I T H ' S C I: Tnnlu Moot Court Internals, 2020

TNNLU MOOT COURT INTERNALS, 2020 Team 15
TNNLU MOOT COURT INTERNALS, 2020
IN THE HON’BLE SUPREME COURT OF INDIKA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO. _____/ 2020
WITH
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. ______/ 2020
IN THE MATTER CONCERNING THE VALIDITY OF SECTIONS 499 AND 500 OF

THE INDIKAN PENAL CODE AND SECTION 199 OF CODE OF CRIMINAL
PROCEDURE
PETITION 1
INDIKAN SOCIETY OF JOURNALISTS AND AUTHORS ....PETITIONER
VERSUS
UNION OF INDIKA ....RESPONDENT
WITH
APPEAL 1
OUR TIME NEWS ....PETITIONER
VERSUS
UNION OF INDIKA & ANR. ....RESPONDENT
MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS/APPELLANTS
MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 1

Table of Contents
INDEX OF AUTHORITIES 3
STATEMENT OF JURISDICTION 5
STATEMENT OF FACTS 6
STATEMENT OF ISSUES 8
SUMMARY OF ARGUMENTS 9
ARGUMENTS ADVANCED 11
1.WHETHER THE WRIT PETITION FILED BY ISJA IS MAINTAINABLE…………………………….
11
I.VIOLATION OF FUNDAMENTAL RIGHTS………………………………………………………

11
II. DECISION IN SUBRAMANIAM SWAMY IS NOT BINDING……………………………….…... 11
III. COURT MAY HEAR THE ISSUE AGAIN…………………………………………………….14
2. WHETHER THE IMPUGNED PROVISIONS DO NOT COMPLY WITH THE STANDARDS OF

REASONABLENESS AND CREATE A CHILLING EFFECT ON FREEDOM OF
SPEECH……………….15
I. RESTRICTIONS ON FREEDOM OF SPEECH MUST BE NARROW………………………………..15
II. STANDARD FOR ESTABLISHING LIABILITY CREATES A CHILLING EFFECT ON FREE SPEECH…
16
III. DEFAMATION IS A CIVIL WRONG…………………………………………………………18
IV. PROCEDURAL FRAMEWORK FORMS SUPPLEMENTARY PENALTY WHICH LEADS TO SELF-

CENSORSHIP…………………………………………………………………………………..20
3. WHETHER OUR TIME NEWS CAN FILE A COMPLAINT FOR CRIMINAL

DEFAMATION…………..21
4. WHETHER MR. D’SOUZA’S REMARKS ARE PROTECTED BY PARLIAMENTARY PRIVILEGE……

22
I. SCOPE OF PARLIAMENTARY PRIVILEGE DOES NOT ENCOMPASS REMARKS ON

TWITTER……..22
II. MR. D’SOUZA’S COMMENTS FALL SQUARELY WITHIN THE SCOPE OF CRIMINAL
DEFAMATION…………………………………………………………………………………24
PRAYER………………………………………………………………………………………26


Index of Authorities
Cases
1. A-One Granites v. State of U.P, 2001 3 SCC 537.

2. Arnit Das v. State of Bihar, 2000 5 SCC 488.
3. Atherton & Co. Pvt. Ltd. & Ors. v. Rainbow Surgicial Dressing Manufacturing Co.,
(1984) 2 GLR 795.
4. Balraj Khanna & Ors v. Moti Ram 1971 SCR 447.
5. Chandra Deo Singh v. Prokash Chandra Bose, 1964 SCR (1) 639.
6. Chintaman Rao v. State of Madya Pradesh, AIR 1951 SC 118.
7. Divisional Controller, KSRTC v. Mahadeva Shetty, 2003 7 SCC 197;.
8. Jatish Chandra Ghosh v. Hari Sadan Mukherjee, 1963 AIR 613.
9. Kanti Bhadra Shah And Anr vs State Of West Bengal, 2000 (1) SCR 27.
10. Keshav Mills Co. Ltd v. Commissioner of I.T, AIR 1965 SC 1636.Shreya Singhal v.
Union of India, (2015) 5 SCC 1.
11. M/s Fibre Boards v. CIT, (2015) 10 SCC 333.
12. Mohd. Faruk v. State of Madhya Pradesh & Ors. [1970] 1 S.C.R. 156.
13. Pushp Sharma & Ors. v. D.B Corp. Ltd. & Ors., 2018 SCCOnline Del 11537.
14. R. Krishnamurthy v. Sun TV Network Ltd., (2008) 1 MWN (Cri) 196.
15. R. Rajagopal v. State of T.N & Ors., (1994) 6 SCC 632.
16. Sakal Papers v. Union of India, (1962) 3 SCR 842.
17. State of Punjab v. Devans Modern Breweries Ltd. 2004 11 SCC 26.
18. State of U.P v. Synthetics & Chemicals Ltd., 1991 4 SCC 139;
19. Subramaniam Swamy v. Union of India, (2016) 7 SCC 221.
Foreign Cases
20. Gerard v. Worth of Paris Ltd. 1936 2 All ER 905 CA.

21. Gleaves v. Deakin, (1980) AC 477.
22. New York Times v. Sullivan, 376 U.S 254 (1964).
23. R v. Holbrook, (1878) 4 QBD 42.
24. R. v. Lord Abingdon, (1794) 170 E.R 337

Books
25. Salmond on Jurisprudence, 153 (12th ed., P.J Fitzgerald, 1966).

Statutes Referred
26. Code of Criminal Procedure, 1973.

