Respondent Final2

1

Code No……..…..

SCHOOL OF LAW, CHRIST UNIVERSITY MOOT COURT COMPETITION, 2010

BEFORE THE HON’BLE SUPREME COURT OF INDIA

Just World & Others……………………………………………….Petitioner Versus Union of India & Others……………………………….Defendant

WRIT BEFORE THE SUPREME COURT OF INDIA UNDER ARTICLES 32 AND 139A OF THE CONSTITUTION

MEMORIAL FOR RESPONDENTS

Memorial for Respondent

2

TABLE OF CONTENTS

ABBREVIATIONS

………………………………………………

INDEX OF AUTHORITIES

…………………………………

STATEMENT OF JURISDICTION

………………………......

STATEMENT OF FACTS

….………………………………....

STATEMENT

OF

ISSUES

……………………………..............

SUMMARY

OF

PLEADINGS

……………….

…………….......

SUMMARY

OF

ARGUMENTS

…………………………………….

CONCLUSION CONCLUSION AND PRAYER

……………...……..…………

APPENDIX…………………………………………………..


2

TABLE OF CONTENTS

ABBREVIATIONS

………………………………………………

INDEX OF AUTHORITIES

…………………………………


………………………......

STATEMENT OF FACTS

….………………………………....

STATEMENT

OF

ISSUES

……………………………..............

SUMMARY

OF

PLEADINGS

……………….

…………….......

SUMMARY

OF

ARGUMENTS

…………………………………….

CONCLUSION CONCLUSION AND PRAYER

……………...……..…………

APPENDIX…………………………………………………..


3

ABBREVIATIONS

&……………………………………………………………………………………….And AIR……………………………………………………………………...All India Reporter Hon’ble…………………………………………………………………………Honourable I.T………………………………………………………………...Information Technology Co……………………………………………………………………………...…Company Cri LJ………………………………………………………………..Criminal Law Journal Edn…………………………………………………………………………………Edition i.e………………………...………………………………………………………….That is Ltd........................................ Ltd............................................................... .............................................. .............................................. ...............................…....Limited ........…....Limited Pvt……………………………………………..…………………………………….Private SC…………………………………………………………………………..Supreme Court


4 SCC…………………………………………….……………………Supreme Court Cases U.S……………………………………………………………………………United States Vol……………………………………………………………………………….…Volume p………………………………………………………………………………………..Page v……………………………………………………………………………………..Versus Ors…………………………………………………………………………………..Others Anr…………………………………………………………………………………Another SCR……………………………………………………………….Supreme Court Reports

INDEX

OF

AUTHORITIES

CASES CITED

Gopal Das Mohta v. Union of India. AIR 1955 SC 1 : 1955 (1) SCR 773 Chiranjit Lal Chowdhuri v. Union of of India, (1950) SCR 869: AIR 1951 SC 41. Regina v. Liverpool Corporation 1972) 2 QB 299, 308-09. State of A.P. v. McDowell& Co. (1996) 3 SCC 709 (para 49). Mahendra Kumar Gupta v Union of India (1995) 1 SCC 85, 89 K.Venu v. Director-General of Police. A.I.R. 1990 Ker.344 at p.345 Life Insurance Corporation of India v. Prof. M.D. Shah, 1992(3) S.C.J. 84 : A.I.R. 1993 S.C. 171 at p. 177 Ramesh Yeshwant Prabhoo(Dr.) v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130 Memorial for Respondent

5

Raj Kapoor v. State AIR 1980 SC 258 Reno v. American Civil Liberties Union 521 US 844 (1997) Krishna Bus Service Pvt. Ltd. M/s. v. State of Haryana, A.I.R. 1984 P&H 137 at p.141 Rajasthan Pradesh V.S. Sardarshahar and Anr. V. Union of India (UOI) and Ors,MANU/SC/0408/2010 U.S. v. Alpers 338 U.S. 680 (1950) People v. Emerson, 196 Misc. 2d 716, 766 N.Y.S.2d 482 (Sup 2003) : 1 Misc. 3d 638, 2003 WL 22283378 (N.Y. Sup 2003) R v. Stanley (1965) 1 All ER 184 Miller v. California 413 U.S. 15 (1973) F.C.C. v. Pacificia Foundation, (1978) 3 All ER 184 U.S. v. Barth , 26 F. Supp. 2d 929 (W.D. Tex. 1998); Samaresh Bose v. Amal Mitra , (1985) 4 SCC 289 U.S. v. Zimmerman 277 F.3d 426 (3d Cir. 2002) 354 U.S. 476 (1957) Hamling v. U. S ., 418 U.S. 87 (1974) Erznoznik v. City of Jacksonville 422 U.S. 205 (1975) New York v. Ferber 458 U.S. 747 (1982) Osborne v. Ohio 495 U.S. 103 (1990) Barnes v. Glen Theatre, Inc .1, 501 U.S. 560 (1991) Mishkin v. State of N. Y 383 U.S. 502 (1966) Kois v. Wisconsin 408 U.S. 229 (1972) Kaplan v. California 413 U.S. 115 (1973) Paris Adult Theatre I v. Slaton 413 U.S. 49 (1973) U.S. v. Zimmerman 277 F.3d 426 (3d Cir. 2002) Roth v. U. S 354 U.S. 476 (1957) Com. v. Hinds437 Mass. 54, 768 N.E.2d 1067(2002): 537 U.S. 1205, 123 S. Ct. 1280, 154 L. Ed. 2d. 1049 (2003) Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881 Miller v. California 413 U.S. 15 (1973) American Booksellers Assn., Inc. v. Superior Court , 129 Cal. App. 3d 197, 181 Cal. Rptr. 33, 8 Media L. Rep. (BNA) 2014 (2d Dist. 1982) ; News, Inc v. City of Dover, 117 N.H.1066, 381 A2d 752 (1977) Capitol News Co., Inc. v. Metropolitan Government of Nashville and Davidson County , 562 S.W.2d 430, 3 Media L. Rep. (BNA) 2216 (Tenn. 1978); Walsh v. State 236 Ga. App. 558, 512 S.E.2d 408 (1999); U.S. v. Smith 27 F. Supp. 2d 1111 (C.D. Ill. 1998) United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986),

United States v. Arvin , 900 F.2d 1385 (9th Cir. 1990). Parnigoni v. District of Columbia , 933 A.2d 823 (D.C. 2007) People v. Geever , 122 Ill. 2d 313, 119 Ill. Dec. 341, 522 N.E.2d 1200 (1988) State v. Peterson, 535 N.W.2d 689 (Minn. Ct. App. 1995) 1

