Before THE HONOURABLE HIGH COURT OF DHANYASTHAN

Under Article 226 of the Constitution of India

Writ Petition No. . / 2011

AMIRTHKUMAR ...PETITIONER

v.

STATE OF DHANYASTHANRESPONDENT

MEMORANDUM for PETITIONER

-Table of Contents-

TABLE OF CONTENTS

INDEX OF AUTHORITIES STATEMENT OF JURISDICTION STATEMENT OF FACTS STATEMENT OF ISSUES SUMMARY OF ARGUMENTS ARGUMENTS ADVANCED

1. The classification on the basis of age is not reasonable. 1.1 No provision to prohibit minors from transmitting or viewing sexually offensive material to consenting adults. 2. The classification on the basis of location is not reasonable. 2.1 No provision to prohibit the transmission of sexually offensive communication, abusive communication or defamatory communication by the persons located in Dhanyasthan to persons located in any other place. 3. The Government has unfettered and discretionary powers to subjectively classify information as abusive or defamatory. 3.1 No definitive guide or standard is provided to the Executive to select cases for special treatment or grant exemption from its operation.

MEMORIAL for PETITONER

-Table of Contents-

4. Restriction on the grounds of defamation is not reasonable. 4.1 Government cannot impose prior restraint on the publication of defamatory material. 5. Restriction on the grounds of Decency/Morality is not reasonable. 5.1 The test of obscenity is subjective. 6. Personal Liberty under Article 21 is violated. 6.1 Personal liberty under Article 21 cannot be restricted either by legislation or by law except by satisfying Article 14 and 19.

PRAYER

MEMORIAL for PETITONER

-Index of Authorities-

LIST OF ABBREVIATIONS

A.I.R Art. Ed. I.L.R Mad. Ori. QB S.C.C S.C.R SC Sec. U.O.I Cl.

All India Reporter Article Edition Indian Law Reports Madras Orissa Queens Bench Supreme Court Cases Supreme Court Reports Supreme Court Section Union of India Paragraph Clause

-Index of Authorities-

INDEX OF AUTHORITIES

CASES: Ajay Goswami v. Union of India, AIR 2007 SC 493. Anwar v. State of J&K, AIR 1971 SC 337 (388). Babulal v. Collector of Customs, (1957) SCR 1110. Bobby Art International v. Ompal Singh Hoon, AIR 1996 SC 1846. Budhan v. State of Bihar, (1955) SCR 1045 (1049). Chintaman Rao v. State of Madhya Pradesh, (1950) SCR 759. Common Cause v. Union of India, (1996) 6 SCC (530). D.T.C v. Mazdoor Union, AIR 1991 SC 101. Dilip Kumar v. State of M.P., AIR 1976 SC 133. Dr. Khare v. State of Delhi, (1950) SCR 519. G. Gurunadha Reddy v. A.P. Road Transport Corporation, AIR 1999 AP 179. Garg v. Union of India, AIR 1981 SC 2138. Ghosh v. Joseph, AIR 1963 SC 812 (814).

MEMORIAL for PETITONER

-Index of Authorities-

Gopalan v. State of Madras, (1950) SCR 88. Gulf Ry. v. Ellis, (1897) 163 US 150. Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671. Hanif v. State of Bihar, AIR 1958 SC 731. Harnam Singh v. R.T.A, AIR 1954 SC 190. Howel v. Falmouth Boat Construction, 1951, 2All,ER 278 (281)(HL) Kangshari v. State of West Bengal, AIR 1960 SC 457. Kharak singh v. State of U.P., AIR 1963 SC 1295. Kishna v. State of Madras, (1957) SCR 357. L.I.C. v. Manubhai D. Shah, (1992) 3 SCC 637. M. Nagaraj v. Union of India, AIR 2007 SC 71,101. Meenakshi Mills v. Vishwanatha, AIR 1955 SC 13. Minerva mills v. Union of India, AIR 1980 SC 1789. Missouri RY. v. Humes, (1885) 115 US 512. Olga v. Bombay Corporation, AIR 1986 SC 180. Panduranga Rao v. A.P.P.SC, (1963) SCR 707. Ram Krishna v. Tandolkar, (1959) SCR 279. Ramjilal v.State of U.P., AIR 1957 SC 620. Ranjit v. State of Maharashtra, AIR 1965 SC 881 (885).