27. General Clauses Act, 1977.
28. Indian Penal Code, 1860.
Reports
29. The Indian Penal Code Prepared by the Indian Law Commissioners (1837-1838),
Command of the Governor-General in Council

STATEMENTS OF JURISDICTION
The Petitioners in this case have approached the Supreme Court of Indika under Article 32 of
the Constitution which reads as follows: Article 32- Remedies for enforcement of rights
conferred by this Part.
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.
The Appellants in this case have approached the Supreme Court of Indika under the Article
134 of the Constitution which reads as follows: 134(1). Appellate jurisdiction of Supreme
Court in regard to criminal matters:
(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India if the High Court has on appeal
reversed an order of acquittal of an accused person and sentenced him to death; or has
withdrawn for trial before itself any case from any court subordinate to its authority and has
in such trial convicted the accused person and sentenced him to death; or
(c) certifies under Article 134A that the case is a fit one for appeal to the Supreme Court:
Provided that an appeal under sub clause (c) shall lie subject to such provisions as may be
made in that behalf under clause ( 1 ) of Article 145 and to such conditions as the High Court
may establish or require.

STATEMENT OF FACTS
1. Indika is a democratic country, whose personal laws and other statutes of the country are in
pari metria with that of India. The ruling party, Desh Bhakt Party (DBP), was being criticised
for curbing freedom of speech among journalists who were criticising the policies and
workings of the DBP and subsequently being arrested for doing so, in the course of their
occupation.
2. Kishan Kalia, a prominent writer and political activist, was extremely vocal and critical
about the DBP agenda. He was arrested in the state of Indianopolis, Indika, on the grounds
that he had criminally defamed the Chief Minister of the State of Indianopolis, Mr.
Swaminath, by sharing an objectionable and defamatory tweet against him. Subsequently, the
Superintendent of Police reported that, that Kalia died in custody due to a massive heart
attack.
3. The suspicious circumstances of his death coupled with the multitude of arbitrary arrests of
journalists and reporters in recent times led the Indikan Society of Journalists and Authors
(ISJA) decided to file a writ petition before the Hon’be SC of Indika challenging the law that
criminalizes defamation and allowing such arrests.
4. On hearing about the petition putforth by ISJA, Mr. Elvis D’Souza, a Member of
Parliament of the House of People and belonging to the opposition party, Janata Mangal
Party (JMP), delivered a speech in the Parliament criticising DBP for controlling the mass
media and being the cause of the rising arrests that curbed freedom of speech and the blatant
disregard for human rights in the country. This speech became an instant sensation on social
media.
5. Subsequently, Mr. Akraman Shah, Editor-in-Chief of Our Time News Channel, a popular
news channel, accused Mr. D’Souza of plagiarizing his speech to which Mr. D’Souza
responded that his speech was in fact not plagiarized and submitted proof accordingly. He
then went on to submit a breach of privilege motion in the Parliament, to the effect that he
was being falsely accused of plagiarising his speech and that people associated with Our
Time News Channel are unprofessional and incompetent.
6. Our Time News filed a criminal complaint against Mr. Elvis D’Souza, at the Indianopolis
District Court for making statements harming the reputation of the Company. However, the

lower court and the High Court of Indianapolis decided in favour of Mr. D’Souza and
aggrieved by that Our Time News has approached the Supreme Court of Indika.

STATEMENT OF ISSUES
1. WHETHER THE WRIT PETITION FILED BY THE ISJA IS MAINTAINABLE?
REASONABLENESS AND CREATE A CHILLING EFFECT ON FREEDOM OF SPEECH?
3. WHETHER OUR TIME NEWS CAN INITIATE A COMPLAINT FOR CRIMINAL
DEFAMATION?
4. WHETHER MR. D’SOUZA’S STATEMENTS ARE PROTECTED BY PARLIAMENTARY
PRIVILEGE?

SUMMARY OF ARGUMENTS
1. WHETHER THE WRIT PETITION FILED BY THE ISJA IS MAINTAINABLE?
The writ petition is maintainable as it has been filed for the enforcement of fundamental
rights contained in Part III of the Constitution, namely right to free speech as contained in
Article 19(1)(a) and right against unreasonableness and arbitrariness contained in Article
14. The recent judgment in Subramaniam Swamy cannot be used as a ground to attack
maintainability as the judgment i) was rendered per incuriam, ii) was sub-silentio on an
important legal issue without which the case could not have been decided and iii) was
manifestly wrong and ought to be revised and corrected.
REASONABLENESS AND CREATE A CHILLING EFFECT ON FREEDOM OF SPEECH?
Restrictions on free speech must be tailored very narrowly and an over-broad restriction
is liable to be struck down. The standard for establishing liability against the accused is
too low and will cause a chilling effect on speech. Defamation is not a public wrong but a
civil wrong, and therefore it is arbitrary to impose criminal punishment. Furthermore,
civil defamation is a sufficient remedy and criminalisation of defamation is excessive,
arbitrary, and violates both Articles 19(1)(a) and 14.
3. WHETHER OUR TIME NEWS CAN INITIATE A COMPLAINT FOR CRIMINAL
DEFAMATION?
The legal framework makes it clear that not only can defamatory statements be made
against a company (and therefore company has a reputation in this sense), but also the
relevant definition of ‘person’ in the IPC and GCA encompasses corporate entity.

4. WHETHER MR. D’SOUZA’S STATEMENTS ARE PROTECTED BY PARLIAMENTARY
PRIVILEGE?
Parliamentary privilege does not protect defamatory speech made outside of the floor of
parliament or outside of regular parliamentary function. The statements made by Mr.
D’Souza are therefore not protected by privilege and the regime of criminal defamation is
squarely applicable. Mr. D’Souza’s remarks are not covered by any of the exceptions to
criminal defamation.

