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TEAM CODE: S- 04

IN THE SUPREME COURT OF CLANDESTINESIA

Appellate Jurisdiction U/Art 136 (SLPs), Constitution of Clandestinesia


and
Original Jurisdiction U/Art 32 (WPs), Constitution of Clandestinesia

SLP(C) No. 2527/2016


Future World Pvt Ltd ...Petitioner
v.
TechdemonsClandestinesiaPvt Ltd ...Respondent
Clubbed With
SLP (Crl) Nos. 432/2016 with 451/2016, 460/2016.
Bioscope &Ors. …Petitioners
v.
State of Innovatia&Anr. ...Respondents
Clubbed With
WP (C) No. 974/2016
KhumantuKhosad ...Petitioner
v.
Union of Clandestinesia&Ors. ...Respondents
Clubbed With
SLP (Crl) Nos. 71/2017 with 77/2017, 83/2017, 91/2017, 104/2017, 132/2017
Bioscope &Ors. …Petitioners
v.
State (The Khosad Island Administration) ...Respondent

MEMORIAL FILED ON BEHALF OF THE PETITIONERS


MEMORIAL ON BEHALF OF THE PETITIONERS

TA B L E O F C O N T E N T S

TABLE OF CONTENTS..........................................................................................................I

LIST OF ABBREVIATIONS................................................................................................III

INDEX OF AUTHORITIES.................................................................................................IV

STATEMENT OF JURISDICTION.................................................................................VIII

STATEMENT OF FACTS.....................................................................................................IX

ARGUMENTS PRESENTED..............................................................................................XI

SUMMARY OF ARGUMENTS..........................................................................................XII

ARGUMENTS ADVANCED...................................................................................................1

A. THAT SECTION 292 OF CAPC AND SECTIONS 67 AND 67A OF CIT ACT ARE VAGUE
AND ARBITRARY AND ULTRA VIRES THE CONSTITUTION.....................................................1

1. THAT THE SECTIONS DO NOT OBJECTIVELY DEFINE THE OFFENCE...........................1

2. THAT THE SECTIONS VIOLATE THE FUNDAMENTAL RIGHT TO SPEECH AND

EXPRESSION AND ARE ULTRA VIRES THE CONSTITUTION.....................................................3

3. THE SECTION IS NOT IN PROXIMATE NEXUS WITH THE OBJECT SOUGHT TO BE

ACHIEVED...........................................................................................................................4

B. THAT THE KHOSAD TRIBE HAS A FUNDAMENTAL RIGHT GUARANTEED UNDER

ARTICLE 29 OF THE CONSTITUTION OF CLANDESTINESIA QUA ORGANIZATION AND

CONDUCT OF THE ANNUAL RITUAL OF KHOSADASTI...........................................................5

1. THAT THE KHOSADS CAN CLAIM RIGHTS AS A SECTION OF CITIZENS.......................5

2. THE KHOSADS HAVE A DISTINCT CULTURE AND KHOSADASTI IS AN INHERENT PART

OF THAT CULTURE, WHICH IS PROTECTED UNDER ARTICLE 29...........................................6

C. KHOSADS CANNOT CLAIM TO HAVE A ‘REPUTATION’ AS A COMMUNITY IN AS MUCH


AS ANY CONSEQUENT INJURY TO SUCH REPUTATION CAN AMOUNT TO THE CRIMINAL

OFFENCE OF DEFAMATION AND THE SAME BEING PUNISHABLE U/S 499 AND 500 OF THE
CAPC.....................................................................................................................................7

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MEMORIAL ON BEHALF OF THE PETITIONERS

1. THAT THE KHOSADS CANNOT CLAIM TO HAVE A REPUTATION AS A COMMUNITY....8

2. ARGUENDO, SUPPOSING NOT CONCEDING THAT KHOSADS CAN CLAIM TO HAVE A

‘REPUTATION’ AS A COMMUNITY, NO HARM WAS DONE TO THEIR REPUTATION.................9

D. THE KHOSADS AS A COMMUNITY CANNOT CLAIM PUBLICITY RIGHTS...................11

1. PUBLICITY RIGHTS CAN BE CLAIMED ONLY BY INDIVIDUALS.................................11

2. ARGUENDO, SUPPOSING NOT CONCEDING THAT KHOSADS AS A COMMUNITY CAN

CLAIM PUBLICITY RIGHTS................................................................................................12

E. THAT THE PROMOTERS, DR. JNANENDRA MITRA AND ZUBIN DUBASH ARE NOT

VICARIOUSLY LIABLE FOR THE ACTS OF TCPL, BIOSCOPE AND FWPL RESPECTIVELY
FOR THE OFFENCES PUNISHABLE U/S 292 AND 499 OF CAPC AND U/S 66, 67A OF THE

CIT ACT...............................................................................................................................14

1. THAT THE ACCUSED CANNOT BE MADE VICARIOUSLY LIABLE FOR OFFENCES

UNDER CAPC DUE TO THE ABSENCE OF AN EXPRESS STATUTORY REGIME......................14

2. THAT THE ACCUSED CANNOT BE MADE VICARIOUSLY LIABLE FOR OFFENCES

PUNISHABLE UNDER SECTIONS 67 AND 67A OF THE CIT ACT.........................................15

F. THAT TCPL HAS BREACHED THE SHA BY EXECUTING THE NARRATION


AGREEMENT AND IS LIABLE TO PAY FOR THE SAME.........................................................17

1. PROMOTERS HAVE SIGNIFICANT INFLUENCE OVER COMPANY................................17

2. RELATED PARTY TRANSACTION LEADING TO ENRICHMENT OF PROMOTERS AND

SIPHONING OFF OF FUNDS.................................................................................................18

3. INCREASE IN SALARY OF PROMOTERS IS A RESULT OF THEM ENTERING INTO

NARRATION AGREEMENT...................................................................................................19

4. FWPL HAS AFFIRMATIVE VOTING RIGHTS..............................................................20

prayer......................................................................................................................................xiv

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MEMORIAL ON BEHALF OF THE PETITIONERS

L I S T O F A B B R E V I AT I O N S

Abbreviations Full Forms

AIR All India Reporter

Anr Another

CIT Informational Technology Act (Clandestinesia)

CaPC Clandestinesia Penal Code

Co Company

edn Edition

Fd Federal Reporter

F Supp Federal Supplement

FWPL Future World Private Limited

Ltd Limited

NI Negotiable Instruments Act (Clandestinesia)

QB Queen’s Bench

SCC Supreme Court Cases

SCR Supreme Court Reporter

SEBI Securities and Exchange Board of India

SHA Shareholder’s Agreement

SLP Special Leave Petition

TCPL TechdemonsClandestinesia Private Limited

WP Writ Petition

US United States of America

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MEMORIAL ON BEHALF OF THE PETITIONERS

INDEX OF AUTHORITIES

CASES

Ahmedabad St Xavier's College Society v State of Gujarat [1974] 1 SCC 717.........................6


Ajay Goswami v Union of India [2007] 1 SCC 143...................................................................3
AK Roy v Union of India [1982] 1 SCC 271..............................................................................2
Aneeta Hada v Godfather Travels & Tours Ltd [2012] 5 SCC 661.........................................15
Arunachala Nadar MCVS v State of Madras AIR 1959 SC 300................................................4
Bordelon v Cochrane 533 So 2d 82 [1988]..............................................................................19
Chaman Lal v State of Punjab AIR 1970 SC 1372..................................................................10
Chandrakant Kalyandas Kakodkar v State of Maharashtra AIR 1970 SC 1390..................1, 2
Commissioner of Income Tax Bombay v Walchand & Co AIR 1967 SC 1435........................19
Dale & Carrington Invt (P) Ltd v PK Prathapan [2005] 1 SCC 212......................................20
DAV College Jullunder v State of Punjab [1971] 2 SCC 269....................................................6
DG of Doordarshan v Anand Patwardhan [2006] 8 SCC 433..................................................3
DM Entertainment Pvt Ltd v Baby Gift House [2002] CS (OS) 893 (Del)..............................13
Dora v Frontline VideoInc [1993] 15 CalApp 536..................................................................13
Enterprises v Irrigation Dept [2008] 7 SCC 169.....................................................................17
G Narsimhan v TV Chokappa AIR 1972 SC 2609.....................................................................8
Haelan Laboratories Inc v Topps Chewing Gum Inc 202 F 2d 866 [1953].............................11
HDFC Securities Ltd v State of Maharashtra [2017] 1 SCC 640............................................16
ICC Development (International) Ltd v Arvee Enterprises [2003] 26 PTC 245 (Del)............11
In Re Bharatiya Global Infomedia Ltd [2014] SCC OnLine SEBI 181..................................18
In Re Cals Refineries Ltd [2013] SCC OnLine SEBI 43.........................................................18
In Re Zylog Systems Limited[2015] SCC OnLine SEBI 420...................................................18
Iridium India Telecom v Motorola Inc [2011] 1 SCC 74.........................................................15
Jagdish Chavla v State of Rajasthan [1999] Cri LJ 2562 (Raj).................................................2
Javed v State of Haryana AIR 2003 SC 3057............................................................................4
Jones v Corbis Corporation 815 F Supp 2d 1108 [2011]........................................................13
KA Abbas v Union of India [1970] 2 SCC 780..........................................................................1
Katta v Fertilizers & Chemicals Travancore [2002] 7 SCC 655.............................................16
Kishore Samrite v State of UP [2003] 2 SCC 398.....................................................................9
KK Ahuja v VK Vora [2009] 10 SCC 48..................................................................................16