MEMORIAL for PETITONER

-Index of Authorities-

Riaj Ahmed v. Competent Authority, AIR 1994 J&K 51. Romesh Thapper v. State of Madras, (1950) SCR 594 (602). Sadasiva v. State of Orissa, (1956) SCR 794. Samdasani v. Central Bank Of India, AIR 1952 SC 59. Santokh Singh v. Delhi Administration, AIR 1973 SC 1091(1094). Satwant v. A.P.O., AIR 1967 SC 1636, 1845. Senior Supretendent v. Bihar, AIR 1989 SC 2262. Srinivas v. State of Madras, AIR 1931Mad 70. State of W.B v. Swapan Kumar, AIR 1982 SC 949. State of Bombay v. Balsara, (1951) SCR 682 (708). State of H.P. v. Padam Devi, AIR 2002 SC 2477. State of M.P. v. Baldev, AIR 1961 SC 293(298). State of Maharashtra v. Rao., AIR 1971 SC 1157. State of Rajasthan v. Manohar, (1954) SCR 996. State of W.B. v. Anwar Ali, (1952) SCR 284. Sujat Ali v. Union of India, AIR 1974 SC1631. Surajmal v. I.T.I (Commr), AIR 1954 SC 545. Treham v. Union of India, (1989) 1 SCC 89. Vajra Velu v. Sp .Dy. Collector, AIR 1965 SC 1017. Vrijlal v. State of M.P., AIR1970 SC 129(135).

MEMORIAL for PETITONER

-Index of Authorities-

Ramashankar Kaushik v. Election Commission of India, AIR 1974 SC 445. All India Bank Employees Association v. N.I. Tribunal, AIR 1962 SC 171 (179). Krishna v. State, AIR 1953 TC 174. Ramkrishnaih v. D.T. Board, AIR 1952 Mad. 253

MEMORIAL for PETITONER

-Statement of Jurisdiction-

STATEMENT OF JURISDICTION

THE PETITONERS HAVE THE HONOUR TO SUBMIT BEFORE THE HONBLE HIGH COURT OF DHANYASTHAN THE MEMORANDUM FOR THE

PETITONERS, FILED BY AMIRTHKUMAR UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENTS IN THE PRESENT CASE.

MEMORIAL for PETITONER

-Statement of Facts-

STATEMENT OF FACTS

For the sake of brevity and convenience of the Honble Court the facts of the present case are summarised as follows: Dhanyasthan is a State in the Indian Union. Since 2008 the leading newspapers and news channels of the State have been publishing several reports regarding the misuse of social networking websites, like communication of obscene materials and personal harassment. The Annual Conference of the Principals of Engineering Colleges held in May 2011 passed a resolution, requesting the Government to take adequate measures to control the misuse of social networking websites. On 2-11-2011 Dhanyasthan Legislative Assembly passed Dhanyasthan Social Networking Safety Bill 2011. On 4-11-2011 the Governor of the Sate granted assent to the bill and the Dhanyasthan Social Networking Safety Act 2011 came into force on 5-11-2011.

MEMORIAL for PETITONER

-Statement of Facts The provisions of the Act are as follows:

1. Short title and Commencement (1) This Act may be called the Dhanyasthan Social Networking Safety Act 2011. (2) It extends to the whole State of Dhanyasthan. (3) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint.

2. Definitions (a)Abusive communication means any communication which is directed at a specific person, serves no legitimate purpose, and a reasonable person would believe is intended to threaten, intimidate or harass another person. (b) Defamatory statement means any statement punishable under Section 500 of the Indian Penal Code 1860. (c) Social networking website A website which is accessible to third parties and located on the Internet on which users located in Dhanyasthan may post or create a searchable profile, page or similar account that is accessible to other users or visitors to the website and share personal information with other users or visitors, and through which third parties other users or visitors may communicate directly with such users.

