Bench Draft P

TEAM CODE- XX P
HON’BLE JUSTICE D.R. DHANUKA 1ST

NATIONAL MOOT COURT COMPETITION,
2022
BEFORE THE HON’BLE SUPREME COURT

OF AKHANDA
(IN THE MATTER VIOLATION OF FUMDAMENTAL RIGHTS)
WRIT PETITION (CIVIL) NO.: ___/2022
MOHAMMAD SULLAH & ANR.…………….…………………...…………(PETITIONER)
VERSUS
UNION OF AKHANDA. ...………………………..…………...…………...(RESPONDENT)
ALONG WITH
AUKL & ORS. ……...………………..……………………………………….(PETITIONER)
VERSUS
UNION OF AKHANDA. ...………………….….……………...…………...(RESPONDENT)
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDICA
Most reverently submitted to the learned Judges of the Hon’ble Supreme Court of
Akhanda
MEMORIAL ON BEHALF OF THE PETITIONER

HON’BLE JUSTICE D.R. DHANUKA 1ST NATIONAL MOOT COURT COMPETITION, 2022
TABLE OF CONTENT
CONTENTS
LIST OF ABBREVIATIONS...................................................................................................III
INDEX OF AUTHORITIES.................................................................................................... IV
STATEMENT OF JURISDICTION........................................................................................ VI
STATEMENT OF FACTS......................................................................................................VII
ISSUES RAISED......................................................................................................................IX
SUMMARY OF ARGUMENTS...............................................................................................X
ARGUMENTS ADVANCED...................................................................................................1
ISSUE 1..........................................................................................................................1
THE WRIT PETITON FILED BY THE PETITIONERS IS MAINTAINABLE

BEFORE THE HON’BLE SUPREME COURT OF INDICA......................................1
1.1 THE PETITIONERS IS HAVING LOCUS STANDI ...................................................................1
1.2 ALTERNATIVE REMEDY NOT A BAR...................................................................................2
1.3 CLEAR VIOLATION OF FUNDAMENTAL RIGHTS.....................................................3
ISSUE 2..........................................................................................................................6
THE CENTRAL BOARD OF FILM CERTIFICATION LACKS THE AUTHORITY

TO CENSOR DIGITAL CONTENT BROADCAST ON OTT PLATFORMS
CREATED BY THE ONLINE CURATED CONTENT PROVIDERS.......................6
2.1 THE ACT OF CENSORING CONTENT AIRING ON OTT PLATFORMS BY THE CBFC IS
ULTRA VIRES THE CINEMATOGRAPH ACT, 1952.....................................................................6
2.2 CBFC HAS NO PROVISION UNDER CINEMATOGRAPH ACT 1952 TO IMPOSE PENALTY
UNDER SECTION 7 OF THE ACT ON OTT PLATFORMS............................................................8
2.3 THE NOTICE ISSUED BY THE CBFC TO THE OTT PLATFORM FOR OBTAINING A
CERTIFICATE FOR AIRING THE DIGITAL CONTENT IS CONSTITUTIONALLY INVALID............9
ISSUE 3........................................................................................................................11
THE INFORMATION TECNOLOGY (INTERMEDIARES GUIDELINES AND

DIGITAL MEDIA ETHICS CODE) RULES, 2022, ISSUED UNDER THE
INFORMATION TECHNOLOGY ACT, 2000, LIMITS THE FREEDOM OF
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MEMORIAL ON BEHALF OF THE PETITIONERS
ONLINE DIGITAL CONTENT PROVIDERS AND IS THUS

UNCONTITUITIONAL..............................................................................................11
3.1 SCREENING AND RESTRAINING OF DIGITAL CONTENT BY THE GOVERNMENT THROUGH

NEW RULES VIOLATES THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION
GUARANTEED UNDER ARTICLE 19 (1) A.................................................................................11
3.3 THE PROVISION GIVEN UNDER INTERMEDIARIES RULES 2022 FOR CONTENT
TAKEDOWN CANNOT BE JUSTIFIED AS REASONABLE RESTRICTIONS UNDER ARTICLE
19(2).........................................................................................................................................14
3.4 THE INTERMEDIARIES GUIDELINES AND DIGITAL MEDIA ETHICS CODE RULES, 2022
ULTRA VIRES THE INFORMATION TECHNOLOGY ACT 2000................................................15
3.5 THE MINISTRY OF ELECTRONICS AND INFORMATION TECHNOLOGY (MEITY)’S LACK

OF POWER TO REGULATE "DIGITAL MEDIA".......................................................................16
3.6 LACK OF CLARITY IN DEFINING CERTAIN PHRASES LIKE "ILLEGAL" OR

"OBJECTIONABLE CONTENT" IN INTERMEDIARIES GUIDELINES LEADS TO OVER-
CENSORSHIP............................................................................................................................17
ISSUE 4........................................................................................................................18
THE PETITIONER CANNOT BE HELD LIABLE UNDER INDICAN PENAL

CODE FOR PUBLIC OUTRAGE...............................................................................18
4.1 CRIMINALIZATION OF SPEECH IS ONLY PERMITTED IF IT INCITES “IMMINENT

LAWLESS ACTION”.................................................................................................................19
4.2 PETITIONERS CANNOT BE HELD LIABLE UNDER IMPUGNED SECTION OF IPC.............19
PRAYER..................................................................................................................................21
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LIST OF ABBREVIATIONS
HON’BLE HONORABLE
& AND
V. VERSUS
ANR. ANOTHER
ART. ARTICLE
ORS. OTHERS
CBFC CENTRAL BOARD OF FILM CERTIFICATION
SCC SUPREME COURT CASES
AIR ALL INDIA REPORTER
SCR SUPREME COURT REPORTS
CR.L.J CRIMINAL LAW JOURNAL
CORP. CORPORATION
VOL. VOLUME
CO. COMPANY
PVT. PRIVATE
LTD. LIMITED
SEC. SECTION
PIL PUBLIC INTEREST LITIGATION
IT INFORMATION TECHNOLOGY
IB INFORMATION BROADCASTING
SC SUPREME COURT
OTT OVER-THE-TOP
IPC INDIAN PENAL CODE
HC HIGH COURT
ETC. ET CETERA
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INDEX OF AUTHORITIES
I. STATUTES REFERRED:
1. THE CINEMATOGRAPH ACT, 1952
2. INFORMATION TECHNOLOGY ACT 2000
3. INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES) RULES, 2011
4. INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS

CODE), 2021
II. BOOKS REFERRED:

1. THE CONSTITUTION OF INDIA BY DURGA DAS BASU
III. TABLE OF CASES:
CASES
1. A.K. ROY, ETC V. UNION OF INDIA & ANR., 1982 AIR 710...........................................26
2. ARUP BHUYAN V. STATE OF ASSAM, (2011) 3 SCC 377................................................28
3. ARUP BHUYAN V. STATE OF ASSAM, (2011) 3 SCC 377................................................28
4. ASHUTOSH DUBEY V. NETFLIX, INC & ORS, 2020 SCC ONLINE DEL 625.....................22
5. AVINDER SINGH V. PUNJAB, (1979) 1 S.C.C. 137..........................................................26
6. BALWANT SINGH V. STATE OF PUNJAB, (1995) 3 SCC 214............................................29
7. BENNETT COLEMAN & CO. V. UNION OF INDIA, (1978) 1 SCC 248..............................21
8. BOBBY ART INTERNATIONAL V. OM PAL SINGH HOON, (1996 ) 4 SCC 1........................26
9. BOMBAY DYEING AND MFG. V. BOMBAY ENV. ACTION GRP., (2006) 3 SCC 434...........24
10. BRIJBHUSHAN V. THE STATE OF DELHI, [1950] S.C.R. 605...........................................20
11. CHINTAMANRAO .V STATE OF M.P, 1951 AIR 118.........................................................23
12. CHIRANJIT LAL CHOWDHURY V. UNION OF INDIA, AIR 1951 SC 41..............................12
13. CPIO V. SUBHASH CHANDRA AGGARWAL..................................................................22
14. CPIO V. SUBHASH CHANDRA AGGARWAL, (2019) SCC 1459........................................22
15. DIRECTORATE GENERAL OF DOORDARSHAN V ANAND PATWARDHAN, (2006) 8 SCC 433
......................................................................................................................................18
16. DR. RAM MANOHAR LOHIA V. STATE OF BIHAR, 1966 SCR (1) 709...............................28
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17. EXPRESS NEWSPAPERS (P) LTD. V. UNION OF INDIA, (1986) 1 SCC 133.......................21
18. HARAKCHAND V. INDIA, (1970) 1 S.C.J. 479.................................................................26
19. HARBANSAL SAHNIA V. INDIAN OIL CORPORATION LTD., AIR 2003 SC 2120................14
20. HUSSAINARA KHATOON & ORS V. HOME SECRETARY, STATE OF BIHAR, 1979 AIR 1369
......................................................................................................................................14
21. INDIAN BANKS ASSOCIATION, BOMBAY & ORS. V. M/S DEVKALA CONSULTANCY SERVICE
AND ORS, (2004) INSC 287............................................................................................13
22. INDIBLY CREATIVE V. GOVERNMENT OF WEST BENGAL, (2020) 12 SCC 436.................24
23. JUSTICE FOR RIGHTS FOUNDATION V. UNION OF INDIA, WP (C) 11164/2018...............18
24. K.K. KOUCHUNNI V. STATE OF MADRAS, AIR 1959 SC 725.........................................14
25. LIC V. MANUBHAI D. SHAH, (1992) 3 SCC 637............................................................24
26. MAHENDRA SINGH DHONI V. YERRAGUNTLA SHYAMSUNDAR, 2017 SCC 450.................30
27. MANZAR SAYEED KHAN V. STATE OF MAHARASHTRA, (2007) 5 SCC 1...........................29
28. MOHD. FARUK V. STATE OF M.P., AIR 1958 SC 731...................................................23
29. NEW YORK TIMES V. SULLIVAN, 376 US 254 (1964)......................................................24
30. ODYSSEY COMMUNICATIONS PVT. LTD. V. LOKVIDAYAN SANGHATANA, (1988) 3 SCC
410................................................................................................................................21
31. R. RAJGOPAL V. STATE OF TAMIL NADU, (1994) 6 SCC 632.........................................24
32. RE DELHI LAWS ACT, (1951) S.C.J. 527.......................................................................26
33. ROMESH THAPPAR V. STATE OF MADRAS, (1914) L.R. 41 I.A. 149...............................20
34. S.P. GUPTA V. UNION OF INDIA, AIR 1982 SC 149......................................................14
35. SAKAL PAPERS V. UNION OF INDIA, AIR 1962 SC 305..................................................22
36. SECRETARY, MINISTRY OF I & B V. CRICKET ASSOCIATION OF BENGAL, (1995) 2 SCC
161................................................................................................................................21
37. SHREYA SINGHAL V. UNION OF INDIA, (2015) 5 SCC 1.................................................26
38. SRI BARAGUR RAMCHANDRAPPA V. STATE OF KARNATAKA, 2007 3 SCC 11...................29
39. STATE OF BOMBAY V. UNITED MOTORS LTD., AIR 1953 SC 252...................................14
40. STATE OF HARYANA & ORS. V. BHAJAN LAL & ORS., 1992 SUPP (1) SCC 335..............30
41. STATE OF KARNATAKA AND ANOTHER V. GANESH KAMATH & ORS, 1983 SCR (2) 665. 25
42. STATE OF MADRAS V. V.G. ROW, 1952 AIR 196...........................................................23
43. STATE OF U.P. V RAJ NARAIN, (1975 AIR 865).............................................................28
44. VIRENDRA V. THE STATE OF PUNJAB, [1958] S.C.R. 308..............................................21
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STATEMENT OF JURISDICTION
The Hon’ble Supreme Court has the original jurisdiction to hear the petition under Article 32
of the constitution of India.
Article 32 of the Constitution of India which reads as follows:
“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 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.”
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STATEMENT OF FACTS
1. Indica is a sovereign, socialist, secular, democratic and republic country situated in the
South – Asian region with approximately 80% Hindus, 15% Muslims and the remaining
5% from other minorities. Upon independence from British, the people of Indica adopted
a common law system and a Constitution. The laws of Indica and the Constitution of
Indica are pari materia to the laws of India and the Constitution of India, respectively.
2. Post its independence, various sectors of the economy in the Republic of Indica showed
immense potential for growth and development. The film and movie industry was one
such sector. By 1950, the Indican film industry was officially producing 100
cinematographic films, in Hindi and vernacular languages, in a year.
3. With the advent of television, the Indican Film Industry also started producing serials,
reality shows and other content for television. Around this 2014-15, the Ministry of
Telecommunications announced the launch of spectrum to enable 4G services in the
country. Thus, the overall number of users of the smartphones and 4G services increased
exponentially within a period of 2 years. Notably, in 2016, as per an independent survey
conducted, it was estimated that there were approximately 50 million mobile / internet
subscribers in Indica.
4. The roll-out of the 4G services and a drastic improvement in the internet services and
telecom services resulted in the development of new media viz. digital media.
Particularly, applications such as Inflix, Inzon etc., were in the nature of over-the-top
[“OTT”] platforms which allowed the streaming of audio-visual content on its platforms
for its subscribers, in lieu of payment of a fee.
5. Looking at the huge upside potential and large viewership on OTT, M/s. Johri Cine Films
Limited [“JCFL”] is a renowned film production company in Indica announced a Rs. 30
million deal with Inflix to produce/develop web series / feature films, as may be agreed
between them, solely and exclusively for the Inflix platform. Pursuant thereto, JCFL
produced a web series titled Indica Games which was scheduled to be released on Inflix
on May 5, 2022. However, on May 1, 2022, the Central Board of Film Certification
issued a notice to JCFL and Inflix directing them to cease and desist from releasing Indica
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Games unless a certificate has been issued by the Central Board of Film Certification.
6. Regardless, JCFL and Inflix released Indica Games on the scheduled date i.e., May 5,
2022. However, the CBFC issued a notice imposing a penalty under Section 7 of the
Cinematograph Act, 1952 inter alia for exhibiting a cinematograph film without film
certification. Aggrieved by the actions of the CBFC, JCFL and Inflix, on May 15, 2022,
filed a Writ Petition under Article 226 of the Constitution of Indica before the High Court
of Bambil inter alia seeking quashing of the notice issued by the Board.
7. Meanwhile, Blockbuster Films, another prominent Indican film production company,
released a feature film titled Political Heist on Inzon. There was a huge uproar against the
release of the said film, with widespread protests by certain sections of the society against
Blockbuster Films resulted in damage to public property and injuries to a large number of
protesters.
8. Based on the public outrage and 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 [“Rules”] under the Information Technology
Act, 2000. The Rules provided a code of conduct for hosting of information on social and
digital media and directly affected the manner in which the content was and is being
hosted on the OTT platforms.
9. The Rules were met with staunch opposition by various sections of the society, mainly
from OTT platforms whose content hosted/streamed on the internet are now subjected to
scrutiny. The Association of Film Producers, an organisation of filmmakers and
producers across the country, also protested against the said Rules primarily on the
premise that the said Rules violated the freedom of speech and expression of the
filmmakers and producers.
10. 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 inter alia alleging that OTT
platforms cannot be regulated by the Ministry of Information Technology and hence, the
said Rules have been promulgated without any jurisdiction.
11. The Supreme Court of Indica passed an order transferring all the said proceedings from
various high courts to itself and constituted a 5-Judge Constitution Bench to decide all
questions of law arising out of the said proceedings. The petitions finally listed before the
Constitution Bench of the Supreme Court of Indica on July 30, 2022 for a final hearing on
all questions of law including the maintainability of the petitions filed by various parties.
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ISSUES RAISED
ISSUE 1 - WHETHER THE WRIT PETITON FILED BY THE PETITONERS IS

MAINTAINABLE BEFORE THE HON’BLE SUPREME COURT OF INDICA?
ISSUE 2 – THE CENTRAL BOARD OF FILM CERTIFICATION LACKS THE

AUTHORITY TO CENSOR DIGITAL CONTENT BROADCAST ON OTT PLATFORMS
CREATED BY THE ONLINE CURATED CONTENT PROVIDERS.
ISSUE 3 – THE INFORMATION TECNOLOGY (INTERMEDIARES GUIDELINES AND

