ARGUMENTS ADVANCED

1. WHETHER THE APPLICANT MADE A FAIR CRITICISM OF THE

JUDGEMENT RENDERED BY THE CONSTITUITIONAL BENCH?.

1.1. THAT THE FREEDOM OF SPEECH AND EXPRESSION IS A

FUNDAMENTAL RIGHT GRANTED TO THE CITIZENS OF
SAURASHTRA UNDER ARTICLE 19(1)(A) OF THE CONSTITUTION
OF SAURASHTRA

1.1.1. It is reverentially submitted that the constitution of Saurashtra provides the

fundamental right of freedom of Speech and Expression to all its citizens under this
section. The applicant therefore has the right to express his views regarding the
prevailing issues in the country. He has acted well within his rights with
respect to the same.
1.1.2. It is humbly submitted that the freedom of speeche as provided under Article 19(1)
(a) includes the right to express ones views at any issue through any medium, e.g.
words of mouth, writing, printing, film, movie etc. It thus includes the freedom of
communication and the right to propagate or publish any opinion. 1 The applicant
used social media as a medium to share his views with the rest of the people. He has
the right to propagate his views by way of writing as has been said above.
1.1.3. It is reverentially submitted that out of the several rights enumerated in clause (1) of
Article 19, the right in sub clause (a) is not merely a right of speech and expression
but a right to freedom of speech and expression. 2 This view had been taken in the
Supreme Court case of Dharam Dutt v. Union of India.3 This means that a person

1 Radha Mohan Lal v. Rajasthan High Court, (2003) 3 SCC 427.

2 Dharma Dutt v. Union of India, (2004) 1 SCC 712.
3 Ibid
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has a right not just to speak, but also to speak without any kind of inhibition or fear,
i.e. with freedom.

1.2. THAT FREEDOM OF SPEECH IS THE BASIC ESSENCE OF

DEMOCRACY

1.2.1. It is humbly submitted that in Maneka Gandhi v. Union of India4, BHAGVATI J.

had said that Democracy is based essentially on free debate and open discussion,
for that is the only corrective of government action in a democratic setup. If
democracy means government of the people, by the people, it is obvious that every
citizen must be entitled to participate in the democratic process and in order to
enable him to intelligently exercise his right of making a choice, free and general
discussion of public matters is absolutely essential. This shows us that the right to
freedom of speech and expression forms a basic structure of the democracy. Hence,
the applicants act of freely presenting his ideas about the decision given by the
constitutional bench by weighing its pros and cons in the light of his understanding
is a legitimate action and a pure expression of his views. He is well within his rights
as a citizen to hold a view about an aspect as crucial as the one referred in this case,
and propagate it.
1.2.2. It is reverentially submitted that the difference between clause (a) and other clauses
of the Article 19(1) is notable in this regard; while other clauses grant the right to do
something, clause (a) grants the right to freedom to do something. It does not
mean that the right under clause (a) is a lesser right than the rights under other
clauses. Contrary to that, it is the most important amongst them all. It is the bulwark
of a healthy, progressive and democratic society. It leads to the creation of new ideas
and knowledge, finding of truth, building tolerance and receptivity and is essential
for self rule.5 Hence, the applicant who just tried to put forward a different
thought regarding the NJAC judgment by comparing the independence of judiciary

4 Maneka Gandhi v. Union of India, AIR 1978 SC 597.

5 Bennet Coleman and Co. v. Union of India, AIR 1973 SC 106.

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and sovereignty of Saurashtras Parliament is well within the purview of Article

19(1)(a).

1.3. THAT THE CONTENT OF THE ARTICLE DOES NOT VITIATE

THE REASONABLE RESTRICTIONS PROVIDED UNDER ARTICLE
19(2) OF THE CONSTITUTION

1.3.1. It is most humbly put forth that Article 19(2) provides for the various grounds on
which the right to freedom of speech and expression can be restricted, including
defamation, contempt of court, etc. In the case of Chintaman Rao v. The State of
Madhya Pradesh6, the Honble Bench of this court had held that reasonable
restriction can only be imposed by subjecting the issue at hand to due consideration
so that the right is not unnecessarily infringed upon.
1.3.2. In another case of the Honble Supreme Court, it had been held hat restricting the
fundamental right concerning freedom of speech on any grounds other than the ones
laid down in Article 19(2) shall defeat the very purpose of the constitution to confer
this right on Indian citizen to protect their views which are essential for the
Democracy.7
1.3.3. It is reverentially submitted that in the case of S. Rangarajan v. Jagjivan Ram8, the
Honble Court noticed that the debate about the conflict between the provisions of
Article 19(1)(a) and that of Article 19(2) of the Constitution of India inclines
towards the need to preserve the interest of the citizens over the special interests
unless the community interest is at stake as a direct result of the act. None of these
requirements, as laid down by the Honble Court can be seen to be met with in the
case at hand.

