TEAM CODE: SMCC24

The 6th ANAND SWAROOP GUPTA MEMORIAL INTERNATIONAL MOOT

COURT COMPETITION

MALCODA …………PETITIONER

VS.

STATE OF ALIGOT AND OTHERS ………… RESPONDENTS

IN THE HON’BLE SUPREME COURT OF ALIGOT

UNDER ARTICLE 136 OF THE CONSTITUTION OF ALIGOT

MEMORIAL ON BEHALF OF RESPONDENTS

1
TABLE OF CONTENTS

INDEX OF AUTHORITIES 3
STATEMENT OF JURISDICTION 5
STATEMENT OF FACTS 6
ISSUES 8
SUMMARY OF ARGUMENTS 9
ARGUMENTS ADVANCED 11
1. Whether the impugned order is justified? 11
2. whether a criminal case is made out against Malcoda? 11-17
a) section 292 APC 11-13
b) section 499 APC 13-14
c) section 500 APC 14-16
d) section 505 APC 16
e) Indecent representation of women (prohibition) act 17
3. Whether malcoda is entitled to enjoy her right to express 17
herself freely?
4. whether the complainants have a locus standi? 19
PRAYER 20

2
 INDEX OF AUTHORITIES

CASES:

A.K. Gopalan v. state of madaras, AIR 1950 SC 27

Balwant Singh v. the State of Punjab, 1995 3 SCC 214
Bilal Ahmed kaloo v. state of Madhya Pradesh, 1997 7 SCC 431
Bombay hawkers union v. Bombay municipal corporation, AIR 1985 SC 1206
B. Sanjay Kumar v. the State of AP
Chandrakant kalyandas kakodar case, 1907 AIR 1390
Dharmendra Dhiraj Lal sonejin v. state of Gujarat, (1997) 1 GGLR 198
Express newspaper v. union of India, AIR 1958 SC 578
Google India private ltd v. Visakha industries, 2017 SCC Online SC 996
KA abbas v. union of India, AIR 1971 SC 481
Kedarnath Singh v. the State of Bihar, AIR 1962 SC 955
Niharika infrastructures private ltd v. state of Maharashtra and others, SCC Online SC 315
Pepsi foods ltd v. judicial magistrate
Ramji lal modi v. state of UP, 1957 AIR 620, 1957 SCR 860
Ranjeet udeshi v. state of Maharashtra, AIR 1965 SC 881
Sahib Singh Mehra v. state of Uttar Pradesh, AIR 1965 SC 1451
Shiva Nath v. State of West Bengal, 2006 (2) CHN 2153
S. Khushboo v. kannaimmal &anrs, (2010) 5 SCC 600
Shatrughan Prasad Sinha v. raj babu surajmal Rathi, 1996, SCC (Cri) 1310
Subramanian Swamy ministry of law, Govt. of India, 2016 SCC VOL 7
Suresh Chandra v. the State of Maharashtra, JT 2000 (9) SC 598, 2000 (10) SCC 582
Smt Rama Sharma v. Pinki Sharma, 1989 Cri LJ 2153
State of uttar Pradesh v. kaushalaya, AIR 1964 SC 416
Talab haji Hussain v. Madhukar purushottam mondkar, AIR 1958 SC 376

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STATUES

Indian Penal Code

Code Of Criminal Procedure
The Constitution Of India
Indecent Representation Of Women (Prohibition) Act

BOOKS
Criminal procedure: R.V. Kelkar
Indian Penal code: K.D. Gaur
The constitution of India: D.D. Basu

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 STATEMENT OF JURISDICTION

The respondents humbly submit this memorandum before the Hon’ble Supreme Court Aligot,
invoking the discretionary power of the supreme court under article 136 of the constitution.

This memorandum sets forth the respondents' facts, contentions, and arguments in the
given case.

