School of Law, Christ University: Moot Court Competition, 2010
School of Law, Christ University: Moot Court Competition, 2010
Code No……..…..
Versus
TABLE OF CONTENTS
ABBREVIATIONS………………………………………………
INDEX OF AUTHORITIES…………………………………
STATEMENT OF JURISDICTION………………………......
STATEMENT OF FACTS….………………………………....
STATEMENT OF ISSUES……………………………..............
SUMMARY OF PLEADINGS……………….…………….......
SUMMARY OF ARGUMENTS…………………………………….
APPENDIX…………………………………………………..
ABBREVIATIONS
&……………………………………………………………………………………….And
Hon’ble…………………………………………………………………………Honourable
I.T………………………………………………………………...Information Technology
Co……………………………………………………………………………...…Company
Edn…………………………………………………………………………………Edition
i.e………………………...………………………………………………………….That is
Ltd.....................................................................................................................…....Limited
Pvt……………………………………………..…………………………………….Private
SC…………………………………………………………………………..Supreme Court
U.S……………………………………………………………………………United States
Vol……………………………………………………………………………….…Volume
p………………………………………………………………………………………..Page
v……………………………………………………………………………………..Versus
Ors…………………………………………………………………………………..Others
Anr…………………………………………………………………………………Another
INDEX OF AUTHORITIES
CASES CITED
Gopal Das Mohta v. Union of India. AIR 1955 SC 1 : 1955 (1) SCR 773
Chiranjit Lal Chowdhuri v. Union of India, (1950) SCR 869: AIR 1951 SC 41.
Regina v. Liverpool Corporation 1972) 2 QB 299, 308-09.
State of A.P. v. McDowell& Co. (1996) 3 SCC 709 (para 49).
Mahendra Kumar Gupta v Union of India(1995) 1 SCC 85, 89
K.Venu v. Director-General of Police. A.I.R. 1990 Ker.344 at p.345
Life Insurance Corporation of India v. Prof. M.D. Shah, 1992(3) S.C.J. 84 : A.I.R. 1993 S.C.
171 at p. 177
Ramesh Yeshwant Prabhoo(Dr.) v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130
Raj Kapoor v. State AIR 1980 SC 258
Reno v. American Civil Liberties Union521 US 844 (1997)
Krishna Bus Service Pvt. Ltd. M/s. v. State of Haryana, A.I.R. 1984 P&H 137 at p.141
Rajasthan Pradesh V.S. Sardarshahar and Anr. V. Union of India (UOI) and
Ors,MANU/SC/0408/2010
U.S. v. Alpers338 U.S. 680 (1950)
People v. Emerson, 196 Misc. 2d 716, 766 N.Y.S.2d 482 (Sup 2003): 1 Misc. 3d 638, 2003
WL 22283378 (N.Y. Sup 2003)
R v. Stanley(1965) 1 All ER 184
Miller v. California413 U.S. 15 (1973)
F.C.C. v. Pacificia Foundation, (1978) 3 All ER 184
U.S. v. Barth, 26 F. Supp. 2d 929 (W.D. Tex. 1998);
Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289
U.S. v. Zimmerman277 F.3d 426 (3d Cir. 2002)
354 U.S. 476 (1957)
Hamling v. U. S., 418 U.S. 87 (1974)
Erznoznik v. City of Jacksonville 422 U.S. 205 (1975)
New York v. Ferber 458 U.S. 747 (1982)
Osborne v. Ohio 495 U.S. 103 (1990)
Barnes v. Glen Theatre, Inc.1,
501 U.S. 560 (1991)
Mishkin v. State of N. Y 383 U.S. 502 (1966)
Kois v. Wisconsin 408 U.S. 229 (1972)
1
501 U.S. 560 (1991)
Com. v. Hinds437 Mass. 54, 768 N.E.2d 1067(2002): 537 U.S. 1205, 123 S. Ct. 1280, 154 L.
Ed. 2d. 1049 (2003)
Ranjit D. Udeshi v. State of MaharashtraAIR 1965 SC 881
Miller v. California413 U.S. 15 (1973)
American Booksellers Assn., Inc. v. Superior Court, 129 Cal. App. 3d 197, 181 Cal. Rptr. 33,
8 Media L. Rep. (BNA) 2014 (2d Dist. 1982);
News, Inc v. City of Dover, 117 N.H.1066, 381 A2d 752 (1977)
Capitol News Co., Inc. v. Metropolitan Government of Nashville and Davidson County, 562
S.W.2d 430, 3 Media L. Rep. (BNA) 2216 (Tenn. 1978);
Walsh v. State 236 Ga. App. 558, 512 S.E.2d 408 (1999);
U.S. v. Smith 27 F. Supp. 2d 1111 (C.D. Ill. 1998)
United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986),
People v. Geever, 122 Ill. 2d 313, 119 Ill. Dec. 341, 522 N.E.2d 1200 (1988)
Ranchhod Das Khimji Ashre v Temton Jahangir, 1961(2) Cr.L.J 338: (1961) 2 Guj. L.R.415:
Janhit Manch and Ors v. The Union of India PIL No. 155 of 2009
1. N. D. Basu, Code of Criminal Procedure Code, Vol II, Ashoka Law House, New
Delhi (10th Edn., 2007)
2. Ratan Lal and Dhiraj Lal, The Code of Criminal Procedure, Wadhwa Nagpur, New
Delhi (18th Edn., Reprint 2007)
3. Arvind P. Datar, Commentary on the Constitution of India, Vol I, Wadhwa Nagpur,
New Delhi, (2nd , 2007)
4. Prof. M. P. Jain, Indian Constitutional Law, Wadhwa Nagpur, New Delhi (5th Edn.,
Reprint 2007)
5. V.N.Shukla, Constitution of India, Eastern Book Company,(10th Edn.,2001)
6. Durga Das Basu, Shorter Constitution of India, Wadhwa-Nagpur, New Delhi (13th
Edn.,Reprint 2003)
7. H.M.Seervai, Constitutional Law of India,Vol.1, Universal Law Publishing Co. Pvt.
Ltd. (4th Edn.).
