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TEAM CODE – S28

IN THE SUPREME COURT OF CLANDESTINESIA

Under Art 136 of Constitution of Clandestinesia


[SLP (Civil) No. 2527/2016]
Future World Pvt. Ltd. ….…………………………………………………. APPELLANT
V.
Techdemons Clandestinesia Pvt. Ltd. …………………………..………….RESPONDENT
ALONG WITH
[SLP (Crl.) No. 432/2016] tagged with [SLP (Crl.) No. 451/2016, SLP (Crl.) No. 460/2016]
Bioscope, A Registered Society and Ors.....…................................................. APPELLANT
V.
State of Innovatia & Anr. …………………………………………………..…RESPONDENT
ALONG WITH
[SLP (Crl) No. 71/2017] tagged with [SLP (Crl.) No. 77/2017, SLP (Crl.) No. 83/2017, SLP
(Crl.) No. 91/2017, SLP (Crl.) No. 104/2017, and SLP (Crl.) No. 132 /2017]
Bioscope, A Registered Society and Ors………………………………….. APPELLANT
V.
State (The Khosad Island Administration)…………………………………....RESPONDENT
ALONG WITH

Under Art 32 of Constitution of Clandestinesia


[Writ Petition (Civil) No. 974/2016]
Khumantu Khosad..…..................................................................................PETITIONER
V.
Union of Clandestinesia & Ors.…………………………………………….RESPONDENT

Memorial on behalf of the appellants/ petitioner


TABLE OF CONTENT

CONTENTS
LIST OF ABBREVIATIONS .................................................................................................... 3

INDEX OF AUTHORITY ......................................................................................................... 5

STATEMENT OF JURISDICTION.......................................................................................... 9

STATEMENT OF FACTS ...................................................................................................... 10

ARGUMENTS PRESENTED ................................................................................................. 12

SUMMARY OF ARGUMENTS ............................................................................................. 13

ARGUMENTS ADVANCED .................................................................................................... i

1. Section 292 of the Clandestinesia Penal Code and Section 66 and 67A of the
Clandestinesia Information Technology Act, 2000 are vague and arbitrary. ......................... i

2. Khosad Tribe has a fundamental right guaranteed under Article 29 of the Constitution
of Clandestinesia. ................................................................................................................... v

3. Khosads does not have a ‘reputation’ as a community in as much that consequent


injury to such reputation can amount to the criminal offence of defamation and the same
being punishable. ............................................................................................................... viii

4. Khosads as a tribe cannot claim Publicity right ............................................................. xi

5. The Promoters, Dr. Jnanendra Mitra and Zubin Dubash are not vicariously liable for
the acts of TCPL, Bioscope and FWPL respectively for the offences punishable u/s 292
and 499 of CaPC and u/s 66, 67A of the Clandestinesia Information Technology Act, 2000.
xv

6. TCPL has breached the SHA by executing the Narration Agreement and liable to pay
damages for the same. ...................................................................................................... xviii

PRAYER .................................................................................................................................. 35

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS
1. AIR- All India Reporter
2. ALL ER - All England Reporter
3. CaPC- Clandestinesia
4. CJI- Chief Justice of India
5. Co.- Company
6. Corp- Corporation
7. Cri LJ- Criminal Law Journal
8. Del- Delhi
9. Dr.- Doctor
10. Edn- Edition
11. Hon’ble- Honorable
12. HL- House Of Lord
13. i.e- That is
14. Inc- Incorporated
15. In re- In matter of
16. IT- Information Technology
17. Jr.- Junior
18. Ltd- Limited
19. NA- Narration Agreement
20. NGO- Non Government Organization
21. Ors.- Others
22. QB- Queen’s Bench
23. r/w- Read with
24. SHA- Shareholder’s Agreement
25. SLP- Special Leave Petition
26. SC- Supreme Court
27. SCC- Supreme Court Cases
28. SCR- Supreme Court Report
29. UP- Uttar Pradesh
30. V- Versus
31. WB- West Bengal
32. ¶- Paragraph

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
LIST OF ABBREVIATIONS

33. &- And

4
MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
INDEX OF AUTHORITY

INDEX OF AUTHORITY

Cases

Ajay Gautam v UOI 2015 [147] DRJ 514................................................................................. xi


Aldo Maria Patroni & Anr V E C Kesavan And Ors AIR 1965 Ker 75. ................................ vi
Anath bandhu v Corporation of Calcutta AIR 1952 Cal 759. .................................................. xi
Aneeta Hada v Godfather Travel and Tours(P) Ltd (2012) 5 SCC 661. ................................. xv
Aneeta Hada v Godfather Travel and Tours(P) Ltd [2012] 5 SCC 661. ................................ xvi
Avais v Hartford Social Club Ltd, [1969] 1 ALL ER 130 (HL). ............................................... v
Aveek Sarkar & Anr v State Of West Bengal & Anr [2014] 4 SCC 257. ..................................ii
BB Rajvanshi v State of UP AIR 1988 SC 1089. ..................................................................... iii
Chandrakant Kalyadas Kakodar v The State of Maharashtra AIR 1970 SC 1390...................ii
Confederation of Ex-serviceman Association v Union of India [2006] 8 SCC 399. ................. v
Currie v Misa (1875) LR 10 ex 153........................................................................................ xix
Dr Surajmani Stella Kujur v Durgacharan Haansdah, ............................................................. v
Fazalaldin Mandal v Panchanan Das AIR [1957] Cal 92. .................................................... xix
Ghosh v Joseph, AIR 1963 SC 812. ......................................................................................... iv
Harakchand Ratanchand Banthia and Ors v Union of India and Ors AIR 1970 SC 1453. ...xii
HDFC securities Ltd and Ors v State of Maharashtra and anr [2017] 1 SCC 640. .............xvii
ICC Development (International) Ltd v Arvee Enterprises and Anr [2003] 26 PTC 245 (Del).
..................................................................................................................................................xii
Indu jain v NCT of Delhi [2012] 129 DRJ 256 (Del). ......................................................... xviii
Information Technology Act 2000, s 67. .................................................................................. iv
Iridium India Telecom Ltd V Motorola Inc [2011] 1 SCC 74. ............................................... xvi
Jagdev Singh Sidhanti v Pratap Singh Daulta [1964] SCR (6) 750. ........................................ vi
K A Abbas v Union Of India AIR 1971 SC 48. ........................................................................ii
K Jagannatha Shetty v Yogeshwar Dayal AIR 1992 SC 2206 ...............................................xvii
K M Mathew v Balan 1989 Cri LJ 1039. .................................................................................. ix
K M Mathew v State of Kerala [1992] 1 SCC 217 .................................................................xvii
K.Jagannatha Shetty v Yogeshwar Dayal AIR [1992] SC 2206 ......................................... xviii
Kameshwar v State of Bihar, AIR 1962 SC 1166. .................................................................... iv
Kartar Singh v State of Punjab, [1994] 3 SCC 569 ................................................................... v

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
INDEX OF AUTHORITY

Kathi Raning v State of Saurashtra, 1952 SCR 435. ................................................................. i


Kerala Education Bill, in re, AIR 1958 SC 956. ..................................................................v, vii
Lyngstrad v Annabas Products [1977] FSR 62. ..................................................................... xiv
Maksud Saiyed v State of Gujarat and Ors [2008] 5 SCC 668 .............................................xvii
Maksud Saiyed v State of Gujarat and Ors [2008] 5 SCC 668. ............................................xvii
Maneka Gandhi v Union of India AIR 1978 SC 597.......................................................... iii, iv
Meridian Global Funds Management Asia Limited v Securities Commission [1995] UKPC 5.
................................................................................................................................................. xvi
Midland Bank and trust co Ltd v Green [1979] 3 Al ER 28 ................................................... xix
MP Narayana Pillai And Ors v MP Chacko And Anr 1986 CriLJ 2002. .................................. x
MP NarayanaPillai And Ors v MP Chacko And Anr 1986 CriLJ 2002. ................................... x
Naraindas v State of Madhya Pradesh AIR 1974 SC 1232..................................................... iii
Netai Baig v State of WB [2000] SCC 8. ..................................................................................ii
Ozhair Hussain v Union of India, AIR 2003 Del 103. .............................................................. v
R RajaGopal v State of Tamil Nadu AIR 1995 SC 264. ......................................................... xiv
R v Braithwaite [1983] 1 WLR 383 ........................................................................................ xix
Raj Kapoor v Narendra Desai 1974 15 Guj LR 125. ................................................................ x
Ranjit d Udeshi v State of Maharashtra AIR1965 SC 881......................................................... i
RC Cooper v Union of India [1970] 1 SCC 248. ....................................................................... v
Regina v Hicklin 1868 LR 2 QB. ................................................................................................ i
S K Alagh v State of UP [2008] 5 SCC 662...........................................................................xvii
S Ragarajan v Jagjivam Ram [1989] SCC 574. ..................................................................... iii
S.Khushboo v Kanniammal AIR 2000 SC 1869. ..................................................................... iv
Sakal Papers v Union of India AIR 1962 SC 305. ................................................................... iv
Samaresh Bose & Anr v AmalMitra & Anr AIR 1986 SC 967..................................................ii
Shah Rukh Khan v State of Rajasthan and Ors RLW 2008 [1] Raj 809. ................................. xi
Shailesh Chandra Guha v Bechari Gape AIR [1925] Cal 94................................................. xix
Shobhna Bhartia and Ors v NCT of Delhi and Ors [2008] 1 SCC 327 ....................... xvii, xviii
Shreya Singhal v Union of India AIR 2015 SC 1523. ............................................................ iii
SMS Pharmaceuticals v Neeta bhalla and anr [2005] 8 SCC 89. ................................. xvi, xvii
Sondik v Kimmel 2011 NY Slip Op 52262 . ........................................................................... xiv
Sudhir Chandra v Tata Iron and Steel Co Ltd AIR 1984 SC 1064. ........................................ iii
Sunil Bharti Mittal v CBI (2014) 4 SCC 282. .......................................................................... xv
Sunilakhya Chowdhury v HMJH Jadwet 1968 CriLJ 736. ....................................................... xi
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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
INDEX OF AUTHORITY

