UPC: T2-R

3RD HPNLU NATIONAL MOOT COURT COMPETITION

2022

Before

THE HON’BLE SUPREME COURT OF INDICA

CIVIL APPELATE JURISDICTION

CIVIL APPEAL NO. ............ OF 2022

MARWADAN
(PETITIONER)

V.

UNION OF INDICA AND ORS.

(RESPONDENTS)

UNDER ARTICLE 132 READ WITH ARTICLE 134A OF THE CONSTITUTION OF INDICA

MEMORIAL on behalf of the RESPONDENTS

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TABLE OF CONTENTS

List of Abbreviations 3
Index of Authorities 4-5
Statement of Jurisdiction 6
Statement of Facts 7-8
Issues Raised 9
1) Whether the Xatali Community Members (Management and Regulation of Conduct) Act, 2022 is
ultra vires the Constitution of Indica?
Summary of Arguments 10
Pleadings/ Arguments Advanced 11-15
Prayer 16

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LIST OF ABBREVIATIONS

& And
A.P. Andhra Pradesh
AIR All India Report
Anr. Another
Bom CR Bombay Criminal Reporter
IPC Indica Penal Code
Cr.P.C. Code of Criminal Procedure
Cri LJ / Cr. LJ Criminal Law Journal
Del Delhi
Hon’ble Honorable
IPC Indica Penal Code
M.P. Madhya Pradesh
No. Number
Ori. Odisha
Ors. Others
r/w Read with
Retd. Retired
S./Sec. Section
SC Supreme Court
SCC Supreme Court Cases
St. State
U.P. Uttar Pradesh
u/s Under Section
v. Versus

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INDEX OF AUTHORITIES

CASES REFERRED

• Aveek Sarkar v State of West Bengal Criminal Appeal No. 902 OF 2004

• Chandrakant Kalyandas Kakodar v The State Of MaharashtraAIR 1970 SC 1390

• In Re v State of Uttarakhand Writ Petition (PIL) No. 158 of 2018

• Kishori Mohan v. State of West Bengal

• Pannalal Bansilal and Ors. V. State of A.P, 1996.

• Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881

• Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881

• Regina v Hicklin 1868 L.R. 2 Q.B.

• Romesh Thapar v. The State of Madras (AIR 1950 SC 124

• S. Khushboo v Kanniammal CRIMINAL APPEAL NO. 913 of 2010

• Samaresh Boss and others v Anam Mitra and others AIR 1986 967

STATUES REFERRED

• The Code of Civil Procedure, 1908

• The Constitution of Indica, 1950
• The Indica Evidence Act, 1872
• The Indica Penal Code, 1860
• The Criminal Procedure (Identification) Act 2022
• The Convention on the Elimination of all forms of Discrimination Against Women, Art.5
• The Indecent Representation of Women (Prohibition) Act of 1986
• The Cable Television Networks Rules of 1994

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ONLINE RESOURCES

• Hein Online, https://home.heinonline.org/

• Lexis Advance, https://advance.lexis.com/

• Manupatra, https://www.manupatrafast.com/

• SCC Online, https://www.scconline.com/

• Westlaw India, https://www.westlawindia.com/

MEMORIAL ON BEHALF OF THE RESPONDENTS

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STATEMENT OF JURISDICTION

The Hon’ble Court has the jurisdiction to try the instant matter under Article 1321 r/w Article 134A2 of the
Constitution of Indica.

