TC - 39-Memorial For Petitioner

“TC-39P”
IN THE HON’BLE COURT OF DEMOCRATIC REPUBLIC OF IDEE
SLP (Crl.) No.__/2020
Mr. MOORE ……PETITIONERS 1

V.
DEMOCRATIC REPUBLIC OF IDEE ……RESPONDENT
W.P.__/2020
Mr. READER & PAIT ……PETITIONERS 2

SUSAN ……PETITIONERS 3
Ms. LACID & Ms. BOND ……PETITIONERS 4
V.
DEMOCRATIC REPUBLIC OF IDEE ……RESPONDENT
ABOVEMENTIONED PETITIONES HAVE BEEN CLUBBED ON DIRECTIVE OF

THE HON’BLE SC OF DEMOCRATIC REPUBLIC OF IDEE
MEMORIAL ON BEHALF OF THE PETITIONER

MAIMS 2nd National Moot Court Competition 2021
Table of Contents
S.No. PARTICULATRS PAGE NO.

1. LIST OF ABBREVIATIONS 3
2. INDEX OF AUTHORITIES 4-6
3. STATEMENT OF JURISDICTION 7
4. STATEMENT OF FACTS 8
5. ISSUES RAISED 9
6. SUMMARY OF ARGUMENTS 10
7. ARGUMENTS ADVANCED 11-21
I. Mr. Moore is Entitled to be Released
on Bail
II. Sex workers have an inherent right of
trade and occupation
III. There is no
enforcement/implementation
mechanism against child porn content
IV. Ms Laid and Ms Bond have an inherent
right of privacy against media trials
under the constitution
8. PRAYER 22
2| M e m o r i a l f o r P e t i t i o n e r s
List of Abbreviations
S.No. ABBREVIATION FULL FORM

1. & And
2. AIR All India Reporter
3. Anr. Another
4. Art. Article
5. B/w Between
6. CBI Central Bureau of Investigation
7. CrPc Code of Criminal Procedure
8. CrPc Crimnal Procedure Code
9. FUI Federal Unit of Investigation
10. H.P. Himachal Pradesh
11. HC High Court
12. Hon’ble Honourable
13. IPC IDEE Penal Code
14. J Justice
15. M.P Madhya Pradesh
16. Ors. Others
17. P.No. Page Number
18. PCI Press Council of India
19. POCSO Protection of Child from Sexual Offence
20. SC Supreme Court
21. SCC Supreme Court Cases
22. SCR Supreme Court Reporter
23. SLP Special Leave Petition
24. U.P. Uttar Pradesh
25. u/s Under Section
26. v. Versus
27. W.B. West Bengal
28. W.P. Writ Petition
Index of Authorities
Commentaries Referred
Books on Constitutional Law
 M.P. Jain & S.N. Jain, PRINCIPLES OF ADMINISTRATIVE LAW (6 th edition Lexis
Nexis Butterworths Wadhwa, Nagpur 2007)
 Durga Das Basu, Constitutional Law of India (8 th edition reprint Lexis Nexis
Butterworths Wadhwa, Nagpur 2011)
 Dr. J.N. Pnadey, Constitutional Law of India (57th edition, Central Law Agency,2020)
Books on Indian Penal Code
 PSA Pillai, Criminal Law (14th edition, Lexis Nexis, Gurgaon 2021)
 S.N. Mishra, Indian Penal Code (22nd edition, Central Law Publications, Pryagraj, 2021)
Books on Code of Criminal Procedure
 R.V. Kelkar, Criminal Procedure (7th edition, EBC Publications, Delhi, 2021)
 Ratan Lal & Dhiraj Lal, The Code of Criminal Procedure (23 rd edition, Lexis Nexis,
Gurgaon 2021)
Websites Referred
 www.scconline.com
 www.prs.india.org
 www.leaflet.in
 www.thehindu.com
 www.foundationnews.com
 www.thomsonreturns
 www.casemine.com
 www.lawfinder.com
Dictionaries Referred
 Black Law’s Dictionary (8th edition, 2004)
 Webster’s New World Dictionary (5th edition, 2016)
Statutes Referred
 IDEE Penal Code, 1860
 The Immoral Traffic (Prevention) Act, 1956
 Information Technology Act, 2000
 Prevention of Money Laundering Act, 2002
 Code of Criminal Procedure, 1973
 The Constitution of IDEE, 1950
Table of Cases
S.No. Case Title Citations
1. Babu Singh v. State of U.P. AIR 1978 SC 527
2. Budhadev Karmaskar v. IA 80140/2020, in Criminal

