MEMORIAL FOR RESPONDENT

TEAM CODE SSL13

4THJUS AMICUS NATIONAL MOOT COURT COMPETITION, 2016

BEFORE THE HON’BLE SUPREME COURT OF CROTINA

SPECIAL LEAVE PETITIONNO………………./2016
(UNDER ART.136 OF THE CONSTITUTION OF CROTINA)

IN THE PROCEEDING BETWEEN

STUDENTUNIONLEADER&ORS. ……………APPELLANT
V.

STATEOF VALERIA…………………………………..RESPONDENT

CLUBBED WTH TWO OTHER PETITIONS

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT,

COUNSEL FOR THE RESPONDENT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………… 3

INDEX OF AUTHORITIES

CASES CITED……………………………………………… ……. 6

BOOKS AND ARTICLES………………………………………… 7

STATUTES………………………………………………………… 8

WEBSITES………………………………………………………… 8

STATEMENT OF JURISDICTION……………………………………. 9

SUMMARY OF FACTS………………………………………………… 10

ISSUES RAISED…………………………………………………………. 13

SUMMARY OF ARGUMENTS………………………………………… 14

ARGUMENTS ADVANCED…………………………………………… 15

ISSUE I……………………………………………………………………. 15

ISSUE II…………………………………………………………………… 16

ISSUE III………………………………………………………………… 18

ISSUE IV………………………………………………………………… 20

ISSUE V…………………………………………………………………. 23

ISSUE VI………………………………………………………………… 35

PRAYER………………………………………………………………… 37

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LIST OF ABBREVIATIONS

 § - Section
 ¶ - Paragraph

 A.C. – Appellate Court

 A.G. – Attorney General
 A.I.R. – All India Reporter
 All E.R. – All England Reports
 Art. - Article
 Cl. – Clause
 Co. – Company
 Corp. – Corporation
 ECHR – European Convention on Human Rights
 Govt. - Government
 H.C. – High Court
 Hon. – Honorable
 ICCPR – International Convention on Civil and Political Rights
 Ltd – Limited
 P.C. – Privy Council
 S.C. – Supreme Court
 S.C.C. – Supreme Court Cases
 S.C.R. – Supreme Court Reports
 SEBI – Securities and Exchange Board of India
 U.S. – United States
 UDHR – Universal Declaration of Human Rights
 Vol. - Volume

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CASES CITED

 A.G. v. B.B.C, 1981 A.C. 303 (H.L.)…………………………………………………....27

 A.K. Gopaloan &anr. v. Noordeen, (1969) 2 S.C.C 734 : A.I.R. 1970
S.C.1694………………………………………………………………………..………..28
 A.K.Roy v. Union of India, (1982) 1 S.C.C. 271: A.I.R. 1982 S.C. 710………………..23
 A.R. Antuly v. R.S. Nayak, (1988) 2 SCC 602: AIR 1988 SC 1531……………………15
 Advocate Manual P.J. v. State, 2012(4) K.L.T. 708…………………………………...21
 Ahmedabad Municipality v. Raman Lal, (1975) 1 SCC 778: AIR 1975 SC 1187……..31
 Ambard v. A.G. of Trinidad and Tobago, 1936 A.C. 322: (1936) All. E.R. 704(P.C.)...24
 Ashok Kumar v. State of Haryana, (2010) 12 SCC 350: AIR 2010 SC 2839………….16
at 44…………………………………………………………………………………......18
 Avtar Singh v. State of Punjab, (2002) 7 SCC 419: 2002 SCC (Cri.) 1769…………….16

 Babul Parate v. State of Maharashtra, A.I.R. 1961 S.C.

884…………………………………………………………………………….………….30
 Balakrishna Iyer v. Ramaswamy Iyer, 1964 (7) SCR 838: AIR 1965 SC 195……….…14

 Bennett Coleman v. Union of India, A.I.R. 1973 S.C.

106……………………………………………………………………………………….30
 Chamanlal v. State of Punjab, (1970) 1 SCC 590: AIR 1970 SC 1372…………………17

 Collector of Customs v. Sampathu Chettty, A.I.R. 1963 S.C.

316………………………………………………………………………………..…….30
 D.F. Marion v. Davis, (1989) 1 SCC 494: AIR 1989 SC 714………………………..…15

 D.N. Prasad v. Principal Secretary, 2005 (2) A.L.D. 451.

.........................................................................................................................................26
 Durga Shankar v. Reghu Raj, (1955) 1 SCR 267: AIR 1954 SC 520…………………..14

 Express Newspapers v. Union of India, A.I.R. 1958 S.C. 578.

………………………….………………………………………………………………30
 Francis Coralie Mullin v. U.T. of Delhi, (1981) 1 SCC 608: AIR `1981 SC 746….….33
 Globe Newspaper Co. v. Superior Court, 457 U.S. 596………………………………27
 H.Singh v. State of Punjab, 1966 Cri.L.J. 3454……………………………………...16

 Harakchand v. Union of India, A.I.R. 1970 S.C.

1453………………………………………………………………………………..…30
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 Inguva Mallikarjuna Sharmg v. State of A.P., 1978 Cri.L.J. 392………………..…...22

 Iqbal Singh v. State (Delhi Admn), AIR 1977 SC 2437……………………………..29
 Jamshed. H. Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214: AIR 2004
SC 1815…………………………………………………………………………………14
 John D Pennekamp v. State of Florida, (1946) 328 U.S. 31…………………………27
 Kedar Nath Singh v. State of Bihar, (1962) Supp. 2 SCR 769: AIR 1962 SC 955…..19
 Kehar Singh v. Delhi Admn, (1988) 3 SCC 609: AIR 1988 SC 1883………………..27
 Laxmi Khandsari v. State of HP. AIR 1981 SC 860…………………………………29
 M.R. Parashar v. Farooq Abdullah, (1984) 2 SCC 343: AIR 1984 SC 615…………..25

 Magganlal Chhagganlal v. Greater Municipality, (1974) 2 S.C.C 402:

A.I.R. 1974 S.C.
2009……………………………………………………………………………….…..32
 Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248: A.I.R. 1978 S.C. 597…….24
 Mehmood Azam v. State, (2012) 8 SCC 1: AIR 2012 SC 2573……………………..15

 Mohan Singh v. Prem Singh, 2003 Cri.L.J.11 (S.C.)……………………………………16

 Mohd. Khalil Chisti v. State of Rajasthan, (2013) 2 SCC 541: (2012) 12 SCALE 254…14
 Mohd. Shahabuddin v. State of Bihar, (2010)4 SCC 653……………………………….27
 Motilal v. State of U.P., I.L.R. 1951 All. 269; AIR 1951 All. 257……………………...30
 Muhammad Gul v. Haji Fazley Karim, (1929) 56 Cal.1013…………………………....17
 Multi screen Media Pvt. Ltd. V Vidya Dhar & Ors, 2013 (134) DRJ 585……………25

 Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 SCR 744: AIR 1967…….31
 Nazir Khan v. State of Delhi (2003) 8 SCC 461: AIR 2003 SC 4427…………………..19
 Pritam Singh v. State, 1950 SCR 453: AIR 1950 SC 169………………………………14
 PUCL v. Union of India, (1997) 3 SCC 433: AIR 1997 SC 1203…………………...35

 R.C. Cooper v Union of India, (1970)2 S.C.C 298: A.I.R. 1970 S.C. 1318………..…..31
 R.K. Garg v. Union Of India & Ors., 1982 S.C.R. (1) 947:A.I.R. 1981
S.C.2138………………………………………………………………………….…....23
 Ramakrishna Dalmia v. Justice S.R. Tendolkar, 1959 SCR 279: AIR 1958 SC 538…....22
 Ranjitsing Brahmajeetsing Sharma v. State ofMaharashtra, (2005) 5 S.C.C.
294………………………………………………………………………………….....26

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 Rao Harnarain v. Gumori Ram, A.I.R. 1958 Punj.

273……………………………………………………………………………..……..27
 Re Special Court Bill, 1978, (1979) 1 SCC 380: AIR 1979 SC 479…………………22
 Reg v. Alexander Martin Sulvian (1867 – 1871) 11 Cox’s Criminal Law Cases ……18

 Reliance Petrochemicals v. Proprietor of Indian Express, (1988) 4 SCC 592: AIR 1989
SC 190…………………………………………………………………………………...25
 Rex v. Aldred (1911 – 1913) 22 Cox’s Criminal Law Cases at 1……………………18

 Romesh Thappar v. State of Madras, 1950 SCR 594: AIR 1950 SC 124……………….26
 Sahara India Real Estate Cor. Ltd. Ors. v. SEBI and Anr., (2012) 10 SCC 603: AIR 2012
SC 3829…………………………………………………………………………………27
 Santan Naskar v. State of West Bengal, (2010) 8 SCC 249: AIR 2010 SC 3570……16

SC 1...................................................................................................................................25
 Secretary, State of Karnataka v. Umadevi, (2006)4 S.C.C.126: AIR 2006 SC 1806…14

 Singh & Anr. v. Menaka Gandhi, A.I.R. 2002 Del. 58.