ARGUMENTS ADVANCED
WHETHER THE WRIT PETITION FILED BY THE ISJA IS MAINTAINABLE
It is humbly submitted that maintainability of writ petition for enforcement of fundamental

rights can be questioned only on the ground of laches, where disputed questions of facts are
involved or enforcement of private or contractual rights is sought to be enforced. None of the
exceptions mentioned above exists in the present case. The petition has been filed in time,
questions of fact are not involved and fundamental rights are sought to be enforced.
I) Violation of fundamental rights
The offence of criminal defamation under Section 499 and 500 of the Indian Penal Code
(‘IPC’) and the procedure of prosecution under Section 199 of the Code of Criminal
Procedure (‘CrPC’) (all three sections hereinafter ‘impugned provisions’) are unconstitutional
and liable to be struck down as they do not constitute a reasonable restriction under Article
19(2) of the Constitution and therefore offend the fundamental rights contained in Article
19(1)(a), namely, that of free speech, as well as the protection against unreasonableness
inherent in Article 14.
The offence, especially due to being criminal in nature, combined with the arbitrary
procedural aspects causes a chilling effect on speech and may cause people to self-censor,
thereby destroying any useful public debate. Furthermore, it is arbitrary for an offence, which
is at its heart a private wrong to be treated instead as a public wrong.
II) The decision in Subramaniam Swamy vs Union of India is not binding
i) The Judgment in Subramaniam Swamy was per incuriam
The judgment in Subramaniam Swamy1 was per incuriam as it failed to consider the ratio of
R. Rajagopal vs State of Tamil Nadu2, which is that a regime of no-fault liability in
1
Subramaniam Swamy v. Union of India, (2016) 7 SCC 221.
2
R. Rajagopal v. State of T.N & Ors., (1994) 6 SCC 632.

defamation causes a chilling effect on free speech. The only passage in the judgment where
Rajagopal is at the beginning, but that was only to cite a paragraph from that decision that is
irrelevant to the issue at hand.
The Court in Rajagopal approvingly cited the landmark U.S Supreme Court (‘USSC’)
decision in New York Times v. Sullivan3, wherein the USSC held that placing the burden of
proof on the speak to establish the truth of every statement on would lead to ‘self-censorship’
and would not only deter false speech but also speech which is true and the speaker believes
to be true. This, the Court said, was because of the doubt of whether such statements can be
proved in Court and the fear of not being able to afford the legal expenses to do so.
Accordingly, the Court in Rajagopal threw out the previously existing ‘no-fault liability’
standard and replaced it with the standard set in Sullivan (or the English standard of
‘reasonable publication’), noting that “In such a case, it would be enough for the defendant to
prove that he acted after a reasonable veriﬁcation of the facts; it is not necessary for him to
prove that what he has written is true.”
The above two paragraphs make two things clear – that the standard set in Rajagopal to prove
defamation is ‘reckless disregard for truth’. It’s reason for doing so is clearly due to the
chilling effect on speech that the no-fault liability standard causes, and this much is evident
given the discussion of Sullivan and other American and English cases. Therefore, the
proposition that a no-fault liability standard causes a chilling effect in case of defamation
forms part of the ratio decidendi of Rajagopal. The Supreme Court has settled the position on
what constitutes the ratio of a case, including in M/s Fibre Boards v. CIT4, wherein it
clarified that the ratio of a case includes the reasons that form a part of its judgment. Even
though judgment in Rajagopal was only with respect to civil defamation, the conclusion
which the court reached, i.e, a no-fault liability standard in the case of defamation would lead
to a chilling affect on free speech is agnostic about whether the nature of defamation is civil
or criminal.
Assuming arguendo that the conclusion drawn in Rajagopal cannot be extended to criminal
cases, the decision in Subramaniam Swamy would still be per incuriam given the recently
expanded scope of what would be a judgment per incuriam. Not only is a judgment per
incuriam of any statute, rule regulation or precedent that was not brought to the notice of the
3
New York Times v. Sullivan, 376 U.S 254 (1964).
4
M/s Fibre Boards v. CIT, (2015) 10 SCC 333.

court, but a judgment is also per incuriam if “it is not possible to reconcile its ratio with that
of a previously pronounced judgment of a Co-equal or Larger Bench.”
Thus, both judgments cannot hold the field as they are both logically inconsistent,
furthermore, the legal standard for imposing criminal liability becomes lower than the legal
standard for imposing civil liability, which turns the legal system on its head and results in a
nonsensical position of law if both judgments remain applicable. It is thus submitted it is
evidently not possible to reconcile the ratio of Swamy with Rajagopal.
In such circumstances, it is also settled that the earlier judgment would be applicable as the
later judgment would fall in the category of per incuriam. It is to be noted that the judgment
in Rajagopal was pronounced in 1994 (more than 20 years prior to Swamy) by a bench of co-
equal strength as in Subramaniam Swamy.
ii) The judgment in Swamy was sub-silentio on the point of proportionality and
unreasonableness
It is submitted that the Supreme Court’s judgment in Swamy was sub-silentio on the issue of
criminalisation of defamation being disproportional to the offence, and thereby unreasonable
and liable to be struck down as it violated Article 14.
From Page 123 of the judgment in Swamy, the Court proceeds to consider the argument on
behalf of the petitioners that criminalisation of defamation is wrong since defamation is a
private wrong. In this respect, the Court observed that individuals constitute the collective
and that an individual cares about his reputation in the eyes of society. This link between
individual and society gives an interest to society to the individual’s right to reputation.
It is humbly submitted that this reasoning is incorrect and arbitrary. The court’s reasoning
effectively dismisses any distinction between public and private wrong, since, by the Court’s
logic, any individual would form part of society and society would have an interest in the
protection of his rights, and therefore all private wrongs would constitute public wrongs. In
the end, the Court concludes that it is up to legislative wisdom to pass a law that declares an
act or omission thereof a crime.
It is evident upon a perusal of the judgment, therefore, that the Court has failed to tackle the
main substantive contention herein, i.e, whether criminalisation of defamation is

