are
possible from a hypothesis than that construction is to be taken which is the most favorable to the
75

W. LAFAVE, LAFAVES CRIMINAL LAW 317 (West Academic 5th ed., 2010).
BUZZARD ET AL., PHIPSON ON EVIDENCE 63 (Sweet & Maxwell 12th ed., 2013).
77
D.P.P. v. Boardman, 1975 AC 457.
78
GUIDELINES ON POLITICAL PARTY REGULATION, Venice Commission, (CDL-AD (2010)024).
79
THOMAS STARKIE, A PRACTICAL TREATISE OF THE LAW OF EVIDENCE 756 (Amer. 8th ed. 2011) (1842).
80
Padma Veera Reddy v. State of Andhra Pradesh, AIR 1990 SC 79; Chattar Singh v. State of Haryana, AIR 2009
SC 378.
81
Chamberlin v. R, (1984) 153 CLR 521.
76

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accused.82 If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected

with the main fact must be established from which the conclusion follows as a rational inference.
In the inculpation of an accused person the evidentiary circumstances must bear no other
reasonable explanation.83
C. THE OFFENCE UNDER 351-A IS NOT MADE OUT
39.

It is submitted that the essential feature 351-A, being promotion of feeling of enmity,

hatred or ill-will "between different" religious or racial or linguistic or regional groups or castes
and communities, it is necessary that at least two such groups or communities should be
involved.84 Further, it is submitted that merely inciting the feeling of one community or group
without any reference to any other community or group cannot attract this very Section.85
Nothing is discernible that which communities would be delineated from the alleged speeches.86
40.

The rubric religion, race, place of birth, residence, language which describes the type

of group, promoting enmity on which is punishable under 351-A, has attained too fixed a
meaning to permit political groups87 to be brought within it. Political parties, like public men,
are, as it were, public property.88 Finally, for an offence to be established under this , the words
complained of must be aimed at a well-defined and readily ascertainable group having some
permanence or stability and sufficiently numerous and widespread to be designated a class.89
Therefore it cannot be found out from the speeches as to which communities or groups got
outraged or against whom it was assailed.90
41.

The intention to cause disorder or incite people to violence is the sine qua non of the

offence under 153-A IPC and the prosecution has to prove the existence of mens rea in order to
succeed. It is humbly submitted that if the speech was read as a whole, it would be patent that the
speech was a fair criticism of government and was no more than a political speech and the
actions were not more than a protest against the governments policies. There should never be a
constraint on the content of ideas on the basis that people have a right to think and say what they

82

2 REGALADO, REMEDIAL LAW COMPENDIUM 736(National Book Store, 1984).

Martin v. Obsorne, (1936) 55 CLR 375.
84
Manzar Sayeed Khan v. State Of Maharashtra & Anr., (2007) 5 SCC 1.
85
Bilal Ahmed Kaloo v. State of A.P., (1997) 7 SCC 431.
86
Anand Chintamani Dighe And Anr. v. State Of Maharashtra And Ors., 2002 (2) MhLj 14.
87
Beauharnais v. Illinois, 343 US 250 (1952).
88
Commonwealth v. Pratt, 208 Mass. 559, 95 N.E. 106.
89
Emperor v. Maniben Liladhar Kara, (1932) 34 BOMLR 1642.
90
State of Maharashtra & Ors v. Sangharaj Damodar Rupawate & Ors., (2010) 7 SCC 398.
83

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like. The government must abstain from regulating speech when the specific motivating ideology
or the opinion or perspective of the speaker is the rationale for the restriction.91 Free speech may
indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction
with conditions as they are, or even stirs people to anger.92 There is no room under our
Constitution for a more restrictive view. For the alternative would lead to standardization of
ideas either by legislatures, courts, or dominant political or community groups.93
IV.

42.

