ITM Moot Court 2010

ITM MOOT COURT COMPETITION, 2017
SCHOOL OF LAW, ITM UNIVERSITY

MOOT COURT COMPETITION,2017
BEFORE THE HON’BLE SUPREME COURT OF INDIA
SUDARSHAN VENTURES AND OTHERS………………….PETITIONER
VERSUS
UNION OF INDIA AND OTHERS………………………RESPONDENT
WRIT BEFORE THE SUPREME COURT OF INDIA

UNDER ARTICLES 32 AND 139A OF THE CONSTITUTION
Memorial on behalf of respondent
(1)
TABLE OF CONTENTS
ABBREVIATIONS………………………………………………3
INDEX OF AUTHORITIES………………………………….....4-5
STATEMENT OF JURISDICTION………………………........6
STATEMENT OF FACTS….………………………………........7-9
STATEMENT OF ISSUES…………………………….................10
SUMMARY OF PLEADINGS……………….……………...........11
ARGUMENT ADVANCED…………………………………….....12-25
PRAYER……………...……..…………............................................26
(2)
LIST OF ABBREVIATIONS
SC Supreme Court
HC High Court
SCC Supreme Court Cases
SCR Supreme Court Reports
UOI Union of India
AIR All India Reporter

I.T Information Technology
Hon’ble Honourable
Co. Company
Ltd Limited
Edn Edition
& And
Pg Page
U.S United States
i.e That is
v. Versus
Anr Another
Ors Others
F Fact
Vol Volume
(3)
INDEX OF AUTHORITIES
STATUES:
Indian Constituion
Indian Penal Code, 1860
Code of Criminal Procedure, 1973
Information Technology(amendment) Act,2008
BOOKS:
Indian Constitutional Law (M.P Jain)
Textbook on Indian Penal Code (K.D Gaur)
Textbook on Criminal Procedure (R.V Kelkar’s)
CyberCrimes (Talat Fatima)
WEBSITES:
www.scconline.in
www.indiankanoon.com
www.legalservice.in
CASE LAWS:
Regina v. Liverpool Corporation
Raj Kapoor and others v. State and others
Reno v. American Civil Liberties Union
Rajasthan Pradesh V.S. Sardarshahar and Anr. V. Union of India (UOI) and Ors
R v. Stanley
Miller v. California
(4)
Ranjit D Udeshi v. State of Maharshtra
Uttam Singh v. State
Dunlop v. U.S
Maneka Gandhi v. Union of India
Francis Coralie Mullin v. Union of Territory of Delhi
Chandra Raja Kumari v. Police Commissioner,Hyderabad
State of Haryana v. Ch. BhajanLal
Astt Collector of Central Excise v. Wilfred Sabastian
State of Bombay v. KathiKaluOghad
Sharda v. Dharmpalit
District Registrar & Collector v. Canara Bank
State of Bombay v. Kathi Kalu Oghad
(5)
STATEMENT OF JURISDICTION
In the matter of,
SUDARSHAN VENTURES AND OTHERS V. UNION OF INDIA ANDOTHERS
The respondent hereby submits this Memorandum before the Hon’ble Supreme Court of India,
invoking the writ jurisdiction under Article 139A of the Constitution.
(6)
STATEMENT OF FACTS
F1.Divyam, a law student and Shailesh, a student of digital animation, designed aComic strip
named “Shainy’s Adventu Adershan’s Meaty Meanderings” which described the lifeand
escapades of an adventurous and licentious thirty year old housewife.
F2.The comic strip was quite sexually overt both textually and graphically.. Soon after they both
graduated and started their careers.
F3.They registered a web site “shainy.com” through Google in US and took out a trademark for
it both in the US and in India. They had tie-ups with Estore and Ebay to meet demands.
F4.As they found it difficult to generate stories each week they asked readers to contribute as the
comic strip became quite popular Shailesh and Divyam decided to set up a company.
F5.They became promoters and directors of a new private company, Sudarshan Ventures Pvt.
Ltd contributing equally to the initial capital of the company.
F6.Within few years Sudarshan earned a lot and Shainy’s image was an enduring one and a
trendsetter and was referred as ‘”Dashing Doll’’ by western media.
F7. Sudarshan Ventures even entered into a contract with Patel and Grover to endorse a brand of
dishwashing and other products.
F8.Tradition savers, a front wing association began protests and claimed that some mothers of
teenagers had requested them to help as their children were being morally depraved..Hence
tradition savers held protest outside the offices of Sudarshan Ventures.Tradition savers members
registered complaints in more than 38 Police Talukas in Karnataka.
F9.In many cases, the Magistrates ordered personal appearance of the accused before granting
bail .There were also complaints by a lawyers association in Tamil Nadu and some other
rightwing organizations in 11 districts in Gujarat and 3 other districts in Madhya Pradesh
(7)
F10.Tradition savers began filing complaints indiscriminatingly against internet service