proportional and unreasonable. Since this is the case, it is submitted that the decision in
Swamy is precedent sub-silentio on this point as it does not provide reasons or rationale for
this holding, nor does it seriously engage on this issue at all. Furthermore, the case could not
have been decided without satisfactorily answering this issue.
The scope of the principle "precedent sub silentio" as stated in Salmond on Jurisprudence
reads as follows: “A decision passes sub silentio, in the technical sense that has come to be
attached to that phrase, when the particular point of law involved in the decision is not
perceived by the court or present to its mind. The court may consciously decide in favour of
one party because of point A, which it considers and pronounces upon. It may be shown,
however, that logically the court should not have decided in favour of the particular party
unless it also decided point B in his favour; but point B was not argued or considered by the
court, In such circumstances, although point B was logically involved in the facts and
although the case had a specific outcome, the decision is not an authority on point B. Point B
is said to pass sub silentio.”5
It has been an established rule in the common law since at least 1661 that a precedent sub-
silentio is not to be followed6. It is thus established that a precedent sub-silentio is of no
moment, and the same has been followed by the Supreme Court of India in numerous cases7.
III) Court may hear the issue again
It is humbly submitted that the judgment in Swamy contains errors in law, and the court may
thus hear the instant petition despite the recent judgment in Swamy.
As stated above, the Court’s judgment in Swamy neglected to tackle the ratio laid down in
Rajagopal and also made an error in law by stating that there was public interest in a private
wrong, thereby wiping out the distinction between private and public wrong. Also, as pointed
out, the Court failed to tackle the key issue of whether criminalising defamation offends the
principle of proportionality, and thereby reasonableness as contained in Article 14. The
Court in Swamy failed to distinguish between two arguments, namely: i) criminalisation of
defamation is per se unconstitutional and ii) the legal regime of defamation as set out in
Sections 499 and 500 is unconstitutional. The Court also appears to state that public interest
5
Salmond on Jurisprudence, 153 (12th ed., P.J Fitzgerald, 1966).
6
Gerard v. Worth of Paris Ltd. 1936 2 All ER 905 CA.
7
State of U.P v. Synthetics & Chemicals Ltd., 1991 4 SCC 139; Arnit Das v. State of Bihar, 2000 5 SCC 488;
A-One Granites v. State of U.P, 2001 3 SCC 537; Divisional Controller, KSRTC v. Mahadeva Shetty, 2003 7
SCC 197; State of Punjab v. Devans Modern Breweries Ltd. 2004 11 SCC 26.

is a ground for reasonable restriction on speech, however issue has time and again been dealt
with, and it has been pointed out numerous times including in Shreya Singhal and Sakal
Papers that Article 19(2) does not have a public interest restriction.
While attempting to strike a balance between right to reputation and free speech, the Court
states that the right to reputation could not be crucified at the altar of free speech. However,
this fails to answer the issue of how taking away only the criminal remedy would result in
such crucifixion of the right to reputation.
The Court goes on to say that because of this holding that the right of reputation would win
out, it would become impossible for a chilling effect on speech to occur. It is humbly
submitted that the Court has taken an incorrect view, and instead of examining whether the
existing laws are over-broad and have an effect of self-censorship, decides that the existence
of a law against defamation means that there can be no chilling effect.
And finally, the Court has also used the fundamental duties and constitutional fraternity
contained in Part IV A of the Constitution to justify restrictions on free speech when said
provisions are explicitly unenforceable.
The decision in Swamy is thus obviously erroneous, and thus the Court should reconsider and
revise its earlier decision8.
WHETHER IMPUGNED PROVISIONS DO NOT COMPLY WITH THE STANDARD OF

REASONABLENESS AND CREATE A CHILLING EFFECT ON SPEECH
I) Restrictions on freedom of speech must be very narrow and not excessive
The restrictions imposed by the impugned provisions create an excessive fetter on the
freedom of speech contained in Article 19(1)(a) and are liable to be struck down as such
restrictions do not fall under the rubric of ‘reasonable’ in any sense, and cause a chilling
effect on the freedom of speech.
8
Keshav Mills Co. Ltd v. Commissioner of I.T, AIR 1965 SC 1636.

It is settled law that restrictions on fundamental rights, and in particular, freedom of speech,
have to be tailored narrowly so as to abridge only what is absolutely necessary9, should not be
arbitrary or excessive10 and must be couched in the narrowest possible terms.
In Sakal Papers, the Supreme Court declared “Freedom of speech can be restricted only in
the interests of the security of the State, friendly relations with foreign State, public order,
decency or morality or in relation to contempt of court, defamation or incitement to an
offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the
general public.”11
The court went on to hold “The legitimacy of the result intended to be achieved does not
necessarily imply that every means to achieve it is permissible; for even if the end is desirable
and permissible, the means employed must not transgress the limits laid down by the
Constitution, if they directly impinge on any of the fundamental rights guaranteed by the
Constitution it is no answer when the constitutionality of the measure is challenged that apart
from the fundamental right infringed the provision is otherwise legal.”
Furthermore, in Mohd. Faruk v. State of Madhya Pradesh & Ors.12 the Supreme Court held
that while considering the reasonableness of a restriction, Courts must assess whether a less
drastic alternate is possible.
The combined effect of these propositions of law are that restrictions on freedom of speech
are to be tailored narrowly, and should not be excessive, are to be based only on the grounds
contained in Article 19(2), the intentions or the legitimacy of the result sought to be obtained
is irrelevant if the restrictions imposed cross these narrow confines, and also must be the least
drastic way of achieving such result.
II) Standard for establishing liability causes a chilling effect on free speech
It is submitted that the arbitrary standard for establishing liability of a speaker is set so low
that it causes a chilling effect on free speech.
Prior to Rajagopal, the test applied to determine liability in civil defamation was the common
law ‘no-fault liability’ test. According to that test, even if the defendant in a suit for
9
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
10
Chintaman Rao v. State of Madya Pradesh, AIR 1951 SC 118.
11
Sakal Papers v. Union of India, (1962) 3 SCR 842.
12
Mohd. Faruk v. State of Madhya Pradesh & Ors. [1970] 1 S.C.R. 156.

