Xiv Intra-Moot Court Competition - 2019.: TH ND

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THE XIV INTRA-MOOT COURT COMPETITION – 2019.
30th August- 2nd September, 2019.
BEFORE THE HONORABLE SUPREME COURT OF KONOHA
Mr.TIPENDRA GADA.................................................................................(PETITIONER 1)
NON GOVERNMENTAL ORGANISATION…….....................................(PETITIONER 2)
Mrs.Z……………………………………………………………..…………. (PETITIONER 3)
(Writ Petition filed under Art. 32 of Constitution of Konoha, 1950)
VERSUS
UNION OF KONOHA..................................................(RESPONDENT)
MEMORIAL ON BEHALF OF RESPONDENT
MEMORIAL ON BEHALF OF THE RESPNDENT

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TABLE OF CONTENTS
LIST OF ABBREVIATIONS.......................................................................................................3
INDEX OF AUTHORITIES …………………………………………………………………4-5
STATEMENT OF JURISDICTION …………………………………………………………...6
STATEMENT OF FACTS …………………………………………………………………...7-8
STATEMENT OF ISSUES……………………………………………………………………9
SUMMARY OF ARGUMENTS…………………………………………………………...10-11
ARGUMENTS ADVANCED………………………………………………………………12-22
PRAYER.......................................................................................................................................23

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LIST OF ABBREVIATIONS
Art.....................................................................................................................................Article
Bom.................................................................................................................................Bombay
Del…...................................................................................................................................Delhi
Hc…………………………………………………...................................................High Court
Sect.................................................................................................................................. Section
SC……………………………....................................…………………….……Supreme Court
u/s.. ……………...............................................………….……………………...Under Section
AIR.....................................................................................................................All India Record

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INDEX OF AUTHORITIES
LIST OF CASES:
1. Romesh Thapar v Union of India, AIR 1950 SC
124…………………………………………………………………………………………..…....13
2. Ramjilal v. Income Tax Officer, AIR 1951 SC 97………………………………………14
3. Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Namit Sharma v. Union of India,
(2013) 1 SCC 745……………………………………………………………………..…13
4. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Smt. Indira Nehru Gandhi v.
Raj Narain, 1975 Supp. SCC 1…………………………………………………………..14
5. Krishnan v. State of Madras, AIR 1951 SC 301………………………………………...13
6. Maneka Gandhi v. Union of India.AIR 1978 SC 597…………………………………..15
7. Independent thought Vs Union of India ('MANU/SC/1298/2017');……………………………..13
8. Ajay Goswami v. Union of India and others…………………………………………….20
9. State of Uttar Pradesh v. Lalai Singh Yadav…………………………..………………..19
10. Dr. Ram Manohar Lohia v State of Bihar………………………..……………………..18
11. Gitlow v. New York……………………………………………………………….…....19
12. Samresh Bose &Anr. v. Amal Mitra&Anr……………………………………………....22
13. Devidas Ram chandra v State of Maharashtra………………………………………..…22
14. Rohit and Others v State of Haryana and Punjab………………………………………..20
15. Dashrath v State of Uttar Pradesh……………………………………………………….19
16. Independent thought v UOI……………………………………………………………18

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TREATIES:
1. United Nations Convention of the Rights of the Child, 1990 (CRC)
2. United Nations Standard Rules for the Administration of Juvenile Justice, 1985
3. United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990
4. JUSTICE VERMA COMMITTEE report (para 34)
BOOKS REFERRED:
1. Code of Criminal Procedure, 1973
2. Indian Penal Code, 1860
3. Indian Evidence Act, 1872
4. Juvenile Justice (Care and Protection of Children) Act, 2000
5. The Constitution of India, 1950
LEGAL DATABASES:
 Manupatra
 SCC Online
 Indian kanoon

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STATEMENT OF JURISDICTION:
The Petitioners had approached this Honorable Court by filing separate writ petitions under
Art.32 of the Indian Constitution. Since the suits were of similar nature it was clubbed by the
Honorable Supreme Court. The petitioners there under presented its case due to clubbing or
consolidating of cases as per the order of Supreme Court under Art. 142 of the Constitution of
India, 1950 r/w Sec. 151 of Civil Procedure Code, 1908.
Art. 142 - Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc.:
(1)The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order
as is necessary for doing complete justice in any cause or matter pending before it, and any
decree so passed or orders so made shall be enforceable throughout the territory of India in such
manner as may be prescribed by or under any law made by Parliament and, until provision in that
behalf is so made, in such manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court
shall, as respects the whole of the territory of India, have all and every power to make any order
for the purpose of securing the attendance of any person, the discovery or production of any
documents, or the investigation or punishment of any contempt of itself.
Section 151- Saving of inherent powers of court:
Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court
to make such orders as may be necessary for the ends of justice, or to prevent abuse of the
process of the court.
The Respondent maintains that no violation of rights has taken place. Therefore, this Hon’ble
court need not entertain its jurisdiction in this writ petition.

