TC - 07 Petitioner Memorial

MAIMS 4TH NATIONAL MOOT COURT COMPETITION, 2023
TEAM CODE -07
IN THE HON’BLE SUPREME COURT OF TEMPT
SLP No. _____/ 2023
IN THE MATTER BETWEEN
Mrs. Aaku & Anr. …. Petitioner

v.
State of Tempt & Ors. …. Respondents
MEMORANDUM ON BEHALF OF THE PETITIONERS
1
Memorial on Behalf of Petitioners
TABLE OF CONTENTS
LIST OF ABBREVIATIONS..........................................................................................................3
INDEX OF AUTHORITIES........................................................................................................4-5
CASES
BOOKS
STATUES REFERRED
STATEMENT OF JURISDICTION...............................................................................................6
STATEMENT OF FACTS..............................................................................................................7
STATEMENT OF ISSUES.............................................................................................................8
SUMMARY OF ARGUMENTS.....................................................................................................9
ARGUMENTS ADVANCED..................................................................................................10-23
PRAYER........................................................................................................................................24
2
ABBREVIATIONS
1. Art. - Article
2. SSMIs - Significant Social Media Intermediaries
3. Sec. - Section
4. CrLJ - Criminal Law Journal
5. P&H - Punjab and Haryana
6. MP - Madhya Pradesh
7. Guj - Gujarat
8. vols. - volumes
9. Ed. - Edition
10. Explanation - Exp.
11. vs - versus
12. AIR - All India Reporter
13. SCC - Supreme Court Cases
14. SC - Supreme Court
15. HC - High Court
16. Crl.A - Criminal Appeal
17. Cr.P.C - Criminal Procedure Code
18. IPC - Indian Penal Code
19. CIT - Commissioner of Income Tax
20. CBDT - Central Board of Direct Taxes
3
INDEX OF AUTHORITIES
CASE LAWS
Page No.
1. Arnav Goswami v state of Maharashtra………………………………………..17

