Moot Memorial Respondents, Assignments of Law

Download Moot Memorial Respondents and more Assignments Law in PDF only on Docsity!

TABLE OF CONTENTS ~i~

INTERNAL MOOTING CHAMPIONSHIPS 2021

IN THE HON’BLE SUPREME COURT OF INDUS

WP No: ____/20^ SETFLIX ….PETITIONER Vs. STATE OF INDUS ….RESPONDENT Clubbed with WP No: SETFLIX ….PETITIONER Vs. MR. RUKH SHAH KHAN ….RESPONDENT BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDUS MEMORANDUM ON BEHALF OF RESPONDENT [This memorandum has been prepared for the Respondents: State of Indus and Mr. Rukh Shah Khan]

• DRAWN AND FILED BY THE COUNSEL FOR THE RESPONDENTS- Team code: IMC 50

TABLE OF CONTENTS ~ii~

TABLE OF CONTENTS

TABLE OF CONTENTS ...........................................................................................................ii LIST OF ABBREVAITION .................................................................................................... iii TABLE OF AUTHORITIES .................................................................................................... iv STATEMENT OF JUSRISDICTION ...................................................................................... vi STATEMENT OF FACTS ......................................................................................................vii STATEMENT OF ISSUES ................................................................................................... viii SUMMARY OF ISSUES ......................................................................................................... ix ARGUMENTS ADVANCED ................................................................................................... 1 ISSUE 1 ..................................................................................................................................... 1 ISSUE 2 ..................................................................................................................................... 1 PRAYER .................................................................................................................................... 7

LIST OF ABBREVIATIONS ~iii~

LIST OF ABBREVAITION

AIR All India Repoter SCC Supreme Court Cases SC Supreme Court Ors Others Anr Another

TABLE OF AUTHORITIES ~iv~

TABLE OF AUTHORITIES

CASES REFFERED

1. Andhra Industrial Works v Chief Controller of Imports and Ors, AIR 1974 SC
2. (^) Romesh Thapar v Union of India, AIR 1950 SC 124.
3. Fertilizer Corp. Kamgar Union v. Union of India, AIR 1981 SC 344.
4. (^) Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
5. (^) Mohammed Ishaq v. S. Kazam Pasha, (2009) 12 SCC 748
6. (^) State of West Bengal v. Ratnagiri Engineering Private Limited, (2010) 4 SCC
7. (^) Asstt. Collector of Central Excise v. Jainson Hosiery AIR 1979 SC 1889
8. (^) Union of India v. Paul Manickam, AIR 2003 SC 4622
9. A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
10. (^) Sushila Saw Mill v. State of Orissa, (1995) 3 SCC 615.
11. Dharam Dutt v. Union of India, AIR 2004 SC 1295
12. (^) Ramesh Thapar v. State of Madras, AIR 1950 SC 124.
13. (^) Virendra v. State of Punjab, AIR 1958 SC 896. LEGISLATIONS REFERRED
14. Information Technology Act, 20 00
15. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 WEBSITES REFERED
16. www.thehindu.com
17. www.scconline.com
18. www.indiankanoon.com
19. www.legalservices.com
20. www.westlaw.com

TABLE OF AUTHORITIES ~v~

6. www.manupatra.com
7. www.indialegallive.com
8. www.legitquest.com

STATEMENT OF JURISDICTION ~vi~

STATEMENT OF JUSRISDICTION

THE RESPONDENTS HAVE APPROACHED THE HON’BLE SUPREME COURT

OF INDUS AS A RESPONSE TO THE WRIT PETITION FILED BY THE

PETITIONER UNDER ART. 32 OF THE CONSTITUTION OF INDIA, 1950 FOR

THE VIOLATION OF FUNDAMENTAL RIGHTS ENUMERATED IN PART III OF

THE CONSTITUTION.

THE RESPONDENT MAINTAINS THAT NO VIOLATION OF RIGHTS HAS

TAKEN PLACE. THEREFORE, THIS HON’BLE COURT NEED NOT ENTRATAIN

ITS JURISDICTION IN THIS WRIT PETITION.

