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TEAM CODE: T25

3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT

COMPETITION-2015

BEFORE THE HON’BLE SUPREME COURT OF FARALLON

Under A. 32 OF THE CONSTITUTION OF FARALLON

WRIT PETITION NO.53000 of 2210

Mustapha Mond & Big Brother Enterprises ….Petitioner

Vs.

The Government of Farallon & Thomas Tomakin …. Respondent

WRIT PETITION NO.72521 of 2210

Terra Gaia ….Petitioner

Vs.

The Government of Farallon & Thomas Tomakin ….Respondent

Written submissions on behalf of the Respondent


Counsel appearing on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

TABLE OF CONTENTS

List of Abbreviations……………………………………………………………...3

Index of Authorities………………………………………………………………4

Statement of Jurisdiction…………………………………………………………6

Summary of Facts……………………………………………………………….. 7

Issues Raised/Questions Presented……………………………………………… 9

Summary of Arguments………………………………………………………….10

Body of Arguments/Pleadings……………………………………………………11

Prayer for Relief…………………………………………………………………..26

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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

LIST OF ABREVIATIONS

1) G.O. Government Order

2) Art. Article

3) Hon’ble Honorable

4) No. Number

5) Viz. Namely

6) i.e. That Is

7) v/vs versus

8) AIR All India Reporter

9) S.C. Supreme Court

10) S.C.C. Supreme Court Cases

11) F.C. Federal Court

12) L.R. Law Reports

13) H.L. House of Lords

14) I.T. Information Technology

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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

INDEX OF AUTHORITIES

CASES

1. Romesh Thappar v State of Madras, AIR 1950 SC 124


2. Basudev v Rex, AIR 1949, ALL 1949 513
3. Om Prakash v Emperor, AIR 1948 NAG 199
4. Noor Mohemmad v Rex, AIR 1949 ALL 120
5. Superintendent Central Prison v Ram Manohar Lohia, AIR 1960 SC 633
6. Dr Suresh Chandra v Panit Goala, AIR 1958 CAL. 176
7. K.A. Abbas v Union Of India, AIR 1971 SC 481
8. S. Rangarajan v P. Jagjiv Ram, 1989 SCR (2) 204
9. A.B.K Prasad v Union of India & Ors., 2002 CRI LJ 2464
10. Selvi J. Jayalalitha & Ors. V R. Rajagopal & Ors., AIR 2006 MADRAS 197
11. A.K. Kraipak v Union Of India, AIR 1970 SC 150
12. P. A. Inamdar v State of Maharashtra, AIR 2005 SC 3226
13. S. Mithu v State of Punjab, 1983 2 SCC 277
14. Selvi v State of Karnataka, 2010 7 SCC 263
15. State of Punjab v Dalbir Singh, 2012 2 SCALE 126
16. Babulal Parathe v State of Maharashtra, AIR 1961 SC 884
17. Ram Krishna Dalmiya v S.R. Tendolkar, AIR 1958 SC 638
18. Charanjit Lal Chowdhary v Union of India, AIR 1951 SC 401
19. Kedar Nath v State of Bihar, 1962 AIR 955
20. Nandalalv State of Haryana, AIR 1980 SC 2097
21. Balkotaiah v Union of India, AIR 1958 SC 232
22. Matajog v Bhari, AIR 1955 SC 44(48)
23. Naraindas v State of Madhya Pradesh, AIR 1974 SC 1232
24. PUCL v Union of India, AIR 2004 SC 1442
25. A.K. Gopalan v State of Madras, 1950 AIR 27
26. Confederation of Ex Serviceman Association v Union of India, AIR 2006 SC 2945
27. Santosh Singh v Delhi Administration, AIR 1973 SC 1091
28. Akashi Padhan v State of Orissa, AIR 1963 SC 1047
29. Harakchand v Union of India, AIR 1970 SC 1453
30. Arunachala Nadar M.C.V.S. V State of Madras, AIR 1950 SC 300
31. O.K. Ghosh v Ex Joseph, AIR 1963 SC 812

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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

32. Sunil Fulchand Shah v Union Of India, AIR 2000 SC 1023


33. State of Bihar v Shailabala Devi, AIR 1952 SC 329
34. Ramji Lal Modi v State of Uttar Pradesh, AIR 1957 SC 620
35. Virendra v State of Punjab, AIR 1957 SC 896
36. Radhe Shyam Sharma v Postmaster General, AIR 1956 SC 311
37. Amin v State, AIR 1958 293
38. Naraindas Indurkhya v State of Madhya Pradesh, AIR 1974 SCC 1232

STATUTES, CIRCULARS, NOTIFICATIONS ET AL

1. The Constitution Of India, 1950


2. Information Technology Act, 2000
3. Information Technology Rules, 2009
4. Information Technology Rules 2011
5. G.D Khosla Committee Report, 1969
6. Indian Penal Code, 1873
7. Criminal Procedure Code, 1973

INTERNATIONAL MATERIALS

1. Universal Declaration of Human Rights


2. Declaration of Human Duties and Responsibilities
3. Australian Constitution
4. Model Law on Electronic Commerce

BOOKS

1. Durga Das Basu, The Constitution of India.


2. V.N. Shukla, The Constitution of India.
3. Ratanlal and Dheerajlal, Indian Penal Code.
4. P.S.A Pillai, Indian Penal Code
5. Shannon Creasy, Defending Against The Charge Of Obscenity In Internet Age.
6. Bo. Zhao Dr., Legal Cases on Posthumous Reputation and Posthumous Privacy.