2. Benett Coleman Case…………………………………………………………..23
3. E.P. Royappa v. State of Tamil Nadu………………………………………….26
4. Gautam Navlakha v Union of India …………………………………………..17
5. Gurbaksh Singh Sibbia v. State of Punjab…………………………………….15
6. Kedarnath v State of Bihar ……………………………………………………17
7. Keshvananda Bharti v. State of Kerala………………………………………...14
8. Kiku Sharda v. State of Punjab………………………………………………..12
9. Maneka Gandhi v. Union of India…………………………………………….14
10. Mithu v. State of Punjab……………………………………………………..14
11. R. Rajgopal v. State of Tamil Nadu………………………………………….20
12. S Rangarajan Case……………………………………………………………23
13. S. R. Bommai v. Union of India…………………………………………….14
14. Shreya Singhal v. Union of India……………………………...…………….20
15. Subramanyam Swami vs Union of India………………………...…….........18
16. Varun Grover v. state of Madhya Pradesh……………………………...……13
BOOKS
1. K.D. Gaur, Textbook on Indian Penal Code (Universal Law Publishing, 2020)
2. R.V. Kelkar, Lectures on Criminal Procedure (Eastern Book Company, 2022
3. Durga Das Basu, Shorter Constitution of India (LexisNexis, 2019)
4. M.P. Jain, Indian Constitutional Law (LexisNexis, 2018)
4
5. A.G. Noorani, Article 19 and the Constitution of India (Oxford University Press, 2019) -
7. S.N. Misra, Freedom of the Press (Universal Law Publishing, 2021)
8. Qanungo, Law of Sedition in India and Freedom of Expression (N.M. Tripathi, 1978) -
9. H.M. Seervai, Constitutional Law of India (Universal Law Publishing, 2019)
10. Soli J. Sorabjee, Free Speech, Defamation and Privacy in India (Oxford University Press,
2021)
STATUTES REFERRED
1. The Constitution of India - Articles 19, 21 and other fundamental rights.
2. The Tempt Penal Code, 1860 - Sections 499 and 500 related to defamation.
3. The Tempt Representation of People Act, 1951 - Section 151A regarding bye-elections.
4. The Code of Criminal Procedure, 1973 - Section 438 pertaining to anticipatory bail.
5. The Information Technology Act, 2000 - Provisions related to intermediaries and online
content.
6. The Tempt Unlawful Activities (Prevention) Act, 1967 - Section 35 and other anti-terror laws.
7. The Contempt of Courts Act, 1971 - Regulates acts amounting to contempt of court.
8. The Protection of Human Rights Act, 1993 - Facilitates protection and enforcement of human
rights.
9. The Right to Information Act, 2005 - Provides right to information to citizens.
10. The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 - Prevents atrocities
against marginalised groups.
5
STATEMENT OF JURISDICTION
The parties have approached the hon'ble Supreme Court of Tempt under Article 136 read with
Article 139A of the Constitution of Tempt.
6
STATEMENT OF FACTS
1. The State of Tempt is a diverse and resource-rich country. Mrs. Aaku belongs to the
'AHTMH' or 'AM' party where she played a significant role as a minister in a coalition
government until 2014. In the 2019 general elections, the AM Party lost, and The Grand
Party secured a majority, forming the central government. In 2021, a by-election was held
in the constituency due to the passing of the sitting MP, Mrs. Aaku won the elections.
2. Mrs. Aaku, Mrs. Naya, and Mr. Adi, the content head of "Sham" OTT, faced legal
charges under sections of the TPC, 1860 and the TIT Act, 2000 for an episode that hurt
the sentiments of the "Zoya community." During the show, Mrs. Aaku also made a joke
that offended the "ATI" community, leading to a viral social media backlash with
hashtags like #banMrs.Aaku and #DeleteEpisode4. A legislator, Mr. Baskin ATI, filed a
complaint alleging defamation and hurt sentiments toward the "ATI" community, leading
to the registration of FIR 54/2022 in the State of Gari. Mrs. Aaku was later convicted of
defamation in a trial concluding on February 8, 2023, and was disbarred under Section
8(3) of the TRP Act. Upon this conviction The People's Parliament Secretariat ordered
her removal from office and vacating her official residence on March 6, 2023. She
challenged the constitutionality of TRP Act provisions in the Supreme Court.
3. On August 11, 2023, another video surfaced implicating Mrs. Aaku for allegedly inciting
violence during a diplomatic conference in the State of Gari. This led to several charges
under sections of the TPC, as well as the Tempt Prevention of Damage to Public Property
Act, Arms Act, and the TUAP Act. Mrs. Aaku claimed the video an AI-generated deep
fake and requested it to be labeled as "Fake News" under the TIT (Intermediary
Guidelines and Digital Media Ethics Code), 2023. However, the Press Bureau declined to
intervene, stating it was a criminal matter.
4. Mrs. Aaku's anticipatory bail was denied in both the Sessions and the High Court of Gari
due to concerns about public interest and integrity. She has now sought anticipatory bail
from the hon’ble Supreme Court of Tempt. The Supreme Court has taken up the case,
recognizing its significance and set it for a final hearing on November 26, 2023.
7
STATEMENT OF ISSUES
ISSUE 1:
Whether Mrs. Aaku is guilty of defamation under TPC? Whether subsequent conduct of
elections under powers of section 151A of the TRP Act violate the law?
ISSUE 2:
Whether Mrs. Aaku should be granted anticipatory bail in FIR No.54/2022 and FIR No.
19/2023?
ISSUE 3:
Whether under the Tempt Information Technology (Intermediary Guidelines and Digital Media
Ethics Code), 2023 Fake news guidelines can the person be arrested for a deepfake video?
Whether the fact-checking unit for fake news justified in denial of the removal of news?
ISSUE 4:
Whether the Amendment places a fetter on the right to freedom of speech and expression.
Whether the unilateral power of the executive under Section 35 of the TUAP Act to categorize an
individual as a Schedule IV offender against the settled principles of law?
8
SUMMARY OF ARGUMENTS
ISSUE 1: Whether Mrs. Aaku is guilty of defamation under TPC? Whether subsequent
conduct of elections under powers of section 151A of the TRP Act violate the law?
It is humbly submitted before the Hon’ble Court that Mrs. Aaku is not guilty of defamation as
per the Tempt Penal Code (TPC) and the subsequent conduct of elections under the powers of
Section 151A of the Tempt Representation of the People (TRP) Act.
ISSUE 2: Whether Mrs. Aaku should be granted anticipatory bail in FIR No.54/2022 and
FIR No. 19/2023?
It is respectfully submitted that the petitioner is entitled to anticipatory bail in both cases. She has
a strong case on the merits and is likely to be acquitted. The prosecution has not shown that there
is a compelling public interest in keeping her in custody.
ISSUE 3: Whether under the Tempt Information Technology (Intermediary Guidelines