providers, companies that gave server space to Sudarshan Ventures, Cyber Café Owners on
whose caches Sudarshan venture’s data was found,
F11. Estore and Ebay claiming that these were intermediaries who were also liable for the
offences under Information Technology Act, the Indecent representation of women (prohibition)
Act and Indian Penal Code. Reacting to all this, the Central Government issued an order banning
the website.
F12.The Superintendent of Police, Bangaluru (South) entered the offices of Sudarshan Ventures
and Seized all the computer hard disks and story board clippings . A letter from an angry Indian
mother reproaching them for hosting such depraved and salacious content was also found in their
office.
F13.In February 2012, the company and its directors were charged under Sections 67A of the
Information Technology Act, 2000 (as amended) r/w Sections 3 and 4 of the Indecent
Representation of women (Prohibition) Act, 1986 and relevant sections of IPC, 1860.
F14.Forwarded letter of angry Indian mother was annexed to the charge sheet along with that the
authority also annexed some of the letter of Divyam’s ex-girlfriend where she thanked for
immortalizing her through character of Shainy.
F15.Shailesh and Divyam applied to the Karnataka, Tamil Nadu, Gujarat and Madhya Pradesh
High Courts for quashing of various complaints under Section 482 of the Code of
criminal procedure 1973..
F16.Both Divyam and Shailesh simultaneously filed a Writ Petition in the High Court of
Karnataka, challenging the order blocking the website stating that the case has not been made out
for the same under Section 69 A of the Information Technology Act. The High Court allowed the
Writ Petition but stayed operation of the order for three (3) weeks on the statement of the
Solicitor General of India that the Union would file an appeal before the Supreme Court
Collective We Not Liable? (CWNL) filed a writ petition challenging the penalties imposed on
intermediaries under the Information Technology Act.
(8)
F17.Divyam and Shailesh moved to the Supreme Court under Article 139A. CWNL also filedthe
transfer petition. The judges also observed that the issues in the Writ Petition before the
Karnataka High Court and the Article 32 involved questions of constitutional importance and
should be heard by a Constitution bench headed by the Chief Justice.
(9)
STATEMENT OF ISSUES
A) Whether the writ petition is maintainable under article 32 of Indian Constitution?
B) Whether the Section 67A, 69A and 69B of the Information Technology Act, 2000; and allied
provisions in the Indecent Representation of Women (Prohibition) Act, 1986(section 3 and 4)
constitutional?
C) Whether the powers of search and seizure given section 29 and 80 of information technology
Act, 2000 are constitutional?
D) Whether there was any undue in fragment of the right to privacy by the search of private
mails and documents not meant for public circulation?
E) Is there any violation of Article 20(3) if any private unpublished information is used to
convict the accused under relevant sections?
F) Whether a case was made out for the blocking of the website under section 69A of the
Information technology Act,2000?
(10)
SUMMARY OF PLEADINGS
A)Whether the writ petition is maintainable under article 32 of Indian Constitution?
The petition is not maintainable under Article 32 of Indian constitution as, There is no violation
of petitioner’s fundamental right. An enactment cannot be struck down on the plea that it is
unreasonable or unnecessary. Petitioner cannot be heard to complain about discrimination
suffered by others.An association cannot file a writ petition under Article 32.
B) Whether the Section 67A, 69A and 69B of the Information Technology Act, 2000; and
allied provisions in the Indecent Representation of Women (Prohibition) Act, 1986(section
3 and 4) constitutional?
Sections 67A, 69A and 69B of the Information Technology (Amendment)Act 2008 and allied
provisions in the Indecent Representation of Women(Prohibition) Act,1986 are Constitutional. .
C) Whether the powers of search and seizure given section 29 and 80 of information
technology Act, 2000 are constitutional?
Sections 29 and 80 of Information Technology Act,2000 are Constitutional
D) Whether there was any undue in fragment of the right to privacy by the search of
private mails and documents not meant for public circulation?
There is no infringement of right to privacy.
E) Is there any violation of Article 20(3) if any private unpublished information is used to
convict the accused under relevant sections?
Article 20(3) has no applicability in this case.
F) Whether a case was made out for the blocking of the website under section 69A of the
Information technology Act,2000?
Central Government can block the websites in cases of violation of public order under section
69A of information technology act,2000.
(11)
ARGUMENTS ADVANCED
A)Whether writ petition is maintainable under article 32 of Indian Constitution?
NO, THE WRIT PETITION IS NOT MAINTAINABLE UNDER ARTICLE 32 OF INDIAN

