MAIMS 1st NATIONAL MOCK TRIAL COMPETITION, 2022

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ISSUE-2
THE ACCUSED IS NOT GUILTY UNDER SECTION 67 B OF THE INFORMATION
AND TECHNOLOGY ACT, 2000.
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1. It is most humbly submitted before this Hon’ble Court that Ms Riya Malik
(hereinafter ‘accused’) is not guilty of the offence under Sec.67 B of The Information
and Technology Act, 2000 (hereinafter “IT Act”)1. In the matter at hand, the accused
has been wrongfully alleged for publishing or transmitting obscene material depicting
children in the sexually explicit act in electronic form. This contention will be dealt
with in a three-fold manner. First, that the painting representation and the video
published by the accused were not obscene or sexually explicit in nature; secondly,
that the painting was done with the objective of promoting art and other learning
objectives and lastly, that the witness statement of Mr Kabir Malik is not reliable.
2.1 THE PAINTING REPRESENTATION & THE VIDEO WAS NOT
OBSCENE OR SEXUALLY EXPLICIT IN NATURE
2. It is most humbly submitted before this Hon’ble Court that the content published by
the accused on We-Tube is not obscene or sexually explicit in nature and thereby not
an offence under Sec. 67B of IT Act. To constitute an offence under Sec. 67B, the
accused should have transmitted or published content which portrays a child engaged
in a sexually explicit act or conduct; creates text or digital images, collects, seeks,
browses, downloads, advertises, promotes, exchanges or distributes material in any
electronic form depicting children in an obscene or indecent or sexually explicit
manner or records in any electronic form own abuse or that of others pertaining to
sexually explicit act with children.
2.1.1 The act is not obscene in nature
3. It is most humbly submitted before this Hon’ble Court that the session which was
conducted by the accused on 9th December 2021, was done with the objective to
promote body positivity and healing.2 The video on We-Tube was titled ‘Easy Body
Art and Body Positivity’. Before starting the session, the accused had given a brief
account of all the aspects that were going to be dealt with in the session and had
1
Information and Technology Act, 2000, § 67B, No.21, Acts of Parliament, 2000(India).
2
Moot Proposition, ¶5.
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 MAIMS 1st NATIONAL MOCK TRIAL COMPETITION, 2022

