THE 3RD HPNLU NATIONAL MOOT COURT COMPETITION,2022

{TC- 341_R} TEAM CODE: TC-341_R

3RD HPNLU NATIONAL MOOT COURT COMPETITION, 2022

28TH – 30TH OCTOBER 2022

IN THE HON’BLE SUPREME COURT

OF THE DEMOCRATIC REPUBLIC OF INDICA

CIVIL ORGINAL JURISDICTION

AT INDICA

Writ Petition (Civil) No. ______/ 2022

(Filed under Article 32 of the Constitution of India, 1950)

IN THE CLUBBED MATTER OF

1. NGO ABHILASHINI
2. MARWADAN
3. KAPALA XATALA
4. MICHAEL JOSEPH………………………………………………..PETITIONERS

v.

UNION OF INDICA………………………………..……………..…RESPONDENT

{MEMORIAL ON BEHALF OF THE RESPONDENT}

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TABLE OF CONTENTS

[Link]. TITLE OF THE TOPICS COVERED Page no.

1. LIST OF ABBREVIATIONS………………………………. 5

2. INDEX OF AUTHORITIES………………………………...
Case laws
Books referred
Statutes
Web resources
3. STATEMENT OF JURISDICTION…………………….. 8

4. STATEMENT OF FACTS………………………………... 9

5. ISSUES RAISED…………………………………………. 11

6. SUMMARY OF ARGUMENTS………………………… 12

7. ARGUMENTS ADVANCED……………………………. 14
I. The Act of 2022 is not ultra vires the constitution
of Indica
(A) Absence of essential elements in the doctrine of
ultra vires.
(B) Relevant question needed to be answered.
(C) Act of 2022 is in conformity with statutory law
of the country
(D) Judicial perception on religious rights.

II. Fundamental rights have no hierarchy in the 18

constitution
(A) No hierarchy of constitution rights doctrine
(B) Inconsistency of hierarchy of rights
(C) Issue of conflict in fundamental rights.

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III. Author’s right of expression is violative of 21

general standards of morality or decency.
(A) Violation of religious and ethical code of
conduct.
(B) Art.19(1)(a) is subject to reasonable
restrictions
(C) Right of Xatali community to safeguard
their religious rights.

IV. Art.19(1)(a) can be curtailed for hurting 24

religious sentiments
(A) Onus of prove is on the petitioner
(B) Protection of religious sentiments under
constitution
(C) Right to religion vis-a-vis right to expression
(D) Restricting artistic freedom for protecting
religious sentiments, valid
(E) Sec. 295A IPC from the lens of const.

V. Right to access the internet is not a fundamental 27

right, but a derived right within other rights
(A) Considered as a derived right, and not a
fundamental right
(B) Art. 19(1)(a) is subject to reasonable
restrictions
VI. The 2019 amendment of UAPA is neither 30
arbitrary nor violative of Art. 14 and 21
(A) Grounds for declaring a person terrorist are
explicitly mentioned
(B) No excessive and arbitrary to the central govt.
(C) Principle of natural justice is not absolute
(D) Article 14 is not absolute but subject to
reasonable classification.

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8. PRAYER…………………………………………………… 34

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LIST OF ABBREVIATIONS

ABBREVIATION MEANING PAGE NO.

1. PT- 1 NGO Abhilashini 8

2. PT- 2 Marwadan 8
3. PT- 3 Kapala Xatala (Xatali Community) 8
4. PT- 4 Mr. Michael Joseph 8
5. Est. Established 8
6. Sec. Section 9
7. UDHR Universal Declaration of Human Rights 9
8. UAPA Unlawful Activities Prevention Act, 1967 9
9. i.e., That is 10
10. const. constitution 2
11. & And 17
[Link] High Court 23
[Link] Supreme Court 17
[Link]. Others 18
[Link] Union of India 1
16.U/S Under Section 9
[Link]. Article 19

INDEX OF AUTHORITIES
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Case laws
 Jahangir R. Modi v Shamji Ladha.
 Attorney General vs Great Eastern Railway Co.
 Gosselin v Quebec
 Mahe v. Alberta
 KAUSHAL KISHORE V STATE OF UP
 INDIAN YOUNG LAWYERS ASSOCIATION & ORS V STATE OF KERALA & ORS
 ASHA RANJAN V STATE OF BIHAR
 Sahara India Real Estate Corpn. Ltd. V SEBI
 Chandrakant Kalyandas Kokodhar v State of Maharashtra
 Damodar Sharma V State of Assam
 Mohan C. Lazarus v State Represented by Inspector of Police
 Ramachandrappa & Ors Vs State of Sri Baragur Karnataka & Ors
 People’s Union for civil liberties v Union of India
 Anuradha Bhasin V. Union of India
 Mohd. Ajmal Mohd. Amir kasab v. State of Mahashtra
 A. N Bhati V/S State Of Gujarat
 Canara Bank v. [Link]
 Syndicate Bank v. Gen. Secy., Syndicate Bank Staff Association

Books referred
 JUSTICE RUMA PAL /7 AMP, SAMARADITYA PAL, M.P. JAIN INDIAN
CONSTITUTIONAL LAW (6th ed. Lexis Nexis 2010).
 N S BINDRA, INTERPRETATION OF STATUTES (12th ed. 2008)
 RATANLAL & DHIRAJLAL, THE CODE OF CRIMINAL PROCEDURE (22nd ed.)
 RATANLAL & DHIRAJLAL, INDIAN PENAL CODE (35th ed.)
 BLACK’S LAW DICTIONARY, 4th ed.
 Statutes
 The constitution of India, 1950
 The code of criminal procedure, 1973
 The Indian penal code, 1860
 The Constitution of India, 1950
 Universal Declaration of Human Rights
Web resources
 [Link]
 [Link]
 [Link]
%[Link]%3A443%2F&aci=la
 [Link]
 [Link]

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 [Link]

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STATEMENT OF JURISDICTION

The appellants have invoked the writ jurisdiction of Hon’ble Supreme Court to hear the
instant appeal by virtue of:

Article 32 of The Constitution of Indica 1949:

Right to constitutional remedies-

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 the power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto, and 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 clauses (1) and
(2), parliament may by law empower any 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.

