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SUBJECT: MOOT COURT AND INTERNSHIP

Name: Ruth Mapazu Register no. 1550355 Class: 10 BALLB ‘C’

IN THE HON’BLE SUPREME COURT OF ERICHONIA

BAJAJ AND ORS.

(PETITIONERS)

V.

ANAND

(RESPONDENT)

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS


COMPANION JUSTICES OF THE SUPREME COURT OF ERICHONIA
MEMORANDUM ON BEHALF OF THE RESPONDENT
TABLE OF CONTENTS

INDEX OF AUTHORITIES _________________________________________________ 4


1. CASES ____________________________________________________________ 4
2. BOOKS ____________________________________________________________ 4
3. STATUTES ________________________________________________________ 4
4. OTHER AUTHORITIES _____________________________________________ 4
STATEMENT OFJUSRISDICTION ____________________________________________ 6
STATEMENT OF FACTS ____________________________________________________ 7
STATEMENT OF ISSUES ___________________________________________________ 8
SUMMARY OF ARGUMENTS _______________________________________________ 9
ARGUMENTS ADVANCED _______________________________________________ 10
1. CASE IS NOT MANTAINABLE BEFORE THE SUPREME COURT
2. THE INJUNCTION AGAINST ERICHONIAN NEWS CONCERNING THE
DELETION OF THE BLOG ARTICLE AND THE PROHIBITION ON THE USE OF
INFORMATION CONCERNING ANAND’S RELATIONSHIP WITH THE
PARALEGAL DOES NOT CONSTITUTE SUPPRESSION OF FREE SPEECH. ____ 14
3. THE PHOTOGRAPH CONTINUES TO VIOLATE ANAND’S PRIVACY _____ 16
PRAYER ________________________________________________________________ 17

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TABLE OF AUTHORITIES

CASELAWS

1. M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors, 1950
SCR 1077
2. Hero Vinoth v. Seshammal, AIR 2006 SC 2234
3. M/s Neek Ram Sharma & Co. vs. Income Tax Appellate Tribunal and others, [2003]
262 ITR 692 (J&K) Ujjam Bai vs. State of U.P, AIR 1962 SC 1621
4. Sir Chunilal vs. Mehta and Sons Ltd. v Century Spinning and Manufacturing Co.
Ltd., AIR 1962 SC 1314Dr. B. Singh v Union of India &Ors, AIR 2004 SC 1923
5. Kanimozhi Karunanidhi v. Thiru. P. Varadarajan, High Court of Madras, Original
Application No. 871 of 2014 (MANU/TN/2339/2018)
6. Pritam Singh v. the State AIR 1950 SC 169
7. Kharak Singh vs. The State of U.P. and Ors, 1962 (1) SCR 332
8. Justice K.S Puttaswamy (Retd.) v. Union of India and Ors. WP (C) 494 of 2012

BOOKS

1. B.SHIVARAO, THE FRAMING OF THE INDIAN CONSTITUTION: SELECTED


DOCUMENTS (Eastern Book Company, 6th ed., 2007)
2. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA
(Lexis NexisButterworth Wadhwa, 8th ed. 2008).
3. M.P.JAIN, INDIAN CONSTITUTIONAL LAW(Lexis Nexis, 6th ed. 2010).
4. S.JAGADISH SWARUP & DR.L.M SINGHVI, CONSTITUTION OF INDIA
(ThomsonReuters, 3rd ed. 2013).
5. SEERVAI, H.M,CONSTITUTIONAL LAW OF INDIA,(Universal Law Publishing
Co., 4th ed. 2003)

STATUTES

1. THE CONSTITUTION OF INDIA.

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OTHER AUTHORITIES

1. Black’s Law Dictionary (9thed. 2009), available at Westlaw BLACKS

2. Dr. Shakil Ahmad Khan, P RamanathaAiyar‟s The Lexicon (Lexis Nexis, 3rded.)

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STATEMENT OF JURISDICTION

The respondents appear before this Hon’ble Court in response to the Special Leave Petition
under Article 136 filed by the learned appellants.

