879 - Pratik Bakshi - Petitioner

NUALS INTERNAL MOOT COURT COMPETITION 2014
Memorial for the Petitioners Page 1

Participant Code: ____________

IN THE
HONOURABLE SUPREME COURT OF CIDIA
2014

Maya & Anr. v. Union of Cidia & Anr.
WITH
Jan Mukthi Andolan v. Union of Cidia
&
Ms. Salma v. News Broadcasters Association of Cidia

Writ Petition under Article 32 of the Constitution of Cidia

MEMORIAL FOR THE PETITIONERS


List of Abbreviations
Index of Authorities
Book and Commentaries
Cases Cited
Acts, Rules and Instructions
Reports of Committees
Dictionaries
Statement of Jurisdictions
Statement of Facts
Questions Presented
Summary of Pleadings
Pleadings and Authorities
Prayer

TABLE OF CONTENTS


1. &: And
2. A.P. : Andhra Pradesh
3. AIR: All India Reporter
4. Art. : Article
5. Co. : Company
6. Corp. : Corporation
7. Cri. : Criminal
8. Cri. L.J./ Cr L.J. : Criminal Law Journal
9. Ed./ Edn. : Edition
10. HC : High Court
11. Honble: Honourable
12. Ltd.: Limited
13. M. P. : Madhya Pradesh
14. No. : Number
15. Ors. : Others
16. p. : Page
17. pp. : Pages
18. Pvt. : Private
19. SC: Supreme Court
20. SCC: Supreme Court Cases
21. SCR: Supreme Court Reports
22. SEBI: Securities Exchange Board of India
23. Sec. : Section
24. Supp. : Supplementary
25. T.N: Tamil Nadu
26. U.P. : Uttar Pradesh
27. UK: United Kingdom
28. v. : Versus
29. Vol. : Volume

LIST OF ABBREVIATIONS


BOOKS AND COMMENTARIES

1. Chaudharis Law of Writs, Fifth Edition 2003, Law Publishers (India) Private
Limited.
2. Dr. J. N. Pandey, Constitutional Law of India, Forty Fourth Edition 2007, Central
Law Agency.
3. Durga Das Basu, Law of the Press, (4
th
Ed. 2002), Wadhwa Nagpur.
4. Facets of Media Law, Second Edition 2013, Madhavia Goradia Divan, Eastern Book
Company.
5. G Ramachandran, Law of Writs, Vol I & II, Sixth Edition, Eastern Book Company.
6. H. M. Seervai, Constitutional Law of India, Vol 1 & 2, Fourth Edition, Reprint 2006,
Universal Law Publishing Company.
7. M P Jain, Indian Constitutional Law, Fifth Edition, Reprint 2003, Wadhwa &
Company Nagpur.
8. P M Bakshi, The Constitution of India, Ninth Edition 2009, Universal Law Publishing
Company.
9. V N Shukla, Constitution of India, Tenth Edition, Reprint 2003, Eastern Book
Company.

CASES CITED

1. A.K. Roy v. Union of India
2. Alarmelu Mangai v. The Secretary to the Government of Tamil Nadu, Public
Department and Ors.
3. Anukul Chandra Pradhan v. Union of India
4. Bandu Mukti Morcha v. Union of India
5. Bodhisattwa Gautam v. Subhra Chakraborty
6. Federal Bank Ltd. v. Sagar Thomas
INDEX OF AUTHORITIES


7. Govind v. State of M.P.
8. Kharak Singh v. State of U.P.
9. Maria Monica Susairaj v. State of Maharashtra
10. PUCL v. Union of India & Anr.
11. Rahul Mehra & Anr. v. Union of India
12. R. Rajagopal v. State of T.N.
13. Sahara India Real Estate Corp. Ltd. v. SEBI
14. State of Maharashtra v. Madhurkar Narayan Mardikar
15. Subhash Kumar v. State of Bihar
16. S. Khushboo v. Kanniammal

ACTS, RULES & INSTRUCTIONS

1. Code of Criminal Procedure, 1973
2. Constitution of India
3. Information Technology Act, 2000
4. Information Technology (Amendment) Act, 2008
5. Prasar Bharti (Broadcasting Corporation of India) Act, 1990
6. Supreme Court Rules, 1966
7. Supreme Court Procedure and Practice Information Handbook

INTERNATIONAL CONVENTIONS

1. Universal Declaration of Human Rights.
2. International Covenant on Cultural, Civil and Political Rights, 1966.

DICTIONARY

1. Blacks Law Dictionary, (8
th
ed., 2004)


The Petitioners, Maya & Anr. hereby submit to the jurisdiction of the Honourable Supreme
Court of Cidia under Article 32 of the Constitution of Cidia. The Honourable Court has the
jurisdiction to adjudicate the present case.
Jan Mukthi Andolan hereby submits to the jurisdiction of the Honourable Supreme Court of
Cidia under Article 32 of the Constitution of Cidia. The Honourable Court has the
jurisdiction to adjudicate the present case.
Ms. Salma hereby submits to the jurisdiction of the Honourable Supreme Court of Cidia
under Article 32 of The Constitution of Cidia. The Honourable Court has the jurisdiction to
adjudicate the present case.