The respondent humbly submits this memorandum in response to the petition filed in the
Hon’ble Court, hence sets forth the facts and the laws on which the claims are based.

Place: Indica Counsel(s) for Respondent

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STATEMENT OF FACTS

Background

I. Abhilashini NGO (PT-1) is a well estb. NGO which actively works for the
empowerment of women in the state of Jatala. The NGO have greatly contributed till
date to protect and safeguard the rights and dignity of the women in society. Ms.
Chitrakala, the head of the NGO, is herself a well reputed and renowned female
activist in the field of women empowerment.
II. Marwadan, (PT-2), is a 23 years old law student at Jatala Global Law School, Jatala.
He has published many poetic works and has a huge fan following on social media
platforms. His work has always inspired a lot of youngsters. He belongs to the Xatali
community (PT-3). This community is a minority community recognised by the state
through Xatali Community Members (Management and Regulation of Conduct) Act,
2022.

Relevant facts of the case

III. Marwadan published a story in poetic form from Subahvani Prakashan. In which he
characterised the beauty of woman through a fictional character by describing her
body parts. He also described the sexual act of that character with her paramour. In
accord with this, PT-1 filed a writ petition before the High Court to pass a writ
restricting the publication of that poem on the grounds that it:
a) is unreasonable exercise of Article 19(1)(a).
b) is lascivious and creates prurient interest in the mind of reader.
c) may deprave and corrupt the mind of readers
d) will result in a moral hazard for young and vulnerable generation.
e) is obscene, punishable offence under Section 292 of Indica Penal Code.
IV. Widespread criticism of govt. and heated debates led the govt. to block the public
access to the poem by taking it down from all online platforms. Multiple protests for
the arrest of Marwadan broke out in the state of Jatala. Protest became riot when
people used Molotov Cocktails on police and public both resulting in grievous injuries.
The Union govt. banned the internet access in the state of Jatala. In pursuance to this,
Marwadan filed a petition contending that Internet Ban is violating his freedom of

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speech and expression. Later, Mr. Michael Joseph (PT-4) was recognised as the one to
have thrown Molotov Cocktails and charged under Unlawful Activities (Prevention)
Amendment Act, 2019.
V. Xatali community worships the goddesses in Virgin Form. And the ancient scriptures
of Xatali religion strictly prohibits any lascivious description of the female body. The
members of the Xatali community opined that the composition is violative of the
provisions of the Act, 2022. All the four petitions were clubbed and heard together by
the High Court of Jatala.

Contentions and claims of Marwadan in High Court of Jatala

VI. Marwadan claimed that the:

a) Right to speech and expression is his fundamental right and cannot be
abridged by any law of land.
b) Provisions u/s 2 of Act, 2022 were unconstitutional.
c) Freedom of speech and expression was at higher pedestal in the hierarchy of
rights as enunciated in the Constitution of Indica.
d) Right to freedom of religion cannot override the general moral prescriptions of
human rights as conferred in UDHR.
e) Provision of Act 2022 was violative of jus cogens vis-à-vis protection of
human rights, hence ultra vires.
f) Right to access internet was a fundamental right under the Constitution of
Indica.

The High court judgement

VII. The high court denied any sort of relief to the NGO or Xatali community on the
grounds that Marwadan has not exceeded the legitimate domain of expression allowed
by the Constitution. Further the High Court did not interfere in the other issues of
religious or right to access internet or UAPA aspect of the petition, concluding that
these are the questions of constitutional validity and need the interference by the
Highest court.

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ISSUES RAISED

The supreme court of Indica constituted a Thirteen-judge bench to decide the matter.
Subsequently, the issues which have been framed are as follows:

I. Whether the Xatali Community Members (Management and Regulation of Conduct)

Act, 2022 is ultra vires the Constitution of Indica?

II. Whether there is a hierarchical scheme in the idea of fundamental rights?

III. Whether the author’s right to freedom and speech and expression violates the general
standard of morality or decency established by the community?

IV. Whether the right to freedom of speech and expression be curtailed on the ground that
it is violative of the religious sentiments of a particular community?

V. Whether the right to access to the internet is a fundamental right under Article 21 of
Indica?

VI. Whether the 2019 amendment to the Unlawful Activities (Prevention) Amendment
Act, 2019 is manifestly arbitrary and violative of Articles 14 and 21 of the
Constitution of Indica?

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SUMMARY OF ARGUMENTS

I. THE XATALI COMMUNITY MEMBERS (MANAGEMENT AND

REGULATION OF CONDUCT) ACT, 2022 IS NOT ULTRA VIRES THE
CONSTITUTION OF INDICA.

The counsel for the respondent humbly submits before the Hon’ble court that, (A) Two of the
essentials for proving any law ultra vires i.e., Mala fide Intention and Ulterior Motive, are
absent in the Act of 2022. (B) Specific questions need to be answered before declaring any
act ultra vires. (C) The Act of 2022 is in the conformity with the statutory law. (D) Judicial
perception on the right to protect and promote the religious belief is positive.