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STATEMENT OF FACTS

1) Anand is an intellectual property lawyer working in the Erichonian office of


the international law firm, ‘Rawat & Peter Associates’. His practice is in
copyright and media law, and his clients consist mainly of record companies
and commercial publishing houses. He is a regular commentator on legal
matters, and an outspoken advocate of strong copyright protection.

2) Each year he teaches a session on the Erichonian University Diploma in


Intellectual Property Law and Practice, and recently he has finished an article
explaining why stronger measures are required to enforce copyright
infringement than those provided for in the Erichonian Intellectual Property
Code. His article has just been published in Erichon’s Research & academic
legal journal, the Erichonian Law Review (ELR)

3) While working late at the office, Bajaj goes to the partners’ lounge at Rawat &
Peter Associates to have himself a cup of coffee. As he enters he sees Anand
reclining intimately on a couch with one of the firm’s young paralegals,
watching a movie on the partners’ full-sized movie-screen. Bajaj sees a DVD
cover on the table with “PIRATED THE PIRATES OF CARRIBEIAN” on the
front, and the Rawat & Peter Associates “seized goods” sticker directly
underneath. He recognizes the DVD as one that was seized in a copyright raid
carried out by the firm in the previous week.

4) Bajaj believes that the event vindicates his assessment of Anand. When he gets
back to his office he downloads the photo from his phone and emails it to
Florence, a legal journalist employed by the Erichonian News (EN). Florence
posts the photo on her EN-hosted law blog, along with a reference to Anand’s
ELR article, and 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.

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5) Florence’s blog entry goes viral, upsetting the editor of the ELR, the paralegal,
Anand, and his wife, Ria.

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. The High
Court grants Anand judgment on all but one of his claims, being that
arising from his wife’s provision of the CD to her solicitor.

7) EN appeal to the Supreme Court of Erichonian and seek for the reversal
of the judgment of the High Court concerning the publication of the
information and photograph.

STATEMENT OF ISSUES

ISSUE I: WHETHER THE CASE IS MAINTAINABLE BEFORE THE SUPREME COURT OF INDIA.

ISSUE II: WHETHER THE 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 AND ORDER AGAINST EN FOR DELETION OF THE BLOG ENTRY AND

ASSOCIATED COMMENTS IS A VIOLATION OF THE PARTIES RIGHT TO FREEDOM OF SPEECH.

ISSUE III: WHETHER THE PHOTOGRAPH CONTINUES TO VIOLATE ANAND’S PRIVACY.

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SUMMARY OF ARGUMENTS

ISSUE I: THE CURRENT CASE IS NOT MAINTAINABLE BEFORE THE SUPREME COURT OF

INDIA

It is humbly contended that the Petition in the instant matter is not maintainable before the
Honorable Supreme Court of Erichonia as the Court does not have jurisdiction to hear the matter.
Further, the petitioners do not have locus standi to approach the court as the matter being brought
before the court does not contain any substantial question of law.

ISSUE II: THE INJUNCTION AGAINST ERICHONIAN NEWS CONCERNING THE DELETION OF
THE BLOG ARTICLE AND THE PROHIBITION ON THE USE OF INFORMATION CONCERNING

ANAND’S RELATIONSHIP WITH THE PARALEGAL DOES NOT CONSTITUTE SUPPRESSION OF


FREE SPEECH.

It is contended that the law concerning freedom of expression, to the extent that it exists in
aid of the fourth pillar of the state, exists within the confines of reasonableness. This may
find its limits at the personal matters of a subject in question, in this case Mr. Anand, as his
personal affairs have no bearing on the subject of the blog article. Further, it also harms his
perception as an authority in the field of Copyright law.

ISSUE III: THE PHOTOGRAPH CONTINUES TO VIOLATE ANAND’S PRIVACY

It is contended that the law embodied in the Erichonian Code of Human Rights exists in
pari materia to the European Code of Human Rights, which recognises the individuals

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expectation of privacy in matter which concern his image, and its public display and
perception, both of which have been violated by the photograph held by Mr Bajaj.

ARGUMENTS ADVANCED

i. CASE IS NOT MAINTAINABLE BEFORE THE SUPREME COURT

It is humbly contended that the Petition in the instant matter is not maintainable before the
Honorable Supreme Court of Erichonia. The Court does not have jurisdiction to hear the
matter. Further, the petitioners do not have locus standi to approach the court.