T M A Pai Foundation & Ors v State Of Karnataka & Ors [2002] 8 SCC 481. ...................... vi
Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1. ............................................................. xvi
Titan Industries Ltd v M/S Ramkumar Jewellers 117 [2005] DLT 748. ............................... xiii
Union of India & Ors v M/s Martin Lottery Agencies Ltd (2009) 12 SCC 209. ................... xix
Union of India v Motion Pictures Association AIR 1999 SC 2334. .................................... iii, v
Vijay Shanti Edu. Trust v State Of Rajasthan And Anr 2001 (4) WLC 345. ...........................vii
Vishwa Nath v Shambhu Nath Pandeya 1995 CriLJ 277 ......................................................... ix
White v Samsung 23 USPQ 2d 1583. ..................................................................................... xiii
Zacchini v Scripps Howard Broadcasting Co 205 USPQ 741. ............................................. xiii

Statutes

Companies Act 2013, s 2(69)............................................................................................... xviii


Finance Act 2000, s 65............................................................................................................ xix
Indian Companies Act, s 2(76). ........................................................................................... xviii
Indian Contract Act, s 25. ....................................................................................................... xix
Clandestinesia Penal Code, s 292. .............................................................................................. i
Clandestinesia Penal Code, s 499(2). ........................................................................................ ix
Information Technology 2000, s 85. ........................................................................................ xv
Information Technology Act, s 67. ............................................................................................. i
IT Act 2000, s 85. ..................................................................................................................xvii

Regulations

Accounting Standards 18. ........................................................................................................ xx


Acoounting Standard 18. ..................................................................................................... xviii

Books

Bryan A Garner , Black’s Law Dictionary ( 7th edn, West Group 1999).............................. xiii
G. B. Singh, ‘”Bill of Rights” in the Constitution of India’ [2009] English Law Review. ... viii
Halsbury's Laws of England (3rd edn 2010) Vol 24, page 5, para 6. ....................................... ix
J Thomas McCarth, The Rights of Publicity and Privacy (2 nd edn, Thomson Reuters 2017).
..................................................................................................................................................xii
Kalyan C Kankanala and Sandeep Hegde M, ‘Publicity Rights in India’ (2012) 39 NKyLR
247, 266.................................................................................................................................. xiii
Keith Brown, Encyclopedia of Language and Linguistics (2005) vol 14................................vii

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
INDEX OF AUTHORITY

M P Jain, Indian Constitutional Law (6th edn, Lexis Nexis 2013). ......................................... vi
M P Jain, Indian Constitutional Law (6th edn, Lexis Nexis 2013) 1266. ...............................vii
Manohar and Chitaley, The Indian Penal Code (Vol 5, 4th edn, All India Reporter Pvt Ltd
2006) 763. ................................................................................................................................. ix
Sir Fredrick Pollock, Pollock on Contracts (13th edn) 133.................................................... xix

Internet Sources

shocking and unbelievable Sexual Cultures and Practices


<http://www.factsuniversity.com/tradition/8-10-shocking-and-unbelievable-sexual-cultures-
and-practices.html>accessed 1 September 2017.................................................................... viii

Charlotte Waelde, ‘Marilyn Monroe, Posh Spice and Me Personality, Property and Privacy’
................................................................................................................................................. xiv
Edward H Rosenthal, ‘The Right of Publicity’
<&lt;https://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2015_
intellectual_property_lit/materials/the_right_of_publicity_article_rosenthal.authcheckdam.pd
f&gt> accessed 30 August 2017. ............................................................................................ xiv
O Yale Lewis Jr, ‘Publicity Rights Revisited’ (2008)
<www.hllaw.com/images/78222PublicityRights.pdf> accessed 30 August 2017. ................ xiv

8
MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION
The counsel on behalf of the Appellants/ Petitioner humbly submits this memorandum for
Special Leave Petitions and a Writ Petition filed before this honorable court, which has been
posted for final hearing by the honorable court.

Special Leave Petitions

The Special Leave Petitions invoke the appellant jurisdiction of this honourable court
specified under Article 136 of the Constitution of Clandentinesia.

Writ Petition (Civil) No. 974 of 2016

The Writ Petition is filed under Article 32 of the Constitution of Clandentinesia.

The present memorandum sets forth facts, contentions and arguments on the behalf of
appellant/petitioner in the present case.

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
STATEMENT OF FACTS

STATEMENT OF FACTS
¶1.Two final year students, Roy Pereira and Tehmul Dastur dropped out of college in July
2013 to jointly develop a revolutionary gadget ‘neXt’ which would enable the users to not see
a 3D video, but also experience the smell, taste and touch as been shown in the video.

¶2.In September 2013, they setup ‘Techdemons Clandentinesia Private Limited’ (‘TCPL’)
which was involved in designing websites for corporations and also assisting with visual
effects. They were collectively referred to as ‘Promoters’ and were also the directors of
TCPL.

¶3.By May 2014, TCPL had made a rapid rise in the IT and media sectors and to sought some
funding approached Mr. Zubin Dubash, the Director of Future World Private Limited
(“FWPL”). FWPL was a leading multinational conglomerate and its area of operation ranged
from telecommunication to real estate and mining. Recently, FWPL was in a conflict with
one of the native tribes of Clandentinesia known as ‘Khosads’.

¶4.The Khosads were a closed knit tribe which lived in seclusion on an isolated island of
Clandentinesia for centuries, the ‘Khosad Island’. Khosads had a distinct culture which
included an annual ritual known as ‘Khosadasti’ in which the boys of marriageable age
undertook a private stay with their prospective suitresses who were undergoing the last days
of their monthly menstrual cycle and whosoever was found physically compatible was chosen
as a bride.
¶5.Khosad Island was also a huge reserve of a rare earth material known as ‘Ignomy’. In June
2014, FWPL was granted mining rights by Ministry Of Mines with one of the condition being
that FWPL needs to seek prior approval in case it sought to acquire any other company.
¶6.TCPL agreed to assist Dr. Jnanedndra Mitra, the chairman of a film society, Bioscope in
visual effects of a documentary film ‘In the Land of Khosads’. Of late media reports had
generated a considerable interest and various social and political thinkers had denounced the
practice as being immoral and against dignity of women and the Promoters also expressed
shock.
¶7.FWPL agreed to invest in TCPL in two tranches and FWPL had right to invest in second
tranche in case TCPL achieved certain milestones. FWPL invested in TCPL to get 24.99%
shares of the company. FWPL prepared a shareholders’ agreement and executed with TCPL
which provided that TCPL shall not enter into any related party contracts without prior

