TEAM CODE: TC01

6TH INTRA MOOT COURT COMPETITION, 2021

Before

The Honorable Supreme Court of Union of Indica

ORGINAL WRIT JURISDICTION

PETITION FILED UNDER ARTICLE 32, CONSTITUTION OF UNION OF INDICA

WRIT PETITION NO. __/2021

IN THE CASE CONCERNING CENSORSHIP OF OTT PLATFORMS

AND
IN THE MATTER BETWEEN:

YULU PETITIONER NO. 1

OTT CONSORTIUM PETITIONER NO. 2

v.

UNION OF INDICA RESPONDENT

UPON SUBMISSION TO
THE HON’BLE JUDGES OF
THE SUPREME COURT OF UNION OF INDICA

MEMORANDUM OF BEHALF OF THE PETITIONER

 6TH INTRA MOOT COURT COMPETITION 2021

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ............................................................................................. 4

INDEX OF AUTHORITIES ............................................................................................... 5

STATEMENT OF JURISDICTION .................................................................................. 7

STATEMENT OF FACTS ................................................................................................. 8

ISSUES RAISED ............................................................................................................... 10

SUMMARY OF ARGUMENTS ....................................................................................... 11

ARGUEMENTS ADVANCED ......................................................................................... 13

ISSUE 1: WHETHER THE PETITIONS FILED BEFORE THE HON’BLE SUPREME COURT OF

INDICA UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICA ARE MAINTAINABLE OR NOT?

........................................................................................................................................... 13
1.1 The Petitioner has Locus Standi ......................................................................... 13
1.2 Maintainabilityofthe petition under Article 32 ................................................... 13
1.2.1 Violation of Article 19(1)(a) ....................................................................... 14
1.2.2 Violation of Article 19(1)(g) ....................................................................... 14

ISSUE 2: WHETHER THE ACT OF REGULATING CONTENT, AS GIVEN UNDER SECTION 3 OF

THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA

ETHICS CODE) RULES, 2021, IS CONSTITUTIONALLY VALID? ............................................. 16
2.1. Section 3 contravenes Article-19(1)(a) and Article- 19(1)(g) of the Indican
Constitution. ................................................................................................................ 16
2.1.1. Section 3contravenesArticle 19(1)(a) of the Indican constitution and is
beyond the scope of Article 19(2) of the Constitution. .............................................. 16
2.1.2. Section 3 contravenes Article 19(1)(g) of the Indican constitution and goes
beyond scope of Article 19(6) of the Indican Constitution. ....................................... 17
2.1.3. Test of reasonableness under Article 19(2) and Article 19(6) of the Indican
constitution .............................................................................................................. 19
2.1.4. There already exists a self-regulatory code ................................................. 20
2.2. Section 3 does not satisfy the Universal Declaration of Human Rights (UDHR)

2
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

Act, 1948..................................................................................................................... 20

ISSUE 3: CAN YULUBE HELD LIABLE UNDER SECTION 153A AND 295A OF THE INDICAN

PENAL CODE?..................................................................................................................... 21
3.1. Yulu is not liable under Section 153A of the Indican Penal Code. ...................... 21
3.2. Yulu cannot be held liable for Section 295A of the Indican Penal Code. ............ 23

PRAYER FOR RELIEF ................................................................................................... 26

3
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION
& And
§ Section
¶ Paragraph
AIR All Indian Reporter
ANR. Another
HON’BLE Honorable
WP Writ Petition
ART. Article
NO. Number
ORS. Others
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
V. versus
OTT Over-The-Top
OCCPS Online Curated Content Providers
COCCPS Code of Online Curated Content providers
MEITY Ministry of Electronics &
Information Technology
PIL Public Interest Litigation
IPC Indican Penal Code
MP Madhyapradesh
IT Information Technology
FIR First Information Report
DEL Delhi
A.P. Aandhra Pradesh

4
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

INDEX OF AUTHORITIES

CASES
S.No. Name of the case Citation Pg. No.
1. A. K. Gopalan v. State of Madras 1950 AIR 27: 1950 SCR 88 13
2. Ajay Gautam v. Union of India and others MANU/UC/0176/2016 24
3. Arup Bhuyan v. State of Assam MANU/SC/0814/2014 24
4. Ashutosh Dubey v. Netflix, Inc & Ors 2020 SCC OnLine Del 625 17
5. Balwant Singh and anr. v. State of Punjab AIR 1995 SC 1785 22
6. Bilal Ahmed Kaloo v. State of A.P. AIR 1997 SC 3483 22
7. Brandenburg v. State of Ohio 395 U.S. 444 (1969) 24
8. Chintamanrao v. State of M.P. 1951 AIR 118 18
9. D. K. Basu v. Union Of India AIR 1997 SC 610 13
10. Dr Sambit Patra v. State Of Chhattisgarh MANU/CG/0262/2021 21
11. Gurpal Singh v. State of Punjab (2017) AIR 471 13
12. K. A. Abbas v. The Union of India & Anr 1971 AIR 481 19
13. Mahendra Singh Dhoni v. Yerraguntla (2017) 7 SCC 760 24
Shyamsundar
14. Manohar Lal Sharma v. Sanjay Leela Bhansali (2018) 1 SCC 770 17
15. Manzar Sayeed Khan v. State of Maharashtra AIR 2007 SC 2074 23
and anr
16. MLA v. State of J&K and Ors AIR 1986 SC 494 13
17. Mohd. Faruk v. State of M.P. AIR 1958 SC 731 19
18. Nachiketa Walhekar v. Central Board of Film (2018) 1 SCC 778 18
Certification & Anr
19. Patricia Mukhim v. State of Meghalaya and AIR 2021 SC 1632 22
Ors.
20 Ramji Lal Modi v. State of Uttar Pradesh 1957 AIR 620 23
21 Shreya Singhal v. Union of India (2015) 5 SCC 1 16
22 State Of Madras v. V.G. Row.Union Of India & 1952 AIR 196 19
State
23 Veena Sethi v. State of Bihar AIR 1983 SC 337 13