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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

STATEMENT OF JURISDICTION

The Honourable Supreme Court is vested with jurisdiction, to hear the present matter under
Article 32 of the Constitution of Farallon.

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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

SUMMARY OF FACTS

The Republic of Farallon, comprising parts of erstwhile Asian and African continents, is a
democracy which has adopted the Constitution and the laws of the erstwhile Republic of
India as its governing documents and is guided by the principles of common law adhered to
in the courts of that country. Article 141 of the Constitution alone has been repealed. Farallon
has a bicameral legislature with a strict two party system and is presently governed by a
conservative political party, the Equality League headed by Prime Minister Prometheus. Peter
Keating, one of the founding fathers of Farallon had been a member of the Equality League.
Liberty Foundation is a liberal group, in opposition, who believe in free speech, no
Government control in channels of communication and complete transparency. Airstrip One
is the capital of Farallon.

DISPUTES

A weekly Farallon printicle, The Convoy, dated 4 October, 2209, carried a cover story titled
“Was Keating Cheating?”, penned by a prize-winning author which relied on Peter Keating’s
self-published collected works to reveal that Keating was both a racist and a sexual pervert.
As the printicle had low circulation, the story received little attention. A fickle named “The
Keating Story” was released in theatres in June 2210 which was produced by Bernard Marx
under the banner of Big Brother Enterprises. The fickle was a biographical account of Peter
Keating’s life and acknowledged The Convoy article in its credits. The fickle broke all
previous box-office records, attracted positive reviews in leading printicles and received
accolades in leading Film Festivals.

On 14 July, 2210, the Minister for Media, Thomas Tomakin issued a Government Order
banning the broadcast or sale in any format of The Keating Story stating that the fickle was
“defamatory, devisive and against public interest”. On the same day, upon the orders of
Thomas Tomakin, complaints of criminal defamation were registered by the Farallon police
in Airstrip One against Mustapha Mond and Big Brother Enterprises alleging that Peter
Keating and the Equality League had been defamed. Both the accused immediately initiated
writ proceedings [W.P.No.53000/2210] challenging the ban as well as seeking quashing of
criminal proceedings inter alia on the ground that criminal defamation provisions are
unconstitutional.

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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

On 27 July, 2210, an explicit video of Thomas Tomakin’s married son John Tomakin
engaged in homosexual activities with Helmholtz Watson, a Professor in the University of
Airstrip One, seemingly recorded in Watson’s cellular phone quickly goes viral and clips
from it are broadcast on Big Brother Enterprises’ Viewbicles news channels, which
repeatedly accuse Minister Tomakin of not having taken action against his criminal son.

On 28 July, 2210, Thomas Tomakin, on reception of dossier carrying details of transactions


that took place over the previous month on www.buyme.far, disclosing the sale of fickle and
viewbicle videos of The Keating Story and the John Tomakin scandal, issues a Government
Order directing Internet Service Providers to block access to www.buyme.far and to the local
police to arrest Terra Gaia, who runs the web portal for violation of law.

Terra Gaia files a writ [W.P.No.72521/2210] against the Government of Farallon challenging
the Government Order of 28 July, 2210 and also Sections 66A and 69A of the Information
Technology Act as being unconstitutional.

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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

ARGUMENTS PRESENTED
1. WHETHER THE GOVERNMENT ORDER OF 14.7.2210 IS VALID ?
2. WHETHER THE CRIMINAL PROCEEDINGS INITIATED AGAINST MUSTAPHA MOND AND

BIG BROTHER ENTERPRISES IS VALID ?


3. WHETHER THE GOVERNMENT ORDER OF 28.7.2210 IS VALID ?
4. WHETHER SECTIONS 66A AND 69A OF THE INFORMATION TECHNOLOGY ACT IS

CONSTITUTIONALLY VALID ?

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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

SUMMARY OF ARGUMENTS
The Government Order passed on 14-07-2210 is valid

The respondent humbly submits that the Government Order passed on 14-07-2210 . i.e , the
banning of the fickle is not violation of the basic fundamental right of the citizen of the
country enshrined in the Constitution ,i.e, the banning does not violates the fundamental
rights as it comes under the reasonable restrictions imposed under the Constitution(A) .The
counsel have highlighted the need of educational qualification(B) and the ability of a fickle to
influence a lay man (C)..

The criminal proceedings initiated against Mustapha Mond and Big Brother
Enterprises is valid

The respondent submits that the criminal proceedings initiated against Mustapha Mond and
Big Brother Enterprises amount to Defamation , as clearly stated in the reasonable restrictions
under Article 19 (2) , and it is substantiated by the Explanation 1 of § 499 of Farallon Penal
Code .

The Government Order dated 22.07.2210 is valid.

The respondent submits that the G.O. dated 22.07.2210 is valid. Terra Giaia, the intermediary
here has not followed the ‘due diligence’ as prescribed in IT Rules, 2011 and thus, the
blocking of www.buyme.far and her arrest is valid. According to IT Rules 2009, Secretary,
Dept. of Information Technology has full discretion to pass an Emergency G.O. whenever he
feels satisfied to pass such order. So, the order is passed in accordance with the law and is
thus valid.