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
STATEMENT OF FACTS

approval from FWPL. FWPL stated that no approval was taken from Ministry of Mines
because they do not handle day to day affairs hence, has not acquired control.
¶8.TCPL agreed to provide Bioscope with necessary financial assistance on a condition that
Promoters shall be the narrators and thus the Promoters entered into an agreement(“Narration
Agreement’) with TCPL(in capacity of producers).
¶9.Subsequently, in the first board meeting after the execution of SHA, a resolution moved to
increase salary of the Promoters in their capacity as directors in which five Independent
Directors, excluding the Promoters and one Executive Director who was nominated by
FWPL and the Promoters voted unanimously to increase the salary.
¶10.In March 2015, ‘In the Land of Khosads’ was released to immense critical acclaim. The
film intricately showed culture of Khosads and comprised of natural beauty of the island,
interviews of members of the tribe, social anthropologist etc, mining operation being carried
out and vividly filmed annual ritual of Khosadasti.
¶11.Samaj Kalyan Kendra, a NGO filed a criminal complaint against TCPL, Bioscope and
the Promoters for the offence of Obscenity for which charges were framed against them by
the Chief Judicial Magistrate against which they appealed to the High Court under Article
226, which dismissed their appeal. A SLP was filed before the Hon’ble Supreme Court under
Article 136.
¶12.Simultaneously, FWPL filed a suit for damages against TCPL for the breach of the SHA
in a single judge bench of High Court which decreed in favour of FWPL against which TCPL
appealed to Division Bench which reversed the order. FWPL filed a SLP in the Supreme
Court under Article 136, no stay was granted by the court.
¶13.Khumantu Khosad a criminal complaint against TCPL, FWPL and Bioscope alleging that
they have defamed Khosads and have violated their publicity right u/s 499, 500 r/w s.120 of
CaPC and Dr. Jnanendra, the Promoters and Mr. Zubin were vicariously liable for the same.
Against the summons issued by the Ld. Chief Judicial Magistrate, they filed SLPs under
Article 136 of the Constitution before the Supreme Court.
¶14.Khosads were restrained from carrying out Khosadasti publicly but they could carry it
out privately as per the notification of the Government which was challenged by a writ
petition before the Supreme Court under Article 32 on the ground that Khosadasti was
protected under Article 29.

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
ARGUMENTS PRESENTED

ARGUMENTS PRESENTED
[ISSUE 1] Whether Section 292 of the Clandestinesia penal Code and Section 66 and ^7A of
the Clandestinesia Information Technology Act, 2000 are vague and arbitrary and ultra vires
the Constitution?

[ISSUE 2] Whether the Khosad tribe has a fundamental right guaranteed under Article 29 of
the Constitution of Clandestinesia qua organization and conduct of the annual ritual of
Khosadasti?

[ISSUE 3] Whether Khosads can claim to have a ‘reputation’ as a community inasmuch as


any consequent injury to such reputation can amount to the criminal offence of defamation
and the same being punishable u/s 499 and 500 of the Clandestinesia Penal Code?

[ISSUE 4] Whether Khosads as a community can claim publicity rights?

[ISSUE 5] Whether the Promoters, Dr. Jnanendra Mitra and Zubin Dubash are vicariously
liable for the acts of TCPL, Bioscope and FWPL respectively for the offences punishable u/s
292 and 499 of CaPC and u/s 66, 67A of the Clandestinesia Information Technology Act,
200?

[ISSUE 6] Whether TCPL has breached the SHA by executing the Narration Agreement and
liable to pay damages for the same?

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS
[ISSUE1] The counsel humbly submits before the Hon’ble Supreme Court of Clandestinesia
that Section 292 of CaPC and Section 67 and 67A of the IT act are vague, arbitrary and ultra
vires the constitution because they come with extremely wide parameters and vague
language, which allow whimsical interpretations by law enforcement agencies and there
remains an ambiguity because of which they does not fall within the scope of Article 19 and
Article 21.

[ISSUE2] The counsel humbly submits before the Hon’ble Supreme Court of Clandestinesia
that the Khosad tribe by virtue of Article 29 have fundamental right to continue with their
annual ritual ‘Khosadasti’ in which the boys of marriageable age undertook a private stay
with their prospective suitresses and whosoever was found physically compatible was chosen
as a bride. They are minority as per the guidelines of Article 29 and they satisfy the scope of
Article 29(1) under which their practice is protected. Khosadasti is an essential practice
which is fundamentally accepted in Clandestinesia.

[ISSUE3] The counsel humbly submits before the Hon’ble Supreme Court of Clandestinesia
that Khosads as a community do not have a reputation because Right to Reputation is only
guaranteed to individuals and not communities under Article 21. The Khosads do not fall
under Explanation 2 of Section 499 of CaPC and there was not malicious intent by TCPL,
FWPL or Bioscope in making the documentary thus, khosads were not defamed.

[ISSUE4] The counsel humbly submits before the Hon’ble Supreme Court of Clandestinesia
that Khosads being a community cannot claim Publicity right as this right is only for
individuals and not a community as a whole. The movie was made in public interest and
cannot be challenged in court. Furthermore an implied consent was given by the tribe to the
film makers which forfeited their right to claim publicity right.

[ISSUE5] The counsel humbly submits before the Hon’ble Supreme Court of Clandestinesia
that Khosads that in IT act, section 85 is a statute which calls for vicarious liability. However,
the principle of attribution of “alter ego” as mentioned in section 85, has to be applied only in
one direction namely where a group of persons that guide the business had criminal intent,
that is to be imputed to the body corporate and not the vice versa. Further, no statutory
provision exists under the CaPC for vicarious liability and there was no active role and
criminal intent on the part of the appellants through which they cannot be held liable.

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
SUMMARY OF ARGUMENTS

[ISSUE6] The counsel humbly submits before the Hon’ble Supreme Court of Clandestinesia
that Khosads that the Narration agreement was a related party contract. Further, it was of the
nature which required prior approval of FWPL under the SHA and also under section 188 of
Companies act and by not taking prior approval TCPL breached the SHA.

14
MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
ARGUMENTS ADVANCED

ARGUMENTS ADVANCED

1. SECTION 292 OF THE CLANDESTINESIA PENAL CODE AND SECTION 66 AND 67A OF
THE CLANDESTINESIA INFORMATION TECHNOLOGY ACT, 2000 ARE VAGUE AND

ARBITRARY.

The counsel humbly that the Section 292 of CaPC and Section 67 and 67A of IT Act,2000 are
vague, arbitrary and ultra vires the constitution as they come with extremely wide parameters,
which allow whimsical interpretations by law enforcement agencies.
1.1 SECTION 292 OF CAPC AND SECTION 67 OF THE IT ACT, 2000 IS ARBITRARY, VAGUE

AND UNREASONABLE.

The counsel humbly submits that in the case of Kathi Raning v State of Saurashtra1, the court
held that where the standard of guide furnished by the statute is vague and uncertain it
amounts to the absence of any guide at all and the law must be struck down as conferring
unguided power upon the Executive. The fundamental concept of criminal law states that
crimes must be defined with appropriate definiteness. It is submitted that the Section 292 of
CaPC and Section 67 of IT Act are so vast that it gives tremendous handle in the hands of the
complainant and the police to target anyone.
1.1.1 OBSCENITY IS NOT DEFINED.
The counsel humbly submits that the word ‘obscene’ 2 and ‘lascivious or appeals to the
prurient interest’3 are not clearly defined in Section 292 of CaPC and Section 67 of IT Act. .
The earlier adopted test of obscenity, Hicklin Test 4 postulates that publication has to be
judged for obscenity being an isolated passages while the community standards test, which
postulates that a publication cannot per se be called obscene unless it has the tendency to
arouse feeling or revealing an overt sexual desire.
The counsel submits that in Ranjit d. Udeshi5, the court observed that where obscenity and art
are mixed, art must so preponderate as to throw the obscenity into a shadow or the obscenity
must be so trivial and insignificant that it can have no effect and may be overlooked. In other
words, treatment of sex in a manner offensive to public decency and, judged by our national

1
Kathi Raning v State of Saurashtra, 1952 SCR 435.
2
Clandestinesia Penal Code, s 292.
3
Information Technology Act, s 67.
4
Regina v Hicklin 1868 LR 2 QB.
5
Ranjit d Udeshi v State of Maharashtra AIR1965 SC 881.

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
ARGUMENTS ADVANCED

standards, considered likely to pander to lascivious, prurient or sexually precocious minds,


must determine the result.
The counsel further submits that in the case of Samaresh Bose and Another v Amal Mitra and
Another 6, it was held that an overall view of the obscene matter in the setting of the whole
work would, of course be necessary, but the obscene matter must be considered by itself and
separately to find out whether it is so gross and its obscenity so decided that it is likely to
deprave and corrupt those whom read it and that a reference of kissing description of the
body and the figures of the female characters in the book and suggestions of acts of sex by
themselves may not have the effect of depraving, debasing and encouraging the readers of
any age to lasciviousness and the novel on these counts, may not be considered to be
obscene.
In the case of Aveek Sarkar7 the court held that the picture has been viewed in background as
whether it was shown, and the message it has to convey to public at large.
In the case of K A Abbas v Union of India8, it was held that the artistic appeal or presentation
of an episode robs it of its vulgarity and harm and also what may be socially good and useful
and what may not.
Thus, it can be established that all the above mentioned judgments have judged obscenity
differently and yet the above mention cases were charged under section 292. It can be said
that section 292 does not defines obscenity clearly and what seems to be obscene to one may
not seem to other and as it was held in Chandrakant Kalyadas Kakodar v The State of
Maharashtra9 “the standard of contemporary society in India are also fast changing”.
1.2 SECTION 292 OF CAPC AND 67 OF THE IT ACT, 2000 VESTS UNGUIDED AND UNFETTERED
POWER ON THE EXECUTIVE AND IS THUS ARBITRARY AND DISCRIMINATORY.