5
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

STATUES

❖ Constitution of Indica, 1950.

❖ Indican Penal Code, 1860.

OTHER AUTHORITIES

❖ Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules
2021

❖ Universal Declaration of Human Rights

LEGAL DATABASE

❖ www.scconline.com

❖ www.manupatra.com

❖ www.indiankanon.org

6
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

STATEMENT OF JURISDICTION

The petitioners have filed a writ petition before the Hon’ble Supreme Court under Article 32
of the Constitution of Indica.
Article 32: Remedies for enforcement of rights conferred by this Part.
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have the 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 the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.1

1
INDIAN CONST.art 32.
7
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

STATEMENT OF FACTS

BACKGROUND

1. Indica adopted its Constitution on 26 January 1950. The Indican Constitution under Part-III
guarantees certain fundamental rights to its citizens. The Constitution of Indica provides for
Freedom of Religion as a fundamental right and there is no intervention of the State in
religious matters. It also explicitly grants the citizens the Right to Freedom of Speech and
Expression under Article 19 (1) (a) which is considered as the backbone of Indican
Democracy.
2. Indica has rich social composition, as many religions have originated in the country and few
religions of foreign origin have also flourished here. Around 80% of Indicans are Sindhus,
14% are Kushlims, while the remaining 6% follow other religions since time immemorial.

RISE OF OTT PLATFORMS

1. Due to the outbreak of COVID-19 in January 2020, all the cinema halls and amusement
centres in Indica were shut down to curb the spread of the virus and thus the citizens of
Indica in search of entertainment opted to watch movies, web series, stand-up comedy gigs,
etc on OTT platforms. This increased the viewership of content on OCCPs platforms to
such a level that every OCCPs platform registered a huge increase in subscription by the
people of Indica this encouraged such platforms to start domestic production of original
content in the country.
2. The publishing of certain content was objected to by sections of society, for vulgarity,
obscenity, nudity, etc. In order to address the concerns of these sections a self-regulatory
code, known as COCCPs (given in ANNEXURE-1), was adopted by the OCCPs.

RELEASE OF CHANDAK

1. On January 1, 2021Yulu(Petitioner-1) released multiple teasers for a web series on its

platform “Chandak” which was said to be released on February 1, 2021. It received severe
criticism and was targeted for promoting Sindhuphobic content through the series and
denigrating Sindhu Gods.
2. The trailer came under fire for showing a Kushlim man and a Sindhu woman kissing against
the backdrop of a temple. And also portrayed Sindhu saints in a controversial manner.
Further, the scene showing actors in the attire of Sindhu Gods drinking and smoking was

8
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

met with severe backlash. The Sikh community also protested against Yulu for hurting Sikh
sentiments by showcasing a scene where the lead actor throws away his Kada in the sea.
3. The makers issued an unconditional apology and also removed parts of the series that were
said to be objectionable however went ahead with the release of the series on February 1,
2021.

PUBLIC PROTESTS AND THE PASSING OF IT RULES, 2021

1. There were several protests held urging the Government to pass appropriate laws for
regulating the content on these platforms further to lay down a blanket ban on the release of
Chandak and any similar inflammatory content. Dissatisfied by the steps taken by Yulu,
multiple FIRs were filed under Section 153A and 295A of the IPC. The controversy also
spurred demands for censorship and criminal penalties for the OTT and OCCPs platforms in
Indica and specifically sanctions on Yulu for releasing the controversial web series.
2. After the above events, the MeitY gave its assent to the IT Rules 2021, which came into
effect from February 5, 2021.
3. Section 3 of the IT rules, lay down a due-diligence clause which calls for censorship of
certain material that may be deemed to be inflammatory, offensive, against public morality,
etc, was met with opposition by all the OTT platforms who came together to form the OTT
Consortium (Petitioner-2).

