1.

Whether the Freedom of Speech and Expression, Press and Profession guaranteed
under Article 19 of the Constitution are ultra vires of Solidarity Act of Latveria,
2018 or not?
1.1 19(2)

Anything that disturbs public tranquility or public peace disturbs public order. 1 thus, communal
disturbances 2 and strikes promoted with the sole object of causing unrest among workmen3 are
offences against public order. Public order thus implies absence of violence and an orderly state
of affairs in which citizens can peacefully pursue their normal avocation of life4. Public order
also includes public safety5. Public safety means the safety of the community from the external
and internal dangers. Thus creating internal disorder or rebellion would affect public order and
public safety.6

The words ‘in the interest of public order’ include not only such utterances as are directly
intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a law
punishing utterances made with deliberate intention to hurt the religious feelings of any class of
persons is valid because it imposes a restriction on the right of free speech in the interest of
public order since such speech or writings has the tendency to create public disorder even if in
some cases those activities may not actually lead to breach of peace. 7

The standard applied for restricting article 19(1)(a) is the highest when imposed in the interest of
security of the State. Also, a reasonable restriction under article 19(2) implies that the relation
between restriction and public order has to be proximate and direct as opposed to a remote or
fanciful connection.8

Entities engaged in the business of news/media have emerged as a prime source of information,
helping people to cultivate opinions on the political, economic and social situation in the country.
The traditional print media still retains influence and television is widely popular, but public
opinion, especially of the youth, can be gauged through social networking platforms and the so-
called 'new media'. In this way, the media continues its role as a kind of non-formal educator,

1
Om prakash v. emperor, AIR 1948 Nag, 199
2
Noor mohammad v. rex, AR 1949 1949 all 120.
3
Om prakash v. emperor, AIR 1948 Nag, 199.
4
Basudev v. rex, AIR 1949 All 513 (FB)
5
Ramesh Thapper v. State of Madras, State of Madras, AIR 1950 SC 124
6
Brij Bhushan v. State of Delhi, AIR 1950 SC 129.
7
Ramjilal Modi v. State of UP, AIR 1957 Sc 622; See also Ramjilal Modi v. State of UP, AIR 1959 SC 620.
8
O. K. Ghosh v. E. X. Joseph, AIR 1963 SC 812; and Supdt. Central Prison v. Dr. Ram Manohar Lohia, AIR 1960 SC
633.
helping citizens to 8 make judgments, often by presenting views which are contrary to those of
the government. This vaunted position occupied by the media, including surveying the judiciary,
executive and legislature alike, does not come without a share of responsibility. Hence the
restrictions on the business of news/media under Article 19(6) are necessary to ensure an
effective protection of the rights of common citizens under Article 19(1) (a).

the freedom of article 19 is not absolute and it is subjected to reasonable restrictions under
.Clause (2) of Article 19 of the Indian constitution. This clause enables the legislature to impose
certain restrictions on free speech under following heads:  security of the State,  friendly
relations with foreign States,  public order,  decency and morality,  contempt of court, 
defamation,  incitement to an offence, and  Sovereignty and integrity of India

The expression 'public order' connotes the sense of public peace, safety and tranquility

In Rangrajan case.14 The court observed that our commitment of freedom of expression
demands that it cannot be suppressed unless the situations created by allowing the freedom are
pressing and the community interest is endangered. The anticipated danger should not be remote,
conjectural or far-fetched. It should have proximate and direct nexus with the expression. The
expression of thought should be intrinsically dangerous to the public interest. In other words, the
expression should be inseparably locked up with the action contemplated