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MEMORIAL ON BEHALF OF THE PETITIONERS

Lakshmanaswami Mudaliar v Life Insurance Corporation AIR 1963 SC 1185......................20


M P Narayan Pillai v M P Chacko [1986] Cri LJ 2002.......................................................8, 10
Maksud Saiyed v State of Gujarat [2008] 5 SCC 668..............................................................15
Maneka Gandhi v Union of India [1978] 2 SCR 621............................................................1, 3
Maneklal Chottalal v MG Makwana AIR 1967 SC 1373..........................................................5
Matthews v Wozencraft 15 F3D 423 [1994].............................................................................14
Miller v California 413 US 15 [1973]........................................................................................2
Netai Bag v State of WB [2000] 8 SCC 262...............................................................................2
Newton v Thomason 22 F3d 1455[1994].................................................................................14
Nityanand Sharma v State of Bihar [1996] 3 SCC 576.............................................................6
NK Wahi v Shekhar Singh AIR 2007 SC 1454.........................................................................16
Papnasam Labour Union v Madura Coats Ltd AIR 1995 SC 2200..........................................4
R Rajagopal v State of Tamil Nadu [1994] 6 SCC 632............................................................11
R v Butler [1992] 1 SCR 452 (Canada)......................................................................................5
Rallis India Ltd v Poduru Vidya Bhushan [2011] 13 SCC 88..................................................17
Ramalakshmi Ammal v Sivananth Perumal Sethurayar [1871] 14 MooIA 570........................7
Ramsay v IRC [1982] AC 300 (HL).........................................................................................19
Ranjit Udeshi v State of Maharashtra AIR 1965 SC 881..........................................................2
Regina v Hicklin [1868] 3 QB 360.............................................................................................2
S Khushboo v Kanniammal [2010] 5 SCC 600......................................................................7, 8
Sabitha Ramamurthy v RBS Channabasavaradhya [2006] 10 SCC 58.............................15, 16
Sahib Singh Mehra v State Of Uttar Pradesh AIR 1965 SC 1451............................................8
Sakal Papers v Union of India AIR 1962 SC 305..................................................................3, 5
Samaresh Bose v Amal Mitra [1985] 4 SCC 289.......................................................................3
Saroj Kumar Poddar v State [2007] 3 SCC 693......................................................................16
Shah Rukh Khan v State of Rajasthan [2008] 1 RLW 809...................................................9, 10
Sham Sunder v State of Haryana [1989] 4 SCC 630, 632.......................................................14
Shanti Prasad Jain v Kalinga Tubes Ltd AIR 1965 SC 1535..................................................19
Sharad Kumar Sanghi v Sangita Rane [2015] 12 SCC 781.....................................................16
Shreya Singhal v Union of India AIR 2015 SC 1523.............................................................2, 4
Sindhi Education Society v Govt (NCT of Delhi) [2010] 8 SCC 49...........................................6
SMS Pharmaceuticals Ltd v Neeta Bhalla [2005] 8 SCC 89...................................................16
State of Bihar v Kameshwar AIR 1952 SC 252.........................................................................3
State of Bombay v FN Balsara AIR 1951 SC 318.....................................................................2

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MEMORIAL ON BEHALF OF THE PETITIONERS

State of Madhya Pradesh v Baldeo Prasad AIR 1961 SC 293..................................................2


State of Madras v Srimathi Champakam Dorairajan AIR 1951 SC 226...................................7
Subhkam Ventures v Securities and Exchange Board of India [2010] SCC OnLine SAT 35.. 20
Subramanium Swamy v Union of India [2016] 7 SCC 264.......................................................9
Sunil Bharti Mittal v CBI [2015] 4 SCC 609...........................................................................15
Superintendent Central Prison v Ram Manohar Lohia AIR 1960 SC 633................................4
Vishwanath v Shambhu Nath Pandeya [1995] Cri LJ 277.........................................................8
Vodafone International Holdings BV v Union of India [2012] 6 SCC 613..............................19
Zacchini v Scripps-Howard Broadcasting Co 433 US 562 [1977]..........................................13

STATUTES

Clandestinesia Information Technology Act 2000, s 292...........................................................1


Clandestinesia Information Technoogy Act 2000, s 2................................................................2
Clandestinesia Penal Code 1860, s 29A.....................................................................................1
Clandestinia Information Technology Act 2000, s 85..............................................................15
Comstock Act (US) 1873...........................................................................................................5
Negotiable Instruments Act 1881, s 141..................................................................................15
Restatement (Third) of Unfair Competition Act 2005, s 46 (USA).........................................13
The Constitution of Clandestinesia 1950, art 13(3)(a)...............................................................7
The Constitution of Clandestinesia 1950, art 29........................................................................5
The Constitution of India 1950, Art 19(1) (a)............................................................................3
West’s Revised Code 1998, s 63(60)(050)...............................................................................14

OTHER AUTHORITIES

Accounting Standards-18 (Related Party Disclosures) 2000...................................................17


J Thomas McCarthy, ‘The Human Persona as Commercial Property: The Right of Publicity’
(1994) 19 Colum VLA JL 129.......................................................................................12, 13
Joanna Stevens, ‘Obscenity Laws and Freedom of Expression: A Southern African
Perspective’ (Southern Africa Development Cooperation, January 2000).............................5
Stacy Allen, Emilio Nicolas and Megan Honey, ‘Non-human persons and the right of
publicity’ (JW, April 2012)...................................................................................................12

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MEMORIAL ON BEHALF OF THE PETITIONERS

Stacy Allen, Emilio Nicolas and Megan Honey, ‘Non-human persons and the right of
publicity’ (JW, April 2012)...................................................................................................12
United Nations Declaration on the Rights of Indigenous Peoples 2007, art 18.........................6
United Nations Declaration on the Rights of Indigenous Peoples 2007, art 34.........................6
Yale Lewis, ‘Publicity Rights Revisited’ (Hendricks & Lewis PLLC, 2008)..........................13

BOOKS

B Siva Rao, Select Documents(1957) vol 2, 281.......................................................................7


Bryan Garner, Black’s Law Dictionary (8th edn, Thomson Reuters 2004)..............................11
Ram Jethmalani and DS Chopra, The Indian Penal Code (1st edn, Thomsan Reuters 2014)
2563......................................................................................................................................10
Vakul Sharma, Information Technology- Law and Practice (3rd edn, Universal Law
Publishing 2011) 191.............................................................................................................3
Vinod Kothari and Sikha Bansal, Independent Directors (Taxmann 2014) 57........................17

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MEMORIAL ON BEHALF OF THE PETITIONERS

S TAT E M E N T O F J U R I S D I C T I O N

In the present SLP(C) No. 2527/2016 under Article 136 of the Constitution of Clandestinesia
concerning the matter of Future World Pvt Ltd v TechdemonsClandestinesiaPvt Ltd, the
petitionerhumbly submits to the Jurisdiction of this Hon’ble Court.

In the present SLP (Crl) Nos. 432/2016 with 451/2016, 460/2016 under Article 136 of the
Constitution of Clandestinesia concerning the matter of Bioscope and Ors v State of
Innovatia and Ors, the petitioners humbly submit to the Jurisdiction of this Hon’ble Court.

In the present WP (C) No. 974/2016 under Article 32 of the Constitution of Clandestinesia
concerning the matter of KhumantuKhosad v Union of Clandestinesia and Ors, the petitioner
humbly submits to the Jurisdiction of this Hon’ble Court.

In the present SLP (Crl) Nos. 71/2017 with 77/2017, 83/2017, 91/2017, 104/2017, 132/2017
under Article 136 of the Constitution of Clandestinesia concerning the matter of Bioscope
and Ors v State, the petitioners humbly submit to the Jurisdiction of this Hon’ble Court.

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MEMORIAL ON BEHALF OF THE PETITIONERS

S TAT E M E N T O F FA C T S

THE BACKGROUND

 In July 2013, Roy Pereira and TehmulDastur (“The Promoters”) dropped out from
Clandestinia Institute of Technology (CIT) and established TechdemonsClandestinesia
Private Limited (TCPL) as directors. Its main objectives were to design websites and help
with visual effects and it also took up pro bono designing for NGOs and/or social causes.
 In May 2014, TCPL sought private funding from ZubinDubash, director of Future World
Private Limited (FWPL), a multinational conglomerate, especially renowned for scientific
innovation. They were involved in a clash with the Khosads.
 Khosads were a tribe of several hundred individuals living on a secluded ‘Khosad
Islands’, famous for ‘ignomy’. They practiced ‘Khosadasti’, which involved men of
marriageable age choosing their bride based on their compatibility through sexual
intimacy after a private stay.

THE DEVELOPMENTS

 In June 2014, FWPL was granted mining rights in Khosad Islands with a condition that
FWPL will have to take prior approval of Ministry of Mines before taking control over
any other company.
 When FWPL started operations, the Khosads claimed that this was an intrusion into their
peaceful life. This led to huge media coverage and public support for Khosads. In July
2014, ‘Khosadasti Report’ by a media agency arose a lot of curiosity in the general
public. The public opinion (including The Promoters) denounced and expressed shock
after such reports surfaced.
 Dr. JnanendraMitra, the chairman of ‘Bioscope’ approached TCPL to help with the visual
effects of their film ‘In The Land OfKhosads’.

