JLU NATIONAL MOOT COURT COMPETITION, 2017

JLU NATIONAL MOOT COURT COMPETITION, 2017

TEAM CODE: 18

BEFORE THE HON’BLE HIGH COURT OF CRYSTALDEN, AT

SHADOWMOOR

IN THE MATTER OF:

GINGER PRODUCTIONS PVT. LTD…………………………………….PETITIONER

VERSUS

STATE & ORS………………………………………………………………RESPONDENT

WRIT PETITION NO. _________OF 2017

ON THE SUBMISSION TO THE HON’BLE COURT OF CRYSTALDEN

UNDER ART. 226 OF THE CONSTITUTION OF SHADOWMOOR

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

COUNSEL APPEARING ON BEHALF OF THE PETITIONER

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 MEMORANDUM ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS

• List Of Abbreviations……………………………………………………………………..3
• Index Of Authorities……………………………………………………………….........4
• 9
•Statutes………………………………………………………………………………….....
5
• Books/
Articles……...………………………………………………………..…………....5
• Cases…………………………………………………………………………….............5-
9
• Websites…………………………………………………………………………...……....
9
• Statement Of Jurisdiction
……………….………………………………...……..............10
• Statement Of Facts……………………………………………………….…………...11-
14
• Issues
Raised……..……………………………………………………………………....15
•Summary of
Arguments………………………………………………………………….16
• Summary Of
Arguments……………………………………...………………………….16
• Arguments Advanced…………………………………………...……………………16-
29
• Prayer…………………………………………………………………...………………..3
0

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 MEMORANDUM ON BEHALF OF THE PETITIONER

LIST OF ABBREVIATIONS

• AIR- All India Reporter

• ALJ- Allahabad Law Journal
• Anr.- Another
• Art.- Article
• Co.- Company
• COI- Constitution Of India
• Cri.- Criminal
• Ed. – Edition
• F.L.R- Federal Law Report
• HC- High Court
• ILJ- Indian Law Journal
• ILR- Indian Law Reporter
• IT- Income Tax
• ITR-Income Tax Return
• Ltd.- Limited
• MLJ- Maharashtra Law Journal
• Ors.- Others
• Pvt.- Private
• r/w- read with
• SC- Supreme Court
• SCC- Supreme Court Cases
• SCR-Supreme Court Record
• Sec.- Section
• u/d- under
• UOI- Union Of India
• US- United States

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 MEMORANDUM ON BEHALF OF THE PETITIONER

INDEX OF AUTHORITIES

STATUTES

1. The Constitution Of India

2. The Companies Act, 2013
3. Information Technology Act, 2000
4. Information Technology (Procedure and Safeguards for Blocking for Access of
Information by Public) Rules, 2009

BOOKS

1. Durga Das Basu, Commentary on the constitution of India (8th ed.2008)

2. S.R. Bhansali,The Constitution of India(2nd ed. 2009)
3. Mahendra P.Singh, Comparative Constitutional Law,(Eastern Book Company,
2nd ed.2011)
4. MP Jain, Constitution Of India, Vol I (6th ed. 2010)
5. A. Ramaiya, Guide to Companies Act, 2013 Vol. 2 (18th ed. 2013)
6. Narendra Kumar, Constitution Of India (10th ed., 2015)
7. Avtar Singh, Company Law, (16th ed., 2013)

JOURNALS/REPORT/ARTICLE
1. P.Ramanath Aiyer, Advanced Law Lexicon by, (3rd ed , 2005)
2. Bury, History of Freedom of Thoughts, 239 (1913)
3. A.G Noorani ,T.V Films and Censorship, 42 vol. Economic and political weekly civil
liberties(1990)

CASES

1. Amalendu Pal v. State of West Bengal, (2010) 1 SCC 707.

2. Anirudh Prasad Yadav v Union of India, 2004 AIHC 1842 (AL)
3. Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770 ;
4. Badshah v. Urmila Badshah Godse ,(2014) 1 SCC 188.
5. Bobby Art International v Om Pal Singh Hoon (1996) 4 SSC 1
6. Brown, et al. v. Entertainment Merchants Assn. et al., 564 U.S. 786 (2011

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 MEMORANDUM ON BEHALF OF THE PETITIONER