defamation was able to show that all reasonable care was taken to ensure the veracity of the
statement, it would not constitute a defence against defamation if the statement ended up
being false. When considering the constitutionality of this standard, the Supreme Court in
Rajagopal approvingly cited the landmark USSC decision in New York Times v. Sullivan,
wherein the USSC held that placing the burden of proof on the speak to establish the truth of
every statement on would lead to ‘self-censorship’ and would not only deter false speech but
also speech which is true and the speaker believes to be true. This, the Court said, was
because of the doubt of whether such statements can be proved in Court and the fear of not
being able to afford the legal expenses to do so.
Accordingly, the Court in Rajagopal threw out the previously existing ‘no-fault liability’
standard and replaced it with the standard set in Sullivan (or the English standard of
‘reasonable publication’), noting that “In such a case, it would be enough for the defendant to
prove that he acted after a reasonable veriﬁcation of the facts; it is not necessary for him to
prove that what he has written is true.”
Therefore, the position in law after Rajagopal would be that to establish liability in civil
defamation, not only would it suffice that the defendant prove that reasonable caution was
taken to ensure truthfulness, but the plaintiff would have to establish malice. Now on the
other hand (notwithstanding anything said above), the standard for criminal liability as per
the impugned provisions not only abide by the pre-existing no-fault liability standard, but also
bears an extra burden of proof on the defendant to establish that his or her comments were
made in the public interest.
As stated earlier, the resultant position would turn the legal system on its head if the burden
of proof on the defendant is higher in a criminal proceeding than in a civil suit, especially
given that a criminal suit may end with imprisonment while a civil suit would only result in
damages at worst.
Further, the existence of this further requirement for the statement to be made in the public
interest is arbitrary. One cannot claim a right to reputation to the extent that that reputation is
undeserved, that is to say, defamation is essentially a false statement of fact. In civil cases it
is an absolute defence, and rightfully so. Given this, placing an extra burden with regards to
criminal cases is arbitrary, serves no purpose nor protects any right.

More substantially, the chilling effect on speech was considered so substantial in Sullivan and
Rajagopal that the no-fault liability was set aside. Bearing in mind that these matters were
with respect to civil defamation, it is submitted that the chilling effect would be even greater
with respect to criminal defamation due to the scope of imprisonment for a number of
reasons. Firstly, criminal prosecution has the possibility of depriving someone of their liberty;
secondly, it places a mark upon the accused of social stigma and disapproval. Lastly, while in
the case of civil defamation, newspapers or media houses are in a better position to
financially cope with a legal defence and the possibility of paying damages, in criminal
prosecution the writer’s shield in that sense is altogether removed as he is directly the target
of the prosecution and will go to jail, as opposed to the consequences for the author in civil
liability are not as grave. It is thus submitted that the chilling effect of a threat of
imprisonment especially in light of the standard of proof would have such an impact that it
would fly in the face of Article 19(1)(a) and out of the narrow scope of Article 19(2).
III) Defamation is a civil wrong
It is humbly submitted that defamation, at least as set out in the impugned provisions, is
essentially a civil wrong, and not a criminal wrong.
Looking back in common law in England, criminal defamation originated in the 16 th century.
Criminalisation in that historical context was mainly to serve the purposes of preventing
breaches of peace. In those days, it was quite common for the subject of defamation to
challenge the defamer to a duel or engage in violence due to an attack on their honour, and
this violent reaction would lead to a disruption in public order.
Indeed, the same has been observed as the rationale for why defamation could sometimes
form a public wrong, if it had scope to lead to that sort of violence and disruption in public
order. In R v. Holbrook13, Lush, J. observed “Libel on an individual…is ranked amongst
criminal offences because of its supposed tendency to arouse angry passion, provoke rage,
and thus endanger the public peace…In this respect libel stands on the same footing as
assault or any other injury to the person. Criminal defamation, in this context, therefore, is
predicated on its tendency to disturb public order, which is why it would constitute a criminal
wrong.
13
R v. Holbrook, (1878) 4 QBD 42.

However, in Indian law, this requirement of a tendency to arouse angry passion and threaten
public order and safety is conspicuously missing. Indeed, during the drafting of the Indian
Penal Code in 1837-8, the Indian Law Commissioners briefly noted the distinction between
criminal and civil defamation in common law before going on to state “Defamation shall be
made an offence without any reference to its tendency to cause acts of illegal violence.”14
Thus, with the reference to incitement of illegal acts of violence, the drafters of the IPC
collapsed the distinction between civil and criminal defamation and criminalised what is
essentially a private wrong.
Given that defamation in IPC no longer contains any elements of a public wrong as criminal
defamation once did in the common law, it is arbitrary and excessive for there to exist
criminal punishment for what is a private or civil wrong. This position of law was observed
in England as well, once the public order rationale for criminalising defamation had been
whittled away.
In Gleaves v. Deakin15, Lord Diplock raised doubts as to whether the offence would sustain
due to the freedom of speech guarantee in the European Convention for Protection of Human
Rights and observed that “the original justification for the emergence of the common law
offence of defamatory libel in a more primitive age was the prevention of disorder…The
reason for creating the offence was to provide the victim with the means of securing the
punishment of his defamer by peaceful process of the law instead of resorting to personal
violence to obtain revenge. But risk of provoking breaches of peace has ceased to be an
essential element in the criminal offence of defamatory libel; and the civil action for damages
for libel and an injunction provides protection for the reputation of the private citizen without
the necessity for any interference by public authority with the alleged defamer’s right to
freedom of expressions.”
Before criminal libel could be put to the test against the principles of the European
Convention, this form of libel stood repealed by the U.K Parliament.
Another point emerges from Lord Diplock’s opinion, that is, there is no reason for
punishment by imprisonment when civil remedies are sufficient to remedy the situation. Not
only can civil courts award damages, but they can also grant injunctions which prevent the
14
The Indian Penal Code Prepared by the Indian Law Commissioners (1837-1838), Command of the Governor-
General in Council.
15
Gleaves v. Deakin, (1980) AC 477.