8. Dr. J.N.Pandey, Constitutional Law of India ,Central Law Agency, (42nd Edn., 2005)
9. Mamta Rao, Law relating to Women & Children, Eastern Book Company,Lucknow,
(2nd Edn., 2008)
4. Constitution of India
http://www.naavi.org/cl_editorial_09/obscenity_freedom_court_view.pdf
STATEMENT OF JURISDICTION
The Respondent, Union of India & Others, in Just World & Others v. Union of India &
Others hereby submits this Memorandum before the Hon’ble Supreme Court of India,
STATEMENT OF FACTS
Kayjay DeSouza, a law student and Sukhdeep, a student of digital animation, designed a
comic strip named “Pramila Adershan’s Meaty Meanderings” which described the life and
escapades of an adventurous and licentious thirty five year old housewife. The comic strip
was quite sexually overt both textually and graphically. Some copies of the comic strip were
even confiscated by the lecturers at college. Soon after they started their careers.
II
They registered a web site “Pramilaadershan.com” through Google in US and took out a
trademark for it both in the US and in India. They had tie-ups with iStore and Ebay to meet
demands.
III
As they found it difficult to generate stories each week they asked readers to contribute.
IV
As the comic strip became quite popular Sukhdeep and Kayjay decided to set up a company.
They became promoter directors of a new private company, Pushkar Ventures Pvt. Ltd
contributing equally to the initial capital of the company. It was valued by an independent
Pramila inspired a seasonal rage amongst the adolescent youth much to the annoyance of the
older generation.
VI
Culture Vultures, a right wing association began protests and claimed that some mothers of a
few teenagers had requested them to help as their children were being morally depraved.
Hence culture vultures held a protest meeting outside the offices of Pushkar ventures, where
they burnt print-outs of the comic strip. Their intentions were to protect the Indian culture and
feminine virtues.
VII
Culture Vultures members registered complaints in more than 38 police talukas in Karnataka.
In many cases, the Magistrates ordered personal appearance of the accused before granting
bail.
VIII
There were also complaints by a lawyers association in Tamil Nadu and some other right
IX
service providers, companies that gave server space to Pushkar Ventures, cyber café owners
on whose caches Pramila Adershan’s data was found and Istore and Ebay claiming that they
were intermediaries. The police launched investigations against many of these persons.
Reacting to all this, the Central Government issued an order banning the website.
XI
The Superintendent of Police, Bangalore (South) entered the offices of Pushkar Ventures and
seized all the computer hard disks and story board clippings hanging there. He also found
other pornographic material which he claimed was being used by the employees for
inspiration.
XII
A letter from an angry Indian mother reproaching them for hosting such depraved and
salacious content sent by istore and Ebay was also found in their office. The officer also
found some personal letters of communication between Kayjay and his ex-girlfriend. Their
XIII
In February 2009 the company and its directors were charged under Sections 67A of the
Information Technology Act, 2000 (as amended) r/w Sections 3 and 4 of the Indecent
XIV
Sukhdeep and Kayjay applied to the Karnataka, Tamil Nadu, Gujarat and Madhya Pradesh
High Courts for quashing of various complaints under Section 482 of the CrPC. The
Karnataka, Gujarat and Madhya Pradesh High Court were refused to stay or quash the
complaints.
XV
Kayjay also filed a separate writ petition alleging violation of his privacy. They also filed a
writ petition in the High Court of Karnataka challenging the order blocking the website,
stating that a case had not been made out for the same under Section 69A of the Information
Technology Act. The High Court stayed the operation of the order for four weeks on the
statement of the Solicitor General of India that the Union would file an appeal before the
Supreme Court.
XVI
COITAL filed a writ petition challenging the penalties imposed on intermediaries under the
XVII
Just world, a reputed civil society filed a writ petition in the Supreme Court.
XVIII
Kayjay and Sukhdeep moved to the Supreme Court under Article 139A. COITAL also filed
XIX
As per the observation of Judges in the Karnataka High Court the Chief Justice constituted a
Constitution bench and passed a fresh interim order staying all proceedings and remanding all
XX
STATEMENT OF ISSUES
CONSTITUTION?’
(C) WHETHER THE SEARCH AND SEIZURE POWERS GRANTED UNDER SECTIONS 29
CONSTITUTIONAL ?
THE SEARCH OF PRIVATE MAILS AND DOCUMENTS NOT MEANT FOR PUBLIC
CIRCULATION ?
SECTIONS?
SUMMARY OF PLEADINGS
does not include a mere busybody who is interfering in things which do not
concern him.
III. Sections 67A, 69A and 69B of the Information Technology (Amendment)
(Prohibition) Act, 1986 and the Indian Penal Code, 1860 ARE
CONSTITUTIONAL
VII. Central Government can block the websites in cases of violation of public order
ARGUMENTS ADVANCED
The sole object of Article 32 is the enforcement of the fundamental rights guaranteed by the
Constitution. Unless a fundamental right is violated a person cannot complain under this
article.2 Even if the Supreme Court finds that a law must be held to be void, being in
contravention of some provisions of the Constitution, the Court will not give relief under
Article 32 unless it is satisfied that a fundamental right is infringed. It is not concerned with
out a case under this Article the petitioner should not merely establish that the law
complained of is beyond the competency of the particular legislature, as not being covered by
any of the items in the legislative lists, but also that it invades the fundamental rights
order.4 It is said that an enactment cannot be struck down on the plea that it is unreasonable,
this case the Petitioner, Just World, alleges infringement of Articles 14, 19(1) (a) & (g) and
21 of the Constitution. But there is no violation of fundamental rights as the Petitioner claims
The rights that could be enforced under Article 32 must ordinarily be the rights of the
Petitioner himself who complains of the infraction of such rights and approaches the Court
for relief. A petitioner cannot be heard to complain about discrimination suffered by others. 5
In this case, Just World has filed a Writ of under Article 32 challenging the Constitutionality
In the case of Regina v. Liverpool Corporation6, Lord Denning M.R. held that the expression
‘person aggrieved’ does not include a mere busybody who is interfering in things which do
not concern him, but it includes any person who has a genuine grievance because something
has been done or may be done which affects him. Also an association cannot file a writ
petition under Article 32. This was laid down in the case of Mahendra Kumar Gupta v Union
of India7. Of late there is a rampant abuse of PIL. Frivolous cases are filed without any
reason. They have been mooted by privately motivated interests in the disguise of the so-
called public interests. The Petitioner has failed to show the ‘public interest’ element in this
case.
