Itm Moot Court (Respondent) (1)

ITM MOOT COURT COMPETITION, 2017

SCHOOL OF LAW, ITM UNIVERSITY MOOT COURT COMPETITION,2017

BEFORE THE HON’BLE SUPREME COURT OF INDIA

SUDARSHAN VENTURES AND OTHERS………………….PETITIONER VERSUS UNION OF INDIA AND OTHERS………………………RESPONDENT

WRIT BEFORE THE SUPREME COURT OF INDIA UNDER ARTICLES 32 AND 139A OF THE CONSTITUTION

TABLE OF CONTENTS Memorial on behalf of respondent (1)

ITM MOOT COURT COMPETITION, 2017 ABBREVIATIONS………………………………………………3 INDEX OF AUTHORITIES………………………………….....4-5 STATEMENT OF JURISDICTION………………………........6 STATEMENT OF FACTS….………………………………........7-9 STATEMENT OF ISSUES…………………………….................10 SUMMARY OF PLEADINGS……………….……………...........11 ARGUMENT ADVANCED…………………………………….....12-25 PRAYER……………...……..…………............................................26

Memorial on behalf of respondent (2)

ITM MOOT COURT COMPETITION, 2017 SC

Supreme Court

HC

High Court

SCC

Supreme Court Cases

SCR

Supreme Court Reports

UOI

Union of India

AIR

All India Reporter

I.T

Information Technology

Hon’ble

Honourable

Co.

Company

Ltd

Limited

Edn

Edition

&

And

Pg

Page

U.S

United States

i.e

That is

v.

Versus

Anr

Another

Ors

Others

F

Fact

Vol

Volume LIST OF ABBREVIATIONS INDEX OF AUTHORITIES

STATUES: Memorial on behalf of respondent (3)

ITM MOOT COURT COMPETITION, 2017 Indian Constituion Indian Penal Code, 1860 Code of Criminal Procedure, 1973 Information Technology(amendment) Act,2008 BOOKS: Indian Constitutional Law (M.P Jain) Textbook on Indian Penal Code (K.D Gaur) Textbook on Criminal Procedure (R.V Kelkar’s) CyberCrimes (Talat Fatima) WEBSITES: www.scconline.in www.indiankanoon.com www.legalservice.in CASE LAWS: Regina v. Liverpool Corporation Raj Kapoor and others v. State and others Reno v. American Civil Liberties Union Rajasthan Pradesh V.S. Sardarshahar and Anr. V. Union of India (UOI) and Ors R v. Stanley Miller v. California Ranjit D Udeshi v. State of Maharshtra Uttam Singh v. State Memorial on behalf of respondent (4)

ITM MOOT COURT COMPETITION, 2017 Dunlop v. U.S Maneka Gandhi v. Union of India Francis Coralie Mullin v. Union of Territory of Delhi Chandra Raja Kumari v. Police Commissioner,Hyderabad State of Haryana v. Ch. BhajanLal Astt Collector of Central Excise v. Wilfred Sabastian State of Bombay v. KathiKaluOghad Sharda v. Dharmpalit District Registrar & Collector v. Canara Bank State of Bombay v. Kathi Kalu Oghad


ITM MOOT COURT COMPETITION, 2017 STATEMENT OF JURISDICTION In the matter of, SUDARSHAN VENTURES AND OTHERS V. UNION OF INDIA ANDOTHERS The respondent hereby submits this Memorandum before the Hon’ble Supreme Court of India, invoking the writ jurisdiction under Article 139A of the Constitution.


ITM MOOT COURT COMPETITION, 2017 STATEMENT OF FACTS F1.Divyam, a law student and Shailesh, a student of digital animation, designed aComic strip named “Shainy’s Adventu Adershan’s Meaty Meanderings” which described the lifeand escapades of an adventurous and licentious thirty year old housewife. F2.The comic strip was quite sexually overt both textually and graphically.. Soon after they both graduated and started their careers. F3.They registered a web site “shainy.com” through Google in US and took out a trademark for it both in the US and in India. They had tie-ups with Estore and Ebay to meet demands. F4.As they found it difficult to generate stories each week they asked readers to contribute as the comic strip became quite popular Shailesh and Divyam decided to set up a company. F5.They became promoters and directors of a new private company, Sudarshan Ventures Pvt. Ltd contributing equally to the initial capital of the company. F6.Within few years Sudarshan earned a lot and Shainy’s image was an enduring one and a trendsetter and was referred as ‘”Dashing Doll’’ by western media. F7. Sudarshan Ventures even entered into a contract with Patel and Grover to endorse a brand of dishwashing and other products. F8.Tradition savers, a front wing association began protests and claimed that some mothers of teenagers had requested them to help as their children were being morally depraved..Hence tradition savers held protest outside the offices of Sudarshan Ventures.Tradition savers members registered complaints in more than 38 Police Talukas in Karnataka. F9.In many cases, the Magistrates ordered personal appearance of the accused before granting bail .There were also complaints by a lawyers association in Tamil Nadu and some other rightwing organizations in 11 districts in Gujarat and 3 other districts in Madhya Pradesh


