P-TC 17

1st National Moot Court Competition

Maharashtra National Law University, Nagpur

In the Supreme Court of Indica

Writ Petition No. ………. Of 2022

Inflix Ltd & Others…………..………………………...……………Petitioners

Versus

Union of India & Others…………………………………………Respondents

Writ Petition under article 32 of the Constitution of India

Memorial for the Petitioner

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 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

ARGUMENTS ADVANCED..................................................................................................... 13

1. WHETHER THE MINISTRY OF ELECTRONICS AND INFORMATION TECHNOLOGY HAS

JURISDICTION TO PROMULGATE THE IT RULES 2022?............................................................... 13
1.1. WHETHER OTT PLATFORMS FALL UNDER THE AMBIT OF MEITY? ...................................... 13
1.2. WHETHER THESE RULES ARE VIOLATING ARTICLE 77(3) OF THE CONSTITUTION? ............... 13
2. WHETHER IT RULES 2022 UNCONSTITUTIONAL? ................................................................ 15
2.1. WHETHER IT RULES 2022 IN VIOLATION OF ARTICLE 21 AND ARTICLE 19? ......................... 15
2.2. WHETHER IT RULES ARE BEYOND THE AMBIT OF THE PARENT ACT I.E., IT ACT, 2000? ....... 17
3. WHETHER THE CINEMATOGRAPH ACT, 1952 IS APPLICABLE TO OTT PLATFORMS? ........ 18
3.1. WHETHER THE DEFINITION OF ‘CINEMATOGRAPH’ COVERS AUDIO-VISUAL CONTENT
EXHIBITED THROUGH THE OTT PLATFORM AND WEB SERIES EXHIBITED ON OTT PLATFORMS

COVERED UNDER ‘FILMS’? ............................................................................................................. 18

3.2. WHETHER THE NOTICE ISSUED UNDER SECTION 7 OF THE SAID ACT IS VALID? ..................... 19
4. IS THE APPLICATION FILED BY BLOCKBUSTER FILMS AND AMIT DEWAN UNDER SECTION
482 OF CRPC MAINTAINABLE? .................................................................................................... 20
4.1. WHETHER THERE IS MERIT IN THE PRESENT PETITION? ......................................................... 21

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4.2. WHETHER THE SUPREME COURT HAS THE POWER TO HEAR THE PETITION FILED IN THE HIGH
COURT UNDER SECTION 482 OF CRPC?.......................................................................................... 22

PRAYER ...................................................................................................................................... 24

3
 List of Abbreviations
1. MEITY – Ministry of Electronics and Information Technology
2. GOI – Government of India
3. OTT- Over the Top
4. OCC – Online Curated Content
5. AoB- Allocation of Business
6. ToB- Transaction of Business
7. IT – Information Technology
8. I&B – Information and Broadcasting
9. MIB – Ministry of Information and Broadcasting
10. SMI- Social Media Intermediaries
11. SSMI – Significant Social Media Intermediaries
12. CBFC - Central Board of Film Certification
13. JCFL – Johri Cine Films Limited
14. Sec. – Section
15. Art. – Article
16. Cr.P.C – Code of Criminal Procedure, 1973
17. IPC – Indian Penal Code
18. Ltd. – Limited
19. Etc. – Et cetera

4
 Index of Authorities
Statutes:
1. The Constitution of India, 1950
2. The Government of India (Allocation of Business) Rules, 1961
3. The Government of India (Transaction of Business) Rules, 1961
4. Information Technology Act, 2000
5. Information Technology (Blocking Rules), 2009
6. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code)
Rules, 2021
7. The Cinematograph Act, 1952
8. The Cable Television Networks (Regulation) Act, 1995
9. The Code of Criminal Procedure, 1973

Books:
1. Indian Constitutional Law, M.P. Jain, 8th Edition, 2018
2. R.V. Kelkar’s Criminal Procedure, 6th Edition, 2014
3. Introduction to the Constitution of India, D.D. Basu, 24th Edition, 2019