(B) THE CONSTITUTIONALITY OF SECTIONS 67A, 69A AND 69B OF THE INFORMATION
CODE, 1860?
Section 67A of The Information Technology (Amendment) Act, 2008 dealt with punishment
for publishing or transmitting any material containing sexually explicit act, etc., in electronic
form. According to Article 13 of the Constitution the laws inconsistent with or in derogation
5
State of A.P. v. McDowell& Co. (1996) 3 SCC 709 (para 49).
6
(1972) 2 QB 299, 308-09.
7
(1995) 1 SCC 85, 89
of the fundamental rights will be considered void. It includes any laws made or passed by a
There is no infringement of Article 19(1) (a) of the Constitution which gives citizens the right
United States of America and India. In the former, freedom of speech guaranteed is absolute
and in the latter the Constitution itself provides for certain exceptions. India is also a party to
the International Covenant on Civil and Political Rights and therefore bound to respect the
between freedom of speech and the stability of the society. This freedom is subject to Sub-
clause (2) of Article 19, which allows the State to impose restriction on the exercise of this
freedom in the interest of public decency and morality 8. It is considered to be in the general
interest if the society.9 Decency means that the action must be in conformity with the current
standards of behaviour or propriety.10 This shows that obscenity which is offensive to public
decency and morality is outside the purview of the protection of free speech and expression,
because the Article dealing with the right itself excludes it. This is to ensure that there is a
In the case of Raj Kapoor v. State11, the Apex court dealt with the aspect of censorship and
held that freedom of expression cannot be questioned by an intolerant group of people. The
fundamental freedom under Article 19(1) (a) can be reasonably restricted only for the
purposes mentioned in Articles 19(2) and the restriction must be justified. It was observed
that “the censors Board should exercise considerable circumspection on movies affecting the
8
K.Venu v. Director-General of Police. A.I.R. 1990 Ker.344 at p.345
9
Life Insurance Corporation of India v. Prof. M.D. Shah, 1992(3) S.C.J. 84 : A.I.R. 1993 S.C. 171 at p. 177
10
Ramesh Yeshwant Prabhoo(Dr.) v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130
11
AIR 1980 SC 258
morality or decency of our people and cultural heritage of the country. The moral values in
particular, should not be allowed to be sacrificed in the guise of social change or cultural
assimilation”.
In the case of Reno v. American Civil Liberties Union12 it was held that it would be wrong to
restrain speech on the internet, except for dissemination of obscene messages. Moreover a
Corporation or a company is not a citizen for purposes of the Constitution and thus cannot
Hence sexually explicit acts arouse lascivious interest in the minds of people. It is against
public decency and morality and hence comes within the purview of restrictions imposed
under Clause 2 of Article 19. Hence there is no violation of Article 19(1) (a).
Article 19(1) (g) ensures the freedom to practice any profession, or to carry on any
occupation, trade or busniness. In Rajasthan Pradesh V.S. Sardarshahar and Anr. V. Union
of India (UOI) and Ors14 , the Court decided that “the right to practice under Article 19(1)(g)
of the Constitution is not absolute and is subject to reasonable restrictions provided under
Article 19(6) of the Constitution”. Hence the publishing or transmission of sexually explicit
act is within the restriction mentioned in 19(6) and hence the section is not unconstitutional.
In this case the comic strip was quite sexually explicit, both textually and graphically. For
something to be ‘obscene’ it must be shown that the average person, applying contemporary
community standards and viewing the material as a whole, would find that the work appeals
way, and that it lacks serious literary, artistic, political or scientific value. In this issue mother
of the teenage children had asked the help of the Culture Vulture and bundles of cases filed
against them in various parts of the Country. That itself shows that the strip is obscene as per
initial private search of the files in defendant’s computer was not subject to Fourth
Amendment scrutiny, as the repairman was not an agent of the government and did not act
In U.S. v. Alpers16 , Obscene phonograph records are within the prohibition of 245 of the
Criminal Code, which forbids the interstate shipment of any obscene book, pamphlet,
picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character.
Indian culture is more conservative and orthodox than the United States and the people here
The letters of angry Indian mother for hosting such depraved and salacious content itself
shows that the Pramila Adershan’s character is obscene. In the case of R v. Stanley17 it is
clearly pointed out that anything that is obscene must necessarily be indecent. In other words,
indecent merely means non conformance with accepted standards of morality. Obscenity
United States courts use the Miller test for determining whether speech or expression is
‘obscene,’ and therefore not protected by the First Amendment. That means it can legally be
banned. The Miller test stems from Miller v. California19, in which the US Supreme Court
held that material is obscene if each of the following factors is satisfied: Whether the average
person, applying contemporary community standards, would find that the work, taken as a
whole, appeals to the prurient interest? Whether the work depicts/describes, in a patently
offensive way, sexual conduct specifically defined by applicable law? Whether the work,
taken as a whole, lacks serious literary, artistic, political, or scientific value? All the factors
mentioned in the questions are satisfactory to define the material in this issue as obscene and
15
People v. Emerson, 196 Misc. 2d 716, 766 N.Y.S.2d 482 (Sup 2003): 1 Misc. 3d 638, 2003 WL 22283378
(N.Y. Sup 2003)
16
338 U.S. 680 (1950)
17
(1965) 1 All ER 184
18
F.C.C. v. Pacificia Foundation, (1978) 3 All ER 184
19
413 U.S. 15 (1973)
filthy. Central Government also issued an order for banning the website because of its filthy
content. Indian culture and feminine virtue is spoiled in this indecent character. It also gives
false image of traditional Indian housewife. Police also found pornographic material from
their office.
Child pornography is offensive in most of the Countries in the world.20The comic strip is
against the national and contemporary standards of the society. Obscenity has the tendency to
deprave and corrupt those whose minds are open to such immoral influences.21
A federal court case, U.S. v. Zimmerman22, provides persuasive analysis of the issue of
“staleness”. In Zimmerman, the defendant was indicted for possession of child pornography
when several images were found at his residence during the execution of a search warrant.