STATEMENT OF JURISDICTION


1. Crombay is the capital city of Saurashtra, a state in the Union of Cidia. With the
mushrooming of immoral activities within Crombay, the State of Saurashtra
appointed a Committee to conduct an enquiry into the reasons behind the sudden
increase in the immoral activities within the city. The findings of the Committee
showcased that a large number of unlicensed bars were operating illegally and without
complying with the rules framed under section 33 of the Crombay Police Act, 1951,
which is similar to the Bombay Police Act, 1951. It further stated that many young
women were trapped into human trafficking and prostitution under the semblance of
dance bars.
2. In order to confront the menace, the Saurashtra Legislative Assembly passed the
Crombay Police (Amendment) Act 2014, inserting sections 33A and 33B in the
Crombay Police Act, 1951, which empowered the police to take steps for the closure
of dance bars within the state of Saurashtra, with a view to prevent women from
falling prey to sex rackets. The new law did not provide any alternative source of
livelihood to women who were employed in such dance bars, and so as reported by a
newspaper daily named Saurashtra Patrika, nearly twenty thousand women within
Crombay itself lost their means of livelihood, of which nearly seventy-five percent
were the sole bread winners for the families.
3. On 10
th
January 2014, a news channel of the Broadcasting Corporation of Cidia
carried a news report containing a two minutes video of two dancers named Maya and
Mohini dancing and soliciting their clients in full zeal and vigour. The news item did
not reveal the names of the two women but the visuals were clear enough to reveal the
identities of the two women. On 13 January 2014, Maya and Mohini moved the
Supreme Court of Cidia under Article 32 of The Constitution of Cidia alleging that
the Broadcasting Corporation of India has through the visuals infringed their Right to
Privacy. They claimed compensation from the Union of Cidia and apology by way of
scroll continuously for two days in all channels of Broadcasting Corporation fo Cidia.
4. Ms. Salma, who had tweeted her discontent in the governmental move on banning
dance bars was arrested by the Crombay Police alleging her of committing an offence
under section 66A of the Information Technology Act, 2000. The arrest attracted deep
public furore and the media projected it as an illustrative episode of the breakdown of
STATEMENT OF FACTS


rule of law in the State of Saurashtra. At the backdrop of this sentimental outcry, the
Crombay Metropolitan Magistrate released Salma on bail. The Crombay Metropolitan
Magistrate took cognizance of the offence and the trial commenced after the
completion of investigation by police in accordance of the Information Technology
Act, 2000 and the Code of Criminal Procedure, 2000.
5. In the light of these developments, Jan Mukthi Andolan, an NGO filed a Petition
under Article 32 of the Constitution of Cidia challenging the constitutional validity of
Section 66A of the Information Technology Act, 2000.
6. In the meanwhile, Ms. Salma moved a Writ Petition in The Supreme Court of Cidia
alleging that the fairness of her trial has been prejudiced by the unusual participation
of the media. She prayed for the issuance of a postponement order temporarily
gagging the media from interfering in the trial and reporting on the case.



1. Whether the writ petition filed under Article 32 of the Constitution of Cidia
maintainable before this Honourable Court and whether the redressal asked by
the petitioners appropriate?
1.1. Whether right to privacy is a fundamental right?
1.2. Whether the right to privacy of the petitioners has been infringed?
1.3. Whether the petition is maintainable?
1.4.Whether the redressal asked by the petitioner appropriate?

2. Whether Section 66(A) of IT Act is in violation with Article 14, Article 19
&Article 21 of the Constitution of Cidia?
2.1. Whether the petitioner has requisite locus standi to invoke the jurisdiction of this
Honourable Court?
2.2.Whether Section 66A of Information Technology Act 2000 is unconstitutional?

3. Whether the petition filed by Ms. Salma before the Honorable Supreme Court of
Cidia maintainable?
3.1. Whether the petition is maintainable against a private body?
3.2.Whether the petitioners fundamental right of right to fair trial has been
infringed, and whether the media can be gagged temporarily from covering the
trial of Ms. Salma?

