Arguments for Issue 1

Whether Titania’s prosecution of Aaron Chacko violates the relevant legal provisions?

Arguments for Petitioner

 Infringement of Petitioners Right to Privacy

IT Act Provisions

66E. Punishment for violation of privacy.

Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any
person without his or her consent, under circumstances violating the privacy of that person, shall be
punished with imprisonment which may extend to three years or with fine not exceeding two lakh
rupees, or with both.

Explanation.–For the purposes of this section–

(a) ―transmit‖ means to electronically send a visual image with the intent that it be viewed by a person
or persons;

(b) ―capture‖, with respect to an image, means to videotape, photograph, film, or record by any means;

(c) ―private area‖ means the naked or undergarment clad genitals, public area, buttocks or female
breast:

(d) ―publishes‖ means reproduction in the printed or electronic form and making it available for public;

(e) ―under circumstances violating privacy means circumstances in which a person can have a
reasonable expectation that–

(i) he or she could disrobe in privacy, without being concerned that an image of his private

area was being captured; or

(ii) any part of his or her private area would not be visible to the public, regardless of whether

that person is in a public or private place.

67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc., in
electronic form.

Whoever publishes or transmits or causes to be published or transmitted in the electronic form any
material which contains sexually explicit act or conduct shall be punished on first conviction with
imprisonment of either description for a term which may extend to five years and with fine which may
extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of
either description for a term which may extend to seven years and also with fine which may extend to
ten lakh rupees.

Indian Penal Code Provisions:

Section 203 (not sure????)

Giving false information respecting an offence committed.

Whoever knowing or having reason to believe that an offence has been committed, gives any
information respecting that offence which he knows or believes to be false, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or with both.

The Indecent Representation of Women (Prohibition) Act, 1986

Section 4.

Prohibition of publication or sending by post of books, pamphlets, etc., containing indecent

representation of women.

No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post
any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure
which contains indecent representation of women in any form:

Provided that nothing in this section shall apply to--

(a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or
figure--

(i) the publication of which is proved to be justified as being for the public good on the ground that such
book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure is in
the interest of science, literature, art, or learning or other objects of general concern; or

(ii) which is kept or used bona fide for religious purposes;

(b) any representation sculptured, engraved, painted or otherwise represented on or in--

(i) any ancient monument within the meaning of the Ancient Monument and Archaeological Sites and
Remains Act, 1958 (24 of 1958); or

(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose;

(c) any film in respect of which the provisions of Part II of the Cinematograph Act, 1952 (37 of 1952), will
be applicable.
Section 6.

Penalty

Any person who contravenes the provisions of section 3 or section 4 shall be punishable on first
conviction with imprisonment of either description for a term which may extend to two years, and with
fine which may extend two thousand rupees, and in the event of a second or subsequent conviction
with imprisonment for a term of not less than six months but which may extend to five years and also
with a fine not less than ten thousand rupees but which may extend to one lakh rupees.

Case Laws:

K.S Puttaswamy v. Union of India :

Aka Aadhaar Case

This case is the cornerstone of the ‘Right to Privacy’ jurisprudence in India.

The nine Judge Bench in this case unanimously reaffirmed the right to privacy as a fundamental right
under the Constitution of India.

Court held that the right to privacy was integral to freedoms guaranteed across fundamental rights, and
was an intrinsic aspect of dignity, autonomy and liberty.

The case began with the question of whether the right to privacy was a fundamental right, which was
raised in 2015 in the arguments concerning the legal validity of the Aadhaar database.

The Bench unanimously held that “the right to privacy is protected as an intrinsic part of the right to life
and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the
Constitution”.

In doing so, it overruled previous judgments of the Supreme Court in M.P. Sharma and Kharak Singh,
insofar as the latter held that the right to privacy was not recognised under the Indian Constitution.