Cases:
1. MRF Ltd. v. Manohar Parrikar, (2010) 11 SCC 374 …………………………...…...Pg 13
2. Shamsher Singh v. State of Punjab, (1974) 2 SCC 831…………………………...…Pg 13
3. State of Karnataka v. H. Ganesh Kamath, (1983) 2 SCC 402……………………......Pg 16
4. Shreya Singhal v. Union Of India ( AIR 2015 SC 1523)………………………….....Pg 15
5. CBI v. Ravi Shankar Srivastava (AIR 2006 SC 8872)……………………………….Pg 22
6. State of Haryana v. Bhajan Lal (1992 Supp (1) 335)………………………………...Pg 22
7. Monica Kumar v. State of Uttar Pradesh (2008) 8 SCC 781…………………………Pg 21
8. Peggy Fen. v. CBFC, 2022 SCC OnLine Ker 785…………………………………...Pg 18
9. Padmanabh Shankar v. Union of India, 2019 SCC OnLine Kar 3087…………….…Pg 17
10. K.A. Abbas v. Union of India, (1970) 2 SCC 780………………………………...…Pg 16
11. Kodungallur Film Society v. Union of India, (2018) 10 SCC 713………….………..Pg 20
12. Patricia Mukhim v. State of Meghalaya, 2021 SCC OnLine SC 258………………...Pg 20
13. PUCL V Union of India, 1997 AIR SC 568………………………………………….Pg 15

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14. Nikhil Bhalla v Union of India, WP(C) No.7123/2018 and CM Appl. 27132/2018....Pg 19
15. Google India (P) Ltd. v. Visaka Industries, (2020) 4 SCC 162……………………....Pg 15
16. Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1………………..….Pg 20

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 Statement of Jurisdiction

The counsels representing the petitioners have endorsed their pleadings before the Hon’ble
Supreme Court of Indica under article 32 of the Constitution of Indica in which the Hon’ble
Court has writ jurisdiction.

Further the Hon’ble Court has taken cognisance of the related issues pending before various
High Courts through the powers granted to it under Article 139A (1) of the Constitution of
Indica.
Article 32 reads
“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 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”

Article 139A (1) reads

“Where cases involving the same or substantially the same questions of law are pending before
the Supreme Court and one or more High Courts or before two or more High Courts and the
Supreme Court is satisfied on its own motion or an application made by the Attorney General of
India or by a party to any such case that such questions are substantial questions of general
importance, the Supreme Court may withdraw the case or cases pending before the High Court
or the High Courts and dispose of all the cases itself: Provided that the Supreme Court may after
determining the said questions of law return any case so withdrawn together with a copy of its
judgment on such questions to the High Court from which the case has been withdrawn, and the
High Court shall on receipt thereof, proceed to dispose of the case in conformity with such
judgment”

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 Statement of Facts

• Indica games is a web series produced by M/s Johri Cine Films Limited (JCFL). It was
scheduled to be released on Inflix, an online streaming platform on May 5, 2022.
• On May 1, 2022, the Central Board of Film Certification (CBFC) issued a notice to JCFL
and Inflix directing them to obtain a certificate from CBFC prior to release. Regardless,
Indica games was released as scheduled.
• The CBFC issued a notice imposing a penalty under Section 7 of the Cinematograph Act,
1952. Aggrieved, On 15 May 2022, JCFL and Inflix filed a Writ Petition under Article
226 of the Constitution of Indica before the High Court of Bambil seeking quashing of
the notice issued by the Central Board of Film Certification.
• Meanwhile Political Heist, a satirical political drama based on rise of the ruling party
MHP, produced by Blockbuster Films was also released on the streaming platform Inzon
on May 5, 2022. Release of Political Heist was met with severe criticism by certain
sections of society and these sections caused huge public uproar and riots.
• This led to the filing of a FIR against Blockbuster films and it’s managing director, Mr.
Amit Dewan by Mr. Supriyo Gaikwad, a Member of Parliament belonging to the ruling
party MHP.
• On 16 May 2022, Inzon in a press release declared that every single complaint received
was reviewed by a three member independent committee and it was concluded that
Political Heist did not violate any religious sentiment, hence will continue to stream on
Inzon.
• Aggrieved by the said FIR, Blockbuster Films and Mr. Amit Dewan filed a Petition under
Section 482 of the Code of Criminal Procedure, 1973 before the Awadh High Court.
• Based on the uproar against Political Heist, on June 1, 2022 the Government of Indica
issued the Information Technology (Intermediaries Guidelines and Digital Media Ethics
Code) Rules, 2022 under the Information Technology Act, 2000.
• These rules directly affect the manner in which the content is being hosted on the OTT
platforms and are perceived to violate the freedom of speech and expression of
filmmakers and producers.