7. Chandrakant v State of Mahrashtra, A1R 1970 SC 1390

8. Common Cause(A registered society) v Union of India and Ors, AIR 2018 SC 1665 .
9. F.A Picture International v Central Board of Film Certification, AIR 2005 Bom 145
10. Gajanan .P. Lasure& Anr v Central Board of Film Certification 2012 (1) Bom CR 127
11. Golaknath v State Of Punjab, AIR1967 SC 1643
12. Iqbal Singh Marwah v. Meenakshi Marwah, AIR 2005 SC 2119
13. Kalpanath Rai v State, SC
14. M. Mohan v. State, Represented by Deputy Superintendent of Police, (2011) 3 SCC 626;
15. M. Nagraj v Union of India, AIR 2007 SC 71
16. Maneka Gandhi v Union of India, AIR 1978 SC 597
17. Maneka Gandhi v Union of India, AIR 1978 SC 597;
18. Mr. Mahesh Bhatt & Kasturi and Sons v Union of India, 1989 SCC (2) 574
19. Mr. Mahesh Bhatt & Kasturi and Sons v Union of India, 1989 SCC (2) 574
20. Mr. Mahesh Bhatt & Kasturi and Sons v Union of India, 1989 SCC (2) 574
21. Mr. Mahesh Bhatt & Kasturi and Sons v Union of India, 1989 SCC (2) 574
22. Narindra Das v State of MP,AIR 1974 SC 1232
23. NEPC Micon Ltd. v. Magma Leasing Ltd. , AIR 1999 SC 1952.
24. Pawan Kumar Bhalotia v. State of W.B. , 2005 SCC (Cri) 543
25. Ram Singh V State of Delhi AIR 1951 SC 270 ; Maneka Gandhi v Union Of India AIR 1978
SC 597;
26. Ramesh s/o Chotalal Dalal v. Union of India (UOI) and Ors. AIR1988SC775
27. Randhir Singh and Anr v State of Punjab, SC
28. S. Rangrajan v P. Jagjivan Ram,(1989) 2 SCC 574
29. S.Rangrajan v P. Jagjivan ram(1989)2 SCC 7
30. Sakal Papers Ltd. & Ors. v Union Of India , AIR 1962 SC 305
31. Sakal Papers Ltd. & Ors. v Union Of India , AIR 1962 SC 305
32. Secretary, Ministry of I&B, Gov. of India v. Cricket Association of Bengal
33. Shreya Singhal v Union of India.
34. Smt. Kiran Bedi v. Committee of Inquiry, AIR1989 SC 714
35. Standard Chartered Bank Vs. Directorate of Enforcement
36. Star video v State of U.P & Ors AIR 1994 All 25
37. Star video v State of U.P & Ors AIR 1994 All 25
38. State Of Bihar v Shailabala Devi Mahajan, 1952 AIR 329
39. State of Maharashtra v Syndicate Transport Co. Pvt. Ltd., AIR 1964 Bom 195.
40. State of Maharashtra v. Public Concern of Governance Trust, AIR 2007 SC 777
41. Swamy v. Union of India (2016) 2 M.L.J. (Crl.) 542
42. Swamy v. Union of India (2016) 2 M.L.J. (Crl.) 542
43. T.M.A Pai Foundation v State Of Karnataka AIR 2003 SC355
44. Union of India (UOI) and Ors. v. Film Federation of India and Anr. 1989(3)BomCR37
45. Union of India (UOI) and Ors. v. Film Federation of India and Anr. 1989(3)BomCR37

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 MEMORANDUM ON BEHALF OF THE PETITIONER

WEBSITES

• www.manupatra.com
• www.westlawindia.com
• http://india.gov.in/my-goverment/constitution-india
• www.journals.cambridge.org
• www.jstore.com
• www.supremeofindia.nic.in
• www.thehindu.com
• www.law.cornell.edu
• www.thebluebook.com
• www.lawjournals.com

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 MEMORANDUM ON BEHALF OF THE PETITIONER

STATEMENT OF JURISDICTION

The Petitioner has invoked the jurisdiction of the Hon’ble Supreme Court Court for writ of
certiorari under Article 321 of the Constitution of Pride.

1
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 the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 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

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 MEMORANDUM ON BEHALF OF THE PETITIONER