……………………….…………26
 Standard Charter Bank v. Vinay Kumar Sood, 2010 Cri.L.J.1277 (Del.)……..………16
 State of Bombay v R.M.D. Chamarbaughwala, (1957) 1 S.C.R. 874. ……..……….24
 State of Travancore, Cochin v. Bombay Co. Ltd., A.I.R. 1952 S.C. 366. …………….24
 Subhash Chand v. State of Rajasthan (2002) 1SCC 702: 2002 SCC (Cri.) 256……..16
 Sunday Times v. U.K., (1979) 2 EHRR 245………………………………………….29

 Surya Prakash Khatri v. Madhu Trehan, 2001 (59) D.R.J. 298 (F.B.); 2001 Cri.L.J. 3476.
……………………………………………………………………………………..…..26
 T.Venkata Reddy v. State of Andhra Pradesh., (1985)3 S.C.C.198: A.I.R. 1985 S.C.
724……………………………………………………………………………………….23
 Tata Press v. MTNL, A.I.R. 1995 s.c.2438, 1995 S.C.C. (5)
139………………………….26
 Terminellov v. Chicago, (1948) 337 U.S. 1……………………………………………. 25
 Union of India v. Samarathman, 1990 Cri.L.J. 1153(M.P.)…………………..………21
 Union of Inida v.Naven Jindal, 2004 (2)S.C.C. 510……………………………….…..24
 Virendra v. State of Punjab, 1958 SCR 308: AIR 1957 SC 896……………………… 26
 Vishaka v. State of Rajasthan, (1997) 6 SCC 241: AIR 1997 SC 3011………………..35

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BOOKS REFERRED.

• D. D. BASU, CONSTITUTIONAL LAW OF INDIA (8th ed. 2011)

• H. M. SEERVAI, CONSTITUITIONAL LAW OF INDIA (4th ed.) VOL. I & II

• M. P. JAIN, INDIAN CONSTITUITIONAL LAW (7th ed. 2014)

• RATANLAL & DHIRAJAL, LAW OF EVIDENCE (24th ed. 2011)

• RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE (34th ed. 2014)

• V. VENKATESAN, CONSTITUTIONAL CONUNDRUMS – CHALLENGES TO INDIA’S

DEMOCRATIC PROCESS (2014)

• M. HIDAYATULLAH, CONSTITUTIONAL LAW OF INDIA (VOL I)

• D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th ed. 2012)

• V. N. SHUKLA, CONSTITUTION OF INDIA (12th ed. 2013)

• Dr. HARI SINGH GOUR, PENAL LAW OF INDIA (11thed. 2005)

• FIELD, COMMENTARY ON LAW OF EVIDENCE (12th ed. 2004)

• RATANLAL & DHIRAJLAL, THE CODE OF CRIMINAL PROCEDURE (20th ed. 2013)

• SOHONI, THE CODE OF CRIMINAL PROCEDURE (15th ed. 1961)

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STATUTES/ORDERS/RULES

• The Constitution of India, 1950

• The Indian Penal Code, 1860

• The Code of Criminal procedure, 1898

• The code of criminal procedure, 1973

• The Indian evidence act, 1872

• Supreme court Rules, 1966

• Contempt of court act, 1971

• English contempt of court act, 1981

• Canadian charter of rights and freedoms,1982

• Constitution of U.S.A, 1787

• European constitution on Human rights

WEBSITES
 http://www.manupatra.com
 http://www.un.org/en/universal-declaration-human-rights
 http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
 http://www.echr.coe.int/Documents/Convention_ENG.pdf
 http://constitutionus.com/
 http://interstatecouncil.nic.in/Sarkaria_Commission.html

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STATEMENT OF JURISDICTION

The Respondent humbly submits this memorandum in response to the petition filed before this
Hon. Court. The petition invokes its writ jurisdiction under Article 136 of the Constitution of
India. It sets forth the facts and the laws on which the claims are based.

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STATEMENT OF FACTS

BACKGROUND: The Government in the state of Valeria and the national Govt. in Crotina are
under the rule of upcoming party, the Crotina people’s front. The Govt. of Valeria issued a press
note stating that certain dailies in the state were publishing false reports alleging the involvement
of a minister’s son in smuggling activities to defame the Govt. therefore the name of the son
should not be openly mentioned.
INCIDENTS: Mr. Marcellus a social worker and public spirited person, in response to this,
published a statement in the press as follows:
“My attention has been drawn to a Press Note given by the Valeria Government categorically
denying the complicity of a Minister's son in smuggling. That Press Note also throws a challenge
to some Urdu Dailies “to come out openly with the name of the son of the Minister. I don't know
whether the newspapers concerned will take this up as a challenge of the Valeria Government or
not, but as one among those who have been alleging that person (son of the Minister) as one of
the leaders of the smugglers in Public platform, I hereby name that person to be Surinder Singh
Kairon son of S. Partap Singh Kairon, Chief Minister. And I do so determined to face the
consequences of the charge being openly leveled by me. I further allege that the son of our Chief
Minister is not only a leader of smugglers but is responsible for a large number of crimes being
committed in the Valeria. But because he happens to be Chief Minister's son the cases are
always shelved. I challenge the Govt. of Valeria to appoint an enquiry committee of independent
committee of impartial Judges from outside the Valeria and then let us see who has to face the
consequences. If the Valeria Government dare not do so, I would not mind serving a term in Jail
for having had the courage to come out with the truth. I further bring to the notice of Valeria
Government that the Chief Minister's son is a point of discussion in almost every household, but
people are afraid of talking about him in public lest they be punished for that.”

There was no FIR lodged in any police station against the chief minister’s son, although several
complaints were alleged to be made. The Chief Minister’s son, in respect of this filed a
complaint of defamation against Mr. Marcellus. After the examination of complainant and his
witnesses, Mr. Marcellus filed a detailed written statement under section 342 Code of Criminal
Procedure 1898, but this was ten months after he was questioned under that section. He claimed

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therein the protection of both first and ninth exceptions to section 499 0f the Crotina penal code.
At the stage of examination Mr. Marcellus gave a list of 28 witnesses to be examined on his
behalf. However, he was only allowed to summon five and examined four defense witnesses. He
also produced several documents. After the appreciation of all piece of evidence the trial court
convicted Mr. Marcellus. Aggrieved by this, he filed an appeal before the honorable High court,
and he only claimed the protection of exception Nine to section 499. The Hon. H.C. dismissed
the appeal with a modification in the sentence. He further preferred an appeal to the Hon. S.C.
contended that the Hon. High court had misdirected itself between ninth exceptions and other
exceptions under section 499 while appreciating the evidence in respect of good faith.

SUBSEQUENT EVENTS: In meantime, the entire media all over the country took up this issue
and developments regarding thereof. The popularity of these debates affected the credibility of
the chief minister’s party and brought down the same considerably; taken into consideration of
approaching elections and in the backdrop of these events, the union government of Crotina
promulgated an Ordinance Number. 16/2016.It would operate in preventing any or all
publications , broadcasts whether visual or oral ,or any other form of opinion driven journalism
or advertisement etc. that dealt with matters that are subjective before the High Courts of
various states as well as Supreme court of Crotina. However it did not bar any accurate report of
proceedings before the said courts. Aggrieved by this ordinance various medias and press
personalities filed writ petitions before various high courts , challenging the constitutional
validity of it, as it was said to violate freedom of speech , freedom of press and freedom of
profession among other fundamental rights guaranteed under the constitution of Crotina.
Meanwhile, the leader of the opposition party addressed students of Theobroma
University, situates in the national capital during its annual cultural function on 20th February
2016. In his address he attacked the ruling party for abuse of power. On 22 nd February 2016, the
student of the university gathered and blocked the entrances of it and shouted slogans against the
government (with charts and signs bearing slogans against chief minister and ruling
government).
The slogans went on to say that, “the government should rumble in dust in the hands of this
revolution”. The headlines of popular channels were as follows;

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 MEMORIAL FOR RESPONDENT

“Students of T.U raise slogans against the Government. T.U Students express their hatred
towards the Government and Calling it crime ridden at its core. T.U. students are calling out for
students all over the country to rise to the occasion and scourge the Corrupt and Maligned
Government”.
To control the situations the state police arrested student union header and other 55
students who were found shouting slogans and charged them under section 124A of CPC. The
trial took off at record pace and students were convicted in three months and were sentenced to
3years imprisonment and fine of Rs.5000 each .The appeal filed by the aggrieved students in the
High Court of Valeria , this court maintained the status of conviction ,but reduced the sentence to
one year imprisonment and fine of Rs.3000 each.
The students filed a special leave petition before the Supreme Court; against the order of
the high court. They further raised a larger issue that section 124A is violation of fundamental
rights, including freedom of speech and expression and that the police is colluding with the
government in furthering this undemocratic cause.
On account of these unusual events, the supreme court of Crotina by order dated 26th
February 2016 tagged the appeal filed by Mr. Marcellus along with the writ petition filed by
various members print and television media against the ordinance as well as the charges framed
against the 56 students. The matters have been posted and listed for final disposal.