ITM MOOT COURT COMPETITION, 2017 F10.Tradition savers began filing complaints indiscriminatingly against internet service providers, companies that gave server space to Sudarshan Ventures, Cyber Café Owners on whose caches Sudarshan venture’s data was found, F11. Estore and Ebay claiming that these were intermediaries who were also liable for the offences under Information Technology Act, the Indecent representation of women (prohibition) Act and Indian Penal Code. Reacting to all this, the Central Government issued an order banning the website. F12.The Superintendent of Police, Bangaluru (South) entered the offices of Sudarshan Ventures and Seized all the computer hard disks and story board clippings . A letter from an angry Indian mother reproaching them for hosting such depraved and salacious content was also found in their office. F13.In February 2012, the company and its directors were charged under Sections 67A of the Information Technology Act, 2000

(as amended) r/w Sections 3 and 4 of the Indecent

Representation of women (Prohibition) Act, 1986 and relevant sections of IPC, 1860. F14.Forwarded letter of angry Indian mother was annexed to the charge sheet along with that the authority also annexed some of the letter of Divyam’s ex-girlfriend where she thanked for immortalizing her through character of Shainy. F15.Shailesh and Divyam applied to the Karnataka, Tamil Nadu, Gujarat and Madhya Pradesh High Courts for

quashing

of

various complaints under

Section

482 of the Code of

criminal procedure 1973.. F16.Both Divyam and Shailesh simultaneously filed a Writ Petition in the High Court of Karnataka, challenging the order blocking the website stating that the case has not been made out for the same under Section 69 A of the Information Technology Act. The High Court allowed the Writ Petition but stayed operation of the order for three (3) weeks on the statement of the Solicitor General of India that the Union would file an appeal before the Supreme Court Collective We Not Liable? (CWNL) filed a writ petition challenging the penalties imposed on intermediaries under the Information Technology Act. Memorial on behalf of respondent (8)

ITM MOOT COURT COMPETITION, 2017 F17.Divyam and Shailesh moved to the Supreme Court under Article 139A. CWNL also filedthe transfer petition. The judges also observed that the issues in the Writ Petition before the Karnataka High Court and the Article 32 involved questions of constitutional importance and should be heard by a Constitution bench headed by the Chief Justice.


ITM MOOT COURT COMPETITION, 2017 STATEMENT OF ISSUES A) Whether the writ petition is maintainable under article 32 of Indian Constitution? B) Whether the Section 67A, 69A and 69B of the Information Technology Act, 2000; and allied provisions in the Indecent Representation of Women (Prohibition) Act, 1986(section 3 and 4) constitutional? C) Whether the powers of search and seizure given section 29 and 80 of information technology Act, 2000 are constitutional? D) Whether there was any undue in fragment of the right to privacy by the search of private mails and documents not meant for public circulation? E) Is there any violation of Article 20(3) if any private unpublished information is used to convict the accused under relevant sections? F) Whether a case was made out for the blocking of the website under section 69A of the Information technology Act,2000?


ITM MOOT COURT COMPETITION, 2017 SUMMARY OF PLEADINGS A)Whether the writ petition is maintainable under article 32 of Indian Constitution? The petition is not maintainable under Article 32 of Indian constitution as, There is no violation of petitioner’s fundamental right. An enactment cannot be struck down on the plea that it is unreasonable or unnecessary. Petitioner cannot be heard to complain about discrimination suffered by others.An association cannot file a writ petition under Article 32. B) Whether the Section 67A, 69A and 69B of the Information Technology Act, 2000; and allied provisions in the Indecent Representation of Women (Prohibition) Act, 1986(section 3 and 4) constitutional? Sections 67A, 69A and 69B of the Information Technology (Amendment)Act 2008 and allied provisions in the Indecent Representation of Women(Prohibition) Act,1986 are Constitutional. . C) Whether the powers of search and seizure given section 29 and 80 of information technology Act, 2000 are constitutional? Sections 29 and 80 of Information Technology Act,2000 are Constitutional D) Whether there was any undue in fragment of the right to privacy by the search of private mails and documents not meant for public circulation? There is no infringement of right to privacy. E) Is there any violation of Article 20(3) if any private unpublished information is used to convict the accused under relevant sections? Article 20(3) has no applicability in this case. F) Whether a case was made out for the blocking of the website under section 69A of the Information technology Act,2000? Central Government can block the websites in cases of violation of public order under section 69A of information technology act,2000.