and Digital Media Ethics Code), 2023 Fake news guidelines can the person be arrested for a
deepfake video? Whether the fact-checking unit for fake news justified in denial of the
removal of news?
It is humbly submitted before this hon’ble court that the video was found to be fake, but Mrs.
Aaku was still arrested and charged. The petitioner argues that Mrs. Aaku's arrest was unlawful
under the Tempt Information Technology (Intermediary Guidelines and Digital Media Ethics
Code), 2023 ("Tempt IT Rules").
ISSUE 4: Whether the Amendment places a fetter on the right to freedom of speech and
expression. Whether the unilateral power of the executive under Section 35 of the TUAP
Act to categorize an individual as a Schedule IV offender against the settled principles of
law?
It is humbly submitted before this hon’ble court the amendment gives the government the power
to designate a person as a terrorist without a trial. This power can be used to silence dissent and
to stifle criticism of the government.
9
ARGUMENTS ADVANCED
ISSUE 1: Whether Mrs. Aaku is guilty of defamation under TPC? Whether subsequent
conduct of elections under powers of Section 151A of The TRP Act violates the Law?
It is humbly submitted before the Hon’ble Court that we stand before you today as the
representative of the petitioner, Mrs. Aaku, in this case concerning the allegations of defamation
under the Tempt Penal Code (TPC) and the subsequent conduct of elections under the powers of
Section 151A of the Tempt Representation of the People (TRP) Act.
The petitioner alleges that Mrs. Aaku made defamatory statements against the "ATI" community
during a comedy roast on the OTT platform "Sham." The prosecution also alleges that the Tempt
Election Commission's (TEC's) decision to hold subsequent elections in the Amaze constituency
after Mrs. Aaku was disqualified from holding office was illegal and violated the laws. It is
further submitted that the prosecution has failed to prove its case and that Mrs. Aaku is not guilty
of any of the charges against her.
Section 500 of the TPC defines defamation as "whoever defames another person by any
imputation concerning that person or concerning any member of the family of that person
intending to harm, or knowing or having reason to believe that such imputation will harm, the
reputation of that person, is said to defame that person."
It is submitted that in order to establish a case of defamation, the prosecution must prove the
following elements:
• That the defendant made a statement that was defamatory.
• That the defendant knew or ought to have known that the statement was defamatory.
• That the defendant intended to harm the plaintiff's reputation.
• That the plaintiff's reputation was actually harmed.
It is pertinent to note that Mrs. Aaku contends that her comedy roast on the OTT platform falls
within the ambit of artistic expression and satire, both of which are constitutionally protected
10
rights under Article 19(1) of the Constitution. The content was presented with the intent of
providing entertainment and social commentary, not to intentionally defame any particular
community.
It is further submitted that the comedic nature of the event should be taken into consideration, as
it was not meant to harm the reputation of any individual or community. The defendant maintains
that the statement was part of a larger act and should not be isolated from its intended humorous
context. Moreover, the defendant is a comedian and that she is entitled to make jokes about
different groups of people. The defendant also argues that she was not aware that the statement
would be considered defamatory by the "ATI" community. Further Mrs. Aaku's comments were
made in jest and were not driven by any ill will or desire to harm the reputation of the "ATI"
community. The court should weigh the intent behind the statement in determining its
defamatory nature.
The alleged defamatory statement lacked specificity. Defamation typically involves false
statements that harm the reputation of a specific individual or group. In this case, the reference to
the "ATI" community was general and did not target any identifiable individual within the
community. Mrs. Aaku argues that the subsequent conduct of elections under the powers of
Section 151A raises constitutional concerns and violates fundamental legal principles.
It is submitted that Section 151A empowers the election commission to recommend Mrs. Aaku's
removal, thereby infringing upon the separation of powers between the executive and legislative
branches. Mrs. Aaku contends that this intrusion compromises the delicate balance envisaged by
the Constitution.
Further, it is submitted that Section 151A of the TRP Act violates the basic structure of the
Constitution. In support of this argument, the doctrine of basic structure, as articulated in the case
of Keshavananda Bharati v. State of Kerala1, the doctrine, which holds certain features of the
Constitution as immutable, can be applied to challenge the constitutionality of Section 151A as it
interferes with the separation of powers and the democratic framework.
1
(1973) 4SCC 225
11
It is submitted that the provision, in its application, goes against democratic values, particularly
when her conviction may not be directly related to her role as a representative. It raises concerns
about the fairness of the electoral process.
In the landmark case of S.R. Bommai v. Union of India2, the court emphasized the importance of
preserving the separation of powers. The provision in question disrupts the delicate balance
envisaged by the Constitution.
The provision violates the right to a fair trial, a fundamental aspect of due process. The case of
Maneka Gandhi v. Union of India3 establishes that the procedure established by law must be fair
and reasonable. It is pertinent to note that that the provision, by allowing the recommendation of
removal before the completion of the appeal process, runs afoul of the principles of fairness
enunciated in this case.
In the case of Mithu v. State of Punjab4, it was held that the provision imposes a disproportionate
penalty. The case established that the punishment should be proportionate to the offence. Section
151A, by recommending removal based solely on conviction, fails to adhere to this established
legal principle. A more nuanced approach, considering the nature and gravity of the offence, is
necessary. Furthermore, by allowing the election commission to recommend removal without
due process and consideration for the nature of the offence, violates fundamental constitutional
principles, including the basic structure, due process, and the separation of powers.
It is submitted that this case emphasizes the unconstitutionality of Section 151A, as it violates the
basic structure, undermines due process, and imposes a disproportionate penalty. In the case of
Kiku Sharda v. State of Punjab, comedian Kiku Sharda was arrested for mimicking a religious
leader on a television show. Similarly, in the present case, the petitioner Mrs. Aaku's statement
during the comedy roast on the OTT platform "Sham" can be seen as a form of mimicry or satire.