INFORMATION TECHNOLOGY ACT, 2000, LIMITS THE FREEDOM OF ONLINE
DIGITAL CONTENT PROVIDERS AND IS THUS UNCONTITUITIONAL.
ISSUE 4 - PETITIONERS CANNOT BE HELD LIABLE UNDER INDICAN PENAL

CODE FOR PUBLIC OUTRAGE.
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SUMMARY OF ARGUMENTS
ISSUE 1 - THE WRIT PETITON FILED BY THE PETITIONERS IS

MAINTAINABLE BEFORE THE HON’BLE SUPREME COURT OF INDICA?
The Counsel on behalf of the Petitioners most humbly and respectfully submits that the writ
petition filed before the Hon’ble Supreme Court of Indica under Article 32(1) of the
Constitution of Indica is maintainable, which ensures a guarantee to remedy in case of
violation of fundamental rights. There is a Constitutional obligation on this court to protect
fundamental rights enshrined under Part III of the Constitution. It is humbly submitted before
the Hon’ble Supreme Court that in the present case, there have been gross violations of
fundamental rights viz. Art. 14, 19 & 21 of Constitution of Indica. Hence, the Hon’ble Court
has the power to entertain proceedings for the enforcement of fundamental rights.
ISSUE 2 – THE CENTRAL BOARD OF FILM CERTIFICATION LACKS THE

AUTHORITY TO CENSOR DIGITAL CONTENT BROADCAST ON OTT
PLATFORMS CREATED BY THE ONLINE CURATED CONTENT PROVIDERS.
The Counsel on behalf of the Petitioners most humbly and respectfully submits to this
Hon’ble court that the Central Board of Film Certification has no provision, under the
Cinematograph Act, 1952, to censor online digital content produced by the OTT platforms.
Having said that, no ministry or department of the government has issued a regulation
requiring the CBFC to censor the content of the OTT. These platforms did not require any
kind of licence from CBFC for any online display of content.
ISSUE 3 – THE INFORMATION TECNOLOGY (INTERMEDIARES GUIDELINES

AND DIGITAL MEDIA ETHICS CODE) RULES, 2022, ISSUED UNDER THE
INFORMATION TECHNOLOGY ACT, 2000, LIMITS THE FREEDOM OF ONLINE
DIGITAL CONTENT PROVIDERS AND IS THUS UNCONTITUITIONAL.
Hon’ble court that the Intermediary Guidelines (Rules), 2022 under the Information
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Technology Act, 2000 were draconian, arbitrary and violated several fundamental rights
under part-III of the Constitution of Indica as well as ultra vires the parent Information
Technology Act 2000. Additionally, there is already a self-regulatory code for regulating
OTT platforms, which was created by the industry experts, as a result of which the new rules
act as additional and excessive restrictions. Hence, the new rules are unconstitutional.
ISSUE 4 - PETITIONER CANNOT BE HELD LIABLE UNDER INDICAN PENAL

CODE FOR PUBLIC OUTRAGE.
The Counsel on behalf of the Petitioner most humbly and respectfully submit to this hon’ble
court that petitioner cannot be held liable under section 153A and 295A of IPC because these
two section prima facie suffers from many illegalities. The Constitution, too, lacks a
comprehensive definition of the terms due to which they are being utilised as a tool for
harassment. Apart from the aforementioned misuse, they further face a challenge with respect
to the unreasonable restrictions it imposes upon the constitutionally guaranteed freedom of
speech under Article 19(1) (a).
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ARGUMENTS ADVANCED
ISSUE 1
THE WRIT PETITON FILED BY THE PETITIONERS IS MAINTAINABLE

BEFORE THE HON’BLE SUPREME COURT OF
INDICA
The counsel on behalf of the petitioners humbly submit before the Hon’ble Supreme Court
that the petitions filed before this Hon’ble Court under Article 32 of the Constitution of
Indica are maintainable because:
1.1 The Petitioners is having Locus Standi

1.1.1 According to the jurisprudence of Article 32 of the Constitution of Indica, “The right to
move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.” A citizen has the right to approach the Supreme Court
under Article 32 for the enforcement of their fundamental rights mentioned under Part III of
the Constitution. Article 32 is remarked as the heart and soul of the Constitution. The rights
under part III would be meaningless if they cannot be enforced.
1.1.2 The respondent may claim that petitioners have a private interest in this petition, so
according to the respondent, only a person "acting bona fide" and "having sufficient public
interest" in the proceeding of public interest litigation will have the locus standi.
But this hon’ble Court in Indian Banks’ Association, Bombay and Ors. v. M/s Devkala
Consultancy Service and Ors.1 held that “In an appropriate case, where the petitioner might
have moved a court in his private interest and for redressal of the personal grievance, the
court in furtherance of Public Interest may treat it a necessity to enquire into the state of
affairs of the subject of litigation in the interest of justice.
1.1.3 Thus a private interest case can also be treated as a public interest case. The maxim
refers to the right of a party to appear and be heard before a court of law or to institute a suit
or an action before the court. In this case, Petitioners can bring a complaint challenging the
constitutionality of a law, as the fundamental right to free trade and the right to profession has
1
Indian Banks Association, Bombay & Ors. v. M/s Devkala Consultancy Service and Ors, (2004) Insc 287.
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been violated along with the curtailment of the right to freedom of speech and expression
which caused them substantial harm in the eyes of law. Hence, it is humbly submitted that
since there has been a violation of the fundamental rights, the Court has the requisite
jurisdiction to entertain this writ petition under Article 32 of the Constitution of India bought
as Public Interest Litigation.
1.2 Alternative Remedy not a bar

1.2.1 Where there is a well-founded allegation that fundamental right has been infringed
alternative remedy is no bar for entertaining writ petition and granting relief. 2 The mere
existence of an adequate alternative legal remedy cannot be per se being a good and sufficient
ground for throwing out a petition under Art. 32 if the existence of a fundamental right and a
breach, actual or threatened, of such right and is alleged is prima facie established on the
petition.3
1.2.2 In the case of S.P. Gupta v. Union of India4, the Supreme Court of Indica rejected the
government's claim for safeguarding from disclosure and ordered the Union of India to
disclose the documents contained in the book. An open and effective democracy requires
accountability and access to information by the public about government performance. In
spite of the availability of the alternative remedy, the court may exercise its writ jurisdiction
in at least petitions where the petitioner seeks enforcement of any of the fundamental rights.5
Thus, the petitioner humbly submits that the writ petition is maintainable as the existence of
an alternative remedy is not a bar.
1.2.3 However, Article 32 is referred to as the "Constitutional Remedy" for enforcement of

Fundamental Rights.6 This provision itself has been included in the Fundamental Rights and
hence it cannot be denied to any person. Dr. B.R. Ambedkar described Article 32 as the most
important one, without which the Constitution would be reduced to a nullity. It is also
referred to as the heart and soul of the Constitution. By including Article 32 in the
Fundamental Rights, the Supreme Court has been made the protector and guarantor of these
Rights. An application made under Article 32 of the Constitution before the Supreme Court,
cannot be refused on technical grounds. In addition to the prescribed five types of writs, the
Supreme Court may pass any other appropriate order. Moreover, only the questions
2
State of Bombay v. United motors Ltd., AIR 1953 SC 252.
3
K.K. Kouchunni v. State of Madras, AIR 1959 SC 725.
4
S.P. Gupta v. Union of India, AIR 1982 SC 149.
5
Harbansal Sahnia v. Indian Oil Corporation Ltd., AIR 2003 SC 2120.
6
Hussainara Khatoon & Ors v. Home Secretary, State Of Bihar, 1979 AIR 1369.
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pertaining to the Fundamental Rights can be determined in proceedings against Article 32.
Under Article 32, the Supreme Court may issue a Writ against any Person or Government
within the territory of India. Where the infringement of a Fundamental Right has been
established, the Supreme Court cannot refuse relief on the ground that the aggrieved person
may have the remedy before some other court or under the ordinary law.
1.2.4 The Counsel on behalf of the Petitioner submits that the original jurisdiction of the
Supreme Court can be invoked in any case of violation of a fundamental right guaranteed by
part III of the Constitution of Indica as has been observed in the case of Chiranjit Lal
Chowdhury v. Union of India7, amongst the many others. The constitution makers conferred
on the Supreme Court the power to issue writs for the speedy enforcement of fundamental
rights and made the right to approach the Supreme Court for such enforcement itself a
fundamental right.8
1.2.5 The Fundamental Rights provided in the Indican Constitution are guaranteed against
any executive and legislative actions. Any executive or legislative action, which infringes
upon the Fundamental Rights of any person or any group of persons, can be declared as void
by the Courts under Article 14 of the Constitution. In this case, equals are not treated equally,
central government arbitrary in its action by not making reasonable criteria for all
intermediaries and there is no nexus between the classification made and the object that sort
to be achieved.
1.3 Clear violation of fundamental rights
1.3.1 Article 19(1)(a) provides the freedom of speech and expression. It also
includes the right to publish and show views of other people (freedom of
press and media). The media plays an important role in the democratic
society as it acts as the fourth pillar outside the government. although the
Indica constitution does not expressly mention the liberty of media, it is
evident that freedom of the press is included in the freedom of speech and
expression under Article 19(1)(a).
1.3.2 The Wire states, “the constitution of India promises the right to free
speech and expression to all the citizens (Article 19(1)(a)). However,
7
Chiranjit Lal Chowdhury v. Union of India, AIR 1951 SC 41
8
Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA 3711 (8rd Ed., Lexis Nexis
Butterworths Wadhwa 2008).
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‘reasonable restriction’ can be imposed on the enjoyment of this freedom