Counsel contends that every action of the government must be in conformity with reasons
and should be free from arbitrariness.10 The Supreme Court can strike down any conferment
of discretionary power on an authority if it’s too broad, sweeping, or encarnalized. “If the
power conferred by the statute on any authority of the State if vagrant and unconstitutional
and no standards or principles are laid down by the statute to guide and control the exercise
of such power, the statute would be violative of equality clause." 11 The statute confers

6
Samaresh Bose & Anr v AmalMitra & Anr AIR 1986 SC 967.
7
Aveek Sarkar & Anr v State Of West Bengal & Anr [2014] 4 SCC 257.
8
K A Abbas v Union Of India AIR 1971 SC 48.
9
Chandrakant Kalyadas Kakodar v The State of Maharashtra AIR 1970 SC 1390.
10
Netai Baig v State of WB [2000] SCC 8.
11
Naraindas v State of Madhya Pradesh AIR 1974 SC 1232.

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
ARGUMENTS ADVANCED

absolute discretion uncontrolled by guidelines which permits the denial of equality before law
which is the antithesis of rule of law.12
Where the statutory provision is plainly in violation of Article 14, having conferred unguided
and unfettered power on the Executive, the Court cannot uphold its constitutionality by
reading into it the validating requirements which is lacking.13 Article 14 of the Constitution is
also infringed in that an offence whose ingredients are vague in nature is arbitrary and
unreasonable and would result in arbitrary and discriminatory application of the criminal
law.14
1.3 SECTION 292 OF CAPC AND SECTION 67 OF IT ACT ARE IN VIOLATION OF ARTICLE 19
OF THE CONSTITUTION.

The counsel humbly submits that “Free speech is the foundation of a democratic society. A
free exchange of ideas, airing of different viewpoints, forming one’s own view points and
expressing them, are the basic ideals of a free society. This freedom alone makes it possible
for people to formulate their own views and opinions.”15 That the phraseology of sections is
so wide and vague and incapable of being judged on objective standards, that it is susceptible
to wanton abuse and hence falls foul of Article 14, 19(1)(a) and Article 21 of the
Constitution. The Supreme Court held that “every citizen must be entitled to participate in the
democratic process and in order to enable him to intelligently exercise his right of making a
choice, free and general discussion of public matters is absolutely essential.”16
The counsel further submits that in the case of S.Ragarajan v P. Jagjivam Ram17, it was held
that while interpreting Article 19(2), the commitment to freedom demands that it cannot be
suppressed unless the situations created by allowing the freedom are pressing and the
community interest is endangered. The anticipated danger should not be remote, conjectural
or far-fetched. It should have a proximate and direct nexus with the expression. The
expression of thought should be intrinsically dangerous to the public interest. The making of
the documentary ‘In the land of khosads’ was well within rights of the petitioner provided by
Aritcle 19(1)(g) and the presentation of the scenes were protected by Article 19(1)(a).
Therefore Section 292 is not only vague but ultra vires the constitution and the defence
cannot be held guilty on the opinion of intolerant members of the society.

12
Sudhir Chandra v Tata Iron and Steel Co Ltd AIR 1984 SC 1064.
13
BB Rajvanshi v State of UP AIR 1988 SC 1089.
14
Shreya Singhal v Union of India AIR 2015 SC 1523.
15
Union of India v Motion Pictures Association AIR 1999 SC 2334.
16
Maneka Gandhi v Union of India AIR 1978 SC 597.
17
S Ragarajan v Jagjivam Ram [1989] SCC 574.

iii
MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
ARGUMENTS ADVANCED

It was held in the case of S. Khushboo v Kanniammal18 for judging the film should be that of
an ordinary man of common sense and prudence and not that of an out of the ordinary or
hypersensitive man ... The different views are allowed to be expressed by proponents and
opponents not because they are correct, or valid but because there is freedom in this country
for expressing even differing views on any issue. Freedom of expression which is legitimate
and constitutionally protected cannot be held to ransom by an intolerant group of people. The
advent of social media has made it possible for the users to express their views online and
reach out to people on a much wider platform. It is submitted that for the growth and
development of a democracy it is very important that this transmission of thoughts shall not
be hindered. The restrictions laid down in Article 19(2) are exhaustive19 and are to be strictly
construed.20Any law that imposes a restriction upon the Freedom of Speech and Expression
must be struck down unless it falls directly under any of the grounds stated in Article 19(2).21

1.4 SECTION 292 OF CAPC AND SECTION 67 OF IT ACT ARE IN VIOLATION OF ARTICLE 21 OF
THE CONSTITUTION.

The counsel submits that the right to life includes the right to carry on such functions and
activities adequate to give expression to human self. A person is entitled to enjoy his personal
rights and to be protected from encroachments on such personal rights, freedoms liberties.
Article 21 of the Constitution is of the widest amplitude22, and it thus includes the right to
socialize with members of one’s family and friends. Article 67 of the I.T. Act, 2000 takes
away the right to socialize as it can make interactions between individuals also a criminal
offence because it talk about punishment for transmitting obscene material in electronic
form.23 Where criminal offence is created, it should be created in clear language. However,
the language used in both the sections is not clear and suffers from ambiguity.
The Right to Life guaranteed under Article 21 embraces within its sweep not only physical
existence but the quality of life also. Any statutory provision running counter to such a right
must be held unconstitutional.24 It was held that the expanded meaning includes the right to
hold a particular opinion, to sustain and to nurture that opinion.25

18
S.Khushboo v Kanniammal AIR 2000 SC 1869.
19
Sakal Papers v Union of India AIR 1962 SC 305.
20
Ghosh v Joseph, AIR 1963 SC 812.
21
Kameshwar v State of Bihar, AIR 1962 SC 1166.
22
Maneka Gandhi v Union of India AIR 1978 SC 597.
23
Information Technology Act 2000, s 67.
24
Confederation of Ex-serviceman Association v Union of India [2006] 8 SCC 399.
25
Ozhair Hussain v Union of India, AIR 2003 Del 103.

iv
MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
ARGUMENTS ADVANCED

The right to personal liberty under Article 21 must be read with Article 19 and Article 14,
with a view to strengthen the right of personal liberty and to overcome the weakness of
guarantee of procedure established by law.26 Even apart from Article 19, the requirement of
fairness is inherent in Article 21 which is akin to the concept of reasonableness. 27 The
Petitioner submits that the impugned Sections are too broad in its sweep and contains several
undefined words/terms, making it susceptible to wanton abuse. This creates a ‘chilling effect’
where citizens are severely disincentivized from exercising their constitutionally protected
right to free speech for fear of frivolous prosecution..
The basic principle of legal jurisprudence specifies that an enactment is void for vagueness if
its prohibition is not clearly defined.28 Laws must be expressed with such clarity and certainty
as to give reasonably precise and adequate guidance to those who want to be law abiding29
which is not the case here.

2. KHOSAD TRIBE HAS A FUNDAMENTAL RIGHT GUARANTEED UNDER ARTICLE 29 OF

THE CONSTITUTION OF CLANDESTINESIA.

Counsel submits that the Khosad tribe by virtue of Article 29(1) have fundamental right to
continue with their annual ritual ‘Khosadasti’ in which boys of marriageable age undertook
private stay with their prospective suitresses of marriageable age and whosoever was found
physically compatible on the basis of sexual intimacy was chosen as the bride.

2.1THE KHOSAD TRIBE IS A MINORITY UNDER ARTICLE 29.

The counsel contends that the term ‘minority’ is no where defined in Constitution of
Clandestinesia. It was first defined in an Education Bill in which the Supreme Court, through
S.R. Das CJI suggested the techniques of arithmetic tabulation and held that the minority
means a "community, which is numerically less than 50 percent of the total population.”30
This statistical criterion was further upheld by the Kerela High Court31.Thus, we can say that
as per these guidelines Khosad tribe was a minority as “Khosads were a fiercely closed knit
tribe of several hundred individuals which had continued to live for centuries in seclusion on

26
RC Cooper v Union of India [1970] 1 SCC 248.
27
Union of India v Motion Pictures Association AIR 1999 SC 2334.
28
Kartar Singh v State of Punjab, [1994] 3 SCC 569; Dr Surajmani Stella Kujur v Durgacharan Haansdah,
AIR 2001 SC 938.
29
Avais v Hartford Social Club Ltd, [1969] 1 ALL ER 130 (HL).
30
Kerala Education Bill, in re, AIR 1958 SC 956.
31
Aldo Maria Patroni & Anr V E C Kesavan And Ors AIR 1965 Ker 75.