Just as Kiku Sharda's act was meant for entertainment purposes and not to harm religious
2
AIR 1994 SC 1918
3
AIR 1978 SC 597
4
AIR 1983 SC 473
12
sentiments, Mrs. Aaku's statement was part of a larger act and should be viewed in the context of
the show.
In another case of Varun Grover v. State of Madhya Pradhesh, comedian Varun Grover
challenged the registration of an FIR against him for allegedly hurting religious sentiments
through his stand-up comedy act. Similarly, my client Mrs. Aaku's statement during the comedy
roast can be argued to be a form of artistic expression and falls within the realm of freedom of
speech and expression. The act may have offended certain individuals or communities, but it
should be protected under the right to artistic expression.
In the light of above arguments, we pray that this hon’ble court recognizes the intent behind Mrs.
Aaku's statement during the comedy roast, which was meant to importance of freedom of speech
and expression, particularly in the context of artistic expression and comedy.
We pray that the court acknowledges the intent behind Mrs. Aaku’s entertain and provoke
laughter, rather than harm the reputation of any individual or community. It is requested before
the court, for a declaration that Section 151A violates the right to a fair trial and due process, as
guaranteed by the Constitution and Seek a direction to review and reconsider any removal
recommendations made under Section 151A without completion of the appeal process.
ISSUE 2: Whether Mrs. Aaku should be granted Anticipatory Bail in Fir No.54/2022 and
Fir No. 19/2023.
It is respectfully submitted that the petitioner is entitled to anticipatory bail in both cases. She is a
public figure and there is no risk of her absconding from trial. She has a strong case on the merits
and is likely to be acquitted. The prosecution has not shown that there is a compelling public
interest in keeping her in custody.
Further, in order to grant anticipatory bail, it is essential to establish that there exists no case or
evidence to warrant the arrest of the accused. In the present case, the allegations against Mrs.
Aaku are based on a video in which she is seen participating in a comedy roast. However, it is
13
important to note that the act was performed in the context of a comedy show and was intended
to entertain and provoke laughter. The comedic nature of the event should be taken into
consideration, as it was not meant to harm the reputation of any individual or community.
It is submitted that the defendant has failed to provide substantial evidence to support the charges
against Mrs. Aaku. The video in question does not contain any defamatory or inciteful statements
that would warrant criminal action. It is crucial to interpret the statement in the context of the
show, rather than isolating it from its intended humorous acts and gestures. Therefore, the lack of
evidence and the weak case against Mrs. Aaku should be considered in granting her anticipatory
bail.
In FIR No.19/2023, Mrs. Aaku has been charged with inciting violence under Section 124A of
the TPC and other offences. The allegation is that she made a video in which she incited violence
against international delegates visiting a diplomatic conference in the State of Gari. Mrs. Aaku
denies the allegations against her. She argues that the video is a deep fake and that she never
made the statements attributed to her. She also argues that even if the video is genuine, her
statements do not amount to incitement of violence.
Moreover, in the case of FIR No. 54/2022, the alleged defamatory statement made by Mrs. Aaku
during the comedy roast was a part of a scripted performance. It is essential to consider the
context in which the statement was made, as it was intended to be humorous and not to incite
hatred or harm. Furthermore, the complaint filed by Mr. Baskin ATI does not provide any
substantial evidence to prove that the sentiments of the "ATI" community were genuinely hurt.
Similarly, in FIR No. 19/2023, the video allegedly showing Mrs. Aaku inciting violence during
the diplomatic conference needs to be critically examined. Mrs. Aaku has vehemently denied
making those statements, claiming that the video is an AI-generated deep fake. This raises doubts
about the authenticity and reliability of the evidence presented against her. It is imperative to
conduct a thorough investigation to ascertain the veracity of the video before denying
anticipatory bail.
14
In the case of Arnab Goswami v State of Maharashtra5 , the Supreme Court of India held that
anticipatory bail should be granted unless there is a strong case against the accused and there is a
risk of him or her absconding from trial. In the present case, there is no strong case against Mrs.
Aaku and there is no risk of her absconding from trial. Therefore, she is entitled to anticipatory
bail.
Further in the case of Gautam Navlakha v Union of India6 , the Supreme Court of India held that
anticipatory bail should be granted unless there is a compelling public interest in keeping the
accused in custody. The Court also held that the accused's right to liberty cannot be sacrificed
lightly.
In the case of Kedar Nath Singh v. State of Bihar 7, the Supreme Court held that the offense of
defamation must be read in the light of Article 19(1)(a) of the Constitution, which guarantees the
right to freedom of speech and expression. The court emphasized that restrictions on free speech
must be narrowly construed, and the context in which the statement is made should be taken into
consideration. It is submitted that applying this precedent, Mrs. Aaku's comments during a
comedic performance should be viewed with a contextual lens, recognizing the inherent
exaggeration and satire involved in such artistic expressions.
Further, in the case of Gurbaksh Singh Sibbia v. State of Punjab8 , the Supreme Court
emphasized the importance of preserving personal liberty during the investigation stage. The
court held that the grant of anticipatory bail is not a blanket order but should be considered to
prevent harassment, ensuring that individuals are not subjected to custodial interrogation without
proper grounds. It is submitted that by applying this precedent, Mrs. Aaku's right to liberty
should be upheld, especially when the charges are yet to be proven, and denying anticipatory bail
may lead to unwarranted restrictions on her freedom.
5
2020 SC 964
6
2018 SC
7
1962 AIR 955, 1962 SCR Supl. (2) 769
8
1980 AIR 1632, 1980 SCR (3) 383
15
In the case of Maneka Gandhi v. Union of India, it emphasized the need for fair legal procedures.
Denying anticipatory bail without a prima facie case violates the principles of natural justice.
Mrs. Aaku should be afforded the protection of these principles.
In conclusion, the lack of evidence and weak case against Mrs. Aaku, coupled with the need to
protect freedom of speech and artistic expression, provide strong grounds for granting her
anticipatory bail in FIR No.54/2022 and FIR NO. 19/2023. I urge this honourable court to
carefully consider these arguments and ensure that justice is served.
ISSUE 3: Whether under The Tempt Information Technology (Intermediary Guidelines

