VITASTA SCHOOL OF LAW AND

HUMANITIES

BALLB 5 YEAR PROGRAM

MOOT COURT MEMORIAL

SUBMITTED BY: ZUBAIR AHMAD CHOPAN

DATE OF SUBMISSION: 15th JULY, 2024

ENROLMENT NO: 20042125016
SEMESTER: VII

BATCH 2020

SIGNATURE

MEMORANDUM ON BEHALF OF RESPONDENT

 BEFORE THE HON’BLE SUPREME COURT OF INDIA

2024

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

IN THE MATTER OF:

Mr. RAHUL THAKUR ------------------------------------------------------------------ Petitioner

Versus

UNION OF INDIA ----------------------------------------------------------------Respondent

MEMORANDUM ON BEHALF OF RESPONDENT

 TABLE OF CONTENTS

INDEX OF ABBREVIATIONS----------------------------------------------------------------------------------------

STATEMENT OF JURISDICTION-----------------------------------------------------------------------------------

QUESTIONS PRESENTED--------------------------------------------------------------------------------------------

SUMMARY OF ARGUMENTS---------------------------------------------------------------------------------------

INDEX OF AUTHORITIES------------------------------------------------------------------------------------------

STATEMENT OF JURISDICTION----------------------------------------------------------------------------------

PRAYER--------------------------------------------------------------------------------------------------------

MEMORANDUM ON BEHALF OF RESPONDENT

 INDEX OF ABBREVIATIONS

¶COI Constitution
Paragraph Of India

He
& Rahul
And Thakur

No.
SC Number
SUPREME COURT

HC
V. High Court
VERSUS

Ors.
R.T Others
RAHUL THAKUR

Pg.
Anr. Page
Another

App.
ACC. Appeal
Accused

Re.
Resp. Reference
Respondent

Pvt.
ST. Private
State

SCC
CrPC Supreme
Criminal Court CasesCode
Procedure

SCR
Crl.A. Supreme
Criminal Court
AppealReporter

Rev.
CAA Revision
Citizenship Amendment Act

Sd/
FIR Signed
First Information Report

FIR
Govt. First Information Report
Government

Him
Hon`ble Rahul Thakur
Honorable

IPC
I.L.R Indian Penal Code 1860
Law Reporter

Vol.
UAPA Volume
Unlawful Activities Prevention Act 1967

Sec. Section

UOI Union Of India

Mr. Mister

MEMORANDUM ON BEHALF OF RESPONDENT

 MEMORANDUM ON BEHALF OF RESPONDENT
INDEX OF AUTHORITIES

CASES REFERRED
1. D.S. Nakara v. Union of India.
2. Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors.
3. UOI v. MV Valliappan.
4. Narendra Kumar and Ors, vs. the Union of India and Ors.
5. M.C MEHTA V. UNION OF INDIA.
6. OLGA TELLIS & Ors V.BOMBAY MUNICIPAL CORPORATION & Ors.
7. Ramesh Thappar v. State of Madras.
8. PB Desai v. State of Maharashtra.
9. Ravindra Shantram Sawant v. State of Maharashtra

JOURNALS REFERRED:-

1. All India Reporters

2. Crimes

3. Criminal Law Journal

4. Scale
 5. Supreme Court Cases

MEMORANDUM ON BEHALF OF RESPONDENT

BOOKS REFERRED:-

1. Basu D.D., Commentary of the Constitution of India, (8th ed., 2011), Vol.1. & Vol.2.

rd
2. C. K. Takwani & M.C. Takwani, Criminal Procedure (3 Ed., Lexis Nexis

Butterworths Wadhwa, Nagpur, 2011)

3. Datar A.P., Datar on Constitution of India, (1st ed., 2001), Wadhwa and Co.

th
4. Dr. K.I. Vibhute, PSA. Pillai Criminal Law (11 Ed., Lexis Nexis Butterworths

Wadhwa, Nagpur)

5. Jain M.P., Indian Constitutional Law, (6th ed., 2010), Lexis Nexis Butterworths

Wadhwa, Vol.1.

