ARGUMENTS ADVANCED

1. Whether section 124A of the Indian Penal Code 1860, constitutes an

unreasonable restriction on the freedom of speech and expression under
Article 19(1)(a) of the Constitution of India or not?

It is humbly submitted that the learned Counsel appearing for the appellants with veneration
begs to argue that section 124A of the Indian Penal Code, 1860, constitutes an unreasonable
restriction on the freedom of speech and expression under Article 19(1)(a) of the Constitution
of India. It is humbly submitted before the hon’ble court that the Constitution of India does
not define the word sedition. Section 124-A of the Indian Penal Code defines the offence of
‘Sedition’ and provides as follows:

“Whoever, by words, either spoken or written, or by signs, or by visible representation,

or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to
excite disaffection towards the Government established by law in India….” It is further
provided that the word ‘disaffection’ in this section includes disloyalty and feelings of enmity.

A plain reading of the above Section would show that its application would be attracted only
when the accused brings or attempts to bring into hatred or contempt or excites or attempts to
excite disaffection towards the Government established by law in India, by words either
written or spoken or visible signs or representations etc. Keeping in view the prosecution
evidence in the Balwant Singh case the slogans as noticed above were raised a couple of
times only by the appellant and that neither the slogans evoked a response from any other
person of the Sikh community or reaction from people of other communities, we find it
difficult to hold that upon the raising of such casual slogans, a couple of times without any
other act whatsoever the charge of sedition can be founded.

The casual raising of the Slogans, once or twice by two individuals alone cannot be said to be
aimed at exciting or attempt to excite hatred or disaffection towards the Government as
established by law in India, Section 124A IPC, would in the facts and circumstances of the
case have no application whatsoever and would not be attracted to the facts and
circumstances of the case.
In the Ram Nandan vs. State1, the Allahabad High Court held section 124-A to be
unconstitutional citing that the section restricts freedom of speech (Article 19) in disregard of
whether the interest of public order or the security of the state is involved and is capable of
striking at the very root of the Constitution which is free speech. Thus, criticism against the
government policies and decisions within a reasonable limit that does not incite people to
rebel is consistent with freedom of speech and expression.

Even in the Kedarnath Singh case2, the Supreme Court has warned against the arbitrary use
of sedition law because such arbitrary use would violate the freedom of speech and
expression guaranteed by the Constitution. In today’s environment the sedition law seems to
be colonial bogey which expects that citizens should not show enmity, contempt or hatred
towards the government established by law. However, slapping sedition charged merely on
words spoken or written should need to be avoided. Thus, in its current form, there is a grey
area which lies between actual law and its implementation. In many cases, it has been
randomly used. Thus the law needs amendments to minimize those grey areas. However,
such laws are necessary evils in a country like India where so many divisive forces are acting
in tandem. The need for such law is to deter the activities that promote violence and public
disorder.

The first major constitutional challenge to sedition laws arose in the 1950s when the sedition
law was struck down as being violative of the fundamental right to the freedom of speech and
expression3

In cases under Section 124-A, I.P.C., the Courts have not to see the effect on the mind of the
people and they are concerned with the construction of the speech, and the speech has to be
taken as a whole and not just in pieces. A man may criticize or comment upon any measure
or act of the Govt. and freely express his opinion upon it. He may express condemnation but
so long as he confines himself to that he will be protected, but if he goes beyond that he must
pay the penalty for it. The question of intention is always an important factor in such cases.

The casual raising of the slogans, once or twice by two individuals alone cannot be said to be
aimed at exciting or attempt to excite hatred or disaffection towards the Government as
established by law in India. Section 124A IPC, would in the facts and circumstances of the

1
AIR 1959 All 101
2
1962 AIR 955
3
Tara Singh Gopi (1950),Sabir Raza, Ram Nandan in 1958.

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case have no application whatsoever and would not be attracted to the facts and
circumstances of the case.

In Tara Singh Gopichand v. State4, the constitutional validity of s 124A was put to judicial
scrutiny for the first time, it was contended that the section goes against the letter of spirit of
art 19(1) (a) of the Constitution that guarantees the freedom of speech and expression. The
East Punjab High Court declared the section ultra-vires to the constitution as it curtailed the
freedom of speech and expression in a manner not permitted by the Constitution.

That was also the reason that sedition was not opted in the first draft of the constitution as
well. It was also criticised that the validation of laws on the ground that they were “in the
interest of public order” or undermined the “authority or foundation of the state” as
classifications that were too vague. There was a clear consensus among the members of the
Constituent Assembly on the oppressive nature of sedition laws. They expressed their
reluctance to include it as a ground for the restriction of the freedom of speech and
expression. The term ‘sedition’ was thus dropped from the suggested amendment to Article
13 of the Draft Constitution.

Freedom of speech and expression is foundation of all democratic organisations. According

to Supreme Court without freedom of speech and expression, free political discussion no
public education, functioning of the democratic Government is not possible. A freedom of
such amplitude might invoke risks of abuse. Therefore unless a law restricting freedom of
speech and expression is directed solely against the undermining of the security of the state or
the overthrow of it, such law cannot fall within the reservation under clause (2) of Article 19,
although the restriction which it seeks to impose may have been conceived generally in the
interest of public order.

