Team Code:

SMCC001

Before

THE HON’BLE

HIGH COURT OF GURJARI

SHRI GORDHANBHAI S. PATEL 2ND STATE LEVEL ONLINE MOOT COURT

COMPETITION, 2025

The Case Concerning Freedom of Speech & Custodial Detention

Writ Petition No.: ____/2025

Under Art. 226 of the Constitution of India, 1950.

In the matter of:

KABIR ARYA......................................................................................................Petitioner

v.

STATE OF GURJARI .................................................................................. Respondent

MEMORANDUM on behalf of PETITIONER

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ............................................................................................... iii

INDEX OF AUTHORITIES ................................................................................................... v

STATEMENT OF JURISDICTION .................................................................................. viii

STATEMENT OF FACTS ..................................................................................................... ix

ISSUES ...................................................................................................................................... x

SUMMARY OF ARGUMENTS ............................................................................................ xi

ARGUMENTS IN ADVANCE ............................................................................................... 1

ISSUE I: WHETHER SECTIONS 196, 152, 197(1)(D) AND 356 OF BNS, 2023,

VIOLATE THE FUNDAMENTAL RIGHTS GUARANTEED UNDER

ARTICLES 19 AND 21 OF THE CONSTITUTION? ............................................. 1

ISSUE II: WHETHER KABIR ARYA’S ARREST AND DENIAL OF BAIL

WERE JUSTIFIED UNDER THE NEW CRIMINAL LAW FRAMEWORK? ... 6

ISSUE III: WHETHER HIS DETENTION AMOUNTS TO CUSTODIAL

TORTURE, VIOLATING HIS RIGHTS UNDER ARTICLE 21 OF THE

CONSTITUTION AND THE UN CONVENTION AGAINST TORTURE? ...... 10

ISSUE IV: WHAT IS THE SCOPE OF FREEDOM OF SPEECH AND

EXPRESSION FOR JOURNALISTS UNDER BNS, 2023? ................................. 15

PRAYER ................................................................................................................................. 21

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LIST OF ABBREVIATIONS

ABBREVIAITONS FULL FORM

No. Number

HC Honorable High Court

SC Honorable Supreme Court of India

SLP Special Leave Petition

Art. Article

V. Versus

Hon’ble Honorable

Mr. Mister

Mrs. Missus

Smt. Shrimati

Ors. Others

Anr. Another

Vol. Volume

Edn. Edition

¶/Para Paragraph

& And

§/s. Section

cl. Clause

Pg. Page Number

Yr. Year

Dt. Date

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Constitution The Constitution of India, 1950

SCC Supreme Court Cases

AIR All India Reporter

i.e. That is

Viz. Which is

MHA Ministry of Home Affairs

Gov. Government of India

NIC National Informatics Centre

IJRPR International Journal of Research Publication and Reviews

PIB Press Information Bureau

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INDEX OF AUTHORITIES

CASE CITED

1. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955

2. Shreya Singhal v. Union of India, (2015) 5 SCC 1
3. Kartar Singh v. State of Punjab, (1994) 3 SCC 569
4. Babu Rao Patel v. State (Delhi Administration), AIR 1980 SC 763
5. G.V. Godse v. Union of India, 1971 Cr LJ 324
6. Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra, (2010) 5 SCC 246
7. Sahib Singh Mehra v. State of Uttar Pradesh, AIR 1965 SC 1451
8. Subramanian Swamy v. Union of India, AIR 2016 SC 2728
9. Dr. D.C. Saxena v. Hon’ble the Chief Justice of India, 1996 INSC 753
10. M.R. Prabhakar v. Canara Bank, (2002) 2 SCC 496
11. State of Uttar Pradesh v. Lalai Singh Yadav, (1977) 1 SCC 88
12. Arup Bhuyan v. State of Assam, (2011) 3 SCC 377
13. Amish Devgan v. Union of India, (2021) 1 SCC 1
14. Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305
15. Maneka Gandhi v. Union of India, (1978) 1 SCC 248
16. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
17. Joginder Kumar v. State of U.P., (1994) 4 SCC 260
18. Sanjay Chandra v. CBI, (2012) 1 SCC 40
19. Satender Kumar Antil v. CBI, (2022) 10 SCC 51
20. Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240
21. Romesh Thappar v. State of Madras, AIR 1950 SC 124
22. Vinod Dua v. Union of India, 2021 SCC OnLine SC 414
23. Siddique Kappan v. State of U.P., Cr. A. No. 1375 of 2022
24. D.K. Basu v. State of West Bengal, AIR 1997 SC 610
25. Sunil Batra v. Delhi Administration, AIR 1980 SC 1579
26. State of M.P. v. Shyamsunder Trivedi, (1995) 4 SCC 262
27. Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96
28. Vishaka v. State of Rajasthan, (1997) 6 SCC 241
29. Indian Express Newspapers v. Union of India, (1985) 1 SCC 641

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30. Brij Bhusan v. State of Delhi, AIR 1950 SC 129

31. Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., AIR 1995 SC 2438
32. S. Khushboo v. Kanniamal, (2010) 5 SCC 600
33. Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106
34. Chintaman Rao v. State of M.P., [1950] SCR 759
35. S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574
36. Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, [1960] 2 SCR 821
37. Sahara India Real Estate Corp. v. SEBI, (2012) 10 SCC 603
38. R. Rajagopal v. State of T.N., AIR 1995 SC 264
39. Govt. of India v. The Cricket Association of Bengal, MANU/SC/0246/1995
40. Virendra v. State of Punjab, AIR 1957 SC 896
41. State of Bihar v. Shailabala Devi, AIR 1952 SC 329

STATUTES & LEGISLATIONS REFERRED

1. Constitution of India, 1950

• Article 14
• Article 19(1)(a), 19(2), 19(1)(g)
• Article 21
• Article 226
2. Bharatiya Nyaya Sanhita, 2023
• Sections 152, 196, 197(1)(d), 356
3. Bharatiya Nagarik Suraksha Sanhita, 2023
• Section 35
4. Indian Penal Code, 1860 (now replaced by BNS)
5. CrPC, 1973 (now replaced by BNSS)

BOOKS & ARTICLES REFERRED

1. H.M. Seervai, Constitutional Law of India, Vol. 1–3, 4th ed. (Universal Law Publishing
Co., 2008).
2. D.D. Basu, Commentary on the Constitution of India, 9th ed. (LexisNexis Butterworths
Wadhwa, 2012).
3. Gautam Bhatia, Offend, Shock, or Disturb: Free Speech Under the Indian Constitution
(Oxford University Press, 2016).

