1

Code No……..…..

SCHOOL OF LAW, CHRIST UNIVERSITY

MOOT COURT COMPETITION, 2010

BEFORE THE HON’BLE SUPREME COURT OF INDIA

Just World & Others……………………………………………….Petitioner

Versus

Union of India & Others……………………………….Defendant

WRIT BEFORE THE SUPREME COURT OF INDIA

UNDER ARTICLES 32 AND 139A OF THE CONSTITUTION

MEMORIAL FOR RESPONDENTS

Memorial for Respondent

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TABLE OF CONTENTS

ABBREVIATIONS………………………………………………

INDEX OF AUTHORITIES…………………………………

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

STATEMENT OF FACTS….………………………………....

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

SUMMARY OF PLEADINGS……………….…………….......

SUMMARY OF ARGUMENTS…………………………………….

CONCLUSION AND PRAYER……………...……..…………

APPENDIX…………………………………………………..

Memorial for Respondent

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ABBREVIATIONS

&……………………………………………………………………………………….And

AIR……………………………………………………………………...All India Reporter

Hon’ble…………………………………………………………………………Honourable

I.T………………………………………………………………...Information Technology

Co……………………………………………………………………………...…Company

Cri LJ………………………………………………………………..Criminal Law Journal

Edn…………………………………………………………………………………Edition

i.e………………………...………………………………………………………….That is

Ltd.....................................................................................................................…....Limited

Pvt……………………………………………..…………………………………….Private

SC…………………………………………………………………………..Supreme Court

SCC…………………………………………….……………………Supreme Court Cases

U.S……………………………………………………………………………United States

Vol……………………………………………………………………………….…Volume

p………………………………………………………………………………………..Page

v……………………………………………………………………………………..Versus

Ors…………………………………………………………………………………..Others

Anr…………………………………………………………………………………Another

SCR……………………………………………………………….Supreme Court Reports

Memorial for Respondent

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INDEX OF AUTHORITIES

CASES CITED

Gopal Das Mohta v. Union of India. AIR 1955 SC 1 : 1955 (1) SCR 773
Chiranjit Lal Chowdhuri v. Union of India, (1950) SCR 869: AIR 1951 SC 41.
Regina v. Liverpool Corporation 1972) 2 QB 299, 308-09.
State of A.P. v. McDowell& Co. (1996) 3 SCC 709 (para 49).
Mahendra Kumar Gupta v Union of India(1995) 1 SCC 85, 89
K.Venu v. Director-General of Police. A.I.R. 1990 Ker.344 at p.345
Life Insurance Corporation of India v. Prof. M.D. Shah, 1992(3) S.C.J. 84 : A.I.R. 1993 S.C.
171 at p. 177
Ramesh Yeshwant Prabhoo(Dr.) v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130
Raj Kapoor v. State AIR 1980 SC 258
Reno v. American Civil Liberties Union521 US 844 (1997)
Krishna Bus Service Pvt. Ltd. M/s. v. State of Haryana, A.I.R. 1984 P&H 137 at p.141
Rajasthan Pradesh V.S. Sardarshahar and Anr. V. Union of India (UOI) and
Ors,MANU/SC/0408/2010
U.S. v. Alpers338 U.S. 680 (1950)
People v. Emerson, 196 Misc. 2d 716, 766 N.Y.S.2d 482 (Sup 2003): 1 Misc. 3d 638, 2003
WL 22283378 (N.Y. Sup 2003)
R v. Stanley(1965) 1 All ER 184
Miller v. California413 U.S. 15 (1973)
F.C.C. v. Pacificia Foundation, (1978) 3 All ER 184
U.S. v. Barth, 26 F. Supp. 2d 929 (W.D. Tex. 1998);
Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289
U.S. v. Zimmerman277 F.3d 426 (3d Cir. 2002)
354 U.S. 476 (1957)
Hamling v. U. S., 418 U.S. 87 (1974)
Erznoznik v. City of Jacksonville 422 U.S. 205 (1975)
New York v. Ferber 458 U.S. 747 (1982)
Osborne v. Ohio 495 U.S. 103 (1990)
Barnes v. Glen Theatre, Inc.1,
501 U.S. 560 (1991)
Mishkin v. State of N. Y 383 U.S. 502 (1966)
Kois v. Wisconsin 408 U.S. 229 (1972)
1
501 U.S. 560 (1991)

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Kaplan v. California 413 U.S. 115 (1973)

Paris Adult Theatre I v. Slaton 413 U.S. 49 (1973)

U.S. v. Zimmerman277 F.3d 426 (3d Cir. 2002)

Roth v. U. S354 U.S. 476 (1957)

Com. v. Hinds437 Mass. 54, 768 N.E.2d 1067(2002): 537 U.S. 1205, 123 S. Ct. 1280, 154 L.
Ed. 2d. 1049 (2003)
Ranjit D. Udeshi v. State of MaharashtraAIR 1965 SC 881
Miller v. California413 U.S. 15 (1973)
American Booksellers Assn., Inc. v. Superior Court, 129 Cal. App. 3d 197, 181 Cal. Rptr. 33,
8 Media L. Rep. (BNA) 2014 (2d Dist. 1982);
News, Inc v. City of Dover, 117 N.H.1066, 381 A2d 752 (1977)
Capitol News Co., Inc. v. Metropolitan Government of Nashville and Davidson County, 562
S.W.2d 430, 3 Media L. Rep. (BNA) 2216 (Tenn. 1978);
Walsh v. State 236 Ga. App. 558, 512 S.E.2d 408 (1999);
U.S. v. Smith 27 F. Supp. 2d 1111 (C.D. Ill. 1998)
United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986),

United States v. Arvin, 900 F.2d 1385 (9th Cir. 1990).

Parnigoni v. District of Columbia, 933 A.2d 823 (D.C. 2007)

People v. Geever, 122 Ill. 2d 313, 119 Ill. Dec. 341, 522 N.E.2d 1200 (1988)

State v. Peterson, 535 N.W.2d 689 (Minn. Ct. App. 1995)

Gotleib v. State, 406 A.2d 270, 5 Media L. Rep. (BNA) 1818 (Del. 1979),
People v. Wilson, 95 Mich. App. 440, 291 N.W.2d 73 (1980).,
City of Minot v. Central Ave. News, Inc., 308 N.W.2d 851 (N.D. 1981)
State ex rel. Kidwell v. U. S. Marketing, Inc., 102 Idaho 451, 631 P.2d 622, 25 A.L.R.4th 381
(1981),
Long v. 130 Market St. Gift & Novelty of Johnstown, 294 Pa. Super. 383, 440 A.2d 517
(1982),
Powell v. State, 632 S.W.2d 842 (Tex. App. Houston 14th Dist. 1982).
People v. Stout, 18 Cal. App. 3d 172, 95 Cal. Rptr. 593 (2d Dist. 1971),
Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, 5 Media L. Rep. (BNA) 2418 (1980),
State v. Muldowney, 60 N.J. 594, 292 A.2d 26 (1972)
Movies, Inc. v. Conlisk, 345 F. Supp. 780 (N.D. Ill. 1971),
Mitchem v. State ex rel. Schaub, 250 So. 2d 883 (Fla. 1971),
People v. Mabie, 30 Ill. App. 3d 399, 331 N.E.2d 869 (4th Dist. 1975),
Cherokee News & Arcade, Inc. v. State, 1974 OK CR 108, 533 P.2d 624 (Okla. Crim. App.
1974)
Buck v. Steel, 263 Ark. 249, 564 S.W.2d 215 (1978),
Roth v. U. S.354 U.S. 476(1957)
Atkins v DPP and Goodland v DPP(2000) 1 WLR 1427(QBD)
Uttam Singh v. StateAIR 1974 SC 1230; 74 Cri LJ 923
Dunlop v. U.S,165 U.S. 486(1897)
Francis Coralie Mullin v. Union of Territory of Delhi AIR 1981 SC 746(para 3)
Maneka Gandhi v. Union of India AIR 1978 SC 597 : (1978) 1 SCC 248
State of Haryana v. Ch. Bhajan Lal AIR 1992 SC 604

