BACHELOR OF LAW (BA, LL.

B)

SCHOOL OF LEGAL STUDIES, BABU BANARASI DAS UNIVERSITY

BEFORE THE HON’BLE SUPREME COURTOF INDICA

EXTRAORDINARY WRIT JURISDICTION

WRIT PETITION(CIVIL)NO.___ OF 2022

(IN THE MATTER OF ARTICLE 32)

Inflix and Inzon…………………………………..petitioner no 1

Union of Indica &ors……………………………Respondent1

(CLUBBED WITH PETITION)

1. M/s Johri Cine Film Limited ……………………petitioner 2

2 Blockbuster film and Amit Diwan ……………….petitioner3

3. Association of film producers………………………petitioner4

1. State of Bambil…………………………………………respondent 2

2 State of Awadh …………………………………………….respondent3

3.State of Deli and Hind Swaraj………………………………..respondent 4

UNDER THE ARTICLE 32 OF THE CONSTITUTION OF INDICA, 1950

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

COUNCIL ON BEHALF OF PETITIONER

SUBMITTED BY: RAKSHITA SENGAR

UNIVERSITY ROLL NO-1180992039

IX SEMSTER (2018-2023)

MEMORIAL FOR PETITIONER Page 1

 TABLE OF CONTENTS

LIST OF ABREVATION

INDEX OF AUTHORIIES

STATEMENT OF JURISDICTION

STATEMNETS OF FACTS

STATEMENT OF ISSUES

ARGUMENTS ADVANCED

1 Whether the petitions are maintainable in the supreme court of Indica?

2. Whether the notice is served to JCFL and Inflix is lawful or not?

3. Whether the FIR is liable to be quashed or not?

4. Whether the It rules are constitutionally valid

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 LIST OF ABBREVIATION

AIR All India report

CL Clause

Anr another

Del Delhi of high court

C.r.p.C code of criminal procedure

ED Editions

FIR first information report

IPC Indian penal code

ORS Others

SCC supreme court cases

SC Supreme court

UOI Union of India

Rev. Reversed

NO Number

u/s under sections

LED United States of Supreme

Court

CRlj criminal law journal

v/vs verse

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 Index of Authorities

STATUTES

1. the Cinematograph Act, 1952 (37 of 1952)

2. The Cinematograph (Certification) Rules, 1983 

3. Information Technology (IT) Act, 2000(21 of 2000) .

 
4. Information Technology (Intermediary Guidelines and Digital Media Ethics Code)
Rules, 2021
 
5. The Constitution Of India 1949  

6. The Indian Penal Code (Act XLV of 1860). 

7. Code of Civil Procedure, 1908 (5 of 1908)

  8. Government of India allocation of business rule 1961

CASES

1. Mr. Padmanabh Shankar v. union of India Kant 8654

2. Video Master, Bombay v Union of India Video Master, Bombay v Union of India

3. Justice for Rights Foundation vs. Union of India

4. Daryao and Others v. the state of up and others

5. Ramji Lal Modi vs. state of up

6. State of Haryana v. bhajan lal

7. State of Tamil Nadu and Others v. K. Shyam Sunder and Others

8. Ajoy Kumar Banerjee v Union of India

9. Romesh Thappar

10. K.Puttaswamy (Retd.) and Anr. v. Union of India

11. Kesavananda Bharati v. State of Kerala1973) as well as inIndira Nehru Gandhi v. Shri
Raj Narain & Anr

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 STATEMENT OF JRISDICTION

The plaintiffs have approached the Hon’ble Supreme court of Indica under Article 32 of the
constitution of Indica. The counsel for the Defendant humbly reserves the right to challenge
the jurisdiction of this hon’ble court.

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 STATEMENT OF FACTS

1. Indica is socialist, secular, and democratic and republic country situated in the south Asian
region with culturally, ethnically and linguistically diverse country with various religion
looking for security in it. The Individuals of Indica selected for a common law system and
their constitution which is rigidly goes after with ever jurisdiction under each circumstance.

2.After the independence the Indica had progressed in lot of sectors in economy specially in
the film sector by seeing the progress in the film industry, the parliament in 1952 enacted the
cinematograph act. this is made because certificate is needed before releasing the film

3. after Noticing the massive growth of Indian films industry in 2014 the ministry of
telecommunication declared the launched of 4g spectrum that increase the digital in indica
because of the OTT platform came to knowledge such as Inflix, Inzon etc., that were in the
nature of the OTT platform which allowed the streaming of audio-visual content on its
platform for its subscriber, in lieu of subscription.