conducted several sessions before the impugned session as well to educate &
enlighten her viewers on body painting and voiced her opinion against domestic
violence. The impugned body painting session included the children of the accused
Master Samir Malik (‘Samir’) and Miss Arzoo Malik (‘Arzoo’) showcasing their
skills by using their mother’s bare back as the canvas as an expression of art. The
painting has to be viewed along with the context in which it was done.
4. Further in the case of Aveek Sarkar and Anr v. State of West Bengal and Ors.3, it was
held that a picture of a nude/semi-nude woman cannot be called obscene unless it has
the tendency to arouse feeling or reveals an overt sexual desire. Only those sex-related
materials which have a tendency of “exciting lustful thoughts” can be held to be
obscene. The aversion test laid down in this case held that the authors and filmmakers
sometimes depict nudity not to arouse sexual desire but to convey a message against a
social evil. The context and background of the act should be taken into consideration.
In the present case, the accused’s back was seen and the back of a person cannot be
considered to intrigue any obscene character. The message that was conveyed through
the session was body positivity and the whole objective behind the session was
promoting body painting as a form of art. Hence, it cannot be considered obscene.
5. Moreover, the only nudity that was shown was the back of a woman and according to
Sec. 2(c) of The Indecent Representation of Women (Prohibition) Act, 1986 4,
“indecent representation of women means the depiction in any manner of the figure
of a woman, her form or body or any part thereof in such a way as to have the effect
of being indecent, or derogatory to, or denigrating, women, or is likely to deprave,
corrupt or injure the public morality or morals.” In the present case, there is no
indecent representation of women but rather the art form and painting aimed at the
upliftment of women and strongly voices against domestic violence. The session was
a medium of showing empathy towards those women who were subjected to cruel
behaviours from their families.
6. It is most humbly submitted before this Hon’ble Court that in the case of MF
Hussain v. Raj Kumar Pandey5 where the accused had painted a naked painting of
‘Bharat Mata’ (Mother India), the Delhi High Court held that even if some may be
offended by it, that by itself will not make the creation obscene. Further, the likely
3
Aveek Sarkar and Anr v. State of West Bengal and Ors., (2014) 4 SCC 257.
4
The Indecent Representation of Women (Prohibition) Act, 1986, §2(c), No.60, Acts of Parliament, 1986
(India).
5
MF Hussain v. Raj Kumar Pandey, 2008 CrLJ 4107 (Del).
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audience test, which was upheld in the case in the case of Samaresh Bose v. Amal
Mitra6 held that the Court is supposed to place itself in the position of the audience
and try to appreciate what kind of possible influence it might have on the minds of
every age group. In the present case while referring to Annexure I7, the statement of
Ms Trisha, a teacher by profession and a neighbour of Ms Riya Malik has been
recorded. Ms Trisha’s son has been regularly attending the sessions conducted by the
accused. From the statement of Ms Trisha, it can be inferred that the content was not
viewed as sexual by both the parent and the ward. Ms Trisha stated that “My son also
watched the entire session, and his opinion regarding the same was neither sexual
nor obscene.” The likely audience, in this case, should be applied to the parents and
their wards who were inclined towards art and the content was not considered obscene
by them. Thus, the accused cannot be charged under Sec. 67B the of the IT Act for the
content and art created by her and children on the ground of for being obscene or
indecent.
2.1.2 The act is not sexually explicit or pornographic in nature
7. It is most humbly submitted before this Hon’ble Court that the content published by
the accused on We-Tube is not sexually explicit in nature and does not fall under the
ambit of Sec. 67B clauses (a) (b) (c) & (e) of IT Act.
8. It is most humbly submitted before this Hon’ble Court that sexually explicit content
as defined by the U.S. code on Sale or rental of sexually explicit material prohibited 8
is “an audio recording, a film or video recording, or a periodical with visual
depictions, produced in any medium, the dominant theme of which depicts or
describes nudity, including sexual or excretory activities or organs, in a lascivious
way.” Further, Article 2 of the Optional Protocol to the Convention on the Rights of
the Child, 20029 provides a more inclusive definition. It says that child pornography
can be any representation of a child engaged in real or simulated sexually explicit
activities. The term also includes representing a child’s sexual parts for sexual
purposes. The accused in this case has not engaged her children in any sexually
explicit act as there is no real or simulated sexual activity or portrayal of the child’s
sexual organs hence from the above definition, the content published by the accused is

6
Samaresh Bose v. Amal Mitra, AIR 1986 SC 967.
7
Moot Proposition, Annexure I, p.no. 21.
8
10 U.S.C. 2495b.
9
Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and
child pornography art 2, 25 May 2000, A/RES/54/263.
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not sexually explicit or pornographic in nature. This has been widely mentioned in
issue 1.
9. Moreover, the act of two children showing their skills, which was even stated as
extraordinary skills in the statement of Ms Anushka Gehlot 10 has been negatively
interpreted to be sexually explicit in nature. The content did not show any sexual
organs or lascivious activity. The content was a mere representation of artistic skills
which is body painting.
10. Further, in the present case the relationship between the mother and her children has
been negatively demined. The accused has always acted in the best interests of her
children. The statement of Prof. Jaya Bhattacharya states that the accused ensured a
positive change in the behaviour of her children who were devastated by family
issues,11 which shows that the mother always ensured and worked towards ensuring
the best interest of her children. In the case of V. Vinod Kumar Versus V. Arunadevi 12
had opined that “The mother’s lap is God’s own cradle”; Therefore, such an act
cannot be given a negative interpretation of being lascivious or sexually explicit in
nature. Also, the video did not show any sexual or excretory activities or organs.
Hence the accused is not guilty of any offence under Sec. 67B of the IT Act.

