MAIMS 3RD NATIONAL MOOT COURT COMPETITION, 2022 1

TEAM CODE – TC 26R

MAIMS

3rd NATIONAL MOOT COURT COMPETITION 2022

Before

THE HON’BLE SUPREME COURT OF HIMAL

In the matters of:

WRIT PETITION No. OF 2022

MR BLOOM …PETITIONERS
MR WATERMAN &
VICTIM X

Versus

THE UNION OF HIMAL & ORS …RESPONDENTS

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S COMPANION
JUSTICES OF THE HON’BLE SUPREME COURT OF HIMAL

WRIT PETITION INVOKED UNDER ARTICLE 32 OF THE CONSTITUTION OF HIMAL

MEMORIAL ON BEHALF OF THE RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

 LIST OF ABBREVIATIONS .................................................................................3

 INDEX OF AUTHORITIES ...................................................................................4-5

 STATEMENT OF JURISDICTION ......................................................................6

 STATEMENT OF FACTS ......................................................................................7 -8

 ISSUES RAISED .....................................................................................................9

 SUMMARY OF ARGUMENTS ............................................................................ 10

 ARGUMENTS ADVANCED ................................................................................. 11

o WHETHER THE DOCTRINE OF REVERSE BURDEN IS CONSTITUTIONALLY

VALID UNDER “SOC ACT”?...........................................................11-16

 What is Onus of Reverse Burden?.............................................11

 Constitutional validity of § 29 and § 30 of the soc act, 2012…12-16

 WHETHER THE ACCUSED MR BLOOM HAS A RIGHT TO PRIVACY AND MORE

SPECIFICALLY RIGHT TO BE FORGOTTEN WITH RESPECT TO THE CRIMINAL
IDENTIFICATION ACT, 2022?..............................................................................17-21

o Right to Privacy……………………………………………………………..18-19

o Right to be Forgotten .................................................................................. 20-21

 WHETHER Mr. SARVESH SHOULD BE HELD GUILTY OF A VIOLATION OF THE

REPRESENTATION OF PEOPLE ACT, 1951 FOR SUPOORTING THE VICTIM?......22-25

 WHETHER THE VICTIM HAS A RIGHT TO PRIVACY? WHETHER THE VICTIM IS

ENTITLED TO COMPENSATION CONSIDERING BREACH IF ADMITTED? …26-29

 PRAYER ................................................................................................................. 30

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LIST OF ABBREVIATIONS

Abbreviation Full form

§ Section

¶ Paragraph

Art. Article

A.I.R. All India Reporter

All. Allahabad High Court

I.P.C. Indiana Penal Code

Cal. Calcutta High Court

Cr. L.J. Criminal Law Journal

Cr. P.C. Code of Criminal Procedure

Del. Delhi High Court

ed. Edition

Guj. Gujarat High Court

Mad. Madras High Court

POCSO Act The Protection of Children from Sexual Offences

Act, 2012
SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

The Act The Criminal Procedure (Identification), 2022

The Constitution The Constitution of Himal, 1950

v. Versus

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INDEX OF AUTHORITIES

—STATUTES—
1. The Constitution of Himla, 1950
2. The Criminal Procedure (Identification), 2022
3. The Protection of Children from Sexual Offences Act, 2012
4. The Representation of People’s Act, 1951
5. The Narcotic Drugs and Psychotropic Substances Act, 1985
6. The Himla Evidence Act, 1872
7. Prevention of Corruption Act, 1988

—CASE LAWS—

Andhra Pradesh & Merchants Association 1971 AIR 2346

Baldev Singh Mann v. Surjit Singh Dhiman 2009 1 SCC 633

Bhim Singh v Union of India 2010 SCC 5 538

Delhi Domestic Working Women’s Forum Vs. Union of India and others 1995 SCC (1) 14

Forsher v. Bugliosi 26 CAL.3D 792

H.M.T Ltd. Rep. By Its Deputy General Manager (HRM) V. Mudappa 2007 9 SCC 768

Justice K.S. Puttaswamy (Retd.) & Anr. V. Union of India, (2017) 10 SCC 1

Justin @ Renjith v. UOI WP (C) No. 15564 of 2017 (U)

K.Veeraswami v UOI 1991 SCR (3) 189

Maneka Gandhi V UOI AIR 1978 SC 597

M.J Jacob v. A. Narayanan 2009 14 SCC 318
Nikesh tara Chand Shah v UOI WP (Criminal) No. 67 of 2017

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Nipun Saxena And Another v. Union of India And Others 2019 2 SCC 703
Naresh Kumar V state of Himachal Pradesh 2017 AIR(SC) 3859
Navin dhaniram Baraiye V state of Maharashtra
S. Subramaniam Balaji v. State of Tamil Nadu 2013 AD SC 8 1
Samatha v. State of A.P 1997 8 SCC 191

Sheikh Zahid Mukhtar v The State of Maharashtra 2016 SCC OnLine Bom 2600
Smt. S.R Venkataram v. Union of India 1979 AIR 49

Sri joubansen tripura v. The state of Tripura 1 criminal appeal (j) no. 30 of 2018
Sredharan T v. State Of Kerala,Civil Writ Petition No. 9478 of 2016
State of Maharashtra v. Rajendra Jawanmal Gandhi 1997 8 SCC 386

Surinder Singh v. Hardial Singh 1985 1 SCC 91

Woolmington v. Director of Public Prosecutions (1935) ac 462

Jounals/Articles
1. Aamir Khan, Study on rape cases: 'victim's name appears in judgment in 36% cases' The Indian
Express
2. Disclosing the identity of rape victim remains a grey area in the justice system, The Wire
3. Duties of Front Line Professionals Towards Securing Justice for Victims: A Manual (2018 ),National
Law University Delhi. Available at: https://nludelhi.ac.in/res-pub-ins.aspx
4. Ellen B. Fishbein, Identifying the Rape Victim: A Constitutional Clash between the First Amendment
and the Right to Privacy, 18 J. Marshall L. Rev. 987
5. Kenneth W. Simons, When is strict criminal liability just?, 87 The Journal of Criminal Law and
Criminology (1973)
6. When News Becomes Voyeurism: Live Cable Coverage of Rape Trial Re-defines Journalism,TIME,
March 26, 1984
7. Winnie Chan & A.P. Simester, Four functions of Mens Rea, 70 The Cambridge Law Journal
381–396 (2011).