State of West Bengal Appeal
3. Garima Gupta v State BAIL APPLN. No.712/2019
& CRLM.A. 34721/2019
4. Gudikanti Narasimhulu v. AIR 1978 SC 430
Public Prosecutor
5. Gurucharan Singh v State AIR 1978 SC 179; 1978

SCC (Cri) 41
6. Hitesh Gandhi v Central 2020 SCC Online HP 1416
Bureau of Investigation
7. Jayendra Saraswati AIR 2005 SC 716
Swamigal v. State of Tamil
Nadu
8. Justice K.S. Puttaswamy v. AIR 2017 SC 4161
U.O. I
9. Kajal Mukesh Singh v. State 2020 SCC OnLine Bom 954
of Maharashtra
10. Kalyan Chandra Sarkar v (2004) 7 SCC 528
Rajesh Ranjan
11. Kharak singh v state of U.P. (1964) 1 SCR 332: AIR
1963 SC 1295
12. Khemlo Sakhram Sawant v 2002 (1) BOM. C.R. 689
State of Maharastra
13. Manu Sharma v. State (NCT AIR 2010 SC 2352
of Delhi)
14. Moti Ram v. State of M.P. (1978)4 SCC 47
15. P. Chidambaram v (2019) SCC Online SC 1549
Directorate of Enforcement
16. Parmananda Katara v. Union AIR 1989 SC 2039
of India
17. R. Rajagopal v. state of AIR 2010 SC 2352
T. N.
18. R.K. Anand v. Delhi High (2009) 8 SCC 106: (2010) 2
Court SCC (Cri) 563: 2009 SCC
Online
19. Rashik Lal v Kishore (2009) SCC 446
20. Sanjay Chandra v Central 2012 (1) SCC (Cri) 26
Bureau of Investigation
21. Sanjay Narayan, Editor-in- JT 2011 (10) SC 74: (2011)
Chief Hindustan v. Hon. 9 SCALE 532
High Court of Allahabad
22. Sri Najundaiah v. Union of CRL.P.NO.45/2021 date 28
India July 2021

23. State of U.P. vs Amarmani 2005 (8) SCC 21
Tripathi
24. State of Uttar Pradesh v Raj 1975 AIR 865, 1975 SCR
Narain (3) 333.
25. State vs Balachand @ 1977 AIR 2447 SCR (1) 535

Baliay
26. Sushila Aggarwal v Sate of (2020) 5 SCC 1
NCT of Delhi
27. Vincent Parikurlangara v (1987) 2 SCC 165
Union of India
Statement of Jurisdiction
Petitioner approaches the Hon’ble Supreme Court of India under Article 1361 of the
Constitution of India which gives discretionary power to the Supreme Court of India to hear
any matter on appeal against the order passed by any court or tribunal in the territory of India
where justice & equity so demands.
The petitioners approach the Honorable Supreme Court of Amphissa by filing a w.t. under
Article 322 of the Constitution of Amphissa for issuance of writ in the nature of Certiorari or
any other appropriate writ.
1
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
2
Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred
by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by
law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution
Statement of Facts
Mr. Moore is a well-known businessman and Mr. Reader is a famous journalist. Mr Moore
subsequently introduced an app called “Rose”. This app started to become a rage due to the
ongoing COVID restrictions.
On 28th September 2020, Mr Reader took out a full-page article in his national daily titled
“Rose App certainly has a lot of thorns in it”. This created a huge furore. All media houses
went all guns out for the arrest of Mr Moore. Media Channels started to investigate the matter
and created a trial of its own to ascertain responsibility.
On 19th November 2020, a special investigation team was constituted under the Federal Unit
of Investigation (FUI), the leading Central agency for investigating grave sex crimes.
On 9th December 2020, Mr Moore was arrested by FUI in the FIR No. 96/2020, lodged U/s
293, 294, 317, 339, 340, 341, 342, 354, 361, 362, 363, 365, 366, 366B, 367, 368, 370, 371,
372, 373, 375, 376, 506, 509 and 511 of IDEE Penal Code, Section 67 of The Information
Technology Act, 2000 and Section 7,8,10,10A,18,20 of the Immoral Traffic (Prevention) Act,
1956 and for a case under S.4 of Prevention of Money Laundering Act, 2002. Mr Moore’s
lawyer applied for bail on 11th December 2020 to the Sessions Court in Thor.
Mr Moore being an important businessman and having sufficient means, was denied bail as
he was an economic offender. It was also stated that he was a former Member of Parliament.
It was believed that he would run from the country at the first instance to a state abroad. He
repetitively applied for Bail in the Sessions Court as well as the High Court of Thor. He was
denied bail in all attempts. Considering this, he moved to the Supreme Court of IDEE,
wherein he stated that due to his ill health and age, the Court should grant him relaxations
from arrest. The Barrister General filed a reply affidavit stating that the Court previously had
not keenly taken up the “triple test” for grant/refusal of bail in Economic offences.
Mr Reader and NGO named PAIT filed a petition before SC to recognize the right of Sex
workers, another NGO petitioned before the court, namely Susan, who stated that there are no
laws governing such content and its regulation over digital media and apps and two actresses,
namely Ms Lacid and Ms Bond moved to the Court seeking protection as the media trial
impeached their privacy and caused havoc in their personal and professional life.
Issues Raised
a) Whether Mr Moore is entitled to bail in criminal case registered vide FIR No. 96/2020?
b) Whether Sex workers have an inherent right of trade and occupation?
c) Whether there exists any enforcement/implementation mechanism against child porn

