BEFORE THE HON’BLE SUPREME COURT OF ERICHONIA

WRITTEN SUBMISSIONS TO THE HON’BLE SUPREME COURT OF ERICHONIA

APPEAL UNDER ART.136 OF THE CONSTITUTION OF ERICHONIA

IN THE MATTER OF:

SLP(C) NO.1234 OF 2019
ON THE 13TH DAY OF DECEMBER, 2019.
BETWEEN

BAJAJ & ORS …APPELLANT

v.

ANAND …RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

 TABLE OF CONTENTS

INDEX OF AUTHORITIES .............................................................................................................. 3

LIST OF ABBREVIATIONS ............................................................................................................. 5

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

ISSUES RAISED ............................................................................................................................ 7

STATEMENT OF FACTS ................................................................................................................ 8

SUMMARY OF ARGUMENTS ....................................................................................................... 10

ISSUE I: THE APPEAL FILED BEFORE THIS HON’BLE COURT IS NOT MAINTAINABLE BEFORE THIS
HON’BLE COURT. ................................................................................................................... 10

ISSUE II: THE ACTIONS OF BAJAJ, FLORENCE AND THE ERICHONIAN NEWS AMOUNT TO

DEFAMATION ......................................................................................................................... 10

ISSUE III: ANAND’S RIGHT TO PRIVACY HAS BEEN VIOLATED. .............................................. 10

ARGUMENTS ADVANCED .......................................................................................................... 11

ISSUE I: THE SLP FILED BEFORE THIS HON’BLE COURT IS NOT MAINTAINABLE BEFORE THIS

HON’BLE COURT. ................................................................................................................... 11

ISSUE II: THE ACTIONS OF BAJAJ, FLORENCE AND THE ERICHONIAN NEWS AMOUNT TO

DEFAMATION ......................................................................................................................... 14

A. THE STATEMENT MUST BE DEFAMATORY .................................................................. 14

B. IT HAS TO BE PUBLISHED ........................................................................................... 15
C. THE STATEMENT MUST REFER TO THE PLAINTIFF ...................................................... 15

ISSUE III: ANAND’S RIGHT TO PRIVACY HAS BEEN VIOLATED ............................................... 18

PRAYER..................................................................................................................................... 21
 INDEX OF AUTHORITIES

BOOKS:
 Ratanlal & Dhirajlal, Law of Torts, Lexis Nexis, 25th ed. 2007
 Dr. Durga Das Basu, Commentary On The Constitution Of India (Lexis Nexis
Butterworths Wadhwa Nagpur, 8th Edn.2007)
 M.P. Jain. The Constitution of India, Wadhwa Publishing House, 5th ed. 2008.

STATUES:
 Constitution of India
 Indian Penal Code, 1860.
 The Press And Registration of Books Act,1867.

CASES:
 Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815.
 Justice K.S.Puttaswamy (Retd) vs Union Of India, (2017) 10 SCC 1.
 Karanpura Development Co. Ltd. v. K. Narain Singh, AIR 1962 SC 429
 Mahendra Ram v. Harnandan Prasad, AIR 1958 Pat 445.
 N. Suriyakala Vs. A. Mohan, (2007) 9 SCC 196.
 Pritam Singh v. State, AIR 1950 SC 169.
 State of Bihar v Lal Krishna Advani, (2003) 8 SCC 361.
 State of Rajasthan v. Karam Chand Thapar, AIR 1965 SC 913.
 Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar, AIR 2004 SC 2351.
 Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255.

FOREIGN CASE LAW:

 Reynolds v. Times Newspapers Ltd., (2001) 2 AC 127.
 R v. Spencer, (2014) SCC 43.
 United States v. Katz, 389 U.S. 347 (1967).

ONLINE RESOURCES:
 www.jstor.org
 www.lexisnexisacademic.com
 www.scconline.com
 www.manupatra.com
 www.legalserviceindia.com
 www.heinonline.org.

