TEAM CODE: S32R31-PETITONER

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 PETITION

 ANNUAL RANKING MOOT 2019
MEMORIAL BEHALF THE PETITIONER

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 PETITION

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TABLE CONTENT

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

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

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

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

STATEMENT OF ISSUES…………………..…....………...........................……………......11

ARGUMENTS ADVANCED…....……………………………..........................……………12

ISSUE 1: WHETHER THE SPECIAL LEAVE PETITION IS MAINTABLE? ……………12

ISSUE 2: WHETHER OR NOT THE RESPONDANT CAN BE HELD

LIABLE FOR DEFAMATION?………………..……………………………………………..14

(A): THE respondent should be held liable for criminal defamation………………………….14

(B): a corporate entity can file suit of criminal defamation……………...…………………….15

ISSUE 3: WHETHER OR NOT THE DEFAMATION IS CONSTITUTIONAL OR

UNCONSTITUTIONAL………………………………………………………………………17

PRAYER……………………………………………………………………………………….19

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LIST OF ABBREVATIONS

S.NO. ABBREVATIONS FULL FORM

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. M/S. Rallis India Ltd., Mumbai., vs Mr.K.T. Vijay Kumar, Vijayawada1

2. priya parmaeshwaran pilla vs union of India and ors2
3. Subramanian swamy v. Union of India3

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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

1. 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.
2. 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.

3. 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.

4. 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
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.

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5. 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.

6. 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.
7. 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.

8. 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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9. 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.1 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.
10. 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.

11. 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”.

12. 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.

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13. However, the lower court and the High Court of Indianopolis decided in favour 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 OR NOT THE SPECIAL LEAVE PETITION FILED BY OUR

TIMES NEWS BEFORE SUPREME COURT IS MAINTAINABLE?
II. WHETHER OR NOT THE RESPONDANT CAN BE HELD LIABLE FOR
DEFAMATION?
III. WHETHER OR NOT THE DEFAMATION MADE IS UNCONSTITUTIONAL
OR CONSTITUTIONAL?

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SUMMARY OF ARGUMENTS

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

MAINTAINABLE

The special leave petition filed in present case arises a serious question, if a corporate entity can file
case on criminal defamation. This arises a question that if a citizen defames a corporate entity. In
the present case according to the facts mentioned above the petitioner has faced injustice and
according to the conduct of law, under law we have the liberty to peruse the remedies as per as law.
In The lower court and higher court there has been no justice done and no remedy has been given
in the favor of the petitioner. This is an exceptional case where unsubstantial justice has been. The
special leave has extraordinary powers which they can be used in exceptional circumstances where
injustice has occurred and it jolted the conscience of the court. This is one issue which should
conscience the court for justice. And the grounds on which the case has approached the supreme
court are firm enough to be accepted. Hence, Hon’ble supreme court must accept the present
petition.
II. THAT THE STATEMENTS AND TWEET MADE BY THE RESPONDANT ACCOUNTS
TO DEFAMATION?
According to the facts of the case the statement and tweet made by Mr. Elvis D’Souza clearly amount
to defamation according to the § 499 of the Indian penal code. §449 clearly explains the conditions
on which a statement can be considered as defamation. And the statement made by me. Elvis
D’Souza clearly spoils the reputation of our times news. And the tweet made by Mr. Elvis D’Souza
also fulfills the §499. the tweet was made in public where every person could see it and it clearly
damages the reputation of our times news.
Mr. Elvis D’Souza has also breached the clause (1) of the Indian constitution.

S. 500. Speak about the punishment for criminal defamation and the different ingredients that the
section requires. And the facts mentioned above clearly fulfill the ingredients of defamation. The
statements made by Mr. Elvis D’Souza were published imputing a concern person. And he had the

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intention of harming the reputation of our times news. And this tweet was made with the knowledge
of harming the reputation of Mr. akarma sham was the chief editor of our times news. And the
imputation is spoken and intended to read. The statements made by Mr. Elvis D’Souza clearly show
the intention of harming the reputation of our news times and the chief editor of our times news.
The reputation of our news channel has been harmed very badly and they will have to face many
issues because of the statements made by Mr. Elvis D’Souza. Therefore, it will be wise that the
respondent is likely to be held liable for defamation and imprison him.

