Hpnlu Petitioner

3RD HPNLU NATIONAL MOOT COURT COMPETITION
Team Code: TC-320P

3RD HPNLU NATIONAL MOOT COURT
COMPETITION, 2022
BEFORE THE HON’BLE SUPREME COURT OF INDICA
WRIT PETITION UNDER ARTICLE 32 OF CONSTITUTION OF

INDICA, 1950.
In the matter of
ABHILASHINI (NGO) & ORS.

(Petitioners)
V.
UNION OF INDICA & ANR.

(Respondents)
CIVIL APPELEATE WRIT JURISDICTION
PUBLIC INTEREST LITIGATION

DRAWN AND FILED BY THE COUNSEL APPEARING ON THE BEHALF OF
PETITIONER
Memorandum on the behalf of Petitioner Page 1

TABLE OF CONTENTS
 STATEMENT OF FACTS ………………………………….………………...............3

 STATEMENT OF JURISDICTION…………………………………………………..4
 ISSUES RAISED... …………………………………………………………...............5
 SUMMARY OF ARGUMENTS ……………………………………………………..6
ARGUMENTS ADVANCED 7-24

ISSUE1. WHETHER THE XATALI COMMUNITY MEMBERS (MANAGEMENT
AND REGULATION OF CONDUCT) ACT, 2022 IS ULTRA VIRES THE
CONSTITUTION OF INDICA?
ISSUE2. WHETHER THERE IS A HIERACHICAL SCHEME IN THE IDEA OF

FUNDAMENTAL RIGHTS?
ISSUE3. WHETHER THE AUTHOR’S RIGHT TO FREEDOM AND SPEECH AND

EXPRESSION VIOLATES THE GENERAL STANDARS OF MORALITY AND
DECENCY ESTABLISHED BY THE COMMUNITY?

EXPRESSION BE CURTAILED ON THE GROUND THAT IT IS VIOLATIVE OF
THE RELIGIOUS SENTIMENTS OF A PARTICULAR COMMUNITY?
ISSUE5. WHETHER THE RIGHT TO ACCESS TO THE INTERNET IS A

FUNDAMENTAL RIGHT UNDER ARTICLE 21 OF INDICA?

ISSUE6. WHETHER THE 2019 AMENDMENT TO THE UNLAWFUL ACTIVITIES

(PREVENTION) AMENDMNET ACT, 2019 IS MANIFESTLY ARBITARY AND
VIOLATIVE OF ARTICLE 14 ABD ARTICLE 21 OF THE CONSTITUTION OF
INDICA?
PRAYER 25
LIST OF ABBREVIATIONS
AIR All India Reporter

All. Allahabad High Court
Anr. Another
An Andhra Pradesh
Bom Bombay
Cal Calcutta High Court
SMA Special Marriage Act
LGBTQI Lesbian, Gay, Bisexual,
Transgender, Queer and
Inter sex
Cir. Circular
EC European Cases
Ed. Edition
EU European Union
i.e. That is
ILR International Law
Reports
J&K Jammu & Kashmir
Mad Madras High Court
Nag Nagpur
No. Number
Ors. Others
Pat Patna High Court
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec./S. Section
v. Versus
WB West Bengal
www. World Wide Web

INDEX OF AUTHORITIES
LIST OF STATUES:
 Constitution of India, 1950.
 Indian Penal Code, 1860.
 The Medical Termination of Pregnancy Act, 1971
LIST OF BOOKS
 Ratanlal & Dhirajlal, The law of evidence, 27th Edition (2020).
 D. J. De, Constitution of India, 2nd Edition.
 Durga Das Basu, Commentary on the- Constitution of India, 8th Edition (2008).
 P. K. Majumdar & R. P. Kataria, Commentary on the- Constitution of India, 11th
Edition.
 Rattanlai & Dhirajlaal, The Indian Penal Code 1860, 32nd Enlarged Edition (2013).
 Kumud Desai, Indian law of Marriage and Divorce, 10th Edition (2017).
LIST OF DICTIONARY
 Black, H.C., Black`s Law Dictionary, 7th Edition (1999)
 Oxford, Advance Learner`s Dictionary, 6th Edition. 2006
JOURNALS REFFERED
 ALL INDIA REPORTER
 CRIMINAL LAW JOURNAL
 LAW REPORTER
 SUPREMECOURT CASES
INTERNET SOURCES
 www.scconline.com
 www.barandbech.com
 www.livelaw.com

 www.indiakanoon.com
 www.casemine.com
STATEMENT OF FACTS
BACKGROUND FACTS
1. That Marwadan is a 23-year-old student studying at a premier law institute called Jatala
Global Law School and is based in the state of Jatala in the country of Indica. He is a well-
reputed poet, who belongs to the religious community Xatalism. He has published many
poetic works in Hindi and publishes his work through both, offline and online mediums. His
poetic work has always been a source of inspiration for the masses attracting a huge fan
following on his social media pages.
2. That Marwadan has recently published a story in poetic form from Subahvani Prakashan.
In one of the verses, he characterised the beauty of a woman of a fictional character by
describing her body parts. He also went on to describe in one of the verses about the sexual
act in which the woman in character participated with her paramour.
PETITION BY NGO ABHILASHINI

3. That one NGO named Abhilashini, working for the empowerment of women in the state of
Jatala, found the poem objectionable on several grounds. The head of the NGO, Ms.
Chitrakala, when approached for a statement said that “We should collectively remove such
mental waste from our society; this is against Indica’s sanskar”. Pursuant to this, the NGO
filed a writ petition before the High Court of Jatala, a State in the Republic of Indica, to pass
a writ restricting the publication of that poem.
4. That the NGO argued before the High Court that the story depicted in the poetic expression
is an unreasonable exercise of freedom of speech and expression. Such a form of expression
is lascivious and creates prurient interest in the mind of the reader. This poem may deprave
and

corrupt the mind of possible readers; she also stated that if such material is allowed to fall
into the hands of the young and vulnerable generation it will result in a moral hazard. Further,
it was argued by the NGO that the poem is obscene; hence, it is an offence punishable under
Section 292 of the Indica Penal Code, 1860 (IPC).
CONSEQUENTLY, UAPA AND INTERNET BAN