II. THERE IS NO HIERARACHICAL SCHEME IN THE IDEA OF

FUNDAMENTAL RIGHTS.

It is humbly submitted that firstly, the Canadian const. follows a ‘No hierarchy of
constitutional rights’ doctrine. Secondly, the hierarchy of rights is inconsistence with the
spirit of const. Thirdly, when the conflict between two fundamental rights arises, it is
resolved by applying the ‘Balancing Test.’

III. AUTHOR’S RIGHT TO FREEDOM OF SPEECH AND EXPRESSION DOES

VIOLATES THE GENERAL STANDARD OF MORALITY OR DECENCY
ESTB. BY THE COMMUNITY.

The counsel for the respondent humbly submits that (A) The author’s right to freedom of
speech and expression is in violation of ethical and religious code of conduct. (B) Art. 19(1)
(a) can be restricted on the ground of Decency or Morality. (C) Minority communities have
right to safeguard their culture and religious beliefs.

IV. RIGHT TO FREEDOM OF SPEECH AND EXPRESSION CAN BE

CURTAILED IF IT HURTS THE RELIGIOUS SENTIMENTS OF A
PARTICULAR COMMUNITY.

The counsel for the respondent humbly submits before the Hon’ble Court that (A) the burden
of proof is on the petition that he had no ‘deliberate and malicious intention.’ (B) the
religious sentiments and beliefs are protected by the Const. of Indica. (C) Relation between
Right to religion and right to expression is delicate and hence must be maintained. (D)

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restriction on Art. 19(1)(a) for hurting religious sentiments is valid. (E) Sec. 295A IPC is
constitutionally valid and related to Art. 19(1)(a).

V. RIGHT TO ACCESS THE INTERNET IS NOT A FUNDAMENTAL RIGHT

BUT A DERIVED RIGHT UNDER ARTICLE 21 OF CONSTITUTION OF
INDICA.

The counsel for the respondent humbly submits before the Hon’ble court that firstly, the
Right to access to the internet is a derived right within other fundamental rights. Secondly, if
the internet is a medium for freedom of speech and expression under Article 19(1)(a), then it
also attracts Reasonable Restrictions that are mandated in that very same Article i.e., Article
19(2).

VI. THE 2019 AMENDMENT TO THE UAPA ACT,2019 IS NEITHER

ARBITRARY AND NOR VIOLATIVE OF THE ARTICLE 14 AND 21 OF
THE CONSTITUTION OF INDICA.

It is humbly submitted to the Hon’ble Court that (A) The govt. may designate an individual
person as terrorist only if he/she falls under the purview of the grounds specified U/S. 35(3)
of UAPA Act. (B) No arbitrary powers are provided to the central Govt as the Review
Committee constituted as a second remedy for the accused. (C) The doctrine of Natural
Justice is not an absolute doctrine. (D) Art. 14 is subject to the reasonable classification as per
the statutory law.

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ARGUMENTS ADVANCED

I. THE XATALI COMMUNITY MEMBERS (MANAGEMENT AND

REGULATION OF CONDUCT) ACT ,2022 IS NOT ULTRA VIRES THE
CONSTITUION OF INDICA.

(A) ABSENCE OF ESSENTIALS ELEMENTS OF THE DOCTRINE OF ULTRA

VIRES

1. The doctrine of ultra vires was first implied by the Bombay High court in the
judgement of Jahangir case.1 The doctrine of ultra vires is mainly used for the
purpose of determining the validity and authority of any act or law passed by any
authority and is applied when the govt. bodies exceed their limits or when the
subordinate legislation crosses their legal authority.
Essential elements of the ultra vires act:
Error or excess of initial jurisdiction
Mala fide intention
Ulterior or improper motive
Mixed or irrelevant considerations
2. Mala fide intention is to have a dishonest or corrupt intention, it does not imply only
moral turpitude as a matter of law. It means to confer powers without anu nexus to the
objective to be achieved and is completely foreign to the stated law. In pursuance to
this case, The Xatali Community Members (Management and Regulation of Conduct)
Act 2022, any provision of this act was neither made with mala fide intention nor to
deprave any person of their fundamental right. It is clearly stated in the act that this
act was made to regulate the conduct of the members of Xatali community as per their
religious beliefs.

1
Jehangir R. Modi v. Shamji Ladha, (1866) 4 Bom HCR 185 case

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3. Ulterior motive means ‘hidden motive.’ This doctrine expresses the alternate or
hidden intention or motive behind any act or law enacted. In many circumstances the
authority uses this doctrine for the purpose of their own benefit. Again, in the case of
Xatali community members (management and regulation of conduct) Act, 2022, it can
be clearly inferred from the provisions of the act that it was framed to protect their
religious sentiments and belief of the whole community. Also, to protect and
safeguard the dignity and reputation of women by prohibiting any member to involve
women in any kind of lascivious activity and intimate acts in which a person is
indulge in generally.

“Therefore, the absence of essentials ingredients to attract the doctrine of Ultra Vires can
be clearly inferred.”

(B) RELEVANT QUESTIONS NEED BE ANSWERED WITH REASONABLE

EXCUSES

4. To establish any law or act as ultra vires there are few questions which need to be
answered which help the court to determine whether it is ultra vires or not. 2The
questions are as follows:

Whether there is any violation of fundamental rights or any procedural

provision?

Ans. No, The Act of 2022 does not violate fundamental right of speech and
expression as it puts restrictions on the ground of morality or decency which
comes under the purview of Article 19(2).

Whether the power of delegated legislation has been exceeded?

Ans. Yes, the Act is constituted in accordance to the constitution od Indica which
gives the minority religious communities to protect their culture, language, and
religious beliefs by making some rules regulations to control the conduct of their
community members.

