The Honorable High Court of Kalbari: Before

TEAM CODE: NMCC-14
12TH NATIONAL MOOT COURT COMPETITION, 2021
Before
The Honorable High Court of Kalbari
ORGINAL WRIT JURISDICTION
PETITION FILED UNDER ARTICLE 226, CONSTITUTION OF NANDA

WRIT PETITION NO. __/2021
INDU……………………………………………………………………….…..PETITIONER-1,
BALBIR SEN.…………………………………………………………………..PETITIONER-2
-&-
SEJI…. …………………..………………………………………………..……PETITIONER-3
V.
THE UNION OF NANDA…………………………….……………..………….RESPONDENT
In the case concerning breach of the right to dissent and challenging constitutional
validity of Information Technology (Guidelines for Intermediaries and Digital Media
Ethics Code) Rules, 2021
COUNSEL ON THE BEHALF OF THE PETITIONERS
MEMORIAL ON BEHALF OF PETITIONERS

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
MEMORANDUM ON THE BEHALF OF PETITIONER

2.2. Section 3 does not satisfy the Universal Declaration of Human Rights (UDHR)
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

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
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
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
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
STATEMENT OF FACTS
Background
 Nanda- Country
 Samar Pratap Singh- PM of Nanda, Right-wing nationalist
 Tandav- Ruling Party of Nanda
 Seji- A microblogging site and app(similar to Twitter) (created and wholly-owned in
Nanda), don't manufacturer any content
 Kalbari- A state within Nanda
 Indu- A student activist(resident of Kalbari)
 United Nanda Party- the only opposition
 party in the country
 Richi Roger- President of United Nanda Party
 Dhriti Tiwari- Minister for Technology and Communication
 Balbir Sen- author of a research paper based on which the video was created
 Axel Inc.- an investment firm based in the United States
Samar Pratap Singh from Tandav Party won the Prime ministerial election held in 2018. His
election strategies were heavily based on Social media. He is an active user of Seji. His
popularity continued to grow even after taking the oath of office. And community opposing
him also grew more assertive. And these groups are also taking social media as the mode to
share their views.
With time internet emerged as a space for hate rather than healthy communications. Multiple
cases of deaths and injuries were reported as a consequence of the virtual fight. Keeping this
in mind Seji allowed users to block someone themselves if they felt it necessary. And
Government decided to wait and watch for dealing with it more effectively.
On the other hand, the Internet emerged as an important mode of circulating information and
updates about government policies and decisions.
Seji- A medium to circulate information

All ministers of government use Seji to inform citizens about the activities of their respective
ministries and share their views on various topics. The PM was an active user and had a
8
personal account (i.e. @SamarP) and an official account (i.e. @PMofNanda). The PM was
also using Seji to inform citizens about the government's policies and decisions and for
interacting with celebrities.
Reorganization of the States

The government decided to introduce legislation to reorganize states based on population for
making governance easier. After this reorganization, no state will have a distinct language.
This decision met with widespread opposition and people started opposing the government
led by Indu.
What is said to be wrong in Indu’s Tweets?

Indu has used a few emojis which are demon and knife while talking about the PM and
written against policies of the government and used A few hashtags like
ResignSamarPratap.after this PM directly responded to her on Seji. this caused public outrage
and her popularity grew tremendously. This caused loss to the ruling party(i.e. Tandav) in
upcoming elections.
The Government under Section 69A of IT Act 2009 issued a notice to Seji to remove Indu as
a user of Seji but, Seji denied removing Indu as it would have a chilling effect on freedom of
speech and expression.
Subsequently, Indu and members of her group were blocked by PM from personal as well as
the official account. They took screenshots of this and shared them. Within days all members
of Cabinet also blocked Inndu and members of her group which prevented Indu and her
group from tagging and accessing all past and future posts of PM and his cabinet. Following
this event when Indu questioned the only opposition party i.e. UNP and UNP also blocked
her.
Controversy of Copyright
Ministers kept official duties on the side and started preparing for newly constituted states.
While doing so Dhriti Tiwari (Minister for Technology and Communication) shared a video
on Seji about diminishing leftist ideology and uprising of rightist ideology which went viral.
This video was based on a research paper written by Balbir Sen.
9
Balbir sent a copyright notice about copyright infringement to Dhriti Tiwari and Seji as he
stated that his research paper was used for benefit of a particular party which is a violation of
fair use policy. Subsequently, Seji took down that video and imposed 2 days ban on Dhriti
Tiwari. And Dhriti Tiwari refused to reply and approached the District Court.
District Court ruled that using that research paper without prior permission constitute a
violation of fair use policy.
IT (Intermediaries and Digital Media Ethics Code) Rules, 2021

