WRITTEN SUBMISSIONS FOR THE PETITIONER

PARTICIPANT CODE: 201

BEFORE THE HON’BLE HIGH COURT OF BAHISTHAN

IN THE MATTERS OF

MATHEW JAMIZ …PETITIONER

VERSUS

UNION OF INDIA ...RESPONDENT

MATHEW JAMIZ …PETITIONER

VERSUS

STATE OF BAHISTHAN …RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS

COUNSEL APPEARING ON BEHALF OF THE PETITIONERS

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS....................................................................................................4

INDEX OF AUTHORITIES…………………………………………………………………..5

STATEMENT OF JURISDICTION…………………………………………………………..7

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

STATEMENT OF ISSUES…………………………………………………………………..10

SUMMARY OF ARGUMENTS…………………………………………………………….11

ARGUMENTS ADVANCED………………………………………………………………..13

1. THAT THE PETITION FILED BY MATHEW JAMIZ IS MAINTAINABLE

BEFORE THE HON’BLE HIGH COURT OF BAHISTHAN:……………………. 13
1.0.The grounds on which the writ petition is maintainable..............................................13
1.1.The petitioners have the locus standi to file the petition.............................................13
1.1.1. The right to seek judicial redress…………………………………..................13
1.2.The fundamental Rights under are violated…………..……………………….……..13
1.3.There is no alternate remedy available…………………………………………….....14
2. THAT THE YOUNG PERSONS (HARMFUL PUBLICATIONS ) ACT,1956 IS
UNCONSTITUTIONAL: ..............................................................................................14
2.1.There is violation of Article 14 of the Indian Constitution…………………………..14
2.1.1. Arbitrariness of YPHP Act,1956…………………………………………….14
2.1.2. Unreasonable classification of YPHP Act, 1956…………………………….15
2.1.3. Violation of Right to equality………………………………………………...15
2.1.4. Violation of the Fundamental Rights…...……………………………………15
2.2. There is violation of Article 21 of the Indian Constitution…………………………..15
2.3. There is violation of Article 19 of the Indian Constitution…………………………..16
2.3.1. Necessity of freedom of right to expression………………………………….16
2.3.2. Video games are a form of art work………………………………………….16
2.3.3. UNESCO conference of right to speech and expression……………………..16
2.3.4. Rating of games in Canada…………………………………………………...16
2.3.5. Requirement for change in the laws………………………………………….17
3. THAT THE SECTION 67 AND 67A OF THE INFORMATION TECHNOLOGY
ACT IS UNCONSTITUTIONAL:……………………. ……………………………....18

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3.1. There is violation of Article 19 of the Indian Constitution…………………………18

3.1.1. Right to freedom of speech and expression……………………………..……18
3.1.2. Freedom of speech and expression as the foundation of democracy……...…18
3.1.3. Necessity of freedom of speech and expression…………………………..….19
3.1.4. Necessity for the free exchange of ideas and information…………………..19
3.1.5. Right to communicate ideas in a medium of one’s choice………………..…19
3.1.6. Unreasonable restriction on the rights of citizens……………………………19
3.1.7. Exercising the right to freedom of speech and expression……………...……20
3.1.8. Reason for the striking down of Section 66A of the IT Act…………………20
3.2. There is violation of Article 14 and 21 of the Indian Constitution…………………20
3.2.1. Unreasonable restriction on the right to equality…………………………….20
3.2.2. Arbitrariness of Section 67 and 67A of the IT Act………………………..…20
3.2.3. Violation of the golden Triangle of the Constitution…………………...……21
4. THAT THE PETITION FILED BY MATHEW TO QUASH THE FIR IS
MAINTAINABLE BEFORE THE HON’BLE HIGH COURT OF
BAHISTHAN:...................................................................................................................22
4.1. Power to quash the FIR……………………………………………………………..22
4.2. The right of the petitioner to establish the game……………………………………22
4.3. Case relating to the quashing of FIR……………………………………………….23
4.4. Case regarding various video games………………………………………………..23
4.5. Quashing of cases FIR relating to video games…………………………………….23
4.6. Obscenity in books………………………………………………………………….24
4.7. Paintings are not obscene………………………………………………...…………24
5. THAT THE DISMISSAL OF THE PRIVATE COMPLAINT IS UNREASONABLE
AND UNFAIR:…………………………..…………………………………..................25
5.1. Violation of Right to Privacy…………………………………………………….…25
5.2. Lawful creation of the game………………………………………………………..25
5.3. Right of majors to view adult certified films……………………………………….25
5.4. The game does not affect the public order…………………………………………26
5.5. US supreme court decision regarding a video game……………………………….26
5.6. Unreasonable deleting of the game………………………………………………...26

PRAYER…………………………………………………………………………………….28

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LIST OF ABBREVIATIONS

 AIR ALL INDIA REPORTER

 Art. Article
 Bom Bombay
 CIDSA Canadian Interactive Digital Software Association
 Crl Criminal
 CrPC Criminal Procedure Code
 DVD Digital Versatile Disc
 Ed Education
 FIR FIRST INFORMATION REPORT
 Hon’ble Honourable
 IDSA Interactive Digital Software Association
 ILR Indian Law Reporter
 IPC Indian Penal Code
 IT INFORMATION TECHNOLOGY
 Ltd Limited
 NCT National Capital Territory
 No Number
 Ors Others
 POCSO Protection of Children from Sexual Offences
 SC Supreme Court
 SCC Supreme Court Cases
 SCR Supreme Court Reporter
 UNESCO United Nations Economic Social and Cultural
Organisation
 UOI Union of India
 US United States
 V. Versus
 VCD Video Compact Disc
 Vol Volume