by the state under Article 19(2) on certain grounds, particularly public
order, decency or morality, the most frequently invoked. For censorship
(under Article 19(2)), the standard of judging a web-series should be that
of “an ordinary man of common sense and prudence and not that of an out
of the ordinary or hypersensitive man”. It is humbly submitted that
Section 3 of the impugned rules9 violates Article 19(1)(a).
1.3.3 In the case of, DAV College v. The State of Punjab10 a five-judge
Constitution Bench judgment delivered by this Apex Court on the
question of the rights of minorities to administer educational institutions
under Article 30(1) of the Constitution of Indica and its interface with
Article 29(1). Applying the Doctrine of ‘reasonable apprehension’, this
Hon’ble Court may interfere directly in this case. The makers has
constituted an independent committee and they have found nothing
disturbing under the web series.
1.3.4 The major question of law by the Inzon and Inflix is that whether the
broadcasting of content on such digital streaming platforms exceeds the
reasonable restrictions under Article 19 and further how much
interference11 can be provided by the Government of Indica in restraint of
free trade. The imposed restriction is therefore undoubtedly unjust to the
Inzon and Inflix as it is excessive in nature.
1.3.5 The Supreme Court of Indica accepted petitioners’ challenges in the

case of Bennett Coleman and Co. v. Union of India 12 that certain
restrictions and regulations on newspapers affected the right to freedom of
speech and expression. Though “cause of action” is not accurately defined
under any statutes, one may infer it from the various judgments 13 of the
statutory bodies and includes the facts the person has to plead to prove
that he has obvious and reasonable grounds to sue. There must be
9
INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS CODE)
RULES, 2021
10
D.A.V College v. State of Punjab, AIR 1971 SC 1731.
11
Romesh Thappar v. State of Madras, AIR 1950 SC 124.
12
Bennett Coleman and Co. v. Union of India, AIR 1973 SC 106.
13
Chintaman Rao v. The State of Madhya Pradesh, 1951 AIR 118 1950 SCR 759.
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circumstances to enforce the aggrieved party to approach the authorities

to seek justice and redressal which in this case are the riots that happened.
1.3.6 Amongst the six fundamental rights, Article 19(1)(g) provides all the
citizens of the country the right to practice any profession, occupation,
business or trade of their choice subject to certain restrictions as laid
down under Article 19(6). Article 19(1)(g) is a general right available to
all the citizens of the country to carry on any type of business, occupation
or profession to satisfy their livelihood needs. However, this fundamental
right does not confer the right to carry on any business, trade, occupation
or profession which is unlawful or is hindering general public interest.
1.3.7 All the projections against “Political Hiest” are completely vague and
the independent committee found nothing disturbing in this. Censoring
this is a clear violation of article 19(1)(a) of the Constitution of Indica. It
restricts the creative and visionary space of artists. It is indeed a violation
of Article 19(1)(g) to practice any profession or to carry on any
occupation, trade, or business.
1.3.8 In the case of Sanskar Marathe v. The State Of Maharashtra14, “The

third respondent claimed to have exercised his fundamental right to the
freedom of speech and expression as a cartoonist and claimed that his
arrest and detention seriously encroached upon the freedom guaranteed to
every citizen by Article19(1)(g) of the Constitution of India.”
Hence, it is humbly submitted that since there has been a violation of the
fundamental rights, the Court has the requisite jurisdiction to entertain this
writ petition under Article 32 of the Constitution of India.
14
Sanskar Marathe v. The State Of Maharashtra, Cri.PIL 3-2015.
5|Page
ISSUE 2
THE CENTRAL BOARD OF FILM CERTIFICATION LACKS THE