STATEMENT OF FACTS

1. BACKGROUND
X, a company engaged in designing online games have created a game entitled ‘Green
Fox’ which is to be played on mobile phones. The game being challenging in nature,
caught immediate attention of the users especially children and youngsters. It became a
big hit and popular among the people throughout the world including ‘Pride’.
2. THE GAME
The mode of playing the game is- the user has to download the game from app store. He
is required to agree to the terms and conditions of the game. One of such terms and
conditions of the game is that the user has to be above the age of 18 years to register and
play the game. Once agreed to the terms and conditions, he is required to register for the
game by providing his personal details. Once registered, he is provided with one
administrator whose shall then observe the given tasks performed by the player. The game
consists of 50 levels. On each level, the difficulty level increases. In the beginning, some
simple tasks are assigned to be performed by the player which shall be verified by the
administrator. In order to verify such performance, the player has to leave some mark and
upload the video of the same. As the game become more and more challenging, the player
gets addicted to it and as a result the last level of the administrator demands the player to
commit suicide after drawing an image of Green Fox on his hand.
3. THREAT TO LIFE
The game became so popular among the youth that even it penetrated into the schools
wherein few school going children around the age 10-12 were found committing suicide
by embossing a logo of Green Fox on their hand. The ‘State of Pride’ identifying it as a
threat to the life of children and abusive of life have issued notice to the company X for
withdrawing its game from online portal to which the company responded that they will
not withdraw the game as such it do fall within the six golden freedoms as guaranteed by
the constitution.
4. VIOLATION OF FUNDAMENTAL RIGHTS
The company replied to the notice that the object of the game is to make the user more
firm and competent at their decision. The reply consists of a statement that ‘there is no
abetment to suicide as such as the task given was supposed to be individual competence
and observance and one must understand whether to commit suicide on once provocation

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 MEMORANDUM ON BEHALF OF THE PETITIONER

or not’. Moreover the reply consisted on allegations on the state that so many persons
have committed suicide for various reasons either by hanging to a tree or fan or poisoning
even many of the times brides are burnt by gas explosion. The reply further alleges that
the government did nothing to prevent these activities by adopting a mechanism and thus
this notice is violative of their fundamental right guaranteed by the Constitution of Pride
under Art. 14, 19(1)(a) and 19 (1)(g) read with Art. 21.
5. CRIME OF ABETMENT OF SUICIDE
The State of Pride after due deliberation have registered a crime under Sec. 306 and Sec.
120B of IPC against the company for abetment of suicide by conspirating with the
administrators, imposed a ban on the game throughout the country U/S 69-A of
Information Technology Act- 2000 Aggrieved by this decision, the company have moved
a petition under Art. 32 of the constitution claiming violation of their rights under Art. 14,
19(1)(a) and 19 (1)(g) read with Art. 21. and for quashing the FIR contending that before
this event there were few more games like- ‘DukemanDo’, of the similar nature which
were banned by the government. But no criminal case was registered against them.
Petitioner also contended that, the state has not given them an opportunity of hearing
while imposing ban on their application. Thus, it violated fundamental rights of the
petitioner.
Note: The Laws of Pride are Mutatis Mutandis to the Law of India.

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 JLU NATIONAL MOOT COURT COMPETITION, 2017

STATEMENT OF ISSUES

1. WHETHER ON THE BASIS OF THE FACTS AND CIRCUMSTANCES OF THE

CASE AND IN LAW, THE PETITIONER COMPANY HAS COMMITTED ANY
OFFENCE UNDER S.306 R/W S.120-B OF IPC.
1.1 That there was no abetment committed on the part of the petitioner.
1.2 That a corporate body cannot be made criminally liable for the offence of
‘Abetment to suicide’ under IPC.
1.3 That the inextricable element of mens rea for the offence alleged is not
attributable to the petitioner company.

2. WHETHER ON THE BASIS OF FACTS AND CIRCUMSTANCES OF THE CASE

AND IN LAW, THE PETITIONER’S FUNDAMENTAL RIGHTS HAVE BEEN
VIOLATED.
2.1 The state has positive obligation to guarantee fundamental rights.
2.2 Article 19 has been violated.
2.3 That Art. 14 stands violated in the present matter.
2.4 That Art. 21 stands violated.
3. WHETHER ON THE BASIS OF THE FACTS AND CIRCUMSTANCES OF THE
CASE, AND IN LAW, IMPOSING BAN ON THE APPLICATION “GREENOX” U/S 69A
OF INFORMATION TECHNOLOGY ACT IS CONSTITUTIONALLY VALID?
3.1 That the ban under Section 69 A is an attack on artistic creation.
3.2 That there is absence of regulation of video game content over internet.
3.3 That the direction for banning of application is violative of Art. 21.

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 JLU NATIONAL MOOT COURT COMPETITION, 2017

SUMMARY OF ARGUMENTS

1. WHETHER ON THE BASIS OF THE FACTS AND CIRCUMSTANCES OF THE

CASE AND IN LAW, THE PETITIONER COMPANY HAS COMMITTED ANY
OFFENCE UNDER S.306 R/W S.120-B OF IPC.

