Clubbed With

TC-325_P
3rd HPNLU NATIONAL MOOT COURT COMPETETION, 2022

BEFORE THE HON’BLE SUPREME COURT OF INDICA
IN THE MATTER OF
W.P. No. /2022
ABHILASHINI THROUGH CHITRAKALA……………………….……… PETITIONER
v.
STATE OF JATALA & ANR ….……………………………………………… RESPONDENT

CLUBBED WITH
W.P. No. /2022
XATALI COMMUNITY THROUGH KAPALA XATALI ........................ PETITIONER
v.
UNION OF INDICA & ORS……. ............................................................... RESPONDENT

CLUBBED WITH
W.P. No. /2022
MARWADAN .................................................................................................. PETITIONER
v.
UNION OF INDICA ...................................................................................... RESPONDENT

CLUBBED WITH
W.P. No. /2022
MICHAEL JOSEPH ....................................................................................... PETITIONER
v.
UNION OF INDICA. ..................................................................................... RESPONDENT
PETITION INVOKED UNDER ART. 32 OF THE CONSTITUTION OF INDICA

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S
COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDICA
PETITIONER TC-325_P
TABLE OF CONTENTS
Sr. No. CONTENTS Page No.
1. LIST OF ABBREVIATIONS 2
2. INDEX OF AUTHORITIES 3-6

3. STATEMENT OF JURISDICTION 8
4. STATEMENT OF FACTS 9-10
5. STATEMENT OF ISSUES 11
6. SUMMARY OF ARGUMENTS 12-13

7. ARGUMENTS ADVANCED 14-
8. THE XATALI COMMUNITY MEMBERS (MANAGEMENT AND 14-17

REGULATIONOF CONDUCT) ACT, 2022 IS ULTRA VIRES THE
CONSTITUTION OF INDICA.
9. THERE IS A HIERARCHICAL SCHEME IN THE IDEA 17-18

FUNDAMENTAL RIGHTS.
10. THE AUTHOR’S RIGHT TO FREEDOM AND SPEECH AND 19-20
EXPRESSION DOES NOT VIOLATE THE GENERAL STANDARD
OF MORALITY OR DECENCY ESTABLISHED BY THE
COMMUNITY.
11. THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION 20-22
CANNOT BE CURTAILED ON THE GROUND THAT IT IS
VIOLATIVE OF THE RELIGIOUS SENTIMENTS OF
PARTICULAR COMMUNITY.
12. THE RIGHT TO ACCESS TO THE INTERNET IS A 22-25
FUNDAMENTAL RIGHT.
13. THE 2019 AMMENDMENT TO THE UNLAWFUL ACTIVITIES 25-32
(PREVENTION) AMENDMENT ACT IS MANIFESTLY
ARBITRARY AND VIOLATIVE OF ARTICLE OF 14 AND 21
CONSTITUTION OF INDICA.
14. PRAYER 33
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PETITIONER TC-325_P
LISTOFABBREVIATION
& And
¶ Paragraph
AIR All India Reporter
AP Andhra Pradesh
Art. Article
Co. Company
Govt. Government
Hon’ble Honorable
Ltd. Limited
M.P. Madhya Pradesh
NGO Non-Governmental Organization
No. Number
Ors. Others
PIL Public Interest Litigation
Raj Rajasthan
SC Supreme Court
SCR Supreme Court Reports
U.P. Uttar Pradesh
UOI Union of India
v. Versus
SCC Supreme Court Cases
u/s Under Section
Anr. Another
Page2 of 33
PETITIONER TC-325_P
INDEX OF AUTHORITIES
S.NO. TITTITLE CASE CITATION PAGENO.
1. A.K. Gopalan v. State of Madras AIR 1950 SC 27 15

2. A.K. Roy v. Union of India AIR 1982 SC 710 18
3. Acharya Rajneesh v Naval Thakur 1990 Cr LJ 2511(HP) 21
4. Air India v. Nargesh Meerza AIR 1981 SC 1829. 16
5. Ameronisa v. Mahboob 16
AIR 1953 SC 91.
6. Animal Welfare Board of India v. A. (2014) 7 SCC 547. 18

Nagaraja and ors.
7. Anuradha Bhasin v. Union of Indian (2020) 1 MLJ 574 23
8. Ajay Hasia and Ors. v Khalid Mujib SC/0498/1980 27
Sehravardi
9. Aveek Sarkar and anr. v. State of W.B AIR 2014 SC 1495. 20
and anr.
10. Chintamanrao v. State of M.P. AIR 1951 SC 118. 14
11. D.F. Marion v. Davis 55 ALR 171: 217 31
Ala16(1927): (SCC pp.
515, para 25
12. Danial Latifi v Union of India (2001) 7 SCC 740 31
13. Devidas RamchandraTuljapurkar v. (2015) 6 SCC 1, 84 & 85 19
State of Maharashtra
14. Director General of Post and ors. v. K. 2013 3 SCC 310 15
Chandrasrekar Rao
15. Dwarka Prasad Laxmi Narain v. State of AIR 1954 SC 224, 227: 14
U.P. 1954 SCR 803
16. E.P. Royappa v. State of Tamil Nadu SC/0380/1973: (1974) 4 27
SCC
17. Francis coralie mullin v. The (1981) 1 SCC 608; AIR 18
administrator 1981 SC 746
18. Faheema Shirin R.K. v. State of Kerala WP(C) No. 19716 of 2019 25
and Ors (L)
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PETITIONER TC-325_P
19. Indian Express Newspapers (Bombay) SC/0406/1984 27
Private Ltd. and Ors. vs. Union of India
and Ors
20. Jayamala v. Home Secretary, govt. of 2013 Cr LJ 622 21
Jammu & Kashmir & ors.
21. Justice K. S. Puttaswamy v. Union of AIR 2017 SC 4161 18, 23
India
22. Kartar Singh v State of Punjab AIR 1993 SC 341, 1993 28
Cri LJ 183, 1993 Supp
(2) SCC 740
23. Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461 17
24. Kiran Bedi v. Committee of Inquiry (1989) 1 SCC 494 31
25. M.F. Hussain v. Raj Kumar Pandey 2008 CrLj 4107 20
26. Maneka Gandhi v. Union of India (1978) 1 SCC 248, 294, 15, 23,
323 27, 31
27. Manojrai v. State of M.P AIR 1999 SC 300: 1999 21

Cr LJ 470
28. Manmeet Singh vs State of Gujarat C/SCA/11513/2016 21
29. Modern Dental College and Research (2016) 7 SCC 353 14

Centre v. State of M.P.
30. Monoponier Co. P. City of Los Angeles 33 Cal App. 675 16
31. N.B. Khare v. State of Delhi AIR 1950 SC 211, 217: 15

1950 SCR 519.
32. Narendra Singh v. State of M.P. (2004) 10 SCC 699: 2004 31
SCC (Cri) 1893], SCC
para 31
33. National Legal Service Authority v. (2014) 5 SCC 438 18
Union of India
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PETITIONER TC-325_P
34. P.P. Enterprises v. Union of India (1982) 2 SCC 33 AIR 14
1982 SC 1061
35. People’s Union for Civil Liberties v. AIR 1997 SC 568 29
Union of India
36. Perumal Mururgan v. State of Tamil AIR 2016 SC 486 22
Nadu
37. R. v. Hicklin (1868) 3 QB 360, 371 20
38. R. v. Marine Secker Qarburg Ltd. 1954 2 all E.R. 683 19
39. R. Balakrishna Pillai v. State of Kerala AIR 1996 SCC (1) 478. 19
40. R.C. Cooper v. Union of India AIR 1970 SC 564 16
41. R.K. Garg v. Union of India AIR 1981 SC 2138 16
42. Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881, $87: 15, 19,
(1965) 1 SCR 65. 21
43. Ranjit Singh Brahmajeet Singh Sharma (2005) 5 SCC 294 31
v. State of Maharashtra
44. Re-Special Courts Bill AIR 1979 SC 478 16
45. S. Nambi Narayanan v. Siby Mathews (2018) 10 SCC 804 31
46. S. Rengarajan and ors. v. P. Jagjeevan 1989 (2) SCC 574 24
Ram
47. Shayara Bano v. Union of India and (2017) 9 SCC 1. 26, 28
others
48. Shalibhadra Shah and ors. v. Swami 1981 Cr LJ 113 (Guj). 21
Krishna Bharati and Anr.
49. State of Andhra Pradesh v. Mcdowell (1996) 3 SCC 709 27
and Co. and Ors.
50. State of Bihar v. Kameshwar Singh AIR 1952 SC 252 15
51. State of Bombay v. F.N. Balsara AIR 1951 SC 318 15
52. State of Gujrat and ors. v. Justice Amrit 2013 4 SCC 47 15