Whether the actions confirm with the said procedural provisions?

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Ans. Yes, the actions of the Xatali community members are in conformity with
the provisions of the Xatali Community Members (Management and Regulation
of Conduct) Act 2022. The Xatali community members worship the goddess in
their virgin form and prohibits any lascivious talk about women and hence they
have made this an explicit provision in their act to prohibit the same.

Therefore, the determining questions to constitute the doctrine of Ultra Vires are answered in
the favour of the respondent.

(C) THE ACT OF 2022 IS IN CONFORMITY WITH THE STATUTORY LAW

5. Where the customs meet the requirements of being ancient, certain, and reasonable,
they being in derogation with the general laws are to be construed strictly, this
hierarchy makes the position of the customary laws very vulnerable in the legal
system. As the constitution of indica nowhere confers specific rights that are related to
the rights of the indigenous communities to economic and social development.
6. Therefore, one to read into the provision of Article 21, which confers Right to Life,
one of the most read into provisions. Right to Life does not refer to mere animal
existence but life with human dignity. The indigenous communities have a right not to
be displaced and disabled by the actions robbing them of their customary rights so
that they can protect and live with basic human dignity.
7. The court in the case3, have lessened the rigidity of the Doctrine of Ultra views by
making it flexible and introducing the principle of reasonable construction. The
principle of reasonable construction is an exception to the doctrine of ultra vires.

Therefore, the doctrine of ultra vires can be rejected by the reason of reasonable
construction of the Act 2022.

(D) JUDICIAL PERCEPTION OF RIGHT TO FREEDOM OF RELIGION

8. A religion is certainly a matter of faith and beliefs and has its basis in “a system of
beliefs or doctrines which are regarded by those who profess that religion as
conducive to their spiritual well-being.”

3
Attorney General v. Great Eastern Railway, (1880) 5 AC 473

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9. A religion may not only lay down a code of ethical rules for its followers to accept, it
might prescribe rituals and observations, ceremonies and modes of worship which are
regarded as integral part of the religion. These forms and observations might extend
even to matters of food, dress, and conduct.

Therefore, the court have also regarded and opined that the religious community can frame
their codes to protect their religious beliefs.

Hence, the Xatali Community Members (Management and Regulation of Conduct) Act 2022
is not violative of jus cogens and is constituted within the authority granted by the
constitution of Indica.

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II. THE FUNDAMENTAL RIGHTS ENSHRINED UNDER THE

CONSTITUION OF INDICA HAS NO HIERARCHICAL SCHEME.

1. The learned council of respondent humbly submits before the Hon’ble court that the
idea of having any hierarchical scheme in the fundamental rights enshrined in the
Constitution of Indica is invalid and vague. There exist no such hierarchy in any of
the rights given because if it did, it would have been in the violation of the basic spirit
of the constitution. The hierarchy in the constitutional rights would create an
imbalance in the ambit of each right.

(A) “NO HIERARCHY OF CONSTITUTIONAL RIGHTS” DOCTRINE

2. As per the Hon’ble Supreme court of Canada, the doctrine of No hierarchy of

constitutional right holds that one part of the constitution can not be used to prevent,
restrict, or expand the implementation of another part the constitution. This doctrine
can be regarded as an example of a “Strategic Positivist” approach to judicial review
which may be gaining favour on the supreme court.4
3. The ‘No hierarchy of rights doctrine’ suggests that, when it is difficult to bring
constitutional provisions into line with a particular normative perspective, then the
court should not try. It compels the non-judicial branches of govt to confront, &
engage in the hard work.
4. The most early and application of this doctrine was seen in the case of
5
Mahe v. Alberta by the SC of Canada. The Apex court in the case of Gosselin
captured by the statement in the decision that, “Here is no hierarchy amongst
constitutional provisions, and equality guarantees cannot therefore be used to
invalidate other rights expressly conferred by the constitution.”

4
Gosselin v Quebec 2005 SC (Canada)
5
Mahe v. Alberta

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Therefore, the const. of Canada also does not recognise any hierarchy of fundamental
rights in their constitution.

(B) INCONSISTENCY OF HIERARCHY OF RIGHTS

5. A hierarchy of rights is inconsistent with human rights law and the constitutional
framework. All human rights have equal status; they are not hierarchical. Any
proposal or theory must be rejected that prioritize freedom of speech and
expression (claimed by PT-2) over the equal human rights and human dignity. If
the rights are not treated equally then this way the court will do more injustice
under the pretext of doing justice.
6. Additionally, the idea or system of hierarchy among the fundamental rights creates
a “clash of claims” with other rights. All fundamental rights are complementary
and enabling rights, people cannot exercise freedom if their social and economic
rights are in jeopardy. ----- ACLU NEWS & COMMENTARY

Therefore, the hierarchical scheme in the idea of fundamental rights is inconsistence to

the spirit of constitution.

(C) ISSUE OF CONFLICT OF FUNDAMENTAL RIGHTS/ CONSTITUTIONAL DILEMMA/

CONSTITUTIONAL SILENCE

7. The issue arises when the fundamental rights enshrined in the constitution of Indica
are at loggerheads with each other. Basically, the existence of one right is pushing the
other one out of the picture. Few important cases where this issue of constitutional
dilemma was confronted by the supreme court are as follows:
Kaushal Kishore v state of up6 – conflict between right to freedom of speech
and expression Article 19(1) (a) and right to reputation under Article 21 were
at loggerheads.
Indian young lawyers’ association & ors v state of kerala & ors 7 – conflict
between right to manage religious affairs Article 26 and right to dignity and
liberty of women Article 15 & 21.