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4. Rajeev Dhavan, Only the Good News: On the Law of the Press in India (Manohar
Publishers, 1987).
5. Aparna Chandra, Sital Kalantry & William H.J. Hubbard, Demystifying Criminal
Justice in India: A Legal & Empirical Analysis (Cambridge University Press, 2022).
6. M.P. Jain, Indian Constitutional Law, 8th ed. (LexisNexis, 2018).
7. Justice A.P. Shah Committee Report, Report of the Group of Experts on Privacy (2012).
[https://www.meity.gov.in/writereaddata/files/Report%20on%20privacy.pdf]
8. Law Commission of India, 177th Report on Law Relating to Arrest (2001).
[http://lawcommissionofindia.nic.in/reports/177rptp2.pdf]
9. UN Committee Against Torture, General Comment No. 2: Implementation of Article 2 by
States Parties, U.N. Doc. CAT/C/GC/2 (2008).
10. United Nations, Basic Principles on the Role of Lawyers (1990), adopted by the Eighth
UN Congress.

OTHER SOURCES

1. United Nations Convention Against Torture, 1984

2. International Covenant on Civil and Political Rights (ICCPR), 1966
3. World Press Freedom Index, 2023

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STATEMENT OF JURISDICTION

THE PETITIONER HAS APPROACHED THE HON’BLE HIGH COURT OF GURJARI IN

ITS INHERENT JURISDICTION TO TRY, ENTERTAIN AND DISPOSE OFF THE
PRESENT CASE BY VIRTUE OF ARTICLE 226 OF THE CONSTITUTION OF INDIA,
1950, ISSUING WRITS TO ENFORCE FUNDAMENTAL RIGHTS.

ARTICLE 226
Power of High Courts to issue certain writs
(1) Notwithstanding anything in article 32, every High Court shall have power, throughout the
territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose.

(2) The power conferred by………………………………………………………stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme Court by clause (2) of article 32.

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STATEMENT OF FACTS

BACKGROUND

• Kabir Arya, a 26-year-old investigative journalist, uncovered a large-scale land scam

involving senior government officials in the State of Gurjari.

• On 10th January 2025, Kabir published a report detailing alleged irregularities in the
Smart Gurjari Infrastructure Project.

CRIMINAL CHARGES

• Kabir was arrested under several provisions of the Bharatiya Nyaya Sanhita (BNS), 2023:

o Section 196; Section 152; Section 197(1)(d); Section 356.

• Authorities claimed his report was factually misleading and provoked unrest.

CUSTODY AND BAIL

• Bail was denied by the trial court citing threats to public order and national security.

• While in custody, Kabir was allegedly subjected to custodial torture.

LEGAL PROCEEDINGS

• A writ petition was filed in the Gurjari High Court under Article 226, seeking:

o Declaration of unconstitutionality of Sections 196, 152, 197(1)(d), and 356 of

BNS as violative of Articles 19(1)(a) and 21.

o Quashing of the FIR, citing political vendetta and violation of press freedom.

o Compensation and an independent inquiry for custodial torture.

STATE’S DEFENCE

• The State argued:

o Kabir’s report was baseless, hindered governance, and misled the public.

o Emphasized national security and stability.

o Denied custodial abuse, asserting lawful detention procedures.

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STATEMENT OF ISSUES

ISSUE I

WHETHER SECTIONS 196, 152, 197(1)(D) AND 356 OF BNS, 2023, VIOLATE THE
FUNDAMENTAL RIGHTS GUARANTEED UNDER ARTICLES 19 AND 21 OF THE
CONSTITUTION?

ISSUE II

WHETHER KABIR ARYA’S ARREST AND DENIAL OF BAIL WERE JUSTIFIED

UNDER THE NEW CRIMINAL LAW FRAMEWORK?

ISSUE III

WHETHER HIS DETENTION AMOUNTS TO CUSTODIAL TORTURE,

VIOLATING HIS RIGHTS UNDER ARTICLE 21 OF THE CONSTITUTION AND
THE UN CONVENTION AGAINST TORTURE?

ISSUE IV

WHAT IS THE SCOPE OF FREEDOM OF SPEECH AND EXPRESSION FOR

JOURNALISTS UNDER BNS, 2023?

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SUMMARY OF ARGUMENTS

ISSUE I: WHETHER SECTIONS 196, 152, 197(1)(D) AND 356 OF BNS, 2023,
VIOLATE THE FUNDAMENTAL RIGHTS GUARANTEED UNDER ARTICLES 19
AND 21 OF THE CONSTITUTION?

It is most respectfully submitted that the impugned provisions under the Bharatiya Nyaya
Sanhita, 2023, unjustifiably infringe upon the fundamental rights enshrined under Articles
19(1)(a) and 21 of the Constitution. These sections suffer from constitutional infirmities such
as overbreadth, vagueness, and disproportionate criminalisation of speech and expression, thus
chilling legitimate dissent and investigative journalism. The provisions fail to conform to the
standards of necessity and proportionality as expounded in Maneka Gandhi and Shreya
Singhal. Furthermore, they do not meet the threshold laid down in Kedar Nath Singh for
criminal liability concerning public disorder. As such, the sections violate not only the right to
free expression but also the right to dignity and liberty protected under Article 21.

ISSUE II: WHETHER KABIR ARYA’S ARREST AND DENIAL OF BAIL WERE
JUSTIFIED UNDER THE NEW CRIMINAL LAW FRAMEWORK?

