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UNION OF INDIKA TABLE OF CONTENTS TABLE OF CONTENTS………………………………………………………………………………………………………………………………………1 ABBREVIATIONS……………………………………………………………………………………………………………………………………………..2 INDEX OF AUTHORITIES………………………………………………………………………………………………………………………………….3 STATEMENT OF JURISDICTION……………………………………………………………………………………………………………………….5 STATEMENT OF FACTS……………………………………………………………………………………………………………………………………6 STATEMENT OF ISSUES…………………………………………………………………………………………………………………………………..8 SUMMARY OF ARGUMENTS…………………………………………………………………………………………………………………………..9 ISSUE I: WHETHER THE WRIT IS MAINTAINABLE UNDER THE JURISDICTION OF THE SUPREME COURT? ……………………………………………………………………………………………………………………………………………9 ISSUE II : WHETHER SECTION 124A OF THE IPC IS CONSTITUTIONALLY VALID OR NOT?……………..….10 ISSUE III: WHETHER THE REJECTION OF THE BAIL BY THE HIGH COURT IS JUSTIFIED OR NOT ARGUMENTS ADVANCED……………………………………………………………………………………………………………………….….…11 ISSUE I: WHETHER THE WRIT IS MAINTAINABLE UNDER THE JURISDICTION OF THE SUPREME COURT? ……………………………………………………………………………………………………………………………….……..…..11 ISSUE II : WHETHER SECTION 124A OF THE IPC IS CONSTITUTIONALLY VALID OR NOT?……..…………..14 ISSUE III: WHETHER THE REJECTION OF THE BAIL BY THE HIGH COURT IS JUSTIFIED OR NOT?…...….19 PRAYER……………………………...…..…………………………………………………………………………………………………………….……..21 1 MEMORANDUM ON BEHALF OF PETITIONER SANDESH FARMER MORCHA v. UNION OF INDIKA ABBREVIATIONS 2 MEMORANDUM ON BEHALF OF PETITIONER 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 SANDESH FARMER MORCHA v. UNION OF INDIKA 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 MEMORANDUM ON BEHALF OF PETITIONER SANDESH FARMER MORCHA v. UNION OF INDIKA STATEMENT OF FACTS  Union of Indika is a Democratic Country. Some group of individuals in this country are protesting against the certain farm laws passed by the parliament. One Association by name Sandesh Farmer Morcha (SFM) came forward to help the protestor. The said association which came forward to support protestor has large network throughout the country. The said association formed different social media groups on Wazzapp and Friendsbook to help the protestors.  On one day members of said association had post their views on social media about constitutional validity of the Farm Law and pursuant to this certain members of the said association expressed their critical views about the government and because of this agitation & riots started all over the country against the government. The social media posts of the said association were brought before Ruling party by some people and it reached up to some of the Ministers. Therefore, an urgent cabinet meeting was called in order to ban these kinds of online activities in the country. In the meeting a resolution was passed for banning these kinds of activities in exercise of the power conferred by the Information Technology Act, which talks about Monitoring and Decryption of Information.  Some members of said associations were arrested and investigated by police stating that they are disseminating false information about the law passed by the government with the purpose of instigating people against the government and their phones, computers and laptops were seized by authorities stating it forms part of investigation.  The Government also authorized its securities and intelligence Agencies for the purpose of interception; monitoring and decryption of any information generated, transmitted, received or stored in any computer resources. The Members of the said association found to have propagated such information and they were charged with sections 120B, 124A and 153A of Indika Penal code and their Anticipatory Bail Application were rejected by the High court.  The Said Association argued that it is the ultimate assault on fundamental rights and the right to privacy. That pursuant to this the said Associations filed Writ petition by challenging the validity of the order passed by the Home Ministry of Indika, Constitutional validity of section 6 MEMORANDUM ON BEHALF OF PETITIONER SANDESH FARMER MORCHA v. UNION OF INDIKA 124-A of Indika Penal code, and against the order of rejection of bail application before Hon’ble Supreme Court of Indika. 7 MEMORANDUM ON BEHALF OF PETITIONER SANDESH FARMER MORCHA v. UNION OF INDIKA 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 MEMORANDUM ON BEHALF OF PETITIONER SANDESH FARMER MORCHA v. UNION OF INDIKA 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 India2 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 MEMORANDUM ON BEHALF OF PETITIONER SANDESH FARMER MORCHA v. UNION OF INDIKA for the time efficient and speedy enforcement of fundamental rights and has made the right to approach the Supreme Court for enforcement of fundamental rights. The fundamental rights provided in the Indian Constitution are guaranteed against any executive and legislative actions. Any executive or legislative action, which supposedly infringes upon the Fundamental Rights of any person or any group of persons, can be declared as void by the Courts under Article 14 of the Constitution. By including Article 32 in the Fundamental rights, the Supreme Court has been made the protector and the guarantor of these rights. Also, a Public Interest Litigation can be filed before the Supreme Court under Article 32 of the Constitution. In this case, Hence, the petitioner is justified in challenging the authority of Supreme Court’s directive to government of applying the concept of “Creamy Layer” In the instance of SC’s and ST’s. ALTERNATIVE REMEDY NOT A BAR: Where there