879 - Pratik Bakshi - Petitioner

8/10/2019 879 - Pratik Bakshi - Petitioner

1/25


2/25

NUALS INTERNAL MOOT COURT COMPETITION 2014

Memorial for the Petitioners Page 2

List of Abbreviations

Index of Authorities

Book and Commentaries

Cases Cited

Acts, Rules and Instructions

Reports of Committees

Dictionaries

Statement of Jurisdictions

Statement of Facts

Questions Presented

Summary of Pleadings

Pleadings and Authorities

Prayer

TABLE OF CONTENTS


3/25



1. &: And

2. A.P. : Andhra Pradesh

3. AIR: All India Reporter

4. Art. : Article

5. Co. : Company

6. Corp. : Corporation

7. Cri. : Criminal

8. Cri. L.J./ Cr L.J. : Criminal Law Journal

9. Ed./ Edn. : Edition

10.HC : High Court

11.Honble: Honourable

12.Ltd.: Limited

13.M. P. : Madhya Pradesh

14.No. : Number

15.Ors. : Others

16.p. : Page

17.

pp. : Pages

18.Pvt. : Private

19.SC: Supreme Court

20.SCC: Supreme Court Cases

21.SCR: Supreme Court Reports

22.SEBI: Securities Exchange Board of India

23.Sec. : Section

24.

Supp. : Supplementary

25.T.N: Tamil Nadu

26.U.P. : Uttar Pradesh

27.UK: United Kingdom

28.v. : Versus

29.Vol. : Volume

LIST OF ABBREVIATIONS


4/25



BOOKS AND COMMENTARIES

1. Chaudharis Law of Writs, Fifth Edition 2003, Law Publishers (India) Private

Limited.

2. Dr. J. N. Pandey, Constitutional Law of India, Forty Fourth Edition 2007, Central

Law Agency.

3.

Durga Das Basu, Law of the Press, (4thEd. 2002), Wadhwa Nagpur.

4. Facets of Media Law,Second Edition 2013, Madhavia Goradia Divan, Eastern Book

Company.

5.

G Ramachandran,Law of Writs, Vol I & II, Sixth Edition, Eastern Book Company.

6. H. M. Seervai, Constitutional Law of India, Vol 1 & 2, Fourth Edition, Reprint 2006,

Universal Law Publishing Company.

7.

M P Jain, Indian Constitutional Law, Fifth Edition, Reprint 2003, Wadhwa &

Company Nagpur.

8.

P M Bakshi, The Constitution of India, Ninth Edition 2009, Universal Law Publishing

Company.

9. V N Shukla, Constitution of India, Tenth Edition, Reprint 2003, Eastern Book

Company.

CASES CITED

1. A.K. Roy v. Union of India

2. Alarmelu Mangai v. The Secretary to the Government of Tamil Nadu, Public

Department and Ors.

3. Anukul Chandra Pradhan v. Union of India

4. Bandu Mukti Morcha v. Union of India

5. Bodhisattwa Gautam v. Subhra Chakraborty

6. Federal Bank Ltd. v. Sagar Thomas

INDEX OF AUTHORITIES


5/25



7. Govind v. State of M.P.

8. Kharak Singh v. State of U.P.

9.

Maria Monica Susairaj v. State of Maharashtra

10.PUCL v. Union of India & Anr.

11.Rahul Mehra & Anr. v. Union of India

12.

R. Rajagopal v. State of T.N.

13.Sahara India Real Estate Corp. Ltd. v. SEBI

14.State of Maharashtra v. Madhurkar Narayan Mardikar

15.Subhash Kumar v. State of Bihar

16.S. Khushboo v. Kanniammal

ACTS, RULES & INSTRUCTIONS

1. Code of Criminal Procedure, 1973

2. Constitution of India

3. Information Technology Act, 2000

4. Information Technology (Amendment) Act, 2008

5. Prasar Bharti (Broadcasting Corporation of India) Act, 1990

6. Supreme Court Rules, 1966

7.

Supreme Court Procedure and Practice Information Handbook

INTERNATIONAL CONVENTIONS

1. Universal Declaration of Human Rights.

2.

International Covenant on Cultural, Civil and Political Rights, 1966.

DICTIONARY

1. Blacks Law Dictionary, (8thed., 2004)


6/25



The Petitioners, Maya & Anr. hereby submit to the jurisdiction of the Honourable Supreme

Court of Cidia under Article 32 of the Constitution of Cidia. The Honourable Court has the

jurisdiction to adjudicate the present case.