ITM MOOT COURT COMPETITION, 2017 ARGUMENTS ADVANCED A)Whether writ petition is maintainable under article 32 of Indian Constitution? NO, THE WRIT PETITION IS NOT MAINTAINABLE UNDER ARTICLE 32 OF INDIAN CONSTITUTION. The main object of Article 32 is the enforcement of the fundamental rights guaranteed by the Indian Constitution. Unless a fundamental right is violated a person cannot complain under this article. To make out a case under this Article the petitioner should not merely establish that the law complained of is beyond the competency of the particular legislature, as not being covered by any of the items in the legislative lists, but also that it invades the fundamental rights guaranteed by the Constitution of which he can seek enforcement by an appropriate writ. It is said that an enactment cannot be struck down on the plea that it is unreasonable, unnecessary. In this case the Petitioner, Jagran, alleges infringement of Articles 19(1) (a) & (g) and21 of the Constitution. But there is no violation of fundamental rights as the Petitioner claims and hence this writ petition is not maintainable. The rights that could be enforced under Article 32 must ordinarily be the rights of the Petitioner himself who complains of the infraction of such rights and approaches the Court for relief. A petitioner cannot be heard to complain about discrimination suffered by others. In this case, Jagran has filed a Writ of under Article 32 challenging the Constitutionality of sections of the Information Technology (Amendment) Act, 2008. In the case of Regina v. Liverpool Corporation Lord Denning M.R. held that the expression “Person aggrieved does not include a mere busybody who is interfering in things which do not concern him”1 and hence Jagran has no right to interfere in this case.

1[ 1972] 2 QB 299 Memorial on behalf of respondent (12)

ITM MOOT COURT COMPETITION, 2017 B).1 SECTION 67A OF THE INFORMATION TECHNOLOGY (AMENDMENT) ACT IS CONSTITUTIONAL. Section 67A of The Information Technology (Amendment) Act, 2008 dealt with punishment for publishing or transmitting any material containing sexually explicit act, etc., in electronic form. According to Article 13 of the Constitution the laws inconsistent with or in derogation of the fundamental rights will be considered void. It includes any laws made or passed by a competent legislature. To declare a law as unconstitutional it has to be shown that there is violation of fundamental rights. There is no infringement of Fundamental Rights as alleged by the Petitioner. There is no infringement of Article 19(1) (a) of the Constitution which gives citizens the right to freedom of speech and expression. The Indian Constitution itself provides for certain exception as mentioned under article 19(2). There is a connection between freedom of speech and the stability of the society. This freedom is subject to Sub-clause (2) of Article 19, which allows the State to impose restriction on the exercise of this freedom in the interest of public decency and morality. Decency means that the action must be in conformity with the current standards of behavior. This shows that obscenity which is offensive to public decency and morality is outside the purview of the protection of free speech and expression because the Article dealing with the right itself excludes it. This is to ensure that there is a restriction on speeches and publications which undermines public morals In the case of Raj Kapoor and others v. State and others “The Apex court dealt with the aspect of censorship and held that freedom of expression cannot be questioned by an intolerant group of people. The fundamental freedom under Article 19(1) (a) can be reasonably restricted only

for the purposes mentioned in Articles 19(2) and the

restriction must be justified. It was observed that “the censors Board should exercise considerable circumspection on movies affecting the morality or decency of our people and cultural heritage of the country”.2 In the case of Reno v. American Civil Liberties Union 21980 AIR 258, 1980 SCR (1)1081 Memorial on behalf of respondent (13)