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STATEMENT OF FACTS:
1. Republic of Konoha harbours the youngest population across the worldwide, which
makes both Central and State government heavily responsible for their healthy and safe
growth.
2. Tipendra Gada & Sonali Bhide, student of uchhias school are the promising students of
Class 10th, were known for their best academic records and won several national
exhibitions & were neighbors.
3. Mrs. Z was their biology teacher, who believed that youngsters of Konoha should learn to
respect the bodily and individual autonomy of both genders and should endeavour to
mutually exist with each other.
4. In order to make her students understand human reproduction and provide safe sex
education & answer all their questions, she brought plastic models of humans, diagrams
and video graphic material containing active human reproduction and explained all about
human reproduction and sex education.
5. The Principal being briefed of the incident by other teachers immediately called the
police, who arrested her for showing pornography. She was charged under Section 3 of
Prohibition of Pornography Act, 2019
6. For the purpose of preparations both students took the advantage of being neighbours and
started working together at their homes after school hours. They started spending long
hours in private for the purpose of competition. The teachers and the parents were
really happy with their work and dedication and were looking forward for their winning
in this competition.
7. During meetings and preparation hours, both the students shared a lot and discovered
many things about each other. They also shared how shocking it is to see Mrs. Z in
prison and how disgraceful it is for the society to have this typical orthodox thinking
about sex education and were of same view about the individual autonomy in the
sexual life of people and state has not right to interfere in it. Both of them eventually
fell in love but never expressed it to each other. Team Uchiha was lifting the Winners’
Cup.
8. Both of them were happy, and therefore Tipendra confessed his feelings to which Sonali
reciprocated and both of them promised to be each other’s for now and forever. They
shared private moments with each other at the Competition and on coming back to school
informed their friends about their relationship. Everybody was happy about their
winning in the competition including their parents.
9. The school Principal medalled them for their success and congratulated them but in the
ceremony she felled unconscious and later she confessed her feelings for Tipendra and
about having private moments with him at the Competition.

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10. Consequently, Sonali’s parents filed an F.I.R. against Tipendra alleging him for rape of
their minor daughter. The FIR was registered and Tipendra was charged of rape, as
Sonali was of 17 years and 2 months at that time. As Tipendra was also of 17 years, he
was sent before the Juvenile Home.
11. The Juvenile Justice Board after examining the charge sheet and evidence gathered by
police, and after conducting the preliminary assessment of the Juvenile under section 15
of the Juvenile Justice (Care and Protection of Children Act) 2015, the board found that
Tipendra knowingly had had sexual intercourse with the minor girl and that he is able to
understand the consequences of his acts, therefore, the board sent him to Children’s Court
to try him as an adult.
12. The Children’s Court examined the evidences and the statements of Sonali, where she
explicitly expressed her feelings for Tipendra and affirmed and reaffirmed that she want
to live her life with him but refused to make any statement about the paternity of her
child & also pleaded to keep this child and not abort her child as her parents were forcing
her to do so. The Court on examination and collecting evidences found that Tipendra is
the father of the unborn child and convicted him for Rape of Minor girl under section 376
IPC and for committing “penetrative sexual assault” under section 3 of Protection of
Children from Sexual Offences Act, 2012.
13. Meanwhile, a non- Governmental Organisation, Association for protection of rights of
adolescents also, filed a writ petition challenging the provisions under IPC, JJ Act &
POCSO dealing with the age of consent of minor girls along with challenging the
constitutional validity of the Pornography Act.

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STATEMENT OF ISSUES:
ISSUE 1:
1. Whether the petitions filed before the honorable court are maintainable or not?
ISSUE 2:
2. Whether the relevant provisions under JJ Act dealing with trying a juvenile as an
adult and the relevant provisions under IPC &POCSO dealing with age of consent
and Punishment thereto, are violative of Fundamental rights or not?
ISSUE 3:
3. Whether Juvenile Justice Board has erred in sending Tipendra to Children’s Court
and can be held liable under section 376 IPC and section 3 of POCSO or not?
ISSUE 4:
4. Whether Prohibition of Pornography Act, 2019 is violative of Fundamental Rights

under Article 14, 19 & 21 of the Constitution of Konoha and is Unconstitutional or
not?