content?
d) Whether Ms Laid and Ms Bond have an inherent right of privacy against media trials?
Summary of Arguments
I. Mr. Moore is Entitled to be Released on Bail
It is humbly submitted before the Hon’ble Court that High Court has erroneously rejected the
bail application and has not appreciated the rule laid down by the apex court that ‘the basic
rule may perhaps be tersely put as bail not jail.
II. Sex workers have an inherent right of trade and occupation
Freedom of profession, occupation, trade or business are fundamental rights of the citizens of
IDEE. Sex workers being citizens of IDEE should be also be granted right to freedom of
profession, occupation, trade or business as their fundamental right.
III. There is no enforcement/implementation mechanism against child porn content

It is humbly submitted before the hon'ble court that there is no enforcement mechanism had
been laid down against child porn content and only the substantive law and mechanism need
to be laid down in the for desired outcome.
IV. Ms Laid and Ms Bond have an inherent right of privacy against media trials under
the constitution
It is humbly submitted before the hon'ble court that the right to privacy is a fundamental right
inherent in article 21 of the constitution and in the instant matter the same has been infringed
by broadcasting the false and propagandist news. Therefore, petitioners asked for the take
down of such news as they are being targeted and subjected to public scrutiny due to the
same reason
Arguments Advanced
Most Respectfully Showth:-
I. Mr. Moore is Entitled to be Released on Bail
1. It is humbly submitted before the Hon’ble Court that High Court has erroneously
rejected the bail application and has not appreciated the rule laid down by the apex
court that ‘the basic rule may perhaps be tersely put as bail not jail.’ 3 Also the apex
court and different high courts has demanded that judges to follow the same principle
in different cases, the reference for this can be drawn from the case of Moti Ram v.
State of M.P.4 and Khemlo Sakhram Sawant v State of Maharastra5. Therefore Mr.
Moore is ought to be released on bail.
Bail should be granted under section 439 of the criminal procedure code
2. Justice V.R. Krishna Iyer in the case of Gudikanti Narasimhulu v. Public Prosecutor6
has observed that
“The issue of bail is one of liberty, justice, public safety and burden of the public
treasury, all of which insist that a developed jurisprudence of bail is integral to a
socially sensitized judicial process”
3. In every bailable offence, bail is an absolute and indefeasible right. 7 While in non-
bailable offence bail is not a matter of right, but only a privilege to be granted at the
discretion of the court.8 Section 439 of the criminal procedure code grants the HC
wide discretionary powers in the matter regarding bail. 9 Few factors have been laid
down by the apex court The possibility of repetition of crime, gravity of offence,
probability of escaping from trail or tempering evidence, danger of, course of, justice
being thwarted by the grant of bail or other relevant grounds which in view of so
many variable factors, cannot be exhaustively set out10.
Gravity of Offence Cannot be a Ground for the Denial of Bail
3
State vs Balachand @ Baliay, 1977 AIR 2447 SCR (1) 535.
4
(1978)4 SCC 47.
5
2002 (1) BOM. C.R. 689.
6
AIR 1978 SC 430.
7
Rashik Lal v Kishore (2009) SCC 446.
8
Sushila Aggarwal v Sate of NCT of Delhi, (2020) 5 SCC 1.
9
Kelkar R.V., Criminal Procedure, 7th Edition.
10
Gurucharan Singh v State, AIR 1978 SC 179; 1978 SCC (Cri) 41.
4. It was held by this court in the case of Sanjay Chandra v Central Bureau of
Investigation11 that gravity of offence cannot be a decisive ground to deny bail.
Support to this can also be drawn from P. Chidambaram v. Directorate of
Enforcement12 and Hitesh Gandhi v Central Bureau of Investigation 13. Bail cannot
only be denied on the base of graveness of offence if other factors favour the
petitioner.14 The rationale behind the jurisprudence is to secure appearance of the
accused in the trial and therefore is neither punitive or preventive.15
5. In the present case Mr. Moore is charged u/s 293, 294, 317, 339, 340, 341, 342, 354,
361, 362, 363, 365, 366, 366B, 367, 368, 370, 371, 372, 373, 375, 376, 506, 509 &
511 of the IPC, u/s 67 The Information Technology Act 2000, u/s 7,8,10,10A,18,20
The Immoral Traffic (Prevention) Act 1956 and Prevention of Money Laundering Act
200216 but the seriousness of the charge is not the factor or test while considering the
bail application. The support for this statement can be drawn from the Sanjay Chandra
v Central Bureau of Investigation17. It was held by the apex court that
“In our view, seriousness of the charge is, no doubt, one of the relevant considerations
while considering bail applications but that is not the only test or the factor. If the
former is the only test, we would not be balancing the constitutional rights but rather
“recalibrating the scales of justice”.
6. Also, in the present case the investigation was affected by the media completely and
charges were framed accordingly. As Mr. Reader himself constituted an investigative
unit without informing the concern authorities and published a full-page article based
