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[1.

1]: That section 292 of the Clandestinesia Penal Code, sections 67 and 67A of the Clandestinesia
Information Technology Act are violative of article 19(1)(a) of the Constitution of Clandestinesia.
1. Article 19(1)(a) of the Constitution of Clandestinesia states that all the citizens shall have
the right to freedom of speech and expression. The right to freedom of speech and
expression has been described as the touchstone of individual liberty, the matrix, the
indispensable condition of nearly every form of freedom.1 Freedom of expression means
the right to express one’s convictions and opinions freely, by word of mouth, writing,
printing, picture or in any other manner. It would also include the expression of one’s ideas
by any visible representation, such as the press, but the expression of one’s ideas by any
visible representation such as cinema, television and the like.2
2. The Supreme Court further observed in Romesh Thapar v State of Madras3 that the
freedom of speech and of the press lay at the foundation of all democratic organizations,
for, without free political discussion no public education so essential for the proper
functioning of the processes of popular government, is possible. A freedom of such
amplitude might involve risks of abuse. But the framers of the Constitution may well have
reflected, that it is better to leave a few of its noxious branches to their luxuriant growth
than, by pruning them away, to injure the vigor of those yielding the proper fruits.
3. The Supreme Court in Ramlila Maidan Incident v. Home Secretary, Union of India &
Ors.4 said, “The freedom of speech is the bulwark of democratic government. This
freedom is essential for proper functioning of democratic process. Freedom of speech and
expression is regarded as the first condition of liberty. It occupies a preferred position in
the hierarchy of liberties, giving succor and protection to all other liberties. Freedom of
speech and expression play a crucial role in the formation of public opinion on social,
political and economic matters. With the development of law in India, the right to freedom
of speech and expression has taken within its ambit the right to receive information as well
as the right of Press. Attainment of the Preambular liberties is eternally connected to the
liberty of expression.5

1
Palko v Connecticut, 302 US 319 (1937).
2
Romesh Thapar v State of Madras, (1950) SCR 594 (602): AIR 1950 SC 124.
3
Ibid.
4
(2012) 5 SCC 1.
5
Ramlila Maidan Incident v. Home Secretary, Union of India & Ors., (2012) 5 SCC 1.
4. It was further reiterated in Union of India v Motion Picture Association6 that free speech
is the foundation of a democratic society. A free exchange of ideas, dissemination of
information without restraints, dissemination of knowledge, airing of different viewpoints,
debating and forming one’s own views and expressing them, are the basic ideas of a free
society. This freedom alone makes it possible for people to formulate their own views and
opinions on a proper basis and to exercise their social, economic and political rights in a
free society in an informed manner.
5. In F.A. Picture International v Central Board of Film Certification7, it was held that artists,
writers, playwrights and film makers are the eyes and the ears of a free society. They are
the veritable lungs of a free society because the power of their medium imparts a breath
of fresh air into the drudgery of daily existence. Their right to communicate ideas in a
medium of their choosing is as fundamental as the right of any other citizen to speak. Our
constitutional democracy guarantees the right of free speech and that right is not
conditional upon the expression of views which may be palatable to mainstream thought.
Dissent is the quintessence of democracy. Hence, those who express views which are
critical of prevailing social reality have a valued position in the constitutional order.
History tells us that dissent in all walks of life contributes to the evolution of society.
Those who question unquestioned assumptions contribute to the alteration of social norms.
Democracy is founded upon respect for their courage. Any attempt by the State to clamp
down on the free expression of opinion must hence be frowned upon.
6. However, Section 292 of the CaPC and sections 67 and 67A of the Clandestinesia
Information Technology Act, 2000 which talk about obscenity tries to put unreasonable
restrictions on the citizens and refrain them from expressing themselves freely. Section
292 goes as follows: Section 292. Sale, etc., of obscene books, etc.- (1) For the purposes
of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation,
figure or any other object shall be deemed to be obscene if it is lascivious or appeals to the
prurient interest or if its effect, or (where it comprises two or more distinct items) the effect
of any of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons
who are likely, having regard to all relevant circumstances, to read, see or hear the matter

