1

Code No……..…..

SCHOOL OF LAW, CHRIST UNIVERSITY
MOOT COURT COMPETITION, 2010

BEFORE THE HON’BLE SUPREME COURT OF INDIA

Just World & Others……………………………………………….Petitioner Versus Union of India & Others……………………………….Defendant

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

MEMORIAL FOR RESPONDENTS

Memorial for Respondent

2

TABLE OF CONTENTS

ABBREVIATIONS……………………………………………… INDEX OF AUTHORITIES………………………………… STATEMENT OF JURISDICTION………………………...... STATEMENT OF FACTS….……………………………….... STATEMENT ISSUES…………………………….............. SUMMARY ……………....... SUMMARY ARGUMENTS……………………………………. CONCLUSION AND PRAYER……………...……..………… APPENDIX………………………………………………….. OF OF PLEADINGS………………. OF

Memorial for Respondent

3

ABBREVIATIONS

&……………………………………………………………………………………….And AIR……………………………………………………………………...All India Reporter Hon’ble…………………………………………………………………………Honourable I.T………………………………………………………………...Information Technology Co……………………………………………………………………………...…Company Cri LJ………………………………………………………………..Criminal Law Journal Edn…………………………………………………………………………………Edition i.e………………………...………………………………………………………….That is Ltd.....................................................................................................................…....Limited Pvt……………………………………………..…………………………………….Private SC…………………………………………………………………………..Supreme Court

Memorial for Respondent

4 SCC…………………………………………….……………………Supreme Court Cases U.S……………………………………………………………………………United States Vol……………………………………………………………………………….…Volume p………………………………………………………………………………………..Page v……………………………………………………………………………………..Versus Ors…………………………………………………………………………………..Others Anr…………………………………………………………………………………Another SCR……………………………………………………………….Supreme Court Reports

INDEX

OF

AUTHORITIES

CASES CITED
Gopal Das Mohta v. Union of India. AIR 1955 SC 1 : 1955 (1) SCR 773 Chiranjit Lal Chowdhuri v. Union of India, (1950) SCR 869: AIR 1951 SC 41. Regina v. Liverpool Corporation 1972) 2 QB 299, 308-09. State of A.P. v. McDowell& Co. (1996) 3 SCC 709 (para 49). Mahendra Kumar Gupta v Union of India(1995) 1 SCC 85, 89 K.Venu v. Director-General of Police. A.I.R. 1990 Ker.344 at p.345 Life Insurance Corporation of India v. Prof. M.D. Shah, 1992(3) S.C.J. 84 : A.I.R. 1993 S.C. 171 at p. 177 Ramesh Yeshwant Prabhoo(Dr.) v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130 Memorial for Respondent

562 S. 8 Media L.Y. City of Jacksonville 422 U. 2d. Supp. Zimmerman277 F. Alpers338 U. 766 N. Hinds437 Mass.2d 1067(2002): 537 U. 3 Media L. v. Inc.D. 900 F. State of N. Rptr.S.S. 1205. Peterson. City of Dover.S. Arvin.3d 426 (3d Cir. Parnigoni v. Barth. 747 (1982) Osborne v.E. State of MaharashtraAIR 1965 SC 881 Miller v.. Ferber 458 U. 501 U. Cal. Tex. 2d 313.2d 823 (D. Ohio 495 U. American Civil Liberties Union521 US 844 (1997) Krishna Bus Service Pvt. 418 U.S. v.C. (1978) 3 All ER 184 U.S.S. 560 (1991) Mishkin v. District of Columbia. 3d 197. California 413 U. 15 (1973) American Booksellers Assn. 832 (S. 122 Ill. Superior Court. 1049 (2003) Ranjit D.S.2d 1200 (1988) State v.S. 3d 638. Stanley(1965) 1 All ER 184 Miller v.S. (BNA) 2216 (Tenn.S. 558. 103 (1990) Barnes v. 2d 716. 476 (1957) Com. 2002) 354 U. 502 (1966) Kois v. 2d 929 (W.C. Y 383 U. Samaresh Bose v. Dost.141 Rajasthan Pradesh V.MANU/SC/0408/2010 U. Dec. Ct. v.W. Ill.H. 512 S. 2003 WL 22283378 (N. App. U. 119 Ill. Inc. 768 N.S. 560 (1991) Memorial for Respondent . v. Rep. 535 N. U.. 2007) People v. 1990). 522 N.E. 341. v. Supp.S. v. 1986).2d 430. 181 Cal. Supp.S.S. 680 (1950) People v. California413 U.S. Ct. Slaton 413 U.1.2d 482 (Sup 2003): 1 Misc. 1998).E. App. v. Amal Mitra.S.I. Ed.. (1985) 4 SCC 289 U. Walsh v.S. U. 828.D.R. 933 A.Y. 26 F.S.S. 205 (1975) New York v.D. Udeshi v. S. 123 S. 229 (1972) Kaplan v. 476 (1957) Hamling v. Geever. App. Union of India (UOI) and Ors. 129 Cal. State AIR 1980 SC 258 Reno v. 2d 1111 (C.3d 426 (3d Cir.5 Raj Kapoor v. 1978). (BNA) 2014 (2d Dist.2d 1385 (9th Cir. 2002) Roth v. 381 A2d 752 (1977) Capitol News Co. Glen Theatre.S. 636 F. Pacificia Foundation. 117 N. M/s. News.2d 689 (Minn. Zimmerman277 F. 1998) United States v. State of Haryana. 15 (1973) F. V. Smith 27 F. 1280.1066.S. Inc. 154 L. 54. v.W. A. v. 115 (1973) Paris Adult Theatre I v. Metropolitan Government of Nashville and Davidson County. 49 (1973) U. State 236 Ga. v. Inc v. 1982). United States v.2d 408 (1999). 87 (1974) Erznoznik v. Sardarshahar and Anr. Wisconsin 408 U. Rep.S. Sup 2003) R v. 1984 P&H 137 at p.S.C. 1995) 1 501 U. 196 Misc. S354 U. Ltd. 33. California413 U. Emerson.