CONSTITUTION. The main object of Article 32 is the enforcement of the fundamental rights
guaranteed by the Indian Constitution. Unless a fundamental right is violated a person cannot
complain under this article. To make out a case under this Article the petitioner should not
merely establish that the law complained of is beyond the competency of the particular
legislature, as not being covered by any of the items in the legislative lists, but also that it
invades the fundamental rights guaranteed by the Constitution of which he can seek enforcement
by an appropriate writ.
It is said that an enactment cannot be struck down on the plea that it is unreasonable,
unnecessary. In this case the Petitioner, Jagran, alleges infringement of Articles 19(1) (a) & (g)
and21 of the Constitution. But there is no violation of fundamental rights as the Petitioner claims
and hence this writ petition is not maintainable.
The rights that could be enforced under Article 32 must ordinarily be the rights of the Petitioner
himself who complains of the infraction of such rights and approaches the Court for relief. A
petitioner cannot be heard to complain about discrimination suffered by others.
In this case, Jagran has filed a Writ of under Article 32 challenging the Constitutionality of
sections of the Information Technology (Amendment) Act, 2008.
In the case of Regina v. Liverpool Corporation
Lord Denning M.R. held that the expression
“Person aggrieved does not include a mere busybody who is interfering in things which do not
concern him”1 and hence Jagran has no right to interfere in this case.
1
[ 1972] 2 QB 299
(12)
B).1 SECTION 67A OF THE INFORMATION TECHNOLOGY (AMENDMENT) ACT IS

CONSTITUTIONAL.
Section 67A of The Information Technology (Amendment) Act, 2008 dealt with punishment for
publishing or transmitting any material containing sexually explicit act, etc., in electronic form.
According to Article 13 of the Constitution the laws inconsistent with or in derogation of the
fundamental rights will be considered void. It includes any laws made or passed by a competent
legislature. To declare a law as unconstitutional it has to be shown that there is violation of
fundamental rights.
There is no infringement of Fundamental Rights as alleged by the Petitioner. There is no

infringement of Article 19(1) (a) of the Constitution which gives citizens the right to freedom of
speech and expression. The Indian Constitution itself provides for certain exception as
mentioned under article 19(2). There is a connection between freedom of speech and the stability
of the society. This freedom is subject to Sub-clause (2) of Article 19, which allows the State to
impose restriction on the exercise of this freedom in the interest of public decency and morality.
Decency means that the action must be in conformity with the current standards of behavior.
This shows that obscenity which is offensive to public decency and morality is outside the
purview of the protection of free speech and expression because the Article dealing with the right
itself excludes it. This is to ensure that there is a restriction on speeches and publications which
undermines public morals
In the case of Raj Kapoor and others v. State and others
“The Apex court dealt with the aspect of censorship and held that freedom of expression cannot
be questioned by an intolerant group of people. The fundamental freedom under Article 19(1)
(a) can be reasonably restricted only for the purposes mentioned in Articles 19(2) and the
restriction must be justified. It was observed that “the censors Board should exercise
considerable circumspection on movies affecting the morality or decency of our people and
cultural heritage of the country”.2
In the case of Reno v. American Civil Liberties Union