1.2 MEDIA TRAIL

In M.P. Lohia v. State of West Bengal 9 , the facts were that a woman committed suicide in
Calcutta in her parents’ house but a case was filed against the husband and in-laws under the
Indian Penal Code for murder alleging that it was a case of dowry death. The husband (appellant
in the Supreme Court) had filed a number of documents to prove that the woman was a
schizophrenic psychotic patient. The parents of the woman filed documents to prove their
allegations of demand for dowry by the accused. The trial was yet to commence. The Courts
below refused bail. The Supreme Court granted interim bail to the accused and while passing the
final orders, referred very critically to certain news items in the Calcutta magazine. The Court
deprecated, two articles published in the magazine in a one-sided manner setting out only the
allegations made by the woman’s parents but not referring to the documents filed by the accused
to prove that the lady was a schizophrenic. The Supreme Court observed:- “These type of
articles appearing in the media would certainly interfere with the course of administration

9
: 2005(2) SCC 686
of justice.” The Court deprecated the articles and cautioned the Publisher, Editor and Journalist
who were responsible for the said articles against “indulging in such trial by media when the
issue is sub-judice.” and observed that all others should take note of the displeasure expressed
by the Court.

In our present case, there were communal riots between the two communities namely, Khalas
and Bajoran sects. The use of social media had always been popular in the Republic of Latveria.
The prevalent print and broadcasat media all over latveria had been reporting this chain of
events as their top story. These type of articles appearing in the media would certainly interfere
with the course of administration of justice. To safeguard trial by any unwarranted negative
reaction by a large number of people, the Parliament of Latveria amended the Security and
Solidarity Act of 2018.

Media has now reincarnated itself into a ‘public court’ (JantaAdalat) and has started interfering
into court proceedings. It completely overlooks the vital gap between an accused and a convict
keeping at stake the golden principles of ‘presumption of innocence until proven guilty’ and
‘guilt beyond reasonable doubt’. Now, what we observe is media trial where the media itself
does a separate investigation, builds a public opinion against the accused even before the court
takes cognizance of the case. By this way, it prejudices the public and sometimes even judges
and as a result the accused, that should be assumed innocent, is presumed as a criminal leaving
all his rights and liberty unredressed. If excessive publicity in the media about a suspect or an
accused before trial prejudices a fair trial orresults in characterizing him as a person who had
indeed committed the crime, it amounts to undue interference with the “administration of
justice”, calling for proceedings for contempt of court against the media. Unfortunately, rules
designed to regulate journalistic conduct are inadequate to prevent the encroachment of civil
rights.

While displaying our emotions, the media and the masses forget that it puts tremendous pressure
on the judge presiding over the case. How can we expect a fair judgment from a judge who is
under such tremendous pressure from all sections of the society? A person is presumed to be
innocent unless he is held guilty by the competent court, but here the trend is to declare a person
guilty right at the time of arrest. The media is there to report facts or news and raise public
issues; it is not there to pass judgments.

the media treats seasoned criminal and the ordinary one, sometimes even the innocents, alike
without any reasonable discrimination. They are treated as a ‘television item’ keeping at stake
the reputation and image. Even if they are acquitted by the court on the grounds of proof beyond
reasonable doubt, they cannot resurrect theirprevious image. Such kind of exposure provided to
them is likely to jeopardize all these cherished rights accompanying liberty.10

10
Jaganatharao, fair trail and free press: law’s response to trail by media: p.26
Hon’ble Justice D. M. Dharmadhikari, Chairman, M. P. Human Rights Commission alsoasserted
that there is always a chance that judges get influenced by the flowing air of remarks made upon
a particular controversy. The media presents the case in such a manner to the public that if a
judge passes an order against the “media verdict”, he or she is deemed either as corrupt or
biased.

In State of Maharashtra v. Rajendra Jawanmal Gandhi, the Supreme Court observed: “There is
procedure established by law governing the conduct of trial of a person accused of an offence. A
trial by press, electronic media or public agitation is very antithesis of rule of law. It can well
lead to miscarriage of justice. A judge has to guard himself against any such pressure and is to be
guided strictly by rules of law. If he finds the person guilty of an offence he is then to address
himself to the question of sentence to be awarded to him in accordance with the provisions of
law.”

