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TEAM CODE 045

BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTERS OF:

Mr. Chimun Roy Petitioner No. 1

Waristan Daily Petitioner No. 2

Mr. Rakesh Mehra Petitioner No. 3

VERSUS

Government of India Respondent No. 1

Mr. Vrjay Wadia Respondent No. 2

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS

COUNSEL APPEARING ON BEHALF OF THE PETITIONERS


TABLE OF CONTENTS

 INDEX OF AUTHORITIES
 STATEMENT OF JURISDICTION
 STATEMENT OF FACTS
 STATEMENT OF ISSUES
 SUMMARY OF ARGUMENTS
 ARGUMENTS ADVANCED
 PRAYER OF RELIEF

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INDEX OF AUTHORITY

BOOKS:
a. Shukla V.N , Constitution of India
b. MP Jain, Constitution of India
c. Seervai, H M, Constitutional law of India
d. Durga das, Basu, Constitutional law of India
e. Ranchhoddas Ratanlal; Thakore Dhirajlal Keshavalal, Indian Penal Code
f. Gandhi, BM, Indian Penal Code
g. Malik Shailandra, Tandon, Indian Penal Code
h. Dobbs, Dan B; Bublick, Ellen M, Advance tort law
i. Pillai, PSA, Law of Torts
CASES
a. SHREYA SINGHAL VS UNION OF INDIA
b. R. Rajagopal and R.R. Gopal and Another vs. State of Tamil Nadu and Others
c. Lingens v. Austria
d. kushboo vs. kanniamal and Anr
e. Bennett Coleman & Co. & Ors. v. Union of India & Ors
f. Romesh Thappar's V. Sate of Madras
g. Gauthier V. Canada
WEBSITES REFFERED
a. www.lexisnexisacademic.com
b. www.vakilno1.com
c. www.indiakanoon.org
d. www.manupatra.com
e. www.wikipedia.org
f. www.legalserviceindia.com
g. www.thehindu.com
h. www.legalsutra.org
i. www.thebluebook.com
j. www.law.cornell.edu

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STATEMENT OF JURISDICTION

The Petitioner no 1, Petitioner no 2, and Petitioner no 3 are residing at Waristan, Waripur


moreover the Respondent no 1 also resides at Waristan, Waripur, therefore cause of action
has arised at Waristan, Waripur. Therefore, this Hon’ble Court (First Class Judicial
Magistrate Court of Waripur) has jurisdiction to try and entertain the present Petition.
But since the case involves questions pertaining to interpretation of constitution and
Respondent no 2 (UOI) the Supreme Court decided to transfer the case from the trial court to
itself for hearing on merits.

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STATEMENT OF FACTS

1. The material case arises out of a statement made on facebook (social media website) by
Mr. Chimun Roy (Petitioner 1), a member of parliament belonging to the leading opposition
party in state of Waristan called Waristan Democratic Party (WDP). Chimun Roy uploaded a
Facebook comment on the wall of his personal Facebook page which was a scathing attack
on the Socialist Secular Party (SSP) - the ruling party of Waristan and in particular against
Mr. Vijay Wadia, the Transport Minister of Waristan.
2. The verbatim reproduction of the post is reproduced below:
"Does Waristan have a respectable government? Does the SSP value the vote of a common
voter?
a. For the past 5 years, the government outsourced the functioning of various
departments to the mafia and gang lords in exchange for huge kickbacks.
b. In particular, there is one ministry which I want to point out, the Transport Ministry.
Contracts running into thousands of crores were handed on a platter to suspicious
elements, without proper due diligence and cross verification.
c. The Minister, Mr. Vijay Wadia has passed the buck to Ministry Officials, but this
only exposes his incompetence and complicity.
d. I have documents with me which prove that the Minister's office received roughly
10,000 crores as kickbacks for the award of road construction/re-construction and
maintenance in the various districts of South and West Waristan.
e. Despite whistle blowers in the Transport Department bringing the matter to the notice
of the Vigilance, almost immediately, the Transport Minister exploiting his close
proximity with the Chief Minister (who happens to be the administrative head of the
vigilance) prevailed upon the latter to sabotage the matter. The vigilance known for its
integrity was able to withstand the political pressure initially and started a preliminary
inquiry, which lead to the unearthing of damning evidence against the Minister and
his close cronies.
f. Sensing danger, the minister prevailed upon the Chief Minister to revamp the
vigilance and officials enquiring into the unprecedented road scam were
unceremoniously shunted to unknown positions in various parts of the state, flouting
SC guidelines on the transfer of government officials and all known cannons of
natural justice. In light of these matters, it's up to you the people of Waristan to decide