6
Union of India v Motion Picture Association, AIR 1999 SC 2334: (1990) 6 SCC 150
7
F A Picture International v Central Board of Film Certification, AIR 2005 Bom 145
contained or embodied in it.8 Section 67 of the Clandestinesia Information Technology
Act, 2000 states: Punishment for publishing or transmitting obscene material in electronic
form. -Whoever publishes or transmits or causes to be published or transmitted in the
electronic form, any material which is lascivious or appeals to the prurient interest or if its
effect is such as to tend to deprave and corrupt persons who are likely, having regard to
all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall
be punished on first conviction with imprisonment of either description for a term which
may extend to three years and with fine which may extend to five lakh rupees and in the
event of second or subsequent conviction with imprisonment of either description for a
term which may extend to five years and also with fine which may extend to ten lakh
rupees.9 Whereas Section 67A talks about the punishment relating to sexually explicit
content. Section 67 has evolved from S. 292 of the CaPC and hence, they both talk about
obscenity.
7. The counsel contends that on the subject of obscenity, a work of art is not necessarily
obscene if it treats with sex even with nudity and he submits that a work of art or a book
of literary merit should not be destroyed if the interest of society requires that it be
preserved. In our present case, the documentary presented by Bioscope was about the
Khosad tribe and it portrayed their habitat, manner of living and the prevalent customs in
the tribe. Khosadasti is a part of the tribe and hence, was fundamental to the film. There
was no obscenity that was being represented. It is a known fact that Bioscope had the
reputation of making cinema which dealt with various social, cultural and political
issues.10 Therefore, the purpose of the film was to present the culture, tradition and
environment of the Khosad tribe and not make it look obscene.
8. The Supreme Court in Bobby Art International v Om Pal Singh Hoon11, the SC said that
everyone has a fundamental right to form his own opinion on any issue of general
concerns. He can form an opinion and inform it by any legitimate means. If a film is
objectionable for public exhibition and cannot be constitutionally restricted under Article

8
S. 292 of The Indian Penal Code, 1860
9
S. 67 of The Information Technology Act, 2000
10
UMCS 2017 Summer GI, ¶ 7
11
Bobby Art International v Om Pal Singh Hoon , (1996) 4 SCC 1: AIR 1996 SC 1846
19(2), freedom of expression cannot be suppressed on account of threats that would
endanger the right to freedom of speech and expression.
9. Furthermore, the director, Dr, Jnanendra Mitra, was only exercising his right to freedom
of speech and expression while he was making the movie. Judging the movie by a
particular scene and calling it pornographic is not how a prudent man thinks. He was not
doing something which could be enumerated as an offence under S. 292 of the CaPC and
section 67 and 67A of the Clandestinesia Information Technology Act, 2000.
10. Hence, it can be said that section 292 of the CaPC and the sections 67 and 67A of the
Clandestinesia Information Technology Act, 2000 are violative of article 19(1)(a) of the
Constitution of Clandestinesia.
[1.2]: That the effect of the material as a whole must be considered.
11. Section 292(1) has two ingredients which must be fulfilled to render a representation,
book, picture etc. obscene. One part refers to the things or any other object which is
lascivious or appeals to the prurient interest, and the next part mentions that, if the above
referred materials comprises of two or more distinct items, the effect of any one of its
items, is, if taken as a whole tends to deprave and corrupt persons who are likely, having
regard to all relevant circumstances, to read, see or hear the matter contained or embodied
in it.12 In the case before the Hon’ble Supreme Court, it is mentioned that the documentary
did not only comprised the sexual practice of Khosadasti. The significant part of the film
consisted of a visual treat to the viewers as the Khosad Islands were very picturesque
Islands with immense natural beauty. In addition to this, a considerable portion of the film
was devoted to interviews of members of the Khosad tribes, historians, social
anthropologists, Government officials, etc. Apart from all this, the mining operations
being carried out in the Khosad Islands were also shown in the film.13
12. In deciding the question of obscenity, the court must take an overall view of the matter
complained of as obscene in the setting of the whole work, but the matter charged as
obscene must also be considered by itself and separately to find out whether it is so gross