In the case of RK. Anand v. Registrar, Delhi High Court11 the SC observed that:

“the media is not free to publish any kind of report concerning a subjudice matter or to do a sting
as it pleases in a pending matter. More or less on similar lines, it was also observed that a sting
based on deception would attract the legal restrictions with far greater stringency”

The SC commented in Siddhartha Vashisht@ Manu Sharma v. State(NCT of Delhi)12 that the
distinction between trial by media and informative media should always be maintained. Trial by
media should be avoided particularly at a stage when the suspect is entitled to the constitutional
protections. Invasion of his rights is impermissible in every circumstance.

2. Whether Ms. Helena Mallaya is guilty under the provisions under Section 124 of
IPC and to that of Security and Solidatiry Act of Latveria or not ?
2.1 SEDITION

According to Sec124A of IPC13 sedition is conduct or speech inciting people to

11
2009 11 SCR 1026
12
(2010)6 SCC 1
13
[124A. Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible representation, or
otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection
towards, 102 [***] the Government established by law in 103 [India], [***] shall be punished with 104 [imprisonment
for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be
added, or with fine. Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain
rebel against the state. Its legal meaning is inciting violence

towards insurrection of established order and lawful authority,

including subversion of the Constitution.

The decisive ingredient for establishing the offence of sedition under S. 124-A IPC is the doing
of certain acts which would bring to the Government established by law in India hatred or
contempt etc.14

In NazirKhan v. State of Delhi,15the Supreme Court observed that:

"Sedition" has been described as disloyalty in action, and the law considers as sedition all those
practices which have for their object to excite discontent or dissatisfaction, to create public
disturbance, or to lead to civil war; to bring into hatred or contempt the sovereign or the
Government, the laws or constitutions of the realm, and generally all endeavours to promote
public disorder.

The restriction is only justified if the anticipated danger has proximate and direct nexus with the
expression 16 calling for violence. 17 Further, such expression must incite or produce imminent
lawless action.18

In Sürek v Turkey19, the ECtHR noted that the expression is considered as inciting to further
violence when it communicates a message that recourse to violence is a necessary and justified
measure of self-defence in the face of the aggressor.20 This was the exact situation as it is in the
present case. Helena used seditious and provocative language 21 that incited people to carry
knives or other weapons in a protest.22 Later that harsh language was used by the attackers in a
violent protest.23 Hence, the expression of Helena caused public danger and could be directly
linked to the violent actions.

their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not
constitute an offence under this section. Explanation 3.—Comments expressing disapprobation of the admin-
istrative or other action of the Government without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section.]
14
Bilal ahmed kaloo v. state of AP(1997)7 SCC 430.
15
(2003)8 SCC 461.
16
Oberschlick v Austria App no 15974/90, (ECtHR, 23 May 1991); Sürek v T rkey (No. 4) App no 24762/94 (ECtHR, 8
July 1999).
17
S. Rangarajan v P.J. Ram (1989 (2) SCR 204, p. 226. India)
18
Bradenburg v Ohio 395 US 444, 447 (1969).
19
Sürek v T rkey (no 3) App no 24735/94 (8 July 1999)
20
Sürek v T rkey (no 3) App no 24735/94 (8 July 1999); Dogan v Turkey (no 3) App no 4119/02 (ECtHR, 10 October
2006).
21
The case, para 16
22
The case, para 18
23
The case, para 20
 2.2 SSA

The prosecution of Helena under the SSA is justified because it is prescribed by law (i), pursues
a legitimate aim (ii) and is necessary in a democratic society (iii). The restriction on FOE
enshrined in SSA fulfils the principles and requirements.

Any restriction must be both formally and materially prescribed by law. 24 A restriction is
generally prescribed by law if it has a basis in domestic law and is adequately accessible (i), and
sufficiently precise, therefore foreseeable (ii).25

Latveria’s legislator passed the SSA in response to the growing political tensions in the state,
thus making it a legitimate act of the country. 26 Restrictions on Freedom of speech and
expression must be prescribed by law prior to an alleged violation.27 It must be unambiguously
established by pre-existing law that the Freedom of speech and expression may be limited. 28
Restrictions formulated in SSA were established prior to the publishing Helena’s column,
therefore, Helena’s prosecution undoubtedly has its basis in domestic law.