Sec. 66 A and 69 A of IT Act is Constitutionally Valid.

Sec. 66 A and 69 A of the IT Act is within the provisions of the constitution. These sections

passes the test of reasonableness, clear and present danger and has direct nexus to the object.

Both the sections are created with the view to upheld the justice in the interest of national

security.

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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

ARGUMENTS ADVANCED
I. THE GOVERNMENT ORDER PASSED ON 14-07-2210 IS VALID
1. The respondent humbly submits that the Government Order passed on 14-07-2210 . i.e.,
the banning of the fickle is not violation of the basic fundamental right of the citizen of the
country enshrined in the Constitution, i.e., the banning does not violates the fundamental
rights as it comes under the reasonable restrictions imposed under the Constitution(A) .The
counsel highlights the need for educational qualification (B) and the ability of a fickle to
influence a lay man (C ) .

A. The banning of the fickle does not violate Fundamental Right

2. Freedom of speech and expression is indispensable in a democracy1.All citizens shall have


the right to freedom of speech and expression2 . But this right is subject to reasonable
restrictions3 imposed under the Constitution4. The counsel relies on the historical judgement
in Secretary ,Minister of I&B v. Cricket Association of Bengal (CAB) 5, the supreme court
has considerably widened the scope and extent of the freedom of speech and expression and
held that the government has no monopoly on electronic media and a citizen has , under
Art.19(1)(a) ,but the government can impose restrictions on grounds specified in Art.19(2) ,
Indian Const. and not on any other grounds . In the instant case the Ministry of Media had
imposed the restrictions only on the grounds specified in Art. 19(1)(a), Indian Const. .

A.1. The fickle was banned as its likely to breach the public order

3. Public order thus implies absence of violence and an orderly state of affairs in which
citizens can peacefully pursue their normal avocation of life6.A fickle can be banned when it
causes any disturbances to the public peace , the fickle deals with the prominent person of the
Equality league, thereby after the release of “The Keating Story” received accolades at
leading international Film Festivals in Nuna and Rodina, and back home in Farallon the
followers of the founding father finds it defamatory, anything that disturbs public tranquillity
or public peace disturbs public order 7.Thus, communal disturbance8 and there exist a

1
Romesh Thapper v Union of India AIR 1950 SC 124.
2
India Const. art 19, § 1, cl. a.
3
India Const. art 19, § 2.
4
Constitution of Farallon, Parimateria to Constitution of India (Herein after referred as Constitution).
5
(1995) 2 SCC 161.
6
Basudev v Rex , AIR 1949 ,All 1949 513.
7
Om Prakash v Emperor , AIR 1948 Nag, 199.
8
Noor Mohammed v Rex , AIR 1949 All 120.

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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

reasonable and proper nexus or relationship between the restriction and the achievement of
public order9.
4. The banning was mainly imposed because there exists two political parties. After the
release of the fickle, it was quickly endorsed by the Liberty Foundation as evidence of the
duplicity of Equality League’s founders and the Government fears that this would lead to a
great conflict between both the political parties disturbing public order. Here the public order
means the tranquillity which prevails among the members of the political society. 10.

A.2. The fickle was banned as it is defamatory in nature

5. Anything which injures a man’s reputation amounts to defamation. Defamation consists in


exposing a man to hatred, ridicule or contempt. In § 499 of the Farallon Penal Code contains
criminal law relating to defamation .It recognises no distinction between the defamatory
statement addressed to the ear or eyes , from freedom of speech and expression 11.Article
19(2), Indian Const., the right of freedom expression cannot be abused to the extent of
defaming and disparaging the reputation of others. Counsel also pleads that the canvas of
Article 19, Indian Const. is wide open for the petitioners to express their creativity but one
cannot use that freedom for maligning the reputation of others.

B. Education qualification is necessary


6. The Film Certification Board’s Chairman and the members i.e., not less than 13 and not
more than 25, their mandatory educational qualification should be imposed. They have to
possess a certain amount of intellectual equipment and should have attained a certain
educational standard without which it would be impossible for them to perform their duty
efficiently. The committee formed by G.K.Khosla, ex-chief justice of Punjab and Haryana,
the committee brings out the need for the educational requirements for being the Board
Member, the supreme court appreciated it and suggest it for the cinematography act but
because of the proclamation of emergency, the janata party failed to implement the report12.

9
Superintendent , Central Prison v Ram Manohar Lohia , AIR 1960 SC 633.
10
Romesh Thapper v Union of India , AIR 1950 SC 124.
11
Dr.Suresh Chandra v Panbit Goala , AIR 1958 Cal. 176.
12.K.A.Abbas v Union of India , AIR1971SC481

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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

C. Ability of the fickle to influence a lay man


7. Fickle doubtless enjoys the guaranty under Article 19(1)(a), Indian Const. but there is one
significant difference between the fickles and other modes of communication. The fickle
cannot function in a free market place like the printicles, readicles, etc. fickle motivates
thought and action and assures a high degree of attention and retention13. It makes its impact
simultaneously arousing the visual and aural senses. The focusing of an intense light on a
screen with the dramatizing of facts and opinion makes the ideas more effective. The
combination of act and speech, sight and sound in semi-darkness of the theatre with
elimination of all distracting ideas will have an impact in the minds of spectators.