2
1980 AIR 258, 1980 SCR (1)1081
(13)
“It was held that it would be wrong to restrain speech on the internet, except for dissemination of
obscene messages. Moreover a Corporation or a company is not a citizen for purposes of the
Constitution and thus cannot claim the rights mentioned in Article 19 of the Constitution3.”
Hence sexually explicit acts arouse lascivious interest in the minds of people. It is against public
decency and morality and hence comes within the purview of restrictions imposed under Clause
2 of Article 19. Hence there is no violation of Article 19(1) (a).
Article 19(1) (g) ensures the freedom to practice any profession, or to carry on any occupation,
trade or business. In Rajasthan Pradesh V.S. Sardarshahar and Anr. V. Union of India
(UOI) and Ors “The Court decided that “the right to practice under Article 19(1)(g) of the
Constitution is not absolute and is subject to reasonable restrictions provided under Article 19(6)
of the Constitution4”. Hence the publishing or transmission of sexually explicit act is within the
restriction mentioned in 19(6) and hence the section is not unconstitutional. In this case the
comic strip was quite sexually explicit, both textually and graphically. For something to be
‘obscene’ it must be shown that the average person, applying contemporary community
standards and viewing the material as a whole, would find that the work appeals predominantly
to ‘prurient’ interest, that it depicts or describes sexual conduct in a offensive way. In this issue
mother of the teenage children had asked the help of the Tradition Savers and bundles of cases
filed against them in various parts of the Country. That itself shows that the strip is obscene as
per the ordinary man’s perspective. The letters of angry Indian mother for hosting such depraved
and salacious content itself shows that the Shainy character is obscene.
In the case of R v. Stanley “It is clearly pointed out that anything that is obscene must
necessarily be indecent. In other words ,indecent merely means non conformance with accepted
standards of morality. Obscenity refers to that which has prurient or lascivious appeal .United
States courts use the Miller test for determining whether speech or expression is ‘obscene,’ and
therefore not protected by the First Amendment. That means it can legally be banned. The Miller
test stems from Miller v. California in which the US depicts/describes, in a patently offensive
way, sexual conduct specifically defined by applicable law? Whether the work, taken as a whole,
3
521 U.S. 844 (1997)
R 2010 SC 2221
(14)
lacks serious literary, artistic, political, or scientific value? All the factors mentioned in the
questions are satisfactory to define the material in this issue as obscene and filthy. Central
Government also issued an order for banning the website because of its filthy content. Indian
culture and feminine virtue is spoiled in this indecent character. It also gives false image of
traditional Indian housewife. Police also found pornographic material fromtheir office. The
comic strip is against the national and contemporary standards of the society. Obscenity has the
tendency to deprave and corrupt those whose minds are open to such immoral influences.
In U.S. v. Alpers“ Obscene phonograph records are within the prohibition of 245 of the
Criminal Code, which forbids the interstate shipment of any obscene book, pamphlet, picture,
motion-picture film, paper, letter, writing, print, or other matter of indecent character. Indian
culture is more conservative and orthodox than the United States and the people here are more
sensitive about the morality and decency5”.
In Ranjit D. Udeshi v. State of Maharashtra “the term obscenity is defined by the Supreme
Court as ‘the quality of being obscene which means offensive to modesty or decency; lewd,
filthy and repulsive. This also includes sexually explicit content under Section 67A of the
Information Technology (Amendment) Act, 2008. The per se action of the petitioner can be
considered as sexually explicit and the persons are liable for their act. The letters of angry Indian
mother for hosting such depraved and salacious content itself shows that the Shainy’s character
is sexually explicit6”. The comic strip is against the national and contemporary standards of the
society. It has the tendency to deprave and corrupt those whose minds are open to such immoral
influences. Indecent exposure statute requires exposure at such a time and place where as a
reasonable man he knows or should know his act will be open to the observation of others. The
law pertaining to indecent exposure does not require that an accused have a specific intent to
expose himself to any particular person; it is sufficient that accused generally intended to expose
him so as to draw attention to his exposed condition. The issue of Sudarshan ventures also
includes child pornography. It is explicit that cartoons are commonly meant for children and a
mere carelessness in this issue will destroy the moral, ethical and traditional decency the Indians
5
338 U.S. 680 (1950)
6
AIR 1965 SC 881
(15)
used to follow. The states have a compelling interest in the protection of the health and welfare
of children, and therefore, they have the right to ban the site which makes children morally
depraved. States enjoy greater latitude in regulating child pornography because of the
government’s compelling interest in safeguarding its children. The states may constitutionally
prohibit even the private possession of child pornography. A state has an interest in regulating
commercial sexually explicit act or obscenity and possesses the power to prevent or regulate the
dissemination distribution transportation, sale, including possession with intent to sell or display
of obscene or filthy matter.
SECTIONS 69A& 69B OF THE I.T ACT ARE CONSTITUIONAL.
Section 69A of the Information Technology Act states the power to issue directions for blocking
for public areas of any information through any computer resource. Where there is a severe
increase in the pornography and sexual explicit websites, Government should take initiative to
safeguard the Fundamental Rights guaranteed under Article 21 of the Constitution
which also deals with a life with dignity. Preamble to the Indian Constitution also states about
the sovereignty and integrity of the State. While performing the essential functions of
maintaining public order and security of the nation, the state is different from other persons
whether natural or artificial. The State can act upon its discretion where it feels that the public
order is violated. Section 69A also guarantees the Central Government power to safeguard the
Security of the State, friendly relations with foreign States etc. A website which is harmful to the
moral values of the state should be banned. For the purpose of public safety, the classification of
an area into dangerously disturbed area and other area is based on intelligible differentia. This is
the same case with regard to the website if it is dangerous to the societal values which
may cause public disorder. Article 14 of the Constitution allows certain
discrimination. Sex being a sound classification for special protection of woman under
Article 15(3), the provisions of any Act can be passed for the wellbeing of the weaker
parties. Equality means equality among equals. There is no implication of equality
being absolute in all circumstances.
(16)
THERE IS VIOLATION OF SECTION 292 & 293 OF THE IPC.
Section 292(1) consists of two parts. One refers to a book, pamphlet, paper, drawing, painting,
representation, figure of any other object which is lascivious or appeals to the prurient interest,
and the other part says that if these materials comprises of two or more distinct items, the effect
of any one of its items if taken as a whole tends to deprave and corrupt persons who are likely
according to the relevant circumstances to read, see or hear the matter contained in it. There must
be two things proved under Section 292 that (i) the matter is obscene and (ii) the accused has
sold, distributed, imported, printed or exhibited it, or attempted or offered to do so.The word
obscene is not defined in the Indian Penal Code. It depends upon the standards of morals of the
contemporary society. The idea relating to immorality and indecency may change from time to
time and place to place. The term obscene denotes anything that is offensive to modesty or
decency, lewd, filthy and repulsive .The constitutional validity of section 292 has been
challenged in the case of Ranjit D Udeshi v. State of Maharshtra as it was considered to be
violative of the right to freedom of speech and expression enshrined in article 19(1)(a) of the
Constitution. It was held that “it can be harldy be said that obscenity which is offensive
to modesty or decency is with in constitutional protection given to free speech or expression,
because the article dealing with the right itself excludes it..This freedom is subject to reasonable
restrictions which may bethought necessary in the interest of the general public and one such is
the interest of public decency and morality. Section 292, manifestly embodies such a restriction
because the law against obscenity seeks no more than to promote public decency and morality.”
So it was held that Section 292 was constitutional and not ultra vires of Article 19(2). It was also
held that “the obscene matter in a book must be considered by itself and separately to find out
whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those
whose minds are open to influences of this sort and into whose hands the book is likely to fall In
this connection the interests of our contemporary society and particularly the influence of the
book on it must not be overlooked. It was in this very same case that the Court held that the
defence available under the English law is not acceptable here. It is not possible for the accused
to show that he had not examined the article in question and thus had no reason to suspect that it
was obscene. But the other defence under English law which exempts publication which are for
public good and in interest of science, literature, art, learning or other subjects of general
(17)
concern is applicable in India which is provided for in the exceptions to this

