Team Code: T-19

IN THE SUPREME COURT OF INDIKA AT INDIANOPOLIS

Before
THE HONOURAv BLE SUPREME COURT OF INDIKA
W.P. (CIVIL) No. /2019
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIKA, 1950)

Indikan Society of Journalists And Authors....................................Petitioner

v.
Union of Indika ........................................................................ Respondent

With
Criminal Appeal No. /2019
(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIKA, 1950)

Our Time News ....................................................................Appellants

v.
Mr. Elvis D’Souza ................................................................... Defendant

Most Respectfully Submitted before the Hon’ble Judges of

Supreme Court of Indika

MEMORIAL ON BEHALF OF PETITIONER

DRAWN AND FILED BY THE COUNSELS FOR THE PETITIONER
TABLE OF CONTENTS

Table of Abbreviations ......................................................................................... 03

Index of Authorities .............................................................................................. 04

Statement of Jurisdiction.......................................................................................06
Statement of Facts ................................................................................................. 07

Statement of Issues ................................................................................................ 08

Summary of Arguments ......................................................................................... 09
Arguments Advanced.............................................................................................10

I. THE PETITIONS FILED UNDER ARTICLE 32 AND ARTICLE 136 OF

THE CONSTITUTION OF INDIA ARE MAINTAINABLE
1.1 Petition under Article 32 is maintainable......................................................10
1.1.1 The petition is maintainable as a PIL as it is filed in interest of public
1.1.2 Petitioner has Locus Standi in the case
1.1.3 Role of SC in upholding fundamental rights
1.1.4 Alternative remedy is not a bar
1.2 Petition under Article 136 is maintainable......................................................11
1.2.1 There is a question of pure law and interpretation of a statute
2 SECTIONS 499 , 500 OF THE INDIAN PENAL CODE, 1960 AND SECTION
199 OF CRIMINAL PROCEDURE CODE,1973 ARE
UNCONSTITUTIONAL
2.1 Section 499, 500 of the IPC and reasonable restrictions .............................. 14
2.2 Constitutionality of criminal defamation ................................................. 15
2.3 Do reasonable restrictions supersede fundamental rights .............................. 15
2.4 Does defamation fall under criminal offence? ............................................... 16
2.5 Is Truth an exception? .................................................................................... 17
3 A CORPORATE ENTITY CAN FILE A CRIMINAL COMPLAINT FOR
DEFAMATION
3.1 “Person” includes within its ambit a company .............................................. 19
3.2 Defamation must be against the company and not the individuals associated
with it ............................................................................................................... 20
3.3 Role of Judicial Magistrate in defamation cases...............................................21
3.4 Parliamentary Privilege .................................................................................... 22

Prayer ........................................................................................................................ 24
LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION

AIR All India Reporter

Art. Article

CrPC Criminal Procedure Code, 1973

DBP Desh Bhakt Party

HC High Court

Hon’ble Honourable

ISJA Indikan Society of Journalists and Authors

IPC Indikan Penal Code, 1860

J. Justice

JMP Janata Mangal Party

Ltd. Limited

p. Page no.

r.w.s. Read with Section

SC Supreme Court

SCC Supreme Court Cases

u/s Under Section

Mad Madras

Bom Bombay

All Allahabad

Del Delhi
 INDEX OF AUTHORITIES

1. Alembic Chemical v. Workmen, A.I.R. 1961 S.C. 647.

2. Arundhati Roy, In re, (2002) 3 S.C.C. 343.
3. Basheshar Nath V. The Commissioner of Income Tax- Delhi & Rajasthan A.I.R. 1959
S.C. 149
4. Coelho (Dead) By Lrs. V. State of Tamil Nadu. (1999) 7 SCC 580
5. Dixon Vs Holden 923 S.W.2d 370 (1996)
6. Express Newspapers Ltd. v. Union of India, A.I.R. 1958 S.C. 578.
7. Golaknath (I.C.) v. State of Punjab (1967) 2 S.C.R 762
8. K. Bhagirathi G. Shenoy and Ors. vs. K.P. Ballakuraya and Ors (1999) 4 SCC 135
9. Mohd. Shahabuddin v. State of Bihar (2010) INSC 220
10. R. Krishnamurthy and Ors. v. Sun TV Network Limited (2008) 1 M.W.N (Cr.) 196
11. R.M.D. Chamarbaugwala v. union of India A.I.R. 1957 S.C. 699
12. Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. and Ors.,
(1987) 1 SCC 424
13. S P Gupta v. Union of India, A.I.R. 1982 S.C. 149.
14. Shreya Singhal v. Union of India (2013) 12 S.C.C. 73
15. State of Bihar v. Ram Naresh Pandey, A.I.R. 1957 S.C. 389.
16. Union of India (UOI) vs. Naveen Jindal and Ors., (2004) 2 SCC 510
17. AneetaHada v. Godfather Travels and Tours (P) Ltd (2012) 5 S.C.C. 661
18. Atherton And Co. Pvt. Ltd. And Ors. vs Rainbow Surgical Dressing (1984) 2 G.L.R.
795
19. PK Oswal Hosiery Mills v Tilak Chand L Ghasita Ram Jain A.I.R. 1969 P.H. 150
20. RomeshThappar v. State of Madras, A.I.R.1950 SC 124.
21. Shenoy K. Ramdas v. Chief Officer, Town Municipal Council, Udipi, A.I.R. 1974 S.C.
2177.
22. Tata Sons Limited v. Greenpeace, I.A. No.9089/2010 in CS (OS) 1407/2010 (Delhi
High Court) (India)