6
State of U.P. v. Kaushal Kishore Shukla, (1991) 1 SCC 691
7
Indian Young Lawyers Assn. (Sabarimala T ..., (2019) 11 SCC 1

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Asha ranjan v state of bihar8 – conflict between issue of public safety and the
right to fair trial under Article 21 of the accused.
8. When an issue of conflict of fundamental rights arises, the Supreme Court has
resorted the same by using the “Balancing Test.” The concept of fundamental rights
balancing is to guarantee that the paramount collective interest, or the broader public
good is protected. In P Gopalkrishnan case 9, is conflict between the two rights arising
out of the same Art. 21 came i.e., the right to free trail and the right to privacy of the
victim. The court undertook the exercise of balancing the fundamental rights which
were in conflict. The Supreme Court gave the verdict in such a way that the
interests/rights of both the parties were protected and were not made to suffer at the
hands of the other. Resolving the conflicts by balancing the interests in each
individual case has been also called “ad hoc balancing” with two aspects:
 The consideration of the very essence of the fundamental rights
 The consideration of the circumstances of the case.
9. Part III of the Constitution of Indica does not explicitly prescribe a hierarchy of rights.
Rather, on face value, all the rights are considered to equal and conflict between any
two fundamental rights is meant to be resolved by way of “Harmonious
Interpretation.” Further, in the case of Sahara India Real Estate Corpn. Ltd. V SEBI 10,
the court considered the validity of “postponement orders,” the court tried to reach a
compromise between the two rights and ensured that neither is obliterated out of
existence.

Therefore, the fundamental rights are not treated or viewed as in any hierarchy but are
balanced in a harmonious manner by the court in case of conflict arises.

Hence, the concept of hierarchical scheme in the idea of the fundamental right is defying the
authority of the constitution of Indica.

8
Asha Ranjan v. State of Bihar, (2017) 4 SCC 397
9
P. Gopalkrishnan v. State of Kerala, (2020) 9 SCC 161
10
SEBI v. Sahara India Real Estate Corpn. ..., (2014) 8 SCC 751

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III. THE AUTHOR’S RIGHT TO FREEDOM OF SPEECH AND

EXPRESSION IS VIOLATIVE OF THE GENERAL STANDARD OF
MORALITY OR DECENCY ESTABLISHED BY THE COMMUNITY.

1. The council of the respondent submits to the Hon’ble court that as the author belongs
to the Xatali community, he comes under the purview of the Xatali Community
Members (Management and Regulation of Conduct) Act 2022. It is the duty of the
author to respect, conserve, and practice his religion in accordance to the community
code.

(A) VIOLATION OF ETHICAL AND RELIGIOUS CODE OF CONDUCT

2. Ethical codes are as old as antiquity. Religious traditions and civil cultures have codes
as their foundations. In each of these codes carry general obligations and admonitions.
These religious codes of conduct often capture a vision of excellence, of what an
individual and societies should be striving for and what they can achieve. In this
sense, the ethical and religious codes are some of the most important statements of
civic expectations. Ethical codes or code of conduct seldom provide detailed
prohibitions in the view of maintaining the morality or decency.
3. Further, no person shall produce or cause to be produced, sell, let to hire, distribute,
circulate, or send by post any book, pamphlet, aper, slide, film, writing, drawing,
painting, photograph, representation, or figure which contains Indecent representation
of women in any form.2

Therefore, the Marwadan being a member of Xatali Community himself violated the
ethical code and have done an act hurting the religious sentiments of his own community.

(B) ARTICLE 19(1)(a) IS SUBJECT TO REASONABLE RESTRICTIONS ON

THE GROUND OF VIOLATING MORALITY OR DECENCY

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4. Any artistic or poetic freedom is not absolute or limitless. This freedom is subject to
reasonable restrictions which may be thought necessary in the interest of the general
public and one such is the interest of public decency or morality. Section 292 of the
Indica Penal code, manifestly embodies such a restriction because the law against
obscenity, of course, correctly understood and applied seeks no more than to promote
public decency or morality. ------Devidas Ramachandra Tuljapurkar v state of
Maharashtra, AIR 2015 SC 2612
5. In the case of Chandrakant Kalyandas Kokodhar v State of Maharashtra11 the court
held that a balance must be maintained in between freedom of speech and expression
and public decency and morality. But in case where the latter is substantially
transgressed, former must give the way.
6. Further, the Section 67A of the Information Technology Act, 2000 also provides for
the punishment for publishing or transmitting of material containing sexually explicit
act in any electronic form, on first conviction shall be punished with imprisonment
which may extend to five years with a fine up to 10 lakh rupees, and on second
conviction, imprisonment which may extend to seven years with fine up to 10 lakh
rupees.
7. A person who was selling obscene video content to the general public, he was held
liable and convicted by the court. Also, in the case of Damodar Sharma V State of
Assam, The accused was kept for the purpose of sale a lot of obscene books written in
Assamese, Bengali, Hindi and English, it was found that the books seized were unjust
and improper.

Therefore, the author has over exercised his freedom of speech and expression and have
violated the community act on ground of morality or decency.

(C) XATALI COMMUNITY BEING A MINORTIY COMMUNITY

POSSESSES RIGHT TO SAFEGUARD THEIR RELIGION AND CULTURE.

8. The General Assembly adopted the United Nations Minorities Declaration 1992, is
the main reference document for minority rights. It gives to persons belonging to
religious minority,

11
Chandrakant Kalyandas Kokodhar v. State of Maharashtra AIR 1970 SC 1890

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protection of their existence and their national or ethnic, cultural, religious,

and linguistic identity.
the right to enjoy their own culture, to profess and practise their own religion,
to use their own language in public and private.
the right to participate effectively in cultural, religious, social, economic, and
public life.
the right to participate effectively in decisions which affect them on national
and regional levels.
the right to establish and maintain peaceful contracts with other members of
their group and with other minorities.