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U.S. v. Hall 142 F.3d 988 (7th Cir. 1998)

Astt. Collector of Central Excise v. Wilfred Sabastian 1983 CrLJ NOC 43(Ker)
U.S. v. Bin Laden, 126 F. Supp. 2d 264 (S.D. N.Y. 2000).
Shyamalal’s case AIR 1965 SC 1251: (1965) 2 CrLJ 256
Sharda v. Dharmpal (2003) 4 SCC 493
District Registrar and Collector v. Canara Bank (2005) 1 SCC 496: AIR 2005 SC 186

Nandini Satpathy v. P.L.Dani AIR 1978 SC 1025

State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808

Ranchhod Das Khimji Ashre v Temton Jahangir, 1961(2) Cr.L.J 338: (1961) 2 Guj. L.R.415:

(1961) 2 Guj. H.C.R. 197: A.I.R. 1961 Guj. 137

Janhit Manch and Ors v. The Union of India PIL No. 155 of 2009

TREATISES AND BOOKS REFERED

1. N. D. Basu, Code of Criminal Procedure Code, Vol II, Ashoka Law House, New
Delhi (10th Edn., 2007)
2. Ratan Lal and Dhiraj Lal, The Code of Criminal Procedure, Wadhwa Nagpur, New
Delhi (18th Edn., Reprint 2007)
3. Arvind P. Datar, Commentary on the Constitution of India, Vol I, Wadhwa Nagpur,
New Delhi, (2nd , 2007)
4. Prof. M. P. Jain, Indian Constitutional Law, Wadhwa Nagpur, New Delhi (5th Edn.,
Reprint 2007)
5. V.N.Shukla, Constitution of India, Eastern Book Company,(10th Edn.,2001)

6. Durga Das Basu, Shorter Constitution of India, Wadhwa-Nagpur, New Delhi (13th
Edn.,Reprint 2003)
7. H.M.Seervai, Constitutional Law of India,Vol.1, Universal Law Publishing Co. Pvt.
Ltd. (4th Edn.).
8. Dr. J.N.Pandey, Constitutional Law of India ,Central Law Agency, (42nd Edn., 2005)

Memorial for Respondent

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9. Mamta Rao, Law relating to Women & Children, Eastern Book Company,Lucknow,
(2nd Edn., 2008)

ACTS AND TREATIES REFERRED

1. Information Technology(Amendment) Act, 2008

2. Information Technology Act, 2000

3. Indecent Representation of Women(Prohibition) Act, 1986

4. Constitution of India

5. Indian Penal Code, 1860

6. The Code of Criminal procedure, 1973

7. The Trade Marks Act, 1999

HUMAN RIGHTS FEATURES 

( V o i c e o f t h e A s i a - P a c i f i c H u m a n R i g h t s N e t w o r k )

Memorial for Respondent

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http://www.naavi.org/cl_editorial_09/obscenity_freedom_court_view.pdf

STATEMENT OF JURISDICTION

The Respondent, Union of India & Others, in Just World & Others v. Union of India &

Others hereby submits this Memorandum before the Hon’ble Supreme Court of India,

invoking the writ jurisdiction under Article 32 of the Constitution.

Memorial for Respondent

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STATEMENT OF FACTS

Kayjay DeSouza, a law student and Sukhdeep, a student of digital animation, designed a

comic strip named “Pramila Adershan’s Meaty Meanderings” which described the life and

escapades of an adventurous and licentious thirty five year old housewife. The comic strip

was quite sexually overt both textually and graphically. Some copies of the comic strip were

even confiscated by the lecturers at college. Soon after they started their careers.

II

They registered a web site “Pramilaadershan.com” through Google in US and took out a

trademark for it both in the US and in India. They had tie-ups with iStore and Ebay to meet

demands.

III

As they found it difficult to generate stories each week they asked readers to contribute.

IV

As the comic strip became quite popular Sukhdeep and Kayjay decided to set up a company.

They became promoter directors of a new private company, Pushkar Ventures Pvt. Ltd

contributing equally to the initial capital of the company. It was valued by an independent

accounting firm at Rs. 21.8 Crores with 20 illustrators as employees.

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Pramila inspired a seasonal rage amongst the adolescent youth much to the annoyance of the

older generation.

VI

Culture Vultures, a right wing association began protests and claimed that some mothers of a

few teenagers had requested them to help as their children were being morally depraved.

Hence culture vultures held a protest meeting outside the offices of Pushkar ventures, where

they burnt print-outs of the comic strip. Their intentions were to protect the Indian culture and

feminine virtues.

VII

Culture Vultures members registered complaints in more than 38 police talukas in Karnataka.

In many cases, the Magistrates ordered personal appearance of the accused before granting

bail.

VIII

There were also complaints by a lawyers association in Tamil Nadu and some other right

wing organizations in 11 districts in Gujarat and 3 other districts in Madhya Pradesh.

IX

Moreover Culture Vultures began filing complaints indiscriminatingly against internet

service providers, companies that gave server space to Pushkar Ventures, cyber café owners

on whose caches Pramila Adershan’s data was found and Istore and Ebay claiming that they

were intermediaries. The police launched investigations against many of these persons.

Reacting to all this, the Central Government issued an order banning the website.

XI

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The Superintendent of Police, Bangalore (South) entered the offices of Pushkar Ventures and

seized all the computer hard disks and story board clippings hanging there. He also found

other pornographic material which he claimed was being used by the employees for

inspiration.

XII

A letter from an angry Indian mother reproaching them for hosting such depraved and

salacious content sent by istore and Ebay was also found in their office. The officer also

found some personal letters of communication between Kayjay and his ex-girlfriend. Their

relationship had lasted about 3 months.

XIII

In February 2009 the company and its directors were charged under Sections 67A of the

Information Technology Act, 2000 (as amended) r/w Sections 3 and 4 of the Indecent

Representation of women (Prohibition) Act, 1986 and relevant sections of IPC

XIV

Sukhdeep and Kayjay applied to the Karnataka, Tamil Nadu, Gujarat and Madhya Pradesh

High Courts for quashing of various complaints under Section 482 of the CrPC. The

Karnataka, Gujarat and Madhya Pradesh High Court were refused to stay or quash the

complaints.

XV

Kayjay also filed a separate writ petition alleging violation of his privacy. They also filed a

writ petition in the High Court of Karnataka challenging the order blocking the website,

stating that a case had not been made out for the same under Section 69A of the Information

Technology Act. The High Court stayed the operation of the order for four weeks on the

statement of the Solicitor General of India that the Union would file an appeal before the

Supreme Court.

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XVI

COITAL filed a writ petition challenging the penalties imposed on intermediaries under the

Information Technology Act

XVII

Just world, a reputed civil society filed a writ petition in the Supreme Court.

XVIII

Kayjay and Sukhdeep moved to the Supreme Court under Article 139A. COITAL also filed

the transfer petition.

XIX

As per the observation of Judges in the Karnataka High Court the Chief Justice constituted a

Constitution bench and passed a fresh interim order staying all proceedings and remanding all

matters to the bench.

XX

The mater is posted for final hearing on August 22, 2010.

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STATEMENT OF ISSUES

(A)WHETHER THE PETITION IS MAINTAINABLE UNDER ARTICLE 32 OF THE

CONSTITUTION?’

(B) WHETHER THE SECTIONS UNDER THE INFORMATION TECHNOLOGY

(AMENDMENT) ACT 2008 ARE CONSTITUTIONAL ALLIED WITH THE SECTIONS OF

INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986 AND THE

INDIAN PENAL CODE, 1860?

(C) WHETHER THE SEARCH AND SEIZURE POWERS GRANTED UNDER SECTIONS 29

AND 80 OF THE INFORMATION TECHNOLOGY ACT, 2000 ARE

CONSTITUTIONAL ?

(D) WHETHER THERE HAS BEEN ANY INFRINGEMENT OF RIGHT TO PRIVACY BY

THE SEARCH OF PRIVATE MAILS AND DOCUMENTS NOT MEANT FOR PUBLIC

CIRCULATION ?