BOOKS

1. DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA, (14th ed. 2014).

2. H.M.SEERVAI, CONSTITUTION LAW OF INDIA (4th ed. 2015).
 3. M.P.JAIN, OUTLINES OF INDIAN LEGAL & CONSTITUTIONAL HISTORY, (7th ed. 2014).

STATUTES

1. CIVIL PROCEDURE CODE, 1908

2. CODE OF CRIMINAL PROCEDURE, 1973
3. INDIAN PENAL CODE, 1860
4. THE CONSTITUTION OF INDIA,1950
 STATEMENT OF JURISDICTION

I. WRIT PETITION NO. --/2019

THE PETITIONER HAS APPROACHED THE HON’BLE SUPREME COURT OF INDIKA UNDER
ARTICLE 32 OF THE CONSTITUTION OF INDIA.

II. SPECIAL LEAVE PETITION [CRIMINAL] NO. --/2019

THE PETITIONER HAS APPROACHED THE HON’BLE SUPREME COURT OF INDIKA UNDER
ARTICLE 136 OF THE CONSTITUTION OF INDIA.
 STATEMENT OF FACTS

1. 1. Indika is a democratic country, whose personal laws and other statutes of the country
are in parimeteria with that of India. The ruling party Desh Bhakt (DBP) was criticized
for restricting the freedom of expression of journalists who criticized DBP's policies and
functioning, and was arrested for doing so while pursuing their job.
2. Kishan Kalia, a leading political writer and activist, has been extremely vocal and critical
on the DBP agenda. He was arrested in the state of Indianapolis, Indika, based on the fact
that he had had a criminal defamation of the Prime Minister of the state of Indianapolis,
Mr. Swaminath, sharing a reprehensible and defamatory tweet against him. Subsequently,
the police superintendent reported that Kalia died in custody of a serious heart attack.
3. The ambiguous circumstances in which Kishan Kalia died under custody along with the
fact the government was involved in a nationwide crackdown on freedom of expression by
arresting journalists, bloggers and writers with prominent leaders of the ruling party
referring to these people as ‘urban naxals’, ‘tukde tukde’gang. In short the government went
against anyone who goes against their beliefs
4. On knowing about the petition filed by the IJSA in the supreme court Mr. Elvis D Souza a
Member of the Parliament belonging to the opposition Janata Mangal Party (JMP) gave a
fiery speech in the Parliament that went viral and became highly circulated in the social
media.
5. In the same time Mr.Akraman Shah editor in chief of our Times News network accused
Mr. D’Souza of plagiarizing his speech in one of his talk shows. For which Mr.D’Souza
replied by stating that his speech was not plagiarized and the original work was actually
written by his colleague with whom he had worked. He also moved a breach of privilege
motion against our Times News network and accused the people working here as
incompetent and unprofessional.
6. Our Times news filed a complaint against Mr.D’Souza stating that he had made defamatory
statements against the network and its employees in the district court of Indianapolis. They
stated that the defamatory remarks made by Mr.D’Souza were baseless and substantially
affected the reputation of the company.
 STATEMENT OF ISSUES

I. WHETHER THE PETITIONS FILED UNDER ARTICLE 32 and Article 136 OF THE
CONSTITUTION OF INDIA IS MAINTAINABLE?
II. WHETHER SECTIONS 499, 500 OF THE INDIAN PENAL CODE, 1960 AND SECTION
199 OF CRIMINAL PROCEDURE CODE,1973 ARE UNCONSTITUTIONAL?
III. WHETHER A CORPORATE ENTITY FILE A CRIMINAL COMPLAINT FOR
DEFAMATION?
 SUMMARY OF ARGUMENTS

I. THE PETITIONS FILED UNDER ARTICLE 32 AND ARTICLE 136 OF THE

CONSTITUTION OF INDIA ARE MAINTAINABLE OR NOT?