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SUMMARY OF ARGUMENTS
It is humbly submitted before the Hon’ble Supreme Court that the petitions filed are not
maintainable as prima facie it does not have the locus standi in the case. There is no violation of
the fundamental rights and the acts are totally in consistency with the law. The petitioners are
just trying to escape liability for their acts under the law as the fundamental rights are subject to
inherent limitations which are imposed by the Constitution itself.
It is humbly submitted before the Hon’ble Supreme Court that relevant provisions under the
Juvenile Justice Act are in compliance with the basic fundamental rights of our Constitution as
guaranteed under Art. 21 and Art. 14. The main purpose of the act is to look after the welfare of
the children who are in the age bracket of 16-18 years of age. As there have many cases in the
past involving minors associating with heinous crimes. The JJ Act was formulated for this reason
as to strengthen the provisions for both children in need of care and protection and children in
conflict with law. Under Section 15, special provisions have been made to tackle child offenders
committing heinous offences in the age group of 16-18 years. Also, relevant provisions under the
IPC and POCSO by the Parliament is not found to be arbitrary. The consenting age under the act
are specific and set keeping in view the various precedents of the case.
It is humbly submitted before the Hon’ble Supreme Court that the decision taken by the Juvenile
Justice Board was correct as when they had examined Tiprendra, evidences showed that he was
aware of the knowledge as well as the consequences of the act that he had done. He could
understand the gravity of the act which he had committed. The heinous crime which Tiprendra
has committed is fully liable under section 376 of IPC(Rape) and Section 4 of the POCSO
Act(punishment for penetrative sexual assault) as it has been clear by various precedents that
consent in case of sex with a minor girl has no validity under law and attracts liability for sexual
assault as mentioned above.

not?

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It is humbly submitted before the Hon’ble Supreme Court that the decision to pass the
Prohibition of Pornography Act, 2019 by the parliament is just and not arbitrary. The act is
constitutional as well as in compliance with the fundamental rights. The main objective behind
the act is to protect with children from any kind of sexual assault and obscenity. Thus, the act is
not violative of Article 14, 19 & 21 but it protects every child so that they can live their life with
full freedom and liberty without any exposure to vague and obscene material which may be not
good for them at such a young age as 35% of the population of the Republic of Konoha falls
within the age group of 16-18.

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ARGUMENTS ADVANCED
It is humbly contended to the court that all the three petitions which have been clubbed by the
supreme court are not maintainable as there is no violation of the fundamental rights which have
been guaranteed under Part III (Article 14, 19 & 21) of the Indian Constitution. The action taken
by the State was in furtherance of the principle of social justice to enact the Prohibition of
Pornography Act and thus cannot be termed as arbitrary or as one which was without the
application of the mind.
1.1 No violation of fundamental Rights
The respondent humbly submits that in the petition filed by Mrs. Z and one of the NGO
applying the jurisdiction under Art. 32 can be invoked only when Fundamental Rights are
violated1. It has been held that if a right, other than a fundamental right is claimed to be violated
then such questions can be addressed only in the appropriate proceedings and not under an
application under article 322. The Prohibition of pornography Act, which was formed was in total
compliance with that of the Constitution and does not directly infringe any Fundamental right3 as
challenged by Mrs. Z in her petition. Both the petitions are just imposing allegations of the
similar nature of violating of fundamental rights but as such under the act there is no violation
and it is mere a public stunt as it is a settled law that the consenting age of a girl for sex is 18
years under the POCSO act. Although, consent is irrelevant in case of consensual sex but it
should be properly noted that the age group 16-18 is not deprived of any rights in any way and
neither they are restricted as the this age is quite subjective to be called as a mature age as there
have been many precedents in the past where minor girls & even women have suffered where the
boy have taken the guard of their age and said that they cannot be tried as adults. act was made
with the objective of maintaining social harmony and comfort. Thus, the allegations as
maintained by Mrs. Z are illusionary and everything under the law have been laid down with
proper equality and liberty. In the instance of the case, she had been seen violating the law by
showing obscene material in the classroom which is totally against the law and should be
charged under the specific provisions of the act for its violation.
1.2 Juvenile Justice Board confers the Power
1
Romesh Thapar v Union of India, AIR 1950 SC 124
2
Ramjilal v. Income Tax Officer, AIR 1951 SC 97
3
Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Namit Sharma v. Union of India, (2013) 1 SCC 745