Jan Mukthi Andolan hereby submits to the jurisdiction of the Honourable Supreme Court ofCidia under Article 32 of the Constitution of Cidia. The Honourable Court has the

jurisdiction to adjudicate the present case.

Ms. Salma hereby submits to the jurisdiction of the Honourable Supreme Court of Cidia

under Article 32 of The Constitution of Cidia. The Honourable Court has the jurisdiction to

adjudicate the present case.

STATEMENT OF JURISDICTION


7/25



1.

Crombay is the capital city of Saurashtra, a state in the Union of Cidia. With the

mushrooming of immoral activities within Crombay, the State of Saurashtra

appointed a Committee to conduct an enquiry into the reasons behind the sudden

increase in the immoral activities within the city. The findings of the Committee

showcased that a large number of unlicensed bars were operating illegally and without

complying with the rules framed under section 33 of the Crombay Police Act, 1951,

which is similar to the Bombay Police Act, 1951. It further stated that many young

women were trapped into human trafficking and prostitution under the semblance of

dance bars.

2. In order to confront the menace, the Saurashtra Legislative Assembly passed the

Crombay Police (Amendment) Act 2014, inserting sections 33A and 33B in the

Crombay Police Act, 1951, which empowered the police to take steps for the closure

of dance bars within the state of Saurashtra, with a view to prevent women from

falling prey to sex rackets. The new law did not provide any alternative source of

livelihood to women who were employed in such dance bars, and so as reported by a

newspaper daily named Saurashtra Patrika, nearly twenty thousand women within

Crombay itself lost their means of livelihood, of which nearly seventy-five percent

were the sole bread winners for the families.

3. On 10th January 2014, a news channel of the Broadcasting Corporation of Cidia

carried a news report containing a two minutes video of two dancers named Maya and

Mohini dancing and soliciting their clients in full zeal and vigour. The news item did

not reveal the names of the two women but the visuals were clear enough to reveal the

identities of the two women. On 13 January 2014, Maya and Mohini moved theSupreme Court of Cidia under Article 32 of The Constitution of Cidia alleging that

the Broadcasting Corporation of India has through the visuals infringed their Right to

Privacy. They claimed compensation from the Union of Cidia and apology by way of

scroll continuously for two days in all channels of Broadcasting Corporation fo Cidia.

4. Ms. Salma, who had tweeted her discontent in the governmental move on banning

dance bars was arrested by the Crombay Police alleging her of committing an offence

under section 66A of the Information Technology Act, 2000. The arrest attracted deep

public furore and the media projected it as an illustrative episode of the breakdown of

STATEMENT OF FACTS


8/25



rule of law in the State of Saurashtra. At the backdrop of this sentimental outcry, the

Crombay Metropolitan Magistrate released Salma on bail. The Crombay Metropolitan

Magistrate took cognizance of the offence and the trial commenced after the

completion of investigation by police in accordance of the Information Technology

Act, 2000 and the Code of Criminal Procedure, 2000.

5.

In the light of these developments, Jan Mukthi Andolan, an NGO filed a Petition

under Article 32 of the Constitution of Cidia challenging the constitutional validity of

Section 66A of the Information Technology Act, 2000.

6. In the meanwhile, Ms. Salma moved a Writ Petition in The Supreme Court of Cidia

alleging that the fairness of her trial has been prejudiced by the unusual participation

of the media. She prayed for the issuance of a postponement order temporarily

gagging the media from interfering in the trial and reporting on the case.


9/25



1. Whether the writ petition filed under Article 32 of the Constitution of Cidia

maintainable before this Honourable Court and whether the redressal asked by

the petitioners appropriate?

1.1. Whether right to privacy is a fundamental right?

1.2. Whether the right to privacy of the petitioners has been infringed?

1.3.Whether the petition is maintainable?

1.4.Whether the redressal asked by the petitioner appropriate?

2. Whether Section 66(A) of IT Act is in violation with Article 14, Article 19

&Article 21 of the Constitution of Cidia?

2.1. Whether the petitioner has requisite locus standi to invoke the jurisdiction of this

Honourable Court?

2.2.Whether Section 66A of Information Technology Act 2000 is unconstitutional?

3. Whether the petition filed by Ms. Salma before the Honorable Supreme Court of

Cidia maintainable?