THE AGREEMENTS

 In August 2014, FWPL agreed to invest in TCPL in two tranches. FWPL invested in
TCPL to get 24.99% shares in the company. A shareholders’ agreement (“SHA”) was
prepared by FWPL and executed with TCPL to record the rights and obligations of the
parties. The SHA provided that TCPL shall not enter into any related party contracts
without prior approval of FWPL along with some other conditions. According to FWPL,
they had not taken control over TCPL by investing in it.

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MEMORIAL ON BEHALF OF THE PETITIONERS

 Bioscope approached TCPL for financial assistance regarding the documentary to which
they agreed. For this purpose, the Promoters entered into an agreement (“Narration
Agreement”) with TCPL (acting in the capacity of producers of the film) pursuant to
which they were to narrate the documentary. In the first board meeting after the execution
of the SHA, the independent directors unanimously voted to increase their salary.
 In March 2015, ‘In the land of Khosads’ was released and receivedcritical acclaim and
subsequently on 1st April 2015, ‘neXt’ was launched which became an instant success.

THE CONFLICT: JUDICIAL PROCEEDINGS

 In August 2015,‘SamajKalyan Kendra’, filed a Criminal Complaint in the Court of Chief


Judicial Magistrate, Pop City against Bioscope and TCPL on the following grounds of
obscenity and promoting ‘neXt’ for viewing porn and when the charges were framed, the
accused preferred separate writ petitions before the High Court of Innovatia under Article
226 of the Constitution of Clandestinesia which were dismissed. In response, the accused
preferred separate SLPs before the Supreme Court which were admitted on 27 th
September, 2016.
 In November 2015, FWPL filed a Suit for Damages against TCPL claiming breach of
contract in the High Court Innovatia. On 24th April, 2016 the Hon’ble High Court
decreed in favor of FWPL. TCPL appealed to the division bench of HC, who decreed in
favor of TCPL. FWPL filed a Special Leave Petition in the Supreme Court under Article
136 of the Constitution.
 KhumantuKhosad filed a criminal complaint against TCPL, FWPL and Bioscope alleging
they have conspired to defame Khosads through their film in order to protect mining
license of FWPL. In the criminal complaint, it was averred that the consent of Khosad
tribe was not taken and thus their publicity rights were violated; that the practice of
Khosadasti was misrepresented; and that the film ‘In the Land of Khosads’ had defamed
the Khosads.
 Meanwhile, the government issued a notification restricting the Khosads to practice
Khosadasti privately. KhumantuKhosad challenged the notification issued by the
Government under Article 32 of the Constitution of Clandestinesia.

ARGUMENTS PRESENTED

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MEMORIAL ON BEHALF OF THE PETITIONERS

I. That Section 292 of CaPC and Section 67 and 67A of CIT Act are vague and arbitrary
and ultra vires the Constitution.

II. That the Khosad tribe has a fundamental right guaranteed under Article 29 of the
Constitution of Clandestinesia qua organization and conduct of the annual ritual of
Khosadasti.

III. That the Khosads cannot claim to have a ‘reputation’ as a community inasmuch as any
consequent injury to such reputation can amount to the criminal offence of defamation
and the same being punishable u/s 499 and 500 of the Clandestinesia Penal Code.

IV. That the Khosads as a community cannot claim publicity rights.

V. That the Promoters, Dr. JnanendraMitra and ZubinDubash are not vicariously liable
for the acts of TCPL, Bioscope and FWPL respectively for the offences punishable u/s
292 and 499 of CaPC and u/s 66, 67A of the CIT Act.

VI. That TCPL has breached the SHA by executing the Narration Agreement and are
liable to pay damages for the same.

SU MMA RY OF A R GU ME N TS

A. That Section 292 of CaPC and Section 67 and 67A of CIT Act are vague and
arbitrary and ultra vires the Constitution.

The offence of obscenity has been defined using vague and arbitrary terms that leave a wide
scope for various interpretations. Use of terms like “lascivious”, “prurient interest” leaves

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MEMORIAL ON BEHALF OF THE PETITIONERS

scope for subjectivity in the definition. There is no definite test for the offence of obscenity,
the community standards according to which obscenity is to be defined differ from place to
place and therefore, the judiciary has been in tussle about which test to apply for several
years. Furthermore, the offence of obscenity is an unreasonable and vague restriction on
freedom of speech and expression as guaranteed by the Constitution of Clandestinesia. The
offence is also not in proximate nexus with the object sought to be achieved by implementing
the said offence i.e. to maintain public decency and prevent child pornography.

B. That the Khosad tribe has a fundamental right guaranteed under Article 29 of
the Constitution of Clandestinesia qua organization and conduct of the annual
ritual of Khosadasti.

The Khosad tribe has a fundamental right guaranteed under Article 29 of the Constitution of
Clandestinesia and also they have a right to protect their distinct culture of Khosadasti under
Article 29. The Constitution includes and acknowledges customs or practices having the force
of law in part III. Khosadasti is an integral part of their culture and that simply being immoral
is no ground for penalizing someone or something.

C. That the Khosads cannot claim to have a ‘reputation’ as a community in as much


as any consequent injury to such reputation can amount to the criminal offence
of defamation and the same being punishable u/s 499 and 500 of the CaPC.

The Khosads cannot claim to have a reputation as a community as they are not a definite and
identifiable collection of person and cannot claim the benefit of Explanation 2 of Section 499
of CaPC. The presence of mining operations, a court implies that they are not completely
secluded and are accessible from the mainland. Supposing they can claim to have a
reputation, no injury has been caused to their reputation as there was no intention to harm
their reputation and the film was made in good faith for protecting their interests.

D. That the Khosads as a community cannot claim Publicity Rights.

The Khosads cannot claim publicity rights as a community as right of publicity protects only
an individual or an indicia of an individual. This right protects the persona of an individual
which is distinct for different people and therefore cannot be considered as a collective right.
Supposing they can claim publicity rights, there has been no violation as there was no
commercial exploitation and their identity was used with their consent.

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MEMORIAL ON BEHALF OF THE PETITIONERS

E. That the Promoters, Dr. JnanendraMitra and ZubinDubash are not vicariously
liable for the acts of TCPL, Bioscope and FWPL respectively for the offences
punishable u/s 292 and 499 of CaPC and u/s 66, 67A of the CIT Act.

The company directors or officers cannot be held vicarious liable under sections 292 and 499
of CaPC since it is cardinal principle of criminal jurisprudence that there is no vicarious
liability in criminal law. Furthermore, without the statute providing for an express statutory
regime imposing vicarious liability on company officers for the offences committed by the
companies, the directors cannot be held liable. The accused are also not vicariously liable
under sections 67 and 67A of the CIT Act because there are no specific averments alleged
against the accused in the complaint that prove that they were responsible for the conduct of
the company or they had given their consent for any act that led to the contravention of the
CIT Act.

F. That TCPL has breached the SHA by executing the Narration Agreement and
liable to pay damages for the same.

TCPL has entered into a related party transaction defined under AS-18 with its own firm and
is siphoning off the shareholders money by manipulating the company as it holds significant
influence over the firm. FWPL also enjoys affirmative voting rights without controlling
TCPL.

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MEMORIAL ON BEHALF OF THE PETITIONERS

A R G U M E N T S A D VA N C E D

A. T H AT S E C T I O N 292 OF C A PC AND S E CT IO NS 67 AND 67A OF CITA CT AR E

VAG UE A N D A R B I T R A RY A N D ULT R A V IR E S TH E C O NST IT UT IO N .

It is humbly submitted before the Hon’ble Supreme Court of Clandestinesia that the offence
of obscenity has not been defined clearly, and that the terms laid down to establish the
offence are vague and arbitrary. The offence is against the democratic spirit that ensures
freedom of expression as enshrined in the Constitution, and that the restrictions imposed are
unreasonable and cannot be guised under the reasonable restrictions as laid down in the
Constitution.

1. T HAT THE S ECTIONS DO NOT OBJECTIVELY DEFINE THE OFFENCE .

Section 292 of CaPC and Section 67 and 67A of CITAct are similarly worded and both apply
to electronic media as well, the former widely and the latter exclusively. 1 The common
appearance of terms like “publishing”, “transmitting”, “causing to be published”,
“lascivious”, “prurient interests”, “to deprave” prove that the said sections are aimed at
achieving the same objectives. Hence, if it is established that the terms used in a section lack
a proper definition, it will render the said section vague and arbitrary.2

A. THAT THE WORD ‘OBSCENITY’ AND THE INGREDIENTS TO PROVE IT ARE VERY

WIDE AND SUBJECTIVE, AND HENCE VAGUE AND ARBITRARY.

The word ‘obscenity’ has neither been defined in section 292 of the CaPC nor in any other
statute penalizing obscenity.3The requirement that crimes must be defined with appropriate
definiteness is regarded as a fundamental concept in criminal law and is regarded as a
pervading theme of the Constitution since the decision in Maneka Gandhi4. The underlying
principle is that every person is entitled to be informed as to what the State commands or
forbids and that the life and liberty of a person cannot be put in peril on an ambiguity.Not just
‘obscenity’, even the terms like “publishes”, “transmits”, “causes to transmit” have not been

1
Clandestinesia Penal Code 1860, s 29A; Clandestinesia Information Technology Act 2000, s 292.
2
KA Abbas v Union of India[1970] 2 SCC 780.
3
ChandrakantKalyandasKakodkar v State of Maharashtra AIR 1970 SC 1390.
4
Maneka Gandhi v Union of India [1978] 2 SCR 621.