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The Juvenile Justice board has thee full authority and competency to decide cases pertaining to
children who have committed heinous crime in the age bracket of 16-18 years. The Board after
properly examining tiprendra has reached to a conclusion that he was totally aware of the
consequences of his act, which on the prima facie holds tiprendra guilty. Based on the
information which has been derived from the case it is clear that tipendra was aware of the fact
that such kind of penetrative sexual assault in the name of consent will have severe consequences
on him but his criminal mind and intentions were enough. In the name of Love, he has used
Sonali for his own purposes and raped her. Also, the decision of the board was in parametria
with the case to provide justice to Sonali whom Tipendra has cheated and made to fall in his
love. The board has decided keeping in mind the social justice and speedy redressal to Soanli.
The rape of Nirbhaya and the sacrifice of her life only reinforces that India requires “De Facto”
equality, freedom from superstition, renunciation of arcane, misogynist traditions and practices
which are at variance with the Constitution, which seeks to debilitate and handicap women.4
Thus, cases like nibharya where a minor boy also pleaded something of this resort to try him as a
juvenile and not as an adult herein to the board was of the opinion that yes tipendra should be
treated as an adult because of his understanding towards the offence he had committed, the
Juvenile Justice Board is right and very much and Tipendra is just wasting the time of the court
by filing this petition alleging that the Juvenile Board has erred in sending him to the Children’s
Court but it reality the board has been very conscious and vigilant about checking all the
parameters in sending tipendra to the children’s court such as consulting a committee for the
offence, getting the full backdrop information of tipendra and after investigating and knowing
the maturity as well as the level of understanding of tipendra which directly imposes liability
under relevant provisions of IPC & POCSO for the same on Tipendra.
Thus, the petitions are not maintainable under the relevant provisions and it just a mere waste of
time of the court by the petitioners.
4
JUSTICE VERMA COMMITTEE REPORT

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It is humbly submitted to the honorable court that in the present case there has been no violation
of Fundamental rights under Article 14, 19 or 21 of the Constitution. The Amended Juvenile
Justice Act, 2015 is in compliance with the constitution and is formed for the purpose of
protection of children. Section 15, Sectionn376 & Section 4 of Juvenile Justice Act, IPC
&POCSO Act respectively talks about trying of a juvenile as an adult, punishment for rape and
punishment for penetrative sexual assault which are constitutional and well within the rights of
the board. As, we all know that Article 14 of the Constitution is the basic structure 5 and it is
established for the purpose of equal protection and treatment in circumstances of similar nature.
The respondent states that the board has not been made arbitrarily and it is framed for the
purpose to achieve social justice and economic power in consonance with various provisions and
related laws.
2.1. The Juvenile Justice Act is in violation of the Article 14, 19 & 21?
It is humbly submitted Art. 21 of the Konoha Constitution deals with the protection of life and
personal liberty. In the instant case of Tipendra and Sonali the right of opportunity to be heard
and the right of natural justice has not been infringed because in the act, ‘Procedure established
by Law’ in Art. 21 means the law prescribed by Parliament at any given point of time.
Parliament has the power to change the procedure by enacting a law by amending it and when
the procedure is so changed, it becomes ‘Procedure established by law’6. Further in order to
establish violation of Art. 21 the act should be subjected to the equality test of Art. 14 and test of
reasonableness under Article 197. The Art. 14 does not strike at arbitrariness and also the test of
reasonableness is also not been satisfied. It is submitted by the respondents that the
implementation of the Juvenile Justice Act, 2015 is not violative of Art. 21.
The term “Natural Justice” is technical terminology for the rule against bias. Conducting a fair
trial for those who are accused of criminal offences is the cornerstone of democracy. In the
Juvenile Justice Act it has nowhere been mentioned that a 16 or an 18-year-old child goes to a
jail. It says that suppose a child has committed a crime in the heinous category the juvenile will
go before a Juvenile Justice Board the board does not have police, lawyer but it has psychologist,
5
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Smt. Indira Nehru Gandhi v. Raj Narain, 1975 Supp.
SCC 1.
6
Krishnan v. State of Madras, AIR 1951 SC 301
7
Maneka Gandhi v. Union of India.AIR 1978 SC 597