L.. 780 (N. State. 197: A. Inc. 130 Market St.415: (1961) 2 Guj. Union of Territory of Delhi AIR 1981 SC 746(para 3) Maneka Gandhi v. Central Ave. 1981) State ex rel. Dharmpal (2003) 4 SCC 493 District Registrar and Collector v.R. N.S. 102 Idaho 451. State ex rel. Wilson. 153 Ga. 30 Ill. Crim. Long v.W. The Union of India PIL No. Gift & Novelty of Johnstown.2d 517 (1982).C. Rep. v.2d 851 (N. 232. (BNA) 1818 (Del. 250 So. Kidwell v.S. 155 of 2009 TREATISES AND BOOKS REFERED Memorial for Respondent . Inc. Bin Laden. L. Inc.Dani AIR 1978 SC 1025 State of Bombay v. 95 Cal. P.2d 842 (Tex. Schaub. State v.2d 624 (Okla. 440 A. 631 P. 632 S. H. App.R. Canara Bank (2005) 1 SCC 496: AIR 2005 SC 186 Nandini Satpathy v. 486(1897) Francis Coralie Mullin v.S. People v.2d 869 (4th Dist. v. 291 N.2d 26 (1972) Movies. 406 A. U.Y. 1974) Buck v.W. S. People v. 1974 OK CR 108. Mitchem v. (BNA) 2418 (1980). 2d 883 (Fla.165 U. Rptr. Shyamalal’s case AIR 1965 SC 1251: (1965) 2 CrLJ 256 Sharda v.6 Gotleib v. App. v. Conlisk. City of Minot v. 126 F. Supp. 440.R.D. Stout. Steel.L. People v. 383.R.. 1961 Guj. Cherokee News & Arcade.2d 669. U. 308 N. 1971). 5 Media L. 1961(2) Cr. 1979). Inc. Union of India AIR 1978 SC 597 : (1978) 1 SCC 248 State of Haryana v. State.J 338: (1961) 2 Guj. 263 Ark. 3d 399. Muldowney.3d 988 (7th Cir. App. Powell v. App.2d 622. Marketing.W.D. 3d 172.2d 73 (1980).E. 1982). Ch. 18 Cal. 331 N.L. 137 Janhit Manch and Ors v. Wilfred Sabastian 1983 CrLJ NOC 43(Ker) U. 1998) Astt. Collector of Central Excise v.S. 2000). 564 S.2d 215 (1978).. v. 1975). 292 A.354 U. Ill. 5 Media L.J.4th 381 (1981). 533 P. 95 Mich. 74 Cri LJ 923 Dunlop v. 476(1957) Atkins v DPP and Goodland v DPP(2000) 1 WLR 1427(QBD) Uttam Singh v.S. Supp. Flynt v. News. Hall 142 F. 264 S. Super. 345 F.I. U. Kathi Kalu Oghad AIR 1961 SC 1808 Ranchhod Das Khimji Ashre v Temton Jahangir. Mabie.E.D. 594. State. Roth v. 593 (2d Dist. App.2d 270. 294 Pa. State. Bhajan Lal AIR 1992 SC 604 U. Rep. 1971). 1971). 2d 264 (S. StateAIR 1974 SC 1230. Houston 14th Dist. S. App. 249. 60 N.W. 25 A.

7. The Code of Criminal Procedure. P.Vol. Information Technology(Amendment) Act.). (2nd Edn. Pvt.. 2007) 2..2001) 6. Wadhwa Nagpur.N.. Law relating to Women & Children. Constitutional Law of India .Pandey. 2008 2.Shukla. 2007) 4. Wadhwa Nagpur.(10th Edn. (4th Edn. Mamta Rao.. Ratan Lal and Dhiraj Lal. Commentary on the Constitution of India. Shorter Constitution of India. Constitution of India. Constitutional Law of India. Wadhwa Nagpur. New Delhi. Ashoka Law House. 8.M. V. 2000 Memorial for Respondent . Prof. New Delhi (5th Edn. Vol II. Eastern Book Company. J.7 1. Wadhwa-Nagpur. (42nd Edn. New Delhi (18th Edn. Eastern Book Company. 2008) ACTS AND TREATIES REFERRED 1. Reprint 2007) 5.Seervai. Information Technology Act. Arvind P.. Dr.Reprint 2003) H.N. M. Basu. (2nd . D. New Delhi (13th Edn. Datar.. Universal Law Publishing Co. New Delhi (10th Edn. Ltd. Indian Constitutional Law. Reprint 2007) 3. Code of Criminal Procedure Code.Lucknow. N. Jain..Central Law Agency. Vol I. Durga Das Basu.1. 2005) 9.

1860 6. Constitution of India 5. The Code of Criminal procedure.pdf STATEMENT OF JURISDICTION The Respondent. 1973 7.8 3. The Trade Marks Act. 1986 4.P a c i f i c H u m a n R i g h t s N e t w o r k ) http://www. Union of India & Others hereby submits this Memorandum before the Hon’ble Supreme Court of India. 1999 HUMAN RIGHTS FEATURES ( V o i c e o f t h e A s i a . in Just World & Others v. Memorial for Respondent . invoking the writ jurisdiction under Article 32 of the Constitution.naavi. Indian Penal Code. Indecent Representation of Women(Prohibition) Act.org/cl_editorial_09/obscenity_freedom_court_view. Union of India & Others.

a student of digital animation.9 STATEMENT OF FACTS I Kayjay DeSouza. a law student and Sukhdeep. designed a comic strip named “Pramila Adershan’s Meaty Meanderings” which described the life and escapades of an adventurous and licentious thirty five year old housewife. The comic strip Memorial for Respondent .

IV As the comic strip became quite popular Sukhdeep and Kayjay decided to set up a company. They had tie-ups with iStore and Ebay to meet demands.8 Crores with 20 illustrators as employees. V Pramila inspired a seasonal rage amongst the adolescent youth much to the annoyance of the older generation. II They registered a web site “Pramilaadershan. Pushkar Ventures Pvt. a right wing association began protests and claimed that some mothers of a few teenagers had requested them to help as their children were being morally depraved. where they burnt print-outs of the comic strip. 21.com” through Google in US and took out a trademark for it both in the US and in India. Soon after they started their careers. VII Memorial for Respondent . Hence culture vultures held a protest meeting outside the offices of Pushkar ventures. They became promoter directors of a new private company. Their intentions were to protect the Indian culture and feminine virtues. It was valued by an independent accounting firm at Rs. Some copies of the comic strip were even confiscated by the lecturers at college. VI Culture Vultures. Ltd contributing equally to the initial capital of the company.10 was quite sexually overt both textually and graphically. III As they found it difficult to generate stories each week they asked readers to contribute.

the Magistrates ordered personal appearance of the accused before granting bail. XII A letter from an angry Indian mother reproaching them for hosting such depraved and salacious content sent by istore and Ebay was also found in their office. companies that gave server space to Pushkar Ventures. VIII There were also complaints by a lawyers association in Tamil Nadu and some other right wing organizations in 11 districts in Gujarat and 3 other districts in Madhya Pradesh. Their relationship had lasted about 3 months. In many cases. cyber café owners on whose caches Pramila Adershan’s data was found and Istore and Ebay claiming that they were intermediaries. The police launched investigations against many of these persons. Bangalore (South) entered the offices of Pushkar Ventures and seized all the computer hard disks and story board clippings hanging there. The officer also found some personal letters of communication between Kayjay and his ex-girlfriend. XI The Superintendent of Police. IX Moreover Culture Vultures began filing complaints indiscriminatingly against internet service providers.11 Culture Vultures members registered complaints in more than 38 police talukas in Karnataka. XIII Memorial for Respondent . the Central Government issued an order banning the website. He also found other pornographic material which he claimed was being used by the employees for inspiration. X Reacting to all this.

1986 and relevant sections of IPC XIV Sukhdeep and Kayjay applied to the Karnataka. a reputed civil society filed a writ petition in the Supreme Court.12 In February 2009 the company and its directors were charged under Sections 67A of the Information Technology Act. XV Kayjay also filed a separate writ petition alleging violation of his privacy. Tamil Nadu. They also filed a writ petition in the High Court of Karnataka challenging the order blocking the website. Memorial for Respondent . XVI COITAL filed a writ petition challenging the penalties imposed on intermediaries under the Information Technology Act XVII Just world. stating that a case had not been made out for the same under Section 69A of the Information Technology Act. The High Court stayed the operation of the order for four weeks on the statement of the Solicitor General of India that the Union would file an appeal before the Supreme Court. 2000 (as amended) r/w Sections 3 and 4 of the Indecent Representation of women (Prohibition) Act. XVIII Kayjay and Sukhdeep moved to the Supreme Court under Article 139A. Gujarat and Madhya Pradesh High Court were refused to stay or quash the complaints. COITAL also filed the transfer petition. Gujarat and Madhya Pradesh High Courts for quashing of various complaints under Section 482 of the CrPC. The Karnataka.