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• This prompted the Association of Film Producers to file a separate writ petition under
Article 226 of the Constitution of Indica before the High Court of Deli challenging the
constitutional validity of the said Rules.
• On June 05, 2022, Inflix and Inzon jointly filed a writ petition before the Supreme Court
of Indica under Article 32 of the Constitution of Indica alleging that OTT platforms
cannot be regulated by the Ministry of Information Technology.
• On June 10, the Hon’ble Supreme Court took cognisance of the proceedings pending
before the various high courts involving similar question of law and listed the petition for
hearing before a Constitution Bench on 30th July, 2022.

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 Issues Raised
1. Whether the Ministry of Electronics and Information Technology has Jurisdiction to
promulgate the IT Rules 2022?
1.1. Whether OTT platforms fall under the ambit of MEITY?
1.2. Whether these rules are violating Article 77(3) of the Constitution?
2. Whether IT rules 2022 unconstitutional?
2.1. Whether IT Rules 2022 in violation of article 21 and article 19?
2.2. Whether IT rules are beyond the ambit of the parent act i.e. IT Act, 2000?
3. Whether the Cinematograph Act, 1952 is applicable to OTT platforms?
3.1. Whether the definition of ‘cinematograph’ covers audio-visual content exhibited through
the OTT platform and web series exhibited on OTT platforms covered under ‘Films’?
3.2. Whether the notice issued under section 7 of the said act is valid?
4. Is the application filed by Blockbuster Films and Amit Dewan under section 482 of CrPC
maintainable?
4.1. Whether there is merit in the present petition?
4.2. Whether the Supreme Court has the power to hear the petition filed in the High Court
under section 482 of CrPC?

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 Summary of Arguments
1. Whether the Ministry of Electronics and Information Technology has Jurisdiction
to promulgate the IT Rules 2022?
There is no clear legislation present in the country that determines that OTT platforms fall under
the ambit of MEITY. On the evaluation of the content on OTT that is mostly movies, television
series, web series, it is fair to conclude that this is a subject matter of Ministry of Information and
Broadcasting. The Government of India (Allocation of Business) Rules, 1961 prescribed under
Article 77(3) defines clearly the jurisdiction and functions of all the union ministries. Through an
amendment of Allocation of Business Rules in 2020, ‘digital media’ and ‘online media’
now comes under the purview and remit of the I&B Ministry. Online curated content that
includes films, movies and web series falls under the ambit of Information and Broadcasting
ministry. Additionally, as per rule 3 of The Government of India (Transaction of Business)
Rules, 1961, the ministers are the officers answerable to the President in case any issue arises in
the domain allocated to them and only a minister who is assigned to a particular industry can
promulgate a legislation related to subject-matter covered by the said ministry. Also, in case of
issues affecting business of two or more industries, a proper procedure is to be followed as laid
down in rule 4(1) of the said rules. Since, the provisions of article 77(3) are mandatory in nature,
therefore, violation of these articles clearly depicts the procedural irregularities while
promulgating the said rules. Therefore, it is contended that promulgation of IT Rules 2022 is
beyond the jurisdiction MEITY.

2. Whether IT rules 2022 unconstitutional?

It is contended that the IT Rules are unconstitutional in two fold ways. Firstly, they infringe the
fundamental rights envisaged under part III of the Constitution. The lack of procedural safeguard
in accessing the private data of individuals by government agency and the need for removing
end-to-end encryption technology in order to provide such data is clear violation of right to
privacy. Similarly, defining additional constraints on type of content to be posted and giving the
intermediaries arbitrary power to remove or block such content, clearly harms the right of
freedom and expression. Secondly, the IT Rules 2022 go beyond the ambit of IT Act, 2000 by
making deliberations on subject of digital media which is nowhere within the ambit of its parent

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act. It also makes distinction between ‘social media intermediaries’ and ‘significant social media
intermediaries’ basis of which is absent in the original act.

3. Whether the Cinematograph Act, 1952 is applicable to OTT platforms?

OTT platforms are broadcasted through internet and it is a transaction where information is
provided to the user on demand in lieu of subscription paid by him. This does not fall under the
definition of cinematograph films exhibited and regulated under the Cinematograph Act, 1952.
Since online curated content does not fall under the ambit of The Cinematograph Act, 1952 and
therefore the notice issued for the web series cannot be valid as web series is an online curated
content not regulated under the said act. Additionally, there is no past precedence to support the
said action as OTT platforms have been growing and producing web series of similar nature
since 2016 and no action has been taken by the Central Board of Film Certification in this regard.
Therefore it is contended that OTT platforms do not fall under the ambit of the said act and the
notice under section 7 is not valid.

