Final Respondent.docx

ARGUMENTS ADVANCED

I.

THAT SECTION 292 OF THE CLANDESTINESIA PENAL CODE AND SECTION 67 AND 67A OF THE CLANDESTINESIA INFORMATION TECHNOLOGY ACT, 2000 ARE VAGUE AND ARBITRARY AND ULTRA VIRES THE CONSTITUTION. 1. It is humbly submitted before the Honorable Supreme Court of Clandestinesia that section 292 of the CaPC and section 67 and 67A of the Clandestinesia Information Technology Act, 2000 are violative of Article 19 of the Constitution of Clandestinesia which talks about the right to freedom of speech and expression provided to the citizens of the country. 2. The counsel on behalf of the respondent contends that section 292 of the Clandestinesia Penal Code and section 67 and 67A of the Clandestinesia Information Technology Act are constitutional and in consonance with Article 19 as clause (2) imposes reasonable restrictions on freedom of speech and expression on grounds of public decency or morality. Also, exception (a)(i) to the section 292 of the Clandestinesia Penal Code states that (a) any book, pamphlet, paper, writing, drawing, painting, representation or figure—(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern.1, thereby being within the realm of the constitutionality of Article 19 of the constitution of Clandestinesia. [1.1] THAT

REASONABLE RESTRICTIONS CAN BE IMPOSED ON THE RIGHT TO FREEDOM OF

SPEECH AND EXPRESSION WHEN PUBLIC DECENCY OR MORALITY IS AT STAKE.

3. Right to freedom of speech and expression does not extend to indecent or immoral utterances and publication.2 The question whether an utterance is likely to undermine decency or morality is determined with reference to the probable effects it may have upon the audience to which it is addressed.3 Decency indicates that the action must be in conformity with the current standard of behavior propriety. The expression “indecent” is not synonymous with obscenity. Indecency is often used with the same meaning, but also

1

Section 292 of the Indian Penal Code, 1860. Justice SS Subramani DD Basu Commentary on the Constitution of India (9th ed Lexis Nexis 2014) 3 Ranjit D Udeshi v State of Maharashtra, AIR 1965 SC 881: (1965) 2 Cr LJ 2

may include anything which is outrageously disgusting. Obscenity is certainly indecent but what is indecent may certainly be not obscene.4 4. It is a settled law that sex and obscenity are not synonymous and it is wrong to classify sex as essentially obscenity or even indecent or immoral.5 But if, the presentation of a sexual practice of a tribe in a film is highly derogatory and a complete misrepresentation if it is shown as nothing more than an exercise of sexual perversity6, it will come under the bouts of obscenity as defined in section 292 of the CaPC. 5. Obscenity must be so gross and its obscenity so pronounced that it is likely to deprave and corrupt those whose minds are open to influence. It is mentioned in the facts of the present case that after the release of the Khosadasti Report, various social and political thinkers had denounced the practice as being immoral and against the dignity of women.7 Thus, it had influenced many people of the society and had forced them to think of Khosadasti as a lewd and perverse practice. Moreover, the concept of obscenity is moulded by a very great extent by the social outlook of the people depending on the standards of morality of contemporary society in different countries.8 6. Furthermore, it can hardly be claimed that obscenity which is offensive to modesty or decency is within constitutional protection given to free speech and expression. Article 19(1)(a) is subject to reasonable restrictions which may be thought necessary in the interest of general public and one such is the interest of public decency and morality. Section 292 of the CaPC correctly understood and applied, seeks no more than to promote public decency and morality. 7. The counsel further argues that in Aveek Sarkar v State of West Bengal9, the Court affirmed an earlier dictum of the Supreme Court in Ajay Goswami v UOI10, wherein it was held that commitment to freedom of speech and expression demands that it cannot be suppressed unless the situation created by it is such that allowing the freedom, community interest is endangered. In the present case, the community interest has been endangered because the rituals and practices of the Khosads have been shown in a very derogatory and demeaning sense and therefore, section 292 of IPC is not vague and arbitrary and is justified the present case.