12
K I Vibhute PSA Pillai’s Criminal Law (12th ed Lexis Nexis 2016)
13
UMCS Summer GI Moot Proposition, ¶ 12
and its obscenity so pronounced that it is likely to deprive and corrupt those whose minds
are open to influence of this sort and into whose hands the material is likely to fall.14
13. The Supreme Court, tracing the origin of section 292 of the Penal Code in the British
statute criminalising obscenity by Lord Campbell in 1857, quoted with approval the
following test of obscenity laid down in Regina v Hicklin15 which reads that an overall
view of the obscene matter in the setting of the whole work would, of course be necessary
and the test of obscenity is whether the tendency of the matter charged as obscenity is to
deprave and corrupt those whose minds are open to such immoral influences, and into
whose hands a publication of this sort may fall. It is quite certain that it would suggest to
the minds of the young of either sex or even to persons of more advanced years, thoughts
of a most impure and libidinous character.16 Therefore, it is evident that if the documentary
is taken as a whole, it would not be labelled as obscene and the filming of Khosadasti was
not to arouse sexual desires in the audience but to fully portray the culture of the Khosad
tribe.
14. The Indian Penal Code on obscenity has grown out of the English Law and while
interpreting the meaning of "obscenity" the Supreme Court in Ranjit D Udeshi v State of
Maharashtra17 uniformly adopted the test laid down by the English Court in Hicklin’s
Case Supra wherein it was held that the word "obscene" in the section is not limited to
writings, pictures etc. intended to arouse sexual desire. At the same time, the mere treating
with sex and nudity in art and literature is not per se evidence of obscenity. It was
emphasized that the work as a whole must be considered, the obscene matter 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. Where art and obscenity are mixed, art must so preponderate as to throw the
obscenity out into the shadow or the obscenity so trivial and insignificant that it can have
no effect and may be overlooked.

14
RA Nelson’s Indian Penal Code, Ninth Edition, S K Sarvaria, Volume 2 pg. 2505
15
Regina v Hicklin, [1868] 3 QB 360
16
K I Vibhute PSA Pillai’s Criminal Law (12th ed Lexis Nexis 2016)
17
Ranjit D Udeshi v State of Maharashtra, AIR 1965 SC 881, (1965) 2 Cr LJ
15. In Maqbool Fida Hussain v Raj Kumar Pandey18, the Supreme Court held that if the
painting is looked as a whole, it would reveal that that the revulsion referred to by learned
Counsel for the respondents of patriotic nationals would not arise for the reason that except
the fact that it is in nude, there is nothing which can be considered as pinching to the eye.
As a matter of fact, the aesthetic touch to the painting dwarfs the so called obscenity in the
form of nudity and renders it so picayune and insignificant that the nudity in the painting
can easily be overlooked.
16. In the case of R v Penguin Books Ltd19, his lordship held that they must consider the book
as a whole, not selecting passages here and there and, keeping their feet on the ground, not
exercising questions of taste or the functions of a censor. The first question, after
publication was: was the book obscene? Was its effect taken as a whole to tend to deprave
and corrupt persons who were likely, having regard to all the circumstances, to read it?
Authors had a right to express themselves but people with strong views were still members
of the community and under an obligation to others not to harm them morally, physically
or spiritually. In the present case as well, we can’t judge the documentary on the basis of
only the sexual practices shown in it and should be taken as a whole. The chief of the
Khosads himself stated that the practice of Khosadasti was a practice to celebrate the
process of creation of life as the Khosads believed that the children borne out of such union
were descendants of God.20 Hence, the ritual of Khosadasti is very fundamental to the
understanding of the entire tribe of Khosads and hence, it was portrayed in the film and
Dr. Jnanendra Mitra did not intend to defile or disparage the practice.
17. The Supreme Court in Aveek Sarkar v State of WB21, the publication in question as well
as the photograph taken, as a whole and in the background of facts and circumstances,
cannot be said to be per se “obscene” within the meaning of Section 292(1) IPC. The
message, the photograph wants to convey is that the colour of skin matters little and love
champions over colour. The picture promotes love affair, leading to a marriage, between
a white-skinned man and a black-skinned woman. We should, therefore, appreciate the
photograph and the article in the light of the message it wants to convey, that is to eradicate

18
Maqbool Fida Hussain v Raj Kumar Pandey
19
R v Penguin Books Ltd, [1961] Cri LR
20
UMCS Summer GI Moot Proposition, ¶ 16
21
Aveek Sarkar v State of WB, (2014) 4 SCC 257 : (2014) 2 SCC (Cri) 291
the evil of racism and apartheid in the society and to promote love and marriage between
white-skinned man and a black-skinned woman and not portray obscenity in any manner.
In the same manner, the intent of the director was to show the culture of Khosadasti and
not promote obscenity through the documentary.
18. The Supreme Court in the Bandit Queen Case observed that the scene where she is
humiliated, stripped naked, paraded, made to draw water from the well, within the circle
of a hundred men. The exposure of her breasts and genitalia to those men is intended by
those who strip her to demean her. The effect of so doing upon her could hardly have been
better conveyed than by explicitly showing the scene. The object of doing so was not to
titillate the cinemagoer's lust but to arouse in him sympathy for the victim and disgust for
the perpetrators. Nakedness does not always arouse the baser instinct. ‘Bandit Queen’ tells
a powerful human story and to that story the scene of Phoolan Devi's enforced naked
parade is central. It helps to explain why Phoolan Devi became what she did: her rage and
vendetta against the society that had heaped indignities upon her.22
19. Hence, it is clear that when the documentary ‘In the Land of Khosads’ is taken as a whole,
it does not incite feelings of a perverse or prurient nature and that the purpose of the
documentary was to portray the rituals and the living conditions of Khosads and not in any
sense promote ponography or obscenity.
20. Therefore, section 292 of the CaPC and section 67 and 67A of the Clandestinesia
Information Technology Act, 2000 are vague and arbitrary and ultra vires the Constitution.

