petitioner nme 195

SYMBIOSIS LAW SCHOOL, NOIDA L ASCENT (NATIONAL) MOOT COURT COMPETITION, 14

i

TEAM CODE- NME-195

IN THE HONBLE SUPREME COURT OF UNION OF INDIA

WRIT JURISDICTION

W. P. No.___/2014

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

In the matter of Articles 14, 19(1) (g) and 21,

Of the Constitution of India

BABA HEDONESH AND OTHERS .............................PETITIONER

V.

UNION OF INDIA..............................RESPONDENT

Before submission to the Honble Chief Justice and his

companion Justices of the Supreme Court of India

MEMORANDUM ON BEHALF OF THE PETITIONERS


i

T A B L E O F C O N T E N T S

L I S T O F A B B R E V I A T I O N S . iii

I N D E X O F A U T H O R I T I E S iv

Acts and Legislations ................................................................................................... iv

Books ........................................................................................................................... iv

Articles and Essays ........................................................................................................v

Law dictionaries and Lexicon ...................................................................................... vi

List of Cases ................................................................................................................. vi

Legal Database ............................................................................................................ vii

S T A T E M E N T O F J U R I S D I C T I O N .... viii

S U M M A R Y O F F A C T S ......................................................................................... ix

I S S U E S R A I S E D ......................................................................................................x

S U M M A R Y O F A R G U M E N T S .............................................................................1

I. WHETHER THE WRIT IS MAINTAINABLE OR NOT

A.Maintainability of a Writ under Article 32 of the Constitution .................................2

II. WHETHER SECTION 66A OF INFORMATION TECHNOLOGY IS VALID

OR NOT

A. Violation of Article 19(1)(a)(Freedom of Speech& Expression) of Constitution ....4

B. Violation of Article 14(Right to Equality) & Article 21(Right to life) of

Constitution .................................................................................................................6


ii

III. WHETHER SECTION 69A OF INFORMATION TECHNOLOGY IS

VALID OR NOT

A. Violation of Article 19(1)(a)(Freedom of Speech & Expression) ............................8

IV. WHETHER ARREST UNDER SECTION 153A & 295A OF IPC IS VALID

OR NOT

A. Arrest under section 153A is illegal & Arbitrary under Article 19(2) of Indian

Constitution ...............................................................................................................11

B. Arrest under section 153A is illegal & Arbitrary under Article 25 of Indian

Constitution ...............................................................................................................13

V. WHETHER CENTRL GOVERNMENT HAS WRONGFULLY EXCERCISED

ITS DISCRETION BY IMPLICATING ANANDIS ARBITRARILY &

FRIVOLOUSLY UNDER NDPS ACT, 1985

P R A Y E R 18


iii

L I S T O F A B B R E V I A T I O N S

Abbreviation Full form

AIR All India Reporter

Bom Bombay

Cal Calcutta

Co. Company

& And

Del Delhi

Ed Edition

Guj Gujarat

HC High Court

Honble Honorable

Kar Karnataka

Ker Kerala

Ltd Limited

Mad Madras

M.P Madhya Pradesh

NDPS Narcotics Drugs and Psychotropic Substance

Ori Orissa

Ors Others

PIL Public Interest Litigation

p. Page

Raj Rajasthan

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

UOI Union of India

UP Uttar Pradesh

Vol. Volume


iv

I N D E X O F A U T H O R I T I E S

ACTS AND LEGISLATIONS

I. The Constitution of India, 1950.

II. Indian Penal Code, 1860.

III. Information Technology Act, 2008.

IV. Narcotics Drugs and Psychotropic Substances Act, 1985.

INTERNATIONAL CONVENTIONS

I. Convention On Psychotropic Substances, 1971

II. ICCPR- International Covenant on Civil and Political Rights

III. Single Convention On Narcotic Drugs, 1961

IV. United Nations Convention Against Illicit Traffic In Narcotic Drugs And

Psychotropic Substances, 1988

BOOKS

I. BasuDurga Das, Shorter Constitution of India, Thirteenth Edition, 2003, Wadhwa

and Company, Nagpur.

II. BasuDurga Das, Constitution of India, Volume 1, 2, 3, 6 and 7 Thirteenth Edition,

2003, Wadhwa and Company, Nagpur.

III. Seervai H. M., Constitutional Law of India, Volumes 1, 2 and 3, Fourth Edition

2007, Universal Law Publishing Co. Pvt. Ltd.

IV. BasuDurga Das, Administrative Law, Sixth Edition, 2004, Kamal Law House,

Kolkata.

V. Bhat P. Ishwara, Fundamental Rights, 2004 Edition, Eastern Law House.

VI. Binmore Kin, Natural Justice, Sixth Edition, 2004 Oxford University Press,

Newyork

VII. De D.J., The Constitution of India, 2002, Asia Law House

VIII. Hansarias B.L, Writ Jurisdiction, Third Edition 2005, Universal Law Publishing

Co. Pvt Ltd.

IX. Hidayatullah M, Constitutional Law of India, Vol. 1, BCIT with Arnold Heinemann

Publishers (India) Pvt. Ltd.


v

X. Jain, M.P, Indian Constitutional Law, Sixth Edition 2011, WadhwaButterworths,

Nagpur.

XI. Justice. Banerjee P.B, Write Remedies, 5th Edition 2010, Lexis

NexisButterworthsWadhwa, Nagpur.

XII. P.M. Bakshi, The Constitution of India, Eleventh Edition 2011, Universal Law

Publishing Co., New Delhi.

XIII. ShuklaV.N.,Constitution of India, Tenth Edition 2004, Eastern Book Company.

XIV. Pillais PSA, Criminal Law, Eleventh Edition 2012, LexisNexis

ButterworthsWadhwa, Nagpur.

XV. Gaur K.D., Commentary on the Indian Penal Code, Second Edition, Oxford and

IBH Publishing Company.

