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TABLE OF CONTENTS
TABLE OF CONTENTS……………………………………………………………………………………………………………………………………… ABBREVIATIONS…………………………………………………………………………………………………………………………………………….. INDEX OF AUTHORITIES…………………………………………………………………………………………………………………………………. STATEMENT OF JURISDICTION………………………………………………………………………………………………………………………. STATEMENT OF FACTS…………………………………………………………………………………………………………………………………… STATEMENT OF ISSUES………………………………………………………………………………………………………………………………….. SUMMARY OF ARGUMENTS………………………………………………………………………………………………………………………….. ISSUE I : WHETHER THE WRIT IS MAINTAINABLE UNDER THE JURISDICTION OF THE SUPREME COURT? …………………………………………………………………………………………………………………………………………… ISSUE II : WHETHER SECTION 124A OF THE IPC IS CONSTITUTIONALLY VALID OR NOT? ……………..…. ISSUE III : WHETHER THE REJECTION OF THE BAIL BY THE HIGH COURT IS JUSTIFIED OR NOT ARGUMENTS ADVANCED……………………………………………………………………………………………………………………….….… ISSUE I : WHETHER THE WRIT IS MAINTAINABLE UNDER THE JURISDICTION OF THE SUPREME COURT? ……………………………………………………………………………………………………………………………….……..….. ISSUE II : WHETHER SECTION 124A OF THE IPC IS CONSTITUTIONALLY VALID OR NOT? ……..………….. ISSUE III : WHETHER THE REJECTION OF THE BAIL BY THE HIGH COURT IS JUSTIFIED OR NOT? …...…. PRAYER……………………………...…..…………………………………………………………………………………………………………….…….. 1
ABBREVIATIONS
2 Anr. Another Art. Article A.I.R. All India Reporter Ed. Edition Govt. Government Hon’ble Honourable I.C. International convention NGO Non- governmental organization Ors Others PIL Public Interest Litigation S.C Supreme Court S.C.C. Supreme Court Cases St. State U/A Under Article U.O.I Union Of India Vs. Versus W.P. Writ Petition W.E.F. With Effect From & And
STATUTES, RULES & REGULATIONS:
The Constitution of India, 1950 The Indian Penal Code, 1860 DATABASES AND WEBSITES REFERRED: Indiankanoon.org - search engine for Indian laws and court judgments Livelaw.in – All About Law Barandbench.com – Indian Legal news Latestlaws.com - Helping good people to do good things Sci.gov.in - Supreme Court of India Indiacode.nic.in – Digital Repository of all Central and State Acts eCourts.gov.in – Electronic Courts Mission Mode Project Judis.nic.in - Judgments Information system Lobis.nic.in - Judgments Information system BOOKS REFERRED: V. N Shukla’s Constitution of India (Thirteenth Edition) Eastern Book Company, Lucknow Batuk Lal The Law of Penal Code (Twenty Second Edition) Central Law A Central Law Agency, 2018 Glanville Williams, Text Book Of Criminal Law,( 2nd Edition,Universal Law Publishing,
P.M.Bhakshi, Constitution of India, 17th^ Edition, 4
STATEMENT OF JURISDICTION
The Appellants humbly submit to the Honorable Supreme Court under Article 32 of the Constitution of India. Article 32. Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. The present memorandum sets forth the facts, contentions and arguments. 5
124-A of Indika Penal code, and against the order of rejection of bail application before Hon’ble Supreme Court of Indika. 7
STATEMENT OF ISSUES
ISSUE I: WHETHER THE WRIT IS MAINTAINABLE UNDER THE
JURISDICTION OF SUPREME COURT?
ISSUE II: WHETHER SECTION 124A OF THE IPC IS
CONSTITUTIONALLY VALID OR NOT?
ISSUE III: WHETHER THE REJECTION OF THE BAIL BY THE HIGH
COURT IS JUSTIFIED OR NOT?
8
ISSUE III: WHETHER THE REJECTION OF THE BAIL BY THE HIGH
COURT IS JUSTIFIED OR NOT?