4.Large no of film producers of the film industry started developing and producing their
content in the OTT platform in the nature of web series, short movies, anthology series and
features films with intents to exhibits and telecast it on Ott. Simultaneously, the OTT
platform were also keen interest in hosting the indicant contents as it allowed them to tap in
to a Indica market, which had 50 million viewers. Notably, the content released in the OTT
platform does not need the certification from the central board of film certification.

5.M/s Johri Cine Films Limited [JCFL] who is renowned film production company in indica.
That has produced 100 films over a decade .in 2018 the JCFL expressed it intend to foray in
to the production /development of content for OTT platform .in regard, it announced a RS .30
million deal with Inflix to produce /develop the web series /feature films as may be agreed
between them. Solely and exclusively for the Inflix platform. pursuant thereto, JCFL
produced a web series titled is Indica Games which was schedule to be released on Inflix on
5may ,2022. on 1 may 2022, the Central board of film certificate issued a notice to JCFL and
Inflix directing them to Cease and desist from releasing Indica Games unless A certificate has
been issued by the Central Board of Film Certification.

6. Regardless, JCFL and Infix released Indica Games on the Scheduled Date i.e. 5 may,
2022 .the said series was widely appreciated by the audience. however the Central Board of
Film Certification issued a notice imposing the penalty under Section 7 of the
cinematographic act for exhibiting the cinematograph film without the film
certification .aggrieved by the action of the central board of film certification which goes turn
in to slander , on may 15 2022 JCFL and Inflix filed a writ petition under article 226 of the
constitution of Indica before the High court of bombil interalia for quashing of the notice
Issued by the central board of film certification.

7.Meanwhile ,blockbuster films ,another prominent indica film production company release
a feature film titled political heist on the Inzon it is the satirical political drama based on the
rise of MHP, The current dispensation ruling the country .Since it was film form on the

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political theme .there was huge roar against the release of the said film, with wide spread
protests by the certain section of society which turns in to violent resulting the damage of the
public property and injuries to the large no of the protesters, ensuing in chaos. Mr. Supriyo
Gaikwad, a member of the parliament belonging to the MHP, lodge a FIR against the
blockbuster films and Mr. Amit Diwan, its managing director, for causing public unrest and
hurting the sentiments of the people in large

8. Meanwhile on 16 may 2022, Inzon issued a press release declaring that it had received
approximately 1,000 complaints and grievance from various other individuals and each
complaint had been examined and assessed Vis-a -Vis political heist by an independent
committee. these said committee had concluded that no web series political heist is hurting
the sentiments and violating any religion and therefore, the political heist shall neither be
blocked or nor censored. Looking justice for unfair uproar against them. Blockbuster films
and Mr. Amit diwan had filed a petition under section 482 of the code of criminal procedure
for quashing the FIR before the Awadh High court.

9. based on public outrage and uproar against political heist. on June 1,2022, the govt. of
indica has issued the information technology Rule ,2022 under the information technology
act 2000.the rule provide a code of conduct for hosting of information on social media and
digital media and directly affected the manner in which the content was is being hosted on the
OTT platform.

However, the rules were the result of the public rection, they were still met with the staunch
opposition by the various section of the society. Various social media influencer and pages
hosted content were now within the preview of the said rules. similarly various content
hosted /streamed on the OTT platform were also subjected to scrutiny

10. association of film producers, an organization of filmmaker and producers across the
country also protested against the rules that primarily on the premise that the said rule
violated the freedom of speech and expression of the film maker and producers.

11. hind swaraj an NGO working for the preservation and conservation of Hindu culture
supported the rules .as per Hind Swaraj, the OTT platform are corrupting the Indian culture
by spreading the westernization. Accordingly, there is need for regulating the content which
is displayed, released and/or exhibited in society.

12.On 3 june,2022, the association of film producers filed a separate writ petition under
article226 of the constitution of indica before the high court of deli challenging the
constitutional validity. on June 05 2022 Inflix and Inzon jointly filed a writ petition before the
supreme court of indica. simultaneously, hind swaraj filed an intervention application
supporting the constitutional validity of the said rule.

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 STATEMENT OF ISSUES

1. WHETHER THE PETITIONS ARE MAINTAINABLE IN THE SUPREME

COURT OF INDICA OR NOT?