4. Is the application filed by Blockbuster Films and Amit Dewan under section 482 of
CrPC maintainable?
The Supreme Court is empowered by virtue of article 142 and 32 to pass any order to uphold the
values instilled in the Constitution, maintain fairness, and ensure there is no miscarriage of
justice. It is contended that the FIR against Blockbuster Films is frivolous and done with a view
to seek vengeance against citizens exercising their artistic freedom and it should be quashed
immediately to avoid any misuse of process of law and injustice.

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 Arguments Advanced
1. Whether the Ministry of Electronics and Information Technology has Jurisdiction to
promulgate the IT Rules 2022?
It is respectfully submitted that the Ministry of Electronics and Information Technology has no
jurisdiction to promulgate majority sections of the IT Rules 2022 as it tends to go beyond the
business allocated to the said ministry as per the Government of India (Allocation of Business)
Rules 1961. We simultaneously submit that the IT Rules go beyond the scope of enabling
legislation i.e. IT Act, 2000 and attempt to regulate subject matter beyond the scope of parent act
there by being ultra vires.
1.1. Whether OTT platforms fall under the ambit of MEITY?
It is submitted that the online curated content and digital media do not fall under the Ministry of
Electronics and Information Technology. As per the Allocation of Business (AoB) Rules, 19611,
the task of regulating matters relating to cyber laws, internet, and administration of the
Information Technology Act, 2000 (IT Act) and other IT related laws had been allotted to the
Ministry of Electronics and Information Technology. Similarly, the regulation of traditional
media: print, radio and television, is usually under the ambit of the Ministry of Information and
Broadcasting (I&B Ministry). As per the notification issued under article 77(3) by the President
in 2020, digital media and online content also falls under the jurisdiction of MIB2. In the present
case, it is contended that the IT Rules 2022 promulgated by MEITY make provisions and
attempts to regulate subject-matter beyond its jurisdiction i.e. digital media and online media.

1.2. Whether these rules are violating Article 77(3) of the Constitution?
Article 77(3) of the constitution lays down following:
“77. Conduct of business of the Government of India.
(3) The President shall make rules for the more convenient transaction of the business of the
Government of India, and for the allocation among Ministers of the said business.”
Pursuant to this article, the Government of India (Allocation of Business) Rules 1961 were
promulgated, allocating the Union Government’s business for different ministries and
departments. Additionally, the President also promulgated The Government of India

1
The Government of India (Allocation of Business) Rules, 1961
2
https://cabsec.gov.in/writereaddata/allocationbusinessrule/amendment/english/1_Upload_2604.pdf

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(Transaction of Business) Rules, 19613. The objective of enacting allocation and transaction of
business rule is smooth transaction of business laying down the procedure for promulgation of
legislation under different ministries and procedure to be followed in case of conflict between
two ministries or departments.
The decision of any Minister or officer under Rules of Business made under any of the two
Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These
articles did not provide for any delegation. Therefore, the decision of a Minister or officer under
the Rules of Business is the decision of the President or the Governor. 4 It was also held that
business laws framed under article 166(3) are mandatory and must be adhered to. Any decision
in the breach of these rules is null in the eyes of law. 5
In the present case, there is a clear violation of rule 3 of the Transaction of Business rule
which lays the following:
“3. Disposal of Business by Ministries. - Subject to the provisions of these Rules in regard to
consultation with other departments and submission of cases to the Prime Minister, the Cabinet
and its Committees and the President, all business allotted to a department under the
Government of India (Allocation of Business) Rules, 1961, shall be disposed of by, or under the
general or special directions of, the Minister-in-charge.”
It is well understood that the regulation of traditional media platforms is done by the Ministry of
Information and Broadcasting and even the government, by the 357th Amendment of the
Allocation of Business Rules 1961, has allocated digital and online media under the jurisdiction
of MIB. Promulgation of IT Rules by the MEITY is therefore, in contravention to the rule stated
above.
Additionally, whenever there is a conflict between two ministries, or legislation has to be made
that affects the business transactions of two or more ministries, the transaction of business rules
clearly lay down the procedure to enact such legislations. As per rule 4(1)
“4. Inter-Departmental Consultations.-

3
The Government of India (Transaction of Business) Rules, 1961
4
Samsher Singh v. State of Punjab, (1974) 2 SCC 831
5
MRF Ltd. v. Manohar Parrikar, (2010) 11 SCC 374