Under S.499, it says defamation can be claimed when the imputation concerning a company or an
association or collection of persons is made. In the above given facts the statement made by Mr.
Elvis D’Souza is trying to defame our times news channel which is a company. But a question
arises if a corporate entity can file a suit for criminal defamation. A company or corporate entity is
usually considered as an artificial person and under the constitution is has the freedom of reputation.
And S.499, clearly tells us that a company can also file a case of criminal defamation. The
statements made by Mr. Elvis D’Souza clearly defames our times news channel. Therefore, the
corporate entities should be allowed to file a suit for criminal defamation

III. WHETHER THE DEFAMATION MADE IS UNCONSTITUTIONAL OR

CONSTITUTIONAL?
The reputation of one cannot be allowed to be criticize severely at the altar of the other’s right of
free speech. So there is no point in declaring that the it unconstitutional. There is a need to strike
balance between article 19 and article 21.
Unlike other rigid provisions of the IPC, Sections 499/500 have four explanations and 10 exceptions
which do both: they add content and context to the offence as also chisel away at it substantially.
They constitute significant untruthful to exclude shallow complaints.
Section 199(1) the CrPC secures the freedom of speech by placing the burden on the complainant to
pursue the criminal complaint without involving state machinery. This itself filters out many
shallow complainants who are not willing to bear the significant burdens – logistical, physical and
monetary – of pursuing the complaint.
A bare misuse or abuse of law, actual or potential, can never be a reason to render a provision
unconstitutional.

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ADVANCED ARGUMENTS

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

BEFORE SUPREME COURT IS MAINTAINABLE?

In the above facts of the case, they show no mischarges of facts and injustice done to our times
news. under article 21 there is a freedom to reputation and no fundamental rights could be
deprived for another law. The special leave petition filed in present case arises a serious question,
if a corporate entity can file case on criminal defamation. This arises a question that if a citizen
defames a corporate entity can be prosecuted? In the present case according to the facts mentioned
above the petitioner has faced injustice and according to the conduct of law, under law we have
the liberty to peruse the remedies as per as law. In The lower court and higher court there has
been no justice done and no remedy has been given in the favor of the petitioner. This is an
exceptional case where unsubstantial justice has been. The special leave has extraordinary powers
which they can be used in exceptional circumstances where injustice has occurred and it jolted
the conscience of the court. This is one issue which should conscience the court for justice. And
the grounds on which the case has approached the supreme court are firm enough to be accepted.
Hence, Hon’ble supreme court must accept the present petition

II. THAT THE STATEMENTS MADE BY THE RESPONDENT AMOUNTED TO

DEFAMATION
The statements made by the respondent amounted to defamation
under the S.499 Whoever, by words either spoken or intended to be
read, or by signs or by visible representations, 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, except in the cases hereinafter
expected, to defame that person.
Explanation 2: it may amount to defamation to make an imputation
concerning a company or an association or collection of person as
such.
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Which says words either spoken or intended to read, makes or publishes any imputation against anyone
intending to harm that person reputation is to be considered as defamation

The statements made by D’Souza states that the journos and media personnel have forgotten the ethical
duties towards the common people and ignoring the unacceptable actions of the government. And
he gave a speech on how trending social media and mass media are gaining appreciation.
D’Souza made a statement that our times news sells false and fabricated news and people associated
with our times news are all ‘unprofessional’ and ‘incompetent’.
This statement is made with the knowledge to harm the reputation of the channel and defame them the
whole public. Therefore, it would be wise to consider the statements and tweet made by D’Souza
as defamation.

M/S. Rallis India Ltd., Mumbai., vs Mr.K.T. Vijay Kumar, Vijayawada2 it was stated that
publication has to be made by the offender to the third person other than the person intended to be
defamed.
According to facts of the present case Elvis D’Souza had 5 million followers so the statement made
by him id going to affect the reputation of our times new.

A. THE RESPONDANT CAN BE HELD LIABLE FOR DEFAMATION

S.500. which is on punishment for defamation, reads: “Whoever defames

another shall be punished with simple imprisonment for a term
which may extend to two years, or with fine, or with both.”
Ingredients: the section requires three essentials: -
1. Making or publishing any imputation concerning any person
2. Such imputation must have been made by
a) Words, either spoken or intended to be read; or
b) Signs; or

2
Criminal revision case nos.1780 and 1781 Crl.R.C.no.1780 of 2017

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c) Visible representations.
3. Such imputation must have been made with the intention of harming
or with knowledge or reason to believe that it will harm the
reputation of the person concerning whom it is made.