The search warrant application contained information that the Third Circuit found to be
“stale”, because it stated that “many months” earlier, one clip of adult pornography had been
accessed at Zimmerman's computer. On this basis, the denial of the suppression motion was
reversed.
In Com. v. Hinds23, holding that child pornography images stored on defendant’s computer
were in police officer’s plain view, and thus officer’s seizure of defendant’s computer was
not unlawful; officer had consent to search the computer for electronic mail, officer was not
required to disregard files listed in plain view in the computer directory, the titles to the
believe that their contents contained illegal subject matter, and there was a substantial risk
that the computer data would be destroyed if the computer was not seized.
In Roth v. U. S.24, Court opines that Obscenity is not within the area of constitutionally
protected freedom of speech or press either (1) under the First Amendment, as to the Federal
20
U.S. v. Barth, 26 F. Supp. 2d 929 (W.D. Tex. 1998);
21
Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289
22
277 F.3d 426 (3d Cir. 2002)
23
437 Mass. 54, 768 N.E.2d 1067(2002): 537 U.S. 1205, 123 S. Ct. 1280, 154 L. Ed. 2d. 1049 (2003)
24
354 U.S. 476 (1957)
Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the
States. The standard for judging obscenity, adequate to withstand the charge of constitutional
infirmity, is whether, to the average person, applying contemporary community standards, the
The sexually explicit contents will never come under the purview of Fundamental Rights of
the Indian Constitution. In Hamling v. U. S.25 , Court was affirming conviction of mailing and
material relating to their illustrated version of the Presidential Report of the Commission on
nuisance and a punishable offense for a drive-in movie theater to exhibit films containing
nudity, when the screen is visible from a public street or place, held facially invalid as an
27
infringement of First Amendment rights. In New York v. Ferber , a New York statute
prohibits persons from knowingly promoting a sexual performance by a child under the age
and others who distribute similar material, the statute in question does not violate the First
Amendment as applied to the States through the Fourteenth Amendment. In the case of
Osborne v. Ohio28 , it is mentioned that Ohio may constitutionally proscribe the possession
On other issue of Barnes v. Glen Theatre, Inc.29, the Enforcement of Indiana’s public
indecency law to prevent totally nude dancing does not violate the First Amendment's
25
418 U.S. 87 (1974)
26
422 U.S. 205 (1975)
27
458 U.S. 747 (1982)
28
495 U.S. 103 (1990)
29
501 U.S. 560 (1991)
30
383 U.S. 502 (1966)
designed for and primarily disseminated to a clearly defined deviant sexual group, rather than
the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant
theme of the material taken as a whole appeals to the prurient interest in sex of the members
of that group.
underground newspaper pictures of nudes and a sex poem. It is also pointed out that Kaplan
v. California32 , Obscene material in book form is not entitled to First Amendment protection
merely because it has no pictorial content. A State may control commerce in such a book,
reasonably conclude (conclusive proof is not required) result from the continuing circulation
of obscene literature.
Court in Paris Adult Theatre I v. Slaton 33, contented that Exhibition of obscene material in
private search of the files in defendant’s computer was not subject to Fourth Amendment
scrutiny, as the repairman was not an agent of the government and did not act with the
phonograph records are within the prohibition of 245 of the Criminal Code, which forbids the
interstate shipment of any obscene book, pamphlet, picture, motion-picture film, paper,
letter, writing, print, or other matter of indecent character. Indian culture is more conservative
and orthodox than the United States and the people here are more sensitive about the morality
and decency.
31
408 U.S. 229 (1972)
32
413 U.S. 115 (1973)
33
413 U.S. 49 (1973)
34
People v. Emerson, 196 Misc. 2d 716, 766 N.Y.S.2d 482 (Sup 2003): 1 Misc. 3d 638, 2003 WL 22283378
(N.Y. Sup 2003)
35
338 U.S. 680 (1950)
Court as ‘the quality of being obscene which means offensive to modesty or decency; lewd,
filthy and repulsive. This also includes sexually explicit content under Section 67A of the
Information Technology (Amendment) Act, 2008. The per se action of the petitioner can be
considered as sexually explicit and the persons are liable for their act. The letters of angry
Indian mother for hosting such depraved and salacious content itself shows that the Pramila
Adershan’s character is sexually explicit. In the case of R v. Stanley37 it is clearly pointed out
indecent merely means non conformance with accepted standards of morality. Obscenity
United States courts use the Miller test for determining whether speech or expression is
‘obscene or sexually explicit,’ and therefore not protected by the First Amendment. That
means it can legally be banned. The Miller test stems from Miller v. California39, in which the
US Supreme Court held that material is obscene if each of the following factors is satisfied:
Whether the average person, applying contemporary community standards, would find that
the work, taken as a whole, appeals to the prurient interest? Whether the work
applicable law? Whether the work, taken as a whole, lacks serious literary, artistic, political,
or scientific value? All the factors mentioned in the questions are satisfactory to define the
material in this issue as sexually explicit and filthy. Central Government also issued an order
for banning the website because of its filthy content. Indian culture and feminine virtue is
spoiled in this indecent character. It also gives false image of traditional Indian housewife.
36
AIR 1965 SC 881
37
(1965) 1 All ER 184
38
F.C.C. v. Pacificia Foundation, (1978) 3 All ER 184
39
413 U.S. 15 (1973)
Child pornography is offensive in most of the Countries in the world. 40The comic strip is
against the national and contemporary standards of the society. It has the tendency to deprave
and corrupt those whose minds are open to such immoral influences. 41 Greater latitude is
permissible in defining child pornography.42 Many courts apply the so-called Dost test to
Context is also important in determining ‘whether the image is intended or designed to elicit
a sexual response in the viewer. ’For example, in jury instructions approved by the Ninth
Circuit, the Court asked the jurors to consider the caption of the photograph 44. Indecent
exposure statute requires exposure at such a time and place where as a reasonable man he
knows or should know his act will be open to the observation of others 45. The law pertaining
to indecent exposure does not require that an accused have a specific intent to expose himself
to any particular person; it is sufficient that accused generally intended to expose him so as to
The issue of Pramila Adershan also includes child pornography. It is explicit that cartoons
are commonly meant for children and a mere carelessness in this issue will destroy they
The states have a compelling interest in the protection of the health and welfare of children,
and, therefore, are entitled to great leeway in the regulation of pornographic depictions of
children46. States enjoy greater latitude in regulating child pornography because of the
40
U.S. v. Barth, 26 F. Supp. 2d 929 (W.D. Tex. 1998);
41
Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289
42
American Booksellers Assn., Inc. v. Superior Court, 129 Cal. App. 3d 197, 181 Cal. Rptr. 33, 8 Media L. Rep.