MEMORIAL for PETITONER

-Statement of Facts (d)Sexually offensive communication means any communication which a reasonable person would believe is intended to solicit or request a person to engage in sexual activity, and any communication depicting or describing nudity, sexual conduct or sexual excitement when it: (1) predominantly appeals to a prurient interest in sex; (2) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material or conduct for the member of the society and (3) taken as a whole, is without serious literary, artistic, political or scientific value.

3. Sexually offensive communication to or about persons less than 18 years of age. No person shall transmit a sexually offensive communication through a social networking website to or about a person located in Dhanyasthan who is less than 18 years of age.

4. Sexually offensive communication to or about any persons No person shall transmit a sexually offensive communication through a social networking website to or about any person located in Dhanyasthan without obtaining the prior consent of that person.

5. Abusive communication or defamatory communication No person shall transmit any abusive communication or defamatory communication through a social networking website about a person located in Dhanyasthan.

MEMORIAL for PETITONER

-Statement of Facts 6. Penalties Any person who violates any of the provisions of the Act shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

7. Power to make Rules The Government of Dhanyasthan shall make necessary Rules for the implementation of the Act.

On 14-12-2011 Mr. Amirthkumar, first Year Medical Student of Dhanya Medical College filed a writ petition before the High Court of Dhanyasthan challenging the validity of the Dhanyasthan Social Networking Safety Act 2011 on the ground of violation of Art.14, Art.19(1)(a), Art.19(1)(c) and Art.21 of the Constitution.

MEMORIAL for PETITONER

-Statement of Issues-

STATEMENT OF ISSUES

The following questions are presented before the Honble High Court of Dhanyasthan in the instant matter:

1. WHETHER OR NOT THE DHANYASTHAN SOCIAL NETWORKING SAFTY ACT IS VOILATIVE OF ARTICLE 14 OF THE CONSTITUTION.

2. WHETHER OR NOT THE ACT IS VOILATIVE OF ARTICLE 19(1)(a) & ARTICLE 19(1)(c).

3. WHETHER OR NOT THE ACT IS VOILATIVE OF ARTICLE 21.

MEMORIAL for PETITONER

-Summary of Arguments-

SUMMARY OF ARGUMENTS

1. WHETHER OR NOT THE DHANYASTHAN SOCIAL NETWORKING SAFTY ACT IS VOILATIVE OF ARTICLE 14 OF THE CONSTITUTION. No provision to prohibit minors from transmitting or viewing sexually offensive material to consenting adults exists. Hence, the classification on the basis of age is not reasonable. The classification on the basis of location is not reasonable, as no provision exists to prohibit the transmission of sexually offensive, abusive or defamatory communication by the persons located in Dhanyasthan to persons located in any other place. The Government has unfettered and discretionary powers to subjectively classify information as abusive or defamatory.

2. WHETHER OR NOT THE ACT IS VOILATIVE OF ARTICLE 19(1)(a) & ARTICLE 19(1)(c). Restriction on the grounds of defamation is not reasonable, as the Government cannot impose prior restraint on the publication of defamatory material. Restriction on the grounds of Decency/Morality is not reasonable, as the test of obscenity is subjective.

MEMORIAL for PETITONER

-Summary of Arguments-

3. WHETHER OR NOT THE ACT IS VIOLATIVE OF ARTICLE 21. Personal liberty under Article 21 cannot be restricted either by legislation or by law except by satisfying Article 14 and 19. Hence, a law prescribing a procedure for depriving a person of his personal liberty, it must prescribe a procedure which is reasonable, fair and just.

