ACCUSED KRISHNA KUMAR WILL NOT BE LIABLE FOR

SEDITION

It is submitted that the statement made by Krishna Kumar will not come within
the ambit of Section124A of Indian Penal Code, as the statement made by him,
was only an expression of opinion on a debatable academic issue, and in no way
intended to incite violence. Also the statement of Krishna Kumar will come
within the ambit of Explanation 2&3, which says that, comment on Govt. action
and policies will not be punishable under Section 124A.

[3.]ACCUSED KRISHNA KUMAR WILL NOT BE LIABLE FOR

SEDITION

By looking into the very facts of the case, it can be clearly deduced that,
Krishna Kumar have been held liable for sedition, for his speech in rally, in
which he claimed that Mashkir deserved to be independent and that they will
seek independence at any cost .In the case of Advocate Manuel P.J. v. State 61
,it was said by the Hon’ble Court that, if there is any offence that is committed
under Chapter IV of the IPC, it has to be examined within the letter and spirit of
the Constitution and not as previously done under the imperial rule. So
as per the constitution of India, it guarantees freedom of speech and expression.
If any act is against any law, but is within the ambit of freedom provided by the
constitution, then it will be just and fair. In Indra Das v. State of Assam and
Arup Bhuyan v. State of Assam, the Supreme Court unambiguously stated that
only speech that amounts to “Incitement to imminent lawless action”can be
criminalized. In Shreya Singhal v. UOI , the famous 66A of Information Act,
2000 judgment, the Supreme Court drew a clear distinction between “advocacy”
and “incitement”, stating that only the latter could be punished. And as Krishna
Kumar only expressed his view on an academic issue, that will only come under
‘advocacy’ and not under ‘incitement’. Also, advocating revolution or
advocating even violent overthrow of the State, does not amount to

Footnote pg 21

9
sedition, unless there is incitement to violence, and more importantly, the
incitement is to
‘imminent’ violence. And as per the facts of the case, there is no imminent
violence, and also the assembly was ended peacefully.
Tara Singh Gopi Chand v. The State of Punjab in which Mr. Chief Justice
Westen, in orderto examine the validity of section 124-A adopted the
interpretation given to it by Mr. JusticeStrachey in the Tilak
case. According to Mr. Justice Strachey, the offence consisted inexciting or
attempting to excite in others certain bad feelings towards the
governmentirrespective of the consequences that may or may not follow.In the
case of Nazir Khan v. State of Delhi, it was said that-‘The very tendency of
sedition is to incite the people to insurrection and rebellion’, but as we can
clearly assert that, by presenting view on a debatable academic issue, Ramaiya
Kumar nowhere tried to incite people to insurrection and rebellion. In the case
of Niharendu Dutt Majumdar , it was said that, thewordings on the basis of
which a person is charged for the offence of sedition, should lead toincitement
to violence, mere against words used are not enough. So by looking into the
facts,it is very clear that, rally in which Ramaiya Kumar delivered speech
concluded peacefully, thusnot leading any incitement of violence, and thus will
not be liable with the charge of sedition.So by the facts it is very clear, that the
meaning of the sentence said by Ramaiya Kumar in hisspeech was not to incite
violence, and thus will not be liable for the charge of Sedition.

Explanation 2&3 of Section 124A-

Also it is very important to note that, Explanation 2 & 3 of Section 124A of
Indian Penal Code,specifically points out that, any Comments expressing
disapprobation of the measures of theGovernment, or any administrative or
other action of the Government, without exiciting orattempting to excite hatred,
contempt or disaffection, do not constitute an offence under thissection.
Disapprobation used in Explanation 2&3 simply means disapproval
. So if we willrelate the facts of the case with the Explanation 2&3, It is only the
disapprobation of theKanahiya Kumar, with the new policies that the
Government is bringing, and not in any way,is raising any incitement against
the State. And as it has been stated in the case of JogendraChunder Bose
, that disapproval could be there against any step or policy, and that would inno
way amount to sedition.
Footnote explntn 2 n 3 pg 24

[3.1]