The Petitioner humbly submits before this Hon’ble Court that no offence under S.306 and S.120-B
of IPC has been committed by the petitioner company as there was no abetment committed on their
part and also corporate bodies are incapable of committing offence under Section 306 and Section
120-B.

2. WHETHER ON THE BASIS OF FACTS AND CIRCUMSTANCES OF THE CASE

AND IN LAW, THE PETITIONER’S FUNDAMENTAL RIGHT HAVE BEEN
VIOLATED.
The Petitioner humbly submits before the Hon’ble Supreme Court that Petitioner’s Fundamental
Rights have been violated under Article 14 &19 read with Art 21. It is a settled law that a
developer of the game has a Fundamental Right under Art. 19(1)(a) of the Constitution Of Pride
and notice of government to the company to withdraw the game is violative of their fundamental
right guaranteed by the Constitution of Pride under Art. 14, 19(1)(a) and 19 (1)(g) read with Art.
21.
3. WHETHER ON THE BASIS OF THE FACTS AND CIRCUMSTANCES OF THE
CASE, AND IN LAW, IMPOSING BAN ON THE APPLICATION “GREENOX” U/S 69A
OF INFORMATION TECHNOLOGY ACT IS CONSTITUTIONALLY VALID?
The Petitioner humbly submits before the Hon’ble Supreme Court that the direction for banning
the application under S. 69A of the Information Technology Act,2000 is unconstitutional as it is
not only violative of Art. 21 of the Constitution but also Art. 14 of the constitution. The absence
of regulation of online video game content impairs the state from passing a direction which would
infringe the fundamental rights of the Petitioner company.

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 JLU NATIONAL MOOT COURT COMPETITION, 2017

ARGUMENTS ADVANCED

1.WHETHER ON THE BASIS OF THE FACTS AND CIRCUMSTANCES OF THE CASE

AND IN LAW, THE PETITIONER COMPANY HAS COMMITTED ANY OFFENCE
UNDER S.306 R/W S.120-B OF IPC.

It is humbly submitted before this Hon’ble court that no offence of S.306 and S.120-B of IPC has been
committed by the petitioner company on two grounds:

i. That there was no abetment committed on the part of the petitioner.

ii. That a corporate body is incapable of committing the offences under S.306 and
S.120-B.
iii. That the inextricable element of mens rea for the offence alleged is not attributable
to the petitioner company.
1.1 That there was no abetment committed on the part of the petitioner.
Abetment involves a mental process of instigating a person or intentionally aiding that person in
doing of a thing. In cases of conspiracy also, it would involve that mental process of entering into
conspiracy for the doing of that thing.2
It is humbly submitted before this hon’ble court that there is absolutely no trace of evidence placed
on record which could establish involvement of a mental process of abetting the offence of
committing suicide. The only piece of communication between the player and the game developer
is by means of administrator. The administrator has no personal communication with the player
rather he is merely there to verify each level of the game as and when completed by the player. The
fact that the last step of the game was a life threatening activity does not in any manner tantamount
to commission of abetment to suicide. In the suicide referred to in the instant matter, except the
‘Green – Ox’ logo embossed, there is no reference of any act or incidence whereby the petitioner
herein is alleged to have committed any wilful act or omission or intentionally aided or instigated
the deceased in committing the act of suicide. There is no case that the petitioner has played any
part or any role in any conspiracy, which ultimately instigated or resulted in the commission of
suicide by deceased. 3 This being so, as the act was to be conducted on personal competence and
observance and therefore was voluntary. 4 Before holding the petitioners guilty of an offence
under Section 306 of IPC, the Court must scrupulously examine the facts and circumstances of
each case and assess the evidence adduced before it in order to find out whether the treatment
meted out to the victim had left the victim with no other alternative but to put an end to her life. It
is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of
direct or indirect acts of incitement or provocation to the commission of suicide. Merely on the
allegations of harassment without there being any positive action proximate to the time of
occurrence on the part of the accused, which led or compelled the person to commit suicide, the
conviction in terms of Section 306 of IPC is not sustainable.5
1.2 That a corporate body cannot be made criminally liable for the offence of ‘Abetment to
suicide’ under IPC.

2
Randhir Singh and Anr v State of Punjab, SC
3
Pawan Kumar Bhalotia v. State of W.B. , 2005 SCC (Cri) 543
4
Moot proposition.
5
M. Mohan v. State, Represented by Deputy Superintendent of Police, (2011) 3 SCC 626; Amalendu Pal v. State of
West Bengal, (2010) 1 SCC 707.