5. That In the meanwhile, this issue garnered attention from both national and international
media. This resulted in widespread criticism of the government and heated debates on several
online platforms. Sensing the alarming situation, the Union government issued directions to
block public access to the poem by taking it down from all social media platforms.
6. That parallelly, multiple protests broke out in various parts of the state of Jatala, where
people were agitating for the arrest of Marwadan. In one such protest, things escalated in a
precarious manner and the protest took the form of a riot. Therein, police were dispatched to
the agitation area, where a group of people used Molotov cocktails against them, which
resulted in several grievous injuries to both the police and people who showed up for the
protest. Sensing the gravity of the situation, the Union government of Indica passed an order
to restrict the internet in the state of Jatala, citing the law and order situation in the state.
Further, the investigating agencies also identified Mr. Michael Joseph as the one to have
thrown the Molotov cocktail and charged him under the Unlawful Activities (Prevention)
Amendment Act, 2019
famously known as UAPA.
7. That against the internet ban, Marwadan contended that it is violative of his freedom of
speech and expression.
PETITIONER APPROCHED THE HIGH COURT

8. That the Xatali Community worships the female goddess in virgin form and the scriptures
of the Xatali religion prohibit any lascivious description of the female body. The religious
practices of the Xatali community have been recognized by the State through the Xatali
Community Members (Management and Regulation of Conduct) Act, 2022. (Annexure-I) A
group of Xatali Community members remarked that the composition by Marwadan is
violative of the provisions of the Act.

9. Thereafter, members of the Xatali Community approached the High Court of Jatala,
claiming that Marwadan should be prosecuted and punished as per the Act of 2022. The three
petitions were clubbed by the High Court of Jatala.
10. The High Court declined to provide any relief to the NGO or the members of the Xatali
Community on the ground that the author has not exceeded the legitimate domain of
expression allowed by the Constitution. However, the High Court did not interfere in the
religious or the right to access to the internet, or the UAPA aspect of the petition, stating that
the issues raised
important questions of constitutional law that needed to be settled and that the interference of
the highest court was needed.
11. Hence, lies the petition.
STATEMENT OF JURISDICTION
This Honorable Supreme Court of Indica has the jurisdiction to try, adjudicate and entertain
this matter under Art.321 of Constitution of Indica, 1950.
1
(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 clauses (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.

ISSUE RAISED


FUNDAMENTAL RIGHTS?





(PREVENTION) AMENDMENT ACT, 2019 IS MANIFESTLY ARBITARY AND
INDICA?
SUMMARY OF ARGUMENTS

The counsel for the petitioner humbly submits before this honorable court that the instant
issue is maintainable since the petition do have a locus standi to approach the court under the
article 32 of the Miranchi Constitution, as there was violation of the fundamental rights,
making their claim maintainable before this honorable court.

FUNDAMENTAL RIGHTS?
The counsel for the petitioners humbly submits before this Honorable Court that a marriage
doesn’t bring with it the right of a husband to have sexual intercourse without his wife’s
consent. The essence of rape is lack of consent or no consent. That means if a girl is whether
a girl of 15 years or wife above the age of 15 years and they are not consented to build or
come in any sexual relationship, it will amount to rape and should be penalized the same way
as rape.


It is humbly submitted before this Hon’ble Supreme Court that the classification of right to
prosecute a man on the basis of relationship/marriage is unreasonable and offends the Article
14 of the Constitution. Moreover, Exception second violates the right to equality enshrined
in Article 14 in so far as it discriminates against married women by denying them equal
protection from rape and sexual harassment. The Exception creates two classes of men based
on their marital status and immunizes actions perpetrated by men against their wives.

It is humbly submitted before this Hon’ble Supreme Court that the classification of right to
prosecute a man on the basis of relationship/marriage is unreasonable and offends the Article
14 of the Constitution. Moreover, Exception second violates the right to equality enshrined
in Article 14 in so far as it discriminates against married women by denying them equal
protection from rape and sexual harassment. The Exception creates two classes of men based
on their marital status and immunizes actions perpetrated by men against their wives.

It is humbly submitted before this honorable court that striking off the exception II OF S.375
would amount to creation of new offence. Women so far have had recourse only to section
498-A of the MPC, dealing with cruelty, to protect themselves against "perverse sexual
conduct by the husband". But, does marriage give a license to rape? The answer is no and it is
the need of hour to criminalize the marital rape.

INDICA?

ARGUMENTS ADVANCED

The counsel for the petitioner humbly submits before this hon’ble court that the Xatali
community members (management and regulation of conduct) act, 2022 is not ultra vires the
constitution of Indica.
It is humbly submitted before this Hon’ble Court by the counsel on the behalf on petitioner
that the present act is rightfully intra vires and completely within the domain of the
constitution of Indica.
I.1. The Xatali community members (management and regulation of conduct) Act, 2022
is Intra Vires
Intra-vires means “within the powers” and Ultra-vires means “beyond the powers”. The
power to make laws, rules, and regulations and to legislate; are conferred with the legislative
body. Over the years, the state functions have undergone many changes in the aspects of
quantity and quality.
Further, if in any case, the discretionary power is exceeded then it will be considered as ultra
vires. If the subordinate legislation falls outside the purview of the power conferred, then it is

ultra vires to the constitution. If the action of the delegated legislation body affects the
fundamental rights guaranteed to the people, then it is said to be ultra vires to the constitution.
Ultra vires is an error apparent on the face of the record. The lack of jurisdiction of any
delegated body forms the error on record. Some of the elements which are present in an ultra
vires act:
 Error or excess of Initial jurisdiction

 Error or loss of jurisdiction on the way of proceedings or in the pending proceedings
 Mala fide intention or improper motive
 Mixed consideration or irrelevant considerations
 An error apparent on the face of the record
However, that is not the case in the present issue, the act does not meet any of these elements
as the application of the doctrine interprets powers conferred in broad language usually .
Ordinarily, the Courts interpret the enabling provision rather broadly. The courts adopt a
deferential, rather than a critical, attitude towards delegated legislation. In India, the test of
reasonableness is applicable to delegated legislation, both on general principles of
administrative law as well as under such fundamental rights as are guaranteed under
Constitution of India.
Moreover, the Act is completely under the purview of fundamental rights and constitution of
Indica. The Xatali Community being a religious community has not claimed any ultra vires
rights and the act rightfully discusses morality and principles prevailing to be under the
purview of laws of Indica. Justice Iqbal Ahmed in Mt. Atiqa Begam And Anr. vs Abdul
Maghni Khan And Ors.2 observed that I have now got to see whether the appellant is right in
his contention that the Act is ultra vires or whether the Advocate-General is right in his
contention that the Act is intra vires. I may mention at the very outset that, although the Act
received the assent of the Governor of the United Provinces, it did not receive the sanction of
the Governor-General of India. It may also be taken for granted that Courts should have a
leaning towards holding an enactment intra vires rather than ultra vires. The presumption
should therefore be against the invalidity of an Act. This has been held in a number of cases,
2
AIR 1940 All 272