8. In some cases, it will have a complete and immediate influence on, and appeal for
everyone who sees it. In view of the scientific improvements in photography and production
the fickle is a powerful means of communication. It is said as an instrument of education it
has unusual power to impact information, to influence specific attitudes towards objects of
social value, to affect emotions either in gross or in microscopic proportions, to affect health
in a minor degree through sleep disturbance, and to effect profoundly the patterns of conduct
of children. Fickles play a very significant role in the life of a common man and any issue
based fickle leaves a great impact on the minds of the viewers and influences their mind set
and attitude. Fickles have the capacity to galvanize a human mind, as the human psyche is
vulnerable and due to being star struck the mind of a common man germinates with the ideas.
A fickle have to be treated separately from other forms of art and expression because a
motion picture was able to stir up emotions more deeply than any other product of Art.14

9. The authors of book15 have demonstrated by scientific tests the potential of the motion
pictures (referred to as the fickle) information of opinion by spectators and also on their
attitudes. These tests have also shown that the effect of motion pictures is cumulative. It is
proved that even though one fickle relating to a social issue may not significantly affect the
attitude of an individual or group, continual exposure to films of a similar character will
produce a change. It can, therefore, be said that the fickle has unique capacity to disturb and
arouse feelings. It has as much potential for evil as it has for good. It has an equal potential to
instil or cultivate violent or good behaviour. With these qualities and since it caters for mass
audience who are generally not selective about what they watch, the movie cannot be equated

13
S. Rangarajan Etc vs P. Jagjivan Ram , 1989 SCR (2) 204.
14
K.A.Abbas v Union of India , AIR1971SC481.
15
Bernard Betelson and Morris Janowitz Public Opinion and Communication 390 Second Ed.

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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

with other modes of communication. It cannot be allowed to function in a free market, place
just as does the newspapers or magazines.

II. THE CRIMINAL PROCEEDINGS INITIATED AGAINST MUSTAPHA MOND AND

BIG BROTHER ENTERPRISES IS VALID

10. The respondent submits that the criminal proceedings initiated against Mustapha Mond
and Big Brother Enterprises amount to Defamation , as clearly stated in the reasonable
restrictions under Article 19 (2) , and it is substantiated by the Explanation 1 of § 499 of
Farallon Penal Code .

11. The criminal proceedings were initiated against Musthafa Mond and the big brother
enterprises, because of defaming the founder Peter Keatings and the equality party .Next to
life, man cares most for his reputation. Sometimes, we find an individual giving it a foremost
place, preferring death rather than living a life of ignominy and disgrace. Rightly, the law
gives protection to a man’s reputation, as it gives protection to his life and property.

12. § 499 of the Farallon penal code , defines defamation “whoever , by words either
spoken or intended to be read , or by visible representation , makes or publishes any
imputation concerning any person intending to harm , or knowing or having reason to
believe that such imputation will harm , the reputation of such person , is said except in the
cases hereinafter excepted , to defame that person. And the explanation 1 of § 499, Farallon
Penal Code defines that “it may amount to defamation to impute anything to a deceased
person , if the imputation would harm the reputation of that person if living , and is intended
to be hurtful to the feelings of his family or other near relatives”. Now, from the bare reading
of section 499, Farallon Penal Code, it becomes clear that any person by words either spoken
or intended to be read or by signs or by visible representations makes or publishes any
imputation concerning any person intending to harm or knowing or having reason to believe
that such imputation will harm the reputation of such person is said to defame that person.
The word “imputation” indicates something bad about another and implies the attribution of
evil, the making of an accusation , insinuation or a charge against a person .
13. The petitioners had an intention to harm the reputation of Peter Keatings, and they had a
clear intention to defame in a fickle for their own commercial and profitable movie will
disparage and dilute the good will and reputation of the petitioner among the people .Peter
Keatings is the founder of the Equality league, and through this the party is also defamed. It
was published to generate public hatred and contempt towards the Peter Keating and the
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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

equality league, purely for the sake of profit, with no other intention and without there being
any foundation or basis for the same.
14. Counsel further pleads that the equality league is suffering and stands to suffer irreparable
and unquantifiable loss since the equality league’s entire fame and success depends upon its
good name and reputation among the people. Through the fickle , the petitioners are creating
a social as well as a political issue , undoubtedly they have the right to express their own
views and thoughts but they have no right to calumniate and tarnish the reputation of the
petitioner, without there being any strong basis .Peter Keating, a champion of non-violence
and peaceful struggle, has played a part in the creation of Farallon so, he is considered as one
of the Founding father of the nation and his death day was nationally mourned and the
anniversary is marked annually by Farallon as Remembrance Day. His name was recklessly
boasted and disparaged which has earned over the years through his dedication and
contribution to the nation.
15. Petitioners have the absolute right to project their Cinematographic skills through critical
comments on the society or even using a satire on the social and political system with
analytical overtones but certainly they do not have any right to trample and want to denigrate
the reputation of the Peter Keating and Equality league .Nothing can compensate the
indignity, loss of reputation and shame which has been ascribed to the Peter Keatings and the
party.
16. Art.19 states that the right of freedom of speech is guaranteed by the Constitution and it
includes freedom of press but freedom of speech by no means can include right to defame16
and Art 19(2), Indian Const. clearly mentions defamation as a ground for reasonable
restrictions. A statement which injures a man’s reputation amounts to defamation.
Defamation consists in exposing a man to hatred, ridicule or contempt. § 499 of the Farallon
Penal Code contains criminal law relating to defamation .It recognises no distinction
between the defamatory statement addressed to the ear or eyes , from freedom of speech and
expression17.The importance of this freedom cannot be over emphasized as it forms a part of
the fundamental rights which is the touchstone of our democratic setup. The modern means
of communication is undoubtedly vital for keeping the public debate alive on various issues
of national importance, but at the same time the restrictions imposed under Article 19(2),
Indian Const. cannot be encroached.