The SSA clearly stipulated restrictions taking into account recent protests that led to the
destruction of government property and series of threats against the lives of Helena’s leading
officials. Accordingly, Latveria’s citizens including Helena had a clear indication of the legal
rules that will be applicable to their behaviour.

In the present case, the SSA indicated the possible legal consequences of extremist and
antipatriotic statements with required precision. Helena had visibility of the consequences that
her actions may entail. Moreover, interpretation and application of any law, including the SSA,
depends on practice.

Restrictions may be justified in the interests of the protection of public order and general
welfare.29 This ground for restriction was confirmed in a number of cases. 30 Public order can be

24
Kimel v Argentina IACtHR (2008) Series C no 177, para 63.
25
The Sunday Times v United Kingdom, App no 6538/74 (ECtHR, 26 April 1979) para 49; Silver and others v United
Kingdom App nos 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75 (ECtHR, 24 October 1983)
para 86-87.
26
Ibid
27
IACHR, Advisory Opinion OC-5/85 Compulsory Membership in an Association Prescribed by Law for the Practice
of Journalism (Articles 13 and 29 American Convention on Human Rights), (13th November 1985) para 89.
28
Media Law and Defamation International Press Institute, Reference and Training Manual for Europe Freedom of
Expression (February 2015), p. 14.
29
UDHR (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) article 29(2); ICCPR (adopted 16 December
1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) article 19(3).
30
X v Austria App no 8170/78 (ECtHR, 13 December 1979); X v United Kingdom App no 8231/78 (ECtHR, 5
November 1981); X v United Kingdom App no 5442/72 (ECtHR, 3 October 1975); X v The Federal Republic of
Germany App no 1860/63 (ECtHR, 30 March 1966).
described as what is ‘in essential interest of the State or the community’31 or as ‘the conditions
that assure the normal and harmonious functioning of institutions based on a coherent system of
values and principles’.32 However, the boundaries of public order cannot be precisely defined
and may vary according to the time, place and circumstances.33

Considering political tensions in Latveria’s society and previous harm to its citizens, the threats
to its internal order are ‘pressing and substantial’. 34 Taking into account all the hostilities
between Bajoran and Khalsa, that resulted in civilian casualties and thus seeking to prevent any
further unrest between two religious groups, which had been fanned by Helena’s column,
government of Latveria had a pressing need to take restrictive measures in order to protect public
order and health.

Therefore, prosecution of Ballaya pursues the legitimate aim of protecting public order,
including welfare of the citizens, because protecting these interests includes regulating and
sanctioning expression that may incite violence35 and therefore pose a risk to aforementioned
interests.

The restrictions imposed by SIA are necessary in a democratic society as they are proportional
(i), and satisfy ‘pressing social need’ requirement (ii). 36

When a State makes any restrictions on Freedom of speech and expression, it must take only
such measures that are proportionate to the pursuance of legitimate aims. The HRC stated that
the restriction ‘must be the least intrusive measure to achieve the intended legitimate objective
and the specific interference in any particular instance must be directly related and proportionate
to the need on which they are predicated’.37

In this case, measures taken were proportionate and were exercised in the least restrictive
manner, because a more lenient penalty would have been ineffective in achieving public order
and welfare of the society. According to the ECtHR, it is not only important to ensure that
applied standards are ‘in conformity with the requirements of the Convention’, but also by
applying the standards all relevant facts have to be diligently assessed. 38 It is noteworthy that