II. WHETHER THE NOTICE SERVED TO JCFL AND INFLIX IS LAWFUL?

III. WHETHER THE FIR IS NOT LIABLE TO BE QUASHED?

IV.WHETHER IT RULES ARE CONSTITUTIONALLY VALID?

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 SUMMARY OF ARGUMENTS

1. WHETHER THE PETITIONS ARE MAINTAINABLE IN THE SUPREME COUTY OF

INDICA?

The petitioners submissively contents before this hon’ble the court that the petitioner take
aside tis hon’ble court under Article 32 of the constitution of Indica

2. WHETHER NOTICE SERVED TO JCFL AND INFLIX ARE LAWFUL?

The counsel for the petitioners submissively contends that, the petitioners did not entailed
certification from the central board of film certification, as ‘Indica Games ‘entity in the
creation of digital media web series, fall over surface the province the application of the
cinematograph act 1952 and thus, the notices have been pointed by the CBFC ultra vires its
power.

III. WHETHER THE FIR IS NOT LIABLE TO BE QUASHED?

The FIR lodged against the accused persons is liable to be quashed as there is no prima facie
case as the additives of the section which the accused persons are imposed which are not
satisfied. Further the Inzon composed an independent company to inspect and evaluates
complaints which finished that the film didn’t damage any religious sentiments. Finally, the
FIR was lodged with a spiteful intent.

IV.WHETHER IT RULES ARE CONSTITUTIONALLY VALID

The information technology (intermediary Guideline and Digital Media Ethics And Code)
Rule 2022 it violate the article 14, 19 (1) and 21 as the rules are unclear, provides for the
restriction of such exposure where contented could be grasp down which is not provided as
the exception in Article 19 (2) and provided for discovering of the native uploaded which
also violate the article 21.

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 ARGUMENT ADVANCED

1. WHETHER THE PETITIONS ARE MAINTAINABLE OR NOT

That is submissively stated that in front of the hon’ble court that petitioners approached to the
hon’ble court under the constitution of Indica and the petitioners are maintainable .there are
some remedies 1for the fulfillments of the rights ,there is right to go supreme court by
relevant proceeding for the enforcement of rights .the supreme court shall have power to give
the directions ,order and writs that includes all the writs which will be fit or appropriate for
the implantation of any rights conferred by this part.

In the case JCFL and Infix v. Union of Indica and others in this case there is the violation of
article 14 and 19(1) (g) of the petitioner occurs .they did not need to secure the certificate by
the central board of certification of Indica games and Indica games is the digital media that
falls outside the realm application of the cinematographic act 19552 and thus the notice is
provide by the CBFC ultra vires its power .such activity is random. And thus violate article
14 and thus influence the petitioner carried out trade freely

In the case of blockbuster film the petitioner humble said that the FIR was lodged is baseless,
does not construct prime faciecase .and it is hatefully against the petitioner .hence that is why
we prayed under article 32 to this court to quash the FIR. In the case of association of film
producer v. union of Indica and hind swaraj the petitioner had challenged the constitutional
validity under article 14, 19, 21 of the constitution of Indica

2. WHETHER THE NOTICE SERVED TO JCFL AND INFLIX IS LAWFUL?

1
Article 32 of the constitution of Indica 1949

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 the counsel for the petitioners submissively resist that, the petitioners did not require to
secure certification from the Central Board of Film Certification, as ‘Indica Games’ being in
the nature of a digital media web series, comes down outside the realm of application of the
Cinematograph Act 1952, and thus, the notices have been mattered by CBFC ultra vires its
powers.

A.CONTENT STREAMED ON OTT PLATFORMS OUT OF PURVIEW

OF‘CINEMATOGRAPHS.’

