TEAM CODE: TC-04

6th INTRA MOOT COURT COMPETITION 2021

UNIVERSITY OF MUMBAI LAW ACADEMY
16TH -18TH SEPTEMBER, 2021.

BEFORE THE HON’BLE SUPREME COURT OF INDICA

JURISDICTION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICA, 1950

YULU & OTT CONSORTIUM ... PETITIONER

Versus
UNION OF INDICA ... RESPONDENT

ON SUBMISSION TO THE REGISTRY OF THE COURT OF THE HON’BLE

SUPREME COURT OF INDICA

MEMORIAL FOR THE PETITIONER – YULU & OTT CONSORTIUM

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6TH INTRA MOOT COURT COMPETITION 2021

UNIVERSITY OF MUMBAI LAW ACADEMY

TABLE OF CONTENTS

1. TABLE OF CONTENTS...............................................................................1

2. LIST OF ABBREVIATIONS.....................................................................4-7

3. INDEX OF AUTHORITIES....................................................................8-10

4. STATEMENT OF JURISDICTION......................................................11-
12

5. STATEMENT OF FACTS......................................................................13-
14

6. ISSUES RAISED...........................................................................................15

7. SUMMARY OF ARGUMENTS..................................................................16

8. ARGUMENTS ADVANCED.................................................................17-22
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ISSUE 1: WHETHER THE PIL FILED IS MAINTAINABLE BEFORE

THE HON’BLE SUPREME COURT OF INDICA?

I. PIL INVOLVES THE QUESTION OF PUBLIC INTEREST: -

II. VIOLATION OF FUNDAMENTAL RIGHTS: -

ISSUE 2: WHETHER THE ACT OF REGULATING CONTENT, AS

GIVEN UNDER SEC 3 OF THE INFORMATION TECHNOLOGY
(INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS
CODE) RULES,2021 IS CONSTITUTIONALLY VALID?
I. VIOLATION OF ARTICLE 14 AND 19 (1) (a)
II. IN CONSONANCE WITH SECTION 79 OF IT ACT, 2000

ISSUE 3: CAN YULU BE HELD LIABLE UNDER SECTION 153(A)

AND 295(A) OF INDICAN PENAL CODE?
I. LACK OF WRONGFUL INTENTION AND WRONGFUL MOTIVE
II. UNCONDITIONAL AND GENUINE APOLOGIES BY THE PETITIONERS
III. RIGHT TO FREEDOM OF SPEECH AND EXPRESSION
IV. LACK OF OUTRAGING RELIGIOUS FEELINGS DELIBERATELY AND
MALICIOUSLY

9. PRAYER...................................................................................................23
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LIST OF ABBREVIATIONS

& And

¶ Paragraph

§ Section

AIR All India Report

Art Article

Anr Another

Cl Clause

Const. Constitution

i.e. That is

FIR First Information Report

Hon’ble Honorable

Sec. Section
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SCC Supreme Court Cases