3.1. Whether the petition is maintainable against a private body?

3.2.Whether the petitioners fundamental right of right to fair trial has been

infringed, and whether the media can be gagged temporarily from covering the

trial of Ms. Salma?

QUESTIONS PRESENTED


10/25



1.

The petition filed under Article 32 of the Constitution of Cidia is maintainable

and the petitioners are eligible to get compensation

The petition has been filed under Article 32 as there is a violation fundamental right

under Article 21. The Broadcasting Corporation of Cidia is liable to pay

compensation as there has been a dereliction of duty by the leading to the

infringement of fundamental right of the petitioners.

2. The Section 66A of the Information Technology Act, 2000 violates fundamental

rights under the Constitution of Cidia and is thus unconstitutional.

Section 66A of the Information Technology Act, 2000 is violates the fundamental

rights under Article 14, 19(1)(a), 21 of the Constitution of Cidia. Thus Section 66A of

the Information Technology Act, 2000 is unconstitutional. .

3 The petition filed by Ms Salma is constitutional

The writ petition filed by Ms Salma is constitutional as News Broadcasters

Association of Cidia is a state under Article 12 of the Constitution of Cidia and there

is a violation of Right to fair trial under Article 21 of the Constitution of Cidia.

SUMMARY OF PLEADINGS


11/25



PLEADINGS AND AUTHORITIES

THE FUNDAMENTAL RIGHT OF THE PETITIONERS HAS BEEN INFRINGED,

SO THE CASE IS MAINTAINABLE AND THE REDRESSAL ASKED BY THE

PETIOTIONERS IS APPROPRIATE.

2.1Right to Privacy is a fundamental right.

It is submitted at the outset that the question of whether an individuals right to privacy

is his fundamental right or not and the maintainability of the petition are inseparable and

interdependent. The answer to the former question will determine the fate of the latter in one

sense. Hence, the petition seeks to address both questions simultaneously.

Firstly, on the point of whether an individuals right to privacy is his fundamental

right or not, the following important submissions are made. The facts reveal that the

Constitution of Cidia is identical to that of India and therefore, the arrangement of Articles, as

a corollary must be identical.

It is true that Cidia, at present does not have an independent statute protecting privacy.

But down the years, arguments from eminent jurists have made the right to privacy to be

considered as a deemed right under the constitution. Even Lord Denning had argued

forcefully for the recognition of right to privacy in English law. He said, English law

should recognise a right to privacy. Any infringement of it should give a cause of action for

damages or an injunction as the case may require. It should also recognise a right of

confidence for all correspondence and communications which expressly or impliedly are

given in confidence. None of these rights is absolute. Each is subject to exceptions. These

exceptions are to be allowed whenever the public interest in openness outweighs the public

interest in privacy or confidentiality. In every instance it is a balancing exercise for the

Courts. As each case is decided, it will form a precedent for others. So a body of case-law

will be established.1 Moreover several judgements in the Supreme Court of India have

understood right to privacy in the context of two fundamental rights: the right to freedom

1Lord Denning, What Next in the Law


12/25


13/25



restrained in more than one manner. It was on these facts that the petitioner challenged the

restrictions imposed on the publication before the Supreme Court.

B.P. Jeevan Reddy, J. on an interpretation of the relevant articles of the Constitution, in

the context of an analysis of case-law from other common law countries like UK and USA,

held that though the right to privacy is not enumerated as a fundamental right it can certainly

be inferred from Article 21 of the Constitution. The court said: The right to privacy is

implicit in the right to life and guaranteed to the citizens of this country by Article 21. It is a

right to be left alone. A citizen has a right to safeguard the privacy himself, his family,

marriage, procreation, motherhood, child-bearing and education, among other matters. No

one can publish anything concerning the above matter without his consent, whether truthful

or otherwise and whether laudatory or critical. If he does so, he would be liable in an action

for damages. The position may, however be different if a person voluntarily thrusts himself

into controversy or voluntarily invites or raises a controversy.

Article 17 of the United Nations International Covenant on Civil and Political Rights

(UN-ICCPR) states that no one shall be subjected to arbitrary or unlawful interference with

his privacy, family, home or correspondence, nor to unlawful attacks. Article 12 of

Universal Declaration of Human Rights (UDHR) (1948) defines Right to Privacy as No

one shall be subjected to arbitrary interference with his privacy, family, home or

correspondence not to attack upon his honour and reputation. Everyone has the right to

protection of law against such interference or attack. As Cidia is a party to both, UN-ICCPR

and UDHR, it is humbly submitted that Cidia is bound by the laws put by these covenant and

declaration.