6 In Chinataman Rao v. The State of Madhya Pradesh, [1950] SCR 759.

7 Secretary Ministry of Information & Broadcasting, Government of India v. Cricket Association of Bengal,
(1995) 2 SCC.
8 S. Rangrajan v. Jagjivan Ram, (1989) 2 SCC 574.

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1.3.4. It is therefore contended before the respected bench that construing the applicants
article to be exceeding his fundamental right shall deprive a valuable citizen of the
protection that the Constitution confers equally on all its citizens.

1.4. THAT THE VIEWS PRESENTED BY THE APPLICANT AMOUNT

TO A FAIR CRITICISM OF THE JUDEGMENT OF THE
CONSTITUTION BENCH.
1.4.1. The limit of fair comment being an integral part of the larger liberty of the freedom
of speech and expression, it could not be put in a straight-jacket formula or
converted into a master-key which will open any lock. More or less it would depend
upon the facts and circumstances of each case, the situation and circumstances in
which the comment was made, the language employed, the context in which the
criticism was offered and the people for whose benefit the exercise was undertaken,
and the effect it will produce on the litigants and the society in relation to courts and
administration of justice.
1.4.2. This has been said by the court in the case Ram Dayal Markhara v. State of
Madhya Pradesh.9 When we look at the contents of the article in question, which
had been written by the applicant, we do not come across any statement or word
which shows a biased judgment of the writer. It does not raise any question on the
competence of the system or any individual in particular. It is based on the pure
merits of the Constitution Bench decision. Hence the views presented amount to fair
criticism of the judgment.
1.4.3. It is humbly submitted that a criticism may fairly assert that the judgment is
incorrect or an error has been committed both with regard to law or established
facts. The above view was held in the case of High Court of Karnataka v. Proof.
P.N. Shetty.10 The article which is in question puts forth the writers views about the
correctness of the Constitution Bench decision. The same amounts to a fair
criticism. These are his very views, as has been mentioned in the article as well.
the views expressed are personal Therefore, in the present case it can rightly be

9 Ram Dayal Markhara v. State of Madhya Pradesh, 1978 AIR 721.

10 High Court of Karnataka v. P.N. Shetty, 1996 CriLJ 1747.

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said that the views presented by the applicant are a fair criticism of the decision of
the Constitution Bench.

2. WHETHER APPLICANT IS PRIMA FACIE GUILTY UNDER SECTION

124A & 505 SAURASHTRA PENAL CODE?

2.1. THAT THE ARTICLE WAS A MERE CRITICISM OF THE NJAC

JUDGEMENT.
2.1.1. It is humbly submitted that Section 124A of I.P.C. defines sedition as.
COMMENTS EXPRESSING DISPROBBATION OF THE ADMINISTRATIVE
OR OTHER ACTION OF THE GOVERNMENT WITHOUT EXCITING OR
ATTEMPTING TO EXCITE HATRED, CONTEMPT OR DISAFFECTION, DO
NOT CONSTITUTE AN OFFENCE UNDER THIS SECTION .
2.1.2. It is humbly submitted as has been clearly mentioned in the section itself, a
comment expressing dissent from the action of the Government is exempted from
being regarded as seditious. The applicant, having been a part of the judiciary for a
considerable amount of time, was merely attempting to share his take on the much
talked of NJAC Judgement. The article also does not seem to be one which can
incite any anti national feelings among the citizens of the country. It is therefore
appealed that the applicant be freed of all charges that have been imposed on him
under section 124A.

2.2. THAT MERE CRITICISM CANNOT BE REGARDED AS

SEDITION UNDER SECTION 124 A.

2.2.1. It is reverentially submitted that in a democracy, right to freedom of speech and

expression holds great importance for the reason that it is the only means to ensure
that the opinions of the masses is known by the leaders and they take decisions with

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regard to the same. Criticism of the Government is well within the ambit of this
right. 11Citizens are certainly entitled to express their grievances and to endeavour to
get them redressed through lawful means. The applicant here has exercised his
fundamental right and holding him liable for punishment under sedition shall be
against the very provisions of the constitution.
2.2.2. It is reverentially submitted that in Justice (Retd.) Markandey Katju v. The Lok
12
Sabha & Ors. , this court had said that In any event, Article 19(1)
(a) guarantees free speech and expression and makes no distinction and imposes no
caveats, whether such speech is popular or dissenting in nature. It further
emphasizes the fact that barring citizens of India from expressing a view which
differs from that of the Government will deprive them of their fundamental right. It
is not justified to charge the applicant with sedition for the rightful exercise of a
right which has been conferred upon him by the very Constitution of India.

