BEFORE THE HON’BLE SUPREME COURT OF GENGHISTAN

ORIGINAL WRIT JURISDICTION

PUBLIC INTEREST LITIGATION

W.P. (CIVIL) NO. ___ OF 2016

UNDER ARTICLE 32 OF THE CONSTITUTION OF GENGHISTAN

In the matter of Article 21
of Constitution of Genghistan
NGO…………….………………………………..PETITIONER
v.
UNION OF GENGHISTAN………....…………………………………. RESPONDENTS

CLUBBED WITH
Writ Petition No…2850 of 2016

Mr.ARHUS .……………………………….….. Petitioner

v.
UNION OF GENGHISTAN……………………………………..Respondent

CLUBBED WITH
Writ Petition No…2987 of 2016.
Mr. BALCO………………………………………………………Petitioner
v.
UNION OF GENGHISTAN…….………………………………………….Respondent

Memorandum for respondent

 TABLE OF CONTENTS

INDEX OF AUTHORITIES…………………

STATEMENT OF JURISDICTION……………………………..

STATEMENT OF FACT……………………………..

STATEMENT OF ISSUE …………………………………

SUMMARY OF ARGUMENT……………………..

ARGUMENT ADVANCED ………………………….

PRAYER FOR RELIEF…………………………………

Memorandum for respondent

 INDEX OF AUTHORITIES
A.BOOKS REFERRED

INTELLECTUAL PROPERTY LAW

1.LAW RELATING TO INTELLECTUAL PROPERTY RIGHTS , V.K. Ahuja ,LEXIS

NEXIS, 2nd EDITION,2013

2. INTELLECTUAL PROPERTY LAWS ,BARE ACT,UNIVERSAL PUBLICATION,2014

CONSTITUTION

1. D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, WADHWA, INDIA,

2007, 8TH EDITION, VOLUME I AND II

2. D.D. BASU, SHORTER CONSTITUTION OF INDIA, LEXIS NEXIS, INDIA, 2009, 14TH
EDITION

3. D.D. BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA, 2008,
3RD EDITION

4. H.M. SEERVAI, CONSTITUTION LAW OF INDIA, UNIVERSAL PUBLICATIONS,

INDIA, 2004, 4TH EDITION, VOLUME I,II AND III

5. V.N. SHUKLA, CONSTITUTION LAW OF INDIA, EASTERN BOOK COMPANY, INDIA,

2017, 13TH EDITION

6. M.P. JAIN, INDIA CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA, 2010, 6TH EDITION

B.WEBSITES REFERRED

http://pharmabiz.com/ArticleDetails.aspx?aid=75467&sid=9

https://blog.ipleaders.in/patent-law-india-pharmaceutical-industry/

Memorandum for respondent

https://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/428/mudiwam130502.pdf?sequence=1&isAllo
wed=y

shodhganga.inflibnet.ac.in/bitstream/10603/22605/10/10_chapter3.pdf

https://www.slideshare.net/piyushpattanaik/biopiracy

Memorandum for respondent

STATEMENT OF JURISDICTION

Memorandum for respondent

 STATEMENT OF FACT
* Genghistan, a federal and democratic country is a Union of States and is governed

By the Constitution of Genghistan.

Part II

* The ruling party is enthusiastic enough to invite scientists from developed nations,
particularly United States of Abermenia. The teams from these countries were allowed to carry
on research work and also carry on drug trials on some groups of indigenous people living in
forests in Palmeshwar Ghaati.

* On 15TH July, 2016, a group of scientists from Abermania contacted the government of

Genghistan for the trial of drug “Xenitus”.

* The drug trial was conducted over two groups – one consisting of minors and the other of
adults. However, due to a gap of communication, the group of scientists could not explain the
consequences of the trial and just told them that “it is magic” and “heavenly cure.

* After the drug trial, minors claimed to have seen

the group of scientists go up the hill and seek “that yellowish herb”. The group of scientists
shrugged him away saying that by saying that “xenitus is the outcome of their research.

* Mr. Zulu claimed that he saw “that yellow herb” found that yellow herb in the tent and
could recall that the drug and the herb smelled and tasted the same.