501 U.S. 560 (1991)


6

Gotleib v. State , 406 A.2d 270, 5 Media L. Rep. (BNA) 1818 (Del. 1979), People v. Wilson, 95 Mich. App. 440, 291 N.W.2d 73 (1980)., City of Minot v. Central Ave. News, Inc ., 308 N.W.2d 851 (N.D. 1981) State ex rel. Kidwell v. U. S. Marketing, Inc ., 102 Idaho 451, 631 P.2d 622, 25 A.L.R.4th 381 (1981), Long v. 130 Market St. Gift & Novelty of Johnstown , 294 Pa. Super. 383, 440 A.2d 517 (1982), Powell v. State, 632 S.W.2d 842 (Tex. App. Houston 14th Dist. 1982). People v. Stout , 18 Cal. App. 3d 172, 95 Cal. Rptr. 593 (2d Dist. 1971), Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, 5 Media L. Rep. (BNA) 2418 (1980), State v. Muldowney , 60 N.J. 594, 292 A.2d 26 (1972) Movies, Inc. v. Conlisk , 345 F. Supp. 780 (N.D. Ill. 1971), Mitchem v. State ex rel. Schaub , 250 So. 2d 883 (Fla. 1971), People v. Mabie, 30 Ill. App. 3d 399, 331 N.E.2d 869 (4th Dist. 1975), Cherokee News & Arcade, Inc. v. State , 1974 OK CR 108, 533 P.2d 624 (Okla. Crim. App. 1974) Buck v. Steel , 263 Ark. 249, 564 S.W.2d 215 (1978), Roth v. U. S .354 U.S. 476(1957) Atkins v DPP and Goodland v DPP (2000) 1 WLR 1427(QBD) Uttam Singh v. StateAIR 1974 SC 1230; 74 Cri LJ 923 Dunlop v. U.S,165 U.S. 486(1897) Francis Coralie Mullin v. Union of Territory of Delhi AIR 1981 SC 746(para 3) Maneka Gandhi v. Union of India AIR 1978 SC 597 : (1978) 1 SCC 248 State of Haryana v. Ch. Bhajan Lal AIR 1992 SC 604 U.S. v. Hall 142 F.3d 988 (7th Cir. 1998) Astt. Collector of Central Excise v. Wilfred Sabastian 1983 CrLJ NOC 43(Ker) U.S. v. Bin Laden, 126 F. Supp. 2d 264 (S.D. N.Y. 2000) . Shyamalal’s case AIR 1965 SC 1251: (1965) 2 CrLJ 256 Sharda v. Dharmpal (2003) 4 SCC 493 District Registrar and Collector v. Canara Bank (2005) 1 SCC 496: AIR 2005 SC 186 Nandini Satpathy v. P.L.Dani AIR 1978 SC 1025 State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808 Ranchhod Das Khimji Ashre v Temton Jahangir , 1961(2) Cr.L.J 338: (1961) 2 Guj. L.R.415: (1961) 2 Guj. H.C.R. 197: A.I.R. 1961 Guj. 137

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

TREATISES AND BOOKS REFERED Memorial for Respondent

7

1. N. D. Basu, Code of Criminal Procedure Code , Vol II, Ashoka Law House, New

Delhi (10th Edn., 2007) 2. Ratan Lal and Dhiraj Lal, The Code of Criminal Procedure, Wadhwa Nagpur, New

Delhi (18th Edn., Reprint 2007) 3. Arvind P. Datar, Commentary on the Constitution of India, Vol I, Wadhwa Nagpur,

New Delhi, (2 nd , 2007) 4. Prof. M. P. Jain, Indian Constitutional Law, Wadhwa Nagpur, New Delhi (5th Edn.,

Reprint 2007) 5. V.N.Shukla, Constitution of India, Eastern Book Company,(10 th Edn.,2001)

6.

Durga Das Basu, Shorter Constitution of India, Wadhwa-Nagpur, New Delhi (13 th Edn.,Reprint 2003)

7.

H.M.Seervai, Constitutional Law of India ,Vol.1, Universal Law Publishing Co. Pvt. Ltd. (4th Edn.).

8. Dr. J.N.Pandey, Constitutional Law of India , Central Law Agency, (42nd Edn., 2005) 9. Mamta Rao, Law relating to Women & Children, Eastern Book Company,Lucknow, (2nd Edn., 2008)

ACTS AND TREATIES REFERRED

1. Information Technology(Amendment) Act, 2008

2. Information Technology Act, 2000


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

4. Constitution of India

5. Indian Penal Code, 1860

6. The Code of Criminal procedure, 1973

7. The Trade Marks Act, 1999

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

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


The Respondent, Union of India & Others, in Just World & Others v. Union of India & Others hereby submits this Memorandum before the Hon’ble Supreme Court of India, invoking the writ jurisdiction under Article 32 of the Constitution.


9

STATEMENT OF FACTS

I

Kayjay DeSouza, a law student and Sukhdeep, a student of digital animation, designed a comic strip named “Pramila Adershan’s Meaty Meanderings” which described the life and escapades of an adventurous and licentious thirty five year old housewife. The comic strip


10 was quite sexually overt both textually and graphically. Some copies of the comic strip were even confiscated by the lecturers at college. Soon after they started their careers. II

They registered a web site “Pramilaadershan.com” through Google in US and took out a trademark for it both in the US and in India. They had tie-ups with iStore and Ebay to meet demands. III

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

As the comic strip became quite popular Sukhdeep and Kayjay decided to set up a company. They became promoter directors of a new private company, Pushkar Ventures Pvt. Ltd contributing equally to the initial capital of the company. It was valued by an independent accounting firm at Rs. 21.8 Crores with 20 illustrators as employees. V

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

VI

Culture Vultures, a right wing association began protests and claimed that some mothers of a few teenagers had requested them to help as their children were being morally depraved. Hence culture vultures held a protest meeting outside the offices of Pushkar ventures, where they burnt print-outs of the comic strip. Their intentions were to protect the Indian culture and feminine virtues. VII


11 Culture Vultures members registered complaints in more than 38 police talukas in Karnataka. In many cases, the Magistrates ordered personal appearance of the accused before granting bail. VIII

There were also complaints by a lawyers association in Tamil Nadu and some other right wing organizations in 11 districts in Gujarat and 3 other districts in Madhya Pradesh. IX

Moreover Culture Vultures began filing complaints indiscriminatingly against internet service providers, companies that gave server space to Pushkar Ventures, cyber café owners on whose caches Pramila Adershan’s data was found and Istore and Ebay claiming that they were intermediaries. The police launched investigations against many of these persons. X

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

The Superintendent of Police, Bangalore (South) entered the offices of Pushkar Ventures and seized all the computer hard disks and story board clippings hanging there. He also found other pornographic material which he claimed was being used by the employees for inspiration. XII

A letter from an angry Indian mother reproaching them for hosting such depraved and salacious content sent by istore and Ebay was also found in their office. The officer also found some personal letters of communication between Kayjay and his ex-girlfriend. Their relationship had lasted about 3 months. XIII


12 In February 2009 the company and its directors were charged under Sections 67A of the Information Technology Act, 2000 (as amended) r/w Sections 3 and 4 of the Indecent Representation of women (Prohibition) Act, 1986 and relevant sections of IPC XIV

Sukhdeep and Kayjay applied to the Karnataka, Tamil Nadu, Gujarat and Madhya Pradesh High Courts for quashing of various complaints under Section 482 of the CrPC. The Karnataka, Gujarat and Madhya Pradesh High Court were refused to stay or quash the complaints. XV

Kayjay also filed a separate writ petition alleging violation of his privacy. They also filed a writ petition in the High Court of Karnataka challenging the order blocking the website, stating that a case had not been made out for the same under Section 69A of the Information Technology Act. The High Court stayed the operation of the order for four weeks on the statement of the Solicitor General of India that the Union would file an appeal before the Supreme Court. XVI

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

XVII

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

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


13 XIX

As per the observation of Judges in the Karnataka High Court the Chief Justice constituted a Constitution bench and passed a fresh interim order staying all proceedings and remanding all matters to the bench. XX

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

STATEMENT OF ISSUES

(A)W HETHER THE

PETITION IS MAINTAINABLE UNDER ARTICLE

(B) WHETHER THE SECTIONS 2008

UNDER THE

(C) WHETHER THE THE

AND THE

OF THE

CONSTITUTION ?’