Article 132:

132. Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases
(1 ) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the
territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under Article 134A
that the case involves a substantial question of law as t the interpretation of this Constitution
(2) Omitted
(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that
any such question as aforesaid has been wrongly decided Explanation For the purposes of this article, the
expression final order includes an order declaring an issue which, if decided in favour of the appellant, would
be sufficient for the final disposal of the case

r/w Article 134A

134A. Certificate for appeal to the Supreme Court Every High Court, passing or making a judgment,
decree, final order, or sentence, referred to in clause (1 ) of Article 132 or clause ( 1 ) of Article 133, or
clause ( 1 ) of Article 134
(a) may, if it deems fit so to do, on its own motion; and
(b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or
making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or
making, the question whether a certificate of the nature referred to in clause ( 1 ) of Article 132, or clause ( 1 )
of Article 133 or, as the case may be, sub clause (c) of clause ( 1 ) of Article 134, may be given in respect of that
case

The Counsels for the Respondents most respectfully submit to this jurisdiction of the Hon’ble Supreme
Court of Indica

1
INDICA CONST.art.132.
2
INDICA CONST.art.134A.
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STATEMENT OF FACTS

1. Marwadan is a 23-year-old student studying at a premier law institute called Jatala Global Law School
and is based in the state of Jatala in the country of Indica. He is a well-reputed poet, who belongs to the
religious community Xatalism. He has published many poetic works in Hindi and publishes his work
through both, offline and online mediums. His poetic work has always been a source of inspiration for the
masses attracting a huge fan following on his social media pages.

2. Art. 19(1)(a) of The Constitution of Indica guarantees every citizen to have Freedom of Speech and
Expression, subject to certain reasonable restrictions prescribed under Art. 19(2) of the Constitution.
Marwadan has recently published a story in poetic form from Subahvani Prakashan. In one of the verses,
he characterised the beauty of a woman of a fictional character by describing her body parts. He also went
on to describe in one of the verses about the sexual act in which the woman in character participated with
her paramour.

3. One NGO named Abhilashini, working for the empowerment of women in the state of Jatala, found the
poem objectionable on several grounds. The head of the NGO, Ms. Chitrakala, when approached for a
statement said that “We should collectively remove such mental waste from our society; this is against
Indica’s sanskar”. Pursuant to this, the NGO filed a writ petition before the High Court of Jatala, a State
in the Republic of Indica, to pass a writ restricting the publication of that poem. The NGO argued before
the High Court that the story depicted in the poetic expression is an unreasonable exercise of freedom of
speech and expression. Such a form of expression is lascivious and creates prurient interest in the mind
of the reader. This poem may deprave and corrupt the mind of possible readers; she also stated that if such
material is allowed to fall into the hands of the young and vulnerable generation it will result in a moral
hazard. Further, it was argued by the NGO that the poem is obscene; hence, it is an offence punishable
under Section 292 of the Indica Penal Code, 1860 (IPC).

4. In the meanwhile, this issue garnered attention from both national and international media. This resulted
in widespread criticism of the government and heated debates on several online platforms. Sensing the
alarming situation, the Union government issued directions to block public access to the poem by taking
it down from all social media platforms.

5. Parallelly, multiple protests broke out in various parts of the state of Jatala, where people were agitating
for the arrest of Marwadan. In one such protest, things escalated in a precarious manner and the protest
took the form of a riot. Therein, police were dispatched to the agitation area, where a group of people used
Molotov cocktails against them, which resulted in several grievous injuries to both the police and people
who showed up for the protest.
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6. Sensing the gravity of the situation, the Union government of Indica passed an order to restrict the internet
in the state of Jatala, citing the law and order situation in the state. Further, the investigating agencies also
identified Mr. Michael Joseph as the one to have thrown the Molotov cocktail and charged him under the
Unlawful Activities (Prevention) Amendment Act, 2019 famously known as UAPA.