section.7In the present case the comic strip “shainy’s adventu Adershan’s can be
considered as highly obscene as there was substantiation to show that the content contained a
scivious material which would morally deprave the young as their mothers were highly against
the strip. the website owners cannot plead the exception to this section because it was not created
in interest of science, art, literature, learning or other objects of general concern and nor was it
used for any religious purposes.
Section 293 of the Indian Penal Code punishes any person who sells, lets to hire, distributes,
exhibits or circulates to any person under the age of twenty years any such obscene object as
referred in Section 292 of the IPC with imprisonment which may extend to three years or with
fine which may extend to two thousand rupees and in the event of subsequent conviction with
imprisonment of which may extend to seven years or with fine which may extend to five
thousand rupees. In the case of Uttam Singh v. State the accused was found selling a packet of
playing cards portraying on the reverse luridly obscene pictures. When his shop was raided,
similar packets were found. He was sentenced to six months rigorous imprisonment and affine of
Rs.500.8In the case of Dunlop v. U.S the court upheld the conviction for mailing and delivery of
a newspaper called the 'Chicago Dispatch,' which contained obscene, lewd, lascivious,
andindecent matter9.
THERE IS VIOLATION OF INDECENT REPRESENTATION OF WOMEN

(PROHIBITION) ACT.
The Indecent Representation of Women (Prohibition) Act, 1986 prohibits indecent