The Counsel on behalf of the Petitioners submits that the present petitions are maintainable
before Supreme Court of Indika. Firstly, the writ petition under article 32 is maintainable
because there have been violation of fundamental rights and the while approaching the court
under article 32 alternative remedy is not a bar as article 32 is itself a fundamental right.
Secondly, the special leave petition under article 136 is maintainable as there exists a question
of pure law and interpretation thereof.

II. Sections 499, 500 of the IPC and reasonable restrictions

It is submitted that the law criminalising defamation is unconstitutional as it violates the

fundamental rights of freedom of speech and expression and freedom to practice profession
and is more of negative impact on interests of general public rather than positive ones. In
present case the facts that increase in number of criminal proceedings against journalists and
reporters in a single year shows that the law which criminalises defamation I s being misused
by those who wield the power of State machinery in such a manner so that it shuts out the
critics and forces them to have their opinions to themselves. The one major positive of aspect
and sign of a healthy democracy is when even the critics can be as vocal as any other person
and their voices are also heard. The law criminalising defamation is taking away this vey aspect
of voicing dissenting opinions and commenting on them by engaging them into false and
frivolous criminal proceedings and subjecting them to mental harassment and preventing the
journalists and reporters to carry out their profession. Hence it can be concluded that the law
unconstitutional on the grounds that it is against the basic principles of constitution and it is
used to violate fundamental rights of the citizens.

III. A CORPORATE ENTITY CAN FILE A CRIMINAL COMPLAINT FOR DEFAMATION

Then Counsel on behalf of the Appellants submits that Our Time News which is a corporate
entity can initiate a criminal defamation when Sections 11, 499, 500 of the Indian Penal
Code, 1860 is read with Section 199 of the Code of Criminal Procedure, 1973. It elaborates
that the definition of the term ‘person’ is inclusive of a corporate entity.
 ARGUMENTS ADVANCED

I. THE PETITIONS FILED UNDER ARTICLE 32 AND ARTICLE 136 OF

THE CONSTITUTION OF INDIA ARE MAINTAINABLE

It is humbly submitted that before the Hon’ble Supreme Court that the petitions in instant case
are maintainable. As it is evident that the Hon’ble Supreme Court has already tagged the
petitions together and listed them for hearing, the issue of maintainability should not arise in
normal circumstances. However, following submissions are made respectfully to re-affirm the
maintainability of the petitions filed.

Petition under Article 32 is maintainable

Maintainability of Public Interest Litigation

A PIL refers to any case which is brought before the supreme court of indika wherein which it is
not necessary that the fundamental rights alone should have been violated, it can also be availed for
the purpose of enforcing public interest which is inclusive in nature, may refer to pecuniary or any
other form of interests in which their legal rights are affected1. It is very much clear that the ruling
party in the present case – Desh Bhakth Party has curtailed the freedom of speech guaranteed
under article 19(1)(a) of the constitution by arresting almost 800 journalists, branding them as
“naxals” and “traitors”. The very fact that our nation has dropped to 140th position in the index of
world press freedom shows the status of freedom of speech in the nation of Indika. Certain
guidelines issued by the supreme court with respect filing of PIL states in the case a person dies in
the custody of the police is a valid ground for filing the same. This case very much applies to the
current issue where Kishan Kalia died while he was in the custody of the police2.

A writ petition may be not moved only by an aggrieved individual but also by a social action
group for the enforcement of constitutional or legal rights who is unable to approach the Court3
There exists no rigid rule of Locus Standi which can be applied to a public interest litigation, the
Supreme Court in several cases has pointed out that any member or social group can maintain an

1
D. D. BASU, SHORTER CONSTITUTION OF INDIA (21st ed. 2014).
2
Compilation of Guidelines to be followed for entertaining letters/petitions received in this court as PIL, Supreme Court
of India. Available at- https://main.sci.gov.in/pdf/Guidelines/pilguidelines.pdf

3
Shenoy K. Ramdas v. Chief Officer, Town Municipal Council, Udipi, A.I.R. 1974 S.C. 2177.
action for redressal provided they are acting in bona fide manner.4 In the present matter the recent
rise in criminal proceedings for defamation against journalists while exercising their profession
and death of KishanKalia who was a renowned author points out the fact that the colonial law
criminalizing defamation is being used to suppress free press and fundamental rights of the
journalists and reporters. The Indikan Society of Journalists and Authors has Locus Standi as
being an organization comprising of Journalists and Authors have Locus Standi in the present
case.