7. Against the internet ban, Marwadan contended that it is violative of his freedom of speech and expression.

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

9. Thereafter, members of the Xatali Community approached the High Court of Jatala, claiming that
Marwadan should be prosecuted and punished as per the Act of 2022. The three petitions were clubbed
by the High Court of Jatala and heard together where Marwadan claimed the following - the right to
expression was enshrined in the Constitution as fundamental and cannot be abridged by any law of the
land, the provisions of Section 2 of the Xatali Community Members (Management and Regulation of
Conduct) Act, 2022 was unconstitutional, the freedom of speech and expression was at a higher pedestal
in the hierarchy of rights as enunciated and expressed in the Constitution of Indica ,the right to freedom
of religion could not go beyond the general moral prescriptions emerging from human rights as enunciated
and conferred internationally by virtue of the Universal Declaration of Human Rights, provision of the
Act of 2022 was also violative of the jus cogens with respect to protection of human rights and thus ultra
vires and that the right to access the internet was a fundamental right under the Constitution of Indica.

10. The High Court declined to provide any relief to the NGO or the members of the Xatala Community on
the ground that the author has not exceeded the legitimate domain of expression allowed by the
Constitution. However, the High Court did not interfere in the religious or the right to access to the
internet, or the UAPA aspect of the petition, stating that the issues raised important questions of
constitutional law that needed to be settled and that the interference of the highest court was needed.

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ISSUES RAISED

1) WHETHER THE XATALI COMMUNITY MEMBERS (MANAGEMENT AND REGULATION

OF CONDUCT) ACT, 2022 IS ULTRA VIRES THE CONSTITUTION OF INDICA?

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SUMMARY OF ARGUMENTS

1. WHETHER THE XATALI COMMUNITY MEMBERS (MANAGEMENT AND REGULATION

OF CONDUCT) ACT, 2022 IS ULTRA VIRES THE CONSTITUTION OF INDICA?

The Xatali Community Members (Management And Regulation Of Conduct) Act, 2022, is not ultra vires to
the Constitution of Indica. The act is not violative of Freedom of Speech and Expression rather the
consonance with the constitutional provisions such as Article 15 (3)3, gives the state the power to make any
special provision in favour of women and children and 51(A)4 which highlights the imperative duty of every
citizen to renounce practices derogatory to the dignity of women and the ideals and morals which our
forefathers stood for , i.e., Respecting woman and womanhood.

3
INDICA CONST.art.15(3).
4
INDICA CONST.art.51(A).
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PLEADINGS/ARGUMENTS ADVANCED

ISSUE 1 - WHETHER THE XATALI COMMUNITY MEMBERS (MANAGEMENT AND

REGULATION OF CONDUCT) ACT, 2022 IS ULTRA VIRES THE CONSTITUTION OF INDICA?

IS FREEDOM OF SPEECH AND EXPRESSION ABSOLUTE?

1.1. It is humbly submitted before this hon’ble court that there is ample freedom of speech, thought and
expression in all forms (verbal, written, broadcast, etc.) in a healthy democracy. Moreover, it is a basic
element of a functional democracy to allow all citizens to participate in the political and social processes
of the country. But Freedom of speech is not absolute. Article 19(2)5 imposes restrictions on the right to
freedom of speech and expression. The Constitution provides people with the freedom of expression
without fear of reprisal, but it must be used with caution, and responsibly.

1.2. It is brought to the esteemed attention of this Hon’ble Court that in the case of Romesh Thapar v. The
State of Madras6 which Supreme court of India held that, public order is very much different from law
and order and security of the state. The term ‘public order’ indicates the sense of public peace, public
safety and tranquillity. Anything that disturbs public peace, in turn, disturbs the public. But mere criticism
of the government does not disturb public order. A law which hurts the religious feelings of any class has
been held to be valid and reasonable restriction aimed at maintaining the public order.

B-THE QUESTION OF DECENCY AND MORALITY

1.3. It is humbly submitted before this hon’ble Court that in the case of Samaresh Boss and others v Anam
Mitra and others7 the court said that "in judging the question of obscenity, the judge should try to place
himself in the position of the author and thereafter apply his judicial mind dispassionately to decide
whether the book in question be said to be obscene"8

1.4. Obscenity and Morality can be inferred as per the Sections 2929 to 29410 of the Indian Penal Code 1860
provides for the instances of restrictions on the freedom of speech and expression on the grounds of
decency and morality, it then prohibits the sale or distribution or exhibition of obscene words.