Therefore, the Xatali Community being a religious minority community have this right to
enact or estb. a code to safeguard their religion.

Hence, there are several additional sources of minorities which gives them the right to
regulate the conduct of their community members by establishing certain ethical codes and
prohibitions.

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IV. RIGHT TO FREEDOM OF SPEECH AND EXPRESSION CAN BE

CURTAILED IF IT HURTS THE RELIGIOUS SENTIMENTS OF A
PARTICULAR COMMUNTIY.

1. The counsel of respondent humbly submits to the Hon’ble court that even if the
ground for reasonable restriction on basis of hurting religious sentiments is not
expressly mentioned in the Article 19(2), but it is a implied condition and ground as
the religious communities right to protect and promote their religious beliefs.

(A) ONUS OF PROVE IS ON THE PETITIONER

2. the burden of proof is on the petitioner to explain as to why he chose this composition
to describe the beauty of the women and why he contends that he did not have any
“deliberate or malicious intention” of outraging the religious feelings of the Xatali
Community considering that he himself is a member of Xatali Community.12

Therefore, the author must prove the absence of deliberate and malicious intention in
publishing the poem on such sensible topic.

(B) PROTECTION OF RELIGIOUS SENTIMENTS OF CITIZENS UNDER

CONSTITUTION

3. In the very landmark case of Mohan C. Lazarus v State Represented by Inspector of

Police13, the Madras HC observed and stated that, throwing up malice against any
religion and having hatred against members of a certain religion challenged the very
purpose of the religion.
4. The court further held that, individuals who can influence a large section of society
through religious sentiments must be very cautious while exercising their right to
speech and expression guaranteed under article 19(1)(a) of the constitution, or
religion, or any concerned right. Such practice of rights cannot be at the cost of
hurting the religious sentiments of other citizens.

12

13
Mohan C. Lazarus v. State Represented by Inspector of Police

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5. As per the facts of the case, PT-2 i.e., Marwadan, the author of the poem is a social
media influencer having a huge fan following on the social media platforms. He is a
very significant source of inspiration of the masses specially the youth. This leads the
courts to infer that he should have been careful and responsible before writing or
publishing any content which can hurt the religious sentiments of any community.

Therefore, the religious rights are protected and safeguarded by the constitution.

(C) RIGHT TO RELIGION VIS-À-VIS THE RIGHT TO EXPRESSION

6. In the case of Ramachandrappa & Ors Vs State of Sri Baragur Karnataka & Ors 14
the SC of India held that, no individual has a right to infringe the feelings of others on
the premise that his right to freedom of speech and expression remains unrestricted as
per Article 19(2). This principle is exemplified by the Section 95 CrPC.15It cannot be
ignored that India is a country with vast differences in religion, language, culture, etc.,
and unwanted criticism in the faith of religion of others cannot be accepted in any
case.
7. The Apex Court, while analysing the contemporary scenario where the right to free
speech and expression has evolved significantly, especially on social media, explained
that, the social media activity has more permanent effects compared to traditional
platforms like statements made to a small group of people. The statements made on
social media are also likely to reach more people with great speed, even at the
international level (as in this case, the matter got the attention of international media
as well). However, what holds back the pace of such statements of the right to free
speech and expression guaranteed under Article 19(1)(a) of the constitution is the
reasonable restriction.16

Therefore, the balance must be maintained between the right to religion and right to
freedom of speech and expression.

(D) RESTRICTING ARTISTIC FREEDOM FOR PROTECTING RELIGIOUS

SENTIMENTS, VALID

14
Ramachandradrappa &ors [Link] of Sri Baragur Karanataka & ors.2007 5 SCC 11
15

16
Sri dulal ghosh v. state of Tripura, AIR 2021

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8. The debate on restricting artistic freedom for protecting religious sentiments has been
one of the most controversial topics to resolve and have certainly re-emerged after the
FIRs were registered against the makers of the ‘Tandav’ series under section 153A,
295A, 298, 505 of the IPC and the sections of Informational Technology Act (IT
ACT) for hurting the religious sentiments and insulting religion. The Justice M.R.
Shah, on the bench said that, the free speech is not absolute and is subject to
reasonable restrictions.2
9. For reference, there are many artists who were charged and convicted on the ground
of ‘hurting religious sentiments of a community’ and their freedom of speech and
expression were curtailed. Such as, Yogesh master in 2013, K. Senthil Mallan in May
2013, Shaheen Dada, and Renu Sreenivasan in 2012, Ravindra Kumar and anil Sinha
in 2009, R.V. Bhasin in 2007, B.V. Seetharam in march 2007, and many more.17

Therefore, the right to freedom of speech and expression can be restricted if it hurts the
religious sentiments of any community.