2.2 THE PAINTING WAS DONE WITH THE OBJECTIVE OF PROMOTING

ART & OTHER LEARNING OBJECTIVES
11. It is most humbly submitted before this Hon’ble Court that the proviso under Sec.
67B of the IT Act states that, if the publication is done in public good on the ground
that such painting representation or figure is in the interest of science, literature, art or
learning or other objects of general concern, then the section will not apply. In present
case involving Ms Riya Malik and her two children, they were representing the art
form known as body painting by using their mother’s back as the canvas for the
painting. 13
The accused started the session on 9th December 2021, by giving an
introduction and talking about various types of body paintings and tattoos and how
scars caused on the body can be made beautiful by such paintings and art. As

10
Moot Proposition, Annexure H, p.no. 20.
11
Moot Proposition, Annexure F, p.no. 18.
12
V. Vinod Kumar Versus v. Arunadevi, (2016) 1 MLJ (CRL) 1.
13
Moot Proposition, Annexure D, p.no. 16.
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 MAIMS 1st NATIONAL MOCK TRIAL COMPETITION, 2022

discussed in the earlier contentions the whole objective of the art was to propagate
body positivity and raise a voice against domestic violence.14
12. Art is defined as the, “Human skill; application of skill to subjects of taste, as poetry,
music etc.; skill as the result of knowledge and practice; certain branches of learning,
which are of the nature of instruments for more advanced studies or for the work of
life.”15 Art is a principle put in practice and applied to some art, machine,
manufacture, or composition of matter. It is not only limited to fine arts but has its
original sense of handicraft, trade, profession and skill in work, with the advance of
culture which has been beyond the sphere of common pursuits of life into that of
‘artistic’ and ‘scientific’ action. The accused in the impugned session also only
portrayed a form of art. The video uploaded on We-Tube was the making of a
painting representation and the accused in the introduction talked about various kinds
of body art. 16
13. Moreover, In landmark case of Ranjit Udeshi v State of Maharashtra17, the SC held
that nudity in art and literature cannot be regarded as evidence of obscenity without
‘something more’. The court considered art and obscenity to be a mixture where art
must overweight and overshadow obscenity. Hence, the painting representation is a
form of art. Arguendo, if the content was obscene or sexually explicit; as per the
proviso of Sec.67 B, the content will not constitute an offence under the exception
because it is an art form; a painting representation which was done with the objective
of learning the art and with the general concern of promoting body positivity.
14. Furthermore, It is most humbly submitted before this Hon’ble Court that the statement
of Mr. Kabir Malik is not reliable because he is an interested witness. An interested
witness is one who postulates that the person concerned must have some direct
interest in seeing that the accused is somehow convicted, due to the fact that he has an
animus or ill will with the accused or for any other reason. Mr. Kabir Malik had
stated that the accused had done the act to gain viewer’s attention. This is not reliable
because he is an interested witness as this case can influence the domestic violence
case against him and his parents.
15. Further, in the present case the accused is an artist by profession and is also a fine arts
graduate. The accused had conducted various sessions and classes on painting and
14
Supra note 2.
15
INDIA CONST. art. 80(3).
16
Supra note 2.
17
Ranjit Udeshi v. State of Maharashtra, 1965 AIR SC 881.
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dancing before the impugned session, these sessions were a huge success18 and were
appreciated by both parents and children who were participants in these sessions. 19
The artistic skills of the children were portrayed in the video and body painting is a
form of art. Thus, the accused is must not be held guilty under Sec.67 B as the proviso
clearly states that painting representation or figure is in the interest of science,
literature, art or learning or other objects of general concern, then the section will not
apply.

18
Moot Proposition, ¶3
19
Supra note 7.
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MEMORIAL ON BEHALF OF DEFENDANTS