5
INDICA CONST.art.19(2).
6
AIR 1950 SC 124
7
AIR 1986 967
8
Id
9
The Indica Penal Code, 1860 (Act 45 of 1860), s.292
10
The Indica Penal Code, 1860 (Act 45 of 1860), s.294
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1.5. It is brought to the esteemed attention of this Hon’ble Court that the Supreme Court in Ranjit D. Udeshi
v. State of Maharashtra11 upheld the conviction of a book seller who was prosecuted under Section 292,
I.P.C., for selling and keeping the book Lady Chatterley’s Lover. The Hon’ble Supreme Court had to
differentiate between what was obscene and what was artistic. The Court proceeded to examine the test
of obscenity that should be employed to determine what falls within constitutional limits, as mere sex
and nudity do not amount to obscenity. The Court used the Hicklin test, which examines whether the
impugned matter tends to “deprave and corrupt those whose minds are open to such immoral influences,
and into whose hands a publication of this sort may fall.”12 This test was found not to violate article 19
of the Indian Constitution. Under Hicklin, a work should be viewed as a whole, but the obscene matter
should also be separately considered to see if it violates the test. Where art and obscenity coexist, “art
must so preponderate as to throw the obscenity into a shadow or the obscenity so trivial and insignificant
that it can have no effect and may be overlooked.”13, Hidayatullah, J. adopted a modified version of
Hicklin test. Writing the judgment for the Court, Hidayatullah, J. ruled three major modifications in the
Hicklin test. The three major departures from the English Hicklin test were: Presence of sex and nudity
in art and literature cannot be considered as the evidence of obscenity. Something more was required.
Sex by itself was not enough to deprave and corrupt, the work needs to be judged as a whole, and at the
same time obscene words or passages had to be weighed against the non-obscene portions of the work,
and it needs to be looked that whether non-obscene portion of the work were so preponderating as to
throw the obscenity into shadow, or the obscenity is so trivial and insignificant that it can have no effect
and may be overlooked and third departure from the test was in the form of defence to the offence of
obscenity, if the publication in question was for the public good.

1.6. It is brought to the esteemed attention of this Hon’ble Court that this ground was added by the
Constitution (First Amendment) Act, 1951 in order to meet the situation arising from the Supreme Court's
decision in Romesh Thapar's, case14. As per hon'ble Supreme court, public order is different from law
and order and security of state15. The expression 'public order' connotes the sense of public peace, safety
and tranquillity. the expression "in the interest of...public order" are words of great amplitude and are
much more comprehensive than the expression "for the maintenance of", as observed by this Court in the
case of Virendra v. The State of Punjab16

1.7. It is brought to the esteemed attention of this Hon’ble Court that the Victorian-era test of the Regina v
Hicklin17 that permitted conviction even if a publication had a mere proneness to titillating thoughts. This

11
AIR 1965 SC 881
12
Id
13
Id
14
AIR 1950 SC 124
15
Kishori Mohan v. State of West Bengal
16
1957 AIR 896
17
1868 L.R. 2 Q.B.
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test was famously called the Hicklin Test. Five years later, the apex court in the case of Chandrakant
Kalyandas Kakodar v The State Of Maharashtra18 held: “The concept of obscenity would differ from
country to country depending on the standards of morals of contemporary society.What is considered as
a piece of literature in France may be obscene in England and what is considered in both countries as not
harmful to public order and morals may be obscene in our country.” Article 19 Clause (2) of the
Constitution of India19, imposes reasonable restrictions in the interest of decency or morality.