defamer from uttering or publishing more defamatory statements. Not only is it arbitrary and
unreasonable to levy criminal punishments for civil wrongs, it is also an excessive restriction
on the freedom of speech given the aforementioned chilling effect on speech that criminal
defamation causes. In light of the catena of judgments cited above with respect to how
narrowly restrictions on speech must be drawn, it is submitted that when there is an adequate
remedy in the form of civil defamation, there is no necessity for the existence of criminal
punishment since there is an adequate, yet less drastic alternate remedy.
IV) Procedural framework forms supplementary penalty leading to self-

censorship
Section 199 of the CrPc contemplates a framework for the Court to take cognisance of
offence punishable under Section 500 of the IPC upon the complaint of a person aggrieved by
such offence however, this procedural framework subjects the accused to the arduous process
of a criminal trial without a reasoned order, effectively acting as an extended penalty awarded
without trial.
In Chandra Deo Singh v. Prokash Chandra Bose 16 and Balraj Khanna & Ors v. Moti Ram 17
the Supreme Court held that role of the magistrate while making an enquiry into under
Section 202 of the CrPc was restricted to the determination of whether there exists a prima
facie case against the accused based on the materials placed before him by the complainant
and issue process based on his conclusion.
At that stage, the Magistrate is to examine whether there is prima facie evidence in support of
the allegations made in the complaint and not whether the said evidence is sufficient to
warrant a conviction, further the Magistrate need not record reasons for framing charges
under Section 202 of the CrPc offence18.
The accused is only allowed to present his defence at the trial stage. Thus, a mere prima facie
allegation renders the accused vulnerable to the arduous process of a criminal trial without a
reasoned order that satisfies the exacting constitutional standards that permit infractions upon
the valuable right to freedom of speech 19. The existence of such disproportionate criminal
consequences based upon a mere prima facie allegation leads to self-censorship among
16
Chandra Deo Singh v. Prokash Chandra Bose, 1964 SCR (1) 639.
17
Balraj Khanna & Ors v. Moti Ram 1971 SCR 447.
18
Kanti Bhadra Shah And Anr vs State Of West Bengal, 2000 (1) SCR 27.
19
Pushp Sharma & Ors. v. D.B Corp. Ltd. & Ors., 2018 SCCOnline Del 11537.

individuals that is inimical to the unfettered exercise of rights granted under Article 19 and
unsuitable to the democratic spirit of the Constitution.

WHETHER OUR TIME NEWS CAN INITIATE A COMPLAINT FOR CRIMINAL
DEFAMATION
It is humbly submitted that corporations possess the ability to file criminal complaints against
criminal defamation committed against them.
This conclusion can easily be reached by understanding the scope of the offence, as well as
the definition of a person under the relevant law.
Section 499 of the IPC provides that whoever 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, to defame that person. Explanation 2 to
Section 499 provides that “it may amount to defamation to make an imputation concerning a
company or an association or collection of persons as such.” It is thus evident that defamatory
speech cannot escape the scope of the law on criminal defamation merely on the ground that
the target of such defamatory speech is not a natural person and is a corporate entity.
Explanation 2 explicitly states that corporations can be subject to defamatory speech,
therefore, the conclusion drawn is that corporations have a reputation which, if defamed,
causes legal injury to the corporation.
The next aspect that is to be looked at is who has the legal remedy of filing a complaint in a
case of criminal defamation.
Section 199(1) of the CrPC reads as follows: “No Court shall take cognizance of an offence
punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a
complaint made by some person aggrieved by the offence”.
It is humbly submitted that ‘person’ in Section 199 must be read to include corporations. The
relevant statutory definition of ‘person’ can be found in Section 11 of the IPC, which states
that “The word 'person' includes any Company or Association, or body of persons, whether
incorporated or not”. This definition is also applicable to the CrPC by virtue of Section 2(y)
of the CrPC, which says that words used in the Code but not expressly defined by it would
carry the meaning assigned to those words by the IPC. Furthermore, it must be pointed out
that even in the General Clauses Act, the definition in Section 3(42) reads that “‘person’ shall
include any company or association or body of individuals, whether incorporated or not”.