but I might refer only to the case in D'Emden v. Peddar (1904) 1 C LR 91 at p. 119, where
Griffith C.J. remarked:
“It is, in our opinion, a sound principle of construction that Acts of a sovereign Legislature,
and indeed of subordinate Legislatures, such as a Municipal authority, should, if possible,
receive such an interpretation as will make them operative and not inoperative.”
I.2. Doctrine of Pith and Substance
In order to decide questions as to the vires of statutes passed by the Indian legislatures under
the Government of India Act, 1935 are based on the principles laid down in the cases,
Ontario, Attorney-General for Alberta v. AttorneyGeneral for Canada, and Board of
Trustees of Letherbridge Northern Irrigation District v. Independent Order of Foresters. In
Subrahmanyan Chettiar v. Muttuswami Goundan, the question was as to whether the
Madras Agriculturalist' Relief Act IV of 1938, which was within the exclusive competence of
the Provincial Legislature under Entries 20 and 21 in List 11 was ultra vires, in so far as it
related to promissory notes executed by agriculturists by reason of the fact that under Entry
28, List I, "cheques, bills of exchange, promissory notes and other like instruments " were
matters falling within the exclusive jurisdiction of the Centre. In holding that the legislation
was intra vires, Sir Maurice Gwyer C. J. stated the reason in these terms:
" It must inevitably happen from time to time that legislation, though purporting to deal with
a subject in one list, touches also on a subject in another list, and the different provisions of
the enactment may be so closely intertwined that blind adherence to a strictly verbal
interpretation would result in a large number of statutes being declared invalid because the
Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule
which has been evolved by the Judicial Committee whereby the impugned statute is
examined to ascertain its ' pith and substance' or its 'true nature and character', for the purpose
of determining whether it is legislation in respect of matters in this list or in that............"
While the term ‘Pith’ implies genuine nature or essence of anything, ‘Substance’ indicates the
most important or vital aspect of something, to break down the concept to its molecular
meanings. The state and union legislatures are made supreme within their respective areas,

and they should not intrude on the sphere delimited for the other, according to the doctrine’s
interpretation.
In the case of Zameer Ahmed Latifur Rehman Sheikh v. the State of Maharashtra and Ors.
(2010), the notion of pith and substance was effectively articulated. The doctrine, according
to the Court, should be used when the legislature’s legislative power in relation to a certain
statute is called into doubt. If there was a challenge to the legislature’s capacity, the court
would assess the law’s gist and content after the Act had been scrutinised. It is critical for the
courts to evaluate the real character of the legislation, its goal, scope, and impact, as well as
to determine if the law in issue was genuinely covered by a subject matter listed in the
legislature’s concerned list.
I.3. Doctrine of ancillary or incidental encroachment
The idea of ancillary and incidental powers broadens the legislative power’s scope. It
specifies that the authority to legislate includes the ability to legislate on supplementary or
incidental subjects. These abilities are intended to assist the primary goal of the enactment in
question. This concept allows for a broad and liberal reading of the items in the three
legislative lists. The doctrine of ancillary or incidental powers is utilised to determine the
legislative authorities’ goals and scope. The ability to legislate on incidental and
supplementary topics aids in the extension of these powers.
The question in R. D. Joshi v. Ajit Mills (1977) was whether the State legislature had the
authority to adopt a statute allowing it to forfeit the sales tax received by dealers. The Court
ruled that this was a punitive measure to ensure that social policy was properly and
effectively enforced. It further said that the entries must be given a broad interpretation in
order to include ancillary and incidental capabilities.
The doctrine of pith and substance comes into play whenever a law is deemed to be intruding
or trespassing into an area whose legislation has been allocated to another. The essence of the
theory is that if a dispute arises about whether a certain law applies to a specific subject
(which would be listed in one of the lists under the 7th Schedule), the court, in deciding such
questions, examines the content of the case.
Finally, the counsel submits that the act regulating the guidelines of Xatali community is
constitutional and completely under the realm of right to religion.


FUNDAMENTAL RIGHTS?
The counsel for the petitioner humbly submits before this Honorable Court that there does not
exist a hierarchical scheme in the idea of Fundamental Rights. Freedom of speech cannot be
on higher pedestal than other fundamental rights.
II.1. RIGHT TO REPUTATION VS RIGHT TO FREEDOM OF SPEECH
It is humbly submitted that the right to reputation and the right to free speech often clash with
each other for the reason that right to free speech of an individual may violate the right to
reputation of another individual.
Whenever a person intentionally makes or publishes such imputations about an individual

which causes harm to his/her reputation, then it amounts to the infringement of the right to
reputation of the individual. The Supreme Court has time and again addressed the conflict
between both the rights and has emphasised on the need of balancing the right to free speech
under Article 19(1)(a) with the right to reputation under Article 21 of the Constitution.
In the recent judgment of Subramanian Swamy v. Union of India, the apex court held that the
reputation of an individual is a basic element under Article 21 of the Constitution and
balancing of fundamental rights is a constitutional necessity. Right to free speech does not
give a right to an individual to defame others. The citizens have a correlative duty of not
interfering with the liberty of other individuals since everybody has a right to reputation and
right to live with dignity.
Further, the court held that it is the duty of the State to regulate the freedom of speech and
expression and to ensure that the citizens do not make defamatory speeches. Existence of
Section 499 of the Indian Penal Code, 1860 is not a restriction on the freedom of speech and
expression because it ensures that the social interest is served by holding a reputation as a
shared value of the public at large. Therefore, it is essential to keep Section 499 (Criminal
Defamation) of the Indian Penal Code, 1860 alive in order to protect the reputation of
individuals.

Further, in the case of Re Noise Pollution, the Supreme Court while addressing the conflict
between both the rights, observed that Article 19(1)(a) cannot be pressed into service for
defeating the fundamental right under Article 21 of the Constitution.
Furthermore, the Delhi High Court recently banned the publication and sale of the book
named ‘Godman to Tycoon: The Untold Story of Baba Ramdev’ on the grounds that the book
was defamatory towards Baba Ramdev and thus, violative of the right to reputation under
Article 21 of the Constitution. The Court, further, observed that the right to reputation of an
individual cannot be crucified at the altar of somebody’s right to free speech. Harmonization
between both the rights has to be made since no amount can redeem the loss suffered due to
the adverse impact on an individual’s reputation.
The right to free speech and the right to reputation are two fundamental rights which often
conflict with each other due to their overlapping nature. Both the rights have been recognised
as an integral part not only by the Constitution of India but by various international
conventions as well. While a person has a right to live a dignified life, people have a right to
freely express their views and opinions at the same time. The court has time and again
emphasized the need for balancing both the rights as has been discussed above. However, the
right to free speech has been reasonably restricted for the protection of the right to reputation,

EXPRESSION VIOLATES THE GENERAL STANDARDS OF MORALITY AND
It is humbly submitted before this Hon’ble Supreme Court that the author’s right to freedom
of speech and expression violates the general standards of morality and decency established
by the community.
The way to express something or to say something should be a decent one. It should not
affect the morality of society adversely. Our constitution has taken care of this view and
inserted decency and morality as a ground.