Role of SC in upholding fundamental rights

Supreme Court of India has in number of cases held that although freedom of press is not
separately provided for in the Constitution but it is implicitly provided and included in the
freedom of expression under Article 19(1)(a)5. The Court in case of Express Newspapers Ltd. v.
Union of India 6 has also observed that subjecting press to laws which hamper the freedom of
expression so that it affects the circulation and dissemination of information and its freedom to
choose its means of exercising the right or in any manner poses danger to its independence then
it wouldn’t be considered as a reasonable restriction. In present case the state is misusing the law
which criminalises defamation as a tool to shut out the critics and thereby posing threat to
independence of the press by harassing them and subjecting them to torture through frivolous
cases. The very fact that Indika which as a nation was known for its ideology of Unity in Diversity
has seen a sudden spike in arrests of journalists and reporters in course of their occupation,
majority of whom had criticized policies of the ruling party in addition to ranking in The World
Press Freedom Index shows the intolerant nature of the existing government and thereby violating
fundamental rights of not only journalists but also violating rights of general public by preventing
them to receive criticism of the policies. Hence under Article 32 this petition is maintainable as
there is gross violation of fundamental rights of general public in addition to journalists and
reporters.

Alternative remedy is not a bar

It is not necessary that the petitioner while approaching Supreme Court under Article 32 has
exhausted all other remedies available because Article 32 is itself a Fundamental Right and
Supreme Court has an obligation to discharge its duties as protector of Fundamental Rights when

4
S P Gupta v. Union of India, A.I.R. 1982 S.C. 149.
5
Arundhati Roy, In re, (2002) 3 S.C.C. 343.
6
Express Newspapers Ltd. v. Union of India, A.I.R. 1958 S.C. 578.
a person complains of infringement of Fundamental Rights.7 In the present case the fundamental
rights as enumerated under Article 19(1)(a) and Article 19(1)(g) to KishanKalia have been
violated. Hence, existence of an alternative remedy is not a bar to the Supreme Court for granting
a relief under Article 32.

Petition under Article 136 is maintainable

There is a question of pure law and interpretation of a statute

Article 136 of the Constitution of India confers plenary jurisdiction in the Court to decide and
meet the pressing demand of justice. It is to be noted that Article 136 can be invoked when a
question of pure law and need for its interpretation arises for dispensing justice to the public. The
Supreme Court has held that in a case a new point can be raised before it which wasn’t contended
before High Court if it is a question of pure law8 and question of interpretation of a statute9. It is
a well- established legal principle that a Corporate entity is a legal person. Therefore, as a legal
person the corporate entity is also entitled to rights under Article 14 of the Constitution. Section
199 of the Code of Criminal Procedure states that an aggrieved person may initiate a criminal
proceeding under Chapter XXI of the Indian Penal Code, but the section is silent on the matter
whether the person should be legal person or a citizen. Therefore, in the present case the
proceedings under Section 199 of Code of Criminal Procedure were initiated by Our Time News
but the same was rejected by the lower court and the High Court of Indianapolis on the ground that
a corporate entity cannot initiate a criminal complaint on defamation. Therefore, the present
Special Leave Petition involves question of pure law and interpretation of ‘person’ under Section
199 and whether a corporate entity can initiate a criminal proceeding for defamation. Hence the
present petition is maintainable as laying down law for the nation is one of the key objectives of
Supreme Court.

The present petition is valid before the court of law wit h respect to filing of a special leave petition under
art 136 of the constitution as there are two main requirements that have to be fulfilled they are the presence
of a judicial or quasi judicial determination or order to appeal and the passing of said determinationor order
by any court .10 or when there is a substantial question of law.

7
RomeshThappar v. State of Madras, A.I.R.1950 SC 124.
8
State of Bihar v. Ram Naresh Pandey, A.I.R. 1957 S.C. 389.
9
Alembic Chemical v. Workmen, A.I.R. 1961 S.C. 647.
10
Dhakeshwari Cotton Mills v. Commissioner of Income Tax, AIR 1955 SC 65
Whether Sections 499 , 500 of the Indian Penal Code, 1960 and Section 199 of
Criminal Procedure Code,1973 are unconstitutional or not?

The counsel humbly submits that section 499 and 500 Indian Penal code is unconstitutional.
Section 499, 500 of IPC and Section 199 of the CRPC are ultra-vires articles 14, 19(1)(a) and
Article 21 of the constitution.