The government decided to introduce the IT Rules 2021 to recognize the role played by
intermediaries such as Seiji in Nanda which placed duties on intermediaries to follow due
diligence measures, failing which they would lose safe harbor protections granted to them
under previous legislations. Seji is listed as a news aggregator under the new legislation. And
challenged Rule 3 to 7 of the new rules.
Hues and cries about FCRA
Seji has a great business model allowing them to earn from ads And strategic use of users
data attracted multiple foreign investors to invest in Seji. In August 2021, Axel inc. (a US-
based firm) invest a huge amount over Seji. However within a week of receiving the
investment, Govt. issued a notice for violation of FCRA,2010 to Seji stating that Seji was a
news aggregator and prominent role in shaping the political affairs of Nanda.
10
ISSUES RAISED
ISSUE 1
Whether Blocking Indu’s access to the personal and official accounts of Prime Minister,
Cabinet Ministers, and the UNP on Seji is unlawful?
ISSUE 2
Whether the order of District Court of Kalbari should be upheld or dismissed by the Hon’ble
High Court of Kalbari?
ISSUE 3
Whether Rule 3 to 7 of the Information Technology (Guidelines for Intermediaries and

Digital Media Ethics Code) Rules, 2021 are Constitutional?
ISSUE 4
Whether the notice issued by the Government to Seiji for the alleged violation of valid in
law?
11
SUMMARY OF ARGUMENTS
Issue 1: Whether Blocking Indu’s access to the personal and official accounts of Prime
Minister, Cabinet Ministers, and the UNP on Seji is unlawful?
It is humbly submitted before the Hon’ble High Court that blocking Indu’s access to the
personal and official account of PM, Cabinet Ministers and the UNP on Seji is unlawful on
the following grounds:
1.1. Denial to the access of Public Forum
1.2. Restrictrictions in fair criticism of the government
Issue- 2 Whether the order of District Court of Kalbari should be upheld or dismissed
by the Hon’ble High Court of Kalbari?
It is humbly submitted before the Hon’ble High Court that
ISSUE 3: Whether Rule 3 to 7 of the Information Technology (Guidelines for