It is submitted that the arrest of the Petitioner, Mr. Kabir Arya, constitutes a gross violation of
his fundamental right to personal liberty under Article 21. The arrest was effectuated without
any compelling necessity and in contravention of procedural safeguards established in Arnesh
Kumar and Joginder Kumar. Moreover, the denial of bail fails to satisfy the triple test
articulated in Satender Kumar Antil, rendering the continued incarceration arbitrary. The
Petitioner has no prior antecedents, poses no flight risk, and has cooperated fully with
authorities. The invocation of harsh penal provisions against a journalist immediately following
a report critical of state conduct points to a mala fide exercise of State power. The arrest and
bail refusal, therefore, amount to pretrial punishment and weaponisation of criminal law to
silence dissent.

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ISSUE III: WHETHER HIS DETENTION AMOUNTS TO CUSTODIAL TORTURE,

VIOLATING HIS RIGHTS UNDER ARTICLE 21 OF THE CONSTITUTION AND
THE UN CONVENTION AGAINST TORTURE?

It is humbly submitted that the Petitioner was subjected to custodial torture in breach of the
right to life and dignity under Article 21. The treatment meted out to him contravenes the
safeguards articulated in D.K. Basu, Sunil Batra, and Sheela Barse, which recognise both
physical and psychological dimensions of torture. The inaction of the State in initiating an
independent investigation, despite serious allegations, violates the presumption of
accountability resting on the State once a person is in its custody. The jurisprudence laid down
in State of M.P. v. Shyamsunder Trivedi and international conventions like the UNCAT
underscore the absolute prohibition of torture, irrespective of public interest or national
security. The Petitioner’s detention stands in violation not only of municipal constitutional law
but also persuasive international human rights standards.

ISSUE IV: WHAT IS THE SCOPE OF FREEDOM OF SPEECH AND EXPRESSION

FOR JOURNALISTS UNDER BNS, 2023?

It is respectfully contended that freedom of the press, though not explicitly enumerated, is
inherently guaranteed under Article 19(1)(a), and has been reaffirmed in a long line of
precedents including Romesh Thapar, Sakal Papers, and Bennett Coleman. The impugned
provisions under BNS, 2023, impose vague and excessive restrictions which fail the test of
proximity and reasonableness as laid down in Rangarajan, Lohia, and R. Rajagopal. As a
journalist, the Petitioner was discharging a constitutionally protected function by exposing
matters of public interest. The invocation of criminal defamation and national security offences
to penalise such speech violates the threshold of incitement established in Shreya Singhal and
the test of direct nexus with public disorder. Hence, the actions of the State violate not only the
Petitioner’s individual rights but undermine the democratic role of the press.

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ARGUMENTS ADVANCED

ISSUE I: WHETHER SECTIONS 196, 152, 197(1)(D) AND 356 OF BNS, 2023,
VIOLATE THE FUNDAMENTAL RIGHTS GUARANTEED UNDER ARTICLES 19
AND 21 OF THE CONSTITUTION?

1.1. It is most humbly submitted that Sections 196, 152, 197(1)(d), and 356 of the Bharatiya
Nyaya Sanhita, 20231, impose impermissible restrictions on the right to freedom of speech and
expression, a fundamental right guaranteed under Article 19(1)(a)2 of the Constitution of India.

It cannot be over emphasized that when it comes to democracy, liberty of thought and
expression is a cardinal value that is of paramount significance under our constitutional
scheme.

While Article 19(2)3 permits reasonable restrictions in the interests of sovereignty,

integrity, security of the State, public order, decency, morality, and other specified
grounds, the impugned provisions go far beyond what is constitutionally permissible.
They criminalize a wide range of speech and expression, including criticism of the
government, dissemination of information, and commentary on public officials, thereby
chilling free debate and dissent.

In Kedar Nath Singh v. State of Bihar4 AIR 1962 SC 955, the Supreme Court
recognized that only those acts which threaten the continued existence or stability of
the State may be penalized, and that mere criticism of government action, however
strongly worded, is protected. The Court held:

“The provisions of the section read as a whole, along with the explanations, make
it reasonably clear that the section aims at rendering penal, only such activities
as would be intended, or have a tendency, to create disorder or disturbance, of
public peace by resort to violence. The explanations appended to the main body

1
§ 152, 196, 197(1)(d), and 356, Bharatiya Nyaya Sanhita, No. 45 of 2023 (India).
2
India Const. art. 19(1)(a).
3
India Const. art. 19(2).
4
AIR 1962 SC 955

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of the section make it clear that the criticism of public measures or comment on
government action, however strongly worded, would be within reasonable limits
and would be consistent with the fundamental right of freedom of speech and
expression. It is only when the words, written or spoken, etc., which have the
pernicious tendency or intention of creating public disorder or disturbance of law
and order that the law steps in to prevent such activities in the interest of public
order.”

The impugned sections, by failing to clearly distinguish between incitement to violence

and mere criticism or dissent, violate the core of Article 19(1)(a).

1.2. Vagueness and the Chilling Effect on Free Speech

The impugned provisions suffer from overbreadth and vagueness, thereby failing the
test of reasonableness under Article 19(2). Terms such as “enmity,” “disharmony,”
“false information,” and “defamation against public servants” are not precisely defined
and can be interpreted subjectively, leading to arbitrary and discriminatory application.

● The Supreme Court in Shreya Singhal v. Union of India (2015)5 5 SCC 1 struck down
Section 66A of the IT Act on similar grounds, holding:

“Vague and overbroad laws are unconstitutional as they have a chilling effect on
free speech. Laws that create an environment where citizens self-censor out of
fear of prosecution are not reasonable restrictions but unconstitutional fetters on
freedom.”

● Similarly, in Kartar Singh v. State of Punjab (1994)6 3 SCC 569, the Court
emphasized that vague and undefined terms in penal statutes are unconstitutional as
they fail to provide fair notice to citizens.

The possibility of misuse is not merely hypothetical. In practice, these provisions have
been invoked to suppress dissent, target journalists, and silence critics of the
government, thus undermining democracy itself.