Lal Mehta and ors.
53. State of Madras v. V.G. Row AIR 1952 SC 196 15
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PETITIONER TC-325_P
54. State of Rajasthan vs. Balchand alias (AIR 1977 2447) 32
Baliya
55. Subramanian Swamy v. Director, (2014) 8 SCC 682 27
Central Bureau of Investigation and
Another
56. Sujato Bhadra v State of W.B. 2006 Cr LJ 368(Cal) 21
57. Union of India v. K.A. Najeeb (2021) 3 SCC 713 32
58. Union of India v. Tulsiram Patel (1985) 3 SCC 398. 29
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PETITIONER TC-325_P
BOOKS
1. DD Basu, Shorter Constitution of India, Volume I-II, (14th Edition,2013).
2. V.N. Shukla, Constitution of India, (13th Edition,2019).
STATUTES
1. Constitution of India, 1950
2. Indian Penal Code, 1860
3. Indecent Representation Of Women (Prohibition) Act, 1986
4. The Code Of Criminal Procedure, 1973
5. The Unlawful Activities (Prevention) Amendment Act, 2019
IMPORTANT DEFINITION
1. Petitioners for the purpose of this memorandum shall stand for: -
➢ Marwadan
➢ Michael Joseph
2. Respondent for the purpose of this memorandum shall stand for: -
➢ Union Of Indica.
➢ Abhilashini through Chitrakala
➢ State of Jatala
➢ Xatali community through Kapala Xatali
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PETITIONER TC-325_P
STATEMENT OF JURISDICTION
➢ Three petitions were filed before the Hon’ble High Court of Jatala after the proceedings, the
Hon’ble High Court stated that these petitions involved an important question of
constitutional law and transferred the matter to the Hon’ble Supreme Court.
➢ Petitioner no.4 has approached the Hon’ble Supreme Court under Article 32 of the
constitution of Indica.
➢ The Hon’ble Supreme court clubbed all the four petitions under the inherent power of
clubbing by virtue of Article 139A of the constitution of Indica.
Page8 of 33
PETITIONER TC-325_P
STATEMENT OF FACT
BACKGROUND OF THE CASE

Indica is a developing peninsular country situated in the Rondwana continent. The country was
once under the British colonial rule till the year 1940. After getting independence it has been
governed by a single party government system. Indica is one of the common law countries with rich
history of legal development and its judicial activism has been constantly praised by the world over
the years.
Marwadan is a 23-year-old student studying at Jatala Global Law School in state of Jatala. He is a
follower of Xatalism, besides all this he is a well reputed poet and has published many poetic work
in Hindi through online and offline mode and his poetic work has huge fan following on social
media page.
CIRCUMSTANCES LEADING TO DISPUTE

(i) Recently, Marwadan published his story in poetic form in which he characterized beauty of a
woman through a fictional character by describing her body parts and sexual acts in which the
women fictional character participated with her paramour.
(ii) An NGO named Abhilashini which works for the empowerment of women in the state of Jatala
and filed a writ petition before the Hon’ble High Court of Jatala in the republic of Indica and argued
that the story is objectionable and is unreasonable exercise of speech and expression and describes
the story as lascivious and that the story may corrupt the mind of the young and vulnerable
generation and therefore the story depicted in the poetic expression is immoral and obscene for the
society.
(iii) The poetic verses have gained attention from national as well as international media which
resulted in the criticism of the government and heated debates on the issue made an alarming
situation for the government in course of which the union government issued directions to block
the poem for maintenance of law and order in the state and as a result blocked the public access of
the poem from all the platforms simultaneously in the state of Jatala, multiple protest demanded the
arrest of Marwadan, soon after that those protest took a form of riots in which the protesters used
Molotov cocktails against the police personals resulting to grievous injuries on both sides.
(iv) Seeing the gravity of the situation the union government passed an order to restrict the internet
access in the state of Jatala and the investigating agencies identified a person named Michael Joseph
as one of the persons who threw Molotov cocktail during the riots and charged him under UAPA
(v) Marwadan contended that the internet ban is violative of the Constitution of Indica, which has
been enshrined as a fundamental right.
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PETITIONER TC-325_P
(vi) The Xatali community worships female goddess in virgin form and its scriptures prohibits any
lascivious description of female body. Under the Xatali Community Members (Management And
Regulation Of Conduct) Act, 2022 their religious practices have been recognized by the state and
taking shelter of the Act, Kapala Xatali approached the High Court of on the grounds that the
composition made by Marwadan is violative of the act stated above, claiming that Marwadan
should be prosecuted and punished as per the provision of the Act.
(vii) Three petitions were clubbed by the Hon’ble High Court of Jatala, Adjudicating the case, High
Court declined the contention of the NGO and Kapala Xatali on the grounds that Marwadan has not
exceeded the domain of freedom of speech and expression allowed by the Constitution.
Subsequently, in the matter of Religion, right to access internet or UAPA aspects of petition, the
Hon’ble High Court did not interfere and stated that these issues involved an important question of
Constitutional law that is needed to be settled by the apex Court.
Taking note of the matter, the Supreme Court constituted a Thirteen judge bench to hear the
important questions of constitutional law involved in the petition.
MATTER BEFORE HON’BLE SUPREME COURT
➢ The Hon’ble Supreme Court of Indica has clubbed all the four the petitions under the
inherent power of clubbing by virtue of Article 139A of the constitution of Indica.
Page10 of 33
PETITIONER TC-325_P
STATEMENT OF ISSUES
1. WHETHER THE XATALI COMMUNITY MEMBERS (MANAGEMENT AND

REGULATION OF CONDUCT) ACT, 2022 IS ULTRA VIRES THE CONSTITUTION
OF INDICA?
2. WHETHER THERE IS A HIERARCHICAL SCHEME IN THE IDEA OF

FUNDAMENTAL RIGHT?
3. WHETHER THE AUTHOR’S RIGHT TO FREEDOM AND SPEECH AND

EXPRESSION VIOLATES THE GENERAL STANDARD OF MORALITY OR
DECENCY ESTABLISHED BY THE COMMUNITY?
4. WHETHER THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION BE

CURTAILED ON THE GROUND THAT IT IS VIOLATIVE OF THE RELIGIOUS
SENTIMENTS OF A PARTICULAR COMMUNITY?
5. WHETHER THE RIGHT TO ACCESS TO THE INTERNET IS A FUNDAMENTAL

RIGHT UNDER ARTICLE 21 OF INDICA?
6. WHETHER THE 2019 AMENDMENT TO THE UNLAWFUL ACTIVITIES

(PREVENTION) AMENDMENT ACT, 2019 IS MANIFESTLY ARBITRARY AND
VIOLATIVE OF ARTICLE 14 AND 21 OF THE CONSTITUTION OF INDICA?
Page11 of 33
PETITIONER TC-325_P
SUMMARY OF ARGUMENTS
I. WHETHER THE XATALI COMMUNITY MEMBERS (MANAGEMENT AND

REGULATION OF CONDUCT) ACT, 2022 IS ULTRA VIRES THE
CONSTITUTION OF INDICA?
The counsel on the behalf of Marwadan, hereinafter petitioner humbly submits before the Hon’ble
Court of Indica that the Xatali Community Members (Management and Regulation of Conduct)
Act, 2022 is ultra vires to Article 19 (1) of the Constitution of Indica. The aforesaid Act does
impose arbitrary restriction which are contrary to reasonable restrictions under Article 19(2) of the
Constitution of Indica and in fact, the said restrictions are not reasonable restrictions to preserve the
religious practices and sentiments of the Xatali community.
II. WHETHER THERE IS A HIERARCHICAL SCHEME IN THE IDEA OF

FUNDAMENTAL RIGHTS?
That the counsel on behalf of Marwadan, hereinafter petitioner humbly submits before the Hon’ble
court that fundamental rights flow from Equality but Right to life and personal liberty (Article 21)
is “the heart and core” of the fundamental rights enshrined in the constitution of Indica and there is
no such “hierarchical order” in the idea of fundamental rights but if we want to impliedly ascertain
by the intentions of the framers of constitution and the interpreter of the constitution, then we must
see all this in the light of preamble enshrined in our constitution.
III. WHETHER THE AUTHOR’S RIGHT TO FREEDOM AND SPEECH AND

EXPRESSION DOES NOT VIOLATE THE GENERAL STANDARD OF
MORALITY OR DECENCY ESTABLISHED BY THE COMMUNITY?
Court that the author’s right to freedom and speech and expression does not violate the general
standards of morality or decency established by the community as provided under 19 (2) of the
Constitution of Indica.
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PETITIONER TC-325_P
IV. WHETHER THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

CAN BE CURTAILED ON THE GROUND THAT IT IS VIOLATIVE OF THE
RELIGIOUS SENTIMENTS OF PARTICULAR COMMUNITY?
That the counsel on the behalf of Marwadan, hereinafter petitioner humbly submits before the
Hon’ble Court that under Article 19 (2) of the Constitution of Indica the author’s right to freedom
of speech and expression cannot be curtailed on the grounds that it is violative of religious
sentiments of Xatali community.
V. WHETHER THE RIGHT TO ACCESS TO THE INTERNET IS A

FUNDAMENTAL RIGHT?
Hon’ble Court of Indica that the right to access internet is a fundamental right by virtue of Article
21 of the Constitution of Indica.
VI. WHETHER THE 2019 AMMENDMENT TO THE UNLAWFUL ACTIVITIES

(PREVENTION) AMENDMENT ACT IS MANIFESTLY ARBITRARY AND
VIOLATIVE OF ARTICLE OF 14 AND 21 CONSTITUTION OF INDICA?
That the counsel on the behalf of Michael Joseph, hereinafter petitioner humbly submits before the
Hon’ble Court of Indica that 2019 Amendment to the Unlawful Activities (Prevention) Amendment
Act, 1967 is manifestly arbitrary and violative of Article 14 and 21 Constitution of Indica.
Therefore, challenging the Constitutional validity of section 35 and 36 of 2019 Amendment to the
unlawful activities (Prevention) Amendment Act 1967, to the extent that it applies to an individual
on the grounds that it infringes the fundamental rights guaranteed under Article 14 and 21.
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PETITIONER TC-325_P
ARGUMENT ADVANCED
ISSUE NO. 1. THE XATALI COMMUNITY MEMBERS (MANAGEMENT AND

