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 affiliated to the Championist Party of India Farcist
(CPI-F), a left-leaning political party with communism as its core ideology. The other
significant political presence on the KNU campus is of students affiliated 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 CPI-F and DJP affiliated students at KNU. Sanwariya Kumar, Kabmar Khalid and
Kamiban Bhattacharya are CPI-F affiliated 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. Members 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 CPI-F affiliated students held several rallies
subsequently, and committed themselves to defending their freedom of speech and expression.

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. Povers 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 support from various categories of people, particularly members of the Random

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 members 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 Gentlemanians 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 respondents
right to carry out any trade or occupation.

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 joint 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
contact Mr. Das on matters relating to this problem shall result into immediate disqualification.