ITM MOOT COURT COMPETITION, 2017 “It was held that it would be wrong to restrain speech on the internet, except for dissemination of obscene messages. Moreover a Corporation or a company is not a citizen for purposes of the Constitution and thus cannot claim the rights mentioned in Article 19 of the Constitution3.” Hence sexually explicit acts arouse lascivious interest in the minds of people. It is against public decency and morality and hence comes within the purview of restrictions imposed under Clause 2 of Article 19. Hence there is no violation of Article 19(1) (a). Article 19(1) (g) ensures the freedom to practice any profession, or to carry on any occupation, trade or business. In Rajasthan Pradesh V.S. Sardarshahar and Anr. V. Union of India (UOI) and Ors “The Court decided that “the right to practice under Article 19(1)(g) of the Constitution is not absolute and is subject to reasonable restrictions provided under Article 19(6) of the Constitution4”. Hence the publishing or transmission of sexually explicit act is within the restriction mentioned in 19(6) and hence the section is not unconstitutional. In this case the comic strip was quite sexually explicit, both textually and graphically. For something to be ‘obscene’ it must be shown that the average person, applying contemporary community standards and viewing the material as a whole, would find that the work appeals predominantly to ‘prurient’ interest, that it depicts or describes sexual conduct in a offensive way. In this issue mother of the teenage children had asked the help of the Tradition Savers and bundles of cases filed against them in various parts of the Country. That itself shows that the strip is obscene as per the ordinary man’s perspective. The letters of angry Indian mother for hosting such depraved and salacious content itself shows that the Shainy character is obscene. In the case of R v. Stanley “It is clearly pointed out that anything that is obscene must necessarily be indecent. In other words ,indecent merely means non conformance with accepted standards of morality. Obscenity refers to that which has prurient or lascivious appeal .United States courts use the Miller test for determining whether speech or expression is ‘obscene,’ and therefore not protected by the First Amendment. That means it can legally be banned. The Miller test stems from Miller v. California in which the US depicts/describes, in a patently offensive 3521 U.S. 844 (1997) 4R 2010 SC 2221 Memorial on behalf of respondent (14)

ITM MOOT COURT COMPETITION, 2017 way, sexual conduct specifically defined by applicable law? Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value? All the factors mentioned in the questions are satisfactory to define the material in this issue as obscene and filthy. Central Government also issued an order for banning the website because of its filthy content. Indian culture and feminine virtue is spoiled in this indecent character. It also gives false image of traditional Indian housewife. Police also found pornographic material fromtheir office. The comic strip is against the national and contemporary standards of the society. Obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences. In U.S. v. Alpers“ Obscene phonograph records are within the prohibition of 245 of the Criminal Code, which forbids the interstate shipment of any obscene book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character. Indian culture is more conservative and orthodox than the United States and the people here are more sensitive about the morality and decency5”. In Ranjit D. Udeshi v. State of Maharashtra “the term obscenity is defined by the Supreme Court as ‘the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive. This also includes sexually explicit content under Section 67A of the Information Technology (Amendment) Act, 2008. The per se action of the petitioner can be considered as sexually explicit and the persons are liable for their act. The letters of angry Indian mother for hosting such depraved and salacious content itself shows that the Shainy’s character is sexually explicit6”. The comic strip is against the national and contemporary standards of the society. It has the tendency to deprave and corrupt those whose minds are open to such immoral influences. Indecent exposure statute requires exposure at such a time and place where as a reasonable man he knows or should know his act will be open to the observation of others. The law pertaining to indecent exposure does not require that an accused have a specific intent to expose himself to any particular person; it is sufficient that accused generally intended to expose him so as to draw attention to his exposed condition. The issue of Sudarshan ventures also 5338 U.S. 680 (1950) 6AIR 1965 SC 881 Memorial on behalf of respondent (15)

ITM MOOT COURT COMPETITION, 2017 includes child pornography. It is explicit that cartoons are commonly meant for children and a mere carelessness in this issue will destroy the moral, ethical and traditional decency the Indians used to follow. The states have a compelling interest in the protection of the health and welfare of children, and therefore, they have the right to ban the site which makes children morally depraved. States enjoy greater latitude in regulating child pornography because of the government’s compelling interest in safeguarding its children. The states may constitutionally prohibit even the private possession of child pornography. A state has an interest in regulating commercial sexually explicit act or obscenity and possesses the power to prevent or regulate the dissemination distribution transportation, sale, including possession with intent to sell or display of obscene or filthy matter. SECTIONS 69A& 69B OF THE I.T ACT ARE CONSTITUIONAL. Section 69A of the Information Technology Act states the power to issue directions for blocking for public areas of any information through any computer resource. Where there is a severe increase in the pornography and sexual explicit websites, Government should take initiative to safeguard the Fundamental Rights guaranteed under Article 21 of the Constitution which also deals with a life with dignity. Preamble to the Indian Constitution also states about the sovereignty and integrity of the State. While performing the essential functions of maintaining public order and security of the nation, the state is different from other persons whether natural or artificial. The State can act upon its discretion where it feels that the public order is violated. Section 69A also guarantees the Central Government power to safeguard the Security of the State, friendly relations with foreign States etc. A website which is harmful to the moral values of the state should be banned. For the purpose of public safety, the classification of an area into dangerously disturbed area and other area is based on intelligible differentia. This is the same case with regard to the website if it is dangerous to the societal values which may