4
 LIST OF ABBREVIATIONS

¶ Paragraph

§ Section
AC Appeals Cases

AIR All India Reporter

CD Compact Disk

Hon’ble Honourable

Pat. Patna

SC Supreme Court

SCC Supreme Court Case

UOI Union of India

 STATEMENT OF JURISDICTION

The respondent appears before this Hon’ble Court in response to the appeal filed by the learned
appellant under Art. 136 of the Constitution of Erichonia. The respondent contends that the
appeal is not maintainable and is liable to be dismissed.
 ISSUES RAISED

ISSUE I: WHETHER THE PRESENT APPEAL IS MAINTAINABLE?

ISSUE II: WHETHER THE ACTIONS OF BAJAJ, FLORENCE AND THE ERICHONIAN NEWS

AMOUNT TO DEFAMATION?

ISSUE III: WHETHER ANAND’S RIGHT TO PRIVACY HAS BEEN VIOLATED?

 STATEMENT OF FACTS

1. The Respondent, Anand, is an intellectual property lawyer working in the Erichonian office
of the international law firm, ‘Rawat & Peter Associates’ in the copyright and media law
division of the firm. He is severely critical of the existing copyright protection and is very
vocal of the need for stringent copyright protection measures. He also teaches a course on
‘Intellectual Property Law and Practice’. A recent article of his was published in the
Erichonian Law Review (ELR).

2. The Appellant, Bajaj, one of the other copyright solicitors at Rawat & Peter doubts the
sincerity of the views presented in the respondent’s article, and believes that it is all motivated
by self-interest.

3. One night, while working late at the office, Bajaj sees Anand watching a movie. He sees a
seized goods sticker on a CD placed on the table next to Anand. The CD is titled “PIRATED
THE PIRATES OF CARRIBEIAN”. He recognizes the CD from one of the copyright raids
carried out by the firm. He takes a photograph on his phone. The photo shows clearly the
cover of the DVD and Johnny Depp as Captain Jack Sparrow on the movie-screen.

4. Bajaj immediately downloads the photo and emails one Florence, a legal journalist. Florence
posts the photo on her blog, along with a reference to Anand’s ELR article, and the post was
accompanied by a comment to the effect that if the Government is not persuaded by Anand’s
academic arguments to strengthen its measures for enforcing copyright, then perhaps it will
be persuaded by the vision of him watching a copyright-infringing film. The blog entry goes
viral, upsetting the editor of the ELR, the paralegal, Anand, and his wife, Ria.

5. Ria, upon learning of the incident, searches Anand’s personal email account. She learns of
an alleged affair with his paralegal and decides to leave him. She takes the CD containing the
most recent copy of the hard-drive of their home computer, which she knows to contain his
personal documents, and sends it to her solicitor for safekeeping.

6. Anand brings an action in the Erichonian High Court against Bajaj, the EN and his wife,
seeking relief for infringement of his privacy rights under section 30 of the Erichonian Code
of Human Rights.
 He sought the following relief:

(a) unspecified damages from each of the defendants for the emotional distress and
reputational damage which their actions have caused him;

(b) injunctions prohibiting any future use (including publication) by any of the defendants of
the photograph or information concerning Anand’s relationship with the paralegal or personal
(including financial) affairs;

(c) an order against EN for deletion of the blog entry and associated comments; and

(d) an order against Bajaj and Ria for delivery up of the photograph and CD respectively.

7. The High Court grants Anand judgment on all but one of his claims, i.e. the one arising from
his wife’s provision of the CD to her solicitor. With respect to the relief sought the court
grants only (a) and (c).

8. The defendants appeal to the Supreme Court of Erichonia and seek for the reversal of the
judgment of the High Court concerning the publication of the information and photograph.
The appeal is admitted and posted for final hearing and disposal on 13.12.2019.

9
 SUMMARY OF ARGUMENTS

ISSUE I: THE APPEAL FILED BEFORE THIS HON’BLE COURT IS NOT MAINTAINABLE BEFORE THIS
HON’BLE COURT.

The power of the Hon’ble Supreme Court under Art. 136 of the Constitution of Erichonia is to
be exercised with great caution and only in those cases where a grave injustice has been done
to a party by a lower court. The remedy is to exercised with great caution. A plethora of
judgments on the point state that this power of the Apex Court is one that must not be resorted
to on a regular basis but one that must be resorted to only in certain specific cases which have
grave societal implications. The present appeal contains issues that are primarily civil in nature
and pose no questions that are of public importance in any manner whatsoever. Thus, the appeal
is not maintainable and is liable to be dismissed.