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
ARGUMENTS ADVANCED

an isolated island of Clandestinesia, the ‘Khosad Island’32.” It is also submitted that Khosad
tribe was not aware about the law of Clandestinesia and nor was the government of
Clandestinesia interested in the practices of Khosad before the issue was raised in the movie.

2.2 KHOSAD TRIBE SATISFIES THE SCOPE OF ARTICLE 29(1)

The counsel submits that this case have offended the religious practice of Khosads and
further impeded the right of Khosads to manage their own affairs in the matter of religion as
guaranteed by Article 29 of the Constitution. Article 29(1) is not subjected to any reasonable
restrictions. The right conferred upon the citizens to conserve their language, Script and
culture is made absolute by the Constitution.33 According to Article 29(1), any section of the
citizens residing in any part of Clandestinesia having a distinct language, script or culture of
its own has the right “to conserve the same.”34

2.2.1 THE KHOSADS FORM THE ‘SECTION OF CITIZEN’

In the case T.M.A.Pai Foundation v State Of Karnataka35 it was stated that if in any part of
the country, there is a section of society that has a distinct language, they are entitled to
conserve the same, even though the persons having that language may profess different
religions. It gives the right to all sections of citizens, whether they are in a minority or the
majority religions, to conserve their language, script or culture. Khosads are citizens of
Clandestinesia as they are residing in Clandestinesia.

2.2.2 THE KHOSADS FULLFILL THE TERRITORIAL REQUIREMENT

Khosads have being living in seclusion on an isolated island of Clandestinesia for centuries 36
which is a part of the territory of Clandestinesia. It is further submitted in this regards that
while margin note speaks of 'minority', in the Article 29 itself expression minority is not used,
but refers to right of any community in the territory having a distinct language, script or
culture within the territory where such community is identifiably exist, it has the right to
conserve its language, script and culture.37

2.2.3 THE KHOSADS HAVE A DISTINCT CULTURE

32
Moot proposition ¶ 4.
33
Jagdev Singh Sidhanti v Pratap Singh Daulta [1964] SCR (6) 750.
34
M P Jain, Indian Constitutional Law (6th edn Lexis Nexis 2013).
35
T M A Pai Foundation & Ors v State Of Karnataka & Ors [2002] 8 SCC 481.
36
Moot proposition ¶4.
37
Vijay Shanti Edu. Trust v State Of Rajasthan And Anr 2001 (4) WLC 345.

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
ARGUMENTS ADVANCED

Culture consists of the beliefs, behaviors, objects, and other characteristics common to the
members of a particular group or society.38 It can’t be denied that Khosads have their own
culture which is a common practice followed by all the members of the tribe in their belief to
celebrate process of creation of life.

The counsel submits that all the essentials of article 29(1)39 are being satisfied by Khosads
and their right to practice Khosadasti is protected under Article 29. The Khosad community
is a tribal minority community and therefore it is mandatory as per the constitution that the
State shall not impose upon it any other culture which may be local or otherwise. The state
has no authority to force Khosads to perform the annual ritual of Khosadasti in private. They
have been performing their custom for many years in public and should have the right to
continue the practice started by their forefathers.

2.2THE PRACTICE OF KHOSADASTI IS AN ESSENTIAL PART OF KHOSADS AND IS

FUNDAMENTALLY ACCEPTED.

2.2.1 PRACTICE OF KHOSADASTI IS AN ESSENTIAL PRACTICE OF KHOSADS

The counsel submits that the Hon’ble Supreme Court stated in Kerala Education Bill that it
should not be in the power of the majority of a State to destroy or to impair the rights of the
minorities. State’s purpose is to encourage individuals to preserve and develop their own
distinct culture”.40 Khosdas are minority in Clandestinesia and they have a right to protect
their essential practice, Khosadasti. It’s an essential practice for the Khosads as it is a way to
celebrate the process of creation of life and Khosads believed that the children born out of
such union were descendants of God and protectors of the tribe from enemies.41

It is further submitted in this regard that wearing and carrying of kirpans is deemed to be
included in the profession of the Sikh religion 42 and they are even allowed to carry it in
domestic flights. This is done because it is an essential practice of Sikh and hence is protected
by our constitution.

2.2.2 PRACTICE OF KHOSADASTI IS FUNDAMENTALLY ACCEPTED

38
Keith Brown, Encyclopedia Of Language And Linguistics (2005) Vol 14.
39
M P Jain, Indian Constitutional Law (6th edn Lexis Nexis 2013) 1266.
40
Kerala Education Bill, in re, AIR 1958 SC 956.
41
Moot proposition ¶ 20.
42
G. B. Singh, ‘”Bill of Rights” in the Constitution of India’ [2009] English Law Review.

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
ARGUMENTS ADVANCED

The counsel humbly submits that the practice of Khosadasti is fundamentally accepted in the
state of Clandestinesia as seen in a case 43 where the court accepted the argument that
Jallikattu is indubitably a cultural celebration of certain Tamil Communities that has been
practiced for more than 20 centuries. The Tamil communities practicing and sustaining such
distinct Heritage and Cultural traditions are protected by Article 29(1) of the Constitution of
India and they have a fundamental right to conserve the same subject of course to reasonable
restrictions arising from issues of morality, health and public order.

It is further submitted that Deer Horn Muria, a tribe living in Central India's Chhattisgarh
region, practice Ghotul, a festive mingling of teenage men and women to teach them songs,
tribal dance and sex. At night, they engage in ceremonial orgies and sexual romps. Girls drink
natural liquor as an herbal contraceptive to avoid pregnancy and then choose different sexual
partners every night. If the herbal drink doesn't work and the girl becomes pregnant, the
entire village will adopt the baby since no one knows for sure who the father is.44 Similarly
the practice of Khosadasti is part of celebrations in Khosad and only those girls are allowed
to participate in this annual ritual who are undergoing the last days of their monthly
menstrual cycle45 so that there is less chances of the girl getting pregnant but if she does the
child is treated as an ascent of God. Thus, it is not an act of obscenity as showed by the film
‘In the Land of Khosads’ .It not only promotes a healthy attitude towards sex, but also allows
children to learn how to conduct relationships and friendships in a healthy way.

3. KHOSADS DOES NOT HAVE A ‘REPUTATION’ AS A COMMUNITY IN AS MUCH THAT

CONSEQUENT INJURY TO SUCH REPUTATION CAN AMOUNT TO THE CRIMINAL OFFENCE OF

DEFAMATION AND THE SAME BEING PUNISHABLE.

It is contended that the Petitioner’s complaint regarding defamation does not stand because
the offence of defamation in Clandestinesia Penal Code consists of three essential
ingredients46-
1. The words must be Defamatory.
2. They must refer to the Plaintiff.

43
Animal Welfare Board of India v A Nagaraja & Ors [2014] 7 SCC 547.
44
10 SHOCKING AND UNBELIEVABLE SEXUAL CULTURES AND PRACTICES
<HTTP://WWW.FACTSUNIVERSITY.COM/TRADITION/8-10-SHOCKING-AND-UNBELIEVABLE-SEXUAL-CULTURES-
AND-PRACTICES.HTML> accessed 1 September 2017.
45
Moot proposition ¶ 6.
46
Manohar and Chitaley, The Indian Penal Code (Vol 5, 4th edn All India Reporter Pvt Ltd 2006) 763.

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ARGUMENTS ADVANCED

3. They must be maliciously published.

3.1THE WORDS ARE NOT DEFAMATORY.


The counsel humbly submits that in the case of Sh. Anil Kumar v Ms. Sangeeta Grover47, it
was held that to claim, that a particular statement is defamatory there should be publication to
a third party and such publication should be of such a nature as is likely to cause appreciable
injury to a person's reputation. Thus, it can be said that for the words to be defamatory, the
aggrieved person or collection of persons48 must have a reputation.
3.1.1 KHOSADS AS A COMMUNITY CANNOT CLAIM TO HAVE A REPUTATION.
In Halsbury's Laws of England, 49 it has been observed that a class of persons cannot be
defamed as a class, nor can an individual be defamed by general reference to the class to
which he belongs which implies that a class as a whole does not have a reputation that is why
it cannot be injured. Therefore, khosads as a community does not have reputation.

The counsel humbly submits that in the case of Vishwa Nath v Shambhu Nath Pandeya 50it
was held that When an indefinite and unascertainable body of people is defamed it may not
be possible to single out individuals and say that they are also defamed. Imputations should
be capable of being located as aimed at particular individuals or collection of individuals
capable of being ascertained. Community as such may not have reputation, but the reputation
will only be of individual members. So, in the present case it cannot be established that the
imputation was made against some particular individual of the community in such a way that
it can be applied to the whole community hence, it cannot be established that khosads as a
community have reputation.