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INDEX OF AUTHORITIES

STATUTES

BOOKS, COMMENTARIES AND TREATISES

 Basu, D., Lakshmanan, A., Manohar, V., Banerjee, B. and Khan, S. (2009). Shorter
constitution of India
 Govind Mishra, “Privacy: A Fundamental Right Under the Indian Constitution,”
 H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 4th ed., vol. 2, 2007 at p.
1586.
 Penal law of India, Dr Sir Hari Singh Gour, 11TH Edition.
 Princep’s Commentary on the code of criminal proceedings 19TH Edition.
 Salmond on Jurisprudence, 11th Edition, at pages 354 and 355
 V.V. Shukla’s Constitution of India, Mahendra Pal Singh, 12 Edn. p.215

ACTS, RULES AND STATUTES

 The Criminal Procedure Code

 The Indian Penal Code,1860
 The Information Technology Act
 The Young Persons (Harmful Publications) Act, 1956

CONFERENCES AND SUMMITS

 United Nations Educational, Scientific and Cultural Organization (UNESCO)

conference on ‘Freedom of Expression on the Internet’ in Marrakech....……………16

FOREIGN CASES

 F.A. Picture International v Central Board of Film Certification………………..…..19

 Palko v Connecticut, 302 US 319 (1937)…………………………………………….18
 United States v. Stevens…………………………………………………….………..26

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INDIAN CASES

 Bobby Art International v Om Pal Singh Hoon, AIR 1996 SC 1846……………..…20

 Charan Lal Sahu vs. Union of India, 1990 AIR 1480.……………………………….13
 CIT v. Podar cement, 1997 5 SCC 482………………………………………………17
 Director General, Directorate General of Doordarshan & Others v Anand Patwardhan
and Another, 1996(8)SCC433……………………………………………..…………26
 Electronic Arts Games (India) Private Ltd v. Sunil Sharma……………..…………..24
 F A Picture International v Central Board of Film Certification, AIR 2005 Bom
145……………………………………………………………………………………19
 In State of Karnataka and Ors. Vs. Associated Management of (Government
Recognised-Unaided-English Medium) Primary and Secondary Schools and Ors,
2014 9 SCC 485…………………………………………………………………..….16
 Justice K.S.Puttuswamy vs Union of India and ors,…………………………...…….25
 Maneka Gandhi v. Union of India, AIR 1978 SC 597……………………………………13
 Maqbool Fida Husain v Raj Kumar Pandey, Crl. Revision Petition No. 114/2007….24
 Messrs Sony India Pvt Ltd vs Sunil Sharma……………………………...………….23
 Nachhattar Singh and another vs . State of Punjab and others, 1976 SC 951 ……….13
 Narinder Singh v. State of Punjab (2014) 6 SCC 466………………………………..22
 Parbatbhai Ahir v. State of Gujarat , (2017) 9 SCC 641……………………………..22
 Prashant Bharti v. State of NCT of Delhi, (2013) 9 SCC 293………….……………23
 Pratibha Naitthani v Union of India, AIR 2006 (Bom) 259………………………………25
 Ramlila Maidan Incident v. Home Secretary, Union of India & Ors, (2012) 5
SCC1…………………………………………………………………………………18
 Rashid Ahmed v.Municipal Board,Kairana, AIR 1950 SC 163………………….….13
 Romesh Thapar v State of Madras) AIR 1950 SC 124…………………………...….18
 Samaresh Bose and Another v Amal Mitra and Another, AIR 1986 SC 967…..……24
 Shreya Singhal v. Union of India, 2013 12 SCC 73……………………………..…..20
 State of Haryana v. Bhajan Lal, 1992 AIR 604…………………………………….22
 State of Maharashtra v. Arun Gulab Gawali, AIR 2010 SC 3762………………...…25
 state of Punjab v. Amristsar Beverages Ltd, AIR 2006 SC 2820…………………....17
 State v. S.J.Choudhary, AIR 1996 SC 1491………………………………….………17
 Ubisoft Entertainment India Private Ltd v. Sunil Sharma……………………………24
 Union of India v Motion Picture Association, AIR 1999 SC 2334………….………19

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STATEMENT OF JURISDICTION

The Petitioner humbly submits this memorandum for the petition filed before this Honourable
Court. The petition invokes its writ jurisdiction under Article 226 of the Constitution of India.
It sets forth the facts and the laws on which the claims are based.

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STATEMENT OF FACTS

1. BACKGROND :
Mathew Jamiz is 24 years old. He completed his post graduate studies in Computer
Engineering. Since his childhood, he has been very fond of computers and computer
software. He started programming at the age of 16 and developed numerous kinds of
gaming software. His parents were software professionals and were enthusiastic in
encouraging his skills.
2. DEVELOPMENT OF THE GAME:
Two years back, he developed a gaming software called “Role Haluzinizer” which
was exclusively made for youngsters between the ages of 19 to 24. The game
contained offensive and obscene contents. It was a kind of a role play game where the
players could choose their own interested roles. The game would take the players to a
virtual world where one could enjoy all kinds of noble, heroic, offensive and obscene
acts as in real life. The game was launched by Mathew in the open source and he
developed a huge number of followers. Any person between the age of 19 and 24
could enroll in the game using a valid identity proof to assure the age. The game was
designed with the facility to hide all the identity of the user once enrolled in the game.
3. COMPLICATIONS REGARDING THE GAME:
The game was vastly used by many youngsters. Initially, the players used the game
for noble and heroic role plays, but in due course they started to use it mostly for
playing offensive and obscene role plays. The game was slowly becoming an
obsession for the youth. There was around 88% enrollment in State of Bahisthan, a
state with in the territory of Indian Union. Gradually the data of the enrolled players
within the State of Bahisthan was collected by several groups of illegal businessmen.
Their aim was to identify a potential market for narcotic drug trade as well other
illegal activities. The impact caused by this game was revealed by a Research
Association for Youth Empowerment (RAYE), an NGO based in State of Bahisthan.
This report was published by RAYE in a regional magazine which caused huge hue
and cry against Mathew, his family and over the inaction of police authorities.
4. THE STATE ACTION AGAINST THE GAME AND MATHEW:
Following the protest, the authorities banned the game and released an order declaring
the act of playing Role Haluzinizer as an offence. The proceeding by the State of
Bahisthan against Mathew was under The Young Persons (Harmful Publications) Act,