ISSUE II: THE ACTIONS OF BAJAJ, FLORENCE AND THE ERICHONIAN NEWS AMOUNT TO

DEFAMATION

Bajaj in the present case, has not only violated Anand’s privacy within the confines of the
workspace, late at night. Additionally he has communicated the fact that Anand being a large
proponent of increased copyright protection was engaging in an act that was allegedly
promoting further violation of copyright protection provided under the laws of land. Without
any proof of the same, without enquiring the reasons as to why Anand was watching the said
movie, claims were made. The same amounts to defamation and the judgment of the Hon’ble
High Court is to be upheld as all the essentials of defamation have been satisfied and the
defence of qualified privilege available to editors is not available in the present case.

ISSUE III: ANAND’S RIGHT TO PRIVACY HAS BEEN VIOLATED.

Privacy is recognised as a fundamental right under the Constitution. The concept of privacy
has a subjective aspect of being under a reasonable expectation of privacy. The concept of the
right is relative novel and thus, the counsel has relied on certain foreign case law to ascertain
and arrive at a basic definition of what the subjective aspect of a reasonable expectation of
privacy includes. With the help of the aforementioned case law, it will be proved that Anand
at the time the photograph was taken was under a reasonable expectation of privacy. Thus, his
fundamental right to privacy has been violated.
 ARGUMENTS ADVANCED

ISSUE I: THE SLP FILED BEFORE THIS HON’BLE COURT IS NOT MAINTAINABLE BEFORE THIS

HON’BLE COURT.

1. The extraordinary jurisdiction of the Hon’ble Supreme Court under Art. 136 of the
Constitution of Erichonia is to be exercised with great caution and only in those cases where
a grave injustice has been done to a party by a lower court.
2. The remedy is to be exercised with great caution. A plethora of judgments on the point state
that this power of the Apex Court is one that must not be resorted to on a regular basis but
one that must be resorted to only in certain specific cases which have grave societal
implications.
3. A Constitution Bench observed that the Hon’ble Supreme Court is vested “wide
discretionary power” under this article and this power is required “to be exercised sparingly
and only in exceptional cases”. The court also observed that a more or less uniform standard
should be adopted in granting special leave in wide range of matters which can come up
under this Article. The court further observed that this court should not grant special leave,
unless it is shown that “exceptional and special circumstance exists”, that “substantial and
grave injustice” has been done and the case in question presents features of sufficient
gravity to warrant a review of the decision appealed against. The power conferred upon the
Hon’ble Supreme Court is of “residual nature” and is a “discretionary power”.1
4. The Hon’ble Supreme Court observed with regard to scope of Article 136 that this
provision does not provide for a regular forum of appeal at all. It is a “residual” provision
which enables the Supreme Court to interfere with the judgment or order of any court or
tribunal in India in its discretion.2
5. Article 136 does not confer upon a litigant a right to appeal against any order or judgement
but vest the Hon’ble Supreme Court with a discretionary power to interfere with the orders
of the lower Courts only in case of exceptional character where ‘gross injustice’ has been
carried out.3
6. This court observed that Article 136 is an “extraordinary jurisdiction” vested by the
Constitution in the Hon’ble Supreme Court with implicit trust and faith, and extraordinary care