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MEMORIAL ON BEHALF OF THE PETITIONERS

defined in the definition clause5 of the CIT Act. In Baldeo Prasad6, the failure to define the
term ‘goondas’ led the Supreme Court to declare an act criminalizing ‘goondas’ as
unconstitutional. Furthermore, mere possession of obscene material is not an offence if it has
not been published or transmitted in the electronic form. 7This leaves a lot of scope for doubt
and interpretation in order to assess whether or not the person has committed an offense.

Although neither the CaPC nor theCIT Act defines what ‘obscenity’ is, section 292 of the
CaPC and section 67 of the CIT Act explain ‘obscenity’to mean anything which is lascivious
or appeals to prurient interest or if its effect is to deprave or corrupt persons.These words
widen the scope of the section to such a limit that even partial nudity can be brought within it;
overlooking the artistic value of the work. The issue of definition speaks to vagueness, while
the issue of limit speaks to over-breadth and if the section is vague or over-broad, it should be
declared void.8“The formulation of definitions cannot be a panacea to the evil of vagueness
and uncertainty. The impossibility of framing a definition with mathematical precision cannot
either justify the use of vague expressions or the total failure to frame any definition at
all.”9Every action of the Government must be in conformity with reasons and should be free
from arbitrariness.10The Supreme Court can strike down any conferment of discretionary
power on an authority if it’s too broad, sweeping or uncanalized.

B. THE TEST FOR OBSCENITY IS INDEFINITE.

The test for obscenity was the first laid down in the Hicklin case11 as the tendency “to
deprave and corrupt those whose minds are open to such immoral influences and into whose
hands a publication of this sort might fall”, where the test applied only to the individual
portions of the work and the test was generally applied to check the work’s effect on the
young. This was affirmed by the Supreme Court with certain modifications that only included
works without a “preponderating social purpose”.12The Supreme Court then went on to
endorse the Miller test13 or the “likely-audience” test, a clear departure from the Hicklin test,
judging the work from the perspective of an ordinary man of common sense applying the

5
Clandestinesia Information Technoogy Act 2000, s 2.
6
State of Madhya Pradesh v Baldeo Prasad AIR 1961 SC 293.
7
JagdishChavla v State of Rajasthan [1999] Cri LJ 2562 (Raj).
8
State of Bombay v FN Balsara AIR 1951 SC 318; ShreyaSinghal v Union of India AIR 2015 SC 1523.
9
AK Roy v Union of India [1982] 1 SCC 271.
10
Netai Bag v State of WB [2000] 8 SCC 262.
11
Regina v Hicklin [1868] 3 QB 360.
12
RanjitUdeshi v State of Maharashtra AIR 1965 SC 881; ChandrakantKalyandasKakodkar v State of
Maharashtra AIR 1970 SC 1390.
13
Miller v California 413 US 15 [1973].

20
MEMORIAL ON BEHALF OF THE PETITIONERS

community standards.14The concept of obscenity would differ from country to country


depending on the standards of morals of contemporary society. 15Even the idea of
contemporary standards of society is a very vague criterion since a thing might be considered
moral for a willing adult one month past the legal age and immoral for a juvenile, a month
younger.

In the case of Ajay Goswami16, Lakshamanan, J. observed that: “While the Supreme Court in
India held Lady Chatterley’s Lover to be obscene, in England the jury acquitted the
publishers finding that the publication did not fall foul of the obscenity test. The different
views were motivated by different community mores and standards.” For the past few years,
the lawmakers have been in quandary whether to apply these tests for obscenity or amend the
existing laws to adjudge the growing incidences of obscenity. 17 These conflicting tests and
regularly amended law are changing continuously since the lawmakers have still not been
able to objectively and correctly define the offence.

2. T HAT THE SECTIONS VIOLATE THE FUNDAMENTAL RIGHT TO SPEECH AND

EXPRESSION AND ARE ULTRA VIRES THE C ONSTITUTION .

The freedom of speech and expression is a fundamental right; not only in itself but also in the
role it plays in guaranteeing other fundamental rights.18 The role of free speech and
expression in a democratic society has been emphasized time and again by the apex
court.19The social mediablurs the traditional boundaries between the journalist and his
audience it enables the ordinary citizen who lacks media connections to reach out to an
audience. It is submitted, therefore, that it is very important that such transmission of thought
is never hindered. However, certain restrictions are laid down in Article 19(2)of the
Constitution. These restrictions are exhaustive and are to be strictly construed. 20 Thus, the
Court must strike down any law which imposes a restriction upon the freedom of speech or
expression unless it falls under directly under any of the grounds specified in Article 19(2).21

14
DG of Doordarshan v AnandPatwardhan [2006] 8 SCC 433; Ajay Goswami v Union of India [2007] 1 SCC
143.
15
Samaresh Bose v AmalMitra [1985] 4 SCC 289.
16
Ajay Goswami v Union of India [2007] 1 SCC 143, 169.
17
Vakul Sharma, Information Technology- Law and Practice (3rd edn, Universal Law Publishing 2011) 191.
18
The Constitution of India 1950, Art 19(1) (a).
19
Maneka Gandhi v Union of India [1978] 2 SCR 621.
20
Sakal Papers v Union of India AIR 1962 SC 305.
21
State of Bihar v Kameshwar AIR 1952 SC 252.

20
MEMORIAL ON BEHALF OF THE PETITIONERS

A. THE RESTRICTIONS IMPOSED BY THE SECTIONS AREVAGUE AND THEREFORE,

UNREASONABLE.

The requirement of ‘reasonableness’ runs like a golden thread through the entire fabric of
Fundamental Rights enshrined in the Constitution.22 A restriction is unreasonable if it sweeps
within its ambit activities which constitute a legitimate exercise of freedom of speech and
expression, or the restriction is in excess of what was necessary to suppress or prevent the
social mischief aimed at.23In PapnasamLabour Union24, the Supreme Court has laid down the
grounds to check the constitutionality of a statute: the restriction must not be arbitrary or of
an excessive nature; there must be a direct and proximate nexus between the restriction
imposed and the object sought to be achieved.The impugned sections herein are
unreasonable, and the publication of any artistic work which includes sexual portrayal can be
stopped, simply if it offends a certain section of the society or is indecent to them on the
grounds of public decency.

It has been held that any legislation is an unreasonable restriction within the purview of
Article 19 if the punishment is too harsh in the present-day social background, in relation to
the offence committed.25 Not only is the punishment for the sections too harsh, it is also
inconsistent for obscenity on different platforms with section 292 of CaPC sentencing
offenders to two years of imprisonment for first conviction while section 67 of the CIT Act
sentencing them to three years.

3. THE SECTION IS NOT IN PROXIMATE NEXUS WITH THE OBJECT SOUGHT

TO BE ACHIEVED .

Indirect or far-fetched or unreal connection between the restriction and public order would
not fall within the purview of reasonable restriction. The limitation imposed under Article
19(2) of the Constitution, should be one which has a proximate connectionor nexus with
public decency, but not one which is far-fetched, hypothetical, problematic or too remote.26

All the obscenity laws have been derived from the western colonialism’s idea of moral
fundamentalism where the moral views of the majority were not debatable but deemed to be

22
Javed v State of Haryana AIR 2003 SC 3057.
23
ShreyaSinghal v Union of India AIR 2015 SC 1523.
24
PapnasamLabour Union v Madura Coats Ltd AIR 1995 SC 2200.
25
Inderjeet v State of Uttar Pradesh AIR 1979 SC 1867.
26
ArunachalaNadar MCVS v State of Madras AIR 1959 SC 300; Superintendent Central Prison v Ram
ManoharLohiaAIR 1960 SC 633.

20
MEMORIAL ON BEHALF OF THE PETITIONERS

true.27 This included the early Christian idea of stigmatization of sex and its ill portrayal. 28The
main argument for penalizing obscenity is that it is offensive to some people, which is
baseless since the Courts have clearly differentiated between harmful and offensive and
found that the obscenity law applies only where harmhas been done. 29 And the second
argument i.e children should be protected from harm which is invalid on the ground that it is
widely accepted that decisions about what children may see or watch should be subject to
parental control and that as a general principle, it is not legitimate to totally restrict adult
access to material, simply because it might be harmful to children, should they obtain access
to it.30

Also, even when the restriction imposed has a rational relation to the object which the
Legislature seeks to achieve, it will be “unreasonable” if it is unnecessarily harsh or if it
overreaches the scope of the object to achieve which it was enacted. 31 The impugned law
must not, under the guise of protecting public interests, arbitrarily interfere with the exercise
of a fundamental right.32 Thus, the section 67 and 67A of the CIT Act, 2000 are not in
proximate nexus with the object sought to be achieved and hence should be struck down.

B. T H AT THE K H O SA D T R I B E H AS A F UNDAM E N TAL RIG H T G UARANT E E D

UNDE R A RT I C L E 29 OF THE C O NST IT UT IO N OF C L ANDE ST INE S IA QU A


O RG AN I Z AT I O N A N D C O N D U CT OF T H E ANNUAL RIT UAL OF K H OSA DA ST I .