The preamble of the Cinematograph Act, 1952reads as: ‘An Act to construct provision for the
certification of cinematograph films for exhibition and for controlling exhibitions by means
of cinematographs. Under Section 2 (c) of the Act, ‘Cinematograph embraces any apparatus
for the representation of moving pictures or series of pictures. Further, ‘film’, underSection.2
(dd) of the Act, means a cinematograph film. A cinematograph has been described to be
equipment which embraces a camera which generated a film and the machine which exhibits
or displays a film. A video is recording of moving images and their recording is made
digitally or in the form of digital files. Therefore, a video film or a video compact disc is
included in Clause (c) of Section 2 of the said Act of 19522. The counsel humbly contends
that, as it follows as a consequence of the above, the said Act only applies to certification of
cinematograph films, and hence, a web series in the nature of digital media, not falling within
the meaning of either of the two definitions above, is excluded from the ambit of the
Cinematograph Act, 1952. The same was held in Mr. Padmanabh Shankar vs. Union of
India3, that internet can be a said to be an interconnected network which connects the
computers beyond the globe. It can be said to be an interconnected network of all the web-
servers worldwide. When we come to web-server, it is really a program that uses Hyper Text
Transfer of Protocol serve the files that form web pages to the users which are provided in
reply to their requests which are accelerate by http client on their computers. There may be
various films or serials transmitted via internet.

If we take into consideration the concept of internet and how the internet operates, it is
impossible to receive the submission that the films or serials which are communicated or
exhibited through internet will constitute films within the meaning of Clause (dd) of Section
2 of the said under the cinematograph Act.

E same can be contended so as to apply to Content on OTT Platforms as well.7

B. IS NOT ‘PUBLIC EXHIBITION’ WITHIN THE MEANING OF THE 1952 ACT AND

THE CINEMATOGRAPH (CERTIFICATION) RULES, 1983

Under Section 3(1) of The Act stated that the Central Government to compose a Board to be
called the Board of Film Certification, for the purpose of sanctioning films for public

2
Mr Padmanabh Shankar v. union of India kant 8654
3
LNILDORD KANT 865

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exhibition. Further, Section 104 states that ‘Save as otherwise on condition in this Part, No
person will give an exhibition by means of a cinematograph elsewhere than in a place
licensed under the provisions of the Cinematograph Act 1952 or otherwise than in
compliance with any conditions and restrictions imposed by such license.’ The counsel for
the petitioners humbly contends that, the meaning of public exhibition as visualized by the
provisions of the Cinematograph Act, 1952 read in agreement with The Cinematograph
(Certification) Rules, 1983,5 can only be interpreted within the meaning of places having
obtained license from appropriate authority for giving such public exhibition ; theatrical
release and through Video Tape or Compact Video Disc, as seen from the various provisions
of The Cinematograph (Certification) Rules, 1983 and its Second Schedule.6  

In Video Master, Bombay v Union of India Video Master, Bombay v Union of Indi7

, it was stated that examination and certification of film is obligatory at most if film is meant
for public exhibition and not otherwise. In light of the above, the counsel for the petitioners
submissively submits that, the streaming of web series through internet is not ‘public
exhibition’ within the meaning of the Act. Hence CBFC is not empowered under the Act to
sanction or regulate the same, and the notices on the petitioners directing cease and desist of
the release and imposing penalty under Section 7, have been issued ultra vires of its
jurisdiction.

C. ABSENCE OF ANY REGULATORY PROVISION FOR CERTIFICATION OF

DIGITAL MEDIA CONTENT ON OTT PLATFORMS.

 The counsel for the petitioners submissively resist that there is no provision for certification
of digital media content on OTT platforms under any of the existing regulations, namely the
Cinematograph Act, 19528 The Cinematograph (Certification) Rules,

Any person desiring to exhibits any film shall in the prescribed manner makes an application
to the board for certification in respect after board may after examining or having the film in
the prescribed manner that is mentioned section 4 (1)of the cinematograph act

In the section 2 (bb) of the act it is said that if the certificate means granted by the board
under section 5 A .section 8(1)read with S.8(2)c of the cinematograph act the central got to
make rules for the manner of making an application to the board .it is said by the court that
the in the second schedule rules are quite on the prescribed manner to build application as
required by section 4(1)and also prescribed manner in which certificate is provided by the
CBFC for release on OTT platform. Part II (B),(C),(D)& (E) of the Code Of Ethics
established in the said Rules only on condition that the publishers of online-curated content
have to allocate their content into age-based content category, display category. The
Limitation of ingress to a child and measures to enhance the accessibility by persons with
disabilities, respectively. It is humbly stated before this Hon’ble Court that there is no
4
Section 10
5
Section 10 read with rule 37 power of entry of special officer
6
Schedule II of the cinematograph rule 1983
7
(1986) 88BOMLR525[265]
8
8 dealt in this part of the issue

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provision under the same for requiring certification or obtaining license from any regulatory
body for exhibition of any content on their platforms. In Justice for Rights Foundation vs.
Union of India9

While dismissing the petition, the Delhi High Court utter that MIB was of the view that
online platforms were not required acquiring any license from it for displaying its content and
that the same was not regulated by it

III. WHETHER THE FIR IS NOT LIABLE TO BE QUASHED?

9
WPC no.11164/2018

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The petitioners submissively submitted in front of the court that the FIR lodged against the
blockbuster Films and the Amit Diwan is liable to be quashed as because it is unproven and
misuse of the process of law and spiteful and hence liable to be quashed.

