Team Code: E1

BEFORE THE HONOURABLE HIGH COURT OF SAKET

ORIGINAL WRIT JURISDICTION

WRIT PETITION (PIL) NO. _ OF 2022

IN THE MATTERS OF

A ….PETITIONER

v.

THE UNION OF VAISHALI & ANR. ….RESPONDENTS

UPON SUBMISSION TO THE HONOURABLE CHIEF

JUSTICE AND HIS COMPANION JUSTICES OF THE HIGH COURT
OF SAKET

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MEMORANDUM FOR THE RESPONDENTS
 TABLE OF CONTENTS

TABLE OF ABBREVIATIONS …………………………………………………………

INDEX OF AUTHORITIES

……………………………………………………………...5

1. STATUTES ……………………………………………………………………..5

2. TABLE OF CASES …………………………………………………………….5

STATEMENT OF JURISDICTION

……………………………………………………..7

STATEMENT OF FACTS

………………………………………………………………..8

STATEMENT OF ISSUES

……………………………………………………………….9

SUMMARY OF ARGUMENTS ………………………………………………………..10

ARGUMENTS ADVANCED …………………………………………………………...11

1. THE PUBLIC INTEREST LITIGATION UNDER ARTICLE 226 OF THE

CONSTITUTION OF VAISHALI IS NOT MAINTAINABLE………………...11
1.1. The litigation filed by A is not in public interest and therefore not
a valid Public Interest Litigation………………………………………11
1.2. There is no violation of Fundamental Rights and hence not
maintainable under Art 226………………………………………….11
1.3. The petitioners
should have exercised alternative remedies ………12

2. SECTION 124A OF THE IPC IS NOT VIOLATIVE OF FUNDAMENTAL

RIGHTS ENSHRINED UNDER PART III OF THE CONSTITUTION OF
VAISHALI………………………………………………………………………..12

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MEMORANDUM FOR THE RESPONDENTS
 2.1. Section 124A of the IPC does not violate Article 14 of the
Constitution of Vaishali………………………………………………….12
2.1.1 Section 124A is not an arbitrary and excessive provision..12

2.2. Section 124A of the IPC does not violate Article 19 of the
Constitution of Vaishali………………………………………………….14
2.2.1. Section 124A of VPC has been held constitutionally valid by
the Supreme Court……………………………………………….14
2.2.2. Right To Freedom Of Speech And Expression is not
absolute.
2.2.3. Section 124A of VPC comes under the purview of
'Reasonable
Restrictions'………………………………………………………17

2.3. Section 124A of the IPC does not violate Article 21 of the
Constitution of Vaishali………………………………………………….20
2.3.1 Article 21 of the Constitution is not absolute…………….20

3. NASEEM SHAIHK SHOULD BE RELEASED PROMPTLY……………

21

3.1. Naseem Shaihk is a culprit punishable under Section 124A……...21

3.2. The detention of Naseem is a consequence of his non application of
bail………………………………………………………………………...22

PRAYER FOR RELIEF ………………………………………………………………..23

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MEMORANDUM FOR THE RESPONDENTS
 LIST OF ABBREVIATIONS

& And
¶ Paragraph
§ Section
A.I.R. All India Reporter
ABCA Alberta Court of Appeal
Anr. Another
Art Article
Bom LR Bombay Law Reporter
Cal Calcutta
CONST Constitution
Cri. LJ Criminal Law Journal
Ed Edition
Ins. Instituted
Ors. Others
PH Punjab-Haryana
S.C. Supreme Court
S.C.C. Supreme Court Cases
S.C.R. Supreme Court Reports
Sec Section
Subs. Substituted
Supp. Suppliment
v. Versus
V.P.C. Vaishali Penal Code

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MEMORANDUM FOR THE RESPONDENTS
 INDEX OF AUTHORITIES

A. STATUTES
1. Constitution of Vaishali, 1950
2. Vaishali Penal Code, 1860
3. The Prevention of Insults to National Honour Act, 1971