—BOOKS/COMMENTARIES—

1. M.P. Jain’s Indian Constitutional Law

2. Peter Benson Maxwell & Langan P St J., Maxwell on the interpretation of

statutes. Twelfth edition

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STATEMENT OF JURISDICTION

The jurisdiction of the Hon’ble Supreme Court of Himal has been invoked under Article 321 of the
Constitution of Himal (hereinafter “the Constitution”). The same has been reproduced hereunder for
ready reference:

“Article 32. Remedies for enforcement of rights conferred by this Part. —

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights conferred by this Part.”2

1
The Constitution of Himla, art. 32
2
Id.
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STATEMENT OF FACTS

1. In Pelikan, a district in the State of Arya (Himal), on the unfortunate night of 12.06.2021, X,
who is the victim girl, is alleged to be sexually assaulted by Mr. Bloom, who is elder brother of
Master Lamy, while she was studying with her male friend Master Lamy.
2. On 14.08.2021, Mr. Bloomis alleged to have confronted her. It is further alleged that on the basis
of a video clip of her where she was semi-naked, Mr. Bloom allegedly asked her for sexual
favors and she was threatened with it being leaked. Mr. Bloom allegedly exploited her for more
than a month on the same threat.
3. On 18.09.2021 Victim X informed her parents about the incident. Her parents being enraged,
filed report against Mr. Bloom. It is alleged that after filing of the report, Victim X started getting
threats from Mr. Bloom but victim X ignored all the threats. Itis further alleged that in response
Mr. Bloom released the compromising video clip.
4. The leaked video clip features the victim X and the presence of the eyes and palm of the alleged
leaker.
5. On the basis of the report filed by parents of victim X, the police immediately arrested Mr.
Bloom and took his measurements as per the relevant provisions of the Criminal Procedure
(Identification) Act, 2022.
6. Mr. Bloom challenged it as a violation of his fundamental rights. He movedthe Supreme Court to
enforce his right to privacy and right to be forgotten.
7. Petitioner Challenges his prosecution mainly on the ground that sections 29 and 30 of the ‘SOC
ACT” are unconstitutional and are violative of Articles 14, 19, 20(3) and Article 21 of the
Constitution of India.
8. The MLA in the district Mr. Sarvesh offered financial Support to them and announced the same
to media. While on the footsteps of their house, he points to the party symbol placed on his car
and reminded them of the upcoming elections and where he is one of the candidates. The
opposing candidate lodged a complaint for violation of Representation of people’s Act, 1951.
9. The Supreme Court Has clubbed these petitions and ordered take-down notices for the leaked
video-clip on various porn websites. The victim X moved before the court for victim
compensation as well on both accounts of the offences as well as breach of privacy. Supreme
Court has given notice in the instant case for final arguments.

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ISSUES RAISED

1. WHETHER THE DOCTRINE OF REVERSE BURDEN IS CONSTITUTIONALLY

VALID UNDER “SOC ACT”?

2. WHETHER THE ACCUSED MR BLOOM HAS A RIGHT TO PRIVACY ANDMORE

SPECIFICALLY RIGHT TO BE FORGOTTEN WITH RESPECT TO THE CRIMINAL
IDENTIFICATION ACT, 2022?

3. WHETHER Mr. SARVESH SHOULD BE HELD GUILTY OF A VIOLATION OF THE

REPRESENTATION OF PEOPLE ACT, 1951 FOR SUPOORTING THE VICTIM?

4. WHETHER THE VICTIM HAS A RIGHT TO PRIVACY? WHETHER THE VICTIM

IS ENTITLED TO COMPENSATION CONSIDERING BREACH IF ADMITTED?

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SUMMARY OF ARGUMENTS

1. WHETHER THE DOCTRINE OF REVERSE BURDEN IS CONSTITUTIONALLY VALID

UNDER “SOC ACT”?
The counsel for the Respondent contends that the § 29 AND § 30 OF THE SOC ACT, 2012 is
constitutionally valid and does not violate the right of defence of the accused. It is not violative of
Article 14, 19, 20(3) and Article 21 of the constitution of Himal. They are not arbitrary and are intra
vires of the constitutional provision.

2. WHETHER THE ACCUSED MR BLOOM HAS A RIGHT TO PRIVACY AND MORE

SPECIFICALLY RIGHT TO BE FORGOTTEN WITH RESPECT TO THE CRIMINAL
IDENTIFICATION ACT, 2022?
The Counsel for the Respondent contends that the Petitioner cannot avail his right to privacy
and right to be forgotten at the present stage of the criminal case against him. Like other rights
which form the part of the Fundamental Rights protected by PartIII of the Constitution,
including the right to life and personal liberty u/A 21, privacy is not an absolute right and
neither is right to be forgotten.

3. WHETHER Mr. SARVESH SHOULD BE HELD GUILTY OF A VIOLATION OF THE

REPRESENTATION OF PEOPLE ACT, 1951 FOR SUPOORTING THE VICTIM?
The Counsel for the Respondent contends that the Mr. Sarvesh should be not held guilty of
violating the Representation of People Act, 1951 for supporting the victim as per Section 123 of
the RP Act, 1951, Mr. Sarvesh did not influenced the voters also provide much needed financial
assistance to the victim as per his duty under the constitution

4. WHETHER THE VICTIM HAS A RIGHT TO PRIVACY? WHETHER THE VICTIM IS

ENTITLED TO COMPENSATION CONSIDERING BREACH IF ADMITTED?
The Counsel for the Petitioner contends that the Petitioner has the right to privacy under Article
21of the Constitution and Mr. Sarvesh has violated it by disclosing the victim’s identity and
thereby victim is entitled to the compensation for the said breach.

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ARGUMENTS ADVANCED

[ ISSUE 1] : WHETHER THE DOCTRINE OF REVERSE BURDEN IS CONSTITUTIONALLY

VALID UNDER “SOC ACT”?

The Counsel for the Respondent contends that the doctrine of reverse burden is constitutionally valid under
“SOC ACT’

[1.1] What is Onus of Reverse Burden?

¶ India is classified as a common law country that runs with an adversarial system of trials An accused brought
to trial must be given a fair chance to be heard and cannot be presumed to be guilty of a crime till the
prosecution can prove their guilt beyond reasonable doubt. It is based on the principle that the accused is
innocent until proven guilty. In the famous case of Woolmington v. Director of Public Prosecutions3, this
principle was referred to as ‘golden thread principle of criminal law’

¶ A reverse onus is ‘one that shifts the burden of proof upon the accused after prosecution proves the existence f
a foundational fact that leads to the shift in burden.

¶ Section 101 and 106 of the Himal evidence Act 4 of 1872 talk about the burden of proof, but not whether such
burden is upon the prosecution or defense. Though the presumption of innocence is recognized under Article 20
and 21 of the constitution5. In the landmark Maneka Gandhi6 Case presumption of innocence was held to the
fundamental right of the accused.