Decency and morality section 292 to 294 of the Indian Penal Code provide instances of
restrictions on the freedom of speech and expression on the grounds of decency and morality,
it prohibits the sale or distribution or exhibition of obscene words. The standard of morality
changes with changing times. Supreme Court in RanjitD. Udeshi v. State of
Maharashtra (AIR 1965 SC 881)upheld the conviction of a book seller who was prosecuted
under Section 292, I.P.C., for selling and keeping the bookLady Chatterley's Lover.
III.1. Article 19 (2) and Bal Thackeray Case
It is humbly submitted that the Article 19 (2) of the Indian constitution imposes certain
restrictions on free speech under the following heads:
1. security of the State,
2. Friendly relations with foreign states
3. Public order,
4. Decency and morality,
5. contempt of court,
6. Defamation,
7. Incitement to an offense, and
8. Sovereignty and integrity of India.
Therefore, the word decency in Article 19(2) is often run together with morality, forming the
compendious term, decency or morality. Since judicial discussion tends to focus on the
meaning of morality (see, for instance, our previous analysis of the Ranjit Udeshi case, the
word decency tends to get subsumed within the meaning of morality. Bal Thackrey case is,
however, a notable exception, and deserves close scrutiny.
S. 123(3) of the Representation of Peoples Act prohibited a person from appealing for votes
on the basis of his religion, race, caste, community or language. In the Bal Thackeray Case, it
was argued that S. 123(3) violated Article 19(1)(a), and was constitutional only if the said
appeal was directly prejudicial to public order, as envisaged by Article 19(2). The Court

rejected this contention. Naturally, then, S. 123(3) was either unconstitutional or saved by
another head under Article 19(2). The Court settled upon the latter course and chose decency.
Rejecting the appellant's argument that the phrase decency or morality was limited to sexual
morality, the Court held:
“The ordinary dictionary meaning of decency' indicates that the action must be in conformity
with the current standards of behavior or propriety, etc. In a secular polity, the requirement of
correct behavior or propriety is that an appeal for votes should not be made on the ground of
the candidate's religion which by itself is no index of the suitability of a candidate for
membership of the house.”
Certain extracts from the alleged speeches of Bal Thackeray, translated in English, are
expressly pleaded in the election petition, as under:
From Speech of 29.11.1987 "We are fighting this election for the protection of Hinduism.
Therefore, we do not care for the votes of the Muslims. This country belongs to Hindus and
will remain so."
From Speech of 9.12.1987 "Hinduism will triumph in this election and we must become
hon'ble recipients of this victory to ward off the danger on Hinduism, elect Ramesh Prabhoo
to join with Chhagan Bhujbal who is already there. You will find Hindu temples underneath
if all the mosques are dugout. Anybody who stands against the Hindus should be showed or
worshipped with shoes. A candidate by name Prabhoo should be led to victory in the name of
religion."
From Speech of 10.12.1987 "We have gone with the ideology of Hinduism. Shiv Sena will
implement this ideology. Though this country belongs to Hindus, Ram and Krishna are
insulted. (They) valued the Muslim votes more than your votes: we do not want the Muslim
votes. A snake-like Shahabuddin is sitting in the Janata Party, a man like Nihal Ahmed is also
in Janata Party. So the residents of Vile Parle should bury this party (Janata Party)."
The Court went on to add:

The fact that the scheme of separate electorates was rejected in framing the Constitution and
secularism is the creed adopted in the Constitutional scheme are relevant considerations to
treat this as a reasonable restriction on the freedom of speech and expression, for maintaining
the standard of behavior required in conformity with the decency and propriety of the societal
norms. (Paragraph 31)
These observations are crucial. Recall that in our discussions of Ranjit Udeshi (here, here and
here), we had found that much turns upon what, precisely, “morality” means in Article 19(2).
For reasons both textual and philosophical, I had argued that the Court was mistaken in
equating “morality” with either “public morality” or “individual morality”; and that, in the
alternative, the best interpretation was reading it to mean “constitutional morality“, that is, the
moral principles espoused by the Constitution as a whole, and not those of a shifting,
transient majority. In Bal Thackeray, the Court clearly accepted such a reading of the word
“decency”. Because obviously, if decency means “public decency”, or the standards of
decency maintained by a present majority, then it makes no sense to curtail election speeches
on the grounds of decency, because – and this much, at least, is uncontroversial – the ballot
box is, at present, one of the – if not the – most effective way of gauging public opinion. If I
appeal to my religion to gain votes, and I do succeed in persuading the majority to vote for
me, then it cannot really be argued that the public considers such an appeal contrary to
decency.
The argument is buttressed by the specific observations of the Court. In Paragraph 29, it
defines acceptable behaviour in the context of a secular polity. A secular polity, however, is
not a matter of public opinion – it is a constitutional commitment, and has been repeatedly
held to be part of the basic structure of the Constitution. In paragraph 31, the Court makes it
explicit, holding that secularism is part of the constitutional scheme. Thus, the Court derives
its meaning of decency not from a vague reference to public standards, but by directly
invoking the philosophy of our Constitution.
This has important ramifications. Consider again, the phrase 19(2) phrase, “public order,
decency or morality“. In our discussions on Udeshi, we asked whether the word “public”
qualifies only “order”, or all three words, “order”, “decency” and “morality”. Clearly, both
interpretations are grammatically unexceptionable. But if, per Bal Thackeray, “decency”