(E) IS THERE ANY VIOLATION OF ARTICLE 20(3) IF ANY PRIVATE UNPUBLISHED

INFORMATION IS USED TO CONVICT THE ACCUSED UNDER THE RELEVANT

SECTIONS?

(F) WHETHER A CASE HAS BEEN MADE OUT IN CASE OF CONSTITUTIONALITY OF

SECTION 69A OF THE INFORMATION TECHNOLOGY (AMENDMENT ) ACT, 2008?

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SUMMARY OF PLEADINGS

I. THE PETITION IS NOT MAINTABLE UNDER ARTICLE 32 OF THE

CONSTITUTION
There is no violation of petitioner’s fundamental rights. An enactment cannot be
struck down on the plea that it is unreasonable, unnecessary or unwarranted
II. THE PETITIONER DOES NOT HAVE THE LOCUS STANDI
Petitioner cannot be heard to complain about discrimination suffered by others.

An association cannot file a writ petition under Article 32‘person aggrieved’

does not include a mere busybody who is interfering in things which do not

concern him.

III. Sections 67A, 69A and 69B of the Information Technology (Amendment)

Act 2008 and allied provisions in the Indecent Representation of Women

(Prohibition) Act, 1986 and the Indian Penal Code, 1860 ARE

CONSTITUTIONAL

IV. Sections 29 and 80 are constitutional

V. There is no infringement of right to privacy

VI. Article 20(3) has no applicability in this case

VII. Central Government can block the websites in cases of violation of public order

under Section 67A

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ARGUMENTS ADVANCED

A) WHETHER THE WRIT PETITION IS MAINTAINABLE?

A.1)

The sole object of Article 32 is the enforcement of the fundamental rights guaranteed by the

Constitution. Unless a fundamental right is violated a person cannot complain under this

article.2 Even if the Supreme Court finds that a law must be held to be void, being in

contravention of some provisions of the Constitution, the Court will not give relief under

Article 32 unless it is satisfied that a fundamental right is infringed. It is not concerned with

the determination of the legislative competence or vires of a particular enactment. 3 To make

out a case under this Article the petitioner should not merely establish that the law

complained of is beyond the competency of the particular legislature, as not being covered by

any of the items in the legislative lists, but also that it invades the fundamental rights

guaranteed by the Constitution of which he can seek enforcement by an appropriate writ or

order.4 It is said that an enactment cannot be struck down on the plea that it is unreasonable,

unnecessary or unwarranted. There is always a presumption in favour of constitutionality. In

this case the Petitioner, Just World, alleges infringement of Articles 14, 19(1) (a) & (g) and

21 of the Constitution. But there is no violation of fundamental rights as the Petitioner claims

and hence this writ petition is not maintainable. The

A.2. THE PETITIONER DOES NOT HAVE THE LOCUS STANDI

2
Gopal Das Mohta v. Union of India. AIR 1955 SC 1 : 1955 (1) SCR 773
3
Chiranjit Lal Chowdhuri v. Union of India, (1950) SCR 869: AIR 1951 SC 41.
4
ibid

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The rights that could be enforced under Article 32 must ordinarily be the rights of the

Petitioner himself who complains of the infraction of such rights and approaches the Court

for relief. A petitioner cannot be heard to complain about discrimination suffered by others. 5

In this case, Just World has filed a Writ of under Article 32 challenging the Constitutionality

of sections of the Information Technology (Amendment) Act, 2008.

In the case of Regina v. Liverpool Corporation6, Lord Denning M.R. held that the expression

‘person aggrieved’ does not include a mere busybody who is interfering in things which do

not concern him, but it includes any person who has a genuine grievance because something

has been done or may be done which affects him. Also an association cannot file a writ

petition under Article 32. This was laid down in the case of Mahendra Kumar Gupta v Union

of India7. Of late there is a rampant abuse of PIL. Frivolous cases are filed without any

reason. They have been mooted by privately motivated interests in the disguise of the so-

called public interests. The Petitioner has failed to show the ‘public interest’ element in this

case.

(B) THE CONSTITUTIONALITY OF SECTIONS 67A, 69A AND 69B OF THE INFORMATION

TECHNOLOGY (AMENDMENT) A CT 2008 AND ALLIED PROVISIONS IN THE INDECENT

REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986 AND THE INDIAN PENAL

CODE, 1860?

B.1 SECTION 67A OF THE I.T (AMENDMENT) ACT IS CONSTITUTIONAL.

Section 67A of The Information Technology (Amendment) Act, 2008 dealt with punishment

for publishing or transmitting any material containing sexually explicit act, etc., in electronic

form. According to Article 13 of the Constitution the laws inconsistent with or in derogation

5
State of A.P. v. McDowell& Co. (1996) 3 SCC 709 (para 49).
6
(1972) 2 QB 299, 308-09.
7
(1995) 1 SCC 85, 89

Memorial for Respondent

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of the fundamental rights will be considered void. It includes any laws made or passed by a

competent legislature. To declare a law as unconstitutional it has to be shown that there is

violation of fundamental rights.

We see that there is no infringement of Fundamental Rights as alleged by the Petitioner.

There is no infringement of Article 19(1) (a) of the Constitution which gives citizens the right

to freedom of speech and expression. There is a sharp distinction between Constitution of

United States of America and India. In the former, freedom of speech guaranteed is absolute

and in the latter the Constitution itself provides for certain exceptions. India is also a party to

the International Covenant on Civil and Political Rights and therefore bound to respect the

right to freedom of expression guaranteed by Article 19 thereof. There is a connection

between freedom of speech and the stability of the society. This freedom is subject to Sub-

clause (2) of Article 19, which allows the State to impose restriction on the exercise of this

freedom in the interest of public decency and morality 8. It is considered to be in the general

interest if the society.9 Decency means that the action must be in conformity with the current

standards of behaviour or propriety.10 This shows that obscenity which is offensive to public

decency and morality is outside the purview of the protection of free speech and expression,

because the Article dealing with the right itself excludes it. This is to ensure that there is a

restriction on speeches and publications which undermines public morals.

In the case of Raj Kapoor v. State11, the Apex court dealt with the aspect of censorship and

held that freedom of expression cannot be questioned by an intolerant group of people. The

fundamental freedom under Article 19(1) (a) can be reasonably restricted only for the

purposes mentioned in Articles 19(2) and the restriction must be justified. It was observed

that “the censors Board should exercise considerable circumspection on movies affecting the

8
K.Venu v. Director-General of Police. A.I.R. 1990 Ker.344 at p.345
9
Life Insurance Corporation of India v. Prof. M.D. Shah, 1992(3) S.C.J. 84 : A.I.R. 1993 S.C. 171 at p. 177
10
Ramesh Yeshwant Prabhoo(Dr.) v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130
11
AIR 1980 SC 258

Memorial for Respondent

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morality or decency of our people and cultural heritage of the country. The moral values in

particular, should not be allowed to be sacrificed in the guise of social change or cultural

assimilation”.

In the case of Reno v. American Civil Liberties Union12 it was held that it would be wrong to

restrain speech on the internet, except for dissemination of obscene messages. Moreover a

Corporation or a company is not a citizen for purposes of the Constitution and thus cannot

claim the rights mentioned in Article 19 of the Constitution.13

Hence sexually explicit acts arouse lascivious interest in the minds of people. It is against

public decency and morality and hence comes within the purview of restrictions imposed

under Clause 2 of Article 19. Hence there is no violation of Article 19(1) (a).

Article 19(1) (g) ensures the freedom to practice any profession, or to carry on any

occupation, trade or busniness. In Rajasthan Pradesh V.S. Sardarshahar and Anr. V. Union

of India (UOI) and Ors14 , the Court decided that “the right to practice under Article 19(1)(g)

of the Constitution is not absolute and is subject to reasonable restrictions provided under

Article 19(6) of the Constitution”. Hence the publishing or transmission of sexually explicit

act is within the restriction mentioned in 19(6) and hence the section is not unconstitutional.