B. TABLE OF CASES

1. A.K. Gopalan V. State Of Madras AIR 1950 SC 27

2. Das Rao Deshmukh v. Kamal Kishore Kadam, AIR 1996 SC 391, (1995) SCC 5 123

3. Emperor V. Sadashiv Narayan Bhalerao (1944) 46 BOM LR 459

4. Express Newspapers Pvt. Ltd. v. Union of India, AIR 1986 SC 872.
5. H.B. Gandhi v. Gopinath & Sons, 1992 (Supp.-2) SCC 312

6. Kedarnath Singh V. State Of Bihar AIR 1962 SC 955

7. Kedarnath Singh V. State Of Bihar AIR 955 1962 SCR Supl. (2) 769
8. Kishori Mohan v. State Of West Bengal AIR 1972 SC 1749, (1972) 3 SCC 845, 1973
(5) UJ 98 SC

9. Maneka Gandhi V. Union Of India AIR 1978 SC 597

10. Narendra Kumar V. Union Of India AIR 1960 SC 430

11. Narottamdas V. State Of Madhya Pradesh AIR 1964 SC 1667

12. Niharendu Majumdar V. Emperor, AIR 1939 Cal 703
13. Om Prakash v. Emperor AIR 1956 All 241, 1956 Cri. LJ 452
14. People’s Union for Democratic Rights & Others v. Union of India & Others(1982) 3
SCC 235

15. Queen Emperor V. Bal Gangadhar Tilak (1917) 19 BOM LR 211

16. R. v. Arcand, 2010 ABCA 363
17. Ram Nandan V. State Of Uttar Pradesh AIR 1959 All 101, 1959 CriLJ 1
18. Rashid Ahmed v. Municipal Board, AIR 1950 SC 163.

19. Romesh Thappar vs The State Of Madras, AIR 1950 SC 124

20. Shyam Kishore v. Municipal Corporation of Delhi, AIR 1992 SC 2279

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MEMORANDUM FOR THE RESPONDENTS
21. State Of Bihar V. Shailabala Devi, AIR 1952 SC 329
22. Tara Singh Gopi Chand V. The State 1951 CriLJ 449
23. Union Of India V. Motion Pictures Association 1999 (3) SCR 875

24. Union of India v. Verma AIR 1957 SC 882.

25. Virendra V. State Of Punjab AIR 1957 PH 1, 1957 CriLJ 88

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MEMORANDUM FOR THE RESPONDENTS
 STATEMENT OF JURISDICTION

THE COUNSEL FOR THE RESPONDENTS HEREBY HUMBLY SUBMIT TO THIS

HON’BLE COURT’S JURISDICTION UNDER ARTICLE 226 OF THE CONSTITUTION
OF VAISHALI.

THE RESPONDENT WOULD LIKE TO HUMBLY SUBMIT THAT THIS PUBLIC

INTEREST LITIGATION IS NOT MAINTAINABLE.

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MEMORANDUM FOR THE RESPONDENTS
 STATEMENT OF FACTS

1. Naseem Shaihk is a political cartoonist in a leading newspaper. He published on web,

cartoon in which a caricature of Parliament and Constitution was made. For which a
F.I.R under section 124-A of Vaishali Penal Code was lodged against him at Khadki
police station for commission of an offence of sedition. In the F.I.R it is alleged that
by the caricature Naseem not only defamed the Parliament, the Constitution of India
but also attempted to spread hatred and disrespect against the Government. It is
further alleged that the act of Naseem Shaikh amount to disrespect to the national
emblems. It also amount of creating disharmony amongst the society at large.

2. On 09 Sept. 2021, he was arrested and produced before the magistrate. Naseem
refused to make an application for bail till the charges of sedition were dropped.
Therefore he was languishing in jail on the charge of sedition.

3. As per the belief of Naseem he was not fit for to be charged for sedition. As he
published the cartoon on the web-site, by no stretch of imagination it could be alleged
that he was attempted to spread hatred.

4. According to Naseem his act is part of his right to freedom of speech and expression.

5. A public spirited lawyer moved a criminal PIL for release of Naseem, in the High
Court of Saket. The State of Saket is a part of federation Vaishali.

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MEMORANDUM FOR THE RESPONDENTS
 STATEMENT OF ISSUES

1. WHETHER THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE?

2. WHETHER SECTION 124A OF THE VPC IS VIOLATIVE OF

FUNDAMENTAL RIGHT ENSHRINED UNDER PART III OF THE

CONSTITUTION OF VAISHALI?