1. T HAT THE K HOSADS CAN CLAIM RIGHTS AS A SECTION OF CITIZENS .

It is humbly submitted before the Hon’ble Court that the Khosads are a tribe living on a
secluded island called ‘Khosad Island’ and have their own distinct culture which they have
continued to practice and celebrate for centuries and they also qualify as a ‘section of
citizens’ under Article 29 of the Constitution.33

27
Comstock Act (US) 1873.
28
Joanna Stevens, ‘Obscenity Laws and Freedom of Expression: A Southern African Perspective’ (Southern
Africa Development Cooperation, January 2000) <www.article19.org/data/files/pdfs/publications/obscenity-law-
paper.pdf > accessed 22 August 2017.
29
R v Butler [1992] 1 SCR 452 (Canada).
30
Joanna Stevens, ‘Obscenity Laws and Freedom of Expression: A Southern African Perspective’ (Southern
Africa Development Cooperation, January 2000) <www.article19.org/data/files/pdfs/publications/obscenity-law-
paper.pdf > accessed 22 August 2017.
31
Sakal Papers v Union of IndiaAIR 1962 SC 305.
32
ManeklalChottalal v MG Makwana AIR 1967 SC 1373.
33
The Constitution of Clandestinesia 1950, art 29.

20
MEMORIAL ON BEHALF OF THE PETITIONERS

Article 29(1) confers the right to conserve the language, script or culture to any sections of
citizens residing in the country.The words “any section of citizens” have been used to cover
minorities which are not minorities in the technical sense, but which are nonetheless
minorities in the culture and linguistic sense. 34Article 29(1) is not subjected to any reasonable
restrictions. The right conferred upon the citizens to conserve their language, script and
culture is made absolute by the Constitution.35Furthermore, state in every discharge of its
duties, functions and governance should also be within the constitutional framework as it
would not be possible for the Courts to permit the State to impinge upon or violate directly or
indirectly the constitutional rights and protections granted to various classes including the
minorities.36

Indigenous peoples have the right to participate in decision-making in matters which would
affect their rights, through representatives chosen by themselves in accordance with their own
procedures, as well as to maintain and develop their own indigenous decision-making
institutions.37

2. T HE K HOSADS HAVE A DISTINCT CULTURE AND K HOSADASTI IS AN

INHERENT PART OF THAT CULTURE , WHICH IS PROTECTED UNDER

A RTICLE 29.

Indigenous people have the right to promote, develop and maintain their institutional
structures and their distinctive customs, spirituality, traditions, procedures, practices and, in
the cases where they exist, juridical systems or customs, in accordance with international
human rights standards.38“Despite the cultural advancement, the genetic traits pass on from
generation to generation and no one could escape or forget or get them over with. The tribal
customs are peculiar to each tribe or tribal communities and are still maintained and
preserved. Their cultural advancement to some extent may have modernized and progressed
but they would not be oblivious or ignorant to their cultural past to establish their affinity to
the membership of a particular tribe.”39

34
Ahmedabad St Xavier's College Society v State of Gujarat [1974] 1 SCC 717, 797.
35
DAV College Jullunder v State of Punjab [1971] 2 SCC 269.
36
Sindhi Education Society v Govt (NCT of Delhi) [2010] 8 SCC 49.
37
United Nations Declaration on the Rights of Indigenous Peoples 2007, art 18.
38
United Nations Declaration on the Rights of Indigenous Peoples 2007, art 34.
39
Nityanand Sharma v State of Bihar [1996] 3 SCC 576.

20
MEMORIAL ON BEHALF OF THE PETITIONERS

The ‘Khosads’ are a fiercely closed knit tribe of several hundred individuals which had
continued to live for centuries in seclusion on an isolated island of Clandestinesia, the
‘Khosad Island’.40 It can therefore be assumed that they practiced Khosadasti in private
among their tribe-men and the restriction imposed on them is arbitrary because they cannot
prevent others from viewing what culture they are celebrating in private.

Morality and criminality are far from being coextensive. 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 penalize someone.41Customs are the essence of special usage, modifying the
ordinary law, only providing that they should be ancient and invariable; and it is further
essential that they should be so established by clear and unambiguous evidence; and only by
means of such evidence can the courts be assured of their existence and that they possess the
conditions of antiquity and certainty on which alone the legal title to recognition depends.42

The Constitution itself includes and acknowledges custom or practices having the force of
law in Part III.43The chapter of fundamental rights is sacrosanct and not liable to be abridged
by any Legislative or Executive Act or order.44 Minorities in every unit shall be adequately
protected in respect of their language and culture, and no Government may enact laws or
regulations that may act oppressively or prejudicially in this respect.45

C. K H O SA D S C A N N O T C L A I M TO H AVE A ‘ RE P UTAT IO N ’ AS A CO MM UNIT Y

IN AS MUCH AS ANY C O N SE Q UE NT INJ U RY TO SUCH RE P UTAT IO N CA N

AM O UNT TO TH E C R I M I N A L O FF E NCE OF DE FAM AT IO N AND TH E SAM E B E IN G

P UNISH AB L E U / S 499 AND 500 O F TH E C A PC.

It is humbly submitted before the Hon’ble Supreme Court thatKhosads cannot claim to have a
‘reputation’ as a community in as much as any consequent injury to such reputation can
amount to the criminal offence of defamation and the same being punishable u/s 499 and 500
of the Clandestinesia Penal Code.

1. T HAT THE K HOSADSCANNOT CLAIM TO HAVE A REPUTATION AS A

COMMUNITY .
40
Moot Proposition [4].
41
S Khushboo v Kanniammal [2010] 5 SCC 600.
42
RamalakshmiAmmal v SivananthPerumalSethurayar[1871] 14 MooIA 570.
43
The Constitution of Clandestinesia 1950, art 13(3)(a).
44
State of Madras v SrimathiChampakamDorairajan AIR 1951 SC 226.
45
B Siva Rao, Select Documents(1957) 281.

20
MEMORIAL ON BEHALF OF THE PETITIONERS

Explanation II to section 499 of CaPCmakes it clear that there can be defamation of an


individual person and also of a 'collection of persons'. Such a collection of persons must be
identifiable in the sense, that one could with certainty, say that the particular group had been
defamed as distinguished from the rest of the community. 46 Though they lived in seclusion for
years, however taking in cognizance the existence of mining operations for a rare earth metal
and the presence of a court with magistrates in recent times, we cannot conclusively ascertain
their composition.47It is evident from the facts that the Khosad Island which was once
isolated is now easily accessible from the mainland of Clandestinesia and therefore, there
must be a to and fro movement of Khosads as well as the general public such that they inter-
mingle and the definite composition of the Khosad tribe is lost.

The Court while stating that Ahiwasi Brahmins cannot be considered to be a ‘collection of
person’ under Explanation 2 of Section 499 of IPC as they are a fluctuating body held that
though they initially resided only in Mathura but now have spread across the country and are
an unascertainable class.48

In case the identity of the collection of persons is not established so as to be relatable to the
defamatory words or imputations, the complaint is not maintainable. 49 What Explanation 2 to
section 499 CaPC speaks is an association or collection of people which is capable of being
defamed. Such persons must be a definite and determinable body. Then only the imputations
could be said to relate to its individual members or components.50

It is humbly submitted before the Hon’ble court that the ‘Khosads’ fail to comply with the
conditions laid down by the courts regarding application of Explanation 2 of Section 499 of
CPC. The imputation wasn’t capable of being aimed at or be related to each and every
member of the tribe. It was related to only a certain group within the community as
Khosadasti was a practice where Khosad boys of marriageable age undertook private stay
with their prospective suitresses of marriageable age and whosoever was found physically
compatible on the basis of sexual intimacy was chosen as the bride. 51The composition of
people defined under ‘marriageable age’ cannot be ascertained as it keeps on changing with
time.
46
G Narsimhan v TV ChokappaAIR 1972 SC 2609; Sahib Singh Mehra v State Of Uttar Pradesh AIR 1965 SC
1451.
47
Moot Proposition [5].
48
Vishwanath v ShambhuNathPandeya[1995] Cri LJ 277.
49
S Khushboo vKanniammal[2010] 5 SCC 600.
50
M P Narayan Pillai v M P Chacko [1986] Cri LJ 2002.
51
Moot Proposition [4].

20
MEMORIAL ON BEHALF OF THE PETITIONERS

Even if we consider the Khosads to be an identifiable and definite group they cannot claim to
have a reputation as “Character” is what a man is and “reputation” is what he is supposed to
be in what people say he is; and while, character depends on attributes possessed, the
reputation depends upon the attributes which others believe one to possess.52 The former
signifies reality and the latter merely what is accepted to be reality in the eyes of others. 53
Reputation is what people think of you in the society. The society did not have any
knowledge about the attributes of the Khosads as they were a secluded tribe living on an
isolated island. They had no reputation in the eyes of the people as the people could not have
formed opinions about the Khosads due to lack of knowledge about them, their practices and
their culture.

2. A RGUENDO , S UPPOSING NOT CONCEDING THAT K HOSADS CAN CLAIM TO

HAVE A ‘ REPUTATION ’ AS A COMMUNITY , NO HARM WAS DONE TO THEIR

REPUTATION .

It is humbly submitted before the Hon’ble Supreme Court of Clandestinesia that even if the
‘Khosads’ can claim to have a reputation as a community, no harm was done to their
reputation, so as to amount to an offence under Section 499 of the Clandestinesian Penal
Code. To constitute the offence, there has to be imputation and it must have made in the
manner as provided in the provision with the intention of causing harm or having reason to
believe that such imputation will harm the reputation of the person about whom it is made.
The criminal offence emphasizes on the intention or harm. 54Therefore, the intention to cause
harm is a sine qua non of the offence under Section 499 CPC.55

In the present case, the ingredient of intent is completely missing. Bioscope had the
reputation of making films related to political, cultural and social issues. 56 The culture and
practices of the Khosads were relatively unknown. The media reports relating to
‘Khosadasti’had generated a lot of curiosity and interest among the general public about their
lifestyle and customs and TCPL considering that this film was first of its kind, agreed to
produce it and insisted that the film should be made in a vivid manner so that the viewers are

52
Kishore Samrite v State of UP [2003] 2 SCC 398.
53
Kishore Samrite v State of UP [2003] 2 SCC 398.
54
SubramaniumSwamy v Union of India [2016] 7 SCC 264.
55
Shah Rukh Khan v State of Rajasthan[2008] 1 RLW 809.
56
Moot Proposition [7].