5
5 SCC 1
6
3 SCC 569

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1.3. The Necessity and Proportionality Test

1.3.1. The doctrine of proportionality requires that any restriction on a fundamental right
must be necessary, suitable, and the least restrictive means to achieve the intended
objective. The impugned provisions fail this test.

● Section 196 criminalizes the promotion of enmity between groups, but its scope is so
wide that it covers even legitimate discussion of historical facts or political opinions,
as seen in Babu Rao Patel v. State (Delhi Administration)7 AIR 1980 SC 763 and
G.V. Godse v. Union of India8, 1971 Cr LJ 324.
● Section 152 penalizes acts endangering national sovereignty, unity, and integrity, but,
as held in Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra (2010)9
5 SCC 246, terms like “insurgency” and “unity” are undefined and subject to misuse.
● Section 197(1)(d) and Section 356 criminalize the publication of false information and
defamation against public servants, but, as held in Sahib Singh Mehra v. State Of
Uttar Pradesh10, AIR 1965 SC 1451, the press must be allowed to report on public
officials, and reckless or overbroad penalization will stifle investigative journalism and
public accountability.

1.3.2. The Supreme Court in Subramanian Swamy v. Union of India11, AIR 2016 SC
2728 recognized the need to balance the right to reputation with free speech, but also
cautioned that criminal defamation must not be used to silence criticism or debate.

1.4. Violation of Article 21: Right to Life, Liberty, and Reputation

Article 2112 guarantees the right to life and personal liberty, which includes the right to
reputation. However, the impugned provisions, by criminalizing a wide range of speech
and expression, undermines the right to free speech.

● The right to receive and impart information is an essential facet of Article 21, as held
in Dr. D.C. Saxena v. Hon’ble the Chief Justice of India13, 1996 INSC 753.

7
AIR 1980 SC 763
8
1971 Cr LJ 324
9
5 SCC 246
10
AIR 1965 SC 1451
11
AIR 2016 SC 2728
12
India Const. art. 21.
13
1996 INSC 753

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● The right to reputation cannot be used as a shield to suppress legitimate criticism or

public interest reporting, as emphasized in M.R. Prabhakar v. Canara Bank, (2002)14
2 SCC 496.

1.5. Reasonable Restrictions and the Limits of State Power

● However, the mere possibility of public disorder cannot justify blanket restrictions. In
State of Uttar Pradesh v. Lalai Singh Yadav, (1977)15 1 SCC 88, the Court held that
only those publications likely to cause a breach of public order or communal
disharmony may be restricted.

In the present case there is no evidence indicating that the report published by the
petitioner has cause a breach of public order or communal disharmony and hence is not
liable to be prosecuted under these sections.

● Further, in Arup Bhuyan v. State of Assam (2011)16 3 SCC 377, the Court cautioned
against striking down laws solely based on the possibility of misuse. However, when a
law is so broad and vague that it is more likely to be misused than properly applied, it
must be struck down.

1.6. The Chilling Effect on Freedom of Press

The impugned provisions create a chilling effect on the freedom of the press and the
right of citizens to participate in democracy. The press serves as a watchdog of
democracy, and any law that unduly restricts its freedom undermines the very
foundation of a free society.

In Amish Devgan v. Union of India, (2021)17 1 SCC 1, the Court recognized that hate
speech may be prosecuted if it causes public disorder or promotes enmity, but also
warned that overbroad laws can be weaponized to suppress dissent.

14
2 SCC 496
15
1 SCC 88
16
3 SCC 377
17
1 SCC 1

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The Supreme Court in Sakal Papers (Pvt) Ltd. v. Union of India18, AIR 1962 SC 305
held that the right to publish and circulate information is an essential part of freedom
of speech, and any restriction must be justified on the strictest constitutional grounds.

1.7. In light of the above submissions, it is respectfully prayed that this Hon’ble Court declare
Sections 196, 152, 197(1)(d), and 356 of the Bharatiya Nyaya Sanhita, 2023, as
unconstitutional and violative of Articles 19(1)(a) and 21 of the Constitution of India. The
impugned provisions are overbroad, vague, disproportionate, and have a chilling effect on free
speech, press freedom, and democratic participation. The petitioner submits that only narrowly
tailored, clearly defined, and proportionate restrictions can be sustained under the Constitution,
and the challenged sections do not meet this standard.

18
AIR 1962 SC 305

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ISSUE II: WHETHER KABIR ARYA’S ARREST AND DENIAL OF BAIL WERE
JUSTIFIED UNDER THE NEW CRIMINAL LAW FRAMEWORK?

2.1.Introduction

This issue raises critical questions about the balance between State power and individual liberty
in the context of a democracy. The Petitioner, Mr. Kabir Arya, is a journalist who was arrested
immediately after publishing a report exposing alleged illegalities in the Smart Gurjari
Infrastructure Project. The arrest was made under Sections 152, 196, 197(1)(d), and 356 of
the Bharatiya Nyaya Sanhita (BNS), 202319, and his subsequent bail was denied on the
stated grounds of public order and national security.

The Petitioner respectfully submits that the arrest and bail denial are unconstitutional,
arbitrary, and amount to a misuse of the criminal justice process. The action against Mr. Arya
represents a violation of fundamental rights under Articles 19(1)(a), 19(1)(g), 21, and 1420
of the Constitution of India, and reflects a disturbing attempt to stifle investigative journalism
and silence dissent.

2.2. Arrest violates Procedural Due Process under Article 21

2.2.1. Arrest Without Necessity Violates the Right to Personal Liberty
The arrest of Mr. Arya directly violates Article 21 of the Constitution, which
guarantees that no person shall be deprived of personal liberty except according to
a fair, just, and reasonable procedure (Maneka Gandhi v. Union of India21, (1978) 1
SCC 248). There is no allegation in the record of:
 Mr. Arya evading summons;
 Non-cooperation with any inquiry;
 Any threat of violence.
The necessity of arrest — especially under a new statutory regime where Section
35 of BNSS22 requires evaluation of arrest necessity — was not fulfilled.
2.2.2. No Prior Notice or Opportunity Was Given as Required Under Law

19
§ 152, 196, 197(1)(d), and 356, Bharatiya Nyaya Sanhita, No. 45 of 2023 (India).
20
India Const. art. 19(1)(a), 19(1)(g), 21, and 14.
21
Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248 (India).
22
§ 35, Bharatiya Nagarik Suraksha Sanhita, No. 45 of 2023 (India).