In this case the comic strip was quite sexually explicit, both textually and graphically. For

something to be ‘obscene’ it must be shown that the average person, applying contemporary

community standards and viewing the material as a whole, would find that the work appeals

predominantly to ‘prurient’ interest, that it depicts or describes sexual conduct in a offensive

way, and that it lacks serious literary, artistic, political or scientific value. In this issue mother

of the teenage children had asked the help of the Culture Vulture and bundles of cases filed

against them in various parts of the Country. That itself shows that the strip is obscene as per

the ordinary man’s perspective.

12
521 US 844 (1997)
13
Krishna Bus Service Pvt. Ltd. M/s. v. State of Haryana, A.I.R. 1984 P&H 137 at p.141
14
MANU/SC/0408/2010

Memorial for Respondent

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In a prosecution for possessing a sexual performance by a child, a computer repairman’s

initial private search of the files in defendant’s computer was not subject to Fourth

Amendment scrutiny, as the repairman was not an agent of the government and did not act

with the participation or knowledge of any governmental official15. 

In U.S. v. Alpers16 , Obscene phonograph records are within the prohibition of 245 of the

Criminal Code, which forbids the interstate shipment of any obscene book, pamphlet,

picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character.

Indian culture is more conservative and orthodox than the United States and the people here

are more sensitive about the morality and decency.

The letters of angry Indian mother for hosting such depraved and salacious content itself

shows that the Pramila Adershan’s character is obscene. In the case of R v. Stanley17 it is

clearly pointed out that anything that is obscene must necessarily be indecent. In other words,

indecent merely means non conformance with accepted standards of morality. Obscenity

refers to that which has prurient or lascivious appeal18.

United States courts use the Miller test for determining whether speech or expression is

‘obscene,’ and therefore not protected by the First Amendment. That means it can legally be

banned. The Miller test stems from Miller v. California19, in which the US Supreme Court

held that material is obscene if each of the following factors is satisfied: Whether the average

person, applying contemporary community standards, would find that the work, taken as a

whole, appeals to the prurient interest? Whether the work depicts/describes, in a patently

offensive way, sexual conduct specifically defined by applicable law? Whether the work,

taken as a whole, lacks serious literary, artistic, political, or scientific value? All the factors

mentioned in the questions are satisfactory to define the material in this issue as obscene and
15
People v. Emerson, 196 Misc. 2d 716, 766 N.Y.S.2d 482 (Sup 2003): 1 Misc. 3d 638, 2003 WL 22283378
(N.Y. Sup 2003)
16
338 U.S. 680 (1950)
17
(1965) 1 All ER 184
18
F.C.C. v. Pacificia Foundation, (1978) 3 All ER 184
19
413 U.S. 15 (1973)

Memorial for Respondent

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filthy. Central Government also issued an order for banning the website because of its filthy

content. Indian culture and feminine virtue is spoiled in this indecent character. It also gives

false image of traditional Indian housewife. Police also found pornographic material from

their office.

Child pornography is offensive in most of the Countries in the world.20The comic strip is

against the national and contemporary standards of the society. Obscenity has the tendency to

deprave and corrupt those whose minds are open to such immoral influences.21

A federal court case, U.S. v. Zimmerman22, provides persuasive analysis of the issue of

“staleness”. In Zimmerman, the defendant was indicted for possession of child pornography

when several images were found at his residence during the execution of a search warrant.

The search warrant application contained information that the Third Circuit found to be

“stale”, because it stated that “many months” earlier, one clip of adult pornography had been

accessed at Zimmerman's computer. On this basis, the denial of the suppression motion was

reversed.

In Com. v. Hinds23, holding that child pornography images stored on defendant’s computer

were in police officer’s plain view, and thus officer’s seizure of defendant’s computer was

not unlawful; officer had consent to search the computer for electronic mail, officer was not

required to disregard files listed in plain view in the computer directory, the titles to the

documents, such as 2BOYS.JPG, KIDSEX1, and TEENSEX, created probable cause to

believe that their contents contained illegal subject matter, and there was a substantial risk

that the computer data would be destroyed if the computer was not seized.

In Roth v. U. S.24, Court opines that Obscenity is not within the area of constitutionally

protected freedom of speech or press either (1) under the First Amendment, as to the Federal

20
U.S. v. Barth, 26 F. Supp. 2d 929 (W.D. Tex. 1998);
21
Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289
22
277 F.3d 426 (3d Cir. 2002)
23
437 Mass. 54, 768 N.E.2d 1067(2002): 537 U.S. 1205, 123 S. Ct. 1280, 154 L. Ed. 2d. 1049 (2003)
24
354 U.S. 476 (1957)

Memorial for Respondent

 21

Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the

States. The standard for judging obscenity, adequate to withstand the charge of constitutional

infirmity, is whether, to the average person, applying contemporary community standards, the

dominant theme of the material, taken as a whole, appeals to prurient interest.

The sexually explicit contents will never come under the purview of Fundamental Rights of

the Indian Constitution. In Hamling v. U. S.25 , Court was affirming conviction of mailing and

conspiring to mail an obscene advertising brochure with sexually explicit photographic

material relating to their illustrated version of the Presidential Report of the Commission on

Obscenity and Pornography.

In Erznoznik v. City of Jacksonville 26 , Jacksonville, Florida ordinance making it a public

nuisance and a punishable offense for a drive-in movie theater to exhibit films containing

nudity, when the screen is visible from a public street or place, held facially invalid as an
27
infringement of First Amendment rights. In New York v. Ferber , a New York statute

prohibits persons from knowingly promoting a sexual performance by a child under the age

of 16 by distributing material which depicts such a performance. As applied to respondent

and others who distribute similar material, the statute in question does not violate the First

Amendment as applied to the States through the Fourteenth Amendment. In the case of

Osborne v. Ohio28 , it is mentioned that Ohio may constitutionally proscribe the possession

and viewing of child pornography.

On other issue of Barnes v. Glen Theatre, Inc.29, the Enforcement of Indiana’s public

indecency law to prevent totally nude dancing does not violate the First Amendment's

guarantee of freedom of expression. In Mishkin v. State of N. Y. 30, Where the material is

25
418 U.S. 87 (1974)
26
422 U.S. 205 (1975)
27
458 U.S. 747 (1982)
28
495 U.S. 103 (1990)
29
501 U.S. 560 (1991)
30
383 U.S. 502 (1966)

Memorial for Respondent

 22

designed for and primarily disseminated to a clearly defined deviant sexual group, rather than

the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant

theme of the material taken as a whole appeals to the prurient interest in sex of the members

of that group.

As mentioned in Kois v. Wisconsin31 , Petitioner was convicted for publishing in his

underground newspaper pictures of nudes and a sex poem. It is also pointed out that Kaplan

v. California32 , Obscene material in book form is not entitled to First Amendment protection

merely because it has no pictorial content. A State may control commerce in such a book,

even distribution to consenting adults, to avoid the deleterious consequences it can

reasonably conclude (conclusive proof is not required) result from the continuing circulation

of obscene literature.

Court in Paris Adult Theatre I v. Slaton 33, contented that Exhibition of obscene material in

places of public accommodation is not protected by any constitutional doctrine of privacy. In

a prosecution for possessing a sexual performance by a child, a computer repairman’s initial

private search of the files in defendant’s computer was not subject to Fourth Amendment

scrutiny, as the repairman was not an agent of the government and did not act with the

participation or knowledge of any governmental official34. In U.S. v. Alpers35 , Obscene

phonograph records are within the prohibition of 245 of the Criminal Code, which forbids the

interstate shipment of any obscene book, pamphlet, picture, motion-picture film, paper,

letter, writing, print, or other matter of indecent character. Indian culture is more conservative

and orthodox than the United States and the people here are more sensitive about the morality

and decency.