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(1) When the subject of a case concerns more than one department, no decision be taken or
order issued until all such departments have concurred, or, failing such concurrence, a decision
thereon has been taken by or under the authority of the Cabinet.
Explanation- Every case in which a decision, if taken in one Department, is likely to affect the
transaction of business allotted to another department, shall be deemed to be a case the subject
of which concerns more than one department.”
Given the circumstances in which the IT Rules were made i.e., in the situation of haste after a
riots over the feature film Political Heist6, there was no consultation between the Ministry of
I&B and MEITY. This depicts a clear procedural irregularity with the promulgation of the rules.
On the basis of procedural irregularities and violation of Rule 3 of AoB, we contend that the IT
Rules were promulgated without jurisdiction.

2. Whether IT rules 2022 unconstitutional?

It is respectfully submitted that IT Rules 2022 are unconstitutional on the ground that they are in
violation of article 19 and 21 and ultra vires the IT Act, 2000. As per article 13, any law
infringing the fundamental rights beyond the scope of reasonable restrictions is against the basic
structure of the Constitution. Any law promulgated beyond the scope of its enabling provision is
null and void.
2.1. Whether IT Rules 2022 in violation of article 21 and article 19?
A comprehensive reading of IT Rules 2022 issued by Government of Indica reveals a
requirement for social media intermediaries to disclose the information of the first originator of a
message7 in certain circumstances without any restrictions on the extent and type of information
sought. The authorities have the right to even sought personal data of the users for the purpose of
investigation. Even though there is a mechanism which mandates intermediaries to provide
information within 72 hours of such request, it lacks any procedural safeguards. Additionally, in
order to comply with storing information and being able to provide it as per demand, it requires
the social media intermediaries to get rid of end-to-end encryption technology.

6
Paragraph 12 of the Moot Proposition
7
Rule 3.1(j), IT Rules 2022

15
End-to-end encryption technology is crucial for data and privacy protection and cannot work
when such an obligation is imposed on the social media intermediaries 8. In order to retrieve the
information of first originator of a message the social media intermediaries will be forced to get
rid of end-to-encryption which would clearly harm the Right to Privacy envisaged under article
21 of the constitution. It has been held by the apex court that wherever an interception needs to
be done for the purpose of criminal investigation or the government choses to intervene on the
right to privacy of a person within the reasonable restrictions, such intervention shall be aided by
defining a proper procedure inculcating the values of rule of law 9. These aspects of the rules go
against Right to Privacy envisaged under article 21 of the Constitution.

It is contended that the grounds for restricting online content go overboard and negatively affect
the freedom of speech and expression. The Constitution of Indica lays down certain reasonable
restrictions on freedom of speech and expression on grounds of national security, public order,
decency and morality10. Part II of the code goes beyond these reasonable restrictions and defines
certain other situations11 where the social media intermediary is bound to inform the user of non-
compliance with the rules and can terminate their access to the platform in case of non-
compliance12. The rules make it mandatory for the intermediaries to ask users to practice
restraint in their service agreements and allow them to interpret and decide the lawfulness of the
content. There are a lot of provisions in the rules which are not properly defined and require the
content to be restrained causing a lot of ambiguity. The other restriction defined are subjective in
nature and against the Supreme Court’s order that a restriction on speech, in order to be
reasonable, must be narrowly tailored as to restrict only what is absolutely necessary 13.
The provisions regarding blocking of content in case of emergencies, authorizes the secretary of
MIB to pass an interim direction for blocking content without giving the publisher’s a chance of
hearing14. The order will later be examined by the inter-department committee under MIB which
will have the power to unblock the content should it find it unreasonable. This is problematic in

8
Google India (P) Ltd. v. Visaka Industries, (2020) 4 SCC 162
9
PUCL v Union of India (1997 AIR SC 568)
10
Article 19, Constitution of India
11
Clause 3.1(b) of Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules, 2021.
12
Clause 3.1(c) of Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules, 2021.
13
Shreya Singhal v. Union Of India ( AIR 2015 SC 1523)
14
Clause 16 of Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules, 2021.

16
two-fold ways, firstly there is no hearing of the publisher on passing of interim order which is
not a fair and just process, secondly, there are no safeguards provided for the publisher whose
content was taken down without legitimate cause, thereby temporarily harming his freedom of
speech and expression 15.
It was held under the KA Abbas Case16 that whether a content is obscene, immoral or against
public decency should be adjudged by looking at it as a whole. In a scenario where there is
arbitrary power to the secretary to block any content the ministry finds objectionable, without
hearing the case of publisher, it will always be a matter of question if the content being blocked
is actually objectionable.