XVI. Gupta Apar, Commentary on Information Technology Act, Second Edition,

LexisNexis.

ARTICLES AND ESSAYS

I. Clark, Walter Houston. Chemical Ecstasy: Psychedelic Drugs and Religion. New

York:Sheed and Ward, 1969.

II. Clark, Walter Houston. The psychedelics and religion. In: Bernard Aaronson

andHumphry Osmond (eds.), Psychedelics: The Uses and Implications of

HallucinogenicDrugs. London: Hogarth Press, 1971.

III. Dobkin de Rios, M. Hallucinogens: Cross-Cultural Perspectives. Albuquerque,

NM:

IV. Freedom of Speech: Justifications and Restriction, 2008 Jerusalem, Israel

Democracy Institute

V. Mathai Anahita, Media Freedom and Article 19, 2013, ORF Issue Brief.

VI. Randall Benzanson, The many Faces of government Speech, Iowa Law Review,

2001

VII. Richard Wright, The Principles of Justice, 2010 Notre Dame Law Review

VIII. Setephn J. Hayman, Righting the Balance: An Inquiry into the limits of Freedom of

Speech and Expression,1999, Boston Law Review

IX. Stephen,Freedom of Expression and public Order, 2011,Working Paper

Series.University of New Mexico Press, 1984.


vi

LAW DICTIONARIES/ LEXICONS

I. Aiyer, Ramanatha P., Advanced Law Lexicon, Third Edition, 2005, Wadhwa,

Nagpur.

II. Garner Bryan A., Blacks Law Dictionary, Seventh Edition 2002.

III. Sethi R.P., Supreme Court on Words and Phrases, 2004, Ashoka Law House.

CASES REFERRED

1. A K Roy vs Union of IndiaAIR 1982(1) SCC 271

2. Abdul Rashid Ibrahim Mansuri v. State of Gujarat AIR 2000 SCW 375

3. Ajay Hasia . Khalid Mujib, AIR 1981 SC 487

4. AzizulHaqkausarNaquvi v/s State of U.P., AIR 1980 ALL 149

5. Balwant Singh v. State of PunjabAIR 1995 SC 1785

6. Bilal Ahmed Kaloo v. State of Andhra PradeshAIR (1997) 7 SC 127 (1978) CrLR

178 (184-185) Maharastra

7. Chintaman Rao v. State of Madhya PradeshAIR 1950 SCR 759

8. D.R.I. Vs Raj Kumar Mehta CRL.A. 275/1998

9. D.S. Nakara v. U.O.I,AIR 1983 SC 130.

10. Department of Customs v Hemant Kumar 194(2012)DLT738

11. Dr. N.B. Khare v. State of DelhiAIR 1950 SCR 519

12. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555;

13. K.A. Abbas v. Union of IndiaAIR 1971 SCR (2) 446.

14. Kanu Biswas v. State of West Bengal, AIR 1972 SC 1656

15. Karnail Singh v. State of Rajasthan : 2000CriLJ4635 ;

16. Lalai Singh v. State of Up, 1971, CrLj 1773

17. Life Insurance Corpn of India v. Manubhai D. Shah 1992) 3 SCC 637.

18. Life Insurance Corpn of India v. Manubhai D. Shah (1992) 3 SCC 637

19. Maneka Gandhi v. Union of India, AIR 1978 SC 594

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

21. ManzarSayeed Khan v. State of Maharashtra (2007) 5 SCC 1

22. Mithu v. State of Punjab, AIR 1983 SC 473: (1983) 2 SCC 278.

23. Om Prakash v. Emperor, AIR 1948 Nag, 199


vii

24. Prahlad Krishna vs. State of BombayAIR 1952 Bom 1, (1951) 53 BOMLR 717,

ILR 1952 Bom 134

25. R.C. Cooper v. Union of India, AIR 1970 SC 564.

26. R.D. Shetty v. Airport Authority, AIR 1979 SC 1628

27. Rajesh Ranjan Yadav @ Pappu Yadav vs CBI 2010(2)ACR1779(SC)

28. RamjilalModi v. State of U.P., AIR 1957 SC 620

29. Ramlalpuri v/s State of Madhya Pradesh AIR 1971 MP 152

30. RomeshThapper v. State of Madras,

31. S Khushboo v. Kanniammal , AIR (2010) 5 SCC 600

32. S.P. Mittal v. Union Of India, AIR 1983 SC 1

33. Shiv Bahadur v. State of Uttar Pradesh, (1953) SCR 1188: AIR 1953 SC 394.

34. State of Andhra Pradesh &anr. v/s GoverdhanalpittiAIR 2003 SC 1941

35. State of Bihar v. Shailbala Devi, AIR 1952 SC 329

36. State of Punjab v. Balbir Singh : 1994CriLJ3702

37. State Of Punjab vs Baldev Singh 1999(2)ACR1694(SC)

38. SujatoBhadro v. State of Bengal ,AIR(2005)3 CALLT 436 HC

LEGAL DATABASES

1. Manupatra

2. SCC Online

3. Westlaw

4. Hein Online


viii

S T A T E M E N T O F J U R I S D I C T I O N

The Petitioner humbly approaches the original jurisdiction Supreme Court of Indiain

pursuance to Article 32 of the constitution and submits to the writ jurisdiction of the

Honourable Supreme Court of India Invoked under Article 32 Concerning Violation of

Fundamental Rights.

Article 32(1): Remedies for enforcement of rights

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of

the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs

in the nature of habeas corpus, mandamus, prohibition, quo warrantoand certiorari,

whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),

Parliament may by law empower any other court to exercise within the local limits of its

jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided

for by this Constitution.


ix

S U M M A R Y O F F A C T S

Baba Hedonesh Anandam is a self-styled guru who has amassed quite a bit of following

lately. His popularity with the educated classes, especially the young and well heeled. He had

all the things which a person wants in life and one day renounced the world after realizing the

true meaning of life after consuming psilocybin mushrooms- hat event is now embedded in

the popular imagination as the Night of the Light. And ever since, he claims to live but to

show others the light.