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social worker and also it has experts. Their job is not to condemn them rather they will just
decide that whether the crime committed by the juvenile was committed in an adult mind or in a
childish mind.
If Juvenile Justice Board gives a decision that the child has committed the crime with an adult
mind then the juvenile will not be sent to the jail and kept with the hardened criminals but rather
the juveniles in conflict with law would be kept for 3 years in the Borstals School which is
known as place of safety and the psychologists as well as the experts would be giving the
treatment to the Juveniles in conflict with law and they would be checking up the mental
capacity and once they are reformed the juveniles in conflict with law would be released and
would not be sent to the jail for rest of the time span but if they are not reformed then the
juveniles in conflict with law will be staying at the Borstals School till the age of 21 years and
then for the rest of the time span would be sent to the jail.
The juveniles in conflict with law are provided with the same access to justice as the adults are
accessed. The juvenile in conflict with law would be appearing before the court and then the
Children’s Court will decide whether the juveniles would be punished under an adult system or
into a juvenile system.
Thus, if the juveniles in conflict with law are not satisfied with the judgment they are provided
with another chance where they can approach the Hon’ble High Court or the Hon’ble Supreme
Court. Thus, by this act40 a large number of heinous crimes committed by the juveniles between
the age of 16-18 years would be stopped and the juvenile crime is the fastest rising and hence to
stop it some of the harsher laws are to be made.
In the instant case of Tiprndra and Sonali both of them are minors and their right to natural
justice has not been violated as the case was sent to the Juvenile Justice Board and a preliminary
assessment was about to be made under section 15 of Juvenile Justice Act, 2015 and the
preliminary assessment is not a trial period but it is an enquiry period where both of them would
be tested by the psychologists and the experts whether the crime committed by them is done in
an adult mind or a childish mind. By a mere apprehension they approached the Hon’ble Supreme
Court that their fundamental right under Art.21 that is right to natural justice has been violated
and they would be tried as adult and the case would be dealt by the Sessions Court.
Thus there has been no violation of Art.21 as there has been just a mere apprehension and
assumption by the minors but there has been no verdict which has been passed by the Juvenile
Justice Board.

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2.2. IPC & POCSO age of consent violative of fundamental rights?
It is most humbly submitted to the court that the provisions under the IPC & POCSO act are also
constitutional and do not violate any fundamental right. In a recent rape case8the court sentenced
a teenager to 3 years in a detention center. Although in response to public rage, the government
fast tracked tougher laws against sex crimes, it resisted calls to change the juvenile law and
return the adult age from 16-18. The trial was held behind closed doors to protect his identity and
media were barred from reporting on any details of proceedings. During the trial the juvenile had
been held at detention facility for violent young offenders in Delhi and kept away from other
inmates. The age of consent under the IPC & POCSO act are 16 & 18 years respectively but if a
crime like Rape is being committed against any women then the consent is irrelevant. The
consenting age9 under IPC has been reduced to the age of 16 in case of Section 375(6) while
under the POCSO act the consenting age has been restricted to 18 keeping in mind the nature and
objective of the act which helps us to understand the importance of protection and upliftment of
youngsters as section in the society. People Like Tipendra are a threat to the society as these
people first rape girls and then ask for justice to escape the liability under law. The medical
examination clearly states that Tipendra is the father of the unborn child of sonali and because of
her rape by him and penetrative sexual assault which he did. Also, the punishment under the
POCSO and IPC have clearly stated that in case of such kind of offences like rape and sexual
assault there is no value or the consent has been irrelevant.
Thus, the punishments under the POCSO &IPC statutes is valid and there is no violation of any
sort of fundamental right.
8
Banerjee and Mohanty (2013)
9
Independent thought Vs Union of India ('MANU/SC/1298/2017');

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It is humbly submitted to the Honorable Supreme Court that there has been utmost precaution in
sending tipendra to the children’s court as proper medical and physical examination has been
done by the Juvenile Justice board. After proper thinking the board had sent tipendra to the court
for further examination as his offences comes under the category of heinous crime and it is the
decision of the board and not any kind of error. Juvenile justice Board has not erred in sending
Tipendra to children’s court. According to the section 15 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 if a juvenile who is between the age group of 16-18 years and
has committed a heinous offence (defined under section 2(33) of the act) the Juvenile Justice
Board can transfer the case to children’s court (i.e. court of sessions) after conducting a
preliminary assessment.
Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is reproduced
below
“15. (1) In case of a heinous offence alleged to have been committed by a child, who has
completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment
with regard to his mental and physical capacity to commit such offence, ability to understand the
consequences of the offence and the circumstances in which he allegedly committed the offence,
and may pass an order in accordance with the provisions of subsection (3) of section 18:
Provided that for such an assessment, the Board may take the assistance of experienced
psychologists or psycho-social workers or other experts.
Explanation — For the purposes of this section, it is clarified that preliminary assessment is not a
trial, but is to assess the capacity of such child to commit and understand the consequences of the
alleged offence.
As per section 376 of IPC the punishment for rape is rigorous imprisonment for not less than
seven years but which may extend to imprisonment for life. Also, as per section 4 of POCSO the
punishment for penetrative sexual assault shall be imprisonment of either description for a term
which shall not be less than seven years but which may extend to imprisonment for life, and shall
also be liable to fine. In the both the offences the minimum punishment is seven years, hence
they are heinous offences.