QUESTIONS PRESENTED


1. The petition filed under Article 32 of the Constitution of Cidia is maintainable
and the petitioners are eligible to get compensation

The petition has been filed under Article 32 as there is a violation fundamental right
under Article 21. The Broadcasting Corporation of Cidia is liable to pay
compensation as there has been a dereliction of duty by the leading to the
infringement of fundamental right of the petitioners.

2. The Section 66A of the Information Technology Act, 2000 violates fundamental
rights under the Constitution of Cidia and is thus unconstitutional.

Section 66A of the Information Technology Act, 2000 is violates the fundamental
rights under Article 14, 19(1)(a), 21 of the Constitution of Cidia. Thus Section 66A of
the Information Technology Act, 2000 is unconstitutional. .

3 The petition filed by Ms Salma is constitutional
The writ petition filed by Ms Salma is constitutional as News Broadcasters
Association of Cidia is a state under Article 12 of the Constitution of Cidia and there
is a violation of Right to fair trial under Article 21 of the Constitution of Cidia.

SUMMARY OF PLEADINGS


PLEADINGS AND AUTHORITIES

THE FUNDAMENTAL RIGHT OF THE PETITIONERS HAS BEEN INFRINGED,
SO THE CASE IS MAINTAINABLE AND THE REDRESSAL ASKED BY THE
PETIOTIONERS IS APPROPRIATE.

2.1 Right to Privacy is a fundamental right.

It is submitted at the outset that the question of whether an individuals right to privacy
is his fundamental right or not and the maintainability of the petition are inseparable and
interdependent. The answer to the former question will determine the fate of the latter in one
sense. Hence, the petition seeks to address both questions simultaneously.
Firstly, on the point of whether an individuals right to privacy is his fundamental
right or not, the following important submissions are made. The facts reveal that the
Constitution of Cidia is identical to that of India and therefore, the arrangement of Articles, as
a corollary must be identical.
It is true that Cidia, at present does not have an independent statute protecting privacy.
But down the years, arguments from eminent jurists have made the right to privacy to be
considered as a deemed right under the constitution. Even Lord Denning had argued
forcefully for the recognition of right to privacy in English law. He said, English law
should recognise a right to privacy. Any infringement of it should give a cause of action for
damages or an injunction as the case may require. It should also recognise a right of
confidence for all correspondence and communications which expressly or impliedly are
given in confidence. None of these rights is absolute. Each is subject to exceptions. These
exceptions are to be allowed whenever the public interest in openness outweighs the public
interest in privacy or confidentiality. In every instance it is a balancing exercise for the
Courts. As each case is decided, it will form a precedent for others. So a body of case-law
will be established.
1
Moreover several judgements in the Supreme Court of India have
understood right to privacy in the context of two fundamental rights: the right to freedom

1
Lord Denning, What Next in the Law


under Article 19, and the right to life under Article 21 of the Constitution. Further, Article
141 of the Constitution of India states that the law declared by the Supreme Court shall be
binding on all courts within the territory of India. Therefore, all the judgments and decisions
given by the Supreme Court have become the law of the land and are to be strictly followed.
It was first in the year 1963 that the Supreme Court in the case of Kharak Singh v. State
of U.P
2
had the chance to be concerned about the ambit and scope of the right to privacy. In a
minority judgment in this case, Justice Subba Rao held that the right to personal liberty takes
is not only a right to be free from restrictions placed on his movements, but also free from
encroachments on his private life. It is true our Constitution does not expressly declare a right
to privacy as a fundamental right but the said right is an essential ingredient of personal
liberty.
Nearly a decade later, Justice Mathew, in the case of Govind v. State of M.P.
3
, while
analyzing the right to privacy as an ingredient of Article 21, observed: There can be no
doubt that privacy-dignity claims deserve to be examined with case and to be denied only
when an important countervailing interest is shown to be superior. [...] If the Court does
find that a claimed right is entitled to protection as a fundamental privacy right, a law
infringing it must satisfy the compelling state interest test. Then the question would be
whether a state interest is of such paramount importance as would justify an infringement of
the right. [...] Privacy primarily concerns the individual. It therefore relates to and overlaps
with the concept of liberty. The most serious advocate of privacy must confess that there are
serious problems of defining the essence and scope of right. Privacy interest in autonomy
must also be placed in the context of other rights and values.
The scope and ambit of the right of privacy or right to be left alone came up for
consideration before the Supreme Court in R. Rajagopal v. State of T.N.
4
during 1994. In this
case the right of privacy of a condemned prisoner was in issue. One Auto Shankar, a
condemned prisoner, wrote his autobiography while confined in jail and handed it over to his
wife for being delivered to an advocate to ensure its publication in a certain magazine edited,
printed and published by the petitioner. This autobiography allegedly set out close nexus
between the prisoner and several officers including those belonging to IAS and IPS some of
whom were indeed his partners in several crimes. The publication of this autobiography was