Thus, in the light of the above, it is respectfully submitted before this Honourable Court

that right to privacy is implicit in the right to life and guaranteed to the citizens of Cidia by

Article 21 of the Constitution, and so, should be considered as a fundamental rights of all

Cidians.


14/25



1.2 The petitioners right to privacy which is a fundamental right has been

infringed.

The Honourable Supreme Court of India has held in the case ofPeoples Union For Civil

Liberties (PUCL) Vs. Union of India and Anr.5, that the right to privacy is allied to the

fundamental rights under article 19 and 21 of the Constitution of India The right to privacy

by itself has not been identified under the Constitution. As a concept it may be too broad and

moralistic to define it judicially. Whether right to privacy can be claimed or has been

infringed in a given case would depend on the facts of the said case.

It is submitted before this Honourable Court that the video footage violates the clause

6(2) of The Norms of Journalistic Conduct, Press Council of India, which states that While

reporting crime involving rape, abduction or kidnap of women/females or sexual assault on

children, or raising doubts and questions touching the chastity, personal character and privacy

of women, the names, photographs of the victims or other particulars leading to their identity

shall not be published.Here the Broadcasting Corporation of Cidia has certainly not acted in

the accordance of the Journalistic Conduct as laid down by the Press Council of India.

It would also be pertinent to state the judgement of the Court in the case of State of

Maharashtra v. Madhukar Narayan Mardikar

6

. In the instant case, the Honourable SupremeCourt of India had stated that even a woman of easy virtue is entitled to privacy and no one

can invade her privacy as and when he likes.Further, in the case of Francis Coralie Mullin

v. Administrators7, Justice P.N. Bhagwati aptly stated that right to life includes the right to

live with human dignity and all that goes along with it, the bare necessities of life nutrition,

clothing and shelter and facilities for reading, writing and expressing oneself in diverse

forms, freely moving about and mixing and commingling with fellow human beings [...]

Every act which offends against or impairs human dignity would constitute deprivation pro

tanto of this right to live and it would have to be in accordance with reasonable, fair and just

procedure established by law which stands the test of other fundamental rights. Here the

petitioners right to dignity has been clearly violated.

On the basis of the aforesaid judicial rulings, it can be derived that right to privacy

includes living with dignity, apart from possessing the right of keeping certain things/acts

5

AIR 1997 SC 568.6(1991) 1 SCC 57: AIR 1991 SC 207,211.

7SC 608 1981


15/25



private. As already submitted in this petition, the judgement given in the case of Peoples

Union for Civil Liberties v. Union of India8,lays down that cases on the context of right to

privacy should be decided on the merits of facts. In the instant case, a channel of the

Broadcasting Corporation of India shows a two-minute video of the petitioners in a news

item. The video footage shows the petitioners soliciting their clients in full zeal and vigour,

while they were earlier employed in the dance bars. Although the video footage did not

contain the names of the petitioners, it was clear enough to reveal their faces. Therefore, it is

humbly submitted that the right to privacy of the petitioners has been infringed upon by the

respondents. Moreover, the fact that the petitioners were professional bar dancers and

solicited a number of men, does not give the respondents, the liberty to enter into their private

space. The respondent, by publishing the video footage has clearly entered into the private

space of the petitioners, which will affect their dignity in a negative way. It is therefore

humbly submitted before this Honourable Court that the right to privacy, which is a

fundamental right of the petitioners has been infringed by the respondents.

1.3.The petitioners have the required locus standi to invoke the jurisdiction of this

Honble Court and the said petition is maintainable.

Locus Standi in Latin refers to a place of standing and it is defined as the right to

bring an action or to be heard in a given forum.9

Article 32 of the Constitution of India guarantees a remedy for the violation of any

right that come under Part III, namely Fundamental Rights. Under Article 32 it has been

guaranteed by the Constitution of India that any person who complains of infringement of

any fundamental rights is at the liberty to move to The Honourable Supreme Court.Therefore, it is humbly submitted before this Honourable Court that the petitioners in the

instant case can approach this Honourable forum. The petitioners have the required locus

standi to approach this Court for relief under Article 32 in light that his Fundamental Right to

Privacy has been violated.