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whether these ant-nationals can be allowed to plunder the wealth, greatness and glory
of this state of ours"

3. Further this post was trending on networking sites like facebook and twitter. On 7th August
2015, Waristan Daily (Petitioner 2), a leading newspaper carried out a feature about the post
and the popularity it has drawn. Meanwhile Mr. Rakesh Mehra (Petitioner 3), a celebrated
movie star shared Mr. Chimun's post with the following comment:
“It is high time that we rid our country of such corrupt bigots. Mr. Vijay Wadia
(Respondent 1) now approached the law enforcement agencies to initiate criminal defamation
proceedings against Mr. Chimun Roy, Waristan Daily and actor Rakesh Mehra on 30th
August, 2015.

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STATEMENT OF ISSUE

a. Sections 499 and 500 infringe the rights guaranteed under Article 19 (1) (a) of the
Constitution and hence should be struck down.

b. Whether on behalf of Mr. Chimun Roy (Petitioner No. 1), the publications were on
his Facebook wall, a private space and cannot by any cannon of construction
constitute the offence of criminal defamation under Section 499.

c. Whether on behalf of Waristan Daily (Petitioner No. 2), that they reported only what
was posted on Facebook and hence does it constitute the offence of criminal
defamation.

d. Whether on behalf of Mr. Rakesh Mehra (Petitioner No. 3) it was contended that
sharing, commenting or liking a post on Facebook cannot constitute the offence of
criminal defamation.

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SUMMARY OF ARGUMENTS

Issue 1: Is Section 499 and Section 500 of the Indian penal code
unconstitutional.
Argument: Section 499 of the Indian Penal Code, 1860 imposes unreasonable
restrictions and is ultra vires of Article 19(2) of the constitution of India.
Therefore, it is unconstitutional and shall be struck down.

Issue 2: Should petitioner no.1 be held liable for defamation?


Argument: Act of the petitioner no.1 fall under the first exception to the section
499 of Indian Penal Code, 1860 and therefore cannot be charged for defamation
under section 499 IPC.

Issue 3: Is the act done by the petitioner no.2 legitimate? And up to what extent
imposing restriction on freedom of press is appropriate in a democratic set-up.
Argument: The act done by the petitioner no.2 is absolutely legitimate as they
were reporting only what was posted on Facebook and hence does not constitute
the offence of criminal defamation. Press should have enough freedom to
disclose necessary facts like faults and the abuses in the society done by the
political authorities.

Issue 4: Can mere sharing, liking or commenting a post on social media lead to
a criminal activity (Defamation)?
Argument: No merely sharing, liking or commenting on a post on social media
will not amount to defamation (criminal activity) because once a defamatory
statement has been made; propagating it by sharing, commenting or liking
would not amount to defamation because the damage to the reputation
(defamation) has already occurred.

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STATEMENT OF ARGUMENTS
ISSUE NO 1

Sections 499 and 500 infringe the rights guaranteed under Article 19 (1) (a) of the
Constitution and hence should be struck down.