PIL CHALLENGING THE RULES

1. The OTT Consortium, with Yulu at the helm, challenged Section 3 of the Rules, in a PIL
under Article 32 of the Constitution of Indica, on the grounds that the impugned rules were
worded ambiguously and vaguely and was being used as a tool by the Ruling Party to
censor and restrain the Right to Freedom of Speech and Expression.
2. The major question of law by the OTT Consortium is that whether the broadcasting of
content on such digital streaming platforms exceeds the reasonable restrictions under
Article 19 further how much interference can be provided by the Government of Indica in
restraint of free trade.
3. Yulu had also filed a petition challenging the multiple FIRs under Section 153A and 295A
and claimed that the corporation cannot be held liable for the communal riots that took
place in January 2021. The Respondents have alleged that Yulu played a pivotal role in
instigating the riots all across Indica. The above-mentioned petitions are clubbed together
and are posted for a hearing before the Supreme Court.

9
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

ISSUES RAISED

ISSUE 1

WHETHER THE PIL FILED IS MAINTAINABLE BEFORE THE HON’BLE SUPREME COURT OF

INDICA?

ISSUE 2

WHETHER THE ACT OF REGULATING CONTENT, AS GIVEN UNDER SECTION 3 OF THE

INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS CODE)

RULES, 2021, IS CONSTITUTIONALLY VALID?

ISSUE 3

CAN YULU BE HELD LIABLE UNDER SECTION 153A AND 295A OF THE INDICAN PENAL CODE?

10
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE PIL FILED IS MAINTAINABLE BEFORE THE HON’BLE SUPREME
COURT OF INDICA?
It is humbly submitted before the Hon’ble Supreme Court that the PIL filed is maintainable
because the petitioner has Locus standi and the petition will be maintainable under Article 32
due to violation of Article 19(1)(a0 and Article 19(1)(g) of Consitution. of Indica.

ISSUE- 2 WHETHER THE ACT OF REGULATING CONTENT, AS GIVEN UNDER SECTION 3 OF

THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA

ETHICS CODE) RULES, 2021, IS CONSTITUTIONALLY VALID?
It is humbly submitted before the Hon’ble Supreme Court that the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021is not valid
constitutionally on the grounds that it
1. contravenes Article-19(1)(a) and Article- 19(1)(g) of the Indican Constitution, and this
is beyond restrictions provided under Article- 19(2) and Article- 19(6) of the Indican
constitution,
2. these rules are also not going hand in hand with the Universal Declaration of Human
Rights (UDHR) Act, 1948.

ISSUE 3: CAN YULU BE HELD LIABLE UNDER SECTION 153A AND 295A OF THE INDICAN

PENAL CODE?
It is humbly submitted before the Hon’ble Supreme Court that Yulu should not be held liable
under Section 153A as it talks about promoting enmity between different groups on grounds
of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to
maintenance of harmony. Yulu has not done any act promoting enmity between people. Yulu
has neither promoted any religious disharmony nor has mens rea. Also, Yulu should not be
held liable under Section 295A as it talks about deliberate and malicious acts intended to
outrage religious feelings of any class by insulting its religion or religious beliefs but here
Yulu has neither insulted any religion nor having any intentions to do so.

11
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE PETITIONS FILED BEFORE THE HON’BLE SUPREME COURT OF

INDICA UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICA ARE MAINTAINABLE OR NOT?

The counsel on behalf of the petitioners humbly submit before the Hon’ble Supreme Court
that the petitions filed before this Hon’ble Court under Article 32 of the Constitution of
Indica are maintainable.

1.1 THE PETITIONER HAS LOCUS STANDI

The term ‘locus standi’ connotes the right to bring an action and to be heard. Any member of
the public or any public-spirited organization having a bona fide and sufficient public interest
will have locus standi to maintain the petition. PIL cannot be used for personal gain, private
profit, political motives, for settling personal scores or even to gain cheap popularity2.
The petitioner has proper locus standi to file the petition before the Honorable Supreme Court
as the OTT consortium has faced grave injustice with the act of content regulation and there
has been a gross violation of the fundamental rights of the petitioners.

1.2 MAINTAINABILITYOFTHE PETITION UNDER ARTICLE 32

Article 32 is the constitutional remedy granted by the Supreme Court in the conditions when
the party has suffered encroachment on his or her fundamental rights and signed under part
III of the constitution by the state or by private members and certain situations. The
aggrieved party can directly approach the Apex code to seek justice when they are unduly
deprived of their fundamental rights. This itself is a fundamental right that can appropriately
be described as the cornerstone of democratic a defies raised by the constitution.
In Veena Sethi v. State of Bihar3, the court observed that the petitioners are entitled to
compensation from the state government for the contravention of fundamental rights
guaranteed under the constitution. Whether it’s the landmark case of D. K. Basu v Union Of
India4, Bhim Singh, MLA v. State of J&K and Ors5. or A. K. Gopalam v. State of Madras6,
each one of these cases is approached under Article 32 because of the infringement of
fundamental rights and the Apex court has provided the appropriate relief to the aggrieved
party. In other words of Dr Ambedkar: “if I was asked to name any particular article in the