“The right to privacy is inextricably bound up with all exercises of human liberty – both as it is specifically
enumerated across Part III, and as it is guaranteed in the residue under Article 21. It is distributed across
the various articles in Part III and, mutatis mutandis, takes the form of whichever of their enjoyment its
violation curtails.”
  Petitioners Right to Reputation

Subramanian Swamy v. Union of India, Min. of Law (2016)

Facts of the case:

In the year 2014, Dr. Subramanian Swamy alleged that the boats seized by the Sri Lankan authorities
belonged to Sasikala, a close associate of the chief minister J Jayalalithaa and former union minister and
senior DMK leader TR Baalu.

Subramanian Swamy made these allegations in a letter to the Prime Minister, Narendra Modi in which
he also accused Jayalalithaa of appropriating all his good work on Mullaiperiyar dam issue.

In response to these statements a defamation suit was filed by the State Government of Tamil Nadu
against Subramanian Swamy and a few other notable politicians.

Subramanian Swamy and the other prominent politicians challenged the constitutionality of the criminal
defamation law in India, i.e., Sections 499 and 500 of the Indian Penal Code (IPC).

A two-judge bench of the Supreme Court comprising Justices Dipak Misra and P. C. Pant decided the
case.

Several petitions were filed under Article 32 of the Constitution of India which challenged defamation as
an offence. The challenge before the court was twofold, firstly whether criminalising defamation is an
excessive restriction on freedom of speech, and secondly whether the criminal defamation law under
Sections 499 and 500 is vaguely phrased and hence arbitrary.

The petitioners stated that the offence of defamation hampered their Right to Freedom of Expression
guaranteed under Article 19(1)(a) of the Constitution of India.

Petitioner's Arguments:

The counsel for the petitioner pitched over the submissions that Article 19(1)(a) is a wide concept which
is subject to the restrictions under Article 19(2) and the restrictions should be construed very narrowly.

The exception has to be understood by applying the principle of noscitur a sociis and excluding criminal
defamation.

The defamation being a civil wrong i.e., in personam is outside the scope of the Fundamental Rights
which are conferred in the public interest, therefore, Section 499 is outside the scope of Article 19(2) of
the Constitution.

One’s right to reputation is the facet of a private right under Article 21, therefore, defamation of any
person by a private person cannot be treated as a “crime”, for it does not sub serve any public interest
and its inclusion as an offense under the code which protects the rights in rem would be
unconstitutional.
The counsel for the petitioner also pointed that Section 499 of IPC falls outside the scope of the
reasonable restrictions under Article 19(2) as it goes beyond the interest of the common public and law
which takes away the right of a person to speak the truth should be held unconstitutional as being
violative of Article 51-A(b) and the requirement of proving the public good also stand outside the limits
of reasonableness.

Respondent's Arguments:

Attorney General, the counsel for the respondents bespoke for the restrictions under Article 19(2) as to
be read with context and not in isolation and Article 19(1)(a) not being a standalone right which is totally
unabridged.

He disregarded the inefficient distinction placed by the petitioner over the private and public wrong by
linking the public wrong as one which injures the public as well as polity as a whole and tested on that
count, criminalization of defamation or damage to reputation is meant to sub serve basic harmony in
the polity.

The counsel also argued that the damage to reputation can not only be compensated in monetary
terms. Adding to this he advocated for the right to reputation as an inseparable element of an
individual’s personality and its protection under Article 21 and dissected the right to freedom of speech
from the right to offend.

He pitched over the Constituent Assembly Debates and provided that the express provision of
restrictions in Article 19(2) was included to provide the constitutional protection to Section 499 as there
was no other similar provision in any other law and if the reasonable restrictions are read in isolation
then it would defeat the whole purpose for which the reasonable restrictions under Article 19 were
placed.

As for the difference between the establishment of personal rights and that of society at large under
Article 19 and 21 such distinction stands misguiding as the court itself in various precedents have
established Article 14, 19, and 21 as one thus making the petitioner’s arguments untenable.