2
AIR 1963 SC 1295: (1963) 2 Cri LJ 329
3
(1975) 2 SCC 148: 1975 SCC (Cri) 468
4
(1994) 6 SCC 632


restrained in more than one manner. It was on these facts that the petitioner challenged the
restrictions imposed on the publication before the Supreme Court.
B.P. Jeevan Reddy, J. on an interpretation of the relevant articles of the Constitution, in
the context of an analysis of case-law from other common law countries like UK and USA,
held that though the right to privacy is not enumerated as a fundamental right it can certainly
be inferred from Article 21 of the Constitution. The court said: The right to privacy is
implicit in the right to life and guaranteed to the citizens of this country by Article 21. It is a
right to be left alone. A citizen has a right to safeguard the privacy himself, his family,
marriage, procreation, motherhood, child-bearing and education, among other matters. No
one can publish anything concerning the above matter without his consent, whether truthful
or otherwise and whether laudatory or critical. If he does so, he would be liable in an action
for damages. The position may, however be different if a person voluntarily thrusts himself
into controversy or voluntarily invites or raises a controversy.
Article 17 of the United Nations International Covenant on Civil and Political Rights
(UN-ICCPR) states that no one shall be subjected to arbitrary or unlawful interference with
his privacy, family, home or correspondence, nor to unlawful attacks. Article 12 of
Universal Declaration of Human Rights (UDHR) (1948) defines Right to Privacy as No
one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence not to attack upon his honour and reputation. Everyone has the right to
protection of law against such interference or attack. As Cidia is a party to both, UN-ICCPR
and UDHR, it is humbly submitted that Cidia is bound by the laws put by these covenant and
declaration.
Thus, in the light of the above, it is respectfully submitted before this Honourable Court
that right to privacy is implicit in the right to life and guaranteed to the citizens of Cidia by
Article 21 of the Constitution, and so, should be considered as a fundamental rights of all
Cidians.



1.2 The petitioners right to privacy which is a fundamental right has been
infringed.
The Honourable Supreme Court of India has held in the case of Peoples Union For Civil
Liberties (PUCL) Vs. Union of India and Anr.
5
, that the right to privacy is allied to the
fundamental rights under article 19 and 21 of the Constitution of India The right to privacy
by itself has not been identified under the Constitution. As a concept it may be too broad and
moralistic to define it judicially. Whether right to privacy can be claimed or has been
infringed in a given case would depend on the facts of the said case.
It is submitted before this Honourable Court that the video footage violates the clause
6(2) of The Norms of Journalistic Conduct, Press Council of India, which states that While
reporting crime involving rape, abduction or kidnap of women/females or sexual assault on
children, or raising doubts and questions touching the chastity, personal character and privacy
of women, the names, photographs of the victims or other particulars leading to their identity
shall not be published. Here the Broadcasting Corporation of Cidia has certainly not acted in
the accordance of the Journalistic Conduct as laid down by the Press Council of India.
It would also be pertinent to state the judgement of the Court in the case of State of
Maharashtra v. Madhukar Narayan Mardikar
6
. In the instant case, the Honourable Supreme
Court of India had stated that even a woman of easy virtue is entitled to privacy and no one
can invade her privacy as and when he likes. Further, in the case of Francis Coralie Mullin
v. Administrators
7
, Justice P.N. Bhagwati aptly stated that right to life includes the right to
live with human dignity and all that goes along with it, the bare necessities of life nutrition,
clothing and shelter and facilities for reading, writing and expressing oneself in diverse
forms, freely moving about and mixing and commingling with fellow human beings [...]
Every act which offends against or impairs human dignity would constitute deprivation pro
tanto of this right to live and it would have to be in accordance with reasonable, fair and just
procedure established by law which stands the test of other fundamental rights. Here the
petitioners right to dignity has been clearly violated.
On the basis of the aforesaid judicial rulings, it can be derived that right to privacy
includes living with dignity, apart from possessing the right of keeping certain things/acts

5
AIR 1997 SC 568.
6
(1991) 1 SCC 57: AIR 1991 SC 207,211.
7
SC 608 1981


private. As already submitted in this petition, the judgement given in the case of Peoples
Union for Civil Liberties v. Union of India
8
, lays down that cases on the context of right to
privacy should be decided on the merits of facts. In the instant case, a channel of the
Broadcasting Corporation of India shows a two-minute video of the petitioners in a news
item. The video footage shows the petitioners soliciting their clients in full zeal and vigour,
while they were earlier employed in the dance bars. Although the video footage did not
contain the names of the petitioners, it was clear enough to reveal their faces. Therefore, it is
humbly submitted that the right to privacy of the petitioners has been infringed upon by the
respondents. Moreover, the fact that the petitioners were professional bar dancers and
solicited a number of men, does not give the respondents, the liberty to enter into their private
space. The respondent, by publishing the video footage has clearly entered into the private
space of the petitioners, which will affect their dignity in a negative way. It is therefore
humbly submitted before this Honourable Court that the right to privacy, which is a
fundamental right of the petitioners has been infringed by the respondents.

