ANNUAL RANKING MOOT 2019

MEMORIAL ON BEHALF OF RESPONDENT

TEAM CODE: S32R31

ANNUAL RANKING MOOT COURT COMPETITION,2019

IN THE HON’BLE SUPREME COURT OF INDIKA

AT INDIKA

SPECIAL LEAVE PETITION NO. ______ OF 2019

UNDER THE ARTICLE 136 OF THE CONSTITUTION OF INDIKA, 1950

IN THE MATTERS OF

OUR TIMES NEWS………………….………....…. PETITIONER

V.

MR. ELVIS D’SOUZA…………………………......RESPONDENT

MEMORANDUM ON BEHALF OF RESPONDENTS

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TEAM CODE: UASBUAYSG

ANNUAL RANKING MOOT COURT COMPETITION,2019

IN THE HON’BLE SUPREME COURT OF INDIKA

AT INDIKA

SPECIAL LEAVE PETITION NO. ______ OF 2019

UNDER THE ARTICLE 136 OF THE CONSTITUTION OF INDIKA, 1950

IN THE MATTERS OF

OUR TIMES NEWS………………….………....…. PETITIONER

V.

MR. ELVIS D’SOUZA…………………………......RESPONDENT

MEMORANDUM ON BEHALF OF RESPONDENTS

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TABLE CONTENT

LIST OF ABBREVIATIONS……………………………………............................................4

INDEX OFAUTHORITIES………….............…………………………………......................5

STATEMENT OF JURISDICTION…………………………………………..........................6

STATEMENT OF FACTS……………………………............................…….…………........7

STATEMENT OF ISSUES…………………….....………...........................……………......10

ARGUMENTS ADVANCED…....……………………………..........................……………13

ISSUE 1: WHETHER OR NOT THE SPECIAL LEAVE PETITION IS MAINTABLE?......13

ISSUE 2: WHETHER OR NOT THE STATEMENTS MADE BY THE RESPONDENT ARE

DEFAMATORY?.....................................................................................................................14

ISSUE 3: WHETHER OR NOT THE DEFAMATION IS UNCONTITUTIONAL OR

CONSTITUTIONAL…………………………………………………………………………16

PRAYER………………………………………………………………………………………..17

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LIST OF ABBREVATIONS

S.NO. ABBREVATIONS FULLFORM

1 § Section
2 AIR All india reporter
3 ANR Another
4 Art Article
5 CrPC Code of criminal procedure, 1973
6 Ch. Chapter
7 Const Constitution of india
8 Ed Edition
9 Govt Government
10 IPC Indian penal code, 1860
11 ltd Limited
12 OR’s Others
13 SCC Supreme court cases
14 SC Supreme court
15 SLP Special leave petition
16 Vol Volume
17 v. versus

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INDEX OF AUTHORITIES

CONSTITUTION
CONSTITUTION OF INDIA, 1950

ACT AND STATUTES

INDIAN PENAL CODE, 1860
CODE OF CRIMINAL PROCEDURE, 1973

BOOKS AND ARTICLES REFERRED

1. A COMMENTRAY ON THE CONSTITUTIONAL LAW OF INDIA, DR.J.N. PANDEY,

56 EDN., 2019
2. THE CONSTITUTION OF INDIA, BARE ACT, 2019
3. MEDIA LAW
4. THE INDIAN PENAL CODE, RATANLAL & DHIRAJLAL, 34TH EDN, 2014
5. A COMMENTARY ON THE CONSTITUTION OF INDIA, D.D BASU, 8TH EDN.,
2010

CASES

1. P.V NARSIMHA RAO V.STATE 1

2. Tej Kiran Jain and others v. Sanjiva reddy and others2

1
CRL 187/98
2
1970 AIR 1573, 1971 SCR (1) 612

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STATEMENT OF JURISDICATION

The Hon’ble Supreme Court of Indika has jurisdiction to hear the instant matter under
Article 136 of the Constitution of Indika.

Article 136 of the Constitution reads as follows:

“136. Special leave to appeal by the Supreme Court-

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence
or order passed or made by any court or tribunal constituted by or under any
law relating to the Armed Forces.