8

AIR 1997 SC 568.9Black's Law Dictionary, (8th ed. 2004) at p. 952.


16/25



The Honourable Supreme Court of India has the jurisdiction to adjudicate the said

petition for issuance of appropriate direction, order, or a writ including the writ of mandamus

to check and end the invasion of privacy of the petitioner, through the broadcasting of the

video footage and apologize for the same.

InBandu Mukti Morcha v. Union of India10the Honourable Supreme Court broadened

the scope and ambit of Article 32 .The constitution does not merely confer power on this

court to order, direct a writ to enforce the fundamental rights, it also lays a constitutional

obligation on the court to protect the fundamental rights of the people for that purpose the

court has all the powers to forge new remedies and strategies to enforce the fundamental

rights.

Hence, it is humbly submitted that this petition is maintainable and the petitioner has

the requisite locus standi to approach this Honourable Court.

1.4. The redressal asked by the Petitioners is appropriate

The petitioners are praying to the Court to direct the Union of Cidia to pay them

compensation and also post an apology by way of scroll continuously for two days in allchannels of Broadcasting Corporation of Cidia.

In the case of Alarmelu Mangai v. The Secretary to the Government of Tamil Nadu,

Public Department and Ors.11, it is clearly mentioned that compensation can be claimed if a

persons right to privacy has been violated. In respect of deprivation of the constitutional

rights guaranteed under Part III of the Constitution, the position is well settled that adequate

compensation can be awarded by the court for such violation by way of redress in

proceedings under Article 32 and 226 of the Constitution.12

Therefore, there should be no legal difficulty in ordering compensation to the petitioners

for infringement of their right to privacy and the ordeal of public humiliation meted out to her

by the action of respondents. Though the public humiliation and mental agony gone by the

petitioners can never be compensated in terms of money, yet the respondents cannot be

allowed to go scot-fee for their constitutional infringement of the right of the petitioners and

10AIR 1984 SC 802.

11

W.P.NO.14781 of 200412Rudul Sah v. State of Bihar; Nilabati Behera v. State of Orissa; Consumer Education and Research Centre v.

Union of India


17/25



for having made public humiliation of the petitioners. Also, demand of an apology for two

days by the petitioners could not be considered to be in excess of the harm caused by the

video in any way. The petitioners wish to get some sort of relief by the apology of the news

channel in terms of the damage caused to their image due to the public display of their video

footage.

Therefore, it is humbly submitted that the Union of India should be directed to pay the

petitioners with the compensation asked for. Further, Broadcasting Corporation of Cidia

should post an apology in all of their channels in scroll, continuously for two days, so that the

petitioners get some sort of relief, and the Broadcasting Corporation of Cidia deters to do any

act of similar nature in the future.

2.1The petitioner has the locus standi to invoke the jurisdiction of the Honble Court

and the said petition is maintainable

Article 32 of the Constitution of Cidia guarantees a remedy for any violation of right that

falls under Part III of the Constitution. Part III of the Constitution of Cidia deals with

fundamental rights of the citizens of Cidia.

The petitioners, in this case humbly submit that the Section 66A of the Information

Technology Act 2000 is in direct contravention of Articles 14, 19(1)(a) and Article 21 of the

Constitution of Cidia. The petitioner has filed this writ petition under public interest and the

requests the Court to kindly adjudicate the matter.

It would be pertinent to submit the case of Subhash Kumar v. State of Bihar13, in which

the Supreme Court held that recourse to proceeding under Article 32 of the Constitution

should be taken person genuinely interested in the protection of society on behalf of the

community.

The Honble Supreme Court of India has through the weapon of Public Interest Litigation

(hereinafter referred to as PIL) liberalized the requirement for the locus standi in a

particular case with the sole intention that the most genuine and serious concerns could be

addressed which would benefit the public at large. A petition can be filed under Article 32 to

challenge the validity of a law with reference to provisions other than those involving

fundamental rights provided it inevitably causes a restriction on the enjoyment of13

AIR 1991 SC 420


18/25



fundamental rights14. In the light of the recent happenings in which a woman was taken into

custody because she tweeted her discontent towards government action on the banning of the

dance bars by calling it a hasty and unmindful action the petitioner seek re-examination of the

Section 66(A) on the grounds of it infringing upon the fundamental rights of its citizens.