2.3. THAT MERE CRITICISM CANNOT BE REGARDED AS PUBLIC

MISCHIEF UNDER SECTION 505.

2.3.1. It is humbly submitted that Section 505 of I.P.C.13 defines Statements conducing to
public mischief as WHOEVER MAKES, PUBLISHES OR CIRCULATES ANY
STATEMENT, RUMOUR OR REPORT, -
(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to
any section of the public whereby any person may be induced to commit an offence
against the State or against the public tranquillity;
This section, like other sections of the same kind which deal with liberty of a
citizen, must be construed very strictly in favour of the defence.14

11 P Hemalatha v. Govt. of Andhra Pradesh, AIR 1976 AP 375.

12 Justice(Retd.) Markandey Katju v. The Lok Sabha & Ors, 2016(12)SCALE91.
13 Indian Penal Code, 1860
14 Shib Nath Banerjee v. Emperor, I.L.R. (1937) 1 Cal.

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2.4. THAT THE ARTICLE DID NOT INCITE ANY SORT OF

VIOLENCE OR DISAFFECTION AMONG THE MASSES.

2.4.1. It is humbly submitted that in the landmark case of Kedarnath Singh v. State of
Bihar15, the apex court had laid down the essentials of Sedition as given in section
124A as follows:
The provisions of the sections read as a whole, along with 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
2.4.2. The case before this court involves peaceful expression of opinion regarding the
NJAC Act by the applicant in the form of the article. The content also clearly
indicates the absence of use of any objectionable language. The applicant, who is
the author, speaks of his intention for the betterment of the country. Hence, no
ground, whatsoever, exists to hold the applicant guilty under section 124A & 505 of
the IPC.
2.4.3. It is most respectfully suggested that in the case of Kishori Mohan v. State of West
Bengal, the Honble Supreme Court had touched the topics of the distinction
between law and order, public order and security of state, and had mentioned that
mere criticism of the Government is not capable of threatening public order by
disturbing public tranquility. It is therefore requested before the Honble Bench that
the Applicant shall be freed of all Charges filed against him under section 124A and
505 of IPC as his expression falls well within the ambit of a fair criticism, and hence
it is not capable of causing any public upsurge, or being qualified as a seditious act.
2.4.4. It is humbly submitted that the decision of the supreme court in the Kedarnath case
was upheld by a division bench of the court in the case Sri Indra Das v. State of
Assam 16:
If on the other hand we were to hold that even without any tendency to disorder or
intention to create disturbance of law and order, by the use of words written or
15 Kedarnath Singh v. State of Bihar, 1962 AIR 955; Common cause and Ors. v. Union of India,
2016(4)RCR(Criminal)768;
16 Sri Indra Das v. State of Assam, 2011 (3) SCC 380.

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spoken which merely create disaffection or feelings of enmity against the

Government, the offence of sedition is complete, then such an interpretation of the
17
section would make them unconstitutional in view of Article 19(1)(a) read with
clause 2.
Therefore, holding the applicant liable under section 124A & 505 in the present
circumstances shall be an infringement of his fundamental right to freedom of
speech and expression. He is well within his rights as criticism of the Government
action is permitted under this right.
2.4.5. It is reverentially submitted that in a recent Bombay High Court Judgement of
Sanskar Marathe v. State of Maharashtra18, the court reiterated the landmark
judgement and disposed the PIL in favour of the petitioner. The court upheld the
view that the charges of sedition cannot be imposed unless the expression of opinion
by the concerned person does not pose a threat to the government by way of public
violence, and that people of the country have the right to say what they feel about
the Government, regardless whether it is assent or dissent.
2.4.6. It is humbly submitted that in Shreya Singhal v. Union of India19, this court held
that:
This leads us to a discussion of what is the content of the expression freedom of
speech and expression. There are three concepts which are fundamental in
understanding the reach of this most basic of human rights. The first is discussion,
the second is advocacy and the third is incitement. Mere discussion or even
advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)
(a).
When we take a look at the article on Friendsbook for which Sedition has been
invoked, it becomes clear that it cannot be construed as one which will incite the
public. It can be understood to be initiation of a discussion based purely on the
understanding of the merits of the case.

17 Article 19, Constitution of India, 1950.

18 Sanskar Marathe v. State of Maharashtra, Criminal Public Interest Litigation No. 3 of 2015.
19 Shreya Singhal v. Union of India, AIR 2015 SC 1523.