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STATEMENT OF FACTS

Indika is a diverse country with people having different religious beliefs and speaking different
languages. There always existed a beautiful “Unity in Diversity” ideology among the people and
of Indika.
Desh Bhakt Party (DBP) is the ruling party in Indika. In recent times, Indika has witnessed an
unprecedented surge in communal violence, riots and disharmony. Issues about the present
government, the DBP, curbing freedom of speech have been doing the rounds on various social
media platforms. In the recent years, Indika has been criticised as turning into an illiberal
democracy. In the year 2018 alone, it was noted that 738 journalists and reporters were arrested in
the course of their occupation. Most of them had written columns criticizing DBP policies. These
issues were picked up by National and International Media. The World Press Freedom index noted
Indika at rank 178 out of 185 States surveyed.

Kishan Kalia is a prominent Indikan writer who has won many awards including the Man Booker
Prize. He is a political activist who is extremely critical about the DBP agenda. Mr. Kalia resides
in Indianopolis, the Capital State of Indika. On 13th June 2019, Kalia shared a tweet by the Chief
Minister of Indianopolis, Mr. Swami Nath, on his official Facebook page. Swami Nath is a DBP
politician as well as an Indikan monk. Swaminath’s tweet was about rising intolerance in the State
based on recent reports on riots. Referring to minorities resistance in the State to DBP policies,
Swami Nath tweeted “we will teach them how to stay in peace”. While sharing the matter on his
page, Kalia commented as follows - "Swami Nath speaks like a guru of goons, which he is.”
Kalia’s tweet was widely shared on social media.

On 14th June 2019, around 7:30 am, Kalia was arrested at his residence in Rose Garden,
Indianopolis. The arrest was made by policemen wearing civilian clothes. Kalia was informed that
he is being booked for criminal defamation owing to the objectionable and defamatory tweet

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against Swami Nath. However, on 15th June 2019, it was reported by the Superintendent of Police,
that Kalia died in custody due to a massive heart attack.

The suspicious circumstances of Kishan Kalia’s death, along with reports indicating many
arbitrary arrests of journalists and reporters in the past one year, triggered great interest within
their professional community. The matter was also of great public appeal as Kalia was a popular
writer. Under these circumstances, Indikan Society of Journalists and Authors (ISJA) decided to
file a writ petition before the Honourable Supreme Court of Indika challenging the law that
criminalizes defamation and allowing such arrests. They noted that it not only curbs freedom of
press but weakens physical safety and integrity of individuals while carrying out their profession.

Under these circumstances and learning about the petition put forth by ISJA, Mr. Elvis D’Souza,
a Member of Parliament of the House of People, delivered a fiery speech in the Parliament. Mr.
Elvis D’Souza belongs to the biggest opposition party, Janata Mangal Party (JMP) of Indika. Mr.
Elvis D’Souza is an erudite lawyer who has spent 25 years in the United States of Triumpia. He
taught at Yarvard Law School for 10 years. Infused by a sense of public service he came back to
Indika recently and joined the JMP. He has always been a vociferous critic of the present DBP
Government, and his posts and comments are viral (popular) on social media platforms. The suave
and eloquent Mr. Elvis D’Souza has a tremendous popularity amongst the urban young population
of Indika while a section of people thinks he is too idealistic and elitist.
Following D’Souza’s speech on 1st July, 2019, there was a huge furor in the House of People.
Mr. D’Souza talked about the rising hate crimes and a blatant disregard for human rights in the
country. Mr. Elvis D’Souza specifically spoke about the suspicious death of Mr. Kishan Kalia in
police custody. He questioned the intentions of the DBP in suppressing dissent and curtailing free
speech that forms the basic rubric of democracy.
Mr. Elvis D’Souza, however, also said the Government is controlling the mass media. He
criticised TV channels spending the majority of airtime broadcasting propaganda for DBP. He
said” It is to my utter dismay, the Government is exhibiting Neo-Nazi behaviour and it pains me
to witness journos and media personnel, who have forgotten their ethical duties towards the
common people, turning a blind eye to such deplorable actions of this Government”. The 10
minutes’ speech became an instant sensation among the masses, trending on social media and
gaining much appreciation.