It is humbly submitted before this Hon’ble Court that the High Court has erroneously rejected the bail application and has not appreciated the basic rule laid down by this Court that ‘grant of bail is the rule and its denial is the exception’. Therefore, the petitioners is ought to be released on bail. 10
ARGUMENTS ADVANCED
ISSUE I: WHETHER THE WRIT IS MAINTAINABLE UNDER THE JURISDICTION
OF SUPREME COURT?
The present writ petitions are filed under Art. 32 of the Constitution of India is maintainable. From reading of Art. 32, it is manifested that clause 1(i) of Art. 32 guarantees the right to move to the Supreme Court for an appropriate writ for the purpose of enforcing the Fundamental Rights included in Part-III of the Constitution. The sole object of Article 32 is the enforcement of Fundamental Rights guaranteed by the Constitution. It follows that no question other than relating to the Fundamental Right will be determined in a proceeding under Article 32 of the Constitution. In the case of Chiranjit Lal Chowdhury vs. Union of India, Hon’ble Supreme Court observed that: “The Writ Jurisdiction of Supreme Court can be invoked under Art. 32 of the Constitution for the violation of fundamental rights guaranteed under Part-III of the Constitution. The sole objective of Art. 32 is the enforcement of the fundamental rights guaranteed by the Constitution of Indiana. The original jurisdiction of the Supreme Court can be invoked in any case of violation of the fundamental right guaranteed by Part III of the Constitution of India.” It is humbly submitted that the jurisdiction of the Supreme Court can be invoked under Article 32 of the constitution for the violation of Fundamental rights guaranteed under Part – III of the constitution. The main objective of Art. 32 is the enforcement of fundamental rights guaranteed by the Constitution of India. The original jurisdiction of the Supreme Court can be invoked in any case of violation of fundamental rights guaranteed by part III of the Constitution of India as it has been previously observed in the case of Chiranjit Lal Chowdhary v. Union of India^2 amongst the many other. Also, in the right to approach this Hon'ble Court in case of violation of fundamental rights is itself a fundamental right enshrined in Art. 32. In Prem Chand Garg , it was held that this right is absolute and may not be impaired on any ground.^3 The constitution makes have conferred on the Supreme Court the power to issue writs (^2) Chiranjit Lal Chowdhary v. Union of India AIR 1951 SC 41. (^3) Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996 11
as a member of the public has initiates ‘sufficient interest’ to maintain a writ petition under Article 32. Additionally in the case of Janta Dal v. H.S Chaudhary that only a person ‘acting bona fide’ and ‘having sufficient public interest’ in the proceeding of public interest litigation will have alone the locus standi8 but not a person for personal gain or political motive or any oblique consideration. The rule of locus standi has stated that a person who is acting in a bonafide (good intention) and having sufficient interest in the proceeding of public interest litigation will have a locus standi and in that case he/she can approach the court to seek remedy for such violation of fundamental rights. Thus, the instant petition filed under this Hon’ble court is maintainable. 13
ISSUE II: WHETHER SECTION 124A OF THE IPC IS CONSTITUTIONALLY VALID
OR NOT?