3. WHETHER NASEEM SHAIHK SHOULD BE RELEASED?

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MEMORANDUM FOR THE RESPONDENTS
 SUMMARY OF ARGUMENTS

1. THE PUBLIC INTEREST LITIGATION UNDER ARTICLE 226 OF THE

CONSTITUTION OF VAISHALI IS NOT MAINTAINABLE.

The petition before the Hon’ble High Court was not filed in public interest and hence not a
Public Interest Litigation. Furthermore, there are no violations of Fundamental Rights and
hence a petition under Art 226 of the Constituion has no locus standi. Alternate remedies are
available for the release of Naseem and hence approaching the High Court should not be
encouraged.

2. SECTION 124A OF THE VPC IS NOT VIOLATIVE OF FUNDAMENTAL

RIGHTS ENSHRINED UNDER PART III OF THE CONSTITUTION OF
VAISHALI.

The law of sedition under section124A of the VPC is a legislative enactment that does not
violate any fundamental rights enshrined in the Constitution. There is no violation of Art 14
i.e. the right to equality as there exists clear provisions with no arbitrariness. Section 124A
does not violate Article 19 as the reasonable restrictions which can be imposed on the right to
freedom are inherent in the Article itself under Art 19(2). Article 21 is also not violated as
everything is according to procedure established by law.

3. NASEEM SHAIHK SHOULD NOT BE RELEASED.

Naseem Shaihk is a person punishable under section 124A of VPC. He is being prosecuted
under procedure established by law and not through illegal detention. A release of the
accused through such a judgment will subvert the normal procedural code. Furthermore,
Naseem was fully entitled to apply for bail but was deliberately not applying for it. Where
there is a normal way to seek justice the Court may not open an extraordinary path.

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MEMORANDUM FOR THE RESPONDENTS
 ARGUMENTS ADVANCED

1. THE PUBLIC INTEREST LITIGATION UNDER ARTICLE 226 OF THE

CONSTITUTION OF VAISHALI IS NOT MAINTAINABLE.

1.1. The litigation filed by A is not in public interest and therefore not a valid Public
Interest Litigation.

Black’s Law Dictionary defines Public Interest as: “Something in which the public, the
community at large, has some pecuniary interest, or some interest by which their legal rights
or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the
interests of the particular localities, which may be affected by the matters in question. Interest
shared by citizens generally in affairs of local, state or national Government.”1

In People’s Union for Democratic Rights & Others v. Union of India & Others, 2 the Hon’ble
court defined Public Interest Litigation and observed that “Public interest litigation is a
cooperative or collaborative effort by the petitioner, the State of public authority and the
judiciary to secure observance of constitutional or basic human rights, benefits and privileges
upon poor, downtrodden and vulnerable sections of the society.”

Regarding the current PIL before the Hon’ble HC of Saket, it is filed by a public spirited
person for the release of Naseem Shaihk3 which is not for the community at large and cannot
come under the purview of a real Public Interest Litigation. A mere personal interest being
the objective, hinders the petition from having the necessary locus standi.

1.2. There is no violation of Fundamental Rights and hence not maintainable under
Art 226.

The sedition charged against Naseem under sec 124A does not violate Art 14 of the
Constitution. There are express provisions for it and there exists no ambiguity or arbitrariness
with the provision. The freedom of speech and expression under Art 19(1)(a) accused of

1
Garner B.A., Black’s Law Dictionary, (9th ed., 2009)
2
(1982) 3 SCC 235
3
Moot Proposition, ¶5

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MEMORANDUM FOR THE RESPONDENTS
being curbed is a reasonable restriction that is imposed upon Naseem under Art 19(2) for the
sake of public order and against incitement to an offence. Art 21 also has certain restrictions
upon it in the form of procedure established by law. Section 124A is a procedure established
by law and hence has not infringed the right to life and personal liberty of Naseem.