2.2. Whether IT rules are beyond the ambit of the parent act i.e., IT Act, 2000?
It is contended that the IT Rules ultra vires its parent act i.e. the IT Act, 2000. It is well
established by various judgements of the Supreme Court that a rule must not alter the provisions,
or scope, or principles of the enabling legislations 17. The present rules ultra vires the enabling
act on three grounds:
Firstly, the creation of distinction between ‘social media intermediaries’ and ‘significant social
media intermediaries’ finds no scope or specification in the parent act. Additionally, an extra set
of obligations for due diligence has been imposed on the SSMIs such as identification of first
originator of message and deploying technology based measures to proactively identify certain
types of information on the best effort basis18. This provision clearly goes beyond the powers
delegated under the IT Act, 2000.
Secondly, the act requires intermediaries to store the information of users for 180 days and
provide the information related to any user on demand of relevant authorities on certain grounds.
The requirement for identification of the first originator of a message has no related provision in
the enabling act.
Thirdly, the rules attempt to regulate digital media and online publishers and ensure that
community standards are reflected in content accessible by the public. Traditionally, such
content has always been regulated by the Ministry of I&B, and as per the amendment of 2020 in

15
Clause 16 of Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules, 2021.
16
K.A. Abbas v. Union of India, (1970) 2 SCC 780
17
State of Karnataka v. H. Ganesh Kamath, (1983) 2 SCC 402
18
Clause 4 of Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules, 2021.

17
AoB, it falls under the ambit of MIB. The IT Act, 2000 does not have any provisions related to
regulation of content on digital media and OTT Platforms.

3. Whether the Cinematograph Act, 1952 is applicable to OTT platforms?

OTT platforms do not fall under the ambit of the Cinematograph Act as held in various
judgements elaborated below. Consequently, we contend that the notice issued is not valid and
relief shall be granted to Inflix and JCFL by quashing the notice issued.
3.1. Whether the definition of ‘cinematograph’ covers audio-visual content exhibited
through the OTT platform and web series exhibited on OTT platforms covered
under ‘Films’?
The Cinematograph Act, 1952 was made with an objective to regulate the theatre films and it
was promulgated in the time where the concept of digital media and online curated content did
not exist. According to the Cinematograph act,
“2(c) “cinematograph” includes any apparatus for the representation of moving pictures or
series of pictures;
2(dd) “film” means a cinematograph film;”
It is evident from the definition that the meaning of a cinematograph film is limited and does not
take a retrospective view to accommodate any future technology. It only deals with the
certification of cinematograph films and nothing more. As per the Cable Television Networks
(Regulations) Act, the definition of program and programming service is slightly wider -
“2 (g) “programme” means any television broadcast and includes—
(i) exhibition of films, features, dramas, advertisements and serials 3 ***;
(ii) any audio or visual or audio-visual live performance or presentation,
and the expression “programming service” shall be construed accordingly;”
But, it is notable that all of these acts that have been regulating content in traditional modes of
exhibitions i.e. theatres and televisions, do not account for the regulation of content in sphere of
digital media and OTT platforms. It is evident from the preamble and the provisions of both
these acts that they do not tend to include content on OTT platforms within the meaning of
content they regulate19. OTT is different than the traditional mode of transmission as it does not

19
Padmanabh Shankar v. Union of India, 2019 SCC OnLine Kar 3087

18
fall under public place. Unless someone demands a certain content and pays subscription money
for it, they cannot access the content20.
Presently, the OTT platforms are regulated by the IT Rules 2021. The IT Rules defines the terms
‘On demand’, ‘Online Curated Content’ and ‘Publisher of online curated content’ under section
2(p), 2(q) and 2(u) respectively-
‘On demand’ means where a user or viewer is enabled to access, at a time chosen by such user,
any content in electronic form, which is transmitted over a computer resource and is selected by
the user;
‘Online curated content’ means any curated catalogue of audio-visual information, other than
news and current affairs content, made available on demand, including but not limited through
subscription, over the internet or computer networks, and includes films, television programmes,
serials, podcasts and other such information;
‘publisher of online curated content’ means a publisher which makes available to users a
computer resource that enables such users to access online curated content over the internet or
computer networks, but does not include an intermediary which merely enables access to online
curated content, or which merely enables users to access third party information;

It is evident from the above definitions that they are made with a better understanding of the
technology and are referring to the OTT platforms as we know them. On the basis of the above
definitions, it is contended that the definition of Cinematograph does not cover the audio visual
content exhibited through the OTT platforms.