31
408 U.S. 229 (1972)
32
413 U.S. 115 (1973)
33
413 U.S. 49 (1973)
34
People v. Emerson, 196 Misc. 2d 716, 766 N.Y.S.2d 482 (Sup 2003): 1 Misc. 3d 638, 2003 WL 22283378
(N.Y. Sup 2003)
35
338 U.S. 680 (1950)

Memorial for Respondent

 23

In Ranjit D. Udeshi v. State of Maharashtra36the term obscenity is defined by the Supreme

Court as ‘the quality of being obscene which means offensive to modesty or decency; lewd,

filthy and repulsive. This also includes sexually explicit content under Section 67A of the

Information Technology (Amendment) Act, 2008. The per se action of the petitioner can be

considered as sexually explicit and the persons are liable for their act. The letters of angry

Indian mother for hosting such depraved and salacious content itself shows that the Pramila

Adershan’s character is sexually explicit. In the case of R v. Stanley37 it is clearly pointed out

indecent merely means non conformance with accepted standards of morality. Obscenity

refers to that which has prurient or lascivious appeal38.

United States courts use the Miller test for determining whether speech or expression is

‘obscene or sexually explicit,’ and therefore not protected by the First Amendment. That

means it can legally be banned. The Miller test stems from Miller v. California39, in which the

US Supreme Court held that material is obscene if each of the following factors is satisfied:

Whether the average person, applying contemporary community standards, would find that

the work, taken as a whole, appeals to the prurient interest? Whether the work

depicts/describes, in a patently offensive way, sexual conduct specifically defined by

applicable law? Whether the work, taken as a whole, lacks serious literary, artistic, political,

or scientific value? All the factors mentioned in the questions are satisfactory to define the

material in this issue as sexually explicit and filthy. Central Government also issued an order

for banning the website because of its filthy content. Indian culture and feminine virtue is

spoiled in this indecent character. It also gives false image of traditional Indian housewife.

Police also found pornographic material from their office.

36
AIR 1965 SC 881
37
(1965) 1 All ER 184
38
F.C.C. v. Pacificia Foundation, (1978) 3 All ER 184
39
413 U.S. 15 (1973)

Memorial for Respondent

 24

Child pornography is offensive in most of the Countries in the world. 40The comic strip is

against the national and contemporary standards of the society. It has the tendency to deprave

and corrupt those whose minds are open to such immoral influences. 41  Greater latitude is

permissible in defining child pornography.42 Many courts apply the so-called Dost test to

determine if a given image is considered to be "lascivious" under the law43.

Context is also important in determining ‘whether the image is intended or designed to elicit

a sexual response in the viewer. ’For example, in jury instructions approved by the Ninth

Circuit, the Court asked the jurors to consider the caption of the photograph 44. Indecent

exposure statute requires exposure at such a time and place where as a reasonable man he

knows or should know his act will be open to the observation of others 45. The law pertaining

to indecent exposure does not require that an accused have a specific intent to expose himself

to any particular person; it is sufficient that accused generally intended to expose him so as to

draw attention to his exposed condition.

 The issue of Pramila Adershan also includes child pornography. It is explicit that cartoons

are commonly meant for children and a mere carelessness in this issue will destroy they

moral, ethical and traditional decency the Indians used to follow.

The states have a compelling interest in the protection of the health and welfare of children,

and, therefore, are entitled to great leeway in the regulation of pornographic depictions of

children46. States enjoy greater latitude in regulating child pornography because of the

40
U.S. v. Barth, 26 F. Supp. 2d 929 (W.D. Tex. 1998);
41
Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289
42
American Booksellers Assn., Inc. v. Superior Court, 129 Cal. App. 3d 197, 181 Cal. Rptr. 33, 8 Media L. Rep.
(BNA) 2014 (2d Dist. 1982); News, Inc. v. City of Dover, 117 N.H. 1066, 381 A.2d 752 (1977);Capitol News
Co., Inc. v. Metropolitan Government of Nashville and Davidson County, 562 S.W.2d 430, 3 Media L. Rep.
(BNA) 2216 (Tenn. 1978); Walsh v. State 236 Ga. App. 558, 512 S.E.2d 408 (1999); U.S. v. Smith 27 F. Supp.
2d 1111 (C.D. Ill. 1998)
43
United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986),

44
United States v. Arvin, 900 F.2d 1385 (9th Cir. 1990).

45
Parnigoni v. District of Columbia, 933 A.2d 823 (D.C. 2007)
46
People v. Geever, 122 Ill. 2d 313, 119 Ill. Dec. 341, 522 N.E.2d 1200 (1988)

Memorial for Respondent

 25

government’s compelling interest in safeguarding its children. The states may constitutionally

prohibit even the private possession of child pornography. Moreover, a statute prohibiting the

production of child pornography is valid even though mistake-of-age is not available as a

defense in a prosecution under the statute47.

A state has an interest in regulating commercial sexually explicit act or obscenity 48, and

possesses the power to prevent or regulate the dissemination49, distribution50, transportation,

sale51, including possession with intent to sell52, or display53 of obscene or filthy matter. 

B.2 SECTIONS 69A& 69B OF THE I.T ACT ARE CONSTITUIONAL

Section 69A of the Information Technology Act states the power to issue directions for

blocking for public areas of any information through any computer resource. Where there is a

severe increase in the pornography and sexual explicit websites, Government should take

initiative to safeguard the Fundamental Rights guaranteed under Article 21 of the

Constitution which also deals with a life with dignity. Preamble to the Indian Constitution

also states about the sovereignty and integrity of the State. While performing the essential

functions of maintaining public order and security of the nation, the state is different from

other persons whether natural or artificial. 54 The State can act upon its discretion where it

feels that the public order is violated. Section 69A also guarantees the Central Governments

power to safeguard the Security of the State, friendly relations with foreign States etc. A
47
State v. Peterson, 535 N.W.2d 689 (Minn. Ct. App. 1995)
48
Gotleib v. State, 406 A.2d 270, 5 Media L. Rep. (BNA) 1818 (Del. 1979), People v. Wilson, 95 Mich. App.
440, 291 N.W.2d 73 (1980)., City of Minot v. Central Ave. News, Inc., 308 N.W.2d 851 (N.D. 1981)
49
State ex rel. Kidwell v. U. S. Marketing, Inc., 102 Idaho 451, 631 P.2d 622, 25 A.L.R.4th 381 (1981), Long v.
130 Market St. Gift & Novelty of Johnstown, 294 Pa. Super. 383, 440 A.2d 517 (1982), Powell v. State, 632
S.W.2d 842 (Tex. App. Houston 14th Dist. 1982).
50
People v. Stout, 18 Cal. App. 3d 172, 95 Cal. Rptr. 593 (2d Dist. 1971), Flynt v. State, 153 Ga. App. 232, 264
S.E.2d 669, 5 Media L. Rep. (BNA) 2418 (1980), State v. Muldowney, 60 N.J. 594, 292 A.2d 26 (1972)
51
Movies, Inc. v. Conlisk, 345 F. Supp. 780 (N.D. Ill. 1971), Mitchem v. State ex rel. Schaub, 250 So. 2d 883
(Fla. 1971), People v. Mabie, 30 Ill. App. 3d 399, 331 N.E.2d 869 (4th Dist. 1975),
52
Cherokee News & Arcade, Inc. v. State, 1974 OK CR 108, 533 P.2d 624 (Okla. Crim. App. 1974)
53
Buck v. Steel, 263 Ark. 249, 564 S.W.2d 215 (1978), People v. Mabie, 30 Ill. App. 3d 399, 331 N.E.2d 869
(4th Dist. 1975)
54
R.M. Seshadri v. Second Addl. Income Tax Officer, (1954) 2 Mad L.J. 285

Memorial for Respondent

 26

website which is harmful to the moral values of the state should be banned. For the purpose

of public safety, the classification of an area into dangerously disturbed area and other area is

based on intelligible differentia.55 This is the same case with regard to the website if it is

dangerous to the societal values which may cause public disorder. Article 14 of the

Constitution allows certain discrimination. Sex being a sound classification for special

protection of woman under Article 15(3),56 the provisions of any Act can be passed for the

wellbeing of the weaker parties. Equality means equality among equals. There is no

implication of equality being absolute in all circumstances57.

B.3. THERE IS VIOLATION OF SECTION 292 & 293 OF THE IPC

Section 292(1) consists of two parts. One refers to a book, pamphlet, paper, drawing,

painting, representation, figure of any other object which is lascivious or appeals to the

prurient interest, and the other part says that if these materials comprises of two or more

distinct items, the effect of any one of its items if taken as a whole tends to deprave and

corrupt persons who are likely according to the relevant circumstances to read, see or hear the

matter contained in it.