cause

public

disorder.

Article

14

of

the Constitution

allows certain

discrimination. Sex being a sound classification for special protection of woman under Article 15(3), the provisions of any Act can be passed for the wellbeing

of

the

weaker

parties. Equality means equality among equals. There is no implication of equality being absolute in all circumstances. Memorial on behalf of respondent (16)


THERE IS VIOLATION OF SECTION 292 & 293 OF THE IPC. Section 292(1) consists of two parts. One refers to a book, pamphlet, paper, drawing, painting, representation, figure of any other object which is lascivious or appeals to the prurient interest, and the other part says that if these materials comprises of two or more distinct items, the effect of any one of its items if taken as a whole tends to deprave and corrupt persons who are likely according to the relevant circumstances to read, see or hear the matter contained in it. There must be two things proved under Section 292 that (i) the matter is obscene and (ii) the accused has sold, distributed, imported, printed or exhibited it, or attempted or offered to do so.The word obscene is not defined in the Indian Penal Code. It depends upon the standards of morals of the contemporary society. The idea relating to immorality and indecency may change from time to time and place to place. The term obscene denotes anything that is offensive to modesty or decency, lewd, filthy and repulsive .The constitutional validity of section 292 has been challenged in the case of Ranjit D Udeshi v. State of Maharshtra as it was considered to be violative of the right to freedom of speech and expression enshrined in article 19(1)(a) of the Constitution. It was held that “it can be harldy be said that obscenity which is offensive to modesty or decency is with in constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it..This freedom is subject to reasonable restrictions which may bethought necessary in the interest of the general public and one such is the interest of public decency and morality. Section 292, manifestly embodies such a restriction because the law against obscenity seeks no more than to promote public decency and morality.” So it was held that Section 292 was constitutional and not ultra vires of Article 19(2). It was also held that “the obscene matter in a book must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort and into whose hands the book is likely to fall In this connection the interests of our contemporary society and particularly the influence of the book on it must not be overlooked. It was in this very same case that the Court held that the defence available under the English law is not acceptable here. It is not possible for the accused to show that he had not examined the article in question and thus had no reason to suspect that it Memorial on behalf of respondent (17)

ITM MOOT COURT COMPETITION, 2017 was obscene. But the other defence under English law which exempts publication which are for public good and in interest of science, literature, art, learning or other

subjects of

concern

the exceptions to this

section.7In

is

applicable the

present

in

India

case

the

which comic

is

provided

for

in

strip “shainy’s adventu Adershan’s

general can

be

considered as highly obscene as there was substantiation to show that the content contained a scivious material which would morally deprave the young as their mothers were highly against the strip. the website owners cannot plead the exception to this section because it was not created in interest of science, art, literature, learning or other objects of general concern and nor was it used for any religious purposes. Section 293 of the Indian Penal Code punishes any person who sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as referred in Section 292 of the IPC with imprisonment which may extend to three years or with fine which may extend to two thousand rupees and in the event of subsequent conviction with imprisonment of which may extend to seven years or with fine which may extend to five thousand rupees. In the case of Uttam Singh v. State the accused was found selling a packet of playing cards portraying on the reverse luridly obscene pictures. When his shop was raided, similar packets were found. He was sentenced to six months rigorous imprisonment and affine of Rs.500.8In the case of Dunlop v. U.S the court upheld the conviction for mailing and delivery of a newspaper called the 'Chicago Dispatch,' which contained obscene, lewd, lascivious, andindecent matter9. THERE