It is thus amply clear from the relevant provisions of law that not only can corporations be
subject to speech which would fall under the scope of criminal defamation, but also
additionally that they may file criminal complaints in this regard in order to protect their
reputation.
Various High Courts have also taken a similar stand on this issue. For instance, the Madras
High Court held that it could not be said that a company could not maintain a criminal
complaint in the context of criminal defamation 20. Similarly, while responding to a contention
that a partnership could not file a criminal complaint for defamation, the Gujarat High Court
observed “There being no defamation of partners personally, they cannot be personally
aggrieved and, therefore, if they were to initiate criminal proceedings it can be argued that
their complaint would not be maintainable because they have not been defamed as
individuals or even as partners of the firm. In such a case, if the contention of the petitioners
were right, the person committing grossest defamation, gravest trade and property damage to
the defamed firm cannot be dealt with and punished under the law. Even if the same or
similar defamation of a company would make them criminally liable. Therefore, there is no
reason why a partnership firm, which is defamed as a partnership firm cannot be said to be an
aggrieved person and cannot have the requisite locus standi for initiating criminal
proceedings. Therefore, the first contention for quashing the process against the petitioners
fails.21”
The defamatory speech in this instance was not against any particular journalist working for
Our Time News, but rather against the company as a whole. Thus, the High Court erred in its
holding that the complaint filed by Our Time News was not maintainable, and the company is
permitted to file a criminal complaint regardless of its nature as a juridical entity.
WHETHER MR. D’SOUZA’S COMMENTS ARE PROTECTED BY
PARLIAMENTARY PRIVILEGE
I) Scope of Parliamentary Privilege does not encompass remarks on Twitter
It is humbly submitted that the High Court erred in deciding that the comments made by Mr.
D’Souza on Twitter were protected by Parliamentary Privilege.
The legal framework for privilege is contained in Article 105 of the Constitution which states
20
R. Krishnamurthy v. Sun TV Network Ltd., (2008) 1 MWN (Cri) 196.
21
See Atherton & Co. Pvt. Ltd. & Ors. v. Rainbow Surgicial Dressing Manufacturing Co., (1984) 2 GLR 795.

“(1) Subject to the provisions of this Constitution and to the rules and standing orders
regulating
the procedure of Parliament, there shall be freedom of speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in Parliament or any committee thereof, and no
person shall be so liable in respect of the publication by or under the authority of either
House of Parliament of any report, paper, votes or proceedings.”
This legal framework, however, does not also cover remarks made by members of
parliament. As held in Jatish Chandra Ghosh v. Hari Sadan Mukherjee 22, this privilege does
not extend to speech or publication made outside the House, and outside the course of
parliamentary proceedings.
It must be noted that Mr. D’Souza’s comments on Twitter are manifestly not a part of
parliamentary proceedings nor is the venue of such speech in the House, but on an online
social media platform.
Even though such speech made by Mr. D’Souza contained the same or similar line of
defamatory statements as his speech in the House, while his comments within the House may
be protected, the same protection may not be afforded to his comments on Twitter due to the
restricted scope of parliamentary privilege.
Mr. D’Souza’s action publication on Twitter is also not of the proceedings of the House – i.e,
it was not the publication of the video or audio of the speech he made in the House, but rather
the publication of the same idea. Thus, the publication in itself is independent of House
proceedings and in no way shape or form is there scope for the application of privilege.
In any event, it is part of the common law on privileges, as laid down by Lord Kenyon in R.
v. Lord Abingdon23 that speech made in the house was not privileged if published separately
from the rest of the debate.
Mr. D’Souza’s tweet obviously did not contain video, audio or transcript of the rest of the
debate that occurred at the time of his speech, and can therefore under no circumstances
claim privilege.
22
Jatish Chandra Ghosh v. Hari Sadan Mukherjee, 1963 AIR 613.
23
R. v. Lord Abingdon, (1794) 170 E.R 337.

II) Mr. D’Souza’s comments fall squarely within the scope of criminal
defamation
The nature of Mr. D’Souza’s comments is reckless and injurious to the reputation of Our
Time News. Mr. D’Souza has imputed that Our Time News sells false and fabricated news
and that people associated with the channel are all “unprofessional” and “incompetent”.
The framework laid out to establish defamation in Section 499 of the IPC is as follows:
“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.”
Here, it is clear that the remarks made by Mr. D’Souza will have the effect of harming the
reputation of Our Time News. Especially in the context of journalism, truth and accuracy of
reporting are part of the core professional standards of any news media outlet, not only to the
news media outlet itself, but also to the public-at-large who depend on these news channels
for daily news about the goings-on in the country and the world. Mr. D’Souza has therefore
knowingly, if not maliciously, made such statements that tarnish the reputation of Our Time
News, utilising his large follower base on social media of over 5 million to do so, which has
caused significant damage to the reputation of the company by imputing that Our Time News
is in a loathsome or disgraceful state.
Furthermore, it is submitted that the remarks of Mr. D’Souza do not fall under any of the
exceptions listed as a part of the legislative framework. In particular, it is not possible to
claim exception under ‘conduct of any person touching any public question’. The illustration
provided helps achieve a better understanding of why the exception cannot be claimed.
“(d) A says of a book published by Z—“Z’s book is foolish; Z must be a weak man. Z’s book
is indecent; Z must be a man of impure mind”. A is within the exception, if he says this in
good faith, in as much as the opinion which he expresses of Z respects Z’s character only so
far as it appears in Z’s book, and no further.

(e) But if A says—“I am not surprised that Z’s book is foolish and indecent, for he is a weak
man and a libertine”. A is not within this exception, in as much as the opinion which he
expresses of Z’s character is an opinion not founded on Z’s book.”
Mr. D’Souza’s opinion goes far beyond the extent of commenting purely on the broadcast by
Mr. Akraman Shah, and goes on to level severe allegations of incompetence and
unprofessionalism to every person associated with Our Time News, which is certainly not an
opinion that can be borne out of one broadcast. The opinion is thus not founded on the
broadcasts of Our Time News alone and rather is grounded in malice had towards the
Company.
Thus, Mr. D’Souza’s comments fall squarely under the scope of criminal defamation as per
the extant law, and the High Court’s judgment ought to be reversed.