representation of women through advertisements or publications, writings, paintings, figures or
in any other manner and for matters connected therewith or incidental thereto. According to
Section 2(c) of the act “indecent representation” means depiction, in any manner, of the figure of
a woman, her form or body or any part thereof in such a way as to have the effect of being
indecent or derogatory to or denigrating women, or is likely to deprave, corrupt or injure the
7
AIR 1965 SC 881
8
1974 AIR 1230, 1974 SCR (3) 722
9
165 U.S. 486 (1897)
(18)
public morality or morals. Any act like publishing or arranging to publish or taking part in
publishing or exhibition or of any advertisement which contains indecent representation
of women in any form is punishable. If any person produces or causes to be produced,
sells, lets to hire, distributes ,circulates or sends by post any book, pamphlet, paper, slide, film,
writing, drawing, painting ,photograph, representation or figure which contains indecent
representation of women in any form, the person is liable to be punished on
conviction with imprisonment of either description for a term which may extend to 2 years
and with or without fine up to two thousand rupees. In the event of a second or subsequent
conviction the imprisonment may extend up to 5 years and fine of not less than ten thousand
rupees, which may extend up to one lakh rupees
According to Section 7 not only an individual but a corporate body can also commit the offence
of indecent representation of women. It says that every person who at the time offence was
committed, was in charge of, and was responsible to, the company, shall be deemed to be guilty
of the offences and liable to be proceeded against and punished accordingly. On the
other hand if it is proved that the offence has been committed by the company with consent or
connivance of or neglect on the part of any director, manager, secretary or other officer of the
company such person shall be proceeded against and punished accordingly. What is not decent
or appears not to be decent is indecent. Indecency relates to public morals. The unique position
of the Indian women in our Society and the cultural heritage of India have been widely known. It
is undisputed that the dignity of women has to be preserved and protected. In the Indian polity,
all efforts have been made for emancipation of women and to guarantee to them of their dignity
and personality. The Constitution of India contain provisions which not only act as protector but
also improve women's condition in all spheres of life Article 19(1)(a) guarantees all citizens the
freedom of speech and expression. Though the Article does not explicitly deals with the freedom
of the Press and Media, however the judicial decisions state that the freedom of speech
and expression include the freedom of the press and circulation also. Further, these rights are not
absolute and are subjected to reasonable restrictions as enshrined under clause (2). Decency and
morality are among the restrictions mentioned under Article 19(2), which have been included for
restricting speeches and publications which tend to undermine public morals.
(19)
In Ranjit D. Udeshi v. State of Mahrashtra the issue of obscenity and the conflict with
freedom of speech and expression has been discussed atand the court held that obscenity is
offensive to modesty or decency, and decency and morality are reasonable grounds for restricting
the right to freedom of speech and expression of the people as per Article 19(2) of the
Constitution of India. 10
Accordingly the dignity of woman is constitutionally protected and any media projections which
are derogatory to women should be prevented and prohibited. If the media, electronic or print,
exceed their jurisdiction, the courts come forward to ensure that violation of the Fundamental
rights by the media does not go unchecked. Moreover, Article 21 guarantees protection of life
and personal liberty. Right to life as enshrined in this article something more then survival or
animal existence. It has a much wider meaning which includes right to livelihood, better
standard of living, hygienic conditions in the workplace and leisure. It includes the right to
live with human dignity. It is a basic right of a female to be treated with decency and proper
dignity.
Acts such as rape, sexual harassment or molestation or many such which encourage or promote
these activities, are violative of Article 21.
In Maneka Gandhi v. Union of India It was held that right tolife is not merely confined to
physical existence but also includes within its ambit the right tolive with human dignity.11
In Francis Coralie Mullin v. Union of Territory of Delhi It was held that right to life means
something more than just physical survival and is not confined to protection of any faculty or
limb through which life is enjoyed or the soul communicates with the outside world, but includes
‘the right to live with human dignity’. Women are human beings and hence every right
pertaining to human beings are applicable to women. Thus Women have right to lead a dignified
life. 12In Chandra Raja Kumari v. Police Commissioner, Hyderabad The Hon'ble High Court
of Andhra Pradesh held that any act which tends to offend the dignity of a woman or deal with
her indecently in the circumstances amounting to indecent representation in any form, is bound
10
AIR 1965 SC 881
11
1978 AIR 597, 1978 SCR (2) 621
12
[1979] 1 SCC 24
(20)
to offend Article 21 of the Constitution of India as right to live includes right to live
with dignity and decency. The Universal Declaration of Human Rights, International
Covenant on Civil and Political Rights has recognized that human beings have dignity
inseparable from them. Thus, the right to dignity is an inseparable part of right to life guaranteed
under the Indian Constitution under Art.21 13
In the instant the directors of Sudarshan Ventures created a comic strip which described the life
of a bold and immoral housewife which was explicit both textually and graphically. The
protagonist of the comic “shainy’s adventu Adershan’s became such a cult figure that her image
was use deven for advertising certain domestic products. The fact that the strip depraves,
corrupts or injures public morality is evident from the letters sent by mothers to EStore and Ebay
and the plea received by Cultures Vultures from some mothers of teenagers. The portrayal of
“shainy’s adventu Adershan’s as a promiscuous woman has the effect of demeaning, debasing
and degrading women. It also tends to corrupt and deprave the reader. It deprives them of the
respect and dignity that they are entitled to and shows them in a low light. It would cause great
shame and mental agony to all women. Hence there is an indecent representation of women by
way of texts and images in the comic strip. It can be said that stories about a promiscuous
woman would have a morally corruptive effect on the minds of young people. It would definitely
obscure basic moral values and expose young people to bizarre ideas which may lead to deviant
behaviour which among them. It was contended that the constitutional protection for speech and
expression is not absolute and that it is subject to reasonable restrictions based on
considerations of 'public order', 'defamation', 'decency and morality' among other grounds.
WHETHER THE SEARCH AND SEIZURE POWERS GRANTED UNDER SECTIONS

29 AND80 OF THE INFORMATION TECHNOLOGY ACT, 2000 ARE
CONSTITUTIONAL?
The Superintendent of Police exercising his powers according to Section 80 of the

Information Technology (Amendment) Act, 2008. Section 80 gives power to any police officer,
not below the rank of a inspector, or any other officer of the Central Government or a State
Government authorized by the Central Government in this behalf may enter any public place
13
1998 (1) ALD 810
(21)
and search and arrest without warrant any person found therein who is reasonably suspected of
having committed or of committing or of being about to commit any offence under this Act.
Police officers is acting accordingly to the Act, with due diligence. Being a cognizable offence
the police officer can arrest without a warrant. In State of Haryana v. Ch. Bhajan Lal
Court stated that when any information disclosing a cognizable offence is laid before the office-
in-charge of a police station, he has no option but to register the case on the basis thereof14. In
U.S v..Hall the court stated that a limited warrant less detention of evidence, even by the
government, was not unreasonable if based on reasonable suspicion15.
Superintendent of Police is acting according to the Central Government order. He is enabling