6. John Woodroffe, Commentaries On Code Of Criminal Procedure, 1972 (Law

Publishers (India) Pvt. Ltd., 2009)

7. Justice C.K. Thakkar, Encyclopaedia Law Lexicon, (Ashoka Law House, New Delhi,

2010)
th
8. Justice GP Singh, Principles Of Statutory Interpretation (13 Ed., Lexis Nexis

Butterworths Wadhwa, Nagpur)

nd
9. K.D. Gaur, Commentary on the Indian Penal Code (2 Ed., Universal Law

Publishing Co. Pvt. Ltd., 2013)

rd
10. K.D. Gaur, Criminal Law Criminology and Administration of Criminal Justice (3

Ed., Universal Law Publishing Co Pvt Ltd., 2015)

11. Kashyap S.C., Constitution of India, (2006), Universal Law Publishing Co.

th
12. M.R. Mallick, R.K. Bag, A.N. Saha Criminal Reference (6 Ed., Eastern Law House,
2009)
 rd
13. R. P Kathuria`s, Law of Crimes and Criminology (3 Ed.,Vinod Publications, 2014)

th
14. S.C. Sarkar, P.C. Sarkar & Sudipto Sarkar, The Code Of Criminal Procedure (11

Ed., Lexis Nexis 2015)

15. Sathe S.P., Administrative Law, (7th ed., 2004), Lexis Nexis Butterworths Wadhwa.

16. Seervai H.M., Constitutional Law of India, (4th ed., 2010), Universal Law Publishing

Co., Vol.2 & Vol.1.

17. Underhill`s Criminal Evidence, Fifth d. Vol. I, p. 664.

 STATEMENT OF JURISDICTION
MEMORANDUM ON BEHALF OF RESPONDENT

The Counsels representing the accused have endorsed their pleadings before the Hon`ble
Supreme Court of India under Article 32 of the Constitution of India in which the Hon`ble Court
1
has the jurisdiction. the present memorandum sets forth the facts, contentions and arguments.

1
Article 32, of The Constitution of India confers the right to constitutional remedied for the enforcement of the
fundamental rights of an aggrieved citizen. It contains the following four provisions in this regard; - Right to
move to the SC for enforcement of fund. Rights is guaranteed.
- SC shall have power to issue directions, orders, writs for enforcement of fund. Rights.
- The parliament can empower any other court to issue direction, order, writs of all kinds..
- The right to move to the SC shall not be suspended, except as otherwise provided for by the constitution.
 SUMMARY OF FACTS
MEMORANDUM ON BEHALF OF RESPONDENT

For the sake of brevity and convenience of the Hon`ble Court the facts of the present
case are summarized as follows:

1. On12th June 2022 Mr. Rahul Thakur participated in anti CAA protest in shaheen bagh
Delhi.
2. He gave an aggressive speech against the govt. of India, many people would listen to
him.
3. Mr.Rahul Thakur gave provocative slogans and created an apprehension of law and
order problem.
4. Although Mr. Rahul appealed the crowd to protest peacefully, there were incidents of
stone pelting while the protesting people were marching towards jantar mantar.
5. Thestone pelting resulted in injury of many police men. In retaliation police fired
several tear gas shells and rubber bullets in addition to lathi charge resulting in injury of
many people including women and children.
6. Soon after the incident took place an FIR was filed against Rahul Thakur Under section
10 and 13 of the Unlawful Activities And Prevention Act ,1967 and under section 120 B
of the IPC 1860.
7. The police arrested Mr. Rahul Thakur on 14th June 2022. Since then he is detained in
Tihar Jail DELHI. The case was filed in the supreme court of India challenging the
validity of the Unlawful Activities Prevention Act 1967 on the grounds of being violative
to the constitution of the India.