STATEMENT OF FACTS ~vii~

STATEMENT OF FACTS

1. Setflix, an OTT platform in Indus, created a docuseries on Lobbywood, the film industry of Indus. The docuseries detailed the growth of Lobbywood and the impact of actors on the industry. For the finale of the docuseries, Setflix added a 20 minutes clip of Mr. Rukh Shah Khan waving and interacting with the paparazzi.
2. Mr. Rukh Shah Khan posted 10 minutes of the same on his Webstagram stories on 2nd March, 2021. Setflix did not appreciate the fact that Mr. Rukh Shah Khan took the liberty to post a major part of the docuseries on social media and hence contacted his managers regarding. Mr Rukh Shah Khan, however, refused to remove the story. He claimed that his stardom was used by Setflix for monetary gain. Aggrieved by the same, Setflix approached the High Court of Delvy seeking remedy for the alleged copyright violation.
3. Prior to this incident, the Government had introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, on 25th February 2021. Previously, OTT platforms, such as Setflix, had produced content that was objected to by certain sections of the society for vulgarity and mocking religious sentiments. Moreover the Government had received complaints regarding the differential treatment between OTT platforms and Television telecasts. The guidelines mandated setting up a three-tier structure to address grievances made in relation to the publishers on OTT platforms and Digital News. This system includes an oversight committee headed by the government.
4. Aggrieved by these guidelines, Setflix filed a petition before the Supreme Court of Indus challenging their validity. Setflix claimed that the new rules resulted in excessive government interference and was, furthermore, violative of the Freedom of Speech and Expression, Article 19(1)(a) of the Constitution of Indus. They pray that the rules should be withdrawn and an expert committee should be set up with public consultation to establish a reasonable framework.
5. The petition was admitted by the Supreme Court and clubbed with the copyright violation pending before the High Court of Delvy. Important Definitions ‘Petitioners’ for the purposes of this memorandum for the three issues shall stand for “Setflix”, ‘Respondents’ for the purpose of this memorandum for the first and second issue shall stand for “State of Indus”, for the third issue shall stand for “Mr. Rukh Shah Khan”. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 shall hereinafter be referred to as IT Rules, 2021 for the sake of Brevity.

STATEMENT OF ISSUES ~viii~

STATEMENT OF ISSUES

**1. Whether the petition filed by Setflix for the constitutionality of the Rules before the Supreme Court of Indus is maintainable?

2. Whether the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are constitutional?
3. Whether the Webstagram story posted by Mr. Rukh Shah Khan amounts to a copyright Violation?**

SUMMARY OF ISSUES ~ix~

SUMMARY OF ISSUES

1. Whether the petition filed by Setflix for the constitutionality of the Rules before the Supreme Court of Indus is maintainable? The counsel for the respondents submit before this hon’ble Supreme Court that the writ petition filed by the petitioner is not maintainable for the reasons mentioned below; 1.1 There is no violation of any legal, constitutional and fundamental rights 1.2 Existence of alternative remedies 2. Whether the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are constitutional? The counsel for the respondents submit before the court that the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is indeed constitutional as there are no rules which violate any legal, constitutional or fundamental rights of the citizens. 2.1 IT Rules, 2021 have not been framed arbitrarily 2.2. There exists no violation of freedom of speech and expression as the IT Rules, 2021 falls under the restriction provided under art. 19(2) of the constitution 2.2.1 The IT Rules, 2021 falls under the exception of public order 2.2.2 Anticipatory action has held to be valid in respect of freedom of speech and expression 3. Whether the Webstagram story posted by Mr. Rukh Shah Khan amounts to a copyright Violation? The counsel for the Respondent submits before this hon’ble Supreme Court that Mr Rukh Shah Khan has not committed any copyright violation. With respect to Section 52 of Copyright Act, 1957, Mr Rukh Shah Khan does not amount to any Copyright violation. Section 52 of the act discusses about Fair Dealing