1.3.The petitioners have the required locus standi to invoke the jurisdiction of this
Honble Court and the said petition is maintainable.
Locus Standi in Latin refers to a place of standing and it is defined as the right to
bring an action or to be heard in a given forum.
9

Article 32 of the Constitution of India guarantees a remedy for the violation of any
right that come under Part III, namely Fundamental Rights. Under Article 32 it has been
guaranteed by the Constitution of India that any person who complains of infringement of
any fundamental rights is at the liberty to move to The Honourable Supreme Court.
Therefore, it is humbly submitted before this Honourable Court that the petitioners in the
instant case can approach this Honourable forum. The petitioners have the required locus
standi to approach this Court for relief under Article 32 in light that his Fundamental Right to
Privacy has been violated.

8
AIR 1997 SC 568.
9
Black's Law Dictionary, (8th ed. 2004) at p. 952.


The Honourable Supreme Court of India has the jurisdiction to adjudicate the said
petition for issuance of appropriate direction, order, or a writ including the writ of mandamus
to check and end the invasion of privacy of the petitioner, through the broadcasting of the
video footage and apologize for the same.
In Bandu Mukti Morcha v. Union of India
10
the Honourable Supreme Court broadened
the scope and ambit of Article 32 .The constitution does not merely confer power on this
court to order, direct a writ to enforce the fundamental rights, it also lays a constitutional
obligation on the court to protect the fundamental rights of the people for that purpose the
court has all the powers to forge new remedies and strategies to enforce the fundamental
rights.
Hence, it is humbly submitted that this petition is maintainable and the petitioner has
the requisite locus standi to approach this Honourable Court.

1.4. The redressal asked by the Petitioners is appropriate
The petitioners are praying to the Court to direct the Union of Cidia to pay them
compensation and also post an apology by way of scroll continuously for two days in all
channels of Broadcasting Corporation of Cidia.
In the case of Alarmelu Mangai v. The Secretary to the Government of Tamil Nadu,
Public Department and Ors.
11
, it is clearly mentioned that compensation can be claimed if a
persons right to privacy has been violated. In respect of deprivation of the constitutional
rights guaranteed under Part III of the Constitution, the position is well settled that adequate
compensation can be awarded by the court for such violation by way of redress in
proceedings under Article 32 and 226 of the Constitution.
12

Therefore, there should be no legal difficulty in ordering compensation to the petitioners
for infringement of their right to privacy and the ordeal of public humiliation meted out to her
by the action of respondents. Though the public humiliation and mental agony gone by the
petitioners can never be compensated in terms of money, yet the respondents cannot be
allowed to go scot-fee for their constitutional infringement of the right of the petitioners and

10
AIR 1984 SC 802.
11
W.P.NO.14781 of 2004
12
Rudul Sah v. State of Bihar; Nilabati Behera v. State of Orissa; Consumer Education and Research Centre v.
Union of India


for having made public humiliation of the petitioners. Also, demand of an apology for two
days by the petitioners could not be considered to be in excess of the harm caused by the
video in any way. The petitioners wish to get some sort of relief by the apology of the news
channel in terms of the damage caused to their image due to the public display of their video
footage.
Therefore, it is humbly submitted that the Union of India should be directed to pay the
petitioners with the compensation asked for. Further, Broadcasting Corporation of Cidia
should post an apology in all of their channels in scroll, continuously for two days, so that the
petitioners get some sort of relief, and the Broadcasting Corporation of Cidia deters to do any
act of similar nature in the future.

2.1 The petitioner has the locus standi to invoke the jurisdiction of the Honble Court
and the said petition is maintainable
Article 32 of the Constitution of Cidia guarantees a remedy for any violation of right that
falls under Part III of the Constitution. Part III of the Constitution of Cidia deals with
fundamental rights of the citizens of Cidia.
The petitioners, in this case humbly submit that the Section 66A of the Information
Technology Act 2000 is in direct contravention of Articles 14, 19(1)(a) and Article 21 of the
Constitution of Cidia. The petitioner has filed this writ petition under public interest and the
requests the Court to kindly adjudicate the matter.
It would be pertinent to submit the case of Subhash Kumar v. State of Bihar
13
, in which
the Supreme Court held that recourse to proceeding under Article 32 of the Constitution
should be taken person genuinely interested in the protection of society on behalf of the
community.
The Honble Supreme Court of India has through the weapon of Public Interest Litigation
(hereinafter referred to as PIL) liberalized the requirement for the locus standi in a
particular case with the sole intention that the most genuine and serious concerns could be
addressed which would benefit the public at large. A petition can be filed under Article 32 to
challenge the validity of a law with reference to provisions other than those involving
fundamental rights provided it inevitably causes a restriction on the enjoyment of