FREEDOM OF SPEECH AND EXPRESSION OF KRISHNA

KUMAR IS VIOLATED BY HIS ARREST

It is humbly submitted before this Hon’ble court that the arrest of Krishna
Kumar and slapping of Sedition charges on him is violative of his Right to
speech and expression. Krishna Kumar, like any other person has the right to
free speech and expression and this right covers in its ambit all types of beliefs
and expressions expressible subject to the provisions of Constitution. The public
discussion with people's participation is a basic feature and a rational process of
democracy which distinguishes it from all other forms of Government.
.The Rightalso includes the views which are unpalatable to the Government.
An environment in whichhuman rights are respected is nurtured by a vibrant
flow information and avenues for a criticalassessment of governance. In
Bobby Art International v. Om Pal Singh Hoon, the SupremeCourt said that in
democracy, it is not necessary that everyone should sing the same song,different
views are allowed to be expressed by proponents and opponents not because
they arecorrect or valid but because there is freedom in this country for
expressing even different viewson any issue
.

[3.1.1]

MERE CRITICISM OFGOVERNMENT IS NOT PUNISHABLE

:-

Krishna Kumar in his speeches has criticised many of the views of the
government and hence when his views became popular was slapped with the
charges of sedition. But it is humbly submitted before this court that mere
criticism of government policies and expressing viewsagainst a particular party
are not punishable and does not comes within ambit of 19(2). Inshort, freedom
of expression means freedom not only for the thought we cherish, but also
forthe thought that we hate .
Discussion and advocacy are core of freedom of speech andexpression
and even if they cause annoyance, inconvenience or grossly offend,
etc., theycannot be curbed by law.
Free criticism is the foundation of free Government,
for, it is only
Maneka Gandhi v. UOI, (1978) 1 SCC 248; Naraindas Indurkhya v. State of
M.P., (1974) 4 SCC 788; Abramsonv. United States, 250 US 616; Whitneys v.
California, 21A US 357 (1927).
74
Anand Patwardhan v. UOI, AIR 1997 BOM 25; F.A. Pictures International v.
CBFC, AIR 2005 Bom 145.
75
F.A. Pictures International v. CBFC, AIR 2005 Bom 145.
76
AIR 1996 SC 1846.
77
Narain Das v. State of M.P., (1947) 4 SCC 788.
78
Jawali v. State of Mysore, AIR 1966 SC 1387.
79
Ahmed v. State, AIR 1951 All 459; Sarju v. State, AIR 1956 All 589.
80
Narain Das v. State of M.P., (1947) 4 SCC 788.
81
Abraham v. United States, 250 US 616.
82
Devidas Ramachandra Tuijapurkar v. State of Maharashtra, (2015) 6 SCC 1.
83
Prakash Jha Productions v. UOI, (2011) 8 SCC 372.
84
Schneider v. Irvinton, (1939) 308 US 147.

11 through free debate and free exchange of ideas

that the Government remains responsive tothe will of the people and peaceful
change is effected.
The State cannot prevent open discussion and open expression, however hateful
to its policies.
Everyone has a fundamental right to form his own opinion on any issue of
generalconcern . Dissent is quintessence of democracy
Hence in the lights of above authorities and cases we can say that a person is
free to criticisethe government and its policies and will be protected under the
umbrella of Art. 19(1)(a). Hencethe arrest of Ramaiya Kumar and charges
against him are not sound in law.
[3.1.2]

FREEDOM OF SPEECH OFRAMAIYAKUMAR IS NOT

RESTRICTED UNDER 19

(2):-
It is humbly submitted before this Hon’ble court that in the present case the
Speech of
RamaiyaKumar does not comes within the ambit of these restrictions.
Moreover, the Restrictionimposed by the impugned Amendment Act does not
fall in any of grounds under Art. 19 (2).
Speech of Ramaiya Kumar does not fall in any grounds mentioned under Art
19(2): -
Therestrictive clauses in 19(2-6) are exhaustive and must be construed strictly.
89
Freedom ofspeech can only be restricted on the grounds mentioned in 19 (2).
90
It cannot like the freedom to carry business, be curtailed in the interests of
general public
91
. The courts are always thereto strike down curtailment of I freedom of the press
by unconstitutional means.
92

Sovereignty, integrity and Security of state is not threatened by the said

speech
: -. In orderto check the above grounds,the ‘Clear and Present Danger Test’
evolved by the U.S. SupremeCourt in Schenck v. United States
93

is followed which says “

The question in every case iswhether the words used are used in such
circumstances and are of such a nature as to create aclear and present danger
that they will bring about the substantive evils that the legislature has
85