on the report of his investigative unit which crated a huge furore.18
7. In the present case the HC has denied the bail of Mr. Moore on the ground that he is
an economic offender. While in Sanjay Chandra v Central Bureau of Investigation 19
accused were charged of economic offences of huge magnitude which jeopardize the
economy of the country but the bail was granted to them. This court held that: -
11
2012 (1) SCC (Cri) 26
12
2019 SCC Online SC 1549
13
2020 SCC Online HP 1416
14
P. Chidambaram v Directorate of Enforcement, (2019) SCC Online SC 1549
15
Jayendra Saraswati Swamigal v. State of Tamil Nadu AIR 2005 SC 716
16
Moot Problem P.No.3 Para 10
17
(2012)1 SCC 40
18
Moot Problem P.No.: 2 Para 6,7
19
Ibid
“The courts owe more than verbal respect to the principle that punishment begins
after conviction, and that every man is deemed to be innocent until duly tried and duly
found guilty.”
Mr. Moore will not flee or abscond from the Trial
8. It is humbly submitted before this Hon’ble court that the object of the bail is to secure
the appearance of the accused person at his trial by reasonable amount of bail. 20 Also,
what is contemplated by bail is to “procure the release of a person from legal custody
by undertaking that he shall appear at the time and place designated and submit
himself to the jurisdiction and judgement of the court.” 21 Therefore one of the
governing factors while granting bail can be the accused would abscond from the trial
or not.22 While denying or granting the bail the appearance of the accused should be
given more preference than the seriousness of the charge. 23 If court is completely
satisfied that the accused won’t abscond, the court may grant bail to the accused. 24 In
the present case as the arguments submitted by the Barrister General that the court is
afraid of the fact that Mr. Moore has sufficient means and would run away at the first
instance to a state abroad.25 If the court is afraid of the fact that the petitioner will
abscond then we offer the court to seize the passport of the petitioner or any other
condition which the court may think deem fit.
Mr. Moore Cannot Tamper the Evidence
9. It is humbly submitted that one of the governing that the court might consider while
deciding the bail matter can be whether the accused can tamper the evidence if bail is
granted.26 As the preliminary investigation is done the FUI27 so there exist zero
possibility that Mr. Moore can tamper the evidence. Also, the interviews of the
several workers and employees have been published28 this also eliminates the
possibilities of tampering the witness or creating threat for them.
20
Sanjay Chandra vs Central Bureau of investigation 2012 (1) SCC 40
21
Law Lexicon 4th Edition; Vaman Narain Ghiya v State of Rajasthan, (2009) I SCC (Cri) 745; 2009 CriLJ1311
22
Parmod Chandra v State, 1969 Cri LJ 850
23
Kishan Singh v State of Punjab, 1960 Cri LJ 850
24
Nagangomlboton Singh v State, 1969 Cri LJ 128
25
Moot Problem P.No.: 3 Para 11
26
State of U.P. vs Amarmani Tripathi 2005 (8) SCC 21; Kalyan Chandra Sarkar v Rajesh Ranjan (2004) 7 SCC
528
27
Moot Problem P.No: 2 Para 9
28
Moot Problem P.No.: 2 Para 8
10. Hence, “the triple test” doctrine, an accused can be granted bail if it can be established
that he or she is not a flight risk, will not influence witnesses and will not tamper with
the evidence29. Mr. Moore fulfills the whole criteria. Therefore, he should be granted
bail.
Denial of Mr. Moore’s Bail will Amount to the Violation of Article 21
11. It is humbly submitted that the HC has mistakenly ignored the Right to health and
personal liberty guaranteed by the Constitution of IDEE as a fundamental right
configured in Article 21.
12. According to the Article 21 of the Constitution “No person shall be deprived of his
life or personal liberty except according to procedure established by law”. of IDEE.
Also, the Article 21 of the Constitution of Idee Guarantees its citizens Right to Health
as a fundamental right.30 The support for this can also be drawn from Vincent
Parikurlangara v Union of India31. Article 21 casts obligation on the State to preserve
life.32 But in Mr. Moore’s case HC is denying his right to health by denying his bail
repetitively.
13. When bail is refused it is a restriction on the personal liberty of an individual granted
by Article 21 of the Constitution of IDEE therefore its refusal should be rare. 33
Reference for this can also be drawn from Garima Gupta v State.34 It was held by the
apex court in the case of Babu Singh v. State of U.P.,35 “The refusal of bail without
any reasonable cause will amount to deprivation of personal liberty. Personal liberty
of an accused or convict is fundamental and can be taken away only in accordance
with procedure established by law. So, deprivation of personal liberty must be
founded on the most serious consideration relevant to the welfare objectives of the
society specified in Constitution.”
14. Also, the section 4379(1) (ii) says the accused should be released on bail if the
accused is below 16 years of age or women or sick or infirm. 36 In the present scenario
the grounds pleaded by Mr. Moore are his illness and his age.37
29
Supra Note 12
30
Pandey J.N., Constitutional Law of India, 57th edition
31
(1987) 2 SCC 165
32
Parmananda Katara v. Union of India AIR 1989 SC 2039
33