The counsel further submits that, “there cannot be defamation against a community as such,
since community as such may not have a reputation, but the reputation will only be of
individual members” as it was observed in the case of M.P. NarayanaPillai And Ors. vs M.P.
Chacko And Anr.51

47
Sh Anil Kumar v Ms Sangeeta Grover (2016) CS No 267/15.
48
Clandestinesia Penal Code, s 499(2).
49
Halsbury's Laws of England (3rd edn 2010) Vol 24, page 5, para 6.
50
Vishwa Nath v Shambhu Nath Pandeya 1995 CriLJ 277;K M Mathew v Balan 1989 Cri LJ 1039.
51
MP Narayana Pillai And Ors v MP Chacko And Anr 1986 CriLJ 2002.

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
ARGUMENTS ADVANCED

3.1.2 KHOSADS AS A COMMUNITY CANNOT BE CONSIDERED AS A COLLECTION OF PERSONS.


The counsel humbly submits that in the Asha Parekh case52 it was held that lawyers as a class
it is not capable of defamation since it is too indeterminate a body. Similarly, Khosads as a
class are very indeterminate and cannot be defined.
The counsel submits that in the case of In Raj Kapoor v. Narendra Desai53 it was held that,
“where the imputations were against the Bhangi community in general. It was held that the
imputations would not amount to defamation because they were not directed against any
particular group or members of that community which could be identified.”
It was further observed in that decision:
“There was no imputation against the complainant as an individual. If he felt that as a
member of the Bhangi community, he was defamed, that would not entitle him to maintain a
prosecution for defamation unless the imputation was against him personally.”

Similarly, in the present case the movie “In the Land of Khosads”, there was no imputation
against any particular member of the community and also, no one individual can maintain a
prosecution for defamation unless the imputation was against him personally.

3.2 THE PUBLICATION IS NOT MALICIOUS.


The counsel here humbly submits that the publication of the documentary by TCPL, MPWL
and Bioscope was not malicious in nature i.e. they did not intend to harm the reputation of the
khosads. The settled principle in this regard is that the effect of the allegedly offending words
/visuals is to 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 view.54

In the case of, Zee Telefilms Limited vs M/S. Sahara India Commercial, it was established
that the said imputation must have been made with intention to harm or with knowledge or
having reason to believe that it will harm the reputation of the person concerned. In the
present case, TCP and Bioscope insisted that the film be made in as vivid manner as possible
so as to show the true nature of and intent behind the practices of the khosads and

52
Asha Parekh And Ors v The State Of Bihar And Ors 1977 CriLJ 21.
53
Raj Kapoor v Narendra Desai 1974 15 Guj LR 125.
54
Ajay Gautam v UOI 2015 [147] DRJ 514.

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
ARGUMENTS ADVANCED

consequently, viewers are correctly informed. 55 This establishes that TCPL, FWPL and
Bioscope had no intention to harm the reputation of the Khosads.

The counsel further submits that in the case of Ajay Gautam v Union of India56 it was held
that a film should be judged on its entirety, from the point of view of its overall impact. In the
present case, the film intricately showed the culture of the Khosads, including the vividly
filmed annual ritual of ‘Khosadasti’. A significant part of the film comprised of visual treat to
the viewers as the Khosad Islands were very picturesque with immense natural beauty.57Thus,
it can be said that the film as a whole was not a misrepresentation and derogatory.
The counsel submits that in the case of Sunilakhya Chowdhury v. H.M.J.H. Jadwet58 it was
established that a Juristic person and artificial person or a Juristic entity is incapable of
having any mind and hence question of having such a state of mind cannot arise. It was,
therefore, concluded such a person cannot commit an offence of defamation of which mens
rea is one of the essential ingredients though the directors and other officers of such company
may be liable for committing such offences in certain cases. In the present case, Bioscope,
TCPL and FWPL are juristic entity and thus they are incapable of having any mens rea and
same is also established in case of Anath bandhu v. Corporation of Calcutta.59
The counsel further contests that in the case of Asoke kumar Sarkar and Anr. v. Radha kanto
Pandey, it was held that Truth necessarily is the defence both in civil and
criminal defamation, but the first exception to Section 499 I. P. C. insists that in addition
to truth, the imputation must be shown to have been made for public good. Therefore, ‘In tth
Land of Khosads’ may be true but the concept of public interest is a very vague concept.60In
the case of Harakchand Ratanchand Banthia and Ors. v. Union of India and Ors.61, it has
been held that "public interest" do not provide any objective standard or norm. Thus, it
cannot be definitely said whether the documentary was in public interest or not.

4. KHOSADS AS A TRIBE CANNOT CLAIM PUBLICITY RIGHT


The counsel submits to the Supreme Court of Clandestinesia that Khosads as a community
can’t claim Publicity right which is only available to an individuals. The film was made in
public interest and after the implied consent of the tribe, hence cannot be challenged.
55
Moot Proposition ¶10.
56
Ajay Gautam v UOI 2015 [147] DRJ 514.
57
Moot Proposition ¶12.
58
Sunilakhya Chowdhury v HMJH Jadwet 1968 CriLJ 736.
59
Anath bandhu v Corporation of Calcutta AIR 1952 Cal 759.
60
Shah Rukh Khan v State of Rajasthan and Ors RLW 2008 [1] Raj 809.
61
Harakchand Ratanchand Banthia and Ors v Union of India and Ors AIR 1970 SC 1453.

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
ARGUMENTS ADVANCED

4.1 KHOSADS AS A COMMUNITY CANNOT CLAIM PUBLICITY RIGHTS.

The counsel submits that right of publicity is simply the inherent right of every human being
to control the commercial use of his or her identity.62 The business entities and other non-
humans organization have no rights of privacy or publicity. Neither a corporation nor any
other form of business organization has a right of privacy or publicity. Those rights were
specifically created for real, flesh and blood human persons, not for entities artificially treated
as legalistic “persons. 63 Khosads as a tribe don’t have publicity right as they are a
community. This is because the right of publicity has evolved from the right of privacy and
can inhere only in an individual or in any indicia of an individual's personality like his name,
personality trait, signature, voice, etc.64

It is further submitted in this regard that in a case65 the court held “The right of publicity has
evolved from the right of privacy and can inhere only in an individual or in any indicia of an
individual's personality like his name, personality trait, signature, voice, etc., An individual
may acquire the right of publicity by virtue of his association with an event, sport, movie, etc.
However, that right does not inhere in the event in question, that made the individual famous,
nor in the corporation that has brought about the organization of the event. Any effort to take
away the right of publicity from the individuals, to the organizer (non-human entity) of the
event would be violative of Articles 19 and 21 of the Constitution of Clandestinesia. Hence
Khosad being a non human entity can’t claim for publicity right.

In the case of Titan Industries Ltd. v M/S Ramkumar Jewellers 66 it was noted that there are
two components to claim publicity rights. Those are:

 “Validity: The plaintiff owns an enforceable right in the identity or persona of a


human being.
 Identifiability: The Celebrity must be identifiable from defendant’s unauthorized use.
Khosads are not a celebrity.

62
J Thomas McCarth, The Rights of Publicity and Privacy (2 nd edn, Thomson Reuters 2017).
63
J Thomas McCarth, The Rights of Publicity and Privacy (2 nd edn, Thomson Reuters 2017).
64
J Thomas McCarth, The Rights of Publicity and Privacy (2 nd edn, Thomson Reuters 2017).
65
ICC Development (International) Ltd v Arvee Enterprises and Anr [2003] 26 PTC 245 (Del).
66
Titan Industries Ltd v M/S Ramkumar Jewellers 117 [2005] DLT 748.

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
ARGUMENTS ADVANCED

Infringement of right of publicity requires no proof of falsity, confusion, or deception,


especially when the celebrity is identifiable. The right of publicity extends beyond the
traditional limits of false advertising laws”.

The counsel submits that according to these guidelines Khosad tribe can’t claim for Publicity
Right as Khosads as a tribe is a community which is neither a person nor a persona of a
human. The "persona" is defined in Black's Law Dictionary, as "a person; an individual
human being".67 Secondly, Khosad tribe is not a celebrity; in fact, it is a secluded tribe living
in seclusion for centuries68 and hence is not identifiable.

Even in the case of White v. Samsung 69 it was held that only personality rights of an
individual can be infringed and in Zacchini v. Scripps Howard Broadcasting Co,70 it was
established that the issue was regarding the personality rights of the individual who
performed cannon ball and not that of the event as a whole.

4.2 THE FILM WAS MADE IN PUBLIC INTEREST AFTER RECEIVING IMPLIED CONSENT FROM
TRIBE

Under Indian common law, when a person is exposed to unwanted publicity without consent
and without sufficient public interest, a violation of privacy occurs.71 But in the present case
there was no violation publicity right as the Promoters, TCPL and the Bioscope had obtained
the consent of the tribe and had made the movie in public interest.