and Digital Media Ethics Code), 2023 fake news guidelines can the person be arrested for a
Deep fake Video? Whether the Fact-Checking Unit for fake news justified in denial of the
removal of news?
It is humbly submitted before this hon’ble court that Mrs. Aaku, the petitioner in this case is a
prominent politician who was charged with inciting violence on the basis of a deepfake video
that was circulated online. The video was found to be fake, but Mrs. Aaku was still arrested and
charged. The petitioner argues that Mrs. Aaku's arrest was unlawful under the Tempt Information
Technology (Intermediary Guidelines and Digital Media Ethics Code), 2023 ("Tempt IT Rules").
The Tempt IT Rules provide a framework for regulating online content and for protecting users
from harm. However, the rules do not authorize the arrest of individuals for sharing deepfake
videos.
In addition, we argue that the fact-checking unit for fake news was not justified in denying the
removal of the deep fake video. The Tempt IT Rules require intermediaries to remove fake news
content from their platforms upon request. However, the fact-checking unit refused to remove the
video, on the grounds that it was not possible to verify whether the video was fake or not.
It is submitted that the guidelines in question are designed to regulate digital media and
safeguard against the dissemination of false information. However, it is imperative to discern the
intent behind these guidelines. Mrs. Aaku contends that the video in question is a product of AI-
created deep fake technology, asserting that she never uttered the incendiary words attributed to
16
her. This raises a substantial question of whether the current provisions under the IT guidelines
are appropriately equipped to address the nuanced complexities of deep fake technology.
It is pertinent to note that the fact-checking unit's denial of the removal of news, justified under
the Tempt Information Technology (Intermediary Guidelines and Digital Media Ethics Code),
2023, raises concerns about the potential infringement on the right to challenge the designation
of content as "fake news."
It is submitted that the guidelines must not be interpreted to stifle dissent or differing
perspectives. The denial of removal must be subject to an effective mechanism allowing
individuals to challenge the fact-checking unit's determination. Without such a mechanism, the
guidelines risk becoming a tool for censorship rather than a means to curb misinformation.
In the case of Shreya Singhal v. Union of India9 , In this case, the Supreme Court of India struck
down Section 66A of the Information Technology Act, 2000, which criminalized the sending of
offensive messages through communication services. The court held that the provision was
vague and overbroad, and violated the right to freedom of speech and expression. This case
establishes the importance of interpreting and applying provisions related to online content in a
manner that upholds the principles of freedom of speech and expression.
Further in the case of R. Rajagopal v. State of Tamil Nadu10 , the Supreme Court recognized the
right to privacy as a fundamental right under Article 21 of the Indian Constitution. The court held
that individuals have a right to control the dissemination of information about their private lives
and that this right must be balanced with the right to freedom of speech and expression. This case
highlights the need to consider the impact and intent of deep fake videos on individuals' privacy
rights and the importance of striking a balance between competing rights.
In the present case Mrs. Aaku challenges the designation of the video as a deep fake, seeking its
classification as "fake news." This argument aligns with the need for a robust mechanism to
challenge such designations to ensure fair and impartial assessments. It is submitted that the fact-
9
AIR 2015 SC 1523
10
1995 AIR 264
17
checking unit for fake news has not provided any justification for its denial of the removal of the
video. The fact-checking unit for fake news is a body that has been set up by the government to
identify and remove fake news. However, the fact-checking unit is not a judicial body and it does
not have the power to make decisions about the removal of content.
In the present case, the fact-checking unit has not provided any justification for its denial of the
removal of the video. The fact-checking unit has simply stated that the video is not fake news.
However, this is not a satisfactory explanation. The fact-checking unit should have provided a
detailed explanation of why it believes that the video is not fake news.
In the case of Subramanian Swamy v. Union of India11 , the Supreme Court upheld the
constitutional validity of Section 66A of the Information Technology Act, 2000, which
criminalized the sending of offensive messages through communication services. The court held
that the provision was a reasonable restriction on the right to freedom of speech and expression,
as it aimed to prevent the spread of offensive and harmful content. This case demonstrates the
need to carefully consider the impact and potential harm caused by deep fake videos, and the role
of regulations in addressing such issues.
It is submitted that the deep fake video created by Mrs. Aaku is proven to be false and harmful,
the fact-checking unit should consider the removal of the news to prevent further dissemination
of misinformation. However, it is important to ensure that the fact-checking process is
transparent, unbiased, and adheres to established standards of accuracy and fairness.
In the case of Common Cause (A Regd. Society) v. Union of India 12 , it addresses the
accountability and transparency of regulatory bodies. It establishes that decisions impacting
fundamental rights must be taken in a fair and transparent manner. It is submitted that Common
Cause underscores the importance of transparency in decision-making processes. Mrs. Aaku's
challenge to the fact-checking unit's decision aligns with the principles laid out in this case,
urging for a transparent and accountable assessment.
11
AIR 2016 SC 2728
12
1994 SCC 394
18
In conclusion, the issues raised in this matter necessitate a careful examination of the Tempt
Information Technology (Intermediary Guidelines and Digital Media Ethics Code), 2023, to
ensure that it aligns with constitutional principles and international standards. We seek a
balanced approach that addresses the challenges posed by deep fake technology while upholding
the fundamental rights of individuals in the digital space.
ISSUE 4: Whether the amendment places a fetter on the Right to Dissent and thus violates
the Right to Freedom of Speech and Expression. Whether the Unilateral Power of the
Executive under Section 35 of the TUAP Act to categorise an individual as a Schedule IV
offender against the settled principles of law?
It is humbly submitted before this hon’ble court the amendment gives the government the power
to designate a person as a terrorist without a trial. This power can be used to silence dissent and
to stifle criticism of the government.
Through Sections 35 and 36, the government now has the power to categorize individuals as
‘terrorists’. The Petitioners argue that this amendment gives arbitrary power to the government to
target voices of dissent and opposition. Further, Sections 35 and 36 violate the right to equality
under Article 14, right to freedom of speech under Article 19(1)(a) and right to life with dignity
under Article 21 of the Constitution.
However, it is to be noted that the UAPA only provides for a review procedure (under Section
36) once a person has been listed as a terrorist in the new Fourth Schedule as per Section 35(1)
(a) of the amended Act. This means that the individual can either have his name removed from
the list in the Schedule after making an application to the Central government under Section
36(2)(a) of the amended Act or wait for the central government to do so on its own, under
Section 35(1)(c) of the amended Act.
However, there is no prescribed period for the de-notification of persons from the list of
terrorists, which means that unless the person or the Central Government take active steps, the
individual could remain on the list of terrorists in the Fourth Schedule perpetually.
19
It is submitted that the amendment is vague and overbroad. It does not define what constitutes a
"terrorist act" or a "terrorist organization." This gives the government wide discretion to
designate people as terrorists. This discretion can be abused to target dissenters and critics of the
government. The amendment has a chilling effect on free speech. People may be afraid to
express dissent or to criticize the government for fear of being designated as a terrorist.
It is submitted that Mrs. Aaku is a Member of Parliament who has been charged with defamation
and incitement of violence. She is alleged to have made derogatory remarks about the "ATI"
community and to have incited violence against international delegates visiting a diplomatic
conference in the State of Gari.
It is further submitted that the government could use the amendment to the UAPA Act to
designate Mrs. Aaku as a terrorist for her alleged statements. This would be a clear violation of
her right to freedom of speech and expression. Mrs. Aaku is entitled to express her views, even if
they are unpopular or offensive. The government should not be able to use the UAPA Act to
silence her dissent.
In the S. Rangarajan13 case, the court emphasized that freedom of speech includes the right to
express dissenting views. The judgment highlighted the importance of a vibrant democracy
where diverse opinions, even if vehement, contribute to public discourse. It is submitted that
Mrs. Aaku's expressions in the comedy roast, albeit controversial, can be viewed as a form of
dissent or criticism, aligning with the principles laid out in S. Rangarajan. The legal actions
against her should be scrutinized for their potential impact on this inherent right.
In Bennett Coleman case14, the court recognized that any form of direct or indirect restraint on
the press could have a chilling effect on free speech. The judgment stressed the importance of
fostering an environment free from fear or intimidation. It is submitted that Mrs. Aaku's arrest
and the subsequent backlash on social media exemplify the chilling effect in action. The legal
consequences act as a deterrent to others who might contemplate expressing dissent in public
forums, echoing the concerns rose in Bennett Coleman.
13
1989 SCC (2) 574
14
1973 AIR 106, 1973 SCR (2) 757
20
The right to dissent is a fundamental aspect of a democratic society, as it allows individuals to