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 MEMORIAL FOR RESPONDENT

ISSUES RAISED

1. WHETHER THE INSTANT PETITION IS MAINTAINABLE?

2. WHETHER THE HON. H.C. HAS MISDIRECTED BETWEEN NINTH EXCEPTION
AND OTHER ECXEPTIONS IN CONVICTING THE APPELLANT UNDER § 500 OF
THE CROTINA PENAL CODE, 1860?
3. WHETHER THE HON. H.C. ERRED IN CONVICTING THE APPELLANT UNDER §
124A OF THE CROTINA PENAL CODE, 1860?
4. WHETHER THE SECTION 124A OF THE CROTINA PENAL CODE IS IN
TRANSGRESSION OF PART III OF THE CONSTITUTION?
5. WHETHER THE ORDINANCE NO. 16/2016 IS VIOLATIVE OF PART III OF THE
CONSTITUTION?
6. WHETHER § 124A AND THE ORDINANCE IS IN CONTRAVENTION OF
OBLIGATIONS OF UNION OF CROTINA TO FOLLOW INTERNATIONAL
CONVENTIONS?

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SUMMARY OF ARGUMENTS

1. The respondent humbly submits that the instant petition is not maintainable. The power
under Art.136 is extraordinary, and can only be exercised when exceptional circumstances are
exist, and not for correcting or remedying individual injustice. Every error committed or caused
by lower courts is not a reason for exercising this residuary power.

2. The Hon. H.C. appreciated every piece of evidence produced by the appellant, and heard
him under § 342 of the Criminal Procedure Code. Hence, the Hon. H.C. draw the conclusion of
conviction after itself satisfying that no requirements of the exception sought for were complied
with.

3. The appellant’s conviction under §124A was upheld by the Hon. H.C. after found that the
public disorder caused by the students has pernicious tendency to subvert the Govt. established
by law. The intention of the students was not to show disapprobation, but vilification and
condemnation of Govt.

4. The Constitutional validity of §124A was unsuccessfully attacked before this Hon. Court
in 1962,by contending the breach of Art.19(1)(a) .The security of the State cannot be
compromised for the complete enjoyment of an individual liberty, that the existence latter does
depend on the former, but not vice-versa, hence, valid being reasonable.

5. The Ordinance No.16/2016 puts in place an ephemeral arrangement for the regulation of
the freedom of speech and of the press to protect and to preserve the purity of justice. It is
imperative, admits of little doubt that administration of justice should not be interfered with, and
is possible under Art.19 (2) to restrict, if such freedoms extended to that level.

6. The said Ordinance does not violate or disregard of the international obligations upon the
Union of Crotina as it provides reasonable limitations on the enjoyment of freedom of speech
and of press, hence, in consonance with principles it seek to achieve.

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 MEMORIAL FOR RESPONDENT

ARGUMENTS ADVANCED

1. The instant petition is not maintainable.

1.1 Art.136 of the Constitution of Crotina states about the power to grant special leave of appeal.
This article not vests on anybody’s right to file appeal.1.But it is the discretion of the Hon.
Court to grant special leave in appropriate cases2 that is the special and the residuary power
under article 136 can be exercised only when there are special circumstances found to exist.
Hence this power should be used sparingly and with care caution3.
1.2 The extraordinary power under the article is not limited or restricted by any law, but, the
founding fathers of the constitution while bestow on the highest court this vast power trusted
the wisdom and good sense of justice judges of the Hon. Court4. The exercise of discretion
for granting special leave has to be done by looking at the set of principles emerged from
long established precedents The Hon. Court is bound by the unwritten principles of
Constitutional propriety.
1.3 The Hon. Court should not exercise power under Art. 136 for redeeming injustice in
individual cases5.only when there is substantial question of law included this court prompt to
give special leave. In Secretary, State of Karnataka v. Umadevi,6 the constitutional bench of
this Hon. Court had occasion to deprecate the practice of “individual justice”. The element of
emotional subjectivity in assessing injustice will produce uncertainty in the proceedings of
court7.
1.4 Therefore the respondent submits that in the instant case there is no special or extraordinary
circumstances found to exist for exercising the overriding power under Art. 136. It would not
be constitutionally proper for this court to exercise on cases like this as it will only help to set
a wrong precedent. There is no ground has been established to grant a special leave, hence
the same to be not exercised.
1.5 It is also submitted that courts are as much human institutions as any other and share all
human susceptibilities to error. If lower courts commits any error that is not a reason for this

1
Mohd. Khalil Chisti v. State of Rajasthan, (2013) 2 S.C.C 541: (2012) 12 S.C.ALE 254.
2
Pritam Singh v. State, 1950 S.C.R 453: A.I.R. 1950 S.C. 169.
3
Durga Shankar v. Reghu Raj, (1955) 1 S.C.R 267: A.I.R. 1954 S.C. 520.
4
Balakrishna Iyer v. Ramaswamy Iyer, 1964 (7) S.C.R 838: A.I.R. 1965 S.C. 195.
5
Secretary, State of Karnataka v. Umadevi,(2006)4 S.C.C. 126: A.I.R. 2006 S.C. 1806.
6
(2006)4 S.C.C. 126: A.I.R. 2006 S.C. 1806.
7
Jamshed.H Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 S.C.C 214: A.I.R. 2004 S.C. 1815.

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 MEMORIAL FOR RESPONDENT

court to exercise its extraordinary power in the instant case8. The same has to be corrected
through appropriate courts and through appropriate procedures. Reversing judgment by a
higher court is not a proof that justice is thereby better done.9 But such uncertain nature of
law only tends to weaken law and order and cause men to settle their rights by violence.10
Hence it is clear that no satisfactory case has been made out to exercise power of special
leave and it should be reserved for appropriate cases to correct substantial injustice.

2. The Hon. H.C. has not misdirected between Ninth exception and other exceptions under
§ 499 of the Crotina Penal Code, 1860.

2.1 The Crotina Penal Code, 1860 penalizes the attack against the reputation of a person through
§ 499. The said provision lays down the offence of criminal defamation and contemplates
there under conditions and circumstances in which a person would legally be absolved from
the act prohibited, if commits. Publications or such others, which unfA.I.R.ly attribute
concerning any person intending to harm or knowing or having reason to believe that such
thing will harm the reputation of a person is said to cause defamation.
2.2 Right to reputation is a fact of right to life of a citizen under Art. 21 of the Constitution.
Reputation is not only the salt of life, but also the purest treasure and the most precious
perfume of life.11 It is extremely delicate and a cherished value and is a revenue generator for
the present as well as for the posterity.12 Reputation is an element of personal security and is
protected by Constitution equally with the right to enjoyment of life, liberty and property. 13
Enjoyment of private reputation, unassiled by malicious slander is of ancient origin and is
necessary to lead a respectful and honored life.14
2.3 In the instant case, the reputation of the respondent, Surinder Singh Kairon, has suffered
severely on account of the defamatory publication by the appellant. The Hon. Trial Court and
the Hon. H. C. convicted him under § 500. The respondent respectfully submits that the Hon.
Courts subordinate to this court were correct, that they did err neither in analysis of facts or
examination of evidence nor as to the interpretation of law in point.
8
A.R. Antuly v. R.S. Nayak, (1988) 2 S.C.C 602: A.I.R. 1988 S.C. 1531.
9
Id.
10
Id.
11
RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE 1196 (34th ed. 2014).
12
Mehmood Azam v. State, (2012) 8 S.C.C 1: A.I.R. 2012 S.C. 2573.
13
D.F. Marion v. Davis, (1989) 1 S.C.C 494: A.I.R. 1989 S.C. 714.
14
RATANLAL & DHIRAJLAL, supra note 11, at 1197.