THE PUNISHMENT OF DEATH FAILS THE TEST OF PROPORTIONALITY

The grant of life, is the duty of every just court, yet the arbitrary absolution of it, is

indeed incongruous in an era of enlightenment.94 It is humbly submitted that the clamor for the
sentence of death, is not only vitiated by its moral absurdity but its legal fallibility, thanks to its
failure of the proportionality test. Firstly, the doctrine of least drastic alternative applies [A].
Secondly, punishment fails the principle of prudence [B]. Thirdly, the accused is neither an
ardent criminal nor a menace to the society [C] and fourthly, the penalty in the instant
circumstance fails the Balancing Test of the law [D]. Furthermore, fifthly, the punishment fails
to subsume the mandate of collective conscience [E].
43.

The offence of sedition may be regarded to have unto itself, grave implications for the

State.95 Yet, as in the instant regard, the presence of an alternative punishment within the
statutory realms, prescribes that death, be provided under special circumstances, where offence
be so grave and so abysmal. The traditional theory of criminal punishment provides that the state
imposes sanctions in response to the breaking of law.96 Criminal justice is concerned with such
goals of punishment, the underlying issue of how these goals are achieved is shaped and
restrained by the concept of proportionality which is fundamental in criminal sentencing.97

91

Rosenberger v. Rector & Visitors of University of Virginia, 515 US 819,829.

Cox v. Louisiana, 379 US 552 (1965).
93
Terminiello v. Chicago, 337 US 1(1949).
94
Bishnu Deo Shaw @ Bishnu Dayal v. State Of West Bengal, 1979 SCR (3) 355.
95
Law Commission of India, 43RD REPORT ON OFFENCES AGAINST NATIONAL SECURITY, August 31, 1971.
96
James Q Whitman, Between Self-Defense and Vengeance / Between Social Contract and Monopoly of Violence
(2004) 39 Tulsa L. Rev. 901, 913-917.
97
Margaret Jane Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments
Clause, 126 U PA L. REV. 989, 1043-1056 (1978); Richard G Singer, Sending Men to Prison: Constitutional Aspects
of the Burden of Proof and the Doctrine of the Least Drastic Alternative as Applied to Sentencing Determinations
58 CORNELL L. REV. 51, 72-89, (1972).
92

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44.

The criminal law adheres in general to the principle of proportionality in prescribing

liability according to the culpability of each kind of criminal conduct. It ordinarily allows some
significant discretion to the judge to permit sentences that reflect more subtle considerations of
culpability that are raised by the special facts of each case. 98 The practice of punishing all serious
crimes with equal severity is now unknown in civilized societies; such a radical departure from
the principle of proportionality has disappeared from the law.99 Thus, the requirement that
punishment not be disproportionately great, which is a corollary of just desert, is dictated by the
same principle that does not allow punishment of the innocent.100
45.

In the instant regard, the facts of the case indicates the nature of the crime, it is of

sedition, a highly conflated charge, which rests upon the matrix of a law, indescribably unjust
and a vitriol upon the realms of free speech. A system, odious in theory, yet impotent in practice,
from its excessive severity, shall only serve to stain judicial conscience. Hence, the duty of the
court stands to ascertain whether the act was diabolical, grotesque in conception and cruel in
execution.101
A. THE DOCTRINE OF LEAST DRASTIC ALTERNATIVE APPLIES
46.

Utilitarian efficiency values are of the requisition that, amongst equally effective means

to achieve a given end, the less burdensome alternative may be implied. The nature of the
offence, is not of, scandalum magnatum wherein the information had to necessarily be a
representation of facts as the truth.102 The nature of the charge, seem to be motivated by a sense
of political vendetta, aimed at victimization of the offender. The application of the least drastic
principle, is herein necessitated, for it permits reformation, an essential common law principle.
47.