31
Kindt, Els J., ‘Privacy and Data Protection Issues of Biometric Applications: A Comparative Legal Analysis’, (2013)
para 324.
32
UNESCO, ‘Freedom of Expression ant Public Order Training manual’ (2015) p 33.
33
HKSAR v Ng Kung Siu, 2 H.K.C.F.A.R., Hong Kong (CFA, 15 December 1999), para 459-460.
34
R. v Oakes, The Supreme Court of Canada 1986 1 SCR 103 paras 15, 48, 54, 59.
35
HRC, ‘General Comment No 34’ in ‘Article 19: Freedoms of Opinion and Expression’ (2011) UN Doc
CCPR/C/GC/34 para 31.
36
1Lingens v Austria App no 9815/82 (ECtHR,8 July 1986), paras. 39-40 (ECtHR); Handyside v United Kingdom App
no 5493/72 (ECtHR, 7 December 1976) para 48; CoE ‘A guide to the implementation of Article 10 of the European
Convention on Human Rights’ by Monica Macovei (2004) 10 August 2011; HRC, ‘General Comment No 34’ in
‘Article 19: Freedoms of Opinion and Expression’ (2011) UN Doc CCPR/C/GC/3para 31.
37
HRC, ‘General Comment No 22’ on ‘Freedom of Thought, Conscience and Religion (Article 18)’ (30 July 1993).
38
Oberschlick v Austria App no 15974/90, (ECtHR, 23 May 1991), para 60.
tensions in Latveria and its unstable political history necessitated the use of restrictions enshrined
in the SSA in order to maintain public order in the society.

FOE restricting state must justify, that the interference was ‘necessary’ considering the facts and
circumstances prevailing in the specific case before it.39 However, the ECtHR in S. and Marper v
UK40 case left a wide MOA to States in assessing whether pressing social need exists as they can
better evaluate the necessity, suitability and overall reasonableness of a limitation on
fundamental rights.

Following the ECtHR judgement in News Verlags GmbH v Austria, 41 the pressing social need
has to be determined with consideration of the general context. Furthermore, the ECtHR in Klass
stated that, ‘some compromise between the requirements for defending democratic society and
individual rights is inherent in the system of the Convention’.42

The Respondent submits that the situation in Latveria meets the necessity requirement since the
social unrest, violence and resulting threat to the citizens’ health required to take the measures
that would efficiently secure the health and wellbeing of the society. Latveria’s legislator used its
wide MOA for a legitimate interest in ensuring that citizens would not cause harm to each other
and public order would be protected.

Additionally, restriction passes the ‘clear and present danger’ test, which was developed by the
US Supreme Court in order to determine when inflammatory speech intending to advocate illegal
action can be restricted.43 The standard developed determined that speech advocating the use of
force or crime could only be proscribed where two conditions were satisfied: (1) the advocacy is
‘directed to inciting or producing imminent lawless action,’ and (2) the advocacy is ‘likely to
incite or produce such action’.44 Latveria restricting extremist or anti-patriotic statements such as
‘calling for illegal action’ or ‘publicly inciting hatred against religious groups’, clearly satisfies
above mentioned conditions.

In the present mater, interference by Latveria’s government meets the ‘pressing social need’
requirement in order to be considered necessary in a democratic society.

39
Murat Tumay LLB. ‘The European Convention on Human Rights: Restricting Rights in a Democratic Society with
Special Reference to Turkish Political PartyCases’ (2013), p. 54.
40
S and Marper v UK App nos 30562/04 and 30566/04 (ECtHR, 4 December 2008); Z v Finland App no 22009/93
(ECtHR, 25 February 1997); Chassagnou and others v France App nos 25088/94, 28331/95 and 28443/95 (ECtHR,
29 April 1999).
41
News Verlags GmbH & Co KG v Austria App no 31457/96 (ECtHR, 11 April 2000).
42
Klass v Germany App no 5029/71 (ECtHR, 6 September 1978), para 59.
43
Murat Tumay LLB. ‘The European Convention on Human Rights: Restricting Rights in a Democratic Society with
Special Reference to Turkish Political PartyCases’ (2013), p. 54.
44
Bradenburg v Ohio 395 US 444, 447 (1969).
Restrictions must be sufficiently precise to allow an individual to foresee the consequences
which a given action may entail.45 The interference in the present situation was based on the
ESA which explicitly states the kind of political demonstrations, their incitement and attendance,
that are not allowed within general election – ‘where participants spread an extremist or seditious
message or seek to incite hatred , violence, or disrupt the democratic process’. The case law of
the ECtHR confirms that lack of an expressed concept of every definition does not mean that the
law is framed insufficiently because excessive rigidity needs to be avoiding leaving
interpretation to practise.46