REGULATION OF CONDUCT) ACT, 2022 IS ULTRA VIRES THE CONSTITUTION OF
INDICA.
The counsel on the behalf of Marwadan, hereinafter petitioner, humbly submits before the Hon’ble
Court that the Xatali Community Members (Management and Regulation of Conduct) Act, 2022 is
ultra vires to Article 19 (1) of the Constitution of Indica. The aforesaid Act does impose arbitrary
restrictions which are contrary to reasonable restrictions under Article 19 (2) of the Constitution of
Indica and in fact, the said restrictions are not reasonable restrictions to preserve the religious
practices and sentiments of the Xatali community.
We would like to prove our issue before this Hon’ble Court through the following sub-issues: -
1.1 THAT THE XATALI MEMBERS (MANAGEMENT AND REGULATION CONDUCT
ACT, 2022) IS NOT PROPORTIONAL TO REASONABLE RESTRICTIONS PROVIDED
UNDER ARTICLE 19 (2) OF THE CONSTIUTION OF INDICA.
Article 19 (2): -Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law,
or prevent the State from making any law, in so far as such law imposes reasonable restrictions on
the exercise of the right conferred by the said sub clause in the interests of the sovereignty and
integrity of India, the security of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation or incitement to an offence.
According to the Supreme Court in Dwarka Prasad Laxmi Narain v. State of U.P.1 “the phrase
reasonable restrictions provided under Article 19(2) of the Constitution connotes that the limitations
imposed upon a person in the enjoyment of his fundamental right must not be arbitrary or of an
excessive nature and hence there must be a proper balance between the freedom guaranteed under
Article 19 (1) and the reasonable restriction of social control under Article 19 (2) and therefore all
this has taken a shape of doctrine of proportionality which is now frequently invoked for
determining for the reasonableness of a restriction under Article 19 (2)”.2
Thus, the Xatali Members (Management and Regulation Conduct Act, 2022) is arbitrary and it
invades the freedom of speech and expression because reasonableness demands proportionality.
It is humbly submitted before this Hon’ble Court that the chapter 2 of the aforesaid Act is not
proportional to the requisites of reasonable restrictions provided under Article 19 of the
Constitution of Indica.
1
AIR 1954 SC 224, 227: 1954 SCR 803; Chintamanrao v. State of M.P. AIR 1951 SC 118; P.P. Enterprises v. UOI (1982)
2 SCC 33: AIR 1982 SC 1016
2
Modern Dental College and Research Centre v. State of M.P. (2016) 7 SCC 353
Page14 of 33
PETITIONER TC-325_P
The nature of restriction3 and the procedure prescribed by the Act4 for enforcing the restriction on
the individual freedom of members of Xatali community, is unreasonable on substantive as well as
procedural basis. According to the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra5
“the substantive part of the Act which imposes prohibition on the expressions is substantially
transgressed”. There is no balance between the restriction on freedom of speech and expression
with public morality and decency as under article 19 (2) therefore, the said Act must be held as
void.
In N.B. Khare v. State of Delhi6 Supreme Court said that “the law may be reasonable but the
restrictions imposed by it on the exercise of the freedom may not be reasonable”. Further, Article
19 must be read with Article 14 and 21 to determine the reasonableness of the law,7 therefore the
law is unreasonable under Article 19.
According to the Article 138 the Supreme Court can declare a law unconstitutional9 if it is
inconsistent with any of the provisions of Part III of the Constitution. When there is an issue of
invalidity and unconstitutionality of a part of a Statute then the question arises whether the whole
Act should be declared to be void or only that part, which is inconsistent with the constitution. In
order to sort out this problem Supreme Court devised the Doctrine of Severability.10 The Doctrine is
subject to one exception i.e., sometimes it happens that the valid and invalid parts are so closely
mixed up that they cannot be separated and, in such cases the whole Act is held to be void. To know
whether they are separable or not, we have to see the intention of the legislature i.e., the legislature
would have enacted valid part without enacting void part. If the answer is yes then severable and if
the answer is no then it is not severable. The object of Article 13 is to ensure that instruments
emanating from any source of law permanent or temporary will pay homage to the constitutional
provisions relating to the Fundamental Rights and in the present case both the parts of the Act
[Xatali Members (Management and Regulation Conduct Act, 2022)] are not severable therefore the
whole of the Act must be held to be violative of the constitution and hence void.
3
Moot Proposition, ¶ ANNEXURE 1 section 2
4
Moot Proposition, ¶ ANNEXURE 1 section 3
5
AIR 1965 SC 881 (885): (1965) 1 SCR 65 (69, 74, 75)
6
AIR 1950 SC 211, 217: 1950 SCR 519.
7
Maneka Gandhi v. Union of India, (1978) 1 SCC 248, 294, 323: AIR 1978 SC 597
8
Article 13. Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as
they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made
in contravention of this clause shall, to the extent of the contravention, be void.
9
Cases in which scope of judicial review is decided by judiciary: -State of Madras v. V.G. Row AIR 1952 SC 196; A.K.
Gopalan v. State of Madras AIR 1950 SC 27; State of Gujrat and ors. v. Justice Amrit Lal Mehta and ors. 2013 4 SCC
47; Director General of Post and ors. v. K. Chandrasrekar Rao 2013 3 SCC 310
10
State of Bombay v. F.N. Balsara AIR 1951 SC 318; State of Bihar v. Kameshwar Singh AIR 1952 SC 252
Page15 of 33
PETITIONER TC-325_P
1.2 THAT THE PUNISHMENT PROVIDED UNDER SECTION 3 OF THE XATALI
MEMBERS (MANAGEMENT AND REGULATION CONDUCT ACT, 2022) IS
UNREASONABLE AND NOT PROPORTIONAL TO THE INDECENT
REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986 AND ALSO TO THE
INDICA PENAL CODE, 1860.
That the state of Indica already has other Acts such as The Indecent Representation Of Women
(Prohibition) Act, 198611 and The Indica Penal Code, 1860 which deals with the subject matter of
indecent representation of women and obscenity. Further, these laws also provide for the
punishments for the offences dealing with the above said subject matter.
Reading Section 2 (a)12 of the Xatali Members (Management and Regulation Conduct Act, 2022)
and section 613 of the Indecent Representation Of Women (Prohibition) Act, 1986 and section 50914
of the Indica Penal Code, 1860, we find that the punishment provided under the Xatali Members
(Management and Regulation Conduct Act, 2022) is unreasonable and disproportionate with the
punishment provided for the same gravity of offences under the Indecent Representation Of
Women (Prohibition) Act 1986 and Indica Penal Code, 1860.
1.3 THAT THE XATALI MEMBERS (MANAGEMENT AND REGULATION CONDUCT
ACT, 2022) IS A CLASS LEGISLATION AND IS PROHIBITED UNDER ARTICLE 14.
Article 1415 forbids class legislation but permits reasonable classification.16The Supreme Court in
R.K. Garg v. Union of India17 stated that “class legislation makes an improper discrimination by
conferring particular privileges upon a class of persons, arbitrarily selected from a large number of
persons, all of whom stand in the same relation to the privilege granted between favoured and the
11
Section 3. Prohibition of advertisements containing indecent representation of women. -No person shall publish, or
cause to be published, or arrange or take part in the publication or exhibition of, any advertisement which contains
indecent representation of women in any form.
Section 4. Prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of
women. -No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any
book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains
indecent representation of women in any form.
12
Moot Proposition ¶ Annexure 1 section 2
13
Section 6. Penalty. -Any person who contravenes the provisions of section 3 or section 4 shall be punishable on first
conviction with imprisonment of either description for a term which may extend to two years, and with fine which may
extend two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for a term of not
less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which
may extend to one lakh rupees.
14
Section 509. Word, gesture or act intended to insult the modesty of a woman. -Whoever, intending to insult the
modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word
or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of
such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or
with both.
15
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory
of India.
16
Air India v. Nargesh Meerza, AIR 1981 SC 1829; R.C. Cooper v. Union of India, AIR 1970 SC 564; Ameronisa v.
Mahboob, AIR 1953 SC 91Monoponier Co. P. City of Los Angeles, 33 Cal App. 675.
17
AIR 1981 SC 2138. Re-Special Courts Bill, AIR 1979 SC 478.
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PETITIONER TC-325_P
persons not so favoured, hence no reasonable distinction can be found justifying on the ground of
inclusion of one and the exclusion of other from such privilege”.
Thus, when there is uniform penal code and Indecent Representation Of Women (Prohibition) Act,
1986 in the state of Indicia for the purposes stated in the section 2 of the Xatali Members
(Management and Regulation Conduct Act, 2022), pertinent to which there is no need to formulate
another Act for some selected people with rigorous penal provisions which creates a class within a
class to deal with the same purpose which is already stated in Indica Penal Code, 1860 and in the
Indecent Representation Of Women (Prohibition) Act, 1986.
ISSUE NO. 2. WHETHER THERE IS A HIERARCHICAL SCHEME IN THE IDEA OF
FUNDAMENTAL RIGHTS?
That the counsel on behalf of Marwadan, hereinafter Petitioner humbly submits before the Hon’ble
court that fundamental rights flow from Equality but Right to life and personal liberty (Article
21)18is “the heart and core” of the fundamental rights enshrined in the constitution of Indica and
there is no such “hierarchical order” in the idea of fundamental rights but if we want to impliedly
ascertain by the intentions of the framers of constitution and the interpreter of the constitution, then
we must see all this in the light of preamble enshrined in our constitution.
2.1 PREAMBLE AS A GOAL SETTER.
That preamble actually embodies the spirit of the constitution19 and tells us the intentions of the
framers of the constitution as to what goals they sought to achieve through the constitution. The
fundamental rights flow from Equality that can be certainly seen in the preamble of the constitution
where it is enumerated “JUSTICE, social, economic and political” which simply talks about the
attainment of common good and the people cannot be discriminated on the basis of caste, religion,
gender and that the government should work for the welfare of the people as a whole irrespective of
their social status, subsequently Article 14-18 provides for equality of status and opportunity.
After equality, the constitution regards liberty of thought, expression, belief, faith and worship to be
an essential part in the development of an individual and Nation and therefore the preamble itself
promises to ensure the same to its citizens and subsequently Article 19, 2520 make provisions for
18
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.
19
Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461
20
Article 25. Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to
freedom of conscience and the right freely to profess, practice and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with
religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to
all classes and sections of Hindus
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safeguarding liberty. Therefore, if we want to impliedly ascertain from the intentions of the framers
of constitution we must see the goal setter of the constitution which is the Preamble i.e., how
equality has been shown the powerhouse of all the fundamental rights in the constitution.
2.2 ARTICLE 21 AS THE HEART AND CORE OF FUNDAMENTAL RIGHTS.
That in the words of Justice Bhagwati “Article 21 embodies a constitutional value of supreme
importance in a democratic society”.21Furthermore, Justice Iyer characterized Article 21 as “the
procedural ‘magna carta’ protective of life and liberty”.
That is why during proclamation Emergency Article 21 cannot be suspended.22 In Article 21 many
interpretations are a perfect example of the transformative character of constitution of Indica. The
judiciary has attributed wider connotations and meaning to Article 21,23 extending beyond the
constitution makers imagination. The Right to Life is undoubtedly the core of all fundamental rights
because if we isolate right to life from the fundamental rights, it would be a huge crevasse in the
idea of fundamental rights, pertinent to the fact that we cannot live without right to life as a human
being and it includes all those aspects of life which makes a human life meaningful, complete and
worth living. Equality, Freedom, Religion cannot be pursued by absence of life but only if there is
Right to Life, therefore Right to Life is the heart and core of all the fundamental rights.
ISSUE NO 3. THE AUTHOR’S RIGHT TO FREEDOM AND SPEECH AND EXPRESSION
DOES NOT VIOLATE THE GENERAL STANDARD OF MORALITY OR DECENCY
ESTABLISHED BY THE COMMUNITY.
Court of Indica that the author’s right to freedom of speech and expression does not violate the
general standards of morality or decency established by the community as provided under Article19
(2) of the Constitution of Indica.
3.1 THE POETIC VERSES OF THE PETITIONER DO NOT FALL UNDER THE
CATEGORY OF OBSCENITY.
That it is the duty of the state to safeguard morals and to ensure that there is no clash between the
right of an individual to freely express his opinions and such measures that are taken by the state to
21
Francis Coralie Mullin v. Administrator (1981) 1 SCC 608; AIR 1981 SC 746
22
Article 359. Suspension of the enforcement of the rights conferred by Part III during emergencies
(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any
court for the enforcement of such of the rights conferred by Part III (except Article 20 and 21) as may be mentioned in
the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain
suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the
order.
23
Justice K. S. Puttaswamy v. Union of India, AIR 2017 SC 4161; National Legal Service Authority v. Union of India
(2014) 5 SCC 438; A.K. Roy v. Union of India, AIR 1982 SC 710; Animal Welfare Board of India v. A. Nagaraja and
ors. (2014) 7 SCC 547.
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safeguard these measures. Therefore, obscenity24becomes a subject of constitutional interest. To
determine whether books, utterances, obscene material, obscene acts, writings or any piece of arts
falls under the domain of obscenity the Hon’ble Courts have laid down certain tests to determine
obscenity. The Supreme Court in Ranjit D. Udeshi v. State of Maharashtra25 has stated that