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On 1st July at 9 P.M., Mr. Akraman Shah, Editor-in-Chief of Our Time News Channel, launched
a tirade against Mr. Elvis D’Souza and made some severe accusations against the latter. The 9’o
clock news hosted by Mr. Shah is quite popular because of the dynamic and rather outspoken
nature of Mr. Akraman Shah. Although a prominent face in the media world, Mr. Akraman Shah
is often alleged of being a DBP mouthpiece. While commenting on Mr. D’Souza’s speech, Mr.
Shah said, “These pseudo-intellectuals have no sense of nationality. They, sitting on their high
horses, have no idea what is going on in this country. Reading out a plagiarized speech doesn’t
make you a hero, Mr. Elvis D’Souza! It just shows how low you can stoop to desecrate your own
country and its Government.” Mr. Akraman Shah stated that speech was a carbon copy of a book
called “Neo-Nazism in the 21st Century” by Prof. Indiana Jones, who was Mr. Elvis D’Souza ‘s
colleague at Yarvard Law School.
Mr. Elvis D’Souza gave a hard-hitting reply to this on Twitter, where he has over 5 million
followers. He tweeted that Prof. Indiana Jones was his research assistant at Yarvard and that
Akraman Shah just proved his point about the pathetic state of journalism his channel carries out.
Following this, Prof. Indiana Jones also made a public statement noting that Mr. D’Souza had not
plagiarized from his book and that Mr. D’Souza was merely giving voice to his writing in a just
manner.

Mr. Elvis D’Souza on 10th July, 2019 submitted a breach of privilege motion alleging that there
were false reports that his speech in the Parliament was plagiarized. He even went on to say that
Our Time News sells false and fabricated news and that people associated with Our Time News
are all “unprofessional” and “incompetent”.

On 15th July 2019, Our Time News filed a criminal complaint against Mr. Elvis D’Souza, at the
Indianopolis District Court. In the complaint they stated that Mr. D’Souza made baseless
allegations against their news channel. They also noted that the statements made in the Parliament
and on Twitter were highly defamatory to the reputation and goodwill of the Company.

However, the lower court and the High Court of Indianopolis decided in favor of
Mr. D’ Souza noting that his statements were protected by Parliamentary Privilege and that Our
Time News, as a corporate entity, cannot initiate a criminal complaint on defamation. Challenging
this, Our Time News decided to approach the Supreme Court of Indika.

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STATEMENT OF ISSUES

I. WHETHER THE SPECIAL LEAVE PETITION FILED BY OUR TIMES NEWS

BEFORE SUPREME COURT IS MAINTAINABLE?
II. WHETHER THE STATEMENTS MADE BY THE RESPONDANT ACCOUNTS
TO DEFAMATION?
III. WHETHER THE DEFAMATION MADE IS CONSTITUATIONAL OR
UNCONSTITUTIONAL?

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SUMMARY OF ISSUES

I. WHETHER THE SPECIAL LEAVE PETITION FILED BY OUR TIMES NEWS

BEFORE SUPREME COURT IS MAINTAINABLE?

The facts of the present case don’t have enough causes to allow the appeal of the special leave
petition filed by the petitioner. The special leave petition has the extraordinary powers which has
to be used in the exceptional situations where the injustice occurred pushes the conscience of the
court. Therefore, the case can’t rise up to that level. There has been no injustice that has been
caused to the petitioner and both the lower court and higher court have examined the claims of the
petitioner and they due the injustice. The special leave can only be granted o when an unsustainable
justice has been done but according to the facts of the case there been no unsustainable justice
done for the case to be maintainable. In the lower courts if all the factors have been taken into
consideration as in this matter the supreme court has a practice of non-interference in the decisions
of the lower courts. The supreme court may reject the petition even when it is accepted if the
grounds are infirm. hence the Hon’ble supreme court must reject the present petition

II. WHETHER THE STATEMENTS MADE BY THE RESPONDANT ACCOUNTS

TO DEFAMATION?

the statements made by Mr. Elvis d Souza were in the parliament, he was only exercising his
powers under the article 105 of the Indian constitution. And the statement made by him had to
specification on who he was talking about. And the statements made by him was for the public
good. And the tweet which he made on our times new was just his opinion which he claimed.
Under art 21, which gives freedom of speech. The speech given by him in the parliament was
keeping the death of Mr. kishan kalias in sight. His speech was on the blatant disregard for human
rights. And he was questing the curtailing free speech that forms the basic rubric of democracy.