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1956 and the Sections 67 & 67 A of the Information Technology Act, 2000. By this
time, Mathew along with his parents, fled from the State of Bahisthan. The source of
software from Mathew’s personal computer was completely destroyed by the State
authorities.

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STATEMENT OF ISSUES

1. Whether the petition filed by Mathew Jamiz is maintainable before the Hon’ble High
Court of Bahisthan?
2. Whether the Young Persons (Harmful Publications) Act, 1956 is constitutionally
valid?
3. Whether the Section 67 and 67A of the Information Technology Act, is
constitutionally valid?
4. Whether the petition filed by Mathew to quash the FIR is maintainable before the
Hon’ble High Court of Bahisthan?
5. Whether the petition filed by Mathew against the dismissal of his private complaint
before the magistrate is maintainable before the Hon’ble high Court of Bahisthan?

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SUMMARY OF ARGUMENTS

1. THAT THE PETITION FILED BY MATHEW JAMIZ IS MAINTAINABLE

BEFORE THE HON’BLE HIGH COURT OF BAHISTHAN:
The exercise of the writ jurisdiction of the High Courts under Article 226 is largely
discretionary in nature, it is argued that the present petition is maintainable primarily
on three grounds: 1. Mathew Jamiz has the locus standi to file the petition since he is
the aggrieved party. 2. Section 67 and 67A of the IT Act and the Young Persons
(Harmful Publications) violate the Fundamental Rights guaranteed by the Indian
Constitution. 3. There is no alternate remedy available to the petitioner.
2. THAT THE YOUNG PERSONS(HARMFUL PUBLICATIONS ) ACT,1956 IS
UNCONSTITUTIONAL:
The Young Persons (Harmful Publications) Act, 1956 violates article 14, 19 and 21 of
the Indian Constitution. It lays an unreasonable restriction on the freedom of speech
and expression. This Act is arbitrary in nature since the age of young person
according to this Act is inconsonant with several other legislations defining the age of
majority.
3. THAT THE SECTION 67 AND 67A OF THE INFORMATION
TECHNOLOGY ACT IS UNCONSTITUTIONAL:
Section 67 and 67A of the Information Technology Act lays an unreasonable
restriction on the Fundamental Rights laid down by the Constitution. There is an
unreasonable restriction on the freedom of speech and expression laid down by the
Indian Constitution.
4. THAT THE PETITION FILED BY MATHEW TO QUASH THE FIR IS
MAINTAINABLE BEFORE THE HON’BLE HIGH COURT OF
BAHISTHAN:
Section 482 of the Code of Criminal Procedure lays down the provisions for the
quashing of FIR by the Hon’ble Court to prevent abuse of the process of any court or
otherwise to secure the ends of justice. In the present case, the game was lawfully
created by the petitioner and he was only exercising his right of freedom of speech
and expression. The filing of the FIR also violates his Fundamental Rights and these
shows the clear grounds for quashing the FIR.

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5. THAT THE PETITION FILED BY MATHEW AGAINST THE DISMISSAL

OF HIS PRIVATE COMPLAINT BEFORE THE MAGISTRATE IS
MAINTAINABLE BEFORE THE HON’BLE HIGH COURT OF
BAHISTHAN:

The dismissal, of the private complaint of Mathew against the state action of
destroying computer data, by the magistrate is baseless and without any reasonable
means. The petitioner, Mathew has created the video lawfully and the actions of the
state in deleting the source of the software from his personal computer without his
permission is not justified and is also violating his right to privacy.

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ARGUMENTS ADVANCED

1. THAT THE PETITION FILED BY MATHEW JAMIZ IS MAINTAINABLE

BEFORE THE HON’BLE HIGH COURT OF BAHISTHAN:

Article 226 of the Indian Constitution empowers the High Courts to issue writs for the
enforcement of Rights conferred by Part 3 and “for any other purposes”, i.e. for the
enforcement of any other legal right1. It is submitted that the writ petition is maintainable on
three grounds: 1.1. The petitioner has the locus standi to file the writ petition; 1.2. There is a
violation of Fundamental Rights2; 1.3. There is no alternate remedy available3.