INFORMATION TECHNOLOGY (A MENDMENT ) ACT

ARE CONSTITUTIONAL ALLIED WITH THE

WOMEN (P ROHIBITION ) A CT , 1986

32

SECTIONS

OF

INDECENT R EPRESENTATION

OF

INDIAN PENAL CODE , 1860?

SEARCH AND SEIZURE POWERS GRANTED UNDER

INFORMATION TECHNOLOGY ACT , 2000

SECTIONS 29

ARE CONSTITUTIONAL ?


AND

80

OF

14 (D) WHETHER THERE

HAS BEEN ANY INFRINGEMENT OF RIGHT TO PRIVACY BY THE SEARCH OF

PRIVATE MAILS AND DOCUMENTS NOT MEANT FOR PUBLIC CIRCULATION ?

(E) IS

THERE ANY VIOLATION OF

ARTICLE 20(3)

IF ANY PRIVATE UNPUBLISHED INFORMATION IS

USED TO CONVICT THE ACCUSED UNDER THE RELEVANT SECTIONS ?

(F)

WHETHER A CASE HAS BEEN MADE OUT IN CASE OF CONSTITUTIONALITY OF SECTION

THE INFORMATION TECHNOLOGY

(AMENDMENT )

ACT ,

69A

OF

2008?

SUMMARY OF PLEADINGS

I.

THE PETITION IS

NOT MAINTABLE UNDER ARTICLE 32 OF THE

CONSTITUTION There is no violation of petitioner’s fundamental rights. An enactment cannot be struck down on the plea that it is unreasonable, unnecessary or unwarranted II.

THE PETITIONER DOES NOT HAVE THE LOCUS STANDI Petitioner cannot be heard to complain about discrimination suffered by others. An association cannot file a writ petition under Article 32‘person aggrieved’ does not include a mere busybody who is interfering in things which do not concern him.


15 III.

Sections 67A, 69A and 69B of the Information Technology (Amendment) Act 2008 and allied provisions in the Indecent Representation of Women (Prohibition) Act, 1986 and the Indian Penal Code, 1860 ARE CONSTITUTIONAL

IV. Sections 29 and 80 are constitutional V. There is no infringement of right to privacy VI. Article 20(3) has no applicability in this case VII. Central Government can block the websites in cases of violation of public order under Section 67A

ARGUMENTS ADVANCED

A) WHETHER THE WRIT PETITION IS MAINTAINABLE ? A.1)

The sole object of Article 32 is the enforcement of the fundamental rights guaranteed by the Constitution. Unless a fundamental right is violated a person cannot complain under this article.2 Even if the Supreme Court finds that a law must be held to be void, being in contravention of some provisions of the Constitution, the Court will not give relief under 2

Gopal Das Mohta v. Union of India. AIR 1955 SC 1 : 1955 (1) SCR 773


16 Article 32 unless it is satisfied that a fundamental right is infringed. It is not concerned with the determination of the legislative competence or vires of a particular enactment.3 To make out a case under this Article the petitioner should not merely establish that the law complained of is beyond the competency of the particular legislature, as not being covered by any of the items in the legislative lists, but also that it invades the fundamental rights guaranteed by the Constitution of which he can seek enforcement by an appropriate writ or order.4 It is said that an enactment cannot be struck down on the plea that it is unreasonable, unnecessary or unwarranted. There is always a presumption in favour of constitutionality. In this case the Petitioner, Just World, alleges infringement of Articles 14, 19(1) (a) & (g) and 21 of the Constitution. But there is no violation of fundamental rights as the Petitioner claims and hence this writ petition is not maintainable. The A.2. THE PETITIONER DOES NOT HAVE THE LOCUS STANDI

The rights that could be enforced under Article 32 must ordinarily be the rights of the Petitioner himself who complains of the infraction of such rights and approaches the Court for relief. A petitioner cannot be heard to complain about discrimination suffered by others. 5 In this case, Just World has filed a Writ of under Article 32 challenging the Constitutionality of sections of the Information Technology (Amendment) Act, 2008. In the case of Regina v. Liverpool Corporation6 , Lord Denning M.R. held that the expression ‘person aggrieved’ does not include a mere busybody who is interfering in things which do not concern him, but it includes any person who has a genuine grievance because something has been done or may be done which affects him. Also an association cannot file a writ petition under Article 32. This was laid down in the case of Mahendra Kumar Gupta v Union

of India7 . Of late there is a rampant abuse of PIL. Frivolous cases are filed without any 3

Chiranjit Lal Chowdhuri v. Union of India, (1950) SCR 869: AIR 1951 SC 41. ibid 5 State of A.P. v. McDowell& Co. (1996) 3 SCC 709 (para 49). 6 (1972) 2 QB 299, 308-09. 7 (1995) 1 SCC 85, 89 4


17 reason. They have been mooted by privately motivated interests in the disguise of the socalled public interests. The Petitioner has failed to show the ‘public interest’ element in this case. (B)

THE

CONSTITUTIONALITY

TECHNOLOGY

(AMENDMENT )

SECTIONS 67A, 69A

OF

ACT

2008

AND

AND

ALLIED

R EPRESENTATION OF WOMEN (P ROHIBITION ) A CT , 1986

69B

OF

PROVISIONS

AND THE

THE

IN

INFORMATION

THE

INDECENT

INDIAN PENAL CODE , 1860?

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

Section 67A of The Information Technology (Amendment) Act, 2008 dealt with punishment for publishing or transmitting any material containing sexually explicit act, etc., in electronic form. According to Article 13 of the Constitution the laws inconsistent with or in derogation of the fundamental rights will be considered void. It includes any laws made or passed by a competent legislature. To declare a law as unconstitutional it has to be shown that there is violation of fundamental rights. We see that there is no infringement of Fundamental Rights as alleged by the Petitioner. There is no infringement of Article 19(1) (a) of the Constitution which gives citizens the right to freedom of speech and expression. There is a sharp distinction between Constitution of United States of America and India. In the former, freedom of speech guaranteed is absolute and in the latter the Constitution itself provides for certain exceptions. India is also a party to the International Covenant on Civil and Political Rights and therefore bound to respect the right to freedom of expression guaranteed by Article 19 thereof. There is a connection between freedom of speech and the stability of the society. This freedom is subject to Subclause (2) of Article 19, which allows the State to impose restriction on the exercise of this freedom in the interest of public decency and morality8. It is considered to be in the general 8

K.Venu v. Director-General of Police. A.I.R. 1990 Ker.344 at p.345


18 interest if the society.9 Decency means that the action must be in conformity with the current standards of behaviour or propriety. 10 This shows that obscenity which is offensive to public decency and morality is outside the purview of the protection of free speech and expression, because the Article dealing with the right itself excludes it. This is to ensure that there is a restriction on speeches and publications which undermines public morals. In the case of Raj Kapoor v. State 11, the Apex court dealt with the aspect of censorship and held that freedom of expression cannot be questioned by an intolerant group of people. The fundamental freedom under Article 19(1) (a) can be reasonably restricted only for the purposes mentioned in Articles 19(2) and the restriction must be justified. It was observed that “the censors Board should exercise considerable circumspection on movies affecting the morality or decency of our people and cultural heritage of the country. The moral values in particular, should not be allowed to be sacrificed in the guise of social change or cultural assimilation”. In the case of Reno v. American Civil Liberties Union 12 it was held that it would be wrong to restrain speech on the internet, except for dissemination of obscene messages. Moreover a Corporation or a company is not a citizen for purposes of the Constitution and thus cannot claim the rights mentioned in Article 19 of the Constitution. 13 Hence sexually explicit acts arouse lascivious interest in the minds of people. It is against public decency and morality and hence comes within the purview of restrictions imposed under Clause 2 of Article 19. Hence there is no violation of Article 19(1) (a). Article 19(1) (g) ensures the freedom to practice any profession, or to carry on any occupation, trade or busniness. In Rajasthan Pradesh V.S. Sardarshahar and Anr. V. Union

of India (UOI) and Ors 14 , the Court decided that “the right to practice under Article 19(1)(g) 9