Intermediaries and Digital Media Ethics Code) Rules, 2021 are Constitutional?
It is humbly submitted before the Hon’ble High Court that the Information Technology
(Guidelines for Intermediaries and digital media ethics code)Rules 2021 fall foul in some
ways; which are;
3.1. These rules do not comply with the Principle of Natural Justice and Due Procedure
of Law;
3.1.1. Threat to Right to Privacy
3.1.2. Non-compliance with Due Process
3.1.3. Restriction on Free Speech
3.1.4. Restriction on Free trade
3.2. Ultra vires to the IT Act
12
3.3. Virtual dictation of content
3.4. Vagueness and Overbreadth: Possibility for Over-Censorship
ISSUE 4: Whether the notice issued by the Government to Seiji for the alleged violation
of valid in law?
It is humbly submitted before the Hon’ble High Court that notice issued by Government to
Seji for alleged violation of the Foreign Contribution Regulation Act,2010 is not valid on the
grounds:
4.1. Seiji is not a news aggregator
4.2. The contribution received from Axel Inc. is not unlawful
13
ARGUMENTS ADVANCED
Issue 1: Whether Blocking Indu’s access to the personal and official accounts of Prime
Minister, Cabinet Ministers, and the UNP on Seji is unlawful?
It is the contention of the Counsel of Petitioner in this case that blocking Indu and her group
from the official Seji account @PMofNanda and all other cabinet ministers Seji account, their
personal accounts and blocking by @UNP is not valid on the following grounds;
1.1. DENIAL TO THE ACCESS OF PUBLIC FORUM
1.1.1. As PM, his cabinet, UNP use their personal and official account of Seji to share
official notifications, circulars, information about Nanda and their political views and
Indu and her group were criticizing their policies of the governing country, and law
which could affect the country as that is very vague which talk about dividing states
based on an equal number of population in each state.
1.1.2. By this conduct, government has removed language criteria and this can affect people
of Nanda as Nanda is a diverse country various groups use their regional language as
a mode of communication. But this will create problems. And Indu and her group
were criticizing the same and this is very logical from the point of view of a
reasonable person and does not constitute a valid ground to deny access to the public
forums.
1.1.3. In the case of Knight First Amendment Inst. At Columbia Univ. v. Trump district
court of Virginia cited the doctrine of the the public forum and ruled that personal as
well as the official account of President Trump constitute modern public forum and
The District Court then held that President Trump’s blocking of these Twitter users
was discrimination based on the users’ viewpoints and impermissible under the First
Amendment. In July 2019, a three-judge panel for the U.S. Court of Appeals for the
Second Circuit unanimously affirmed the district court’s decision.
1.1.4. And this case is exactly the same as the current situation where the PM of Nanda, his
cabinet and opposition party has blocked Indu and her group. By this conduct they
have denied Indu and her group from accessing public forum.
14
1.2. Restrictrictions in fair criticism of the government
1.2.1. "All citizens shall enjoy the right to freedom of speech and expression," according to
Article 19(1) (a) of the Nandan Constitution. The rationale underlying this article can
be traced in the Constitution's Preamble, where a solemn resolution is made to
guarantee liberty of thought and expression to all of the country's citizens.
1.2.2. The freedom of speech under Article 19(1) (a) includes the right to express one’s
views and opinions at any issue through any medium, e.g. by words of mouth,
writing, printing, picture, film, movie etc.
1.2.3. Comments expressing disapprobation of the measures of the Government with a view
to obtain their alteration by lawful means, without exciting or attempting to excite
hatred, contempt or disaffection do not violate any rights of others and do not attract
anyone to come and violate rights of that concerned person.
1.2.4. The Madras High Court observed that fair criticism of the government triggers
better administration while quashing criminal proceedings initiated by the State
against a Congress MLA in 2015 on allegations that she had defamed then Chief
Minister J Jayalalithaa. In present case here is similar issue in which PM of Nanda,
his cabinet and Opposition Party are trying to ran away from criticism.
1.2.5. The Supreme Court observed in Union of India v. Assn. for Democratic Reforms,
"One-sided information, disinformation, misinformation and non-information, all
equally create an uninformed citizenry which makes democracy a farce. Freedom of
speech and expression includes the right to impart and receive information which
includes freedom to hold opinions". In present case PM of Nanda, his cabinet and
Opposition party has blocked Indu from their respective Seji account which is one of
the most used way to share circulars, information in Nanda that is not valid as per this
case.
1.2.6. In S. Rangarajan v.P. Jagjivan Ram, it was held that everyone has a fundamental
right to form his opinion on any issues of general concern. Open criticism of
15
government policies and operations is not a ground for restricting expression.
Intolerance is as much dangerous to democracy as to the person himself. In
democracy, it is not necessary that everyone should sing the same song. But in current
case PM of Nanda his cabinet as well as Opposition Party has blocked Indu that is
simply showing their intolerance.
1.2.7. Article 19 (2) of the Nandan constitution places limitations on freedom of Speech
expression under the following grounds:
I. state security,
II. cordial ties with foreign states.
III. public order,
IV. decency and morality,
V. contempt of court,
VI. defamation,
VII. inducement to commit a crime, and
VIII. India's sovereignty and integrity
Present case is as distilled water, and here Indu and and her group has not done
anything falling under category of restrictions provided under Article 19(2) of Nandan
Constitution.
16
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.
1.1. 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).
1.1.1. 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)2 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)3 of the Indican Constitution
The Shreya Singhal4judgment 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
multiple issues like defamatory content as the definition of defamation, obscene and vulgarity
2
¶ 7, Page 11, Annexure-2, Moot Proposition.
3
INDIAN CONST.art 19(1)(a).
4
Shreya Singhal v. Union of India, (2015) 5 SCC 1
13
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)5 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 & Ors6the 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 Bhansali7, 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.
1.1.2. 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
documentaries. it will be a clear violation of Article 19(1)(g) of the Indican constitution and
5
6
2020 SCC OnLine Del 625
7
(2018) 1 SCC 770
14
breaching test of reasonableness8 under Article 19(6)9 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 &Anr 10. 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 rules11 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.P12, 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.
In Mohd. Faruk v. State of M.P13, the Supreme Court of India held that a prohibition on the
8
Test of reasonableness under Article 19(2) and Article 19(6) of the Indican constitution
9
INDIAN CONST.art 19(6)
10
(2018) 1 SCC 778
11
12
1951 AIR 118
13
AIR 1958 SC 731.
15
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, 14the 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.
1.1.3. 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. Row15 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
other things, that are ambiguous in nature which will be a clear violation of the doctrine laid
down by Justice Sastri.
14
1971 AIR 481
15
State Of Madras v. V.G. Row.UnionOf India & State, 1952 AIR 196
16
1.1.4. 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.
1.2. SECTION 3 DOES NOT SATISFY THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
(UDHR) ACT, 1948
India is obligated to respect international law through Article51(c)16 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)17 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.]18 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.
ISSUE 3: CAN YULUBE HELD LIABLE UNDER SECTION 153A AND 295A OF THE INDICAN
PENAL CODE?
16
INDIAN CONST.art 51(c)..
17
¶7, 8, Page 11, Annexure-2, Moot Proposition.
18
¶4, 5, Page 12, Annexure-2, Moot Proposition.
17
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.
1.1. 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.19It 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 Chhattisgarh20, 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.
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
19
IndicanPenal Code 1860 § 153-A.
20
MANU/CG/0262/2021
18
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.21 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. 22, 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 Punjab23, 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
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
21
AIR 1997 SC 3483
22
AIR2021SC1632
23
AIR 1995 SC 1785
19
Manzar Sayeed Khan v. State of Maharashtra and anr24, 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.
1.2. YULU CANNOT BE HELD LIABLE FOR SECTION 295A OF THE INDICAN PENAL
CODE.
Section 295A25 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 Pradesh26 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.
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)27 and Article 19(1)(g)28 of the
24
AIR 2007 SC 2074
25
IndicanPenal Code 1860 § 295-A.
26
1957 AIR 620
27
INDIAN CONST.art 19(1)(a).
28
INDIAN CONST.art 19(1)(g).
20
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. YerraguntlaShyamsundar29, 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 others 30, 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 Bhuyan31, Justice MarkandeyKatju held that speech cannot be restrained
unless it triggers imminent unlawful action, citing Clarence Brandenburg v. State of Ohio32.
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).
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
29
(2017) 7 SCC 760
30
MANU/UC/0176/2016
31
Arup Bhuyan v. State of Assam, MANU/SC/0814/2014.
32
395 U.S. 444 (1969)
21
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.
PRAYER FOR RELIEF
22
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
23