S. Khushboo v. Kanniammal, (2010) 5 SCC 600; Whitney California, 274 US

357 (1927)
86
Terminillio v. Chicago, (1949) 337 US 1; Stromberg v. Griffs, (1931) 283 US
359.
87
Arvind P Datar, Commentary On The Constitution Of India 582 (2
nd
edn., 2010).
88

S Rangarajan and Ors. v. P Jagjivan Ram and Ors., (1989) 2 SCC 574; Ozair
Hussain v. UOI, AIR 2003 Del103.
89
Supt. v. Ram Manohar, AIR 1960 SC 633; Kedar Nath v. State of Bihar; Sodhi
Samsher v. State of Pepsu, AIR1954 SC 276.
90
Sakal Papers (P) Ltd. and Ors. v. UOI, AIR 1962 SC 305; Tata Press Ltd. v.
Mahanagar Telephone Nigam Ltd.,(1995) 5 SCC 139; Hamdard Dawakhana
(Wakf), Lai Kuan v. UOI, AIR 1960 SC 554; Odyssey Communications(P) Ltd.
v. Lokvidayan Sanghatana, 1988 Supp (1) SCR 486; S. Rangarajan v. P.
Jagjivan Ram, (1989) 2 SCC574; Printers (Mysore) Ltd. v. Asstt. CTO, (1994)
2 SCC 434; K.A. Abbas v. UOI, (1970) 2 SCC 780.
91
Shreya Singhal v. UOI , AIR 2015 SC 1523; Chaptinsky v. New Hampshire, 86
L Ed 1031 ;Kameshwar Prasadv. State \of\ Bihar,AIR 1962 SC 1166; AIR 1962
SC 305; Supt., Central Prison v. Ram Manohar Lohia, AIR 1960SC 633;
Cantwell v. Connecticut, 128 ALR 1352 (1940); Devidas Ramachandra
Tuljapurkar v. State{of\Maharashtra, (2015) 6 SCC 1.
92
Kruse v. Johnson, (1898) 2 QB 91; Indian Express Newspapers v. UOI, (1985)
1 SCC 641; State of Madras v.V.G. Row, AIR 1952 SC 196.
93
63 L. Ed. 470 (1919).

a right to prevent. It is a question of proximity and degree

”. This test is followed in India 94
The Supreme Court in some other cases has used the expression "tendency" to
create immediate public disorder.95
The 'clear and present danger test is whether the words used are used in
suchcircumstances and are of such a nature as to create a clear and present
danger that they will
bring about substantive evils that the legislature has the right to prevent.”96

The anticipateddanger should not be remote, conjectural or far-fetched.97

It should have proximate and directnexus with the expression. The expression
of thought should be intrinsically dangerous to
the public interests. It should be inseparably locked up with the action contempl
ated like theequivalent of a "spark in a powder keg".98

Emotionally charged rhetoric by itself is not sufficient to hold that speeches are
likely to incitelawless action unless the language is followed by acts of
violence.99
Even the advocacy of
‘revolution of the toiling masses,’ has been held not to be prejudicial to the
security of the State,
where it was not suggested that the toiling masses should effect the revolution
by resorting toarms.100

Public Order is not threatened by the said acts :-

It is humbly Submitted that the acts ofPress and Ramaiya Kumar does not
create a public disorder Mere apprehension of disturbanceis not enough to
overcome the right to freedom of expression.101
Public order is an expressionof wide connotations and includes public safety or
interest and signifies that the State oftranquillity prevailing among the members
of a political society.102
Mere Support of a bannedorganisation cannot incriminate a person unless he is
proved to have resorted to acts of violenceor incited people to imminent
violence or does an act intended to create disorder or disturbanceof public peace
by resort to imminent violence103