MEMORIAL for PETITONER

-Arguments Advanced-

ARGUMENTS ADVANCED

1. WHETHER OR NOT THE DHANYASTHAN SOCIAL NETWORKING SAFETY ACT IS VOILATIVE OF ARTICLE 14 OF THE CONSTITUTION. All are equal before the law entitled without any discrimination to equal protection of the law1. It is most humbly submitted that Dhanyasthan Social Networking Safety Act, 2011 is violative of Article 14 of the Constitution. Article 14 declares that, the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India. The entire problem under the equal protection clause is one of the classification or of drawing lines2. Classification means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily3.The doctrine of classification is merely a judicial formula for determining whether the legislature or the executive action in question is arbitrary. differences pertinent to the subject in respect to which classification is made5. ___________________________
Article 7, United Nations Declaration of Human Rights, 1948
2

classification is reasonable when it is not an arbitrary selection4 but rests on

State of W.B. v. Anwar Ali, (1952) SCR 284 (320) Sadasiv v. State of Orissa, (1956) SCR 794 (806) Gulf Ry. v. Ellis, (1897) 163 U.S. 150 Missouri Ry.v. Humes,(1885) 115 U.S. 512

MEMORIAL for PETITONER

-Arguments Advanced-

In order to pass the test of permissible classification two conditions must be fulfilled namely: 1) Classification must be found on an intelligible differentia6 which distinguishes persons or things that are grouped together from others left out of the group7. 2) The differentia must have a rational relation to the object sought to be achieved, by the statute in question8. What is necessary is that, there must be a nexus between the basis of classification and the object of the Act under consideration.9 The Government has made classification on the basis of age in the Dhanyasthan Social networking Safety Act, 2011, which Government is entitled to. But, the classification is not reasonable. 1.1 No provision to prohibit minors from transmitting or viewing sexually offensive material to consenting adults. The Act provides that no person shall transmit a sexually offensive communication through a social networking website to or about a person located in Dhanyasthan who is less than 18 years of age.
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Riaz Ahmed v. Competent Authority, AIR 1954 J&K 51 State of H.P. v. Padam Devi, AIR 2002 SC 2477 Budhan v. State of Bihar, (1955) 1 SCR 1045 (1049) Shujat Ali v. Union of India, AIR 1974 SC 1631 (para. 25)

MEMORIAL for PETITONER

-Arguments Advanced-

But the Act fails to provide any provision which would prohibit the minors from transmitting or viewing sexually offensive material to consenting adults. Hence, the provision has no nexus with the object the Act seeks to achieve, which is to control the misuse of the social networking websites like communication of obscene material. The reasonable classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained and the classification cannot be made arbitrarily and without any substantial basis.10 The reasonableness is to judged with reference to the object of the legislation.11 If either of the two tests of intelligible differentia is not satisfied, the statute must be struck down as violative of article 14.12

1.2 The classification on the basis of location is not reasonable. The classification on the basis of location is not reasonable. The act prohibits the transmission of abusive communication or sexually offensive communication to the persons or about the persons located in Dhanyasthan.
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10

Chiranjit Lal v. Union of India, (1950) SCR 869 Garg v. Union of India, AIR 1981 SC 2138. Kangshari v. State of West Bengal, AIR 1960 SC 457.

11

12

MEMORIAL for PETITONER

-Arguments Advanced-

However, no provision to prohibit the transmission of sexually offensive communication, abusive communication or defamatory communication by the persons located in Dhanyasthan to persons located in any other place is provided in the Act. The Act only provides a safety net to the persons located in Dhanyasthan, by protecting them. But, the Act does not provide with the punitive measures in case the persons located in Dhanyasthan themselves commit breach of provisions as provided in the Act. There is no intelligible differentia, as the Act classifies the persons on the basis of location and does not provide any punitive provision, in case if, persons located in Dhanyasthan commit any sexually offensive or abusive communication. The expression intelligible differentia means difference capable of being understood. A factor, that distinguishes an indifferent state or class from another which is capable of being understood.13 Moreover, there is no nexus with the object sought to be achieved, which is to control the misuse of the social networking website. Where the statute shows that the legislature made no attempt to make a classification, but singled out a particular individual or class without having difference peculiar to that individual or class, the presumption of reasonableness in favour of legislature is instantly rebutted & the person challenging the statute cannot be called upon to adduce further or external evidence to discharge his onus.14 In International Airport Authority case, the Court held that the principle of reasonableness is an essential element of equality and pervades Article 14 like a brooding omnipresence.15