4.2.1 THERE IS IMPLIED CONSENT GIVEN BY THE MEMBERS OF THE TRIBE


The counsel submits that the right of publicity is not absolute and is subject to certain
limitations. One of the defenses is consent which should preferably be written although there
have been instances such as Washington's statutory law where in acceptance of “oral” or
“implied” consent is considered adequate.72 The counsel contests that implied consent was
given by the tribe as a considerable portion of the film was devoted to interviews of members

67
Bryan A Garner , Black’s Law Dictionary ( 7th edn, West Group 1999).
68
Moot Proposition ¶4.
69
White v Samsung 23 USPQ 2d 1583.
70
Zacchini v Scripps Howard Broadcasting Co 205 USPQ 741.
71
Kalyan C Kankanala and Sandeep Hegde M, ‘Publicity Rights in India’ (2012) Northern Kentucky Law
Review 247, 266.
72
O Yale Lewis Jr, ‘Publicity Rights Revisited’ (2008) <www.hllaw.com/images/78222PublicityRights.pdf>
accessed 30 August 2017.

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
ARGUMENTS ADVANCED

of Khosad tribe, historians, social anthropologists; Government officials etc.73If consent is


given then people forfeit their right to claim publicity right.

The right to publicity as a form of the right of privacy was perhaps first recognized in India
by the Hon’ble Supreme Court in R RajaGopal v State of Tamil Nadu74, where the Court
stated that “the first aspect of this right must be said to have been violated where, for
example, a person’s name or likeness is used, without his consent”. But in the present case
there was consent, hence the tribe cannot claim right to publicity.

4.2.2 THE FILM WAS MADE IN PUBLIC INTEREST

The counsel humbly submits that where the person name or portray bears a real relationship
to an article on matters of public interest, an unauthorized use does not give rise to a right of
publicity claim.75 It was held in the case of Sondik v Kimmel76that publicity rights do not
apply to reports of newsworthy events or matters of public interest. Khosads at that time were
a matter of public interest and bears a reasonable relationship between the person's identity
and the subject of the story.

The counsel further submits in this regard that in the case of Lyngstrad v Annabas Products77
the pop group ABBA could not obtain relief against traders selling paraphernalia that bore the
name and image of the group. The defendants were not doing ‘anything more than catering
for a popular demand among teenagers for effigies of their idols’. Similarly in Halliwell v
Panini Spa5 the Spice Girls could not prevent sale of stickers because traders who supplied
them were responding to the demand for ‘effigies and quotes of today’s idols’78. After the
‘Khosadasti report’ that came in July 2014 a lot of general curiosity arose in the general
public.79 Thus making a movie on them is in public interest. The true intent of the movie was

73
Moot proposition ¶ 12.
74
R Raja Gopal v State of Tamil Nadu AIR 1995 SC 264.
75
Edward H Rosenthal, ‘The Right of Publicity’
<&lt;https://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2015_intellectual_proper
ty_lit/materials/the_right_of_publicity_article_rosenthal.authcheckdam.pdf&gt> accessed 30 August 2017.
76
Sondik v Kimmel 2011 NY Slip Op 52262 .
77
Lyngstrad v Annabas Products [1977] FSR 62.
78
Charlotte Waelde, ‘Marilyn Monroe, Posh Spice and Me Personality, Property and Privacy’
&lt<https://www.era.lib.ed.ac.uk/bitstream/handle/1842/2293/marilynmonroeposhspiceandme.pdf?sequence=1
&gt> accessed 29 August 2017.
79
Moot proposition ¶ 6.

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ARGUMENTS ADVANCED

to show nature and intent behind the practices of the Khosads so that viewers are correctly
informed.80

5. THE PROMOTERS, DR. JNANENDRA MITRA AND ZUBIN DUBASH ARE NOT

VICARIOUSLY LIABLE FOR THE ACTS OF TCPL, BIOSCOPE AND FWPL RESPECTIVELY FOR
THE OFFENCES PUNISHABLE U/S 292 AND 499 OF CAPC AND U/S 66, 67A OF THE

CLANDESTINESIA INFORMATION TECHNOLOGY ACT, 2000.


The counsel submits that the Promoters, Dr. Jnanendra Mitra and Zubin Dubas are not
vicariously liable for the acts of TCPL, FWPL and Bioscope for the offences punishable u/s
292 and 499 of CaPC and u/s 67 and 67A of the IT Act as there was criminal intent and
active role by all three in the offences committed.

5.1 No LIABILITY UNDER SECTION 67, 67A OF IT ACT.

The counsel submits that in Sunil Bharti Mittal81, it has been stated that an individual who
has perpetrated the commission of an offence on behalf of a company can be made accused,
along with the company, if there is sufficient evidence of his active role coupled with
criminal intent. Second situation in which he can be implicated is in those cases where the
statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating
such a provision.

However, the principle of attribution of “alter ego” as mentioned in section 8582, has to be
applied only in one direction namely where a group of persons that guide the business had
criminal intent, that is to be imputed to the body corporate and not the vice versa. Otherwise,
there has to be a specific act attributed to the Director or any other person allegedly in control
and management of the company, to the effect that such a person was responsible for the acts
committed by or on behalf of the company.83

It is further submitted that, it follows from Tesco Supermarkets 84 that corporate criminal
liability is not a species of vicarious liability but is a species of attribution of natural actions
and states of minds to artificial entities. Interestingly, the Privy Council in a subsequent

80
Moot proposition ¶ 10.
81
Sunil Bharti Mittal v CBI [2014] 4 SCC 282.
82
Information Technology 2000, s 85.
83
Aneeta Hada v Godfather Travel and Tours(P) Ltd [2012] 5 SCC 661.
84
Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1.

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judgment in Meridian Global Funds Management Asia Limited v. Securities Commission85


has expanded the rule laid down in Tesco by holding that, “the company builds upon the
primary rules of attribution by using general rules of which are equally available to all natural
persons, namely, the principles of agency”.

The counsel submits that in Aneeta Hada v. Godfather Travels & Tours (P) Ltd. 86 and
Iridium India Telecom V Motorola87 the principle of “alter ego”, was applied only in one
direction, namely, where a group of persons that guide the business had criminal intent, that
is to be imputed to the body corporate and not the vice versa. Otherwise, there has to be a
specific act attributed to the Director or any other person allegedly in control and
management of the company, to the effect that such a person was responsible for the acts
committed by or on behalf of the company. It is further submitted that, the Court 88 thus held
that the principle of attribution cannot be applied in the reverse scenario to make the directors
liable for offences committed by the company.

The counsel submits that in the present case89, however, this principle is applied in an exactly
reverse scenario. Here, company is the accused person and since the appellants represent the
directing mind and will of each company, their state of mind is the state of mind of the
company and, therefore, on this premise, acts of the company are attributed and imputed to
the appellants. It is difficult to accept it as the correct principle of law. As demonstrated, this
proposition would run contrary to the principle of vicarious liability detailing the
circumstances under which a Director of a company can be held liable.

The counsel submits that, in this regard, it would be useful to advert to the observations made
by a three-Judge Bench of this Court in S.M.S. Pharmaceuticals 90 wherein it has been
specifically stated that there is no universal rule that a Director of a company is in charge of
its everyday affairs. It all depends upon the respective roles assigned to the officers in a
company.

The proviso to the sub-section91 contains an escape route for persons who are able to prove
that the offence was committed without their knowledge or that they had exercised all due

85
Meridian Global Funds Management Asia Limited v Securities Commission [1995] UKPC 5.
86
Aneeta Hada v Godfather Travel and Tours(P) Ltd [2012] 5 SCC 661.
87
Iridium India Telecom Ltd V Motorola Inc [2011] 1 SCC 74.
88
Iridium India Telecom Ltd V Motorola Inc [2011] 1 SCC 74.
89
Moot proposition.
90
SMS Pharmaceuticals v Neeta bhalla and anr [2005] 8 SCC 89.
91
IT Act 2000, s 85.

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diligence to prevent commission of the offence.92 It is contended that the appellants had no
knowledge of obscenity being portrayed as displayed by the facts 93 where it is clearly
mentioned that the Company (TCPL) stated that the truth should be shown and the
documentary should be in as vivid a manner as possible just so that the visual prowess of
TCPL could be shown.

5.3 VICARIOUS LIABILITY UNDER 292 AND 499 OF CAPC.

The counsel submits that, vicarious liability of the director would arise if any provision exists
in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious
liability.94 It has been held in Maksud Saiyed v. State of Gujarat and Ors.95that whereas a
person in charge of the affairs of the company and in control thereof has been made
vicariously liable for the offence committed by the company along with the company,
vicarious liability has been held to be not extendable to the Directors or officers of the
company.