Supra note 1
34
BAIL APPLN. No.712/2019 & CRLM.A. 34721/2019
35
AIR 1978 SC 527
36
Kelkar R.V., Criminal Procedure, 7th Edition.
37
Moot Problem P.No.:3 Para 11
15. Also, an Indian Court in the case the Sri Najundaiah v. Union of India 38 has granted
bail to an economic offender on the medical grounds by relying on the judgement of
this Hon’ble Court in the case Sanjay Chandra v. Central Bureau of Investigation39
II. Sex workers have an inherent right of trade and occupation
16. It is humbly submitted before this Hon’ble Court that the Constitution of IDEE
guarantees the following six fundamental freedoms to the citizens of India40:-
• Freedom of Speech and Expression
• Freedom of Assembly
• Freedom to form Associations or Unions or Co-operative Societies
• Freedom of Movement
• Freedom to Reside and Settle
• Freedom of Profession, Occupation, Trade or Business
17. Therefore, freedom of profession, occupation, trade or business are fundamental
rights of the citizens of IDEE. Sex workers being citizens of IDEE should be also be
granted right to freedom of profession, occupation, trade or business as their
fundamental right. Sex work should not be confused with trafficking. Sex work is
different from trafficking and it is a form of self-employment that is stigmatized. 41The
Justice Verma Commission had also acknowledged that there is a distinction between
women who are trafficked for commercial sexual exploitation and adult, consenting
women who are in sex work of their own volition.42
Prostitution is not a Criminal Offence
18. It is humbly submitted that before the Hon’ble Court that Justice Prthiviraj K. Chavan
has observed that
“Prostitution is not a criminal offence. Women have right to choose their vocation as
a fundamental right guaranteed to them by the constitution. Purpose and Object of the
Act is not to abolish the prostitution or the prostitute. There is no provision under the
law which makes prostitution per se a criminal offence or punishes a person because
he indulges in prostitution.”43
38
CRL.P.NO.45/2021 date 28 July 2021
39
Supra Note 15
40
Article 19 of the Constitution of India
41
Include Sex Work in Informal Sector, 10 March 2021
42
Justice Verma Committee Report
43
Kajal Mukesh Singh v. State of Maharashtra, 2020 SCC OnLine Bom 954
19. In the above stated case. The court did not confuse morality with livelihood. it
distinguished between trafficking and sex work.44
Rights of Sex Workers Must be Recognized
20. Everybody has the right, the choice to do what they want to, but then there is a big
gap between what the high court has said and the societal mindset about women. The
society will not recognise women doing sex work as a right. Women are not allowed
to think for themselves.45
21. Owing to the non-recognition of sex work as “legitimate work” sex workers have
mostly been kept at arm’s length from the government’s relief program. 46 According
to a recommendation submitted by National Network for Sex Workers along with
eighteen other organizations that according to a conservative estimate there 1.2
million female sex workers in India. 47 Their right cannot be ignored because the
society considers their work as immoral.
22. Adult men, women and transgender persons in sex work have the right to earn
through providing sexual services; live with dignity; and remain free from violence,
exploitation, stigma and discrimination.48
23. In the case of Budhadev Karmaskar v. State of West Bengal49 the constitutional
benach has observed that “We are of the view that prostitutes also have a right to live
with dignity under Article 21 [right to life] of the Constitution since they are also
human beings and their problems also need to be addressed.”
24. Sex work per se was already legal, but ancillary activities such as brothels, pimping,
soliciting were illegal, what can be done is, formalize and regularize it by registering
workers and bringing them into the mainstream.50
25. Therefore, it humbly submitted before this Hon’ble court that all the sex workers have
the inherent right to trade and occupation and benefits and rights which the other
workers are getting should also be made available to the sex workers.
III. There is no enforcement/implementation mechanism against child porn content
44
Roli Shrivastva, Whose Body? Indian Court Says Sex Work is Women’s Choice
45
Supra Note 39
46
Thamizhachi Thangpandian, Recognising Sex Work as Work, 07 June 2021
47
Nishtha Gupta, Why Must we Recognize Sex as Work, 06 November 2020
48
Supra Note 44
49
IA 80140/2020, in Criminal Appeal
50
Supra Note 39
26. It is humbly submitted before the hon’ble court that the “child pornography” is
defined under Section 2(1) (da) of POCSO, 2012. Further, sec.13 of the Act prohibits
the use of child for pornographic purposes and makes offence punishable under
Section 14 of the Act & Sec.15 of the Act give punishment for the storage of
pornographic material involving child.
27. But there is no law which can regulate the content published on the site. In other
words, there is no law which will regulate the posting of such content on the digital
platform which mean a person can be held for creating such content but there is no
need to deny the publishing of such content at first hand
28. In Re. Prajwala Letter51, the SC observed that it would, of course, be in the interest of