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13

Ramantha Iyer, Advanced Law Lexicon, 3rd Ed. (2005). State of Bombay v. Balsara, (1951) SCR 682 (708). AIR1979 SC 1628

14

15

MEMORIAL for PETITONER

-Arguments Advanced1.3 The Government has unfettered and discretionary powers to subjectively classify information as abusive or defamatory. The Government has unfettered and discretionary powers to subjectively classify information as abusive or as defamatory. In case of contextual statements, it is upon the subjective satisfaction of the Government to arbitrarily classify information as abusive or defamatory. For, where the selection is left to the absolute and unfettered discretion of the administrative authority, with nothing to guide or control its action, the difference in treatment rests solely on arbitrary selection by that authority.16 The Act also does not define abusive communication but only provides for those actions which constitute abusive communication, like threat, intimidation and harassment. So, the Government, without any definitive guide can classify information, as it thinks fit. A law which authorizes the Executive to select17 cases for special treatment or grant exemption from its operation without providing any definite guide18 or standard for such differentiation is discriminatory. A legislation which does not contain any provision which is directly discriminatory may yet offend against the guarantee of equal protection if it confers upon the executive or administrative authority an unguided discretionary power in matter of application of law.19 The exercise of discretion must be transparent, just, fair and non-arbitrary in accordance with set norms.20 _____________________________
16

Satwant v. A.P.O., AIR 1967 SC 1836, 1845. Saghir Ahmed v. State of UP, (1955) 1 SCR 707. Meenakshi v. Vishwanatha, AIR 1955 SC 13. Suraj Mal v. I.T.I Commr., AIR 1954 SC 545. Common Cause v. Union of India, (1996) 6 SCC 530.

17

18

19

20

MEMORIAL for PETITONER

-Arguments Advanced-

2. WHETHER OR NOT THE ACT IS VOILATIVE OF ARTICLE 19(1)(a) & ARTICLE 19(1)(c). It is most humbly submitted that Article 19(1)(a) and Article 19(1)(c) of the petitioner has been violated. Everyone has a right to freedom of opinion and expression: This right includes freedom to include freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of fronteriers.21 Article 19(1)(a) says that all citizens shall have the right to freedom of speech and expression. But, this right is subject to limitations, imposed under Article 19(2) which empowers the State to put reasonable restrictions. Expression includes the idea of publication.22 The freedom of speech and expression includes liberty to propagate not only ones views, but it also includes the right to propagate the views of other people. 23 The fundamental rights declared by various sub-clauses of cl. 1, cannot be curtailed on any ground outside relevant provisions of cl. (2)-(6).24 The determination by the legislature of what constitutes a reasonable restriction is not final or conclusive; it is subject to the supervision of the Court.25 __________________________
21

Cf. Universal Declarations of Human Rights, Article 19, (December12, 1948). Romesh Thappar v. State of Madras, AIR 1950 SC 124. Srinivasa v. State of Madras, AIR 1931 MAD. 70. Ghosh v. Joseph, AIR 1963 SC 812, (814). Chintaman Rao v. Madhya Pradesh, (1950) SCR 759.

22

23

25

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MEMORIAL for PETITONER

-Arguments Advanced-

2.1 Restriction on the grounds of defamation is not reasonable. Defamation has been defined under Section 499 of Indian Penal Code, 1872. Whoever, by words either spoken or intended to be read or by sign or visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, to defame that person. Article 19(2)(f) empowers the legislature to restrict the freedom of speech and expression of a citizen on the grounds of defamation. However, the restriction, in order to be valid, must be a reasonable one. In Chintamanrao v. MP27, the meaning of reasonable restriction was explained as the limitation imposed on a person in the enjoyment of a right should not be arbitrary or of an excessive nature, beyond what is required in the interest of public. The word reasonable implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom and social control, it must be held to be wanting in that quality. The expression reasonable restriction seeks to strike a balance between the freedom guaranteed by any once of the sub-clauses of cl. (1) of A-19 &social control permitted of the cl. (2) to (6).28

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27

(1950) SCR 759, 763 Pothumma v. State of Kerala, AIR 1978 SC 771.