In the chapter VIII of IPC u/s15310 it is stated that wantonly giving provocation with intend to
cause riot in this whoever malignity ,or wantonly by doing anything which is illegal ,gives
provocation to any person intending or knowing it to be likely that such provocation will
cause the offence of rioting to be committed ,shall ,if the offence of rioting be committed in
consequences of such provocation ,be punished with the improvement of either description of
terms which maty be extended to one year or fine , with both ,and if the offence of rioting be
not committed , with improvement of either description for term which may extended to six
month ,or with fine ,or with out both. In the section 505(1 )(b)11of the IPC says that whoever
makes publishes or spread any statement, rumor or report, in (b) with the aim to cause or
which is likely to cause, fear or shock to the public, or any section of the public whereby any
person may be persuade to commit an offence against the state or against the public
tranquility.12

Under the section 504 of IPC state that whoever intentionally insult, and there by gives
provocation to any person intending or knowing it to be likely that such provocation will
cause him to break the public peace, or to commit any other offence, shall be punished with
the impressment of either description for term which may extend to two years or with fine or
with both.

In the case of Daryao and Others v. the state of up and others 13

in that supreme court noticed “under the fundamental rights” promised by Article 32 (1) is
hugely prime safeguard for the preservation of the fundamental rights of persons, and as
consequences of the said guarantee this court has been invested with the dignified task of
endorsing the fundamental rights of the people of this country. the fundamental rights are
planned not utmost to preserve the individual’s rights but they are established on high public
policy. Sovereignty of the individual and the preservation of his fundamental rights are the
very core of the democratic way of life acquired by the constitution of indica and it is the
duty and right of the court to verified their rights. Hence court behave like the protector and
guarantor of the fundamental rights, and it cannot, perpetually with the responsibility so
refuse to delight the application seeking protection against infringement of such rights

there was another case Ramji Lal Modi vs. state of up14.in this case there was an offence
under section 295A of the IPC .in this discovering such component to be wholly absent .the
relief that was prayed that was granted by this court .the applicable inspection of the court
were- in the speedy writ petition selected under article 32 of the constitution of the indica .the
petitioners that was actor ,producer, director of the movie have invoked for quashing the FIR

10
INDIAN PENAL CODE (ACT XLV OF 1860)
11
INDIAN PENAL CODE (ACTXLV OF 1860)
12
INDIAN PENAL CODE (ACT XLV OF 1860)
13
DARYAO AND OTHERS V. THE STATE OF UP AND OTHERS
14
13(2004)4SCC 666

MEMORIAL FOR PETITIONER Page 14

no 34 dated14-02-2018 lodged at police station ,Telangana. That separately, a prayer has also
be created that no FIR should be fascinate or no complaint under, furthermore the SC in
many cases have quashed FIR under Article 32.

The strength of Quash the FIR goes along with the meaning of law in Article 21 of the
constitution of indica. Consequently, therefore where the high court call off the bail bond
permitted under section 436 to a person accused of the bailable offence the penury of the
personal liberty of such person is not violate of article 2115, it is well stated that section 482 is
the exception not a rule. It may be obligatory to give the rection to any order under the code
or to protect the misconduct of process of any court or otherwise to fix the ends of justice but
the utterance of the “abuse of process of law” or to protect the end of justice. And also court
have the inherit power aside from the intimate the provision of law which is necessary for
real issue of function and duties that were imposed upon them by law. All such powers are
necessary to do the upright and undo a wrong. It route of administration of justice on the
principle “quando lex aliquid alicui conceit, videtur ET id sine quo res issue esse non protest
16
that means when the law gives any thing to any one

If the intervention with the petitions to quash the FIR will guide to exploit of the process of
the court and also failure of the justice that was mentioned above. Further the petitioner had
relented that there is no actionable case made out by the respondent in the complaint .hence
grave injustice done to the petitioner as it the respondent does not prove any intension of the
petitioner that violates or hurts the sentiments of the society. There was a movie release that
was based on political drama that does not means that it is a sensitive topic that hurts the
society’s sentiments. Or any matter that would in the natural course of action source any
violence or any matter recognize by the reasonable man to cause a confusion ,let alone a
protest leading destruction of life and property ,preferably that it was a satirical drama film.