1.3. The petitioners should have exercised alternative remedies.

The existence of alternative remedies is a thing taken into consideration in the matter
governing writ.4 Where statutory remedies are available or where a statutory tribunal has
been set up, a petition under Article 226 is not a proper remedy unless the remedies are
illsuited, to meet the demand of an extraordinary situation, e.g., (i) where the very vires of the
statute is in question5; or (ii) where private or public law wrong are so inextricably mixed up
and the prevention of public injury and the vindication of public justice requires that recourse
may be had to Article 226;6 (iii) in cases where the alternative remedy is not effective or
adequate.7 In Union of India v. Verma,8 it was held that it is well settled when an alternative
and equally efficacious remedy is open to a litigant, he should be required to pursue that
remedy and not invoke the special jurisdiction of HC to issue a prerogative writ and where
such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition
under Article 226.

In view of all these reasons it is humbly submitted that the Hon’ble High Court may reject the
PIL.

2. SECTION 124A OF THE VPC IS NOT VIOLATIVE OF FUNDAMENTAL

RIGHTS ENSHRINED UNDER PART III OF THE CONSTITUTION OF VAISHALI.

2.1. Section 124A of VPC does not infringe the fundamental right of Equality enshrined
under Article 14 of the Constitution.

2.1.1 Section 124A is not an arbitrary and excessive provision.

Intrinsic in the concept of justice is the idea that where the criminal justice system imposes
4
Rashid Ahmed v. Municipal Board, AIR 1950 SC 163.
5
H.B. Gandhi v. Gopinath & Sons, 1992 (Supp.-2) SCC 312
6
Shyam Kishore v. Municipal Corporation of Delhi, AIR 1992 SC 2279
7
Express Newspapers Pvt. Ltd. v. Union of India, AIR 1986 SC 872.
8
AIR 1957 SC 882.

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MEMORANDUM FOR THE RESPONDENTS
punishments, it should do so only in proportion to the crimes to which it seeks to respond.
The
principle of proportionality in criminal punishment is a fundamental aspect of most modern
legal systems. However, it is ultimately an unattainable ideal and is, at best, a goal to be
continually strived for. The traditional theory of criminal punishment provides
that the state imposes sanctions in response to the breaking of law. This theory finds its
basis in the ideas of the social contract through which free and rational individuals have
collectively consented to relinquish certain rights in order to subsist peaceably in society.
Hence, the State alone, as the embodiment of the body politic, has the right to inflict
punishment on its members, and to determine the sort of sanctions to be imposed for different
crimes.

Much has been written about the concept of proportionality, which has been held to be the
‘dominant principle driving the determination of sentences’ 9. Proportionality is considered to
be so important in criminal sentencing because it ‘accords with principles of fundamental
justice and with the purpose of sentence - to maintain respect for the law and a safe society by
imposing just sanctions’.

Nevertheless, despite this strong recognition of the importance of proportionality in criminal

justice, ‘the law with respect to proportionality in sentencing is confused, and what the law
can
be discerned rests on weak foundations'.

The power of words can never be underestimated. Indeed words and language may be the
only
thing that separates man from beast. It is the importance of words in the continuing
development of civilization and humanity and for the spread of ideas and knowledge that
causes more states around the world to protect words. This is done through various means,
the most important of which is the guarantee of the right to free speech. However words can
be double edged sword.

They can be used to determine the authority of the very state that protects them. They can
used to incite violence and disorder against the state and citizens. In order to protect itself and
9
R. v. Arcand, 2010 ABCA 363

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MEMORANDUM FOR THE RESPONDENTS
its citizens the state makes sedition an offence. Sedition is a crime against society nearly
allied to that of treason, and it frequently precedes treason by a short interval.

Charges of sedition on the petitioners are proportional to the gravity of their offence and
therefore there is no violation of Article 14 due to arbitrariness.

2.2. Section 124A of VPC does not infringe the fundamental right of Freedom of Speech
and Expression enshrined under Article 19(1)(a) of the Constitution.

It is humbly submitted before the Hon'ble bench that Section 124 A of the IPC, which deals
with sedition, does not infringes the fundamental right of speech and expression enshrined
under article 19(1)(a) of the Constitution of Vaishali, in any aspect.

In Romesh Thappar v. The State Of Madras 10, Patanjali Sastri .J ., rightfully held
that article 19(1) (a) is the basis and essence of the Constitution and our
democracy. This view was further supported by Bhagwati J. , in Maneka Gandhi V. Union of
India11, by emphasizing on the significance of the freedom of speech and expression.
However, the article that provides this right to each and every citizen, the very same article in
its clause (2) says that reasonable restrictions can be imposed on the right provided under this
article on the basis of certain grounds. Section 124 A of the VPC is one such reasonable
restriction.