MEMORANDUM ON BEHALF OF RESPONDENT

 STATEMENT OF ISSUES

The following questions are presented before this Hon’ble court for adjudication
in the instant matter:

I. DOES THE UAPA VIOLATES ARTICLE 14, 19, 21, AND 22 OF

THE CONSTITUTION?

II. DOES SECTION 10 AND 13 OF UNLAWFUL ACTIVITIES

PREVENTION ACT 1967 ARE CONSTITUTIONALLY VALID OR
NOT?

MEMORANDUM ON BEHALF OF RESPONDENT

ADVANCED ARGUMENTS
I. DOES THE UAPA VIOLATES ARTICLE 14, 19, 21, AND 22
OF THE CONSTITUTION?

In the present case, the impugned provisions are not of wanton abuse and power
conferred cannot be held to be bad since there are ample safeguards. The principle
of possible abuse of power is not applicable since the power as conferred are not
vague. Exercise of power by the authorized persons is permissible if it is necessary
to maintain public order, and not merely law and order and when the incidence of
crime and prohibited acts goes beyond the limits. The primary objective of the
unlawful activities act is to protect the integrity of our democratic institution and
promote a peaceful global environment as defending our nation against its enemies
is the first and fundamental commitment of the federal Government. Therefore, it is
humbly submitted before the Hon’ble Court that the Unlawful Activities act does
not violate Article 14 of the Constitution of India.

1. Article 14 provides that the state shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India.

1. The unlawful activities prevention act have been made on the basis of
reasonable classification. Article 14 forbids class legislation; it does not forbid
reasonable classification of persons, objects and transactions by the legislature
for the purpose of achieving specific ends. Classification to be reasonable
should fulfil the following two tests:

2. It should not be arbitrary, artificial or evasive. It should be based on an

intelligible differentia, some real and substantial distinction, which distinguishes
persons or things grouped together in the class from others left out of it.

3. The differentia adopted as the basis of classification must have a rational or

reasonable nexus with the object sought to be achieved by the statute in
question,

4. It is abundantly clear that Fundamental rights enshrined in part III of the

Constitution are neither absolute nor unlimited but are subject to reasonable
restrictions which may be imposed by the state in public interest under Article
19. As to what are reasonable restrictions would naturally depend on the nature
and circumstances of the case, the character of the statute, the object which it
seeks to serve, the existing circumstances, the extent of evil sought to be
remedied as also the nature of restraint or restrictions placed on the rights of the
citizens.
5. Article 14 of the constitution does not insist that the classification should be
scientifically perfect and a court would not interfere unless the alleged
classification results in apparent inequality. The question for determination by
court is not whether it has resulted in inequality but whether there is some
difference which bears some just and reasonable relation to the object of
legislation. Mere difference does not per se amount to discrimination within the
inhibition of the equal protection.

6. The SC observed in the case of D.S. Nakara v. Union of India that, if the
State establishes not only the rational principle on which classification is
founded but correlate if to the objects sought to be achieved then it satisfies the
twin test of reasonable classification. Further in the case of Shri Ram Krishna
Dalmia v. Shri Justice S.R. Tendolkar and Ors.” The court opined that it is
equally well settled by the decisions of this Court that Article 14 condemns
discrimination not only by a substantive law but also by a law of procedure.

7. Let me draw the attention of this Hon’ble court to the facts and figures
which are itself sufficient for deciding the rationale either the UAPA is
violating the provisions of the constitution or not ? in the present case it is
quite reasonable and clear on the face of it that the way slogans were raised
and speech was given by Mr. Rahul in public gathering it is akin to public
disorder because whenever anything strikes in masses which are
derogatory in nature it is expected that there would be law and order
problem which needs to be tackled by the police force by whatever means
they can sustain the conducive atmosphere in order to protect the innocent
civilians and general public. However, the provocation which was
disseminated by Mr. Rahul is absolutely against the constitutional
democratic setup and are blatant attack on constitutional safeguards
guaranteed to law abiding citizens and are not inter se violation of article
14 of the constitution. So, it is further submitted that the state is having
utmost powers to deal with any kind of situation which are against very
ethos of territorial integrity, sovereignty and unity of the nation.