2
Gurpal Singh v. State of Punjab, (2017) AIR 471
3
AIR 1983 SC 337
4
AIR 1997 SC 610
5
AIR 1986 SC 494
6
1950 AIR 27: 1950 SCR 88
13
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

constitution as the most important – – an article without which the constitution would be a
nullity Dash I could not refer to any other article except this one. It is the very soul of the
constitution and the very heart of it and I am glad that the house has realized its
importance.”7
1.2.1 Violation of Article 19(1)(a)
Article 19(1)(a) provides the freedom of speech and expression. It also includes the right to
publish and show views of other people (freedom of press and media). The media plays an
important role in the democratic society as it acts as the fourth pillar outside the government.
although the Indica constitution does not expressly mention the liberty of media, it is evident
that freedom of the press is included in the freedom of speech and expression under Article
19(1)(a).
The respondent claims that these scenes have exceeded the freedom of speech and
expression, but they have NOT done so. All these projections were completely legal. By
censoring them and by demanding them to be cut out, it is a clear violation of article 19(1)(a)
of the constitution of Indica.
The Wire states, “the constitution of India promises the right to free speech and expression to
all the citizens (Article 19(1)(a)). However, ‘reasonable restriction’ can be imposed on the
enjoyment of this freedom by the state under Article 19(2) on certain grounds, particularly
public order, decency or morality, the most frequently invoked. For censorship (under Article
19(2)), the standard of judging a film should be that of “an ordinary man of common sense
and prudence and not that of an out of the ordinary or hypersensitive man”.” It is humbly
submitted that Clause 3(b)(ii)8 and Clause 2(b)(xi) of Rule 39 violates Article 19(1)(a).

1.2.2 Violation of Article 19(1)(g)

Amongst the six fundamental rights, Article 19(1)(g) provides all the citizens of the country
the right to practice any profession, occupation, business or trade of their choice subject to
certain restrictions as laid down under Article 19(6). Article 19(1)(g) is a general right
available to all the citizens of the country to carry on any type of business, occupation or
profession to satisfy their livelihood needs. However, this fundamental right does not confer
the right to carry on any business, trade, occupation or profession which is unlawful or is
hindering general public interest.
The respondent claims that these scenes have exceeded the freedom of speech and

7
CONSTITUENT ASSEMBLY DEBATES ON 30 NOVEMBEER 1948 PART I
8
¶ 7, Page 11, Annexure-2, Moot Proposition.
9
¶ 8, Page 12, Annexure-2, Moot Proposition.
14
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

expression, but they have NOT done so. All these projections were completely legal. By
censoring them and by demanding them to be cut out, it is a clear violation of article 19(1)(a)
of the Constitution of Indica. It restricts the creative and visionary space of artists. It is indeed
a violation of Article 19(1)(g) to practice any profession or to carry on any occupation, trade,
or business.
In the case of Sanskar Marathe v. The State Of Maharashtra, “The third respondent claimed
to have exercised his fundamental right to the freedom of speech and expression as a
cartoonist and claimed that his arrest and detention seriously encroached upon the freedom
guaranteed to every citizen by Article19(1)(g) of the Constitution of India.”
Clause 3(b)(vii) of Rule 3 violates Article 19(1)(g).

Thus, the counsel on behalf of petitioners humbly submits before the Hon’ble Supreme Court
that the petition filed under Article 32 of the Constitution is maintainable.

15
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

ISSUE 2: WHETHER THE ACT OF REGULATING CONTENT, AS GIVEN UNDER SECTION 3 OF

THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA

ETHICS CODE) RULES, 2021, IS CONSTITUTIONALLY VALID?

The counsel on behalf of petitioners humbly submit before the Hon’ble Court that Section 3
of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules,
2021is not constitutionally valid on the grounds that firstly it violates fundamental rights
provided under the Indican Constitution, second section 3 is not consistent with the Universal
Declaration of Human Rights (UDHR), 1948 and thirdly there is already a self-regulatory
code for regulating OTT platforms as a result of which the new Rule acts as an additional
restriction.

2.1.SECTION 3 CONTRAVENES ARTICLE-19(1)(A) AND ARTICLE- 19(1)(G) OF THE INDICAN

CONSTITUTION.

The act of regulating content as given under Section 3 Information Technology (Intermediary
Guidelines and Digital Media Ethics Code) Rules, 2021, is not valid constitutionally as it
violates Article 19(1)(a), Article 19(1)(g) of the Indican Constitution and the restrictions are
out of the scope of the grounds mentioned in Article 19(2) and Article 19(6).