express their disagreement with prevailing opinions or policies. It is an essential component of
the right to freedom of speech and expression. The amendment in question, which places a fetter
on the right to dissent, raises concerns regarding its compatibility with the right to freedom of
speech and expression.
In the present case, Mrs. Aaku's right to dissent is at stake. The amendment, which restricts
dissenting opinions, may have a chilling effect on her freedom of speech and expression. Mrs.
Aaku expressed her dissent through her statement during the comedy roast on the OTT platform
"Sham." If she is penalized or silenced for expressing her dissenting views, it would set a
dangerous precedent and undermine the principles of free expression and democratic values.
The amendment might be susceptible to misuse, leading to the selective targeting of dissenters or
critics of the government. If authorities use the amendment to silence specific viewpoints or
political opposition, it undermines the principle of equal protection and fairness under the law.
Mrs. Aaku's arrest following her participation in a comedy roast that targeted a specific
community raises concerns about selective targeting. If the amendment enables authorities to use
legal mechanisms to suppress dissent or criticism selectively, it compromises the integrity of
freedom of speech and expression.
Arguments for the petitioners that the unilateral power of the executive under Section 35 of the
TUAP Act to categorize an individual as a Schedule IV offender is against the settled principles
of law:
 The power given to the executive under Section 35 is arbitrary and discretionary. It does
not provide for any safeguards against the misuse of this power.
 The power is susceptible to abuse, as it can be used to target dissenters and critics of the
government.
 The power is violative of the principle of natural justice, as it does not provide for an
opportunity of hearing to the individual before he/she is categorized as a Schedule IV
offender.
21
 The power is violative of the right to equality, as it discriminates against individuals who
are categorized as Schedule IV offenders.
It is submitted that allowing the executive unilateral power to categorize an individual as a