In the present case, the primary objective of the Legislation is to protect the
integrity of our democratic institutions and promote a peaceful global
environment as defending our nation against its enemies is the first and
fundamental commitment of the federal Govt. Without national security, a
nation would easily and quickly be able to be invaded and overcome,
 leaving the citizens subjugated to another nation’s rule, which likely would
not have their best interests at heart.

8. So, the legislation is based on intelligible differentia as the persons

suspected as terrorist are the differences made in the society which are capable
of being understood and the legislation are made to protect the integrity of the
nation which is the main object sought to be achieved. Hence, both the test of
the reasonable classification has been fulfilled. The legislature is required to
deal with diverse problems arising out of an infinite variety of human relations.
It must, therefore, necessarily have the power of making laws to attain particular
objects and, for the purpose, of distinguishing, selecting and classifying person
and things upon which its laws are to operate. However, it is worthwhile to
submit here that the appellant had ulterior motives under the garb of protest to
incite violence and disruption among the common masses for shaking the
conscience of whole nation.

MPS

In the present case, the action taken by the state against the appellant is not
arbitrary and lays down proper guidelines, norms and principles for the exercise of
power. Also, it is in the interest of the public safety, and it is considered necessary to
do so, in addition to interest of the Sovereignty and integrity of the country, the
security of the State; and for the prevention of incitement to the commission of an
offence which would have repercussions far beyond boarders.

It would also be profitable to bring into the consideration of this Hon’ble court that
the Jurisdiction of the Supreme Court under Article 32 can be invoked only when
Fundamental Right has been infringed. No question other than relating to a
Fundamental Rights will be determined in a proceeding under Article 32°. Thus,
where there is no infringement of Fundamental Rights or scope for enforcement of
any Fundamental Right, the writ petition is not maintainable on the fragile ground.
In the present case, there has been no violation of the fundamental rights since, the
action taken by the Govt. was in furtherance of National security and thus cannot
be termed as arbitrary or as one which was without the application of the mind
because it is aptly clear from the facts and circumstances of the case that if any
person during the time of any national issue makes an assembly for protests but at
the same time there must be proper protocol to be followed as per the procedure
established by law but banking on the four corners of the instant case no such thing
came before the Hon’ble court which would justify the protest led by the appellant
which had resultantly caused breach of peace and heralded the sovereignty and
integrity of the whole nation.
9. Moreover, infringement of Fundamental Right cannot be founded on remote of
speculative grounds. There is no such action which infringes or poses a threat to
Fundamental Right of the citizens. Mere apprehension that the petitioner would be
deprived of his Fundamental Right is not enough to invoke the jurisdiction of the
Court under Article 32”.

10. The Supreme Court has observed in the case of UOI v. MV Valliappan that,
it is settled law that differentiation is not always discriminatory. If there is a
rational nexus on the basis of which differentiation has been made with the object
sought to be achieved by particular provision, then such differentiation is not
discriminatory and does not violate the principles of Article 14 of the constitution.

11. 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 relevant material, example objects and reasons appended to a Bill,
parliamentary debates, affidavits of the parties, matters of common knowledge, the
background circumstances leading to the passage of the Act, etc.

13. In Narendra Kumar and Ors, vs. The Union of India and Ors., the Court held that
in applying the test of reasonableness, the Court has to consider the question in the
background of the facts and circumstances under which the order was made, taking into
account the nature of the evil that was sought to be remedied by such law, the ratio of the
harm caused to individual citizens by the proposed remedy, to the beneficial effect
reasonably expected to result to the general public.

14. The principle underlying the guarantee of Article 14 is not that the same rules of law
should be applicable to all persons within the Indian Territory or that the same remedies
should be made available to them irrespective of differences or circumstances. It only
means that all persons similarly circumstanced shall be treated alike both in privileges
conferred and liabilities imposed.