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 MEMORIAL FOR RESPONDENT

2.4 At the trial stage the appellant was allowed to summon five witnesses but he examined only
four of them. It cannot be accepted that, in case, the contention of fairness in respect of
examination of witnesses. The long list of witnesses as given by the appellant was intended
to delay the proceedings, so as to take advantage of the limitations of the system. Moreover,
the trial court allowed the appellant to explain his side as to the case as demanded by the §
342 of the Criminal Procedure Code. The appellant was also questioned under that section.
2.5 § 342 empowers the Court to examine the accused as it would provide him with an ample
opportunity to explain any circumstances which tend incriminate him or any upon any
evidence adduced by the prosecution which has the effect of incrimination. 15 In Subhash
Chand v. State of Rajasthan16, it was held by the Hon. S.C. that, the purpose of asking
questions during examination under the section is to afford the accused personally an
opportunity of explaining any incriminating circumstance appearing in evidence against him.
The accused may or may not avail the opportunity for offering his explanation. As to written
statements under this section , it was observed that in many cases the accused person would
prefer to file a written statement and give a connected answer to the questions raised by the
prosecution evidence.17 Santan Naskar v. State of West Bengal,18 the Hon. S.C. held that the
statement of the accused solicited can be used in evidence to test veracity of admissions
made by him. The statement in conjunction with other evidence can be used to convict the
accused. But statement under the section cannot be made the sole basis of conviction.
2.6 In the present case the trial court allowed the examination of the witnesses produced by the
appellant and large volumes of documentary evidence, and followed the principles of natural
justice incorporated under § 342. Hence, as to appreciation of evidence, no prejudice has
caused to the appellant.
2.7 The appellant before the Hon. H.C. claimed the benefit of Ninth exception. The essential
ingredients to be satisfied to establish a claim under Ninth exception are public good and
good faith. Failure to satisfy any of these would exclude the application or benefit of Ninth
exception.19 A question as to good faith is a question of fact. And this has to be determined in

15
Ashok Kumar v. State of Haryana, (2010) 12 S.C.C. 350: A.I.R. 2010 S.C. 2839; Avtar Singh v. State of Punjab,
(2002) 7 S.C.C 419: 2002 S.C.C. (Cri.) 1769.
16
(2002) 1S.C.C 702: 2002 S.C.C. (Cri.) 256.
17
H.Singh v. State of Punjab, 1966 Cri.L.J. 3454.
18
(2010) 8 S.C.C 249: A.I.R. 2010 S.C. 3570; Also Mohan Singh v. Prem Singh, 2003 Cri.L.J.11 (S.C.).
19
Standard Charter Bank v. Vinay Kumar Sood, 2010 Cri.L.J.1277 (Del.).

17
 MEMORIAL FOR RESPONDENT

accordance with the facts and circumstances of each case. 20 In order to establish good faith
and bona fides it has to be considered, first, circumstances under which the defamatory
matter was written, secondly, whether there was any malice, thirdly, whether the accused
made any enquiry before making allegations and fourthly, whether there are reasons to accept
the version that he acted with care and caution.21
2.8 In the instant case, it was not clear whether the appellant made any enquiry as to the matters
he alleged or imputated. Whether the appellant was informed and had good reasons after due
care and caution to believe that such allegations were true are clearly absent, or not clearly
established in the conduct of the appellant. Rather, it is clear that, he was acting with a
malicious intention, when he claiming the First and Ninth exception in the trial stage and
claiming only Ninth exception in the appellate stage. That is, he was certain about the
imputation that it carries no weight of good faith or public good or truth. But this difference
in conduct both in the trial stage and later in appellant stage evidently shed light into the
intention of the accused.
2.9 As a social worker, and as a person who dealing with many important personalities in the
society, what is appropriate for him, if he would have taken due care and caution or acted
with good faith, to raise the matter before the appropriate authorities rather than making
publications or imputing allegations without any credible source to be shown that the person,
he imputed, was of such a nature.

3. The Hon. H.C. has not erred in sustaining the conviction of appellants under § 124A
of the Crotina Penal Code.
3.1 The students of the Theobroma University shouted slogans against the Govt. and blocked the
entrances and classrooms of the University. The incident was happened just after visit of the
opposition leader to the university. The students suddenly and without any provocation
gathered before the University and caused public disturbance. The 56 students of the
University shouted slogans including "the government should rumble in dust in the hands of
this revolution".
3.2 In response to these events the police arrested the students and charged with the offence

20
Chamanlal v. State of Punjab,(1970) 1 S.C.C 590: A.I.R. 1970 S.C. 1372.
21
Muhammad Gul v. Haji Fazley Karim, (1929) 56 Cal.1013.

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 MEMORIAL FOR RESPONDENT

under § 124A.The Trial Court and the Hon. H.C. agree on the conviction of the students.
3.3 “Sedition is a crime against society, nearly allied to that of treason, and it frequently precedes
treason by a short interval. The objects of sedition generally are to induce discontent and
insurrection and stir up opposition to the Govt. and bring the administration of justice into
contempt, and the very tendency of sedition is to incite the people to insurrection and
rebellion.”22 “The word ‘Sedition’ in its ordinary and natural signification denotes a tumult,
an insurrection, a popular commotion or uproar.”23
3.4 Interest of individual for self assertion and interest of the politically organized society in its
self preservation, “while conceding the imperative necessity of freedom of speech and
expression in its full width and amplitude, it is necessary at the same time to remember that
the first and most of fundamental duty of every Govt. is the preservation of order, since order
is a condition precedent to all civilization and the advance of human happiness. The security
of the State and organized Govt. are the very foundation of freedom of speech and expression
which maintains the opportunity for free political discussion to the end that the Govt. may be
repressive to the will of the people and it is, therefore, essential that the end should not be
lost sight of in an over-emphasis of the means.24
3.5 The respondent humbly submits that it is evident from the events and slogans rose by the
students that they have intention to cause disorder and disaffection towards the Govt. It is to
the shock and surprise of the staff of the University the students thronged suddenly and
raised slogans. That is, the students were not planned to have peaceful protest or
demonstration. But the intention can be gathered from the circumstances is that they were
even meant to subvert the Govt.
3.6 There is a clear case of public violence intended to cause disaffection as is clear from the
entire saga of events. Such incidents will incite others too, for showing disaffection against
the Govt, which if not properly addressed, lead to collapse of the Govt. Therefore, the
respondent submits that Hon. H.C. is right in sustaining the conviction under §124 of the
Crotina Penal Code.

22
Reg v. Alexander Martin Sulvian (1867 – 1871) 11 Cox’s Criminal Law Cases at 44.
23
Rex v. Aldred (1911 – 13) 22 Cox’s Criminal Law Cases at 1.
24
HARI SINGH GAUR, INDIAN PENAL LAW 1229 (11th ed. 2005).

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 MEMORIAL FOR RESPONDENT

4. §124A of the Crotina Penal Code, 1860 does not transgress Part III of the
Constitution of Crotina.
4.1 §124A states about offence of sedition. It does not result in transgression of freedom
of speech and expression under Art. 19(1) (a) being reasonable, hence, permissible
restriction [A]; nor it is in violation of right to life and personal liberty enshrined under
Art. 21 [B]. The following submissions are made on this behalf.

A. §124-A does not constitute breach of Art. 19 (1) (a) of the Constitution.
4.2 The word sedition is only appeared in the marginal note of the section 124A of the
Crotina Penal Code. It is closely allied to treason, an offence against the State. In
Nazir Khan v. State of Delhi,25 the offence has been described as, “disloyalty in action,
and the law considers as sedition all those practices which have for their object to
excite discontent or disaffection to create public disturbance or to lead to civil war; to
bring into hatred or contempt the sovereign or the Govt. the laws or constitutions of
the realm and generally all endeavors to promote public disorder.” Hence, words
which have the pernicious tendency or intention of creating public disorder or
disturbance of law and order only amounts to sedition.26 Comments or words
expressing disapprobation of the measures of the Govt. or administration or other
actions of the Govt. is saved by explanations attached to the section.27
4.3 In Kedar Nath v. State of Bihar,28 the constitutional validity of the section was
challenged on the ground of violation of the fundamental right of freedom of speech
and expression. The Hon. Court by conferring a narrow interpretation to the scope and
content of the section upheld the constitutional validity of it as not being violative of
Art. 19 (1) (a). It also observed that “[t]he provisions of the sections read as a whole
along with the explanations make it reasonably clear that the sections aim at rendering
penal only such activities as would be intended or have a tendency to create disorder
or disturbance of public peace by resort to violence. As already pointed out, the
explanations appended to the main body of the section make it clear that criticism of

25
(2003) 8 S.C.C 461: A.I.R. 2003 S.C. 4427.
26
Kedar Nath Singh v. State of Bihar, (1962) Supp. 2 S.C.R 769: A.I.R. 1962 S.C. 955, ¶ 38.
27
Exception 2 & 3 of §124A.
28
(1962) Supp. 2 S.C.R 769: A.I.R. 1962 S.C. 955.