ARGUMENTS ADVANCED ~x~

ARGUMENTS ADVANCED

ISSUE 1

1. Whether the petition filed by Setflix for the constitutionality of the Rules before the Supreme Court of Indus is maintainable? A petition can be filed under Article 32 of the Constitution in the Supreme Court for enforcement of Fundamental Rights, as guaranteed by part III of the Constitution.^1 In the present case, there has been no violation of the fundamental rights, since the action taken was procedurally correct and was taken to remove any ambiguity and better the regulations of OTT platforms and online news media houses. 1.1 There is no violation of Fundamental Rights The respondent submits that the Court has held that only if there is a violation of Fundamental Rights can it step in under the Jurisdiction of Article 32^2. The Petitioner is filing the Writ Petition raising a mere objection on the guidelines and digital media ethics code, with no locus standi, as no Fundamental right has been violated. No action lies in the Supreme Court under Art. 32 unless there is an infringement of a Fundamental Right^3 , as the Supreme Court has previously emphasized that “The violation of Fundamental Right is the sine qua non of the exercise of the right conferred by Art. 32.”^4 Thus, where there exists no Damnus, the petitioner cannot seek for remedy. Thus leaving the petition regarding the constitutionality of the Information Technology Rules, 2021^5 , before the apex court to be not maintainable. 1.2 Existence of alternative remedies Article 226 of the constitution of Indus allows for the issue of writs to any person or authority including in appropriate cases, any Government, for the enforcement of any of the rights conferred by Part III and for any other purpose. In a group discussion on “maintainability of writ petitions and alternate remedies” in the HC, Uday Dastane had stated that Article 226 of the Constitution of India, which is usually invoked when the fundamental rights are violated, is an alternate remedy. (^1) Andhra Industrial Works v Chief Controller of Imports and Ors, AIR 1974 SC 1539. (^2) Romesh Thapar v Union of India, AIR 1950 SC 124.

ARGUMENTS ADVANCED ~xi~ This Hon’ble Court has itself imposed a self-restraint in its own wisdom on the exercise of jurisdiction under Art. 32, where the party invoking the jurisdiction has an effective adequate alternative remedy in the form of Art. 226 of the Constitution, although this Rule is a Rule of convenience and discretion rather than a Rule of law.^6 But, where writ petition is challenging the Constitutional validity of any provision, then the petitioner should file writ petition before High Court under Art. 226 of the Constitution.^7 Thus this alternate remedy should first be exhausted first and should approach the constitutional courts only when there exists no relief. While it is the duty of the Supreme Court to enforce fundamental rights, it is also a duty to ensure that this weapon under Article 32 must not be misused or permitted to misused by creating a bottleneck in the Superior Court preventing other genuine violation of Fundamental Rights being considered by the court. That would be an act or a conduct that would defeat the purpose of the preservation of the Fundamental Rights^8. It was held in Hon’ble apex court in Asstt. Collector of Central Excise v. Jainson Hosiery^9 where there is alternative remedy, court should not interfere unless the alternative remedy is too dilatory or cannot grant quick relief. Moreover, in order to invoke the jurisdiction under Art. 32 of the Constitution to approach this Court directly, it has to be shown by the petitioner as to why the High Court has not been approached, could not be approached or it is futile to approach the High Court. Unless satisfactory reasons are indicated in this regard, filing of petition in such matters directly under Art. 32 of the Constitution is to be discouraged^10. Thus, the respondents humbly submit that the present writ petition is not maintainable on the ground that alternative remedy has not been exhausted. 1.3 THAT THERE IS ABUSE OF PROCESS BY THE PETITIONER It is humbly submitted before the Hon’ble Court that, per curiam Sachidanand Pandey v. State of West Bengal^11 , courts must restrict the free flow of case under the attractive name (^3) Andhra Industrial Works v. Chief Controller of Imports, AIR 1974 SC 1539. (^4) Fertilizer Corp. Kamgar Union v. Union of India, AIR 1981 SC 344. (^5) Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. (^6) Mohammed Ishaq v. S. Kazam Pasha, (2009) 12 SCC 748 (^7) State of West Bengal v. Ratnagiri Engineering Private Limited, (2010) 4 SCC 453. (^8) Chhetriya Pardushan Mukti Sangharsh Samiti v. State of Uttar Pradesh, (1990) 4 SCC 449: AIR 1990 SC 2060: JT 1990 (3) SC 685 (^9) Asstt. Collector of Central Excise v. Jainson Hosiery AIR 1979 SC 1889 (^10) Union of India v. Paul Manickam, AIR 2003 SC 4622 (^11) (1987) 2 SCC 295: AIR 1987 SC1109: 1987 (1) Supreme 492