2.2.1. Section 124A of VPC has been held constitutionally valid by the Supreme Court.

Sedition is a pre-constitutional law and has been upheld by the Supreme Court . Sedition
refers
to overt actions , gestures or speech by a person in oral or written form which express his or
her discontent against the established Government in the State , with the aim the incite
violence or hatred against it . Section 124A12 of the VPC(Chapter VI) defines the offence of
sedition . There are several in which this law has been challenged. Most of
these cases deals with constitutionality of Section 124A.

10
Romesh Thappar vs The State Of Madras, AIR 1950 SC 124
11
Maneka Gandhi V. Union Of India AIR 1978 SC 597
12
Vaishali Penal Code, Sec 124A

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MEMORANDUM FOR THE RESPONDENTS
In Niharendu Majumdar V. Emperor 13, the Federal Court held that public disorder
or the reasonable anticipation of likelihood of public disorder is the gist of the offence.
However, in Emperor v. Sadashiv Narayan Bhalerao 14, the Privy Council not only reiterated
the law on sedition enunciated in Bal Gangadhar Tilak 15 case , but also held that the Federal
Court’s
statement in Majumdar case was wrong. Privy council held that excitement of feelings of
enmity towards the Government is sufficient to make one guilty under 124A.

Moving further, the sedition law was declared as ultra vires by the Punjab-Haryana High
Court
in 1951 and was held unconstitutional citing that it restricts article 19 in disregard of whether
the interest of public order or the security of State is involved and is capable of striking the
very root of constitution which is free speech 16. Similarly, in 1958 Allahabad High Court also
struck down section 124A on the ground of being violative of the Constitution17. But
the view that the judiciary at present holds was given by the apex court in the case of
Kedarnath Singh v. State of Bihar18 in which sedition law was held to be constitutional and
the court observed it to be the only tool available to the Government to safeguard itself .

2.2.2. Right To Freedom Of Speech And Expression is not absolute.

Freedom of speech is considered as the basic freedom by most philosophical thinkers. It is

one of the most basic element for a healthy, open minded democracy and is
foundation of any democratic society 19. Under the Constitution of Vaishali, freedom of
speech and expression has been guaranteed under article 19(1)(a) which reads as: "Protection
of certain rights regarding freedom of speech etc.- All citizens shall have the right- (a) to
freedom of speech and expression."

The Constituent Assembly debated on freedom of speech and expression on 1 December & 2
December, 1948 and finally on 17 October, 1949. Most members of the constituent assembly

13
Niharendu Majumdar V. Emperor, AIR 1939 Cal 703
14
Emperor V. Sadashiv Narayan Bhalerao (1944) 46 BOM LR 459
15
Queen Emperor V. Bal Gangadhar Tilak (1917) 19 BOM LR 211
16
Tara Singh Gopi Chand V. The State 1951 CriLJ 449
17
Ram Nandan V. State Of Uttar Pradesh AIR 1959 All 101, 1959 CriLJ 1
18
Kedarnath Singh V. State Of Bihar AIR 955 1962 SCR Supl. (2) 769
19
Union Of India V. Motion Pictures Association 1999 (3) SCR 875

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MEMORANDUM FOR THE RESPONDENTS
welcomed the inclusion of right to freedom of speech and expression but conflict was
regarding
the provision in the article that placed restrictions. Those who were in the
favour of the restrictions argued that:
(a) Restrictions are fine as the Government is now not a colonial one.
(b) Nowhere in the world freedom of speech and expression is absolute.
(c) Law and order and security of State cannot be compromised.
In the end, the Constituent Assembly voted on the article and included freedom of speech and
expression in the Constitution with restrictions mentioned with it.20

In A.K. Gopalan V. State of Madras21, the Supreme Court observed :

'Man as a rational being desires to do many things but in civil society his desires have to be
controlled, regulated, and reconciled with the exercise of similar desires by other individuals.
Liberty has therefore to be limited in order to be effectively possessed. '

Thus, we can conclude this issue by saying that the right to freedom of speech & expression
is
not at all absolute but subject to certain restrictions as provided under 19(2)22
These aspects have widened the scope of this right but still the right has not become absolute
and is subject to reasonable restrictions on the following grounds under clause (2) of article
19 of the Constitution:
• security of the State
• friendly relations with foreign states
• public order
• decency and morality
• contempt of court
• defamation
• incitement to an offence
• sovereignty and integrity of the State.