1.1. THE PETITIONER HAS THE LOCUS STANDI TO FILE THE WRIT
PETITION:
1.1.1. In the present case, Mathew Jamiz is the aggrieved party and he has filed the
petition against the constitutionality of Young Persons (Harmful Publications)
Act, 1956 and Section 67 and 67A of the Information Technology Act. The above
mentioned statutes violate his Fundamental Rights and therefore he has the Locus
Standi to file the writ petition under article 226 of the Indian Constitution.4

1.2.THE FUNDAMENTAL RIGHTS ARE VIOLATED:

1.2.1. The Young Persons (Harmful Publications) Act, 1956 and section 67 and 67A of
the Information Technology Act violates Article 14, 19 and 21 of the Indian
Constitution. The above mentioned statutes are arbitrary in nature and place a
restraint on the freedom of speech and expression. In Maneka Gandhi v. Union of
India5, the Supreme Court has held that a law depriving a person ‘personal
liberty’ has not only to stand the test of Article 21 but also Article 14 and Article
19. In the present case, the freedom of expression of the petitioner has been
restrained. Having restrained the freedom of expression of the petitioner, it is
further evident that it has also curbed the right to liberty of the petitioner. Hence it
is against the right to equality provided by article 14 of the Indian constitution.

1
H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 4th ed., vol. 2, 2007 at p. 1586
2
Rashid Ahmed v.Municipal Board,Kairana, AIR 1950 SC 163
3
Nachhattar Singh and another vs . State of Punjab and others, 1976 SC 951
4
Charan Lal Sahu vs. Union of India, 1990 AIR 1480
5
AIR 1978 SC 597

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1.2.2. The state can place limitations on the fundamental rights, but these limitations
must pass tests outlined in the constitutional jurisprudence. Right to life and
personal liberty offered under Article 21 has a very wide scope of interpretation6.
This article in itself has become an inexhaustible source of many rights7.
Therefore, The Young Persons (Harmful Publications) Act, 1956 and section 67
and 67A of the Information Technology Act violates the Fundamental Rights
guaranteed by the Indian Constitution.

1.3. THERE IS NO ALTERNATE REMEDY AVAILABLE:

1.3.1. Since the Young Persons (Harmful Publications) Act, 1956 and Section 67 and
67A of the IT Act are the statutes established by the Legislator, the petitioner has
no alternate remedy available.

And for these reasons, the petitioner humbly requests the Hon’ble Court to consider the
writ petition.

2. THAT THE YOUNG PERSONS(HARMFUL PUBLICATIONS ) ACT,1956 IS

UNCONSTITUTIONAL:

2.1.THERE IS VIOLATION OF ARTICLE 14 OF THE INDIAN

CONSTITUTION:
2.1.1. Article 14 prohibits classification that are “arbitrary, artificial or evasive”.
Arbitrariness was defined by the Supreme Court in M/S Sharma Transport
Rep.by Shri D.P. Sharma Vs. Government OF A.P. & Ors8 as: “in an
unreasonable manner, as fixed or done capriciously or at pleasure, without
adequate determining principle, not founded in the nature of things, non-rational,
not done or acting according to reason or judgment, depending on the will alone.”
This Act was enacted to prevent the dissemination of certain publications
considered harmful to young persons. ‘Young person’ has been defined under the
Act as a person under the age of 20 years which is inconsonant with several other
legislations defining the age of majority. Moreover, multiple laws govern this
area—The IPC penalises speech and publications in various forms.

6
Mahendra Pal Singh, V.N. Shukla Constitution of India, Twelfth Edition, Eastern Book Company
7
Menka Gandhi v. Union of India, (1978) 1 SCC 248: AIR 1978 SC 597,620
8
AIR 2002 SC 322

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2.1.2. It must always rest upon some real and substantial distinction bearing a just and
reasonable relation to the object sought to be achieved by the legislation. It is well
settled that in order to meet the test of Article 14: (i) classification must be based
on intelligible differentia which distinguishes persons or things that are grouped
together from those that are left out of group and (ii) the differentia must have a
rational nexus to the objects sought to be achieved by the executive or legislative
action under challenge. `Moreover, in the said Act, words such as repulsive and
horrible contained in the definition of harmful publication are vague and subject to
arbitrary interpretation, and consequently lead to widespread discretion and serve
as an excuse for harassment.
2.1.3. There is a violation of Right to Equality of the game developers. The Game
developers who establish violent, cruel or obscene contents as a part of the game
are discriminated from the other developers. They do not have equal rights that of
the others. The game created by a person is an art and it deals with the developer’s
thinking and innovative ideas. Even if the game contains such obscene or violent
acts, it is a part of the game and is not meant to arouse any sexual feelings among
the players.
2.1.4. The Young Persons (Harmful Publications) Act, 1956 violates the Fundamental
Right guaranteed by the constitution of India. In the present case, the petitioner
Mathew has published a game which provides the age restriction of 19-24 years of
age and a person has to provide a valid identity card to access the game. The game
could be played only by a person who has attained majority and could be called an
adult. The age restriction provided in The Young Persons (Harmful Publications)
Act, 1956 violates the right to equality provided in Article 14 of the Indian
Constitution and is therefore arbitrary.
2.2. THERE IS VIOLATION OF ARTICLE 21 OF THE INDIAN
CONSTITUTION:
2.2.1. The Supreme Court in Minerva Mills v. Union of India , observed that when the
constitutionality of a statute is challenged as the unreasonable and arbitrary, the
court has to test its anvil on Art. 14, 19, and 21. The Supreme Court in
Unnikrishnan J P v. state of Andhra Pradesh recognized the right to privacy as
part of personal liberty under Art. 21. In the present case, the State Authorities
intruded into the privacy of players as well as the programmer.