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In Arnesh Kumar v. State of Bihar23, (2014) 8 SCC 273, the Supreme Court
mandated that in cases where the alleged offences are punishable with
imprisonment up to seven years, a notice of appearance under Section 41A CrPC
(now mirrored by Section 35 BNSS) must precede arrest. Mr. Arya was arrested
immediately after the publication without any such notice, indicating procedural
impropriety.
2.2.3. Arrest Amounts to Pretrial Punishment and Chilling of Free Speech
The Hon’ble Supreme Court has repeatedly emphasized that arrest must not be
used as a tool of punishment (Joginder Kumar v. State of U.P.24, (1994) 4 SCC
260). The immediacy of the arrest after Mr. Arya’s report was released, and the
absence of imminent public disorder or call to violence, strongly suggests that the
arrest was made to deter legitimate journalistic investigation.
2.3. Denial of Bail Violative of Established Principles of Bail Jurisprudence
2.3.1. Bail Is the Rule, Jail the Exception
In Sanjay Chandra v. CBI25, (2012) 1 SCC 40, the Hon’ble Court held that bail
should not be denied merely on the severity of charges, particularly when the trial
is likely to be delayed and the accused has no prior criminal antecedents. Mr. Arya
satisfies all the conditions:
 No flight risk;
 No prior record;
 Willing to cooperate with the investigation.
2.3.2. Courts Must Apply the “Triple Test” Before Denying Bail
In Satender Kumar Antil v. CBI26, (2022) 10 SCC 51, the Supreme Court reiterated
that bail decisions must be guided by the Triple Test:
 Likelihood of fleeing from justice;
 Potential to tamper with evidence;
 Threat of influencing witnesses.
There is no material on record to suggest that Mr. Arya satisfies any of these three
criteria.
2.3.3. Judicial Discretion Must Not Be Exercised Arbitrarily

23
Arnesh Kumar v. State of Bihar, (2014) 8 S.C.C. 273 (India).
24
Joginder Kumar v. State of U.P., (1994) 4 S.C.C. 260 (India).
25
Sanjay Chandra v. CBI, (2012) 1 S.C.C. 40 (India).
26
Satender Kumar Antil v. CBI, (2022) 10 S.C.C. 51 (India).

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While judicial discretion is respected, it must be reasoned and proportionate. In

Gudikanti Narasimhulu v. Public Prosecutor27, (1978) 1 SCC 240, the Court
emphasized that liberty is too precious to be denied casually, and reasons must
be clearly articulated. The bail order in this case does not demonstrate the
application of this judicial discipline.
2.4. Invalid Grounds for Arrest
2.4.1. Sections Invoked Are Vague, Overbroad, and Inapplicable to Legitimate
Journalism
 Section 152 BNS criminalizes acts that endanger the sovereignty and unity of
India. Mr. Arya’s report merely exposed a land scam and made no statements
threatening national security.
 Section 196 BNS penalizes promoting enmity between groups. There is no
mention in the facts of communal or group-based targeting.
 Section 197(1)(d) addresses false or misleading publications — which
presumes falsity. Mr. Arya’s intention was to raise genuine questions of public
interest. The truth or falsity of his statements cannot be pre-judged.
 Section 356 (defamation of public servants) is a non-cognizable offence and
cannot be a standalone basis for arrest (Subramanian Swamy v. Union of India28,
(2016) 7 SCC 221).
2.4.2. Criminal Provisions Must Be Interpreted in Light of Fundamental Rights
In Shreya Singhal v. Union of India29, (2015) 5 SCC 1, the Court struck down vague
speech-based provisions, holding that criminal laws must clearly define what
constitutes prohibited speech, and must not infringe on protected expression. The
use of broad and undefined terms in Sections 152 and 196 BNS raises constitutional
concerns if applied to journalistic speech.
2.5. The Right to Journalistic Freedom
2.5.1 Article 19(1)(a) Protects Investigative Journalism
The Supreme Court in Romesh Thappar v. State of Madras30, AIR 1950 SC 124,
held that freedom of the press is part of freedom of speech and expression. Mr.

27
Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 S.C.C. 240 (India).
28
Subramanian Swamy v. Union of India, (2016) 7 S.C.C. 221 (India).
29
Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1 (India).
30
Romesh Thappar v. State of Madras, A.I.R. 1950 S.C. 124 (India).

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Arya’s actions fall within the heart of this right — exposing potential misuse of
public funds and illegal land acquisitions.
2.5.2. Mere Public Reaction to a Report Cannot Justify Penal Action
In Vinod Dua v. Union of India31, 2021 SCC OnLine SC 414, the Court quashed
FIRs against a journalist and held that criticism of government functioning or
investigative journalism does not constitute sedition or enmity unless it incites
violence or lawless action — which is absent in this case.
2.5.3. Arrests of Journalists Have a Chilling Effect on Free Speech
The Hon’ble Court in Siddique Kappan v. State of U.P.32, Cr. A. No. 1375 of 2022
(SC), held that prolonged detention of journalists for coverage of sensitive matters
violates the fundamental principles of liberty, particularly in the absence of
material justifying their continued incarceration.
2.6. Conclusion

The Petitioner respectfully submits that the arrest and denial of bail were:

• Made without legal necessity;

• Executed in violation of due process;

• Based on the misuse of vague statutory provisions; and

• Result in a disproportionate denial of liberty to a citizen engaged in constitutionally

protected expression.