20
The draft article read: 'Subject to the other provisions of this article, all citizens shall have the right – (a) to
freedom of speech and expression’
21
Supra note 10
22
VAISHALI CONST, art 19(2)

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MEMORANDUM FOR THE RESPONDENTS
In the case of Om Prakash V. Emperor23, the court held that the expression 'public order'
connotes the sense of public peace, safety and tranquillity. Anything that disturbs public
peace disturbs public order. Moreover, Supreme Court explained the differences between 3
concepts: law & order, public order and security of State and held that a law, punishing the
utterances delivered deliberately tending to hurt the religious feelings of any class, is valid
as it is a reasonable restriction aimed at maintaining public order.24

People often say that censorship and other such restrictions must only be made in case
of emergency or war and not otherwise, but in another case 25 Hon’ble Supreme Court held
that pre-censorship even in times of peace is warranted in certain circumstances under article
19(2) of the Constitution.

Reasonable restrictions can be imposed on freedom of speech and expression in the interest
of
security of the State. All the utterance intended to endanger the security of the State by
crimes of violence intended to overthrow the government, waging war and
rebellion against the government, external aggression or war etc. may be restrained in the
interest of the security of the State.26

2.2.3. Section 124A of VPC comes under the purview of 'Reasonable Restrictions'

The meaning of the term reasonable restriction has been a matter of judicial discussion. There
has been a doubt whether the term “ reasonable restriction ” also includes “ total prohibition
”. In A.K. Gopalan v. State of Madras27, Patanjali Sastri J., Kania C.J., and Das J. tried to
explain the term “restriction”. Das J. was of the view that the word “restriction” implies that
the fundamental right is not destroyed in entirety but passport of it remained. Patanjali Sastri
J. was of the view that the term did not mean “total prohibition”. Kania C.J.
interpreted it as “partial control” and distinguish it from deprivation.

23
Om Prakash v. Emperor AIR 1956 All 241, 1956 Cri. LJ 452
24
Kishori Mohan v. State Of West Bengal AIR 1972 SC 1749, (1972) 3 SCC 845, 1973 (5) UJ 98 SC
25
Virendra V. State Of Punjab AIR 1957 PH 1, 1957 CriLJ 88
26
State Of Bihar V. Shailabala Devi, AIR 1952 SC 329
27
A.K. Gopalan V. State Of Madras AIR 1950 SC 27

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MEMORANDUM FOR THE RESPONDENTS
Later the Supreme Court in another decision28, interpreted the term to mean “total
prohibition”
where the restriction was reasonable. It is submitted that what is restrained in
not the “fundamental right” which continues unaffected, but the “exercise” of it.
The restriction when it is unreasonable does not affect the right and when it is reasonable it
only restrains the exercise of that right. Such a restraint on the exercise of right, when
reasonable, may be partial or total.

Further, in reasonable restrictions, the test of reasonableness depends upon the nature of the
right alleged to have been infringed, the underlying purpose of the restriction imposed, the
extent and urgency of the evil sought to be remedied thereby, the disproportion of the
imposition and the prevailing conditions at the time of imposition of such restriction.

There are two conditions imposed by the Constitution to validate the restriction on the
freedoms
guaranteed by Article 19(1). These conditions are that the restrictions must be for a particular
purpose mentioned in the clause permitting the imposition of the restriction on that particular
right and the restriction must be a reasonable one.