¶ It is humbly submitted to this hon’ble court that along with the presence of golden rule, there exist certain
classes of offenses. In such cases the accused is presumed guilty, prima facie, and the burden of proof is shifted
onto the accused to prove his innocence or to create a reasonable doubt.

¶ The 47th law commission report of India suggested that there are certain offenses that gravely affect and harm
society and so for such crimes it is necessary to shift the burden of the accused and dispense the burden of
prosecution. It is necessary to prevent such crimes, dowry death, falls within the second class of socio-
economic offences.

3
(1935) ac 462
4
Evidence Act, 1872
5
The constitution of India, (Himal)
6
AIR 1978 SC 597
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[1.2] CONSTITUTIONAL VALIDITY OF § 29 AND § 30 OF THE SOC ACT, 2012.

¶ The SOC Act 7 is a special act enacted by the legislature, functions in a comportment that is best apt for a
child's welfare and interest. The §29 and §30 of the SOC Act enacted in 2012 states that:

¶ Section 29: Presumption as to certain offences.

Where a person is prosecuted for committing or abetting or attempting to commit any offence under § 3, 5, 7
and §9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to
commit the offence, as the case may be unless the contrary is proved.

¶ Section 30: Presumption of culpable mental state

1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the
accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the
accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that
prosecution.

(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist
beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

Explanation. --In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the
belief in, or reason to believe, a fact.

¶ The principle of ‘presumption of innocence’ protects the rights of the accused. Whereas ‘reverse onus
clauses’ protect the victim and aid the prosecutor in a case.

¶ This act was conceived keeping in mind the Article 15 of the Constitution of Himal, where clause (3) of the
Article empowers the state to make special provisions for women and children. Further, Article 39 that forms a
part of Directive Principles of state policy mentions that states shall direct policies for children to ensure that
they are given opportunities and facilities to develop in a healthy approach and environment of freedom and
dignity.

7
Protection of Children from Sexual Offences Act, 2012

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¶ This principle is not a dilution of innocent until proven guilty; it is an exception to the general principle such
statutory exceptions can also be found in the NDPS act, Negotiable Instruments Act, Himal Evidence Act,
Prevention of Corruption Act, Etc.

¶ Although there are reverse onus clauses in the Indian law, which are seen in §113A, 113B and 114A of the
Indian Evidence Act and also in special enactments like the NDPS Act, § 35 and 54. In all the cases above
where the reverse onus clause is inserted, the prosecution is not absolved from proving certain facts to establish
a case & then the onus is shifted to the accused.

¶ It may be noted that: presumptions are rules of evidence & do not conflict with the presumption of innocence
of the accused. Burden of the prosecution to prove its case beyond reasonable doubt still remains intact.

¶ The raison d'être for introducing such a provision was highlighted by the Parliamentary Standing Committee
on Human Resource Development in its 240th Report on the POCSO Bill, 2011, which opined that the
vulnerability of the victims and difficulty in collecting evidence, necessitated placing such an onerous burden
on the accused.

¶ In Sheikh Zahid Mukhtar v The State of Maharashtra8 established a four-fold test for considering the burden
of any reverse burden clause. First, is the State required to prove basic or essential facts to raise a presumption
of balance as to the facts? Second, does the proof of those facts involve a burden to prove adverse facts? Third,
are these facts within the special knowledge of the accused? Fourth, does this burden subject the accused to any
hardship or oppression?7 Only if the reverse onus clause satisfies all the aforementioned conditions will it be
considered valid. This comprehensive test is a tremendous advancement in supporting the presumption of
innocence principle. It confines the parliament from banking on upon the reverse onus clauses at the drop of a
hat and necessitates the clause to placate this test to be constitutionally valid.

¶ The constitutionality of the reverse burden was recently upheld in the case of Justin @ Renjith v. UOI9 a
Kerala High court Judgement , the various ratios reiterated in this judgement behind why section 29 and 30 of
SOC Act are in consonance with the constitution of Himal and the fundamental rights guaranteed by it.

¶ Dealing with the constitutionality of § 29 and § 30 of the aforementioned act, In the case of Andhra Pradesh
& Merchants Association 10 was that in considering whether absolute liability amounts to imposing

8
2016 SCC OnLine Bom 2600
9
WP (C) No. 15564 of 2017 (U)
10
1971 AIR 2346
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unreasonable restrictions, the court has to strike a balance between the individual right and public interest and
also reiterating the same in the case of K.Veeraswami v UOI11 and Nikesh tara Chand Shah v UOI12, this court
was of the view that strict liability may be imposed in case of serious offences and the parliament is competent
to place the burden on the accused in its own wisdom and hence there is no question of violation of Article 19.

¶ The court also stated that SOC act was implemented to achieve the mandate under Article 15(3) of the
constitution for providing special protection to children, So Act cannot be challenged on the ground that it
offends Artcile 14 of the Constitution. Further, treating the child victims as constituting a class by itself, is
based on an intelligible differentia, and is meant to achieve the object of the statute. Hence do not offend
Article 14.

¶ In the case of Naresh Kumar V state of Himachal Pradesh 13 in which Supreme Court held that presumption
against the accused of culpability under section 35 and 54 if NDPS to explain possession satisfactorily are
rebuttable. It does not dispense with the obligations of the prosecution to prove the charge beyond all
reasonable doubt. The presumptive provision with a reverse burden of proof does not sanction conviction on
basis of preponderance of probabilities.

¶ The supported view of aforementioned judgment , the provisions of reverse burden of proof can be cystaliized
down to the principle section 29 would come into operation only when the prosecution is able to establish the
facts that would form the foundation for the presumption u/s 29 of Soc act otherwise, all the prosecution would
be required to do was file a charge sheet against the accused under the provisions of the said act and then claim
the evidence of the Prosecution witnesses would have to be accepted as the gospel truth irrespective of the
defense given by the accused as has been duly held by the Bombay High Court in Navin dhaniram Baraiye V
state of Maharashtra.

¶ In the case of Sri joubansen tripura v. The state of tripura 14 a Tripura High Court Judgement,
the court held that the burden of proof oscillates between the prosecution and the accused, d epending
on the quality of evidence let in, in practice the process of adducing evidence in a POCSO case does
not substantially differ from any other criminal case. To that extent, the presumptions and the duty to
rebut presumptions are co-extensive.