(BNA) 2014 (2d Dist. 1982); News, Inc. v. City of Dover, 117 N.H. 1066, 381 A.2d 752 (1977);Capitol News
Co., Inc. v. Metropolitan Government of Nashville and Davidson County, 562 S.W.2d 430, 3 Media L. Rep.
(BNA) 2216 (Tenn. 1978); Walsh v. State 236 Ga. App. 558, 512 S.E.2d 408 (1999); U.S. v. Smith 27 F. Supp.
2d 1111 (C.D. Ill. 1998)
43
United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986),
44
United States v. Arvin, 900 F.2d 1385 (9th Cir. 1990).
45
Parnigoni v. District of Columbia, 933 A.2d 823 (D.C. 2007)
46
People v. Geever, 122 Ill. 2d 313, 119 Ill. Dec. 341, 522 N.E.2d 1200 (1988)
government’s compelling interest in safeguarding its children. The states may constitutionally
prohibit even the private possession of child pornography. Moreover, a statute prohibiting the
A state has an interest in regulating commercial sexually explicit act or obscenity 48, and
sale51, including possession with intent to sell52, or display53 of obscene or filthy matter.
Section 69A of the Information Technology Act states the power to issue directions for
blocking for public areas of any information through any computer resource. Where there is a
severe increase in the pornography and sexual explicit websites, Government should take
Constitution which also deals with a life with dignity. Preamble to the Indian Constitution
also states about the sovereignty and integrity of the State. While performing the essential
functions of maintaining public order and security of the nation, the state is different from
other persons whether natural or artificial. 54 The State can act upon its discretion where it
feels that the public order is violated. Section 69A also guarantees the Central Governments
power to safeguard the Security of the State, friendly relations with foreign States etc. A
47
State v. Peterson, 535 N.W.2d 689 (Minn. Ct. App. 1995)
48
Gotleib v. State, 406 A.2d 270, 5 Media L. Rep. (BNA) 1818 (Del. 1979), People v. Wilson, 95 Mich. App.
440, 291 N.W.2d 73 (1980)., City of Minot v. Central Ave. News, Inc., 308 N.W.2d 851 (N.D. 1981)
49
State ex rel. Kidwell v. U. S. Marketing, Inc., 102 Idaho 451, 631 P.2d 622, 25 A.L.R.4th 381 (1981), Long v.
130 Market St. Gift & Novelty of Johnstown, 294 Pa. Super. 383, 440 A.2d 517 (1982), Powell v. State, 632
S.W.2d 842 (Tex. App. Houston 14th Dist. 1982).
50
People v. Stout, 18 Cal. App. 3d 172, 95 Cal. Rptr. 593 (2d Dist. 1971), Flynt v. State, 153 Ga. App. 232, 264
S.E.2d 669, 5 Media L. Rep. (BNA) 2418 (1980), State v. Muldowney, 60 N.J. 594, 292 A.2d 26 (1972)
51
Movies, Inc. v. Conlisk, 345 F. Supp. 780 (N.D. Ill. 1971), Mitchem v. State ex rel. Schaub, 250 So. 2d 883
(Fla. 1971), People v. Mabie, 30 Ill. App. 3d 399, 331 N.E.2d 869 (4th Dist. 1975),
52
Cherokee News & Arcade, Inc. v. State, 1974 OK CR 108, 533 P.2d 624 (Okla. Crim. App. 1974)
53
Buck v. Steel, 263 Ark. 249, 564 S.W.2d 215 (1978), People v. Mabie, 30 Ill. App. 3d 399, 331 N.E.2d 869
(4th Dist. 1975)
54
R.M. Seshadri v. Second Addl. Income Tax Officer, (1954) 2 Mad L.J. 285
website which is harmful to the moral values of the state should be banned. For the purpose
of public safety, the classification of an area into dangerously disturbed area and other area is
based on intelligible differentia.55 This is the same case with regard to the website if it is
dangerous to the societal values which may cause public disorder. Article 14 of the
Constitution allows certain discrimination. Sex being a sound classification for special
protection of woman under Article 15(3),56 the provisions of any Act can be passed for the
wellbeing of the weaker parties. Equality means equality among equals. There is no
Section 292(1) consists of two parts. One refers to a book, pamphlet, paper, drawing,
painting, representation, figure of any other object which is lascivious or appeals to the
prurient interest, and the other part says that if these materials comprises of two or more
distinct items, the effect of any one of its items if taken as a whole tends to deprave and
corrupt persons who are likely according to the relevant circumstances to read, see or hear the
There must be two things proved under Section 292 that (i) the matter is obscene and (ii) the
accused has sold, distributed, imported, printed or exhibited it, or attempted or offered to do
so.The word obscene is not defined in the Indian Penal Code. It depends upon the standards
of morals of the contemporary society. The idea relating to immorality and indecency may
change from time to time and place to place. The term obscene denotes anything that is
The constitutional validity of section 292 has been challenged in the case Ranjit D Udeshi v.
and expression enshrined in article 19(1)(a) of the Constitution. It was held that “it can be
constitutional protection given to free speech or expression, because the article dealing with
the right itself excludes it..This freedom is subject to reasonable restrictions which maybe
thought necessary in the interest of the general public and one such is the interest of public
decency and morality. Section 292, manifestly embodies such a restriction because the law
against obscenity seeks no more than to promote public decency and morality.” So it was
held that Section 292 was constitutional and not ultra vires of Article 19(2). It was also held
that “the obscene matter in a book must be considered by itself and separately to find out
whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those
whose minds are open to influences of this sort and into whose hands the book is likely to
fall. In this connection the interests of our contemporary society and particularly the influence
of the book on it must not be overlooked. It was in this very same case that the Court held
that the defence available under the English law is not acceptable here. It is not possible for
the accused to show that he had not examined the article in question and thus had no reason
to suspect that it was obscene. But the other defence under English law which exempts
publication which are for public good and in interest of science, literature, art, learning or
other subjects of general concern is applicable in India which is provided for in the
Even in the United States case of Roth v. U. S.59 , Obscenity was not considered to be within
the area of constitutionally protected freedom of speech or press either under the First
Amendment, as to the Federal Government, or under the Due Process Clause of the
Fourteenth Amendment, as to the States. The standard for judging obscenity, adequate to
withstand the charge of constitutional infirmity, was whether, to the average person, applying
59
354 U.S. 476(1957)
contemporary community standards, the dominant theme of the material, taken as a whole,
In the case of Atkins v DPP and Goodland v DPP60 it was held that the making of an indecent
done knowingly.