V. Versus

Wp Writ Petition

Ors. Others

PIL Public interest litigation

SC Supreme Court

UoI Union of India

Viz Namely; That is to Say; Which is

WA Writ Appeal

Pg. Page Number

ed. Editions

Eds Editors

Etc. Et cetera
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e.g. Example

LJ Law Journal

LR Law Report

ILR Indian Law Report

IEA Indian Evidence Act

WP Writ Appeal

PG Page Number

Ed. Edition

thr. Through

Id. Ibid

Ltd. Limited

Mh Maharashtra

MLJ. Maharashtra Law Journal

 7

UP Uttar Pradesh

C.O.I Constitution of India

Pvt. Private

UJ The Unreported Judgement

Sec Section

CMP Criminal Miscellaneous Petition

Inc Incorporated

Cr. L.J Criminal Law Journal

No. Numbers

Del. Delhi

Const. Constitution

Crl.MC.A Criminal Miscellaneous

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INDEX OF AUTHORITIES

I. CASES REFERRED (INDIAN)

Sr. No. Case

1
Aparna Purohit Vs. State of U.P

2
State Vs. Gulshan Rai

3
Amish Devgan Vs. Union of India & Ors.

4
Bijumon Vs. State of Kerala

5
Pawan Kamalakar Deshpande Vs. State of Maharashtra

6
Anand Chintamani Dighe & Anr. Vs. State of Maharashtra & Ors.

7
Chinna Annamalai Vs. The state of Tamil Nadu

8 State of West Bengal Vs. Anwar Ali Sarkar

9 E.P. Royappa Vs. State of Tamil Naidu

10 Charanjeet lal Choudhary Vs. Union of India

11 Mardia chemicals ltd Vs. Union of India

12 Maneka Gandhi Vs. Union of India

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13 State of AP Vs. McDowell & co

14 Rajbala Vs. State of Haryana

II. CONSTITUTION REFERRED

- Constitution of India,1950

III. Books Referred

- Dr. D.D. Basu, Commentary on Constitution of India, (8th Ed., Lexis Nexis, 2010).
H.M. Seervai, Constitutional Law of India, (4th Ed., Universal Law Publication,2015) MP
Jain, Indian Constitutional Law, ( 7th Ed. , Lexis Nexis, 2016)

- Dr. D.D Basu, Constitutional Remedies, and Writs, (1st Ed., Kamal Law House, 1994 P.M.
Bakshi, Pubic Interest Litigations, (2nd Ed., Ashoka Law House, 1999)

- V.G. Ramachandran’s, Law of Writs, (5th Ed., Eastern Book Company, 1993)

- P J Fitzgerald, Salmond on Jurisprudence (12th Ed., Sweet & Maxwell, 2018) Halsbury’s
Laws of India (2nd ed., LexisNexis, 2016).

- RA Nelson’s, Indian Penal Code (10th Ed., LexisNexis, 2008)

- Shamshul Huda, Principles of Law of Crime in British India 189 (May 2011)

- Michael Jafferson, Criminal Law 95 (7th ed. 2006).

IV. DICTIONARIES REFERRED

- Aiyar, P Ramanatha Iyer, The Law Lexicon, (2nd Ed., 2006)

- Garner, Black’s Law Dictionary, (9th Ed., Thomas & West, U.S.A 1990).
- Susan Ellis, Webster’s New World Law Dictionary, (1st Ed., Wiley Publishing, Inc., 2006)
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V. WEB SOURCES

www.manupatrafast.in
www.scconline.com
www.barandbench.com
www.legalserviceindia.com
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STATEMENT OF JURISDICTION

The Petitioners have approached the Supreme Court of Indica under Article 32
of the Constitution of India,1950.

(1) Article 32 confers the right to remedies for the enforcement of the Fundamental Rights of
an aggrieved citizen and is enshrined under Part III of the constitution. The right to
constitutional remedies was considered the heart and soul of the constitution.

(2) Article 32 makes the Supreme court a protector and guarantor of fundamental rights.
Article 32(1) states that if any fundamental rights guaranteed under Part III of the
Constitution are violated by the government, then the person has the right to move to the
Supreme Court for the enforcement of his fundamental rights. Article 32(2) gives power to
the Supreme court to issue writs, orders, or directions. It states that the Supreme court can
issue 5 types of writs habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for
the enforcement of any fundamental rights given under Part III of the constitution. The Power
to issue writs is the original jurisdiction of the court. Article 32(3) states that parliament by
law can empower any of the courts within the local jurisdiction of India to issue writs, orders
or directions guaranteed under Article 32(2). Article 32(4) states that rights given under
Article 32 cannot be suspended except such suspension provided by the constitution. The
scope of Article 32 is not as wide enough as Article 226. Article 32 can be invoked only to
enforce fundamental rights under Part III. one cannot approach the Supreme court for
enforcement for other rights except fundamental rights. Power to issue writs under Article 32
is mandatory for the Supreme court because Article 32 is itself a fundamental Right and
Supreme Court is the protector of these Fundamental Rights. The writs are strong instruments
issued against the government and government officials.