¶ The prosecution will commence trial with an additional advantage of presumption against the
accused but, prosecution is legally bound to establish foundational facts which set the prosecution case

11
1991 SCR (3) 189
12
WP (Criminal) No. 67 of 2017.
13
2017 AIR(SC) 3859
14
criminal appeal (j) no. 30 of 2018
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in motion. Then, it will be the obligation of the accused to p rove his innocence but the standard of
proof again will be on the basis of preponderance of probabilities.”

¶ The Court hence observed that “It may safely be said that presumptions under Sections 29 and 30 of
the POCSO Act do not take away the primary duty of the prosecution to establish the fundamental
facts. This duty is always on the prosecution and never shifts to the accused. ” Additionally, the court
acknowledged that, “foundational facts which the prosecution has been able to establish and the
appellant failed to controvert these established facts.”

¶ In present case the prosecution has established foundational facts which has set the prosecution case
in motion, Such as the victim was a child studying in 10 th standard, the palm print of the accused also
matched with the palm in the video that was leaked and his eyes was also visible in the video which is
also a substantial piece of evidence. On 12.06.2021 No one was present in the room except the Victim
X and Mr Bloom the accused. The prosecution has established enough foundational facts to set the case
in motion and which are prima facie to judge that he is a prime accused in the instant case.

¶ In the case of Noor Aga v State of Punjab 15 the Kerela Bench Stated Foundational facts in a POCSO
case include the proof that the victim is a child, that alleged incident has taken place, that the accused has
committed the offence and whenever physical injury is caused, to establish it with supporting medical evidence.
If the foundational facts of the prosecution case are laid by the prosecution by leading legally admissible
evidence, the duty of the accused is to rebut it, by establishing from the evidence on record that he has not
committed the offence.

[1.3] CONCLUSION

¶ The Section has adequate built-in safeguards to prevent the misuse and misapplication of the provision. the
accused is only made to rebut the foundational facts which are established by the prosecution; hence the
primary burden of proof remains on the prosecution. Therefore, it does not amount to a violation of the right
against self-incrimination under Article 20(3) of the Constitution. therefore, concludes that Sections 29 & 30
must be interpreted in a constitutional way so as it does not offend any of the fundamental rights of accused and
at the same time protect the children from sexual offences. Hence a suitable interpretation to the context is
beseeched from the Hon’ble Supreme Court as and when time demands.

15
[2008] INSC 1067

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¶ Thus, statutory presumption underneath Section 29 of the POCSO Act does not intend that the prosecution
version is to be handled as gospel reality or authenticity in each case. The presumption doesn't do away with the
imperative responsibility of the Court to analyse the proof on record in the mild of unique functions of a
specific case such as innate infirmities within the prosecution version or exercise of entrenched enmity between
the accused and the victim giving upward thrust to an impossible inference of falsehood inside the prosecution
case at the time of figuring out whether or not the accused has discharged his onus and mounted his innocence
within the given records of a case.

¶ The Term 'Unless the Contrary is proved' in Section 29 needs to be examined first, and its miles the duty of
the prosecution to set up & show its case, and only then a presumption below fragment of Section 30 may be
drawn. The presumption under POCSO Act is essential provisions to ensure the well-being of a child who has
restricted capacities and capabilities of positive reception and understanding the mental states of others and
even of himself. The presumption seeks to ease the burden and vulnerabilities of an already vulnerable child.

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[ISSUE -2] : WHETHER THE ACCUSED MR BLOOM HAS A RIGHT TO PRIVACY AND MORE
SPECIFICALLY RIGHT TO BE FORGOTTEN WITH RESPECT TO THE CRIMINAL
IDENTIFICATION ACT, 2022?

The Counsel for the Respondent contends that the Petitioner cannot avail his right to privacy and right to be
forgotten at the present stage of the criminal case against him. Fundamental Rights protected by Part III,
including the right to life and personal liberty u/A 21, privacy is not an absolute right and neither is right to
be forgotten. The same is reiterated in the landmark judgement of Justice K.S. Puttaswamy (Retd.) & Anr v.
Union of India & Ors.

The Criminal Procedure (Identification) Act, 2022 was enacted to replace the Identification of Prisoners Act,
1920. Effectually, the new enactment has widened, both, the scope and ambit of a colonial era legislation.
While the stated purpose is introduction of new technologies, the legislation potentially encroaches upon the
right to privacy forming an intrinsic part of Article 21 of the Constitution, as being examined in this article.

Section 3 of the Act, categorizes the ‘persons’ covered as those:

 Convicted of an offence punishable under any law or

 Any person falling under sections 107, 108, 109 or 110 of the Criminal Procedure Code, 1973 (Cr.P.C.)
and ordered to give security for keeping peace or maintaining good behavior; or

 Arrested in connection with an offence punishable under any law; or

 Detained under any preventive detention law.

Section 5 expands the applicability to anyone by empowering the Magistrate to pass an order
directing any person to give measurements under this Act, if satisfied that the same is required for the
purpose of any investigation or proceeding.

Section 4(2) of the Act provides for retention of ‘measurements’ recorded, for a period of 75 years (from the
date of collection).

Proviso to the section states that where any person who has not been previously convicted of any offence, is
released without trial or discharged or acquitted; all measurements recorded under the Act, would be destroyed
(unless directed to the contrary, by the Magistrate).

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1.1. Right to Privacy

The Constitution of India provides reasonable restrictions to the right to privacy in the “interest of the

sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court, defamation or incitement to an offense”. Furthermore,
other fundamental rights may be more authoritative than the right to privacy in certain situations which creates
a limitation on the same. Recently, the Delhi High Court said that “Since no fundamental right under our
Constitution is absolute, in the event of a conflict between two fundamental rights, as in this case, a contest
between the right to privacy and the right to a fair trial, both of which arise under the expansive Article 21, the
right to privacy may have to yield to the right to a fair trial.”

The Respondent most respectfully submits:

a) That the Petitioner is alleged to have committed the offences of aggravated penetrative sexual assault 16
and sexual assault17 amongst others. Both these offences have a prescribed punishment of at least 05 years of
imprisonment. And, as the offences alleged have been committed against a child, that too, a girl of about 16
years, the offences are of serious nature.

b) That because of the seriousness of the offence in consideration and also it being cognizable, the Petitioner
was arrested.

c) That is it pertinent to mention at the outset that the rights enshrined under Part III of the Constitution are not
absolute. Similarly, right to privacy and right to be forgotten are not absolute rights.

d) That legitimate aims of the State would include for instance protecting national security and preventing
and investigating crime amongst many others 18. To achieve these legitimate aims and keeping in mind Art.
21, the State has the power to make laws which can take away right to privacy and right to be forgotten of a
person.