Hence it is humbly submitted to the Honourable court that the said petition is

maintainable and the petitioner has the requisite locus standito approach the Honble court.

2.2Section 66A of the Information Technology Act is unconstitutional as it violates

Article 14, 19(1)(a), 21 of the Constitution of India.

This petition has been filed before this Honourable Court to challenge the

constitutional validity of Section 66A of the Information Technology Act 2000. The

petitioner, Jan Mukhti Andolan, an NGO, based in Crombay, filed this petition in the light of

the developments of the trial of Ms. Salma, a financial consultant at a private firm in the city

of Crombay. Ms. Salma was arrested by Crombay Police for tweeting her discontent on the

governmental move of banning dance bars. There have been many other cases of such arrest

prior to the case of Ms. Salma, and so this writ petition is filed in public interest to challenge

the constitutional validity of Section 66A of the Information Technology Act 2000.

It is humbly submitted that the phraseology of Section 66A is so wide, vague and

incapable of being judged on objective standards that it is susceptible to wanton abuse.

Further, the terms offensive, menacing, annoyance, inconvenience, danger,

obstruction and insult have not been defined in the IT Act, General Clauses Act or any

other legislation. It has been held in the case of A K Roy v. Union of India15that the

impossibility of framing a definition with mathematical precision does not justify the use of

vague expressions. In the said case, a provision of the National Security Act was held to be

violative(due to being capable of wanton abuse) of the fundamental right to life and personal

liberty guaranteed under Article 21 of the Constitution. The Petitioner says that the dicta of

the Court is squarely attracted to the present case.

14D.A.V College v. State of Punjab, 1971 2 SCC 269

151982 1 SCC 271


19/25



Citing the arrest of Ms. Salma made under Section 66A, the Petitioner submits that the

wide legislative language of the Section severely discourages citizens from exercising their

Constitutionally protected right to free speech for fear of frivolous prosecution (the chilling

effect), which violates the Freedom of Speech and Expression guaranteed under Article

19(1)(a) of the Constitution. Furthermore, whether or not Section 66A meets the test of

reasonableness laid down under Article 19(2), it is nonetheless violative of Articles 14

(Right to Equality) and 21 of the Constitution.

Additionally, in S Khushboo v. Kanniammal16, the Supreme Court had said that in

cases involving Freedom of Speech and Expression, the proper course for Magistrates is to

use their statutory powers to direct an investigation into the allegations before taking

cognizance of the offences alleged i.e. an inquiry under Section 202 of the Criminal

Procedure Code (CrPC) is a must before issuance of process.

The vagueness of language invites blatant transgressions of Fundamental Rights. This

petition was filed before the Supreme Court in public interest, based on the lack of a

regulatory framework for the effective investigation of cyber crimes, coupled with a lack of

awareness regarding cyber crimes on the part of police authorities. In the absence of proper

procedures for investigation and safeguards, citizens are vulnerable to police harassment.

There is also no uniformity in cyber security control and enforcement practices. While the IT

Act has provided that any police officer of the rank of sub-inspector can investigate cyber

offences, there are no provisions for training or knowledge for such officers in order to

properly equip them to handle cyber crimes. The petitioner thus prays that the Supreme Court

formulate, and also direct the respondents to formulate an appropriate regulatory framework

of Rules, regulations and guidelines for the effective investigation of cyber crimes, keeping in

mind the Fundamental Rights of citizens.

A significant proportion of the offences in Section 66A do not even fall within the

permissible categories of restriction in Article 19(2) of the Constitution. Further, the

Intermediaries Guidelines Rules provide for vague and undefined categories that require legal

determinations and effective censorship by private online service providers.

It will be pertinent to mention that Sec. 66A does not contain just one offence, but

contains multiple offences which may be applied to any speech or content uploaded online. In

16AIR 2010 SC 3196


20/25



as much as Sec. 66A lacks any coherence and structure as to the commission of a single

offence it does not contain any definitive ingredients of an offence which are specified in the

sub-sections.