1
Pritam Singh v. State, AIR 1950 SC 169.
2
N. Suriyakala Vs. A. Mohan, (2007) 9 SCC 196.
3
supra note 1.
 and caution has to be observed in the exercise of this jurisdiction. The court further observed
that Article 136 does not confer a right of appeal on a party but vests a vast discretion in the
Hon’ble Supreme Court meant to be exercised on the considerations of justice, call of duty and
eradicating injustice.4
7. In the case of Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai, this
Hon’ble Court once again commented on the nature of this extra ordinary jurisdiction. This
court held that the power is permitted to be invoked not in a routine fashion but in very
exceptional circumstances as when a question of law of general public importance arises
or a decision sought to be impugned before the Hon’ble Supreme Court shocks the
conscience. This overriding and exceptional power has been vested in the Hon’ble Supreme
Court to be exercised sparingly and only in furtherance of the cause of justice in the Hon’ble
Supreme Court in exceptional cases only when special circumstances are shown to exist.5
8. The court observed that Article 136 like Article 226 is a discretionary remedy and the court
is not bound to interfere even if there is error of law or fact in the impugned order. The use
of the words in Article 136 clearly indicates that the provision does not confer a right of
appeal upon any party but merely vests discretion in the Hon’ble Supreme Court to interfere
in exceptional cases.
9. Thus, even if there exists an error of law or fact, the appeal under this Article is liable to be
dismissed and must be taken up as a regular appeal as the power under this Article is to be
used sparingly.
10. Thus, special leave petitions holds a prime place in the Indian judicial system and has been
provided as a “residual power” in the hands of Hon’ble Supreme Court to be exercised only
in cases when any substantial question of law is involved or gross injustice has been done.
11. It is discretionary power vested in the Hon’ble Supreme Court and the court may in its
discretion refuse to grant leave to appeal. The aggrieved party cannot claim special leave
to appeal under Article 136 as a right but it is privilege vested in the Hon’ble Supreme
Court of India to grant leave to appeal or not.
12. Thus, the present appeal filled by appellants is liable to be dismissed as no grave injustice
has been done. Additionally, even if there exists an error in the judgement of the Hon’ble
High Court a regular civil appeal under the provisions of the Constitution is the right course
of action. As it has been held in the above cited case law that the power under Art. 136 is

4
Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar, AIR 2004 SC 2351.
5
Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815.
12
merely an extraordinary power to be used sparingly when only grave injustice has been
done.

13
ISSUE II: THE ACTIONS OF BAJAJ, FLORENCE AND THE ERICHONIAN NEWS AMOUNT TO

DEFAMATION

13. Defamation is injury to the reputation of a person. If a person injures the reputation of
another he does so at his own risk, as in the case of an interference with the property. A
man’s reputation is his property, and if possible, more valuable, than other property. Any
intentional false communication, either written or spoken, that harms a person's reputation;
decreases the respect, regard, or confidence in which a person is held; or induces
disparaging, hostile, or disagreeable opinions or feelings against a person, is called
defamation.
14. To any defamation claim, there are the following essentials –
a. There must be a defamatory statement.
b. It has to be published i.e. for a statement to be published, a third party must have
seen, heard or read the defamatory statement. If there is no publication there is no
injury of reputation and no action will arise.
c. It must refer to the plaintiff.
15. The Supreme Court in the case of State of Bihar v. Lal Krishna Advani,6 has held that right
to reputation is an essential facet of an individual’s right to life and is an integral and
important aspect of dignity of an individual. All that is necessary to be shown while
adjudicating a defamation claim is that a the individual’s reputation is likely to have been
lowered in the eyes of the right thinking members of society.
16. Additionally, the editor is the one responsible for defamatory content published in his
newspaper. Thus, liability can be imputed on Florence as well. The Press and Registration
of Books Act, 1867, provides for this liability. The Act defines ‘editor’ as the person who
has control over selection of material, which is to be published.7 There is a presumption
under the Act regarding awareness of contents of newspaper and it can be raised only
against the editor whose name appears on the copy of said newspaper.8

A. THE STATEMENT MUST BE DEFAMATORY

17. The defamatory words or statements are those which cause an injury to reputation.
Reputation is injured when one is lowered in the estimation of members of the society