There was a defeat of the respondent to make a prima facie case – in that there was word
wantonly that means thoughtlessly without estimate for right or upshot the word wantonly
barely only in the section of IPC, while the term malignantly happens once again in section
270,IPC, which refers to the immoral spread of infectious poison17. In the sudden case
although there were a protest against the film, there was no violence and nothing was shown
illegal about the film or regarding the release of the film.it was a people of definite section of
society merely showing the dislike towards the film .while using the platform the e protest
turned violent only after the release of the film, paragraph 11 of the moot preposition uses the
word “tragic turn” this indicates that it’s something not organized and hence couldn’t be
foreseen. It would be unreasonable for a wise man to anticipate such a consequence merely
due to the release of a film. Further the film is about political drama nothing to do with
religion or contempt of religion in disrespectful manner. The charge under section 295A is
absolutely baseless and groundless. Further the petitioners humbly state that the following
ingredients of section 505(1) (b) are not fulfilled:

15
Ratan lal dheraj lal the code of criminal procedure code 21 st cd
16
Ratanlal dheeraj lal:the indian penal code (PB),36 th ED
17
RA NELSONJUSTICE KT THOMAS ,JUSTICE TS DAIBA NELSON’S INDIAN PENAL CODE ,12 TH ,ED

MEMORIAL FOR PETITIONER Page 15

(a) The accused made, published, or circulated, a statement, rumor, or report;

 (b)he did so with intent to cause, or which was likely to cause, fear to the public (or to a
section of the public); and (c)thereby a person was induced to commit an offence against the:
State, or public tranquility There is no prima facie commission of the offence under section
505(1)(b) as the accused persons had no intention to cause any fear and it was a film
regarding political drama, It is important to note the protest were prior to the release of the
film, the film was not yet published/broadcasted. There is a lack of nexus between the
publication and the broadcasting of the film, hence it was not the film that caused the that
caused or intended to cause any fear in the mind on the people Hence, if such FIRs against
film makers are allowed to be registered then this would have to a serious consequence; it
would have a chilling effect among the producers and directors and OTT platform. This in
turn would dent freedom of speech and expression and freedom of trade, and effect our
economy in a wrong way .there has been two committee is made by the Inzon that was
independent committee .it approximately interrogate 1000 complaints and from that there was
conclusion came that there is no violation of sentiments occur by the political heist, that is
why it shall not be blocked .the first committee in that Mr. .Johor and Mr. Mehra he is in
possess knowledge required in the film industry and producing films costing of sensitive
matter .the second committee hold the great weightage after examination. in the malafide
intent in registering the FIR in that 1000 complaint is assessed by independent form only one
FIR is lodged against the accused person that was by the gaikwad the member of parliament
belonging to MHP .it appear to revenger against the accused person rather than actually been
aggrieved by the film .

In the case state of Haryana v. bhajan lal18 in the following case the extraordinary power
under Article 226 or the inherit power under 482 Crpc can be exercised by the high court
either to protect the misuse of the process of any court otherwise to protect the end of justice
more over it is said that where a criminal proceeding is manifesting attend with malafide for
wreaking vengeance on the accused they want to spite him due to his personal grudges and all

When FIR is registered in the court there is scarily making of allegation in the Mala fide
exercise of power FIR would not be quashed.19

4. WHETHER IT RULES IS CONSTITUTIONALLY VALID.

18
AIR 1992SC 604,1992 Cr ,(522):scc(cr)426
19
SK KHOTHARI V. STATE OF RAJESHTHAN ,2004 (1)CRIME 440(443,(444)(RAJ)

MEMORIAL FOR PETITIONER Page 16

The counsel for the petitioners submissively resist that, the Ministry of Information
Technology20 have propagated the Rules without any jurisdiction, insofar as they relate to
publishers of online curated content, and are invalid, as OTT Platforms and their regulation
under the Rules are afar the scope of the Information Technology Act, 2000, and are ultra
vires the Constitution of Indica

 REGULATION OF ‘DIGITAL MEDIA’ OUT OF PURVIEW OF MEITY.