himself to meet the terms of Section 80 which also says about the authorization of Central
Government. Police officer acting in his official powers can act according to his good will,
where there is a reasonable doubt about any objectionable object. Police officer can act in
accordance with the Sections. In Astt Collector of Central Excise v. Wilfred Sabastian The
Court stated that the illegality of a search will not affect the validity of the articles or in any way
vitiate the recovery of the articles and the subsequent trial16. Where the inspirational material
itself is pornographic in nature, then the outcome of such amaterial will be unlawful, illegal and
immoral in nature which is against public morality and decency. Indian Culture has its high
traditional approach to follow. Considering a pornographic material as inspiration itself is
unethical. It includes the public place-mere access to the public case is enough for stating it
constitutional. Any person can access the offices of Sudarshan Ventures. They are not
mentioning any criteria for public access. Mere access to the public is sufficient to consider it as
public place. Explanation to Section 80 defines public place, which includes any public
conveyance, any hotel, any shop or any other place intended for use by, or accessible to the
public.
Section 29 says that the police officer can access any computers and data where he has a
reasonable cause to suspect the parties. Police in this case is reacting towards the Central
14
1992 AIR 604, 1990 SCR Supl. (3) 259
15
472 F.2d 261, 1972 U.S. App. 6575
16
AIR 1972 SC 2563
(22)
Government order and they have reasonable reason to suspect the parties. The allegations were
come up against the parties from various strata of the society. Petitions were filed from different
states of the Union of India. Thus the police have the power to search in these grounds. Right to
privacy is not an absolute right it has its limitations. Police officer is doing his duty and there is
no violation of Fundamental Rights as well as other rights.
WHETHER THERE HAS BEEN ANY INFRINGEMENT OF RIGHT TO PRIVACY BY

THE SEARCHOF PRIVATE MAILS AND DOCUMENTS NOT MEANT FOR PUBLIC
CIRCULATION?
In India a private action for damages for unlawful invasion of privacy is maintainable. The
printer and publisher of a magazine or journal would be liable if they publish any matter related
to his private life which includes his family, marriage, procreation, parenthood etc without his
consent. But the exceptions to this are firstly that the right of privacy does not continue to exist
when the publication is a matter of public record and secondly that when the publication relates
to the discharge of official duties of a public servant, an action cannot be maintained unless the
publication is proved to be false, malicious or untruthful. Also under Constitutional law, the right
to privacy is implicit in the fundamental right to life and liberty guaranteed under Article 21 of
the Constitution. But the right to privacy flowing from Article 21 must be balanced by the
fundamental right of the media to publish any matter of public interest.
In the case of Sharda v. Dharmpalit was held by the Supreme Court that the right to privacy in
terms of Article 21 of the Constitution is not an absolute right. If there were a conflict between
fundamental rights of two parties, that right which advances public morality would prevail17.
In District Registrar & Collector v. Canara Bank it was held that exclusion of illegitimate
intrusions into privacy depends on the nature of the right being asserted and the way in which it
is brought into play; it is at this point that the context becomes crucial, to inform substantive
judgment. If these factors are relevant for defining the right to privacy, they are quite relevant
AIR 2003 SC 3450, 2003 (3) ALT 41 SC

17
(23)
whenever there is invasion of that right by way of searches and seizures at the instance of the
State.18
WHETHER THERE HAS BEEN ANY VIOLATION OF ARTICLE 20(3)?
There is no violation of Article 20(3) of the Constitution. It says that “No person accused of any
offence shall be compelled to be a witness against himself.” None of the petitioners a reacting as
witness against themselves in this issue. Article 20(3) has no applicability in this case .It is on
this principle that the Court held that the immunity is available to an accused person when a
compulsory process or notice is issued, directing him, under pain of penalty, to produce a
document, but not when a document is recovered from him by search and seizure by a police
officer without involving any volitional act on the part of the accused from whose possession the
document is recovered. Search and seizure are acts of another to which an accused is obliged to
submit and are not testimonial acts. The use of records against an accused after their seizure for
an offence under any enactment is not considered to be violative of Article 20(3). Documents or
Articles or any other incriminating. In State of Bombay v. Kathi Kalu Oghad The protection
does not extend to any kind of evidence but only to self incriminating statements made by the
accused19. Therefore the Article 20(3) does not protect the petitioner. Self incrimination must
mean conveying information based upon the personal knowledge of the person giving the
information and cannot include merely the mechanical process of producing document in Court
which may throw a light on any of the points in the controversy. But there exists a distinction
between an order of the court directing the accused himself to produce a document and an order
directing the police to search and seize any document. It is the former and not the latter that that
is protected.
WHETHER A CASE HAS BEEN MADE OUT IN CASE OF CONSTITUTIONALITY OF