(E) SECTION 295A FROM THE LENS OF THE INDIAN CONSTITUTION

10. Article 19(1)(a) provides the right to freedom of speech and expression, but the
subsequent clauses of the article enumerate ‘reasonable restriction’. When the
constitutional aspect of the Section 295A is reviewed, it is found that it falls under the
‘reasonable restriction’ of the said article if the restrictions are not arbitrary and are in
favour of general public,618 which states that no person should use this fundamental
right of freedom of speech and expression to insult or to hurt the religious sentiments
of any class. If done, then this would amount to a punishable offense.19
11. Art. 18 of CCPR,20guaranteed that everyone shall have the right to freedom of
thought, conscience, and religion and this freedom will only be subject to such
limitations as are prescribed on by the law and are necessary to protect public safety,
order, health or morals or the fundamental right and freedom of others.
12. The SC has considered that, “A religion has its basic in a system of belief or doctrines
which are regarded as those who profess that religion as conducive to their spiritual

17

18
Krishnan kakkanth v govt. of Kerala, air 1997 SC 128
19

20

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well-being.” Thus, the constitution endeavours to protect the person’s beliefs and his
religious sentiments.21

Therefore, the Section 295A is constitutionally valid and is related to the Article 19(1)(a).

Hence, the counsel of the respondent concludes that the author’s right to freedom of speech
and expression can be curtailed in certain circumstances on the ground of hurting religious
sentiments of a community.

21

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V. RIGHT TO ACCESS TO INTERNET IS NOT A FUNDAMENTAL RIGHT,

BUT A DERIVED RIGHT UNDER ARTICLE 21 OF THE
CONSTITUTION OF INDICA.

1. The learned counsel of respondent submits thar the right to access internet cannot be
said to be a fundamental right of a person, it is just an enabler of the other
fundamental right. In accordance to the facts of this case, internet ban was imposed in
the state of Jatala in the view of maintaining law and order of the state.

(A) CONSIDERED AS A DERIVED RIGHT, NOT A FUNDAMENTAL RIGHT

2. Derived rights are those rights which are directly or indirectly originates from the
rights already established by the statute. These rights get its legal validity and
authority from the parent law itself from which it is originated. It is a secondary right
with all the protection and limitations of the primary right that enables it. For
reference, the right to privacy or right to health are derived right under Article 21 of
the Constitution of Indica.
3. There exists no fundamental right to the internet, and the internet can hence be
restricted as a medium of communication among the citizens22
4. Internet access is not a human right, as it does not meet a higher threshold nor is it
essential for humans to live a meaningful and dignified life. 23 Any technology is an
enabler/means to rights but not a right.24

Therefore, the right to access the internet is a derived right and not a fundamental right as per
the provisions of the constitution

(B) RIGHT TO ACCESS INTERNET IS SUBJECT TO REASONABLE

RESTRICTIONS UNDER ARTICLE 19(1) AND 21.

22

23

24

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5. Article 19(1)(a) is not an absolute right. It is subject to reasonable restrictions on the

grounds mentioned in the Article 19(2) of the constitution of India. The grounds are
as follows:
 Security of the state,
 Friendly relation with foreign nation,
 Public order,
 Decency or morality,
 Contempt of court,
 Defamation,
 Incite to an offence, or
 Sovereignty and integrity of India

People’s Union for civil liberties v Union of India 25, reasonable restrictions can
be imposed for the security of the state refers to the serious and aggravated forms
of public disorder, rioting, rebellion, waging war, etc.

As laid down in the landmark case of Anuradha Bhasin V. Union of India26the internet
shutdowns do not violate Article 19 of constitution. It acts as a reasonable restriction and it
should only be enacted if there is a genuine threat to public safety or national security (as in
this case, the widespread violent mass protests).

6. Firstly, it was analysed that the internet shutdowns may be passed only when it is
necessary and unavoidable to do so, i.e., when no “Less Intrusive Remedy” exists for
the same. Secondly, there are number of social media sites which may not be required
to be blocked independently or completely. But if internet access through mobiles is
blocked by issuing directions to the mobile companies, such may possibly be more
effective approach found by the competent authority.27
7. Internet is a ready tool for modern terrorism.28In the case law of Mohd. Ajmal Mohd.
Amir kasab v. State of Mahashtra529, it was stated that any action tending to violate
another person’s right to life or putting national security in jeopardy, can never be
justified by taking the plea of Article 19(1)(a). As per the facts and circumstances of

25
People’s Union for civil Liberties v. Union Of India 2007 12 SCC 135
26
Anuradha Bhasin v. Union Of India 2020 3 SCC 637
27

28

29
Mohd. Ajmal Mohd. Amir Kasab V. State Of Mahashtra 2012 9 SCC 1

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this case, widespread rioting escalated resulting into the grievous hurt to the public
and police both, hence damaging the public law and order.
8. In case any citizen challenges restrictions on the fundamental rights, the onus of proof
shifts to the petitioner to show the unreasonability of such restriction after the state
succeeds to bring it within the scope of permissible limits under the constitution of
Indica.30

Therefore, the Art. 19(1)(a) is not an absolute right and can be curtailed on several grounds as
per Art. 19(2) of the constitution.

Hence, it is concluded that the right to access internet is not declared a fundamental right yet.

30

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VI. THE 2019 AMENDMENT TO THE UAPA ACT, 2019 IS NEITHER

ARBITRARY AND NOR VIOLATIVE OF THE ARTICLE 14 AND 21 OF
THE CONSTITUTION OF INDICA.

1. The 2019 amendment of UAPA is a step taken by the Central Govt. to fulfil the
State’s obligation to protect the citizens from any act of terrorism. Organisation is
formed by the group of individuals itself. Earlier, only org. was declared as terrorist
org. which resulted into formation of new terrorist organisations by the same group of
people. The UAPA amendment act 2019 is neither manifestly arbitrary and nor
violative of any fundamental right as enunciated in the Const. of Indica for the
following reasons:

(A) Grounds for declaring an individual as terrorist are explicitly mentioned

2. As per the section 35(3), any organisation or any individual shall only be held liable if
it: (a) commits or participates in acts of terrorism, or
(b) prepares for terrorism, or
(c) promotes or encourages terrorism, or
(d) is otherwise involved in terrorism.
No irrelevant or unlawful ground was added or removed from the act for charging and
individual under UAPA. Further, Indica is not the first country to make provisions of
declaring individuals as terrorist but countries like USA, UK, CHINA, ISRAEL,
PAKISTAN, AND EUROPEAN UNION have these provisions as well, which proves
that this provision is constitutionally valid and enforceable.