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2.3. THERE IS VIOLATION OF ARTICLE 19 OF THE INDIAN

CONSTITUTION:
2.3.1. In State of Karnataka and Ors. Vs. Associated Management of (Government
Recognised-Unaided-English Medium) Primary and Secondary Schools and
Ors9, the Hon’ble Supreme Court has held that Freedom or choice in the matter of
speech and expression is absolutely necessary for an individual to develop his
personality in his own way and this is one reason, if not the only reason, why
under Article 19(1)(a) of the Constitution every citizen has been guaranteed the
right to freedom of speech and expression.
2.3.2. The Constitution of India guarantees everyone the right to freedom of expression.
India is also a party to the International Covenant on Civil and Political Rights and
therefore bound to respect the right to freedom of expression guaranteed by
Article 19 thereof
2.3.3. In June 2003, the Interactive Digital Software Association (IDSA) hailed a
unanimous decision by the U.S. Court of Appeals for the 8th Circuit Court finding
that video games are a constitutionally protected form of expression and that
government cannot enact laws regulating sale of violent video games to minors.
This decision is a total and unambiguous assertion of the fact that video games
have the same constitutional status as a painting, film, and book. This decision
sends a powerful signal to government at all levels to regulate consumer's access
to the creative and expressive content in video games will not be tolerated. This
clearly tells us about the status of a video game which is the heart and soul of the
creator and no reasonable man would consider it to be lascivious.
2.3.4. United Nations Educational, Scientific and Cultural Organization (UNESCO)
conference on ‘Freedom of Expression on the Internet’ in Marrakech has held that
"Everyone has the right to freedom of opinion and expression; This right includes
not to be disturbed by their opinions, to investigate and receive information and
opinions, and to disseminate them, without limitation of frontiers, by any means
of expression."
2.3.5. In Canada, video games enjoy complete freedom from government regulation.
The Canadian Interactive Digital Software Association (CIDSA), comprising
major Canadian video game manufacturers, has adopted the U.S industry's

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voluntary classification system. Association member companies are encouraged,

but not mandated, to submit their wares to the U.S board for rating before sending
them to Canadian stores. Harvey Nightingale, CIDSA Executive Director, says the
purpose of the board is "not to censor, but to provide consumer information."
while the industry maintains that the classification system is intended to keep
adult-rated games out of the hands of children and youth, they vigorously oppose
any attempt to legislate the system by mounting legal challenges and lobbying
politicians. In the present case, the petitioner with the same intent made the game
accessible only to the age group between 19 -24. This ensured the right to
expression of the creators and also thereby provides them the right to equality
when compared to the others on similar slab and thus ensures that their liberty is
not infringed.
2.3.6. In state of Punjab v. Amristsar Beverages Ltd10, creative interpretation had been
restored to by the Hon’ble court so as to achieve a balance between the age old
and rigid laws on the one hand and the rigid laws on the other. The Judiciary
always responds to the need of the changing scenario in regard to development of
technologies. It uses its own interpretative principles to achieve a balance when
Parliament has not responded to the need to amend the statute having regard to the
developments in the field of science. This court has approved the principle of
updating construction, as enunciated by Francis Bennion, in a number of
decisions. These principles were quoted with approval in the case of CIT v. Podar
cement11. They were also cited with approval in the case of State v.
S.J.Choudhary12. It is same with The Young Persons (Harmful Publications) Act,
1956 which requires to be repealed since it is outdated and in violation with
Article 14, 19 and 21 of the Indian Contitution.

Therefore it is humbly submitted before this Hon’ble court that the Young Persons
(Harmful Publications) Act is unconstitutional.

10
AIR 2006 SC 2820
11
1997 5 SCC 482
12
AIR 1996 SC 1491

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3. THAT THE SECTION 67 AND 67A OF THE INFORMATION

TECHNOLOGY ACT IS UNCONSTITUTIONAL:
3.1. THERE IS VIOLATION OF ARTICLE 19 OF THE INDIAN
CONSTITUTION:
3.1.1. Article 19(1)(a) of the Constitution of India states that all the citizens shall have
the right to freedom of speech and expression. The right to freedom of speech and
expression has been described as the touchstone of individual liberty, the matrix,
the indispensable condition of nearly every form of freedom13. Freedom of
expression means the right to express one’s convictions and opinions freely, by
word of mouth, writing, printing, picture or in any other manner. It would also
include the expression of one’s ideas by any visible representation, such as the
press, but the expression of one’s ideas by any visible representation such as
cinema, television and the like (which includes video games).14
3.1.2. The Supreme Court further observed in Romesh Thapar v State of Madras15 that
the freedom of speech and of the press lay at the foundation of all democratic
organizations, for, without free political discussion no public education so
essential for the proper functioning of the processes of popular government, is
possible. A freedom of such amplitude might involve risks of abuse. But the
framers of the Constitution may well have reflected, that it is better to leave a few
of its noxious branches to their luxuriant growth than, by pruning them away, to
injure the vigor of those yielding the proper fruits.
3.1.3. The Supreme Court in Ramlila Maidan Incident v. Home Secretary, Union of
India & Ors.16 said, “The freedom of speech is the bulwark of democratic
government. This freedom is essential for proper functioning of democratic
process. Freedom of speech and expression is regarded as the first condition of
liberty. It occupies a preferred position in the hierarchy of liberties, giving succor
and protection to all other liberties. Freedom of speech and expression play a
crucial role in the formation of public opinion on social, political and economic
matters. With the development of law in India, the right to freedom of speech and
expression has taken within its ambit the right to receive information as well as

13
Palko v Connecticut, 302 US 319 (1937).
14
Romesh Thapar v State of Madras, (1950) SCR 594 (602): AIR 1950 SC 124.
15
AIR 1950 SC 124
16
(2012) 5 SCC 1.