22
Bobby Art International v Om Pal Singh Hoon , (1996) 4 SCC 1: AIR 1996 SC 1846
[ISSUE 5]: THAT THE PROMOTERS, DR. JNANENDRA MITRA AND ZUBIN DUBASH
ARE VICARIOUSLY LIABLE FOR THE ACTS OF TCPL, BIOSCOPE AND FWPL
RESPECTIVELY FOR THE OFFENCES PUNISHABLE U/S 292 AND 499 OF CAPC AND
U/S 66, 67A OF THE CLANDESTINESIA INFORMATION TECHNOLOGY ACT, 2000.
The counsel on behalf of the petitioner argues that the promoters of TCPL, Dr. Jnanendra Mitra
and Zubin Dubash are vicariously liable as their acts led to corporate criminal liability which led
to piercing the corporate veil. Moreover, they acted as agents of the company and are liable under
section 224 of The Indian Contract Act, 1872.
[5.1]: That the corporate veil of the company can be pierced for public interest.

The lifting of the corporate veil implies neglecting the corporate personality and looking for the
genuine individual who is in the control of the organization. At the end of the day, where a false
and deceptive utilize is made of the legitimate entity, the people concerned won’t be permitted to
take shield behind the corporate personality.23 In United States v Milwaukee Refrigerator Co24, the
position was summed up as “An organization will be looked upon as a lawful entity as a general
rule…… however when the idea of the legitimate element is utilized to vanquish public
convenience, defend crime or protect fraud, justify wrong, the law will view the enterprise as a
relationship of people.”

The counsel further contends that in State of Rajasthan v Gotan Lime Stone Khanji Udyog Pvt
Ltd25, the Court noted that the principle of piercing the corporate veil may be invoked for the
protection of public interest and it is absolutely not necessary to enumerate the class of cases
where lifting the veil is permissible, since that depends on the relevant statutory or other
provisions, the object sought to be achieved, the impugned conduct, the involvement of the
element of the public interest, the effect on parties who may be affected etc.
Furthermore, the Supreme Court in Kapil Hingorani v State of Bihar26 held that the corporate veil
which separates an entity vis-à-vis its shareholders could be lifted when the corporate entity was
found to be ‘opposed to justice, convenience and interest of the revenue or workman or against
public interest’.

23
< https://blog.ipleaders.in/corporate-veil/> accessed on 30th August 2017
24
United States v Milwaukee Refrigerator Co, 142 Fed 247 (1905)
25
State of Rajasthan v Gotan Lime Stone Khanij Udyog Pvt Ltd, civil appeal no. 434 of 2016, SLP (civil) 23311 of
2015
26
Kapil Hingorani v State of Bihar, (2003) 6 SCC 1
Also, the Apex Court in State of Uttar Pradesh v Renusagar Power Company27 in observing the
difficulty of confining the scope and applicability of the doctrine within predetermined boundaries,
stated that it was neither necessary nor desirable to enumerate the classes of cases where lifting
the veil is permissible, since that would necessarily depend on a host of disparate factors including
the involvement of public interest and its effect on parties.
Black's Law Dictionary defines “public interest” as follows: 1.The general welfare of
the public that warrants recognition and protection. 2. Something in which the public as a whole
has a stake especially an interest that justifies governmental regulation. In our present case, the
offence of obscenity as well as defamation is related to public interest and hence, the counsel can
plead that the corporate veil of the companies can be lifted. It is mentioned in the facts that the
media reports on Khosadasti led to a complete swing in the public opinion against the Khosads.28
Thus, the public has a stake in it if these offences are committed.
Hence, it is necessary that the corporate veil be lifted and the promoters, Dr. Jnanendra Mitra and
Zubin Dubash are made vicariously liable for the offences of Obscenity and defamation and also
be held liable u/s 67 and 67A of the Clandestinesia IT Act, 2000.

27
State of Uttar Pradesh v Renusagar Power Company, (1988) 4 SCC 59
28
UMCS Summer GI Moot Proposition 2017, ¶ 7