all concerned if the Central Reporting Mechanism is set up.
29. For the accomplishment of this court has asked for the report from the ministry but
the process is really slow as it came up as an observation alone. Though Central and
State Governments are mandated to spread awareness under Section 43 of the POCSO
Act, 2012 about the provisions of the State, yet alone the same may not be sufficient
since the “Big Brother” watching us may not deter those who are determined to
indulge in such acts.
30. It is further stated that there is only substantiative law to regulate the child
pornography content but no mechanism is laid for the due enforcement of enacted
law. This is the reason behind the lack of reporting in such cases. Further, one need to
incorporate various acts in one issue in order to address the problem before the court
for the grant of justice.
31. It is suggested to the court to enact a separate law regarding the child pornography
and its publication, punishments and remedies for the same. There is a dire need for
the same as in today’s digital era not using the internet platform is not a viable option
to anyone.
32. It is pertinent to note that many times such content is flashed on various sites in the
form of advertisement even when it is nothing to do with the kind of research a person
is doing. Such content in these situations need to be take down. But the person who
even want to report can’t do so as there is no mechanism for the reporting of the same.
An authority needs to be established for the censoring of publication of such content.
51
Videos of Sexual Violence and Recommendations, 2018 SCC Online SC 389.
IV. Ms Laid and Ms Bond have an inherent right of privacy against media trials
under the constitution
33. It is humbly submitted before the honourable court that under Article 21, “Right to
life and personal liberty includes Right to privacy as an integral part guaranteed under
part III of the Constitution”, held in the case, Justice K.S. Puttaswamy v. U.O.I.52 It
is pertinent to note that it is a fundamental right and available to citizen as well as
non-citizens of the nation and the same is being violated of the petitioners in the
instant matter.
34. It is submitted that in the present case the right to privacy has to be understood in the
context of two fundamental rights: the right to freedom under Article 19 and the right
to life under Article 21 of the Constitution.
35. Article 19(1)(a), states that all the citizens shall have the right to freedom of speech
and expression.
36. It is pertinent to note that this right to express also include the right to receive
information as held in the case of State of Uttar Pradesh v Raj Narain,53 by the
Supreme Court that Article 19(1) (a), in addition, to guaranteeing freedom of speech
and expression, guarantees the right to receive information on matters concerning
public interest.
37. But it is to be noted that the right is not absolute in nature it is restricted by article
19(2) which states nothing in 19(1)(a) shall affect the operation of existing law, or
prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub-clause in the interests
of the sovereignty and integrity of India, the security of the state, friendly relations
with Foreign States, public order, decency or morality or in relation to contempt of
court, defamation or incitement to an offence.
38. Therefore, it is to be noted that right to freedom of speech and expression comes with
the duty to respect the dignity, feelings, etc. of other people. In no manner a person is
allowed to make a derogatory statement in context of a person, family, profession, and
others related aspects.
39. Article 21, states that no person shall be deprived of his life or personal liberty except
according to procedure established by law.
52
AIR 2017 SC 4161.
53
1975 AIR 865, 1975 SCR (3) 333.
40. As stated earlier, right to privacy is protected as an intrinsic part of the right to life
and personal liberty under Article 21 and as a part of freedoms guaranteed by Part III
of the Constitution.54 Justice Dr. D.Y. Chnadrachud held that privacy is concommitant
of right of individual to exercise control over his over his/her personality.55
41. Similar, has been interpreted by all the seven learned Judges in Kharak Singh case56 to
include that “right to privacy” as a part of the right to “protection of life and personal
liberty” guaranteed under the said Article.
42. It is humbly submitted that in the present the case the petitioners’ personality has been
presented in the bad light thus their privacy has been breached.
43. In case of R.K. Anand v. Delhi High Court 57, the expression “trial by media” is
defined to mean:
44. “The impact of television and newspaper coverage on a person's reputation by
creating a widespread perception of guilt regardless of any verdict in a court of law.
During high publicity court cases, the media are often accused of provoking an
atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial
nearly impossible but means that, regardless of the result of the trial, in public
perception the accused is already held guilty and would not be able to live the rest of
their life without intense public scrutiny.”
45. In this case it was also held by the court that it would be a sad day for the court to