4

Amtabh Bachan Corporation Ltd v Om Pal Singh Hoon, (1996) 3 DRJ 352 KA Abbas v UOI, AIR 1971 SC 481: (1970) 2 SCC 780 6 UMCS Summer GI Moot Proposition 2017, ¶ 20 7 UMCS Summer GI Moot Proposition 2017, ¶ 7 8 Samaresh Bose v Amal Mitra, (1985) 4 SCC 289: AIR 1986 SC 967 9 Aveek Sarkar v State of West Bengal, (2014) 4 SCC 257: AIR 2014 SC 1495 10 Ajay Goswami v UOI, (2007) 1 SCC 143: AIR 2007 SC 493 5

8. In Bobby Art International v Om Pal Singh Hoon11, the SC said that the requirements of art and literature include within themselves a comprehensive view of social life and not only in its ideal form and the line is to be drawn where the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. 9. The Supreme Court in KA Abbas v Union of India12 referred to the decision in Roth (supra), wherein three tests have been laid down as under: (a) that the dominant theme taken as a whole appeals to prurient interests according to the contemporary standards of the average man; (b) that the motion picture is not saved by any redeeming social value; and (c) that it is patently offensive because it is opposed to contemporary standards. 10. In deciding the question of obscenity, the court must take an overall view of the matter complained of as obscene in the setting of the whole work, but the matter charged as obscene must also be considered by itself and separately to find out whether it is so gross and its obscenity so pronounced that it is likely to deprive and corrupt those whose minds are open to influence of this sort and into whose hands the material is likely to fall. 13 The human mind has an inherent attraction for sex. If any material incites extreme immoral perversities in respect of sexual indulgence, then it incites the impulses to depravity and degeneration and would be obscene.14 11. Section 5B (1) of the Cinematograph Act is drafted keeping in mind the reasonable restrictions enumerated in Article 19(2) of the Constitution and it is stated that the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.15 It was held in Directorate General of Doodhdarshan v Anand Patwardhan16 that one of the most controversial issues is balancing the need to protect society against the potential harm that may flow from obscene material, and the need to ensure respect for freedom of expression and to preserve a free flow of information and ideas. The Constitution guarantees freedom of expression but in article 19(2) it also makes it clear that the State may impose reasonable restrictions in the interest of public morality and decency. In the present case, the documentary directed by Bioscope was obscene and pornographic in nature as the sexual practice of Khosadasti was vividly filmed in the 11

Bobby Art International v Om Pal Singh Hoon, (1996) 4 SCC 1: AIR 1996 SC 1846 KA Abbas v Union of India, (1970) 2 SCC 780 13 RA Nelson’s Indian Penal Code, Ninth Edition, S K Sarvaria, Volume 2 pg. 2505 14 Durlab Singh v State, (1971) 73 Punj LR (D) 113 15 S 5B (1) of the Cinematograph Act, 1952. 16 Directorate General of Doodhdarshan v Anand Patwardhan (2006) 8 SCC 433. 12

documentary and it is mentioned that both the promoters of TCPL expressed shock at the practice and further claimed that the same is inconsistent with the ideologies and practices of modern world.17 12. Hence, it is evident that section 292 of the CaPC and section 67 and 67A of the IT Act are not ultra vires the constitution as they both are covered as reasonable restrictions of public decency and morality under article 19(2) of the Constitution. [1.2]: THAT EXCEPTION (A)(I) OF SECTION 292 OF CAPC STATES THAT IT IS JUSTIFIED IF IT IS IN THE INTEREST OF SCIENCE, LITERATURE, ART, LEARNING OR OTHER OBJECT OF GENERAL CONCERN.

13. Section 292 of the Clandestinesia penal Code makes an exception in the case of publications in the interest of science, literature, art or learning or of objects of general concern. The courts held that publication of indecent matters may be justified if it is genuinely in the interests or for the purposes of arts, science or any other forms of learning. The books on medical science with intimate illustrations and photographs, though in a sense immodest, have not been considered to be obscene, but the same illustrations and photographs collected in a book without medical context would certainly be considered to be obscene.18 14. Similarly in Bobby Art International v Om Pal Singh Hoon19, there was frontal nudity of the protagonist and there were rape scenes and the exposure of her genitalia. The object of doing so was not to titillate the cinemagoer's lust but to arouse in him sympathy for the victim and disgust for the perpetrators. Nakedness does not always arouse the baser instinct. ‘Bandit Queen’ tells a powerful human story and to that story the scene of Phoolan Devi's enforced naked parade is central. It helps to explain why Phoolan Devi became what she did: her rage and vendetta against the society that had heaped indignities upon her. Hence, it was in a way obscene but the purpose of the movie was to expose the social evils in the society. Hence, it was a justified. 15. The Supreme Court in the case of Directorate General of Doodhdarshan v Anand Patwardhan20 held that there was no obscenity committed on the part of the directors as the objective of the movie was to disclose the social evils that existed in the society and