* They demanded proper compensation from the group of scientists for befoolment . The
scientists rebuked them and refused to give them any sort of compensation.

* An NGO named “Right of Indigenous” .The NGO told the indigenous people that the matter
was rather more serious as the scientists had violated their intellectual property rights which
they

enjoyed over the traditional knowledge of the herb.

* The NGO filed the PIL on their behalf on 10th August, 2016, claiming that the indigenous
people were being deprived of their intellectual property rights over the herbs.

* In the meanwhile, the scientists succeeded to get patent for the same drug “xenitus”.

Part III

Memorandum for respondent

*Mr. Arhus had shown great dissent towards the government’s act of giving permission to the
scientists. He used to write a diary about the parliament proceedings.

* In his absence, his diary was accessed by , Mr. Stephen, who was a journalist by profession.
Later he published the content of the diary as an article.

* Mr. Aarhus, he filed a petition in the Apex Court for violation of his “right to privacy” by the
news agency and also sought restraint on further distribution of the article as the work in his
dairy was hiswork over which he enjoyed copyright. The W.P. No. 2850 of 2016.

* A lots of Manipulation has been done to the article before it got published.

*The diary contained personal comments on the Prime Minister, Mr. Balco. Meanwhile, Mr.
Balco, the PM of Genghistan, sought a writ petition for breach of his “right to reputation” and
“parliamentary privilege” due to publication of article by Mr. Stephen. The W.P. No. 2987 of
2016.

Memorandum for respondent

 STATEMENT OF ISSUE

1.whether the PIL is maintainable or not.

No,

2.whether there is violation of human right of having IP of the

indigenous people along with fundamental right or Not.

No,

3. Whether MR. Arhus “RIGHT TO PRIVACY “ And

COPYRIGHT has been violated.

4.whether right to reputation is fundamental right or not along

with parliamentary privilege and its absoluteness.

Memorandum for respondent

 SUMMARY OF ARGUMENTS

1.whether the PIL is maintainable or not.

No, NO, A Public Interest Litigation can be filed under Article 32 of the Constitution for enforcement
of Fundamental Rights , as guaranteed by part III of the Constitution.

It is understood U/a 21 that it is not an absolute right and is subject to the same restraints evolved by
the judiciary .it has been held that since Art 32 confers “extraordinary” jurisdiction ,the must be used
wisely ,sparingly and shall be brought into use under circumstances where there is no alternate
efficacious remedy is available .

Further, no scientific data per se has been provided from the side of the petitioner to substantiate its
allegations as regards to traditional knowledge and hence the PIL is not maintainable.

2.whether there is violation of human right of having IP of the indigenous people along with
fundamental right or Not.

No, The scientist got the patent right over the herb not on the yellow herb as claimed by the
indigenous people.

The indigenous people don’t have sufficient evidence which which will prove that the xenitus is
nothing but the yellow herb .

Lack of prior knowledge of the herb and its medicinal properties from the indigenous people
sideMade it clear that ,it falls under non –obviousness which is one of the condition for granting
patent.

3. Whether MR. Arhus “RIGHT TO PRIVACY “ And COPYRIGHT has been violated.

Memorandum for respondent

4.whether “ right to reputation” of the petitioner has been violated along with “parliamentary
privilege” and its absoluteness.

NO, there is no any violation of right to reputation of the petitioner .The statement published by the
respondent can’t be held defamatory .

Here Mr. stephen has published the personal comment on the petitioner and about the proceedings of
the parliament. The comments were not published necessarily made to cause onslaught on personal
dignity of the petitioner .

The respondent had no any motive to harm the reputation of the petitioner an we know that mens rea
is one of the essential of the defamation.

Parliamentary privilege

Article 105(2) and Article 361 (A) of the constitution provides that no person shall be liable to any
proceedings civil or criminal ,in any court in respect of the publication of proceedings of the
parliament

Memorandum for respondent

 ARGUMENTS ADVANCED

1.whether the PIL is maintainable or not.

NO, A Public Interest Litigation can be filed under Article 32 of the Constitution for enforcement of
Fundamental Rights1 , as guaranteed by part III of the Constitution2.