31
Vinod Dua v. Union of India, 2021 S.C.C. OnLine S.C. 414 (India).
32
Siddique Kappan v. State of U.P., Crim. App. No. 1375 of 2022, (Sept. 9, 2022) (S.C. India).

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ISSUE III: WHETHER HIS DETENTION AMOUNTS TO CUSTODIAL TORTURE,

VIOLATING HIS RIGHTS UNDER ARTICLE 21 OF THE CONSTITUTION AND
THE UN CONVENTION AGAINST TORTURE?

3.1. It is most humbly submitted that this issue at hand of is a case of custodial torture as evident
from the facts and the aim is not to solely defend the victim, but to defend the soul of our
Constitution. For what the subject of dispute is not simply the mistreatment of a man, but the
misuse of power, not just the violation of a citizen’s rights, but the betrayal of constitutional
conscience.

3.2. The right to life under Article 21 is not a mere animal existence but includes the right to
live with human dignity, free from cruel and degrading treatment33. Also, the Supreme Court
in Maneka Gandhi v. Union of India34 held that any "procedure" depriving liberty must be
just, fair, and reasonable.

3.3. In the instant case, the alleged torture inflicted on Kabir Arya during custody,
especially given the political context of his arrest, demonstrates a deprivation of liberty
not based on fair or just procedure, but one carried out with malice and abuse of authority,
thereby violating Article 21.

3.3.1. The most important question to be asked and sought answer of is, Is it life at all,
if lived in fear of the very State sworn to protect it?

If the Constitution is the conscience of our nation, then custodial violence is its most
shameful scar.

3.3.2. That torture in custody is the ultimate anathema to a civilised legal order. The
police station is not a laboratory of pain, it is not a place where the majesty of the law
is upheld through the tools of tyranny. This Hon’ble Court, in D.K. Basu v. State of
West Bengal35, called custodial torture a "crime against humanity." And so it is.

33
Francis Coralie Mullin v. Union Territory of Delhi, AIR 1981 SC 746
34
AIR 1978 SC 597
35
AIR 1997 SC 610

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3.4. It is further submitted that torture encompasses both physical and psychological
dimensions, as in Sunil Batra v. Delhi Administration36, the Supreme Court recognized that
torture extends beyond physical violence:

"The word 'torture' has to be understood in a broad sense to include not only physical
torture but also mental torture and harassment."

3.4.1. In the present case, as Kabir investigated high level corruption, he was
vulnerable to psychological pressure, and his sudden arrest under multiple
serious sections of the BNS aimed at destroying his journalistic career, and such
extended custody without any justification caused serious psychological torture
to Kabir.

→ National Interest is not an excuse to Liberty

3.5. It is submitted that no State can invoke national interest to extinguish individual dignity.
The State may cloak its actions in the garb of national security, but there is no national interest
that justifies torture. The nation is not the government. The nation is its people, and the
Constitution was not made to empower rulers, it was drafted to protect the citizens from them.

3.5.1. As Justice H.R. Khanna once warned, “The greatest danger to liberty lies
in insidious encroachments by men of zeal, well-meaning but without
understanding.”

3.6. Kabir’s arrest followed the publication of a report exposing alleged corruption by high-
ranking officials. The immediate invocation of stringent BNS provisions suggests mala fide
intent to silence dissent. In Joginder Kumar v. State of U.P.37, the Court emphasized that
arrest should not be used as a tool of harassment or intimidation.

The absence of urgency, threat, or active provocation in Kabir's actions reinforces that custody
was not warranted, and its abuse even more egregious.

→ Burden of proof

36
(1978) 4 SCC 494
37
(1994) 4 SCC 260

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3.7. Further, where a man in State custody alleges torture, the burden shifts. And it being
obvious that who else but the custodians can inflict such suffering. In State of M.P. v.
Shyamsunder Trivedi38, this very Court held that when injuries occur in custody, the onus lies
squarely upon the State to explain them.

But here, silence reigns. No inquiry. No remorse. Just the impunity of power.

3.8. In D.K. Basu v. State of West Bengal39, the Supreme Court laid down binding procedural
safeguards to prevent custodial violence, recognizing it as a crime against humanity. The Court
unequivocally stated that:

“Torture of a human being by the police is not only a violation of human rights
but also an affront to human dignity and a crime in itself.”

3.8.1. Further in Kabir's case, despite the serious allegations, no independent

inquiry was initiated, indicating clear non-compliance with the D.K. Basu
guidelines.

3.9. In custodial torture cases, the burden of proof often shifts to the State once the person is
last seen in its custody.40 Here, Kabir’s allegations are not in vacuum, they are closely
connected to a pattern of suppression of dissent. The failure of the State to transparently
investigate or refute these claims with documentary or other evidence, strengthens the
presumption of custodial misconduct.

3.9.1. The Supreme Court in Sheela Barse v. State of Maharashtra41 established that
when injuries occur in police custody, the burden of proof shifts to the state to explain
how such injuries were sustained. The Court held:

"When a person is in the custody of the police and he sustains injuries, the
burden of proving that the injuries were not caused by the police lies on
the police."

38
1995 AIR SCW 2793
39
(1997) 1 SCC 416
40
State of M.P. v. Shyamsunder Trivedi, (1995) 4 SCC 262
41
1983 SCR (2) 337

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If this principle is equated and applied to Kabir's Case,

→ Kabir was healthy when taken into custody, no pre-existing injuries were
documented

→ Torture allegations emerged during custody period

→ State has provided no explanation for his condition or treatment in custody

→ Res ipsa loquitur - the facts speak for themselves

3.10. The State cannot merely assert "lawful procedures were followed" without documentary
evidence proving compliance with constitutional safeguards. Hence the burden to prove the
same, rests on the State.

→UN Convention Against Torture and the persuasive value of International law

3.11. It is contended that International Law is not a stranger to our Constitution, it is its ally.
Though India has not ratified the UN Convention Against Torture, it is a signatory to it. And
under Vishaka v. State of Rajasthan42, this Hon’ble Court has held that international norms
can be read into Article 21, provided they do not contradict domestic law.