17

UMCS Summer GI Moot Proposition 2017, ¶ 7. Ranjit D Udeshi v State of Maharashtra, AIR 1965 SC 881: (1965) 2 Cr LJ 19 Bobby Art International v Om Pal Singh Hoon (1996) 4 SCC 1: AIR 1996 SC 1846 20 Directorate General of Doodhdarshan v Anand Patwardhan (2006) 8 SCC 433. 18

the whole movie centred on bringing in light the social evil. Hence, the trivial obscenity that was portrayed in the movie could be overlooked. 16. The counsel on behalf of the respondent contends that even in our present case, the documentary was based on Khosad tribes and Khosadasti was a ritual practised by them. It was therefore fundamental to the documentary and although it was obscene, the point of the documentary was to showcase their culture and tradition and not disparage them. The issue of Khosadasti was therefore, a general concern of the public and the media reports led to a complete swing in the public opinion against the Khosads.21 17. Henceforth, it is visible that Section 292 of the Clandestinesia Penal Code and Sections 67 and 67A of the Clandestinesia Information technology ACT, 2000 are not vague and arbitrary and within the scope of the constitution of Clandestinesia.

21

UMCS Summer GI Moot Proposition 2017, ¶ 7.

[ISSUE 5]: THAT THE PROMOTERS DR. JNANENDRA MITRA AND ZUBIN DUBASH ARE NOT VICARIOUSLY LIABLE FOR THE ACTS OF TCPL, BIOSCOPE AND FWPL RESPECTIVELY FOR THE OFFENCES PUNISHABLE U/S 292 AND 499 OF CAPC AND U/S 67, 67A OF THE CLANDESTINESIA INFORMATION TECHNOLOGY ACT, 2000. [5.1]: THAT THE COMPANY IS A SEPARATE LEGAL ENTITY IN THE EYES OF LAW A company is a separate legal entity as distinct from its members, therefore it is separate at law from its shareholders, directors, promoters etc and as such is conferred with rights and is subject to certain duties and obligations. These central principles of company law were first laid down in very clear terms by the House of Lords in the case of Salomon v Salomon & Company Ltd22. Salomon’s case represented a belated but inevitable advance of the law towards clarifying the separate nature of the relationship of shareholders and their company and thereby better serving the needs of business by establishing a more efficient company law that recognised the commercial expectations of the business community. The Supreme Court in Tata Engineering Locomotive Co Ltd v State of Bihar and others23,"the corporation in law is equal to natural person and has a legal entity of its own. The entity of corporation is entirely separate from that of its shareholders; it bears its own names and has seal of its own; its assets are separate and distinct from those of its members, the liability of the members of the shareholders is limited to the capital invested by them, similarly, the creditors of the members have no right to the assets of the corporation." In Andhra Pradesh State Road Transportation v Income Tax Officer and Anr24 Case the Supreme Court pointed out that a corporation has a separate legal entity is so firmly rooted in our notions derived from common law that it is hardly necessary to deal with it elaborately. Hence, it can be seen that the company is a natural person in the eyes of the law and that the persons and company are made liable distinctively when it comes to punishment. [5.2]: THAT

THERE IS NO VICARIOUS LIABILITY FOR CRIMINAL OFFENCES IN INDIA AND NONE

WOULD COVER SECTIONS 292 AND 499 OF THE CAPC.

22

Salomon v Salomon & Company Ltd [1897] AC 2 Tata Engineering Locomotive Co. Ltd. v. State of Bihar and others 1964 SCR 6 885. 24 Andhra Pradesh State Road Transportation v Income Tax Officer and Anr 1964 SCR (7) 17 23