Life Insurance Corporation of India v. Prof. M.D. Shah, 1992(3) S.C.J. 84 : A.I.R. 1993 S.C. 171 at p. 177 Ramesh Yeshwant Prabhoo(Dr.) v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130 11 AIR 1980 SC 258 12 521 US 844 (1997) 13 Krishna Bus Service Pvt. Ltd. M/s. v. State of Haryana, A.I.R. 1984 P&H 137 at p.141 14 MANU/SC/0408/2010 10


19 of the Constitution is not absolute and is subject to reasonable restrictions provided under Article 19(6) of the Constitution”. Hence the publishing or transmission of sexually explicit act is within the restriction mentioned in 19(6) and hence the section is not unconstitutional. In this case the comic strip was quite sexually explicit, both textually and graphically. For something to be ‘obscene’ it must be shown that the average person, applying contemporary community standards and viewing the material as a whole, would find that the work appeals predominantly to ‘prurient’ interest, that it depicts or describes sexual conduct in a offensive way, and that it lacks serious literary, artistic, political or scientific value. In this issue mother of the teenage children had asked the help of the Culture Vulture and bundles of cases filed against them in various parts of the Country. That itself shows that the strip is obscene as per the ordinary man’s perspective. In a prosecution for possessing a sexual performance by a child, a computer repairman’s initial private search of the files in defendant’s computer was not subject to Fourth Amendment scrutiny, as the repairman was not an agent of the government and did not act with the participation or knowledge of any governmental official 15. In U.S. v. Alpers 16 , Obscene phonograph records are within the prohibition of 245 of the Criminal Code, which forbids the interstate shipment of any obscene

book, pamphlet,

picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character. Indian culture is more conservative and orthodox than the United States and the people here are more sensitive about the morality and decency. The letters of angry Indian mother for hosting such depraved and salacious content itself shows that the Pramila Adershan’s character is obscene. In the case of R v. Stanley17 it is clearly pointed out that anything that is obscene must necessarily be indecent. In other words,

15

People v. Emerson , 196 Misc. 2d 716, 766 N.Y.S.2d 482 (Sup 2003) : 1 Misc. 3d 638, 2003 WL 22283378 (N.Y. Sup 2003) 16 338 U.S. 680 (1950) 17 (1965) 1 All ER 184


20 indecent merely means non conformance with accepted standards of morality. Obscenity refers to that which has prurient or lascivious appeal 18. United States courts use the Miller test for determining whether speech or expression is ‘obscene,’ and therefore not protected by the First Amendment. That means it can legally be banned. The Miller test stems from Miller v. California 19, in which the US Supreme Court held that material is obscene if each of the following factors is satisfied: Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest? Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable law? Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value? All the factors mentioned in the questions are satisfactory to define the material in this issue as obscene and filthy. Central Government also issued an order for banning the website because of its filthy content. Indian culture and feminine virtue is spoiled in this indecent character. It also gives false image of traditional Indian housewife. Police also found pornographic material from their office. Child pornography is offensive in most of the Countries in the world.20The comic strip is against the national and contemporary standards of the society. Obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences .21 A federal court case, U.S. v. Zimmerman22, provides persuasive analysis of the issue of “staleness”. In Zimmerman, the defendant was indicted for possession of child pornography when several images were found at his residence during the execution of a search warrant. The search warrant application contained information that the Third Circuit found to be “stale”, because it stated that “many months” earlier, one clip of adult pornography had been 18

F.C.C. v. Pacificia Foundation, (1978) 3 All ER 184 413 U.S. 15 (1973) 20 U.S. v. Barth, 26 F. Supp. 2d 929 (W.D. Tex. 1998) ; 21 Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289 22 277 F.3d 426 (3d Cir. 2002) 19


21 accessed at Zimmerman's computer. On this basis, the denial of the suppression motion was reversed. In Com. v. Hinds23, holding that child pornography images stored on defendant’s computer were in police officer’s plain view, and thus officer’s seizure of defendant’s computer was not unlawful; officer had consent to search the computer for electronic mail, officer was not required to disregard files listed in plain view in the computer directory, the titles to the documents, such as 2BOYS.JPG, KIDSEX1, and TEENSEX, created probable cause to believe that their contents contained illegal subject matter, and there was a substantial risk that the computer data would be destroyed if the computer was not seized. In Roth v. U. S. 24 , Court opines that Obscenity is not within the area of constitutionally protected freedom of speech or press either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States. The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. The sexually explicit contents will never come under the purview of Fundamental Rights of the Indian Constitution. In Hamling v. U. S .25 , Court was affirming conviction of mailing and conspiring to mail an obscene advertising brochure with sexually explicit photographic material relating to their illustrated version of the Presidential Report of the Commission on Obscenity and Pornography.

In Erznoznik v. City of Jacksonville 26 , Jacksonville, Florida ordinance making it a public nuisance and a punishable offense for a drive-in movie theater to exhibit films containing nudity, when the screen is visible from a public street or place, held facially invalid as an 23

437 Mass. 54, 768 N.E.2d 1067(2002): 537 U.S. 1205, 123 S. Ct. 1280, 154 L. Ed. 2d. 1049 (2003) 354 U.S. 476 (1957) 25 418 U.S. 87 (1974) 26 422 U.S. 205 (1975) 24


22 infringement of First Amendment rights. In New York v. Ferber 27, a New York statute prohibits persons from knowingly promoting a sexual performance by a child under the age of 16 by distributing material which depicts such a performance. As applied to respondent and others who distribute similar material, the statute in question does not violate the First Amendment as applied to the States through the Fourteenth Amendment. In the case of

Osborne v. Ohio28 , it is mentioned that Ohio may constitutionally proscribe the possession and viewing of child pornography. On other issue of Barnes v. Glen Theatre, Inc.29, the Enforcement of Indiana’s public indecency law to prevent totally nude dancing does not violate the First Amendment's guarantee of freedom of expression. In Mishkin v. State of N. Y. 30, Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. As mentioned in Kois v. Wisconsin 31 , Petitioner was convicted for publishing in his underground newspaper pictures of nudes and a sex poem. It is also pointed out that Kaplan

v. California 32 , Obscene material in book form is not entitled to First Amendment protection merely because it has no pictorial content. A State may control commerce in such a book, even distribution to consenting adults, to avoid the deleterious consequences it can reasonably conclude (conclusive proof is not required) result from the continuing circulation of obscene literature.