IS

VIOLATION

OF

INDECENT

REPRESENTATION

OF

WOMEN

(PROHIBITION) ACT. The Indecent Representation of Women (Prohibition) Act, 1986 prohibits indecent representation of women through advertisements or publications, writings, paintings, figures or 7AIR 1965 SC 881 81974 AIR 1230, 1974 SCR (3) 722 9165 U.S. 486 (1897) Memorial on behalf of respondent (18)

ITM MOOT COURT COMPETITION, 2017 in any other manner and for matters connected therewith or incidental thereto. According to Section 2(c) of the act “indecent representation” means depiction, in any manner, of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent or derogatory to or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals. Any act like publishing or arranging to publish or taking part in publishing or exhibition or of any advertisement which contains indecent representation of women in any form is punishable. If any person produces or causes to be produced, sells, lets to hire, distributes ,circulates or sends by post any book, pamphlet, paper, slide, film, writing, drawing, painting ,photograph, representation or figure which contains indecent representation of women in any form,

the

person

is

liable

to

be

punished

on

conviction with imprisonment of either description for a term which may extend to 2 years and with or without fine up to two thousand rupees. In the event of a second or subsequent conviction the imprisonment may extend up to 5 years and fine of not less than ten thousand rupees, which may extend up to one lakh rupees According to Section 7 not only an individual but a corporate body can also commit the offence of indecent representation of women. It says that every person who at the time offence was committed, was in charge of, and was responsible to, the company, shall be deemed to be guilty of the offences and liable to be proceeded against and punished accordingly. On the other hand if it is proved that the offence has been committed by the company with consent or connivance of or neglect on the part of any director, manager, secretary or other officer of the company such person shall be proceeded against and punished accordingly. What is not decent or appears not to be decent is indecent. Indecency relates to public morals. The unique position of the Indian women in our Society and the cultural heritage of India have been widely known. It is undisputed that the dignity of women has to be preserved and protected. In the Indian polity, all efforts have been made for emancipation of women and to guarantee to them of their dignity and personality. The Constitution of India contain provisions which not only act as protector but also improve women's condition in all spheres of life Article 19(1)(a) guarantees all citizens the freedom of speech and expression. Though the Article does not explicitly deals with the freedom of the Press and Media, however the judicial decisions state that the freedom of speech and expression include the freedom of the press and circulation also. Further, these rights are not Memorial on behalf of respondent (19)

ITM MOOT COURT COMPETITION, 2017 absolute and are subjected to reasonable restrictions as enshrined under clause (2). Decency and morality are among the restrictions mentioned under Article 19(2), which have been included for restricting speeches and publications which tend to undermine public morals. In Ranjit D. Udeshi v. State of Mahrashtra the issue of obscenity and the conflict with freedom of speech and expression has been discussed atand the court held that obscenity is offensive to modesty or decency, and decency and morality are reasonable grounds for restricting the right to freedom of speech and expression of the people as per Article 19(2) of the Constitution of India. 10 Accordingly the dignity of woman is constitutionally protected and any media projections which are derogatory to women should be prevented and prohibited. If the media, electronic or print, exceed their jurisdiction, the courts come forward to ensure that violation of the Fundamental rights by the media does not go unchecked. Moreover, Article 21 guarantees protection of life and personal liberty. Right to life as enshrined in this article something more then survival or animal existence. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure. It includes the right to live with human dignity. It is a basic right of a female to be treated with decency and proper dignity. Acts such as rape, sexual harassment or molestation or many such which encourage or promote these activities, are violative of Article 21. In Maneka Gandhi v. Union of India It was held that right tolife is not merely confined to physical existence but also includes within its ambit the right tolive with human dignity.11 In Francis Coralie Mullin v. Union of Territory of Delhi It was held that right to life means something more than just physical survival and is not confined to protection of any faculty or limb through which life is enjoyed or the soul communicates with the outside world, but includes ‘the right to live with human dignity’. Women are human beings and hence every right pertaining 10AIR 1965 SC 881 111978 AIR 597, 1978 SCR (2) 621 Memorial on behalf of respondent (20)

ITM MOOT COURT COMPETITION, 2017 to human beings are applicable to women. Thus Women have right to lead a dignified life. 12In Chandra Raja Kumari v. Police Commissioner, Hyderabad The Hon'ble High Court of Andhra Pradesh held that any act which tends to offend the dignity of a woman or deal with her indecently in the circumstances amounting to indecent representation in any form, is bound to offend Article 21 of the Constitution of India as right to live includes right to live with

dignity

Covenant on

and

decency.