In the present case the comic strip “Pramila adershan’s Meaty Meanderings” can be
considered as highly obscene as there was substantiation to show that the content contained
lascivious material which would morally deprave the young as their mothers were highly
against the strip. the website owners cannot plead the exception to this section because it was
not created in interest of science, art, literature, learning or other objects of general concern
Section 293 of the Indian Penal Code punishes any person who sells, lets to hire, distributes,
exhibits or circulates to any person under the age of twenty years any such obscene object as
referred in Section 292 of the IPC with imprisonment which may extend to three years or
with fine which may extend to two thousand rupees and in the event of subsequent conviction
with imprisonment of which may extend to seven years or with fine which may extend to five
thousand rupees.
In the case of Uttam Singh v. State61 the accused was found selling a packet of playing cards
portraying on the reverse luridly obscene pictures. When his shop was raided, similar packets
were found. He was sentenced to six months rigorous imprisonment and affine of Rs.500.
In the case of Dunlop v. U.S62 the court upheld the conviction for mailing and delivery of a
newspaper called the 'Chicago Dispatch,' which contained obscene, lewd, lascivious, and
indecent matter.
60
(2000) 1 WLR 1427(QBD)
61
AIR 1974 SC 1230; 74 Cri LJ 923
62
165 U.S. 486(1897)
(PROHIBITION) ACT
or in any other manner and for matters connected therewith or incidental thereto. According
to Section 2(c) of the act “indecent representation” means depiction, in any manner, of the
figure of a woman, her form or body or any part thereof in such a way as to have the effect of
Any act like publishing or arranging to publish or taking part in publishing or exhibition or of
punishable. If any person produces or causes to be produced, sells, lets to hire, distributes,
circulates or sends by post any book, pamphlet, paper, slide, film, writing, drawing, painting,
description for a term which may extend to 2 years and with or without fine up to two
thousand rupees. In the event of a second or subsequent conviction the imprisonment may
extend up to 5 years and fine of not less than ten thousand rupees, which may extend up to
According to Section 7 not only an individual but a corporate body can also commit the
offence of indecent representation of women. It says that every person who at the time
offence was committed, was in charge of, and was responsible to, the company, shall be
deemed to be guilty of the offences and liable to be proceeded against and punished
accordingly. But if such a person can prove that that the offence was committed without his
knowledge or that he had exercised his due diligence to prevent it, he shall not be liable. On
the other hand if it is proved that the offence has been committed by the company with
consent or connivance of or neglect on the part of any director, manager, secretary or other
officer of the company such person shall be proceeded against and punished accordingly.
What is not decent or appears not to be decent is indecent. Indecency relates to public morals.
It is also correlated with the state of mind. Decency describes the state or quality of being
figures or in any other manner and for matters connected therewith or incidental thereto.
Section 2(c) of the act defines indecent representation as depiction of a figure of a woman or
any part of her body which is indecent or derogatory to or denigrating women or which is
Any act like publishing or arranging to publish or taking part in publishing or exhibition or of
punishable. If any person produces or causes to be produced, sells, lets to hire, distributes,
circulates or sends by post any book, pamphlet, paper, slide, film, writing, drawing, painting,
description for a term which may extend to 2 years and with or without fine up to two
thousand rupees. In the event of a second or subsequent conviction the imprisonment may
extend up to 5 years and fine of not less than ten thousand rupees, which may extend up to
According to Section 7 not only an individual but a corporate body can also commit the
offence of indecent representation of women. It says that every person who at the time
offence was committed, was in charge of, and was responsible to, the company, shall be
deemed to be guilty of the offences and liable to be proceeded against and punished
accordingly.63 But if such a person can prove that that the offence was committed without his
knowledge or that he had exercised his due diligence to prevent it, he shall not be liable. On
the other hand if it is proved that the offence has been committed by the company with
consent or connivance of or neglect on the part of any director, manager, secretary or other
officer of the company such person shall be proceeded against and punished accordingly.64
The unique position of the Indian women in our Society and the cultural heritage of India
have been widely known. It is undisputed that the dignity of women has to be preserved and
protected. In the Indian polity, all efforts have been made for emancipation of women and to
The Constitution of India contain provisions which not only act as protector but also improve
women's condition in all spheres of life Article 19(1)(a) guarantees all citizens the freedom of
speech and expression. Though the Article does not explicitly deals with the freedom of the
Press and Media, however the judicial decisions state that the freedom of speech and
expression include the freedom of the press and circulation also. Further, these rights are not
absolute and are subjected to reasonable restrictions as enshrined under clause (2). Decency
and morality are among the restrictions mentioned under Article 19(2), which have been
included for restricting speeches and publications which tend to undermine public morals
In Ranjit D. Udeshi v. State of Mahrashtra65 , the issue of obscenity and the conflict with
freedom of speech and expression has been discussed atand the court held that obscenity is
offensive to modesty or decency, and decency and morality are reasonable grounds for
restricting the right to freedom of speech and expression of the people as per Article 19(2) of
63
Section 7(1), Indecent Representation of Women(Prohibition) Act,1986
64
Section 7(2)
65
AIR 1965 SC 881
Accordingly the dignity of woman is constitutionally protected and any media projections
which are derogatory to women should be prevented and prohibited. If the media, electronic
or print, exceed their jurisdiction, the courts come forward to ensure that violation of the
Moreover, Article 21 guarantees protection of life and personal liberty. Right to life as
enshrined in this article something more then survival or animal existence 66. It has a much
wider meaning which includes right to livelihood, better standard of living, hygienic
conditions in the workplace and leisure. It includes the right to live with human dignity. It is a
basic right of a female to be treated with decency and proper dignity. 67 Acts such as rape,
sexual harassment or molestation or many such which encourage or promote these activities,
are violative of Article 21.68 In Maneka Gandhi v. Union of India69 , it was held that right to
life is not merely confined to physical existence but also includes within its ambit the right to
live with human dignity. In Francis Coralie Mullin v. Union of Territory of Delhi70 it was
held that right to life means something more than just physical survival and is not confined to
protection of any faculty or limb through which life is enjoyed or the soul communicates with
the outside world, but includes ‘the right to live with human dignity’. Women are human
beings and hence every right pertaining to human beings are applicable to women. Thus
Women have right to lead a dignified life. In Chandra Raja Kumari v. Police Commissioner,
Hyderabad the Hon'ble High Court of Andhra Pradesh held that any act which tends to
offend the dignity of a woman or deal with her indecently in the circumstances amounting to
India as right to live includes right to live with dignity and decency. The Universal
Declaration of Human Rights, International Covenant on Civil and Political Rights has
66
State of Maharashtra v. Chanderbhan, A.I.R. 1983 S.C. 803.