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 JLU NATIONAL MOOT COURT COMPETITION, 2017

Penal statute should be construed in a manner which will suppress mischief and advance the
object which the Legislature had in view .6The language of S.11of IPC though states that the
term person shall include a corporate body however it is not disputed that there are several
offences which could be committed only by an individual human being, for instance, murder,
treason, bigamy, rape, perjury etc. A company which does not act by or for itself but acts through
some agent or servant would obviously not be capable of commission of the aforesaid offences and
would therefore, not be liable for indictment for such offences.7
Making a corporate body responsible for a crime like abetment to suicide would ultimately
render the whole purpose of the legislation redundant. It being so, as corporate criminal
liability is inconsistent with the basic tenets of criminal law i.e deterrence, retribution or
reformation.Any interpretation which withdraws life and blood of the provision and makes it
ineffective and a dead letter should be averted.8 It is the duty of Court to interpret it consistent
with the legislative intent and purpose so as to suppress mischief and advance the remedy. In
other words, interpretation which advances the remedy should be adopted.9
Instead, if criminal liability is imputed to Corporations , the only effective result would be
punishing innocent shareholders, employees, creditors and others.10

1.3 That the inextricable element of mens rea for the offence alleged is not attributable to the
petitioner company.

The company being a juridical person cannot be made liable for a criminal offence as alleged in
the instant matter. It can only be a natural person who is capable of having mens rea to commit the
offence. 11 That for such crimes as alleged, a corporation is held incapable of committing by
reason of the fact that they involve personal malicious intent. 12 Neither the doctrine of
identification / attribution nor principle of alter ego shall be applicable in the present matter.
Corporate mens rea is simply and umbrella label used to describe two types of liability standards:13
i)Single Actor Mens Rea and ii)Collective Mens Rea

Firstly,dealing with the first standard of liability, it is submitted that this case cannot fall within this
facet of liability as the offence alleged cannot be committed by any human agent of the company
within the scope of employment or even with the partial intent to benefit the company.14 Even if we go
to the extent of accepting that there were private benefits of socially illicit nature of the human agents
behind the corporate veil those benefit cannot be counted as a social benefit and therefore there exists
absolutely no reason to impose any sanction on the corporation. 15 Even in these situations , any
sanction imposed on corporation may prove pointless and be socially costly.

Secondly, in regards to the second standard of liability it is contended that there exists no evidence on
record which could suggest a line of reasoning that the human agents collectively conspired to cause
death of individuals who used applications built by the petitioner company.

6
Iqbal Singh Marwah v. Meenakshi Marwah, AIR 2005 SC 2119.
7
State of Maharashtra v Syndicate Transport Co. Pvt. Ltd., AIR 1964 Bom 195.
8
NEPC Micon Ltd. v. Magma Leasing Ltd. , AIR 1999 SC 1952.
9
Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770 ; Badshah v. Urmila Badshah Godse ,(2014) 1
SCC 188.
10
Sara Sun Beale, A response to Critics of Corporate Criminal Liability
11
Kalpanath Rai v State, SC
12
Standard Chartered Bank Vs. Directorate of Enforcement
13
William S. Laufer , Culpability and the Sentencing of Corporations , 71 NEB. L. REV. 1049, 1059-77(1992);
Richard. S. Grunner, Corporate Crime and Sentencing, 198-203(1994)
14
State v Morris and Essex Railroad 23 N.J.L 360,364(1852),.
15
Kathleen F. Brickey, Corporte Criminal Liability , 131-138(2nd ed. 1992)

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 JLU NATIONAL MOOT COURT COMPETITION, 2017

Ultimately, in cases like these the purpose of corporate criminal liability stands frustrated. The
doctrine proves unnecessary as the deterrent effect of fines and other sanctions against corporations is
challenged on the grounds that it is not the corporations that commit crimes, it is the individuals who do
and the second being that the retributive effect is borne by innocent shareholders (by decreasing the value
of their shares) and consumers (by driving up the prices of commodities and services).