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 MEMORIAL FOR RESPONDENT

public measures or comment on Govt. action, however strongly worded, would be

within reasonable limits and would be consistent with the fundamental right of
freedom of speech and expression”.29 Hence, activities that create public disorder or
disturbance of law and order only will bring to the scope of the section.30
4.4 Art. 19 (1) (a) endows with every citizen freedom of speech and expression. The
freedom is subjected to the limitations contained in Cl. (2) of the Article. The said
clause, inter alia, provides that restriction be imposed in the interests of the security of
the state and public order. A law can be saved if it imposes reasonable restriction in
the exercise of speech which is necessary for the balancing of security and individual
freedom.
4.5 The respondent humbly submits that a reasonable restriction on freedom of speech and
expression as permitted by Cl. (2) of Art. 19 is for the purpose of the very existence of
the state and of the Constitution. Public order and security of the state are vital for the
administration and stability of the Govt. Therefore, the interest of security has to be
given primacy over freedom of speech, because without the former, the exercise of the
latter is not possible.31 Considering the constricted definition given to sedition, it
cannot be contended that, it would cause any limitation than which is permitted by, for
the proper balancing of conflicting claims of individual rights and community or
public interests, the Constitution. It is conceded that, it is difficult to assert that a
provision once saved from the vice of unreasonability cannot be assailed, but wherein
shows that there exists or therein brought out, passage of time the content of
unreasonability on account of circumstances different, nevertheless sufficient in
nature, for doing so. Herein, it is submitted that, such conditions are hardly present to
be considered excessive than provided by way of reasonable restrictions.
4.6 It is also submitted that to prosecute a person under § 124A of the Crotina Penal Code,
1860, previous sanction of the Govt. is mandatory. §19632 of the Criminal Procedure

29
Id., ¶ 36.
30
Id., ¶ 38.
31
HARI SINGH GAUR, PENAL LAW OF INDIA 1229 (11th ed. 2005).
32
§196- No Court shall take cognizance of any offence punishable under Chapter VI or IXA of the Penal
Code (except section 127), or punishable under section 108A, or section 153A, or section 294A, or section 295A
or section 505 of the same Code, unless upon complaint made by order of, or under authority from,
the 1[ Government, or some officer empowered in this behalf by the Government].

21
 MEMORIAL FOR RESPONDENT

Code, 1898 explicitly prohibits courts from taking cognizance of any offences against
state falls under Chapter VI of the Crotina Penal Code ,1860.
4.7 The object of §196 of the Code is to ensure prosecution only after due consideration
by the appropriate authority, so that frivolous or needless prosecutions are avoided.
Sanction of a prosecution must be expressed with sufficient particularity to indicate
clearly the matter which is to be the subject of the proceeding and it should be
apparent from the order of sanction that the authority had applied its mind to the facts
constituting the offence.33 This safeguard of law is intended to and provide with
authority to exercise its discretion in appropriate cases found necessary to give
permission to take cognizable of. Hence, reading the narrow definition of sedition read
with this executive “safety valve” of statutory mandate serve and secure from
unnecessary prosecutions and Courts cannot take cognizance of an offence without
production of order of sanction of Govt.34
4.8 It also submitted that this Hon. Court once decided conclusively the constitutionality
of the section. And therefore there is no special reason herein to examine or to
reconsider the validity of the same.

B. § 124-A is not violative of Art. 21 of the Constitution of Crotina.

4.9 The life and personal liberty incorporated under Art.21 can be restricted or taken away
through procedure established by law. The demand of Art. 21, after Maneka Gandhi v.
Union of India,35 is that the procedural due process should be followed if the law
desires to limit the life of a person. If this demand is satisfied by legislative or
executive actions, they are seldom called for interference from the judicial process.
4.10 The constitutional validity of §124-A has been upheld by this Hon. Court in
Kedar Nath v. State of Bihar,36 in the context of Art. 19(1) (a) of the Constitution. The
Hon. Court therein, in no uncertain terms, held that acts which have pernicious
tendency to incite public disorder only amount to sedition. The scope of the section

33
RATANLAL & DHIRAJLAL, CRIMINAL PROCEDURE CODE 446 (20th ed. 2011).
34
Advocate Manual P.J. v. State, 2012 (4) K.L.T. 708; Also Union of India v. Samarathman, 1990 Cri.L.J. 1153
(M.P.).
35
(1978) 1 S.C.C 248: A.I.R. 1978 S.C. 597.
36
Kedar Nath Singh v. State of Bihar, (1962) Supp. 2 S.C.R 769: A.I.R. 1962 S.C. 955.

22
 MEMORIAL FOR RESPONDENT

has been dramatically cut down, so that only if such ingredients which the Hon. Court
set out in Kedar Nath Singh37 be satisfied it is possible to bring one under the ambit of
section. That is, nobody can be prosecuted for criticizing the Govt. or its actions or
measures however strong the words may be.
4.11 As it has been submitted in the preceding section, statutory mandate of Criminal
Procedure Code, 1898 under S_ has to be satisfied to prosecute a person. If the Central
Govt. or State Govts. have not accorded sanction to prosecute a person under §124-A
then it is unsustainable. This provides an extra safety considering the seriousness of
crime and to stay at bay any frivolous prosecution of innocent persons.38
4.12 The respondent submits that the judiciary should not question the wisdom of
legislature in prescribing the procedures and punishment of an offence.39 If such
procedures or punishment prescribed for an offence satisfy and in compatible with
Constitutional requirements, courts are seldom entitled to look into the propriety and
possibility of injustice which may results in. The punishment provided for sedition is
not excessive and does not take away judicial discretion to impose it. But, it limits the
same in the interest of the society. Wisdom behind this cannot be, for this Court to,
enquired into and to decided upon. §124-A is in conformity with the fair and
reasonable standard of Art.21, hence it is not in violation of said article.

5. The Ordinance No.16/2016 is not violative of provisions of the Constitution of

Crotina.
5.1 The Ordinance promulgated by the Union Govt. of Crotina, herein question, does not
violate provisions of the Constitution. At first, freedom of speech and expression and
to practice profession under Art .19 are not unreasonably fettered by the Ordinance
promulgated by the Govt. [A]; the said Ordinance does not cause any discrimination
or arbitrary limitation of equality clause [B], and finally the Ordinance puts restraint
on enjoyment of life, if any, the same is to be preceded by the standard of due process
under Art. 21 [C].

37
Id., ¶ 38.
38
Inguva Mallikarjuna Sharmg v. State of A.P. ,1978 Cri.L.J. 392.
39
Ramakrsihna Dalmia v. Justice S.R. Tendolkar, 1959 S.C.R 279: A.I.R. 1958 S.C. 538; Also, In Re Special Court
Bill, 1978, (1979) 1 S.C.C 380: A.I.R. 1979 S.C. 479.

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 MEMORIAL FOR RESPONDENT

A. The Ordinance No.16/2016 is saved by Cl. 2 of Art.19.

5.2 The power to promulgate ordinance is conferred on President40 and Governors41
through the Constitution of Crotina. If the President is satisfied that there exists
circumstances for immediate action be taken he can promulgate Ordinance which a
situation requires during the recess of Parliament. Such an Ordinance has the same
force and effect as an Act of the Parliament.42 The article further directs that
Ordinance promulgated has to be laid before both houses of Parliament and shall
cease to operate at the expiration of six weeks from the reassembly of Parliament.43
And before that period if resolutions disappointing it are passed by both houses or
upon the passing of the second of those resolutions.44 It may also be withdrawn at any
time by the President.45
5.3 The power to promulgate an Ordinance is a legislative power conferred on the
executive.46 This power of the President is "co-existence with the power of parliament
to make laws and president cannot issue an ordinance which parliament cannot enact
into law".47 An ordinance has every privileges and precincts of restraints as of an Act
of Parliament.48 The motive of the legislature in passing a statute is beyond the
scrutiny of Courts. The propriety, expediency and necessity of a legislative act are for
the determination of the legislative authority and are not for determination by the
courts. An Ordinance passed either under Art.123 or under Art.213 of the
Constitution stands as the same footing. It has available with it all its incidents,
immunities and limitation as an Act of Parliament.49 Therefore an ordinance cannot
be invalidated on the ground of misapplication of mind or mala fides or that

40
CONST. art.123.
41
Id., art. 213.
42
Id., art. 123, cl. 2.
43
Id., art. 123, cl. 2(a).
44
Id.
45
art. 123, cl. 2(b).
46
A.K.Roy v. Union of India, (1982) 1 S.C.C. 271: A.I.R. 1982 S.C. 710.

47
T.Venkata Reddy v. State of Andhra Pradesh., (1985)3 S.C.C. 198: A.I.R. 1985 S.C. 724. ; R.K. Garg v. Union
Of India & Ors., 1982 S.C.R. (1) 947: A.I.R. 1981 S.C.2138.
48
Id., ¶ 14.
49
Id., ¶ 14.