27

458 U.S. 747 (1982) 495 U.S. 103 (1990) 29 501 U.S. 560 (1991) 30 383 U.S. 502 (1966) 31 408 U.S. 229 (1972) 32 413 U.S. 115 (1973) 28


23 Court in Paris Adult Theatre I v. Slaton

33

, contented that Exhibition of obscene material in

places of public accommodation is not protected by any constitutional doctrine of privacy. In a prosecution for possessing a sexual performance by a child, a computer repairman’s initial private search of the files in defendant’s computer was not subject to Fourth Amendment scrutiny, as the repairman was not an agent of the government and did not act with the participation or knowledge of any governmental official34. In U.S. v. Alpers 35 , Obscene phonograph records are within the prohibition of 245 of the Criminal Code, which forbids the interstate shipment of any obscene book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character. Indian culture is more conservative and orthodox than the United States and the people here are more sensitive about the morality and decency. In Ranjit D. Udeshi v. State of Maharashtra 36the term obscenity is defined by the Supreme Court as ‘the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive. This also includes sexually explicit content under Section 67A of the Information Technology (Amendment) Act, 2008. The per se action of the petitioner can be considered as sexually explicit and the persons are liable for their act. The letters of angry Indian mother for hosting such depraved and salacious content itself shows that the Pramila Adershan’s character is sexually explicit. In the case of R v. Stanley 37 it is clearly pointed out indecent merely means non conformance with accepted standards of morality. Obscenity refers to that which has prurient or lascivious appeal 38. United States courts use the Miller test for determining whether speech or expression is ‘obscene or sexually explicit,’ and therefore not protected by the First Amendment. That 33

413 U.S. 49 (1973) People v. Emerson , 196 Misc. 2d 716, 766 N.Y.S.2d 482 (Sup 2003) : 1 Misc. 3d 638, 2003 WL 22283378 (N.Y. Sup 2003) 35 338 U.S. 680 (1950) 36 AIR 1965 SC 881 37 (1965) 1 All ER 184 38 F.C.C. v. Pacificia Foundation, (1978) 3 All ER 184 34


24 means it can legally be banned. The Miller test stems from Miller v. California 39, in which the US Supreme Court held that material is obscene if each of the following factors is satisfied: Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest? Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable law? Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value? All the factors mentioned in the questions are satisfactory to define the material in this issue as sexually explicit and filthy. Central Government also issued an order for banning the website because of its filthy content. Indian culture and feminine virtue is spoiled in this indecent character. It also gives false image of traditional Indian housewife. Police also found pornographic material from their office. Child pornography is offensive in most of the Countries in the world .40The comic strip is against the national and contemporary standards of the society. It has the tendency to deprave and corrupt those whose minds are open to such immoral influences. 41 Greater latitude is permissible in defining child pornography.42 Many courts apply the so-called Dost test to determine if a given image is considered to be "lascivious" under the law 43. Context is also important in determining ‘whether the image is intended or designed to elicit a sexual response in the viewer. ’For example, in jury instructions approved by the Ninth Circuit, the Court asked the jurors to consider the caption of the photograph 44. Indecent exposure statute requires exposure at such a time and place where as a reasonable man he 39

413 U.S. 15 (1973) U.S. v. Barth, 26 F. Supp. 2d 929 (W.D. Tex. 1998) ; 41 Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289 42 American Booksellers Assn., Inc. v. Superior Court , 129 Cal. App. 3d 197, 181 Cal. Rptr. 33, 8 Media L. Rep. (BNA) 2014 (2d Dist. 1982); News, Inc. v. City of Dover , 117 N.H. 1066, 381 A.2d 752 (1977) ;Capitol News Co., Inc. v. Metropolitan Government of Nashville and Davidson County, 562 S.W.2d 430, 3 Media L. Rep. (BNA) 2216 (Tenn. 1978); Walsh v. State 236 Ga. App. 558, 512 S.E.2d 408 (1999); U.S. v. Smith 27 F. Supp. 2d 1111 (C.D. Ill. 1998) 43 United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), 40

44

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


25 knows or should know his act will be open to the observation of others 45. The law pertaining to indecent exposure does not require that an accused have a specific intent to expose himself to any particular person; it is sufficient that accused generally intended to expose him so as to draw attention to his exposed condition. The issue of Pramila Adershan also includes child pornography. It is explicit that cartoons are commonly meant for children and a mere carelessness in this issue will destroy they moral, ethical and traditional decency the Indians used to follow. The states have a compelling interest in the protection of the health and welfare of children, and, therefore, are entitled to great leeway in the regulation of pornographic depictions of children46. States enjoy greater latitude in regulating child pornography because of the government’s compelling interest in safeguarding its children. The states may constitutionally prohibit even the private possession of child pornography. Moreover, a statute prohibiting the production of child pornography is valid even though mistake-of-age is not available as a defense in a prosecution under the statute 47. A state has an interest in regulating commercial sexually explicit act or obscenity 48, and possesses the power to prevent or regulate the dissemination49, distribution50, transportation, sale51, including possession with intent to sell 52, or display53 of obscene or filthy matter.

B.2 SECTIONS 69A& 69B OF THE I.T ACT ARE CONSTITUIONAL 45

Parnigoni v. District of Columbia, 933 A.2d 823 (D.C. 2007) People v. Geever , 122 Ill. 2d 313, 119 Ill. Dec. 341, 522 N.E.2d 1200 (1988) 47 State v. Peterson, 535 N.W.2d 689 (Minn. Ct. App. 1995) 48 Gotleib v. State, 406 A.2d 270, 5 Media L. Rep. (BNA) 1818 (Del. 1979), People v. Wilson, 95 Mich. App. 440, 291 N.W.2d 73 (1980)., City of Minot v. Central Ave. News, Inc., 308 N.W.2d 851 (N.D. 1981) 49 State ex rel. Kidwell v. U. S. Marketing, Inc., 102 Idaho 451, 631 P.2d 622, 25 A.L.R.4th 381 (1981), Long v. 130 Market St. Gift & Novelty of Johnstown, 294 Pa. Super. 383, 440 A.2d 517 (1982), Powell v. State , 632 S.W.2d 842 (Tex. App. Houston 14th Dist. 1982). 50 People v. Stout , 18 Cal. App. 3d 172, 95 Cal. Rptr. 593 (2d Dist. 1971), Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, 5 Media L. Rep. (BNA) 2418 (1980), State v. Muldowney, 60 N.J. 594, 292 A.2d 26 (1972) 51 Movies, Inc. v. Conlisk , 345 F. Supp. 780 (N.D. Ill. 1971), Mitchem v. State ex rel. Schaub, 250 So. 2d 883 (Fla. 1971), People v. Mabie, 30 Ill. App. 3d 399, 331 N.E.2d 869 (4th Dist. 1975), 52 Cherokee News & Arcade, Inc. v. State , 1974 OK CR 108, 533 P.2d 624 (Okla. Crim. App. 1974) 53 Buck v. Steel , 263 Ark. 249, 564 S.W.2d 215 (1978), People v. Mabie , 30 Ill. App. 3d 399, 331 N.E.2d 869 (4th Dist. 1975) 46


26 Section 69A of the Information Technology Act states the power to issue directions for blocking for public areas of any information through any computer resource. Where there is a severe increase in the pornography and sexual explicit websites, Government should take initiative to safeguard the Fundamental Rights guaranteed under Article 21 of the Constitution which also deals with a life with dignity. Preamble to the Indian Constitution also states about the sovereignty and integrity of the State. While performing the essential functions of maintaining public order and security of the nation, the state is different from other persons whether natural or artificial. 54 The State can act upon its discretion where it feels that the public order is violated. Section 69A also guarantees the Central Governments power to safeguard the Security of the State, friendly relations with foreign States etc. A website which is harmful to the moral values of the state should be banned. For the purpose of public safety, the classification of an area into dangerously disturbed area and other area is based on intelligible differentia.55 This is the same case with regard to the website if it is dangerous to the societal values which may cause public disorder. Article 14 of the Constitution allows certain discrimination. Sex being a sound classification for special protection of woman under Article 15(3),56 the provisions of any Act can be passed for the wellbeing of the weaker parties. Equality means equality among equals. There is no implication of equality being absolute in all circumstances 57.