There must be two things proved under Section 292 that (i) the matter is obscene and (ii) the

accused has sold, distributed, imported, printed or exhibited it, or attempted or offered to do

so.The word obscene is not defined in the Indian Penal Code. It depends upon the standards

of morals of the contemporary society. The idea relating to immorality and indecency may

change from time to time and place to place. The term obscene denotes anything that is

offensive to modesty or decency, lewd, filthy and repulsive.

The constitutional validity of section 292 has been challenged in the case Ranjit D Udeshi v.

State of Maharshtra58 as it was considered to be violative of the right to freedom of speech

55
Gopi CHand v. Delhi Administration, 1959 Cr.L.J. 782: AIR 1959 SC 609
56
Yusuf Abdul Aziz v. State of Bombay, (1954) 1 Mad LJ 618
57
DEsu Rayudu v. Andhra Pradesh Public Service Commission, (1966) 1 An. W. R.403: AIR 1967 A.P.353
58
(1965) 1 SCR 65 SC,(1964) 67 Bom LR 506 : AIR 1965 SC 881

Memorial for Respondent

 27

and expression enshrined in article 19(1)(a) of the Constitution. It was held that “it can be

harldy be said that obscenity which is offensive to modesty or decency is within

constitutional protection given to free speech or expression, because the article dealing with

the right itself excludes it..This freedom is subject to reasonable restrictions which maybe

thought necessary in the interest of the general public and one such is the interest of public

decency and morality. Section 292, manifestly embodies such a restriction because the law

against obscenity seeks no more than to promote public decency and morality.” So it was

held that Section 292 was constitutional and not ultra vires of Article 19(2). It was also held

that “the obscene matter in a book must be considered by itself and separately to find out

whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those

whose minds are open to influences of this sort and into whose hands the book is likely to

fall. In this connection the interests of our contemporary society and particularly the influence

of the book on it must not be overlooked. It was in this very same case that the Court held

that the defence available under the English law is not acceptable here. It is not possible for

the accused to show that he had not examined the article in question and thus had no reason

to suspect that it was obscene. But the other defence under English law which exempts

publication which are for public good and in interest of science, literature, art, learning or

other subjects of general concern is applicable in India which is provided for in the

exceptions to this section.

Even in the United States case of Roth v. U. S.59 , Obscenity was not considered to be within

the area of constitutionally protected freedom of speech or press either under the First

Amendment, as to the Federal Government, or under the Due Process Clause of the

Fourteenth Amendment, as to the States. The standard for judging obscenity, adequate to

withstand the charge of constitutional infirmity, was whether, to the average person, applying

59
354 U.S. 476(1957)

Memorial for Respondent

 28

contemporary community standards, the dominant theme of the material, taken as a whole,

appeals to prurient interest.

In the case of Atkins v DPP and Goodland v DPP60 it was held that the making of an indecent

photograph included copying, downloading or storing it on a computer, provided that it was

done knowingly.

In the present case the comic strip “Pramila adershan’s Meaty Meanderings” can be

considered as highly obscene as there was substantiation to show that the content contained

lascivious material which would morally deprave the young as their mothers were highly

against the strip. the website owners cannot plead the exception to this section because it was

not created in interest of science, art, literature, learning or other objects of general concern

and nor was it used for any religious purposes.

Section 293 of the Indian Penal Code punishes any person who sells, lets to hire, distributes,

exhibits or circulates to any person under the age of twenty years any such obscene object as

referred in Section 292 of the IPC with imprisonment which may extend to three years or

with fine which may extend to two thousand rupees and in the event of subsequent conviction

with imprisonment of which may extend to seven years or with fine which may extend to five

thousand rupees.

In the case of Uttam Singh v. State61 the accused was found selling a packet of playing cards

portraying on the reverse luridly obscene pictures. When his shop was raided, similar packets

were found. He was sentenced to six months rigorous imprisonment and affine of Rs.500.

In the case of Dunlop v. U.S62 the court upheld the conviction for mailing and delivery of a

newspaper called the 'Chicago Dispatch,' which contained obscene, lewd, lascivious, and

indecent matter.

60
(2000) 1 WLR 1427(QBD)
61
AIR 1974 SC 1230; 74 Cri LJ 923
62
165 U.S. 486(1897)

Memorial for Respondent

 29

B.4. THERE IS VIOLATION OF INDECENT REPRESENTATION OF WOMEN

(PROHIBITION) ACT

The Indecent Representation of Women (Prohibition) Act, 1986 prohibits indecent

representation of women through advertisements or publications, writings, paintings, figures

or in any other manner and for matters connected therewith or incidental thereto. According

to Section 2(c) of the act “indecent representation” means depiction, in any manner, of the

figure of a woman, her form or body or any part thereof in such a way as to have the effect of

being indecent or derogatory to or denigrating women, or is likely to deprave, corrupt pr

injure the public morality or morals

Any act like publishing or arranging to publish or taking part in publishing or exhibition or of

any advertisement which contains indecent representation of women in any form is

punishable. If any person produces or causes to be produced, sells, lets to hire, distributes,

circulates or sends by post any book, pamphlet, paper, slide, film, writing, drawing, painting,

photograph, representation or figure which contains indecent representation of women in any

form, the person is liable to be punished on conviction with imprisonment of either

description for a term which may extend to 2 years and with or without fine up to two

thousand rupees. In the event of a second or subsequent conviction the imprisonment may

extend up to 5 years and fine of not less than ten thousand rupees, which may extend up to

one lakh rupees.

According to Section 7 not only an individual but a corporate body can also commit the

offence of indecent representation of women. It says that every person who at the time

offence was committed, was in charge of, and was responsible to, the company, shall be

deemed to be guilty of the offences and liable to be proceeded against and punished

accordingly. But if such a person can prove that that the offence was committed without his

knowledge or that he had exercised his due diligence to prevent it, he shall not be liable. On

Memorial for Respondent

 30

the other hand if it is proved that the offence has been committed by the company with

consent or connivance of or neglect on the part of any director, manager, secretary or other

officer of the company such person shall be proceeded against and punished accordingly.

What is not decent or appears not to be decent is indecent. Indecency relates to public morals.

It is also correlated with the state of mind. Decency describes the state or quality of being

decent in conformity with recognized standards.

The Indecent Representation of Women (Prohibition) Act, 1986 prohibits indecent

representation of women through advertisements or publications, writings, paintings,

figures or in any other manner and for matters connected therewith or incidental thereto.

Section 2(c) of the act defines indecent representation as depiction of a figure of a woman or

any part of her body which is indecent or derogatory to or denigrating women or which is

also bound to deprave, corrupt or injure the public morality.

Any act like publishing or arranging to publish or taking part in publishing or exhibition or of

any advertisement which contains indecent representation of women in any form is

punishable. If any person produces or causes to be produced, sells, lets to hire, distributes,

circulates or sends by post any book, pamphlet, paper, slide, film, writing, drawing, painting,

photograph, representation or figure which contains indecent representation of women in any

form, the person is liable to be punished on conviction with imprisonment of either

description for a term which may extend to 2 years and with or without fine up to two

thousand rupees. In the event of a second or subsequent conviction the imprisonment may

extend up to 5 years and fine of not less than ten thousand rupees, which may extend up to

one lakh rupees.

According to Section 7 not only an individual but a corporate body can also commit the

offence of indecent representation of women. It says that every person who at the time

offence was committed, was in charge of, and was responsible to, the company, shall be

Memorial for Respondent

 31

deemed to be guilty of the offences and liable to be proceeded against and punished

accordingly.63 But if such a person can prove that that the offence was committed without his

knowledge or that he had exercised his due diligence to prevent it, he shall not be liable. On

the other hand if it is proved that the offence has been committed by the company with

consent or connivance of or neglect on the part of any director, manager, secretary or other

officer of the company such person shall be proceeded against and punished accordingly.64

The unique position of the Indian women in our Society and the cultural heritage of India

have been widely known. It is undisputed that the dignity of women has to be preserved and

protected. In the Indian polity, all efforts have been made for emancipation of women and to

guarantee to them of their dignity and personality.