2.WHETHER ON THE BASIS OF FACTS AND CIRCUMSTANCES OF THE CASE AND

IN LAW, THE PETITIONER’S FUNDAMENTAL RIGHT HAVE BEEN
VIOLATED.
15. Freedom of speech and expression is of paramount importance under a democratic
Constitution and must be preserved.16 It is a supreme condition of mental and moral progress.17It
is humbly submitted that in the light of the below mentioned cases and arguments advanced the
Petitioner’s Fundamental Rights have been violated. Fundamental Rights are vibrant and dynamic
concepts.18As rightly observed in the case of Star video v State of U.P & Ors19 the freedom of
speech or expression makes the right to express ones opinion by words of mouth, writing,
printing, picture or in any other manner by which such opinion may be understood by others. Any
limitation on the exercise of the Fundamental Right under Art.19 (1) (a) of the Constitution of
India which does not fall within the four corners of Art. 19(2) cannot be upheld. The freedom of
expression is an undeniable right given under the Constitution; but that right is subject to certain
well defined and well established limitations which have been incorporated in Art.19(2).20
16. It would thus include the freedom of communication and the right to propagate or publish
opinion. The communication of ideas could be made through any medium including the game. It
is a right protected and guaranteed by the written constitution of the state.21 In the case of Swamy
v. Union of India22, which highlighted the sanctity and significance of freedom of speech and
expression in a democracy, it was observed therein that free speech is the foundation of a
democratic society, and the right to freedom of speech and expression includes the right to acquire
information and to disseminate it, i.e., the right to publish and circulate one's ideas, opinions and

16
Sakal Papers Ltd. & Ors. v Union Of India , AIR 1962 SC 305
17
Bury, History of Freedom of Thoughts, 239 (1913)
18
Mr. Mahesh Bhatt & Kasturi and Sons v Union of India, 1989 SCC (2) 574
19
Star video v State of U.P & Ors AIR 1994 All 25
20
Union of India (UOI) and Ors. v. Film Federation of India and Anr. 1989(3)BomCR37
21
P.Ramanath Aiyer, Advanced Law Lexicon by, (3 rd ed , 2005)
22
Swamy v. Union of India (2016) 2 M.L.J. (Crl.) 542

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 JLU NATIONAL MOOT COURT COMPETITION, 2017

views with complete freedom by resorting to any available means of publication, which would
then enable people to contribute to debates on social and moral issues.
2.1 The state has positive obligation to guarantee fundamental rights.
17. Under Art.22623 a writ can be issued for i) enforcement of Fundamental Rights and ii) for
any other purpose. The Fundamental Rights weave a ‘pattern of guarantee’ on the basic
structure of human rights and impose positive obligations on the State to protect individual
liberty in its various dimensions.24 Fundamental rights are those rights which the state enforces
against itself.25 The Fundamental Rights are not gifts from state to citizens and part III does not
confer Fundamental Rights but confirm their existence and give them protection.26It is the duty
of the State to protect the freedom of expression since it is a liberty guaranteed against the
State.27Art. 19(1)(a) recognizes that freedom of speech and expression is a Fundamental Right
of every citizen and has to be preserved. Right to express oneself by cinematographic medium
or in any print media forms a part of one’s Fundamental Right to speech and expression. 28 It is
the obligatory duty of the state to protect the freedom of expression since it is a liberty
guaranteed against the state. 29 When the decision of ‘State of Pride’ entrenches upon the
Fundamental Right of freedom of speech and expression, it is not merely the function, but the
duty and the responsibility of the court to intervene30 Therefore, it is humbly submitted that the
Petitioner’s Fundamental Rights have been curtailed by the action of the State, and hence ,the
Petitioner is entitled to the claim of the right of freedom of speech and expression.

2.2 Article 19 has been violated.

18. Prelude India has the benefit of one of the most modern and liberal Constitutions. It is
reflective of rich and diverse heritage, yet enunciating the modern principles of democracy as
distinguished from a feudal society. One of the most cherished rights under our Constitution is
to speak one’s mind and to write what one thinks31. It is a natural right and must be broadly
construed to include freedom to circulate one’s views by words of mouth or in writing or

23
Article 226,Constitution Of India
24
Maneka Gandhi v Union of India, AIR 1978 SC 597
25
Golaknath v State Of Punjab, AIR1967 SC 1643
26
M. Nagraj v Union of India, AIR 2007 SC 71
27
S. Rangrajan v P. Jagjivan Ram,(1989) 2 SCC 574
28
Mr. Mahesh Bhatt & Kasturi and Sons v Union of India, 1989 SCC (2) 574
29
A.G Noorani ,T.V Films and Censorship, 42 vol. Economic and political weekly civil liberties(1990)
30
F.A Picture International v Central Board of Film Certification, AIR 2005 Bom 145
31
S. Tamilselvan v The Government Of Tamilnadu 2016 (3) M.L.J(Crl.) 129