It is understood U/a 21 that it is not an absolute right and is subject to the same restraints evolved by
the judiciary .it has been held that since Art 32 confers “extraordinary” jurisdiction ,the must be used
wisely ,sparingly and shall be brought into use under circumstances where there is no alternate
efficacious remedy is available3 .the reason for this is: first, to reduce the increasing pendency of
cases4 and second to inspire faith in the Hiarchy of court and institution as whole5 .Therefore the
petition is required to approach the high court or Intellectual Property Appellate Board.

In the present case, there has been no violation of the fundamental rights since, the action taken by the
State was in furtherance of the principle of economic and social justice and thus cannot be termed as
arbitrary or as one which was without the application of the mind. Also, on allegations of traditional
knowledge, since the High Court has already adjudicated upon a similar dispute the facts being silent
as to whether the same was followed or not, no action against scientist of Abermenia .Further, no
scientific data per se has been provided from the side of the petitioner to substantiate its allegations as
regards to traditional knowledge and hence the PIL is not maintainable.

2.whether there is violation of human right of having IP Rights of the indigenous people along
with fundamental right or Not.

No,

The scientist got the patent right over the herb not on the yellow herb as claimed by the indigenous
people.

1
Article 32(1) when r/w 32(2) itself states that, Article 32 can only be invoked for enforcement of rights as
guaranteed by Part III and, for issuing writs to enforce Rights as guaranteed under Part III.
2
Andhra Industrial Works v.. Chief Controller of Imports and Ors AIR 1974 SC 1539 ¶ 10, Guruvayur Devaswom
Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546 ¶ 50, BALCO Employees Union (Regd.) v. Union of
India (2002) 2 SCC 333.
3
Secretary,Govt of India V.Alka Shubhash Gadia,1990.scr,Supl(3) 583.Avinash chand Gupta Uttar Pradesh (2004)
2 SCC 726, Union Of India V. Paul Manikman AIR 2003 SC 4622
4
PN kumar V. Municipal Corp of Delhi,1998 SCR (1) 732
5
Kanubhai Brahambhatt v. State of Gujrat, AIR 1987 sc 1159

Memorandum for respondent

* The indigenous people don’t have sufficient evidence which which will prove that the xenitus is
nothing but the yellow herb .

Lack of prior knowledge of the herb and its medicinal properties from the indigenous people
sideMade it clear that ,it falls under non –obviousness which is one of the condition for granting
patent.

The drug xenitus is the outcome of the four year research of the scientist . indigenous people don’t
even know about the drug xenitus unless the scientist came to genghistan. So,we can say the drug
fulfils the criteria of the novelty.

*Patents are grantable for - Processes that show improvements than known already e.g. better
extraction processes, better dosage forms, stable formulations, better tastes/aroma; Processes that can
give plants that give higher yields [not just hybrids]; Processes that involve biotechnological
interventions; Processes that improve bioavailability; Processes that provide synergy/antagonistic
activity; and Processes for standardization, fractionation, isolation, etc.

The following criteria determine what can be patented in genghistan.

1. Patentable subject matter:

The foremost consideration is to determine whether the invention relates to a patentable subject-
matter. Sections 3 and 4 of the Patents Act list out non-patentable subject matter. As long as the
invention does not fall under any provision of Sections 3 or 4, it means it has patentable subject matter
(subject to the satisfaction of the other criteria).

2. Novelty:

Novelty is an important criterion in determining patentability of an invention. novelty or new

invention is defined under Section 2(l) of the Patents Act as "any invention or technology which has
not been anticipated by publication in any document or used in the country or elsewhere in the world
before the date of filing of patent application with complete specification, i.e., the subject matter has
not fallen in public domain or that it does not form part of the state of the art".Simply put, the novelty
requirement basically states that an invention should never have been published in the public domain.
It must be new with no same or similar prior arts.

Memorandum for respondent

3. Inventive step or Non-Obviousness:

Inventive step is defined under Section 2(ja) of the Patents Act as "a feature of an
invention that involves technical advance as compared to the existing knowledge or
having economic significance or both and that makes the invention not obvious to a
person skilled in the art". This means that the invention must not be obvious to a person
skilled in the same field as the invention relates to. It must be inventive and not obvious
to a person skilled in the same field.