employ the media for setting its own house in order; and media too would certainly
not relish the role of being the snoopers for the court. Moreover, to insist that a report
concerning a pending trial may be published or a sting operation concerning a trial
may be done only subject to the prior consent and permission of the court would
tantamount to pre-censorship of reporting of court proceedings. And this would be
plainly an infraction of the media's right of freedom of speech and expression
guaranteed under Article 19(1) of the Constitution.
46. Undoubtedly, the petitioners are going through the same in the present case as they
are being attacked and targeted all the time by various groups.
47. It is further submitted that the “media is regarded as the fourth pillar of democracy”
and it is the duty of media to provide correct information. It is the responsibility of the
54
Pandey J.N., Constitutional law of India, 56th edition.
55
Ibid.
56
(1964) 1 SCR 332: AIR 1963 SC 1295.
57
(2009) 8 SCC 106: (2010) 2 SCC (Cri) 563: 2009 SCC Online SC 1373.
media to not provide the public with the information i.e., factually wrong biased on
simply unverified information or the information which threaten the public order,
decency and morality and result in defamation as held in the case of Sanjay Narayan,
Editor-in-Chief Hindustan v. Hon. High Court of Allahabad58.
48. Further, Sec. 8(1)(j) of the Right to Information Act, 2005 also make an exemption
for the same which exempts disclosure of any personal information which is not
connected to any public activity or of public interest or which would cause an
unwarranted invasion of privacy of an individual.
49. It is to be noted that the meaning of “an unwarranted invasion of privacy of an
individual” is not given, but court has always kept a positive vision for the same.
50. However, the instant matter this established statute has been not followed as the
petitioners were subjected to public scrutiny which resulted in defamation. Further,
both the petitioners were not held by the police regarding ‘rose app’ case and they
were unnecessarily dragged into the news by the media.
51. Further, the Press council of India (PCI) recognise right of the suspect or the accused
to guard against trial by media-
52. As the Press shall not interfere or invade an individual’s privacy, except when it is
overweighed by genuine public interest. In reports which are likely to stigmatize
women, particular caution is essential. The PCI warns journalists not to give excessive
publicity to victims, witnesses, suspects and accused as that amounts to invasion of
privacy.
53. Unfortunately, in this case the rule of keeping caution when the information can result
in stigmatizing women was completely ignored. And the same is being done with both
the petitioners as they are being targeted by various people, their act is termed as
immoral and loss in their endorsements and brands contracts is adding up to loss of
their image.
54. It is humbly submitted that the in the case of R. Rajagopal v. state of T. N59 the
Supreme Court has held that opportunity of the press stretches out to participating in
uninhabited discussion about the involvement of public figures in public issues and
events. In any case, as respects their private life, a legitimate balancing of freedom of
the press just as the privilege of privacy and maintained defamation has to be
performed in terms of the democratic way of life laid down in the Constitution.
58
JT 2011 (10) SC 74: (2011) 9 SCALE 532
59
(1994) 6 SCC 632.
55. In Manu Sharma v. State (NCT of Delhi),60 it was held by the court that reporting of
a pending trial is subject to the checks and balances so as not to interfere with the
administration of justice.
56. But in the instant matter the balance which is being referred here is not maintained by
the media and Anybody, be a blamed or a bothered individual, who truly apprehends
on the basis of the publication and its impact, an encroachment of his/her privileges
under Article 21 to a fair trial and all that it grasps, would be qualified for approach a
proper Writ Court and seek an order for delay of the offending publication/broadcast
or postponement of reporting of specific periods of the trial (counting identity of the
person in question or the observer or the complainant).61
57. Thus, petitioners should be provided with protection and broadcast of this ‘fake and
propagandist news’ need to be shut as it is diminishing their image and will result in
ending their career.
Prayer
Wherefore in the light of facts of the instant case, written pleadings & authorities cited, it is
humbly prayed before this Hon’ble SC that it may be pleased to grant, quash and adjudge
declare:
Grant bail to the petitioner 1.
60
AIR 2010 SC 2352
61
Justice A.M. Ahmadi, Interrelationship Between Law, Media and the Judiciary, Vol. 4-7, 1997-2000, United
Lawyers Association, p. 75.
Declare right of trade and occupation as a fundamental right of the sex workers.
Establish mechanism against child pornography content.
Adjudge that petitioner have right to privacy against the media trial.
Pass any order, which the court may deem fit in light of the facts of the case & justice, equity
& good conscience.
Sd/-
Petitioners