obscene means offensive to modesty or decency, lewd, filthy, repulsive and it was held that the test
to adopt in our country is that “obscenity without the preponderating social purpose or profit cannot
have the constitutional protection of free speech and expression and only if obscenity is dealing
with sex in a manner appealing to the carnal side of human nature will amount to an offence”.
If we see the poetic verses of Marwadan with obscenity in the light of the aforesaid judgement, the
poetic verses were without obscenity, as a whole it was a work of art having no preponderating
social purpose or profits therefore this gives constitutional protection of free speech and expression
to the poet under our constitution. Further Justice Brennan in R. v. Marine Secker Qarburg
Ltd.26 Observed that “the portrayal of sex example in art, literature and scientific works is not itself
sufficient reason to deny materially the constitutional protection of freedom of speech and press”.
And thus, the poetic verses of Marwadan do not fall under the category of obscenity.
In, the case of Devidas Ramchandra Tuljapurkar v. State of Maharashtra27contemporary
community standard test was laid down in which the Hon’ble Supreme Court stated that, “artistic
and the poetic works about historical figures must be treated with the greater concern” but in the
present case, the petitioner has not depicted any historical figure in the poetic verses which relates
to the female goddess of a particular community. Therefore, the poetic verses are not violative of
the contemporary community standard test.
3.2 THE POETIC VERSES ARE NOT AGAINST THE LEGAL MAXIM “ACTUS NON
FACIT REUM NISI MENS SIT REA”
That the poetic verses as a whole are a work of art and does not render a guilty intention of the poet
to offend public morals and decency which is not against the legal maxim “Actus non facit reum
nisi mens sit rea”28 therefore the story must be read as a work of fiction having no intention to
harm any religious feelings of any community, hence the story must be read as a whole and not in
isolation with the intimate verses.
3.3 THE CONCEPTION OF MORALITY OR DECENCY DIFFERS FROM TIME TO
TIME.
The way to express something or to say something should be a decent one. It should not affect the
morality of society adversely. Our Constitution has taken care of this view and inserted decency and
24
The Oxford dictionary defines obscene “as offensive or disgusting by accepted standard of morality and decency”.
25
Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881, 887: (1965) 1 SCR 65.
26
R. v. Marine Secker Qarburg Ltd1954 2 all E.R. 683
27
Devidas RamchandraTuljapurkar v. State of Maharashtra (2015) 6 SCC 1, 84 & 85
28
R. Balakrishna Pillai v. State of kerala, AIR 1996 SCC (1) 478.
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morality as a ground under Article 19 (2) of Constitution of Indica. “Whether the tendency of the
matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral
influences, and into whose hands a publication of this sort may fall”.29
That Marwadan in the poetic verses characterized beauty of a women fictional character by
describing her body parts and sexual act not in a derogatory or demeaning manner against the
modesty of a women which prima facie does not amount to any vulgarity but shows the expression
of love with her paramour, the poetic verses must be seen with a broader perspective showing love
and affection and not with taboo culture of orthodox vision.
That the Courts have time and again indicated that the concept of obscenity would change with
passage of time and what might have been obscene at one point of time would not be considered as
obscene at a later period.30 Therefore, we can draw a conclusion that the poetic verses were mere
showing an expression of love, which is no offence and cannot be depicted as immoral or indecent
on the ground that a community which has no nexus with the female depicted in the poetic verses is
visioning some poetic verses with the spectacles of orthodoxism.
ISSUE NO. 4. THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION CANNOT BE
SENTIMENTS OF A PARTICULAR COMMUNITY.
Hon’ble Court of Indica that under Article 19 (2) of the Constitution of Indica the author’s right to
freedom of speech and expression cannot be curtailed on the grounds that it is violative of religious
sentiments of Xatali community.
4.1 THE FREEDOM OF SPEECH AND EXPRSSION CANNOT BE CURTAILED ON
MERE GROUND OF BEING VIOLATIVE TO RELIGIOUS SENTIMENTS OF A
PARTICULAR COMMUNITY (ARTICLE 19 AND 25).
That free speech has to be balanced against the contemporary community standards of morality
when it comes to penalizing obscene acts or contents.
In the present case, the poem is a work of art and comes under the genre of fiction. The poem was
meant to showcase talent without any deliberate and malicious intentions to hurt religious
sentiments of a particular community. Pertinent to this fact, that the members of Xatali community
are reading the poetic verses in question with isolation to rest of the verses but if we read the whole
poem as a work of fiction there is no linkage of the poem with the scriptures of Xatali community.
29
R. v. Hicklin (1868) 3 Q.B. 360, 371.
30
Aveek Sarkar and anr. v. State of W.B and anr. AIR 2014 SC 1495; M.F. Hussain v. Raj Kumar Pandey,2008 CrLj
4107
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The Supreme Court in Manmeet Singh vs State of Gujarat31held that freedom of speech and
expression cannot be curtailed on the ground of religious freedom and sentiments, especially when
there is nothing objectionable thing in the said expression. Further the Supreme Court in Ranjit D.
Udeshi v. State of Maharashtra32 held that if any novel i.e., work of fiction did not offend public
morals if read as whole, it was a work of art and finally it was done with a bona fide intention and
not with a guilty intention to corrupt the minds of public at large, therefore the petitioner published
his work to showcase his talent without having any guilty intention to hurt the religious sentiments
of a particular community.
Thus, the poem by the petitioner does not violate the general criminal doctrine of “actus non facit
reum nisi mens sit rea” in exercise of his Fundamental Right i.e., right to freedom of speech and
expression.
4.2 THE PETITIONER CANNOT BE PROSECUTED UNDER SECTION 295-A OF
INDICA PENAL CODE, 1860.
That no court can take cognizance of an offence under the section except with the previous sanction
of the concerned government under section 196 (1) C.r.P.c., 197333. In Manojrai v. State of M.P.
34
the Hon’ble Supreme Court quashed the proceedings because there was no sanction from the
concerned government.
Therefore, our humble submission to this Hon’ble court is that the poet should not be prosecuted
under section 295-A of IPC, 1860 because of the fact that there was no deliberate and malicious
intention from his side to hurt the religious sentiments of Xatali community and Section 295-A of
IPC, 1860 does not penalise every act of insult but penalises only deliberate act of insult so that
even if any expression in fact causes insult, that expression is not an offence if insult offered is
unwilling or unintended35 and if somebody is to be prosecuted u/s 295 of IPC following
ingredients36are to be satisfied viz., a person
(i) By written words
(ii) With deliberate and malicious intention.
(iii) Of outraging religious feelings
31
Manmeet Singh vs State of Gujarat 11513/2016
32
AIR 1965 SC (881): (1965) 1 SCR 6586
33
Section 196 of C.r.P.c Prosecution for offences against the State and for criminal conspiracy to commit such offence.
(1) No Court shall take cognizance of-
(a) any offence punishable under Chapter VI or under section 153A, of Indian Penal Code, or 2 Section 295 A or sub
section (1) of section 505] of the Indian Penal Code (45 of 1860) or
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860), except with the previous
sanction of the Central Government or of the State Government.
34
AIR 1999 SC 300: 1999 Cr LJ 470; Shalibhadra Shah and ors. v. Swami Krishna Bharati and Anr., 1981 Cr LJ 113
(Guj).
35
Jayamala v Home Secretary, govt. of Jammu & Kashmir & ors., 2013 Cr LJ 622
36
Sujato Bhadra v State of WB, 2006 Cr LJ 368(Cal); Acharya Rajneesh v Naval Thakur, 1990 Cr LJ 2511(HP)
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(iv) Of any class of citizens of indica
(v) Insults or attempts to insult the religion or religious beliefs of that class.
In the present case, as mentioned above, the petitioner through his written words has not in any way
intended to outrage religious feelings of any class of citizens of State of Jatala nor has he insulted or
intended to insult the religion or religious beliefs. Therefore, no ingredients of the said section are
fulfilled in our case.
4.3 RELIGION CANNOT BE A HINDRENCE TO TALENT AND IF IT DOES SO THAT
WOULD BE AGAINST THE IDEA OF DEMOCRACY.
That our country has a rich heritage and a well glorified history of legal development and the
intention of the framers of the constitution while framing the constitution was to delete every single
clip of colonial past and make a country where each and every citizen has freedom of speech and
expression so that there is no hindrance in the development of an individual subsequently, If we
take inspiration from the struggle Nelson Mandela fighting against the Apartheid system in South
Africa he once quoted “For to be free is not merely to cast off one's chains, but to live in a way that
respects and enhances the freedom of others.”
Therefore, the essence of religion is to respect and enhance the freedom of others so that there is no
hindrance in the development of an individual merely by restricting their freedom to express ideas
and opinions by showcasing their talent and, restricting the free flow of opinions and ideas is in
itself against the ideals of democracy. The courts have often settled the debate between morality
and freedom in favour of artistic freedom. The Hon’ble Supreme Court held that “the art is often
provocative and is not meant for everyone- material cannot be labeled as obscene simply because it
is unpalatable to one section of society”.37
ISSUE NO. 5. WHETHER THE RIGHT TO ACCESS TO THE INTERNET IS A
FUNDAMENTAL RIGHT?
Hon’ble Court of Indica that the right to access internet is a fundamental right by virtue of Article
21 of the Constitution of Indica.
5.1 RIGHT TO ACCESS INTERNET IS AN INTEGRAL PART OF FUNDAMENTAL
RIGHTS BY VIRTUE OF ARTICLE 19 AND ARTICLE 21.
The digital revolution is most important transformative event of contemporary times internet plays
a key role in development of economy as we are living in an era where internet is an essential part
of an individual’s life. The current pandemic further accelerated the shift to virtual space, due to
this shift it has become imperative to recognize the importance of internet. It should come in the
37
Perumal Mururgan v. State of Tamil Nadu AIR 2016 SC 486
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form of legislation firstly, to put an affirmative obligation on the govt. to eradicate the digital
divide, and to ensure that one’s access to the internet is not restricted arbitrarily.
Keeping in view the above facts and circumstances the petitioner humbly submits that internet is
not only a simple human right but is a Fundamental Right by virtue of Article 19, 21 and 21A. As
per Justice D.Y. Chandrachud: - “A statutory right can be modified, curtailed or annulled by a
simple enactment of legislature. In other words, statutory rights are subject to compulsion of
legislative majorities. The purpose of infusing a right with a constitutional element is precisely to
provide it an essence of immunity from popular opinion and, as its reflection, from legislative
annulment. Constitutionally protected rights embody the liberal beliefs that the personal liberty of
individuals is so sacrosanct that it is necessary ensconce them in a protective shell that places them
beyond the pale of ordinary legislation. To negate a constitutional right on the ground that there is
an available statutory protection is to invert constitutional theory. When a Right is conferred with
an entrenched constitutional status in Part III, It provides a touch stone on which the validity of
executive decision making can be accessed and the validity of law can be determined by judicial
review”.38 In Anuradha Bhasin v. Union of Indian39Supreme Court held that right to exercise any
carrier or to carry on any trade, business or occupation on the internet platform enjoys constitutional
rights and is therefore in dispensable under appropriate constraints under Article 19 of Constitution.
Suspending Internet access not only obstruct Online Enterprises but also obstructs a person from the
source of living. Also, as held in Maneka Gandhi v. UOI40 a statue restricting personal liberty to a
citizen shall follow the inspection of the Article 14, 19 and 21 which are the Golden Triangle of
Indica’s Constitution and are thus fundamentals to Human Rights.
No Fundamental Right is absolute. Restriction over the use of internet must only be placed after
certain legal procedures are followed back by logical reasoning and reasonableness. In the present
case the fact that the petitioner had expressed his thoughts through his poem which resulted in
demonstrations and protests was not enough threat to public order. How exactly a protest is a threat
to public order needs to be reasoned out, because protests are a democratic and constitutional rights
to every Citizens of indica, just the mere holding of a protest does not by itself constitutes a threat
to public order. Therefore, the state in shutting down the Access of internet to public has acted
arbitrarily violating the citizens fundamental right to access the internet.
5.2 RIGHT TO ACCESS INTERNET HAS BEEN DECLARED AS A HUMAN RIGHT BY
THE UNITED NATIONS HUMAN RIGHTS COUNCIL.
As stated above, the UN General Assembly Human Rights council and various other countries such
as France, Spain, Costa Rica, Finland, France, Estonia, Greece have declared Internet access as a
38
K.S. Puttaswamy v. UOI AIR 2017 SC 4161
39
(2020) 1 MLJ 574
40
1978 AIR 597, 1978 SCR (2) 621.
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basic Human Right. That in 2016, The United Nations Human Rights Council’s General Assembly
articulated access to internet as an essential Human Right and also stated that internet is a catalyst
in the enjoyment of Human Rights and it is a medium by which right to freedom of expression can
be exercised , it can only serve its purpose if states assume their commitment to develop effective
policies to attain universal access to the internet because of the fact that internet has become an
indispensable tool for realizing a range of human rights and therefore universal access to internet
should be a priority of all states.In the 17th session of United Nation General Assembly (Human
rights Council)41it was stated in recommendations of this report that “internet is an indispensable
tool for combating inequality, accelerating development and human progress”. The meaningful