1.8. It is humbly submitted before this Hon’ble Court that the Indecent Representation of Women
(Prohibition) Act of 198620 protects women from individuals, groups or companies who commit such
acts of vulgarity. Section 2, clause (c)21 of the Act defines the indecent representation of women as a
depiction of a figure or any body part being derogatory or denigrating or likely to deprave or injure public
morality. Section 322 and 423 prohibit publishing or exhibiting a vulgar display of women in any form.
Section 6 provides for the punishment and penalty in contravention of these sections. Any offence under
this act is cognizable which means that the police can arrest the accused without a warrant. The
Information Technology Act of 200024 was enacted to provide legal recognition and prohibition to
electronic data that massively replaced the age-old pen paper and print media. It also protects the virtual
presence of women. Section 6725 of the Act provides for punishment for publishing or transmitting
obscene material in electronic form. The punishment for the first conviction is imprisonment that may
extend to 5 years with a fine which may extend to Rs 10 lakh. The punishment for the second or
subsequent conviction is imprisonment which may extend to seven years with a fine which may extend
to Rs 10 lakh.

1.9. It is brought to the esteemed attention of this Hon’ble Court that the Cable Television Networks Rules
of 1994 are read with The Cable Television Networks (Regulation) Act, 199426. The Advertising Code
under Rule 7, clause 2, subclause (vi) reads as follows: “…in its depiction of women violates the
constitutional guarantees to all citizens. No advertisement shall be permitted which projects a derogatory
image of women.”27 And the Convention on the Elimination of all forms of Discrimination Against
Women (CEDAW) is the most comprehensive international treaty of Women’s Rights. It not only
protects women against the state but also requires states to take affirmative actions. India signed the

18
AIR 1970 SC 1390
19
INDICA CONST.art.19(2).
20
The Indecent Representation of Women (Prohibition) Act of 1986
21
The Indecent Representation of Women (Prohibition) Act of 1986, §2(c).
22
The Indecent Representation of Women (Prohibition) Act of 1986, §3
23
The Indecent Representation of Women (Prohibition) Act of 1986, §4
24
Information Technology Act of 2000
25
Information Technology Act of 2000,§67
26
The Cable Television Networks Rules of 1994, §4
27
Id.
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CEDAW Convention on 30 July 1980 and ratified it on 9 July 1993. Article 528 of the Convention requires
states parties to “take measures to seek to eliminate prejudices and customs based on the idea of the
inferiority or the superiority of one sex or the stereotyped roles for men and women.”29 It also mandates
the state parties “to ensure…the recognition of the common responsibility of men and women in the
upbringing and development of their children.”30

1.10. It is humbly submitted before this Hon’ble Court that in the case of Ajay Goswami v. Union of India31,
while examining the scope of Section 292 IPC and Sections 3, 4 and 6 of the Indecent Representation of
Women (Prohibition) Act, 1986, the Apex Court held that the commitment to freedom of expression
demands that it cannot be suppressed, unless the situations created by it allowing the freedom are
pressing and the community interest is endangered. The Hon’ble Supreme Court in S. Khushboo v
Kanniammal32, reiterated the principle of contemporary community standards, the general attitude of a
reader and social values. The Supreme Court of India, in 2014, while deciding the case of Aveek Sarkar
v State of West Bengal33, expressly discarded the Hicklin Test. The apex court found that no offence
had been committed under Section 292 IPC and then the question of whether it falls in the first part of
Section 79 IPC has become academic. The court also appreciated the nude photographs along with the
message that it wanted to convey, which was to eradicate the evil of racism and apartheid obviously by
alarming the reader of the Ananda Bazar Patrika.

1.11. It is brought to the esteemed attention of this Hon’ble Court that in Samaresh Bose v. Amal Mitra34 the
Court was asked to decide that whether the Bengali novel Prajapati is obscene or not, as the novel
depicted sexual encounters and used vulgar language. The trial court held the matter as being obscene.
However, the Supreme Court disagreeing with the trial court finding observed that: “…the concept of
obscenity is moulded to a great extent by the people who are expected to read the book. It differs from
country to country, depending upon the standards of morality. Even the outlook of a Judge may differ
from another Judge as it is a matter of objective assessment of the subjective attitude of the Judge hearing
the matter.”35 The Court further ruled that vulgarity and obscenity need not be confused with each other.