1860? (C) WHETHER THE THE SEARCH AND SEIZURE POWERS GRANTED UNDER SECTIONS 29 AND 80 OF INFORMATION TECHNOLOGY ACT. 1986 AND THE INDIAN PENAL CODE. STATEMENT OF ISSUES (A)WHETHER THE PETITION IS MAINTAINABLE UNDER ARTICLE 32 OF THE CONSTITUTION?’ (B) WHETHER 2008 THE SECTIONS UNDER THE INFORMATION TECHNOLOGY (AMENDMENT) ACT SECTIONS OF ARE CONSTITUTIONAL ALLIED WITH THE INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT.13 XIX As per the observation of Judges in the Karnataka High Court the Chief Justice constituted a Constitution bench and passed a fresh interim order staying all proceedings and remanding all matters to the bench. 2000 ARE CONSTITUTIONAL? Memorial for Respondent . 2010. XX The mater is posted for final hearing on August 22.

An association cannot file a writ petition under Article 32‘person aggrieved’ does not include a mere busybody who is interfering in things which do not concern him. Memorial for Respondent .14 (D) WHETHER THERE HAS BEEN ANY INFRINGEMENT OF 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 THE RELEVANT SECTIONS ? (F) WHETHER A CASE HAS BEEN MADE OUT IN CASE OF CONSTITUTIONALITY OF SECTION 69A OF THE INFORMATION TECHNOLOGY (AMENDMENT) ACT. An enactment cannot be struck down on the plea that it is unreasonable. THE PETITION IS CONSTITUTION NOT MAINTABLE UNDER ARTICLE 32 OF THE There is no violation of petitioner’s fundamental rights. THE PETITIONER DOES NOT HAVE THE LOCUS STANDI Petitioner cannot be heard to complain about discrimination suffered by others. 2008? SUMMARY OF PLEADINGS I. unnecessary or unwarranted II.

AIR 1955 SC 1 : 1955 (1) SCR 773 Memorial for Respondent .1) The sole object of Article 32 is the enforcement of the fundamental rights guaranteed by the Constitution. Union of India. being in contravention of some provisions of the Constitution. Sections 29 and 80 are constitutional V. 69A and 69B of the Information Technology (Amendment) Act 2008 and allied provisions in the Indecent Representation of Women (Prohibition) Act. Sections 67A.2 Even if the Supreme Court finds that a law must be held to be void. Unless a fundamental right is violated a person cannot complain under this article. There is no infringement of right to privacy VI. 1986 and the Indian Penal Code. the Court will not give relief under 2 Gopal Das Mohta v. Article 20(3) has no applicability in this case VII.15 III. Central Government can block the websites in cases of violation of public order under Section 67A ARGUMENTS ADVANCED A) WHETHER THE WRIT PETITION IS MAINTAINABLE? A. 1860 ARE CONSTITUTIONAL IV.

16 Article 32 unless it is satisfied that a fundamental right is infringed. Liverpool Corporation6. (1996) 3 SCC 709 (para 49). (1950) SCR 869: AIR 1951 SC 41. 6 (1972) 2 QB 299.4 It is said that an enactment cannot be struck down on the plea that it is unreasonable. but also that it invades the fundamental rights guaranteed by the Constitution of which he can seek enforcement by an appropriate writ or order. THE PETITIONER DOES NOT HAVE THE LOCUS STANDI 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.P. 308-09. 19(1) (a) & (g) and 21 of the Constitution. Of late there is a rampant abuse of PIL. alleges infringement of Articles 14. In this case the Petitioner. but it includes any person who has a genuine grievance because something has been done or may be done which affects him. But there is no violation of fundamental rights as the Petitioner claims and hence this writ petition is not maintainable. Just World has filed a Writ of under Article 32 challenging the Constitutionality of sections of the Information Technology (Amendment) Act. 2008. Lord Denning M. held that the expression ‘person aggrieved’ does not include a mere busybody who is interfering in things which do not concern him. ibid 5 State of A. 89 Memorial for Respondent . This was laid down in the case of Mahendra Kumar Gupta v Union of India7. McDowell& Co. Frivolous cases are filed without any 3 4 Chiranjit Lal Chowdhuri v. Union of India. It is not concerned with the determination of the legislative competence or vires of a particular enactment.3 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. Just World.R. In the case of Regina v. v. Also an association cannot file a writ petition under Article 32. as not being covered by any of the items in the legislative lists.2. 7 (1995) 1 SCC 85. There is always a presumption in favour of constitutionality. 5 In this case. The A. A petitioner cannot be heard to complain about discrimination suffered by others. unnecessary or unwarranted.

There is a connection between freedom of speech and the stability of the society. 1990 Ker.R.. It includes any laws made or passed by a competent legislature. Section 67A of The Information Technology (Amendment) Act. 1860? B. They have been mooted by privately motivated interests in the disguise of the socalled public interests. Director-General of Police. It is considered to be in the general 8 K.344 at p. In the former. There is no infringement of Article 19(1) (a) of the Constitution which gives citizens the right to freedom of speech and expression. 1986 AND THE INDIAN PENAL CODE. This freedom is subject to Subclause (2) of Article 19.1 SECTION 67A OF THE I. India is also a party to the International Covenant on Civil and Political Rights and therefore bound to respect the right to freedom of expression guaranteed by Article 19 thereof. etc.17 reason.T (AMENDMENT) ACT IS CONSTITUTIONAL. To declare a law as unconstitutional it has to be shown that there is violation of fundamental rights. freedom of speech guaranteed is absolute and in the latter the Constitution itself provides for certain exceptions.345 Memorial for Respondent . There is a sharp distinction between Constitution of United States of America and India. According to Article 13 of the Constitution the laws inconsistent with or in derogation of the fundamental rights will be considered void. in electronic form.Venu v. A. 2008 dealt with punishment for publishing or transmitting any material containing sexually explicit act.I. 69A 2008 AND ALLIED AND 69B OF THE IN INFORMATION INDECENT TECHNOLOGY ACT PROVISIONS THE REPRESENTATION OF WOMEN (PROHIBITION) ACT. We see that there is no infringement of Fundamental Rights as alleged by the Petitioner. (B) THE CONSTITUTIONALITY (AMENDMENT) OF SECTIONS 67A. which allows the State to impose restriction on the exercise of this freedom in the interest of public decency and morality8. The Petitioner has failed to show the ‘public interest’ element in this case.