In furtherance of the said endeavor he has written and self-published an e-book which,

essentially, proposes that in order to attain to what he calls the true life one has to

repeatedly experience altered states of consciousness induced by naturally occurring

hallucinogens such as psilocybin mushrooms. In due course one will see the light and from

then on will begin a life of pure delight. The book also interrogates the very foundations of

the majority religion, subjecting its scripture, mythology and iconography to a trenchant

critique.

An empirical study conducted under the aegis of the Johns Hopkins School of Medicine,

Baltimore, USA claiming that mystical experiences during psilocybin sessions would lead to

enduring increases in Openness. The construct of Openness encompasses aesthetic

appreciation and sensitivity, imagination and fantasy, and broad minded tolerance of others

viewpoints and values.

Hedonesh announces the establishment of the newest religion of the world: Anandam. An

acolyte is established in hills where people they grow and eat mushrooms, which is now

regarded as sacred. Initially the Government pays no heed, perhaps considering him as just

another baba but, soon enough, the government realizes the need to plug the brain drain.

To begin with, Hedoneshs book which used to be freely available for download from his

official website is blocked by recourse to section 69A of the IT Act, 2000. He is, then,

arrested for allegedly violating section 66A of the IT Act, 2000 and sections 153(A) and

295(A) of the Penal Code (The Anandis at the premises are arrested and the mushroom fields

burnt. The arrested Anandis are charged under sections 25A and 27 of the NDPS, Act, 1985.

Bail applications of the arrestees are summarily rejected. After his followers are charged

under section 27, Hedonesh is slapped with an additional charge under section29 of the same

act.


x

I S S U E S R A I S E D

1. WHETHER THE WRIT IS MAINTAINABLE OR NOT

2. WHETHER SECTION 66A OF INFORMATION TECHNOLOGY ACT, 2008 IS

VALID OR NOT


VALID OR NOT.

4. WHETHER ARREST UNDER SECTION 153A & 295A OF INDIAN PENAL

CODE,1860 IS VALID OR NOT

5. WHETHER CENTRL GOVERNMENT HAS WRONGFULLY EXCERCISED




1

S U M M A R Y O F A R G U M E N T S

1. WHETHER THE WRIT IS MAINTAINABLE OR NOT

The writ is maintainable under Article 32 of the Constitution of India as there are violations

of Fundamental Rights, namely, 14, 19(1)(g) and 21 which are protected under the Part-III of

the Constitution.


VALID OR NOT

It is respectfully stated that Section 66A of the Information Technology Act,2000 provides a

maximum of three years punishment for due to, inter-alia, annoyance or inconvenience

being caused by online speech or writing. It is respectfully submitted that such

criminalisation of speech over the internet communication is contrary to Articles 14, 19 and

21, because it poses unreasonable restriction under Article 19 (1) (2) of the Constitution of

India and that a significant proportion of the offences in Section 66A do not even fall within

the permissible categories of restriction in Article 19 (2).That all terms constituting an

offence under Section 66 A of the IT Act have not been defined either under the IT Act, 2000

or under the General Clauses Act or under any other legislation and thus susceptible to abuse

and consequentially violative of Article 14 and 21 of the Constitution.

3. WHETHER SECTION 69A OF INFORMATION TECHNOLOGY IS VALID OR

NOT

It is humbly submitted before the Honble bench that blocking of Baba Hedoneshs book

under Section 69A of Information Technology act is not justified as the said action is

arbitrary and blocking hit under this section is in turn violating his freedom of speech and

expression

4. WHETHER ARREST UNDER SECTION 153A & 295A OF INDIAN PENAL

CODE,1860 IS VALID OR NOT

It is contended that arrest made under these two sections are not valid and arbitrary in nature

because it is not only violating his Freedom of Speech& Expression but also Freedom of

religion which allows him to practice and propagate the religion in its own way.


2

5. WHETHER CENTRL GOVERNMENT HAS WRONGFULLY EXCERCISED



It is humbly submitted that Government has violated Article 14 and Article 21 of The

Constitution of India by arbitrarily arresting Baba and Anandis and Government has

also exceeded its power under NDPS Act,1985.


3

ARGUMENTS ADVANCED

I . W H E T H E R W R I T P E T I T I O N I S M A I N T A I N A B L E O R N O T

It is humbly submitted before this Honble Court that the petition filed under Article 32 of the

Constitution of Indiais maintainable. The same shall be substantiated by the foregoing

arguments.

A. Maintainability of a Writ under Article 32 of the Constitution.

Further, Article 32 can only be invoked when there is an infringement of a fundamental right.

The Supreme Court laid emphasis on this aspect of Article 32 in the case of Hindi Hitrashak

Samiti v. UOI.1

Where an enactment, as soon as it comes into force, affects the Fundamental Rights of a

person or class of persons by its very terms, and without any further overt act being done, the

person prejudicially affected is entitled immediately to invoke Art. 32, and get a declaration

as to the invalidity of the impugned Act.2

Therefore, it is humbly submitted before this Honble Court that since, the action taken by

government violates fundamental rights ensured under Part III of the Constitution,

specifically Article 19 (1)(g) and Article 21, which shall be elaborated in the following

arguments, it is hence submitted that Article 32 can be invoked in the instant case.

1 Hindi HitrashakSamiti v. UOI, AIR 1990 SC 851; Held, It is well-settled that, the jurisdiction conferred on the Supreme Court under Art.32 is an important and integral part of the Indian Constitution but violation of a

Fundamental Right is the sine qua non for seeking enforcement of those rights by the Supreme Court. In order

to establish the violation of Fundamental Right, the Court has to consider the direct and inevitable

consequences of the action which is sought to be remedied or the guarantee of which is sought to be enforced; See also, A.K. Gopalan v. State of Madras, AIR 1950 SC 27, Ramjilal v. I.T.O., AIR 1952 SC 97, Laxmanappa

v. Union of India, AIR 1955 SC 3 (4), Bhagwandas v. Union of India, AIR 1956 SC 175, Daryao v. State of

U.P., AIR 1961SC 1457, UjjamBai v. State of U.P., AIR 1962 SC 1621, Fertilizer Corpn. Kamgar Union v.