(3) The Right to move the Supreme Court by appropriate proceedings for the enforcement of
the Fundamental Rights is Guaranteed. The Supreme Court shall have the power to issue
directions or orders or writs for the enforcement of any of the fundamental rights. The writs
issued may include habeas corpus, mandamus, prohibition, certiorari, and quo-warranto.
Parliament can empower any other court to issue directions, orders, and writs of all kinds.
However, this can be done without prejudice to the above powers conferred on the supreme
court. Any other court here does include high courts because Article 226 has already
conferred these powers on the high courts. The right to move the Supreme court shall not be
suspended except as otherwise provided for by the Constitution. Thus, the Constitution
provides that the President can suspend the right to move any court for the enforcement of the
fundamental right during a national emergency (Art.359).

(4) The power conferred on a Supreme Court by this article states that the Supreme Court
“shall have the power to issue directions or orders or writs, including writs in the nature of
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habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part”.
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STATEMENT OF FACTS

BACKGROUND:

Indica, a Southern Asian country is a home to several indigenous faiths and tribal religions
which have survived the influence of major religions for centuries and are holding the ground
firmly. However, due to differences in the culture of Sindhuism and Kushlims, there have
been several conflicts in the past that have led to massive riots and mass violence across
Indica. Due to the outbreak of COVID-19, all the cinema halls and amusement centers such
as parks, auditoriums, theatres, sports stadiums, etc. in every state of Indica were shut down
to prevent the spread of the virus. The citizens of Indica in search of entertainment were not
left with any other option but to watch movies and web series on Over-The-Top (OTT)
platforms. However, the publishing of certain content was objected to by sections of society,
for vulgarity, obscenity, nudity, etc.

INSTANT MATTER:

On January 1, 2021, Yulu (Petitioner-1) released multiple teasers for a web series on its
platform under the name “Chandak”. The web series received severe criticism and was
targeted for promoting Sindhuphobic content through the series and denigrating Sindhu Gods.
The trailer came under fire for showing a Kushlim man and a Sindhu woman kissing against
the backdrop of a temple. The background of the same scene also portrayed Sindhu saints in a
controversial manner. Furthermore, the scene showing actors in the attire of Sindhu Gods
drinking and smoking, the lead actor throwing away his Kada in the sea was met with severe
backlash. In several areas of the country, citizens took to the street to protest against the
content being showcased on such OCCPs platforms. The authorities called for the disbanding
of protests which in turn caused widespread discontentment amongst the citizens which led to
violence and destruction of public property and soon communal riots spread across Indica.
The makers issued an unconditional apology and also removed parts of the series that were
said to be objectionable however went ahead with the release of “Chandak” on February 1,
2021, which stirred up controversy. Dissatisfied by the steps taken by Yulu, multiple FIRs
were filed under Section 153A and 295A of the Indican Penal Code. Subsequent to the above
events, the Ministry of Electronics & Information Technology (―MEITY gave its assent to
the “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules
2021” which came into effect from February 5, 2021. Section 3 (reproduced in ANNEXURE-
2) of the aforementioned rules, lays down a due-diligence clause which calls for censorship
of certain material that may be deemed to be inflammatory, offensive, against public
morality, etc.
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WRIT PETITIONS BEFORE THE HON’BLE SUPREME COURT:

The OTT Consortium, with Yulu at the helm, challenged Section 3 of the Rules, in a Public
Interest Litigation (PIL) under Article 32 of the Constitution of Indica, on the grounds that
the impugned rules were worded in an ambiguous and vague manner and was being used as a
tool by the Ruling Party to censor and restrain the Right to Freedom of Speech and
Expression. The OTT platforms have also mentioned that the constitutional conventions are
deviating towards a liberal establishment, with Article 19 being principally active; these
restrictions are being seen as extraordinary and unreasonable constraints on their business and
trade. The major question of law by the OTT Consortium is that whether the broadcasting of
content on such digital streaming platforms exceeds the reasonable restrictions under Article
19 further how much interference can be provided by the Government of Indica in restraint of
free trade. Yulu had also filed a petition challenging the multiple FIRs under Section 153A
and 295A and claimed that the corporation cannot be held liable for the communal riots that
took place in January 2021. The Respondents have alleged that Yulu played a pivotal role in
instigating the riots all across Indica.

CLUBBING OF PETITIONS:

The above-mentioned petitions are clubbed together and are posted for a hearing before the
Supreme Court.
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ISSUES RAISED

ISSUE I:

WHETHER THE PIL FILED IS MAINTAINABLE BEFORE THE HON’BLE SUPREME

COURT OF INDICA?

ISSUE II:

WHETHER THE ACT OF REGULATING CONTENT, AS GIVEN UNDER SEC 3 OF

THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL
MEDIA ETHICS CODE) RULES,2021 IS CONSTITUTIONALLY VALID?

ISSUE III:

CAN YULU BE HELD LIABLE UNDER SECTION 153(A) AND 295(A) OF INDICAN
PENAL CODE?
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SUMMARY OF ARGUMENTS

ISSUE I:

WHETHER THE PIL FILED IS MAINTAINABLE BEFORE THE HON’BLE SUPREME

COURT OF INDICA?

It is humbly submitted before this Hon’ble Court that the Public Interest Litigation filed by
Yulu (Petitioner-1) and the OTT consortium (Petitioner-2) is maintainable under Article 32 of
the Constitution of Indica as the Jurisdiction of the Supreme Court under the act extends to
the violation of the rights alleged in the present matter.

ISSUE II:

WHETHER THE ACT OF REGULATING CONTENT, AS GIVEN UNDER SEC 3 OF

THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL
MEDIA ETHICS CODE) RULES,2021 IS CONSTITUTIONALLY VALID?

It is humbly contended before the Hon’ble Supreme Court that the act of regulating content,
as given under Section 3 of the Information Technology (Intermediary Guidelines and Digital
Media Ethics Code) Rules, 2021, is constitutionally invalid as it is a violation of fundamental
rights guaranteed under Article 19(1)(a) and Article 14. It is not an exception under Article
19(2) and 19(6) of the Indican Constitution. The act is also in consonance with section 79(2)
or the Information Technology Act, 2000.

ISSUE III:

CAN YULU BE HELD LIABLE UNDER SECTION 153(A) AND 295(A) OF INDICAN
PENAL CODE?

It is humbly submitted before this Hon’ble Court that the Yulu (Petitioner-1) cannot be held
liable under Section 153(A) and 295(A) of the Indican Penal Code because the Liability
Covers under the Freedom of Speech and Expression which is a Fundamental Right of the
Indican Constitution under Article 19(1)(a) and there was also the lack of intention and
Wrongful motive which is considered as one of the most ingredients of a crime.
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ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE PIL FILED IS MAINTAINABLE BEFORE

THE HON’BLE SUPREME COURT OF INDICA?
1.1 The Public Interest Litigation (hereafter, ‘PIL’) filed by the Petitioners Yulu and OTT
consortium before the Hon’ble Supreme Court challenging Section 3 of the Information
Technology (Intermediary Guidelines and Digital media Ethics Code) Rules 2021 on the
grounds that it refrains the right of freedom of speech and expression and places unreasonable
constraints on trade and business.1 It is humbly contented that the PIL filed by the petitioners
under Article 32 of the Constitution of Indica is maintainable firstly, the PIL involves the
question of Public Interest [I] and, secondly that there has been a violation of Fundamental
Rights[II].