13
AIR 1991 SC 420


fundamental rights
14
. In the light of the recent happenings in which a woman was taken into
custody because she tweeted her discontent towards government action on the banning of the
dance bars by calling it a hasty and unmindful action the petitioner seek re-examination of the
Section 66(A) on the grounds of it infringing upon the fundamental rights of its citizens.
Hence it is humbly submitted to the Honourable court that the said petition is
maintainable and the petitioner has the requisite locus standi to approach the Honble court.

2.2 Section 66A of the Information Technology Act is unconstitutional as it violates
Article 14, 19(1)(a), 21 of the Constitution of India.

This petition has been filed before this Honourable Court to challenge the
constitutional validity of Section 66A of the Information Technology Act 2000. The
petitioner, Jan Mukhti Andolan, an NGO, based in Crombay, filed this petition in the light of
the developments of the trial of Ms. Salma, a financial consultant at a private firm in the city
of Crombay. Ms. Salma was arrested by Crombay Police for tweeting her discontent on the
governmental move of banning dance bars. There have been many other cases of such arrest
prior to the case of Ms. Salma, and so this writ petition is filed in public interest to challenge
the constitutional validity of Section 66A of the Information Technology Act 2000.
It is humbly submitted that the phraseology of Section 66A is so wide, vague and
incapable of being judged on objective standards that it is susceptible to wanton abuse.
Further, the terms offensive, menacing, annoyance, inconvenience, danger,
obstruction and insult have not been defined in the IT Act, General Clauses Act or any
other legislation. It has been held in the case of A K Roy v. Union of India
15
that the
impossibility of framing a definition with mathematical precision does not justify the use of
vague expressions. In the said case, a provision of the National Security Act was held to be
violative(due to being capable of wanton abuse) of the fundamental right to life and personal
liberty guaranteed under Article 21 of the Constitution. The Petitioner says that the dicta of
the Court is squarely attracted to the present case.

14
D.A.V College v. State of Punjab, 1971 2 SCC 269
15
1982 1 SCC 271


Citing the arrest of Ms. Salma made under Section 66A, the Petitioner submits that the
wide legislative language of the Section severely discourages citizens from exercising their
Constitutionally protected right to free speech for fear of frivolous prosecution (the chilling
effect), which violates the Freedom of Speech and Expression guaranteed under Article
19(1)(a) of the Constitution. Furthermore, whether or not Section 66A meets the test of
reasonableness laid down under Article 19(2), it is nonetheless violative of Articles 14
(Right to Equality) and 21 of the Constitution.
Additionally, in S Khushboo v. Kanniammal
16
, the Supreme Court had said that in
cases involving Freedom of Speech and Expression, the proper course for Magistrates is to
use their statutory powers to direct an investigation into the allegations before taking
cognizance of the offences alleged i.e. an inquiry under Section 202 of the Criminal
Procedure Code (CrPC) is a must before issuance of process.
The vagueness of language invites blatant transgressions of Fundamental Rights. This
petition was filed before the Supreme Court in public interest, based on the lack of a
regulatory framework for the effective investigation of cyber crimes, coupled with a lack of
awareness regarding cyber crimes on the part of police authorities. In the absence of proper
procedures for investigation and safeguards, citizens are vulnerable to police harassment.
There is also no uniformity in cyber security control and enforcement practices. While the IT
Act has provided that any police officer of the rank of sub-inspector can investigate cyber
offences, there are no provisions for training or knowledge for such officers in order to
properly equip them to handle cyber crimes. The petitioner thus prays that the Supreme Court
formulate, and also direct the respondents to formulate an appropriate regulatory framework
of Rules, regulations and guidelines for the effective investigation of cyber crimes, keeping in
mind the Fundamental Rights of citizens.
A significant proportion of the offences in Section 66A do not even fall within the
permissible categories of restriction in Article 19(2) of the Constitution. Further, the
Intermediaries Guidelines Rules provide for vague and undefined categories that require legal
determinations and effective censorship by private online service providers.
It will be pertinent to mention that Sec. 66A does not contain just one offence, but
contains multiple offences which may be applied to any speech or content uploaded online. In