Judgment:

The challenges to the constitutionality of the offense of criminal defamation were dismissed by the Apex
Court and the Court said that the restrictions that were imposed on the Right to Freedom of Expression
by the criminalization of the offense of defamation were reasonable and just in nature.

The Court also said that there exists a constitutional duty to respect the dignity of other people.

Therefore, the constitutionality of the criminal offense of defamation under Section 499 and Section 500
of the Indian Penal Code, 1860 was upheld by the Supreme Court. The Court relied on the judgments
given by other countries on this issue and said that the Right to Reputation falls under the Right to Life
given under Article 21 of the Constitution of India.
Om Prakash Chautala v. Kanwar Bhan:

In Om Prakash Chautala v. Kanwar Bhan, the Honb'le Supreme Court observed the following words:

“ Reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel
proud of his ancestry and satisfies him to bequeath it as a part of inheritance on the posterity. It is a
nobility in itself for which a conscientious man would never barter it with all the tea of China or for that
matter all the pearls of the sea. The said virtue has both horizontal and vertical qualities. When
reputation is hurt, a man is half-dead. It is an honour which deserves to be equally preserved by the
down trodden and the privileged. The aroma of reputation is an excellence which cannot be allowed to
be sullied with the passage of time. The memory of nobility no one would like to lose; none would
conceive of it being atrophied. It is dear to life and on some occasions it is dearer than life. And that is
why it has become an inseparable facet of Article 21 of the Constitution. No one would like to have his
reputation dented. One would like to perceive it as an honour rather than popularity. When a court
deals with a matter that has something likely to affect a person's reputation, the normative principles of
law are to be cautiously and carefully adhered to. The advertence has to be sans emotion and sans
populist perception, and absolutely in accord with the doctrine of audi alteram partem before anything
adverse is said.”

Umesh Kumar v. State of Andhra Pradesh

The Hon'ble Supreme Court observed as follows:

“ Allegations against any person if found to be false or made forging someone else's signature may
affect his reputation. Reputation is a sort of right to enjoy the good opinion of others and it is a personal
right and an enquiry to reputation is a personal injury. Thus, scandal and defamation are injurious to
reputation. Reputation has been defined in dictionary as “to have a good name; the credit, honour, or
character which is derived from a favourable public opinion or esteem and character by report”.

Personal rights of a human being include the right of reputation. A good reputation is an element of
personal security and is protected by the Constitution equally with the right to the enjoyment of life,
liberty and property. Therefore, it has been held to be a necessary element in regard to right to life of a
citizen under Article 21 of the Constitution. International Covenant on Civil and Political Rights 1966
recognises the right to have opinions and the right of freedom of expression under Article 19 is subject
to the right of reputation of others. Reputation is “not only a salt of life but the purest treasure and the
most precious perfume of life.” (Vide v. The Committee of Inquiry 1989 1 SCC 494, Port of Bombay v.
DilipkumarRaghavendranath Nadkarni 1983 1 SCC 124, Nilgiris Bar Association v. TK Mahalingam 1998 1
SCC 550; Mehmood Nayyar Azam v. State of Chattisgarh 2012 8 SCC 1; Vishwanath Agrawal, S/O Sitaram
Agrawal v. Sarla Vishwanath Agrawal. 2012 7 SCC 288; and Kishore Samrite v. State of U.P 2013 2 SCC
398).”
  Petitioner is a Victim of Defamation

Section 499

Defamation.

Whoever, by words either spoken or intended to be read, or by signs or by visible representations,

makes or publishes any imputation concerning any person intending to harm, or knowing or having
reason to believe that such imputation will harm, the reputation of such person, is said, except in the
cases hereinafter expected, to defame that person.

Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the
imputation would harm the reputation of that person if living, and is intended to be hurtful to the
feelings of his family or other near relatives.

Explanation 2.—It may amount to defamation to make an imputation concerning a company or an

association or collection of persons as such.

Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to
defamation.

Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation directly or
indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or
lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that
person, or causes it to be believed that the body of that person is in a loathsome state, or in a state
generally considered as disgraceful.

Section 500

Punishment for defamation.

Whoever defames another shall be punished with simple imprisonment for a term which may extend to
two years, or with fine, or with both.

Case Laws:

Chaman Lal v. State of Punjab (1970)

In this case, the Supreme Court laid down the basis of establishing the good faith and bona fide as
specified in the exceptions to Section 499 of the Indian Penal Code.

Facts of the case

According to the facts of this case, one President of the Municipal Corporation wrote a letter which
contained defamatory remarks against a nurse of the local hospital. Complaint was filed against the
accused under Section 499 of the Indian Penal Code.

The accused contended that the imputations were true and he made them in good faith. The
imputations were sent to the lawful authority.

Observations of the Court

The alleged accused was punished for a simple imprisonment of two months and the Supreme Court laid
down the following basis of proving good faith and bona fides:

The circumstances under which the letter was written or words were uttered.

Whether there was any malice.

Whether the accused made any enquiry before he made the allegation.

Whether there are reasons to accept the version that he acted with care and caution.

Whether there is a preponderance of probability that the accused acted in good faith.

With respect to the nature of an interest, the Supreme Court said that the “interest of the person has to
be real and legitimate when communication is made in protection of the interest of the person making
it. If that be so, then good faith is automatically drawn in and good faith obviously does not require
logical infallibility”.

G. Narasimhan &Ors. etc. v. T.V. Chokappa (1972)

In this case explanation 4 of Section 499 was examined by the Supreme Court and the principle that the
defamatory remarks should relate to some specific person or group was highlighted.

MP Pillai v. MP Chacko (1986)

This case is significant as it elaborates upon the fact that in the case of any published material, the
complete text is to be taken into consideration so as to decide whether it is defamatory or not.

Facts of the case

In this case, the matter was with regard to an article titled “Syrian Christians and National Integrity”. It
was published in two parts where the first part complimented the ancestry of Syrian Christian
community while the other part highlighted that the community was engulfed in unemployment and
poverty due to which some women of the community have to indulge themselves in prostitution to feed
them and their families. Moreover, priests and nuns were applauded for their service for mankind. A
complaint was filed alleging that the article defamed the community.

Observations of the Court

The Court observed that the article is to be read in whole so as to measure its impact. Also, the
background circumstances are to be taken into consideration while deciding whether the article is
defamatory or not.

It was also stated by the Hon’ble Court that, “Even the alleged defamatory imputations are only against
some among the Syrian Christian girls working abroad and some of the Syrian Christian ladies who
became nuns. Probably their families also could be said to have been defamed. These girls or the ladies
who became nuns or their families form only a section of the Syrian Christian Community which itself is
unascertainable. They are only unascertainable and indefinite individuals or groups among the Syrian
Christian Community. The complainant cannot say by any stretch of imagination that he will come within
that group so that he could claim that he was individually defamed. There is no imputation against the
Syrian Christian Community as such, even taking for granted that the first respondent was competent to
file a complaint as a member of that community or on behalf of that community”.

Dogar Singh and Anr. v. Shobha Gupta and Anr.(1998)

The judgement in this case laid emphasis on the term ‘good faith’ used in exception 3 to Section 499.

Facts of the case

In this case, the Principal of Punjab Public School, Pugwara, Mrs. Shobha Gupta, filed a case against two
persons alleging that they had made defamatory remarks in the complaint which they had submitted to
the Deputy Commissioner, Kapurthala. The accused stated in the complaint “that the building of the
aforesaid school is quite unsafe and it may bring about any disaster upon the students of this school at
any time; that the indiscipline among the students is to an unlimited extent and this has created a great
problem for the nearby residents. Neither the school has any ground for proper accommodation; that it
appears that this school has become a meeting place for the both sexes and the principal, Mrs. Shobha
Gupta is turning a deaf ear towards the character of the students; that if these are not checked in time,
they may become a great problem for the city”. In an enquiry before the SDM, the allegations of the
accused were found to be false and their complaint was dismissed. Consequently, MMrs.Shobha Gupta
filed a case of criminal defamation against the accused persons.