The drug xenitus which was supposed to treat the disease caused by the tse tse flies .prior to the
xenitus, the indigenous people even don’t know about the medicinal properties of the herb,instead
they all were using the HERB as a morning breakfast .

Only the scientist realised the medicinal properties of the HERB and made drug Xenitus from that
herb. This shows an inventive step and non Obviousness which fulfils the criteria of patent.

4. Capable of Industrial Application:

Industrial applicability is defined under Section 2(ac) of the Patents Act as "the invention is capable of
being made or used in an industry". This essentially means that the invention cannot exist in abstract.
It must be capable of being applied in any industry, which means that the invention must have
practical utility in order to be patentable.

CASES

1. Brazzein Berries

Chitsike (ed) (1997) reports on a case of biopiracy involving a West African berry called, Brazzein.
This berry contains a protein which is 500 times sweeter than sugar. Brazzein is a natural substance
and does not lose its sweetness when heated. It is therefore valuable in the food industry. Researchers
at the University of Wisconsin have received US and European patents for protein isolated from this
berry. Subsequent work on the protein focussed on making transgenetic organisms to produce
brazzein in the laboratories thereby eliminating the need for it to be collected or grown commercially
in West Africa. The university of Wisconsin is said to have reported that corporate interests in
brazzein is very strong adding that the worldwide market for sweeteners is US$100 billion a year. The
university was quite clear that the brazzein is an invention of a University of Wisconsin – Madison
Researcher and that there were no plans for benefit sharing with the West African people that
discovered and nurtured the plant. This is how local indigenous people lose out6.

6
https://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/428/mudiwam130502.pdf?sequence=1&isAllowed=
y

Memorandum for respondent

Amazonian ayahuasca case7

The plant ayahuasca is well known for its medicinal and hallucinogenic properties .the Ayahuasca
vine has been used by the healers and religious leaders throughout the amazon for generations .For
hundreds years .

In 1981, Loren Miller, director of California-based International Plant Medicine Corporation, took a
sample of ayahuasca back to the United States. Miller then patented it with the U.S. Patent and
Trademark Office, claiming a new plant variety he called Da Vine, and in 1986 obtained exclusive
rights to sell and breed the plant. It was not until ten years later that Amazonian native people became
aware that one of their sacred plants was now under U.S. patent law. By 1998, Miller had received,
and ignored, repeated requests from indigenous groups to give up the patent.

Finally, the Coordinating Body for Indigenous Organizations of the Amazon Basin (COICA), a group
based in Ecuador and representing over 400 indigenous groups from eight countries, decided to take
action. “Our goal is to have the ayahuasca patent annulled, and to teach all international biopirates a
lesson,” said Rodolfo Asar, communications director of COICA.The organization informed its
members that Miller was an “enemy of indigenous peoples,” and that “his entrance into all indigenous
territory should he prohibited.”

A war of words ensued. The organization posted a notice on its website stating that it would not be
responsible for any physical harm to Miller if he ventured into indigenous territory. Miller said he was
given a sample of the plant by an indigenous community in Ecuador, but he refused to identify the
community on the grounds that he wanted to protect residents from COICA, which he called a
terrorist organization that had ruined the reputation of his business.

Charging that the patent was improperly issued, indigenous groups challenged the claim at the U.S.
Patent and Trademark Office, with the help of two Washington-based organizations, the Center for
International Environmental Law and the Coalition for Amazonian Peoples and their Environment.
The Plant Patent Act of 1970 was intended to protect growers breeding new plant varieties, and
requires the person requesting the patent to be the original breeder. Since ayahuasca is widely used
throughout the Amazon, and, botanical experts said, the patented plant was exactly the same as the
natural variety, Miller could not claim to have been the “inventor” of the plant, and thus was not
eligible for a patent. The shamans asked that the validity of the patent be reviewed on these grounds,
and that request was approved.

7
http://www.singingtotheplants.com/2008/01/ayahuasca-patent-case/

Memorandum for respondent

Surprisingly ,in January 2001 ,the USPTO reversed its rejection and issued a certificate in April
allowing the patent to stand for the remaining two years of its term.

