Team 01 Moot Court

MEMORIAL ON THE BEHALF OF RESPONDENT

STATEMENT OF FACTS.

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Devta Pai was the most famous and respected freedom fighter of a Republic Country Yunesia , also unofficially known as the ‘FATHER OF THE NATION’.

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Sukesh Chandra Ghosh also known as ‘NETAJI’ was a popular freedom fighter who fought the SINGLISH EMPIRE with force.

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Mr. Mahendra Sitzu is a retired judge of Supreme Court of Yunesia. Mr. Sitzu was already known to have given many controversial statements like ‘80% of the Yunesians are fools’, ‘ All the politicians the politicians are corrupt’.

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On December 2014, he posted on his Friendsbook account that “ Mr. Pai was a ‘SINGLISH AGENT’ and that his principles of non-violence non -violence were actually meant to help the Singlish to continue their rule with less dist urbance, he also went on to call Mr. Pai a ‘CUNNING FOX’ who helped the Singlish in their motives.

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Moreover in another post he labeled Mr. Sukesh Chandra Ghosh as a Makanese Agent and claimed that he was just a paw of Makan who were using him to fight the Singlish and establish themselves as the master of Yunesia.

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Mr. Prabhat Pai, grandson of Mr. Devta Pai filed a DEFAMATION SUIT against Mr. Sitzu under the Yunesian Penal Code, were the Lower Court imposed a fine of 1,00,000 Yunesian Yunesian Rupee on him and even the High High Court upheld the decision.

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Police of New Dehri under the Union of Yunesia took a suo moto action against Mr. Rahul Pandit who liked and shared the post of Mr. Sitzu on social media and Mr. Pandit was arrested under the Information Technology act of Yunesia.

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The Union Government asked the Friendsbook Authority to delete the controversial  post of Mr. Sitzu.

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Further, Mr. Sitzu filed a writ petition in Supreme Court claiming that he has a right to express his opinion and any restriction imposed on it by the state is violation of ‘Right To Freedom Of Speech guaranteed under the Constitution’.

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The Union of Yunesia contended that Mr. Sitzu being a well-known public figure should have been more careful while commenting on such sensitive issue for his views may have a negative impact and corrupt the mind of the citizens of the nations.

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MEMORIAL ON THE BEHALF OF RESPONDENT

ISSUES PRESENTED.

1. WHETHER THERE WAS A DEFAMATION OF MR. PAI AND MR. GHOSH BY MR. SITZU?

2. WHETHER SHARING OF SUCH POSTS CAN BE CONSIDERED ‘OBSCENE’ AND AGAINST NATIONAL INTEREST?

3. WHETHER THE REMOVAL OF THE POST FROM MR. SITZU’S FRIENDSBOOK ACCOUNT AMOUNTED TO THE VIOLATION OF THE RIGHT TO FREEDOM OF SPEECH GUARANTEED UNDER PART III OF THE CONSTITUION?

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MEMORIAL ON THE BEHALF OF RESPONDENT

SUMMARY OF ARGUMENTS 1. WHETHER THERE WAS A DEFAMATION OF MR. PAI AND MR. GHOSH BY MR. SITZU? 1.1 All the published statement given by Mr. Sitzu fulfill all the essentials of

DEFAMATION given in law of torts. 1.2 Under Yunesian Penal Code, Sec 449 the offence of defamation has three main

essentials which has been committed by Mr. Sitzu.

2. WHETHER SHARING OF SUCH POSTS CAN BE CONSIDERED ‘OBSCENE’ AND AGAINST NATIONAL INTEREST? 2.1 The arrest was based on the IT ACT of Yunesia and it was believed that no foul

activity against the freedom fighters shall be tolerated and the govt is committed to protect the glory of the freedom fighters. 2.2 Sharing of such posts is considered ‘Obscene’ (i.e. offensive to the current

standard of morality) because their views can create negative impact and corrupt the mind of the citizens of the Nation.

3. WHETHER THE REMOVAL OF THE POST FROM MR. SITZU’S FRIENDSBOOK ACCOUNT AMOUNTED TO THE VIOLATION OF THE RIGHT TO FREEDOM OF SPEECH GUARANTEED UNDER PART III OF THE CONSTITUION? 3.1 Under art 19(1)(a) of Yunesian Const guarantees the right to freedom of speech

and expression to all the citizens. But the freedom of speech and expression is not absolute. 3.2 Under Art 19(2), the state is allowed to make l aws to impose reasonable

restriction on the right of free speech in the interest of the Sovereignty and Integrity of Yunesia.