3.11.1. The Convention defines torture in language our conscience can understand, the
intentional infliction of severe pain or suffering by public officials. And this is precisely
what has been alleged, with credible detail and context.

UN Convention Against Torture, defines torture as:

Article 1: Torture definition covering "any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person... by or at the
instigation of or with the consent or acquiescence of a public official"43

42
AIR 1997 SC 3011
43
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1, Dec. 10,
1984, 1465 U.N.T.S. 85.

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Article 2: Absolute prohibition - "No exceptional circumstances whatsoever, whether

a state of war or a threat of war, internal political instability or any other public
emergency, may be invoked as a justification of torture"44

3.11.2. A mere perusal of these definitions assert what custodial torture is and why this
evil cannot be tolerated. Hence the lack of ratification cannot be a ground for impunity.

3.11.3. Further, if other laws and treaties in the realm of International Law are explored,
for instance, The International Covenant on Civil and Political Rights, its Article
745 states: "No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment."

3.11.4. Hence, even at the international stage, any form and substance of torture, or
specifically Custodial torture, is not accepted and refuted upon and these do hold a
persuasive value though not always binding.

3.12. In conclusion, it is submitted that, if this is not torture, then what is? If dragging a man,
chaining him, humiliating him, bruising his flesh and soul in the name of law is not torture,
then what is? If the very institutions of justice become complicit in such silence, then are we
not compounding the crime? Who will police the police?

The Constitution is not just a book. It is a compact of trust. And torture ruptures that trust. And
that the strength of a democracy is not measured by the way it treats the powerful, but by how
it protects the powerless.

44
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 2, Dec. 10,
1984, 1465 U.N.T.S. 85.
45
International Covenant on Civil and Political Rights, art. 7, Dec. 16, 1966, 999 U.N.T.S. 171.

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ISSUE IV: WHAT IS THE SCOPE OF FREEDOM OF SPEECH AND EXPRESSION

FOR JOURNALISTS UNDER BNS, 2023?

4.1. It is most humbly submitted that Article 19(1)(a) of the Constitution of India guarantees to
every citizen, including journalists, the right to freedom of speech and expression. This right
encompasses the freedom to express opinions, to receive and impart information, to criticize
the government, and to engage in public discourse without fear of unwarranted state
interference. The freedom of the press, implicit in Article 19(1)(a) of the Constitution, is
essential for political liberty and the proper functioning of democracy.

4.1.1. The fundamental right of the freedom of the press implicit in the right to freedom
of speech and expression, is essential for political liberty and proper functioning of
democracy. Dr. Ambedkar quoted American Press Commission in this regard,

“Freedom of the press is essential to political liberty. When men cannot freely
convey their thoughts to one another, no freedom is secured, where freedom of
expression exists, the beginning of a free society and means for every retention
of liberty are already present. Free-expression is therefore, unique among
liberties”. Brij Bhusan v. State of Delhi46, AIR 1950 SC 129.

4.1.2. As the World Press Freedom Index 2023 indicates, India already faces
significant challenges regarding legal interference, censorship, and media
independence, and thence it is imperative that the court limits the restrictions
imposed on the freedom of press.

4.2. Scope of Free Press

The freedom of the press is not confined merely to newspapers and periodicals. It
extends to pamphlets, circulars, and every form of publication that serves as a vehicle
for information and opinion. In Tata Press Ltd. Vs Mahanagar Telephone Nigam

46
AIR 1950 SC 129

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Ltd.47 AIR 1995 SC 2438, the Supreme Court affirmed that commercial speech and
expression are integral to Article 19(1)(a).

The Indian Press Commission underscored the importance of the press as "the vehicle
through which opinion can become articulate" in a democracy. Article 19(1)(a) may not
expressly mention the liberty of the press, but it is unequivocally included in the
freedom of speech and expression.

4.3. Judicial Protection to Freedom of Press

● In Indian Express Newspapers v. Union of India48, 1 SCC 641, the Supreme Court
stated:

“The expression "freedom of the press" has not been used in Article 19 but it is
comprehended within Article 19 (1)(a). The expression means freedom from
interference from authority which would have the effect of interference with the
content and circulation of newspapers. There cannot be any interference with that
freedom in the name of public interest... It is the primary duty of the courts to
uphold the freedom of the press and invalidate all laws or administrative actions
which interfere with it contrary to the constitutional mandate.”

● In the case of Romesh Thapar v. the State of Madras49 MANU/SC/0006/1950 the

court held that "freedom of speech and expression includes freedom of propagation of
ideas, ensured by freedom of circulation and the basis of all the democratic
organizations is the freedom of speech and expression, which is extremely important
for its proper functioning." Also, Sakal Papers (P) Ltd. & Ors. v. Union of India50
AIR 1962 SC 305 held that freedom of speech and expression of opinion is of
paramount importance under a democratic constitution, which envisions changes in the
composition of legislatures and governments and must be preserved. Bennett Coleman
& Co. & Ors. v. Union of India51 AIR 1973 SC 106 held that "the freedom of speech
and of the press is the Ark of the Covenant of Democracy because public criticism is

47
AIR 1995 SC 2438
48
1 SCC 641
49
MANU/SC/0006/1950
50
AIR 1962 SC 305
51
AIR 1973 SC 106

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essential to the working of its institutions." Lastly, S. Khushboo v. Kanniamal &

Anr.52 (2010) 5 SCC 600 held that the importance of freedom of speech and expression
though not absolute was necessary as we need to tolerate unpopular views, where it
requires the free flow of opinions and ideas essential to sustain the collective life of the
citizenry.

● In the case of Vinod Dua vs. Union of India & Ors.53, MANU/SC/0363/2021 the
petitioner was prosecuted with sedition in 2021 due to a video he had uploaded on
YouTube criticizing the government policies. He disputed the FIR, claiming that he was
just exercising his fundamental right of speech and expression under Article 19(1)(a)
and that any act of sedition had not been proven. In June 2021, a two-judge panel of the
Supreme Court annulled the FIR citing the decision in Indian Express Newspapers
(Bombay) Private Ltd v Union of India54, MANU/SC/0406/1984 declared that press
freedom was at the "heart of social and political interaction."