is well-founded allegation that fundamental right has been infringed alternative remedy is no bar for entertaining write petition and granting relief.4 The mere existence of an adequate legal remedy cannot be per se be a good and sufficient ground for throwing out a petition under Article 32 is the existence of a fundamental right and a breach, actual or threatened, of such right and is alleged is prima facie established on the petition.5 In spite of availability of the alternative remedy, the court may exercise its writ jurisdiction in at least petitions where the petitioner seeks enforcement of any fundamental rights.6 Thus, the petitioner humbly submits that writ petition is maintainable as existence of alternative remedy is not a bar. MAINTAINABILITY OF PUBLIC INTEREST LITIGATION In the case of S.P. Gupta v. Union of India,7 Justice P.N. Bhagwati articulated the concept of PIL as, “any member of public can maintain an application for an appropriate direction, order or write in the High Court under Article 226 and in cases of breach of fundamental rights of such persons or determinate class of person, in the court under Article 32 seeking judicial intervention for the legal wrong or legal injury caused to such persons or determinate classes of persons.” Also, the stern rule of locus standi has been explained in D.C. Wadhwa v. State of Bihar,8 The court held that the applicant 4 State of Bombay V. United motors Ltd. AIR 1953 SC 252 5 K.K. Kouchunni V. State of Madras AIR 1959 SC 725 6 HarbansalSahnia V. Indian Oil Corporation Ltd. AIR 2003 SC 2120 7 S.P. Gupta v. Union of India AIR 1982 SC 149. 8 D.C. Wadhwa v. State of Bihar 1987 AIR 579 12 MEMORANDUM ON BEHALF OF PETITIONER SANDESH FARMER MORCHA v. UNION OF INDIKA necessary condition for the cohesion of a state. If contempt of court results in criminal prosecution, then contempt of government should result in criminal prosecution as well. LIMITS FREEDOM OF SPEECH AND EXPRESSION: The Constitution of Indiana bestows several fundamental rights to its citizens; the most powerful one is the right to free speech and expression. Article 19(1)(a) of the Constitution of India which guarantees the right to free speech and expression absolutely allows for criticism of the government. However, this right has been curbed by the sedition laws of the country. In 1942, for the first time, the courts in India raised pressing questions against the use of sedition as a weapon to chill all innocent forms of dissidence. Sir Maurice Gwyer, the chief justice of the Federal Court, ruled that “public disorder, or the reasonable anticipation or likelihood of public disorder, is the gist of the offence”. In so doing, he drew a necessity for a link between words uttered and actual threat of violence for maintaining a prosecution of sedition. After the Constitution was adopted, it appeared Sec. 124A would soon be denounced as an abhorrent relic of our colonial past. The Supreme Court upheld Sec. 124A, in Kedar Nath Singh vs. State of Bihar. But the court ignored all the apparent contradictions in allowing sedition to remain on the IPC. While grounding the legality of the provision on supposed public order considerations, the court also failed to establish any rational test on how to determine when speech in disaffection of the government could be construed as causing a disruption of public order. It said that in 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR), which sets forth internationally recognized standards for the protection of freedom of expression. However, misuse of sedition law under Sec. 124A and the arbitrary slapping of charges continue to restrict speech in ways that are inconsistent with the ICCPR. Section 124A restricts our “freedom of expression”, it’s “tyrannical” remains of colonial rule have been questioned by many in an India that is secular and independent, and where democratic principles are upheld. Because of the widespread use of this law in the past years, not only against journalists but also against other nonviolent dissenters, this is not unusual. To sustain law and order in society, the state has a useful weapon in the form of the law against sedition. It cannot, however, be used to quell unrest under the pretext of silencing the perpetrators of criminal activity. Naturally, any act that has the potential to cause disorder or distress to public order through the use of violence is prohibited by law. As a result, it is presumed that Section 15 MEMORANDUM ON BEHALF OF PETITIONER SANDESH FARMER MORCHA v. UNION OF INDIKA 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 MEMORANDUM ON BEHALF OF PETITIONER SANDESH FARMER MORCHA v. UNION OF INDIKA 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 Madras14 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 MEMORANDUM ON BEHALF OF PETITIONER SANDESH FARMER MORCHA v. UNION OF INDIKA 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 MEMORANDUM ON BEHALF OF PETITIONER SANDESH FARMER MORCHA v. UNION OF INDIKA PRAYER Wherefore in the light of the issues raised, , arguments advanced, legal precedents and authorities cited ,it is humbly requested that this Honorable Court may be pleased to adjudge and declare:  The Writ Is Maintainable Under The Jurisdiction Of Supreme Court .  That Section 124A Of The IPC Is Constitutionally invalid.  The Rejection Of The Bail By The High Court Is Not Justified. AND/OR Pass any other Order, Direction, or Relief that this Hon’ble Court may deem fit in the interests of Justice, Equity and Good Conscience. Sd/- COUNCIL FOR PETITIONER 21 MEMORANDUM ON BEHALF OF PETITIONER