The statement made by Mr. D’Souza fulfill all the ingredients that s.500 requires

The statement made by him was published concerning a company and it was intended to read
and the statement was done to harm the reputation of our times news. D’Souza said that our
times news sells false and unfacbricated news, which was purely made to harm the reputation of
our times news

Therefore, it would be wise to held the respondent liable for defamation.

B. A CORPORATE ENTITY CAN FILE A SUIT FOR CRIMINAL DEFAMATION UNDER

S.499

Under S.499 ‘Explanation 2:

it may amount to defamation to make an imputation concerning a
company or an association or collection of person as such

“A commercial company,” as Lord Hoffman wrote in his opinion in a 2006 decision by the
House of Lords, Jamel v Wall Street Journal3, “has no soul and its reputation is no more than
a commercial asset, something attached to its trading name which brings in customers.”
Therefore, to argue that companies in India have a right to reputation as an extension of Article
21 of the constitution, which, in guaranteeing a right to life and personal liberty, protects, at
best, certain basic dignitary interests, would be plainly incongruous.

So a corporate entity can file a suit of criminal defamation

3
An investigation report

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One of recent case of priya parmaeshwaran pilla vs union of India and ors4
In this case priya pilla is a Greenpeace activist by Mahan coal with in which she wrote blog by her
concern stating the effect of coal allocation reserves on the forest life and environment. this blog
of her made her face the complex situation is a corporation can file a suit of criminal defamation.
The case is in the sub jucide on the limitations before the honorable supreme court
But far of now, under s.499 a corporate entity has the flied to file a case if their dignity and
reputation has been defamed.

Section 499 expressly states that making an imputation concerning a company or an association or
collection of persons may amount to defamation. Therefore, public institutions too can file suit for
defamation. However, the law of defamation cannot be intended to protect the private reputation
of individuals or public institutions at the cost of inhibiting political speech about the actions of
public officials or public institutions.

III. THAT THE DEFAMATION MADE IS CONSTITUTIONAL

The reputation of one cannot be allowed to be criticize severely at the altar of the other’s right of
free speech. So there is no point in declaring that the it unconstitutional. There is a need to strike
balance between article 19 and article 21.

Unlike other rigid provisions of the IPC, Sections 499/500 have four explanations and 10
exceptions which do both: they add content and context to the offence as also chisel away at it
substantially. They constitute significant untruthful to exclude shallow complaints.

Section 199(1) the CrPC secures the freedom of speech by placing the burden on the complainant
to pursue the criminal complaint without involving state machinery. This itself filters out many

4
WP© 774/2015

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shallow complainants who are not willing to bear the significant burdens – logistical, physical and
monetary – of pursuing the complaint.

A bare misuse or abuse of law, actual or potential, can never be a reason to render a provision
unconstitutional.

Subramanian swamy v. Union of India5

In this case Subramanian swamy made allegation against Ms. Jayalalithaa for corruption. And in
the response of these allegation Tamilnadu gov. filed a case of criminal defamation against him.
Therefore, dr. swamy and other politicians challenged the unconstitutionality of the S.499 and
S.500 of IPC. This case was given to a two judge bench which consisted Deepak Mishra and P.C.
pant to decide the case

this case it is stated that, section 499, is not an excessive restriction under Art.19(2). It told that
society is a collection of individuals, and what affects individuals will also affect the society as a
whole. Hence, it is valid to treat defamation as a public wrong. It also told that criminal defamation
is not a disproportionate restriction on free speech, because protection of reputation is a
fundamental right as well as a human right. The court reaffirmed the right to reputation as a part
of the right to life under Art21. Using the principle of “balancing of fundamental rights “, the court
held that the right to freedom and speech and expression cannot be “allowed so much room that
even reputation of an individual which is a constituent of Art 21 would have no entry in that area”.

5
WP©184/2014

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PRAYER

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 accepted; and
2. That Mr. Elvis D’Souza should pay a compensation of rs.30000/-; and
3. That Mr. Elvis D’Souza should be given imprisonment of 2 years; and
4. That the tweet made by Mr. Elvis D’Souza should be taken down;

And/Or,

Pass any other order that it deems fit.

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