5
 STATEMENT OF FACTS

1. That Malcoda is the most acclaimed actress in Aligot whose autobiography tells about her
four marriages and many other love affairs. The rules of the country prohibit any
discussion related to sex or sex education. It has no place in the culture of the
society as they believe it will corrupt the minds of young generations.

2. That multimedia outlet, Outdream Multimedia Pvt. Ltd. Published views of many people
of the country expressed in the survey conducted on pre-marital sex in which Malcoda
also gave her views on the same, considering premarital sex a reality. She also pointed
out the loopholes in the education of the country.

3. That after the publication people started protesting against her and also a Magazine titled
Flick Talks carried out a news item publishing her defending comments concerning
the previous interview.

4. That Malcoda had sent a legal notice to Flick Talks for publishing her comments, which
she denies stating to any of their correspondings and said that the news article uses
her previously shared personal opinion to distort the facts.

5. That the charges were made out against Malcoda under sections 292, 499, 500, and 505 of
Aligot Penal Code also sections 4 and 6 of Indecent Representation of Women
(prohibition) Act.

6. According to the complainants it resulted in a large section of women suffering mental

harassment as Malcoda is in a great position to influence many young readers of
tender age.

7. That Malcoda made a prayer before the high court to quash all the charges made out

6
against her under section 482 of CrPc which was dismissed reasoning that the issue
posed before the court is the question of fact and the trial judge is the only competent
authority.

8. That aggrieved by the impugned order dated 30/11/2020, malcoda approaches the
Supreme Court by way of Special Leave Petition.

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 ISSUES

1. Whether the impugned order is justified?

2. Whether a criminal case is made out against malcoda?

3. Whether she is entitled to enjoy the right to express herself freely?

4. Whether the complainants have a locus standi?

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 SUMMARY OF ARGUMENTS

1. Whether the impugned order is justified?

The impugned order is justified as the issue was questions of fact and the trial judge is the
only competent authority. Question of fact is a question concerning the reality of an alleged
event or circumstance in a trial by jury, usually determined by the jury. the inherent power
contemplated by section 482 has to be exercised sparingly, carefully and with caution and
only where such exercise is justified by the tests specifically laid down in the section itself.
Thus, the order passed by the High Court is justified and the question of fact should be dealt
with by the trial judge and not by the upper Courts. It will be against the definition of
Question of Fact.

2. whether a criminal case is made out against Malcoda?

Malcoda, through her interview, has talked about pre-marital sex and live-in relationship
which reflects the image or reputation of women of Aligot who indulge in such activities
before marriage in a bad light. While giving her interview she should have to think twice
before saying such a bold statement in front of the media which can lead to such an issue
causing shame and mental trauma to the women of Aligot and the Country as a whole. The
comments stated by her are defamatory and obscene. The beliefs of the citizens of Aligot also
got hurt because of her bold comments on untouched topics like pre-marital sex or live-in
relationships, her comments were ironically sarcastic and that amounts to defamation.
Thus from the above arguments, we can conclude that the criminal case is made out against
the petitioner and all the charges are justified.

3. whether Malcoda is entitled to enjoy the right to express herself freely?

Clause (2) of Article 19 prevents any person from making any statement that defames the
reputation of another. Due to Malcoda’s interview, many women’s reputations in society has
gone down due to which they have to face mental trauma and illness as mentioned in the
given facts of the case. Due to her bold opinion about pre-marital sex, the women have to
face a lot of shame and were disrespected in the society of Aligot as practises like sex and sex
education were not talked about much there. The right to free speech is not absolute. It does
not mean freedom to hurt another’s reputation which is protected under Article 21 of the
Constitution. There must be a reasonable balance between the freedoms enshrined under
Article 19(1) and the social control permitted by clause (2)
Thus Malcoda is not entitled to enjoy her right to express herself as her views expressed in
the interview has defamed the reputation of women of Aligot and also society as a whole
which comes under reasonable restrictions of Article 19(2) of the Aligot Constitution.