6
State of Bihar v Lal Krishna Advani, (2003) 8 SCC 361.
7
§ 1, The Press And Registration of Books Act,1867.
8
§ 7, The Press And Registration of Books Act,1867.
 generally or when one is avoided by others or others shun his company. In short, an
imputation which exposes the aggrieved person to disgrace, humiliation, ridicule or
contempt, is defamatory.
18. Defamation starts with someone making a statement, and any person who makes a
defamatory statement can be held liable for defamation. A defamatory statement tends to
diminish the good opinion that others hold about the person and it has the tendency to make
others look at him with a feeling of hatred, ridicule, fear or dislike.
19. The test is the opinion of society as a whole. Standard opinion is that which prevails
amongst ordinary reasonable people of the time of place. If it is proved that the statement
in question tends to lower the plaintiff's reputation with a particular section of society, then
the question that falls for determination is whether reasonable men would endorse that
particular opinion, if their attention were directed to the matter. The test of the defamatory
nature of a statement being its tendering to excite against the plaintiff the adverse opinions
or feelings of other persons, a typical form of defamation is an attack upon the moral
character of the plaintiff attributing to him any form of disgraceful conduct, such as crime,
dishonesty, untruthfulness, trickery, ingratitude or cruelty.

B. IT HAS TO BE PUBLISHED
20. Publication merely refers to making the statement known to any third party. Statements
made in open court, those published in a newspaper etc. all amount to defamation. In the
present case, the views of Bajaj and Florence have been published without any justification
for the same. This essential has been satisfied as publication in a newspaper will prima
facie satisfy the requirement of publication.
21. In Mahendra Ram v. Harnandan Prasad,9 the defendant was held liable because he had
sent a defamatory letter written in Urdu despite knowing the fact that the plaintiff could not
read Urdu and ultimately the letter will be read by someone else.

C. THE STATEMENT MUST REFER TO THE PLAINTIFF

22. The defamatory statement must refer to the person, class of persons or the trustees of a
company. The reference may be express or implied. It is not necessary that the plaintiff has
to be mentioned by name, if he can still be recognized. The person referred to in the
defamatory statement can be living or dead, however, defamation suit on behalf of a dead

9
Mahendra Ram v. Harnandan Prasad, AIR 1958 Pat 445.
15
 person can be filed only if the person filing the suit has an interest.This requirement is
satisfied, if the claimant is clearly identified or referred to. However, sometimes, the exact
subject of a statement will be unclear due to various innuendos in the statement. However,
unique facts pertaining to the individual in question, if included in the statement, this
criterion will be satisfied.
23. Further, the defence of truth is not available in the present case the truth of the statement is
irrelevant as long as it is not beneficial to the public at large.10 Additionally, Florence being
an Editor, cannot claim the defence of ‘privilege’ as the very requirements of the defence
have not been satisfied in the first instance.
24. With regard to this argument, the counsel relies on the landmark decision in the case of
Reynolds v. Times News Paper.11 The court laid down the following essential criteria in
order to invoke the defence – 12
a. The seriousness of the allegation. The more serious the charge, the more the public
is misinformed and the individual harmed, if the allegation is not true.
b. The nature of the information, and the extent to which the subject-matter is a matter
of public concern.
c. The source of the information. Some informants have no direct knowledge of the
events. Some have their own axes to grind, or are being paid for their stories.
d. The steps taken to verify the information.
e. The status of the information. The allegation may have already been the subject of
an investigation which commands respect.
f. The urgency of the matter. News is often a perishable commodity.
g. Whether comment was sought from the plaintiff. He may have information others
do not possess or have not disclosed. An approach to the plaintiff will not always
be necessary.
h. Whether the article contained the gist of the plaintiff's side of the story.
i. The tone of the article. A newspaper can raise queries or call for an investigation. It
need not adopt allegations as statements of fact.
j. The circumstances of the publication, including the timing.

10
Exception 1, § 499, Indian Penal Code, 1860.
11
Reynolds v. Times Newspapers Ltd., (2001) 2 AC 127.
12
Id.
16
25. The counsel contends that none of the above requirements have been fulfilled and thus, the
acts of Bajaj, Florence and Erichonian News does amount to defamation. Accordingly, the
judgment of the Hon’ble High Court is to be upheld.