Hence, in the instant case the person suspected under the procedures established by
law under the circumstances like, if the person commits or participates in acts of
terrorism, cyber terrorism, prepares for terrorism, promotes terrorism or is
otherwise involved in terrorism are designated as terrorist under due process of law
as these people are the extremist and does not belongs to normal class of people and
they are those differences in the society which can become anatomy of terror for the
nation and these differences are capable of being understood and hence this menace
must be curbed. Thus, the amendments made to empower government to designate
individuals as terrorist under due process of law. Therefore, it is humbly submitted
before the Hon’ble Court that the unlawful activities prevention act does not violate
Article 14 of the Constitution of India.

2. ARTICLE 19
RIGHT TO FREEDOM OF SPEECH ARTICLE 19 [1] [a]:
provides freedom of speech which is the right to express ones
opinion freely. Article 19 is a pillar of Indian democracy in this
modern arena.

Taking into consideration the quantum and scope of the article

19[1][a] it is not an unlimited or absolute right operation of
which is within the lines of feasibility and not beyond the
constitutional parameters.
However it is important to mention that this provision is oftenly
being used for incitement of violence which causes breach of
peace among the people. Meanwhile the article19 [1] [a] contains
certain restraints and exceptions which are postulated in article
19[2]. [Reasonable restrictions].
It would be worth noting the reference of judgement given in
Romesh Thappar v. State of Madras
The madras high court in this case held that for the sake of state
security the imposition of reasonable restrictions on free speech is
permissible.
It would be beneficial for this honble court to appreciate the
position of law with regard to constituting an offence because it is
established that if any person will use a single word against the
sovereignty and integrity of India it will be an offence And in the
present case an aggressive speech against the government of
India was delivered by Mr. Rahul Thakur and which is not
protected under the article 19[1] [a].
So In this present case the speech was not protected under the article 19[1] [a] and
hence UNLAWFUL ACTIVITIES PREVENTION ACT does not violate the article
19 of the constitution of India.

3.ARTICLE 19[1] [B] RIGHT TO ASSEMBLE PEACEFULLY AND

WITHOUT ARMS: Everyone has right to assemble peacefully for staging a peaceful
protest and same is subjected to reasonable restrictions which are enshrined under Article
19[3].

So far as the bare provision is concerned it is exclusively viable that only peaceful
protests are permissible according to the procedure established by law and in present
case all these limitations were not properly followed and subsequently resulted into
breach of public peace and tranquility which also erupted into violent actions by
protestors in this case grave provocative slogans were delivered by Mr. Rahul Thakur
which resulted in the law and order problem.
This right guaranteed under article 19[1] [b] is also subject to the reasonable restrictions
as enshrined under article 19[3].

Right to peaceful protest and demonstration:

It would be useful to mention the reference of the judgement of honble supreme

court given in the case of:
Bimal Gurung v. Union of India, (2018) 15 SCC 480.
Right to peaceful protest and demonstration, is a fundamental right under Articles
19(1)(a) to (c) but right to carry out public demonstrations does not include right to
become violent and damage public and private properties and harm or threaten
lives of people or put others to inconvenience.
So In this present case the protest was not peaceful and hence UNLAWFUL
ACTIVITIES PREVENTION ACT does not violate the article 19 of the constitution
of India.

4. ARTICLE 21
It would be also important to submit Article 21 lays down that no person shall be
deprived of his life and personal liberty except according to procedure established by
law. It is an inalienable right available to everyone and cannot be debunked without
sufficient ground.
The detention of detainee in the present matter is just and reasonable because Mr. Rahul
Thakur tried to create wedge between state and citizens which created havoc among the
general public. The present matter pertains to whole societal disruption by which chaos
and confusion was hasten due to the violent remarks made by Mr. Rahul Thakur in his
speech which were quite unconstitutional and violates the parameters laid down in the
constitution.
It is pertinent to submit before this honble court that the right guaranteed under article 21
has not been violated which would prompt the petitioner to invoke the jurisdiction of this
honble court reason being he had made breach of peace by his derogatory speech which
became the sole reason of his detention. So on that basis he cannot claim the violation of
his fundamental rights.
In the instant case it is relevant to bring the attention of this honble court to the
verdict which has been amplified by the Karnataka High Court in a recent
judgement of it;