AUTHORITY TO CENSOR DIGITAL CONTENT BROADCAST ON OTT
PLATFORMS CREATED BY THE ONLINE CURATED CONTENT
PROVIDERS.
Hon’ble court that the Central Board of Film Certification has no provision, under the
Cinematograph Act, 1952, to censor online digital content produced by the OTT platforms.
Having said that, no ministry or department of the government has issued a regulation
requiring the CBFC to censor the content of the OTT. These platforms did not require any
kind of licence from CBFC for any online display of content.
2.1 The act of censoring content airing on OTT platforms by the CBFC is ultra
vires the Cinematograph Act, 1952.
2.1.1 It is submitted that the act of CBFC to censor digital content airing on internet produced
by the OTT platforms is much beyond the powers of censoring board as there is no mention
of regulating online digital content under the Cinematographic Act, 1952, which gives teeth
to the CBFC.
2.1.2 It is submitted that The Cinematograph Act, 1952 which established the Central Board
of Film Censorship of India, later renamed to Central Board of Film Certification (CBFC),
has the exclusive powers only to censor cinema. Consider creating or directing a motion
picture. Would you be motivated to work on a concept if you knew that some of its scenes
would be deleted or that it might not receive the necessary certification? The obvious
response is "no" Censorship hurts because it reduces innovation and deters individuals from
developing their ideas.15
2.1.3 It is most humbly submits before this Hon’ble Court that Censorship inclines
filmmakers to produce what can be called “one-track” or “propaganda” content which align
to the governmental policies and vision. However, on the other hand, OTT platforms have
recorded a huge jump in their viewership because it is subject to fewer limitations than
15
https://theleaflet.in/why-proposed-changes-to-cinematograph-law-hurt-right-to-free-expression/
6|Page
traditional cinema, which is a key factor in the growth of OTT platform content in terms of
viewing.
2.1.4 It is submitted that under the rules of the Cinematograph Act of 1952, the Central Board
of Film Certification (CBFC), a statutory organisation under the Ministry of Information and
Broadcasting, controls the public screening of cinematographic films. Only movies that have
been approved by the Central Board of Film Certification are allowed to be publicly screened
in India (on theatre screens or television channels). However, on the other hand, content
hosted by the OTT platforms is limited to those who paid for the online streaming services. It
has nothing to do with people at large, and for this very reason, content hosted by these
platforms has no potential to disrupt the peace in society.
2.1.5 It is submitted that in the Indian Constitution, we already have a provision relating to
reasonable restrictions under Article 19(2), in which reasonable restrictions to the press and
cinema are included. The government, using its legislative powers, formed a whole new
cinematographic act, which also provides for similar provisions as stated under Article 19(2),
which led to the over-censorship.
2.1.6 It is submitted that content on OTT platforms is already regulated by the "Self
Regulatory Code," which was collectively formed by all streaming service platforms. The
government, through CBFC, is trying to subject them to censorship standards set by it. This
regulation poses policy and legal inquiries which ought to be explored on account of the
preservation of free speech and political ideologies. We argue that instead of statutory
regulations, OTT platforms should have been subjected to self-regulatory codes in order to
protect free speech, thus acting independently from the whims of authoritative actions instead
of promoting conservative ideologies at the hands of the government.16
2.1.7 In the end, it is most humbly proposed that participants in the industry are more likely
to view regulations as acceptable if they are designed by stakeholders in the streaming
services industry. Because the expense of creating and enforcing regulations is passed on to
the business, self-regulation is less expensive for the government. In terms of law and policy,
self-regulation gives platforms the ability to provide narratives that are crucial for
maintaining free speech independent of the whims of political ideologies and for translating
the genuine form of creative liberty.
16
Para 3 https://www.jurist.org/commentary/2021/03/%E2%80%8Bdeshmukh-rajkotwala-self-regulation-of-ott-
content/
7|Page
2.2 CBFC has no provision under Cinematograph Act 1952 to impose penalty
under Section 7 of the act on OTT platforms.
2.2.1 It is submitted that from the language of the Act, it is very clear that a penalty under
Section 7 can only be imposed on cinematographic films. By bare reading of the act, one
thing is apparently clear: the purpose of the act is to make provision for the certification of
cinematographic films for exhibition and for regulating exhibitions by means of
cinematographs.17 In the whole Act, there is no mention, not even a single mention, of
regulating online curated content produced by the streaming service platforms. From this
whole thing, we can say that a penalty under Section 7 of the act on OTT platforms is
unnecessary and unreasonable.
2.2.2 It is submitted that the CBFC was formed for the purpose of screening or sanctioning
cinematographic films for public exhibition.18 As we already mentioned in this petition, the
services of OTT platforms can only be available to those who pay for them. Claiming content
on OTT platforms is widely available for public exhibition is not true in any sense because
they have limited viewership, unlike cinematographic films. Hence, assuming the reach of
content on OTT platforms is the same as cinematographic films is undoubtedly a mistake.
2.2.3 It is submitted that Section 7 (1) (c) of the Cinematograph Act, 1952 provides that if
any person fails to comply with the provisions of Section 6A or with any order made by the
Central Government or the Board in the exercise of any of the powers or functions conferred
on it by this Act or the rules made thereunder, he shall be punished with imprisonment for a
term of up to three years, or a fine of up to one lakh rupees, or both. 19 The language used in
this section is vague and gives unnecessary and unreasonable discretionary powers to the
central government to levy sanctions on any type of creative and artistic expression that
violates the mandate of the above law. The government's exercise of this type of power is a
serious violation of artistic expression in India, guaranteed under Article 19 (1).
2.2.4 It is submitted that Information Technology Act, 2000 provided enough procedural
safeguard for taking action in the event of exhibition of prohibited content by the
broadcasters. Government through CBFC make a parallel rule for censorship which is
excessive in itself and have huge potential to seriously damage the quality of content
produced by the online streaming service providers.
17
THE CINEMATOGRAPH ACT, 1952
18
Section 3 THE CINEMATOGRAPH ACT, 1952
19
Section 7(C) THE CINEMATOGRAPH ACT, 1952
8|Page
2.2.5 It is submitted that the right to free speech and expression has evolved with the progress
of technology and includes all broadcast media, such as OTT.20 The right of citizens to
exhibit films on OTTs is a part of the fundamental right guaranteed under article 19(1) (a).
The freedom of expression extends to the portrayal of social evils like rape, violence, dowry,
prostitution, human trafficking, slavery, immorality, caste system, child labour, child
marriage, poverty, corruption, gender inequality, untouchability, substance addiction, sati,
drug abuse etc.21 In Directorate General of Doordarshan v Anand Patwardhan, the SC held
that the State cannot prevent open discussion, no matter how hateful to its policies.22
2.3 The notice issued by the CBFC to the OTT platform for obtaining a
certificate for airing the digital content is constitutionally invalid.
2.3.1 It is submitted that the issuing of the notice by CBFC to JCFL and Inflix directing them
to cease and desist from releasing Indica Games unless a certificate has been issued by it is
much beyond the powers of the censor board and is vague, unreasonable, and constitutionally
untenable.
2.3.2 It is submitted that content hosted by OTT platforms would be self-classified by them.
With that being said, it is not mandatory for any content creator to obtain certification from
the CBFC before releasing their content on any OTT platform. Theatrical release of any
movie requires certification from the CBFC as per the Cinematographic Act, 1952. For films
first released on OTT and then subsequently broadcast on television, they will need to be in
compliance with the Cable Television Network Regulation Act, 1995 ("CTNA") and
the Cable Television Network Rules, 1994 ("CTNR"). Hence, there is no censorship on the
OTT platform apart from self-regulation and that they have to comply with the age-based
classification of content.23
2.3.3 It is submitted that accessing online content while inside one's home or place of
business does not qualify as "public exhibition" under the Cinematograph Act of 1952
because Section 4 of that law stipulates that a person must have the CBFC's permission
before they can show a movie to the general public.24 However, neither the phrase "public
exhibition" nor the legal definition of it is well-established. Going by the interpretation of this
20
Justice for Rights Foundation v. Union of India, WP (C) 11164/2018.
21
https://www.legalserviceindia.com/legal/article-7017-constitutional-provisions-for-ott-platforms-on-freedom-
of-speech-and-expression.html
22
Directorate General of Doordarshan v Anand Patwardhan, (2006) 8 SCC 433
23
https://iprmentlaw.com/2022/02/13/churuli-controversy-analysis-of-the-censorship-of-content-on-ott-
platforms/
24
Section 4 of the Cinematograph Act, 1952: Examination of films
9|Page
section, the Cinematograph Act, 1952 applies only to cinematograph films within the
meaning of Section 2(dd) of the Cinematograph Act, and a video film or a video compact
disc is included in Section 2(c) of the Cinematograph Act.25
2.3.4 It is submitted that the internet is an interconnected network of all web-servers

worldwide, and web-servers are programmes that use the Hyper Text Transfer Protocol
("http") to serve the files that form web pages to the users, which are provided in response to
their requests, which are forwarded by http to the client on their computers, and that this did
not fall under the definition of a cinematograph under the Cinematograph Act, 1952. Thus,
the court held that the transmission or broadcast of films, series, etc. through the internet will
not come under the purview of the Cinematograph Act, 1952.26
25
Section 2(c) of the Cinematograph Act, 1952: “cinematograph” includes any apparatus for the representation
of moving pictures or series of pictures
26
https://legal60.com/regulation-of-content-on-ott-platforms-a-work-in-progress/
10 | P a g e
ISSUE 3
THE INFORMATION TECNOLOGY (INTERMEDIARES GUIDELINES AND

INFORMATION TECHNOLOGY ACT, 2000, LIMITS THE FREEDOM OF
ONLINE DIGITAL CONTENT PROVIDERS AND IS THUS
UNCONTITUITIONAL.
Hon’ble court that the Intermediary Guidelines (Rules), 2022 under the Information
Technology Act, 2000 were draconian, arbitrary and violated several fundamental rights
under part-III of the Constitution of Indica as well as ultra vires the parent Information
Technology Act 2000. Additionally, there is already a self-regulatory code for regulating
OTT platforms, which was created by the industry experts, as a result of which the new rules
act as additional and excessive restrictions. Hence, the new rules are unconstitutional.
3.1 Screening and restraining of digital content by the government through new
rules violates the right to freedom of speech and expression guaranteed under
Article 19 (1) a.
3.1.1 The capacity to think and talk freely, as well as acquire knowledge from others through
publications and public conversation, without fear of retaliation, limitation, or repression by
the government, is the essence of free speech. The Supreme Court of Indica decided in
Romesh Thappar v. State of Madras27 that freedom of speech and expression includes
freedom of idea dissemination, and that freedom is safeguarded by freedom of circulation. In
Brijbhushan v. The State of Delhi 28 it has been laid down by Court that the imposition of
pre-censorship on a publisher is a restriction on the liberty of the Press (Publishers) which is
an essential part of the right to freedom of speech and expression declared by Article 19(1)
(a).29
3.1.2 The first principle of a free society is an untrammeled flow of words in an open forum.
Liberty to express opinions and ideas without hindrance, and especially without fear of
27
Romesh Thappar v. State of Madras, (1914) L.R. 41 I.A. 149.
28
Brijbhushan v. The State of Delhi, [1950] S.C.R. 605.
29
All citizens shall have the right to freedom of speech and expression.
11 | P a g e
punishment through visuals or cinematographic means plays significant role in the