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In Rohit and Others v State of Haryana and Punjab10, the high court said “It does not lie in
the mouth of the petitioners or their counsel that the Principal Magistrate, Juvenile Justice Board,
Faridabad, did not make any preliminary assessment qua the mental and physical capacity of the
petitioners to commit such offence and their ability to understand the consequences of the
offence, which they allegedly committed. The Principal Magistrate, before passing the impugned
order dated 17.11.2017, sending the case of the petitioners to the learned District and Sessions
Judge, Faridabad, for their trial by Children Court, treating their age in between 16 to 18 years
had fully satisfied himself qua the above three aspects.”
Tipendra can be held liable under section 376 IPC and section 4 of POCSO. According to section
375 of IPC any sexual intercourse with a girl below 18 years of age with or without her consent
is a punishable offence. Sonali was 17 years and 2 months old at the time of offence i.e. below
18 years of age. Consent given by a minor girl is not a valid consent. Many high courts in
different cases have upheld this statement.
In Dashrath v State of Uttar Pradesh11 , the learned high court states
“So far as consent of the victim is concerned, as per Section 375 IPC sixthly consent is
immaterial if the victim is less than eighteen years of age. In the present case, the victim was
minor and her consent, even if, she has given, is immaterial and is of no help to the accused-
appellants.”
10
(2018) CRR 1716
11
(2018) CRR 1716

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not?
“Nothing can more efficiently destroy a person, fizzle their mind, evaporate their future,
eliminate their potential or destroy society like pornography" .By decriminalizing the
pornography act , we will actually worsen the conditions of our country by allowing our youth
an easy access to the material which has a tendency to corrupt their young minds and ultimately
make them indulge in crimes thus making them immoral . The Court has also stated that the
freedom of speech and expression as envisaged in Art. 19 of the Indian Constitution is subject to
reasonable restrictions on the grounds of public interest such as interest of public decency and
morality and therefore §292 which promotes public decency and morality cannot be held to be
unconstitutional. 12 Thus the objective of such regulation of indecent representations as in
pornographic materials is closely tied to the morality which in turn is automatically assumed to
be predefined and commonly agreed upon .
Public order is well defined in the case of Dr. Ram Manohar Lohia v State of Bihar13,” What was
meant by maintenance of public order was the prevention of disorder of a grave nature, a
disorder which the authorities thought was necessary to prevent in view of the emergent situation
created by external aggression;”
In State of Uttar Pradesh v. Lalai Singh Yadav,14Rights and Responsibilities are the complex
system and framers of our Constitution, aware of grammar of anarchy, wrote down reasonable
restrictions on libertarian exercise of freedoms. In Gitlow v. New York15,“ It is a fundamental
principle, long established, that the freedom of speech and the press, which is secured by the
Constitution, does not confer an absolute right to speak or publish, without responsibility,
whatever one may choose, or an unrestricted and unbridled license that gives immunity for every
possible use of language and prevents the punishment of those who abuse this freedom. ** That
the state in the exercise of its police power may punish those who abuse this freedom by
utterances inimical to the public welfare, tending to the corrupt public morals, invite to crime or
disturb the public peace is not open to question. Therefore, it is contended that Article 19 cannot
be considered as an absolute right as far as this case is concerned.
According to them, the State is justified in using its coercive power to uphold and enforce a
community’s moral convictions and to prevent citizens from engaging in activities that offend
prevailing community standards of morality and decency (known as ‘legal moralism’).
12
Pornography and Censorship, May 5, 2004, available at http://plato.stanford.edu/entries/pornography-censorship
13
1966 AIR 740, 1966 SCR (1) 709
14
1977 AIR 202, 1977 SCR (1) 616
15
268U.S. 652 (1925)