Schedule IV offender without a fair and transparent process violates the principles of due process
and natural justice. The affected individual should have the right to be heard and present their
case before such a significant designation.
In the present case, Mrs. Aaku's categorization as a Schedule IV offender appears to lack a
transparent and fair process. If the executive exercises such powers without affording individuals
the opportunity to defend themselves, it raises concerns about procedural fairness. It is submitted
that the unilateral categorization of an individual as a Schedule IV offender without any judicial
involvement deprives the individual of their right to due process and a fair trial. It is essential
that individuals have the opportunity to present their case, challenge the allegations against them,
and have their rights protected through a transparent and impartial judicial process.
Mrs. Aaku's categorization as a Schedule IV offender without any judicial involvement raises
concerns about the denial of due process and a fair trial. This unilateral action by the executive
denies Mrs. Aaku the opportunity to present her defense, challenge the allegations, and have her
rights protected through a proper judicial process.
In the landmark case of Kesavananda Bharati v. State of Kerala, the Supreme Court of Tempt
upheld the doctrine of separation of powers and emphasized the importance of checks and
balances between the executive, legislative, and judicial branches of government. The court held
that no branch of government should have unchecked authority. In the present case the unilateral
power of the executive to categorize Mrs. Aaku as a Schedule IV offender without any judicial
oversight raises concerns about the violation of the principle of separation of powers and the lack
of checks and balances. This case law supports the argument that the executive's unilateral power
should be subject to judicial review to ensure the proper functioning of the democratic system.
22
In E.P Royappa v. State of Tamil Nadu 15 case, the Supreme Court emphasized the need for public
authorities to act fairly and without arbitrariness. If executive powers are exercised without
proper criteria or justification, it could amount to a violation of Article 14 of the Constitution,
which guarantees the right to equality. It is submitted that Mrs. Aaku's categorization without
clear criteria or a transparent process raises concerns about arbitrary designations. This aligns
with the principles outlined in Royappa case, emphasizing the need for public authorities to act
without arbitrariness.
In conclusion, the court is invited to carefully scrutinize the provisions of Section 35 of the
TUAPA Act, particularly in light of Mrs. Aaku's case. The unbridled power granted to the
executive to categorize individuals as Schedule IV offenders demands a meticulous evaluation to
ensure its constitutionality and adherence to the principles of justice and the rule of law.
PRAYER
15
1974 AIR 555
23
In light of the arguments presented and the legal principles outlined above, the petitioner
respectfully prays that the court consider the following:
1. Discharge Mrs. Aaku, if the evidence does not establish a prima facie case against her.
2. Refrain from framing charges against the petitioner under Section 228 of the CrPC if
there are insufficient grounds to do so.
3. Grant anticipatory bail to Mrs. Aaku in FIR No.54/2022 and FIR No. 19/2023,
considering the lack of evidence and weak case against her.
4. Declare the arrest of Mrs. Aaku as unlawful under the Tempt IT Rules and ensure fair and
impartial assessments of content removal requests.
5. Evaluate the provisions of Section 35 of the TUAPA Act to ensure its constitutionality
and adherence to the principles of justice and the rule of law.
AND/OR
Any other just and equitable order as it deems fit in the interest of equity, justice, and good
conscience.
For This Act of Kindness, the Petitioner Shall Duty Bound Forever.
24