1. The present Writ petition has been filed seeking a declaration that section 499 and 500
of Indian Penal Code are arbitrary, illegal and ultra vires of constitutional limitations and
violative of Article 19(1)(a) of the Constitution of India. Criminal defamation is contained in
section 499 of Indian penal code. Defamation is mentioned as follows in Indian penal code
“whoever, by words either spoken or intended to be read, or by signs or visible
representations, makes or publishes any imputation concerning any person intending to harm,
or knowing or reason to believe that such imputation will harm, the reputation of such person,
is said, except in the cases herein after expected, to defame that person.” This provision is
worded extrodinary broadly and can easily be abused to silence critical reporting. Simple
glance at the provision shows how extensive and exhaustive scope of the section is. Due to
sections of such kind the veracity of various articles and journals published can be
questioned. This section impeaches article 19(1)(a) which guarantees to all citizens the
freedom of speech and expression. If one feels curbed to voice his/ her opinion with the fear
of violating section 499 and 500 of IPC then all meaning of article 19(1)(a) is lost.
2. The Indian penal code came into existence in the year of 1860. The provision
entailing defamation has neither been revised nor amended. Such laws which have existed for
more than 150 years are outdated and are not meant for application keeping in mind the
current societal implications. The Indian constitution came into existence in the year of 1950
and the sections in this constitution such as section (19)(1)(a) are more relevant and
contemporary. Thus when brought under comparison, fundamental rights must trump
redundant sections such as section 499.
3. Crimes in the society at large has a reason to fear such ‘criminals.’ However, a matter
of defamation can be distinguished in gravity from these crimes. Defamation is usually
personal i.e. between two individuals. Moreover, unlike a victim of rape, murder or theft, a
person who has been defamed has an opportunity to respond to the allegations made against
him and set the record right. Given these crucial differences, curtailing the liberty of an
individual and treating him at par with a murder, rapist, thief, appear to be
disproportional and hence arbitrary.
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4. Many countries such as US and UK have abolished criminal defamation as the act
was no longer applicable to the current day situation and firmly believed in ultimate
expression of freedom of speech and expression. Major politicians in India such as Rahul
Gandhi and subramaniyam swami have also wish to strike this law down as they felt it to be
unconstitutional. In a landmark case of SHREYA SINGHAL VS UNION OF INDIA the
Supreme Court in a landmark judgement struck down section 66A of the Information
Technology Act, 2000 which provided provisions for the arrest of those who posted allegedly
offensive content on the internet upholding freedom of expression. Section 66A defines the
punishment for sending “offensive” messages through a computer or any other
communication device like a mobile phone or tablet and a conviction of it can fetch a
maximum three years of jail and a fine. IN THE ABOVE MENTIONED CASE THE
COURT STRUCK DOWN THE ACT AS IT IS VIOLATING THE FUNDAMENTAL
RIGHT OF FREEDOM AND SPEECH The Supreme Court agreed with the petitioners that
none of the grounds contained in Section 19(2) were capable of being invoked as legitimate
defences to the validity of Section 66A of the IT Act. “Any law seeking to impose a
restriction on the freedom of speech can only pass muster,”
5. The ideals of Article 13 speak about striking down any law which contradicts the
fundamental rights given to citizens. Section 499 of IPC ex-facie inhibits free speech and was
a serious restriction on the fundamental right conferred by Article 19(1)(a). It cannot be
regarded as a reasonable restriction in a democratic republic hence infringing the fundamental
rights and contravening the constitution.