The court cannot hear the matter under Article 133

The Appellate Jurisdiction of Supreme Court has not been invoked under Article 133 of the
Constitution

It is contended by counsel for the Respondent that in order for Erichonian News to bring a
case before the Supreme Court, it must correctly invoke the Courts appellate jurisdiction.
This jurisdiction has been clearly laid down in Article 133 of the Constitution which requires

a). The case involves a substantial question of law of general importance

b). The High Court believes that the Supreme Court must decide this matter

c). The High Court must certify that the above two conditions are met in the case which is
being appealed

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Counsel contends that a question of law will be a substantial of law if it directly and
substantially affects the rights of the parties. In order to be “substantial” it must be such that
there may be some doubt or difference of opinion or there is room for difference of opinion.
If the law is well-settled by the Supreme Court, the mere application of it to particular facts
would not constitute a substantial question of law.1

Alternatively, the test laid down by the Supreme Court2 to determine whether a substantial
question of law is involved are:

(i). whether directly or indirectly it affects the substantial rights of the parties;

(ii). whether the question is of general public importance;

(iii). whether it is an open question in the sense that the issue has not been settled by
pronouncement of the highest court in the land;

(iv). The issue is not free from difficulty; or

(v). It calls for a discussion for alternative view.

Further, in Hero Vinoth v. Seshammal,3 it was laid down that a question of law having a
material bearing on the decision of the case (that is, a question, answer to which affects the
rights of parties to the suit) will be a substantial question of law, if it is not covered by any
specific provisions of law or settled legal principle emerging from binding precedents, and,
involves a debatable legal issue. A substantial question of law will also arise in a contrary
situation, where the legal position is not clear, either on account of express provisions of law
or binding precedents.

Thus, from this we may conclude that the matter before the Supreme Court does not meet the
requirements of Article 133 as the issues are not substantial questions of law, whose meaning
has been clarified with case law above. As shall be seen from the substantive submissions

1
M/s Neek Ram Sharma & Co. vs. Income Tax Appellate Tribunal and others, [2003] 262 ITR 692 (J&K)
2
Sir Chunilal vs. Mehta and Sons Ltd. v Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314
3
AIR 2006 SC 2234

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from the respondent, the Erichonian Intellectual Property Code and the Erichonian Human
Rights Code, the matter of the deletion of the blog post the delivery up of the photograph are
issues that are not generally disputed and to the contrary, possess well settled doctrines, and
therefore does not require further discussion at an appellate level before the Supreme Court.

The court cannot hear the matter under Article 136

As per Article 136 of the Indian Constitution, a Special Leave Petition may granted under the
following conditions –

a). The Special Leave may be granted against any judgment, decree, determination, sentence
or order in any cause or matter passed or made by any court or tribunal in the territory of
India

b). Nothing in the first condition shall affect matters that arise with regard to the Armed
Forces.

In Pritam Singh v. the State,4 the Constitutional Bench observed that the Supreme Court is
vested with “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 a 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 circumstances exist”,
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 Supreme Court of India is of “residual nature” and is a
“discretionary power”.

4
AIR 1950 SC 169

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Article 136 does not confer upon a litigant a right to appeal against any order or judgement
but vest the Supreme Court of India with a discretionary power interfere with the orders of
the lower court only in cases of exceptional character where gross injustice has been carried.

Based on this assessment of the scope of Special Leave Petitions under Section 136, it is
evident that the issues before this court do not deal with matters of grave injustice, nor do
they deal with grave unresolved questions of law that hold the potential to be harmful in the
future. The issues are merely appealed matters that discuss the removal of a defamatory blog
article and the delivery up of the photograph, matters which do not have affect any other
party except the ones that have been brought before this court.

Therefore, it is contended that the current matter does not meet the precedential threshold set
forth by the Supreme Court as regards matters of legal importance that merit the discretionary
approval of the Court at this time.

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ii. THE INJUNCTION AGAINST ERICHONIAN NEWS CONCERNING THE
DELETION OF THE BLOG ARTICLE AND THE PROHIBITION ON THE USE
OF INFORMATION CONCERNING ANAND’S RELATIONSHIP WITH THE
PARALEGAL DOES NOT CONSTITUTE SUPPRESSION OF FREE SPEECH.