3.2. Whether the notice issued under section 7 of the said act is valid?
The relevant provisions of section 7 of the cinematograph Act are-
“7. Penalties for contraventions of this Part.—
[(1) If any person—
(a) exhibits or permits to be exhibited in any place—
(i) any film other than a film which has been certified by the board as suitable for unrestricted
public exhibition or for public exhibition restricted to adults 6 [or to members of any profession

20
Peggy Fen. v. CBFC, 2022 SCC OnLine Ker 785

19
or any class of persons] and which, when exhibited, displays the prescribed mark of the Board
and has not been altered or tampered with in any way since such mark was affixed thereto,”
The provision is also applicable to the exhibition of films and content displayed in the Cable TV
in case of non-compliance with the rules laid down in the regulating acts 21. As per the law, any
film or Cable TV program that is going to be exhibited to the public requires to be certified by
the Central Board of Film Certification22.
We respectfully bring the attention of the court to the fact that the subject matter in question i.e.,
Indica Games is neither a film nor a television series. It is a web series23, which is a subject
matter beyond the scope of regulation of the Cinematograph Act and Cable TV Act.
Additionally, we would like to emphasize that there is lack of proper legislation to deal with
OTT platforms and the Supreme Court has directed the government to come up with a proper
mechanism to regulate the content on online platforms24.
Secondly, OTT platforms have been growing their access since 2016 25 and have published
significant amount of content, none of which has been regulated by the CBFC or the
Cinematograph Act in the past years. Inflix and JCFL were in no violation of any provisions of
the act under which the notice has been issued as their web series is beyond the scope of
regulation of the act.
We respectfully submit that the notice is not valid and any action taken to impose such penalties
is going beyond the scope of law. We therefore, seek a relief to be granted to us.

4. Is the application filed by Blockbuster Films and Amit Dewan under section 482 of
CrPC maintainable?
It is contended that the petition filed seeking relief under section 482 of CrPC is maintainable
before the Hon’ble Supreme Court. Initiation of criminal proceedings against a film maker who
is exercising his/her artistic freedom under Article 19(1) is quelching the fundamental rights
envisaged under part III of the Constitution.

21
Section 21 of the Cable TV Network (Regulation) Act 1995
22
Section 3 and 4 of The Cinematograph Act, 1952
23
Paragraph 9 of the Moot Proposition
24
Nikhil Bhalla v Union of India, WP(C) No.7123/2018 and CM Appl. 27132/2018
25
Paragraph 7 of the Moot Proposition

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 4.1. Whether there is merit in the present petition?
Fundamental rights are being harmed and there should be no criminal proceedings against person
who is exercising with innocence their freedom of expression and speech. In the present case,
there was a huge uproar by certain sections of the society against the release of Political Heist, a
feature film produced by Blockbuster Films and broadcasted by Inzon 26. The current FIR is filed
by a Member of Parliament who is also a member of the ruling party, rise of which is integral
part of the storyline of feature film in question. It is well settled by the apex court in certain cases
that the artistic freedom and freedom to speech and expression shall not be burgeoned by
initiating frivolous criminal proceedings against the person exercising and enjoying such
fundamental right27. When a criminal proceeding is initiated against a person for exercising their
artistic freedom and to threaten their fundamental right and blames them for actions of certain
sections of society that depict hyper vigilantism, it only depicts inadequacy on the part of the law
and order system which should have been able to suppress these mobs that often take the rule of
law in their own hands. Incitement of violence and riots cannot be blamed on an artist who
within the ambit of his artistic freedom creates something and depicts it in a rightful set up28. It
is rightfully held by the apex court that disapproval or criticism of government action or
disapprobation of ruling party cannot be considered as promoting hate speech or incitement of
violence. Free speech of the citizens of this country cannot be stifled by implicating them in
criminal cases, unless such speech has the tendency to affect public order 29. In the present case as
well, a feature film merely based on the rise of ruling party cannot be blamed for incitement of
violence as it is purely a way of exercising artistic freedom.
We would also like to bring to the notice of the court that the OTT platform broadcasting the said
series has also done a separate investigation to check whether the content of the film is capable
of inciting violence by setting up an independent committee of community and field experts. The
committee has held that there is nothing in the said feature film that hurts religious sentiments30.
The film industry in the country has a long and rich history and has been used to represent the
minorities and diversities of the country from different perspectives 31. Stifling the right of