Union of India, AIR 1981 SC 344, BandhuaMuktiMorcha v. Union of India, AIR 1984 SC 802. 2Kochunni, K.K. v. State of Maharashtra, AIR 1959 SC 725.


4

I I . W H E T H E R S E C T I O N 6 6 A O F I N F O R M A T I O N T E C H N O L O G Y A C T ,

2 0 0 8 I S V A L I D O R N O T .

It is humbly submitted before the Honble bench that the arrest of the Petitioner under section

66A of Information Technology act is not valid, as the said arrest is arbitrary in nature and in

return is violating article 19 of Indian Constitution3 i.e. Freedom of Speech & Expression.

It is respectfully stated that Section 66A of the Information Technology Act,2000 provides a

maximum of three years punishment for due to, inter-alia, annoyance or inconvenience

being caused by online speech or writing. It is respectfully submitted that such

criminalisation of speech over the internet communication is contrary to Articles 14, 19 and

21, because it poses unreasonable restriction under Article 19 (1) (2) of the Constitution of

India and that a significant proportion of the offences in Section 66A do not even fall within

the permissible categories of restriction in Article 19 (2). That all terms constituting an

offence under Section 66 A of the IT Act have not been defined either under the IT Act, 2000

or under the General Clauses Act or under any other legislation and thus susceptible to abuse

and consequentially violative of Article 14 and 21 of the Constitution.

A. Violation of Article 19(1)(a) (Freedom of Speech & Expression):

In the instant case government has arrested4 Baba Hedonesh under section 66A5 alleging that

he used his e-book as a medium to create enmity and ill- will between people of different

communities and therefore is booked under this section. It is humbly submitted that in the

present case Babe Hedonesh is an enlightened man who is trying to propagate his religion in

his way. It cannot be inferred under any circumstances that Baba had intentions to promote

hatred and ill-will amongst people as alleged by the government but was freely propagating

his views and arresting him for the same is equivalent to violation of his Freedom of Speech

and Expression under article 19 of Indian Constitution. Freedom of Speech and Expression

means right to express ones own conviction and opinion freely by words of mouth, writing,

3 Article 19(1)(a) says that all citizens shall have the right to freedom of speech & expression 4 Moot Problem, Page 2, Para 3 5Punishment for sending offensive messages through communication service, etc- Any person who sends, by

means of a computer resource or a communication device,-(a) any information that is grossly offensive or has

menacing character; or(b) any information which he knows to be false, but for the purpose of causing

annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will,

persistently makes by making use of such computer resource or a communication device,(c) any electronic mail

or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead

the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term

which may extend to three years and with fine. Explanation: For the purposes of this section, terms Electronic mail and Electronic Mail Message means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image,

audio, video and any other electronic record, which may be transmitted with the message


5

printing, pictures or any other mode. It thus includes the expression of ones ideas through

any communication medium or visible representation, such as, gestures, signs and the like6.

Explaining the scope of the freedom, the court said, the words freedom of speech and

expression must be broadly construed to include the freedom to circulate ones view by

words of mouth or in writing or through audio visual instrumentalities7. Similarly in the

present case baba has expressed his own views on religion with no intention of causing any

harm to society as his basic aim was to enlighten his people as his whole aim of writing the

book was that people can experience True Life8.

Under clause (2) of Article 19, reasonable restrictions can be imposed on freedom of speech

and expression in the interest of security of the state. In Romesh Thapper v. State of Madras9

the Supreme Court has occasion to interpret the meaning of the words security of the state.

The court said that there are different grades of offences against public order. Every public

disorder cannot amount to be regarded as threatening the security of the state. The term

security of the state refers only serious and aggravated forms of public disorder. E.g.

rebellion, waging war against state, insurrection and not ordinary breaches of public order

part of an individual which incite to or encourage the commission of violent crimes such as,

murder are matters which would undermine the security of the state10.

Supreme Court said that public order is an expression of wide connotation and signifies

that state of tranquility which prevails among the members of political society as a result of

internal regulation enforced by the government which they have established11. Anything that

disturbs public tranquility or public peace disturbs public order12Our Supreme Court held as

early as in 1950 in Chintaman Rao v. State of Madhya Pradesh13 that it will be the states

burden to show that a prima facie abridgement of an Article 19 right is constitutionally

permissible under the relevant restrictions clause. In other words, the presumption will be in

favour of the lawfulness of speech, until it is directly rebutted by the state. The

constitutionality of the restriction consists, in the main, of its ability to satisfy the test of

reasonableness of the restriction. Simply, it must balance social control by the state with

citizens fundamental rights. Although there are no absolute standards against which a

6RomeshThapper v. State of Madras, AIR 1950 SC 124; Life Insurance Corpn of India v. Manubhai D. Shah

(1992) 3 SCC 637. 7 Life Insurance Corpn of India v. Manubhai D. Shah (1992) 3 SCC 637 8 Moot Problem, page 1, para 1 9 AIR 1950 SC 124 10 State of Bihar v. Shailbala Devi, AIR 1952 SC 329 11RomeshThapper v. State of Madras, AIR 1950 SC 124 12 Om Prakash v. Emperor, AIR 1948 Nag, 199 13 Chintaman Rao v. State of Madhya Pradesh AIR 1950 SCR 759


6

restriction will be tested, there are several broad guidelines. There has to be reasonableness

which would refer to substantive as well as procedural elements of the restriction (Dr. N.B.

Khare v. State of Delhi14). Further, Chintaman Rao held that the term reasonable implied

intelligent care and deliberation as opposed to unfair, arbitrary or excessive action.