Three components must be present if punishment is to act as reasonable means of

checking crime. These are (1) Speedy and Inescapable detection and prosecution must convince
the offender that crime does not pay, (2) After the Punishment, the offender must have a fair
chance of a fresh start and (3) The State which claims the right of punishment must uphold
superior values which he (offender) can reasonably be expected to acknowledge.103

98

State Of U.P v. Satish, 2005 (3) SCC 114.

Lehna v. State of Haryana, (2002) 3 SCC 76.
100
State of Rajasthan v. Kheraj Ram, (2003) 8 SCC 224.
101
Sushil Murmu v. State of Jharkand, (2004) 2 SCC 338.
102
Philip Hamburger, The Development of the Law of Seditious Libel and the Control of the Press, 37 STAN. L. REV.
668, 680 (1985).
103
MAX GRUNHUT, PENAL REFORM: A COMPARATIVE STUDY 3 (Clarendon Press ed., 2007).
99

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48.

Reformative approach to punishment should be the object of criminal law, in order to

promote rehabilitation without offending community conscience and to secure social justice.104
Since every saint had a past and sinner a future, one must never wright of the man wearing the
criminal veneer attire but remove the dangerous degeneracy in him, restore his retarded human
potential by holistic healing of his fatigued or frustrated inside and by repairing the repressive. 105
B. THE PUNISHMENT FAILS THE PRINCIPLE OF PRUDENCE
49.

It is submitted that the nature of speech, stands emancipated from the narrow constructs

of brief passages and has to be, contemplated in toto. The speaker of the words, eschews an
underlying sentiment of intellectual denigration, and ushers the hearers of her words to, uphold
the ideals held in our beloved Constitution106 The only slander upon a norm of the Camelot
legal system by Ms. Bennet was upon the draconian nature of institutionalized speech paralysis
that the offence of sedition ensures.
50.

Whenever there is difference of opinion with respect to any sentencing rationale, or

subjectivity involved in the determining factors, or lack of thoroughness in complying with the
sentencing procedure, it would be advisable to fall in favour of the rule of life imprisonment
rather than invoking the exception of death punishment107The campaign of Dawn of Justice,
coupled with her impassioned speech, only further her credence as an able political leader, who
had unto herself, a respectable degree of public support. Justice demands that courts should
impose punishment befitting the crime so that the courts reflect public abhorrence of the
crime.108 Such a sense of subjectivity in the determination of the offence attracts the application
of the principle of prudence. The absolute irrevocability of the death penalty renders it
completely incompatible to the slightest hesitation on the part of the court.109
C. THE ACCUSED IS NEITHER AN ARDENT CRIMINAL NOR A MENACE TO THE SOCIETY
51.

The choice of the death sentence has to be made only in the `rarest of rare' cases and that

where culpability of the accused has assumed depravity or where the accused is found to be an
ardent criminal and menace to the society110. The Court also noticed the above-stated principle,
that the Court should ordinarily impose a lesser punishment and not the extreme punishment of
104

Narotam Singh v. State of Punjab, AIR 1978 SC 1542.

Mohammad Giasuddin v. State Of Andhra Pradesh, AIR 1977 SC 1926.
106
4, Page 3, STATEMENT OF FACTS, The K.K. Luthra Memorial Moot Court, 2017.
107
Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
108
Dhananjoy Chatterjee @ Dhana v. State of West Bengal, (1994) 2 SCC 220.
109
Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka, AIR 2008 SC 3040.
110
Ronny @ Ronald James Alwaris Etc. v. State of Maharashtra, (1998) 3 SCC 625.
105

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death which should be reserved for exceptional cases only.111 There is sufficient presumption to
suggest that Ms. Bennet, in her abilities, was a pacifist, a denouncer of violence and
aggression112 and a believer in Gandhian principles.113 It is the state of mind of the offender at
the time of the commission of the offence114and to impose the sentence of death merely because
the law directs it to do so is an intrusion by the legislature into the realm of the Judiciary. There
is clearly a violation of the principle of separation of powers.115
D. THAT THE PENALTY IN THE INSTANT CASE FAILS THE BALANCING TEST OF THE LAW
52.