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4. whether the complainants have locus standi?
In a criminal case, there are no specified rules regarding the concept of locus standi. Locus
standi is a concept of civil matters and there is no specific need to have a locus to approach
the court (in criminal cases). The complainants here are the aggrieved party and every person,
aggrieved or not has the power and they can file FIR. All 37 complainants have the right to
approach the court and seek justice.

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 ARGUMENTS ADVANCED

1. That the impugned order is justified or not.

Malcoda made a prayer before the high court to exercise its inherent power under section 482
of the Code of Criminal Procedure. Section 482 of CrPc states that High Court has Inherent
Power to quash an FIR. Saving of inherent powers of High Court to make such orders as may
be necessary to give effect to any order under this code, or to prevent abuse of the process of
any Court or otherwise to secure the ends of justice. Also, the inherent power contemplated
by section 482 has to be exercised sparingly, carefully and with caution and only where such
exercise is justified by the tests specifically laid down in the section itself1
The Supreme Court has reiterated the nature of this power thus:
- the power conferred on the high court under articles 226 and 227 of the constitution and
section 482 of the code have no limits but more the power due care and caution is to be
exercised while invoking these powers. When the exercise powers could be under article 227
or section 482 of the code it may not always be necessary to invoke the provisions of article
226.Some of the decisions of this Court laying down principles for the exercise of the powers
by the high court under articles 226 and 227 may be referred to2. The impugned order is
justified as the issue was questions of fact and the trial judge is the only competent authority.
Question of fact is a question concerning the reality of an alleged event or circumstance in a
trial by jury, usually determined by the jury. All the cases with the same subject matter must
be collectively heard by the Chief Metropolitan Magistrate.
The high court also condemned premarital sex and live-in relationship. The court should not
interfere either since the complainants require determination of factual controversies that are
best left to be decided by a court of the first instance. Most of the complainants are personally
aggrieved women. In the case of Niharika Infrastructure Pvt. Ltd. V. State of Maharashtra
and others3 High court has directed that no coercive measures shall be adopted against the
original accused in respect of the said FIR, the original complainant has preferred the present
appeal.
Thus, the order passed by the High Court is justified and the question of fact should be dealt
with by the trial judge and not by the High Courts. It will be against the definition of
Question of Fact.

2. That a criminal case is made out against malcoda.

The criminal charges on the petitioner are of sections 292, 499, 500 and 505.
292 IPC –

1
Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376
2
Pepsi foods ltd. V. judicial magistrate (1998) 5 SCC 749,758
3
Niharika Infrastructure Pvt. Ltd. V. State of Maharashtra and others SCC online SC 315

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 (1) For subsection (2) a book, pamphlet, paper, writing, drawing, painting, representation,
figure or any other object, shall be deemed to be obscene if it is lascivious or appeals
to the prurient interest or if its effect, or (where it comprises two or more distinct
items) the effect of any of its items, is if taken as a whole such as to tend to deprave
and corrupt person, who are likely, having regard to all relevant circumstances, to
read, see or hear the matter contained or embodied in it.
(2) Whoever-
a) Sells, lets to hire, distributes, publicly exhibits or in any manner puts into
circulation. or for purposes of sale, hire, distribution, public exhibition or
circulation, makes, produces or has in hid possession any obscene book, pamphlet,
paper, drawing, painting, representation or figure or any other obscene object
whatsoever, or
b) Imports, exports or conveys any obscene object for any of the purposes aforesaid,
or knowing or having reason to believe that such object will be sold, let to hire,
distributed or publicly exhibited or in any manner put into circulation, or
c) Takes part in or receives profits from any business in the course of which he
knows or has reason to believe that any such obscene objects are for any of the
purposes aforesaid. made produced, purchased, kept, imported, exported,
conveyed, publicly exhibited or in any manner put into circulation or
d) advertises or makes known by any means whatsoever that any person is engaged
or is ready to engage in any act which is an offence under this section, or that any
such obscene object can be procured from or through any person, or
e) (e) offers or attempts to do any act which is an offence under this section, shall be
punished 263 [on first conviction with im-prisonment of either description for a
term which may extend to two years, and with fine which may extend to two
thousand rupees, and, in the event of a second or subsequent conviction, with
imprisonment of either description for a term which may extend to five years, and
also with fine which may extend to five thousand rupees].