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Governments also have a responsibility to prevent citizens from harming themselves. This view
that the State is entitled to interfere with the freedom of mentally competent adults against their
will for their own good is often called ‘legal Paternalism’.
The entire gamut of Indian legislations dealing with obscenity has been upheld as valid under
Art. 19(2) of the Indian Constitution which allows for the State to impose reasonable restrictions
on the Right to freedom of speech and expression on grounds of inter alia public order, decency
and morality. The only judicial pronouncement on the issue of the clash between obscenity and
freedom of speech and expression recognized that the cherished right on which our democracy
rests is meant for the expression of free opinions to change political or social conditions and for
the advancement of human knowledge. The Court, however, went on to uphold the validity of
Section 292 of the IPC on the ground that it manifestly embodies a restriction in the interest of
public decency and morality and the law against obscenity, of course, correctly understood and
applied, seeks no more than to promote these values.
In a famous case of the Supreme Court rejected his demand for introducing a ban on
pornography with Supreme Court Chief Justice H.L. Dattu stating that adults in India had the
right to peruse pornographic material if they wanted to as long as they did it within the four walls
of their homes. The Central government had then ordered for 857 websites that contained
pornographic material to be blocked vide an Order dated 31 July as it was in contravention with
section 79(3)(b) of the IT Act and it also violated “morality and decency”
In the case of Ajay Goswami v. Union of India and others 16 the petitioner agitated that the
grievance of freedom of speech and expression enjoyed by the newspaper industry is not keeping
balance with the protection of children from harmful and disturbing material .The further prayer
made was to command the authorities to strike a reasonable balance between the fundamental
right of freedom of speech and expression enjoyed by the press and the duties of the
Government, being signatory of the United Nations Convention on the Rights of Child, 1989 and
Universal Declaration of Human Rights, to protect the vulnerable minor from abuse, exploitation
and harmful effects of such expression.
The first question that the court posed “is the material in newspaper really harmful for the
minors”. In that context, the court observed that the moral value should not be allowed to be
sacrificed in the guise of social change or cultural assimilation. The court then posed whether the
minors have got any independent right enforceable under Article 32 of the Constitution. In the
course of discussion, the court referred to earlier authorities pronounced by this court, referred
to Section 13 (2) of the Press Council Act 1978, Section 292 of the IPC and Section 4 and 6 of
the Indecent Representation of Women (Prohibition) Act, 1986 (for short ‘the 1986 Act’) and
thereafter proceeded to deal with test of obscenity.
16
WP (C) No. 384/2005

P a g e | 21
Constitution on the one hand pertaining to right to freedom of speech and expression to every
citizen and the right of an individual expressing his views on any issue and simultaneously the
observance of the right is not absolute if such speech and expression is immensely gross and will
badly violate standards of morality of a society and hence, any expression is subject to
reasonable restriction.
In the case of Samresh Bose &Anr. v. Amal Mitra&Anr., the appellants were the author and the
publisher of a novel. The appellant No.1 was the author of a novel which under the caption
“Prajapati” that came to be published “SarodiyaDesh”. The application was filed before the
Chief Presidency Magistrate, Calcutta complaining that the said novel “Prajapati” was obscene
and both the accused persons had sold, distributed, printed and exhibited the same which has a
tendency to corrupt the morals of those in whose hands the said “SarodiyaDesh” may fall, and
accordingly they faced trial under Section 292, IPC and eventually stood convicted. The accused
persons assailed their conviction in an appeal before the High Court and the complainant filed a
criminal revision seeking enhancement of sentence. The High Court by common judgment
dismissed the appeal and affirmed the sentence. A question arose before this Court whether the
accused persons had committed the offence under Section 292, IPC
4.1. Artistic freedom cannot derail the prohibition in law:
Mr. Nariman, scanning the judgment has submitted that artistic freedom outweighs personal
interest and cannot and does not trump nor outweigh observance of laws for the prevention of
crime or laws for the protection of health or morals;
That the nature, meaning and effect of any image (in say in a painting or a poem) cannot and
must not be judged on the basis of what the artist (or author) purports to convey what counts is
the effect of the image on the observer; the fact that an image has been produced by an artist
does not always make the end-result artistic. Also, the artistic freedom is not unlimited and
where rights and reputation of others are involved; where there is conflict with human dignity
artistic freedom must always be subordinated to personality rights. Thus, the submission of Mr.
Nariman is that freedom of speech and expression is not absolute and any work of art cannot
derail the prohibition in law.
In Devidas Ram chandra v State of Maharashtra17 observed that The Freedom of Speech and
Expression under Article 19(1)(a) of the Constitution is of great value and transcends and with
passage of time and growth of culture, it has to pave the way for ascendancy. It has to be given a
broad canvas. But it cannot be put in the compartment of absoluteness in view of Article 19 (2).
Freedom of writing is not in question. That cannot be. “Poetic License” can never remotely mean
17
(2015) 6 SCC