development of that particular society and ultimately for that state. In the case of Secretary,
Ministry of I & B v. Cricket Association of Bengal30, it was held by the Supreme Court that
freedom of speech and expression includes "the right to acquire information and to
disseminate it to the public at large". Hence, Article 19(1) (a) also includes the right of the
viewers. Freedom of Speech and Expression means the right to express one's own convictions
and opinions freely by words of mouth, writing, printing, pictures or any other mode.
3.1.3 In Virendra v. The State of Punjab Court 31 has observed it is certainly a serious
encroachment on the valuable and cherished right of freedom of speech and expression if a
publisher is prevented from publishing its own or the views of its correspondents relating to
or concerning what may be the burning topic of the day". (The OTT platforms are called the
publishers of online curated content in the rules)32 The freedom of the publishers is an
integral part of Article 19(1) (a) of the Constitution, given that the Press and Digital News
Media such as Petitioner, provide the principal vehicle of expression of information and
views to citizens, and this has been recognised by this Hon’ble Supreme Court in Express
Newspapers (P) Ltd. v. Union of India33 and Bennett Coleman & Co. v Union of India.34
3.1.4 In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana35, it was held that the
right of citizens to screen films was a part of the fundamental right of freedom of expression.
Online expression has become one of the major means of information diffusion, and
accordingly it was integral to the enjoyment of freedom of speech and expression guaranteed
by Article 19(1) (a). In Ashutosh Dubey v. Netflix, Inc & Ors 36, the 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
30
Secretary, Ministry of I & B v. Cricket Association of Bengal, (1995) 2 SCC 161.
31
Virendra v. The State of Punjab, [1958] S.C.R. 308.
32
Publisher of online curated content’ means a publisher who, performing a significant role in determining the
online curated content being made available, makes available to users a computer resource that enables such
users to access online curated content over the internet or computer networks, and such other entity called by
whatever name, which is functionally similar to publishers of online curated content but does not include any
individual or user who is not transmitting online curated content in the course of systematic business,
professional or commercial activity
33
Express Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133.
34
Bennett Coleman & Co. v. Union of India, (1978) 1 SCC 248.
35
Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410.
36
Ashutosh Dubey v. Netflix, Inc & Ors, 2020 SCC OnLine Del 625.
12 | P a g e
picture of the same.” Section 3(b)(xi) of the Rules is clearly going against this judgement of
the Hon'ble Supreme Court.
3.2 The Intermediaries Rules 2021 violate the Right to Trade and Profession
under Article 19 (1) (g), and they cannot be justified as a Reasonable Restriction
under Article 19 (6).
3.2.1 Part III of the contested Rules restricts the Petitioners' ability to conduct business and
trade by imposing onerous responsibilities via a three-tier regulatory framework.37 The
petitioner will have to dedicate a significant amount of time and resources to settling each
complaint within 15 days and defending itself in several forums.38 As a consequence, even if
the petitioner can continue operations, the volume of content generated by the petitioner will
be diminished as a result of resource diversion, which constitutes a violation of the rights
granted by Article 19(1)(g) and also Article 19(1)(a) as rightly observed by this court in
Sakal Papers v. Union of India.39
3.2.2 In the case of CPIO v. Subhash Chandra Aggarwal40 the meaning of proportionality
was explained as it is also crucial for the standard of proportionality to be applied to ensure
that neither right is restricted to a greater extent than necessary to fulfill the legitimate interest
of the countervailing interest in question.
3.2.3 Clause 3(b)(iii) refers to removing content that is harmful to a child, which is just an
additional restriction on these platforms because there is already a self-regulatory code that
defines age categories for showing certain content, which these platforms follow. So that will
be clearly burdensome on the OTT platforms, which is violating Article 19(1)(g) of the
Indican constitution. Because all intermediaries follow these rules, they have already placed
labels indicating the type of content and age category. In the case of Chintamanrao v. State
of M.P41, 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
37
For ensuring observance and adherence to the Code of Ethics by publishers operating in the territory of India,
and for addressing the grievances made in relation to publishers under this Part, there shall be a three-tier
structure.
38
Ministry of Information and Broadcasting, https://mib.gov.in/digital-media-guidelines-and-policies
39
Sakal Papers v. Union of India, AIR 1962 SC 305.
40
CPIO v. Subhash Chandra Aggarwal, (2019) SCC 1459.
41
Chintamanrao .v State of M.P, 1951 AIR 118
13 | P a g e
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.
3.2.4 In Mohd. Faruk v. State of M.P.42, the Supreme Court of India held that a prohibition
on the fundamental right to carry on occupation, trade or business is not regarded as
reasonable if it is 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
must consider 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) of the Rules], which are ambiguous, unnecessary, and violate the
citizens' fundamental right to carry on business and occupation because a few individuals are
overly sensitive.
3.3 The Provision given under Intermediaries Rules 2022 for Content Takedown
cannot be justified as Reasonable Restrictions under Article 19(2).
3.3.1 It is argued that Articles 19(2) and (6) limit the freedoms guaranteed by Articles 19(1)
(a) and (g), respectively. It has been said that it is the rights that are fundamental and not the
limitations. But these observations overlook the fact that the rights granted are not absolute
but subject to permissible restrictions. The test of reasonableness, as laid down by Sastri, C.J.
in State of Madras v. V.G. Row43, 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."
3.3.2 Section 3 of the said rules 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 breaching test of reasonableness44 under Article 19(6)45 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.
42
Mohd. Faruk v. State of M.P., AIR 1958 SC 731.
43
State of Madras v. V.G. Row, 1952 AIR 196
44
Test of reasonableness under Article 19(2) and Article 19(6) of the Indican Constitution
45
INDIAN CONST.art 19(6)
14 | P a g e
3.3.3 The Hon’ble Supreme Court in Indibly Creative v. Government of West Bengal46, has
affirmed that the State has a positive obligation to protect freedom of speech and that “unless
we were to read a positive obligation on the State to create and maintain conditions in which
the freedoms guaranteed by the Constitution can be exercised, there is a real danger that art
and literature would become victims of intolerance.” It has long been established that the
right under Article 19(1) (a) includes the right to seek and receive information (LIC v.
Manubhai D. Shah)47 thus; laws that disproportionately limit access to information fall foul
of Article 19(1) (a), and are not saved by Article 19(2).
3.3.4 New York Times v. Sullivan48 - a judgment of the Supreme Court of the United States
that has been accepted and endorsed by the Hon’ble Supreme Court of Indica in R. Rajgopal
v. State of Tamil Nadu49 - refers to a situation where the result of a law is to limit the public
discourse to only statements which "steer far wider of the unlawful zone.” It is humbly
submitted that the Impugned Rules, fail both the imperative and balancing stages of the
proportionality test: as they encroach on rights to a greater extent than is essential to reach the
legitimate goals of intermediary regulation, and they disproportionately burden both
intermediaries and users.
3.4 The Intermediaries Guidelines and Digital Media Ethics Code Rules, 2022
Ultra Vires the Information Technology Act 2000.
3.4.1 Indian law is well-settled that subordinate legislation like the Intermediary Rules 2021
should not be ultra vires the Parent Statute under which they have been prescribed (Bombay
Dyeing and Mfg. v. Bombay Env. Action Grp.) 50 Indeed, the Hon’ble Supreme Court “has
clearly held that a subordinate legislation can be challenged not only on the ground that it is
contrary to the provisions of the Act or other statutes; but also if it is violative of the
legislative object.” It is a well-settled principle of interpretation of statutes that conferment of
rulemaking power by an Act does not enable the rulemaking authority to make a rule which
travels beyond the scope of the enabling Act, or which is inconsistent with or repugnant
thereto,” the Supreme Court held in State of Karnataka and Another v. Ganesh Kamath &
Ors.51
46
Indibly Creative v. Government of West Bengal, (2020) 12 SCC 436.
47
LIC v. Manubhai D. Shah, (1992) 3 SCC 637
48
New York Times v. Sullivan, 376 US 254 (1964).
49
R. Rajgopal v. State of Tamil Nadu, (1994) 6 SCC 632.
50
Bombay Dyeing and Mfg. v. Bombay Env. Action Grp., (2006) 3 SCC 434
51
State of Karnataka and Another v. Ganesh Kamath & Ors, 1983 SCR (2) 665.
15 | P a g e
3.4.2 A combined reading of Section 79(2) read with Section 89(2) (zg) of IT Act makes it
clear that the jurisdiction of the Central Government is restricted only to prescribing
recommendations pertaining to the due diligence to be undertaken by intermediaries when
performing its responsibilities under the IT Act. 52 However, the 2022 rules have added new
obligations and broadened the scope of the intermediary's responsibilities. The Ministry of
Law and Justice also believed that the adjustments made by the rule were beyond the present
IT Act's jurisdiction.53
3.5 The Ministry of Electronics and Information Technology (MeitY)’s lack of