If we rely on clause 2(b) the interview given by malcoda was in a very obscene way her
statements about pre-marital sex and sex reflects women in a bad light, who indulge in
premarital sex, while she was giving the interview she must be aware of what statement she is
giving how it going to affect the society. In the case of Samaresh Bose and others. V. Amal
Mitra and other literature as art are one of the certain techniques and conscious caution.
When the subject is virulent that provides all the more reason for subdued caution, lest, in the
attempt to locate the virus disclosure of its causes, the treatment itself spreads the poison to
contaminate many more who are yet uncontaminated; that is why the quality of the writer and
quality of the languages employed by the writer is relevant. His purpose may be good but his
language may betray his purpose and bring about a completely reverse effect. Mere goodness
of purpose, therefore, does not offer justification for the employment of bad language – bad
in the larger sense including lascivious and vulgar. In our case may be malcoda wants to
portray the message for the society but the way she targeted the society and people that may
brainwash the young generation and create a bad image of the society in young minds, words
like sex and pre-marital sex may influence kids under 18 also like the magazine also sold to
schools where students get to read such interviews they will ask about such topics from their

12
parents which may put parents into an awkward situation. In case Ranjit D. Udeshi v. State of
Maharashtra4 pp:76-77 treating with sex in a manner offensive to public decency and
morality (and these are the words of our fundamental law) judged of by our national
standards and considered likely to pander to lascivious, prurient or sexually precocious minds
must determine the result. we need not attempt to bowdlerize all literature and thus rob
speech and expression of freedom. A balance should be maintained between freedom of
speech and expression and public decency and morality but when the latter is substantially
transgressed the former must give away. The interview given by malcoda was against the
moral values of the society, as aligot is a highly cultured society and sex is extensively
considered taboo, in such a society talking about sex might corrupt the collective thought
process of the society. Its incorporation will lead to corrupt young minds, which might lead to
sexual experimentation, irresponsible sexual behaviour, and promiscuity. Everyone has the
freedom to express their views but they should know whether their words are morally correct
or not, and malcoda is popular she should have taken care while expressing her views. In
Chandrakant kalyandas kakodar vs. state of Maharashtra5 para 12, The concept of obscenity
would differ from country to country depending on the standards of morals of contemporary
society. What is considered as a piece of literature in France may be obscene in England and
what is considered in both the countries as not harmful to public order morals may be
obscene in our country. Morals of aligot are clearly against such things which includes topics
like sex which may corrupt the society.
section 499 IPC
When we look into the definition of section 499, it goes as:
“Defamation. Whoever, by words either spoken or intended to be read, or by signs or by
visible representations, makes or publishes any imputation concerning any person intending
to harm, or knowing or having reason to believe that such imputation will harm, the
reputation of such person, is said, except in the cases hereinafter expected, to defame that
person.
Explanation 1. It may amount to defamation to impute anything to a deceased person, if the
imputation would harm the reputation of that person if living, and is intended to be hurtful to
the feelings of his family or other near relatives.
Explanation 2. It may amount to defamation to make an imputation concerning a company or
an association or collection of persons as such.
Explanation 3. Imputation in the form of an alternative or expressed ironically may amount to
defamation.
Explanation 4. imputation is said to harm a person’s reputa­tion, unless that imputation
directly or indirectly, in the estimation of others, lowers the moral or intellectual character of
that person, or lowers the character of that person in respect of his caste or of his calling, or
lowers the credit of that person, or causes it to be believed that the body of that person is in a
loathsome state, or in a state generally considered as disgrace-ful.