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 JLU NATIONAL MOOT COURT COMPETITION, 2017

through audio-visual instrumentalities.32The Petitioner company developed a game which could

test an individual’s decision making power.33The Petitioner seeks to assert his right to, as he
humbly submits that nothing in the game falls within the ambit of clause (2) of Article 19 of
the Constitution. In addition to this, it is said that it is the right that is fundamental and not the
limitation.34
19. It is a settled law that a developer of the game has a Fundamental Right under Art.
19(1)(a) of the Constitution Of India 35 . The effect must be judged from the standards of
reasonable, strong minded, firm and courageous men, and not those of weak and vacillating
minds, nor of those who scent danger in every hostile point of view36. The social context of any
such legislation cannot be ignored.
20. A game that intends to make the player more decisive by nature cannot be made
impermissible on the ground that it involves a level wherein doing life threatening acts was not
only voluntary but also to be done based on personal competence and observance. Any such
ban within the limits would be violative of art.19(1)(a).The creation must be judged in its
entirety from the point of view of its overall impact. 37The court has to take into consideration
the overall view of the entire work38, of the creator.
21. In the case of Keshvanand Bharti v. State of Kerala 39 it was held that the Fundamental
Right themselves have no fixed content and the attempt of the court should be to expand and
reach the ambit of the Fundamental Rights. The Constitution is required to keep young,
energetic and alive. Most of the Fundamental Rights are empty vessels into which each
generation must pour its content in the light of experiences40. The freedom of expression means
freedom not only for the thought we cherish but also for the thought we hate.41Moreover the
Petitioner humbly submits that it is the onus of the party that challenges the circulation of the

32
Anirudh Prasad Yadav v Union of India, 2004 AIHC 1842 (AL)
33
Moot proposition, para 18
34
Ram Singh V State of Delhi AIR 1951 SC 270 ; Maneka Gandhi v Union Of India AIR 1978 SC 597; T.M.A Pai
Foundation v State Of Karnataka AIR 2003 SC355
35
Brown, et al. v. Entertainment Merchants Assn. et al., 564 U.S. 786 (2011
36
Ramesh s/o Chotalal Dalal v. Union of India (UOI) and Ors. AIR1988SC775
37
Bobby Art International v Om Pal Singh Hoon (1996) 4 SSC 1
38
Chandrakant v State of Mahrashtra, A1R 1970 SC 1390
39
AIR 1973 SC 1461
40
People’s Union For Civil Liberty v Union Of India AIR 2003 SC 2363;Unni Krishnan J.P V State Of AP AIR 1993
SC 2178
41
Narindra Das v State of MP,AIR 1974 SC 1232

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game on the android platform on the ground of it being objectionable, to prove that such game
comes under the reasonable restriction of Art. 19(2) of Constitution of India.42
22.The Petitioners claim that freedom of expression and speech of the constitution can be
curbed or curtailed on the grounds specifically in Art.19(2) and for no other justification. 43
Games are a legitimate medium of expression. The producers may project his own message.44
The State is required to take note of social change and technological developments and ensure
that artistic expressions and creative freedom are not unduly curbed. 45 The cannot refuse to
circulate the game on the ground that the game in question involves performance of a task
based on observance and competence.46 Thereby, the Petitioner humbly submits that the Art.19
in the context of freedom of speech and expressions has been violated.
2.3 That Art. 14 stands violated in the present matter.
It is humbly submitted before this Hon’ble court that the rights of the Petitioner company under
Art.14 stands violated. In various instances of the other games available online having violence
as an essence of the game itself, the only directive of the state was banning the application.
However, in the instant matter, the state has set into motion a criminal proceeding by filing an
FIR against the Petitioner company. No intelligible differentia is apparent based on the facts
placed on record. Therefore the treatment meted out to the Petitioner company is violative of
Art. 14.
Also, the Petitioner was not even given a hearing before the State made an order to ban the
gaming application. The audi alteram partem rule , in essence , enforce the equality clause in
Art. 14 and it is applicable not only to quasi- judicial bodies but also to administrative order as
has been passed by the State in the instant case which is adversely affecting the party in
question.47 The Respondent in passing the impugned order had failed to adhere to the rigour of
Art. 14 and there under the principles of natural justice were violated in as much as the
Petitioner was not granted a hearing before passing the order.48
2.4 That Art. 21 stands violated.

42
Gajanan .P. Lasure& Anr v Central Board of Film Certification 2012 (1) Bom CR 127
43
Mr. Mahesh Bhatt & Kasturi and Sons v Union of India, 1989 SCC (2) 574
44
S.Rangrajan v P. Jagjivan ram(1989)2 SCC 7
45
State Of Bihar v Shailabala Devi Mahajan, 1952 AIR 329
46
D.D. Basu, Commentary On Constitution Of India,(8 th ed. 2012)
47
Delhi Transport Corporation v DTC Mazdoor Union
48
Pankaj Butalia v Central Board of Film Certification 25, May 2015

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Good reputation is an element of personal security and is protected by the constitution, equally
with the right to the enjoyment of life, liberty, and property. 49 It is humbly submitted before this
Hon’ble court that the institution of criminal proceedings and banning of application under S.69A
of IT Act is unconstitutional in the instant matter as there is serious harm caused to the reputation
of the Petitioner company. The nature of action taken against the Petitioner has casted a serious
aspersion on them affecting their character and reputation and may, ultimately affect their business
and thereby, violates their fundamental rights as guaranteed under Art.21 of the Constitution.50
Condemnation of the appellants without giving them an opportunity of being heard was a
complete negation of the fundamental principle of natural justice.