Observations of the Court

The Punjab and Haryana High Court held that the complaint contained reckless statements and was
without any basis. The accused cannot be granted protection under exception 3 of Section 499 of the
Indian Penal Code. The following was observed in this case:

The allegation that the school is the meeting place of opposite sexes was reckless and was made
intentionally to disrepute the school principal. As they did not act in good faith, therefore, cannot be
justified under exception 3.

It was stated by the Court that, “the question whether the accused acted in good faith, would depend
on the facts and circumstances of each case – the nature of the imputation made, the circumstances
under which it was made, the status of the person making the imputation, the existence or otherwise of
malice in his mind when he made the imputation and whether he acted with due care and attention and
was satisfied as to the truth of the imputation or the relevant considerations in deciding the question”.

Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School and
Ors.

The leading case on the question of reasonable likelihood of bias is the one in Rattan Lal Sharma v.
Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School and Ors. 1993(4) SCC 10.

This Court held in that case that the test was one of real "likelihood" of bias even if such bias was not in
fact the direct cause.

It was held there a real likelihood of bias means at least substantial possibility of bias.

The question depends not upon what actually was done but upon what might appear to be done.

The test of bias is whether a reasonable intelligent man, fully apprised of all circumstances, would feel a
serious apprehension of bias.

Arguments for Respondent

 Respondents Right to Freedom of Speech

Mr. X v. Hospital Z (1998)

In this case, the Supreme Court dealt with the right to confidentiality of an HIV(+) patient.

The Appellant was diagnosed as HIV(+) after he attempted to donate blood at the Respondent hospital.
This information was disclosed by the Respondent and as a result, the Appellant’s marriage was called
off and he was ostracised by his relatives and community.
He filed an appeal on the grounds that disclosure of his HIV(+) status by the Respondent-Hospital was
violative of medical ethics pertaining to confidentiality and also infringed upon his right to privacy under
Article 21.

The Court referred to a range of jurisprudence on the subject including the medical ethics guidelines in
India and Britain to analyse whether the Appellant had a right to confidentiality regarding his HIV(+)
status.

The Court noted that the Respondent’s disclosure did not violate the rule of confidentiality or the
Appellant's right to privacy because they were under a legal duty to make such disclosure.

The Court observed that disclosure was permitted in the public interest. Further, the Court read the
right to a healthy life into the right to life and noted that in case of conflict between the right to privacy
and right to health of another, the latter would prevail as right to privacy envisaged under Article 21 was
not absolute and could be restricted on grounds of public interest and the right of another to be
informed.

In other words it laid down that if there is a conflict between two fundamental rights including the right
to privacy then the right that furthers public morality or public interest would be enforced.

Sakal Papers (P) Ltd. V. Union of India

“Freedom of speech and expression of opinion is of paramount importance under a democratic

Constitution which envisages changes in the composition of legislatures and governments and must be
preserved.”

“There is nothing in clause (2) of Article 19 which permits the State, to abridge this right on the ground
of conferring benefits upon the public in general or upon a section of the public. It is not open to the
State to curtail or infringe the freedom of speech of one for promoting the general welfare of a section
or a group of people unless its action could be justified under a law competent under clause (2) of
Article 19.”

Restrictions which can be imposed on freedom of expression can be only on the heads specified in
Article 19(2) and none other. Restrictions cannot be imposed on the ground of “interest of general
public” contemplated by Article 19(6).

Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788

“Freedom of the press is the Ark of the Covenant of Democracy because public criticism is essential to
the working of its institutions. Never has criticism been more necessary than today, when the weapons
of propaganda are so strong and so subtle. But, like other liberties, this also must be limited.”