ISSUE NO 2
6. Whether on behalf of Mr. Chimun Roy (Petitioner No. 1), the publications were on
his Facebook wall, a private space and cannot by any cannon of construction constitute the
offence of criminal defamation under Section 499.
7. In the present case Petitioner No 1, who is a Member of Parliament has been charged
with criminal Defamation by the Respondents. Petitioner no 1 posted comment on wall of his
own personal Facebook page about the illegal activities carried about by the Respondent. The
Petitioner had also mentioned in the post that he has relevant evidence for the same.
8. The post made by the Petitioner no 1 is supported by adequate documents and is
issued in public interest. It does not involve any
anti-national activities. Such a publication is made to bring to the notice of the general public
that such person is involved in anti-national activities. It would be in the interest of the public
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to know such accusation. Therefore, defamation under section 499 and 500 of I.P.C doesn’t
arise.
9. No imputation is said to harm a person's 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. Even according to the
general conduct candidates, criticism of other political parties, when made, shall be confined
to their policies and programme, past records and work. Parties and candidates shall refrain
from criticism of all aspects of private life, not connected with the public activities of the
leaders or workers of other parties. Criticism of other parties or their workers based on
unverified allegations or distortion shall be avoided.
10. According to the aforementioned principles, the petitioner has done no wrong. By
posting the statements on Facebook the petitioner has brought a question in the eyes of public
about the conduct of a public servant, his public functions and duties; which is the question of
fact. He made no derogatory statements regarding the respondent’s private sphere of life.
Such statements were verified as they had supporting documents.
11. But by posting the facts the Petitioner has brought a question in the eyes of public
about the conduct of a public servant, his public functions and duties; which is the question of
fact. He made no derogatory statements about anything in the respondent’s personal sphere of
life.
12. The defence of qualified privilege can be availed by the petitioner. Such privilege
permits persons in positions of authority or trust to make statements or relay or report
statements that would be considered slander and libel if made by anyone else. The petitioner
being the leader of the opposition party can clearly be considered a public authority that made
statements with public interest and good faith. The petitioner can be covered under the scope
of such privileges.
13. Freedom of speech requires state parties to guarantee the right to freedom of
expression, including the right to seek, receive and impart information and ideas of all
regardless of frontiers. The right includes the expression and receipt of communications of
every of idea and opinion capable of transmission to others, subject to the provisions of
Article 19. It includes political disclosure, commentary on one’s own and on public affairs,
canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching
and religious discourse. It may also include commercial advertising. The scope embraces
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expression that may regard as deeply offensive, all though such expression may be restrictive
in accordance with the provisions of Article 19. The statements made by the petitioner
include political discourse and discussion of public affairs, therefore such statements cannot
be regarded as defamatory.
14. In the case kushboo vs. kanniamal and Anr the supreme court stated freedom of
speech and expression though not absolute requires the free flow of opinion and ideas.
In the case Bennett Coleman & Co. & Ors. v. Union of India & Ors court held that the
freedom of speech and of the press is the Ark of the Covenant of Democracy because public
criticism is essential to the working of its institutions
In the leading case of Lingens v. Austria the Court held:
The limits of acceptable criticism are ... wider as regards a politician as such than as regards a
private individual. Unlike the latter, the former inevitably and knowingly lays himself open to
close scrutiny of his every word and deed by both journalists and the public at large, and he
must consequently display a greater degree of tolerance.
In Romesh Thappar's V. Sate of Madras case the court said: The freedom lay at the
foundation of all democratic organisations, for, without free political discussion, no public
education so essential for the proper functioning of the processes of popular Government, is
possible. A freedom of such amplitude might involve risks of abuse. But it is better to leave a
few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure
the vigour of those yielding the proper fruits '."
So this case enlightens the importance of political discussion as well as the conduct of the
political parties and the statement given for the public benefit, on these political issues which
is not harming his personal character can strongly be safeguarded as the effect of the
discussion will be much higher.

ISSUE NO 3
15. A free, uncensored and unhindered press or other media is essential in any society to
ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It
constitutes one of the cornerstones of a democratic society. The Covenant embraces a right
whereby the media may receive information on the basis of which it can carry out its
function. The free communication of information and ideas about public and political issues
between citizens, candidates and elected representatives is essential. This implies a free press

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and other media able to comment on public issues without censorship or restraint and to
inform public opinion.
16. Article 19, embraces a right of access to information held by public bodies. Such
information includes records held by a public body, regardless of the form in which the
information is stored, its source and the date of production.
17. The free communication of information and ideas about public and political issues
between citizens, candidates and elected representatives is essential. This implies a free press
and other media able to comment on public issues and to inform public opinion without
censorship or restraint. The attention of States parties is drawn to the guidance that general
comment provides with regard to the promotion and the protection of freedom of expression
in that context.
18. Moreover, the newspaper waristhan daily simply featured in its newspapers what was
already trending. They did not create any fresh content which is defamatory with regard to
the respondents. A simple feature of popular information cannot be termed as content
creation and therefore cannot be accused of defamation. It is the primary function of
successful newspaper to feature important, interesting and popular news, thus the occupation
of journalism itself cannot be deemed criminal and defamatory.
19. New York Times vs. Sullivan:
In the case of public officials, the remedy of action for damages is simply not available with
respect to their acts and conduct relevant to the discharge of their official duties. This is so
even where the publication is based upon facts and statements which are not true, unless the
official establishes that the publication was made with reckless disregard for truth. 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.
In R. Rajagopal and R.R. Gopal and Another vs. State of Tamil Nadu and Others the court
held that: “The case of public officials the remedy of action for damages is simply not
available with respect to their acts and conduct relevant to the discharge of their official
duties. This is so even where the publication is based upon facts and statements which are not
true, unless the official establishes that the publication was made with reckless disregard for
truth. 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.”