Section 499, 500 of the Indian Penal Code is do not fall under the reasonable restriction
as enshrined in the Indian Constitution
Fundamental rights are the bedrock of the indian constitution, they are quintessential for
preserving the rights of every citizen. The state has a legal responsibility to protect the same. One
of the main facets of the fundamental rights that is guaranteed to each and every citizen of our
nation is the freedom of speech which can also be termed as the guardian of free speech. When
there is a restriction to free speech however small it may be it is still deemed as a threat to public
interest11 .
The nature of the reasonable restrictions via art 19(2) of the constitution is something that is
intended to safeguard the public but in most of the cases it is used in an opposing manner.
Moreover it is important to note that it is for safeguarding the interests of the public at large and
not just an individual.therefore it is very much important at this point to distance art 19(2) from s.
499 of the IPC as it makes defamation against a private person an offence.
Therefore understanding the intention of the framers of the constitution is something that is very
important, having this in mind one has to apply the principle of noscitut a sociis12 To the
reasonable restrictions mentioned under art 19(2) . the application would make it clear that
s.499,500 of the IPC and 199 of CrPC is not in consonance with the thinking of the famers of the
constitution13

11
Union of India (UOI) vs. Naveen Jindal and Ors., MANU/SC/0072/2004
12
K. Bhagirathi G. Shenoy and Ors. vs. K.P. Ballakuraya and Ors. (06.04.1999 - SC)
13
Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. and Ors., MANU/SC/0073/1987
 Constitutionality of criminal defamation

The very fact that the section 499 and 500 of the IPC go against the constitution is very much
proved by the fact that it is not a crime against the society but infact a matter that happens
between two individuals, therefore it is nothing but an extension of the conflict between two
private individuals and nothing more than that and has no bearing on the state14 One can clearly
understand the fact that it is nothing but a civil wrong for which at maximum damages can be
claimed which pertains to common law. It must be treated on the same pedestal as the law of
contracts. But the legislation has extended this far too much by not just making it an offence
against the society but also giving it a criminal nature. By doing the above said the legislature has
clearly violated articles 19,21 and 14.

The organic and the ever evolving nature of the basic structure of the constitution was explained
in the case of Basheshar Nath v the commissioner of Income tax- Delhi and Rajasthan and anr
as follows;
“A large majority of our people are economically poor, educationally backward and
politically not yet conscious of their rights. Individually or even collectively, they
cannot be pitted against the State organizations and institutions, nor can they meet them
on equal terms. In such circumstances, it is the duty of this Court to protect their
rights.”

“It was therefore held that the fundamental rights created by the Constitution are transcendental
in nature, conceived and enacted in national and public interest, and therefore cannot be
waived.”15

Therefore at this juncture it is very important for us to note the fact that framers of the
constitution meant for the articles 19(1) and (2) to work with each other and not against in the
interests of the general public at large not as mentioned in IPC.

14
Coelho (Dead) By Lrs. V. State Oftamil Nadu
15
Basheshar Nath V. The Commissioner of Income Tax- Delhi & Rajasthan & Anr
Do reasonable restrictions supersede fundamental rights?
The judiciary has to look into the fact that art 19(2) is an exception to the art 19(1) of the
constitution and not a restriction on the same. Moreover one has to understand the fact that art
19(2) must always work to further the interests of the society and not against the interests of the
same. Importance has to be attached to the latin maxin “noscitur a sociis” while understanding the
article 19(2).

Looking at the reasonable restrictions one has to notice the scope of a person’s reputation as
guaranteed under both article 21 and 19(2) of the constitution. But an exeption with respect to
article 21 of the constitution is that “false reputation” cannot be protected under the same. Only
the bonafide reputation of a person can be protected under article 21 of the constitution. In the
English case of Dixon v Holden16 it was stated that a man’s reputation is ‘the most important
property a man could ever possess”. But with respect to our jurisdiction the postiton changed
after the 44th amendment to the constitution after which property was no longer a fundamental
right . therefore the point that is derived from the above said statements is the fact that the right to
reputation might be claimed as a common law right17. Moreover article 19(2) contains the term “
public interest” applying the concept of Noscitur a sociis it is clear that even the reasonable
restrictions under clause 2 must be understood with respect to the “public interest” at large and
not to further the interests of certain individuals. It is now all the more clear that art 19(2) and
s.499 of the IPC are totally different and the latter works in violation of the former.

Does defamation fall under criminal offence?