16
Abk Prasad v Union Of India And Ors, 2002 CriLJ 2464.
17
Dr.Suresh Chandra v Panbit Goala , AIR 1958 Cal. 176.

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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

17. The petitioners are entitled to criticise, but without touching the reputation and without
exceeding the limits and bounds made by law, since law would not permit any one to use his
freedom of speech or expression as to injure another’s reputation or to indulge what may be
called character assassination18.

Australian View
18. The Australian law clearly says if there is a clash between the reputation and the freedom
of speech, the reputation should be given primacy. In Australia, it is assumed that if there is a
defamatory content, it is wrong. There is no doubt that in this modern society freedom of
speech is essential but for this modern society to exist properly, the reputation should be
given the upper hand over the freedom of speech.

III. G.O. dated 28.07.2210 is Constitutionally Valid

A. Intermediary Terra Giaia is Liable.

19. The intermediary is exempted from the liability if the intermediary does not:

(i) initiate the transmission,


(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission

But the statute also clearly says that the intermediary is liable if the intermediary does not
comply with the Due Diligence prescribed in the IT Rules 2011. Here, the intermediary has
violated Rule 3(2)(b), 3(2)(c), 3(2)(e) by displaying the content which is grossly harmful,
defamatory, obscene, pornographic, ethnically objectionable, harm minors, violates any law
for the time being in force.

20. The Due Diligence prescribed in the IT Rules 2011 is constitutional and it follows the
principle of natural justice. As stated in A.K. Kraipak Case19, there should be striking
balance between the fundamental right of an individual and the common good. As stated in
P.A. Inamdar v State of Maharashtra,20 if there is a clash between fundamental right and the
directive principle of state policy, the directive principle of state policies will prevail over the

18
Selvi J. Jayalalithaa and Anr. vs. R.Rajagopal and Anr , AIR 2006 Madras 197.
19
A.K. Kraipak v Union Of India, AIR 1970 SC 150
20
AIR 2005 SC 3226

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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

fundamental rights. The Hon’ble SC took this view for the first time in this case. Here, the
intermediary Terra Giaia has not complied with the due diligence prescribed so she is not
entitled for the exemption of liability given in the said provision. Moreover, she has also
committed unlawful activity by uploading a homosexual video which is a criminal activity in
the land.

A.1. Morality
21. The framers, Indian Const. considered morality as an important criterion for the
restrictions placed in Art. 19(2) and added morality as the restriction in 19(2) , Indian Const.
The content in the website and the fickle defames and it disturbs the inner feelings and the
faith which a common man in a society has. If this content goes against it, it is against the
principles of natural justice, the Latin maxim jus naturale is being violated. The morality
should hold upper hand over the act committed.

A.2. Obscene

22. The precise meaning of “obscene” is, however, decidedly ambiguous. It has been defined
as “something offensive to modesty or decency, or expressing or suggesting unchaste or
lustful ideas or being impure, indecent or lewd.” The term ‘obscene’ has eluded definition.
There are no rigid parameters to judge the concept of ‘obscene and indecent’. This is because
the definition changes with time and circumstances.
23. The meaning of bad taste varies according to the context. For a journalist it implies that
“which on grounds of decency or propriety he should not publish”. Where a matter has “a
tendency to stimulate sex feelings” its publication in a journal meant for the lay public, young
or old, undesirable. Exploitation of sex falls short good taste. Public taste is to be judged in
relation to the environment, milieu as well notions of taste prevailing in contemporary
society. In the recent case, Aveek Sarkar v State of West Bengal, the age old Hicklen’s test is
been disapproved and the community standard test is prescribed. Taking the society into
consideration, the video content is not acceptable by everyone in the society and it should not
hurt the feelings of the citizens of the nations.

A.3. Violates any law for the time being in force

24. The fickle which was being circulated in the www.buyme.far which contains homosexual
contents is against the provisions , Indian Const. where homosexuality is an offence under

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Written Submission on behalf of the Respondent
3rd RMNLU—SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT COMPETITION-2015

§377 of IPC. §377 fails the criteria of substantive due process under Art. 21, Indian Const. as
it infringes upon the private sphere of individuals without justification which is not
permissible. The principle has been incorporated into Indian jurisprudence in the last few
years after the Maneka Gandhi case. The test of whether a law is just fair and reasonable has
been applied in examining the validity of the state action which infringes upon the realm of
personal liberty (Mithu v State of Punjab21, Selvi v State of Karnataka22, State of Punjab v
Dalbir Singh23,).