20
MEMORIAL ON BEHALF OF THE PETITIONERS

correctly informed.57 So the main motive was to correctly inform the general public about the
lifestyle and customs of ‘Khosads’ and not to defame them.

The disreputable part alone cannot be taken out in the process of picking and choosing in
order to venture a prosecution for defamation. 58All the elements of the work must be
pondered over in succession before the intent and the meaning of the work can be abstracted
from it. In a film, even the light and shadows, colours and musical cadences, contribute to its
overall meaning. And as a film's life derives from an intricate complex of various elements,
only a trained critic can be trusted to infer its meaning, or to form a judgment about its nature
with some authority. The spontaneous reaction, therefore, of a couple of viewers can't well be
treated as a serious assessment of what the film had intended to convey.59

The film ‘In the Land of the Khosads’ intricately showed the culture of the Khosads, mining
operations being carried out in the Khosad Island, practice of Khosadasti, interviews of
various members of the tribe, historians, and the natural beauty of the island and therefore,
Khosadasti being just a part of the film, cannot be picked out in order to venture a
prosecution for defamation.60

It is further submitted that the concerned imputation is protected under the Ninth Exception to
Section 499 of CPC. “In order to establish good faith and bona fide it has to be seen first the
circumstances under which the letter was written or words were uttered; secondly whether
there was any malice; thirdly whether the appellant made any enquiry before he made the
allegations; fourthly, whether there are reasons to accept the version that he acted with care
and caution and finally whether there is preponderance of probability that the appellant
acted in good faith.”61The appellant must show that his belief in the impugned statement had
a rational basis and was not just a blind simple belief.62

The petitioner acted in good faith with all due care and attention. It was made sure that the
film is made in a vivid manner so that the viewers are correctly informed and media reports
were taken into account while portraying the practise of ‘Khosadasti’.63 Moreover, there was
no malice on the part of the petitioners and it was done only to protect the interest of the

57
Moot Proposition [7].
58
M P Narayan Pillai v M P Chacko [1986] Cri LJ 2002.
59
Shah Rukh Khan v State of Rajasthan[2008] 1 RLW 809.
60
Moot Proposition [12].
61
ChamanLal v State of PunjabAIR 1970 SC 1372.
62
Ram Jethmalani and DS Chopra, The Indian Penal Code (1st edn, Thomsan Reuters 2014) 2563.
63
Moot Proposition [10].

20
MEMORIAL ON BEHALF OF THE PETITIONERS

women against a practise which was against their dignity. The practice involved participation
of women who were undergoing the last days of their monthly menstrual cycle and selection
of brides on the basis of sexual intimacy which is immoral, against the dignity of women and
inconsistent with the ideologies and practices of modern world. 64 The Khosads being
secluded from the rest of the world were not aware of their interests and their rights, and the
film was made with good faith in order to make people aware about these facts and to help
the Khosads protect their interest.

D. T H E K H O SA D S AS A C OM M U NIT Y CANNO T CL AIM P UB L ICIT Y R IGH T S .

It is humbly submitted before the Hon’ble Supreme Court of Clandestinesia that the Khosads
as a community cannot claim publicity rights. The concept of publicity rights has evolved
from right to privacy and can inhere only in individuals and they are alone entitled to profit
from it.

1. P UBLICITY RIGHTS CAN BE CLAIMED ONLY BY INDIVIDUALS .

It is humbly submitted before the Hon’ble Supreme Court that the rights of publicity have
evolved from the right to privacy and attach only to an individual or in any indicia of an
individual's personality, such as name, personality trait, signature, voice, etc. 65Theright of
publicity was first recognized in the United States. 66Theright of publicity has been recognised
in the form of right to privacy as follows: “the first aspect of this right must be said to have
been violated where for example, a person's name or likeness is used, without his consent, for
advertising - or non-advertising - purposes or for any other matter.”67

Most of the courts abroad have refused to grant publicity rights of human beings to the non-
living entities on the ground that the rights of publicity vest in an individual and an individual
alone is entitled to profit from it. Any effort to take away the right of publicity from the
individuals, to the organizer (non-human entity) of the event would be violative of Articles 19
and 21 of the Constitution of India.68

64
Moot Proposition [6].
65
ICC Development (International) Ltd v Arvee Enterprises [2003] 26 PTC 245 (Del).
66
Haelan Laboratories Inc v Topps Chewing Gum Inc202 F 2d 866 [1953].
67
R Rajagopal v State of Tamil Nadu[1994] 6 SCC 632.
68
ICC Development (International) Ltd v Arvee Enterprises [2003] 26 PTC 245 (Del).

20
MEMORIAL ON BEHALF OF THE PETITIONERS

The Khosads cannot claim publicity rights as they cannot be considered an ‘individual’. This
right attaches to indicia of an individual’s personality which varies with different individuals
and there is no ‘persona’ of a group of people.

The “persona” is defined in Black's Law Dictionary to mean “a person; an individual human
being”.69 Originally viewed as an extension of the right of privacy, the right of publicity has
developed into a free-standing property interest in the commercial value of one’s identity (or
“persona”).70The right of publicity does not protect the "persona" of a corporation,
partnership or an institution - only of a real human being. 71 The Khosads being an
unascertainable group of people cannot claim to be having a collective persona or an identity
and therefore, cannot claim publicity rights.72

While discussing the stance of the courts of United States on publicity rights the court, it was
held that: “The New York courts have unanimously refused to permit any legal entity other
than a human being to assert publicity or privacy rights under the New York statute. The New
York statute prohibits the commercial use of the name or picture of “any living person” and
this interpretation seems eminently reasonable. The meaning of “living person” as restricted
to a real human appears clear by the statute's listing of those entities which are forbidden to
make such unpermitted uses: “a person, firm or corporation”. Thus, the statute distinguishes
a “person” from a “firm or corporation.”73

2. A RGUENDO , SUPPOSING NOT CONCEDING THAT K HOSADS AS A

COMMUNITY CAN CLAIM P UBLICITY R IGHTS .

It is humbly submitted before the Hon’ble Supreme Court that “One who appropriates the
commercial value of a person's identity by using, without consent, the person's name,
likeness, or other indicia of identity for purposes of trade is subject to liability for the relief
appropriate.”74 The publicity right of the Khosads was not violated as there was no
commercial exploitation of their identity and the use was not without their consent.

69
Bryan Garner, Black’s Law Dictionary (8th edn, Thomson Reuters 2004).
70
Stacy Allen, Emilio Nicolas and Megan Honey, ‘Non-human persons and the right of publicity’ (JW, April
2012)<http://images.jw.com/com/publications/1185.pdf> accessed 27 August 2017.
71
J Thomas McCarthy, ‘The Human Persona as Commercial Property: The Right of Publicity’ (1994) 19 Colum
VLA JL 129.
72
Moot Proposition [4].
73
ICC Development (International) Ltd v Arvee Enterprises [2003] 26 PTC 245 (Del).
74
Restatement (Third) of Unfair Competition Act 2005, s 46 (USA).

20
MEMORIAL ON BEHALF OF THE PETITIONERS

Despite the existence of publicity rights, a person cannot curtail another person's freedom of
speech and expression. The role of the courts while determining the applicability of such a
defence essentially involves conducting a fact-specific balancing test which aims to compare
competing interests of the person's right of publicity with the public's right to be informed.75

In a free and democratic society where every individual's right to free speech is assured, over-
emphasizing person's publicity rights tends to chill the exercise of such an invaluable
democratic right while pointing out that such protected speech may be expressed in a variety
of ways - i.e. cartoons in newspapers, mime, theatre, films, and songs and that these forms of
expression, in cannot per se be held to amount to commercial exploitation. 76 The only kind of
speech impacted by the right of publicity is commercial speech - advertising. Not news, not
stories, not entertainment and not entertainment satire and parody - only advertising and
similar commercial uses.77‘In the Land of the Khosads’ was a film made with an intention to
correctly inform the viewers about the culture and practices of the Khosads which were
relatively unknown and it cannot be considered as commercial exploitation.78

Publication of matters in the public interest, which rests on the right of the public to know
and the freedom of the press to tell it, is not ordinarily actionable. 79 The right of publicity may
not be invoked to prevent the publication of "newsworthy facts". 80 The practices of Khosads
were relatively unknown and there was interest and curiosity in general about them and it is
the right of the people to know that a practice like ‘Khosadasti’ which in the view of the
various social and political thinkers was immoral and against the dignity of women, was
being practiced in their country.81

Moreover, consent to use a name or likeness can be implied from the party’s conduct and
circumstances.82Consent may be implicit and is to be determined objectively from the
perspective of a reasonable person.83 It is impossible to contend that filming of ‘Khosadasti’
was without consent, inasmuch as the film explicitly shows the practice. Their consent was

75
Yale Lewis, ‘Publicity Rights Revisited’ (Hendricks & Lewis PLLC, 2008)
<www.hllaw.com/images/78222PublicityRights.pdf> accessed 25 August 2017.
76
DM Entertainment Pvt Ltd v Baby Gift House [2002]CS(OS) 893(Del).
77
J Thomas McCarthy, ‘The Human Persona as Commercial Property: The Right of Publicity’ (1994) 19 Colum
VLA JL 129, 148.
78
Moot Proposition [4].
79
Dora v Frontline VideoInc[1993] 15 Cal App 536.
80
Zacchini v Scripps-Howard Broadcasting Co 433 US 562 [1977].
81
Moot Proposition [7].
82
Jones v Corbis Corporation815 F Supp 2d 1108 [2011].
83
Newton v Thomason22 F3d 1455, 1461 [1994]; West’s Revised Code 1998, s 63(60)(050).