The applicant accused the Prime Minister and other members of the Bajoran-led governments
against the Khalas, declared SSA 2018 a draconian law, enacted with the sole purpose of
safeguarding and cementing LPUF’s position in coming general elections 47 . Such language,
considering the past events in Latveria, could have been understood as inciting protest and hatred
against government prohibited by the SSA. Helena obviously could have foreseen the
consequences; therefore the SSA must be regarded as sufficiently precise.

Since the SSA is accessible and formulated with sufficient precision and foreseeability, the
restrictions in question were provided by law.

Restrictions of Freedom of speech and expression are permissible if they pursue a legitimate
aim. 48 Interference to Freedom of speech and expression can be justified by the demands of
public order. 49 It includes prohibitions on speech which may incite crime, violence, or mass
panic 50 riots and affrays 51 where the organisers and participants have violent intentions 52 and
when there is a concrete threat to an important legally-protected interest.53

45
Sunday Times v United Kingdom App no 6538/74 (ECtHR, 26 April 1979) para 49; Muller v Switzerland, App no
10737/84 (ECtHR, 24 May 1988), para 29; S.W. v the United Kingdom App No 20166/92 (22 November 1995);
Halford v the United Kingdom 20605/92 (ECtHR 25 June 1997).
46
Gorzelik and Others v Poland App no 44158/98 (ECtHR 17 February 2004); Rekvényi v H ngary App no 25390/94
(ECtHR 20 May 1999) para 34; Refah Partisi (the Welfare Party) and Others v Turkey App no 41340/98,
41342/98,41343/98 and 41344/98, (ECtHR 13 February 2003) para 57.
47
The case, para 16
48
ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) article 19(3)(b),
article 21; ACHR (adopted 22 November 1969, entered into force 18 July 1978) 13(2); UNHRC, ‘General comment
No 34’ on ‘Article 19 (Freedom of Opinion and Expression)’(2011) UN Doc CCPR/C/GC/34; Dahlab v Switzerland
App no 42393/98 (ECtHR, 15 February 2001); Interights and Others v Mauritania (ACtHPR 2004) AHRLR 87.
49
Driemand and Others v Norway App no 33678/96 (ECtHR 4 May 2000); ECOSOC, ‘The Siracusa Principles on the
Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’ (1984) UN Doc
E/CN.4/1985/4, cl I(A)(22)-(24);
50
Surek v Turkey (no 1) App no 26682/95 (ECtHR, 8 July 1999); Dogan v Turkey (No. 3) App no 4119/02 (ECtHR 10
October 2006); Sarah Joseph and Melissa Castan, The international Covenant on Civil and Political Rights: cases,
materials, and commentary, p. 618.
51
Sarah Joseph and Melissa Castan, The international Covenant on Civil and Political Rights: cases, materials, and
commentary, p. 646.
Case laws confirm that the sensitivity of security situation or disturbance between the different
groups in a state should be taken into account evaluating the aim of the restrictions. 54 In the
present case, Latveria has been experiencing a tense political situation and increasing social
unrest between the two major religious groups. Thus, it had to place restrictions in order to
prevent public disorder. These restrictions were taken in line with Latveria’s obligations.

In Rassemblement jurassien55, the ECtHR stressed that considerable tension in a state allows
banning the political demonstrations and this restriction complies with the necessity principle.
The situation is the same in the case at hand – Latveria assessed previous violent protests that
even resulted in one of the protestor‘s death and imposed the restriction on violent political
demonstrations. Therefore the restriction should be considered as a proportionate response to a
pressing social need to maintain public safety.

3. Whether the act done by Miss Helena Mallaya falls under the exception 1 and 9 of
Section 499 of Latverian Penal code or not ?