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 MEMORIAL FOR RESPONDENT

prevailing circumstance did not warrant the issue of the Ordinance.50 Therefore it is
impossible to question the satisfaction of President through judicial means. The
limitations, indeed, then upon an Ordinance are Constitutional limitations imposed by
Part III on actions of State. Likewise an Act of the legislature, an Ordinance must not
transgress the limitation put on by fundamental rights and if there is any such
transgression in exercising the legislative power of the executive, it can be made void
subjecting it to judicial review to the extent of such transgression and not more.51
5.4 Being set out the limitation on an Ordinance comprehensively, now proceed on to
deal with the transgression of it on Art. 19(1) (a), as claimed by the appellant before
this Hon. Court.
5.5 It is of little doubt that freedom of speech and expression is an invaluable freedom in
a democracy. Democracy is based essentially on free debate and open discussion for
that is the only corrective of government action in a democratic set up.52 But no
freedoms under our Constitution are absolute, as different form U.S. Constitution
where freedom of speech and press is absolute, hence only limited application in our
Constitutional context.53 Every right guaranteed under the Constitution is subject to
the limitations imposed on them by the Constitution itself. Freedom of speech and
expression envisaged under Art. 19(1) (a) is subject to the limitations imposed on it
by Cl.(2) of the said article, which includes, inter alia, contempt of court. Reasonable
restrictions imposed on freedom of speech in relation to contempt of court are
protected by the Constitution. It is true that "justice is not a cloistered virtue, she must
be allowed to suffer the scrutiny and respectful, though outspoken comments of
ordinary men”.54 It was also noted that, “[b]ona fide criticism of any system of
institution is aimed at inducing the administrators of that system or institution to look
inwards and improve its public image. Courts do not like to assume the posture that
they are above criticism and that they are functioning needs no improvement”.55
Nevertheless, the thin line between freedom of speech and administration of justice is
50
Id.
51
A.K.Roy v. Union of India, (1982) 1 S.C.C. 271: A.I.R. 1982 S.C. 710.
52
Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248: A.I.R. 1978 S.C. 597.
53
State of Travancore, Cochin v. Bombay Co. Ltd., A.I.R. 1952 S.C. 366. ; State of Bombay v R.M.D.
Chamarbaughwala, (1957) 1 S.C.R. 874. ; Union of Inida v.Naven Jindal, 2004 (2)S.C.C. 510.
54
Ambard v. A.G. of Trinidad and Tobago, 1936 A.C. 322: (1936) All E.R. 704 (P.C.).
55
M.R. Parashar v. Farooq Abdullah, (1984) 2 S.C.C 343: A.I.R. 1984 S.C. 615.

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 MEMORIAL FOR RESPONDENT

still there and it needs in the interest of justice and of society.

5.6 It is observed in the Constitutional Law of the learned author Seervai that, “the
invocation of constitutional liberties as part of the strategy for overthrowing them
[Govt.] presents a dilemma to free people, a dilemma which has produced a sharp
conflict of opinion in the U.S. Our Constitution has resolved this dilemma by
providing that even freedom of speech must yield to public order, for to use the words
of Jackson. J. ‘the choice is not between order and liberty but between liberty with
order and anarchy without either,’ and that doctrinaire logic must be tempered with a
little practical wisdom, if a Bill of Rights is not to be converted into a suicide pact.”56
5.7 Rule of Law of is a pillar of a State. There cannot be a civilized society without a
legal system. Not a weak and a limp legal system- it has to be an assertive legal
system capable of upholding the majesty of the law. Civil societies have recognized
that it is in the interest of not only an individual but also of the society as a whole that
every member of the society gets a fair trial. Society 57
5.8 A fair trial means a trial conducted free from all prejudice and in which the Court
tries the case impartially after the considering the evidence which has been properly
submitted.58
5.9 Since freedom of speech is fundamental, the press- both print and media- has a right
of fair comment on matter of public interest. Indeed, press reports provide a valuable
check against malpractices including malpractices in administration of justice, secret
being dangerous; the crucial question to be addressed is where to draw a line
between the ‘right to tell’ and ‘right to a fair trial’.59
5.10 Therefore, it is submitted that, to protect the administration of justice from the
intervention of third parties or to preclude any possible or apprehensible perversion of
justice, it is within the realm of the State to regulate or to prevent any media or press
organizations from publishing any matters of subjudice.
5.11 Coming to the indispensable limb of freedom of speech-the freedom of press, it is
although not expressly mentioned in our Constitution become an irremovable part of

56
Terminellov v. Chicago, (1948) 337 U.S. 1. Quoted from S EERVAI, at 711-12.
57
Multi screen Media Pvt. Ltd. V Vidya Dhar & Ors, 2013 (134) DRJ 585, ¶ 7.
58
Id., ¶ 7.
59
Id., ¶ 9.

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Art. 19.60 But freedom of press is not extended to publish any matters or information
which is vital for the proper and complete administration of justice.
5.12 At present there is considerable rise of incidents called "trial by media".
Democracy although a playfield for active, vibrant and vigilant media to inform
public and in aiding to form their own views, when it comes to administration of
justice, there is certainly a need for regulation of varying interests. There was an array
of cases, which denotes the development of law in this respect in our country. 61 It was
observed in Sahara India Real Estate Cor. Ltd. Ors. v. SEBI and Anr.,62 by this Hon.
Court that,“[u]nder our Constitution, probably, no values are absolute. All important
values, therefore, must be qualified and balanced against other important and often
competing values. This process of definition, qualification and balancing is as much
required with respect to the values of freedom of expression as it is for other values.
Consequently, free speech, in appropriate cases has got to correlate with fair trial. It
also follows that in appropriate case one right (say freedom of expression) may have
to yield to the other right like right to a fair trial''63.Presumption of innocence is a
human right, and it is the duty of the Court to restrict any publications which may
interfere with administration of justice.64 The Court has the power to restrict any
publication for to keep the unimpaired flow of justice and its administration.65 Open
justice, to be sure, is the cornerstone of our judicial system. 66 However the principle
of open justice yields to necessities of administration of justice if it demands so not
only in our country,67 but even in U.S.A, where the freedom of press is absolute.68

60
Romesh Thappar v. State of Madras, 1950 S.C.R 594: A.I.R. 1950 S.C. 124; Virendra v. State of Punjab, 1958
S.C.R 308: A.I.R. 1957 S.C. 896.
61
Sahara India Real Estate Cor. Ltd. Ors. v. SEBI and Anr., (2012) 10 S.C.C 603: A.I.R. 2012 S.C. 3829.
Khushwant Singh & Anr. v. Menaka Gandhi, A.I.R. 2002 Del. 58. ; D.N. Prasad v. Principal Secretary, 2005 (2)
A.L.D. 451. ;Surya Prakash Khatri v. Madhu Trehan, 2001 (59) D.R.J. 298 (F.B.); 2001 Cri.L.J. 3476. Tata Press v.
MTNL, A.I.R. 1995 s.c.2438, 1995 S.C.C. (5) 139.; Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3
S.C.R 744: A.I.R. 1967 S.C. 1. Reliance Petrochemicals Ltd. v. Proprietores of Inidan Express, 1988 (4) S.C.C.
592.
62
(2012) 10 S.C.C 603: A.I.R. 2012 S.C. 3829.
63
Id., ¶ 25.
64
Ranjitsing Brahmajeetsing Sharma v. State ofMaharashtra, (2005) 5 S.C.C. 294.
65
Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 S.C.R 744: A.I.R. 1967 S.C. 1; Reliance
Petrochemicals v. proprietor of Indian Express, (1988) 4 S.C.C 592: A.I.R. 1989 S.C. 190.
66
Kehar Singh v. Delhi Admn.,(1988) 3 S.C.C 609: A.I.R. 1988 S.C. 1883; Mohd. Shahabuddin v. State of Bihar,
(2010) 4 S.C.C 653.
67
Id.
68
Globe Newspaper Co. v. Superior Court, 457 U.S. 596.

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 MEMORIAL FOR RESPONDENT

5.13 In M.P. Lohia v. State of West Bengal,69 in the context of the suicide of a woman
in Calcutta, and reporting of subsequent events relating thereto was come under the
scanner of the Hon. S.C. and the Court cautioned by observing that, [t]hese type of
articles appearing in the media would certainly interfere with the course of
administration of justice.”Indulging in such trial by media when the issue is subjudice
has a deleterious effect on fair trial.
5.14 In Naresh Shridhar Mirajkar v. State of Maharashtra,70 this Hon. Court held that
evidence if the witness need not receive excessive publicity as fear of such publicity
may prevent the witness from speaking the truth.71 Therefore, prohibition of
publication of court proceedings to protect the interest and the administration of
justice could not be treated as violative of Art 19(1) (a).72
5.15 ''The law of contempt is only the ways in which administration justice is protected
preserved and furthered. Trail by newspaper comes in the category of acts which
interferes the course of justice or due administration of justice."73
5.16 The test in which to examine a restriction in relation to contempt of court is
reasonable, that is only permissible under cl.(2) of Art 19, is presence of real and
substantial risk posed by media publication.74 Publication creates a real and
substantial risk of prejudice to the proper administration of justice to the fairness of
trial.75 It is possible to prohibit such publication from doing it. In Sahara India Real
Estate Cor. Ltd and Ors v. SEBI and Anr.,76 this Hon. Court observed that, it is
important to bear in mind that sometimes even fair and accurate reporting of the trail
could nonetheless give rise to the ‘real and substantial risk of serious prejudice’ to the
connected trials. There is no straight jacket formula for laying down such category of
cases. It is based on facts and circumstances of cases.77 Proper administration of
justice in the word of Cardozo J. is "the end and purpose of all laws."78 To protect

69
2005 (2) S.C.C. 686. Also Rao Harnarain v. Gumori Ram, A.I.R. 1958 Punj. 273.
70
(1966) 3 S.C.R 744: A.I.R. 1967 S.C. 1.
71
Id.
72
Id.
73
Sahara, ¶ 33.
74
Id.
75
Id.
76
(2012) 10 S.C.C 603: A.I.R. 2012 S.C. 3829, ¶ 118.
77
Id. ;Also see A.K. Gopaloan &anr. v. Noordeen, (1969) 2 S.C.C 734 : A.I.R. 1970 S.C.1694..
78
Id., ¶ 42.