67
State of Punjab v. Baldev Singh, A.I.R. 1999 S.C. 2378.
68
Boddhistattawa Gautam v. Shubra Chakraborty, A.I.R. 1996 S.C. 992.
69
AIR 1978 SC 597 : (1978) 1 SCC 248
70
AIR 1981 SC 746(para 3)
recognized that human beings have dignity inseparable from them. Thus, the right to dignity
is an inseparable part of right to life guaranteed under the Indian Constitution under Art.21
In the instant the directors of Pushkar Ventures created a comic strip which described the life
of a bold and immoral housewife which was explicit both textually and graphically. The
protagonist of the comic Pramila Adershan became such a cult figure that her image was used
even for advertising certain domestic products. The fact that the strip depraves, corrupts or
injures public morality is evident from the letters sent by mothers to iStore and Ebay and the
The portrayal of Pramila Adershan as a promiscuous woman has the effect of demeaning,
debasing and degrading women. It also tends to corrupt and deprave the reader. It deprives
them of the respect and dignity that they are entitled to and shows them in a low light. It
would cause great shame and mental agony to all women. Hence there is an indecent
It can be said that stories about a promiscuous woman would have a morally corruptive effect
on the minds of young people. It would definitely obscure basic moral values and expose
young people to bizarre ideas which may lead to deviant behaviour which among them. It
was contended that the constitutional protection for speech and expression is not absolute and
The Section 9(2) (c) of The Trade Marks Act, 1999 stipulates that registration of substance
that contains or comprises of scandalous or obscene matter is prohibited. The character which
portrays the picture of the promiscuous life of a lady with sexually and graphically explicit
comic strip is against the morality, culture, ethical principles, just and hon’ble traditions of
conservative Indian society. It is evident to the fact that the matter contains obscene and
scandalous material which can cause chaos and confusion to the society and also cause the
(C) WHETHER THE SEARCH AND SEIZURE POWERS GRANTED UNDER SECTIONS 29
Information Technology (Amendment) Act, 2008. Section 80 gives power to any police
officer, not below the rank of a inspector, or any other officer of the Central Government or a
State Government authorized by the Central Government in this behalf may enter any
public place and search and arrest without warrant any person found therein who is
offence under this Act. Police officers is acting accordingly to the Act, with due diligence.
Being a cognizable offence the police officer can arrest without a warrant. In State of
Haryana v. Ch. Bhajan Lal71Court stated that when any information disclosing a cognizable
offence is laid before the office-in-charge of a police station, he has no option but to register
Information Technology (Amendment) Act, 2008 is Constitutional. The Act is in tune with
the UNCITRAL Model Law. Roger Revelle once quoted “Ever since men began to modify
their lives by using technology they have found themselves in a series of technological
In U.S. v. Hall73, the court stated that a limited warrant less detention of evidence, even by
himself to meet the terms of Section 80 which also says about the authorization of Central
Government.
Police officer acting in his official powers can act according to his good will, where there is a
reasonable doubt about any objectionable object. Police officer can act in accordance with the
Sections. In Shyamalal’s case74it is opined that to a Search by the police officer under Section
165, Art. 20(3) have no application. In Astt. Collector of Central Excise v. Wilfred
Sabastian75stated that the illegality of a search will not affect the validity of the articles or in
any way vitiate the recovery of the articles and the subsequent trial. In U.S. v. Simons76 the
Court discusses the reasonable cause for suspect a person. In some instances, the foreign-
intelligence exception to the warrant requirement has been extended to a search of computer
Where the inspirational material itself is pornographic in nature, then the outcome of such a
material will be unlawful, illegal and immoral in nature which is against public morality and
decency. Indian Culture has its high traditional approach to follow. Considering a
It includes the public place-mere access to the public case is enough for stating it
constitutional. Any person can access the offices of Pushkar Ventures. They are not
mentioning any criteria for public access. Mere access to the public is sufficient to consider it
as public place. Explanation to Section 80 defines public place, which includes any public
conveyance, any hotel, any shop pr any other place intended for use by, or accessible to the
public.
74
AIR 1965 SC 1251: (1965) 2 CrLJ 256
75
1983 CrLJ NOC 43(Ker)
76
206 F.3d 392 (4th Cir. 2000)
77
U.S. v. Bin Laden, 126 F. Supp. 2d 264 (S.D. N.Y. 2000).
Section 29 says that the police offices can access any computers and data where he has a
reasonable cause to suspect the parties. Police in this case is reacting towards the Central
Government order and they have reasonable reason to suspect the parties. The allegations
were come up against the parties from various strata of the society. Petitions were filed from
different states of the Union of India. Thus the police have the power to search in these
grounds. Right to privacy is not an absolute right it has its limitations. Police officer is doing
his duty and there is no violation of Fundamental Rights as well as other rights.
SEARCH OF PRIVATE MAILS AND DOCUMENTS NOT MEANT FOR PUBLIC CIRCULATION ?