20
MEMORIAL ON BEHALF OF THE PETITIONERS

implied through the participation of members of Khosad tribe during the filming as well as
their interviews.84

In Matthews85, it was held that the detailing of the author's and her ex-husband's experiences
as undercover agents did not violate the privacy or publicity rights of her ex-husband since
the information about their activities and convictions were already the subject of news
reports. Hence, it is submitted that the Khosads cannot claim publicity rights as ‘Khosadasti’
was already the subject of news reports, publication was not without consent, there was no
commercial exploitation.86

E. T H AT TH E P R O M O T E R S , D R . J NANE ND RA M IT RA AND Z UB IN D UB ASH AR E

NO T V I C A R I O U SLY L I A B L E FO R T H E ACT S OF TCPL, B IO SCO P E AN D

FWPL R E SP E C T I V E LY FO R T H E OF F E NCE S P UNISH AB L E U / S 292 AND 499


OF C A PC AND U/S 66, 67A OF T H E CIT A CT .

It is humbly submitted before the Hon’ble Supreme Court of Clandestinesia that the
promoters, Dr. JnanendraMitra and ZubinDubash cannot be made vicariously liable for the
acts of their employers. The CaPC does not contain an express statutory provision imposing
vicarious liability on the company directors or officers. The section 85 of the CIT Act does
not apply since there are no specific averments regarding the directors’ role and the directors
also observed due diligence which is an exception to the imposition of vicarious liability.

1. T HAT THE ACCUSED CANNOT BE MADE VICARIOUSLY LIABLE FOR

OFFENCESUNDER C A PC DUE TO THE ABSENCE OF AN EXPRESS STATUTORY

REGIME .

We are concerned with a criminal liability under penal provision and not a civil liability.The
penal provision must be strictly construed in the first place and secondly, there is no vicarious
liability in criminal law unless the statute takes that also within its fold. 87Vicarious liability of
the company officers would arise provided any provision exists in that behalf in the statute. 88
Statutes indisputably must contain provision fixing such vicarious liabilities.89

84
Moot Proposition [12].
85
Matthews v Wozencraft15 F3D 423 [1994].
86
Moot Proposition [4].
87
Sham Sunder v State of Haryana [1989] 4 SCC 630, 632.
88
MaksudSaiyed v State of Gujarat [2008] 5 SCC 668, 674.
89
MaksudSaiyed v State of Gujarat [2008] 5 SCC 668, 674.

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MEMORIAL ON BEHALF OF THE PETITIONERS

It is on the well-recognized principle that company does not act of its own but through its
officers and when such officers act on behalf of the company, the company is also held liable
for those acts but it has never been a case where for the act of the company, an individual is
made accused, unless there is a categorical provision in the statute making such a person
vicariously liable or there is ‘sufficient evidence of active role with criminal intent’. 90If and
when a statute contemplates creation of such a legal fiction, it provides specifically
therefor.91Firstly, CaPC does not provide for any express statutory provision regarding
vicarious liability of company officers for offences committed by the company. Secondly,
there is no evidence of active role played by the directors: the documentary film was an
honest display of the life of Khosads which was very active topic in the mainstream media;
even when the promoters entered into the narration agreement, they incorporated a clause to
make the documentary as vivid as possible showing the true nature and intent of the practices
of Khosads.92

2. T HAT THE ACCUSED CANNOT BE MADE VICARIOUSLY LIABLE FOR

OFFENCESPUNISHABLE UNDER S ECTIONS 67 AND 67A OF THE CIT A CT .

The CIT Act expressly provides for imposition of vicarious liability for offences committed
by companies under Section 85 of the Act if they are in any way responsible for the conduct
that led to contravention of any provision of the act. 93Whenever there is a strict statutory
mandate regarding vicarious liability attached to the directors of a company or a chairman of
the society, they can be held liable for the offences committed by the company. 94It has been
held that interpretation of section 85 of the IT Act 2000 has to be in consonance with section
141 of the NI Act95 because the two sections are in parimateria.96

A. THAT THERE WERE NO SPECIFIC AVERMENTS IN THE COMPLAINT.

90
Sunil Bharti Mittal v CBI [2015] 4 SCC 609, 623; Iridium India Telecom v Motorola Inc [2011] 1 SCC 74.
91
Sabitha Ramamurthy v RBS Channabasavaradhya [2006] 10 SCC 581; AneetaHada v Godfather Travels &
Tours Ltd [2012] 5 SCC 661.
92
Moot Proposition [7], [10].
93
Clandestinia Information Technology Act 2000, s 85.
94
Sunil Bharti Mittal v CBI [2015] 4 SCC 609, 638.
95
Negotiable Instruments Act 1881, s 141.
96
AneetaHada v Godfather Travels and Tours Ltd [2012] 5 SCC 661.

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MEMORIAL ON BEHALF OF THE PETITIONERS

The section raises a legal fiction and what is required is a clear statement of fact so as to
enable the court to arrive at a prima facie opinion that the accused are vicariously
liable.97When a complainant intends to rope in a director or any officer of a company, it is
essential to make requisite allegation and spell out a clear case against the person sought to be
made liable in the complaint and merely being described as a director in a company is not
sufficient to satisfy the requirement of Section 85.98

The complaint requires specific averments against the directors because there is no deemed
vicarious liability on directors.99Such vicarious liability can be inferred only if the requisite
statements, which are required to be averred in the complaint petition, are made so as to make
the accused therein vicariously liable for the offence committed by the company andbefore a
person can be made vicariously liable, strict compliance with the statutory requirements
would be insisted.100 The allegations which find place against the Promoters, Dr.
JnanendraMitra and ZubinDubash in their personal capacity seem to be absolutely vague and
just reproduce the section’s words101, which is not enough to make them vicariously liable.102

B. ARGUENDO, SUPPOSING BUT NOT CONCEDING THAT THERE WERE SPECIFIC

AVERMENTS IN THE COMPLAINT, THE ACCUSED OBSERVED DUE DILIGENCE.

Both section 141 of the NI Act and section 85 of the CIT Act use the words “was in charge
of, and was responsible to the company for the conduct of the business of the company” or
when the contravention happens with their “consent, connivance or neglect”.103The words “in
charge of” refer to a person who is in overall control of the day-to-day business of the
company.104

On the other hand, proviso to Section 141 of the Act clearly lays down that if the accused is
able to prove to the satisfaction of the court that the offence was committed without his
knowledge or he had exercised due diligence to prevent the commission of such offence, he
will not be liable to punishment.105 Due diligence is a measure of prudence expected from and
97
Sabitha Ramamurthy v RBS Channabasavaradhya [2006] 10 SCC 581.
98
SMS Pharmaceuticals Ltd v Neeta Bhalla [2005] 8 SCC 89, 102-03; HDFC Securities Ltd v State of
Maharashtra [2017] 1 SCC 640, 651; Sharad Kumar Sanghi v SangitaRane [2015] 12 SCC 781, 783-84.
99
KK Ahuja v VK Vora [2009] 10 SCC 48.
100
Saroj Kumar Poddar v State [2007] 3 SCC 693, 699; Sabitha v Channabasavaradhya [2006] 10 SCC 581,
585
101
Moot Proposition [14], [20].
102
KK Ahuja v VK Vora [2009] 10 SCC 48, 62; NK Wahi v Shekhar Singh AIR 2007 SC 1454.
103
SMS Pharmaceuticals v Neeta Bhalla [2005] 8 SCC 89.
104
KK Ahuja v VK Vora [2009] 10 SCC 48, 60; Katta v Fertilizers & Chemicals Travancore [2002] 7 SCC 655.
105
Rallis India Ltd v PoduruVidyaBhushan [2011] 13 SCC 88.

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MEMORIAL ON BEHALF OF THE PETITIONERS

ordinarily exercised by a reasonable person under the particular circumstances which cannot
be measured by any absolute standards.106 In ordinary circumstances, due diligence implies a
particular standard of care as a statutory regulation to prevent illegal acts in regular business.
The accused had worked with due diligence and even the narration agreement acknowledged
how they wanted the documentary film to be vivid, and such that it displays the complete
culture of the Khosads through interview of the tribe members, their practices and the
picturesque sights on the Khosad Islands; never intending for it to be defamatory or
obscene.107

F. T H AT TCPL H A S B R E A C H E D TH E SHA B Y E XE CUT ING T H E N ARR AT IO N


A G RE E M E N T A N D I S L I A B L E TO PAY FO R T H E SAM E .