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MEMORIAL ON THE BEHALF OF RESPONDENT

ARGUMENTS ADVANCED.

1. WHETHER THERE WAS A DEFAMATION OF MR. PAI AND MR. GHOSH BY MR. SITZU?

1.1 All the pub stat given by Mr. Sitzu fulfill all the essentials of defamation given in

law of torts. There are three essentials of Defamation: a) The stat must be defamatory :- Defamatory stat is one which tends to injure the reputation of the plaintiff. Defamation is the publication of a stat which tends to lower a person in the estimation of right thinking members of society generally. Whether a stat is defamatory or not depends upon how the right thinking members of the society are likely to take it.

In “Salmond on the law of Torts’” the following proposition on the nature of defamatory stat has been made 1:-

A defamatory stat is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right thinking members of society generall y and in  particularly to cause him to be regarded with feelings of hatred, content, ridicule, fear, dislike or disesteem.

In Ram Jethmalani V. Subramaniam Swamy2, with a composition of inquiry was examined the facts and circumstances relating to the assassination of late Shri Rajiv Gandhi the defendant at the press conference, alleged that the then Chief Minister of Tamil Nadu had prior information about the assassination. During the proceedings, the defendant 1

 Quoted in Deepak Kumar Bisaws v. National Insurance Co. Ltd., AIR 2006 Gau.110.  A.I.R 2006 Delhi. 300

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MEMORIAL ON THE BEHALF OF RESPONDENT

in the written conclusive submission, alleged that the plainti ff had been receiving money from LTTE(a banned organization).

The stat made by the defendant against the plaintiff was held to be quite unconnected with and irrelevant to the situation. The actual malice on the  part of the defendant was well established. Counting the professional standing of the plaintiff and his statute in social life. The Delhi High Court awarded damages of Rs 5 lacs.

Similarly, In S.N.M Abdi V. Prafulla Kuar Mohanta3, In this case the article was held to be defamatory in nature and the plaintiff was awarded damages amounting of Rs 5 lacs.

In D.P. Choudary V. Manjulata4, There was a publication of stat against Manjualata. The publication had resulted in her being ridiculed and affected her marriage prospects. The stat being defamatory the defendant were held liable.

 b) The stat must refer to the plaintiff in an action for defamation . The  person has to prove that the stat of which he complains referred to him. If the person to whom the stat was published could reasonably infer that the stat referred to the plaintiff, the defendant is nevertheless liable.

In Hulton Co. V. Jones 5, the defendants published a fictional article in their newspaper, Sunday Chronicle, written by the Paris correspondent,  purporting to describe a motor festival at Dieppe. It was held that defendant is liable for the defamation of the plaintiff. A person charged with libel cannot defend himself by showing that he intended in his own  breast not to defame, or that he intended not to defame the plaintiff. 3

 A.I.R. 2002 Gauhati 75.  A.I.R. 1997 Raj. 170. 5  (1910) A.C. 20: Appeal from  Jones v. E. Hulton & Co., (1909) 2 K.B. 444. 4

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MEMORIAL ON THE BEHALF OF RESPONDENT

In Newstead V. London Express Newspapers LTD. 6, the defendant  published an article stating that “Harold Newstead, a Camberwell man” has convicted by bigamy. The story was true of Harold Newstead, a Camberwell Barman. The action of defamation was brought by another

Harold Camberwell Barber. As the words were considered to be understood as referring to the plaintiff, the defendant were held liable.

c) The stat must be Published:- Publication of the stat is very essential to

 prove a defamatory sentence. Publication means making the defamatory matter known to some person other than the person defamed, and unless that is done no civil action for defamation lies. Communicating to the  plaintiff himself is not enough because defamation is the injury of reputation and reputation consists in the estimation in which others hold for him and not a man’s own opinion of himself.

The above essentials of defamation is clearly proved by our petitioner’s Post in Friendsbook account i.e. (i) The said statement is defamatory. (ii) The said statement clearly referred to the plaintiff. (iii) The said stat is published. It clearly shows that Mr. Sitzu is defaming Mr. Devta Pai and Mr. Sukesh Chandra Ghosh.