Similarly, vagueness of a restriction can be grounds for defeating it (K.A. Abbas v. Union of

India15). Consequently, the third requirement is that reasonable restrictions must necessarily

be Article 14 compliant, while the fourth is that of specificity and proportionality.

B. Violation of Article 14 (Right to Equality)& Article 21 (Right to Life):

Article 14 provides for right to equality. In the case of E.P. Royappa v. State of Tamil Nadu16

court said, Equality is a dynamic concept with many aspects and dimensions and it cannot be

imprisoned within traditional and doctrinaire limits. Similar observation regarding

arbitrariness was made in the case of International Airport Authority17 and D.S. Nakara v.

U.O.I18 where the particular provision was arbitrary in nature and is violating Article 14 of

the Constitution as it has no reasonable grounds and therefore the said provision was struck

off. As happened in the case of Mithu v. State of Punjab19 Similar observation was made in

the case of Ajay Hasia . Khalid Mujib.20

That the vague and wide terms employed in Section 66A of the amended Information

Technology Act, 2000 are incapable of being judged on objective standards and are

susceptible to wanton abuse and hence are violative of Articles 14, 19 & 21 of the

Constitution of India. Seen in the context of the law of the land decided by this Honble

Court in A K Roy vs Union of India21, it may be submitted that Section 66A of the amended

Information Technology Act, 2000 is capable of wanton abuse and further capable of being

extended cavalierly in such a manner as to allow the deprivation of the personal liberty of

people, which per se would be a flagrant violation of the principle of fairness and justness of

procedure that is implicit in Article 21 of the Constitution of India22.

14Dr. N.B. Khare v. State of Delhi AIR 1950 SCR 519 15K.A. Abbas v. Union of India AIR 1971 SCR (2) 446. 16 E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555; Maneka Gandhi v. Union of India, AIR 1978 SC

597; R.D. Shetty v. Airport Authority, AIR 1979 SC 1628 17 R.D. Shetty v. Airport Authority, AIR 1979 SC 1628 18D.S. Nakara v. U.O.I, AIR 1983 SC 130. 19Mithu v. State of Punjab, AIR 1983 SC 473: (1983) 2 SCC 278. 20Ajay Hasia . Khalid Mujib, AIR 1981 SC 487. 21 A K Roy vs Union of India AIR 1982(1) SCC 271 22 No person shall be deprived of his life or personal liberty except according to procedures established by law


7

The whole purpose of representative democracy is precisely the idea that the truth does

not come to us pre-defined and pre-packaged, and we must adhere to it but rather, that we

create our own truths by engaging in free and open public debate, a debate that might often be

heated, sharp and yes, offensive. As Judge Easterbrook wrote in American Booksellers v

Hudnut:

The power to limit speech on the ground that truth has not yet prevailed and is not likely to

prevail implies the power to declare truth. And as our Court echoed three years ago,

in Khushboo23: in a democracy, people can choose to either defend or question the existing

social mores an expression of opinion in favor of non-dogmatic and non-

conventional morality has to be tolerated as the same cannot be a ground to penalize the

author

In the present no defence under article 19 (2) of the constitution can take place as no action

of Baba Hedonesh was done with the malicious intention to promote any-kind of ill- will

amongst the people. On the contrary he was working for a Nobel cause of enlightening

people and showing them the path of true life.

It is humbly submitted that the action taken by government is completely arbitrary in nature

as it is violating article 14 and 21 of the Indian Constitution. Article 21 of the constitution

talks about the principles of natural justice that the law must be just fair and reasonable

law24 unlike in the present case where there is clear violation of article 21 as government has

acted arbitrary and has taken undue advantage of his power. As it was held in Maneka

Gandhi v. Union of India25 a law depriving a person of personal liberty has not only to

stand the test of Art. 21 but it must stand the test of Art 19 and Art 14 of the constitution26.

Therefore it is humbly submitted that the arrest of Baba Hedonesh under section 66A is

unconstitutional as Section 66A of IT Act is extremely vague, wide, all pervasive, confusing,

incongruent and ambiguous, and violates the Fundamental Rights of the citizen under

Articles 14, 19 and 21 of the Constitution of India, and has all the possibility of being

misused and abused which is very evident in the present case.

23S Khushboo v. Kanniammal , AIR (2010) 5 SCC 600 24Maneka Gandhi v. Union of India, AIR 1978 SC 594 25Maneka Gandhi v. Union of India, AIR 1978 SC 597. 26R.C. Cooper v. Union of India, AIR 1970 SC 564.


8

I I I . W H E T H E R S E C T I O N 6 9 A O F I N F O R M A T I O N T E C H N O L O G Y A C T ,

2 0 0 8 I S V A L I D O R N O T .

It is humbly submitted before the Honble bench that blocking of Baba Hedoneshs book

under Section 69A of Information Technology act is not justified as the said action is

arbitrary and blocking hit under this section is in turn violating his freedom of speech and

expression27.

Section 69 A of the Information technology act says:

Power to issue directions for blocking for public access of any information throughany

computer resource-:

1. Where the Central Government or any of its officer specially authorized by it in this

behalf is satisfied that it is necessary or expedient so to do in the interest of

sovereignty and integrity of India, defense of India, security of the State, friendly

relations with foreign states or public order or for preventing incitement to the

commission of any cognizable offence relating to above, it may subject to the

provisions of sub-sections (2) for reasons to be recorded in writing, by order direct

any agency of the Government or intermediary to block access by the public or cause

to be blocked for access by public any information generated, transmitted, received,

stored or hosted in any computer resource.

2. The procedure and safeguards subject to which such blocking for access by the public

may be carried out shall be such as may be prescribed.

3. The intermediary who fails to comply with the direction issued under sub-section (1)

shall be punished with an imprisonment for a term which may extend to seven years

and also be liable to fine.