B. Arrest of Terra Giaia is valid

25. The arrest of the intermediary Terra Giaia is valid under the constitutional provision and
for the violation of the law.

i. For not complying with the due diligence which she is bound to comply.
ii. The obscene contents which are against the public morality and which could affect the
minors as §20 of The Woman And Girl Protection Law was invalidated by taking the
minors into consideration. The said provision validated a prostitute to continue her
profession elsewhere and to accommodate her. By taking the minors into
consideration, in this case uploading such videos will definitely be a setback or will
be a wrong preaching to the future generations. Moreover that was the due diligence
prescribed for her to follow. When the statute clearly says that the intermediary can be
arrested for not complying with the due diligence.

C. Blocking of website is Constitutional

26. §66 A, IT Act enables the ministry to block a website if it considers that it is inconsistent
with the restrictions placed in the constitution. Here it gives the discretion for the secretary to
pass such orders which is completely constitutional. The absolute discretion need not be used
arbitrarily.24

D. In Accordance with the Rule

21
(1983) 2 SCC 277
22
(2010) 7 SCC 263
23
(2012) 2 SCALE 126
24
Babulal Parate v State of Maharashtra, AIR 1961 SC 884

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27. The arrest or blocking of site is not arbitrary and it is within the framework of the rules
prescribed by the information technology act and the information technology rules 2009
where the rules are prescribed to issue an ordinary order and an emergency order where the
rule of law is clearly followed in this case and the said provision is not unconstitutional in
any manner. The counsel humbly pleads that the arrest and the banning of the movie is
constitutional

IV. Validity of §66 A and 69 A , IT Act

A. Validity of §66 A , IT Act

28. A statute cannot be struck down merely because the court thinks it to be arbitrary or
unreasonable. In Ram Krishna Dalmia v S.R. Tendolkar,25 the legislature appreciates and
understands the needs of the people that it knows what is good or bad for them. The laws it
enacts are directed to problems which are made manifest by experience that the elected
representative in the legislature enact laws which they consider to be reasonable for the
purpose which these laws are enacted that a legislature would not deliberately flout a
constitutional validity or right. Therefore the presumption is in favour of constitutionality of
the statute on the onus to prove it unconstitutional always lies on the person who is
challenging it.26 66 A , IT Act is accused of having various words which have no meaning in
it. In recently happening case Common Cause v Union of India, Justice Bobde has pointed
out that he doesn’t find what is wrong in the word ‘menancing’. He says, it is instilling fear in
another man’s heart without doing any action. So, it is wrong to accuse the validity of §66 A ,
IT Act just because those words are undefined. In a democratic republic country like
Farallon, for the public welfare, the fundamental right of the human being should go hand in
hand with that of common good, to protect the needs of the society on the whole. In Kedar
Nath v State of Bihar,27 124A of IPC was interpreted in the narrower sense, thus was against
Art.19(2). Sedition was defined as meaning, words, deeds or writings having a tendency or
intention to interrupt public tranquillity. The court rejected the broader view of §124A that
the incitement to the public order is not essential element of sedition under this section. The
broader view would have made Sedition unconstitutional.

25
AIR 1958 SC 638.
26
Charanjit Lal Chaudhary v Union Of India, AIR 1951 SC 401.
27
1962 AIR 955

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A.1. §66 A, IT Act does not violate Art. 14, Indian Const.

29. The original Section 66 , IT Act 2000 was only limited to the hacking of the websites
which proved to be ineffective in tackling the problems of wrongful emails, messages and
campaigns on the social media like Facebook. The amendment was brought in and Section 66
A, IT Act was inserted in the statute book to tackle all such kinds of problems on the internet.
By its simple definition the Section 66 A, IT Act gives widest powers to stop any kind of
objectionable email, messages on the social media, SMS etc. To maintain peace and public
order in the growing internet world §66 A, IT Act is very much essential, the law is bound to
grow faster than the technology but the technology takes an upper hand. To avoid that
situation, this amount of check is essential for the society to dwell in harmony.

30. §66 A read with § 78, IT Act which gives power to the investigation officer who is not
under the rank of sub inspector of the police. So, by saying that 66 A , IT Act gives unbridled
power to the police for arresting a criminal is unreasonable and it is suggestio falsy.

A.1.1. 66 A , IT Act not arbitrary, vague and unreasonable

31. SC has observed that no enactment can be struck down saying it is arbitrary,
unreasonable. Some constitutional infirmity has to be found. It cannot be declared invalid on
the ground that it contains vague or uncertain or ambigious or mutually inconsistent
provisions.28

32. Rule 3 of The Railway Service Rules 1949 says ‘a member of the railway service who is
in the opinion of the competent authority is engaged or reasonably subjected to be engaged in
subversive activities may be compulsorily retired from the service provided that the member
of railway service shall not be so retired unless the competent authority is satisfied that his
retention service is pre-judicial to national security. It was held subversive activity was not
vague or indifferent.29 Those words such as ‘grossly offensive’, ‘menancing’, ‘annoyance’,
‘inconvenience’, ‘danger’, ‘obstructions’, ‘insult’, ‘injury’, ‘criminal intimidation’, ‘enmity’,
‘hatred’ and ‘ill-will’ which are also questioned in other sections such as § 20B of Indian
Postal Acts 1998, §53, 504, 295 and 298 of IPC.

A.1.2. It does not give unguided or unfettered powers on executive.