1.12. It is humbly submitted before this Hon’ble Court that the High Court of Uttarakhand in the case of In
Re v State of Uttarakhand36 directed the MeITY to strictly comply with the order of banning 857
websites that infringed morality and decency in order to protect the children of impressionable age.

28
The Convention on the Elimination of all forms of Discrimination Against Women, Art.5
29
Id.
30
Id.
31
2007 1 SCC 143
32
CRIMINAL APPEAL NO. 913 of 2010
33
Criminal Appeal No. 902 OF 2004
34
1986 AIR 967
35
Id.
36
Writ Petition (PIL) No. 158 of 2018
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C-DEFAMATION

1.13. It is brought to the esteemed attention of this Hon’ble Court that the clause (2) of Article 1937 of the
Constitution of India prevents any individual from making any statement that injures the reputation of
another in the eyes of society. Defamation is a serious crime in India and is defined under Section 49938
and 50039 of the Indian Penal Code. Right to free speech is not necessarily absolute. It does not mean
freedom to hurt any other person’s reputation (which is protected under Article 2140 of the constitution).
Although ‘truth’ is considered a defence against defamation, but the defence would only help if the
statement was made ‘for the good of the public’ and that is a question of fact to be assessed by the
independent judiciary. This is another ground which was also added by the Constitution (First
Amendment) Act of 1951. The Constitution also prohibits an individual from making any statement
which incites or encourages other people to commit an offence.

D- BANSILAL’S IMPACT ON PERSONAL LAWS

1.14. It is humbly submitted before this Hon’ble Court that in the case of Pannalal Bansilal and Ors. v. State
of A.P41, the Supreme Court again refused to test Personal Laws on the touchstone of Part III of the
Constitution. However, this time the basis of the judgement was divergent from the previous judgements
of the Court. This time the Court opined that Part III of the Constitution does not apply to Personal laws
simply because “India is a pluralistic society, and in a society like India, in which people have faith in
their respective religions, beliefs or tenets propounded by different religions or their offshoots, the
founding fathers, while making the Constitution, were confronted with problems to unify and integrate
people of India professing different religious faiths, born in different castes, sex or Sub-sections in the
society speaking different languages and dialects in different regions and provided a secular Constitution
to integrate all sections of the society as a united Bharat. The directive principles of the Constitution
themselves visualise diversity and attempted to foster uniformity among people of different faiths. A
uniform law, though it might desirable, enactment thereof in one go perhaps may be counter-productive
to unity and integrity of the nation. In a democracy governed by rule of law, gradual progressive change
and order should be brought about. Making law or amendment to a law is a slow process and the
legislature attempts to remedy where the need is felt most acute. It would, therefore, be inexpedient and
incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief
or defect which is most acute can be remedied by process of law at stages.”

37
INDICA CONST.art.19(2).
38
The Indica Penal Code, 1860 (Act 45 of 1860), s.499
39
The Indica Penal Code, 1860 (Act 45 of 1860), s.500
40
INDICA CONST.art.21.
41
1996 AIR 1023
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PRAYER

Wherefore, in light of the facts stated, issues raised, arguments advanced and authoritiescited, may this
Hon ‘ble Court be pleased to hold, adjudge and declare that:

1- To declare that the Section 2 of the Xatali Community Members (Management And Regulation Of
Conduct) Act, 2022 is not Ultra Vires The Constitution Of Indica.

AND

Pass any other order that the Hon’ble Court may deem fit, in the interest of Justice, Equity and Good
Conscience.

All of which is most humbly and respectfully submitted.

Place: Sd/-

Date: (Counsel for the Respondents)

MEMORIAL ON BEHALF OF THE RESPONDENTS