The counsels respectfully bring to the forth the disregard of the balancing test of the law

in awarding the death penalty in this case. If mitigating circumstances are properly weighed in
accordance with the well-known judicial principles, a wrongful death sentence awarded to the
accused cannot be sustained.116 In order to prescribe the death penalty for the instant crime the
following questions may be asked and answered: (a) is there something uncommon about the
crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
And (b) Are there circumstances of the crime such that there is no alternative but to impose
death sentence even after according maximum weightage to the mitigating circumstances which
speak in favor of the offenders?117 The following mitigating circumstances may be considered:
1. The accused is a successful political leader striving for the betterment of her country.
2. The age of the accused at the time of the commission of the crime.
3. The possibility of the reformation of the accused.
4. The probability that the accused would not commit criminal acts of violence as would
constitute a continuing threat to society.
5. The nature of the crime is not a gravest case of extreme culpability.
6. That in the facts and circumstances of the case the accused believed that he was morally
justified in committing the offence118.

111

Allauddin Mian & Ors. v. State of Bihar, (1989) 3 SCC 5.

1, Page 2, STATEMENT OF FACTS, The K.K. Luthra Memorial Moot Court, 2017.
113
2, Page 5, STATEMENT OF FACTS, The K.K. Luthra Memorial Moot Court, 2017.
114
Interights et al (on behalf of Mariette Sonjaleen Bosch) v. Botswana, available at
http://www.fidh.org/IMG/pdf/Botswana.
115
UGANDA: CHALLENGING THE DEATH PENALTY (Oct. 30, 2016), http://www.fidh.org/article.php3?id_article=2741
116
State of Maharashtra v. Goraksha Ambaji Adsul, (2011) 7 SCC 437.
117
Machchi Singh v. State of Punjab, AIR 1983 SC 957.
118
State of UP v. Satish, (2005) 3 SCC 114.
112

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To fail to contemplate each of these would be an act of judicial erroneousness so abhorrent, it

cannot be sustained in a Court of Justice. Thus, the acts demerit the punishment of death.
E. THE PUNISHMENT FAILS TO SUBSUME THE MANDATE OF COLLECTIVE CONSCIENCE.
53.

The punishment of death would be justified and necessary in cases where the collective

conscience of society is so shocked that it will expect the holders of judicial power to inflict
death penalty irrespective of their personal opinion119. Collective conscience is the body of
beliefs and sentiments common to the average of members of a society. 120 Acts that shock the
collective conscience of the society have been referred to be inhumane acts of extreme gravity121
such as willful torture or rape, transcending the concept of humanity122.
54.

Sedition herein, does not shock the collective conscience in the instant regard,

characterized by the support Ms. Bennet enjoyed upon the making of such remarks. The facts in
the instant case, are of the expression of an individual, of her willful desire to usher an era of
progress in her nation, a thought which cannot merit the perverse punishment of death.
PRAYER
The Respondents humbly pray that this Honble Court may be pleased to declare that:
1. The sanction order granted is violative of 196 of the Camelot Criminal Procedure Statute,
thereby making the trial proceedings liable to be struck down.
2. 421-A of Penal Code of Camelot is Unconstitutional.
In the Alternative
3. The order of the Honble High Court, with respect to the said charges, be upheld.
All of which is respectfully prayed and submitted.

ON BEHALF OF THE COUNSELS FOR RESPONDENTS.

119

Purushottam Dashrath Borate & Anr. v. State of Maharashtra AIR 2015 SC 2170.
EMILE DURKHEIM, THE DIVISION OF LABOUR IN SOCIETY 212 (Stephen Lukes ed., Simon and Schuster 2014)
(1893).
121
Bhutnath Nayak v. State of West Bengal And Anr., 2005 (1) CHN 82
122
Prosecutor v. Drazen Erdemovic, IT-96-22-T.
120

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