means “constitutional decency”, then “public” doesn’t qualify “decency” after all. And if that
is the case, then it would be grammatically absurd for it to quality “order” and “morality”, but
not “decency”. Therefore, it is a necessary implication of the Bal Thackeray decision that the
morality referred to in Article 19(2) is not public morality.
Regretfully, however, the Court’s overall jurisprudence in this area remains a tangled knot. In
Odyssey Communications v. Lokvidayan Sanghatana (1988), the Court blithely employed the
phrase “public morality”, without any argument. In Bobby Art International v. Om Pal Singh
Hoon (1996), the case about the screening of The Bandit Queen, the Court allowed the
screening of the film, including scenes of rape and frontal nudity, because it found on fact
that the impugned scenes advanced the message of the film, and were not designed to
“titillate the cinema-goer’s lust“. (Paragraph 30). Since the Court declined to expound upon
the particular harm caused to self or others by this “titillating of lust”, we must assume that
this is a case of legal moralism (see the analysis of Udeshi), predicated upon reading
“morality” in Article 19(2) as referring to “individual morality”, with the Court taking upon
itself the role of protecting individual morals from depravity. On the other hand, in Ajay
Goswami v. Union of India (2007) the Court, dealing with an obscenity case, after citing a
bewildering array of tests, from “Hicklin” to “clear and present danger”, from “ordinary
man” to “contemporary standards”, finally affirmed both a harm standard and a violation of
morality standard within the same paragraph! (paragraph 44) And most recently, in S.
Khushboo v. Kanniammal (2010) the question arose whether criminal proceedings against an
actress who called for social acceptance for pre-marital sex in live-in relationships, could be
sustained. It was argued that public morality was strongly supportive of limiting sexual
intercourse to the marital relationship, and that such statements would lead to “deviant
behaviour which would adversely affect public notions of morality.” (Paragraph 10) While
the Court accepted the present state of the law on obscenity (which, it would seem,
astonishingly enough, is still the Victorian-era Hicklin Test), it also observed:
“Notions of social morality are inherently subjective and the criminal law cannot be used as a
means to unduly interfere with the domain of personal autonomy.” (Paragraph 29)
The Court noted that those who viewed her remarks as an attack upon the centrality of the
institution of marriage had every freedom to contest their merit through the existing channels

of free speech, such as the media. This was precisely how dialogue and discussion took place
in a democracy, “wherein people can choose to either defend or question the existing social
mores.” (Paragraph 18)
And:
“An expression of opinion in favour of non-dogmatic and non- conventional morality has to
be tolerated as the same cannot be a ground to penalise the author.” (Paragraph 30)
Assuming - reasonably - that: conventional morality and public morality refer to the the
same idea, it is clear, on a combined reading of the three observations of the Court, that
preservation of public morality is not, after all, in itself, a ground for restricting free speech!
Of course, the issue is more complicated, since the Court was undoubtedly influenced by the
fact that the case was not about a pornographic film that depicted sex, but about a statement
in a newspaper.
Yet is there a principled difference between an influential actress persuading people about the
the desirability of pre-marital sex by making a statement, and a pornographic film doing the
same by depicting it? If there is, the Court did not attempt to explicate it.
III.2. Challenging constitutional validity on the basis Fundamental Rights of the

constitution.
The Exception II of Section 375 read with S.376 of MPC and 198B of Cr.P.C, is violative of
fundamental rights in the constitution. It is humbly submitted that it is clearly mention in the
Article 21 3of the Constitution of India, 1950 that, “No person shall be deprived of his life or
personal liberty except according to procedure established by law.” However, the exception
second of the section 375 of IPC says that “Sexual intercourse or sexual acts by a man with
his own wife, the wife not being under fifteen years of age, is not rape.”
It is humbly submitted that a man cannot be guilty of rape on his own wife when she is over
the age of fifteen years, on account of the matrimonial consent she has given which she
3
India Constitution. art. 21.

cannot retract. But he has no right to enjoy her person without regard to the question of safety
to her as per the provisions of the Constitution.
It is humbly submitted that despite the prevalence of a conservative society in most of the
parts of the country the Constitution of India guarantees right to equality and prohibition of
discrimination against women. Justice, liberty and equality are the main objectives, as
enshrined in the preamble to the Constitution of India. But the Exception second 4 violates
these rights for the woman as wife. Furthermore, In case of The State of Karnataka v.
Krishnappa5, the Supreme Court held that “sexual violence apart from being a dehumanizing
act is an unlawful intrusion of the right to privacy and sanctity of a female.
Moreover, In Suchita Srivastava v. Chandigarh Administration6, the Supreme Court equated
the right to make choices related to sexual activity with rights to personal liberty, privacy,
dignity, and bodily integrity under Article 21 of the Constitution.
It is humbly submitted that in the landmark case of Justice K.S. Puttuswamy (Retd.) v.
Union of India7, the Supreme Court recognized the right to privacy as a fundamental right of
all citizens and held that the right to privacy includes “decisional privacy reflected by an
ability to make intimate decisions primarily consisting of one’s sexual or procreative nature
and decisions in respect of intimate relations 8 .Forced sexual cohabitation is a violation of
that fundamental right. Additionally, Exception II violates Article 21’s right to live a healthy
and dignified life. As mentioned above, it is well settled that the “right to life” envisaged in
Article 21 is not merely a right to exist. For example, there can be no dispute that every
citizen of India has the right to receive healthcare or that the state is required to provide for
the health of its constituents9.
It is humbly submitted that in this vein, the courts have repeatedly held that the “right to life”
encompasses a right to live with human dignity 10 Yet the very existence of Exception second,
4
Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is
not rape
5
The State of Karnataka v. Krishnappa, (2000) 4 SCC 75 (India).
6
Suchita Srivastava v. Chandigarh Administration, (2008) 14 SCR 989 (India)
7
WRIT PETITION (CIVIL) NO 494 OF 2012
8
Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161 (India).
9
Regional Director ESI Corpn v. Francis de Costa, 1993 Supp (4) SCC 100; 5 D.D. Basu, Commentary on the
Constitution of India, 4711 (LexisNexis 2015).
10
C.E.S.C. Ltd. v. Subhash Chandra, (1992) 1 SCC 441 (India).

which fails to deter husbands from engaging in acts of forced sexual contact with their wives,
adversely affects the physical and mental health of women and undermines their ability to
live with dignity.
Furthermore, In Maneka Gandhi vs Union of India11, Justice Bhagwati famously described

that the term ―personal liberty and held that personal liberty cannot be interfered unless
there is a procedure established by law. However, the law must go through the golden
triangle of article 14, 19, 21 which requires the law to be fair, reasonable & not arbitrary.
Moreover, in the landmark case of Vishakha and othrs v. State of Rajasthan 12the Supreme
Court extended this right of privacy in working environments also. Further, along a similar
line we can translate that there exists a right of privacy to go into a sexual relationship even
inside a marriage. Subsequently by decriminalizing rape inside a marriage, the marital
exception teaching damages this right of privacy of wedded lady and is consequently is
illegal.
It was held in many cases like In case of Kharak Singh v. State of U.P13, Article 21 also
protects the right of sexual privacy, which is the most important aspect of marital rape, which
is also constitutionally protected under Article 21. Thus, in other words, if a woman is
subjected to forced sex, then it will be considered as a violation of her sexual privacy. This
right should not be removed just because the woman is married.
Thus, withholding justice and denying equal protection for preserving marriages, at best, can
be an improper goal of law. The law should not encourage forced cohabitation and should not
protect a raping husband.