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And he also told about tv channels spreading the majority of airtime broadcasting propaganda for
the DBP. Which gives the DBP powers to take away the free speech right and no one will question
him.
III. WHETHER OR NOT THE STATEMETS MADE IS CONSTITUTIONAL OR
UNCONTITUTIONAL?
Sections 499-500 IPC do not specify a “reasonable restriction” on speech. even truth is not a
defense. Even if a person has spoken the truth, he can be prosecuted for defamation. Under the
first exception to section 499, the truth will only be a defense if the statement was made for the
public good, which is a question of fact to be assessed by the court. People fear from making
statements regarding politicians or political events even if they know the truth because they run
the risk of a court not finding the statement to be for the public good.
a person can be prosecuted even for a statement about the dead. While Article 19(2) permits
confining speech in the interests of protecting the private interest in a reputation, confining speech
to protect the reputation of the deceased is more and boundless.
even an ironical statement can amount to defamation. Section 499 states which applies to “any
imputation concerning any person,” a criminal suit can be filed even for political speech – which
is the most protected speech in a democracy.

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ADVANCE ARGUMENTS

I. THAT THE SPECIAL LEAVE PETITION FILED BY OUR TIMES NEWS

BEFORE SUPREME COURT IS NOT MAINTAINABLE
the article 136 says,
Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court
may, in its discretion, grant special leave to appeal from any
judgment, decree, determination, sentence or order in any cause or
matter passed or made by any court or tribunal in the territory of
India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination,
sentence or order passed or made by any court or tribunal constituted
by or under any law relating to the Armed Forces

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The special leave petition is only used when the lower courts have passed a judgment which does
injustice. The extraordinary powers of the special leave are used when there is unsubstitional
justice is done.
In the facts of the above mentioned case there has been no unconstitutional justice has been done.
Since Mr. Elvis D’Souza was a Member of Parliament of the House of People, he was only
exercising his powers under this article which allowed him to practice his freedom of speech in
the parliament. The statement made by Mr. Elvis d Souza was made for public good and he spoke
truth. And the tweet made by him was just his opinion. Which is valid under art. 21, which says
freedom of speech.
The sec.499 has no reasonable restriction. So, even if a person is talking the truth he will be
prosecuted. Cause of which the public fears to make any statement against any political speech or
political party even when it is truth cause they feel the court may not see it as public good.
section 499 applies to “any imputation concerning any person,” hence a criminal suit can be filed
against a political speech – but it is one of the most protected speech by the government
a person can be prosecuted even for a statement about a dead. But the art 19(2) permits restricting
speech in the interests of protecting the private interest in a reputation, restricting speech to protect
the reputation of the deceased is excessive and over-broad.
the sec 499 is unconstitutional and the responds cannot appeal on a law which is unconstitutional

II. THE STATEMENTS MADE BY THE RESPONDANT DOES NOT ACCOUNT TO

DEFAMATION

The statements made by Mr. Elvis D’Souza in the parliament was in accordance with Art. 105
which states that

Powers, privileges, etc. of the Houses of Parliament and of the

members and committees thereof

(1) Subject to the provisions of this constitution and the rules and
standing orders regulating the procedure of Parliament, there shall
be freedom of speech in Parliament
(2) No member of Parliament shall be liable to any proceedings in
any court in respect of anything said or any vote given by him in