In India a private action for damages for unlawful invasion of privacy is maintainable. The
printer and publisher of a magazine or journal would be liable if they publish any matter
related to his private life which includes his family, marriage, procreation, parenthood etc
without his consent. But the exceptions to this are firstly that the right of privacy does not
continue to exist when the publication is a matter of public record and secondly that when the
publication relates to the discharge of official duties of a public servant, an action cannot be
Also under Constitutional law, the right to privacy is implicit in the fundamental right to life
and liberty guaranteed under Article 21 of the Constitution. But the right to privacy flowing
from Article 21 must be balanced by the fundamental right of the media to publish any matter
of public interest.
In the case of Sharda v. Dharmpal78 it was held by the Supreme Court that the right to
privacy in terms of Article 21 of the Constitution is not an absolute right. If there were a
78
(2003) 4 SCC 493
conflict between fundamental rights of two parties, that right which advances public morality
would prevail
In District Registrar and Collector v. Canara Bank79, it was held, that “exclusion of
illegitimate intrusions into privacy depends on the nature of the right being asserted and the
way in which it is brought into play; it is at this point that the context becomes crucial, to
inform substantive judgment. If these factors are relevant for defining the right to privacy,
they are quite relevant whenever there is invasion of that right by way of searches and
There is no violation of Article 20(3) of the Constitution. It says that “No person accused of
any offence shall be compelled to be a witness against himself.” None of the petitioners are
acting as witness against themselves in this issue. Article 20(3) has no applicability in this
case.
It is on this principle that the Court held that the immunity is available to an accused person
when a compulsory process or notice is issued, directing him, under pain of penalty, to
produce a document, but not when a document is recovered from him by search and seizure
by a police officer without involving any volitional act on the part of the accused from whose
possession the document is recovered. Search and seizure are acts of another to which an
accused is obliged to submit and are not testimonial acts. The use of records against an
accused after their seizure for an offence under any enactment is not considered to be
79
(2005) 1 SCC 496: AIR 2005 SC 186
In Nandini Satpathy v. P.L.Dani80 , the three Judge Bench has however held that the
protection of Article 20(3) goes back to the stage of investigation and that, accordingly, he is
of the police officers harassing the people. In State of Bombay v. Kathi Kalu Oghad81 the
protection does not extend to any kind of evidence but only to self incriminating statements
made by the accused. Therefore the Article 20(3) does not protect the petitioner. Self
incrimination must mean conveying information based upon the personal knowledge of the
person giving the information and cannot include merely the mechanical process of
producing documents in Court which may throw a light on any of the points in the
controversy.
The protection under this Article extends to production of all private documents including
books of account.82 But there exists a distinction between an order of the court directing the
accused himself to produce a document and an order directing the police to search and seize
any document. It is the former and not the latter that that is protected.
The government of India has given up the power to block pornographic websites purely on
the ground of obscenity or sexually explicit Act considering the cultural heritage, dignity of
80
AIR 1978 SC 1025
81
AIR 1961 SC 1808
82
Ranchhod Das Khimji Ashre v Temton Jahangir, 1961(2) Cr.L.J 338: (1961) 2 Guj. L.R.415: (1961) 2 Guj.
H.C.R. 197: A.I.R. 1961 Guj. 137
women and also for the controlling of public order with due diligence. Central Government
has the authority to block public access to websites, without further clarifying the necessary
perquisite circumstances for any such action. A decision by the Bombay High Court recently
turning down a Public Interest Litigation (PIL) request for a complete ban on all websites
with sexual content could provide some indication at least as to how that court would
interpret government attempts to ban websites for being obscene. 83 Section 69Acontain the
provision that the section can be invoked for preventing incitement to the commission of any
cognizable offence. Sexually explicit content comes under the cognizable offences.
Contravention of ‘any law’ is violation of public order.84 Wide spread increase in porn
website85 will increase in crimes under Section 375 of the Indian Penal Code as mentioned by
an Australian Research Centre. In the case of Janhit Manch and Ors v. The Union of
India86petition is filed to the blanket ban on websites which according to petitioners are
Wherefore, in the light of the facts stated, points raised, arguments advanced and the
authorities cited, this Hon’ble Court may be pleased to
83
Mayura Janwalker, “Bombay high court says no to blanket ban on porn websites,” DNA, 10 March 2010,
Available at: http://www.dnaindia.com/mumbai/report_bombay-high-court-says-no-to-blanket-ban-on-
pornwebsites_1357395.
84
Times of India…. Is it set to mislead the Public on Savita Bhabhi Issue? , Available at:
http://www.naavi.org/cl_editorial_10/edit_feb_11_2010_savita.htm
85
Ani, Boys who watch porn indulge in casual sex, Available at:
http://timesofindia.indiatimes.com/life/relationships/parenting/Boys-who-watch-porn-indulge-in-casual-
sex/articleshow/5494354.cms
86
PIL No. 155 of 2009: In the High Court of Judicature at Mumbai Civil Appellate side
Declare that:
i. The petition is not maintable under article 32 of the constitution
ii. The petitioner does not have the locus standi
iii. Sections 67A, 69A and 69B of the Information Technology (Amendment)
(Prohibition) Act, 1986 and the Indian Penal Code, 1860 are constitutional
vii. Central Government can block the websites in cases of violation of public order
And pass any other order or grant any relief, which the court may deem fit in the ends of
equity, justice and good conscience.
APPENDIX
IMPORTANT ARTICLES OF CONSTITUTION OF INDIA AND
OTHER RELEVANT STATUTORY PROVISIONS
Constitution of India
Article 21. Protection of life and personal liberty. - No person shall be deprived of his
life or personal liberty except according to procedure established by law.
Article 32. Remedies for enforcement of rights conferred by this Part. -
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of
any of Fundamental Rights.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses
(1) and (2), Parliament may by law empower any other court to exercise within
the local limits of its jurisdiction all or any of the powers exercisable by the
Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.
Section 482. Saving of inherent power of High Court. -Nothing in this Code shall be
deemed to limit or affect the inherent powers of the High Court to make such orders as may
be necessary to give effect to any order this Code, or to prevent abuse of the process of any
court or otherwise to secure the ends of justice.
Section 3
31.