In the instant case Ms. Helena Mallaya declared the Security and Stability Act of 2018 to be a
draconian law enacted with the sole purpose of safeguarding and cementing LPUF’s position in
the coming general elections and underscored the lack of action taken against Mr. Dimitri Von
Beuren apropos to the role he played in instigating the communal riots of 2016. Not only this,
she

52
Stankov and the United Macedonian Organisation Ilinden v Bulgaria App nos 29221/95 and 29225/95 (ECtHR 2
October 2001) para 77; Galstyan v Armenia App no 26986/03 (ECtHR 15 November 2007) para 101.
53
Rassemblement jurassien v Switzerland App no 8191/78 (ECtHR, 10 October 1979) para 9; The German Federal
Constitutional Court (27 February 2008) 1 BvR 370/07 and 1 BvR 595/0; ECOSOC, ‘The Siracusa Principles on the
Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’ (1984) UN Doc
E/CN.4/1985/4, cl I(A)(22)-(24).
54
Kim Jong-Cheol v Republic of Korea, Communication no 968/2001, UN Doc. CCPR/C/84/D/968/2001 (2005)
(HRC); Zana v Turkey App no 18954/91 (ECtHR, 25 November 1997).
55
Rassemblement jurassien v Switzerland App no 8191/78 (ECtHR, 10 October 1979) para 9.
frequently alleged that several attempts had been made tolodged the complains against him, but
invariably none of them had ever fructified into an officially registered complaint and still no
complained is registered in any police station in Latveria against Mr. Dimitri Von Beuren anent
such accusations. And for this statement she was charged for the offence of Defamation under
Sec. 499 LPC. Section 499 LPC talks about defamation and the provision also contains 10
exceptions and in the instant case the appealant is not guilty of the offense under exception 1 &
exception 9 of the Sec 499 LPC.
3.1 THAT THE ACT DONE BY MISS HELENA MALLAYA DOES NOT FALL
UNDER THE EXCEPTION 1 OF SECTION 499 OF LATVERIAN PENAL CODE

Exception 1 of Section 499 states:

Imputation of truth in public interest for public good -
To invoke this there are two essentials:
1)That alleged imputation regarding the complainant was true
2) that this publication was for the public good.
If any of the two essentials is not satisfied , Exception 1 would not be attracted.56
In the instant case , all the things said by Ms. Helena Mallaya were just allegations and she had
no such proofs against Mr. Dimitri Von Beuren. Also, the publications made by her can’t be said
for public good as a large number of members of the Khala sect who read the column on
InstaPost also posted their comments that they were prepared to defend themselves and would
carry knives or other available weapons in case of persecution by law enforcement agencies or
the government on the Day of Resistance.
Also, on the 1st of June 2018 a fringe coterie of Khala demonstrators abruptly started chanting
hard-line political messages, set fire to a Bajoran religious building frequented by leading
government officials, and lashed out at law enforcement officers who endeavoured to subdue
them.
All these things just create discontentment among the people , and led to protests which also
turned violent.And anything harming public peace can’t be of public good . And it also not fulfils
essentials two of the exception 1 of Section 499 LPC.

56
Haripad V. Emporer 31 Cr LJ 1225: AIR 1930 Cal 645
 3.2 THAT THE ACT DONE BY MISS HELENA MALLAYA FALLS UNDER
THE EXCEPTION 9 OF SECTION 499 OF LATVERIAN PENAL CODE

Exception 9 of Section 499 states:

Imputation made in good faith by person for protection of his or other's interests- It is not defamation to make an imputation
on the character of another provided that the imputation be made in good faith for the protection of the interests of the
person making it, or of any other person, or for the public good.