1. P ROMOTERS HAVE SIGNIFICANT INFLUENCE OVER COMPANY .

The promoters enjoy significant influence over their company and have the authority to
manipulate the affairs of the company in a manner which may satiate their selfish interests. A
promoter of the company is not independent in relation to the company.108Even the promoter
of any holding company or subsidiary company or any associate company does not qualify to
be an independent director.109

It is humbly submitted that paragraph 3(a) to 3(e) of AS-18110 defines the applicability of
related party relationships. 3(c) defines individuals owning, directly or indirectly, an interest
in the voting power of the reporting enterprise that gives them control or significant influence
over the enterprise, and relatives of any such individual;(d) key management personnel and
relatives of such personnel; and(e) enterprises over which any person described in (c) or (d) is
able to exercise significant influence.This includes enterprises owned by directors or major
shareholders of the reporting enterprise and enterprises that have a member of key
management in common with the reporting enterprise.

2. R ELATED PARTY TRANSACTION LEADING TO ENRICHMENT OF

PROMOTERS AND SIPHONING OFF OF FUNDS .

106
Enterprises v Irrigation Dept[2008] 7 SCC 169, 185.
107
Moot Proposition [10].
108
Vinod Kothari and SikhaBansal, Independent Directors (Taxmann 2014) 57.
109
Vinod Kothari and SikhaBansal, Independent Directors (Taxmann 2014) 57.
110
Accounting Standards-18 (Related Party Disclosures) 2000.

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MEMORIAL ON BEHALF OF THE PETITIONERS

It is humbly contended that the Promoters entered into a related party transaction without
seeking permission from FWPL and did not even disclose it to the investors in any manner
i.e. in the form of company report or notice or otherwise.

In Zylog Systems111, related party transaction, were admittedly not disclosed as such under the
head “related party transactions” in any of the Annual Reports of defendants during relevant
period. It is pertinent to note that the related party transactions should be presented in the
Annual Report in accordance with Accounting Standard AS-18, which states that along with
related party name, the nature and volume of the related party transactions ought to be
disclosed.112 The court held that the facts indicated that omissions in this regard were active
concealment of material information relating to related party transaction and were part of
fraudulent device in this regard.113

In the case of Cals114, the ‘related party transaction’ had resulted in enriching the promoter
who gained 25 million of GDRs at the expense of the company and thus at the expense of
other investors. By virtue of such transaction, Cals had effectively financed the purchase of
its own shares by funding the purchase of GDRs by Gagan, which is in violation of the
provisions of Section 77(2) read with Section 77(4) of the Companies Act. 115 The transaction
was structured to further enable Honor (held by another promoter-Malhotra) to repay the loan
to Banco. The entire transaction effectively amounted to siphoning of funds of Petitioner into
the account of the promoters under the pretext of payment for machinery for setting up the
‘Refinery Project’.116 Petitioner was therefore required to disclose this
‘relatedparty transaction’ but failed to do so. Instead such transaction was falsely portrayed
as a normal arms-length commercial transaction.117

InBharatiya Global118, BGIL failed to disclose the transaction with Gadeo as a related party
transaction and according to BGIL, this payment was made as normal business transaction.
BGIL was held responsible for the non-disclosure of the transaction with Gadeo as a “related
party transaction” because in terms of clause IX(B)(12) of Part A of Schedule VIII of the

111
In Re Zylog Systems Limited[2015] SCC OnLine SEBI 420.
112
In Re Zylog Systems Limited[2015] SCC OnLine SEBI 420.
113
In Re Zylog Systems Limited[2015] SCC OnLine SEBI 420.
114
In Re Cals Refineries Ltd[2013] SCC OnLine SEBI 43.
115
In Re Cals Refineries Ltd[2013] SCC OnLine SEBI 43.
116
In Re Cals Refineries Ltd[2013] SCC OnLine SEBI 43.
117
In Re Cals Refineries Ltd[2013] SCC OnLine SEBI 43.
118
In Re Bharatiya Global Infomedia Ltd[2014] SCC OnLine SEBI 181.

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MEMORIAL ON BEHALF OF THE PETITIONERS

ICDR Regulations, the disclosures of details of related party transactionsshould be made in


accordance with AS-18 which it failed to do.119

In Bordelon120, it was held that a shareholder can have a right of action for a personal loss if
the cause of action is based on breach of a contract between the shareholder and the
corporation and its directors and it was held that a shareholder had both a cause and right of
action to assert a claim against the corporation and its officers for the breach of a
shareholders’ agreement entered into; before he became a shareholder.

3. I NCREASE IN SALARY OF PROMOTERS IS A RESULT OF THEM ENTERING

INTO NARRATION AGREEMENT .

It is humbly submitted before the Hon’ble Court that the increase in salary of directors cannot
be justified because the Promoters entered into a related party transaction, thus violating the
provisions of the SHA and therefore have not performed an exemplary work which led to
prospering of the company. In Walchand121, the test of commercial expediency was followed
by the court and it was stated that increase in the salary of a director is followed by an
increase in their burden of work and thus their work became more strenuous by reason of the
prosperity of the managed company.

The “look at” principle enunciated in Ramsay122 may be reiterated in which it was held that
the Court must look at a document or a transaction in a context to which it properly belongs
to. It is the task of the Court to ascertain the legal nature of the transaction and while doing so
it has to look at the entire transaction as a whole and not to adopt a dissecting
approach.123Relying upon decision of Supreme Court of India in Shanti Prasad Jain124, where
it was stated that the acts complained of as being oppressive, have to be viewed in a
wholesome manner and without dissecting them into separate, disjunctive or component parts
of oppression. It is neither proper nor necessary to look at each act of oppression disjointedly.

The resolution to increase the salary of promoters was under the influence of the Promoters
and intended to siphon off the funds of shareholders in order to satisfy their selfish desires.

119
In Re Bharatiya Global Infomedia Ltd[2014] SCC OnLine SEBI 181.
120
Bordelon v Cochrane 533 So 2d 82 [1988].
121
Commissioner of Income Tax Bombay v Walchand& Co AIR 1967 SC 1435.
122
Ramsay v IRC [1982] AC 300 (HL).
123
Vodafone International Holdings BV v Union of India [2012] 6 SCC 613.
124
Shanti Prasad Jain v Kalinga Tubes Ltd AIR 1965 SC 1535.

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MEMORIAL ON BEHALF OF THE PETITIONERS

4. FWPL HAS AFFIRMATIVE VOTING RIGHTS .

It is humbly contended that the act of the promoters to enter into the Narration Agreement is
not incidental to or naturally conducive to the increase in the sales of ‘neXt’. In
Lakshmanaswami125, the directors were undoubtedly invested with authority to establish,
maintain and subscribe to any institution or Society which may be for the benefit of the
Company, and to "make payments towards any charitable or any benevolent object, or for
any general public, general or useful object". It was held that this was within the authority of
the directors only if the Company had the power under the Memorandum of Association to
achieve the object specified, or for doing anything incidental to or naturally conducive to
objects specified.

The fiduciary capacity within which the directors have to act enjoins upon them a duty to act
on behalf of a company with utmost good faith, utmost care and skill and due diligence and in
the interest of the company they represent.126 They have a duty to make full and honest
disclosure to the shareholders regarding all important matters relating to the Company.127

It is humbly submitted that by no stretch of logic, an affirmative vote confers control over the
day to day working of the company.128 Affirmative vote of the investor in these matters is
necessary for protecting its investment. 129We cannot infer from this provision that the
appellant has gained control over the target company.130

125
LakshmanaswamiMudaliar v Life Insurance CorporationAIR 1963 SC 1185.
126
Dale & Carrington Invt (P) Ltd v PK Prathapan [2005] 1 SCC 212.
127
Dale & Carrington Invt (P) Ltd v PK Prathapan [2005] 1 SCC 212.
128
Subhkam Ventures v Securities and Exchange Board of India [2010] SCC OnLine SAT 35.
129
Subhkam Ventures v Securities and Exchange Board of India [2010] SCC OnLine SAT 35.
130
Subhkam Ventures v Securities and Exchange Board of India [2010] SCC OnLine SAT 35.

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MEMORIAL ON BEHALF OF THE PETITIONERS

P R AY E R

Wherefore, in light of the facts of the case, issues raised, arguments advanced and authorities
cited, this Hon’ble Court may be pleased to adjudge and declare that:

In FWPL v TCPL (SLP(C) No. 2527/2016),

 The narration agreement was a related party contract and TCPL have breached the
SHA by entering into a related party contract without the prior approval of FWPL.
 TCPL is liable to pay damages 5 Million ClandestineanRupiyah to FWPL.

In Bioscope and Ors v State of Innovatia and Ors (SLP (Crl) Nos. 432/2016 with
451/2016, 460/2016),

 Section 292 of the CaPC and sections 67 and 67A of the CIT Act are vague and
arbitrary and ultra vires the constitution.
 Therefore, TCPL, Bioscope and the promoters cannot be held liable for obscenity.
 The Promoters and Dr. JnanendraMitra are not vicariously liable for obscenity.

In KhumantuKhosad v Union of Clandestinesia and Ors (WP (C) No. 974/2016),

 The Khosads have a fundamental right under Article 29 of the Constitution of


Clandestinesia to practice Khosadasti.
 The notification issued by the government is a clear foray into that right.

In Bioscope and Ors v State (SLP (Crl) Nos. 71/2017 with 77/2017, 83/2017, 91/2017,
104/2017, 132/2017),

 The Khosads as a community cannot claim publicity rights or reputation.


 The film ‘In the land of Khosads’ has not defamed the Khosads.
 The Promoters, Dr. JnanendraMitra and ZubinDubash cannot be held vicariously
liable for the offence of defamation.

ALL OF WHICH IS RESPECTFULLY SUBMITTED


COUNSELS FOR THE PETITIONERS.

xv