M/s. American Civil Liberties Union12 it was held that it would be wrong to restrain speech on the internet. The moral values in particular.C. 1993 S.I. Union of India (UOI) and Ors14 . or to carry on any occupation. the Apex court dealt with the aspect of censorship and held that freedom of expression cannot be questioned by an intolerant group of people. In the case of Raj Kapoor v. V. Prabhakar Kashinath Kunte. the Court decided that “the right to practice under Article 19(1)(g) 9 Life Insurance Corporation of India v. 171 at p. This is to ensure that there is a restriction on speeches and publications which undermines public morals. In Rajasthan Pradesh V. 84 : A. 177 Ramesh Yeshwant Prabhoo(Dr. M. except for dissemination of obscene messages.R. (1996) 1 SCC 130 11 AIR 1980 SC 258 12 521 US 844 (1997) 13 Krishna Bus Service Pvt. 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.C. v.I. Hence there is no violation of Article 19(1) (a). Prof.) v.13 Hence sexually explicit acts arouse lascivious interest in the minds of people.J. State11. Article 19(1) (g) ensures the freedom to practice any profession. State of Haryana. trade or busniness.9 Decency means that the action must be in conformity with the current standards of behaviour or propriety. Sardarshahar and Anr. Shah. In the case of Reno v. 1984 P&H 137 at p. Ltd.10 This shows that obscenity which is offensive to public decency and morality is outside the purview of the protection of free speech and expression. should not be allowed to be sacrificed in the guise of social change or cultural assimilation”. It is against public decency and morality and hence comes within the purview of restrictions imposed under Clause 2 of Article 19.R. because the Article dealing with the right itself excludes it. 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 Constitution.S.18 interest if the society. 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.D.141 14 MANU/SC/0408/2010 10 Memorial for Respondent . A. 1992(3) S.

as the repairman was not an agent of the government and did not act with the participation or knowledge of any governmental official15. In this issue mother of the teenage children had asked the help of the Culture Vulture and bundles of cases filed against them in various parts of the Country. which forbids the interstate shipment of any obscene book.19 of the Constitution is not absolute and is subject to reasonable restrictions provided under Article 19(6) of the Constitution”.S. 2d 716. political or scientific value. 680 (1950) 17 (1965) 1 All ER 184 Memorial for Respondent . and that it lacks serious literary. In U. For something to be ‘obscene’ it must be shown that the average person. picture. would find that the work appeals predominantly to ‘prurient’ interest. That itself shows that the strip is obscene as per the ordinary man’s perspective. Sup 2003) 16 338 U. In a prosecution for possessing a sexual performance by a child. Stanley17 it is clearly pointed out that anything that is obscene must necessarily be indecent. Alpers16 . Obscene phonograph records are within the prohibition of 245 of the Criminal Code.S. In the case of R v. v.2d 482 (Sup 2003): 1 Misc. 766 N. writing. or other matter of indecent character. letter. that it depicts or describes sexual conduct in a offensive way. both textually and graphically. 15 People v. a computer repairman’s initial private search of the files in defendant’s computer was not subject to Fourth Amendment scrutiny. 2003 WL 22283378 (N. Hence the publishing or transmission of sexually explicit act is within the restriction mentioned in 19(6) and hence the section is not unconstitutional. motion-picture film. pamphlet. In other words. Indian culture is more conservative and orthodox than the United States and the people here are more sensitive about the morality and decency. 196 Misc.Y. artistic.Y. paper. Emerson. print. 3d 638. The letters of angry Indian mother for hosting such depraved and salacious content itself shows that the Pramila Adershan’s character is obscene. applying contemporary community standards and viewing the material as a whole.S. In this case the comic strip was quite sexually explicit.

v. v. Central Government also issued an order for banning the website because of its filthy content. 2002) Memorial for Respondent . applying contemporary community standards. appeals to the prurient interest? Whether the work depicts/describes. in a patently offensive way. would find that the work. (1978) 3 All ER 184 413 U.S. That means it can legally be banned. 26 F.20 indecent merely means non conformance with accepted standards of morality. or scientific value? All the factors mentioned in the questions are satisfactory to define the material in this issue as obscene and filthy. Pacificia Foundation. The search warrant application contained information that the Third Circuit found to be “stale”. 2d 929 (W. artistic. United States courts use the Miller test for determining whether speech or expression is ‘obscene.S. In Zimmerman. lacks serious literary.D. Amal Mitra. taken as a whole. It also gives false image of traditional Indian housewife. Zimmerman22. The Miller test stems from Miller v. (1985) 4 SCC 289 22 277 F. Child pornography is offensive in most of the Countries in the world. 21 Samaresh Bose v. U. because it stated that “many months” earlier. political. Indian culture and feminine virtue is spoiled in this indecent character.20The comic strip is against the national and contemporary standards of the society. sexual conduct specifically defined by applicable law? Whether the work. the defendant was indicted for possession of child pornography when several images were found at his residence during the execution of a search warrant. 1998). in which the US Supreme Court held that material is obscene if each of the following factors is satisfied: Whether the average person.3d 426 (3d Cir.S.C.C. Supp. Obscenity refers to that which has prurient or lascivious appeal18.’ and therefore not protected by the First Amendment. 15 (1973) 20 U. provides persuasive analysis of the issue of “staleness”. v. Tex. California19. Police also found pornographic material from their office. taken as a whole. Barth. one clip of adult pornography had been 18 19 F.21 A federal court case. Obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences.

476 (1957) 25 418 U. applying contemporary community standards.24. Court was affirming conviction of mailing and conspiring to mail an obscene advertising brochure with sexually explicit photographic material relating to their illustrated version of the Presidential Report of the Commission on Obscenity and Pornography. when the screen is visible from a public street or place.S. held facially invalid as an 23 24 437 Mass. to the average person. In Hamling v. In Com.S. S. holding that child pornography images stored on defendant’s computer were in police officer’s plain view. KIDSEX1. 768 N. 2d.21 accessed at Zimmerman's computer. City of Jacksonville26 . and there was a substantial risk that the computer data would be destroyed if the computer was not seized. such as 2BOYS. On this basis. 123 S.JPG. and TEENSEX. Ct. officer had consent to search the computer for electronic mail. U. 1049 (2003) 354 U. is whether. 87 (1974) 26 422 U. Ed. 154 L. 1280. the denial of the suppression motion was reversed.25 . adequate to withstand the charge of constitutional infirmity.S. appeals to prurient interest. Hinds23. 1205. In Erznoznik v. U. the titles to the documents. and thus officer’s seizure of defendant’s computer was not unlawful. created probable cause to believe that their contents contained illegal subject matter. The sexually explicit contents will never come under the purview of Fundamental Rights of the Indian Constitution. The standard for judging obscenity. 205 (1975) Memorial for Respondent .2d 1067(2002): 537 U. v. taken as a whole. Jacksonville. Florida ordinance making it a public nuisance and a punishable offense for a drive-in movie theater to exhibit films containing nudity. In Roth v. officer was not required to disregard files listed in plain view in the computer directory. as to the States. 54. the dominant theme of the material.S. Court opines that Obscenity is not within the area of constitutionally protected freedom of speech or press either (1) under the First Amendment. as to the Federal Government.E. or (2) under the Due Process Clause of the Fourteenth Amendment. S.

Obscene material in book form is not entitled to First Amendment protection merely because it has no pictorial content.22 infringement of First Amendment rights. 115 (1973) Memorial for Respondent . rather than the public at large.S. Ohio28 . Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group.S.30.S. Wisconsin31 .S. Petitioner was convicted for publishing in his underground newspaper pictures of nudes and a sex poem. In Mishkin v. Ferber 27 . State of N. As applied to respondent and others who distribute similar material. a New York statute prohibits persons from knowingly promoting a sexual performance by a child under the age of 16 by distributing material which depicts such a performance. Y. Glen Theatre. 502 (1966) 31 408 U. 27 28 458 U. to avoid the deleterious consequences it can reasonably conclude (conclusive proof is not required) result from the continuing circulation of obscene literature. the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. the statute in question does not violate the First Amendment as applied to the States through the Fourteenth Amendment. it is mentioned that Ohio may constitutionally proscribe the possession and viewing of child pornography. 560 (1991) 30 383 U. 747 (1982) 495 U. 229 (1972) 32 413 U.29.S. California32 . It is also pointed out that Kaplan v. In New York v. On other issue of Barnes v. even distribution to consenting adults. 103 (1990) 29 501 U. As mentioned in Kois v.S. A State may control commerce in such a book. In the case of Osborne v. the Enforcement of Indiana’s public indecency law to prevent totally nude dancing does not violate the First Amendment's guarantee of freedom of expression. Inc.