It is further submitted that, as no statutory provision exists under the CaPC for vicarious
liability, 96 one has to rely on many case laws relating to publication wherein it has been
constantly held that directors cannot be held to be vicariously liable for defamation. There is
no act or omission attributed to the petitioners and they are arrayed as parties merely because
of their being Director of the Company and they have nothing to do with the impugned
publications and are not involved with the making, or publishing the impugned item. The
Chairman or the Managing Director of the company owning a newspaper is neither the editor,
nor the printer nor the publisher and therefore no presumption could be drawn against holder
of these offices even though they are, by reason of the offices held by them, in charge of, and
responsible to, the company for the conduct of its business. 97 Reliance is placed on the
judgment of Shobhna Bhartia and Ors. Vs. NCT of Delhi and Ors.98 and K.Jagannatha Shetty
and Yogeshwar Dayal99.

92
SMS Pharmaceuticals v Neeta bhalla and anr [2005] 8 SCC 89.
93
Moot Proposition.
94
Maksud Saiyed v State of Gujarat and Ors [2008] 5 SCC 668; S K Alagh v State of UP [2008] 5 SCC 662;
HDFC securities Ltd and Ors v State of Maharashtra and anr [2017] 1 SCC 640.
95
Maksud Saiyed v State of Gujarat and Ors [2008] 5 SCC 668.
96
HDFC securities Ltd and Ors v State of Maharashtra and anr [2017] 1 SCC 640.
97
K M Mathew v State of Kerala [1992] 1 SCC 217; Shobhna Bhartia and Ors v NCT of Delhi and Ors [2008] 1
SCC 327; K Jagannatha Shetty v Yogeshwar Dayal AIR 1992 SC 2206.
98
Shobhna Bhartia and Ors v NCT of Delhi and Ors [2008] 1 SCC 327.
99
K.Jagannatha Shetty v Yogeshwar Dayal AIR 1992 SC 2206.

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ARGUMENTS ADVANCED

Hence, it is settled legal proposition that in the absence of specific averments in the complaint
and evidence to support those averments, nobody except the printer, publisher and editor of
the newspaper can be presumed to be responsible for the contents of the newspaper and
cannot be prosecuted for the offence of defamation.100

6. TCPL HAS BREACHED THE SHA BY EXECUTING THE NARRATION AGREEMENT AND
LIABLE TO PAY DAMAGES FOR THE SAME.

The counsel humbly submits that TCPL has breached the SHA by executing the narration
agreement and is liable to pay for damages for the same.

6.1 THE AGREEMENT WAS WITH A RELATED PARTY.

The counsel humbly submits that promoters are a related party under section 2(76)101 which
defines “Related Party” with reference to a company.

It is important in this regard to understand the meaning of the term Key Managerial
Personnel. The Companies Rules102 defines: Key management personnel are those persons
who have the authority and responsibility for planning, directing and controlling the activities
of the reporting enterprise. In this regard the definition of Promoter under Companies Act,
2013103 is defined as who has control over the affairs of the company, directly or indirectly
whether as a shareholder, director or otherwise.

The above definition makes promoter a related party with regard to TCPL.

6.2 NARRATION AGREEMENT WAS A CONTRACT.

A valuable consideration in the sense of law may consist either in some right, interest, profit,
or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given,
suffered, or undertaken by the other.104 Consideration is the price for which the promise of
the other is bought, and the promise thus given for value is enforceable. 105 The Calcutta High
court has observed in a case that “consideration is the price of a promise, a return or quid pro

100
Indu jain v NCT of Delhi [2012] 129 DRJ 256 (Del).
101
Indian Companies Act, s 2(76).
102
Accounting Standard 18.
103
Indian Companies Act 2013, s 2(69).
104
Currie v Misa (1875) LR 10 ex 153; Midland Bank and trust co Ltd v Green [1979] 3 Al ER 28; R v
Braithwaite [1983] 1 WLR 383.
105
Sir Fredrick Pollock, Pollock on Contracts (13th edn) 133.

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ARGUMENTS ADVANCED

quo, something of value received by the promise as inducement of the promise.”106 It need
not to be of any particular value; it need not be in appearance or in fact or of approximately
equal value with the promise for which it is exchanged.107 The promisee who seeks to enforce
the promise must have given something of value at the request of the promisor. Herein the
promoter as a narrator gave his service to the producers under the narration agreement and
hence it amounts to a good consideration. Alteration of position by one person constitutes a
good consideration for a promise on the faith of which he has so altered his position. 108 Here,
the promoter has altered his position from a promoter to a narrator and hence it amounts to a
good consideration and therefore a contract.

6.3 AGREEMENT WAS OF THE NATURE WHICH REQUIRED PRIOR APPROVAL OF FWPL.

Any related party contract required the prior approval of FWPL according to SHA. 109
Further, any related party contract which is of the nature of availing or rendering of services
falls under the purview of section 188 of the companies which defines related party
transaction. Section 188 specifies that an arrangement or contract with a related party falls
under Related Party Transaction in Section 188. In this regard it is essential to define the term
services. The Hon’ble Supreme Court in the case of Union of India & Ors. v. M/s. Martin
Lottery Agencies Ltd.110 defined it as "work done or duty performed for another or others; a
serving; as, professional services, repair service, a life devoted to public utility service". The
Finance Act, 2012111 defines “Service”, (for the purpose of levy of Service Tax) as: Service
means any activity carried out by a person for another for consideration, and includes detailed
service.

It is humbly submitted that from the above arguments it is clear that the said agreement falls
under the purview of Section 188 of the Companies Act.

The counsel invites the attention of the court to language of clause 42 112, it clearly states the
object of the parties in SHA and hence serves as the main object clause. Clause 42 states that
the ‘Parties agree to cooperate in good faith with each other in the functioning of the
Company (TCPL)’. The functioning of the company is the main object and that should be the

106
Fazalaldin Mandal v Panchanan Das AIR 1957 Cal 92.
107
Indian Contract Act, s 25.
108
Shailesh Chandra Guha v Bechari Gape AIR 1925 Cal 94.
109
Moot proposition ¶ 8.
110
Union of India & Ors v M/s Martin Lottery Agencies Ltd [2009] 12 SCC 209.
111
Finance Act 2000, s 65.
112
Moot Proposition ¶ 8.

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ARGUMENTS ADVANCED

guide to determine whether the nature of a business of an entity was in its ordinary course of
business or not. The narration agreement was clearly not of the nature that it needed to be
executed with the promoters, who have no experience in acting and that the execution of the
narration agreement wouldn’t in any way aid the functioning of the company. Hence, the
narration agreement was not in the ordinary course of business. To expression ‘arm's length
transaction’ means a transaction between two related parties that is conducted as if they were
unrelated, so that there is no conflict of interest.113 The concept of an arm’s length transaction
is to ensure that both parties in the transaction are acting in their own self-interest and are not
subject to any pressure from the other. The promoters clearly had a conflict of interest while
performing as narrators. Hence, TCPL is liable for substantial damages by breaching the
SHA.

6.4 INTENT OF FWPL.

Clause 42 is meant only to protect the interest of the acquirer (appellant) and the investment
made by it. It becomes more than clear that it does not want the target company to undergo
any paradigm shift from its present position without the appellant’s knowledge and approval
and to ensure standards of good corporate governance and to protect the interests of the
appellant from the whims and fancies of the promoters of the target company. This clause
merely enables the acquirer to oppose a proposal and not carry any proposal on its bidding.
Therefore the intent of the appellant is only to see that the money of the shareholder is not
siphoned off illegally.

113
Accounting Standards 18.

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER
PRAYER

PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, this
Hon’ble Supreme Court may be pleased to to adjudge and declare that:
1. Section 292 of the Clandestinesia Penal Code and Section 66 and 67A of the
Clandestinesia Information Technology Act, 2000 are vague and arbitrary and ultra vires the
Constitution.
2. Khosad tribe have a fundamental right guaranteed under Article 29 of the Constitution of
Clandentinesia to perform the annual ritual of Khosadasti.
3. Khosads cannot claim to have a ‘reputation’ as a community in as much as any consequent
injury to such reputation can amount to the criminal offence of defamation and the same
being punishable u/s 499 and 500 of the Clandestinesia Penal Code.
4. Khosads as a community cannot claim publicity rights.
5. The Promoters, Dr. Jnanendra Mitra and Zubin Dubash are not vicariously liable for the
acts of TCPL, Bioscope and FWPL respectively for the offences punishable u/s 292 and 499
of CaPC and u/s 66, 67A of the Clandestinesia Information Technology Act, 2000.
6. TCPL has breached the SHA by executing the Narration Agreement and is liable to pay
damages for the same.

AND/OR
Pass any other order that this Hon’ble Court may deem fit in the interests of justice, equity
and good conscience.
And for this the Petitioners/ Appellant, as is duty bound shall forever humbly pray.

Sd/-

(Counsel on behalf of the Appellants/Petitioner)

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MEMORANDUM ON BEHALF OF APPELLANTS/ PETITIONER