power to regulate "Digital Media".
3.5.1 Through an amendment of 2020 to the AoB (Allocation of Business) Rules, 1961 54
‘Digital Media’ now comes under the jurisdiction of the Information and Broadcasting
Ministry.55 Therefore, any legislative proposal governing such media should come from the
Information and Broadcasting Ministry.56 The intention behind the modification to the
Business Rules was that the information by publishers (and consequently the publishers of
such content) shall be regulated by I&B Ministry, while ‘platforms’ shall be regulated by the
MeitY.57 As a result of the current regulatory framework, legislative and parliamentary
procedures for enacting particular legislation that controls digital content are bypassed,
resulting in legislative obligations being abdicated.58
Since the entire Section 3 of the Rules violates the law. Any such framework must be based
on legislation that has been officially debated and passed by Parliament.
52
Information Technology Act 2000, https://www.meity.gov.in/content/information-technology-act-2000-0
53
Saurav Das, ‘2 Modi Govt Advisers Warned New IT Rules Beyond Scope Of Law, Were Overruled’, 17 May
2021, https://article-14.com/post/2-modi-govt-advisers-warned-new-it-rules-beyond-scope-of-law-
wereoverruled.
54
The Government of India (Allocation of Business) Rules, 1961
https://cabsec.gov.in/writereaddata/allocationbusinessrule/completeaobrules/english/1_Upload_2724.pdf
55
Under the Business Rules, the concerned Ministry is expected to make rules under existing legislation whose
administration has been handed over to it, enact and amend legislations and pass Bills on the subject matter
under its remit, and then frame subordinate legislation in the form of rules under such Bills turned into Acts.
http://164.100.47.5/rs/book2/reports/subleg/128threport.htm
56
‘Centre’s Move to Regulate OTT Platforms was to Bring Content Under One Place, says I&B ministry’,
Scroll, 17 December 2020. https://scroll.in/latest/981513/centres-move-to-regulate-ott-platforms-was-to-bring-
content-under-one-placesays-i-b-ministry
57
‘Centre’s Move to Regulate OTT Platforms was to Bring Content Under One Place, says I&B ministry’,
Scroll, 17 December 2020. https://scroll.in/latest/981513/centres-move-to-regulate-ott-platforms-was-to-
bringcontent-under-one-place-says-i-b-ministry
58
Cabinet Secretariat, Notification S.O. 4040(E.), 9 November 2020,
https://cabsec.gov.in/writereaddata/allocationbusinessrule/amendment/english/1_Upload_2604.pdf
16 | P a g e
3.5.2 According to the doctrine of excessive delegation, delegation of essential legislative

functions by a legislature to any other authority is unconstitutional. 59 The power to make
changes in policy is an essential function of legislature and cannot be delegated. Legislature
is the master of legislative policy and if the delegate is free to switch policy it will lead to
usurpation of legislative powers itself (Avinder Singh v. Punjab).60
3.6 Lack of Clarity in Defining Certain Phrases like "Illegal" or "Objectionable

Content" in Intermediaries Guidelines Leads to Over-Censorship.
3.6.1 Rule 3(1)(b) of Intermediary Guidelines compels intermediaries to inform users not to
post content that is inter alia “racially, ethnically or otherwise objectionable”, “relating or
encouraging money laundering or gambling”, “libelous”, “obscene”, or “insulting or
harassing based on gender.”61 These are undefined phrases that have nothing to do with the
Indican Penal Code (IPC) or any other law. Many of these grounds have no constitutional
basis and are subjective indications of human sensitivities rather than legal requirements. As
the Supreme Court of India found in Shreya Singhal v. Union of India62, words that are too
wide and imprecise might lead to over-censorship and a chilling impact on users.
3.6.2 In India vulgarity and strong erotic language are often treated as inter-changeable with
obscenity. In its recent judgment concerning the movie, The Bandit Queen63, the court ruled
that neither nudity nor vulgarity can necessarily be equated with obscenity. In A.K. Roy, Etc
vs. Union of India & Anr.64, in which it has been held: "the impossibility of framing a
definition with mathematical precision cannot either justify the use of vague expressions..."
3.6.3 Petitioner believed that the contested provision, in its existing form, failed to provide
any protection against spam and that it also generates stand-alone crimes, bringing
communication without purpose into its scope. Any limits on free speech must fall within the
parameters of Article 19(2), and hence must be explicit and unequivocal.
59
See In Re Delhi Laws Act, (1951) S.C.J. 527; Harakchand v. India, (1970) 1 S.C.J. 479. See also STANDING
COMMITTEE ON SUBORDINATE LEGISLATION, PRACTICE & PROCEDURE-ABSTRACT SERIES
(Feb. 2005), available at https://rajyasabha.nic.in/rsnew/practice_procedure/book13.asp.
60
Avinder Singh v. Punjab, (1979) 1 S.C.C. 137.
61
Due diligence to be observed by intermediary,
https://www.meity.gov.in/writereaddata/files/GSR314E_10511%281%29_0.pdf
62
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
63
Bobby Art International v. Om Pal Singh Hoon, (1996 ) 4 SCC 1.
64
A.K. Roy, Etc v. Union of India & Anr., 1982 AIR 710.
17 | P a g e
ISSUE 4
THE PETITIONER CANNOT BE HELD LIABLE UNDER INDICAN PENAL

CODE FOR PUBLIC OUTRAGE
The Counsel on behalf of the Petitioner most humbly and respectfully submit to this hon’ble
court that petitioner cannot be held liable under section 153A and 295A of IPC because these
two section prima facie suffers from many illegalities. The Constitution, too, lacks a
comprehensive definition of the terms due to which they are being utilised as a tool for
harassment. Apart from the aforementioned misuse, they further face a challenge with respect
to the unreasonable restrictions it imposes upon the constitutionally guaranteed freedom of
speech under Article 19(1) (a).
"The right to know the truth has gained increasing importance over the years, and the
petitioner is showing only the truth by the means of audio-visuals." "With the emergence of
the practise of enforced disappearances in the 1970s, the concept of the right to the truth
became the object of increasing attention from international and regional human rights bodies
and special procedures mandate-holders."
Blockbuster Films, a prominent Indian film production company, has released a feature film
titled Political Heist on Inzon. Political Heist is a satirical political drama based on the rise of
MHP, the current political dispensation ruling the country. They have no intention of hurting
the feelings of anyone, whether personal or religious. They produced content solely based on
the truth and the current political environment in the country.
The right to truth and freedom of expression, which includes the right to seek and impart
information, are linked. The formal recognition of a legal Right to Information in India
occurred more than two decades before legislation was finally enacted in 2005. The Supreme
Court of India in the State of U.P. v Raj Narain65 ruled that the Right to Information is
implicit in the right to freedom of speech and expression explicitly guaranteed in Article 19.
65
State of U.P. v Raj Narain, (1975 AIR 865)
18 | P a g e
4.1 Criminalization of Speech is only Permitted if it Incites “Imminent Lawless

Action”
4.1.1 Reaffirming the Supreme Court of the United States of America devised Brandenburg
Test; our Supreme Court in Arup Bhuyan v. State of Assam66 held that criminalization of
speech is only permitted if it incites “imminent lawless action”.
4.1.2 Furthermore, in the case of Dr. Ram Manohar Lohia v. State of Bihar67, the analysis of
the grounds under Article 19(2) that give Section 295A the guise of "reasonability", court
held that "One has to imagine three concentric circles, the largest representing "law and
order," the next representing "public order," and the smallest representing "security of State."
An act may have an impact on "Public Order," but not on "Law and Order."
4.1.3 Thus showing the current political environment in the countrty in satirical manner in
teaser or film is all information and awareness and should not be taken as deliberate or
malicious act of outraging religious or personal sentiments. The web-series is meant for
entertainment purposes only and the petitioner does not intend to hurt the sentiments of any
individual, community, sect or religion. Despite a generally protective approach on the part of
the courts, the provisions of the IPC are constantly employed as part of the tactics by
intolerant groups to suppress dissenting opinions. Judicial interpretations are also not free of
controversy and cases like Sri Baragur Ramchandrappa v. State of Karnataka 68 demonstrate
the flaws in the judiciary’s approach towards the application of the law. Artistic liberty is
sacrificed at the altar of religious sensitivities when the Court reasons that there is no right to
‘impinge on the feelings of others.’ Even if the Courts have dismissed cases in the favour of
protecting speech the criminal process itself has led to a chilling effect on speech.
4.2 Petitioners cannot be held Liable under Impugned Section of IPC