The interesting thing about defamation in IPC is that it is inherently unconstitutional in nature. First
of all ‘defamation’ per se does not fall under the ambit of ‘crime’ this is because of the fact that the
main facet of crime is that it must be committed ‘against’ the society or the ‘ interests of the society
‘. Having this in mind if we interpret article 19(1)(a) and(2) of the constitution then the term
‘offence’ means a crime against the society and not against a private individual18

16
Dixon Vs Holden 1869
17
Golaknath (I.C.) v. State of Punjab 1967
18
Mohd. Shahabuddin v. State of Bihar 2010 and State of Maharashtra v. Sujay Mangesh Poyarekar 2008
The correct interpretation of defamation that was envisaged by our constitutional forefathers is
something that is given in the first part of subsection (2) of section 320 of CrPC with reference to
section 500 of the IPC which states that “defamation against the president all the vice president all
the governor of a state all the administrator of union territory or minister in respect of misconduct
in the discharge of his public functions when instituted upon a complaint made by the public
prosecutor.”19

It would be wise and necessary on the part of the judiciary to curtail the scope of section 499 of IPC
to the extant covered in the above statements, anything more than that would be a serious impediment
to the enforcement of fundamental rights that is guaranteed to each and every individual. Such a law
unlawfully and immorally infringes on the basic rights guaranteed under our constitution and it must
be considered arbitrary.20

Constitutional privilege of the press

In the case of most of the democracies press enjoys a form of constitutional privilege. It was stated
that the press play an important role in each and every democracy by bringing out the truth to the
public. Moreover the unprejudiced nature of the press is something that is very much essential for
the proper functioning of a democratic nation. This rule was very much emphasized in the case of
The New York Times Co. v L. B. Sullivan21. In this case it was held that the legislature as well as
the executive must be conducive to the privilege enjoyed by the press. It was held that the criticism
of a public officials duty was as important as carrying it out. It was also stated that the privilege
that was enjoyed by the press while criticizing a public official was commensurate to the protection
enjoyed by a public official when a private citizen sues him for libel. The balancing of both the
privileges is an important feature of democracy. In the case of Shreya Singhal v UOI22 the apex
court stated that the American constitution contains the term “expression” which in it scope covers
the freedom of press which is also covered under the article 19(1)(a) thereby the freedom of press is
a recognized fundamental right.

19
Section 500 of the IPC
20
Shreya Singhal v. Union of India 2015
21
376 US 254 (1964)
22
(2013) 12 S.C.C. 73
Test of Actual Malice:
Application of mind is a very important facet when it comes to determining the gravity of the case
with respect to defamation. In the case of Bhushan Kumar and Another V state (NCT of Delhi)23
it was held that application of mind is an essential feature which was incorporated inorder to
prevent the misuse of law. In this case it was clearly stated that since a case of defamation involves
fundamenatal rights on both sides it is very much important for the magistrate to make sure that all
the facets of the case are taken into account and there was proper application of mind before. It was
also stated that this test must be strictly applied in the case of media networks which gets
themselves entangled in several defamation cases in the course of our nation’s history.

The test of actual malice was reiterated in several landmark judgements for example in the case of
Ratan N.Tata v State of Maharashtra24 the criminal proceedings with respect to a defamation suit
was quashed stating that magistrate had failed to apply his mind while taking cognizance of an
offence. The court also stated that defamatory suits must not be used for furthering vested interests
of those in power.

One of the most important cases with respect to the usage of the test of actual malice was Shashi
tharoor v Arnab Goswami25 in this case the defendant was accused of making defamatory
statements against a union minister with respect to a murder investigation which was sub judice in
the court of law. Even in this case eventhough the journalist had reported on a matter that was sub
judice it is important to note that the court emphasized on applying the test and establishing actual
malice on the part of the defendant while reporting the case.

23
(2012) 5 SCC 424
24
2019(4) Bom CR (Cri) 230
25
246 (2018) DLT 279
Is Truth an exception?

Article 51A of the constitution of our nation asks us to foster the principles that laid the foundation
to our nation. Truth is one of the most important principles based on which both our nation and our
constitution were built. The fact that our national motto is “ truth only triumphs “ is a testament to
this fact. The very fact that most of our national leaders and freedom fighters spent years together
languishing in jails for speaking the truth must very much emphasise on significance of truth in our
legal system. Speaking the truth can never be considered unconstitutional.

According to the founding fathers, it is always for the public good. A citizen who has told the truth
is also ashamed of being treated as a defendant, harassing summons, getting bail or being arrested
and otherwise arrested and attempting all hearings. The case involving a lawyer that involves a
considerable expense and pending trial will go to the stage of defense evidence and, in the end, will
be discharged after the burden of truth, completely irrational, unfair, unfair and arbitrary, prohibited
by articles. 14, 19 and 21. There is no reason to subject a citizen who tells the truth to this test. The
additional requirement that the defendant must demonstrate that the statement he made was in the
public interest if it is not justified and exceeds the limits of reasonableness.