28

MEMORIAL for PETITONER

-Arguments Advanced-

The test of reasonableness wherever prescribed should be applied to each individual statue and no abstract standard or general pattern of reasonableness can be laid down as applied to all cases. The nature of right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the time should all enter into judicial verdict. In order to be reasonable, the restriction must have a reasonable relation to the object which the legislation seeks to achieve and must not go in excess of that object.29 2.2 Government cannot impose prior restraint on the publication of defamatory material. It is most humbly submitted that the Government cannot impose prior restraint on the publication of defamatory material and the restriction on the grounds of prior restraint on the publication of defamatory material is not reasonable. In the Auto Shankar Case, it was held that the State or its officials have no authority in law to impose prior restraint on the publication of defamatory matter. The public officials can take action only after the publication if it is found to be false.30 No imputation is said to harm a persons reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character, of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.31 ___________________________
29

Supra R. Rajgopala v. State of T.N., (1994) 6 SCC 632. The Indian Penal Code, 1860, 499.

30

31

MEMORIAL for PETITONER

-Arguments Advanced-

2.3 Restriction on the grounds of Decency/Morality is not reasonable. In the words of Lord Potter, A man should not be put in peril on an ambiguity.32 The rule exhibits the preference for the liberty of the subject and is in case of ambiguity enables the Court to resolve the doubt in favour of the subject and against the Legislature which has failed to express itself clearly.33 Article 19(2)(d) lays down Decency /Morality as a ground for restriction to the freedom of speech and expression. Obscene means offensive to modesty or decency, lewd, filthy, and repulsive.
34

The word has not been defined under the penal laws, but has been interpreted

and defined by the Courts, The Indian Penal Code has defined only such acts as obscene that cause annoyance to others. The word annoyance is the standard applied in the section to test of obscenity. Decency/ Morality has been engrafted under article 19(2) for the purpose of restricting speeches and publications which tend to undermine public morals.35 The word morality too has not been defined. The concept of morality differs from place to place and time to time.
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32

Howell v. Falmouth Boat Constructions, (1951) 2 All. ER 278. Dilip Kumar v. State of MP, AIR 1976 SC 133. Virendra v. State of Punjab, AIR 1957 SC 896 Ranjit v. State of Maharashtra, AIR 1965 SC 881 (885)

33

34

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MEMORIAL for PETITONER

-Arguments Advanced-

2.4 The test of obscenity is subjective. The Supreme Court in the case of Ranjit Udheshi v. State Of Maharashtra adopted the Hicklin Test36of obscenity where the tendency of the matter charged with obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands the publication of this sort may fall. The test of obscenity is thus a question of degree and varies with the moral standard of community in question37. The test of obscenity is subjective as it gives ample room to the legislature to subjectively consider what it considers as depraving and corrupting the minds of people open to immoral influences which is dangerous to any democracy. In SriRam v. Emperor38, it was held that even a nude body, whether male or female, cannot be regarded as an object of obscenity without something more. The something more is the facial expression or the pose in which it is photographed. Even though something more has been defined it leaves the interpretation of it to the subjective tastes of the viewer and does not base it on an objective criteria. The Supreme Court has also held in S.Rangarajan v. P. Jagjivanram39 that the restrictions under Article 19(2) must be satisfied on the anvil of necessity and not the quicksand of convenience or expediency. ______________________________
36
37

Rex. v. Hicklin, (1868) 3 QB 360

Ranjit v. State of Maharashtra, AIR 1965 SC 881,885 AIR 1940 Cal. 290. (1989) 2 SCC 574.