A. Violation of Article 19(1)(a)(Freedom of Speech & Expression):

Government has alleged that baba through his books is trying to create differences between

two groups of people, it is further submitted that the e-book written by baba hedonesh

constitutes his thoughts and reasoning and therefore is not creating any differences amongst

the people. Freedom of Speech and Expression means right to express ones own conviction

and opinion freely by words of mouth, writing, printing, pictures or any other mode. It thus

27 Article 19(1)(a) says that all citizens shall have the right to freedom of speech & expression


9

includes the expression of ones ideas through any communication medium or visible

representation, such as, gestures, signs and the like28

Supreme Court said that public order is an expression of wide connotation and signifies

that state of tranquility which prevails among the members of political society as a result of

internal regulation enforced by the government which they have established29. Anything that

disturbs public tranquility or public peace disturbs public order30. The test for determining

whether an act affects law and order or public order is to see whether the act leads to the

disturbances of the current life of the community so as to amount to a disturbance of the

public order or whether it affects merely an individual being the tranquility of the society

undisturbed31.

It is further submitted that in the present case there has been no evidence to prove that the

book was written with an intention to create between public or cause any disturbance in the

public order of same. Baba Hedonesh is a guru who has written the book so that the people

can read the book and improve their life, as they can understand the meaning of True life32

The Section 69A of the Information Technology Act negates the law laid down in Life

Insurance Corporation of India & Union of India &Anr. vs. Prof Manubhai D. Shah &

Cinemart Foundation AIR 1993 SC 171, wherein the Court held the freedom of speech to be

a basic human right in the following words:

Speech is God's gift to mankind. Through speech a human being conveys his thoughts,

sentiments and feelings to others. Freedom of speech and expression is thus a natural right

which a human being acquires on birth. It is, therefore, a basic human right. "Everyone has

the right to freedom of opinion and expression; the right includes freedom to hold opinions

without interference and to seek and receive and impart information and ideas through any

media and regardless of frontiers" proclaims the Universal Declaration of Human Rights

(1948). The People of India declared in the Preamble of the Constitution which they gave

unto themselves their resolve to secure to all citizens liberty of thought and expression. The

words 'freedom of speech and expression' must, therefore, be broadly construed to include

the freedom to circulate one's views by words of mouth or in writing or through audio-visual

instrumentalities. It, therefore, includes the right to propagate one's views through the print

media or through any other communication channel e.g. the radio and the television. Every

28RomeshThapper v. State of Madras, AIR 1950 SC 124; Life Insurance Corpn of India v. Manubhai D. Shah

(1992) 3 SCC 637. 29RomeshThapper v. State of Madras, AIR 1950 SC 124 30 Om Prakash v. Emperor, AIR 1948 Nag, 199 31Kanu Biswas v. State of West Bengal, AIR 1972 SC 1656 32 Moot Problem, page 1, para 2


10

citizen of this free country, therefore, has the right to air his or her views through the printing

and/or the electronic media subject of course to permissible restrictions imposed under

Article 19(2) of the Constitution.

Therefore it is humbly submitted before the Honble court that blocking of e-book under

section 69 A of IT act is not justified as it is not hampering with any sort of security or public

order of the society.


11

I V . W H E T H E R A R R E S T M A D E U N D E R S E C T I O N 1 5 3 A & 2 9 5 A O F

I N D I A N P E N A L C O D E , 1 8 6 0 I S V A L I D O R N O T .

It is humbly submitted that the arrest of baba hedonesh under section 153A and 295A of

Indian Penal Code is not justified and is completely arbitrary in nature.

A. Arrest under Section 153A Illegal & Arbitrary under article 19(1)(a) of Indian

Constitution.

The purpose of the Section 153 A is to punish persons who indulge in wanton vilification or

attacks upon the religion, race, and place of birth, residence, language etc. of any particular

group or class or upon the founders and prophets of a religion. The jurisdiction of this

Section is widened so as to make promotion of disharmony, enmity or feelings of hatred or

ill-will between different religious, racial, language or regional groups or castes or

communities punishable.

Section 153A encompasses:

The act of promoting enmity between different groups on grounds of religion, race,

place of birth, residence, language, caste, community or any other group.

Acts prejudicial to the maintenance of harmony between different groups or castes or

communities, if the acts disturb public tranquility.

Acts causing fear or alarm or a feeling of insecurity among members of any religious,

racial, language or regional group or caste or community by use of criminal force or

violence against them.

It is respectfully submitted that government has arrested baba alleging that he through his

books has been creating enmity on the basis of religion and thus disturbing peace of the

society. E-book contains various thoughts and opinions of baba whose basic aim is to

enlighten33 his people and not to create any differences among them.

As it was held by the court in one of it judgment:

That fair and rational criticism tenet, couched in temperate or restrained languages will not

make the criticism fall within the ambit of the section34.

If the words spoken or written are couched in temperate, dignified and mild language and do

not have the tendency to insult the feeling on the deepest religious convictions of any section

of people Section 153 A is not attracted35. Similar observation can be made in the case where

the words of Baba Hedonesh do not have the ability to insult the religious sentiments of any

33 Moot problem, page 1, para 2 34Lalai Singh v. State of UP, 1971, CrLj 1773 35Azizul Haqkausar Naquvi v/s State of U.P., AIR 1980 ALL 149


12

community and he has just kept his view point which cannot be curtailed as it his right under

Article 19 of the Indian Constitution36. As it was said in the case of Balwant Singh v. State of

Punjab37 apex court ruled that the intention to cause disorder or incite people to violence is

the sine qua non of the offence under section 153A and the mens rea has to be proved in

order to succeed. Similar observation was made in the case of Bilal Ahmed Kaloo v. State of

Andhra Pradesh38 that Mens Rea is necessary ingredient under section 153A of IPC.

It can be clearly observed in the present case that he had no intention to create any enmity

between two groups of people but he was just doing his work and was keeping his views in

front of people. It can be clearly observed that people from all class and creed were attracted

towards Baba and his teachings and there was no divide which was made in the society.