I.PIL INVOLVES THE QUESTION OF PUBLIC INTEREST: -

1.2 Lexically the expression 'PIL' means a legal action initiated in a Court of Law for the
enforcement of public interest or general interest in which the public or a class of community
having pecuniary interest or some interest by which their legal rights or liabilities are
affected.2

1.3 Any member of the public or social action group acting bonafide can invoke the Writ
Jurisdiction seeking redressal against violation of legal or constitutional rights.3

1.4 It is humbly submitted that the PIL has been filed for the interest of the general public as
the rules given in Section 3 of the Information technology (Intermediary guidelines and
guided media ethics code) Rules 2021 defies the liberal establishment mentioned in the
Constitutional conventions particularly Article 19. These restrictions not only result in
violation of freedom of speech and expression and constraints business and trade of OTT
platforms but also limit entertainment options and freedom of individuals who are already
going through health and mental stress due to the global pandemic.

1.5 Therefore, through this PIL, the petitioners have brought forth before this Hon’ble Court,
a crucial concern that needs to be addressed and decided upon for the best interest of the
general public.

1
15 of Moot Proposition.
2
Janata Dal v. H.S. Chowdhary and Ors., AIR 1993 SC 892.
3
S.P. Gupta v. Union of India and Ors., AIR 1982 SC 149.
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II. VIOLATION OF FUNDAMENTAL RIGHTS: -

1.6 The rules given in Section 3 of the Information technology (Intermediary guidelines and
guided media ethics code) Rules 2021 violates the fundamental rights guaranteed under part
III of the Indican Constitution, namely (II.1) Article 19 (1) (a) Freedom of speech and
expression and (II.2) Article 19 (1) (g) to practice any profession or to carry on any
occupation, trade or business.

II.1 VIOLATION OF ARTICLE 19 (1) (a)

1.7 Article 19(1)(a) of the Constitution of Indica guarantees the right to freedom of speech
and expression to all Indican citizens. The right to propagate one’s ideas is a part of the right
to freedom of expression, and every citizen has the right to publish, disseminate and circulate
their ideas.4

1.8 Content from OTT platforms brings truth of the society, deals with socio economic
issues, provides regional varieties.

1.9 Therefore, it is humbly submitted that the rules violate the Fundamental Right to Freedom
of Speech and Expression, guaranteed under Article 19 of the Constitution.

II.2 VIOLATION OF ARTICLE 19 (1) (g)

1.10 Article 19 (1) (g) of the Constitution of Indica guarantees the right to freedom to
practice any profession or to carry on any occupation, trade or business to all citizens. The
Constitution gives this right to all citizen of India and also includes right to livelihood.

1.11 There are large number of artists lack the capital which is required to portray their
creation through cinema. OTT platforms comes as a great breakthrough for them.

1.12 The rules are being seen as extraordinary and unreasonable constraints on their business
and trade.5

1.14 Therefore, it is humbly submitted that the rules violate the Fundamental Right to
practise any profession, or to carry on any occupation, trade or business, guaranteed under
Article 19 of the Constitution.

4
Bhushan v. State of Delhi, (1950) 1 SCR 605;
Sakal Papers (P) Ltd v. Union of India, 1962 SCR (3) 842.
5
15 Moot Proposition
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ISSUE II: WHETHER THE ACT OF REGULATING CONTENT, AS

GIVEN UNDER SEC 3 OF THE INFORMATION TECHNOLOGY
(INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS
CODE) RULES,2021 IS CONSTITUTIONALLY VALID?
2.1 It is humbly contended before the Hon’ble Supreme Court that the act of regulating
content, as given under Section 3 of the Information Technology (Intermediary Guidelines
and Digital Media Ethics Code) Rules, 2021, is constitutionally valid.