Since the invalid path and the valid path of section 499 IPC are inextricably mixed and cannot be
separated from each other, the principle of divisibility cannot be applied. Section 499, therefore,
section 500 can be declared unconstitutional26

26
R.M.D. Chamarbaugwala v. union of India 1957
A CORPORATE ENTITY CAN FILE A CRIMINAL COMPLAINT FOR
DEFAMATION

Our times news is a corporate entity and therefore comes under the ambit of section 11 of IPC
therefore a criminal defamation suit under sections 499 and 500 of IPC read is maintainable along
with section 199 of CrPC. As per section 11 of IPC the definition of the term is ‘inclusive’ in
nature and therefore it includes a company/ corporate entity.

Whether “Person” includes within its ambit a company?

In In the case of Atherton and co. pvt and ors vs Rainbow Surgical Dressing27 the court stated
with respect to whether a company can be considered as a person by quoting section 11 of the
Indian penal Code,1860 in which the definition of a person includes a company or an association
of persons, whether incorporated or not. The court also refers to the General clauses act,1897
which also defines a person shall include a company or association or body of individuals
whether incorporated or not as given in section 3(42) of the same.

It may be humbly submitted before the judiciary that section 11 of the Indian Penal Code,1860
read along with section 499 which states that,” whoever makes or publishes any imputation
concerning any person intending to harm, or knowing or having reason to believe that such
imputation will harm, the reputation of such person, is said, to defame that person”. It is very
important to look into the explaination 2 of the said section and it states the following,” "it may
amount to defamation to make an imputation concerning a company or an association or
collection of person as such".

The above said statements give a clear picture as to whether a company can be defamed or not.
The said section along with its second explanation make it clear that a company or an association
of persons whether incorporated or not can very well be defamed. Therefore an offence of
defamation against a company is something that is recognized in our jurisprudence and therefore
it can be stated that a company not being a natural person cannot be defamed.

27
(1984) 2 G.L.R. 795
Defamation against a company must be against it and not against the individuals
associated with it

In the case of Maungchitay v. Maungtunnyun the court stated that the impugned words must
affect the management and working irrespective of the people acting behind the veil . the company
or association of persons must be attacked with reference to the way in which it is run, must be
accused of fraudulent activities, misappropriation of funds, embezzlement,etc. it cannot bring a
case of defamation against statements which affect its honor or dignity.
Therefore an offence of defamation against a company is something that is recognized in our
jurisprudence and therefore it can be stated that a company not being a natural person cannot be
defamed. It must be an attack on the company a legal fiction and not on the individuals behind it, if
that’s the case then defamation against the said corporation cannot be maintained in the court of
law. It must be brought before the notice of the judiciary that Mr.D’Souza’s words directly attacked
the company as he used the words “ false and fabricated news” to describe the way in which Times
News carried out its business. Times News has one of the largest following in the entire nation,
calling the news circulated by such a prominent news network affects not only the credibility of
Times News’s services but also mocks the intelligence of millions of people watching the channel
for gathering information on day to day happenings.

In the case of Aneetahada V Godfather travels and tours pvt ltd28 it was held that a company has
its own reputation separate from the people running it. This is very much applicable to the present
case as Mr.D’Souza had attacked the way in which the company was run and the nature of the
news it circulated which was a direct attack on the working of the company which amounts to
defamation.
In the case of R.Krishnamurthy v Sun TV network ltd the court stated the following
“It is obvious that 'reputation' in the sense in which alone it concerns the topic of defamation has
relation to the particular person enjoying it. But it must not be forgotten that 'person' for this
purpose includes an artificial person; that is to say, it includes both 'a body of persons' and a firm
' That a commercial 'body of persons' has a trading character and can sue in respect of a
publication to injure that trading character is now clearly well established.”

28
(2012) 5 S.C.C. 661
In the case of PK Oswal Hosiery Mills v Tilak Chand L Ghasita Ram Jain 29 the court stated the
following:

"A corporation can sue for torts committed against it, but there are certain torts which it is
impossible to commit against a corporation. Such are assault and personal defamation. Thus, a
corporation cannot sue for libel a person who charges it with bribery and corruption although the
individual members of it might be able to do so, but if a libel or slander affects the management
or its trade or business, then the corporation itself can sue;”

Role of judicial magistrate in defamation cases

It is humbly submitted that in the case of R. Krishnamurthy and Ors. v. Sun TV Network Limited
the Hon’ble Court held as follows:

“ The contention of the learned Counsel for the petitioners that the company may maintain a
prosecution or an action for a libel affecting its property, but not for a libel merely affecting
personal reputation as a company has no reputation apart from its property or trade is concerned,
this Court is of the considered view that since there are some allegations in paragraph 8 of the
complaint it is not the province of this Court to appreciate at this stage the evidence or scope of
and meaning of the statement. At this stage this Court cannot embark upon weighing the
evidence and come to the conclusion to hold, whether or not the allegations made in the
complaint constitute an offence punishable under Section 500 of the Indian Penal Code. It
is the settled legal proposition that a court has to read the complaint as a whole and find out
whether the allegations disclosed constitute an offence under Section 499 of the Indian Penal
Code triable with the Magistrate and the Magistrate, prima facie, has come to the conclusion
that the allegations might come within the meaning of 'defamation' under Section 499 of the
Indian Penal Code and had taken cognizance of, but these are the facts to be established at the
trial.