It is humbly submitted before the honorable court that Section 124A of the IPC is unconstitutional. In India, the sedition law was introduced by the United Kingdom, but the UK itself did not make any sedition charges against any person between 1972 and 2009. In the end, the UK abolished the sedition law completely in 2009. The Supreme Court of India, in the case of Kishorechandra Wangkhemcha v. Union of India (2021),^9 would discuss the validity of Section 124A, which criminalizes sedition. In connection with posts and cartoons that were posted on social media platforms, two journalists, Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla have been accused of committing sedition in India. They have filed a writ petition challenging the constitutional validity of Section 124A, which criminalizes and punishes sedition. The Court has thus put sedition law on hold. A RELIC OF OUR COLONIAL PAST: The provision, as it reads today after some amendments, defines sedition as any action whether by words, signs or visible representation which “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India”. The section also contains a clarification to the effect that the word “disaffection” includes disloyalty and all feelings of enemity. This definition of sedition, as is only plainly evident, is exceedingly broadly worded. Its vagueness certainly did wonders for the colonialists. During the course of the British rule, there was a general consensus that Sec. 124A was intended to indict any speech that as much as questioned the moral superiority of government, that harboured any sentiments of ill feeling towards the state. Policies of government, the judiciary largely agreed, could be questioned, so long as one didn’t excite hatred, contempt or disaffection. As the lawyer and jurist A.G. Noorani once wrote, what this really meant was that the government had to be “loved, not hated”. Section 124A is useful in the fight against anti-national, separatist, and terrorist factors, among others. It defends the elected government against attempts to destroy it through the use of violent acts and illegal methods. Maintaining the legitimacy of the government established by law is a (^9) Kishorechandra Wangkhemcha v. Union of India 2022 SCC OnLine SC 609. 14
124 A can be lawfully upheld against the person, although there was no admonishment, call, incitement, and instigation to cause disorder or disruption of public peace by resorting to violence, or any indirect reference or unsubtle statement or even any indication towards this aim, ascribed to the person accused. In Ram Nandan v. State of UP ,^10 was the first case that took the notion of the Constitutionality of Section 124A. Allahabad High Court alleged that Section 124A of IPC is Ultra Vires in nature & it violates the provision of Article 19 (1)(a) of the Constitution. It was said that Section 124A restrict the freedom of speech & it struck out the very roots of the Constitution. Similarly, in Balwant Singh and Anr v. State of Punjab ,^11 following the assassination of Prime Minister Indira Gandhi, the accused chanted the slogan “Khalistan Zindabad” in front of a movie theatre. Two people carelessly raising slogans could not be considered to be inciting dissatisfaction with the government, according to the court’s conclusion. Because of the facts of this case, Section 124A would not apply. In Shreya Singhal v. Union of India ,^12 no one can be prosecuted for sedition unless they have a direct connection to the commission of violence or the instigation of public disorder. This case has a significant impact on the Indian law system because it questioned the constitutionality of Section 66A of the Information Technology Act, 2000, and ultimately succeeded in having it repealed because it was found to be in violation of Article 19(1)(a) of the Indian Constitution. In Kanhaiya Kumar v. the State of Delhi ,^13 the Delhi Police detained Kanhaiya Kumar on February 12, 2016, for violating Sections 124A and 120B of the Indian Penal Code. He was accused of violating the country’s dignity by yelling slogans that were derogatory to the country’s dignity at an event organized by JNU students in commemoration of the hanging of Afzal Guru. Kanhaiya Kumar denied all of the accusations and stated that he did not say anything which is seditious. His detention sparked a political uproar between left-wingers and right-wingers in the United States. The University conducted an investigation into the incident and took disciplinary action against the individuals involved, as well as levying Rs. 10,000 fine (^10) Ram Nandan v. State of UP, AIR 1959 All 101 (^11) Balwant Singh and Anr v. State of Punjab, 1995 (1) SCR 411., (^12) Shreya Singhal v. Union of India, AIR 2015 SC 1523 (^13) Kanhaiya Kumar v. the State of Delhi, MANU/DE/0498/2016, 16