11
AIR 1978 SC 597
12
1997 6 SCC 241
13
AIR 1963 SC 1295

It is humbly submitted before this Hon’ble Supreme Court that author’s right to freedom and
speech and expression can be curtailed on the ground that it violative of religious sentiments
of particular community.
Article 19(1) (a) of the Constitution of India states that, all citizens shall have the right to
freedom of speech and expression. The philosophy behind this Article lies in the Preamble of
the Constitution, where a solemn resolve is made to secure to all its citizen, liberty of thought
and expression. The exercise of this right is, however, subject to reasonable restrictions for
certain purposes being imposed under Article 19(2) of the Constitution of India.
The Right to Freedom of Speech and Expression is a Fundamental Right given by Article 19 ,
but this is not an absolute right, and it is subject to some restrictions as mentioned in Article
19(2). The Freedom of Expression enables one to express one’s own voices as well as those
of others, but the freedom of the press must be subject to those restriction which apply to the
freedom of speech and expression. You are not free to say anything ,which will harm interest
of the country, raise religious disputes and differences among religions. The restriction
mentioned are defamation, contempt of the court, decency or morality, security of the state,
friendly relationship between India with other country, incitement for an offence, public order
and maintenance of the sovereignty and integrity of India.
III.1. Public Order
his ground was added by the Constitution (First Amendment) Act, 1951 in order to meet the
situation arising from the Supreme Court's decision in Romesh Thapar's, case (AIR 1950
SC 124). As per hon'ble Supreme court, public order is different from law and order and
security of state [Kishori Mohan v. State of West Bengal]. The expression 'public order'
connotes the sense of public peace, safety and tranquillity.
Anything that disturbs public peace disturbs public order [Om Prakash v. Emperor, AIR
1948 Nag, 199].But mere criticism of the government does not necessarily disturb public
order. A law, which punishes the deliberate utterances hurting the religious feelings of any
class has been held to be valid and reasonable restriction aimed to maintaining the public
order.

The apex court’s interpretation in the case of Rangila Rasool, he was a tract brought out by a
Hindu publisher — that had made disparaging remarks about the Prophet’s private life. Cases
against the first pamphlet, filed under Section 153A, were dismissed by the Punjab and
Haryana High Court, which examined the question whether targeting religious figures is
different from targeting religions. This debate in interpretation prompted the colonial
government to enact. Section 295A with a wider scope to address these issues.
Section 123 (3-A), representation of people’s act, 1951 which declares promotion of or
attempts to promote feeling of enemities or hatred between different classes of citizens of
citizens or grounds of religion, rece, etc. as corrupt practice in elections has also been
justified on the ground of public order in the case of Ramesh Yeshwant Prabhoo v.
Prabhakar Kashinath kunte.14
According to the European Court of Human Rights it must be possible, in a democratic

society, to criticise religious ideas, even if such criticism may be perceived by some as
hurtful to their religious feelings. Freedom of expression as guaranteed by Article 10 of the
European Convention on Human Rights covers not only information or ideas that are
favorably received or regarded as inoffensive or as a matter of indifference, but also those
that shock, offend or disturb. Religious groups must tolerate critical public statements and
debate about their activities, teachings and beliefs, provided that such criticism does not
amount to incitement to religious hatred and does not constitute incitement to disturb the
public peace or to discriminate against adherents of a particular religion. Whoever exercises
his freedom of expression undertakes "duties and responsibilities". Amongst them - in the
context of religious opinions and beliefs - may legitimately be included an obligation to avoid
as far as possible expressions that are gratuitously offensive to others and which do not
contribute to any form of public debate.

14
(1996) 1 SCC 130

It is humbly submitted before this honorable court that the right to access to the internet is a
fundamental right under Article 21 of Indica. The meaningful exercise of the right to freedom
of speech and expression over the medium of internet is dependent, invariably and
inextricably, upon the access to the available infrastructure. Infrastructure in turn depends
upon social and economic factors such as the distribution of resources; the policies of the
State and its intervention in the nature of regulation of resources.
Internet plays a key role in the development of an economy as we are living in an era where
Internet is an essential part of individual life. In Anuradha Bhasin vs. Union of India and
Ors. The Apex Court held that freedom to practice any profession or carry on any trade,
business or occupation over the medium of internet enjoys Constitutional protection and
therefore is indispensable to Article 19 of the Constitution subject to reasonable restrictions.
Suspending Internet service not only obstruct conducting businesses online rather it also
obstructs an individual from their source of livelihood, even in case of emergencies
Fundamental Right given under Article 21 of the Constitution of India cannot be taken away.
As held in Maneka Gandhi vs. Union of India a law denying an individual of personal
liberty' must stand up the scrutiny of Article 21, Article 19, and Article 14 which are the
Golden Triangle of the Constitution of India and therefore are essential Human Rights.
Human Rights Council of United Nations General Assembly and various other countries like
Spain, Costa Rico, Finland, France, the European Union, Estonia, and Greece had declared
Internet Access a Basic Human Right. Rights conferred under Article 14, and Article 21 is
the absolute fundamental rights which cannot be curtailed. Hence, Internet Access comes
under the parameter of the Golden Triangle.
The petitioner contends to have the freedom to speak and express oneself, then one must also
have the necessary means and avenues to echo the same. An economic and social
precondition, lurking in the backdrop, to the exercise of the right under Article 19(1)(a)
assumes significance here. The role of the State in enabling this precondition has been the
subject of much debate in our country and more so in the United States under their First
Amendment jurisprudence.
In its recent judgment in Faheema Shirin v. State of Kerala, the High court has recognized
that mobile phones and internet access through it are part and parcel of the day to day life.
The court looked at resolutions adopted by the United Nations Human Rights Council and the

General Assembly which unequivocally point to the fact that how internet access plays a key
role in accessing information and its close link to education and knowledge. The court took
the view that the right to be able to access the internet has been read into the fundamental
right to life and liberty, as well as privacy under Article 21. The court added that it constitutes
an essential part of the infrastructure of freedom of speech and expression.
V.1. INTERNET SHUTDOWN VIOLATIVE OF FREEDOM OF SPEECH