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TEAM CODE: NMCC-14

12TH NATIONAL MOOT COURT COMPETITION, 2021

The Honorable High Court of Kalbari

ORGINAL WRIT JURISDICTION

PETITION FILED UNDER ARTICLE 226, CONSTITUTION OF NANDA

THE UNION OF NANDA…………………………….……………..………….RESPONDENT

COUNSEL ON THE BEHALF OF THE PETITIONERS

MEMORIAL ON BEHALF OF PETITIONERS

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

2.1. Section 3 contravenes Article-19(1)(a) and Article- 19(1)(g) of the Indican

2.1.1. Section 3contravenesArticle 19(1)(a) of the Indican constitution and is

MEMORANDUM ON THE BEHALF OF PETITIONER

Prayer for Relief.....................................................................................................................26

MEMORANDUM ON THE BEHALF OF PETITIONER

 Constitution of Indica, 1950.

 Indican Penal Code, 1860.

 Universal Declaration of Human Rights

Seji- A medium to circulate information

Reorganization of the States

What is said to be wrong in Indu’s Tweets?

IT (Intermediaries and Digital Media Ethics Code) Rules, 2021

Whether Rule 3 to 7 of the Information Technology (Guidelines for Intermediaries and

1.1. Denial to the access of Public Forum

1.2. Restrictrictions in fair criticism of the government

It is humbly submitted before the Hon’ble High Court that

ISSUE 3: Whether Rule 3 to 7 of the Information Technology (Guidelines for

3.2. Ultra vires to the IT Act

3.4. Vagueness and Overbreadth: Possibility for Over-Censorship

4.1. Seiji is not a news aggregator

4.2. The contribution received from Axel Inc. is not unlawful

1.1. DENIAL TO THE ACCESS OF PUBLIC FORUM

1.2. Restrictrictions in fair criticism of the government

THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA

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

India is obligated to respect international law through Article51(c)16 of the Indican

PRAYER FOR RELIEF

Counsel on behalf of Petitioner

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