4
Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881
5
Chandrakant kalyandas kakodar 1970 AIR 1390

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Now that we have seen the definition we need to focus on the explanation-3 and I quote, “an
imputation in the form of an alternative or expressed ironically, may amount to defamation.”
This statement is very important to note as words being ironic can be mockery or a sarcastic
comment. When we look at the facts of the case, malcoda, the petitioner, has made a lot of
comments on the mentality and thinking of the people of aligot, stating that they need the
change and her comments in the interview were very sarcastic. Now saying that what she said
was for the good of the public, but this defence does not come handy 6here as her statements
made one part of the society judge the other and her statement directly defamed a
group/community of people. In the case of Subramanian Swamy vs Union of India, the
validity of 499 is discussed where it is said that the concept of criminal defamation is
constitutional and what makes it constitutional is article 21 which gives us the right to
reputation. In our case, the words spoken by malcoda directly affects the reputation of many
citizens of aligot. In the case of Shatrughan prasad, sinah vs rajbhau surajmal rathi7 the court
said that the statement made by the person hurt the sentiments of a community hence they are
liable for the action. In the case of Sahib Singh Mehra vs the state of Uttar Pradesh8, it is
clearly said that the person is liable as he published and they were defamatory, same as that
of malcoda. In the case of Google India private ltd. Vs Visakha industries9 the court has made
it clear that there is a difference between publication on the internet and publication on print
media, in our case the interview was published on print media hence it amounts to
defamation. In all the cases mentioned above, what we see is that defamation happened,
caused by the comments made by the petitioner in that particular case. Similarly, in our case,
the petitioner, malcoda has made some comments not directing any particular person but a
community. And her comments were ironically sarcastic and that amounts to defamation.
500 Punishment for defamation – whoever defames another shall be punished with simple
imprisonment for a term that may extend to two years, a fine, or both.
Classification of Offence-
Para I: punishment – simple imprisonment for two years, or fine, both – non- cognizable-
bailable – triable by court of the session- compoundable by the person defamed.
Para II: punishment- simple imprisonment for two years, or fine, or both – non -cognizable-
bailable- triable by a magistrate of the first class- compoundable by the person defamed.
From the arguments of the above section, we have proved that Malcoda has defamed the
women of Aligot due to which many of them have to face mental trauma and harm to their
reputation. The beliefs of the citizens of Aligot also got hurt because of her bold comments
on untouched topics like pre-marital sex or live-in relationships. According to the definition
section, 500 IPC punishes any person who has defamed another person with imprisonment of
2 years or with a fine or both. Thus Malcoda has committed the crime of defamation so she
should be punished under section 500 of the Indian Penal Code.

6
Subramanina Swamy vs ministry of law, govt. of India, 2016 Supreme court cases vol 7
7
Shatrughan prasad Singh vs rajbhau surajmal Rathi, 1996, supreme court cases (cri) 1310
8
Sahib Singh Mehra vs state of Uttar Pradesh, AIR 1965 SC 1451
9
Google India private ltd vs Visakha industries, 2017 SCC Online SC 996