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2.4.7. It is humbly submitted that in the case of Arun Jaitely v. State of UP20, the Honble
Court of Allahabad adjudged that for any article or speech to fall within the ambit of
section 124A of IPC, it was important that the same qualified as having a pernicious
tendency of creating public disorder, thereby discharging him of all allegations. In
the absence of such a tendency, it shall be unjust to charge a person for sedition.
This had also been said in a previous decision of the Supreme Court in the case of
Rangarajan v. P. Jagjivan Ram & Ors21., and in recent decision of N. Sengodan v.
Secretary to Government, Home (Prohibition and Excise) Department, Chennai
and Ors. 22.

3. WHETHER THE JUDICIAL MAGISTRATE COMMITS AN ERROR TO

TAKE SUO MOTO COGNIZANCE UNDER CLAUSE (C) OF SUB
SECTION (1) OF SECTION 190 OF CRIMINAL PROCEDURE CODE?

3.1. THAT THE JUDICIAL MAGISTRATE WAS REQUIRED TO

TAKE PRIOR SANCTION OF THE GOVERNMENT IN THE PRESENT
CIRCUMSTANCE
3.1.1. Section 19623 It is humbly submitted that the provisions of Sub Section 190 of the
Criminal Procedure Code are prefaced by the words subject to the provision of this
chapter. Clause (c) of subsection (1) confers a power on the Magistrate to take
cognizance of an offence upon information received from any person other than the
police officer or upon his own knowledge that such has been committed. The
jurisdiction of the Magistrate therefore, to take suo moto cognizance of an offence is
not in doubt.
3.1.2. But such cognizance cannot be taken without following the procedure prescribed
under Section 196 of the Code of Criminal Procedure. Neither does Section 196

20 Arun Jaitely v State of UP, 2016 (92) ALLCC 352.

21 Rangarajan v. P. Jagjivan Ram & Ors., (1989) 2 SCC 574.
22 N. Sengodan v. Secretary to Government, Home (Prohibition and Excise) Department, Chennai and Ors., (2013)
8 SCC 664.
23 Code of Criminal Procedure, 1973.

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carve an exception in respect thereof or exclude clause (c) of Section 190(1) from
the width of its operation.24

3.2. THAT THE JUDICIAL MAGISTRATE COMMITS PROCEDURAL

ILLEGALITY BY TAKING SUO MOTO COGNIZANCE WITHOUT
PRIOR SANCTION.

3.2.1. It is reverentially submitted before the Honble Bench that in the case of
Narayandas Bhagwandas Madhavdas v. State of West Bengal25, the apex court had
interpreted section 190 of CrPC by comprehending the term Cognizance to mean
that the Judge knows about the all facts about the complaint and the allegations
made, and he/she then decides to judge its validity. In the case before the Honble
bench today clearly shows that the Judicial Magistrate had crossed this threshold
way back in time as he had now filed a complaint case in the District Court. His
actions can therefore be understood to prove that the magistrate had not just taken
cognizance of the issue, but also violated the laws of the land. This was also
reiterated in the case of Kishun Singh & Ors. v. State of Bihar.26
3.2.2. The requirement of a sanction as a prerequisite for taking cognizance was a
principle which was reiterated in the case of Aveek Sarkar v. State of Bengal27, in
which the judge said under the provisions of Section 196 of CrPC no court has
been given the authority to take cognizance except with the previous sanction of the
State Government. To the mind of this court having regard to the language of
Section 196 CrPC (supra) the use of the expressions shall and previous make
the intention of the legislature clear.
3.2.3. It is humbly submitted that in the case of Arun Jaitley v. State of UP28 it was held
that the Magistrate clearly erred in proceeding to exercise jurisdiction under
Section 190(1)(c) and therefore, the order taking cognizance of the alleged offence

24 Arun Jaitley v. State of UP, 2016 (92) ALLCC 352.

25 Narayandas Bhagwandas Manohardas v. State of West Bengal, AIR 1959 SC 1118.
26 Kishun Singh & Ors. V. State of Bihar, (1999) 3 SCC 16.
27 Aveek Sarkar v. State of Bengal, (2014) 4 SCC 257.
28 Arun Jaitley v. State of U.P., 2016 (92) ALLCC 352.

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and issuance of summons cannot be sustained. In the given case as well, the
magistrate did not attain prior sanction and hence, erred in proceeding to exercise
his jurisdiction.
3.2.4. in a case where no sanction was given in accordance with the provision of
Section 196, the entire proceedings were liable to be quashed. This was given in
the case of Manoj Rai & others v. State of MP29, which further proves the point that
the magistrate committed procedural illegality by initiating the proceedings without
undertaking due procedure and hence, the proceedings are liable to be quashed on
these grounds.

29 Manoj Rai & others v. State of MP, AIR 1999 SC 300.

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