2.1.1. Section 3contravenesArticle 19(1)(a) of the Indican constitution and is beyond the
scope of Article 19(2) of the Constitution.
Section 3 lay down a due-diligence clause that compels intermediaries for censorship in many
points such as section 3(b)(ii)10 talks about defamatory, obscene, pornographic, racially or
ethnically objectionable, content which is harmful to the child. However, the rules are framed
in an ambiguous manner as they do not specify about how to decide objectionable content
(these platforms could face hypersensitive censorship) which makes it dubious and this led to
the contravention of Article-19(1)(a)11 of the Indican Constitution
The Shreya Singhal12judgment has increased the scope of the right available to all the citizens
of India to express themselves freely, and the limited space given to the state in restraining
this freedom in only the most exceptional of circumstances. In the present case, there is a
clear violation of fundamental rights provided under Article 19(1)(a) due to censorship in

10
¶ 7, Page 11, Annexure-2, Moot Proposition.
11
INDIAN CONST.art 19(1)(a).
12
Shreya Singhal v. Union of India, (2015) 5 SCC 1
16
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

multiple issues like defamatory content as the definition of defamation, obscene and vulgarity
can be very different from person to person especially in a multi-religious country like Indica.
As per Section 3(b)(ii), intermediaries must notify users not to submit the information that is
"racially, ethnically, or otherwise objectionable," "related to or supporting money laundering
or gambling," "libellous," "obscene," or "insulting or harassing on the basis of gender,".
Many of these grounds have no constitutional basis and are subjective indicators of personal
sensitivities rather than legal norms. As the Supreme Court of India held in the above case,
phrases that are too wide and unclear might lead to over-censorship and a chilling impact on
users.
Section 3(b)(xi)13 provides that ‘a publisher shall take into consideration Indica’s multi-racial
and multi-religious context and exercise due caution and discretion when featuring the
activities, beliefs, practices, or views of any racial or religious group’. It is humbly contended
that this could be misused because of hypersensitiveness and also this should not be ground
because of vagueness and ambiguity.
In Ashutosh Dubey v. Netflix, Inc & Ors14the Delhi High Court has strengthened the
fundamental right to freedom of speech and expression provided under Article 19(1)(a) of the
Indican constitution by observing that “The very essence of democracy is that a creative artist
is given the liberty to project the picture of the society in a manner he perceives. One of the
prime forms of exposing the ills of society is by portraying a satirical picture of the same.”
Section 3(b)(xi)is clearly going against this judgement of the Hon'ble Supreme Court.
In the case of Manohar Lal Sharma v. Sanjay Leela Bhansali15, the Supreme Court of India
held that an artistic licence should be determined objectively on the facts of each case.
Restriction on creativity should be reasonable, depending upon the kind of restriction
imposed and its impact. But here in the present case these restrictions are clearly violating the
fundamental rights and overruling these landmark cases.
Thus, it is humbly submitted that the impugned Section goes beyond the scope of Article
19(6) and violates the fundamental rights of the users.
2.1.2. Section 3 contravenes Article 19(1)(g) of the Indican constitution and goes beyond
scope of Article 19(6) of the Indican Constitution.
Section 3 imposes certain compulsions such as producing information related to certain
content, Section 3(b)(vii) imposes restrictions for impersonation of another person that is not
valid at all times as these platforms also stream biographies, Autobiography and

13
¶ 8, Page 12, Annexure-2, Moot Proposition.
14
2020 SCC OnLine Del 625
15
(2018) 1 SCC 770
17
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

documentaries. it will be a clear violation of Article 19(1)(g) of the Indican constitution and
breaching test of reasonableness16 under Article 19(6)17 of the Indican constitution. It is
clearly breaching the scope of restrictions as these rules have a traceability clause that can’t
be followed without removing “end-to-end encryption” which is a very essential element of
business for these intermediaries.
In NachiketaWalhekar v. Central Board of Film Certification &Anr18. Supreme Court said,
“A film is a creation of art, and an artist has his own right to express himself in a manner that
is not restricted by law.” Section 3(b)(ii) and (iii) of the given rules19 which talk about
defamatory, obscene, pornographic, paedophilic, invasive of another's privacy, insulting or
harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or
encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the
laws in force will be removed is violating Article 19(1)(g) of the Indican constitution as many
of these terms are not clearly defined anywhere or also having many exceptions.
Intermediaries are likely to face an unreasonable burden as a result of such a required
compliance requirement. Furthermore, the efficacy of such a rule is debatable, as it is likely
to cause notification fatigue among users.

Clause 3(b)(iii) talks about removing content that is harmful to a child, that is just extra
restriction on these platforms as there is already a self-regulatory code that defined age
categories to show certain content which is followed by these platforms. So that will be
clearly burdensome on the OTT platforms, which is violating Article 19(1)(g) of the Indican
constitution. As all intermediaries are following these rules so they have already put labels
about the type of content and age category.
In the case of Chintamanrao .v State of M.P20, the Supreme Court of India held that there is a
need to strike a proper balance between freedom guaranteed under Art. 19(1)(g). It was also
decided that the judiciary, not the legislature, must ultimately decide if the restriction is
acceptable. In the matter of fundamental rights, the Supreme Court watches and guards the
rights guaranteed by the Constitution, and in exercising its functions, it has the power to set
aside an Act of the Legislature if it is a violation of the freedoms guaranteed by the
Constitution.