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Parliament or any committee thereof, and no person shall be so

liable in respect of the publication by or under the authority of either
House of Parliament of any report, paper, votes or proceedings
(3) In other respects, the powers, privileges and immunities of each
House of Parliament, and of the members and the committees of
each House, shall be such as may from time to time be defined by
Parliament by law, and, until so defined shall be those of that House
and of its members and committees immediately before the coming
into force of Section 15 of the Constitution (Forty fourth
Amendment) Act 1978
(4) The provisions of clauses ( 1 ), ( 2 ) and ( 3 ) shall apply in
relation to persons who by virtue of this constitution have the right
to speak in, and otherwise to take part in the proceedings of, a House
of Parliament or any committee thereof as they apply in relation to
members of Parliament
Since Mr. Elvis D’Souza was a Member of Parliament of the House of People, he was only
exercising his powers under this article which allowed him to practice his freedom of speech in
the parliament.

The statement made by Mr. Elvis d Souza was made for public good and he spoke truth. In the
speech he spoke he talks about the blatant disregard for human rights in the country and questioned
the curtailing free speech that form the basic rubric of democracy. He also told that the media
giving the desh bhakt party majority who are depriving the human rights from the people.
Under S.499 exception 1 speaks
Imputation of truth which public good requires to be made or
published – It is not defamation to impute anything which is true
concerning any person, if it be for the public good that the
imputation should be made or published. Whether or not it is for the
public good is a question of fact.
There for according to the above mentioned exception the statements made are an exception

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P.V NARSIMHA RAO V.STATE 3 In this case it is stated that “The immunity would not be
available to give protection against liability for an act that precedes the making of the speech or
giving of vote by a Member in Parliament even though it may have a connection with the speech
made or the vote given by the Member if such an act gives rise to a liability which arise
independently and does not depend on the making of the speech or the giving of vote in Parliament
by the Member. Such an independent liability cannot be regarded as liability in respect of anything
said or vote given by the Member in Parliament. The liability for which immunity can be claimed
under Article 105(2) is the liability that has arisen as a consequence of the speech that has been
made or the vote that has been given in Parliament”. So it is clear that words spoken in the
parliament cannot be prosecuted
Tej Kiran Jain and others v. Sanjiva reddy and others 4states the word ‘anything ‘is of the widest
important and is equivalent to ‘everything’. The only limitation arises from the words ‘in
parliament’ which means during the sitting of parliament and in the course of the business of
parliament. So according to this anything spoken in the parliament is protected by parliamentary
privileges

III. THAT THE DEFAMATION MADE IS UNCONSTITUTIONAL

Sections 499-500 IPC do not specify a “reasonable restriction” on speech. even truth is
not a defence. Even if a person has spoken the truth, he can be prosecuted for
defamation. Under the first exception to section 499, the truth will only be a defence if
the statement was made for the public good, which is a question of fact to be assessed by
the court. People fear from making statements regarding politicians or political events
even if they know the truth because they run the risk of a court not finding the statement
to be for the public good.

a person can be prosecuted under section 499 even if he or she has not made any verbal
or written statement at all. A magistrate may present criminal process on the mere

3
CRL 187/98
4
1970 AIR 1573, 1971 SCR (1) 612

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allegation that the defendant planned with the person who actually made the allegedly
defamatory written statements.

a person can be prosecuted even for a statement about the dead. While Article 19(2)
permits confining speech in the interests of protecting the private interest in a reputation,
confining speech to protect the reputation of the deceased is more and boundless.

even an ironical statement can amount to defamation. Section 499 states which applies to
“any imputation concerning any person,” a criminal suit can be filed even for political
speech – which is the most protected speech in a democracy.

It is a tool that can be easily invoked and that enables allegedly defamed persons to drag
anyone to courts across the country.

Therefore, the defamation made

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Wherefore in the light of the facts stated, issues raised, authorities cited, and

arguments advanced, it is most humbly prayed before this Honourable Court that it

may be pleased to adjudge and declare:

1. That the present Special Leave Petition is dismissed; or

2. That the Leave granted is revoked; and
3. That Section 499 of IPC is constitutionally invalid;
4. That our times news pay compensation;

And/Or,
Pass any other order that it deems fit.

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