“It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and
express their views. The freedom of the press embodies the right of the people to read. The freedom of
the press is not antithetical to the right of the people to speak and express.”
Romesh Thappar v. State Of Madras

“Very narrow and stringent limits have been set to permissible legislative abridgement of the right of
free speech and expression, and this was doubtless due to the realisation that freedom of speech and of
the press lay at the foundation of all democratic organizations.…”

“Where a law purports to authorise the imposition of restrictions on a fundamental right in language
wide enough to cover restrictions both within and without the limits of constitutionally permissible
legislative action affecting such right, it is not possible to uphold it even so far as it may be applied
within the constitutional limits, as it is not severable. So long as the possibility of its being applied for
purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly
unconstitutional and void. … an enactment, which is capable of being applied to cases where no such
danger would arise, cannot be held to be constitutional and valid to any extent.”

 In the modern day everyone is a journalist therefore the rights of the press should be given to
the individuals:

Dr. Ambedkar, in his speech in Constituent Assembly Debates (Vol. VII 980) says. "The press has no
special rights which are not to be given or which are not to be exercised by the citizens in his individual
capacity. The editor of a press or the manager are merely exercising the right of the expression and
therefore, no special mention is necessary of the freedom of the press".

If the argument arises that certain types of freedom of speech can be given only to the press, this should
be quoted.

 Victim of False information

The Respondent himself is but a victim of false

As reported by a survey, 84 percent of respondents from India stated that they sourced their news
online which included social media as of the year 2022, making it a popular form of accessing news.

Social media alone accounted for 63 percent of the respondents source of news.

In comparison, only 49 percent of respondents stated that they used print media as a news source
during that period.

About 45 percent of the respondents of a survey about fake news in the Indian media said they had seen
stories that were completely made up for political or commercial reasons. Fake news is a pressing issue
for today's socio-political environment and it is getting harder to differentiate between misleading
information from the real facts.

Fake news and disinformation through social media has been a pressing issue in many countries across
the world today. In India as well, this concern was reflected in good measure with a majority of the
respondents stating they were worried about fake news being a problem due to various reasons. About
51 percent of the survey respondents agreed that they are concerned when facts were spun or twisted
to push a particular agenda through fake news media. On the other hand, 32 percent of the respondents
seemed to think satire was a concern in terms of fake news.

When asked about the different social networks used to access news as of 2022, a majority of the
surveyed respondents in India stated YouTube and WhatsApp as their main sources at 53 and 51
percent each in the week preceding the survey period. Telegram had the lowest use for news access at
just 21 percent.

 Privacy not breached because it's a morphed picture

66E. Punishment for violation of privacy.

Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any
person without his or her consent, under circumstances violating the privacy of that person, shall be
punished with imprisonment which may extend to three years or with fine not exceeding two lakh
rupees, or with both.

Explanation.–For the purposes of this section–

(a) ―transmit‖ means to electronically send a visual image with the intent that it be viewed by aperson
or persons;

(b) ―capture‖, with respect to an image, means to videotape, photograph, film or record by anymeans;

(c) ―private area‖ means the naked or undergarment clad genitals, public area, buttocks or female
breast:

(d) ―publishes‖ means reproduction in the printed or electronic form and making it available for public;

(e) ―under circumstances violating privacy means circumstances in which a person can have a
reasonable expectation that–

(i) he or she could disrobe in privacy, without being concerned that an image of his private

area was being captured; or

(ii) any part of his or her private area would not be visible to the public, regardless of whether

that person is in a public or private place.

The above provision only prescribes punishment for publishing the image of a private area of any person
without his or her consent, but it has been established by the facts that it wasn’t a picture of her body in
the post but rather the image has been skilfully doctored and Connelly’s face was only
photoshopped over the body of another person.
The body of the other person has been obtained from a pornographic site and had been added to
the picture of Jack Smith in the room, therefore how could her privacy have been breached when it
was not even her body in the picture.

 Picture not reasonable enough to constitute defamation or alternatively it was so convincing

that even Respondent believed it