16
Test of reasonableness under Article 19(2) and Article 19(6) of the Indican constitution
17
INDIAN CONST.art 19(6)
18
(2018) 1 SCC 778
19
¶ 9, Page 12, Annexure-2, Moot Proposition.
20
1951 AIR 118
18
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

In Mohd. Faruk v. State of M.P21, the Supreme Court of India held that a prohibition on the
fundamental right to carry on occupation, trade or business is not regarded as reasonable if is
it imposed not in the interests of the general public but keeping in view the susceptibilities
and sentiments of a section of a community. These rules state that a publisher shall take into
consideration Indica’s multi-racial and multi-religious context and exercise due caution and
discretion when featuring the activities, beliefs, practices, or views of any racial or religious
group[Section 3(b)(xi)] which is ambiguous, unnecessary and against fundamental right to
carry on business and occupation as the citizens could be exploited because of
hypersensitiveness of a few individuals.

In the case of K. A. Abbas vs The Union of India &Anr,22the Supreme Court observed
ambiguity in censorship as a valid offence to the right of the investor. This is a violation of
article 19(g) of the indican constitution. The following were the scenes that were considered
as exceeding article 19 and breaching the scope of reasonable restrictions. and here in this
case ambiguity is found in many clauses such as obscenity, defamation, impersonation,
public order and a few more.

2.1.3. Test of reasonableness under Article 19(2) and Article 19(6) of the Indican
constitution
Articles 19(2) and (6) impose limitations on the freedoms guaranteed by Arts.19 (1)(a) and
(g) respectively. It has been said that it is the rights, which are fundamental, and not the
limitations. But these observations overlook the fact that the rights granted are not absolute
but are subject to permissible restrictions.
The test of reasonableness as laid down by Sastri C.J. in Madras v. V.G. Row23 where he said
“it is important… to bear in mind that the test of reasonableness, wherever prescribed should
be applied to each individual statute impugned, and no abstract standard or general pattern of
reasonableness, can be laid down as applicable to all cases”. For adjudging reasonableness of
a restriction, the courts consider such factors as the nature of the right alleged to have been
infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the
evil sought to be remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time, should all enter into the judicial verdict. Section 3 of the IT Rules of
2021 specifically mentions the protection of unity, sovereignty, and public order, among

21
AIR 1958 SC 731.
22
1971 AIR 481
23
State Of Madras v. V.G. Row.UnionOf India & State, 1952 AIR 196
19
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

other things, that are ambiguous in nature which will be a clear violation of the doctrine laid
down by Justice Sastri.
2.1.4. There already exists a self-regulatory code
There already exists a self-regulatory code for the purpose of regulating content that is
published on the OTT platforms. The imposition of Section 3 acts as an additional restriction
on the OTT platforms.

2.2.SECTION 3 DOES NOT SATISFY THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

(UDHR) ACT, 1948

India is obligated to respect international law through Article51(c)24 of the Indican

Constitution.
Article 19 of UDHR states that everyone has the right to freedom of opinion and expression;
this right includes freedom to hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless of frontiers.
Section 3(b)(ii) and (iii)25 talks about not to host, display, upload, modify, publish, transmit,
store, update or share any information that is defamatory, obscene, pornographic,
paedophilic, invasive of another’s privacy, including bodily privacy, insulting or harassing
based on gender, libellous, racially or ethnically objectionable, relating or encouraging
money laundering or gambling, or otherwise inconsistent with or contrary to the laws in
force, is harmful to a child and all of these terms having a very broad meaning which is not
defined here which may affect freedom of opinion and expression of each individual as
authorities can interpret it as they will and by this they may exploit citizens of Indica.
Section 3(b)(vii) and (viii)[as given in prop.]26 which talks about impersonating another
person, threatening the unity, integrity, defence, security or sovereignty of Indica, friendly
relations with foreign states, or public order, or causes incitement to the commission of any
cognisable offence or prevents investigation of any offence or is insulting other nation are
also not defined clearly so there also could be a problem of ambiguity that can be used for
exploiting someone.

24
INDIAN CONST.art 51(c)..
25
¶7, 8, Page 11, Annexure-2, Moot Proposition.
26
¶4, 5, Page 12, Annexure-2, Moot Proposition.
20
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

ISSUE 3: CAN YULUBE HELD LIABLE UNDER SECTION 153A AND 295A OF THE INDICAN

PENAL CODE?

The counsel on behalf of Petitioners humbly submits before the Hon’ble Supreme Court that
Yulu cannot be held liable under Section 153A and Section 295A of the Indican Penal Code.
The web series in question is a work of fiction, and all of the locations, events, and characters
are made up. The goal of the OCCP platform called "Yulu" was not deliberate and malicious
in nature, as indicated by the course of action by Yulu in the given prop. Furthermore, the
creators had no idea that such a situation would emerge.

3.1.YULU IS NOT LIABLE UNDER SECTION 153A OF THE INDICAN PENAL CODE.