It is humbly submitted before this court that internet shutdowns are violative of Article 19 of
constitution of Indica. Internet shutdown is merely a blanket ban imposed by the state on
access to Internet Service, either mobile or fixed line, and is not only a block on social media,
but it also affects businesses, welfare schemes, education, and impact on Human Rights. In a
developing economy like India shutting down Internet service is like closing all roads for the
development of the economy and even shutting down all the banks at once.
On 4th August 2019, Web shutdown was forced in Jammu and Kashmir when Parliament
revoked Article 370 of the Constitution and the State of J&K was bifurcated into Union
Territory of J&K and Ladakh, prompting 213 days shutdown which was proceeded till fourth
March 2020 bringing about India's longest Internet shutdown.
In a decade there have been 391 Internet Shutdowns all over India resulting in rapid decrease
in the growth of technology, where the government had taken initiated for the growth of IT
sector by starting programs like Digital India which has nine pillars, out of which six are
directly related to Internet access, but suspending internet for such long duration not only
creates a barrier for such programs but also affects rights of citizens. Suspending Internet
Services in one region of the country expeditiously reflects human suffering elsewhere which
also cause an impact on the economy.
In one of the Landmark case,[11] Apex Court held that a law depriving a person of personal
liberty has not only to stand the test of Article 21 but also Article 14 and Article 19 of the
Constitution as well. Article 14, 19 and 21 forms the Golden Triangle and cannot be read in
isolation as they are mutually inclusive. The above-mentioned Articles are of prime
significance and inhale essentialness in the idea of rule of law. The Golden Triangle enables

full security to individuals from any infringement upon their rights, therefore, shutting down
internet services is encroaching individuals' rights.

VIOLATIVE OF ARTICLE 14 AND ARTICLE 21 OF THE CONSTITUTION OF
INDICA?
It is humbly submitted before this hon’ble court by the counsel of petitioner that the 2019
amendment to the unlawful activities (prevention) amendment act, 2019 is manifestly arbitary
and violative of article 14 and article 21 of the constitution of Indica.
It is submitted that the Lack of Substantive and Procedural Due Process under S.35
empowers the government to declare any individual as a terrorist in the Fourth Schedule of
the UAPA. The government can declare and notify based on mere belief, without an elaborate
process.
No fair hearing opportunity has been mandated. The basis on which a person can be declared
a terrorist is vague and unclear: would it be on the filing of an FIR or upon conviction of a
trial court? While S. 36 allowed an individual notified as a terrorist to appeal to the
Government, its operability is difficult. An individual is not informed of the ground for arrest.
There is no provision for oral hearing at the state of appeal.
The Supreme Court in Puttaswamy v Union of India (2017) reiterated that the right to life
and personal liberty could only be curtailed through the due process of law. Sections 35 and
36 fail the due process standard.
The Law is Arbitrary and Violates Equality. The impugned section fails to provide
safeguards against the high potential of discretionary power. While the procedure to declare
an organization a terrorist has substantive safeguards, it is amiss for an individual. With no
clear objective behind the distinction between an organization and an individual, the

treatment of an individual is disproportionate and unreasonable. This does not meet the
‘reasonable classification’ test under Article 14.
Moreover, the lack of fair hearing violated natural justice principle of audi alteram partem or
the rule of fair hearing. Invoking Union of India v Tulsiram Patel, (1985) the petition
contends that violation of natural justice results in arbitrariness and violates Article 14.
The petition further refers to People’s Union for Civil Liberties v Union of India(2004). The
Court had ruled that if human rights are violated in the process of combating terrorism, it will
be self-defeating.
Indirect Infringement to Free Speech as dissent is an integral aspect of the right to free speech
under Article 19(1)(a) as interpreted in Maqbool Fida Hussain v. Rajkumar Pandey, (2008).
The impugned Sections, under the guise of prohibiting terrorism, are aimed to target critical
speech against the government.
The amendment violates the international conventions ratified by India. Specifically, legal
principles under the International Convention on Civil and Political Rights, United Nations
Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms while
Countering Terrorism are violated under the Amendment.
The definition of ‘unlawful activity’ includes ‘disaffection against India’ which does not have
a defined meaning under the Act and can be used to target anyone against whom the
government harbors a grudge to someone who may have a contrary point of view. It is
submitted that ‘unlawful activity’ as a category exists only for the state to quell opposition,
and in that sense is arbitrary and undemocratic.
VI.1. UAPA IS ARBITARY AND UNCONSTITUTIONAL
The petition urges the top court to declare the UAPA unconstitutional on the grounds that it
was manifestly arbitrary and violated Articles 14, 19, and 21 of the Constitution, which
guarantee the rights to equality, freedom of speech, and life and liberty. The counsel for
petitioner submits that the UAPA was a severe violation of the liberties guaranteed by these

articles insofar as it gave the state sweeping authority to take action against groups and
individuals who opposed the ruling party or the majority.
In this petition, it is also submitted that, “The scheme of the Act is a gross assault on the
freedoms protected under Articles 14, 19, and 21 of the Constitution, insofar as it grants
excessive and overwhelming powers to the State to act against associations and individuals
who express criticism against the ruling party or the majoritarian sentiments.”
The petitioners are also concerned about the ambiguity of the term “unlawful activity,” the
“wide net” that the law casts over free speech, and the law’s propensity to include criticism of
the government even though it did not pose a threat to the public order, security, sovereignty,
or integrity of India. They claimed that the law’s total ban on anticipatory bail and the very
impossible task of obtaining normal release under it had a “chilling impact” on the right to
free speech.
That the Petitioners are dismayed by the manner in which the provisions of the UAPA, meant
to control unlawful associations and terrorists organizations, are being misused to stifle free
speech and dissent, and create terror amongst individuals whose social and political thoughts
are not in consonance with those of the government.
That it is further submitted that while the UAPA is not a preventive detention law, having
been enacted to punish unlawful activities and terrorist acts, the stringency of its its
provisions, especially with regard to bail, make it almost akin to a preventive detention law.
However, since it is not a preventive detention law, the protections of Article 22 are not
available. Thus an anomalous situation has been created, where the UAPA, without
authorizing preventive detention, is being used for preventive detention.
Furthermore, the stringent bail provisions contained in the UAPA have created a situation
where merely being accused of a crime under the UAPA is considered sufficient to keep a
person incarcerated, until the lengthy trial process is over. It is submitted this is completely
contrary to all principles of criminal jurisprudence and violates the fundamental right
contained in Article 21. The "prima facie" correctness of untested and unproven allegations,
cannot be the sole reason to deny a person the fundamental rights enshrined in Article 21.