After coming into force of the Constitution the validity of this Section was considered by the
Supreme Court in Thappar5 and Brij Bhushan’s6 Cases. After the decision of these cases
Constitution first amendment came into existence in 1951. According to the Supreme Court if
any person criticise of public measure or comment on Government action, within reasonable
limit and consistent with the fundamental right of freedom of speech and expression than he
would not be came under the Section 124-A of the Indian Penal Code. Only when the words

4
AIR 1951 East Punjab 27
5
A.I.R 1950 S.C. 124
6
A.I.R 1950 SC 129.

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 have the pernicious tendency or intention of creating public disorder or disturbance of law
and order that the provisions of the Section are attracted

Therefore, in the light of arguments raised and authorities cited, it is humbly submitted that
section 124 A of the Indian Penal Code constitutes an unreasonable restriction on the freedom
of speech and expression under Article 19(1)(a) of the Constitution of India.

2. Whether the restrictions imposed on Freedom of Press are valid or not?

It is humbly submitted that the restrictions imposed on the Freedom of press as enshrined
under article 19(1) (g) are not valid and are ultra vires of reasonable restrictions as imposed
by section 19(2) of the Constitution of India.

The importance of freedom of expression and speech can be easily understand by the fact that
preamble of Constitution itself ensure itself ensures to all citizens inter alia, liberty of
thought, expression, belief, faith and worship. The Constitutional significance of the freedom
of speech consists in the preamble of Constitution and is transformed as fundamental and
human right in Article 19(1) (a) as ‘freedom of speech and expression’. The freedom of
speech and expression includes liberty to propagate not one’s view only. It also includes the
right to propagate or publish the view of other people.7 Otherwise this freedom would not
include the freedom of press.

The media in India enjoys a great deal of freedom and when it is threatened the response is
vociferous. Nevertheless, there is the need to maintain a balance between free expression and
other community and individual rights, this responsibility should not be borne by the
judiciary alone, but by all those who enjoy these rights.

Freedom of speech and expression includes freedom of circulation, to the extent that the
ability to propagate one’s expression is inherent in that freedom. Also the democratic
credentials of a state are judged today by how mindful the press is to ensure that the ordinary
citizen actually gets the right to free speech and expression to enable an effective democracy
and that such a right is not denied to them for commercial ends.

It is also humbly submitted that In India the right of a person engaged in the media business
are covered under Article 19(1) (g) subject to restriction under Article 19(6) and not 19 (2).
Article 19(2) does not by itself curtail the right to free speech and expression it allows other

7
Srinivas v. State of Madras A.I.R 1931 MAD .70.

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laws to be made which may have that effect. As clearly stated in Sakal paper v. Union of
India8 executive orders cannot be made to restrict Article 19(1) (a) using 19(2) as justification
the restriction must have the authority of law. Furthermore the determination of whether the
restriction is reasonable or not should be made on a case by case basis9 as a general standard
could not adequately cover the range of circumstances in which restriction may apply. This
will ensure that the ‘practical result’ of actions taken by the state is properly considered to
avoid cases of disproportionate restriction along with their form. The preamble of the Indian
Constitution ensures to all its citizens the liberty of expression. Freedom of the Press has been
included as part of freedom of speech and expression under the Article 19 of the UDHR.

In Romesh Thappar v. State of Madras10, Patanjali shastri C.J. observed freedom of speech
and the freedom of Press lay at the foundation of all democratic organization for without free
political discussion no public education is possible so it is essential for the proper function of
the proper of popular Government. The Supreme Court observed in Union of India v. Assn
for democratic reforms11 139 ‘One sided information’, misinformation and non-information,
all equally create a uniformed citizenry which makes democracy a farce. Freedom of speech
and expression includes right to impart and receive information which includes right to
impart and receive information which includes freedom to hold opinions’. It has been held
that the press plays a very significant role in the democratic machinery. The courts have duty
to uphold the freedom of press and invalidated all laws and administrative actions that
abridge that freedom. Freedom of press has three essential elements. They are

 Freedom of access to all sources of information.

 Freedom of publication.
 Freedom of circulation.

The court said that there can be no doubt that freedom of speech and expression includes
freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation.
Liberty of circulation is an essential to that freedom as the liberty of publication. Indeed
without circulation the publication would be of little value. Restriction on freedom of speech
and expression can only be imposed on grounds of ‘Public Safety’ or the Maintenance of
public order falls outside the scope of authorised restrictions under clause (2) and therefore

8
A.I.R (1962) SC 305 PARA 863
9
State of Madras v. V.G Row (1952) SCR 597
10
A.I.R 1950 SC 124
11
(2002)5 SCC 294.

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void and Unconstitutional which in the instant case as well, the government has applied
unreasonable restrictions which are violative of the reasonable restrictions as enshrined under
section 19(2) of Constitution of India.

The following are the grounds of restrictions laid in Article 19(2):-

 Sovereignty and integrity of India.

 Security of the state.
 Friendly relation with foreign states.
 Public order.
 Decency or morality.
 Contempt of court.

The grounds of ‘public order’ and friendly relations with foreign states’ were added by the
Constitution (first amendment) act 1951. While the ground of ‘sovereignty and integrity of
India’ was added by the Constitutional Amendment Act 1963.

In the instant case the restriction to not publish cartoons does not fall under any of the
reasonable restrictions as enshrined under article 19(2), which clearly provides that the
restrictions are not reasonable and hence shall be struck down.

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