filthy and repulsive. In the case of R v. Alpers35 . In a prosecution for possessing a sexual performance by a child. paper. 2008. print.2d 482 (Sup 2003): 1 Misc. or other matter of indecent character. In Ranjit D.S. Pacificia Foundation. Obscenity refers to that which has prurient or lascivious appeal38. Stanley37 it is clearly pointed out indecent merely means non conformance with accepted standards of morality.C. Obscene phonograph records are within the prohibition of 245 of the Criminal Code. State of Maharashtra36the term obscenity is defined by the Supreme Court as ‘the quality of being obscene which means offensive to modesty or decency. pamphlet. lewd. The letters of angry Indian mother for hosting such depraved and salacious content itself shows that the Pramila Adershan’s character is sexually explicit. Indian culture is more conservative and orthodox than the United States and the people here are more sensitive about the morality and decency.S.S. v. 766 N. The per se action of the petitioner can be considered as sexually explicit and the persons are liable for their act. 3d 638. writing.S. That 33 34 413 U. In U. 2d 716. which forbids the interstate shipment of any obscene book. letter. Emerson.C.’ and therefore not protected by the First Amendment. 196 Misc. a computer repairman’s initial private search of the files in defendant’s computer was not subject to Fourth Amendment scrutiny. v. Udeshi v.23 Court in Paris Adult Theatre I v. 49 (1973) People v. Slaton 33. 680 (1950) 36 AIR 1965 SC 881 37 (1965) 1 All ER 184 38 F. motion-picture film. This also includes sexually explicit content under Section 67A of the Information Technology (Amendment) Act. 2003 WL 22283378 (N. picture. as the repairman was not an agent of the government and did not act with the participation or knowledge of any governmental official34.Y.Y. contented that Exhibition of obscene material in places of public accommodation is not protected by any constitutional doctrine of privacy. United States courts use the Miller test for determining whether speech or expression is ‘obscene or sexually explicit. (1978) 3 All ER 184 Memorial for Respondent . Sup 2003) 35 338 U.

Supp. (1985) 4 SCC 289 42 American Booksellers Assn. v. Context is also important in determining ‘whether the image is intended or designed to elicit a sexual response in the viewer. Metropolitan Government of Nashville and Davidson County. Supp. v. Central Government also issued an order for banning the website because of its filthy content. It also gives false image of traditional Indian housewife.24 means it can legally be banned. 26 F. 562 S. 1998). or scientific value? All the factors mentioned in the questions are satisfactory to define the material in this issue as sexually explicit and filthy. 44 United States v. 33. Police also found pornographic material from their office.41 Greater latitude is permissible in defining child pornography.D. Amal Mitra. Indian culture and feminine virtue is spoiled in this indecent character.S. lacks serious literary. 117 N. 41 Samaresh Bose v. 129 Cal. App. 8 Media L. v. v.Capitol News Co. sexual conduct specifically defined by applicable law? Whether the work.D. Ill. Rep.. It has the tendency to deprave and corrupt those whose minds are open to such immoral influences.S.E. City of Dover. Inc. Superior Court. applying contemporary community standards.2d 430. (BNA) 2216 (Tenn. 828. 3 Media L. v.2d 408 (1999). U. 900 F. (BNA) 2014 (2d Dist. artistic.. Supp. 1986). taken as a whole. Inc. in which the US Supreme Court held that material is obscene if each of the following factors is satisfied: Whether the average person. 1066. political. 1982). would find that the work. Child pornography is offensive in most of the Countries in the world. 512 S.40The comic strip is against the national and contemporary standards of the society. ’For example. 636 F. taken as a whole. 15 (1973) U.2d 752 (1977). Walsh v. Smith 27 F. Rep.S. Barth.D. 1990). in a patently offensive way.2d 1385 (9th Cir.42 Many courts apply the so-called Dost test to determine if a given image is considered to be "lascivious" under the law43. California39. Arvin. Inc. 381 A. Memorial for Respondent . 1998) 43 United States v. Cal. Dost. 558. 2d 929 (W. 2d 1111 (C. The Miller test stems from Miller v. Rptr. State 236 Ga. Indecent exposure statute requires exposure at such a time and place where as a reasonable man he 39 40 413 U. appeals to the prurient interest? Whether the work depicts/describes. 3d 197.H. Tex. App.W. News. in jury instructions approved by the Ninth Circuit. 1978). 181 Cal. the Court asked the jurors to consider the caption of the photograph 44. 832 (S.

3d 399. It is explicit that cartoons are commonly meant for children and a mere carelessness in this issue will destroy they moral.D.J. 2007) People v. are entitled to great leeway in the regulation of pornographic depictions of children46. 1995) 48 Gotleib v. 30 Ill.4th 381 (1981). S.25 knows or should know his act will be open to the observation of others45. and. People v.2d 270. Wilson. Inc. a statute prohibiting the production of child pornography is valid even though mistake-of-age is not available as a defense in a prosecution under the statute47. State v. The law pertaining to indecent exposure does not require that an accused have a specific intent to expose himself to any particular person. App. 30 Ill. Crim. 50 People v. 5 Media L. ethical and traditional decency the Indians used to follow. State ex rel. Muldowney.T ACT ARE CONSTITUIONAL 45 46 Parnigoni v. Rptr. 564 S. Rep. 1974) 53 Buck v. App. The states may constitutionally prohibit even the private possession of child pornography.E. State. 3d 172. U. Ct.. (BNA) 2418 (1980).2d 517 (1982). 52 Cherokee News & Arcade. distribution50. People v.E. States enjoy greater latitude in regulating child pornography because of the government’s compelling interest in safeguarding its children. Inc. 1975). Schaub.2d 26 (1972) 51 Movies. and possesses the power to prevent or regulate the dissemination49.2d 689 (Minn. sale51. 249. it is sufficient that accused generally intended to expose him so as to draw attention to his exposed condition. The states have a compelling interest in the protection of the health and welfare of children. Mitchem v. 102 Idaho 451. Dec. 535 N.D. Conlisk. 130 Market St.C. v.2d 869 (4th Dist. 1975) Memorial for Respondent . State. App. 3d 399. 440. or display53 of obscene or filthy matter. Steel. 383.L. therefore. Inc. 308 N. 291 N. 2d 313. People v. 250 So. 331 N. 1971).W.E. Houston 14th Dist.2d 823 (D.2d 624 (Okla. App. Rep.2d 1200 (1988) 47 State v. 95 Cal. 533 P. City of Minot v. Peterson. 60 N. Supp. App.2d 669.2d 622. 292 A. Central Ave. Long v. App. The issue of Pramila Adershan also includes child pornography. State.2 SECTIONS 69A& 69B OF THE I. Inc. Mabie. 122 Ill. 5 Media L. 631 P. Ill. 1979). 264 S. v. 632 S. 1974 OK CR 108.2d 869 (4th Dist. 593 (2d Dist. 153 Ga. Kidwell v. 522 N.R. A state has an interest in regulating commercial sexually explicit act or obscenity 48. 1981) 49 State ex rel. 2d 883 (Fla.2d 851 (N. B. Super.2d 842 (Tex. App. 594. Marketing. 331 N. 933 A. 406 A. 345 F. Mabie. News. 1971). Geever. Powell v. Moreover. 780 (N. 294 Pa. including possession with intent to sell52. 341. 119 Ill. 1982). District of Columbia.2d 73 (1980). 1971). State. 263 Ark.2d 215 (1978). 25 A.W. App.W...E. transportation.W. 95 Mich. Gift & Novelty of Johnstown. 18 Cal. (BNA) 1818 (Del. Stout.W. Flynt v. 232. 440 A.

