MEMORIAL ON THE BEHALF OF RESPONDENT

STATEMENT OF FACTS.

Devta Pai was the most famous and respected freedom fighter of a Republic Country
Yunesia , also unofficially known as the FATHER OF THE NATION.
Sukesh Chandra Ghosh also known as NETAJI was a popular freedom fighter who
fought the SINGLISH EMPIRE with force.
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 are corrupt.
On December 2014, he posted on his Friendsbook account that Mr. Pai was a
SINGLISH AGENT and that his principles of non-violence were actually meant to
help the Singlish to continue their rule with less disturbance, he also went on to call
Mr. Pai a CUNNING FOX who helped the Singlish in their motives.
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.
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 Rupee on him and even the High Court upheld the decision.
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.
The Union Government asked the Friendsbook Authority to delete the controversial
post of Mr. Sitzu.
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.
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. SITZUS
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. SITZUS
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 laws 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 made1:-

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 generally 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.
2
A.I.R 2006 Delhi. 300

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 MEMORIAL ON THE BEHALF OF RESPONDENT

in the written conclusive submission, alleged that the plaintiff 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. Jones5, 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.
4
A.I.R. 1997 Raj. 170.
5
(1910) A.C. 20: Appeal from Jones v. E. Hulton & Co., (1909) 2 K.B. 444.

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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 mans own opinion of himself.

The above essentials of defamation is clearly proved by our petitioners 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 main
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

6
(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 persons 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 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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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. SITZUS

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 so 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
HONABLE 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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