UAPA | Article 21 Can't Be Stretched To Protect Those Posing a Threat to Nation's

Sovereignty & Integrity: Karnataka High Court
“It is the duty of the Constitutional Courts to protect the nation and its society from
such people who indulge in anti-national and anti-societal activities. Without the
nation there is no Constitution," it said.
Update: 2024-02-26 10:58 GMT
The Karnataka High Court while dismissing an appeal by an accused charged
under the Unlawful Activities (Prevention) Act, said “Article 21 cannot be stretched
too long to afford protection to persons who have least concern for rule of law and
pose threat to sovereignty and integrity of the nation. A division bench of Justices
Sreenivas Harish Kumar and Vijaykumar A. Patil, dismissed the appeal filed by
accused.

5. Article 22-Proection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest. Nor shall he be denied the right to
consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of 24 hours of such arrest excluding the time necessary
for the journey from the place of arrest to the court of the magistrate and no such person
shall be detained in custody beyond the said period without the authority of a magistrate.

In the present case, any person suspected to be involved in any unlawful activity can
be detained without trial and conviction by a court, merely on a suspicion in the
mind of an executive authority. Even certain safeguards are mentioned in the
Article 22 of the Constitution for the detention of any person under the procedures
established by law. Hence, it is not arbitrary and can be done for the sake of defense
and security of the nation.

Right to fair trial in a criminal prosecution is enshrined in Article 21. Fair investigation
and fair trial are concomitant to preservation of fundamental rights of accused under
Article 21 of the Constitution. However, in the present case, Hence, there is no violation
of right to life and personal liberty as in the case of PB Desai v. State of Maharashtra, the
Court opined that the due process of law requires that everyone who is tried under any
law before the court must have some awareness of, or at least a reasonable opportunity to
become aware of their legally owed duty towards its recipient. And in the instant case the
individuals are suspected if the person commits or participates in acts of terrorism, cyber
terrorism, prepares for terrorism, promotes terrorism or is otherwise involved in
terrorism and are designated as terrorists on the basis of fair trial under the due process of
law.

Exercise of power by the authorized persons is permissible if it is necessary to

maintain public order, and not merely law and order and when the incidence of
crime and prohibited acts goes beyond the limits. Hence, in the present case, the
impugned provisions are not of wanton abuse and power conferred cannot be held
to be bad since there are ample safeguards. The principle of possible abuse of power
is not applicable since the power as conferred is not vague, Therefore, it is humbly
submitted before the Hon’ble Court that the provisions of the Unlawful Activities
(Prevention) Act, does not violate Articles 21 and 22 of the Constitution of India per
se.[as per the facts and circumstances of the case].

II. DOES SECTION 10 AND 13 OF UNLAWFUL ACTIVITIES

PREVENTION ACT 1967 ARE CONSTITUTIONALLY VALID OR
NOT?
Before adverting to the discussion either section 10 & 13 of unlawful activities
prevention act are constitutionally valid or not it would be convenient to reproduce the
aforementioned sections as under:-

OFFENCES AND PENALTIES

Section 10. Penalty for being member of an unlawful association, etc.-Where an

association is declared unlawful by a notification issued under section 3 which has
become effective under sub-section (3) of that section-

(a) A person, who-

(i) Is and continues to be a member of such association; or

(ii) Takes part in meetings of such association; or

(iii) Contributes to, or receives or solicits any contribution for the purpose of, such
association; or

(iv) In any way assists the operations of such association, shall be punishable with
imprisonment for a term which may extend to two years, and shall also be
liable to fine; and

(b) A person, who is or continues to be a member of such association, or voluntarily

does an act aiding or promoting in any manner the objects of such association and
in either case is in possession of any unlicensed firearms, ammunition, explosive
or other instrument or substance capable of causing mass destruction and commits
any act resulting in loss of human life or grievous injury to any person or causes
significant damage to any property-

(1) And if such act has resulted in the death of any person, shall be punishable with death
or imprisonment for life, and shall also be liable to fine;

(ii) In any other case, shall be punishable with imprisonment for a term which shall not
be less than five years but which may extend to imprisonment for life, and shall also be
liable to fine.]