paper. Delhi Administration. State of Bombay. Income Tax Officer.J.3. There is no implication of equality being absolute in all circumstances57.55 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. While performing the essential functions of maintaining public order and security of the nation. One refers to a book. A website which is harmful to the moral values of the state should be banned. Second Addl.56 the provisions of any Act can be passed for the wellbeing of the weaker parties. Preamble to the Indian Constitution also states about the sovereignty and integrity of the State. (1966) 1 An. pamphlet. 1959 Cr. painting. the classification of an area into dangerously disturbed area and other area is based on intelligible differentia.M. Sex being a sound classification for special protection of woman under Article 15(3).J. and the other part says that if these materials comprises of two or more 54 55 R. Equality means equality among equals. THERE IS VIOLATION OF SECTION 292 & 293 OF THE IPC Section 292(1) consists of two parts. R. figure of any other object which is lascivious or appeals to the prurient interest. (1954) 1 Mad LJ 618 57 DEsu Rayudu v. Government should take initiative to safeguard the Fundamental Rights guaranteed under Article 21 of the Constitution which also deals with a life with dignity. For the purpose of public safety. 782: AIR 1959 SC 609 56 Yusuf Abdul Aziz v. Seshadri v.353 Memorial for Respondent .P. friendly relations with foreign States etc.54 The State can act upon its discretion where it feels that the public order is violated. W. the state is different from other persons whether natural or artificial.26 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. B.403: AIR 1967 A. representation.L. Andhra Pradesh Public Service Commission. Section 69A also guarantees the Central Governments power to safeguard the Security of the State. (1954) 2 Mad L. drawing. 285 Gopi CHand v.

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.27 distinct items.(1964) 67 Bom LR 506 : AIR 1965 SC 881 Memorial for Respondent .This freedom is subject to reasonable restrictions which maybe thought necessary in the interest of the general public and one such is the interest of public decency and morality. It was in this very same case that the Court held 58 (1965) 1 SCR 65 SC. The term obscene denotes anything that is offensive to modesty or decency. The idea relating to immorality and indecency may change from time to time and place to place. imported. State of Maharshtra58 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.The word obscene is not defined in the Indian Penal Code. It depends upon the standards of morals of the contemporary society. see or hear the matter contained in it.” So it was held that Section 292 was constitutional and not ultra vires of Article 19(2). The constitutional validity of section 292 has been challenged in the case Ranjit D Udeshi v. There must be two things proved under Section 292 that (i) the matter is obscene and (ii) the accused has sold. filthy and repulsive. printed or exhibited it. 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. It was held that “it can be harldy be said that obscenity which is offensive to modesty or decency is within constitutional protection given to free speech or expression. In this connection the interests of our contemporary society and particularly the influence of the book on it must not be overlooked.. manifestly embodies such a restriction because the law against obscenity seeks no more than to promote public decency and morality. distributed. because the article dealing with the right itself excludes it. lewd. Section 292. or attempted or offered to do so.

provided that it was done knowingly. as to the Federal Government. Even in the United States case of Roth v. was whether. taken as a whole.28 that the defence available under the English law is not acceptable here. Section 293 of the Indian Penal Code punishes any person who sells. U. art.S. as to the States. learning or other subjects of general concern is applicable in India which is provided for in the exceptions to this section. the website owners cannot plead the exception to this section because it was not created in interest of science. learning or other objects of general concern and nor was it used for any religious purposes. 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. the dominant theme of the material. literature. exhibits or circulates to any person under the age of twenty years any such obscene object as 59 60 354 U. S. 476(1957) (2000) 1 WLR 1427(QBD) Memorial for Respondent . or under the Due Process Clause of the Fourteenth Amendment. But the other defence under English law which exempts publication which are for public good and in interest of science. art. to the average person. Obscenity was not considered to be within the area of constitutionally protected freedom of speech or press either under the First Amendment. In the present case the comic strip “Pramila adershan’s Meaty Meanderings” can be considered as highly obscene as there was substantiation to show that the content contained lascivious material which would morally deprave the young as their mothers were highly against the strip. In the case of Atkins v DPP and Goodland v DPP60 it was held that the making of an indecent photograph included copying. applying contemporary community standards. appeals to prurient interest. literature.59 . distributes. The standard for judging obscenity. adequate to withstand the charge of constitutional infirmity. lets to hire. downloading or storing it on a computer.

slide. In the case of Uttam Singh v. sells. paintings. THERE IS VIOLATION OF INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT The Indecent Representation of Women (Prohibition) Act. U. B.S.4. According to Section 2(c) of the act “indecent representation” means depiction. or is likely to deprave. lewd. 74 Cri LJ 923 165 U. writings. drawing. pamphlet. If any person produces or causes to be produced. 1986 prohibits indecent representation of women through advertisements or publications. State61 the accused was found selling a packet of playing cards portraying on the reverse luridly obscene pictures. and indecent matter.' which contained obscene. In the case of Dunlop v. distributes. in any manner. figures or in any other manner and for matters connected therewith or incidental thereto. paper. writing. When his shop was raided. circulates or sends by post any book. lascivious.29 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.500. of the figure of a woman. He was sentenced to six months rigorous imprisonment and affine of Rs. lets to hire. similar packets were found. 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. film. painting. 61 62 AIR 1974 SC 1230.S62 the court upheld the conviction for mailing and delivery of a newspaper called the 'Chicago Dispatch. 486(1897) Memorial for Respondent . corrupt pr injure the public morality or morals Any act like publishing or arranging to publish or taking part in publishing or exhibition or of any advertisement which contains indecent representation of women in any form is punishable.

30 photograph. 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. What is not decent or appears not to be decent is indecent. It is also correlated with the state of mind. 1986 prohibits indecent representation of women through advertisements or publications. representation or figure which contains indecent representation of women in any form. But if such a person can prove that that the offence was committed without his knowledge or that he had exercised his due diligence to prevent it. which may extend up to one lakh rupees. manager. Memorial for Respondent . paintings. corrupt or injure the public morality. According to Section 7 not only an individual but a corporate body can also commit the offence of indecent representation of women. 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. was in charge of. and was responsible to. Section 2(c) of the act defines indecent representation as depiction of a figure of a woman or any part of her body which is indecent or derogatory to or denigrating women or which is also bound to deprave. writings. the company. Indecency relates to public morals. The Indecent Representation of Women (Prohibition) Act. secretary or other officer of the company such person shall be proceeded against and punished accordingly. It says that every person who at the time offence was committed. he shall not be liable. Decency describes the state or quality of being decent in conformity with recognized standards. figures or in any other manner and for matters connected therewith or incidental thereto. 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. shall be deemed to be guilty of the offences and liable to be proceeded against and punished accordingly.