ARGUMENTS ADVANCED ~xii~ of Public Interest Litigation, otherwise it will pose a threat to courts and public inasmuch as traditional litigation will suffer and the court of law instead of dispensing justice will have to take upon them, administrative and executive function. Thus the route of Article 32 shall be regarded only as a speedy remedy for bona fide cause and not as a tool to cause unnecessary vexation which will delay justice in significant matters as the Supreme Court already faces a backlog of 60,469 matters^12. Thus Judiciary demands utilisation of its resources in the most judicious manner possible. Thus, the Respondents vehemently contend that the petitioner’s present petition is not maintainable for the aforementioned reasons. (^12) As on March 10, 2020; https://main.sci.gov.in/statistics; accessed on June 16, 2020

ARGUMENTS ADVANCED ~ 1 ~

ISSUE 2

2. Whether the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are constitutional? The counsel for the respondents submit before the court that the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are indeed constitutional as there are no rules which are violative of Art.19 or the Rule of Law. Part III of the Constitution guarantees the Fundamental Right along with the exception that prevents such right from being an absolute right and Rules fall under reasonable restrictions. 2.1. Whether or not the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have been framed arbitrarily The respondent submits that the rules have not been framed arbitrarily. The decision has been taken in consonance with various provisions of various act, inter alia , to seek to regulate digital news portals and OTT platforms, by imposing Government oversight and a ‘Code of Ethics’ on them to ensure proper order of functioning. 2.2. There exists no violation of freedom of speech and expression as the IT Rules, 2021 falls under the restriction provided under art. 19(2) of the constitution The respondent submits before the Court that the Central Government of India along with the Ministry of Electronics and Information Technology (MeitY) and the Ministry of Information and Broadcasting (MIB) was justified in making the IT Rules, 2021 as the law qualifies being reasonable as it falls under the ambit of one of the restrictions of freedom of speech and expression. It was observed by the Hon’ble Justice Patanjali Shastri that, “Man as a rational being desires to do many things, but in a civil society his desires have to be controlled, regulated....”^13 In the present case, the IT Rules, 2021 aims to achieve Art. 38 of the Constitution which aims at social order, as certain content posted on OTT platforms or digital news media or any other intermediary may result to public instigation thus destroying the social order. Moreover, in the case of striking a balance between rights of an individual to the right of citizens, the former becomes insignificant.^14 (^13) A.K. Gopalan v. State of Madras, AIR 1950 SC 27. (^14) Sushila Saw Mill v. State of Orissa, (1995) 3 SCC 615.

ARGUMENTS ADVANCED ~ 2 ~ Given that there exists no fixed test/standard for reasonableness, cases should be decided on its own facts and merit^15 , Thus it is pleaded by the counsel for the respondents that these merits should be taken into consideration. 2.2.1 The IT Rules, 2021 falls under the exception of public order; The respondent submits before the Court that the IT Rules, 2021 comes under the ambit of one of the restrictions present under Article 19(2); i.e Public Order. The apex Court has defined ‘public order’ as “the state of tranquility which prevails among the members of society as a result of internal regulation, enforced by the government which they have established.”^16 It is humbly submitted that the IT Rules, 2021 are implemented amidst growing concerns around lack of transparency, accountability and rights of users related to digital media after elaborate consultation with the public and stakeholders as certain content on intermediaries would affect public order. 2.2.2 Anticipatory action has held to be valid in respect of freedom of speech and expression The respondent submits before this honb’le Court that the IT Rules, 2021 framed by the Central Government of India along with the Ministry of Electronics and Information Technology (MeitY) and the Ministry of Information and Broadcasting (MIB) is anticipatory in nature. Moreover, the Apex Court has also held that the restriction imposed on anticipation is considered to be valid in respect of freedom of speech and expression^17. In addition, the legal maxim Abundans Cautela Non Noce^18 also finds applicability in the present scenario. (^15) Dharam Dutt v. Union of India, AIR 2004 SC 1295 (^16) Ramesh Thapar v. State of Madras, AIR 1950 SC 124. (^17) Virendra v. State of Punjab, AIR 1958 SC 896. (^18) There is no harm in being cautious