2.2 The above-mentioned section of the act is not in consonance with Article 19 (1)(a) of the
Indican Constitution.
(1) All citizens shall have the right —

(a) to freedom of speech and expression;

There was no deliberate and malevolent purpose in the program to offend any class of
persons' religious views. The series is a work of fiction that has no bearing on anyone's
religious views. The fundamental right under Art 19(1) is immensely violated by the activities
indicated above. Web series segments should be seen as a whole, with only a few parts being
viewed separately is evasive. It's a political thriller that depicts the dark side of a power-
hungry politician.

2.3 Does not fall under Article 19(2) and Article 19(6) of the Indican constitution.

Article 19 (2)

Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty
and integrity of India,] the security of the State, friendly relations with foreign States, public
order, decency or morality, or in relation to contempt of court, defamation or incitement to an
offense.

Article 19 (6)

Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so
far as it imposes, or prevent the State from making any law imposing, in the interests of the
general public, reasonable restrictions on the exercise of the right conferred by the said sub-
clause, and, in particular, nothing in the said sub-clause shall affect the operation of any
existing law in so far as it relates to, or prevent the State from making any law relating to, —

(i) the professional or technical qualifications necessary for practicing any profession or
carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of
any trade, business, industry, or service, whether to the exclusion, complete or partial, of
citizens or otherwise.
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In the judgment in the case of Bobby Art International and Others (supra), the Apex Court
has considered whether the certification of film containing scenes against decency or morality
can be permitted. It has been held that the test is that scenes should advance the message the
film intended to convey.6

2.4 Implementing the act at the helm of Yulu is a clear violation of Art 14 Doctrine of
Intelligible Differentia.

Art 14 states that State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.

The reasonable categorization test has been applied in several situations to determine whether
legislation violates Article 14.

The conventional notion of equality, i.e., reasonable categorization, was questioned in the
Supreme Court in the case of E.P Royappa v. State of Tamil Nadu, and a new definition was
established in the ruling.7

2.5 Yulu act of allowing the releasing the web series falls under the Exception of Section 79
of the IT Act, 2000.

Section 79. Exemption from liability of intermediary in certain cases. – (1) Notwithstanding
anything contained in any law for the time being in force but subject to the provisions of sub-
sections (2) and (3), an intermediary shall not be liable for any third-party information, data,
or communication link made available or hosted by him.

(2) The provisions of sub-section (1) shall apply if–

(a) the function of the intermediary is limited to providing access to a communication system
over which information made available by third parties is transmitted or temporarily stored or
hosted; or

(b) the intermediary does not–

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act and
also observes such other guidelines as the Central Government may prescribe in this behalf.8

6
1994 SCC 1
7
1974 AIR 555, 1974 SCR (2) 348
8
SECTION 3 c of code of the INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND
DIGITAL MEDIA ETHICS CODE) RULES 2021 (MOOT PROPOSITION)
 21

ISSUE 3: CAN YULU BE HELD LIABLE UNDER SECTION 153(A)

AND 295(A) OF INDICAN PENAL CODE?
It is humbly submitted before this Hon’ble Court that Yulu (Petitioner-1) cannot be held
liable under section 153(A) and section 295 (A) of the Indican Penal Code because of the
following reasons:

3.1. Lack Of Wrongful Intention and Wrongful Motive

It is submitted that for the commission of an offence under section 153(A) intention to
commit such an act is an essential element. It was held by the Hon’ble Supreme Court in
Balwant Singh V. State of Punjab that the intention to cause disorder or incite people to
violence is the sine qua non (“Without which, not’’) of the offenCe under section 153A IPC
and the prosecution has to prove the existence of mens rea in order to succeed.9 It is clear
from the Balwant Singh Judgment that Intention is an essential element that was lacking in
the act of the petitioner.