28
Nand Lal v State Of Haryna, AIR 1980 SC 2097.
29
Balakotaiah v Union of India, AIR 1958 SC 232

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33. Discretionary power is not necessarily discriminatory which is a legislative policy, which
is given in R.K. Dalmiah v Tendolkar.30 It is clear from the statute that the discretion is
vested in the govt. or higher authority as distinguished from a minor official.31 Here accusing
that §66 A gives absolute discretion to a single member is unreasonable when the govt. has
taken the decision as per the procedure established by law. A discretionary power is not
necessarily a discriminatory power and abuse of power is not easily to be assumed.32 Further
presumption may also be drawn that the statutory authority would not be exercised
arbitrarily.33 This proves that 66 A, IT Act is not arbitrary and does not give unfettered
power to the executive.

A.2. It is not violative of 19(1) (a), Indian Const.

34. There cannot be anything such as absolute or uncontrolled liberty wholly freed from
restrains, that would lead to anarchy and disorder. The constitution attempts to declare the
rights of people in sticking a balance between individual and social control. Art. 19 gives a
list of individual liberties, prescribes in various clauses the restrains that may be placed upon
them by law so that they do not conflict with public welfare or general morality.34

A.2.1. 66 A, IT Act is reasonable and falls under the ambit of 19(2), Indian Const.

35. Individual rights cannot be absolute in a welfare state, it has to be subservient to the
rights of public at large.35 In Santosh Singh v Delhi Administration,36 the test of
reasonableness of restriction can be considered in each case as in the light of nature of rights
infringed. There can be no abstract standard of reasonableness and our constitution provides
precise general guidance if the legislation incidentally affects a citizen’s right under Art.
19(1), it will not introduce any validity of legislation.37 In determining the reasonableness of
a law challenged as an unreasonable restriction upon a fundamental right guaranteed under
art. 19, the court has to balance the need of social control and the magnitude of evil which is
the purpose of the restriction to curve or eliminate so that the freedom guaranteed to the

30
AIR 1957 SC 532
31
Matajog v Bhari, AIR 1955 SC 44(48)
32
Naraindas v State of Madhya Pradesh, AIR 1974 SC 1232
33
People’s Union Of Civil Liberties v Union Of India, AIR 2004 SC 1442
34
A.K. Gopalan v State of Madras, 1950 AIR 27
35
Confederation of Ex Serviceman Association v Union Of India, AIR 2006 SC 2945.
36
AIR 1973 SC 1091.
37
Akashi Padhan v State Of Orissa, AIR 1963 SC 1047.

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individual subserves the larger public interest.38 Thus it proves that §66 A , IT Act falls
within the ambit of 19(2) and is not violative of art. 19(1) (a) , Indian Const.

A.2.2. 66 A, IT Act has a ‘direct and proximate nexus’ to its object.

36. The limitations imposed in the interest of public order should be one which has a
proximate connection or approximate and reasonable connection.39 It must be rationally
proximate and direct to be called reasonable.40

A.3. 66 A, IT Act does not violate Art. 21, Indian Const.

37. §66 A, IT Act is not violative of Art. 21, Indian Const. because, to avoid a greater harm,
smaller harm can be caused. Where individual liberty comes into conflict with an interest of
the security of the state or public order, the liberty of the individual must give way to the
larger interest of the nation.41 To maintain public order, Sec 66 A, IT Act is mandatory. The
purpose of the criminal law is to permit everyone to go about daily lives without fear of harm
to person or property. And it is in the interest of everyone that serious crime should be
effectively investigated and prosecuted. There must be fairness on all sides.42

B. §69 A, IT Act is not violative of Art. 14, 19 & 21, Indian Const.

38. The right to speech is guaranteed under Art. 19(1) (a), Indian Const. The freedom of
Speech and Expression does not confer an absolute right to speak or publish without
responsibility whatever one may choose or an unrestricted or unbridled licence that gives
immunity for every possible use of language and does not prevent punishments for those who
abuse this freedom.43 Sec 69 A, IT Act specifies the grounds on which the freedom of
expression may be restricted. This statute has enabled the legislature to impose reasonable
restrictions on the right to free speech ‘in the interest of’ or ‘in relation to’ the following. The
interest of sovereignty and integrity of India, defense of India, security of the state, friendly
relations with foreign state or public order or for preventing incitement to the commission of
any cognisable offence.

B.1. Sovereignty and Integrity of State

38
Harakchand v Union Of India, AIR 1970 SC 1453.
39
Aunachala Nadar M.C.V.S. v State of Madras, AIR 1950 SC 300.
40
O.K. Ghosh v E.X. Joseph, AIR 1963 SC 812
41
Sunil Fulchand Shah v. Union of India, AIR 2000 SC 1023
42
Attorney General’s Reference, (No. 3 of 199) (2001) 1 All ER 577; R v. Sargent, (2002) 1 All ER 161 (HL).
See also Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edition, pp. 762-63
43
Romesh Thappar v State of Madras, AIR 1950 SC 124

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39. It is legitimate for the parliament under this clause to restrict the right of Free Speech if it
preaches secession of any part of territory of India from any union. §69 A , IT Act enables the
ministry to block any site or restrict the freedom of restriction if it is in violating fundamental
rights of another person where the constitution does not guarantee the right to ‘defame’.