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the right of Press. Attainment of the Preambular liberties is eternally connected to

the liberty of expression.
3.1.4. It was further reiterated in Union of India v Motion Picture Association17 that
free speech is the foundation of a democratic society. A free exchange of ideas,
dissemination of information without restraints, dissemination of knowledge,
airing of different viewpoints, debating and forming one’s own views and
expressing them, are the basic ideas of a free society. This freedom alone makes it
possible for people to formulate their own views and opinions on a proper basis
and to exercise their social, economic and political rights in a free society in an
informed manner.
3.1.5. In F.A. Picture International v Central Board of Film Certification18, it was held
that artists, writers, playwrights and film makers are the eyes and the ears of a free
society. They are the veritable lungs of a free society because the power of their
medium imparts a breath of fresh air into the drudgery of daily existence. Their
right to communicate ideas in a medium of their choosing is as fundamental as the
right of any other citizen to speak. Our constitutional democracy guarantees the
right of free speech and that right is not conditional upon the expression of views
which may be palatable to mainstream thought. Dissent is the quintessence of
democracy. Hence, those who express views which are critical of prevailing social
reality have a valued position in the constitutional order. History tells us that
dissent in all walks of life contributes to the evolution of society. Those who
question unquestioned assumptions contribute to the alteration of social norms.
Democracy is founded upon respect for their courage. Any attempt by the State to
clamp down on the free expression of opinion must hence be frowned upon.
3.1.6. However, sections 67 and 67A of the Information Technology Act, 2000 which
talk about obscenity tries to put unreasonable restrictions on the citizens and
refrain them from expressing themselves freely. The counsel contends that on the
subject of obscenity, a work of art is not necessarily obscene if it treats with sex
even with nudity and submits that a work of art or a book of literary merit should
not be destroyed if the interest of society requires that it be preserved. In the
present case, the petitioner has developed a game called “Role Halusinizer” which
is made for the age group between 19- 24 who are majors. The offensive and the

17
Union of India v Motion Picture Association, AIR 1999 SC 2334
18
F A Picture International v Central Board of Film Certification, AIR 2005 Bom 145

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obscene contents of the game are a part of the game and is not meant to induce
any prurient interest or lascivious effect on the players.
3.1.7. The Supreme Court in Bobby Art International v Om Pal Singh Hoon19, the SC
said that everyone has a fundamental right to form his own opinion on any issue
of general concerns. He can form an opinion and inform it by any legitimate
means. If a film is objectionable for public exhibition and cannot be
constitutionally restricted under Article 19(2), freedom of expression cannot be
suppressed on account of threats that would endanger the right to freedom of
speech and expression.
3.1.8. Furthermore, the creator of the game, Mathew was only exercising his right to
speech and expression while he was making his video game. Judging a game by a
particular scene and calling it obscenity is not how a prudent man thinks. He was
not doing something that could be enumerated as an offence under Section 67 and
67A of the Information Technology Act, 2000.
3.1.9. In Shreya Singhal v. Union of India20, section 66A of the IT Act was struck
down by the Supreme Court since it fell foul of article 14, 19 and 21 of the Indian
Constitution. The Court held that Section 66-A was ambiguous and over-
expansive, and in this way fell foul of Article 19(1)(a), since the statute was not
barely customized to particular occasions of discourse which it tried to check. We
could relate this on similar grounds with section 67 and 67A of the IT Act.

3.2. THERE IS VIOLATION OF ARTICLE 14 AND 21 OF THE INDIAN

CONSTITUTION:
3.2.1. The above-mentioned section is unreasonably equating unequals as equals. This
definition considers both serious works of art and obscene publications in the
same class. In the case of R.S. Makashi & Ors v. I.M. Menon & Ors & Joginder
Nath And Ors v. Union Of India And Or s, the Supreme Court laid down that
treatment of unequals as equals is violative of the right to equality guaranteed
under Article 14 of the Indian Constitution.
3.2.2. Another point of importance is the arbitrary use of Section 67 by the authorities.
Often crimes of consent are routinely booked as obscenity offences under the said
Section. Most of these images fall into one of three categories: Filmed with

19
AIR 1996 SC 1846
20
2013 12 SCC 73

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consent, distributed without consent; Filmed and distributed without consent;

Rape videos. Instead of referring to them as private images, they are usually
described as 'obscene' or 'indecent' images, which only strengthens a morality-
laden legal discourse. Some consent violations that have not been legally
recognized are also often treated as obscenity offences. Two kinds of images that
represent legally 'invisible' violations of consent are: Images morphed without
consent & Sexual images received without consent. While these images may have
been in poor taste, they are not necessarily obscene. The main crime here is the
non-consensual usage of their images. But in most such cases, Section 67 is used
arbitrarily by the authorities.
3.2.3. Section 67 and 67A are violating the Golden Triangle of the Indian Constitution.
Article 14, 19 and 21 are considered to be the golden triangle of the Indian
Constitution since they are interrelated and violation of one of them could lead to
the violation of the others. The golden triangle provides full protection to
individuals from any encroachment upon their rights. Various courts in our
country have interpreted the constitutional validity of Article 21 in a common
man’s life. Important among them is the case of Maneka Gandhi v. The Union of
India wherein the court looked into matters not only affecting Article 21 but also
Articles 14 and 19 as well. The court stated that the act on the part of the
respondents was violating Article 14 in the sense that the act leads to arbitrariness
on the part of the respondent which violated the right to equality of the petitioner.
Article 21 was being violated in the sense that petitioner was restrained from
going abroad. The judgment was one of the landmarks among the cases relating to
the violation of certain fundamental rights mainly, Articles 14, 19 and 21. In the
present scenario, section 67 and 67A of IT Act violates the right to expression
which indeed violates the right to equality and thereby the right to liberty is
violated. Therefore Section 67 and 67A are violative of the Fundamental Rights
and are vague and arbitrary and ultra vires the Constitution.