exercise of the right to freedom of speech and expression under Article 19 on the internet is
intrinsically linked to the availability of infrastructure which in-turn is influenced by social and
economic issues. The Court in S. Rengarajan and ors. v. P. Jagjeevan Ram42 observed that “The
fundamental freedom under Article 19 (1) (a) can be reasonably restricted only for the purposes
mentioned in Article 19 (2) and the restriction must be justified on the anvil of necessity and not the
quicksand of convenience or expediency”. Further the freedom of expression can’t be suppressed
on account of threat of demonstration and processions or threats of violence which would
tantamount to negation of the Rule of Law and the surrender to black mail and intimidation.
Therefore, the state cannot use its powers under the Acts43to suppress the legitimate expressions of
opinion or grievance or exercise of any democratic rights.
5.4 RIGHT TO ACCESS INTERNET IS AN INTEGRAL PART OF FUNDAMENTAL
RIGHT BY VIRTUE OF ARTICLE 19, ARTICLE 21 AND ARTICLE 21A.
That under Article 19 of Constitution of Indica protection is guaranteed to certain rights regarding
41
Agenda Item 3 (Promotion and protection of all human rights, civil, political, economic, social and cultural rights,
including right to development), in a report of the Special Rapporteur on the promotion and protection of right to
freedom of opinion and expression
42
1989 (2) SCC 574
43
Sec.144 of C.r.P.c. Power to issue order in urgent cases of nuisance of apprehended danger.
(1) In cases where, in the opinion of a District Magistrate, a Sub- divisional Magistrate or any other Executive
Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under
this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating
the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a
certain act or to take certain order with respect to certain property in his possession or under his management, if such
Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any
person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot,
of an affray.; Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017; sec. 5 (2)
of Telegraph Act, 1855 (2) On the occurrence of any public emergency, or in the interest of the public safety, the
Central Government or a State Government or any officer specially authorized in this behalf by the Central Government
or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and
integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing
incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or
class of messages to or from any person or class of persons, or relating to any particular subject, brought for
transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained,
or shall be disclosed to the Government making the order or an officer thereof mentioned in the order: Provided that the
press messages intended to be published in India of correspondents accredited to the Central Government or a State
Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.
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freedom of speech and expression similarly under Article 21 protection of life and personal liberty
is guaranteed which embarks in itself that right to information is a fundamental right similarly if we
see internet through the same spectacle, internet is an indispensable tool to provide information to
every human and it also acts as a catalyst for the enjoyment of Human Rights and it is also a
medium by which right to freedom of expression can be exercised which comes under the scope of
Article 19 and 21 of the Constitution of Indica. The apex Court held that Article 19(1) (a) where
freedom means the right to express one’s opinion freely by words of mouth, writing, printing,
picture or in any another manner. Internet aids the citizen to express their opinions on a global
platform and therefore is covered under the ambit of Article 19(1) (a) of the Constitution of Indica.
Similarly, in light of the aforesaid judgment the apex Court observed that internet is an imperative
tool for trade and commerce and plays an important role in carrying e-commerce business as it
provides a virtual platform to a businessman which is more affordable and hence enjoys
constitutional protection under Article 19(1) (a) and Article 19(1) (g) and subsequently enjoys
constitutional protection under Article 21 of the Constitution of Indica, as right to access internet is
part of right to education under Article 21-A44 and the internet access not only enhances the
opportunities of students to acquire knowledge but also enhances the quality of education therefore
falls under the ambit of Article 21 of the Constitution of Indica. That access to internet has become
a basic necessity for students as well as to individuals seeking information and to provide the
accessibility of internet to every individual is the constitutional duty of the state. In the opinion of
the Kerala High Court, the Hon’ble Court stated that right to access internet is part of right to
education under Article 21-A and the internet access not only enhances the opportunities of students
to acquire knowledge but also enhances the quality of education.45
ISSUE NO. 6. WHETHER THE 2019 AMMENDMENT TO THE UNLAWFUL
ACTIVITIES (PREVENTION) AMENDMENT ACT IS MANIFESTLY ARBITRARY AND
VIOLATIVE OF ARTICLE OF 14 AND 21 CONSTITUTION OF INDICA?
That the counsel on the behalf petitioner humbly submits before the Hon’ble Supreme Court of
Indica that 2019 Amendment to the unlawful activities (Prevention) Amendment Act is manifestly
arbitrary and violative of Article of 19 and 21of the Constitution. Therefore, challenging the
Constitutional validity of section 3546 and 36 of 2019 Amendment to the Unlawful Activities
44
Article 21A Right to Education.- The State shall provide free and compulsory education to all children of age of six to
fourteen years in such a manner as State may, by law, determine.
45
Faheema Shirin R. K V State of Kerala and ors. WP (C) No. 19716 Of 2019 (L)
46
Section 35. Amendment of Schedule, etc.-(1) The Central Government may, by order, in the Official Gazette,-(a) add
an organisation to the First Schedule or the name of an individual in the Fourth Schedule; (b) add also an organisation
to the First Schedule, which is identified as a terrorist organisation in a resolution adopted by the Security Council
under Chapter VII of the Charter of the United Nations or the name of an individual in the Fourth Schedule, to combat
international terrorism; (c) remove an organisation from the First Schedule; or the name of an individual in the Fourth
Schedule (d) amend the First Schedule in some other way or the Fourth Schedule. (2) The Central Government shall
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(Prevention) Amendment Act 1967, to the extent that it applies to an individual on the ground that it
infringes the fundamental rights guaranteed under Article 14 and 21.
6.1 THE AMENDMENT VIOLATES THE FUNDAMENTAL RIGHTS OF INDIVIDUAL
UNDER ARTICLE 14 OF THE CONSTITUTION OF THE INDICA
That the Amendment is unjust, unreasonable and manifest the arbitrary under Article 14 of the
Constitution, the petitioner has challenged the Constitutional validity of section 35 and section 3647
of the 2019 Amendment to The Unlawful Activities (Prevention) Amendment Act because this
Amendment gives unfettered powers to the central government to declare an individual as a terrorist
only if it believes that it is involved in terrorism i.e., arbitrary and violates Article 14 in as much as
it is manifestly arbitrary and gives unbridled powers to the central government to declare an
individual as terrorist. It is a blanket power with no specific guidelines. The statement of the object
and reasons of the Act Indicates that the Amendment has been brought in to give effect to various
Security Council resolutions but the amendment has violated international covenant on civil and
political rights and universal declaration of human rights.
6.2 “DOCTRINE OF MANIFEST ARBITRARINESS” AS A GROUND FOR THE
JUDICIAL REVIEW FOR LEGISLATIVE ACTION
The applicability of ‘Arbitrariness’ as the ground for legislative review has been Res integra for a
very long period of time until settled in case of Shayra Bano v. UOI48. The doctrine of ‘Manifest
exercise its power under clause (a) of sub-section (1) in respect of an organisation or an individual only if it believes
that such organisation or individual is involved in terrorism. (3) For the purposes of sub-section (2), an organisation or
an individual shall be deemed to be involved in terrorism if such organisation or individual- (a) commits or participates
in acts of terrorism, or (b) prepares for terrorism, or (c) promotes or encourages terrorism, or (d) is otherwise involved
in terrorism. (4) The Central Government may, by notification in the Official Gazette, add to or remove or amend the
Second Schedule or Third Schedule and thereupon the Second Schedule or the Third Schedule, as the case may be, shall
be deemed to have been amended accordingly. (5)- Every notification issued under sub section (1) or sub section (4)
shall, as soon as may be after it is issued, be laid before Parliament.”
47
Section 36. Denotification of a terrorist organization or individual - (1) An application may be made to the Central
Government for the exercise of its power under clause (c) of sub-section (1) of section 35 to remove an organisation
from the First Schedule, or as the case may be, the name of the individual from the Fourth Schedule. (2) An application
under sub-section (1) may be made by- (a) the organisation, or (b) any person affected by inclusion of the organisation
in the First Schedule as a terrorist organisation, or(c) any person affected by inclusion of his name in the Fourth
Schedule as a terrorist. (3) The Central Government may prescribe the procedure for admission and disposal of an
application made under this section. (4) Where an application under sub-section (1) has been rejected the applicant may
apply for a review to the Review Committee constituted by the Central Government under sub-section (1) of section 37
within one month from the date of receipt of the order of such refusal by the applicant. (5) The Review Committee may
allow an application for review against rejection to remove an organisation from the First Schedule or the name of an
individual from the Fourth Schedule, if it considers that the decision to reject was flawed when considered in the light
of the principles applicable on an application for judicial review. (6) Where the Review Committee allows review under
sub-section (5) by or in respect of an organization or an individual, it may make an order to such effect. (7) Where an
order is made under sub-section (6), the Central Government shall, as soon as the certified copy of the order is received
by it, make an order removing the organisation from the First Schedule or the name of an individual from the Fourth
Schedule.
48
ShayaraBanov.Union of India and others, (2017) 9 SCC 1.
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Arbitrariness’ was first recognized in case of E.P. Royappa v. State of Tamil Nadu49 but since
then it remained Res Integra for a period of four decades until finally refined and concretized in
Shayara Bano case. The Hon’ble Court observed “Equality is a dynamic concept with many aspects
and dimensions and it cannot be "cribbed cabined and confined" within traditional and doctrinaire
limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and
arbitrariness are sworn enemies; one belongs to the Rule of law in a republic while the other to this
whim and caprice of an absolute monarchy.
Articles 14 strike at arbitrariness in State action and ensures fairness and equality of treatment”.
This observation was soon reiterated in Maneka Gandhi v. Union of India50 where Hon’ble
Bhagwati J observed Article 14 as the, “guarantee against arbitrariness in State action and doctrine
of classification was evolved only as a subsidiary rule for testing or determining whether a
particular state action was arbitrary or not.
“Manifest arbitrariness for invalidating the legislation must be something prescribed to be done by
the legislature, irrationally and/or without adequate determining principle. Also, when something is
done which is excessive and disproportionate, such legislation would be manifestly arbitrary”
therefore, in Ajay Hasia case51 Hon’ble Bhagwati J, speaking for a Constitutional bench,
implicitly equated the level of Article 14 scrutiny in cases of executive and legislative actions in
fact, the concept of reasonableness and non-arbitrariness pervades the entire Constitutional scheme
and is a golden thread which runs through the whole of the fabric of the Constitution.”
In light of one of the cases the Hon’ble held that, “an enactment was arbitrary would not be enough
to assail its Constitutionality”.52 The assertion had to be duly substantiated with some other
Constitutional infirmity in order to meet the judicial threshold of ‘arbitrariness’.53
The question was finally raised before the Constitutional bench, “Whether arbitrariness and
unreasonableness or manifest arbitrariness and unreasonableness, being facets of Article 14 of the
Constitution of India are available not as grounds to invalidate a legislation?” it was held “Where
the legislation is sought to be challenged as being unconstitutional and violative of Article 14 of the
Constitution, the Court must remind itself to the principles relating to the applicability of Article
1454 in relation to invalidation of legislation.
49
E.P. Royappa v. State of Tamil Nadu SC/0380/1973: (1974) 4 SCC
50
Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR (2) 621: Indian Express Newspapers (Bombay) Private
Ltd. and Ors. vs. Union of India and Ors SC/0406/1984.
51
Ajay Hasia and Ors. v Khalid Mujib Sehravardi SC/0498/1980
52
State of Andhra Pradesh v. Mcdowell & Co. and Ors. (1996) 3 SCC 709
53
Subramanian Swamy v. Director, Central Bureau of Investigation & Anr. (2014) 8 SCC 682
54
The two dimensions of Article 14 in its application to legislation and rendering legislation invalid are now well
recognized and these are
(i) discrimination, based on an impermissible or invalid classification and
(ii) excessive delegation of powers; conferment of unanalyzed and unguided powers on the executive, whether in the
Page27 of 33
PETITIONER TC-325_P
The apex court in Shayara Bano vs. Union of India55 made an authoritative pronouncement of the
Supreme Court and it finally brought the controversy to an end. It described ‘manifest arbitrariness’
as “Under Article 14 “the test of manifest arbitrariness” therefore, must be something done by the
legislature capriciously, irrationally and/or without adequate determining principle. Also, when
something is done which is excessive and disproportionate, such legislation would be manifestly
arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as
pointed out by us above would apply to negate legislation as well Under Article 14.”
Therefore, under the 2019 Amendment though Terrorism has not been defined under the Act,
section 15 of the Act defines “terrorist act” and includes an act that is “likely to threaten” or “likely