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MEMORIAL for PETITONER

-Arguments Advanced-

3. WHETHER OR NOT THE ACT IS VOILATIVE OF ARTICLE 19(1)(c). Article 19(1)(c) of the Constitution of India guarantees to all its citizens the right to form associations and unions. Two vital elements of an association are members and a common purpose for which they associate. Associate implies joining with another or others as comparison partners etc.40 An association, according to Cole, is, Any group of persons pursuing a common purpose or system or aggregation of purposes by a course of cooperative action extending beyond a single act, and for this purpose agreeing together upon certain methods of procedure and laying down, in how-ever rudimentary form, rule of common action. The freedom to form an association should be for any lawful purpose.41 A restriction which has no proximate relationship with grounds mentioned in cl. 19(4) is invalid, not being protected under clause 4. e.g. Where the law penalizes mere participation of a meeting of a party,42 or an association having for its object bringing about a change in the government without resort to force or prohibits an association from publishing a periodical without previous permission of Government. There cannot be any restriction of such a right which consists in a previous restraint on such exercise and which is in the nature of an administrative censorship.43 ______________________
40

Ramashankar Kaushik v. Election Commission of India, AIR 1974 SC 445. All India Bank Employees Association v. N.I. Tribunal, AIR 1962 SC 171 (179). Krishna v. State, AIR 1953 TC 174. Ramkrishnaih v. D.T. Board, AIR 1952 Mad. 253.

41

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MEMORIAL for PETITONER

-Arguments Advanced-

4. Personal Liberty under Article 21 is violated. Liberty is a very comprehensive term and let alone it would include not merely freedom to move about unrestricted but such liberty of conduct, choice and action as the law gives and protects.44 It is most humbly stated that Article 21 of the petitioner is violated. Article 21 states that No person shall be deprived of his life or personal liberty except according to the procedure established by law The object of Article 21 is to prevent encroachment upon personal liberty by Executive save in accordance with law45 and in conformation with the provisions thereof.46 While examining the width, scope and content of the expression personal liberty in Article 21, it was held that the term is used in the said article in the compendious term to include within itself all varieties of rights which goes to make up the personal liberties of man other than those dealt with several clauses of Article 19 (1). While Article 19(1) deals with particular species or attributes of that freedom, personal liberty in Article 21 takes on and comprises the residue.47 ________________________
44

Allegryer v. Louisisana 1897 165 US 578. G.Gurunadha Reddy v. A.P. Road Transport Corporation, AIR 1999AP 179. Gopalan v. State of Madras, (1950) SCR 88. Kharak Singh v State of U.P.AIR 1963 SC 1295

45

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MEMORIAL for PETITONER

-Arguments Advanced-

Any law interfering with personal liberty of a person must satisfy the triple test 1) It must prescribe the procedure. 2) The procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation. 3) It must also be liable to tested with references with Article 14 As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorising interference with the personal liberty, must also be right, just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14, it would be no procedure at all within the meaning of Article 21.48 The trend in the Supreme Court is that when constitutionality is challenged as arbitrary or unreasonable, the Court has to test its validity on the anvil of Article 14, Article 19 and Article 21 read together.49 In the present case, Article 14 is violated as no provision to prohibit minors from transmitting or viewing sexually offensive material to consenting adults exists. Hence, the classification on the basis of age is not reasonable. The classification on the basis of location is not reasonable, as no provision exists to prohibit the transmission of sexually offensive, abusive or defamatory communication by the persons located in Dhanyasthan to persons located in any other place. The Government has unfettered and discretionary powers to subjectively classify information as abusive or defamatory.
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48

District Registrar and Collector v. Canara Bank 2005 1 SCC496 D.T.C. v. Mazdoor Union, AIR 1991 SC 101 258, 259.

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MEMORIAL for PETITONER

-Arguments Advanced-

Article 19 is violated as the restriction on the ground of defamation is not reasonable, as the Government cannot impose prior restraint on the publication of defamatory material. Restriction on the grounds of Decency/Morality is not reasonable, as the test of obscenity is subjective. The main differences in the concept of personal liberty between A.K. Gopalan and Maneka Gandhi is that the new needs of the person for liberty in the different spheres of life can now be claimed as a part of personal liberty under Article 21 and these personal liberties cannot be restricted by legislation or by law except satisfying Article 14 and Article 19.50

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50

Khudiram Das v. State of W.B., AIR 1975 SC 550

MEMORIAL for PETITONER