Lex Omnia Moot Proposition 5x5oi

BITS PILANI – K.K.BIRLA GOA CAMPUS’

WAVES – 2016 In association with

NALSAR UNIVERSITY OF LAW

Presents

LEX OMNIA MOOT COURT – 2016 MOOT PROPOSITION

Lex Omnia Moot Court Competition 2016 | BITS Pilani – K.K. Birla Goa Campus Proposition

PROPOSITION A. Dharmanand Pover v. Union of India (Special Leave Petition no. 1996/2016)

1.

Kamlalal Nohru University (“KNU”) is an elite educational institution located in Delhi, India, that offers, inter alia, post-graduate courses in the liberal arts. The student politics at KNU has traditionally been dominated by students d to the Championist Party of India – Farcist (“I-F”), a left-leaning political party with communism as its core ideology. The other significant political presence on the KNU campus is of students d to the Desh Jalao Party (“DJP”), a right-wing political party with a pro-Hindutva agenda. Verbal spats between rival political camps are common, and there have been instances of physical violence in the past between I-F and DJP d students at KNU. Sanwariya Kumar, Kabmar Khalid and Kamiban Bhattacharya are I-F d PhD scholars at KNU. Sanwariya Kumar was elected president of the KNU students” council for the academic year 2016-2017.

2.

Every year, certain students at KNU conduct a rally to condemn the occupation of certain parts of the territory of Kashmir by the Republic of India. This rally has been conducted every year since 1984, the year of the hanging of Taqbool Jatt, a Kashmiri separatist leader. At the annual rally conducted on February 9, 2016, various slogans were raised against the tyranny of the Indian state. The slogans were initially about “Azadi” (an expression commonly understood to connote the struggle of the Kashmiri people against Indian rule), but the tenor of the slogans soon changed to anti-India chants. It is alleged that slogans to the effect of “death to India”, “we will wage war against this tyrannical state till it crumbles” and “we will avenge the murder of Taqbool” were raised. of DJP filmed the entire event and subsequently alerted the police. The police arrived at the KNU campus and arrested Sanwariya Kumar, Kabmar Khalid and Kamiban Bhattacharya on charges of sedition under section 124A of the Indian Penal Code, 1860 (“Section 124A”). They were subsequently released on conditional bail, and criminal proceedings against them are currently pending. The I-F d students held several rallies subsequently, and committed themselves to defending their freedom of speech and expression.

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Lex Omnia Moot Court Competition 2016 | BITS Pilani – K.K. Birla Goa Campus Proposition

3.

On hearing about this matter, Dharmanand Pover, a public-spirited advocate, agreed to represent the students of KNU. He filed a writ petition before the High Court of Delhi under Article 226 of the Constitution of India, arguing that:

(i) the crime of sedition within the meaning of Section 124A constituted an unreasonable restriction on the right to freedom of speech and expression set out in Article 19 of the Constitution of India; and (ii) Article 19 protects the freedom of the individual to disagree with state policy and dissent against actions of the state.

4.

The High Court disagreed with Mr. Pover’s submissions and upheld the constitutionality of Section 124A, holding it to be a reasonable restriction on the right to freedom of speech and expression set out in Article 19. The single judge bench of the High Court observed: “The thoughts reflected in the slogans raised by some of the students of KNU who organized and participated in that programme cannot be claimed to be protected as fundamental right to freedom of speech and expression. I consider this as a kind of infection from which such students are suffering which needs to be controlled/cured before it becomes an epidemic. Whenever some infection is spread in a limb, effort is made to cure the same by giving antibiotics orally and if that does not work, by following second line of treatment. Sometimes it may require surgical intervention also. However, if the infection results in infecting the limb to the extent that it becomes gangrene, amputation is the only treatment.”

5.

However, the High Court of Delhi granted Dharmanand Pover leave to appeal to the Supreme Court. Hence, the present appeal.

B. Gentlemanian Swamy v. Laveesta Ketalvad (Special Leave Petition no. 1997/2016)

6.

Gentlemanian Swamy is a Member of Parliament with a strong pro-Hindutva ideology. He enjoys mass from various categories of people, particularly of the Random

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Lex Omnia Moot Court Competition 2016 | BITS Pilani – K.K. Birla Goa Campus Proposition

Self-Helping Sods (“RSS”). Gentlemanian routinely writes negatively about various fellow politicians and of minority communities, and has in the past filed various cases questioning transactions involving other politicians.

7.

To propagate his ideology of Hindu superiority, Gentlemanian also runs a flourishing CD business through his wholly-owned company, I Love Trump Limited, which specialises in producing and distributing provocative songs and videos targeting minority communities with explicit threats of mass murder and sexual violence. His CDs are very popular in North India, and his songs and videos are routinely played at meetings of the RSS.

8.

Laveesta Ketalvad, an advocate specialising in representing victims of communal violence, filed a writ petition before the High Court of Delhi under Article 226 of the Constitution of India, seeking a ban on the production and sale of CDs by I Love Trump Limited. She argued that the CDs were provocative and sought to create discord between communities, leading to escalated tension and the outbreak of communal riots, and the production and distribution of CDs constituted the crime of promoting enmity between communities within the meaning of section 153A of the Indian Penal Code, 1860. Gentlemanian argued that the right to carry on any trade or occupation under Article 19 of the Constitution of India protected his right to produce and distribute CDs. The High Court of Delhi ruled in favour of Laveesta, and held that the ban on production and distribution of CDs was a reasonable restriction on Gentlemanian’s right to carry on any trade or occupation. The single judge bench of the High Court observed: “The respondent is well-known to the world as a mischief monger. A bare perusal of the literature distributed by him reveals his evil intentions to heighten animosity and distrust between communities. He advocates for the killing of all non-Hindus if they do not accept their Hindu ancestry. Such a man must not be allowed to air his venomous thoughts to the gullible youth of this great nation. Accordingly, we find that an outright ban on the production and distribution of CDs by I Love Trump Limited is a reasonable restriction on the respondent’s right to carry out any trade or occupation.”

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Lex Omnia Moot Court Competition 2016 | BITS Pilani – K.K. Birla Goa Campus Proposition

9.

Hence, the present appeal.

C. Appeals before the Supreme Court of India 10. Both matters were mentioned before the Chief Justice of India on an urgent basis, who was pleased to order the registry to club these matters and list them for hearing. Accordingly, the matters have been listed on July 30, 2016 for arguments and disposal. The Attorney General of India will be representing the Union of India and Gentlemanian in the respective appeals. Dharmanand Pover and Laveesta Ketalvad will make t submissions in the respective appeals. 11. Accordingly, the issues framed for hearing before the Supreme Court of India are as follows: (i) 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; and (ii) Whether the ban of production of CDs by I Love Trump Limited constitutes an unreasonable restriction on the freedom to carry out any trade or occupation under Article 19(1)(g) of the Constitution of India.

D. Notes: (i) The appellants shall present arguments on behalf of Dharmanand Pover and Laveesta Ketalvad and the respondents shall present arguments on behalf of the Union of India and Gentlemanian Swamy. (ii) Appellant has to argue that in the first problem the restriction is unreasonable and in the second problem it is reasonable. The Respondent is the Attorney General and shall argue that in the first case restriction is reasonable and second case unreasonable. All expressions used but not defined shall carry their ordinary meanings. The problem has been framed by Mr. Anjaneya Das, NALSAR Batch of 2013. Any attempt to Mr. Das on matters relating to this problem shall result into immediate disqualification.

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