to strike terror in people”, which per se gives unbridled power to the government to brand any
ordinary citizen including an activist without these acts being actually committed. There is no
requirement of giving reasons.
VAGUENESS OF PROVISIONS
A bare reading of section 35(3) of the Act will make it evident that the provision suffers from the
vice of vagueness. There is no mention of when an individual is deemed to have ‘committed’,
‘prepares’, ‘promotes’ or “otherwise involved in terrorism”. The present sections 35 and 36 also do
not contemplate any oral hearing at any stage which clearly indicates that the discretionary power is
discriminatory and manifestly arbitrary.
In Kartar Singh v State of Punjab,56Constitution bench of this Hon’ble Court held that: - “It is the
basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are
not clearly defined. Vague laws offend several important values. It is insisted or emphasized that
laws should give the person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. “Vague laws may trap the innocent by not providing fair
warning”.
Under the parent Act, u/s 35, the Central Government was empowered to declare by notification an
organization which it believes is involved in terrorism. Membership of such terrorist organization is
an offence u/s 38 (2). Giving support to such terrorist organization is an offence u/s 39 and section
40 makes raising funds for a terrorist organization an offence hence the parent Act had sufficient
provisions to deal with individuals associated with Terrorist organization, the present Amendment
appears to be unnecessary and unwarranted which targets individuals who the Central Government
believes is involved in terrorism and can be subject to wanton abuse.
form of delegated legislation or by way of conferment of authority to pass administrative orders if such conferment is
without any guidance, control or checks, it is violative of Article 14 of the Constitution.”
55
ShayaraBano vs. Union of India SC/1031/2017: (2017) 9 SCC 1.
56
Kartar Singh v State of Punjab AIR 1993 SC 341, 1993 Cri LJ 183, 1993 Supp (2) SCC 740
Page28 of 33
PETITIONER TC-325_P
6.4 UNREASONABLE CLASSIFICATION BETWEEN THE PROCESS OF DECLARING
AN ASSOCIATION AND DECLARING AN INDIVIDUAL AS TERRORIST.
The Amendment provides no safeguards to a person notified as a terrorist. Challenging the
notification in absence of requirement to furnish grounds and oral hearing makes the process
practically inefficacious57. However, the process for declaration of an individual has no such
safeguard. There is no judicial adjudication before a person is declared a terrorist. In fact, the power
to declare a person as a terrorist gives unbridled power to the executive, without any statutory
safeguards; it is unclear what object the Amendment seeks to achieve. There is no reason behind the
classification and it has no nexus with object it seeks to achieve. The safeguards should have been
greater to that provided to an unlawful association under Chapter II and hence absence of any
statutory safeguard makes the provision manifestly arbitrary because the Hon’ble Court held that
“The protection and promotion of human rights under the rule of law is essential in the prevention
of terrorism”58. If human rights are violated in the process of combating terrorism, it will be self-
defeating. “Terrorism often thrives where human rights are violated, which adds to the need to
strengthen action to combat violations of human rights”
6.5 THE 2019 AMENDMENT TO THE UNLAWFUL ACTIVITIES (PREVENTION)
AMENDMENT ACT IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE.
That violation of Natural Justice is infringement of Article 14 per se. A bare reading of section 36
and section 35 of the UAPA would show that there is no oral hearing at any stage. An individual is
not heard before being designated a terrorist; he is also never informed of the grounds on which he
has been designated a terrorist. The denotification process u/s section 36 and section 35 are
rendered otiose because neither there is any oral hearing before the Central Government or the
review committee nor is the individual ever informed of the grounds on which he has been
designated as a terrorist. Hence, being unaware of the reasons for his designation, an individual
cannot effectively challenge the same which is against the principle of natural justice subsequently,
the Constitution Bench of this Hon’ble Court in Union of India v. Tulsiram Patel,59 has observed
that: - violation of a rule of natural justice results in arbitrariness which is the same as
discrimination; where discrimination is the result of State action, it is a violation of Article 14.
Therefore, violation of a principle of natural justice by a state action is a violation of Article 14.
However, Article 14 is not the sole repository of the principles of natural justice. What it does is to
guarantee that any law or State action violating them will be struck down. The principles of natural
57
The declaration of an association as unlawful under chapter II requires the notification to specify the ground on which
notification is issued, section 3 (3) of UAPA provides that for the notification to be effective, the same has to be
confirmed by the Tribunal. Thereafter, u/s 4 the Tribunal has to follow a procedure and is required to decide after notice
to the association to show cause. The inquiry and judicial determination process by the tribunal is provided u/s 5
58
People’s Union for Civil Liberties v. Union of India (2004) 9 SCC 580.
59
Union of India v. Tulsiram Patel (1985) 3 SCC 398.
Page29 of 33
PETITIONER TC-325_P
justice, however, apply not only to legislation but also to State action. In such a case, the principles
of natural justice require that it must decide such matter fairly and impartially. The present sections
35 and 36 also do not contemplate any oral hearing at any stage which clearly indicates that the
discretionary power is discriminatory and manifestly arbitrary.
“LEGAL CERTAINTY”
Article 15 (1) of the United Nations International Covenant on Civil and Political Rights
(ICCPR) and Article 11 of the Universal Declaration of Human Rights (UDHR) enshrines the
principle of “legal certainty”, which requires criminal law to clearly lay out what constitutes an
offence so as to prevent any arbitrary application or abuse. In contrast, UAPA offers an ambiguous
definition of what constitutes a “terrorist act”60which undermines a range of fundamental human
rights and poses a real risk of deliberate misuse. Article 19 of the UDHR and Article 19 of the
ICCPR provide for the right to freedom of expression. The Human Rights Council Resolution 12/16
calls for states to recognize the right to exercise freedom of opinion and expression as one of the
essential foundations of a democratic society. The Constitution of Indica also recognizes this right
under article 19(1) (a).
6.6 THE 2019 AMENDMENT TO THE UNLAWFUL ACTIVITIES (PREVENTION)
AMENDMENT ACT IS VIOLATIVE OF ARTICLE 21 OF THE CONSTITUTION OF
INDICA.
DUE PROCESS OF LAW IS IGNORED WHICH IMPLICITLY TARGETS RIGHT TO
REPUTATION AND DIGNITY
The Amendment infringes upon the right to reputation and dignity which is a fundamental right
under Article 21, without substantive and procedural due process. Notifying an individual as a
terrorist without giving him an opportunity of being heard violates the individual’s right to
reputation and dignity which is a facet of Right to life and personal liberty under Article 21 of the
Constitution. Condemning a person unheard on a mere belief of the Government is unreasonable,
unjust, unfair, excessive and disproportionate and violates due process. A person who is designated
a terrorist, even if he is denotified subsequently faces a lifelong stigma and this tarnishes his
reputation for life.
Additionally, designating a person as a terrorist on a mere belief of the Government is arbitrary and
excessive. A person is never informed of the grounds of his notification so the remedy of
challenging his notification under section 36, provided for in the Act, is rendered practically otiose.
Firstly, the challenge to notification is before the same Central Government that has notified a
60
This very broad definition includes the death of or injuries to any person, damage to any property, an attempt to “over
awe any public functionary” by means of criminal force, and any act to compel the government or any person to do, or
abstain from doing, any act. It is worth noting that the definition also encompasses any act that is “Likely to threaten” or
“likely to strike terror in people,” giving unbridled power to the government to brand any ordinary citizen or activist a
terrorist without these acts actually being committed.
Page30 of 33
PETITIONER TC-325_P
person as a terrorist u/s 36. Thereafter, upon rejection, an application is made to a Review
Committee. No oral hearing has been provided at any stage. There is no requirement of furnishing
to the person designated as a terrorist the grounds of his designation, there is no judicial
determination or adjudication. The Amendment is unjust, unfair and unreasonable and violates
procedural and substantive due process.
This Hon’ble Court in S. Nambi Narayanan v. Siby Mathews61 stated that “The right to the
enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is
necessary to human society. A good reputation is an element of personal security, and is protected
by the Constitution equally with the right to the enjoyment of life, liberty and property”. This
Hon’ble Court in Danial Latifi v Union of India62 held that “right to live with dignity is included
in right to life and personal liberty”.
Therefore, reputation of an individual is an in-segregable facet of his right to life with dignity.
Krishna Iyer, J. giving a concurring opinion in Maneka Gandhi v. Union of India,63 elaborated,
“Procedure established by law”, with its lethal potentiality, will reduce life and liberty to a
precarious plaything’’.
6.8 DOCTRINE OF PRESUMPTION OF INNOCENCE IS A BASIC HUMAN RIGHT AND
THIS AMENDMENT INFRINGES THE INTERNATIONAL CONVENANT ON CIVIL
AND POLITICAL RIGHTS, 1967
The new Amendment is contradictory to principle of “innocent until proven guilty”, therefore
infringes the International Covenant on civil and political rights,1967 and notifying a person as
a terrorist without hearing him or even informing him of the grounds of his notification as a terrorist
violates the presumption of innocence which is a recognized human right because this Hon’ble
Court in Ranjit Singh Brahmajeet Singh Sharma v. State of Maharashtra 64,observed:
“Presumption of innocence is a human right” in this case the Hon’ble court relied on Article 21 in
view of its expansive meaning not only protects life and liberty but also envisages a fair procedure.
Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds
therefore Sub-section (4) of Section 21 must be interpreted keeping in view the aforementioned
salutary principles. Giving an opportunity to the Public Prosecutor to oppose an application for
release of an accused appears to be reasonable restriction but clause (b) of sub-section (4) of
Section 21 must be given a proper meaning.”
Also under the Act, those arrested can be detained for a period of 180 days without even filling a
61
S. Nambi Narayanan v. Siby Mathews, (2018) 10 SCC 804: Kiran Bedi v. Committee of Inquiry, (1989) 1 SCC 494]:
D.F. Marion v. Davis, 55 ALR 171: 217 Ala 16 (1927): (SCC pp. 515, para 25)
62
(2001) 7 SCC 740
63
Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248
64
Ranjit Singh Brahmajeet Singh Sharma v. State of Maharashtra (2005) 5 SCC 294: Narendra Singh v. State of M.P.
[(2004) 10 SCC 699: 2004 SCC (Cri) 1893], SCC para 31.
Page31 of 33
PETITIONER TC-325_P
charge sheet, therefore directly violating Article 21 of the Constitution.
The 2019 amendment to UAPA is violative to Article 665 and 966 of International Covenant on civil
and political rights,1967. However, it is submitted before this Hon’ble Court that essential human
and Constitutional rights of individuals must not be compromised.
Also, the reversal of the burden of proof in UAPA violates the right to presumption of innocence as
set out under article 14(2) ICCPR and article11(1) UDHR which state that every person charged
with a criminal offence is entitled to be presumed innocent until proven guilty according to law.
6.9 BAIL PROVISIONS IN THE 2019 AMENDMENT TO THE UAPA IS VIOLATIVE OF
ARTICLE 21&22 OF THE CONSTITUTION OF INDICA
‘Bail is a rule, jail is an exception67, Justice Krishna Iyer, laid it as a fundamental right guaranteed
by the constitution of Indica, but under UAPA it seems ‘Jail is the rule, bail is an exception’ as the
provisions of S. 43D (5) makes bail difficult to secure, since it required the Court to assess guilt
only by looking at the charge sheet prepared by the National Investigation Agency (NIA) and the
accused cannot provide any evidence outside the chargesheet in their defense. In Union of
India v. K.A. Najeeb68it recognised that bail under UAPA was an exception and courts are expected
to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt
down where there is no likelihood of trial being completed within a reasonable time therefore,
breaching the constitutional right to speedy trial.
UNDERMINING FEDERALISM AND EXCESSIVE CONCENTRATION OF POWERS IN
ONE AUTHORITY
Legislative power in the state of Indica is divided between centre and states which ensures that
there is no centralization of powers which is the essence of federalism in our country but the
aforesaid amendment provides for the concentration of power in one investigating agency which is
itself being controlled by the central government and the govt. is also empowered to declare an
individual as a terrorist thus, it can be inferred that “the one who has a power is always right”.
65
Article 6. states that every human being has the inherent right to life, this right shall be protected by the law and no
one shall be arbitrarily deprived of his life. Of course, there is compelling state interest in countering terrorist
66
Article 9. (1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as
established by law.
(2) Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly
informed of any charges against him.
(3) Anyone arrested or detained or on a criminal charge shall be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall
not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to
proceedings, and, should occasion arise, for execution of the judgement.
(4) Anyone who is deprived of liberty by arrest or detention shall be entitled to take proceedings before a court, in order
that court may decide without delay on lawfulness of his detention and order his release if the detention is not lawful.
67
State of Rajasthan vs. Balchand alias Baliya(AIR 1977 2447)
68
Union of India v. K.A. Najeeb (2021) 3 SCC 713
Page32 of 33
PETITIONER TC-325_P
PRAYER
Wherefore, in the light of the provisions of the Constitution, argument advanced, legal,
principles, judicial precedents international conventions cited above, it is most humbly
prayed and implored before the Honorable Supreme Court, that it may graciously be
pleased to adjudge and declare: -