It is submitted that the lack of coherence to tackle any particular offence is most

noticeable in Sec. 66A(b), which contains a list of grounds attracting the offence. It is

pertinent to mention that most of the phrases such as, annoyance or inconvenience are

vague, imprecise of definition and inchoate and do not contain any ingredients which can be

easily and uniformly applied. It is similarly relevant to highlight that even in respect of

phrases for which analogous criminal offences exist, there is no reference made to such

distinct sections. For instance, when Sec. 66A(b), states criminal intimidation it does not

make reference to Sec. 503 of the Indian Penal Code, 1860 which contains the offence of

criminal intimidation. The absence of such reference to similar provisions in a separate

enactment, absent a definition of the offence along with the conspicuous absence of any of

the ingredients for criminal intimidation creates a context ripe for arbitrary use abuse or

misuse of the law and may lead to a contrary interpretation of the offence of criminal

intimidation merely because it is carried online.

The offences under section 66A are not only undefined they are also broadly worded;

so much so that, even when the best construction is placed on them they result in a

duplication of offences which are contained under other existing penal laws which are

adequate to check the commission of crimes. The point to be noted here is that Section 66A

repeats existing offences without however, incorporating the legislative and judicially

evolved checks and balances guiding their interpretation to specific acts as also guiding

prosecutions, including the existence of ingredients of the offence warranting invoking the

law as well as the safeguards and exceptions which safeguard the liberties and fundamental

rights of persons alleged to have committed the crimes.

Thus, in the light of the above, it is respectfully submitted before this Honourable

Court that Section 66A of the Information Technology Act 2000 is unconstitutional, as it

violates the fundamental rights of citizens of Cidia, as laid down in the Constitution.


21/25



3.1. Writ Petition against a private body is maintainable.

It submitted in this Honourable Court that a writ petition against a private body can be

filed as regard to enforcement of fundamental right of an individual.

In the case of Bodhisattwa Gautam v Subhra Chakraborty17, it was stated that the

court can enforce fundamental rights against private bodies or individuals and can also award

compensation for violation of fundamental rights. In the case Peoples Union for Democratic

Rights v. Union of India18, it was held that some of the fundamental rights are enforceable not

only against the state but even against a private person.

It was held in the case of Rahul Mehra & Anr. v. Union of India19that: Governments

have ventured into the private arena and private bodies, likewise, have undertaken public

duties or public functions. There is a degree of overlap and the distinction is no longer clear-

cut or watertight. The law must be alive to these dynamics. Accordingly, the question of

maintainability of a writ petition must not be addressed from the standpoint of amenability.

[...] However, Courts have exercised restraint and they exercise these powers only in cases

which involve public law. Therefore, the ''litmus'' test for invoking the writ jurisdiction is

whether the act complained of is in the discharge of a public duty or a public function. It

matters little as to who discharges the public duty or performs the public function. And sotoo, the source of the power to discharge or perform such duty or function. Whether the

person is empowered by statute or some governmental order or whether such person

arrogates to himself the power to perform a public function or discharge a public duty, is of

no consequence. What is to be seen is whether there is an infraction in the discharge of such

duty or function.

Ultimately, in Federal Bank Ltd. v. Sagar Thomas20, the Court held that a writ petition

can be maintainable against:

a) a private body discharging public duty or positive obligation of public nature; and

b) a person or a body under liability to discharge any function under any statute, to

compel it to perform such a statutory function.''

17AIR 1996 SC 922

18

AIR 1982 SC 130519(2005) 4 Comp. LJ 268 Del, 114 (2004) DLT 323

20AIR 2003 SC 4325


22/25



Therefore, as we see that the News Broadcasters Association (NBA) of Cidia has had

been doing a public duty by helping the people get access to news and current affairs, this

case should be held maintainable. The fact that NBA is a private body, shall not immune it

from being the respondents in the present case. Hence, it is humbly submitted before this

Honourable Court that the present case is maintainable and should be taken into

consideration.

3.3 The petitioners fundamental right of right to free trial has been infringed, by

prejudice made by the media, and so the media should be temporarily gagged from

making coverage of the trial.

It is submitted before this Honourable Court that a fair trial would obviously mean a trial

before an impartial judge, a fair prosecutor and atmosphere of judicial claim. Fair trial means

a trial in which bias or prejudice for or against the accused, the witnesses or the cause which

is being tried is eliminated. Failure to accord fair hearing either to the accused to the

prosecution violates even minimum standards of due process of law.