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. Indecent Representation of Women(Prohibition) Act. It says that every person who at the time offence was committed. lets to hire. 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. distributes. film. and was responsible to. was in charge of.31 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. manager.64 The unique position of the Indian women in our Society and the cultural heritage of India have been widely known.1986 Section 7(2) Memorial for Respondent . According to Section 7 not only an individual but a corporate body can also commit the offence of indecent representation of women. secretary or other officer of the company such person shall be proceeded against and punished accordingly.63 But if such a person can prove that that the offence was committed without his knowledge or that he had exercised his due diligence to prevent it. representation or figure which contains indecent representation of women in any form. painting. photograph. sells. writing. all efforts have been made for emancipation of women and to guarantee to them of their dignity and personality. which may extend up to one lakh rupees. he shall not be liable. pamphlet. If any person produces or causes to be produced. It is undisputed that the dignity of women has to be preserved and protected. drawing. shall be deemed to be guilty of the offences and liable to be proceeded against and punished accordingly. circulates or sends by post any book. In the Indian polity. slide. paper. 63 64 Section 7(1). 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. the company.

It has a much wider meaning which includes right to livelihood. Memorial for Respondent . 65 66 AIR 1965 SC 881 State of Maharashtra v. Further. electronic or print. sexual harassment or molestation or many such which encourage or promote these activities. hygienic conditions in the workplace and leisure. the courts come forward to ensure that violation of the Fundamental rights by the media does not go unchecked.I. Moreover. 803.32 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. however the judicial decisions state that the freedom of speech and expression include the freedom of the press and circulation also. 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. Udeshi v.I. Right to life as enshrined in this article something more then survival or animal existence 66.C. State of Mahrashtra65 . 2378. A. It is a basic right of a female to be treated with decency and proper dignity. Decency and morality are among the restrictions mentioned under Article 19(2). 1999 S. 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. If the media. A. 1983 S. exceed their jurisdiction. It includes the right to live with human dignity. better standard of living. Baldev Singh. Accordingly the dignity of woman is constitutionally protected and any media projections which are derogatory to women should be prevented and prohibited. 67 Acts such as rape.R.R.C. Article 21 guarantees protection of life and personal liberty. Chanderbhan. these rights are not absolute and are subjected to reasonable restrictions as enshrined under clause (2). Though the Article does not explicitly deals with the freedom of the Press and Media. 67 State of Punjab v. which have been included for restricting speeches and publications which tend to undermine public morals In Ranjit D.

Women are human beings and hence every right pertaining to human beings are applicable to women. AIR 1978 SC 597 : (1978) 1 SCC 248 70 AIR 1981 SC 746(para 3) Memorial for Respondent .21 In the instant the directors of Pushkar Ventures created a comic strip which described the life of a bold and immoral housewife which was explicit both textually and graphically. Thus Women have right to lead a dignified life. it was held that right to life is not merely confined to physical existence but also includes within its ambit the right to live with human dignity. The fact that the strip depraves.R. In Chandra Raja Kumari v. Union of India69 . 1996 S.68 In Maneka Gandhi v. In Francis Coralie Mullin v. but includes ‘the right to live with human dignity’. The portrayal of Pramila Adershan as a promiscuous woman has the effect of demeaning. corrupts or injures public morality is evident from the letters sent by mothers to iStore and Ebay and the pleas received by Cultures Vultures from some mothers of teenagers. Police Commissioner.33 are violative of Article 21. is bound to offend Article 21 of the Constitution of India as right to live includes right to live with dignity and decency. It deprives them of the respect and dignity that they are entitled to and shows them in a low light. It also tends to corrupt and deprave the reader. The Universal Declaration of Human Rights.I. debasing and degrading women. the right to dignity is an inseparable part of right to life guaranteed under the Indian Constitution under Art. 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. International Covenant on Civil and Political Rights has recognized that human beings have dignity inseparable from them. A. Shubra Chakraborty. Thus. Union of Territory of Delhi70 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. 68 69 It Boddhistattawa Gautam v.C. 992. The protagonist of the comic Pramila Adershan became such a cult figure that her image was used even for advertising certain domestic products.

culture. of 'public order'. The character which portrays the picture of the promiscuous life of a lady with sexually and graphically explicit comic strip is against the morality. It would definitely obscure basic moral values and expose young people to bizarre ideas which may lead to deviant behaviour which among them. It can be said that stories about a promiscuous woman would have a morally corruptive effect on the minds of young people. or any other officer of the Central Government or a State Government authorized by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit any Memorial for Respondent . (C) THE WHETHER THE SEARCH AND SEIZURE POWERS GRANTED UNDER SECTIONS 29 AND 80 OF INFORMATION TECHNOLOGY ACT. 2008. The Section 9(2) (c) of The Trade Marks Act. 1999 stipulates that registration of substance that contains or comprises of scandalous or obscene matter is prohibited. not below the rank of a inspector. Section 80 gives power to any police officer. 2000 ARE CONSTITUTIONAL? The Superintendent of Police exercising his powers according to Section 80 of the Information Technology (Amendment) Act. ethical principles. 'decency and morality' among other grounds. Hence there is an indecent representation of women by way of texts and images in the comic strip. It is evident to the fact that the matter contains obscene and scandalous material which can cause chaos and confusion to the society and also cause the depravation of morality and decency. just and hon’ble traditions of conservative Indian society.34 would cause great shame and mental agony to all women. 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 'defamation'.

He is enabling himself to meet the terms of Section 80 which also says about the authorization of Central Government. with due diligence. (2nd Edn. even by the government. Collector of Central Excise v. In Astt. the court stated that a limited warrant less detention of evidence. Being a cognizable offence the police officer can arrest without a warrant. Art. where there is a reasonable doubt about any objectionable object. New Delhi. In State of Haryana v. Ltd. Hall73. Cyber Law & ECommerce Universal Law Publishing Co. v. 20(3) have no application. was not unreasonable if based on reasonable suspicion. Superintendent of Police is acting according to the Central Government order.. he has no option but to register the case on the basis thereof.S. Police officer acting in his official powers can act according to his good will. Roger Revelle once quoted “Ever since men began to modify their lives by using technology they have found themselves in a series of technological traps. Ch. 2008 is Constitutional. 1998) . Simons76 the Court discusses the reasonable cause for suspect a person.S.26 73 142 F. 74 AIR 1965 SC 1251: (1965) 2 CrLJ 256 75 1983 CrLJ NOC 43(Ker) 76 206 F. “ Information Technology Law and Practice-Law & Emerging Technology. the foreign- 71 72 AIR 1992 SC 604 Vakul Sharma. The Act is in tune with the UNCITRAL Model Law. In U.. Police officers is acting accordingly to the Act. Information Technology (Amendment) Act. Pvt. In Shyamalal’s case74it is opined that to a Search by the police officer under Section 165.3d 988 (7th Cir. Wilfred Sabastian75stated that the illegality of a search will not affect the validity of the articles or in any way vitiate the recovery of the articles and the subsequent trial. p. 2000) Memorial for Respondent . In some instances.3d 392 (4th Cir. Police officer can act in accordance with the Sections. 2010).”72The Act is trying to control those traps. Bhajan Lal71Court stated that when any information disclosing a cognizable offence is laid before the office-in-charge of a police station. v.35 offence under this Act. In U.