TC - 39-Memorial For Petitioner

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

TC - 39-Memorial For Petitioner

Uploaded by

Copyright:

Available Formats

“TC-39P”

IN THE HON’BLE COURT OF DEMOCRATIC REPUBLIC OF IDEE

SLP (Crl.) No.__/2020

Mr. MOORE ……PETITIONERS 1

Mr. READER & PAIT ……PETITIONERS 2

DEMOCRATIC REPUBLIC OF IDEE ……RESPONDENT

ABOVEMENTIONED PETITIONES HAVE BEEN CLUBBED ON DIRECTIVE OF

MEMORIAL ON BEHALF OF THE PETITIONER

S.No. PARTICULATRS PAGE NO.

S.No. ABBREVIATION FULL FORM

2. Budhadev Karmaskar v. IA 80140/2020, in Criminal

5. Gurucharan Singh v State AIR 1978 SC 179; 1978

India July 2021

25. State vs Balachand @ 1977 AIR 2447 SCR (1) 535

b) Whether Sex workers have an inherent right of trade and occupation?

c) Whether there exists any enforcement/implementation mechanism against child porn

I. Mr. Moore is Entitled to be Released on Bail

II. Sex workers have an inherent right of trade and occupation

III. There is no enforcement/implementation mechanism against child porn content

Most Respectfully Showth:-

I. Mr. Moore is Entitled to be Released on Bail

Gravity of Offence Cannot be a Ground for the Denial of Bail

Mr. Moore will not flee or abscond from the Trial

Mr. Moore Cannot Tamper the Evidence

Denial of Mr. Moore’s Bail will Amount to the Violation of Article 21

III. There is no enforcement/implementation mechanism against child porn content

Grant bail to the petitioner 1.

Establish mechanism against child pornography content.

You might also like