3. Whether MR. Arhus “RIGHT TO PRIVACY “ And COPYRIGHT has been violated.

3.1 WHETHER THERE IS VIOLATION OF COPYRIGHT OR NOT.

According to section 13 of the Copyright Act, 1957 copyright subsits in the following works :

a) Original literary , dramatic ,musical and aristics works;

b) Cinematograph films; and

c) Sound recording

Clause (a) of section 13 protects original work whereas clauses (b) and (c) protect derivative works .

Section 13 of the Act stipulates that to claim copyright is subjected to the provision of the section and
the provision of the Act and does not exist de hors and outside the Act. It is the right under the statue
and no right outside the said Act can be claimed8

As Provided fact stated that Mr. Stephen, who was a journalist by profession has found some
interesting notes while going through the diary and got them published as an article titled “indigenous
people :how much they deserve and what they get”.

 IDEA

HERE, ‘INTRESTING NOTES’ should be consider as an ‘Idea’ which has been accessed by Mr.
Stephen. He haven’t accessed whole thing .he just accessed such thing which use to enlarging the
knowledge for writing such article .AND Mr. Stephen use rest of the work to his news agency ,he
acknowledge the source of information. This shows that there is not any violation of Copyright Act,
1957.

Copyright is a right given to or derived from works and it is not a right in novelty only of ideas. There
is no copyright in ideas. Copyright subsists only in the material form to which the ideas are translated.
The object of copyright is not to create any legal or intellectual property rights in the idea but in the
final objects or the which is created as a result of the effort made to give a “physical” shape to an idea
.

Memorandum for respondent

A person may have a brilliant idea for a story or for a picture but if he communicates that idea to an
artistic or play writer then the production which is the result of the communication of the ideas is the
copyright of the person who has clothed the idea in a form (whether by means of a picture or play )
and owner of the idea has no rights in that product ;Donoghue v. Allied newspapers ltd.,(1973)3 All
ER 503.Since there is no copyright to adopt the ideas of another or to publish information derived
from another , provided there is no copying of the language in which those ideas have or that
information has been previously embodied.

 FAIR DEALING

Mr. Stephen act also does not consider infringement of copyright due to Doctrine of fair use. Under
copyright law , some uses of protected works are free .these are usually referred to in general term as
‘fair use or fair dealing’ the fair uses can be made e.g for private study and research ,teaching
,reporting current event .

Section 52, Certain acts not to be infringement of copyright.— (1) The following acts shall not
constitute an infringement of copyright, namely,— 4 [(a) a fair dealing with any work, not being a
computer programme, for the purposes of—

(iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in
public

Section 52(m) the reproduction in a newspaper, magazine or other periodical of an article on current
economic, political, social or religious topics, unless the author of such article has expressly reserved
to himself the right of such reproduction;

The court in Beloff v. pressdrum Ltd . discussed the scope of the defence of public interest . it stated
that the scope of defence was permit discloser of misdeed of serious nature , such as breaches of
national security or law ,fraud matter destructive of the country or its people including maters
medically dangerous to the public. Thus the court may refuse to enforce copyright on the ground of
public interest , even though there is no reference to that defence in the copyright Act.

In blackwood and sons Ltd. and others v. A.N Parasuraman and others,9the court stated that two point
have been urged in the connection with the meaning of the expression “fair” in “fair dealing” (1) that
in order to constitute unfareness there must be intention to compete and to derive profit from such
competition and (2) that unless the motive of the infringer in the sense of being improper and oblique
the dealing would be fair.

Memorandum for respondent

The broad principals of law on “fair dealing “ enuanciated in various judjement would summarized by
delhi high court in super cassettes industries ltd v. humar television network pvt & another following
manner.

1. It is neither possible nor advisable to define the exact contours of fair dealing.

2. It is a question of fact, degree, and overall impression carried by the court.

3. In ascertaining whether extracts taken from copyrighted work have been put to fair use, the
extent and the length of the extracts may be relevant Long extracts followed by short
comments may in certain circumstances be unfair, while short extracts followed by long
comments may be fair. in certain circumstances even small extracts, which are taken, on
regular basis may point to unfair use of the copyrighted work.