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1 505. Statements conducing to public mischief.
2 (b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any
section of the public whereby any person may be induced to commit an offence against the
State or the public tranquillity; or
(c) with intent to incite, or which is likely to incite, any class or community of persons to
commit any offence against any other class or community, shall be punished with
imprisonment which may extend to three years, or with fine, or with both. Statements
creating or promoting enmity, hatred or ill-will between classes.—Whoever makes, publishes
or circulates any statement or report containing rumour or alarming news with intent to create
or promote, or which is likely to create or promote, on grounds of religion, race, place of
birth, residence, language, caste or community or any other ground whatsoever, feelings of
enmity, hatred or ill-will between different reli-gious, racial, language or regional groups or
castes or communi-ties, shall be punished with imprisonment which may extend to three
years, or with fine, or with both.
In Bilal Ahmed kaloo v. State of Andhra Pradesh10 Section 505 (2) promotion of such feeling
should have been done by making a publication or circulating any statement or report
contacting rumour or alarming news. Mens rea was held to be the necessary ingredient for the
offence under 505 (2). In Balwant Singh v. the State of Punjab11 also court held that mens rea
is an equally necessary postulate for the offence under section 505(2) also as could be
discerned from the words “with intent to create or promote or which is likely to create or
promote” as used in sub-section, “Mens rea means a wrongful intention. The maxim means
that an act does not itself make one guilty unless the mind is also guilty. The mere
commission of a criminal act or violation of law is not enough to constitute a crime. These
generally require, in addition, some elements of wrongful intent or other faults”. As malcoda
was very much aware of the morals of the society then also gave statements that anti- morals
of the aligot, the interview was given by malcoda was with the wrongful intention which may
influence young minds against society. As we relay on 2(b) words of malcoda are against the
public tranquillity and disturbing law and order of aligot. Her words may lead someone to
commit crimes. Her statements mention that having sex before marriage is very common.
People may get influenced by these thoughts by thinking every woman wants to have sex
before marriage. Her views reflected women in a bad light, who indulge in premarital sex.
According to 2(c), malcoda views didn’t even target women but also the society which is
highly cultural and talking about sex and pre-marital sex in such public platform where
students also can get bad influenced and portray her interview in a bad manner, malcoda is a
popular actress she must be aware of what she is saying and how it can affect the society.
.In Ramji Lal Modi v. State of UP12 Section 505(2) IPC provides that making statements
that create or promote enmity, haters or ill will between different classes of society is a
punishable offence involving imprisonment up to three years or fine or both. As malcoda’s
interview create haters of the society which think that society is of very orthodox thinking

10
Bilal Ahmed Kaloo v. State of Andhra pradesh 1997 7 SCC 431
11
Balwant singh v. state of punjab 1995 3 SCC 214
12
Ramji lal Modi v. State of UP 1957 AIR 620, 1957 SCR 860

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and people forget moral values, Malcoda is libel for such anti-society activities as her
interview create haters of the society.
Section 2:
This section of the act deals with the definition of the act, thereby giving meaning to the
words which are used in this act. Some of the definitions are as under:
a) Advertisement:
It includes any form of notice, circular, label, wrapper, or other document and any visual
representation using any light, sound, smoke or gas
b) Distribution:
It includes the distribution by way of samples, whether free or paid.
c) Indecent Representation Of Women:
It has been defined as the depiction of a women’s form, body, or any part in such a manner
which has the effect of being Indecent and derogatory towards women or denigrating them,
and is likely to deprave, corrupt or injure the public morality or order.
d) Label:
Means any written, marked, stamped, printed or graphic matter, affixed to or appearing upon
the package.
e) Package:
Includes a box, carton, tin or any other container.
f) Prescribed:
Means prescribed by rules made under this act.
In B. Sanjay Kumar Kumar vs The state of Andhra Pradesh13 also section 2(c) is defined. If
we relay 2(c) The interview given by portraying women in a very indecent manner, it shows
women in a bad light who indulged in premarital sex, this resulted in large section women
suffering mental harassment, a women principle of saviour international school also filed a
complaint against malcoda that her statement insinuates that women lose their virginity
before marriage which kind of defamed women dignity in society.
Section 4. Prohibition of publication or sending by post of books, pamphlets, etc.,
containing indecent representation of women
No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send
by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph,
representation or figure which contains indecent representation of women in any form:
As malcoda’s statement portrayed women as a character who is involved in activities like
premarital sex which resulted in mental harassment to women and reflected women in a bad
light her statement may also create confusion between people like every woman wants to