That it is submitted that this loose and almost tautological wording has impacted severely
upon the right to life and liberty of individuals, as the same opens up avenues of arbitrary
actions by the Government. It is submitted that accusing a person of having committed a
"terrorist act", by saying the person "struck terror" cannot be sustained, in the absence of a
definition of the word "terror".
That in these circumstances, the term "terror" has to draw sustenance from the previous
portion of the definition, where a "terrorist act" is one which threatens "...the unity, integrity,
security, economic security or sovereignty of India".
That it is submitted therefore that the term "...with intent to strike terror or likely to strike
terror in the people...",is open-ended, ill-defined, and arbitrary. This arbitrariness and lack of
precision in a definition which affects the life and liberty of an individual, cannot be
sustained, and is required to be struck down.
That as will be evident herein below, the UAPA is being selectively applied, in a manner
inconsistent with its own provisions. This selective and arbitrary application has resulted in
the violation of the most basic fundamental rights set out in Articles 14 and 21.
That by the Amendment Act of 2019 brought certain changes to the UAPA. These changes,
in so far as this Petition is concerned, were as under:
(1) Addition of a new "Fourth Schedule" to the Act;

(ii) Power of Central Government to publish the name of an individual in the Fourth
Schedule:
(iii) The publication of the name of an individual only to be done only if the Central
Govemment "believes" the individual to be involved in terrorism;

PRAYER
Therefore, if it may please this Hon`ble Court in the lights of Facts Presented, Issues Raised,
Arguments Advanced, and Authorities Citied, the Counsel for Petitioner humbly prays before
this Hon`ble Court, to kindly adjudge and declare:
1) That the petition filed by the NGO ANAND JEEVAN before this Hon’ble Supreme Court
is maintainable.
2) That a marriage does not brings with it the right of a husband to have sexual intercourse
without his wife's consent.
3) That the classification of right to prosecute a man on the basis of relationship/ marriage is
unreasonable and offends article 14 of the constitution.
4) That the striking off the exception two sec 375 would amount to creation of new offence.
And/or pass any other appropriate order as Court may deem fit and for this act of Kindness,
the Petitioner as in duty bound, shall forever pray.
Sd/
……………………….
Respectfully Submitted
Counsel of Petitioner


Hpnlu Petitioner

Uploaded by

Document Information

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

Hpnlu Petitioner

Uploaded by

Copyright:

Available Formats

3RD HPNLU NATIONAL MOOT COURT COMPETITION

Team Code: TC-320P

BEFORE THE HON’BLE SUPREME COURT OF INDICA

WRIT PETITION UNDER ARTICLE 32 OF CONSTITUTION OF

ABHILASHINI (NGO) & ORS.

UNION OF INDICA & ANR.

CIVIL APPELEATE WRIT JURISDICTION

PUBLIC INTEREST LITIGATION

Memorandum on the behalf of Petitioner Page 1

 STATEMENT OF FACTS ………………………………….………………...............3

ARGUMENTS ADVANCED 7-24

ISSUE2. WHETHER THERE IS A HIERACHICAL SCHEME IN THE IDEA OF

ISSUE3. WHETHER THE AUTHOR’S RIGHT TO FREEDOM AND SPEECH AND

ISSUE4. WHETHER THE AUTHOR’S RIGHT TO FREEDOM AND SPEECH AND

ISSUE5. WHETHER THE RIGHT TO ACCESS TO THE INTERNET IS A

Memorandum on the behalf of Petitioner Page 2

ISSUE6. WHETHER THE 2019 AMENDMENT TO THE UNLAWFUL ACTIVITIES

AIR All India Reporter

Memorandum on the behalf of Petitioner Page 3

Memorandum on the behalf of Petitioner Page 4

PETITION BY NGO ABHILASHINI

Memorandum on the behalf of Petitioner Page 5

CONSEQUENTLY, UAPA AND INTERNET BAN

PETITIONER APPROCHED THE HIGH COURT

Memorandum on the behalf of Petitioner Page 6

Memorandum on the behalf of Petitioner Page 7

ISSUE1. WHETHER THE XATALI COMMUNITY MEMBERS (MANAGEMENT

ISSUE2. WHETHER THERE IS A HIERACHICAL SCHEME IN THE IDEA OF

ISSUE3. WHETHER THE AUTHOR’S RIGHT TO FREEDOM AND SPEECH AND

ISSUE4. WHETHER THE AUTHOR’S RIGHT TO FREEDOM AND SPEECH AND

ISSUE5. WHETHER THE RIGHT TO ACCESS TO THE INTERNET IS A

Memorandum on the behalf of Petitioner Page 8

ISSUE6. WHETHER THE 2019 AMENDMENT TO THE UNLAWFUL ACTIVITIES

ISSUE1. WHETHER THE XATALI COMMUNITY MEMBERS (MANAGEMENT

ISSUE2. WHETHER THERE IS A HIERACHICAL SCHEME IN THE IDEA OF

Memorandum on the behalf of Petitioner Page 9

ISSUE3. WHETHER THE AUTHOR’S RIGHT TO FREEDOM AND SPEECH AND

ISSUE4. WHETHER THE AUTHOR’S RIGHT TO FREEDOM AND SPEECH AND

ISSUE5. WHETHER THE RIGHT TO ACCESS TO THE INTERNET IS A

ISSUE6. WHETHER THE 2019 AMENDMENT TO THE UNLAWFUL ACTIVITIES

Memorandum on the behalf of Petitioner Page 10

ISSUE1. WHETHER THE XATALI COMMUNITY MEMBERS (MANAGEMENT

Memorandum on the behalf of Petitioner Page 11

 Error or excess of Initial jurisdiction

Memorandum on the behalf of Petitioner Page 12

I.2. Doctrine of Pith and Substance

Memorandum on the behalf of Petitioner Page 13

I.3. Doctrine of ancillary or incidental encroachment

Memorandum on the behalf of Petitioner Page 14

ISSUE2. WHETHER THERE IS A HIERACHICAL SCHEME IN THE IDEA OF

II.1. RIGHT TO REPUTATION VS RIGHT TO FREEDOM OF SPEECH

Whenever a person intentionally makes or publishes such imputations about an individual

Memorandum on the behalf of Petitioner Page 15

ISSUE3. WHETHER THE AUTHOR’S RIGHT TO FREEDOM AND SPEECH AND

Memorandum on the behalf of Petitioner Page 16

III.1. Article 19 (2) and Bal Thackeray Case

1. security of the State,

2. Friendly relations with foreign states

4. Decency and morality,

7. Incitement to an offense, and

8. Sovereignty and integrity of India.

Memorandum on the behalf of Petitioner Page 17

The Court went on to add:

Memorandum on the behalf of Petitioner Page 18