illegal and immoral in nature which is against public morality and decency. Thus the police have the power to search in these grounds. any hotel. Indian Culture has its high traditional approach to follow. The printer and publisher of a magazine or journal would be liable if they publish any matter 77 U.D. Considering a pornographic material as inspiration itself is unethical. any shop pr any other place intended for use by. They are not mentioning any criteria for public access. 2d 264 (S. then the outcome of such a material will be unlawful. N. Any person can access the offices of Pushkar Ventures. Right to privacy is not an absolute right it has its limitations. Supp.S. WHETHER THERE HAS BEEN ANY INFRINGEMENT OF RIGHT TO PRIVACY BY THE SEARCH OF PRIVATE MAILS AND DOCUMENTS NOT MEANT FOR PUBLIC CIRCULATION ? In India a private action for damages for unlawful invasion of privacy is maintainable.36 intelligence exception to the warrant requirement has been extended to a search of computer files during the search of an American citizen's home in a foreign country. Section 29 says that the police offices can access any computers and data where he has a reasonable cause to suspect the parties. Mere access to the public is sufficient to consider it as public place. 126 F. The allegations were come up against the parties from various strata of the society.Y. Bin Laden. or accessible to the public.77 Where the inspirational material itself is pornographic in nature. Petitions were filed from different states of the Union of India. Memorial for Respondent . which includes any public conveyance. D. Police in this case is reacting towards the Central Government order and they have reasonable reason to suspect the parties. v. 2000). Explanation to Section 80 defines public place. It includes the public place-mere access to the public case is enough for stating it constitutional. Police officer is doing his duty and there is no violation of Fundamental Rights as well as other rights.

the right to privacy is implicit in the fundamental right to life and liberty guaranteed under Article 21 of the Constitution. In the case of Sharda v. 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. malicious or untruthful. It says that “No person accused of any offence shall be compelled to be a witness against himself.” None of the petitioners are 78 79 (2003) 4 SCC 493 (2005) 1 SCC 496: AIR 2005 SC 186 Memorial for Respondent . an action cannot be maintained unless the publication is proved to be false. Dharmpal78 it was held by the Supreme Court that the right to privacy in terms of Article 21 of the Constitution is not an absolute right. it was held. parenthood etc without his consent. Canara Bank79. If these factors are relevant for defining the right to privacy. that right which advances public morality would prevail In District Registrar and Collector v.37 related to his private life which includes his family. If there were a conflict between fundamental rights of two parties. 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. procreation.” WHETHER THERE HAS BEEN ANY VIOLATION OF ARTICLE 20(3)? There is no violation of Article 20(3) of the Constitution. to inform substantive judgment. marriage. Also under Constitutional law. it is at this point that the context becomes crucial. they are quite relevant whenever there is invasion of that right by way of searches and seizures at the instance of the State. 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.

directing him.C.82 But there exists a distinction between an order of the court directing the 80 81 AIR 1978 SC 1025 AIR 1961 SC 1808 82 Ranchhod Das Khimji Ashre v Temton Jahangir. Article 20(3) has no applicability in this case. accordingly. to produce a document. 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 documents in Court which may throw a light on any of the points in the controversy.Dani80 .J 338: (1961) 2 Guj. 1961 Guj. the three Judge Bench has however held that the protection of Article 20(3) goes back to the stage of investigation and that. 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. under pain of penalty. 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.38 acting as witness against themselves in this issue.R. H. 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). he is entitled to refuse to answer incriminating questions. Documents or articles or any other incriminating In Nandini Satpathy v. In State of Bombay v. It is applicable in case of excess power of the police officers harassing the people. P. L.I.L. 197: A.415: (1961) 2 Guj. 1961(2) Cr. 137 Memorial for Respondent . Therefore the Article 20(3) does not protect the petitioner. Kathi Kalu Oghad81 the protection does not extend to any kind of evidence but only to self incriminating statements made by the accused.L. The protection under this Article extends to production of all private documents including books of account.R.R.

(F). 2008? The government of India has given up the power to block pornographic websites purely on the ground of obscenity or sexually explicit Act considering the cultural heritage. Boys who watch porn indulge in casual sex. without further clarifying the necessary perquisite circumstances for any such action.com/life/relationships/parenting/Boys-who-watch-porn-indulge-in-casual- Memorial for Respondent .dnaindia.” DNA. dignity of women and also for the controlling of public order with due diligence.naavi.indiatimes. A decision by the Bombay High Court recently turning down a Public Interest Litigation (PIL) request for a complete ban on all websites with sexual content could provide some indication at least as to how that court would interpret government attempts to ban websites for being obscene. Is it set to mislead the Public on Savita Bhabhi Issue? . Sexually explicit content comes under the cognizable offences. Central Government has the authority to block public access to websites. Available at: http://www. Contravention of ‘any law’ is violation of public order.com/mumbai/report_bombay-high-court-says-no-to-blanket-ban-onpornwebsites_1357395. It is the former and not the latter that that is protected.39 accused himself to produce a document and an order directing the police to search and seize any document.84 Wide spread increase in porn website85 will increase in crimes under Section 375 of the Indian Penal Code as mentioned by 83 Mayura Janwalker. WHETHER A CASE HAS BEEN MADE OUT IN CASE OF CONSTITUTIONALITY OF SECTION 69A OF THE INFORMATION TECHNOLOGY (AMENDMENT) ACT. 83 Section 69Acontain the provision that the section can be invoked for preventing incitement to the commission of any cognizable offence. Available at: http://www. 84 Times of India…. “Bombay high court says no to blanket ban on porn websites.htm 85 Ani. 10 March 2010.org/cl_editorial_10/edit_feb_11_2010_savita. Available at: http://timesofindia.

this Hon’ble Court may be pleased to Declare that: i. The petition is not maintable under article 32 of the constitution ii. which the court may deem fit in the ends of equity. Sections 67A. Sections 29 and 80 are constitutional v. in the light of the facts stated. The petitioner does not have the locus standi iii. Article 20(3) has no applicability in this case vii. 155 of 2009: In the High Court of Judicature at Mumbai Civil Appellate side Memorial for Respondent . The Union of India86petition is filed to the blanket ban on websites which according to petitioners are displaying material pertaining to sex CONCLUSION AND PRAYER Wherefore. 1986 and the Indian Penal Code. points raised. In the case of Janhit Manch and Ors v. justice and good conscience. There is no infringement of right to privacy vi. sex/articleshow/5494354.cms 86 PIL No. 69A and 69B of the Information Technology (Amendment) Act 2008 and allied provisions in the Indecent Representation of Women (Prohibition) Act. 1860 are constitutional iv. Central Government can block the websites in cases of violation of public order under Section 67A And pass any other order or grant any relief. arguments advanced and the authorities cited.40 an Australian Research Centre.

Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). prohibition.No person shall be deprived of his life or personal liberty except according to procedure established by law. Article 32. including writs in the nature of habeas corpus. (1) Remedies for enforcement of rights conferred by this Part. (2) The Supreme Court shall have power to issue directions or orders or writs. (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2). Memorial for Respondent . quo warranto and certiorari. . The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. for the enforcement of any of Fundamental Rights. mandamus.41 PLACE: DATE: All of which is respectfully submitted Counsel for the Respondent APPENDIX IMPORTANT ARTICLES OF CONSTITUTION OF INDIA OTHER RELEVANT STATUTORY PROVISIONS AND Constitution of India Article 21. Protection of life and personal liberty. whichever may be appropriate.

1876 Section 3 Indian Penal Code 31. Memorial for Respondent . Saving of inherent power of High Court. Code of Criminal Procedure.42 (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. or to prevent abuse of the process of any court or otherwise to secure the ends of justice. -Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code. 1973 Section 482. Indecent Representation of Women Act.

Master your semester with Scribd & The New York Times

Special offer for students: Only $4.99/month.

Master your semester with Scribd & The New York Times

Cancel anytime.