4. The right to make fair use or to deal fairly with the copyrighted work includes the right to
criticize not only the style, but also the underlying doctrine or philosophy of the copyrighted
work. In this regard criticism could be both “strong” and “unbalanced”. Such criticism by
itself will not result in forfeiture of the defence of fair dealing.

5. In ascertaining as to what would constitute reportage of “current events” or would fall within
the ambit of “criticism” or “review”, courts ought to adopt a liberal approach.

6. In ascertaining as to what would constitute reportage of “current events” or would fall within
the ambit of “criticism” or “review”, courts ought to adopt a liberal approach.

7. while examining the defence of fair dealing, the length and the extent of the copyrighted woik
which is made use of, is important. However, it cannot be reduced to just a quantitative test
without having regard to the qualitative aspect. In other words, enquiry ought to be made as to
whether the impugned extract forms an essential part of the work of the person in whom
inheres the copyright. This may be particularly true in the case of musical works where a few
notes may make all the difference.

8. Even though copyrighted work may contain confidential information, the courts would desist
from injuncting the use of such work if it is in public weal. Though there is a difference
between a breach of confidence as against infringement of copyright, the court would not
grant an injunction in favour of the person in whom inheres the copyright if it is contrary to
public policy, that is, if it is - (a) immoral; (b) scandalous; (c) contrary to family life; (d)
injurious to public life, public health, safety or is inimical to administration of justice; and (e)
incites an action which endangers (c) and (d) above.

9. The principle of freedom of expression will protect both information and ideas. Freedom of
expression includes the right to publish and receive information. Public interest may in certain

Memorandum for respondent

 circumstances be so overwhelming that courts would not refrain from injuncting use of even
“leaked information” or even the right to use the “very words” in which the aggrieved person
has copyright, as at times, public interest may demand the use of the “very words” to convey
the message to public at large. While the courts may desist from granting injunction based on
the principle of freedom of expression, this would, however, not necessarily protect the
infringer in an action instituted on behalf of the person in whom the copyright vests for
damages and claim for an account of profit.

10. Public interest and what interests public need not be the same.

11. The motive of the user shall play an important role in assessing as to whether injunction ought
to be granted.

12. Commercial use of copyrighted work cannot simplicitor make it unfair.

13. “Transformative use” may be deemed in certain situations as lair use of copyrighted work.

3.2 WHETHER THERE IS VIOLATION OF RIGHT TO PRIVACY.

There is nowhere violation of Mr. Arhus “right to privacy” as above stated that copyright of Mr.
Argus has not been violated.He was arguing for relief of violation of his “Right to Privacy” by the
news agency, but an Act of news agency “The Latest News” was itself fair dealing .

Right to information and the right to communicate the information via media is guaranteed under
Article 19(1) (a) of the Constitution of India.

The Supreme Court of India held that Article 19 (1) (a), in addition, to guaranteeing freedom of
speech and expression, guarantees the right to receive information on matters concerning public
interest. However, more recently concerns over balancing the right to information with the right to
privacy have been raised.

For instance, Ratan Tata filed a writ petition before the Supreme Court of India alleging that the
unauthorised publication of his private conversations with Nira Radia was in violation of his right to
privacy. The writ, filed by the industrialist, did not challenge the action of the Directorate-General of
Income Tax to record the private conversations for the purpose of investigations.

The higher judiciary of the country has recognised the right to privacy as a right “implicit in the right
to life and liberty guaranteed to the citizens of this country by Article 21”. The Indian law has made
some exceptions to the rule of privacy in the interest of the public, especially, subsequent to the
enactment of the Right to Information Act, 2005 (RTI). The RTI Act, makes an exception under

Memorandum for respondent

section 8 (1) (j), which exempts disclosure of any personal information which is not connected to any
public activity or of public interest or which would cause an unwarranted invasion of privacy of an
individual. What constitutes an unwarranted invasion of privacy is not defined. However, courts have
taken a positive stand on what constitutes privacy in different circumstances.