Thus, Court held that it is not inclined to express any opinion on this aspect of the matter, except
to the limited extent of saying that the Court below had not acted wrongly in coming to the prima
facie conclusion that the contents of the impugned publication

29
A.I.R 1969 P.H. 150
appeared to contain defamatory material and therefore there was need to take the complaint on
file and issue process to the accused.25

Parliamentary Privileges

With respect to a claim of defamation the following must be taken into account:- (a) untrue (b) made
about the affected person’s reputation or business (c) understood by a reasonable person (d) made to a
third person30

In the present scenario the impugned statements made by Mr.D’Souza satisfies all the criteria in that it
was untrue, affects the reputation of the company and was made in a social media platform thereby making
it third persons. Therefore it is safe to assume the statements of Mr.D’Souza constitutes defamation.
Another interesting principle that was brought out by the judiciary in the case of Lalit Modi v Chris Lance
Cairns31 was the principle of ‘percolation’, as per this principle anything stated via social media has the
possibility of self perpetuating therefore reaching millions like never before within a short period of time.
This was applied in the background of the case where there was a lot of tweeting and retweeting which
means that it has become easily available in the internet already reaching millions. The rise of the internet
era has seen information being exchanged at volumes and speed never seen before which means speech
including defamatory ones are reaching the wider public at a much faster rate32

In large part, the availability of the remedy of defamation and the role of a public trial is to set right an
unequal balance between the large publisher (with access to a professional editorial and legal team and
wide circulation) and the relatively powerless individual who might not have ready access to a similar
scale of resources or reach.29 With Twitter, this is no longer the case. Though it might not be simple, for
a nominal cost it is possible for the subject of the tweet to reach potentially the same audience that the
original poster had inorder to refute, clarify and respond30 in more or less real time. The original poster
also has the opportunity to undo damages by reformulating, retracting and relaying31 information he or she
realises is inaccurate or illegal without having to wait for the completion of an entire passive news cycle,
as would be the case with traditional media.32

the problem with today’s technological prowess is that the even the threat of a public trial for the offence
of defamation has no effect of deterrence as the technology has made it possible for anyone to reach the
general public within a span of few minutes33. The balance is easily tipped in favor of the person

30
Tata Sons Limited v. Greenpeace, I.A. No.9089/2010 in CS (OS) 1407/2010 (Delhi High Court) (India
31
[2012] EWCA Civ 1382.
32
Id
33
Ellyn M. Angelotti, Twibel Law: What Defamation and Its Remedies Look Like in the Age of Twitter, 24,
(2012), available at http://works.bepress.com/ellyn_angelotti/, at 18 (Last accessed on 08 Feb 2020).
committing the offence as all it takes is nothing but access to social media via the internet34, this is all that
is required to tarnish the image of a powerless innocent individual.35

Thus, it is humbly submitted that the Tweet made out by Mr. Elvis D’Souza will not fall under the ambit
of Parliamentary Privilege and is therefore a case of defamation against Our Time News.

34
Jacob Rowbottom, To Rant, Vent and Converse: Protecting Low Level Digital Speech, 71 C.L.J. 2, 355 (2012).
35
Ellyn M. Angelotti, Twibel Law: What Defamation and Its Remedies Look Like in the Age of Twitter, 24, (2012),
available at http://works.bepress.com/ellyn_angelotti/, at 55 (Last accessed on 08 Feb 2020).
 PRAYER

Wherefore, in the light of the legal precedents and principles cited; and in light of the provisions
of the Constitution applied and arguments advanced; it is most humbly pleaded before the
Hon’ble Court that this Court adjudges and declare that”

 The sections 499, 500 of IPC and section 199 of Criminal Procedure Code should be
held unconstitutional
 A corporate entity initiate a criminal defamation proceedings
 To revet the case back to the sessions court
 An appropriate writ must be passed to enforce the fundamental rights

And pass any other order, direction or relief that it may deem fit in the best interests of justice,
fairness, equity and good conscience.

ALL OF WHICH IS MOST RESPECTFULLY SUBMITTED

COUNSEL FOR THE PETITIONER