❖ THAT XATALI COMMUNITY MEMBERS MANAGEMENT AND (MANAGEMENT
AND REGULATIONOF CONDUCT) ACT, 2022 IS ULTRA VIRES AND SHALL BE
DECLARED AS UNCONSTITUTIONAL.
❖ THAT AUTHOR’S RIGHT TO FREEDOM AND SPEECH AND EXPRESSION
VIOLATES THE GENERAL STANDARD OF MORALITY OR DECENCY
ESTABLISHED BY THE COMMUNITY.
❖ THAT RIGHT TO FREEDOM OF SPEECH AND EXPRESSION CAN BE
SENTIMENTS OF PARTICULAR COMMUNITY.
❖ THAT RIGHT TO ACCESS TO THE INTERNET IS A FUNDAMENTAL RIGHT.
❖ THAT 2019 AMMENDMENT TO THE UNLAWFUL ACTIVITIES (PREVENTION)
AMENDMENT ACT SHOULD MANIFESTLY ARBITRARY AND VIOLATIVE OF
ARTICLE OF 14 AND 21 CONSTITUTION OF INDICA.
WE PRAY THAT OUR HUMBLE SUBMISSION SHALL BE ACKNOWLEDGED BY THIS

HON’BLE COURT FOR THE SAME THE PETITIONERS WOULD BE HIGHLY OBLIGED
AND SHALL BE DUTY BOUND FOREVER.
SD/-
(COUNSEL FOR THE PETITIONERS)
Page33 of 33