In the case of State of Maharashtra v/s GanpateVasudeoBehena39:

when an impugned article contained healthy and legitimate criticism of the Islamic religion

and Intended to bring about reformation in that religion in keeping with the modern world, it

was held that the article was not offensive.

Baba Hedonesh had his own point of view and he never forced any section of the society to

join his teachings, he kept his view point which he is allowed to under article 19 of the Indian

Constitution and as it was held by the Supreme Court that-

the effect of utterances of the accused intending to promote communal enmity or hatred

between different groups must be judged from the standards of reasonable, strong- minded,

firm courageous men, and not those of weak and vacillating mind, nor of those who scent

danger in every hostile point of view40.

Explaining the scope of the freedom, the court said, the words freedom of speech and

expression must be broadly construed to include the freedom to circulate ones view by

words of mouth or in writing or through audio visual instrumentalities41. Hence no offence is

committed by Baba.

Therefore it is humbly submitted that Baba Hedoneshs arrest under section 153 A is invalid

and arbitrary and is also violating his freedom of speech and expression.

36All citizens shall have the right(a) to freedom of speech and expression; 37Balwant Singh v. State of Punjab AIR 1995 SC 1785 38 Bilal Ahmed Kaloo v. State of Andhra Pradesh AIR (1997) 7 SC 127 39 State of Maharashtra v/s Ganpate Vasudeo Behena (1978) CrLR 178 (184-185) Maharastra 40Manzar Sayeed Khan v. State of Maharashtra (2007) 5 SCC 1 41 Life Insurance Corpn of India v. Manubhai D. Shah (1992) 3 SCC 637


13

B. Arrest under Section 295A Illegal & Arbitrary under article 25 of Indian

Constitituion.

The object of Section 295-A is to punish deliberate and malicious acts intended to outrage the

religious feelings of any class by insulating its religion or the religious beliefs. This section

only punishes an aggravated form of insult to religion when it is perpetrated with deliberate

and malicious intention of outraging the religious feelings of a class. Section 295A does not

punish every act of insult to religion. It punishes only deliberate and malicious acts that insult

religion or religious beliefs of a class of citizens. Malice is the negation of bona fides. Where

a person wilfully does an injurious act to another without lawful excuse, it can be said that he

has done it maliciously42.

As established earlier there was no malicious intention of Baba to outrage any religious

feelings of any class but instead he was promoting his ways following which a person can get

enlightened and lives a life of pure delight. Such charges framed by the government are

frivolous and baseless as they do not have any basis for same. There have been no report of

any communal disorder but on the contrary people from all the sections are getting together

because of Baba and his religion. His teachings are bridging the gap between people and

enlightening them which is completely against the charges framed by the government. Only

cold, calculated and malicious attack on religious feelings is punishable under section

295A43.

Section 295-A encompasses:

The accused must insult or attempt to insult the religion or religious beliefs of any

class of citizens of India.

The said insult must be with a deliberate and malicious intention of outraging the

religious feelings of the said class of citizens.

The said insult must be by words, either spoken or written, by signs or by visible

representation or otherwise.

Section 295A requires a deliberate and malicious intention of outraging the religious feelings

of any class of citizens if a book gives an objective picture based on historical facts, it will

not come within the mischief of Section 295A IPC44. Supreme Court ruled that section 295A

is enacted in the interest of the public order, and it penalises not any and every insult but only

the deliberate and malicious outraging religious feelings of a class of persons. It punishes

42State of Andhra Pradesh &anr. v/s Goverdhanalpitti AIR 2003 SC 1941 43Ramlalpuri v/s State of Madhya Pradesh AIR 1971 MP 152 44Ramlalpuri v/s State of Madhya Pradesh AIR 1971 MP 152


14

only aggravated form of insult to religion that have tendency to disrupt the public order and

section of class of persons45.

It is humbly submitted that in the instant case there can be proved no instance when baba had

tried to promote enmity between two groups of people or has created any communal disorder.

He is just propagating his views which do not have the intent to hurt the sentiments of any

person and he has all the right to practice his religion as India being Secular nation gives

freedom of religion to every citizen under Article 25 of Indian Constitution46. Under Article

25 (1) a person has a two-fold freedom-

Freedom of conscience

Freedom to profess, practice and propagate religion

Religion is thus essentially a matter of personal faith and belief and everyone has a right to

propagate his views meaning to spread and publicize his religious view for the edification of

others47. Similarly in the instant case baba Hedonesh was propagating his religion and he has

all the right to do the same.

In the Taslima Nasreen Case48, though it contained hard language against the prophet, there

was no intention of the author to outrage the feelings of Indian Muslims and as such there

were no communal disorder reported after publication of book thus section 295A will not be

attracted. Similarly in the case there were no incidents reported of distrust or communal

disharmony instead people are coming together of all masses under the head of one religion.

It is therefore humbly submitted before the court that the arrest made under section 295A is

inapplicable and the arrest is arbitrary thus infringing his freedom of speech and expression

and also right to profess his religion.

45Ramjilal Modi v. State of U.P., AIR 1957 SC 620 46Freedom of conscience and free profession, practice and propagation of religion:

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion

47S.P. Mittal v. Union Of India, AIR 1983 SC 1 48Sujato Bhadro v. State of Bengal ,AIR(2005)3 CALLT 436 HC


15

V . W H E T H E R C E N T R A L G O V E R N M E N T H A S W R O N G F U L L Y

E X E R C I S E D I T S D I S C R E T I O N B Y I M P L I C A T I O N A N A N D I S

A R B I T R A R I L Y & F R I V O L O U S L Y U N D E R N D P S A C T , 1 9 8 5 .