In 2010, the media reported that Sunanda Pushkar, a close friend of the Minister of State for External
Affairs, Shashi Tharoor, holds a significant holding in the IPL Kochi team. The media exposure led to
the exit of Shashi Tharoor from the government. While the media’s questioning of Pushkar’s holdings
was legitimate, the media’s reporting on her past relationships and how she dressed had no bearing on
the public interest or accountability. [9] The media accused Pushkar of playing proxy for Tharoor in
the Rs. 70 crore sweat equity deal. Much of the media attention focussed on her personal life, as
opposed to, how she attained such a large stake in the IPL Kochi team. It minutely analysed her
successes and failures, questioned her ability and accused her of having unbridled ambition and greed
for money and power.[10]10

The right to privacy in India has failed to acquire the status of an absolute right. The right in
comparison to other competing rights, like, the right to freedom of speech & expression, the right of
the State to impose restrictions on account of safety and security of the State, and the right to
information, is easily relinquished. The exceptions to the right to privacy, such as, overriding public
interest, safety and security of the State, apply in most countries.

The Indian media violates privacy in day-to-day reporting, like overlooking the issue of privacy to
satisfy morbid curiosity. The PCI norms prohibit such reporting, unless it is outweighed by ‘genuine
overriding public interest’. Almost all the above countries prohibit publication of details that would
hurt the feelings of the victim or his/her family. Unlike the UK, where the PCC can pass desist orders,
in India the family and/or relatives of the victims are hounded by the media.

In India, the right to privacy is not a positive right. It comes into effect only in the event of a violation.
The law on privacy in India has primarily evolved through judicial intervention. It has failed to keep
pace with the technological advancement and the burgeoning of the 24/7 media news channels. The
prevalent right to privacy is easily compromised for other competing rights of ‘public good’, ‘public

10
9]PTI, Media just turned me into a 'slut' in IPL row: Sunanda Pushkar, 23/04/2010
Available at http://articles.timesofindia.indiatimes.com/2010-04-
23/india/28149154_1_sunanda-pushkar-shashi-tharoor-ipl-kochi [Last accessed
20/04/2011].
[10]Vrinda Gopinath, "Got A Girl, Named Sue", 26/04/2010 Available at
http://www.outlookindia.com/article.aspx?265098 [Last accessed 20/04/2011]

Memorandum for respondent

interest’ and ‘State security’, much of what constitutes public interest or what is private is left to the
discretion of the media.

4.whether “ right to reputation” of the petitioner has been violated along with “parliamentary
privilege” and its absolutness

NO, there is no any violation of right to reputation of the petitioner .The statement published by the
respondent can’t be held defamatory .

Here Mr. stephen has published the personal comment on the petitioner and about the proceedings of
the parliament. The comments were not published necessarily made to cause onslaught on personal
dignity of the petitioner .

The respondent had no any motive to harm the reputation of the petitioner an we know that mens rea
is one of the essential of the defamation.

Here first essential is not being fulfilled so there is no any case of defamation.

The article published by Mr.stephen is “indigenous people : How Much they deserve and What they
get”.it means his motive was to make the indigenous people known about their intellectual property
Rights and make them aware about it.

Further , article 19(2) enables a person to express his views freely ,but the statement should be not
defamatory . so respondent right is protected under Article 19(1) of the constitution.

Parliamentary privilege

Article 105(2) and Article 361 (A) of the constitution provides that no person shall be liable to any
proceedings civil or criminal ,in any court in respect of the publication of proceedings of the
parliament.

Memorandum for respondent

So , the article published by the respondent is not something which suppose to harm the Parliamentary
privilege .

About absoluteness

No ,right is absolute in the constitution and every right are subject to the procedure established by
Law .

By article 121 Right to parliamentary privilege is not absolute because they can’t discuss about the
conduct of a judge of supreme court or High Court in discharge of his duties except when a motion to
present an address to the president for his removal is under consideration of the house.

Memorandum for respondent

 PRAYER

In the light of the legal precedents and principles cited ; and in the light of the provisions of the
constitution and different sections of the intellectual property law applied and advanced ;and in the
light of the scientific studies relating to the issue referred to ,the petitioner most humbly prays that the
Supreme Court:

Hold that the petition is not maintainable under Art 32 in the supreme court of genghistan
There is no

Memorandum for respondent

Memorandum for respondent
Memorandum for respondent