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TC-325_P

3rd HPNLU NATIONAL MOOT COURT COMPETETION, 2022

W.P. No. /2022

ABHILASHINI THROUGH CHITRAKALA……………………….……… PETITIONER

STATE OF JATALA & ANR ….……………………………………………… RESPONDENT

XATALI COMMUNITY THROUGH KAPALA XATALI ........................ PETITIONER

UNION OF INDICA & ORS……. ............................................................... RESPONDENT

MARWADAN .................................................................................................. PETITIONER

UNION OF INDICA ...................................................................................... RESPONDENT

MICHAEL JOSEPH ....................................................................................... PETITIONER

UNION OF INDICA. ..................................................................................... RESPONDENT

PETITION INVOKED UNDER ART. 32 OF THE CONSTITUTION OF INDICA

Sr. No. CONTENTS Page No.

2. INDEX OF AUTHORITIES 3-6

4. STATEMENT OF FACTS 9-10

6. SUMMARY OF ARGUMENTS 12-13

8. THE XATALI COMMUNITY MEMBERS (MANAGEMENT AND 14-17

9. THERE IS A HIERARCHICAL SCHEME IN THE IDEA 17-18

S.NO. TITTITLE CASE CITATION PAGENO.

1. A.K. Gopalan v. State of Madras AIR 1950 SC 27 15

6. Animal Welfare Board of India v. A. (2014) 7 SCC 547. 18

24. Kiran Bedi v. Committee of Inquiry (1989) 1 SCC 494 31

25. M.F. Hussain v. Raj Kumar Pandey 2008 CrLj 4107 20

27. Manojrai v. State of M.P AIR 1999 SC 300: 1999 21

28. Manmeet Singh vs State of Gujarat C/SCA/11513/2016 21

29. Modern Dental College and Research (2016) 7 SCC 353 14

31. N.B. Khare v. State of Delhi AIR 1950 SC 211, 217: 15

38. R. v. Marine Secker Qarburg Ltd. 1954 2 all E.R. 683 19

40. R.C. Cooper v. Union of India AIR 1970 SC 564 16

41. R.K. Garg v. Union of India AIR 1981 SC 2138 16

51. State of Bombay v. F.N. Balsara AIR 1951 SC 318 15

52. State of Gujrat and ors. v. Justice Amrit 2013 4 SCC 47 15

57. Union of India v. K.A. Najeeb (2021) 3 SCC 713 32

58. Union of India v. Tulsiram Patel (1985) 3 SCC 398. 29

1. DD Basu, Shorter Constitution of India, Volume I-II, (14th Edition,2013).

2. V.N. Shukla, Constitution of India, (13th Edition,2019).

1. Constitution of India, 1950

2. Indian Penal Code, 1860

3. Indecent Representation Of Women (Prohibition) Act, 1986

4. The Code Of Criminal Procedure, 1973

5. The Unlawful Activities (Prevention) Amendment Act, 2019

1. Petitioners for the purpose of this memorandum shall stand for: -

BACKGROUND OF THE CASE

CIRCUMSTANCES LEADING TO DISPUTE

MATTER BEFORE HON’BLE SUPREME COURT

1. WHETHER THE XATALI COMMUNITY MEMBERS (MANAGEMENT AND

2. WHETHER THERE IS A HIERARCHICAL SCHEME IN THE IDEA OF

3. WHETHER THE AUTHOR’S RIGHT TO FREEDOM AND SPEECH AND

4. WHETHER THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION BE

5. WHETHER THE RIGHT TO ACCESS TO THE INTERNET IS A FUNDAMENTAL

6. WHETHER THE 2019 AMENDMENT TO THE UNLAWFUL ACTIVITIES

I. WHETHER THE XATALI COMMUNITY MEMBERS (MANAGEMENT AND

II. WHETHER THERE IS A HIERARCHICAL SCHEME IN THE IDEA OF

III. WHETHER THE AUTHOR’S RIGHT TO FREEDOM AND SPEECH AND

IV. WHETHER THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

V. WHETHER THE RIGHT TO ACCESS TO THE INTERNET IS A

VI. WHETHER THE 2019 AMMENDMENT TO THE UNLAWFUL ACTIVITIES

ISSUE NO. 1. THE XATALI COMMUNITY MEMBERS (MANAGEMENT AND