The

Universal Declaration of Human Rights, International

Civil and Political Rights has recognized that human beings have dignity

inseparable from them. Thus, the right to dignity is an inseparable part of right to life guaranteed under the Indian Constitution under Art.21 13 In the instant the directors of Sudarshan Ventures created a comic strip which described the life of a bold and immoral housewife which was explicit both textually and graphically. The protagonist of the comic “shainy’s adventu Adershan’s became such a cult figure that her image was use deven for advertising certain domestic products. The fact that the strip depraves, corrupts or injures public morality is evident from the letters sent by mothers to EStore and Ebay and the plea received by Cultures Vultures from some mothers of teenagers. The portrayal of “shainy’s adventu Adershan’s as a promiscuous woman has the effect of demeaning, debasing and degrading women. It also tends to corrupt and deprave the reader. It deprives them of the respect and dignity that they are entitled to and shows them in a low light. It would cause great shame and mental agony to all women. Hence there is an indecent representation of women by way of texts and images in the comic strip. It can be said that stories about a promiscuous woman would have a morally corruptive effect on the minds of young people. It would definitely obscure basic moral values and expose young people to bizarre ideas which may lead to deviant behaviour which among them. It was contended that the constitutional protection for speech and expression is not absolute and that it is subject to reasonable restrictions considerations of

based on

'public order', 'defamation', 'decency and morality' among other grounds.

12[1979] 1 SCC 24 131998 (1) ALD 810 Memorial on behalf of respondent (21)

ITM MOOT COURT COMPETITION, 2017 WHETHER THE SEARCH AND SEIZURE POWERS GRANTED UNDER SECTIONS 29

AND80

OF

THE

INFORMATION

TECHNOLOGY

ACT,

2000

ARE

CONSTITUTIONAL? The Superintendent of Police exercising his powers according to Section 80 of the Information Technology (Amendment) Act, 2008. Section 80 gives power to any police officer, not below the rank of a inspector, or any other officer of the Central Government or a State Government authorized by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit any offence under this Act. Police officers is acting accordingly to the Act, with due diligence. Being a cognizable offence the police officer can arrest without a warrant. In State of Haryana v. Ch. Bhajan Lal Court stated that when any information disclosing a cognizable offence is laid before the officein-charge of a police station, he has no option but to register the case on the basis thereof 14. In U.S v..Hall the court stated that a limited warrant less detention of evidence, even by the

government, was not unreasonable if based on reasonable suspicion15. Superintendent of Police is acting according to the Central Government order. He is enabling himself to meet the terms of Section 80 which also says about the authorization of Central Government. Police officer acting in his official powers can act according to his good will, where there is a reasonable doubt about any objectionable object. Police officer can act in accordance with the Sections. In Astt Collector of Central Excise v. Wilfred Sabastian The Court stated that the illegality of a search will not affect the validity of the articles or in any way vitiate the recovery of the articles and the subsequent trial 16. Where the inspirational material itself is pornographic in nature, then the outcome of such amaterial will be unlawful, illegal and immoral in nature which is against public morality and decency. Indian Culture has its high 141992 AIR 604, 1990 SCR Supl. (3) 259 15 472 F.2d 261, 1972 U.S. App. 6575 16AIR 1972 SC 2563 Memorial on behalf of respondent (22)

ITM MOOT COURT COMPETITION, 2017 traditional approach to follow. Considering a pornographic material as inspiration itself is unethical. It includes the public place-mere access to the public case is enough for stating it constitutional. Any person can access the offices of Sudarshan Ventures. They are not mentioning any criteria for public access. Mere access to the public is sufficient to consider it as public place. Explanation to Section 80 defines public place, which includes any public conveyance, any hotel, any shop or any other place intended for use by, or accessible to the public. Section 29 says that the police officer can access any computers and data where he has a reasonable cause to suspect the parties. Police in this case is reacting towards the Central Government order and they have reasonable reason to suspect the parties. The allegations were come up against the parties from various strata of the society. Petitions were filed from different states of the Union of India. Thus the police have the power to search in these grounds. Right to privacy is not an absolute right it has its limitations. Police officer is doing his duty and there is no violation of Fundamental Rights as well as other rights. WHETHER THERE HAS BEEN ANY INFRINGEMENT OF RIGHT TO PRIVACY BY THE SEARCHOF PRIVATE MAILS AND DOCUMENTS NOT MEANT FOR PUBLIC CIRCULATION? In India a private action for damages for unlawful invasion of privacy is maintainable. The printer and publisher of a magazine or journal would be liable if they publish any matter related to his private life which includes his family, marriage, procreation, parenthood etc without his consent. But the exceptions to this are firstly that the right of privacy does not continue to exist when the publication is a matter of public record and secondly that when the publication relates to the discharge of official duties of a public servant, an action cannot be maintained unless the publication is proved to be false, malicious or untruthful. Also under Constitutional law, the right to privacy is implicit in the fundamental right to life and liberty guaranteed under Article 21 of the Constitution. But the right to privacy flowing from Article 21 must be balanced by the fundamental right of the media to publish any matter of public interest.