4.2.1 Only where the words either written or spoken have the tendency of creating public
disorder or disturbance of law and order or affecting public tranquility, the government needs
to step in to prevent such an activity. The intention to cause disorder or incite people to
violence is the sine qua non of the offence under Section 153A 69 IPC and the prosecution has
to prove the existence of mens rea in order to succeed.70
66
Arup Bhuyan v. State of Assam, (2011) 3 SCC 377.
67
Dr. Ram Manohar Lohia v. State of Bihar, 1966 SCR (1) 709.
68
Sri Baragur Ramchandrappa v. State of Karnataka, 2007 3 SCC 11.
69
153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence,
language, etc., and doing acts prejudicial to maintenance of harmony.
70
Balwant Singh v. State of Punjab, (1995) 3 SCC 214.
19 | P a g e
4.2.2 The gist of the offence under Section 153A IPC is the intention to promote feelings of
enmity or hatred between different classes of people. The intention has to be judged primarily
by the language of the piece of writing and the circumstances in which it was written and
published. One cannot rely on strongly worded and isolated passages for proving the charge
nor indeed can one take a sentence here and a sentence there and connect them by a
meticulous process of inferential reasoning.71
4.2.3 In the case of Mahendra Singh Dhoni v. Yerraguntla Shyamsundar72, the Supreme
Court of Indica dismissed a FIR filed against him for allegedly injuring religious sentiments
after a photograph of him dressed as Lord Vishnu was published in a magazine with the title
"God of Big Deals." The Court ruled that Section 295A IPC punishes only those actions of
insulting or attempting to insult a class of citizens' religion or religious belief that are
committed with the intentional and malicious aim of outraging that class of citizens' religious
emotions.
4.2.4 As there is no attempt made by the petitioner to incite people belonging to different
communities to indulge in any violence, the basic ingredients of the offence have not been
made out. Allegations made in the FIR or the complaint, even if they are taken on their face
value and accepted in their entirety do not prima facie constitute any offence or maintain a
case against the alleged. Hence, the FIR is liable to be quashed.73
PRAYER
71
Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1.
72
Mahendra Singh Dhoni v. Yerraguntla Shyamsundar, 2017 SCC 450.
73
State of Haryana & Ors. v. Bhajan Lal & Ors.,1992 Supp (1) SCC 335.
20 | P a g e
Wherefore in the light of the issues raised, arguments advanced and authorities cited, the
counsel for the Petitioner humbly pray that this hon’ble court may be pleased to adjudge and
declare that:
1. The writ petition filed by the petitioners is maintainable before the Hon’ble Supreme Court
of Indica.
2. The Central Board of Film Certification lacks the authority to censor digital content
broadcast on OTT platforms created by the online curated content providers.
3. The Information Technology (Intermediaries Guidelines and Digital Media Ethics Code)
Rules, 2022, issued under the Information Technology Act, 2000, limits the freedom of
online digital content providers and is thus unconstitutional.
4. Petitioners cannot be held liable under the Indican Penal Code for public outrage.
AND/OR
Pass any other order, direction or relief that this hon’ble court may deem fit in the interests of
justice, equity and good conscience.
And for this act kindness, the Petitioner shall as in duty bound, ever pray.
Sd/-
Counsel on behalf of the Petitioner
21 | P a g e

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TEAM CODE- XX P

HON’BLE JUSTICE D.R. DHANUKA 1ST

BEFORE THE HON’BLE SUPREME COURT

MOHAMMAD SULLAH & ANR.…………….…………………...…………(PETITIONER)

UNION OF AKHANDA. ...………………………..…………...…………...(RESPONDENT)

AUKL & ORS. ……...………………..……………………………………….(PETITIONER)

UNION OF AKHANDA. ...………………….….……………...…………...(RESPONDENT)

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

MEMORIAL ON BEHALF OF THE PETITIONER

THE WRIT PETITON FILED BY THE PETITIONERS IS MAINTAINABLE

1.1 THE PETITIONERS IS HAVING LOCUS STANDI ...................................................................1

1.2 ALTERNATIVE REMEDY NOT A BAR...................................................................................2

1.3 CLEAR VIOLATION OF FUNDAMENTAL RIGHTS.....................................................3

THE CENTRAL BOARD OF FILM CERTIFICATION LACKS THE AUTHORITY

THE INFORMATION TECNOLOGY (INTERMEDIARES GUIDELINES AND

ONLINE DIGITAL CONTENT PROVIDERS AND IS THUS

3.1 SCREENING AND RESTRAINING OF DIGITAL CONTENT BY THE GOVERNMENT THROUGH

GUARANTEED UNDER ARTICLE 19 (1) A.................................................................................11

3.5 THE MINISTRY OF ELECTRONICS AND INFORMATION TECHNOLOGY (MEITY)’S LACK

3.6 LACK OF CLARITY IN DEFINING CERTAIN PHRASES LIKE "ILLEGAL" OR

THE PETITIONER CANNOT BE HELD LIABLE UNDER INDICAN PENAL

4.1 CRIMINALIZATION OF SPEECH IS ONLY PERMITTED IF IT INCITES “IMMINENT

4.2 PETITIONERS CANNOT BE HELD LIABLE UNDER IMPUGNED SECTION OF IPC.............19

2. INFORMATION TECHNOLOGY ACT 2000

3. INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES) RULES, 2011

4. INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS

II. BOOKS REFERRED:

III. TABLE OF CASES:

Article 32 of the Constitution of India which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part-

ISSUE 1 - WHETHER THE WRIT PETITON FILED BY THE PETITONERS IS

ISSUE 2 – THE CENTRAL BOARD OF FILM CERTIFICATION LACKS THE

ISSUE 3 – THE INFORMATION TECNOLOGY (INTERMEDIARES GUIDELINES AND

ISSUE 4 - PETITIONERS CANNOT BE HELD LIABLE UNDER INDICAN PENAL

ISSUE 1 - THE WRIT PETITON FILED BY THE PETITIONERS IS

ISSUE 2 – THE CENTRAL BOARD OF FILM CERTIFICATION LACKS THE

ISSUE 3 – THE INFORMATION TECNOLOGY (INTERMEDIARES GUIDELINES

ISSUE 4 - PETITIONER CANNOT BE HELD LIABLE UNDER INDICAN PENAL

THE WRIT PETITON FILED BY THE PETITIONERS IS MAINTAINABLE

1.1 The Petitioners is having Locus Standi

1.2 Alternative Remedy not a bar

1.2.3 However, Article 32 is referred to as the "Constitutional Remedy" for enforcement of

1.3 Clear violation of fundamental rights

‘reasonable restriction’ can be imposed on the enjoyment of this freedom

1.3.5 The Supreme Court of Indica accepted petitioners’ challenges in the

circumstances to enforce the aggrieved party to approach the authorities

1.3.8 In the case of Sanskar Marathe v. The State Of Maharashtra14, “The

THE CENTRAL BOARD OF FILM CERTIFICATION LACKS THE

2.3.4 It is submitted that the internet is an interconnected network of all web-servers

THE INFORMATION TECNOLOGY (INTERMEDIARES GUIDELINES AND

punishment through visuals or cinematographic means plays significant role in the

3.5 The Ministry of Electronics and Information Technology (MeitY)’s lack of

3.5.2 According to the doctrine of excessive delegation, delegation of essential legislative

3.6 Lack of Clarity in Defining Certain Phrases like "Illegal" or "Objectionable

THE PETITIONER CANNOT BE HELD LIABLE UNDER INDICAN PENAL

4.1 Criminalization of Speech is only Permitted if it Incites “Imminent Lawless

4.2 Petitioners cannot be held Liable under Impugned Section of IPC

Counsel on behalf of the Petitioner

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