16
AIR 2010 SC 3196


as much as Sec. 66A lacks any coherence and structure as to the commission of a single
offence it does not contain any definitive ingredients of an offence which are specified in the
sub-sections.
It is submitted that the lack of coherence to tackle any particular offence is most
noticeable in Sec. 66A(b), which contains a list of grounds attracting the offence. It is
pertinent to mention that most of the phrases such as, annoyance or inconvenience are
vague, imprecise of definition and inchoate and do not contain any ingredients which can be
easily and uniformly applied. It is similarly relevant to highlight that even in respect of
phrases for which analogous criminal offences exist, there is no reference made to such
distinct sections. For instance, when Sec. 66A(b), states criminal intimidation it does not
make reference to Sec. 503 of the Indian Penal Code, 1860 which contains the offence of
criminal intimidation. The absence of such reference to similar provisions in a separate
enactment, absent a definition of the offence along with the conspicuous absence of any of
the ingredients for criminal intimidation creates a context ripe for arbitrary use abuse or
misuse of the law and may lead to a contrary interpretation of the offence of criminal
intimidation merely because it is carried online.
The offences under section 66A are not only undefined they are also broadly worded;
so much so that, even when the best construction is placed on them they result in a
duplication of offences which are contained under other existing penal laws which are
adequate to check the commission of crimes. The point to be noted here is that Section 66A
repeats existing offences without however, incorporating the legislative and judicially
evolved checks and balances guiding their interpretation to specific acts as also guiding
prosecutions, including the existence of ingredients of the offence warranting invoking the
law as well as the safeguards and exceptions which safeguard the liberties and fundamental
rights of persons alleged to have committed the crimes.
Thus, in the light of the above, it is respectfully submitted before this Honourable
Court that Section 66A of the Information Technology Act 2000 is unconstitutional, as it
violates the fundamental rights of citizens of Cidia, as laid down in the Constitution.



3.1. Writ Petition against a private body is maintainable.
It submitted in this Honourable Court that a writ petition against a private body can be
filed as regard to enforcement of fundamental right of an individual.
In the case of Bodhisattwa Gautam v Subhra Chakraborty
17
, it was stated that the
court can enforce fundamental rights against private bodies or individuals and can also award
compensation for violation of fundamental rights. In the case Peoples Union for Democratic
Rights v. Union of India
18
, it was held that some of the fundamental rights are enforceable not
only against the state but even against a private person.
It was held in the case of Rahul Mehra & Anr. v. Union of India
19
that: Governments
have ventured into the private arena and private bodies, likewise, have undertaken public
duties or public functions. There is a degree of overlap and the distinction is no longer clear-
cut or watertight. The law must be alive to these dynamics. Accordingly, the question of
maintainability of a writ petition must not be addressed from the standpoint of amenability.
[...] However, Courts have exercised restraint and they exercise these powers only in cases
which involve public law. Therefore, the ''litmus'' test for invoking the writ jurisdiction is
whether the act complained of is in the discharge of a public duty or a public function. It
matters little as to who discharges the public duty or performs the public function. And so
too, the source of the power to discharge or perform such duty or function. Whether the
person is empowered by statute or some governmental order or whether such person
arrogates to himself the power to perform a public function or discharge a public duty, is of
no consequence. What is to be seen is whether there is an infraction in the discharge of such
duty or function.
Ultimately, in Federal Bank Ltd. v. Sagar Thomas
20
, the Court held that a writ petition
can be maintainable against:
a) a private body discharging public duty or positive obligation of public nature; and
b) a person or a body under liability to discharge any function under any statute, to
compel it to perform such a statutory function.''

17
AIR 1996 SC 922
18
AIR 1982 SC 1305
19
(2005) 4 Comp. LJ 268 Del, 114 (2004) DLT 323
20
AIR 2003 SC 4325


Therefore, as we see that the News Broadcasters Association (NBA) of Cidia has had
been doing a public duty by helping the people get access to news and current affairs, this
case should be held maintainable. The fact that NBA is a private body, shall not immune it
from being the respondents in the present case. Hence, it is humbly submitted before this
Honourable Court that the present case is maintainable and should be taken into
consideration.