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4. THAT THE PETITION FILED BY MATHEW TO QUASH THE FIR IS

MAINTAINABLE BEFORE THE HON’BLE HIGH COURT OF
BAHISTHAN:

4.1.Code of criminal procedure, 1973 has laid out the provisions for quashing of criminal
proceedings. Section 482 of CrPc says, “Saving of inherent powers of the 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 under this
code or to prevent abuse of the process of any court or otherwise to secure the ends of
justice.” The section 48221 empowers the court to quash an FIR filed against any
person: a) To secure the ends of justice22, b) To prevent the abuse of process of any
court23.
4.2.In State of Haryana v. Bhajan Lal24 , the Supreme Court had laid down following
seven categories of cases in which the court can quash criminal proceedings:
i. Where the allegations made in the FIR, even if taken at face value and accepted in
their entirety, do not prima facie constitute any offence or make out a case against the
accused.
ii. Where the allegations in the FIR and other materials, if any, accompanying the FIR
do not disclose a cognizable offence, justifying an investigation by police officers
under Section 156(1)of the Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
iii. Where the allegations made in the FIR and the evidence collected in support of the
same do not disclose the commission of any offence and make out a case against the
accused.
iv. Where the allegations in the FIR do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a police
officer, unless a Magistrate has issued an order for the same, as contemplated under
Section 155(2) of the Code.
v. Where the allegations made in the FIR are absurd to the extent that no prudent man
can ever reach a just conclusion that there is sufficient ground for proceeding against
the accused.

21
Section 482 of indian penal Code
22
Narinder Singh v. State of Punjab (2014) 6 SCC 466:
23
Parbatbhai Ahir v. State of Gujarat , (2017) 9 SCC 641
24
State of Haryana v. Bhajan Lal 24 1992 AIR 604

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vi. Where there is an express legal bar engrafted in any of the provisions f the Code or
the concerned Act, under which a criminal proceeding is instituted, with regard to the
institution and continuance of the proceedings and / or where there is a specific
provision in the Code or the concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
vii. Where a criminal proceeding is manifestly attended with mala fide intention
and/or where the proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due to private and /
or personal grudge.

4.3. In the present case, the petitioner has lawfully created the gaming software and the
game is for the players between the age group of 19-24 and the offensive and the
obscene contents of the game are only a part of the game and is no way meant to
arouse any sexual inclination among the players. The establishment of the game is the
right to speech and expression of the creator and it contains his liberty to do the same.
The creator also ensured that the players have to produce a valid identity proof
thereby ensuring that the game could be accessed only by majors (players above the
age of 18 years). All the games has to certify the content rating before being
introduced into a public accessible platform and the introduction of ‘Role Halusinizer’
has further shown that the game was rated and therefore in no ways violate the laws.
4.4.In Prashant Bharti v. State of NCT of Delhi , the court quashed the FIR stating that
the material relied upon by the accused is sound, reasonable, inductible and is
sufficient to reject and overrule the factual assertions contained in the complaint. The
court also stated that by proceeding with the trial would result in an abuse of process
of the court and hence will not serve the ends of justice.25
4.5. In Messrs Sony India Pvt Ltd vs Sunil Sharma26, the issue was raised that the games
like ‘God of War’ (all series), ‘Heavy Rain’, ‘Dante's Inferno’, ‘Beowulf’, contain
scenes/contents of excessive nudity, sexual themes and representing women in
indecent manner before the people in India at large, which mostly includes persons of
teen age, as gaming is the hobby of teenagers mostly. These games are mostly played
by the teens and the games contains scenes/contents of excessive nudity, sexual

25
Prashant Bharti v. State of NCT of Delhi (2013) 9 SCC 293:
26
CRM-M No.1490 of 2013

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themes and indecent representation of women, are being sold to india, without prior
certification or authority from the Government of India.
4.6.In the above cases, the court has defined the word obscene. Is stated that, this point
and being satisfied with the materials on record, pernicious effect of picture in
depraving and debauching the mind of the persons into whose hands it may come and
also for other sufficient reasons to proceed further this Court was pleased to issue
process Further, it was also pointed out that the offending picture could not be termed
as obscene in as much as nudity per se was not obscene and the picture was neither
suggestive nor provocative in any manner and would have no affect on the minds of
the youth or the public in general. Further, it was also pointed out that the learned
Magistrate should not have issued summons without application of mind. The High
Court, however, did not appreciate all those contentions and declined to quash the
proceedings under Section 483 Cr.P.C against which this appeal has been preferred.
The court followed the same decisions for quashing other cases like Ubisoft
Entertainment India Private Ltd v. Sunil Sharma27and Electronic Arts Games
(India) Private Ltd v. Sunil Sharma28.
4.7.In Samaresh Bose and Another v Amal Mitra and Another29, the case was regarding
the obscenity shown in a book and the court held that in some places in the book there
may have been an exhibition of bad taste, it was up to readers of experience and
maturity to draw the necessary inference. The court said that it was not sufficient to
bring home to adolescents any suggestion that was depraving or lascivious. “We have
to bear in mind that the author has written this novel which came to be published in
the Sarodiya Desh for all classes of readers and it cannot be right to insist that the
standard should always be for the writer to see that the adolescent may not be brought
into contact with sex. If a reference to sex by itself in any novel is considered to be
obscene and not fit to be read by adolescents, adolescents will not be in a position to
read any novel and have to read books which are purely religious".
4.8. In Maqbool Fida Husain v Raj Kumar Pandey30, the case was regarding the nudity
in a painting and was challenged to be obscene. The Court held that, on the face of it,
the painting was neither lascivious nor likely to appeal to the prurient interest – i.e.
the painting would not arouse sexual interest in a perverted person and would not