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

Section 292(1) consists of two parts. One refers to a book, pamphlet, paper, drawing, painting, representation, figure of any other object which is lascivious or appeals to the prurient interest, and the other part says that if these materials comprises of two or more

54

R.M. Seshadri v. Second Addl. Income Tax Officer , (1954) 2 Mad L.J. 285 Gopi CHand v. Delhi Administration, 1959 Cr.L.J. 782: AIR 1959 SC 609 56 Yusuf Abdul Aziz v. State of Bombay, (1954) 1 Mad LJ 618 57 DEsu Rayudu v. Andhra Pradesh Public Service Commission, (1966) 1 An. W. R.403: AIR 1967 A.P.353 55


27 distinct items, the effect of any one of its items if taken as a whole tends to deprave and corrupt persons who are likely according to the relevant circumstances to read, see or hear the matter contained in it. There must be two things proved under Section 292 that (i) the matter is obscene and (ii) the accused has sold, distributed, imported, printed or exhibited it, or attempted or offered to do so.The word obscene is not defined in the Indian Penal Code. It depends upon the standards of morals of the contemporary society. The idea relating to immorality and indecency may change from time to time and place to place. The term obscene denotes anything that is offensive to modesty or decency, lewd, filthy and repulsive. The constitutional validity of section 292 has been challenged in the case Ranjit D Udeshi v.

State of Maharshtra 58 as it was considered to be violative of the right to freedom of speech and expression enshrined in article 19(1)(a) of the Constitution. It was held that “it can be harldy be said that obscenity which is offensive to modesty or decency is within constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it..This freedom is subject to reasonable restrictions which maybe thought necessary in the interest of the general public and one such is the interest of public decency and morality. Section 292, manifestly embodies such a restriction because the law against obscenity seeks no more than to promote public decency and morality.” So it was held that Section 292 was constitutional and not ultra vires of Article 19(2). It was also held that “the obscene matter in a book must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort and into whose hands the book is likely to fall. In this connection the interests of our contemporary society and particularly the influence of the book on it must not be overlooked. It was in this very same case that the Court held 58

(1965) 1 SCR 65 SC,(1964) 67 Bom LR 506 : AIR 1965 SC 881


28 that the defence available under the English law is not acceptable here. It is not possible for the accused to show that he had not examined the article in question and thus had no reason to suspect that it was obscene. But the other defence under English law which exempts publication which are for public good and in interest of science, literature, art, learning or other subjects of general concern is applicable in India which is provided for in the exceptions to this section. Even in the United States case of Roth v. U. S .59 , Obscenity was not considered to be within the area of constitutionally protected freedom of speech or press either under the First Amendment, as to the Federal Government, or under the Due Process Clause of the Fourteenth Amendment, as to the States. The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, was whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. In the case of Atkins v DPP and Goodland v DPP 60 it was held that the making of an indecent photograph included copying, downloading or storing it on a computer, provided that it was done knowingly. In the present case the comic strip “Pramila adershan’s Meaty Meanderings” can be considered as highly obscene as there was substantiation to show that the content contained lascivious material which would morally deprave the young as their mothers were highly against the strip. the website owners cannot plead the exception to this section because it was not created in interest of science, art, literature, learning or other objects of general concern and nor was it used for any religious purposes. Section 293 of the Indian Penal Code punishes any person who sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as 59 60

354 U.S. 476(1957) (2000) 1 WLR 1427(QBD)


29 referred in Section 292 of the IPC with imprisonment which may extend to three years or with fine which may extend to two thousand rupees and in the event of subsequent conviction with imprisonment of which may extend to seven years or with fine which may extend to five thousand rupees. In the case of Uttam Singh v. State 61 the accused was found selling a packet of playing cards portraying on the reverse luridly obscene pictures. When his shop was raided, similar packets were found. He was sentenced to six months rigorous imprisonment and affine of Rs.500. In the case of Dunlop v. U.S 62 the court upheld the conviction for mailing and delivery of a newspaper called the 'Chicago Dispatch,' which contained obscene, lewd, lascivious, and indecent matter. B.4. THERE IS VIOLATION OF INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT

The Indecent Representation of Women (Prohibition) Act, 1986 prohibits indecent representation of women through advertisements or publications, writings, paintings, figures or in any other manner and for matters connected therewith or incidental thereto. According to Section 2(c) of the act “indecent representation” means depiction, in any manner, of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent or derogatory to or denigrating women, or is likely to deprave, corrupt pr injure the public morality or morals Any act like publishing or arranging to publish or taking part in publishing or exhibition or of any advertisement which contains indecent representation of women in any form is punishable. If any person produces or causes to be produced, sells, lets to hire, distributes, circulates or sends by post any book, pamphlet, paper, slide, film, writing, drawing, painting, 61 62

AIR 1974 SC 1230; 74 Cri LJ 923 165 U.S. 486(1897)


30 photograph, representation or figure which contains indecent representation of women in any form, the person is liable to be punished on conviction with imprisonment of either description for a term which may extend to 2 years and with or without fine up to two thousand rupees. In the event of a second or subsequent conviction the imprisonment may extend up to 5 years and fine of not less than ten thousand rupees, which may extend up to one lakh rupees. According to Section 7 not only an individual but a corporate body can also commit the offence of indecent representation of women. It says that every person who at the time offence was committed, was in charge of, and was responsible to, the company, shall be deemed to be guilty of the offences and liable to be proceeded against and punished accordingly. But if such a person can prove that that the offence was committed without his knowledge or that he had exercised his due diligence to prevent it, he shall not be liable. On the other hand if it is proved that the offence has been committed by the company with consent or connivance of or neglect on the part of any director, manager, secretary or other officer of the company such person shall be proceeded against and punished accordingly. What is not decent or appears not to be decent is indecent. Indecency relates to public morals. It is also correlated with the state of mind. Decency describes the state or quality of being decent in conformity with recognized standards. The Indecent Representation of Women (Prohibition) Act, 1986 prohibits indecent representation of women through advertisements or publications, writings, paintings,

figures or in any other manner and for matters connected therewith or incidental thereto. Section 2(c) of the act defines indecent representation as depiction of a figure of a woman or any part of her body which is indecent or derogatory to or denigrating women or which is also bound to deprave, corrupt or injure the public morality.


31 Any act like publishing or arranging to publish or taking part in publishing or exhibition or of any advertisement which contains indecent representation of women in any form is punishable. If any person produces or causes to be produced, sells, lets to hire, distributes, circulates or sends by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form, the person is liable to be punished on conviction with imprisonment of either description for a term which may extend to 2 years and with or without fine up to two thousand rupees. In the event of a second or subsequent conviction the imprisonment may extend up to 5 years and fine of not less than ten thousand rupees, which may extend up to one lakh rupees. According to Section 7 not only an individual but a corporate body can also commit the offence of indecent representation of women. It says that every person who at the time offence was committed, was in charge of, and was responsible to, the company, shall be deemed to be guilty of the offences and liable to be proceeded against and punished accordingly.63 But if such a person can prove that that the offence was committed without his knowledge or that he had exercised his due diligence to prevent it, he shall not be liable. On the other hand if it is proved that the offence has been committed by the company with consent or connivance of or neglect on the part of any director, manager, secretary or other officer of the company such person shall be proceeded against and punished accordingly. 64 The unique position of the Indian women in our Society and the cultural heritage of India have been widely known. It is undisputed that the dignity of women has to be preserved and protected. In the Indian polity, all efforts have been made for emancipation of women and to guarantee to them of their dignity and personality.