The Constitution of India contain provisions which not only act as protector but also improve

women's condition in all spheres of life Article 19(1)(a) guarantees all citizens the freedom of

speech and expression. Though the Article does not explicitly deals with the freedom of the

Press and Media, however the judicial decisions state that the freedom of speech and

expression include the freedom of the press and circulation also. Further, these rights are not

absolute and are subjected to reasonable restrictions as enshrined under clause (2). Decency

and morality are among the restrictions mentioned under Article 19(2), which have been

included for restricting speeches and publications which tend to undermine public morals

In Ranjit D. Udeshi v. State of Mahrashtra65 , the issue of obscenity and the conflict with

freedom of speech and expression has been discussed atand the court held that obscenity is

offensive to modesty or decency, and decency and morality are reasonable grounds for

restricting the right to freedom of speech and expression of the people as per Article 19(2) of

the Constitution of India.

63
Section 7(1), Indecent Representation of Women(Prohibition) Act,1986
64
Section 7(2)
65
AIR 1965 SC 881

Memorial for Respondent

 32

Accordingly the dignity of woman is constitutionally protected and any media projections

which are derogatory to women should be prevented and prohibited. If the media, electronic

or print, exceed their jurisdiction, the courts come forward to ensure that violation of the

Fundamental rights by the media does not go unchecked.

Moreover, Article 21 guarantees protection of life and personal liberty. Right to life as

enshrined in this article something more then survival or animal existence 66. It has a much

wider meaning which includes right to livelihood, better standard of living, hygienic

conditions in the workplace and leisure. It includes the right to live with human dignity. It is a

basic right of a female to be treated with decency and proper dignity. 67 Acts such as rape,

sexual harassment or molestation or many such which encourage or promote these activities,

are violative of Article 21.68 In Maneka Gandhi v. Union of India69 , it was held that right to

life is not merely confined to physical existence but also includes within its ambit the right to

live with human dignity. In Francis Coralie Mullin v. Union of Territory of Delhi70 it was

held that right to life means something more than just physical survival and is not confined to

protection of any faculty or limb through which life is enjoyed or the soul communicates with

the outside world, but includes ‘the right to live with human dignity’. Women are human

beings and hence every right pertaining to human beings are applicable to women. Thus

Women have right to lead a dignified life. In Chandra Raja Kumari v. Police Commissioner,

Hyderabad the Hon'ble High Court of Andhra Pradesh held that any act which tends to

offend the dignity of a woman or deal with her indecently in the circumstances amounting to

indecent representation in any form, is bound to offend Article 21 of the Constitution of

India as right to live includes right to live with dignity and decency. The Universal

Declaration of Human Rights, International Covenant on Civil and Political Rights has

66
State of Maharashtra v. Chanderbhan, A.I.R. 1983 S.C. 803.
67
State of Punjab v. Baldev Singh, A.I.R. 1999 S.C. 2378.
68
Boddhistattawa Gautam v. Shubra Chakraborty, A.I.R. 1996 S.C. 992.
69
AIR 1978 SC 597 : (1978) 1 SCC 248
70
AIR 1981 SC 746(para 3)

Memorial for Respondent

 33

recognized that human beings have dignity inseparable from them. Thus, the right to dignity

is an inseparable part of right to life guaranteed under the Indian Constitution under Art.21

In the instant the directors of Pushkar Ventures created a comic strip which described the life

of a bold and immoral housewife which was explicit both textually and graphically. The

protagonist of the comic Pramila Adershan became such a cult figure that her image was used

even for advertising certain domestic products. The fact that the strip depraves, corrupts or

injures public morality is evident from the letters sent by mothers to iStore and Ebay and the

pleas received by Cultures Vultures from some mothers of teenagers.

The portrayal of Pramila Adershan as a promiscuous woman has the effect of demeaning,

debasing and degrading women. It also tends to corrupt and deprave the reader. It deprives

them of the respect and dignity that they are entitled to and shows them in a low light. It

would cause great shame and mental agony to all women. Hence there is an indecent

representation of women by way of texts and images in the comic strip.

It can be said that stories about a promiscuous woman would have a morally corruptive effect

on the minds of young people. It would definitely obscure basic moral values and expose

young people to bizarre ideas which may lead to deviant behaviour which among them. It

was contended that the constitutional protection for speech and expression is not absolute and

that it is subject to reasonable restrictions based on considerations of 'public order',

'defamation', 'decency and morality' among other grounds.

The Section 9(2) (c) of The Trade Marks Act, 1999 stipulates that registration of substance

that contains or comprises of scandalous or obscene matter is prohibited. The character which

portrays the picture of the promiscuous life of a lady with sexually and graphically explicit

comic strip is against the morality, culture, ethical principles, just and hon’ble traditions of

conservative Indian society. It is evident to the fact that the matter contains obscene and

Memorial for Respondent

 34

scandalous material which can cause chaos and confusion to the society and also cause the

depravation of morality and decency.

(C) WHETHER THE SEARCH AND SEIZURE POWERS GRANTED UNDER SECTIONS 29

AND 80 OF THE INFORMATION TECHNOLOGY ACT, 2000 ARE CONSTITUTIONAL?

The Superintendent of Police exercising his powers according to Section 80 of the

Information Technology (Amendment) Act, 2008. Section 80 gives power to any police

officer, not below the rank of a inspector, or any other officer of the Central Government or a

State Government authorized by the Central Government in this behalf may enter any

public place and search and arrest without warrant any person found therein who is

reasonably suspected of having committed or of committing or of being about to commit any

offence under this Act. Police officers is acting accordingly to the Act, with due diligence.

Being a cognizable offence the police officer can arrest without a warrant. In State of

Haryana v. Ch. Bhajan Lal71Court stated that when any information disclosing a cognizable

offence is laid before the office-in-charge of a police station, he has no option but to register

the case on the basis thereof.

Information Technology (Amendment) Act, 2008 is Constitutional. The Act is in tune with

the UNCITRAL Model Law. Roger Revelle once quoted “Ever since men began to modify

their lives by using technology they have found themselves in a series of technological

traps.”72The Act is trying to control those traps.

In U.S. v. Hall73,   the court stated that a limited warrant less detention of evidence, even by

the government, was not unreasonable if based on reasonable suspicion.

71
AIR 1992 SC 604
72
Vakul Sharma, “ Information Technology Law and Practice-Law & Emerging Technology, Cyber Law & E-
Commerce Universal Law Publishing Co. Pvt. Ltd., New Delhi, (2nd Edn., 2010), p.26
73
142 F.3d 988 (7th Cir. 1998) ;

Memorial for Respondent

 35

Superintendent of Police is acting according to the Central Government order. He is enabling

himself to meet the terms of Section 80 which also says about the authorization of Central

Government.

Police officer acting in his official powers can act according to his good will, where there is a

reasonable doubt about any objectionable object. Police officer can act in accordance with the

Sections. In Shyamalal’s case74it is opined that to a Search by the police officer under Section

165, Art. 20(3) have no application. In Astt. Collector of Central Excise v. Wilfred

Sabastian75stated that the illegality of a search will not affect the validity of the articles or in

any way vitiate the recovery of the articles and the subsequent trial. In U.S. v. Simons76 the

Court discusses the reasonable cause for suspect a person. In some instances, the foreign-

intelligence exception to the warrant requirement has been extended to a search of computer

files during the search of an American citizen's home in a foreign country.77

Where the inspirational material itself is pornographic in nature, then the outcome of such a

material will be unlawful, illegal and immoral in nature which is against public morality and

decency. Indian Culture has its high traditional approach to follow. Considering a

pornographic material as inspiration itself is unethical.

It includes the public place-mere access to the public case is enough for stating it

constitutional. Any person can access the offices of Pushkar Ventures. They are not

mentioning any criteria for public access. Mere access to the public is sufficient to consider it

as public place. Explanation to Section 80 defines public place, which includes any public

conveyance, any hotel, any shop pr any other place intended for use by, or accessible to the

public.