27
CRM-M No.22387 of 2013
28
CRM-M No.23956 of 2014
29
AIR 1986 SC 967
30
Crl. Revision Petition No. 114/2007

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morally corrupt or debase a person viewing it. In our present case also, the game is
just meant for the purpose of entertainment and is not meant to arise any lascivious
effect on the players. Since the game is made of graphics and animations, it cannot be
considered to be obscene and it cannot debase the morality of the society and cannot
corrupt the players playing the game. Therefore the game created by the petitioner is
in no way a threat to the society and it is submitted before the Hon’ble High Court of
Kerala that there is sufficient ground for quashing the FIR. The power under the
section 482 of Cr.P.C should be exercised ex debito justitiae to prevent the abuse of
process of the Court as it is meant to advance justice31.

5. THAT THE DISMISSAL OF THE PRIVATE COMPLAINT IS

UNREASONABLE AND UNFAIR:

5.1. The dismissal, of the private complaint of Mathew against the state action of destroying
computer data, by the magistrate is baseless and without any reasonable means. The
petitioner, Mathew has created the video lawfully and the actions of the state in deleting the
source of the software from his personal computer without his permission is not justified and
is also violating his right to privacy.32 In Justice K.S.Puttuswamy vs Union of India and ors,
the Supreme Court has stated that the right to privacy is a Fundamental Right under Article
19(2). Here the acts of the state is a clear violation of his fundamental Right to privacy.
5.2. The game created by the petitioner is meant only for the majors who are above the
age of 18 and the addiction of the players to the violent and obscene roles in the game
is not the concern of the creator since the creator did not intent to create the game for
the purpose of violence and obscenity. The aim of the creator was to create a game
which enabled the players to enter a virtual world where they could do all the real life
activities and choose noble, heroic, obscene or violent roles.
5.3.In Pratibha Naitthani v Union of India33, the hon’ble supreme court held that the
adult viewer's right to view films with adult content cannot be taken away and such a
viewer can always view Adult certified films in cinema halls and can also view such
films on his private TV set by means of DVD, VCD or such other mode for which no
restriction exists in law. This clearly states that for a film with obscene and vulgar

31
State of Maharashtra v. Arun Gulab Gawali, AIR 2010 SC 3762
32
Justice K.S.Puttuswamy vs Union of India and ors
33
AIR 2006 (Bom) 259

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contents, the adults are allowed to watch it without any restriction. In the present case,
the game is adult rated and it could only be played by people above the age of 18
years and therefore the state has no right to delete the source of the game from the
personal computer of the petitioner. The petitioner had also ensured that the players
who wanted to play the game had to submit their id card and verify their age.
5.4. In Director General, Directorate General of Doordarshan & Others v Anand
Patwardhan and Another34, the court said that there are scenes of violence and social
injustices but the film, by no stretch of the imagination, can be said to subscribe to
any of that. The depiction is meant to convey that such social evils are evil. There
cannot be any apprehension that it is likely to affect public order or incite commission
of an offence. Similarly, in the present cases also, the game allowed the players to
play the role that resembled the real life of a person where one could heroic, noble,
offensive or obscene acts and this is left to the choice of the players to select the role
they liked. This game shows the real life situations and is no way trying to derogate
the morality of the society and cannot be considered to arise prurient interest among
the youth.
5.5. The Supreme Court of US in a controversial case regarding violent video games has
stated that the games are not really violent, they just mimic violence35. It defined
violent games as those “in which the range of options available to a player includes
killing, maiming, dismembering or sexually assaulting an image of a human being” in
a way that was “patently offensive,” appealed to minors’ “deviant or morbid interests”
and lacked “serious literary, artistic, political or scientific value.” In our present case,
the game is permitted for the people above the age of 18 years and therefore does not
come under this category. Justice Scalia has stated that, “No doubt a state possesses
legitimate power to protect children from harm, but that does not include a free-
floating power to restrict the ideas to which children may be exposed.” Thus new and
innovative ideas of the game developers must be respected as they exercise their right
to expression.
5.6.Therefore it can be inferred that the action of the state in deleting the source of the
game from the computer of the petitioner is in violation of his right to privacy and is
without any basis since the petitioner has exercised his Fundamental right to

34
1996(8)SCC433
35
United States v. Stevens, 559 U.S. 460 (2010)

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expression. So it is humbly submitted before this Hon’ble Court that the dismissal of
his private complaint is reasonable and fair.

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PRAYER

ON BEHALF OF MATHEW JAMIZ

Wherefore in the light of the issues raised, arguments advanced and authorities cited,
it is humbly requested that this Honourable Court may be pleased to adjudge and declare:

1. That the petition filed by Mathew Jamiz is maintainable before the Hon’ble High
Court of Bahisthan.
2. That the Young Persons (Harmful Publications) Act, 1956 is unconstitutional.
3. That the section 67 and 67A of the Information Technology Act is
unconstitutional.
4. That the petition filed by Mathew Jamiz to quash the FIR is maintainable before
the Hon’ble High Court of Bahisthan.
5. That the dismissal of the private complaint is unreasonable and unfair.

And pass any order that this Hon’ble court may deem fit in the interest of equity,
justice and good conscience. And for this act of kindness, the counsel for the
petitioner shall duty bound forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED,

201,

COUNSEL FOR THE PETITIONER.

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