Law and Order’ comprehends disorders of 94

S Rangarajan and Ors. v. P Jagjivan Ram and Ors., (1989) 2 SCC 574; State of
Bihar v. Shailabala Devi, AIR1952 SC 329; Ramji Lal Modi v. State of U.P.,
AIR 1957 SC 620; Kedar Nath Singh v. State of Bihar, AIR 1962SC 955;
Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130.
95
Schenck v. United States, 249 US 47 (1919); Terminiello v. Chicago, 337 US 1
(1949); Brandenburg v. Ohio.395 US 444 (1969); Virginia v. Black, 538 US
343 (2003); Abrahm v. United States, 63 L. Ed. 1173 (1919);Gompers v. Buck's
Stove & Range Co., 34 LRA (NS) 874 (1911); Virginia v. Black, 538 US 343
(2003); Wattsv. United States, 22 L. Ed. 2d 664: 394 US 705 (1969).
96
Duda v. Shiv Shankar, AIR 1988 SC 1208; R.P. Ltd. v. Indian Express, AIR
1989 SC 190; AP v. P. LaxmiDevi, AIR 2008 SC 1604.
97
N.K. Bajpai v. UOI, AIR 2012 SC 1310; Kama Krishna Sircar v. Emperor, AIR
1935 Cal 636.
98
Manohar Damodar Patil v. Government of Bombay, AIR 1950 Bom 210;
Niharendu Dutt Majumdar v.Emperor, AIR 1942 FC 22; Handyside v. United
Kingdom, 1976 EHRR 737.
99
State of Bihar v. Sailabala, AIR 1952 SC 329; NAACP v. Claiborne Hardware
Co., (1982) 458 US 886.
100
Manohar v. State of Bombay, AIR 1950 Bom 210; Badri Narain v. Chief Secy.,
AIR 1941 Pat 132.
101
Tinker v. Des Monis School Dist., (1969) 393 US 503.
102
Ram Manohar v. State Of Bihar, AIR 1966 SC 740; Kishori Mohan Beral v.
State of W.B., AIR 1972 SC 1749.
103
Arup Bhuyan v. State of Assam, AIR 2011 SC 957; Indra Das v. State of
Assam, (2011) 3 SCC 380; State ofKerla v. Raneef, (2011) 1 SCC 784; Kedar
Nath v. State of Bihar, AIR 1962 SC 955; Elbrandt v. Russel, (1984)384 US 11;
United States v. Robel, (1967) 389 US 258.

less gravity than those effecting “public order” just as public or

der comprehends disorders of
less gravity then those effecting “Security of State”
104

Hence an activity which affects ‘law andorder’ may not necessarily affect
‘public order’
105
. Hence it can be concluded that acts ofRamaiya Kumar and press can lead to
law and order but not public disorder, thus not restricted.

[4.1.2.]

ASSEMBLY BY SUPPORTERS WAS LAWFUL

According to Section 129(1) of Code ofCriminal Procedure, 1973 authorities

the Magistrate or the Police to disperse assembly-
“if it is
likely to cause a d
isturbance of the peace”. So it is very clear that, a lawful assembly becomes
unlawful, if it is likely to cause a disturbance of the peace. And as per the facts
of the case,assembly by the supporters of AISU was for expressing solidarity
and also it ended peacefully,thus in no way caused disturbance of peace. Also in
the case of
Beauty v. Gilbanks
110
, andEmperor v. Tucker
111
, it was said that a lawful meeting may be dispersed if it is likely to excitesuch
opposition as may endanger the public peace. So as per the facts of the case, as
theassembly was peacefully conducted on Highway, where only the protestors
were there, then it,in no way would lead to disturbance of public peace. Also
it was only due to the action of Lathicharge by police that lead to the nationwide
violent protest, and in no way supporters wereliable, to cause disturbance of
public peace.

In one of the cases

112
, it was observed that to interfere with the private rights of individuals
onanything short of strongest necessity
113
would make-
“
not the law of the land but the law of the
mob supreme.”
114
In the case of
Babulal v. State of Maharashtra
115
, the action cannot be takenunless danger to public order is imminent. But in the
present case, there was no imminentdanger to public and thus the assembly was
lawful, and not became unlawful

110 (1882) 9 QBD 308.

111 (1882) 7 Bom 42.
112 Humphires v. O’Connor,(1864) 17 Ir. CLR 1.
111 Robertson, Freedom, The Individual and the Law 85 (1989).
114 Humphires v. O’Connor, (1864) 17 Ir. CLR 1.

115 AIR 1961 SC 884