SECTION69A OF THE INFORMATION TECHNOLOGY (AMENDMENT) ACT, 2008
The government of India has given up the power to block pornographic websites purely onthe
ground of obscenity or sexually explicit Act considering the cultural heritage, dignity ofwomen
18
AIR 2005 1 SCC 496
1961 AIR 1808, 1962 SCR (3) 10
19
(24)
and also for the controlling of public order with due diligence. Central Government has the
authority to block public access to websites, without further clarifying the necessary perquisite
circumstances for any such action. Section 69Acontain the provision that the section can be
invoked for preventing incitement to the commission of any cognizable offence Sexually
explicit content comes under the cognizable offences contravention of ‘any law is violation of
public order.
(25)
PRAYER
WHEREFORE, in the light of the issue raised, arguments advanced and authorities cited, it is
most humbly and respectfully requested that this Honb’ble Court to adjudge and declare on
behalf of:
1. The petition is not maintainable under Article 32 of the Indian Constitution.
2. Section 67A, 69A and 69B of the Information Technology (Amendment)Act 2008 and allied
provisions in the Indecent Representation of Women(Prohibition) Act, 1986 and the Indian Penal
Code, 1860 are Constitutional.
3. Section 29 and 80 of Informational Technology (Amendment) Act are Constitutional.
4. There is no infringement of Right to Privacy.
The court may also please to pass any other order, which this Hon’ble Court may deem fit in the
light of justice, equity and good conscience. For this the Respondent shall be duty bound forever.
All of which is respectfully submitted
Counsel for the Respondent
(26)

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SCHOOL OF LAW, ITM UNIVERSITY

BEFORE THE HON’BLE SUPREME COURT OF INDIA

SUDARSHAN VENTURES AND OTHERS………………….PETITIONER

UNION OF INDIA AND OTHERS………………………RESPONDENT

WRIT BEFORE THE SUPREME COURT OF INDIA

Memorial on behalf of respondent

Memorial on behalf of respondent

SCR Supreme Court Reports

UOI Union of India

AIR All India Reporter

Memorial on behalf of respondent

Indian Penal Code, 1860

Code of Criminal Procedure, 1973

Information Technology(amendment) Act,2008

Indian Constitutional Law (M.P Jain)

Textbook on Indian Penal Code (K.D Gaur)

Textbook on Criminal Procedure (R.V Kelkar’s)

CyberCrimes (Talat Fatima)

Regina v. Liverpool Corporation

Raj Kapoor and others v. State and others

Reno v. American Civil Liberties Union

Ranjit D Udeshi v. State of Maharshtra

Uttam Singh v. State

Maneka Gandhi v. Union of India

Francis Coralie Mullin v. Union of Territory of Delhi

Chandra Raja Kumari v. Police Commissioner,Hyderabad

State of Haryana v. Ch. BhajanLal

Astt Collector of Central Excise v. Wilfred Sabastian

State of Bombay v. KathiKaluOghad

District Registrar & Collector v. Canara Bank

State of Bombay v. Kathi Kalu Oghad

Memorial on behalf of respondent

SUDARSHAN VENTURES AND OTHERS V. UNION OF INDIA ANDOTHERS

Memorial on behalf of respondent

Memorial on behalf of respondent

F10.Tradition savers began filing complaints indiscriminatingly against internet service

Memorial on behalf of respondent

Memorial on behalf of respondent

provisions in the Indecent Representation of Women (Prohibition) Act, 1986(section 3 and 4)

Act, 2000 are constitutional?

Memorial on behalf of respondent

Sections 29 and 80 of Information Technology Act,2000 are Constitutional

There is no infringement of right to privacy.

Article 20(3) has no applicability in this case.

Memorial on behalf of respondent

A)Whether writ petition is maintainable under article 32 of Indian Constitution?

NO, THE WRIT PETITION IS NOT MAINTAINABLE UNDER ARTICLE 32 OF INDIAN

In the case of Regina v. Liverpool Corporation

Lord Denning M.R. held that the expression

B).1 SECTION 67A OF THE INFORMATION TECHNOLOGY (AMENDMENT) ACT IS

There is no infringement of Fundamental Rights as alleged by the Petitioner. There is no

In the case of Raj Kapoor and others v. State and others

In the case of Reno v. American Civil Liberties Union

SECTIONS 69A& 69B OF THE I.T ACT ARE CONSTITUIONAL.

Memorial on behalf of respondent

THERE IS VIOLATION OF SECTION 292 & 293 OF THE IPC.

concern is applicable in India which is provided for in the exceptions to this

THERE IS VIOLATION OF INDECENT REPRESENTATION OF WOMEN

The Indecent Representation of Women (Prohibition) Act, 1986 prohibits indecent

Memorial on behalf of respondent

WHETHER THE SEARCH AND SEIZURE POWERS GRANTED UNDER SECTIONS

The Superintendent of Police exercising his powers according to Section 80 of the