3. WHETHER ON THE BASIS OF THE FACTS AND CIRCUMSTANCES OF THE

CASE, AND IN LAW, IMPOSING BAN ON THE APPLICATION “GREENOX” U/S 69A
OF INFORMATION TECHNOLOGY ACT IS CONSTITUTIONALLY VALID?

Section 69A, which effectively enables State-censorship of the internet, neither provides for a redressal
mechanism on censorship, nor does it contain provisions with respect to unblocking of blocked
content. It is humbly submitted before this Hon’ble Court that the banning of the application ‘Green
Ox’ under the provision of S. 69 A of IT Act is constitutionally invalid on two grounds:
i) That the ban under S.69 A is an attack on artistic creation.
ii) That .
3.1. That the ban under S.69 A is an attack on artistic creation.

As clarified above the ban on the ‘Green Ox’ application violates freedom of speech and expression as
guaranteed under Art.19. The Green Ox Mobile App has become a medium for people of the country to
strengthen their decision making power. With the imposition of the blanket-ban on the App, a major havoc
was caused to the Petitioner’s income and artistic creation. The Supreme Court in the case of Nachiketha
Walhekar v. CBFC[xiv] dealt with the artistic creation and observed:
“…A film or a drama or a novel or a book is a creation of art. An artist has his own freedom to express
himself in a manner which is not prohibited in law and such prohibitions are not read by implication to
crucify the rights of expressive mind. …A thought provoking film should never mean that it has to be
didactic or in any way puritanical.”

3.2 That there is absence of regulation of vedio game content over internet.
It is hereinafter humbly submitted by the petitioners that there are no laws available to regulate the
content of video games and in the absence of any legislative framework, it would be arbitrary and
unjust to impose a ban on the application and thereby curtail the fundamental freedom of the Petitioner
company. Of late , the Supreme Court has recognized the insufficiency of IT Laws to regulate online

49
Smt. Kiran Bedi v. Committee of Inquiry, AIR1989 SC 714
50
State of Maharashtra v. Public Concern of Governance Trust, AIR 2007 SC 777

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content and therefore directed setting up of a broadcasting authority to control and regulate the
broadcasting media. 51 The Information Technology Act, 2000 (IT Act) does not deal with online video
game content. Earlier, one could resort to section 66A of the IT Act in cases of offensive electronic
communication as has been alleged in the present matter; however, this is no longer possible after the SC
struck down section 66A.52
3.3 That the direction for banning of application is violative of Art. 21.
It is humbly submitted before this Hon’ble court that the banning of application under S.69A of
IT Act is unconstitutional in the instant matter as the procedure followed for passing this order
was not as per the procedure established by law. There has been serious violation of rights of the
petitioner as guaranteed under Art. 21 of the Constitution as S.69A makes it mandatory for the
state body to follow the procedure prescribed under the Information Technology (Procedure and
Safeguards for Blocking for Access of Information by Public) Rules, 2009. The provisions
contained in Rule 853 requires that the host of the information, which in the instant matter is the
Petitioner company must be given a notice before banning the application and given a chance of
representation. However, the State body(i.e the Designated Officer) without following the due
procedure of law passed a direction for banning the application which has resulted in the
infringement of rights as secured under Art. 21.54

51
Secretary, Ministry of I&B, Gov. of India v. Cricket Association of Bengal
52
Shreya Singhal v Union of India.
53
R.8(1) , Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public)
Rules, 2009
54
Maneka Gandhi v Union of India, AIR 1978 SC 597; Common Cause(A registered society) v Union of India and
Ors, AIR 2018 SC 1665 .

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authority cited, it is
humbly submitted that this Hon’ble Court may be pleased to adjudge and declare;

• That the FIR filed against the petitioner must be quashed.

• That the direction of banning the application under S. 69A is unconstitutional and
must be set aside.

And pass any such order, writ or direction as the Hon’ble Court deems fit and proper, for this
the Petitioner shall duty bound pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE PETITIONER

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