TC - 07 Petitioner Memorial

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

TC - 07 Petitioner Memorial

Uploaded by

Copyright:

Available Formats

MAIMS 4TH NATIONAL MOOT COURT COMPETITION, 2023

TEAM CODE -07

IN THE HON’BLE SUPREME COURT OF TEMPT

SLP No. _____/ 2023

IN THE MATTER BETWEEN

Mrs. Aaku & Anr. …. Petitioner

MEMORANDUM ON BEHALF OF THE PETITIONERS

2. SSMIs - Significant Social Media Intermediaries

4. CrLJ - Criminal Law Journal

5. P&H - Punjab and Haryana

10. Explanation - Exp.

12. AIR - All India Reporter

13. SCC - Supreme Court Cases

14. SC - Supreme Court

15. HC - High Court

16. Crl.A - Criminal Appeal

17. Cr.P.C - Criminal Procedure Code

18. IPC - Indian Penal Code

19. CIT - Commissioner of Income Tax

20. CBDT - Central Board of Direct Taxes

1. Arnav Goswami v state of Maharashtra………………………………………..17

2. R.V. Kelkar, Lectures on Criminal Procedure (Eastern Book Company, 2022

3. Durga Das Basu, Shorter Constitution of India (LexisNexis, 2019)

4. M.P. Jain, Indian Constitutional Law (LexisNexis, 2018)

7. S.N. Misra, Freedom of the Press (Universal Law Publishing, 2021)

9. H.M. Seervai, Constitutional Law of India (Universal Law Publishing, 2019)

1. The Constitution of India - Articles 19, 21 and other fundamental rights.

9. The Right to Information Act, 2005 - Provides right to information to citizens.

ISSUE 3: Whether under the Tempt Information Technology (Intermediary Guidelines

ISSUE 3: Whether under The Tempt Information Technology (Intermediary Guidelines

The right to dissent is a fundamental aspect of a democratic society, as it allows individuals to

It is submitted that allowing the executive unilateral power to categorize an individual as a

You might also like