It is therefore argued that these accusations against the petitioner, by criminalizing

vaguely defined categories of speech, directly interfere with the content and circulation
of news, thereby undermining the essence of press freedom.

4.4. Balancing Freedom of Expression

In Shreya Singhal vs U.O.I55 5 SCC 1, the Supreme Court articulated three

fundamental concepts crucial to understanding the reach of freedom of speech:
discussion, advocacy, and incitement:

“Mere discussion or even advocacy of a particular cause howsoever unpopular is

at the heart of Article 19(1)(a). It is only when such discussion or advocacy
reaches the level of incitement that Article 19(2) kicks in.”

4.5. Proximate Relationship Test

52
(2010) 5 SCC 600
53
MANU/SC/0363/2021
54
MANU/SC/0406/1984
55
5 SCC 1

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4.5.1. Any restriction on freedom of speech must have a proximate and direct nexus with
public order and should not be remote, conjectural, or far-fetched.

● In The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia56,

[1960] 2 S.C.R. 821, the Court held:

“The restriction made "in the interests of public order" must also have reasonable
relation to the object to be achieved, i.e., the public order. If the restriction has no
proximate relationship to the achievement of public order, it cannot be said that
the restriction is a reasonable restriction within the meaning of the said clause."

● In Chintaman Rao v. The State of Madhya Pradesh57, [1950] S.C.R. 759, the
Supreme Court held:

The phrase reasonable restriction “connotes that the limitation imposed on a

person in enjoyment of the right should not be arbitrary or of an excessive nature,
beyond what is required in the interests of the public.”

It is contended that the actions of the state against the petitioner are
disproportionate, excessive and impose an arbitrary control over freedom of
speech that falls outside the purview of reasonable restrictions.

● In S. Rangarajan v. P. Jagjivan & Ors.58, (1989) 2 SCC 574, the Court held that
freedom of expression cannot be suppressed unless the situations created by allowing
the freedom are pressing and the community interest is endangered, emphasizing that
the anticipated danger should not be remote or conjectural.

4.6. The Test of Proximity and State's Duty

● State of Bihar v. Shailabala Devi59, AIR 1952 SC 329 in order to be banned must have
a tendency to excite persons to acts of violence. The test laid down in the said decision

56
[1960] 2 S.C.R. 821
57
[1950] S.C.R. 759
58
(1989) 2 SCC 574
59
AIR 1952 SC 329

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was that the article should be considered as a whole in a fair free liberal spirit and then
it must be decided what effect it would have on the mind of a reasonable reader.
● Court in Rangarajan v. P. Jagjivan Ram60 (1989) 2 SCC 574 held that restrictions on
free speech must be narrowly tailored and directly related to the harm sought to be
prevented.
It was established in Sahara India Real Estate Corporation Ltd. vs. SEBI (2012)61
(2012) 10 SCC 603 that the press has the right to report on matters of public interest,
even if it may harm individuals or corporations reputation. It was stated in R.
Rajagopal v. State of T.N.62 AIR 1995 SC 264 that the right of privacy of public
servants stands on different footing. In a free democratic society public officials must
always be open to criticism.
● Kedar Nath Singh v. State of Bihar63, AIR 1962 SC 955 Section 124A of the Indian
Penal Code was upheld by construing it narrowly and stating that the offence would
only be complete if the words complained of have a tendency of creating public disorder
by violence. Govt. of India v. The Cricket Association of Bengal64,
MANU/SC/0246/1995 the court held that no restriction could be placed on the right to
freedom of speech and expression on grounds other than those specified under Article
19(2) of the Constitution.
● The question in every case is whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring about
the substantive evils that the state has a right to prevent. It is a question of proximity
and degree.
● As a journalist, the petitioner was entitled to and did nothing more than critical analysis
of the functioning of the Government. The validity of any such restriction has to be
tested by the touchstone of reasonableness i.e. whether the particular activity which is
sought to be prevented has got real, proximate and reasonable connection with the
maintenance of public order, and also whether the degree of restriction imposed is
excessive.

60
(1989) 2 SCC 574
61
(2012) 10 SCC 603
62
AIR 1995 SC 264
63
AIR 1962 SC 955
64
MANU/SC/0246/1995

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● Furthermore, in Virendra v. State of Punjab65 AIR 1957 SC 896 the court reiterated
that preventing a newspaper from publishing any article of current importance is an
encroachment on the freedom of speech and expression.

4.7. In light of the above, it is respectfully submitted that the scope of freedom of speech and
expression for journalists under the BNS, 2023, is severely restricted by the impugned
provisions. These provisions are vague, overbroad, and disproportionate, and have a chilling
effect on legitimate journalism. They undermine the constitutional role of the press and threaten
the foundations of democracy.

It is prayed that this Hon’ble Court may declare the impugned provisions unconstitutional and
affirm the fundamental right of journalists to freedom of speech and expression, subject only
to narrowly tailored and clearly defined restrictions.

65
AIR 1957 SC 896

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PRAYER

WHEREFORE, in light of the issues raised, arguments advanced and authorities cited it is most
humbly and respectfully requested that this Hon’ble Court to find, adjudge &;

1. DECLARE that the sections 196, 152, 197(1)(d) and 356 of the BNS, 2023 are
violative of the Fundamental Rights of Mr. Arya;
2. REPUDIATE the arrest and denial of bail of Mr. Arya;
3. FIND that Mr. Arya's detention amounts to custodial torture in violation of Article
21 and human rights;
4. DETERMINE that legitimate journalistic expression and criticism of government
policies are protected speech not covered by the impugned criminal provisions;
5. DIRECT immediate release of the Petitioner and award adequate compensation;
AND/OR
Pass any order that the court may deem fit in the interest of good conscience, justice
and equity.

Most respectfully submitted on behalf of the Petitioner

AGENT(s) FOR THE PETITIONER

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