The following are some of the principles which the Supreme Court of India has affirmed in
Narottamdas v. State of Madhya Pradesh29 for ascertaining the reasonableness of restrictions
on the exercise of the rights secured under Article 19 of the Constitution, which are as
follows:

The phrase “reasonable restriction” connotes that the limitation imposed upon a person in
the enjoyment of a right should not be arbitrary or of an excessive nature.
In determining the reasonableness of statute, the court should see both to the nature of the
restriction and procedure prescribed by the statue for enforcing the restrictions on the
individual freedom. Not only substantive but also procedural provisions of a statute also
enter in to the verdict of its reasonableness.
The reasonableness of a restriction has to be determined in an objective manner and from
the standpoint of the interests of the general public and not from the point of view of
28
Narendra Kumar V. Union Of India AIR 1960 SC430
29
Narottamdas V. State Of Madhya Pradesh AIR 1964 SC 1667

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MEMORANDUM FOR THE RESPONDENTS
persons upon whom the restrictions are imposed or upon abstract considerations.
The court is called upon to ascertain the reasonableness of the restrictions and not of the
law which permits the restriction. A law may be reasonable but the restriction imposed by
it on the exercise of freedom may not be reasonable.
 The word “restriction” also includes cases of prohibition and the State can establish
that a
law, though purporting to deprive a person of his fundamental right, under circumstances
amounts to a reasonable restriction only.
 The Indian Constitution provides reasonably precise general guidance in the matter
of reasonableness. The test of the reasonableness of the restriction has to be considered in
each case in the light or the nature of the right infringed, the purpose of the restriction,
the extent and the nature of the mischief required to be suppressed and the prevailing
social and other conditions at the time.
 A restriction that is imposed for securing the objects laid down in the Directive
Principles of State Policy may be regarded as reasonable restriction.
 If a restriction is not imposed by legislation but is the result of a contract freely
entered into by the citizen, he cannot complain of the reasonableness of the law.
 The conferment of wide powers exercisable on the subjective satisfaction
of the Government cannot be regarded as reasonable restriction because the Government is
the best authority to judge and take anticipatory action for preventing a threat to the breach of
the peace.
 The retrospective operation of legislation is a relevant factor in deciding
its reasonableness, but it is not always a decisive test. It is not correct to say that because the
retrospective operation covers a long period, the restriction imposed by it must
be unreasonable law which permits the restriction. A law may be reasonable but the
restriction imposed by it on the exercise of freedom may not be reasonable.
The word “restriction” also includes cases of prohibition and the State can establish that a
law, though purporting to deprive a person of his fundamental right, under circumstances
amounts to a reasonable restriction only.
The Indian Constitution provides reasonably precise general guidance in the matter of
reasonableness. The test of the reasonableness of the restriction has to be considered in
each case in the light or the nature of the right infringed, the purpose of the restriction,
the extent and the nature of the mischief required to be suppressed and the prevailing

19
MEMORANDUM FOR THE RESPONDENTS
social and other conditions at the time.
A restriction that is imposed for securing the objects laid down in the Directive Principles
of State Policy may be regarded as reasonable restriction.
 If a restriction is not imposed by legislation but is the result of a contract freely entered
into by the citizen, he cannot complain of the reasonableness of the law.
The conferment of wide powers exercisable on the subjective satisfaction of
the
Government cannot be regarded as reasonable restriction because the Government is the
best authority to judge and take anticipatory action for preventing a threat to the breach of
the peace.
The retrospective operation of legislation is a relevant factor in deciding its
reasonableness, but it is not always a decisive test. It is not correct to say that because the
retrospective operation covers a long period, the restriction imposed by it must
be unreasonable.

On the basis of the guidelines of the Narottamdas case 30, the counsel on the
behalf of the respondents humbly concludes before the Hon'ble Bench that section 124A
clearly falls within the ambit of a reasonable restriction based on the grounds of
restrictions in the interests of security, sovereignty & integrity of State, disruption of public
order and incitement of an offence as enunciated in the Constitution 31 and does not infringes
any of the fundamental rights, especially the right to freedom of speech & expression. As it
was held by the Supreme Court, section 124A is constitutional in all aspects and sedition has
been ruled as a crime to prevent the subversion of the Government by inciting contempt or
hatred towards it, which can rock the very stability of the society32.

2.3 Section 124A OF VPC does not infringe the Fundamental Right to Life and
Personal Liberty enshrined under article 21 of the Constitution.