Sec. 153Aof IPC penalizes promotion of enmity between different groups on grounds of
religion, race, place of birth, residence, language, etc., and doing acts prejudicial to
maintenance of harmony.27It is humbly submitted that Yulu has not done anything which can
affect or insult any kind of religious belief of any person and there was no intention to incite
any violence.
In the case of Dr Sambit Patra v. State Of Chhattisgarh 28, it was held that the purpose of sec.
153A was to check if there were "communal and separatist tendencies" in the statement. In
the present case, no tendencies are shown from the side of the petitioner. The desire to
provoke disorder or incite people to violence is the sine qua non of the offence under Section
153A of the Indian Penal Code, and there is no mens rea to incite people to violence in this
case. As portrayed in “Chandak” that a Khuslim man and Shindu woman found kissing
against the backdrop of a temple, there is no such malicious intention to hurt any religious
feelings.
The scene where it is shown Sindhu saint should not hurt any religious feelings as this cannot
be said wrong because showing evils of society is not illegal and portraying a single saint will
not hurt religious beliefs. Also, the scene where makers of “Chandak” have shown actors in
the attire of Sindhu Gods doesn’t constitute any offence as wearing anything is the choice of
a person and one can do so. As well as there is one point of “Kada” that is related to the Sikh
community that should also not be maintainable as just a “Kada” cannot hurt religious
feelings and if then restricting someone for this may hurt their fundamental rights. In each of
the above situations, the element of mens rea is absent.

27
IndicanPenal Code 1860 § 153-A.
28
MANU/CG/0262/2021
21
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

The aim to foster feelings of hostility or hatred between different classes of people is
punishable under Sec. 153A of the Indian Penal Code. The language of the piece of writing,
as well as the circumstances in which it was produced and published, are the most important
factors in determining the intention. The complaint under Section 153A must be read in its
entirety. For proving the charge, one cannot rely on strongly worded and isolated paragraphs,
nor can one select a sentence here and a sentence there and connect them through a rigorous
process of inferential reasoning. So, from the above facts and judgement of court here, we
have to see the whole story before reaching to conclusion and as story given in factsheet,
there is no offence committed by Yulu as well as makers of “Chandak” as they have just
portrayed a few evils of society without any intention to insult any religions.
In the case of the Bilal Ahmed Kaloo v. State of A.P.29 SC analysed the ingredients of Sec.
153A of IPC and held that Section 153A covers a case where a person by "words, either
spoken or written or by signs or by visible representations", promotes or attempts to promote
the feeling of enmity, hatred or ill will. Mens rea was held to be a necessary ingredient for the
offence under Section 153A. and it is humbly contended that the element of mens rea is
absent in the present case.
In case of the Patricia Mukhim v. State of Meghalaya and Ors.30, the Supreme Court
highlighted that in order to succeed under section 153A, the prosecution had to prove the
existence of mens rea, or the desire to produce unrest or encourage people to violence. The
judges believe that the law should only intervene where written or spoken remarks have the
potential to cause public unrest, disruption of law and order, or disruption of public quiet.
“The aim must be evaluated principally by the language of the piece of writing and the
circumstances in which it was written and published,” the judges observed. The matter
complained of under Section 153A must be read as its whole. One cannot prove the charge by
relying on strongly worded and isolated passages, nor can one connect a sentence here and a
sentence there through a rigorous process of inferential reasoning.” We can infer from this
case that Yulu and the makers of “Chandak” should not be held liable.
In the case of Balwant Singh and anr. v. State of Punjab31, it was held by SC that mens rea is
a necessary ingredient for the offence under Section 153A. and as said in the above cases
there is no mens rea in this case as per facts. This element of mens rea is totally absent in
these situations of throwing Kada, Drinking and smoking on the attire of Sindhu Gods, and
kissing by people from a different religion is also not illegal as well as doing it in the temple

29
AIR 1997 SC 3483
30
AIR2021SC1632
31
AIR 1995 SC 1785
22
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

also doesn’t constitute any offence.

There are just a few things that were portrayed to show a few evils of society is shown in the
web series named “Chandak” which doesn’t constitute any offence. As decided in the case of
Manzar Sayeed Khan v. State of Maharashtra and anr32, that the essential elements of an
offence under Section 153A of the IPC are the promotion of enmity or hatred between
different groups or on the basis of religion, etc., and the mens rea to cause disorder or incite
people to resort to violence should be judged to see if such an offence has been committed,
but here is no offence as actors and makers are just enjoying their fundamental right to free
speech and expression and have not done any wrongful act.
Thus, it is humbly submitted that the web series “Chandak” does not satisfy any of the
ingredients of Section 153A and hence Yulu cannot be held liable under the aforementioned
Section.

3.2.YULU CANNOT BE HELD LIABLE FOR SECTION 295A OF THE INDICAN PENAL CODE.