13
B. Sanjay Kumar Kumar, vs The State Of Ap

16
have pre-marital sex which may lead people to commit serious offence like Rape,
harassment, abuse, Catcalling etc. In Dharmendra Dhirajlal soneji vs State Of Gujarat14 court
stated that In fact, here the fundamental question which goes to the root is the basic human
right of girls, women and younger generation of tender ages of protection from psychic
pollution and vulgarism continuously tending to criminalise and voluptuous the society. If
appropriate steps are not taken to prevent the exhibition of obscene films and advertisements
and models more particularly on T.V. in the right earnest one will not be surprised if the
lessons in the art of crimes and prostitution may turn our sons, daughters and sisters into all
the houses having T.V. channels into rank criminals and prostitutes because the actors and
actresses are projected to be idols, heroes and heroines, sex-king and sex-queen in the society
and the senseless generation applauds and apes their action in life identifying themselves with
some such cheap heroes and heroines, committing all crimes against girls and women! Sex
and crime addiction in our younger generation is fast spreading crossing the danger line,
which is going to be worst than drug addiction!!
Section 6:
This section of the act gives various legal penalties or punishments to any person who has
breached the provisions of section 3 and section 4 shall be punishable as follows:
a) On first conviction he shall be imprisoned for a term which may extend to 2 years and with
a fine which may extend to 2000 rupees.
b) On second conviction he shall be imprisoned for a term of not less than 6 months which
may extend to 5 years and also with a fine of not less than 10,000 which may extend to 1 lakh
rupees.
Malcoda’s actions fulfil all the conditions mentioned under section 4 of the indecent
representation of women (prohibition) act and thus she should get punished as per mentioned
under section 6.

3. That Malcoda is entitled to enjoy the right to express herself freely.

Freedom of speech and expression Article 19(1)(a) and 19(2) :
Article 19(1) (a) of the Constitution of India 1949 states that – “all citizens shall have the right
to freedom of speech and expression”. It is the right to express one’s opinion freely without
any fear through oral/written/electronic / broadcasting/press.
Article 19(1) should be read with clause(2) which empowers the state to put reasonable
restrictions on the following grounds:
a) security of the state
b) friendly relations with foreign states
c) public order
d) decency and morality

14
Dharmendra Dhirajlal Soneji vs State Of Gujarat (1997) 1 GLR 198

17
e) contempt of court
f) defamation
g) indictment to an offence
h) integrity and sovereignty of India.
Man as rational being desires to do many things, but in civil society, his desires have to be
controlled, regulated and reconciled with the exercise of similar desires by other individuals.15
Thus Malcoda has the right to express herself freely but with some restrictions on her
fundamental right. In the case S. Khushboo v. Kanniammal & Anr16 it was submitted that the
appellant’s constitutional protection for speech and expression is not absolute and that it is
subject to reasonable restrictions based on consideration of public order, defamation, decency
and morality. The facts of the above-mentioned case are mostly similar to the facts of our
present case.
If we were to hold that even without any tendency to disorder or intention to create a
disturbance of law and order, by the use of words written or spoken which merely create
disaffection or feelings of enmity against the Government or anyone in public, then such an
interpretation of the sections would make them unconstitutional given Article 19(1)(a) read
with clause (2). One should express their opinion given the concept of decency and morality.
Decency and Morality sections 292 to 294 of the I.P.C provide instances of restrictions on the
freedom of speech and expression on the grounds of decency and morality. Supreme court in
Ranjeet Udeshi v. State of Maharashtra17 upheld the conviction of a bookseller.
Clause (2) of Article 19 prevents any person from making any statement that defames the
reputation of another. Due to Malcoda’s interview, many women’s reputations in society has
gone down due to which they have to face mental trauma and illness as mentioned in the given
facts of the case. Due to her bold opinion about pre-marital sex, the women have to face a lot
of shame and were disrespected in the society of Aligot as practises like sex and sex education
were not talked about much there. The right to free speech is not absolute. It does not mean
freedom to hurt another’s reputation which is protected under Article 21 of the Constitution.
There must be a reasonable balance between the freedoms enshrined under Article 19(1) and
the social control permitted by clause (2).18 Any form of art expresses an idea to the people and
art and literature influences people to a very large extent. It is a necessary duty of the state to
ensure that those words, signs or any form of expression if exposed to those who are open to
influences of this sort would corrupt such minds, are censored.19
Supreme Court, in Kedarnath Singh v State of Bihar20, held that a speech falling under sedition
will disrupt and endangers the authority f the government and resultantly affect the sovereignty
of the country. The government therefore must make sure that they are restricted to prevent a
situation of anarchy.