Although it is said that a judge fit to be one is likely to be influenced consciously except

by what he sees or hears in Court and by what is judicially appropriate for his deliberations.However, judges are also human and we know better than did our forbears how powerful is

the pull of the unconscious and how treacherous the rational process. While the ramparts of

reason have been found to be more fragile than the Age of Enlightenment had supposed, the

means for arousing passion and confusing judgement have been reinforced. And since judges,

however, stalwart, are human, the delicate task of administering justice ought not to be made

unduly difficult by irresponsible print.21

Press reporting can generate unwarranted publicity and sensationalism. The journalists

undertaking of the system of administration of justice can be shallow and reporting can

incompetent, distorted or misguided. This has no service to the public interest. Being in the

spotlight of public censure can prevent a judge from taking an objective standing. A parallel

trial by the press may also influence the minds of those who may later be witnesses in the

case.

21Frankfurter J of the US Supreme Court in Pennekamp v. Florida, 90 L ED 1295: 328 US 331 (1946).


23/25



In Anukul Chandra Pradhan v. Union of India22, arising out of the Hawala cases

involving public persons, the Apex Court observed that publicity ought not to affect the

essentials of affair trial, including the presumption of innocence.

In December 2012, the horrific gang rape in capital city, invited enormous public outrage.

For days, there were angry protests out on the streets and on television channels, the media

trials were organised. There was clearly a public interest in the trial and its outcome, apart

from bringing the perpetrators to justice, in knowing whether the State apparatus had failed

the victim. Magistrate trying the case passed an order under Section 327(3) CrPC, barring

public access to the trial.

In Maria Monica Susairaj v. State of Maharashtra23court commented on the danger of

media eroding the credibility of the courts by saying:

If the reports in the media are responsible for creation of a perception in large number of

people in the country that a particular person is guilty or he is innocent, and ultimately, when

the matter goes to the trial, if the result is opposed to the perceptions of people, generally,

they tend to believe that the Court was not fair.

In the recent case of Sahara India Real Estate Corporation Limited v. SEBI24, the

Supreme Court discussed on the matter. In its 56-page judgement, the bench, headed by Chief

Justice S.H. Kapadia, said that if publishing news related to a trial would create a real and

substantial risk of prejudice to the proper administration of justice or to the fairness of trial,

the court could grant a postponement order, temporarily gagging the media from reporting on

it. The judges wrote: Anyone, be he an accused or an aggrieved person, who genuinely

apprehends on the basis of the content of the publication and its effect, an infringement of

his/her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to

approach an appropriate writ court and seek an order of postponement of the offending

publication/broadcast or postponement of reporting of certain phases of the trial (including

identity of the victim or the witness or the complainant). The court could grant such

preventive relief after balancing the constitutional rights to a fair trial against freedom of

speech, said the bench, keeping in mind that such orders of postponement should be for

short duration. The principle underlying postponement orders is that it prevents possible

contempt, argued the court, adding that in rare cases, such as some murder trials, even fair

and accurate reporting of a trial could be prejudicial.

22

(1996) 6 SCC 354232009 Cri LJ 2075 (Bom)

24(2012) 10 SCC 603


24/25



In the light of the law enunciated hereinabove, anyone, be he an accused or an

aggrieved person, who genuinely apprehends on the basis of the content of the publication

and its effect, an infringement of his/ her rights under Article 21 to a fair trial and all that it

comprehends, would be entitled to approach an appropriate writ court and seek an order of

postponement of the offending publication/ broadcast or postponement of reporting of certain

phases of the trial (including identity of the victim or the witness or the complainant), and

that the court may grant such preventive relief, on a balancing of the right to a fair trial and

Article 19(1)(a) rights, bearing in mind the abovementioned principles of necessity and

proportionality and keeping in mind that such orders of postponement should be for short

duration and should be applied only in cases of real and substantial risk of prejudice to the

proper administration of justice or to the fairness of trial. Such neutralizing device (balancing

test) would not be an unreasonable restriction and on the contrary would fall within the

proper constitutional framework.

Hence, it is humbly submitted before this Honourable Court to issue orders as it may

seem fit to gag the media from temporarily interfering in the trial and reporting in the case.


25/25


PRAYER AND CONCLUSION

Wherefore, in the light of the facts of the case, arguments advanced and authorities

cited, it is submitted that the Honble Supreme Court of Cidia may be pleased to adjudge and

declare that:

1. That there has been an infringement of Right to Privacy and that a compensation be

given along with an apology.

2. That Section 66A of Information Technology Act, 2000 is unconstitutional

3. That there has been a violation of Right to fair trial under Article 21 of the

Constitution of Cidia and that a postponement order be issued

Documents

879 - Pratik Bakshi - Petitioner