16
POCSO Act, 2012, § 6, No. 32, Acts of Parliament, 2012 (Himal).
17
POCSO Act, 2012, § 8, No. 32, Acts of Parliament, 2012 (Himal).
18
Justice K.S. Puttaswamy (Retd.) & Anr v. Union of India & Ors, (2017) 10 SCC 1
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e) That it is for the purpose of taking measurements19 of convicts and other persons so as to aid the
investigation agencies to better ensure the national security and to prevent any avoidable incident of
crime, the Criminal Procedure (Identification) Act, 2022 (hereinafter “the Act”) is introduced. Hence, in the
light of Sec. 3 of the Act, the Petitioner cannot exercise the right to privacy at the present stage of the criminal
case alleged against him

Supreme Court in Justice Puttaswamy (Retd.) and Anr. vs Union of India and Ors have laid down the
proportionality test which includes the four basic aspects of legitimate goal, rational connection, necessity and
balancing in order to decide whether a legislation is violating the right to privacy or not.
Requirement is existence of a legitimate state aim ensuring that the nature and content of the law falls within
the zone of ‘reasonableness’. Such legitimacy is a guarantee against any State arbitrariness.

In context, the objects and reasons of the legislation state that the Act has been introduced to make provisions
for modern techniques and to expand scope and ambit; as also to authorise taking and recording measurements
of convicts and other persons, for identification, investigation and to preserve records.

It has been categorically stated that;

“…The pursuit of a legitimate state aim ensures that the law does not suffer from manifest arbitrariness.
Legitimacy, as a postulate, involves a value judgement. Judicial review does not reappreciate or second-guess
the value judgement of the legislature but is for deciding whether the aim which is sought to be pursued suffers
from palpable or manifest arbitrariness…”

The said act is a legitimate requirement of the state and is a necessity to prevent offences of serious nature.
Right to privacy not being an absolute right, henceforth the Petitioner cannot avail his right to privacy and right
to be forgotten at the present stage of the criminal case against him. The welfare of the children and woman
supersedes the right to privacy. The doctrine of proportionality means that the administrative action should
not be more drastic than it ought to be for obtaining the desired result. This implies that canon should not
be used to shoot a sparrow. Thus, this doctrine tries to balance means with ends henceforth, right to privacy is
not being violated of an accused of such a grave offence. The state aims to provide justice and welfare to all.

Bill also contains a provision which says that if a person with no criminal record is released without trial or
acquitted by the court, all records so taken shall be destroyed. This provision is hereby reclaiming the
sanctity of Right to Privacy.

19
The Criminal Procedure (Identification) Act, 2022, § 2 cl. (b), No. 11, Acts of Parliament, 2022 (Himal).
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 MAIMS 3RD NATIONAL MOOT COURT COMPETITION, 2022 19

1.2. Right to be Forgotten the Respondent most respectfully submits:

Recognizing right to be forgotten as a part of right to privacy. In Sredharan T v. State Of Kerala,Civil20 The
Kerala High Court in this case recognised the 'Right to be forgotten' as a part of the Right to privacy

a) That it is pertinent to mention that the right to be forgotten cannot be exercised by the Petitioner at the
present stage of his criminal case.

b) That his measurements were taken in accordance with the procedure as established by law as well as due
process of law, which in this case is through the application of the Act.

c) That Sec. 4 of the Act provides for a safeguard to the individuals whose measurements are taken by the
application of the Act. This safeguard states for the destruction of record of measurements from the records of
NCRB once the individual, whose measurements were taken, is released without trial or discharged or acquitted
by the Court, unless the Court directs otherwise.

d) That because there exists a reasonable and appropriate safeguard which is well founded on reason, the
Petitioner cannot exercise his right to be forgotten at the present stage of his criminal case.

Violation of Article 19

The constitution under article 19 grant us fundamental Right of freedom of speech and expression. If RTBF
legalizes some websites and content creator have to remove some data from their channels which will affect their
Right to freedom of speech and expressions.

In the landmark judgement of Justice K.S. Puttaswamy (Retd.) & Anr v. Union of India & Ors. underscored
the right to be forgotten and opined,

“If we were to recognise a similar right, it would only mean that an individual who is no longer desirous of his
personal data to be processed or stored, should be able to remove it from the system where the personal
data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest.”

It was, however, clarified that such a right cannot be exercised in various circumstances including where the
information was necessary, compliance with legal obligations was required, a task was carried out in public
interest, on the grounds of public interest in the area of public health and archiving purposes in public interest.

“Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy,” it
added.

20
Writ Petition No. 9478 of 2016
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The Supreme Court had stated that the 'Right to be forgotten' was subject to certain restrictions, and that it could
not be used if the material in question was required for the21-

1. Exercise of the Right to freedom of expression and information;

2. Fulfillment of legal responsibilities;
3. Execution of a duty in the public interest or public health;
4. Protection of information in the public interest;
5. For the purpose of scientific or historical study, or for statistical purposes; or
6. The establishment, executing, or defending of legal claims.

The Sections of the CRIMINAL IDENTIFICATION ACT, 2022 clearly states that the records will be
destroyed if acquitted or discharged and the case is yet to be concluded making it a premature case, In our
instant case the court is yet to frame the charges as well and according to the criminal identification act, 2022
the measurements taken is a reasonable requirement for such a grave offence as aforementioned to strike a
balance and provide justice to all it is an important step taken under this act to aid the investigation. Henceforth,
at this stage the petitioner Mr. Bloom cannot avail the right to privacy and right to be forgotten under the ambit
of the criminal identification Act, 2022.

21
Bhumika Indulia, "The Evolution of Right to be Forgotten in India | SCC Blog" SCC Blog, 2022 available at: (last visited
May 10, 2022).
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[ISSUE 3]: WHETHER Mr. SARVESH SHOULD BE HELD GUILTY OF A

VIOLATION OF THE REPRESENTATION OF PEOPLE ACT, 1951 FOR
SUPOORTING THE VICTIM?