on Kumar. In a subsequent ruling, the Delhi High Court struck down the fine, declaring the committee’s decision to be “illegal, infrequent, and unreasonable.” A case was filed in the Supreme Court, Romesh Thappar v. State of Madras^14 where the petitioner pleaded that the order by Madras State for banning his paper "Cross Roads" infringed his right to freedom of speech & expression given under Article 19 (1) of the Constitution. The Supreme Court quashed the order of Madras State by stating that the restrictions of article 19 (1) is imposed only where there is problem related to security of the public is involved. Therefore, when there is no such problem is present it cannot be held constitutional. In 1958, the Allahabad High Court was confronted with a similar constitutional challenge to sedition. Justice Raghubar Dayal in the Sabir Raza case viewed any criticism of the Government, a Member of Parliament or Government policy as protected under the right to freedom of speech and expression. Such speech cannot be penalised under sedition even if it disrupts public order. On the issue of threatening the security of the State, the Court held that disruption of public order does not lead to the overthrow of State. It is only by rebellion and mutiny that the State can be overthrown, and a Republic destroyed.^15 As the world’s biggest democracy, India recognizes the importance of the right to free expression and speech as a fundamental component of democracy. It should not be assumed that sedition is committed when someone expresses or thinks something that is in opposition to the government’s policy. Sedition is a very serious offence which violates the provision of Article 19 of the Constitution. There is a need for amendment in Sedition Law which should expressly contain the words that can satisfy the restrictions & complement the provision of Article 19 (2). Sedition laws must be interpreted & applied in accordance to the guidelines given by the Supreme Court. As the purpose behind the Sedition Act which restricts speech, is to safeguard the National Security of the State.Sedition is, without a doubt, a contentious concept, and it must be balanced delicately against our constitutionally protected right to freedom of expression. While no citizen should be permitted to incite unneeded hatred among the populace or to incite hatred and violence against the government (especially in a nation founded on the principles of non-violence), every citizen (^14) Romesh Thappar v. State of Madras, 1950 AIR 124 (^15) [Sabir Raza v. The State, Cri App No. 1434 of 1955, D/- 11-2-1958 (All) (Zl)] 17
ISSUE III: WHETHER THE REJECTION OF THE BAIL BY THE HIGH COURT IS
JUSTIFIED OR NOT?
It is humbly submitted before this Hon’ble Court that the High Court has erroneously rejected the bail application and has not appreciated the basic rule laid down by this Court that ‘grant of bail is the rule and its denial is the exception’. Therefore, the petitioners is ought to be released on bail. Gravity of the offence cannot be a ground to refuse bail Gravity or the heinousness of the offence cannot be the criteria for refusal of bail and therefore grant of bail cannot be thwarted merely by asserting that offence is grave.^16 The graveness of the offence has to be interpreted by considering the facts and circumstances of each case and the term of sentence prescribed for the offence alleged.^17 However, even if the allegation is for one of the grave offences, it is not a rule that bail should be denied if other factors favour the accused.^18 The rationale behind the jurisprudence is to secure appearance of the accused in the trial and therefore is neither punitive nor preventive.^19 It is submitted that the High Court has refused the bail on the grounds that the crime is heinous, which is contrary to the precedents where the Court has held that gravity cannot be the sole justification for rejecting bail of an accused.^20 The members of the association has asserted not to escape the trial It has been held that one of the main considerations while granting bail can be whether the accused would abscond from the trial or not.^21 It was held that while granting or rejecting the bail of an accused, the Court should apply its mind to the probability of the accused appearing for the trial rather than just the seriousness of the accusation.^22 If the court is convinced that the accused would appear for his trial and not escape, the court may grant bail to such accused. (^16) Kashmira Singh v. State of Punjab, AIR 1931 All 504. (^17) P. Chidambaram v. Directorate of Enforcement, (2019) SCC OnLine SC 1549. Hitesh Gandhi v. Central Bureau of Investigation, (2020) SCC OnLine HP 1416. (^18) Pramod Chandra v. State, 1969 Cri LJ 1534 (^19) Kishan Singh v. State of Punjab, 1960 Cri LJ 850 (^20) NagangomIboton Singh v. State,1969 Cri LJ 128. (^21) M.P. Jauaraj v. State, 1977 Cri LJ 1724; M.P. Ramesh v.State,1991 Cri LJ 1298; Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. (^22) Zakir Hussain v. UT of Ladakh through DGP & Ors., (2020) SCC OnLine J&K 484. 19
It is humbly submitted before this Hon’ble Court that one of the factors that the court might consider in granting the bail to the accused is whether that the accused can tamper the evidence if granted bail. The Indian Court in a case granted bail to the accused has held that ‘the investigation was complete and there was very less chance of fleeing.’ There is no reason to believe that the members will tamper the evidence if granted bail, since the charge sheet has already been filed. 20