63 64

Section 7(1), Indecent Representation of Women(Prohibition) Act,1986 Section 7(2)


32 The Constitution of India contain provisions which not only act as protector but also improve women's condition in all spheres of life Article 19(1)(a) guarantees all citizens the freedom of speech and expression. Though the Article does not explicitly deals with the freedom of the Press and Media, however the judicial decisions state that the freedom of speech and expression include the freedom of the press and circulation also. Further, these rights are not absolute and are subjected to reasonable restrictions as enshrined under clause (2). Decency and morality are among the restrictions mentioned under Article 19(2), which have been included for restricting speeches and publications which tend to undermine public morals In Ranjit D. Udeshi v. State of Mahrashtra 65 , the issue of obscenity and the conflict with freedom of speech and expression has been discussed atand the court held that obscenity is offensive to modesty or decency, and decency and morality are reasonable grounds for restricting the right to freedom of speech and expression of the people as per Article 19(2) of the Constitution of India. Accordingly the dignity of woman is constitutionally protected and any media projections which are derogatory to women should be prevented and prohibited. If the media, electronic or print, exceed their jurisdiction, the courts come forward to ensure that violation of the Fundamental rights by the media does not go unchecked. Moreover, Article 21 guarantees protection of life and personal liberty. Right to life as enshrined in this article something more then survival or animal existence 66. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure. It includes the right to live with human dignity. It is a basic right of a female to be treated with decency and proper dignity. 67 Acts such as rape, sexual harassment or molestation or many such which encourage or promote these activities,

65

AIR 1965 SC 881 State of Maharashtra v. Chanderbhan, A.I.R. 1983 S.C. 803. 67 State of Punjab v. Baldev Singh, A.I.R. 1999 S.C. 2378. 66


33 are violative of Article 21.68 In Maneka Gandhi v. Union of India 69 , it was held that right to life is not merely confined to physical existence but also includes within its ambit the right to live with human dignity. In Francis Coralie Mullin v. Union of Territory of Delhi 70 it was held that right to life means something more than just physical survival and is not confined to protection of any faculty or limb through which life is enjoyed or the soul communicates with the outside world, but includes ‘the right to live with human dignity’. Women are human beings and hence every right pertaining to human beings are applicable to women. Thus Women have right to lead a dignified life. In Chandra Raja Kumari v. Police Commissioner,

Hyderabad the Hon'ble High Court of Andhra Pradesh held that any act which tends to offend the dignity of a woman or deal with her indecently in the circumstances amounting to indecent representation in any form, is bound to offend Article 21 of the Constitution of India as right to live includes right to live with dignity and decency. The Universal Declaration of Human Rights, International Covenant on Civil and Political Rights has recognized that human beings have dignity inseparable from them. Thus, the right to dignity is an inseparable part of right to life guaranteed under the Indian Constitution under Art.21 In the instant the directors of Pushkar Ventures created a comic strip which described the life of a bold and immoral housewife which was explicit both textually and graphically. The protagonist of the comic Pramila Adershan became such a cult figure that her image was used even for advertising certain domestic products. The fact that the strip depraves, corrupts or injures public morality is evident from the letters sent by mothers to iStore and Ebay and the pleas received by Cultures Vultures from some mothers of teenagers. The portrayal of Pramila Adershan as a promiscuous woman has the effect of demeaning, debasing and degrading women. It also tends to corrupt and deprave the reader. It deprives them of the respect and dignity that they are entitled to and shows them in a low light. 68

Boddhistattawa Gautam v. Shubra Chakraborty, A.I.R. 1996 S.C. 992. AIR 1978 SC 597 : (1978) 1 SCC 248 70 AIR 1981 SC 746(para 3) 69


It

34 would cause great shame and mental agony to all women. Hence there is an indecent representation of women by way of texts and images in the comic strip. It can be said that stories about a promiscuous woman would have a morally corruptive effect on the minds of young people. It would definitely obscure basic moral values and expose young people to bizarre ideas which may lead to deviant behaviour which among them. It was contended that the constitutional protection for speech and expression is not absolute and that it is subject to reasonable restrictions based on considerations

of

'public order',

'defamation', 'decency and morality' among other grounds. The Section 9(2) (c) of The Trade Marks Act, 1999 stipulates that registration of substance that contains or comprises of scandalous or obscene matter is prohibited. The character which portrays the picture of the promiscuous life of a lady with sexually and graphically explicit comic strip is against the morality, culture, ethical principles, just and hon’ble traditions of conservative Indian society. It is evident to the fact that the matter contains obscene and scandalous material which can cause chaos and confusion to the society and also cause the depravation of morality and decency.

(C) THE

WHETHER THE

SEARCH AND SEIZURE POWERS GRANTED UNDER

INFORMATION TECHNOLOGY ACT , 2000

SECTIONS 29

AND

80

OF

ARE CONSTITUTIONAL ?

The Superintendent of Police exercising his powers according to Section 80 of the Information Technology (Amendment) Act, 2008. Section 80 gives power to any police officer, not below the rank of a inspector, or any other officer of the Central Government or a State Government authorized by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit any Memorial for Respondent

35 offence under this Act. Police officers is acting accordingly to the Act, with due diligence. Being a cognizable offence the police officer can arrest without a warrant. In State of

Haryana v. Ch. Bhajan Lal 71Court stated that when any information disclosing a cognizable offence is laid before the office-in-charge of a police station, he has no option but to register the case on the basis thereof. Information Technology (Amendment) Act, 2008 is Constitutional. The Act is in tune with the UNCITRAL Model Law. Roger Revelle once quoted “Ever since men began to modify their lives by using technology they have found themselves in a series of technological traps.”72The Act is trying to control those traps. In U.S. v. Hall 73, the court stated that a limited warrant less detention of evidence, even by the government, was not unreasonable if based on reasonable suspicion. Superintendent of Police is acting according to the Central Government order. He is enabling himself to meet the terms of Section 80 which also says about the authorization of Central Government. Police officer acting in his official powers can act according to his good will, where there is a reasonable doubt about any objectionable object. Police officer can act in accordance with the Sections. In Shyamalal’s case74it is opined that to a Search by the police officer under Section 165, Art. 20(3) have no application. In Astt. Collector of Central Excise v. Wilfred

Sabastian 75stated that the illegality of a search will not affect the validity of the articles or in any way vitiate the recovery of the articles and the subsequent trial. In U.S. v. Simons76 the Court discusses the reasonable cause for suspect a person. In some instances, the foreign-

71

AIR 1992 SC 604 Vakul Sharma, “ Information Technology Law and Practice-Law & Emerging Technology, Cyber Law & ECommerce Universal Law Publishing Co. Pvt. Ltd., New Delhi, (2 nd Edn., 2010), p.26 73 142 F.3d 988 (7th Cir. 1998) ; 74 AIR 1965 SC 1251: (1965) 2 CrLJ 256 75 1983 CrLJ NOC 43(Ker) 76 206 F.3d 392 (4th Cir. 2000) 72


36 intelligence exception to the warrant requirement has been extended to a search of computer files during the search of an American citizen's home in a foreign country. 77 Where the inspirational material itself is pornographic in nature, then the outcome of such a material will be unlawful, illegal and immoral in nature which is against public morality and decency. Indian Culture has its high traditional approach to follow. Considering a pornographic material as inspiration itself is unethical. It includes the public place-mere access to the public case is enough for stating it constitutional. Any person can access the offices of Pushkar Ventures. They are not mentioning any criteria for public access. Mere access to the public is sufficient to consider it as public place. Explanation to Section 80 defines public place, which includes any public conveyance, any hotel, any shop pr any other place intended for use by, or accessible to the public. Section 29 says that the police offices can access any computers and data where he has a reasonable cause to suspect the parties. Police in this case is reacting towards the Central Government order and they have reasonable reason to suspect the parties. The allegations were come up against the parties from various strata of the society. Petitions were filed from different states of the Union of India. Thus the police have the power to search in these grounds. Right to privacy is not an absolute right it has its limitations. Police officer is doing his duty and there is no violation of Fundamental Rights as well as other rights. D. WHETHER THERE

HAS BEEN ANY INFRINGEMENT OF RIGHT TO PRIVACY BY THE SEARCH OF

PRIVATE MAILS AND DOCUMENTS NOT MEANT FOR PUBLIC CIRCULATION ?