1- It is humbly submitted before this Hon’ble court that Mr. Sarvesh has not violated the Representation of
People Act, 1951 for supporting the victim. There is also no substance in the allegation put forth by the
opposing MLA candidate Mr Waterman that “the financial support seems like a bribe and freebie which
is violative of the statute as well as the constitutional scheme.” It is brought to esteemed attention of the
Court that Section 123 of the Representation of the People Act, 195122(hereinafter referred to as, the RP
Act), deals with the subject of corrupt practices. Section 123(1) states that, “123. Corrupt practices.—The
following shall be deemed to be corrupt practices for the purposes of this Act:— 1[“Bribery”, that is to
say—any gift, offer or promise by a candidate or his agent or by any other person with the consent of a
candidate or his election agent of any gratification, to any person whomsoever, with the object, directly
or indirectly of inducing—(a) a person to stand or not to stand as, or 2[to withdraw or not to withdraw]
from being a candidate at an election, or(b) an elector to vote or refrain from voting at an election, or as a
reward to—(i) a person for having so stood or not stood, or for 3[having withdrawn or not having
withdrawn] his candidature; or(ii) an elector for having voted or refrained from voting; the receipt of, or
agreement to receive, any gratification, whether as a motive or a reward—(a) by a person for standing or
not standing as, or for 4[withdrawing or not withdrawing] from being, a candidate; or(b) by any person
whomsoever for himself or any other person for voting or refraining from voting, or inducing or
attempting to induce any elector to vote or refrain from voting, or any candidate 2[to withdraw or not to
withdraw] his candidature. Explanation.—For the purposes of this clause the term “gratification” is not
restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of
entertainment and all forms of employment for reward but it does not include the payment of any expenses
bona fide incurred at, or for the purpose of, any election and duly entered in the account of election
expenses referred to in section 78.”23
2- It is humbly submitted before this Hon’ble Court that in the case of S. Subramaniam Balaji v. State of
Tamil Nadu24, the issues pertaining to Section 123 of RP Act 195125and Freebies were discussed, the
Hon’ble Court held that, “the pre-election promises do not fall within the ambit of corrupt practices as
specified under Section 123 of the Representation of the People Act, 1951, and issued directions to the

22
The Representation of the People Act, 1951 (Act 43 of 1951)§123
23
Id.
24
2013 AD SC 8 1
25
The Representation of the People Act, 1951 (Act 43 of 1951)§123
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Election Commission of India regarding framing of certain guidelines, in the absence of any legislative
enactment covering the field.” 26

3- It is brought to the esteemed attention of the Hon’ble Court that as per the directive principles of State
policy in Part IV of the Constitution, it is incumbent on the State Government to promote the welfare of
the people, who are below the poverty line or unable to come up without their support. As per Article 38
of the Constitution27 which states that, “38. State to secure a social order for the promotion of welfare
of the people (1) The State shall strive to promote the welfare of the people by securing and protecting
as effectively as it may a social order in which justice, social, economic and political, shall inform all
the institutions of the national life (2) The State shall, in particular, strive to minimize the inequalities in
income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst
individuals but also amongst groups of people residing in different areas or engaged in different
vocations.”28 In the case Delhi Domestic Working Women’s Forum Vs. Union of India and others29 the
Hon’ble Court directed the National Commission for Women to evolve a “scheme so as to wipe out the
tears of unfortunate Victims of rape’’30 Mr Sarvesh was emphasizing through giving of the financial
assistance and urging to have schemes for the victim, was trying to reiterated the same.

4- It is humbly submitted before this Hon’ble Court that the claim of the that giving financial assistance to
a victim constitute a corrupt practice and, therefore, must vitiate an election. If the promise of the above
nature is a corrupt practice, then the only remedy for the appellant is to file an election petition under
Sections 80, 80-A read with other provisions of the RP Act. Section 80 and 80-A of the RP Act states
that, “80. Election petitions.—No election shall be called in question except by an election petition
presented in accordance with the provisions of this.31Part.80A. High Court to try election petitions.—
(1) The Court having jurisdiction to try an election petition shall be the High Court.(2) Such jurisdiction
shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice, shall, from time
to time, assign one or more Judges for that purpose: Provided that where the High Court consists only
of one Judge, he shall try all election petitions presented to that Court.(3) The High Court in its
discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a
place other than the place of seat of the High Court.”32

Under Section 81 of the RP Act33, “such an election petition must be filed within 45 days from the date
of the election”. “In the petition, the appellant must set out clearly and specifically the corrupt practice

26
2013 AD SC 8 1
27
The Constitution of Himla, art. 38
28
Id.
29
1995 SCC (1) 14
30
Id.
31
The Representation of the People Act, 1951 (Act 43 of 1951)§80
32
The Representation of the People Act, 1951 (Act 43 of 1951)§80-A
33
The Representation of the People Act, 1951 (Act 43 of 1951)§81
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that he complains of and also set out as to how the returned candidate or his agent has committed the
same or has connived at the same. An election petition is to be tried on evidence and therefore, the writ
petition is not a remedy.” 34

5- It is humbly submitted before the Hon’ble court that in the case of M.J Jacob v. A. Narayanan35, it has
been held by this Court, “It is well settled that in an election petition for proving an allegation of corrupt
practice the standard of proof is like that in a criminal case. In other words, the allegation must be
proved beyond reasonable doubt, and if two views are possible then the benefit of doubt should go to the
elected candidate.”36 And in the case of Surinder Singh v. Hardial Singh 37 it was observed by the
Hon’ble Court that, “It is thus clear beyond any doubt that for over 20 years the position has been
uniformly accepted that charges of corrupt practice are to be equated with criminal charges and proof
thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt
as in criminal trials.”38 And in the case of Baldev Singh Mann v. Surjit Singh Dhiman 39 the Hon’ble
Court held that, “the standard of proof is high and the burden of proof is on the election petitioner. Mere
preponderance of probabilities is not enough, as may be the case in a civil dispute. Allegations of corrupt
practices should be clear and precise and the charge should be proved to the hilt as in a criminal trial
by clear, cogent and credible evidence.”40

6- It is brought to the esteemed attention of the court that “social and economic democracy is the foundation
on which political democracy would be a way of life in the Indian polity. Law as a social engineering is
to create just social order removing inequalities in social and economic life, socio-economic disabilities
with which poor people are languishing by providing positive opportunities and facilities to individuals
and groups of people.”41 and in the case of Bhim Singh v Union of India 42, it was held by the Hon’ble
Court that, “53. It is also settled by this Court that in interpreting the Constitution, due regard has to be
given to the directive principles which have been recorded as the soul of the Constitution in the context
of India being the welfare State. It is the function of the State to secure to its citizens “social, economic
and political justice”, to preserve “liberty of thought, expression, belief, faith and worship” and to
ensure “equality of status and of opportunity” and “the dignity of the individuals” and the “unity of the
nation”. This is what the Preamble of our Constitution says and that is what which is elaborated in the
two vital Chapters of the Constitution on fundamental rights and directive principles of State policy. The