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presumption of innocence, fair trail and proper administration of justice, it is

reasonable to restrict or to prohibit matters or proceedings which are subjudice.
5.17 Cardozo J. observed in his book that, "[n]onetheless there is anything or reality in
my analysis of the Judicial Process, they do not stand aloof on these chill and distant
heights. The great tides and currents which engulf the rest of men do not turn aside in
their course and pass the judges by”.79 This Hon. Court in Reliance Petrochemical v.
proprietor of Indian Express,80 quoted the words of Lord Dilhorne in A.G. v. B.B.C,81
that "[t]his claim to judicial superiority over human frailty is one that find some
difficult in accepting”.
5.18 In analyzing the impact of publication subconsciously on judges, the 200th report
of Law Commission of India provides an in detail analysis of the same, taking into
consideration views existing in the legal system of various countries on the subject. It
referred the words of justice Frankfurter, in John D Pennekamp v. State of Florida,82
which "[n]o judge fit to be one is likely to be influenced consciously, except by what
he sees or hears in court and by what is judicially appropriate for his deliberations.
However, judges are also human and we know better than did our forbears how
powerful is the pull of the unconscious and treacherous the rational process and since
judges, however, stalwart, are human, the deliberate task of administering justice
ought not be made unduly difficult by irresponsible point. Therefore, it is to be sure
preferred the view all over the world, that judges are subconsciously influenced by
several forces, and there it becomes necessary more than even to regulate and not to
eliminate from reporting matter under consideration of courts. Because we want
justice, which is pure and non-polluted, for that where over it becomes necessary to
do so in the interest of justice, it will be justified.
5.19 Moreover, prohibition of media from reporting some events or proceedings in
courts is also intended to secure benefit and to secure liberty to press, freedom of
speech and expression. Such prohibitions work inhibitions at risks of possible be

79
Law Commission, 200th Report, Chapter III.
80
(1988) 4 S.C.C 592: A.I.R. 1989 S.C. 190.
81
1981 A.C. 303 (H.L.).
82
(1946) 328 U.S. 31.

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contempt by way of interference with administration of justice by media. 83 As it is

observed in the judgment, it is the underlying reason for the enactment of English
Contempt of Court, 198184 in the U.K. after the judgment of ECHR85, where adopted
a highly balancing view between fair trial rights and rights of free media.
5.20 The Ordinance No. 16/2016 was intended to regulate the media and broadcasting
organizations from interfering with administration of justice and not to pervert,
prejudice or obstruct justice. The dangerous media publicity attached to the case of
Chief Minister’s son and “epic level popularity of debates” with people from “various
walks of lives showcasing their views” has a real and substantial tendency of risk of
prejudice against the Chief Minister’s son and is manifesting the perversion of justice.
Such broadcasting of events and the opinion driven journalism affect the proper
conduct of administration of justice.
5.21 As it is submitted above, even accurate reporting of events may prejudicially
affect parties and witnesses, and is true in cases like this. However, even though it is
possible to prohibit media from reporting such events, the Ordinance in question only
prohibits "opinion driven journalism, advertisement etc.'', and not accurate reporting.
It is bearing in mind the significance of media freedom and the purpose it has been
undertaking in the society.
5.22 The effect of high media publicity in cases like this affect judges subconsciously
if not consciously. Such events, no doubt affect the guarantee of fair trail and
presumption of innocence, in turn, pervert the course of justice. Therefore exempting
media from 'opinion driven journalism’ only for to ensure unobstructed flow of
justice and administration of justice. Sensationalization of matters of subjudice must
not be allowed to pollute justice.

The ordinance does not violate Article 19 (1) (g) of the Constitution of Crotina

5.23 Art. 19 (1) (g) of the Constitution guarantees the freedom to practice any
profession, or to carry any occupation, trade, or business. But this is not an absolute

83
Sahara India Real Estate Cor. Ltd. Ors. v. SEBI and Anr., (2012) 10 S.C.C 603: A.I.R. 2012 S.C. 3829, ¶ 42.
84
§ 4 of the Act provides postponement of publications.
85
Sunday Times v. U.K., (1979) 2 EHRR 245.

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right. It is regulated by reasonable restrictions given under Art.19 (6). 86 Thus, the
right conferred upon the citizens under Art. 19(1) (g) is subject to complete or partial
prohibition or regulation by the state. However, under Art.19 (6), the prohibition, or
regulation whether partial or complete has to be in the interest of the general public,
which constitutes the scope of the restriction on them very wide and that it to be
assessed on individual cases, not by following any general pattern or standards.87
5.24 In Laxmi Khandsari v. State of H.P.,88 the Hon. S.C. held that, to make the
restriction is reasonable in interest of public, there must be reasonable nexus between
the object of the regulation and the subjective restriction. And the same has to be
direct and real in its operation, not remote or indirect. 89 The decision as to what is
reasonable restriction will depend upon the nature of the business or profession, its
effect on others, the stage of development and many other factors that changes with
the passage of time and development of society.90
5.25 In the instant case, the popular print and broadcasting media were prohibited from
engaging in various kinds of debates and live shows with respect to the matters
subjudice before the Courts. This would not affect the enjoyment of the profession as
the effect of the law brought out does not constitutes any direct adverse implication
on freedom. FA.I.R. administration on justice is not construed to mean an individual
demand, but also every failure of justice would affect the credibility of the judicial
system by people losing faith on it and its outcomes.
5.26 The true intention, as is reflected, of the Ordinance is to prohibit mass media from
interfering with administration of justice. This law operates as a reasonable restriction
on freedom of speech and of press on the ground of contempt of court. Indeed, it is n
the realm of the legislature to prescribe such restriction in the interest of society as
permissible by Cl. 2 of Art. 19.
5.27 Hence, the direct effect of the law stem from the Ordinance is to restrict the

86
Babul Parate v. State of Maharashtra, A.I.R. 1961 S.C. 884
87
Collector of Customs v. Sampathu Chettty, A.I.R. 1963 S.C. 316; Virendra v. State of Punjab, A.I.R. 1957 S.C.
896; Harakchand v. Union of India, A.I.R. 1970 S.C. 1453
88
A.I.R. 1981 S.C. 860
89
Express Newspapers v. Union of India, A.I.R. 1958 S.C. 578; Bennett Coleman v. Union of India, A.I.R. 1973
S.C. 106.
90
Motilal v. State of U.P., I.L.R. 1951 All. 269; A.I.R. 1951 All. 257.

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freedom of speech, and not to, unwarrantedly, interferes with freedom to practice
profession. It is a beneficent legislation, considering the large public interest, to
regulate a freedom which may cause limitation on full enjoyment or exercise of other
rights, but not constitutes the violation of the same.91 Hence, it does not take away or
abridge freedom under Art. 19 (g). That is to say, in pith and substance, the
Ordinance is intended for and working in the realm of reasonable restriction on
freedom of speech and of press, and not in the arena of freedom of profession.