One of the key issues recently resolved before the Supreme Court was whether the norms
for compilation of the demographic biometric data by the government violate the right to
privacy. To answer this question the SC had to first answer: whether there is a
constitutionally mandated fundamental right to privacy. Due to conflicting judgments of the
SC in the past, the Aadhaar Bench referred this question before a 9-judge bench of the SC
("Privacy Bench") to finally determine whether there existed a fundamental right to privacy.
To quote the Aadhaar Bench:

"During the course of the hearing today, it seems that it has become essential for us to
determine whether there is any fundamental right of privacy under the Indian Constitution.
The determination of this question would essentially entail whether the decision recorded by
this Court in M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors 5
by an eight-Judge Constitution Bench, and also, in Kharak Singh vs. The State of U.P. and
Ors.6 by a six-Judge Constitution Bench, that there is no such fundamental right, is the
correct expression of the constitutional position.”7

The Judgment has not created a new right to privacy as a fundamental right but has clarified
the status of the right to privacy as fundamental right under the Constitution. It traced its
recognition in the right to life and personal liberty under Article 21 of the Constitution of
India ("Constitution"), but found that it was also footed in certain other rights, such as
Article 19.

• To protect the individual from unwanted intrusion into their private life, including
sexuality, religion, political affiliation, etc. (the negative freedom)

• To oblige the state to adopt suitable measures to protect an individual's privacy, by


removing obstacles to it (the positive freedom)

5
1950 SCR 1077
6
1962 (1) SCR 332
7
Justice K.S Puttaswamy (Retd.) v. Union of India and Ors. WP (C) 494 of 2012

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Counsel would like to clarify, fundamental rights under Article 19 and 21 are as such
enforceable only against the state or instrumentalities of the state and not against non-state
parties. In this context, counsel would like to discuss the relevance of Kanimozhi
Karunanidhi v. Thiru. P. Varadarajan.8 The case concerns the plaintiff’s desire to have
defamatory articles restrained via injunction. The case holds relevance to the matter at hand
as the court discussed the effect of defamatory articles on a public figure and their right to
privacy. Counsel would contend, in this regard, that a parallel exists between public figures
such as Karunanidhi and Anand, to the extent that both hold opinions that are significant to a
specific audience. Further, both sustain reputations that, if tarnished, would affect their
ability to conduct discourse freely and without hesitation.

Counsel therefore contends that to the extent that the blog post, while attempting to show the
alleged hypocrisy, also revealed Anand’s personal relationship with another, the same is a
violation of his right to privacy, as has been considered as a legitimate ground for news
restraint in the Kanimozhi case cited above. Further, to the extent that the article itself
attempts to demonstrate academic hypocrisy on the part of Mr Anand, it makes assumptions
regarding the context in within which the photo was taken i.e. there is no certainty as to
whether the viewing of the pirated movie was not done for legal purposes.

8
High Court of Madras, Original Application No. 871 of 2014 (MANU/TN/2339/2018)

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iii. THE PHOTOGRAPH CONTINUES TO VIOLATE ANAND’S PRIVACY

To allow Bajaj continued access to his photograph would allow him continued possession
of a photograph obtained in circumstances which violated Adam’s privacy and possibly
amounted to an illegal act. This represents an unacceptable policy position.

To deprive Bajaj possession of the photograph would not be an unreasonable burden on his
rights. Bajaj cannot exercise those rights in a manner that does not violate Anand’s privacy.
As such, taking the photography does not affect any of Bajaj’s rights and prevents an
ongoing risk to Anand’s privacy as the Erichonian Code of Human Rights

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PRAYER

Wherefore, in light of the issues raised, authorities cited and arguments advanced, the
Hon’ble Supreme Court of Erichonia be pleased to adjudge, hold and declare:

1. That the petition filed is not maintainable before this court of law.
2. That the court uphold the injunction suppressing the news article.
3. That the court pass an order instructing Bajaj to return the image.

And / or pass any such other order that this Hon’ble Court may deem fit, in the interest of
Justice, Equity and Good conscience

All of which is most humbly and


respectfully submitted.

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Counsel on behalf of RESPONDENT

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