Section 13:- Punishment for unlawful activities.-(1) whosoever, [A] Takes

part in or commits, or [b] Advocates, abets, advises or incites the commission of, any
unlawful activity, shall be punishable with imprisonment for a term which may extend to
seven years, and shall also be liable to fine.
(2) Whoever, in any way, assists any unlawful activity of any association declared
unlawful under section 3, after the notification by which it has been so declared has
become effective under sub-section (3) of that section, shall be punishable with
imprisonment for a term which may extend to five years, or with fine, or with both.

(3) Nothing in this section shall apply to any treaty, agreement or convention entered into
between the Government of India and the Government of any other country or to any
negotiations therefor carried on by any person authorized in this behalf by the
Government of India.

It is pertinent to submit before this Hon’ble court that if a person is a member of an

association and by virtue of that unlawful association does any act which is
prejudicial to the State which resultantly causes grievous injury to any person or
loss of human life or damage to the property then section 10 & 13 of UAPA can be
levelled against such person but so far as the present case is concerned there is
ample material to prosecute petitioner in the present case because there is Prima
facie material on record which is directly connecting the accused person with the
commission of crime because it is admitted that the protesters did resort to the
violence which caused serious ramifications on public domain as such it is
constitutionally valid to deal with the accused accordingly as per the provisions of
unlawful activity prevention Act so on and so forth.

It would be profitable to reproduce here the recent judgement decided by the

Supreme Court in which it was held that Mere Membership of Unlawful
Organization Is UAPA Offence. A bench comprising Justices MR Shah, CT Ravi
Kumar and Sanjay Karol also upheld Section 10(a) (i) of the UAPA which makes
membership of an association, which has been declared to be unlawful, to be an
offence. The bench also said that the earlier bench had made a “mistake” by relying
on US Supreme Court judgments, as the right to freedom of speech and association
as per the Indian Constitution is subject to reasonable restrictions.

Supreme Court: In a matter relating to Unlawful Activities

(Prevention) Act, 1967 a Full-Judge Bench comprising of MR Shah, CT
Ravikumar and Sanjay Karol, JJ. overruled its 2011 order in Arup Bhuyan v. State of
Assam, (2011) 3 SCC 377, and judgments in Indra Das v. State of Assam, (2011) 3 SCC
380 and State of Kerala v. Raneef, (2011) 1 SCC 784, further upheld Section 10(a)(i) of
UAPA. In all the aforesaid cases, the two-Judge Bench comprising of Markandeya Katju
and Gyan Sudha Misra, JJ. Held that mere membership of a banned association is not
sufficient to constitute an offence under the UAPA or the Terrorism and Disruptive
Activities (Prevention) Act, 1987 (TADA) (now repealed) unless it is accompanied with
some overt violence.
Later, in Arup Bhuyan (supra), on an application by the Union seeking reference on
the ground that the interpretation of Central legislations was given without hearing
the Union, the Two-Judge Bench of Dipak Misra and AM Sapre, JJ. Referred the
matter to a larger bench.

The Court said that in the 2011 Judgments the question of the Constitutionality of
the provisions of UAPA was not is issue, as they were mere bail applications.
Further, the bench observed that when Parliamentary legislation is read down in
the absence of the Union, enormous harm would be caused to the State if they are
not heard. Further, if the language of a Section is plain and clear and the validity of
the Section is not in question, then reading down is not permissible.

The Court also said that the bench in the 2011 Judgments has referred to the
United States cases without relying on Indian cases which is not suitable, as the
difference in the nature of laws between the two countries must be considered when
taking guidance from US Supreme Court decisions.