3.2. Unconditional and genuine Apologies by the Petitioner

The petitioners have removed the controversial content from the series and also issued an
unconditional and genuine apology.10 This act of petitioners implies that they do not have any
intention to create controversy or promotion of enmity between any religion. Therefore, the
intention is an essential element to make a person liable under section 153 (A) of the Indica
Penal Code absent in the present situation, and hence it is again submitted to the Hon’ble
court that petitioners are not liable under section 153 (A) of the Indica Penal code.

3.3. Right To Freedom of Speech And Expression

Article 19(1)(a) which is given in Part III of the Indican Constitution implies that every
citizen has the right to express his views, opinions, beliefs, and convictions freely by word of
mouth, writing, printing, picturing, or in any other manner and it is also called the backbone
of the constitution. The piece of web series published by the Petitioner will come under this
ambit because it does not Deliberately and maliciously outraging the religious feelings and
was only a story that had no relation to any living entity which was mentioned in the
“Disclaimer” of the web series. The freedom of speech and express their own idea should not
be restricted on the basis of some persons rather than that it should be interpreted on the basis
of opinions of a broader and unbiased set of persons. Also, the piece of content in any manner
did not harm the plaintiff. The multiple FIRs lodged against the petitioner that says they
liable for the riots that took place in January 2021 should be held unlawful as it does not

9
Balwant Singh vs. State of Punjab, AIR 1995 SC 1785 29
10
13 Moot Proposition
 22

promote the Enmity between Groups and should be, therefore, interpreted as an intervention
with the fundamental rights of the Petitioner.

3.4 Lack of Outraging Religious Feelings Deliberately and Maliciously

It is humbly submitted before the Hon’ble Court that Yulu cannot be held liable under section
295 (A) of the Indican Penal Code, Section 295 (A) of IPC criminalises the deliberate and
malicious outraging of religious feelings of any class by insulting its religion or religious
belief. It covers all audio/visual media since it envisages that the offence may occur through
words, signs, visible representations, or otherwise to commit the act under section 295 A
deliberate intention is an essential element.

3.4(a) For an offense to be considered under section 295A, the accused must have the
deliberate and malicious intention of insulting the religious beliefs of a class of citizens. This
requirement is conjunctive, requiring that both the conditions be fulfilled. If for example, an
act is deliberate without being malicious, it will not be covered by section 295A.

3.4(b) Unwittingly or carelessly offered insults would not fall within section 295A. This
standard can be evinced from the supreme court’s decision in Ramji Lal Modi, where it has
stated Insults to religion offered unwittingly or carelessly or without any malicious intention
to outrage the religious feelings of that class do not come within the section. Section 295A
only punishes the aggravated form of insult to religion.

3.4(c) Further, in Narayan V. The State the Orissa High Court has given the standard of
Deliberate Intention.11 It is clear from the facts that the petitioners did not have any malicious
intention, they released the series on the OTT platform with the purpose of getting their right
to freedom of speech and expression properly exercised.

3.4(d) Therefore it is kindly submitted that the series was released on the OTT platform with
the purpose of entertainment. Hence it is submitted that the petitioner is not liable under
section295 A of the Indican Penal Code as he did not have any malicious intention

11
2018 (2) I L R - CUT
 23

PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUE RAISED, ARGUMENT,

ADVANCED AND AUTHORITIES CITED, IT IS HUMBLY PRAYED
THAT THIS HON’BLE COURT MAY BE PLEASED,

1. To Declare, The Public Interest Litigation Filed by The Petitioner Is

Maintainable

2. To Declare, The Petition Filed by the Petitioner Under Article 32 Of the

Indican Constitution Maintainable.

3. To Not Uphold, The Conviction of Yulu on The Charge of Promoting the

Enmity Between Different Groups of People on Grounds of Religion and
Outraging Religious Feelings with Deliberate and Malicious Intent.

4. To Declare, That There Should Not Be a Ban n Web Series.

And pass any other order, direction, or relief that it may deem fit in the best
interests of justice, fairness, equity, and good conscience.

All of which is humbly prayed by

COUNSEL FOR THE PETITIONER

Sd/-