26
Paragraph 11 of the Moot Proposition
27
Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1
28
Kodungallur Film Society v. Union of India, (2018) 10 SCC 713
29
Patricia Mukhim v. State of Meghalaya, 2021 SCC OnLine SC 258
30
Paragraph 11 of the Moot Proposition
31
Paragraph 3 and 5 of the Moot Proposition

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people who provide this platform for the expression of multiple perspectives on different issues
using art and entertainment would be nothing short of grave misuse of the process law and injury
to their fundamental rights. We therefore, request the court to consider the merit of the present
petition and quash the criminal proceedings initiated against Blockbuster Films and Mr. Amit
Dewan.

4.2. Whether the Supreme Court has the power to hear the petition filed in the High
Court under section 482 of CrPC?
Since HC can deliberate on issues under section 482, by the virtue of being higher in the
hierarchy and through the power granted by article 142, the Supreme Court can take cognizance
on the issue. It was held by the Supreme Court32 –

“Under article 142 of the Constitution of India, the Supreme Court in exercise of its jurisdiction
may pass a decree or make such orders as it is necessary for doing complete justice in any
“cause” or “matter” pending before it. The expression “cause” or “matter” would include any
proceedings pending in court and it would cover almost every kind of proceeding in court
including civil or criminal. If the court is satisfied that the proceeding is in a criminal case are
being utilised for oblique purposes or if the same are continued or manufactured and false
evidence or if no case is made out on the admitted facts, it would be in the ends of justice to set
aside or quash the criminal proceedings. Once the supreme court is satisfied that the criminal
proceedings amount abuse of process of court, it would quash the proceedings to ensure justice.”

It was also held though there is no specific provision like Section 482, Cr.P.C. conferring express
powers on the SC to quash or set aside any criminal proceedings pending before a criminal court
to prevent abuse of process of the court, but the inherent power of the SC under article 142
coupled with the plenary and residuary powers under article 32 and 136 embraces power to

32
Monica Kumar v. State of Uttar Pradesh (2008) 8 SCC 781

22
quash criminal proceedings pending before any court to do complete justice in the matter before
the SC. The SC’s power under article 142(1) to do “complete justice” is entirely of different
level and of different quality.

Secondly, we accept the contention that power exercised under section 482 is an exception and
not the rule33 and such powers shall only be exercised in certain circumstances as prescribed
under various judgements of the Supreme Court. It was held in State of Haryana v. Bhajan Lal34
that section 482 shall be instituted in rarest of the rare cases and one of the cases enlisted is -
“7. where a criminal proceeding is manifestly attended with malachite and/or where the
proceeding is maliciously instituted with an ulterior motive for reaching vengeance on the
accused and with a view to spite him due to private and personal grudge.”
In the present case, it is evident that the feature film made by Blockbuster Films and Amit
Dewan targeted the rise of the ruling party MHP and the case is also filed by a Member of
Parliament belonging MHP35. This is a clear case of malicious use of the justice system and it is
contended that continuation of proceedings against the Blockbuster films and Amit Dewan
would be unjust to the parties on account of restricting their freedom of speech and misuse of the
justice system.

33
CBI v. Ravi Shankar Srivastava (Appeal (Crl.) 36 of 2006
34
State of Haryana v. Bhajan Lal (1992 Supp (1) 335)
35
Paragraph 11 of the Moot Proposition

23
 Prayer
In the light of issues raised, arguments advanced and authorities cited, it is most humbly prayed
that in the interest of justice, the Hon’ble Court may be pleased to:

1. Declare the promulgation the Information Technology (Intermediary Guidelines

and Digital Media Ethics Code) Rules, 2022 beyond the scope of Ministry of
Electronics and Information Technology.
2. Declare the Information Technology (Intermediary Guidelines and Digital Media
Ethics Code) Rules, 2022 unconstitutional and ultra vires.
3. Dismiss the notice issued under section 7 of Cinematograph Act, 1952 against
M/s. Johri Cine Films Limited and Inflix.
4. Quash the FIR registered against Blockbuster Films and Amit Dewan.

Pass any other order as it may deem fit, in the interest of justice, equity and good conscience.

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