17
ISSUE III: ANAND’S RIGHT TO PRIVACY HAS BEEN VIOLATED

26. Lastly, the counsel now moves to the issue of privacy. From the facts of the instant case,
the photo of Anand was taken while he was under the impression that he was alone in the
office. It may be noted that when the said photo was taken, he was reclining intimately with
one of the firm’s paralegals.13 Thus, a conclusion can be drawn that he was under the
legitimate expectation of others around him respecting his privacy.
27. At this juncture, certain observations from the Puttaswamy case14 are relevant – the concept
of privacy implies the right to be left alone. To be free from any external interferences, to
remain in a place where one can truly be alone.
28. The existence of a reasonable expectation of privacy if based on two aspects/facets of the
right i.e. “The notion of a reasonable expectation of privacy has elements both of a
subjective and objective nature. Privacy at a subjective level is a reflection of those areas
where an individual desire to be left alone. On an objective plane, privacy is defined by
those constitutional values which shape the content of the protected zone where the
individual ought to be left alone. The notion that there must exist a reasonable expectation
of privacy ensures that while on the one hand, the individual has a protected zone of
privacy, yet on the other, the exercise of individual choices is subject to the rights of others
to lead orderly lives.”15
29. In the aforementioned quote, the court clearly goes on to state that the subjective facet of
the right includes those facets of our day to day life where we desire to be left alone. Thus,
in the present case, it is clear that the respondent wished to be left alone.16
30. Thus, this notion of a reasonable expectation includes the subjective expectation of being
left alone while sharing an intimate moment with a loved one. The very fact that the
respondent in the present appeal is a married man who was subsequently divorced is not
relevant in this given context as above all, the right to privacy includes within its ambit the
right to chose how to exercise this right. This aspect is noted in the aforementioned case –
“Above all, the privacy of the individual recognises an inviolable right to determine how
freedom shall be exercised.”17

13
Page 1, Moot Proposition.
14
Justice K.S.Puttaswamy (Retd) vs Union Of India, (2017) 10 SCC 1.
15
Id. ¶ 169.
16
supra note 14.
17
supra note 14 ¶ 169.
31. At this juncture, the counsel places reliance on certain foreign case law. In the case of R v.
Spencer,18 the appellant used a software to download and share child pornographic content,
a punishable offence under the Canadian Criminal Code. The police requested for his IP
address and subsequently arrested him. He was tried and convicted. Subsequently,
however, he was acquitted by the Supreme Court as the actions of the police amounted to
an “unreasonable search and seizure” and reserved the conviction affirming the appellant’s
right to privacy. It was held that the appellant had a reasonable expectation of privacy. In
doing so, it assessed whether there is a “reasonable expectation of privacy” in the “totality
of the circumstances”, which includes “the nature of the privacy interests implicated by the
state action” and “factors more directly concerned with the expectation of privacy, both
subjectively and objectively viewed, in relation to those interests”.19
32. In the decision of United States v. Katz,20 a two fold test to determine whether there existed
a reasonable expectation of privacy –
(i) whether by the individuals conduct, he exhibited an actual expectation of
privacy; and
(ii) whether the individual’s expectation is something that society as a whole is
prepared to recognize as reasonable.
33. In the instant case, the photo depicted the present respondent sharing an intimate moment
with an individual from the opposite sex with whom he was romantically involved. The
two fold test laid down above is clearly satisfied.
34. The counsel contends that as the contours of the right have not be sufficiently examined by
this court on a case by case basis. It is only proper to place reliance of the aforementioned
case law referred to in the Puttaswamy case.21
35. Thus, the respondents fundamental right recognised under the Constitution has been
violated and the judgement of the Hon’ble High Court is to be upheld with regard to this
aspect.
36. Furthermore, the act of copyright infringement is not a question before this Hon’ble Court
and being a question of fact cannot be raised for the first time at an appellate proceeding.22

18
R v. Spencer, (2014) SCC 43.
19
supra note 14 at p 178.
20
United States v. Katz, 389 U.S. 347 (1967).
21
supra note 14
22
Karanpura Development Co. Ltd. v. K. Narain Singh, AIR 1962 SC 429 ; Venkataramana Devaru v. State of
Mysore, AIR 1958 SC 255.
19
 It is only questions of law that can be decided based on the material on record that can be
taken up for the first time at the appellate stage.23

23
State of Rajasthan v. Karam Chand Thapar, AIR 1965 SC 913.
20
 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited,

This Hon’ble Court may be pleased to dismiss the appeal with costs.

For this act of kindness I, the respondent, shall forever humbly pray.

Sd/-
~Counsels for the Respondent.