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As mentioned above in our case the petitioner 2 only published the statement which was for
public benefit as well as there was no reason to doubt on verifying the statement given by
petitioner 1 as he in the statement wrote that he have proper evidences regarding what is he
stating.

ISSUE NO 4

Whether Mr. Rakesh Mehra (Petitioner No. 3) it was contended that sharing, commenting or
liking a post on Facebook cannot constitute the offence of criminal defamation.

20. The comment made by petitioner no 3 does not amount to defamation since it was
only his opinion and not a defamatory statement against respondent no 1 or respondent no 2.
Every person has freedom of opinion impliedly under article 19(1)(a). The public elect their
representatives and the personal opinion the public shall not be considered as a defamatory
statement.
21. Freedom of opinion: The fundamental right under article 19(1)(a) gives the right to
hold opinions without interference. The right to expression include spoken or written
comments on a particular article, banners, posters, pamphlets etc. This is a right to which the
Covenant permits no exception or restriction. Freedom of opinion extends to the right to
change an opinion whenever and for whatever reason a person so freely chooses. No person
may be subject to the impairment of any rights under the Covenant on the basis of his or her
actual, perceived or supposed opinions.
22. All forms of opinion are protected, including opinions of a political, scientific,
historic, moral or religious nature. It is incompatible criminalize the holding of an opinion, it
is necessary to bring truth to the notice of general public and the same has been done by the
Petitioner No 1. The contention of the Petitioner was to bring truth and open the eyes of the
public as the elections were urging shortly. Further the Petitioner is ready to provide the
evidence of the contentions made in the post against Respondent. Even if the court is
unsatisfied with the evidence produced then the Petitioner No 1 is ready to pay damages if
court orders. It is requested that since the Petitioner No 2 and 3 were not directly related in
the posting shall be grant relief herewith.
23. The comment made by Petitioner 3 was made in good faith and the same is an
exception under section 499 of IPC 1860.

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In Gauthier V. Canada, UN committee held media has an important role to play in
facilitating the right to take part in public affairs:
“The free communication of information and ideas about public and political issues
between citizens, candidates and elected representatives is essential. This implies free
press and other media able to comment on public issues without censorship of
restrained and to inform public opinion. Citizens, in particular through media should
have wide access to information and the opportunity to disseminate information and
opinions about the activities of elected bodies and their members.

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PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Honourable Court may be pleased to adjudge and declare:
(i) That section 499 and 500 of Indian penal code, 1860, is ultra vires and infringes the
rights guaranteed under Article 19 (1) (a) of the Constitution and hence shall be
struck down.
(ii) That Petitioner no 1’s comment made of facebook does not constitute the offence of
criminal defamation under Section 499.
(iii) That Petitioner no 2 reported only what was posted on Facebook and hence it does
not constitute the offence of criminal defamation.
(iv) That Petitioner no 3 merely gave his opinion by sharing, commenting or liking a post
on Facebook which cannot constitute the offence of criminal defamation

AND/OR

Pass any such order that it deems fit in the interest of Justice, Equity and Good
Conscience, or direction as the Honourable Court deems fit and proper, for this the
PETITIONERS shall duty bound pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE PETITIONERS

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END NOTES
a. SHREYA SINGHAL VS UNION OF INDIA
b. R. Rajagopal and R.R. Gopal and Another vs. State of Tamil Nadu and Others( AIR
1995 264 1994 SCC(632) TF)
c. Lingens v. Austria (1986 6 EHRR 407)
d. kushboo vs. kanniamal and Anr
e. Bennett Coleman & Co. & Ors. v. Union of India & Ors (1973 AIR 106, 1973 SCR
(2) 75 )
f. Romesh Thappar's V. Sate of Madras
g. Gauthier V. Canada

AIR (1951) SC 118 : 1950 S.C.R. 759


1973) 2 S.C.R 757
Allegedly Defamatory Facebook Post Alone Isn’t Grounds for Personal Jurisdiction

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