ITM MOOT COURT COMPETITION, 2017 In the case of Sharda v. Dharmpalit was held by the Supreme Court that the right to privacy in terms of Article 21 of the Constitution is not an absolute right. If there were a conflict between fundamental rights of two parties, that right which advances public morality would prevail17. In District Registrar & Collector v. Canara Bank it was held that exclusion of illegitimate intrusions into privacy depends on the nature of the right being asserted and the way in which it is brought into play; it is at this point that the context becomes crucial, to inform substantive judgment. If these factors are relevant for defining the right to privacy, they are quite relevant whenever there is invasion of that right by way of searches and seizures at the instance of the State.18 WHETHER THERE HAS BEEN ANY VIOLATION OF ARTICLE 20(3)? There is no violation of Article 20(3) of the Constitution. It says that “No person accused of any offence shall be compelled to be a witness against himself.” None of the petitioners a reacting as witness against themselves in this issue. Article 20(3) has no applicability in this case .It is on this principle that the Court held that the immunity is available to an accused person when a compulsory process or notice is issued, directing him, under pain of penalty, to produce a document, but not when a document is recovered from him by search and seizure by a police officer without involving any volitional act on the part of the accused from whose possession the document is recovered. Search and seizure are acts of another to which an accused is obliged to submit and are not testimonial acts. The use of records against an accused after their seizure for an offence under any enactment is not considered to be violative of Article 20(3). Documents or Articles or any other incriminating. In State of Bombay v. Kathi Kalu Oghad The protection does not extend to any kind of evidence but only to self incriminating statements made by the accused19. Therefore the Article 20(3) does not protect the petitioner. Self incrimination must mean conveying information based upon the personal knowledge of the person giving the 17AIR 2003 SC 3450, 2003 (3) ALT 41 SC 18AIR 2005 1 SCC 496 191961 AIR 1808, 1962 SCR (3) 10 Memorial on behalf of respondent (24)

ITM MOOT COURT COMPETITION, 2017 information and cannot include merely the mechanical process of producing document in Court which may throw a light on any of the points in the controversy. But there exists a distinction between an order of the court directing the accused himself to produce a document and an order directing the police to search and seize any document. It is the former and not the latter that that is protected. WHETHER A CASE HAS BEEN MADE OUT IN CASE OF CONSTITUTIONALITY OF SECTION69A OF THE INFORMATION TECHNOLOGY (AMENDMENT) ACT, 2008 The government of India has given up the power to block pornographic websites purely onthe ground of obscenity or sexually explicit Act considering the cultural heritage, dignity ofwomen and also for the controlling of public order with due diligence. Central Government has the authority to block public access to websites, without further clarifying the necessary perquisite circumstances for any such action. Section 69Acontain the provision that the section can be invoked for preventing incitement to the commission of any cognizable offence Sexually explicit content comes under the cognizable offences contravention of ‘any law is violation of public order.



PRAYER WHEREFORE, in the light of the issue raised, arguments advanced and authorities cited, it is most humbly and respectfully requested that this Honb’ble Court to adjudge and declare on behalf of: 1. The petition is not maintainable under Article 32 of the Indian Constitution. 2. Section 67A, 69A and 69B of the Information Technology (Amendment)Act 2008 and allied provisions in the Indecent Representation of Women(Prohibition) Act, 1986 and the Indian Penal Code, 1860 are Constitutional. 3. Section 29 and 80 of Informational Technology (Amendment) Act are Constitutional. 4. There is no infringement of Right to Privacy. The court may also please to pass any other order, which this Hon’ble Court may deem fit in the light of justice, equity and good conscience. For this the Respondent shall be duty bound forever. All of which is respectfully submitted Counsel for the Respondent


Itm Moot Court (Respondent) (1)

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