2.3.1 Article 21 of the Constitution is not absolute.

30
Id
31
VAISHALI CONST, art 19(2)
32
Kedarnath Singh V. State Of Bihar AIR 1962 SC 955

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MEMORANDUM FOR THE RESPONDENTS
Article 21. Protection of life and personal liberty :
“No person shall be deprived of his life or personal liberty except according to procedure
established by law.”33

It is most humbly submitted before the Hon’ble Bench that section 124A is not related to
article
21 in any way and thus does not infringes the fundamental right to life and personal liberty
enshrined under Article 21 of the Constitution. Art 21 itself provides that it is not absolute
and it can be curtailed with procedures established by law.
Section 124A is a law under the purview of Art 13 and has been a ‘law in force’ from pre-
constitutional period. It has not been repealed and is a valid law.

In Das Rao Deshmukh v. Kamal Kishore Kadam 34, the Supreme Court held that distributing
and provoking content amongst the people was likely to cause disharmony and hatred.
The right of life and liberty so guaranteed under article 21 subject to the rule of
proportionality. Where individual liberty comes into conflict with an interest in the security
of the state or public order, the liberty of individual must give way to the larger interest of the
nation.

Since their liberty has been restricted by procedure established by law, they cannot move the
court for violation of their fundamental right to freedom of speech and expression ensured
under article 21.

3. NASEEM SHAIHK SHOULD NOT BE RELEASED.

3.1. Naseem Shaihk is a culprit punishable under Section 124A.

Naseem Shaihk published on web, cartoon in which a caricature of Parliament and

Constitution was made35. A caricature means ‘exaggeration by means of often ludicrous
distortion of parts or characteristics’ 36 and making such a ludicrous distortion on the
Parliament and Constitution which represents the sovereignty and dignity of the nation is a
clear attempt at subverting the respect of the people towards it. This is a naked contempt
33
Supra note 17, art 21
34
Das Rao Deshmukh v. Kamal Kishore Kadam, AIR 1996 SC 391, (1995) SCC 5 123
35
Supra note 3, ¶1
36
Merriam-Webster, definition of caricature

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MEMORANDUM FOR THE RESPONDENTS
towards the democratic institution and supreme statute that incites people to look down on
the nation itself.

Section 124A37 reads,

“Sedition—Whoever by words, either spoken or written, or by signs, or by visible
representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or
attempts to excite disaffection towards, the Government established by law in with Vaishali
shall be punished imprisonment for life, to which fine may be added, or with imprisonment
which may extend to three years, to which fine may be added, or with fine.
Explanation 1. The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2. Comments expressing disapprobation of the measures of the Government with
a view to obtain their alteration by lawful means, without exciting or attempting to excite
hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3. Comments expressing disapprobation of the administrative or other action of
the Government without exciting or attempting to excite hatred, contempt or disaffection, do
not constitute an offence under this section.”38

The words ‘brings or attempts to bring into hatred or contempt’ clearly iterates that the
actions of Naseem attracts the provisions of sec 124A.

3.2. The detention of Naseem is a consequence of his non application of bail.

On 09 Sept.2021, Naseem was arrested and produced before the magistrate. Naseem refused
to make an application for bail till the charges of sedition were dropped. 39 As such asking for
the same through a PIL to the High Court is mocking the time of the High Court. When there
are alternate remedies available, approaching the High Court should not be encouraged.

The petitioner moved a criminal PIL for release of Naseem 40 under Article 226 of the
Constitution and ought to be rejected outright. Allowing such petitions will open a Pandora’s
box, where the time of the court will be used for registering the protests of people who do not
follow normal legal procedure.

37
Ins. by Act 27 of 1870, s. 5 and subs. by Act 4 of 1898, s. 4, for s. 124A
38
Id
39
Supra note 3, ¶2
40
Ibid, ¶5

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MEMORANDUM FOR THE RESPONDENTS
 PRAYER

In the lights of issues raised, arguments advanced and authorities cited; it is most humbly
prayed that the court may please adjudge and declare that:

1. The Public Interest Litigation filed under article 226 is not maintainable.
2. Section 124A of the VPC is not violative of fundamental rights enshrined under Part III of
the Constitution of Vaishali.
3. Naseem Shaihk should not be released.

And the court may pass any other order that deems fit in the interest of justice, good faith
and equity.

SD/-
(Counsel for the respondents)

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MEMORANDUM FOR THE RESPONDENTS