34
The Representation of the People Act, 1951 (Act 43 of 1951)§81
35
2009 14 SCC 318
36
Id.
37
1985 1 SCC 91
38
Id.
39
2009 1 SCC 633
40
Id.
41
Samatha v. State of A.P 1997 8 SCC 191
42
2010 SCC 5 538
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executive activity in the field of delegated or subordinate legislation has increased. In the Constituent
Assembly Debates, Dr. B.R Ambedkar has underscored that one of the objectives of the directive
principles of State policy is to achieve economic democracy and left that in the hands of future elected
representatives.”43 Further the court held that, “95. This argument is liable to be rejected as it is not
based on any scientific analysis or empirical data. We also find this argument a half-hearted attempt to
contest the constitutionality of the Scheme. Mplads makes funds available to the sitting MPs for
developmental work. If the MP utilises the funds properly, it would result in his better performance. If
that leads to people voting for the incumbent candidate, it certainly does not violate any principle of free
and fair elections. 96. As we have already noted, MPs are permitted to recommend specific kinds of
works for the welfare of the people i.e which relate to development and building of durable community
assets (as provided by Clause 1.3 of the Guidelines).”44

43
Id.
44
Id.
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[ISSUE 4]: WHETHER THE VICTIM HAS A RIGHT TO PRIVACY? WHETHER THE
VICTIM IS ENTITLED TO COMPENSATION CONSIDERING BREACH IF
ADMITTED?
1- It is humbly submitted before this Hon’ble Court that the in the case of Forsher v. Bugliosi 45 required
elements of a tortious invasion of privacy based on public disclosure of private facts were discussed and
these were as follows, “1) a public disclosure, 2) that the facts disclosed are private facts, and 3) that the
disclosure is offensive and objectionable to a reasonable person of ordinary sensibilities.”46 Whereas the
Right to Privacy of the victim for the instant case is drawn from the Section 23 47 of the POCSO Act which
states that, “Section 23 Procedure for media : (1) No person shall make any report or present comments
on any child from any form of media or studio or photographic facilities without having complete and
authentic information, which may have the effect of lowering his reputation or infringing upon his privacy.
(2) No reports in any media shall disclose, the identity of a child including his name, address, photograph,
family details, school, neighbourhood or any other particulars which may lead to disclosure of identity
of the child: Provided that for reasons to be recorded in writing, the Special Court, competent to try the
case under the Act, may permit such disclosure, if in its opinion such disclosure is in the interest of the
child. (3) The publisher or owner of the media or studio or photographic facilities shall be jointly and
severally liable for the acts and omissions of his employee. (4) Any person who contravenes the provisions
of sub-section (1) or sub-section (2) shall be liable to be punished with imprisonment of either description
for a period which shall not be less than six months but which may extend to one year or with fine or with
both."48 Which places a criminal liability moreover a type of Criminal Strict liability in closer sense rather
than a simple criminal liability or the tortious one as in the case of Forsher v. Bugliosi.
2- It is brought to the kind attention of this Hon’ble Court that, Strict Liability as defined by Philip E. Johnson
in, ‘ Strict Liability: The Prevalent View, states that, “Strict Criminal Liability is conventionally
understood as Criminal liability that does not require the defendant to possess a culpable state of mind”49
However, In ‘Four Functions of Mens Rea 50’, Winnie Chan and A.P. Simester argue that, “Mens Rea is
relevant to culpability, yes. But it serves other purposes too, puposes that are quite distinct and just as
important. The existence of these other functions is too often overlooked, and is liable to be concealed by
the depiction of mens rea simply as “fault” element”, further they argue that, “mens rea serves two main
classes of function, and within that grouping it serves at least four particular functions. First, it helps to
establish the moral innocence or guilt of the defendant’s conduct ( and as such, affects sentencing as well

45
26 CAL.3D 792
46
Id.
47
The Protection of Children from Sexual Offences Act, 2012(Act 32 of 2012)§23
48
Id.
49
Kenneth W. Simons, When is strict criminal liability just?, 87 The Journal of Criminal Law and Criminology (1973-) 1075 (1997).
50
Winnie Chan & A.P. Simester, Four functions of Mens Rea, 70 The Cambridge Law Journal 381–396 (2011).
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as conviction…. Secondly, mens rea plays a key mediating role in criminalization, being part of the trade-
off between the protection of potential victims and the preservation of liberties for potential defendants.” 51
3- It is brought to the esteemed attention of the court that in the case of H.M.T Ltd. Rep. By Its Deputy
General Manager (HRM) V. Mudappa52, explained the legal meaning of malice which is as, “The legal
meaning of malice is “‘ill-will or spite towards a party and any indirect or improper motive in taking an
action.’This is sometimes described as “malice in fact”. “Legal malice” or “malice in law” means
‘something done without lawful excuse’. In other words, ‘It is an act done wrongfully and wilfully without
reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is deliberate
act in disregard of the rights of others”53 and in the case of Smt. S.R Venkataram v. Union of India 54 the
Court also explained the concept of legal mala fide in, and it was held, “thus malice in its legal sense
means malice such as may be assumed from the doing of a wrongful act intentionally but without just
cause or excuse, or for want of reasonable or probable cause.” 55 It is humbly submitted before this
hon’ble court that Mr. Sarvesh was there to meet the victim’s family with no sort of malice intent and
even assisted the family through financial means and the presence of media was already there before his
arrival. It is brought to the kind attention of the Hon’ble Court that, according to Maxwell on the
Interpretation of Statutes’, “if there appears any reasonable doubt or ambiguity, it will be resolved in
favour of the person who would be liable to the penalty.” Further that “If the language of the statute is
equivocal and there are two reasonable meanings of the said language, the interpretation which will avoid
the penalty is to be adopted. The court must always see that the person to be penalised comes fairly and
squarely within the plain words of the enactment.”56
4- It is brought to esteemed attention of the Hon’ble Court that as per the study conduct by Rahat57, a support
programme for rape survivors initiated by NGO Majlis, surveyed over 600 victims over three years, had in 2015
revealed that in 36% cases between 2011-12, the victim’s name appeared in the judgment despite the Supreme
Court guidelines to keep it confidential. It also revealed that in the 154 cases that were studied, it was found that
the chargesheet given to the lawyers of the accused had all the details of the victim despite the fact that truncated
chargesheets should be given in such cases. “and in some cases, especially high profile cases, copies of the
chargesheet are given to the reporters present in trial courts,”58 the survey had pointed out.