ARGUMENTS ADVANCED ~ 3 ~ 2.3 Censorship is a restrictive measure for the benefit of the society In KA Abbas v Union of India^19 , the Supreme Court held that Censorship is a restrictive measure followed for the benefit of the society. Any form of art expresses an idea to the people and art and literature influences people to a very large extend. It is a necessary duty of the state to ensure that those words, signs or any form of expression if exposed to those who are open to influences of this sort would corrupt such minds, are censored. Pre censorship by itself shall not be struck down on grounds of unreasonableness this was also reiterated in the landmark judgment of the Supreme Court in Renjith D Udeshi v State of Maharashtra^20 Thus the counsels on behalf of the respondent pleads that the IT Rules, 2021 are Constitutional for the aforementioned reasons. (^19) KA Abbas v Union of India AIR 1971 SC 481 (^20) Renjith D Udeshi v State of Maharashtra AIR 1965 SC 881

ARGUMENTS ADVANCED ~ 4 ~

ISSUE 3

Whether the Webstagram story posted by Mr. Rukh Shah Khan amounts to a copyright violation? Whether the Webstagram story posted by Mr. Rukh Shah Khan amounts to a copyright violation? The Respondents humbly submit before this honb’le court that Mr Rukh Shah Khan does not amount to a copyright violation. Doctrine of Fair Dealing is an exception to the law that would usually protect any material that would be considered to be copyrighted as under the Indian Copyright Act, 1957. It is a legal doctrine which permits a person to use any work which is protected under the Act with limited usage of such work so as to maintain the sanctity and originality of such work as well as the registered proprietor of the work. Fair dealing is a significant limitation on the exclusive right of the copyright owner. It has been interpreted by the courts on a number of occasions by judging the economic impact it has on the copyright owner. Where the economic impact is not significant, the use may constitute fair dealing. The fair nature of the dealing depends on the following four factors:

1. the purpose of use : Mr Rukh Shah Khan posted the snippet on his story because setflix used his face and told his story in the documentary for the amount of time he appears. The purpose of use is mainlt promotional tactic and not with any malicious thought
2. the nature of the work : The nature of the work is a documentary, it is an original work in terms of ideas and making but it uses images and information regarding top Bollywood celebrities which cannot be considered original and can’t be protected
3. the amount of the work used : The amount of work used is just a very little time from the whole documentary which is 10 miutes
4. the effect of use of the work on the original : There wouldn’t be much effect on the work since the nature of the work is already known to the public since it is a documentary and only 10 minutes were posted from the whole lot.

ARGUMENTS ADVANCED ~ 5 ~ Case law that substantiates this is Folsom vs Marsh

|ARGUMENTS ADVANCED|ISSUE 2| ~ 6 ~

PRAYER ~ 7 ~

PRAYER

Wherefore , in light of the issues raised, authorities cited and arguments advanced, the Hon’ble Supreme Court of Indus be pleased to:

1. Dismiss the writ petition.
2. In the alternative declare and adjudge: a. That the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are constitutional b. That the Webstagram story posted by Mr. Rukh Shah Khan does not amount to a copyright violation c. hold the petition to be not maintainable AND/OR Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience. All of which is most humbly and respectfully submitted. Counsel on behalf of Respondents Sd/-