B.2. Security of the State

40. Security of state may well be endangered by crimes of violence intend to overthrow the
govt., waging war. All utterance intended or calculated to have the above effect may properly
be restrained in the interests of the security of the state. In State of Bihar v Shailabala Devi,44
the law which made penal words or signs or visible representation which incited to or
encouraged or tendered to incite or encourage any offence of murder or any cognizable
offence involving violence was held by the SC to fall within Art. 19(2). The word ‘public
order’ is been added to the constitution after the first amendment in 1951 where Sec 69 A
draws a thin line between public order and freedom of speech and expression which enables
the citizens of this nation to understand that the restrictions placed by 69 A, IT Act is
necessary for the existence of this democracy, and for, peace and harmony and democracy, to
co-exist.

B.3. Friendly Relations with Foreign States

41. The state can impose reasonable restrictions in freedom of speech in interest of friendly
relations with the foreign states. This justification is obvious, unrestrained malicious
propaganda against foreign friendly states may jeo paradise the good relations between the
states. It may be pointed out that is a recognised principle of International Law that states in
their relations with other states are responsible for the acts committed by persons within their
jurisdiction. Hence, this restriction placed under 69 A, IT Act not only restricts the
defamatory words and links but also enhances the friendly relations with the foreign states.

B.4. Public Order

42. The expression public order is synonymous with public peace, safety and tranquillity.45
To illustrate, the state may in the interest of public order prohibit and punish the causing of
loud and raucous noise in the streets and public place with the means of sound amplifying
instruments. This illustration is very much similar to that of the restriction placed in 69 A, IT

44
AIR 1952 SC 329
45
Superintendent Central Prison v Ram Manohar Lohia, AIR 1960 SC 633

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Act where the ministry is empowered under the statute to disable the content in the site to
maintain the public order. Thus, a law punishing utterance made with deliberate intention to
hurt any class of person is invalid because it imposes on the right of free speech in the
interest of public order.46 It was held in Virendra v State of Punjab,47 the scope of permissible
restriction under this clause, the right of freedom of speech and expression. The law
impugned in this case was the Punjab Special Powers Act 1956. It provided for the
prohibition of printing or publication of any article, report, news item, letter or any other
material relating to ‘save Hindi allegation’. Taking this into consideration, this being a
reasonable restriction on the liberty of press. In Babulal Parate v State of Maharashtra,48 the
well known §124 CrPC 1973 was impugned on the grounds of it placing unreasonable
restriction on the right of freedom of speech and expression. Under this section, a magistrate
if he is of the opinion that there is sufficient ground for immediate prevention can by a
written order direct a person to abstain from certain acts if he considers that is reasonable.
This section does not confer any arbitrary power on the magistrate. A rule prohibiting strikes
would not be violative of freedom of speech and expression.49

B.5. Preventing the Incitement of any Cognizable Offence

43. The Prevention of Objectionable Matter Act 1976, in the ninth schedule, objectionable
matter has been defined as that which incited disaffection towards the govt or to commit any
offence or to interfere with the production, distribution or to commit any offence in the
essential commodities or seduction of any member of parliament, all these could not e
challenged on the ground of unreasonableness. The 42nd amendment of The Indian Const.
clearly states that nobody should exercise his freedom of speech and expression so as to
violate the fundamental duties.

B.6. § 69 A, IT Act is not Arbitrary

44. 69 A2 clearly says that the rules which are mentioned in the IT rules 2009 should be
followed for blocking any sites. There have been clear cut rules prescribed in the 2009 IT
rules for a normal order and for an emergency order separately. It gives discretion to the
higher member of the authority and not to the lower member of the authority. In Amin v

46
Ramji Lal Modi v State of Uttar Pradesh, AIR 1957 SC 620
47
AIR 1957 SC 896
48
AIR 1961 SC 884
49
Radhe Shyam Sharma v Postmaster General, AIR 1965 SC 311

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State,50 the state cannot determine the constitutionality merely on doubtful cases. It has been
clearly explained by the SC in Narayandas Indurkhya v State of Madhya Pradesh,51 A mere
possibility that a power may b misused or abused cannot per se induce the court to deny the
exercise of power.

B.7. § 69 A, IT Act is not Unguided.

45. § 69 A3, IT Act clearly says that the intermediary who fails to comply with the discretion
issued under sub section 1 shall be imprisoned for a term which may extend to 7 years and
also liable for fine. This clearly says that the intermediary is liable to be fined and imprisoned
only in the case if he fails to comply with the rules prescribed for an intermediary. So, this
section is not unguided or extensive and completely within the provisions of the Indian
Const.

50
AIR 1958 293
51
AIR 1974 SCC 1232

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PRAYER

Wherefore, in the lights of the facts presented, issues raised, arguments advanced, authority

cited, it is humbly prayed that this Hon’ble court may be pleased to hold, adjudge and declare

that:

1. The G.O. dated 14.07.2210 is Constitutionally Valid.

2. The Criminal Proceedings initiated against Mustapha Mond and Big Brothers

Enterprises is Valid.

3. The G.O. dated 22.10.2210 is Constitutionally Valid.

4. Sections 66A and 69A of the Information Technology Act are Constitutionally Valid.

And pass any other order it may deem fit in the interest of justice.

All of which is humbly prayed,

Counsel for the Respondent

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Written Submission on behalf of the Respondent