74
AIR 1965 SC 1251: (1965) 2 CrLJ 256
75
1983 CrLJ NOC 43(Ker)
76
206 F.3d 392 (4th Cir. 2000)
77
U.S. v. Bin Laden, 126 F. Supp. 2d 264 (S.D. N.Y. 2000).

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Section 29 says that the police offices can access any computers and data where he has a

reasonable cause to suspect the parties. Police in this case is reacting towards the Central

Government order and they have reasonable reason to suspect the parties. The allegations

were come up against the parties from various strata of the society. Petitions were filed from

different states of the Union of India. Thus the police have the power to search in these

grounds. Right to privacy is not an absolute right it has its limitations. Police officer is doing

his duty and there is no violation of Fundamental Rights as well as other rights.

D. WHETHER THERE HAS BEEN ANY INFRINGEMENT OF RIGHT TO PRIVACY BY THE

SEARCH OF PRIVATE MAILS AND DOCUMENTS NOT MEANT FOR PUBLIC CIRCULATION ?

In India a private action for damages for unlawful invasion of privacy is maintainable. The

printer and publisher of a magazine or journal would be liable if they publish any matter

related to his private life which includes his family, marriage, procreation, parenthood etc

without his consent. But the exceptions to this are firstly that the right of privacy does not

continue to exist when the publication is a matter of public record and secondly that when the

publication relates to the discharge of official duties of a public servant, an action cannot be

maintained unless the publication is proved to be false, malicious or untruthful.

Also under Constitutional law, the right to privacy is implicit in the fundamental right to life

and liberty guaranteed under Article 21 of the Constitution. But the right to privacy flowing

from Article 21 must be balanced by the fundamental right of the media to publish any matter

of public interest.

In the case of Sharda v. Dharmpal78 it was held by the Supreme Court that the right to

privacy in terms of Article 21 of the Constitution is not an absolute right. If there were a

78
(2003) 4 SCC 493

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conflict between fundamental rights of two parties, that right which advances public morality

would prevail

In District Registrar and Collector v. Canara Bank79, it was held, that “exclusion of

illegitimate intrusions into privacy depends on the nature of the right being asserted and the

way in which it is brought into play; it is at this point that the context becomes crucial, to

inform substantive judgment. If these factors are relevant for defining the right to privacy,

they are quite relevant whenever there is invasion of that right by way of searches and

seizures at the instance of the State.”

WHETHER THERE HAS BEEN ANY VIOLATION OF ARTICLE 20(3)?

There is no violation of Article 20(3) of the Constitution. It says that “No person accused of

any offence shall be compelled to be a witness against himself.” None of the petitioners are

acting as witness against themselves in this issue. Article 20(3) has no applicability in this

case.

It is on this principle that the Court held that the immunity is available to an accused person

when a compulsory process or notice is issued, directing him, under pain of penalty, to

produce a document, but not when a document is recovered from him by search and seizure

by a police officer without involving any volitional act on the part of the accused from whose

possession the document is recovered. Search and seizure are acts of another to which an

accused is obliged to submit and are not testimonial acts. The use of records against an

accused after their seizure for an offence under any enactment is not considered to be

violative of Article 20(3). Documents or articles or any other incriminating

79
(2005) 1 SCC 496: AIR 2005 SC 186

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In Nandini Satpathy v. P.L.Dani80 , the three Judge Bench has however held that the

protection of Article 20(3) goes back to the stage of investigation and that, accordingly, he is

entitled to refuse to answer incriminating questions. It is applicable in case of excess power

of the police officers harassing the people. In State of Bombay v. Kathi Kalu Oghad81 the

protection does not extend to any kind of evidence but only to self incriminating statements

made by the accused. Therefore the Article 20(3) does not protect the petitioner. Self

incrimination must mean conveying information based upon the personal knowledge of the

person giving the information and cannot include merely the mechanical process of

producing documents in Court which may throw a light on any of the points in the

controversy.

The protection under this Article extends to production of all private documents including

books of account.82 But there exists a distinction between an order of the court directing the

accused himself to produce a document and an order directing the police to search and seize

any document. It is the former and not the latter that that is protected.

(F). WHETHER A CASE HAS BEEN MADE OUT IN CASE OF CONSTITUTIONALITY OF

SECTION 69A OF THE INFORMATION TECHNOLOGY (AMENDMENT ) ACT, 2008?

The government of India has given up the power to block pornographic websites purely on

the ground of obscenity or sexually explicit Act considering the cultural heritage, dignity of
80
AIR 1978 SC 1025
81
AIR 1961 SC 1808
82
Ranchhod Das Khimji Ashre v Temton Jahangir, 1961(2) Cr.L.J 338: (1961) 2 Guj. L.R.415: (1961) 2 Guj.
H.C.R. 197: A.I.R. 1961 Guj. 137

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women and also for the controlling of public order with due diligence. Central Government

has the authority to block public access to websites, without further clarifying the necessary

perquisite circumstances for any such action. A decision by the Bombay High Court recently

turning down a Public Interest Litigation (PIL) request for a complete ban on all websites

with sexual content could provide some indication at least as to how that court would

interpret government attempts to ban websites for being obscene. 83 Section 69Acontain the

provision that the section can be invoked for preventing incitement to the commission of any

cognizable offence. Sexually explicit content comes under the cognizable offences.

Contravention of ‘any law’ is violation of public order.84 Wide spread increase in porn

website85 will increase in crimes under Section 375 of the Indian Penal Code as mentioned by

an Australian Research Centre. In the case of Janhit Manch and Ors v. The Union of

India86petition is filed to the blanket ban on websites which according to petitioners are

displaying material pertaining to sex

CONCLUSION AND PRAYER

Wherefore, in the light of the facts stated, points raised, arguments advanced and the
authorities cited, this Hon’ble Court may be pleased to
83
Mayura Janwalker, “Bombay high court says no to blanket ban on porn websites,” DNA, 10 March 2010,
Available at: http://www.dnaindia.com/mumbai/report_bombay-high-court-says-no-to-blanket-ban-on-
pornwebsites_1357395.
84
Times of India…. Is it set to mislead the Public on Savita Bhabhi Issue? , Available at:
http://www.naavi.org/cl_editorial_10/edit_feb_11_2010_savita.htm
85
Ani, Boys who watch porn indulge in casual sex, Available at:
http://timesofindia.indiatimes.com/life/relationships/parenting/Boys-who-watch-porn-indulge-in-casual-
sex/articleshow/5494354.cms

86
PIL No. 155 of 2009: In the High Court of Judicature at Mumbai Civil Appellate side

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Declare that:
i. The petition is not maintable under article 32 of the constitution
ii. The petitioner does not have the locus standi
iii. Sections 67A, 69A and 69B of the Information Technology (Amendment)

Act 2008 and allied provisions in the Indecent Representation of Women

(Prohibition) Act, 1986 and the Indian Penal Code, 1860 are constitutional

iv. Sections 29 and 80 are constitutional

v. There is no infringement of right to privacy

vi. Article 20(3) has no applicability in this case

vii. Central Government can block the websites in cases of violation of public order

under Section 67A

And pass any other order or grant any relief, which the court may deem fit in the ends of
equity, justice and good conscience.

PLACE: All of which is respectfully submitted

DATE: Counsel for the Respondent

APPENDIX
IMPORTANT ARTICLES OF CONSTITUTION OF INDIA AND
OTHER RELEVANT STATUTORY PROVISIONS

Constitution of India

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Article 21.      Protection of life and personal liberty. - No person shall be deprived of his
life or personal liberty except according to procedure established by law.

Article 32.      Remedies for enforcement of rights conferred by this Part. -

(1)     The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.

(2)     The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of
any of Fundamental Rights.

(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.

Code of Criminal Procedure, 1973

Section 482.    Saving of inherent power of High Court. -Nothing in this Code shall be
deemed to limit or affect the inherent powers of the High Court to make such orders as may
be necessary to give effect to any order this Code, or to prevent abuse of the process of any
court or otherwise to secure the ends of justice.

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Indecent Representation of Women Act, 1876

Section 3   

Indian Penal Code

31.

Memorial for Respondent