It is humbly submitted in this Honble court that act done by the government is completely

arbitrary and therefore violative of Article 14 of Anandis. As the authority under Section 42

of the NDPS Act,1985 firstly; does not have the power to destroy the drug or substance and

secondly: It can only detain or arrest the suspected person. Although in the present case, the

force destroyed the mushroom fields and killed two members of Anandis.49 Hence making

the states action as arbitrary and unjustifiable and abuse of the process of law.

In Maneka Gandhi Vs Union of India50 it was held that:

Article 14 of the Constitution is violated by powers and procedures which in

themselves result in unfairness and arbitrariness. It must be remembered that our

entire constitutional system is founded in the Rule of Law, and in any system so

designed it is impossible to conceive of legitimate power which is arbitrary in

character and travels beyond the bounds of reason

In RamnnaDayaram Shetty v. International Airport Authority of India 51"held that

..arbitrariness in State action and ensures fairness and equality of treatment. It

requires that State action must not be arbitrary but must be based on some rational and

relevant, principle, which is non-discriminatory. It must not be guided by any

extraneous or irrelevant consideration, because that "would be denial of equality. The

principle of reasonableness and rationality which is legally as well as philosophically

an essential element of equality or non-arbitrariness is projected by Article 14 and it

must characterise every State action, whether it be under authority of law or in

exercise of executive power without making of law. The State must conform to some

standard or norm, which is rational and non-discriminatory'.

49 Page 2 of the Moot problem.

50Maneka Gandhi Vs Union of India 1978 AIR 597, 1978 SCR (2) 621

51RamnnaDayaram Shetty v. International Airport Authority of India 1979 AIR 1628, 1979 SCR (3)1014


16

It is humbly submitted that there is a violation under Article 21 as the arrest has been an

arbitrary one and bail which is a matter of right has been denied to Anandis and

Hedonesh. It was held in the Supreme Court judgment Rajesh Ranjan Yadav @ Pappu

Yadav vs CBI52

"Personal liberty, deprived when bail is refused, is too precious a value of our

constitutional system recognized under Article 21 that the crucial power to negate it

is a great trust exercisable, not casually but judicially, with lively concern for the cost

to the individual and community. To glamorize impressionistic orders as

discretionary may, on occasions, make a litigative gamble decisive of a fundamental

right. After all, personal liberty of an accused or convict is fundamental, suffering

lawful eclipse only in terms of procedure established by 'law'.

India is governed by the Anglo Saxon rules of jurisprudence. One of the basic principles of

this school of jurisprudence is that an accused is deemed to be innocent until proved guilty.53

Under Section 101 of the Indian Evidence Act54, the burden to prove that a person has

committed an offence lies on the person or authority accusing that person of having

committed the offence. In other words, it is the prosecution which must prove beyond doubt

that an accused has committed the offence of which he is charged. The accused does not have

to prove his innocence, though he would be required to rebut the evidence proving his

offence so that he can be found not guilty by the court. Therefore, denial of bail is a violation

of liberty of Hedonesh and Anandis.

Maneka Gandhi Vs Union of India55: it was held by the Supreme Court that Article 21 and

Article 19 were not mutually exclusive, they have to exclusively read together and that

imposed limitation upon law making, the court said that while prescribing a procedure for

depriving a person of his life or personal liberty, it must prescribe a procedure which

52Rajesh Ranjan Yadav @ Pappu Yadav vs CBI 2010(2)ACR1779(SC) 53Criminal Jurisprudence, Roman and Anglo-SaxonM. Romero: The North American Review, Vol. 163, No. 476

(Jul., 1896), pp. 75-90; http://www.jstor.org/stable/25118677 [Last visited on 14.062014]

54 Section 101 of the Evidence Act:-Burden of proof.whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist."

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 55Maneka Gandhi Vs Union of India 1978 AIR 597, 1978 SCR (2) 621


17

is reasonable, fair and just. That means the procedure to deprive a persons liberty should not

be arbitrary, fanciful, or oppressive. Thus, the Supreme Court had engineered a revolution in

interpreting the provision of Right to Life and Liberty as envisaged in Article 21 of the

Constitution of India and expanded the horizons of life and liberty. It is further submitted that

the fundamental reason of the above mentioned case laws and principle is that in the present

case they have been violated.

It was held in Department Of Customs vs Hemant Kumar56 that combined reading of Section

37, section 2(vii) and Section 2(viid) that Section 37 prima facie is not related to controlled

substances. Also Sections 9A,25A and 29A deal with controlled substances As the

substance in the issue is a psychotropic substance therefore rigours of section 37 cannot be

applied and hence bail must be granted.

The State Of Punjab vs Baldev Singh57- the petitioners do not have any past antecedents

which could prompt drawing of any adverse inference of their likelihood of indulging in any

offence, if released on bail with strict conditions.

Therefore applying this in our present case the case is not a fit for the rigors of Section 37

also there is no past record of Hedonesh or Anandis which could prompt drawing any adverse

interference in the process of investigation. Hence proving the arrest to be arbitrary and

frivolous.

56Department of Customs v Hemant Kumar 194(2012)DLT738

57 State Of Punjab vs Baldev Singh 1999(2)ACR1694(SC)


18

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is

humbly requested that this Honorable Court may be pleased to adjudge and declare that;

1) The writ of mandamus is maintainable under Article 32 of the Constitution of India.

2) The arrest made under Section 66A of Information Technology Act, 2000 is arbitrary

and unconstitutional.

3) The blocking of E-book under Section 69A of Information Technology Act, 2000 is

arbitrary and unconstitutional

4) The arrest made under Section 153A & 295A of Indian Penal Code, 1860 is arbitrary

and unconstitutional

5) The arrest made under section 25A, 27 & 29 of NDPS Act, 1985 is arbitrary and

unjustified

And pass any such order, writ or direction as the Honorable Court deems fit and proper, for

this the Petitioner shall duty bound pray.

ALL OF WHICH IS HUMBLY PRAYED.

COUNSEL FOR THE PETITIONER

petitioner nme 195

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