PRAYER
INDIKAN SOCIETY OF JOURNALISTS AND AUTHORS V. UNION OF INDIKA
WHEREFORE IN LIGHT OF THE FACTS STATED, ISSUES RAISED, ARGUMENTS ADVANCED AND
AUTHORITIES CITED, IT IS MOST HUMBLY AND RESPECTFULLY PRAYED THAT THE HON’BLE
SUPREME COURT OF INDIKA BE PLEASED TO –
1. DECLARE THAT CRIMINALISATION OF DEFAMATION IS UNCONSTITUTIONAL IN LIGHT
OF THE SUBSTANTIVE RIGHTS CONTAINED IN PART III OF THE CONSTITUTION,
2. DECLARE THAT THE PROCEDURE ESTABLISHED IN LAW WITH RESPECT TO
COMPLAINTS OF CRIMINAL DEFAMATION IS UNREASONABLE, VIOLATIVE OF RIGHTS
CONTAINED IN PART III AND THUS UNCONSTITUTIONAL.
3. PASS ANY OTHER ORDER AS IT MAY DEEM FIT AND PROPER IN THE INTEREST OF
JUSTICE
Place:
Date:
Sd.______________
Counsel for the Petitioner
OUR TIMES NEWS V. UNION OF INDIKA & ANR.
WHEREFORE IN LIGHT OF THE FACTS STATED, ISSUES RAISED, ARGUMENTS ADVANCED AND
AUTHORITIES CITED, IT IS MOST HUMBLY AND RESPECTFULLY PRAYED THAT THE HON’BLE
SUPREME COURT OF INDIKA BE PLEASED TO ALLOW THE APPEAL AND –
1. SET ASIDE THE IMPUGNED JUDGMENT OF THE HIGH COURT,

2. DECLARE THAT CORPORATE ENTITIES MAY FILE COMPLAINTS ON THE GROUND OF
CRIMINAL DEFAMATION,
3. DECLARE THAT THE REMARKS MADE BY MR. D’SOUZA ON TWITTER WILL NOT BE
PROTECTED BY PARLIAMENTARY PRIVILEGE
4. PASS ANY OTHE RORDER AS IT MAY DEEM FIT AND PROPER IN THE INTEREST OF
JUSTICE
Place:

Date: Sd._____________
Counsel for the Appellant

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TNNLU MOOT COURT INTERNALS, 2020 Team 15

TNNLU MOOT COURT INTERNALS, 2020

IN THE HON’BLE SUPREME COURT OF INDIKA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO. _____/ 2020

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. ______/ 2020

IN THE MATTER CONCERNING THE VALIDITY OF SECTIONS 499 AND 500 OF

INDIKAN SOCIETY OF JOURNALISTS AND AUTHORS ....PETITIONER

UNION OF INDIKA ....RESPONDENT

OUR TIME NEWS ....PETITIONER

UNION OF INDIKA & ANR. ....RESPONDENT

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS/APPELLANTS

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 1

I.VIOLATION OF FUNDAMENTAL RIGHTS………………………………………………………

II. DECISION IN SUBRAMANIAM SWAMY IS NOT BINDING……………………………….…... 11

III. COURT MAY HEAR THE ISSUE AGAIN…………………………………………………….14

2. WHETHER THE IMPUGNED PROVISIONS DO NOT COMPLY WITH THE STANDARDS OF

I. RESTRICTIONS ON FREEDOM OF SPEECH MUST BE NARROW………………………………..15

III. DEFAMATION IS A CIVIL WRONG…………………………………………………………18

IV. PROCEDURAL FRAMEWORK FORMS SUPPLEMENTARY PENALTY WHICH LEADS TO SELF-

3. WHETHER OUR TIME NEWS CAN FILE A COMPLAINT FOR CRIMINAL

4. WHETHER MR. D’SOUZA’S REMARKS ARE PROTECTED BY PARLIAMENTARY PRIVILEGE……

I. SCOPE OF PARLIAMENTARY PRIVILEGE DOES NOT ENCOMPASS REMARKS ON

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 2

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 3

1. A-One Granites v. State of U.P, 2001 3 SCC 537.

20. Gerard v. Worth of Paris Ltd. 1936 2 All ER 905 CA.

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 4

25. Salmond on Jurisprudence, 153 (12th ed., P.J Fitzgerald, 1966).

26. Code of Criminal Procedure, 1973.

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 5

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 6

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 7

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 8

1. WHETHER THE WRIT PETITION FILED BY THE ISJA IS MAINTAINABLE?

2. WHETHER THE IMPUGNED PROVISIONS DO NOT COMPLY WITH THE STANDARDS OF

REASONABLENESS AND CREATE A CHILLING EFFECT ON FREEDOM OF SPEECH?

3. WHETHER OUR TIME NEWS CAN INITIATE A COMPLAINT FOR CRIMINAL

4. WHETHER MR. D’SOUZA’S STATEMENTS ARE PROTECTED BY PARLIAMENTARY

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 9

1. WHETHER THE WRIT PETITION FILED BY THE ISJA IS MAINTAINABLE?

manifestly wrong and ought to be revised and corrected.

2. WHETHER THE IMPUGNED PROVISIONS DO NOT COMPLY WITH THE STANDARDS OF

REASONABLENESS AND CREATE A CHILLING EFFECT ON FREEDOM OF SPEECH?

civil wrong, and therefore it is arbitrary to impose criminal punishment. Furthermore,

civil defamation is a sufficient remedy and criminalisation of defamation is excessive,

arbitrary, and violates both Articles 19(1)(a) and 14.

3. WHETHER OUR TIME NEWS CAN INITIATE A COMPLAINT FOR CRIMINAL

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 10

4. WHETHER MR. D’SOUZA’S STATEMENTS ARE PROTECTED BY PARLIAMENTARY

parliament or outside of regular parliamentary function. The statements made by Mr.

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 11

WHETHER THE WRIT PETITION FILED BY THE ISJA IS MAINTAINABLE

It is humbly submitted that maintainability of writ petition for enforcement of fundamental

I) Violation of fundamental rights

II) The decision in Subramaniam Swamy vs Union of India is not binding

i) The Judgment in Subramaniam Swamy was per incuriam

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 12

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 13

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 14

III) Court may hear the issue again

MEMORIAL DRAFTED AND FILED ON BEHALF OF PETITIONERS 15