 Rule 2(1)(i) of the IT Rules 2022 defines ‘digital media’ as ‘digitized content that can be
transmitted over the internet or computer networks and includes content received, stored,
transmitted, edited or processed by- (i) an intermediary; or (ii) a publisher of news and
current affairs content or a publisher of online curated content. According to Rule 2(1) (q),
‘online curated content ‘means ‘Any curated catalogue of audio-visual content, other than
news and current affairs content, which is owned by, licensed to or contracted to be
transmitted by a publisher of online curated content, and made available on demand,
including but not limited through subscription, over the internet or computer networks, and
includes films, audio visual programs, documentaries, television programs, serials, podcasts
and other such content.

the counsel for the petitioners submissively resists that the MeitY does not have the authority
to managed digital media or digitized content within its cognizance, as the same its away
from its list of subjects under the Second Schedule of The Government of Indica (Allocation
of Business) Rules, 1961;21 and also, following the notification issued by the Ministry of
Information Technology, the Allocation of Business Rules was amended.

The Rules state that part II & III shall be administered by the MeitY and Ministry of I&B
respectively, but since the MeitY itself cannot managed the online publishers or digital
media, it cannot issue the Rules empowering the Ministry of I&B to do so. The same was
clasp that what cannot be done directly cannot be done indirectly in state of Tamil Nadu
and Others v. K. Shyam Sunder and Others 22In the law that what cannot be done directly,
is not permissible to be done obliquely, meaning thereby, whatever is forbid by law to be
done, cannot legally be effected by an indirect and circuitous contrivance on the principle
ofquando liquid prohibitory, prohibetur et omne per quod devenitur ad illud  An authority
cannot be permitted to evade a law by shift or contrivance’.

 In the regulation of digital media is ultra vires .it this preamble looks for to give the legal
recognition for the transactions taken out by the means of transaction, electronic
communication, and there is electronic commerce which means to filling the document with
in the govt. agencies and to amend the I.P.C, the evidence act and many more matters that are
connected to this.in the section 87(i) & (2) (z) and (zg) in this disputed have been spread in
exercising of the rule making power.

20
Ministry of electronic and information technology (MeitY) Government of Indica
21
THREE HUNDRED AND FIFTY SEVEN AMENDEMENT RULES OF ALLOCATION OF BUSNISS RULE
22
(2011)8SCC737

MEMORIAL FOR PETITIONER Page 17

Section 87(2)(z) says that rule can be made for the procedure and protect them from blocking
the access by the public under section (3)of section 69 A,23 that falls under (zg)for the
guideline that has been observed by the intermediaries under sub section(2)of the section
79.24

In the non-recognition of OTT according to Rule 2 (i), digital media includes digitized
content that is received, stored, transmitted, edited or processed by- (i) an intermediary25 or
(ii) a publisher of news and current affairs content or a publisher of online curated content 

As seen from the facts, over-the- top [“OTT”] platforms allow the streaming of audio-visual
content on its platforms for its subscribers, in lieu of remission of a fee. This rule have not
insert new term which was not there in the parent act, and also introduce a new guidelines
and regulation for such publisher to observe by they are not able to satisfied the test rule .rule
making power does not goes afar the object of parent act 26a delegates power to legislate by
making rules cannot be regulated as to come with the existence substantive rights or
obligation not contemplated by the provision of the act itself27.

In the state of Tamil Nadu and Others v. K. Shyam Sunder and Others it held that it is
well settled principle of interpretation of statute that conferment of rule-making power of the
act does not allow the rule making authority to build the rule which goes beyond the scope of
enabling act or which is inconsistent.

Rule 16(2) states that the Secretary of the Ministry of Information and Broadcasting may, in
case of emergency 28nature, precede an order for blocking the content of such an online
publisher in case of emergency, without giving the publisher a chance for being listened.

Ajoy Kumar Banerjee v Union of India29

There is no vast right of delegation and subordinate legislation cannot go afar the entity and
the scope of the parent Act. If such Rule 15 or Regulation goes beyond what the parent Act
examines, then it becomes ultravires the parent Act.’