In India a private action for damages for unlawful invasion of privacy is maintainable. The printer and publisher of a magazine or journal would be liable if they publish any matter 77

U.S. v. Bin Laden , 126 F. Supp. 2d 264 (S.D. N.Y. 2000) .


37 related to his private life which includes his family, marriage, procreation, parenthood etc without his consent. But the exceptions to this are firstly that the right of privacy does not continue to exist when the publication is a matter of public record and secondly that when the publication relates to the discharge of official duties of a public servant, an action cannot be maintained unless the publication is proved to be false, malicious or untruthful. Also under Constitutional law, the right to privacy is implicit in the fundamental right to life and liberty guaranteed under Article 21 of the Constitution. But the right to privacy flowing from Article 21 must be balanced by the fundamental right of the media to publish any matter of public interest. In the case of Sharda v. Dharmpal 78 it was held by the Supreme Court that the right to privacy in terms of Article 21 of the Constitution is not an absolute right. If there were a conflict between fundamental rights of two parties, that right which advances public morality would prevail In District Registrar and Collector v. Canara Bank 79 , it was held, that “exclusion of illegitimate intrusions into privacy depends on the nature of the right being asserted and the way in which it is brought into play; it is at this point that the context becomes crucial, to inform substantive judgment. If these factors are relevant for defining the right to privacy, they are quite relevant whenever there is invasion of that right by way of searches and seizures at the instance of the State.” WHETHER THERE HAS BEEN ANY VIOLATION OF ARTICLE 20(3)?

There is no violation of Article 20(3) of the Constitution. It says that “No person accused of any offence shall be compelled to be a witness against himself.” None of the petitioners are 78

79

(2003) 4 SCC 493 (2005) 1 SCC 496: AIR 2005 SC 186


38 acting as witness against themselves in this issue. Article 20(3) has no applicability in this case. It is on this principle that the Court held that the immunity is available to an accused person when a compulsory process or notice is issued, directing him, under pain of penalty, to produce a document, but not when a document is recovered from him by search and seizure by a police officer without involving any volitional act on the part of the accused from whose possession the document is recovered. Search and seizure are acts of another to which an accused is obliged to submit and are not testimonial acts. The use of records against an accused after their seizure for an offence under any enactment is not considered to be violative of Article 20(3). Documents or articles or any other incriminating In Nandini Satpathy v. P.L.Dani80 , the three Judge Bench has however held that the protection of Article 20(3) goes back to the stage of investigation and that, accordingly, he is entitled to refuse to answer incriminating questions. It is applicable in case of excess power of the police officers harassing the people. In State of Bombay v. Kathi Kalu Oghad 81 the protection does not extend to any kind of evidence but only to self incriminating statements made by the accused. Therefore the Article 20(3) does not protect the petitioner. Self incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in Court which may throw a light on any of the points in the controversy. The protection under this Article extends to production of all private documents including books of account.82 But there exists a distinction between an order of the court directing the

80

AIR 1978 SC 1025 AIR 1961 SC 1808 82 Ranchhod Das Khimji Ashre v Temton Jahangir , 1961(2) Cr.L.J 338: (1961) 2 Guj. L.R.415: (1961) 2 Guj. H.C.R. 197: A.I.R. 1961 Guj. 137 81


39 accused himself to produce a document and an order directing the police to search and seize any document. It is the former and not the latter that that is protected.

(F).

WHETHER A CASE HAS BEEN MADE OUT IN CASE OF CONSTITUTIONALITY OF SECTION

THE INFORMATION TECHNOLOGY

(AMENDMENT )

ACT ,

69 A

OF

2008?

The government of India has given up the power to block pornographic websites purely on the ground of obscenity or sexually explicit Act considering the cultural heritage, dignity of women and also for the controlling of public order with due diligence. Central Government has the authority to block public access to websites, without further clarifying the necessary perquisite circumstances for any such action. A decision by the Bombay High Court recently turning down a Public Interest Litigation (PIL) request for a complete ban on all websites with sexual content could provide some indication at least as to how that court would interpret government attempts to ban websites for being obscene. 83 Section 69Acontain the provision that the section can be invoked for preventing incitement to the commission of any cognizable offence. Sexually explicit content comes under the cognizable offences. Contravention of ‘any law’ is violation of public order. 84 Wide spread increase in porn website85 will increase in crimes under Section 375 of the Indian Penal Code as mentioned by 83

Mayura Janwalker, “Bombay high court says no to blanket ban on porn websites,” DNA, 10 March 2010, Available at : http://www.dnaindia.com/mumbai/report_bombay-high-court-says-no-to-blanket-ban-on pornwebsites_1357395. 84 Times of India…. Is it set to mislead the Public on Savita Bhabhi Issue? , Available at: http://www.naavi.org/cl_editorial_10/edit_feb_11_2010_savita.htm

85

Ani, Boys who watch porn indulge in casual sex, Available at: http://timesofindia.indiatimes.com/life/relationships/parenting/Boys-who-watch-porn-indulge-in-casual-


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

India 86 petition is filed to the blanket ban on websites which according to petitioners are displaying material pertaining to sex

CONCLUSION AND PRAYER

Wherefore, in the light of the facts stated, points raised, arguments advanced and the authorities cited, this Hon’ble Court may be pleased to

Declare that: i. The petition is not maintable under article 32 of the constitution

ii. The petitioner does not have the locus standi iii. Sections 67A, 69A and 69B of the Information Technology (Amendment) Act 2008 and allied provisions in the Indecent Representation of Women (Prohibition) Act, 1986 and the Indian Penal Code, 1860 are constitutional iv. Sections 29 and 80 are constitutional v. There is no infringement of right to privacy vi. Article 20(3) has no applicability in this case vii. Central Government can block the websites in cases of violation of public order under Section 67A

And pass any other order or grant any relief, which the court may deem fit in the ends of equity, justice and good conscience. sex/articleshow/5494354.cms

86

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


41

PLACE:

All of which is respectfully submitted

DATE:

Counsel for the Respondent

APPENDIX IMPORTANT ARTICLES OF CONSTITUTION OF INDIA OTHER RELEVANT STATUTORY PROVISIONS

AND

Constitution of India Article 21.

Protection of life and personal liberty . - No person shall be deprived of his

life or personal liberty except according to procedure established by law. Article 32.

(1)

Remedies for enforcement of rights conferred by this Part. -

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

(2)

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

(3)

Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).


Respondent Final2

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