The Court further said that the Section 10(a)(i) UAPA has been enacted in
furtherance of the interest of sovereignty and integrity of India, and these are
grounds of the reasonable restrictions under Article 19. Thus, the Court held that
Section 10(a)(i) is in harmony with the fundamental rights under Articles 19(1)(a)
and 19(2) of the Constitution of India, thus, agrees with the objectives of UAPA.

So keeping in view the pronouncements of honorable supreme Court it is

abundantly clear that if a person is a member of banned organization and are also
involved for resorting of violence he will be charged under section 10 of uapa and
it is also important to mention that there is sufficient material on record by virtue
of raising slogans and hate speeches which has resultantly caused grave prejudice to
the common masses by virtue of such activities at the behest of the petitioner and is
liable for the same. However it is also pertinent to submit that the acts are
apparently catastrophic in nature which has shaken the conscience of whole nation.

If what I think the correct test is applied, it is manifest that there was present danger of
an attempt to over- throw the government by force on the part of the admittedly small
minority who shared the petitioner’s views. It is said that this Manifesto was more than a
theory, that it was an incitement. Every idea is an incitement. It offers itself for belief,
and, if believed, it is acted on unless some other belief outweighs it, or some failure of
energy stifles the movement at its birth. The only difference between the expression of
an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the
result. Eloquence may set fire to reason. But whatever may be thought of the redundant
discourse before us, it had chance of starting a present conflagration. If, in the long run,
the beliefs expressed in proletarian dictatorship are destined to be accepted by the
dominant forces of the community, the only meaning of free speech is that they should
not be given their chance and have their way. If the publication of this document had
been laid as an attempt to induce an uprising against government at once, and not at
Some indefinite time in the future, it would have presented a different question. The
object would have been one with which the law might deal, subject to the doubt whether
there was any danger that could produce any result; or, in other words, whether it was not
futile and too remote from possible consequences. But embarking upon the present facts
and circumstances of the case it is aptly clear that the freedom of speech and expression
of petitioner has caused grave prejudice to the sovereignty integrity and unity of the
nation which is absolutely against the constitutional latter and spirit.

However, it is also important to mention that section 13 can be alleged/invoked

against a person “even have used or uttered a single word” For commission of any
unlawful activity. The UAPA was manifested as an anti-terrorism law to curb
unlawful activities, associations and preserve the sovereignty and integrity of India.
Since its inception, it has been amended for efficient application. It serves the Act’s
primary. The amendments allowed Parliament to impose constraints on the
fundamental rights of freedom of expression, assemble without arms, and form
alliances. These restrictions were to be imposed only to safeguard the sovereignty
and integrity of India. Version of the UAPA granted the central government the
power to deal with activities levelled against the sovereignty and integrity of India
because on daily basis we are witnessing gruesome terrorist and disruptive activities
which are putting and striking immense terror in the minds of the common masses.
So, keeping in view the present facts and circumstances of the whole nation and the
gruesome incidents which are happening on daily basis for that regard it gets
shadow under the constitution of India because the situation demands so in the
interests of justice. Meanwhile, it is also important to mention that the incidents
which are happening currently some way down the line effecting the pressure on
common masses
 PRAYER FOR RELIEF

Wherefore, in light of the facts stated, issues raised, authorities cited &arguments advanced,

may this Hon`ble Court be pleased to adjudge & declare that: the Petitioners plea before

this Hon’ble court is not maintainable as same is against the constitutional

safeguards guaranteed to citizens of nation and the legislation of unlawful

activities prevention act is not violating the fundamental rights of the petitioner

and same is subjected to reasonable restrictions enshrined within the realm and

shadow of constitutional postulates and the plea of petitioner may be dismissed in

the interests of justice.

AND

Pass any other order that it may deem fit in the interest of justice, equity & good
conscience.

All of which is most humbly prayed.

Respondent

Through Counsel

Zubair Shabir

MEMORANDUM ON BEHALF OF RESPONDENT