3.3 The petitioners fundamental right of right to free trial has been infringed, by
prejudice made by the media, and so the media should be temporarily gagged from
making coverage of the trial.
It is submitted before this Honourable Court that a fair trial would obviously mean a trial
before an impartial judge, a fair prosecutor and atmosphere of judicial claim. Fair trial means
a trial in which bias or prejudice for or against the accused, the witnesses or the cause which
is being tried is eliminated. Failure to accord fair hearing either to the accused to the
prosecution violates even minimum standards of due process of law.
Although it is said that a judge fit to be one is likely to be influenced consciously except
by what he sees or hears in Court and by what is judicially appropriate for his deliberations.
However, judges are also human and we know better than did our forbears how powerful is
the pull of the unconscious and how treacherous the rational process. While the ramparts of
reason have been found to be more fragile than the Age of Enlightenment had supposed, the
means for arousing passion and confusing judgement have been reinforced. And since judges,
however, stalwart, are human, the delicate task of administering justice ought not to be made
unduly difficult by irresponsible print.
21

Press reporting can generate unwarranted publicity and sensationalism. The journalists
undertaking of the system of administration of justice can be shallow and reporting can
incompetent, distorted or misguided. This has no service to the public interest. Being in the
spotlight of public censure can prevent a judge from taking an objective standing. A parallel
trial by the press may also influence the minds of those who may later be witnesses in the
case.

21
Frankfurter J of the US Supreme Court in Pennekamp v. Florida, 90 L ED 1295: 328 US 331 (1946).


In Anukul Chandra Pradhan v. Union of India
22
, arising out of the Hawala cases
involving public persons, the Apex Court observed that publicity ought not to affect the
essentials of affair trial, including the presumption of innocence.
In December 2012, the horrific gang rape in capital city, invited enormous public outrage.
For days, there were angry protests out on the streets and on television channels, the media
trials were organised. There was clearly a public interest in the trial and its outcome, apart
from bringing the perpetrators to justice, in knowing whether the State apparatus had failed
the victim. Magistrate trying the case passed an order under Section 327(3) CrPC, barring
public access to the trial.
In Maria Monica Susairaj v. State of Maharashtra
23
court commented on the danger of
media eroding the credibility of the courts by saying:
If the reports in the media are responsible for creation of a perception in large number of
people in the country that a particular person is guilty or he is innocent, and ultimately, when
the matter goes to the trial, if the result is opposed to the perceptions of people, generally,
they tend to believe that the Court was not fair.
In the recent case of Sahara India Real Estate Corporation Limited v. SEBI
24
, the
Supreme Court discussed on the matter. In its 56-page judgement, the bench, headed by Chief
Justice S.H. Kapadia, said that if publishing news related to a trial would create a real and
substantial risk of prejudice to the proper administration of justice or to the fairness of trial,
the court could grant a postponement order, temporarily gagging the media from reporting on
it. The judges wrote: Anyone, be he an accused or an aggrieved person, who genuinely
apprehends on the basis of the content of the publication and its effect, an infringement of
his/her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to
approach an appropriate writ court and seek an order of postponement of the offending
publication/broadcast or postponement of reporting of certain phases of the trial (including
identity of the victim or the witness or the complainant). The court could grant such
preventive relief after balancing the constitutional rights to a fair trial against freedom of
speech, said the bench, keeping in mind that such orders of postponement should be for
short duration. The principle underlying postponement orders is that it prevents possible
contempt, argued the court, adding that in rare cases, such as some murder trials, even fair
and accurate reporting of a trial could be prejudicial.

22
(1996) 6 SCC 354
23
2009 Cri LJ 2075 (Bom)
24
(2012) 10 SCC 603


In the light of the law enunciated hereinabove, anyone, be he an accused or an
aggrieved person, who genuinely apprehends on the basis of the content of the publication
and its effect, an infringement of his/ her rights under Article 21 to a fair trial and all that it
comprehends, would be entitled to approach an appropriate writ court and seek an order of
postponement of the offending publication/ broadcast or postponement of reporting of certain
phases of the trial (including identity of the victim or the witness or the complainant), and
that the court may grant such preventive relief, on a balancing of the right to a fair trial and
Article 19(1)(a) rights, bearing in mind the abovementioned principles of necessity and
proportionality and keeping in mind that such orders of postponement should be for short
duration and should be applied only in cases of real and substantial risk of prejudice to the
proper administration of justice or to the fairness of trial. Such neutralizing device (balancing
test) would not be an unreasonable restriction and on the contrary would fall within the
proper constitutional framework.
Hence, it is humbly submitted before this Honourable Court to issue orders as it may
seem fit to gag the media from temporarily interfering in the trial and reporting in the case.



PRAYER AND CONCLUSION

Wherefore, in the light of the facts of the case, arguments advanced and authorities
cited, it is submitted that the Honble Supreme Court of Cidia may be pleased to adjudge and
declare that:

1. That there has been an infringement of Right to Privacy and that a compensation be
given along with an apology.
2. That Section 66A of Information Technology Act, 2000 is unconstitutional
3. That there has been a violation of Right to fair trial under Article 21 of the
Constitution of Cidia and that a postponement order be issued

879 - Pratik Bakshi - Petitioner

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