To invoke this there are two essentials:

1) The statement must be made for protecting the interest of the maker or recipient of the
communication or for public good and;
2) The communication must be made in good faith.57
The act of Ms. Helena Mallaya don’t fall under exception 9 of Sec. 499 LPC as essential
1 speaks about public good which can’t be fulfilled as acts done by Ms. Helena Mallaya
create discontentment among the people, and led to protests which also turned
violent.And anything harming public peace can’t be of public good. More over , as per
essential 2 speaks about Good Faith which is defined under General Clause act.
As per General Clause Act, 1897 “A thing shall be deemed to be done in "good faith"
where it is in fact done honesty, whether it is done negligently or not.”
As already proved in 3.1 the the statements given by Ms. Helena Mallaya were not true
also she made such a publication at that time when the matter is already at its heat which
also supports it as an negligent act as it can be presupposed by a ordinary prudent person
that this kind of publication can incite the feeling of Hatred , violence among people.
And in this way that act also seems to be negligent.
As none of the essentials of exception 1 of Section 499 LPC are fulfilled by the acts of
Ms. Helena Mallaya she cannot the defense of it and is hence liable for the defamation.

In the case of Indian Express Newspaper (Bombay)(P) Ltd. v. Union of India the
Hon’ble court sets out four purposes of free speech and expression:
(i) it helps an individual to attain self-fulfilment,

57
Sankamma v. Govinda Chetti AIR 1925 Mad 246
 (ii) it assists in the discovery of truth,
(iii) it strengthens the capacity of an individual in participating in decision-making,
and
(iv) it provides a mechanism by which it would be possible to establish a reasonable
balance between stability and social change.

In the instant case , Miss Helena Mallaya accused the Prime Minister and other members of the
Bajoran-led governments in Latveria of corruption, human rights violations and wanton
discrimination against the Khalas, declared the Security and Stability Act of 2018 to be a
draconian law enacted with the sole purpose of safeguarding and cementing LPUF’s position in
the coming general elections and underscored the lack of action taken against Mr. Dimitri Von
Beuren apropos to the role he played in instigating the communal riots of 2016 .

4. Whether the state of Verde can compell the Instapost to take down Ms. Mallaya
column’s and post an apology or not?
4.1 THAT STATE OF VERDE HAS VALID JURISDICTION UNDER THE
PROVISIONS OF CYBER LAW

In the instant case , Instapost has a direct nexus with the State of Verde.
“Concomitantly, the use of social media had always been popular in the Latverian
archipelago. Feeling that they had been rendered somewhat taciturn, the people of
Latveria embraced the InstaPost platform as an integral part of their quotidian lives,
some even going as far as to dub it the Fifth Estate of Latveria .”
The above mentioned para shows the nexus of Insapost and Satate of Verde.
 And as per cyber law, No state can exercise personal jurisdiction and authority over persons
outside its territory unless the persons have manifested some contact with the state 58 The whole
trouble with internet jurisdiction is the presence of multiple parties in various parts of the world
who have only a virtual nexus with each other. 59 Issues of this nature have contributed to the
complete confusion and contradictions that plague judicial decisions in the area of internet
jurisdiction. Because cyberspace has no geographical boundaries, it establishes immediate long-
distance communications with anyone who can have access to any website. Accordingly, in each
case, a determination should be made as to where an online presence will subject the user to
jurisdiction in a distant state or a foreign company. As such, a single transaction may involve the
laws of at least three jurisdictions:
1. The laws of the state/nation in which the user resides,

2. The laws of the state/nation that apply where the server hosting the transaction is located, and

3. The laws of the state/nation which apply to the person or business with whom the transaction
takes place.
Also, Section 75 of the Information Technology Act, 2000 deals with extraterritorial application of
the law, the section states that the provisions of the Act will apply to
(a)Any person irrespective of nationality
(b)An offence or contravention committed outside India
The said offence or contravention must have been committed against a computer, computer system or
computer network located in India. The Act has therefore adopted the principal of universal
jurisdiction to cover both cyber contraventions and cyber offences. It is important to note that the
universal jurisdiction over specified offences is often a result of universal condemnation of those
activities, and requires co-operation to suppress them, as reflected in widely accepted Cyber Crime
Convention.

58
Retrieved from, http://legal-dictionary.thefreedictionary.com/Personal+Jurisdiction, last visited on 25-02-2019
at 11.10 IST
59
Amita Verma, Cyber Crimes and Law, Central Law Publications, Allahabad, 2009, p.318.