P a g e | 22
a “License” or “permission” as used or understood in the language of law. Artistic or poetic

freedom is not absolute or limitless. This freedom is subject to reasonable restrictions which may
be thought necessary in the interest of general public and once such is the interest of public
decency and morality. Tests and standards of obscenity have laid down by various courts of UK,
USA and European Courts. There are binding authorities of Supreme Court also. The prevalent
test of obscenity in praesenti in India is the contemporary community standards test i.e obscenity
has to be judged from the point of view of an average person by applying contemporary
community standards.
Thus, the Prohibition of Pornographic act, 2019 is constitutional and does not violate any
fundamental rights.

P a g e | 23
PRAYER
Wherefore it is prayed, in light of the issues raised, arguments advanced, and authorities cited,
that this Hon'ble Supreme Court may be pleased to hold that:
1. To convict Tipendra under Section 376 & Section 4 of POCSO for rape and Punishment
for penetrative sexual assault of Sonali Bhide,
2. To dismiss the petition filed by the NGO as there is no violation of the fundamental
rights,
3. To convict Mrs. under the provisions of the prohibition of pornography act,2019 for
breaching the code and sentencing her imprisonment.
And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience. For This Act of Kindness, the Respondent
Shall Duty Bound Forever Pray.

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THE XIV INTRA-MOOT COURT COMPETITION – 2019.

THE XIV INTRA-MOOT COURT COMPETITION – 2019.

30th August- 2nd September, 2019.

BEFORE THE HONORABLE SUPREME COURT OF KONOHA

NON GOVERNMENTAL ORGANISATION…….....................................(PETITIONER 2)

(Writ Petition filed under Art. 32 of Constitution of Konoha, 1950)

MEMORIAL ON BEHALF OF RESPONDENT

MEMORIAL ON BEHALF OF THE RESPNDENT

INDEX OF AUTHORITIES …………………………………………………………………4-5

STATEMENT OF JURISDICTION …………………………………………………………...6

STATEMENT OF FACTS …………………………………………………………………...7-8

MEMORIAL ON BEHALF OF THE RESPNDENT

u/s.. ……………...............................................………….……………………...Under Section

AIR.....................................................................................................................All India Record

MEMORIAL ON BEHALF OF THE RESPNDENT

MEMORIAL ON BEHALF OF THE RESPNDENT

MEMORIAL ON BEHALF OF THE RESPNDENT

Section 151- Saving of inherent powers of court:

MEMORIAL ON BEHALF OF THE RESPNDENT

MEMORIAL ON BEHALF OF THE RESPNDENT

MEMORIAL ON BEHALF OF THE RESPNDENT

4. Whether Prohibition of Pornography Act, 2019 is violative of Fundamental Rights

MEMORIAL ON BEHALF OF THE RESPNDENT

4. Whether Prohibition of Pornography Act, 2019 is violative of Fundamental Rights

MEMORIAL ON BEHALF OF THE RESPNDENT

MEMORIAL ON BEHALF OF THE RESPNDENT

1.1 No violation of fundamental Rights

1.2 Juvenile Justice Board confers the Power

MEMORIAL ON BEHALF OF THE RESPNDENT

MEMORIAL ON BEHALF OF THE RESPNDENT

MEMORIAL ON BEHALF OF THE RESPNDENT

MEMORIAL ON BEHALF OF THE RESPNDENT

2.2. IPC & POCSO age of consent violative of fundamental rights?

MEMORIAL ON BEHALF OF THE RESPNDENT

MEMORIAL ON BEHALF OF THE RESPNDENT

In Dashrath v State of Uttar Pradesh11 , the learned high court states

MEMORIAL ON BEHALF OF THE RESPNDENT

4. Whether Prohibition of Pornography Act, 2019 is violative of Fundamental Rights

MEMORIAL ON BEHALF OF THE RESPNDENT

MEMORIAL ON BEHALF OF THE RESPNDENT

4.1. Artistic freedom cannot derail the prohibition in law:

MEMORIAL ON BEHALF OF THE RESPNDENT

a “License” or “permission” as used or understood in the language of law. Artistic or poetic

MEMORIAL ON BEHALF OF THE RESPNDENT

MEMORIAL ON BEHALF OF THE RESPNDENT

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