1.2 Under Yunesian Penal Code, Sec 449 the offence of defamation has three ma in

essentials which has been committed by Mr. Sitzu. Sec. 499, 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

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 (1939) 4 All E.R. 391 : (1940) 1 K.B. 377.

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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. — An imputation in the form of an alternative or expressed

ironically, may amount to defamation Explanation 4. —No imputation is said to harm a person’s reputation, unless that

imputation directly or indirectly, in the estimation of others, l owers 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 disgraceful.

2. WHETHER SHARING OF SUCH POSTS CAN BE CONSIDERED ‘OBSCENE’ AND AGAINST NATIONAL INTEREST?

2.1 The arrest was based on the IT ACT of Yunesia and it was believed that no foul

activity against the freedom fighters shall be tolerated and the govt is committed to protect the glory of the freedom fighters. Any person who sends, by means of a computer resource or a communication device, —  (a) Any information that is grossly offensive or has menacing character; or (b) Any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury,

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MEMORIAL ON THE BEHALF OF RESPONDENT

criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device, (c) Any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages.

Shall be punishable with imprisonment for a term which may extend to three years and with fine.  Explanation. —  For the purpose of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message. 2.2 Sharing of such posts is considered ‘Obscene’ (i.e. offensive to the current

standard of morality) because their views can create negative impact and corrupt the mind of the citizens of the Nation. The objective behind the 2008 amendment was to prevent the misuse of info tech,  particularly through social media. Sec. 66(a) comes with extremely wide  parameter, which allows whimsical interpretations by law enforcement agencies. It is a potential tool to gag legitimate free speech online, and to curtail freedom of speech and expression guaranteed under the const. , on-going far beyond the ambit of “reasonable restriction” on that freedom. The Supreme Court in the preliminary hearing accepted the contention that the  provision was very widely drafted, and gave arbitrary power to the police officers to make arrest. Therefore this justifies the arrest of Mr. Rahul Pandit and that his sharing and liking of post is considered ‘Obscene’.

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MEMORIAL ON THE BEHALF OF RESPONDENT

3. WHETHER THE REMOVAL OF THE POST FROM MR. SITZU’S FRIENDSBOOK ACCOUNT AMOUNTED TO THE VIOLATION OF THE RIGHT TO FREEDOM OF SPEECH GUARANTEED UNDER PART III OF THE CONSTITUION?

3.1 Under art 19(1)(a) of Yunesian Const guarantees the right to freedom of speech

and expression to all the citizens. But the freedom of speech and expression is not absolute.

Article 19(1)(a) of the Yunesian Constitution guarantees the right to freedom of speech and expression to all Yunesian citizens. But the freedom of speech and expression is not absolute. Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in s o far as such law imposes reasonable restrictions on the exercise of the right conferred  by the said sub clause in the interests of the sovereignty and integrity of Yunesia, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence

3.2 Under Art 19(2), the state is allowed to make laws to impose reasonable

restriction on the right of free speech in the interest of the Sovereignty and Integrity of Yunesia.

Under Article 19(2), the state is allowed to make laws to impose reasonable restrictions on the right of free speech in the interests of the sovereignty and integrity of Yunesia, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Out of those only defamation protects a  private individual interest and all others are public interests.

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MEMORIAL ON THE BEHALF OF PETITIONER

PRAYER WHEREFORE IN THE LIGHT OF THE FACTS STATED, ISSUES RAISED, ARGUMENTS ADVANCED, REASONS GIVEN AND AUTHORITIES CITED, THIS HON’ABLE COURT MAY BE PLEASED TO:

1. DECLARE THAT THE POST OF RESPONDENT IS DEFAMATORY AND

AGAINST THE SOVERIGNITY AND INTEGRITY OF THE NATION OF YUNESIA. 2. DECLARE THAT SHARING OF SUCH POST BE CONSIDERED AS

‘OBSCENE’ AND AGAINST NATIONAL INTEREST. 3. DECLARE THAT REMOVAL OF POSTS WHICH ARE AGAINST NATIONAL

INTREST IS CONSTITUTIONAL.

AND PASS ORDER, DIRECTION, OR RELIEF THAT MAY DEEM FIT IN THE INTEREST OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE.

FOR WHICH THE COUNSELS SHALL FOREVER PRAY

Counsels for the respondent.

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