3. The provision aims to stop any act of terrorism by restricting the terrorist ideology of
individuals. Few examples of individuals who are designated as terrorist u/s 35 of
UAPA amendment act, 2019 are: JeM commander Ashiq Ahmed Nengroo, Al-Umar
Mujahideen commander Mushtaq Ahmed Zargar, Co-founder of IM Mohammad
Iqbal, and 33 others.

Therefore, no person can be declared a terrorist on the discretion of the govt., but only on the
grounds explicitly mentioned.

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(B) No excessive and arbitrary powers are provided to the Central govt.

4. Any person or org. charged u/s 35, the first and foremost remedy available is that
he/she/it may by application apply for denotification before the central govt. second
remedy, If the application is rejected after due consideration, then he/she/it may
approach to the Review Committee, constituted for reviewing the decisions related to
UAPA, within 1 month of such refusal. Further, the verdict of the Review Committee
may be then appealed before the High Court, and finally the Supreme Court. As
clearly mentioned, u/s 37(3) the chairman of the Review Committee shall be a sitting
or retired judge of High Court, hence it leaves no home for the Central Govt. to
interfere and perform its unlimited arbitrary powers.
5. Further answering to the contention made by the learned council of petitioner that the
govt. cannot exercise any arbitrary powers in a democratic country, if does then it
would be violative of the article 14. From a past few decades, the state in democracy
has empowered itself with some laws that gives it arbitrary and non-justiciable powers
over the life and liberty of the people.31These arbitrary powers are sought to be
justified on TWO grounds:
National security
Territorial integrity
Acts like AFSPA32 PSA33 ULA(P)A34are examples of such laws prevailing the country
of Indica. Also, during the state of emergence, the president possesses some arbitrary
powers and all the general rights of the citizens are curtailed for the time being along
with the right to freedom of speech and expression.35
6. The PSA Act of 1978, has two sections “public order” and “threat to security of the
state”. As per its provision, any person can be detained without trial for 3-6 months
under public order and for two years for being a threat to national security. Also, the
former chief minister of Jammu and Kashmir, Farooq Abdullah was detained and
charged under the PSA of J&K.36

31

32

33

34

35

36

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7. As per the judgement in the case of A. N Bhati V/S State Of Gujarat37– it was held
that “a provision cannot be held unconstitutional merely because the authority vested
with the power may abuse his authority.”

Therefore, the Central Govt. cannot take arbitrary decisions and prosecute any person
without any justification.

(C) The principle of Natural Justice is not absolute

8. In the case of Canara Bank v. [Link],38it was opined that the rules of the
principle of Natural justice are not embodied rules in any statute of the Indica. The
undue reliance on these principles may lead to miscarriage of justice.39
9. Also, in the case of Syndicate Bank v. Gen. Secy., Syndicate Bank Staff
Association40, it was stated that there can be certain situations in which an order
passed in violation of natural Justice need not be set aside by the virtue of violation of
the principle of Natural justice.
10. The applicability of the principle of the Natural Justice is subject to many exclusions
or exceptions either expressly or by necessary implication, subject the provisions of
Article 14 and 21 of the Constitution of Indica. Following are the exceptions to the
Natural Justice principle:
 In case of emergency
 Express statutory exclusion
 Public interest
 Basis of impracticability
 Purely administrative matters
 When no right of person is infringed
 No fault decision maker concept

Therefore, the doctrine of natural justice is subject to various restrictions under the law.

(D) Article 14 is not absolute, but subject to Reasonable Classification

37
An Bhati v. State of Gujarat
38

39

40

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11. Article 14 is not absolute, there can be certain exceptions for the betterment of
citizens and in favour of the public interest. A legislature is entitled to make
reasonable classifications for the purpose of legislation and treat all-in-one class on an
equal footing.41it is settled law that differentiation is not always discriminatory.
It is not necessary that for a classification to be valid, its basis must always appear on
the face of the law. To find out the reasons and the justification for the classification,
the court may refer to the relevant material for e.g., objects and reasons appended to a
bill or law, etc.42

Therefore, the Art. 14 is not infringed by the amendment of 2019 in UAPA as it is subject to
reasonable classification.

Hence, the amendment Act of 2019 UAPA is not violative of the Article 14 and the Article
21 of the constitution.

41

42

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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the counsel for the
respondent humbly prays that the Hon’ble court be pleased to adjudge, hold, and declare:

1. That Mardawan is guilty U/S 2(b) of the Act 2022 as the Xatali Community Members
(Management and Regulation of Conduct) Act, 2022 is not Ultra Vires.
2. That their lies no hierarchical scheme in the idea of fundamental rights of the
constitution.
3. That the author is guilty of violating the standards of morality or decency established
by the community.
4. That the author has misused his under-Art.19(1)(a) by hurting the religious sentiments
of a community and hence should be held liable u/s 295A of IPC.
5. That right to access the internet is not a fundamental right under Article 21 and hence
can be curtailed on reasonable grounds.
6. That the Amendment Act of 2019 UAPA constitutionally valid and hence the PT- 4
(Michael Joseph) shall not be granted bail.

And pass any order that this Hon’ble court may deem fit in the interest of equity, justice, and
good conscience.

[Counsel(s) for Respondent]

Date: ____ / ____ /____

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