B. The Ordinance is reasonable in its content while testing in the touchstone of Art.14 of
the Constitution of Crotina.

5.28 Art. 14 grants equality before law to every person. But it does not mean the same
treatment to everyone. Its underlying principle is to treat equals in equal respect. One
cannot claim the benefit ofArt.14 alone the reason that who has been placed or treated
differently. The varying needs of different classes of persons require different
treatment. Therefore it cannot be contend that every law is of universal applications to
all situations.
5.29 The principle of equality requires that of two laws cover a situation a law which is
less severe in its application should be adopted.92 It does not in any way mean or to be
construed to mean that every two laws holding same situation is prohibited by
Art.14.93 Only such laws which differ substantially and qualitatively qualified to be
discontinued in the test of Art.14.94 Mere difference of procedure or differences is not
enough as explained by this Hon. Court in Magganlal Chhagganlal v. Greater
Municipality,95. The learned author M.P Jain observes that "as a result of Magganlal
judicial attitude towards differential procedure has become very tolerant."96
5.30 Existence of a law is not a bar to promulgate an Ordinance. 97 The power of the
President under Art.123 of the constitution of Crotina put no regulation in this
91
Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 S.C.R 744:A.I.R. 1967 S.C. 1; Express Newspapers v.
Union of India, A.I.R. 1958 S.C. 578; R.C. Cooper v Union of India, (1970)2 S.C.C 298: A.I.R. 1970 S.C. 1318.
92
Ahmedabad Municipality v. Raman Lal, (1975) 1 S.C.C 778: A.I.R. 1975 S.C. 1187.
93
Id.
94
Iqbal Singh v. State (Delhi Admn), A.I.R. 1977 S.C. 2437.
95
(1974) 2 S.C.C 402: A.I.R. 1974 S.C. 2009.
96
M.P.JAIN, INDIAN CONSTITUTIONAL LAW 906 (7th ed. 2012).
97
T.Venkata Reddy v. State of Andhra Pradesh., (1985)3 S.C.C. 198: A.I.R. 1985 S.C. 724.

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respect, but it originates from the legislative power of the executive to fill voids
arising in emergency circumstances.98 It is a settled position of law that if the
President is satisfied with the circumstance renders it necessary to promulgate an
Ordinance, he can act accordingly.99
5.31 Contempt of Court Act, 1971 is a legislation intended to ''define the powers of
certain courts in punishing contempt of court and to regulate their procedure in
relation thereto''. It confers power as the court to take appropriate measures to
regulate or to punish publication of judicial proceedings. The Act does not prevent the
fair and bona fide criticism of judicial acts but regulate the same in the interest of
justice.
5.32 The respondent, hence, in this regard submits that, the instant Ordinance is
working in realm of and in consequence to the "opinion driven journalism" and wide
sensationalization of media organizations which is interfering with administration of
justice. Even if both laws are working in relation to similar subjects, they are working
in different areas. The Ordinance is particular intended to the current emergency
situation whereas the Contempt of Court Act is dealt with such situations that Courts
are found necessary during administration of justice.
5.33 The Ordinance is not intended to prohibit reporting or publication of proceedings.
It only prohibits ''opinion driven journalism''. People are at liberty to publish accurate
reporting of events in courts and matters relating thereto. By pre-empting the media
from reporting of judicial proceeding which interfere with administration of justice,
the Ordinance will serve the purpose of avoiding possible contempt of press.100
5.34 Therefore it is submitted that, this is not only a beneficial law, thereby desires the
freedom of press, but it also reasonable and not constitute any violation of
Art.14.There is no substantial and qualitative difference of severity between the
Ordinance in challenge and the Contempt Of Court Act.

98
A.K.Roy v. Union of India, (1982) 1 S.C.C. 271: A.I.R. 1982 S.C. 710.
99
A.K.Roy v. Union of India, (1982) 1 S.C.C. 271: A.I.R. 1982 S.C. 710.
100
Sahara India Real Estate Cor. Ltd. Ors. v. SEBI and Anr., (2012) 10 S.C.C 603: A.I.R. 2012 S.C. 3829.

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C. The Ordinance is not in contravention of right to life to under Art. 21.

5.35 Art. 21 of the Constitution of Crotina provides that every person is entitled to life
and personal liberty. There have been innumerable occasions the courts in Crotina
interpreted the said article to mean and to confer it with humane vision and
characteristics after it did take turn from the literal interpretation of the same. Hence,
now it stands not for a mere expression of life, but for life of dignity, every basic
amenity which contributes for one’s civilized way of living. 101 The article states that
only through a fair, just and reasonable procedure life of a person can be taken away.
5.36 After Maneka Gandhi v. Union of India,102 the Hon. S.C. and High Courts have
been reading many rights into Art. 21 to enlarge the scope of it and to secure a
dignified life. In this way the courts were said so many unenumerated rights and
made them as justiciable. In Reliance Petrochemicals Ltd. V. Proprietors of Indian
Express Newspapers Bombay(P)Ltd,103 this Hon. Court held that Art 21 contains right
to know as it is necessary for participatory democracy.
5.37 In this regard the respondent respectfully submits that, to make an unenumerated
right enforceable in the same footing of enumerated rights does not mean that they
were enforceable at all occasions. The right to know is subject to the limitations set
by Art. 21. It does not constitute an absolute right. The appellants’ right to know in a
democracy cannot and should not be extended to cause any disturbance to other rights
in particular with respect to administration of justice. The court has to balance when
there comes instances of conflict between two or more rights. FA.I.R. balancing of
rights, and at times, or when necessary, the courts are duty bound under Constitution
to bestow one with primacy over the other.104
5.38 The present Ordinance does not deny or destroy the right of the appellant
to know information. Further, the prohibition of publication is not an absolute one. It
only restricts the media from publishing and broadcasting opinions on matters of
subjudice. Accurate reporting of judicial proceedings seldom comes under
prohibition. Therefore, it is submitted that the restriction of publication spring from

101
Francis Coralie Mullin v. U.T. of Delhi, (1981) 1 S.C.C 608: A.I.R. `1981 S.C. 746.
102
(1978)1 S.C.C 248: A.I.R. 1978 S.C. 597.
103
(1988) 4 S.C.C 592: A.I.R. 1989 S.C. 190.
104
Sahara, ¶ 25.

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the Ordinance is fair and reasonable and is within the permissible limit of Art. 21 of
the Constitution of Crotina.
6. §124-A and the impugned Ordinance No. 16/2016 are not in violation of
Constitutional obligation of Crotina to follow international conventions.
6.1 Universal Declaration of Human Rights, 1948, Art. 19 state that everyone has the
right to freedom of opinion and expression. Also, Art. 19 of the International
Covenant on Civil and Political Rights provide that everyone is entitled to hold
opinions and have the right to freedom of expression. It also clearly mentions this
exercise of right carries with it special duties and responsibilities.105 The said article
lays down protection of national security or public order as means necessary ground
of restriction of freedom of speech and expression.
6.2 International instruments do not recognize the righty of freedom of speech and
expression as absolute. It has to be yielded to some other dominant considerations if
and when necessary. Only when the restriction provided in the municipal law exceeds
or put limits on other grounds they come in conflict with the provision of these
conventions. The Constitution of Crotina also provides under Cl. (2) of Art. 19, inter
alia, security of the state and public order as limitations on freedom of speech.
Freedom of speech enshrined under Art.19, in any case is not absolute. Therefore it is
submitted that §124A, which imposes in the interest of security of the state and the
public order limitations on exercise of freedom of speech are in tune with and
conform to the international obligations arising through Art.51 of the Constitution.
6.3 It is also submitted that, the obligations arising out of these covenants, which
India is a party is compelling only in the absence of a municipal law. In other
circumstances, if the municipal law exists it has to be resorted to, and not
international instruments. Freedom of speech, if provides by these instruments are as
absolute, the same cannot be enforceable in the constitutional context of Crotina. As
it is above submitted, the restriction put on through §.124 A is limited and reasonable
and not inconsistent with the international obligations.
6.4 The Ordinance No. 16/2016, provides regulation in respect of freedom of speech and
press, as there exists a substantial and real apprehension of interference or perversion

105
ICCPR, art. 19, Cl. 3.

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of fair justice and its administration unless a reasonable restriction is administered on

the exercise of it. Unlike in some other countries, the freedom of speech and of the
press are not absolute. International covenants too represent this right as a limited or
restricted in its nature.
6.5 A reasonable restriction of enjoyment of various rights can be supplied for
maintaining the social equilibrium, provided, the municipal law speaks on such
circumstances. The restrictions on freedom of speech provided in the Constitution of
Crotina can only be enforced in such occasions as it on account of vast consideration
and various conditions present in a society. Hence, it is submitted that, as long as the
municipal law is silent and/or not in conflict with principles of international
conventions, it will and can be resorted to, for obtaining assistance with regard to
construction of conflicting interest protected by law, for their right and fA.I.R.
balancing.106

106
Vishaka v. State of Rajasthan, (1997) 6 S.C.C 241: A.I.R. 1997 S.C. 3011; PUCL v. Union of India, (1997) 3
S.C.C 433: A.I.R. 1997 S.C. 1203.

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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the counsel for the
respondent humbly prays that the Hon. Court be pleased to adjudge, hold and declare that:

1. The instant petition is not maintainable.

2. The Hon. H.C. has not erred in sustaining the conviction of any of the appellants, hence
to be upheld.
3. § 124A of the Crotina Penal Code, 1860 is constitutional.
4. The Ordinance No.16/2016 is not violative of fundamental rights and hence it is
intravires the Constitution.
And pass any order that this Hon. Court may deem fit in the interest of equity, justice and
good conscience.

And for this act of kindness, the counsel for the respondent shall duty bound forever pray.

Sd/-

(Counsel for Respondent)

37