Section 295A33 talks about deliberate and malicious acts intended to outrage religious
feelings of any class by insulting its religion or religious beliefs. It is humbly submitted that
the web series does not intend to outrage any religious feelings and hence Yulu cannot be
held liable under Section 295A.
The Indican form of blasphemy legislation is Section 295A of the Indican Penal Code. It
punishes "acts intended to offend religious sensibilities of any class by insulting its religion
or its beliefs," with "deliberate and malicious" intent being the only requirement. It's a
cognisable offence, which means police can make arrests without a warrant from a judge.
This means that the police can detain someone based on mere "suspicion" or a "complaint" in
order to conduct an investigation or prevent additional crime. These laws, taken together, not
only allow for police abuse of authority but also have a chilling effect on the exercise of one's
right to free expression.
The Supreme Court ruled in Ramji Lal Modi v. State of Uttar Pradesh34 that every action
does not enrage religious emotions. It also stated that a person will be held accountable under
Section 295A of the Indian Penal Code, 1860 if his actions cause religious emotions of
persons from another community to be insulted. The accused's actions must be malicious and
deliberate.

32
AIR 2007 SC 2074
33
IndicanPenal Code 1860 § 295-A.
34
1957 AIR 620
23
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

But here in this case Yulu has not done anything against Section 295A as they are just
enjoying their fundamental rights under Article 19(1)(a)35 and Article 19(1)(g)36 of the
IndicanConstituion. Portraying a saint to show any evil, drinking or smoking in any specific
attire, and also kissing near or backdrop of the temple is not a specified offence under IPC.
This all is just because of the extra sensitiveness of a group and this should not constitute any
offence.
In Mahendra Singh Dhoni v. YerraguntlaShyamsundar37, The court held that the accused is
liable under Section 295A of the Indian Penal Code, 1860 only if he intentionally hurts the
religious sentiment of the people belonging to other religions. The allegations mentioned in
the report did not meet the ingredients of the offence. And, so the Supreme Court had passed
an order to quash the FIR against him. But here in given facts, Yulu has just portrayed a few
things about evils of society they don’t have any intention to hurt religious beliefs of any
religion.
Another incident that inflamed folks' religious feelings was the controversial display of
Sindhu saints. In the case of Ajay Gautam v. Union of India and others38, it was explicitly
stated that portraying a saint as corrupt or problematic in a film, such as PK, portrays reality,
as there have been countless situations in which a saint or godman has been found guilty. The
court also found that negatively portraying a saint does not reflect negatively on the Sindhu
religion. As a result, when seeing such information, one should not be overly sensitive, but
rather reasonable, as the depiction of scenes does not cast religion in a negative light.
Therefore, on this ground ‘Yulu’ should not be liable under sec 295A of IPC.
In the case of Arup Bhuyan39, Justice MarkandeyKatju held that speech cannot be restrained
unless it triggers imminent unlawful action, citing Clarence Brandenburg v. State of Ohio40.
In light of the aforementioned state case laws, free speech gains a broader definition.
However, in practice, the concept of an "imminent illegal action" makes it extremely difficult
to prosecute Blasphemy. What statement having elements of blasphemy has the potential to
trigger violence is completely unpredictable. But here in this case is no element of blasphemy
as it’s just about portraying evils through work of fiction and Yulu have no intentions to do
so. Even after this Yulu removed these clauses and issued an unconditional apology(without
prejudice to any of their rights or without any admission of any kind of wrongdoing).

35
INDIAN CONST.art 19(1)(a).
36
INDIAN CONST.art 19(1)(g).
37
(2017) 7 SCC 760
38
MANU/UC/0176/2016
39
Arup Bhuyan v. State of Assam, MANU/SC/0814/2014.
40
395 U.S. 444 (1969)
24
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

The First Temptation of Christ is a Netflix comedy series. It portrays Jesus, the Christian
divinity, like a gay. The show was first banned, but the ruling was overturned by the
Brazilian Supreme Court. The petitioner's freedom to portray Jesus as gay was supported by
the court. This demonstrates that the creative conception of God is and should be recognised
within the scope of freedom of speech."One cannot believe that a humorous satire will
undermine the ideals of the Religious faith, which has been practised in Brazil for over two
thousand years and is held by the majority of the population," Toffoli remarked.
On the above grounds, it is humbly submitted that Yulu cannot be held liable under Section
295A for outraging religious feelings of any groups.
The counsel on behalf of petitioners humbly submits before this Hon’ble Supreme Court that
Yulu cannot be held liable under Section 295A and 153A of IPC.

25
MEMORANDUM ON THE BEHALF OF PETITIONER
 6TH INTRA MOOT COURT COMPETITION 2021

PRAYER FOR RELIEF

In light of the facts stated, arguments advanced, and authorities cited, the Petitioners humbly
pray before this Hon’ble Supreme Court to adjudge and declare that:

1. The PIL filed before the Hon’ble Supreme Court of Indica under Article 32 is
maintainable.
2. Section 3 of the Information Technology (Intermediary Guidelines and Digital Media
Ethics Code) Rules, 2021, is constitutionally invalid.

3. Yulu can not be held liable under Section 153A and 295A of the Indican Penal Code.

AND/OR

Pass any other order that the Hon’ble Court may deem fit in favour of the Petitioner in the
interest of justice, equity, and good conscience.

And for this act of kindness, the Petitioner shall as in duty bound, ever pray.

Sd./-

Counsel on behalf of Petitioner

26
MEMORANDUM ON THE BEHALF OF PETITIONER