51
Id.
52
2007 9 SCC 768
53
Id.
54
1979 AIR 49
55
Id.
56
Peter Benson Maxwell & Langan P St J., Maxwell on the interpretation of statutes. Twelfth edition by P. St. J. Langan (1969)
at P. 239.
57
Aamir Khan, Study on rape cases: 'victim's name appears in judgment in 36% cases' The Indian Express (2015),
https://indianexpress.com/article/cities/mumbai/study-on-rape-casesvictims-name-appears-in-judgment-in-36-cases/ (last visited
Oct 20, 2022).
58
Id.
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5- It is brought to the esteemed attention of the court the Times magazine in 1984 commenting on the televisation of
the Rape Trials happening in the US commented that, “In the presence of television cameras makes a rape trial a
spectator's sport.”59 Gaurav Vivek Bhatnagar in his article, titled, ‘Disclosing the Identity of Rape Victim Remains
a Grey Area in the Justice System’, states that, “The Delhi gang rape case, which had stirred the conscience of the
nation, and brought about radical legislative changes in dealing with cases of heinous crime, also showed us that
when it comes to dealing with rape victims, the laws in reality exist only in name to protect their identity. As the
train of media persons and politicians to her home made clear almost every person in the vicinity of her residence
in South West Delhi knew where she lived and what her real name was. Neighbours and acquaintances knew her
real name. And her father also revealed it to a foreign publication, stating: “We want the world to know her real
name. My daughter didn’t do anything wrong, she died while protecting herself. I am proud of her. Revealing her
name will give courage to other women who have survived these attacks. They will find strength from my
daughter.”60
6- It is brought the esteemed attention of the Hon’ble Court that Ellen B. Fishbein in her article, ‘Identifying the Rape
Victim: A Constitutional Clash between the First Amendment and the Right to Privacy’, writes that, “A pseudonym,
however, cannot guarantee adequate personal privacy protection when television cameras are permitted in the
courtroom”61 As per the Manual issued by the Centre for Criminology and Victimology, National Law University,
Delhi in 2018 titled as ‘Duties of Front Line Professionals towards Securing Justice for Victims: A Manual’ in its
Chapter F. titled as ‘Media’ states that, “Often touted as the fifth pillar of democracy, the media plays an important
role in shaping not only the way the society perceives a crime, but also the way the society treats its victims.
Needless to say, the experience of the victim is dependent quite significantly upon the ethics and virtues that
journalists and media houses uphold. While the media has a responsibility to publish a fair and impartial account,
the following are the primary duties that journalists have towards victims: (i) Act with compassion and respect
towards the dignity of the victims in a manner devoid of personal convictions and prejudices. (ii) Avoid publication
of any information such as photograph, name or address which may lead to identification of the victim …. (viii)
Respect the right to privacy of the victims and their relatives …. (xiv) Avoid publication of unnecessary details
unrelated to the case which may discredit the victim.” 62
7- It is humbly submitted before this Hon’ble Court that the in the case of Nipun Saxena And Another v. Union of
India And Others 63 , the court highlighted the suspicious and malicious intent of Media in recent times and held
that, “The phrase “any other particulars” will have to be given the widest amplitude and cannot be read only ejusdem
generis. The intention of the legislature is that the privacy and reputation of the child is not harmed. Therefore, any
information which may lead to the disclosure of the identity of the child cannot be revealed by the media. The
media has to be not only circumspect but a duty has been cast upon the media to ensure that it does nothing and

59
When News Becomes Voyeurism: Live Cable Coverage of Rape Trial Re-defines Journalism,TIME, March 26, 1984, at 64.
60
Disclosing the identity of rape victim remains a grey area in the justice system, The Wire, https://thewire.in/law/identity-of-rape-
victims (last visited Oct 20, 2022).
61
Ellen B. Fishbein, Identifying the Rape Victim: A Constitutional Clash between the First Amendment and the Right to Privacy, 18 J.
Marshall L. Rev. 987 (1985)
62
Duties of Front Line Professionals Towards Securing Justice for Victims: A Manual (2018 ),National Law University Delhi. Available
at: https://nludelhi.ac.in/res-pub-ins.aspx (Accessed: October 25, 2022).
63
2019 2 SCC 703
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gives no information which could directly or indirectly lead to the identity of the child being disclosed.”64 And
further opined that, “Sensationalising such cases may garner television rating points (TRPs) but does no credit to
the credibility of the media.”65
8- It is humbly submitted before this Hon’ble Court that Mr. Sarvesh did not violate the Victim’s Right to Privacy
rather it was the media present there which should have exercised reasonable temperament by not airing the said
questionable section of the clip and playing the statement of Mr. Sarvesh out of proportion. There is no malafide
intention shown by Mr. Sarvesh, the financial assistance of Rs 5 Lacs was provided to the family, which Mr. Sarvesh
considers as his duty, to safeguard the rights and welfare of his constituents, the gesture was also appreciated by
the vicitm’s family too. Mr. Sarvesh also urged other victims to come forward against such preparators and assured
financial assistance and obtaining justice for such victims and urges that schemes should be inspired from victim’s
inspirational and courageous act of voicing her rights. It is brought to the esteemed attention of the Hon’ble Court
that in the case of State of Maharashtra v. Rajendra Jawanmal Gandhi 66, The Supreme Court observed that, “media
trial is very antithesis of rule of law and it can well lead to miscarriage of justice.”67 Therefore, the Media present
there should have been held liable for violating the norms and statues existing and not punishing the bonafide
intentions of Mr. Sarvesh.

64
Id.
65
Id.
66
1997 8 SCC 386
67
Id.
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PRAYER

Therefore, in the light of facts and circumstances of the matter at hand, Respondent most humbly pray that the
Hon’ble Court may be pleased to hold that:

1. The that the doctrine of reverse burden is constitutionally valid under “SOC ACT’ § 29 AND § 30 OF
THE SOC ACT, 2012 is constitutionally valid.
2. The Petitioner 1, at the present stage of the criminal case against him, cannot avail his right to privacy.
3. The petitioner 1 cannot avail, at the present stage of the criminal case against him, cannot avail his right
to be forgotten.
4. The petition filed by the Petitioner 1 being premature is liable to be dismissed.
5. Mr. Sarvesh should not be held guilty of a violation of the Representation of people Act, 1951 for
supporting the victim.
6. The victim do not have a right to privacy and is not entitled to compensation considering breach.
7. Any other order(s) and/or relief(s) may be passed which the Hon’ble Court may deem just and fit as per
the facts and circumstances of the matters at hand, in the interest of justice.
It is prayed accordingly.

DATED: 25.10.2022
Sd/-
RESPONDENT
Through
Sd/-
COUNSEL
(Team Code – TC_26_)

MEMORIAL ON BEHALF OF THE RESPONDENT