15
A.K. Gopalan v. State of Madras , AIR 1950 SC 27
16
S. Khushboo v. Kanniammal & Anr, (2010) 5 SCC 600
17
Ranjeet Udeshi v. State of Maharashtra AIR 1965 SC 881
18
Express Newspapers v. Union of India AIR 1958 SC 578
19
KA Abbas v. Union of India, AIR 1971 SC 481
20
Kedarnath Singh v. State of Bihar AIR 1962 SC 955

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In Bombay Hawkers Union v Bombay Municipal Corporation21, the provisions of the Bombay
Municipal Corporation Act was challenged as it mandated street hawkers to have the license
to carry on business and the government could revoke the license or remove unauthorized
hawkers from the street. The Supreme Court observed that the public street is meant for the use
of the public and hawkers if they cause nuisance, inconvenience or annoyance to the public
should be removed. The restrictions were held constitutional.
In-State of Uttar Pradesh v Kaushalya22, the restrictions imposed on the free movement of
prostitutes were held to be constitutional as it was imposed in the interest of the general public.
From the case, we can conclude that there should be the utilization of rights within the
restrictions.
Thus Malcoda is not entitled to enjoy her right to express herself as her views expressed in the
interview has defamed the reputation of women of Aligot and also society as a whole which
comes under reasonable restrictions of Article 19(2) of the Indian Constitution.

4. That the complainants have a locus standi.

We have to mention whether the complainants have a locus standi or not. But before coming
on to proving the complainant’s locus we need to understand what locus standi means. Locus
standi means the legal capacity to sue or approach courts. Under both the inquisitorial and
adversarial system, the parties approaching the courts must have been aggrieved or deprived
of their rights. Thus, in any legal process, the existence of locus standi is necessary.
Now if we look into this case, where the complainants are asked to prove the locus standi, the
basic thing is that the principle of locus standi mainly comes to the surface in civil cases,
more than that of criminal cases. Plus everyone has the right to file a complaint and the
concept of locus standi does not play any role here. “Principle of locus standi is alien to
criminal law”, the kerela high court recently rules that a magistrate cannot return a complaint
merely on the ground that it was filed by the wife of the complainant. If we try and relate this
to our case, even though the comments made by malcoda were not, particularly for someone
specific but they have the right to file a complaint against her and that they do not need locus
standi.
The aggrieved party has the right to file a case against anyone and there is no such need of
locus standi for them to file a case or file an FIR.

21
Bombay Hawkers Union v. Bombay Municipal Corporation AIR 1985 SC 1206
22
State of Uttar Pradesh v Kaushalya AIR 1964 SC 416

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 PRAYER

In the light of the arguments advanced and authorities cited, the respondent humbly submits
that the Hon’ble Court may be pleased to adjudge and declare that:

1. That the impugned order of the High Court is justified.

2. That all the FIRs against the petitioner are justified.

3. That a criminal case is made out against the petitioner and the petitioner should be given
appropriate punishment for the same.

4. That the petition should be dismissed and the case should continue in the Magistrate
Court.

Or any other order as it deems fit in the interest of equity, justice and good conscience.

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