THE RULES ARE ULTRA VIRES THE PURVIEW OF THE CONSTITUTION OF

INDICA
23
section 69A empowers Central Government to issue directions to any agency of the Government or
intermediary for blocking for public access of any information through any computer resource if is it is
necessary or expedient so to do
24
Section 79 exempts liability of intermediary in certain cases for any third party information, data, or
communication link made available or hosted by him,on fulfilment of certain conditions
25
Section 2(w) of the Act defines an intemediary with respect to any particular electronic records as to mean
‘any person
 
 
26
Kunj Behari Lal Butail v. State of H.P. (2000) 3 SCC 40
27
Wipro Ltd. v. Assistant Collector Of Customs & Others 2018 ACR121
28
Authorised Officer, in any case of emergency nature, for which no delay is acceptable, shall examine the
relevant content and consider whether it is within the grounds referred to in sub-section (1) of section 69A of
the Act and it is necessary or expedient and justifiable to block such information or part thereof and submit a
specific recommendation in writing to the Secretary, Ministry of Information and Broadcasting. (Rule 16(1
29
1984) 3 SCC 127.

MEMORIAL FOR PETITIONER Page 18

It Rules, 2022 violate Article 14, 19 and 21 of the Constitution of Indica.

Rule 9. Observance and adherence to the Code30-A publisher referred to in rule 8 shall
noticed and adhere to the Code of Ethics laid down in the Appendix annexed to these rules.

 2. Anything contained in these rules, a publisher referred to in rule 8 who step in any law for
the time being in force, shall also be liable for consequential action as provided in such law
which has so been contravened. There shall be three –tier structure 1- self regulation by the
publisher, self-regulation by the self-regulating bodies of the publisher, oversight mechanism
by the central govt.

It is said by the Court in the case of Romesh Thappar31, the movement of ideas through
press media upholds Article 19(1) (a). Like any circumstances, the era of digital media can be
looked at in two ways- as a blessing or as a boon. it can concluded that when restriction is
placed on freedom of speech and expression, they have to be reasonable restrictions and
further the should be allowed Art.19(2) ground such as disclosure purpose as mentioned in
rule 16 is not a ground under Article 19(2) and the court should bash down this rule. Under
section 7 if for any particular cause the intermediate does not follow the rules the section 791
of the IT Act 2000 which guarantee is the immunity of the intermediary also known as the
safe Harbour provisions becomes nullified and hands taken face action under the IPC 1860
because of this reason the intermediate is left at the pity of the Government and has to act as
its puppet and an order to continue to receive this immunity it has to listen to the government
is an every order and hand out are private information to them leaving a data and privacy
address this causes a violation of an individual’s right to privacy Violation of Article 50
Article 50 highlights the separation of powers between the legislature and the executive. It
declared that the right to privacy fell under the ambit of Article 21 in the case of  Justice
K.Puttaswamy (Retd.) and Anr. v. Union of India32 From Section 3(j) of the rules we see
that no actual autonomy given is to the intermediary, as on receiving the Government’s
orders in writing, they are required to hand over personal information of the users and their
data violating their rights to privacy with in 72 hr  

  Kesavananda Bharati v. State of Kerala1973) as well as inIndira Nehru Gandhi v. Shri

Raj Narain & Anr33., the Court accepted that if any rule is begin to be in violation of the
basic structure doctrine of the Constitution, it required to be removed .it will present with the
rule under section 3(d) that the executive might take the benefit of the court and use this
power to pass such order further their own cause. . Further part III furnished the executive
with overboard prohibition of online speech and burder some adjudication mechanism
without judicial recourse. Rules 3(2) (b) and 4(4) provides for identification and removal of
content which is assigned to private party. It requires intermediaries use technology-based
measure. The impugned Rules are further vague, arbitrary and violate of Article 14 and will
have a chilling effect.
30
information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
 
31
(1950) AIR 124
32
K. pttaswamy anr. V.union of india
33
Keshwanand bharti case v. state of kerela

MEMORIAL FOR PETITIONER Page 19

 PRAYER

MEMORIAL FOR PETITIONER Page 20

Wherefore, in light of the facts stated, issues raised, authorities cited & arguments advanced,
it is most humbly and respectfully prayed before this Hon’ble court to:

1. Hold the present petitions as maintainable.

2. Hold that the petitioners do not need to obtain certification from the Central Board of Film
Certification, and quash the notices issued by the CBFC.

3. Hold that the FIR is liable to be quashed.

4. Holds the It rule is constitutional valid

And pass any order that is deemed fit in the interest of justice, equity and good conscience for
which the petitioners will be forever obliged. All of which is respectfully submitted.

MEMORIAL FOR PETITIONER Page 21