memorial moot court ashok kumar moot court 2, Summaries of Law

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BEFORE THE HON’BLE SUPREME COURT OF

BHARAT

CIVIL WRIT PETITION NO. ____ OF 2023.

IN THE MATTER OF

MS. HERMOINE & HARRY

......................PETITIONER

VERSUS

UNION OF INDIA

......................RESPONDENT

UPON SUBMISSION TO THE HON’BLE SUPREME

COURT OF BHARAT.

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MEMORANDUM ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

SR

NO.

INDEX PAGE

NO.

1. LIST OF ABBREVIATION. 3

2. INDEX OF AUTHORITIES. 4

3. STATEMENT OF JURISDICTION. 5

4. STATEMENT OF FACTS 6-

5. STATEMENT OF ISSUES 9

6. SUMMARY OF ARGUMENTS 10-

7. ARGUMENT ADVANCED 12 -

8. PRAYERS 18

9. DOCKET 19

LIST OF ABBREVIATION

ABBREVIATION KEYWORDS

Hon’ble Honourable

Sec. Section

V/S. Versus

A.I.R All India Reporter

S.C Supreme Court

OTT Over the Top

MoT Ministry of Technology

DoT Department of

Telecommunication

INDEX OF AUTHORITIES

 STATUTES AND ACTS:

1. THE CONSTITUTION OF INDIA.

 CASES:

1. JUSTICE K.S. PUTTASWAMY (RETD.) & ANR. VS.

UNION OF INDIA & ORS. (2017) 10 SCC 1, AIR

2017 SC 4161.

2. THE SECRETARY, MINISTRY OF ... VS CRICKET

ASSOCIATION OF BENGAL 1995 AIR 1236 1995

SCC (2) 161.

3. AMAR SINGH V. UNION OF INDIA [(2011) 4 AWC

3726 SC].

4. ARUNA RAMACHANDRA SHANBAUG V. UNION OF

INDIA & ORS,

 LEGAL DATABASE & WEBSITES:

1. www.indiankanoon.com

2. www.legalserviceindia.com

3. www.privacylibrary.ccgnlud.org

STATEMENT OF JURISDICTION

The Petitioners has approached the Hon’ble Supreme Court of Bharat for safeguarding and enforcement of their most basic Fundamental Rights under Article 32 of Constitution of Bharat. ARTICLE 32 OF CONSTITUTION OF BHARAT (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. (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

STATEMENT OF FACTS

1. The Republic of Bharat is extremely diverse and has an enormous population size. Inspite of a stark digital divide persisting in the country, cheap access to internet has enabled the citizens of Bharat [across all ages] to use and spend a major chunk of their daily time using the internet and social media.
2. WhereApp is one of the most prominent online-messaging applications used in Bharat. In fact, Bharat has a greater number of WhereApp users than any other country with an active monthly user base of 390 million. Due to its immense popularity, WhereApp has time and again gathered controversy for its role in several incidents of mob lynching, due to spread of fake news and misinformation.
3. One of the most important features of WhereApp is the use of end- to-end encryption technology, which ensures complete privacy of its users and helps in keeping the exchange of messages between two or more people secure and private. Bharat’s Ministry of Technology (“MoT”) in exercise of the powers conferred under the appropriate sections of its Information Technology Act, enacted the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2022 (“IT Rules”) in May 2022. Soon after the enactment, the IT Rules received a severe backlash due to its mandate of requiring online communication applications like WhereApp to help in the identification of “first-originator‟ of information after receiving appropriate orders.
4. Ms. Hermoine, a social activist immediately approached the Hon’ble Supreme Court of Bharat, citing various provisions of the IT Rules “problematic for people’s privacy”. WhereApp also released an official statement, clearly highlighting that

adherence to the mandate under IT Rules will lead to a compromise in people’s right to free speech and privacy. MoT responded and strongly rebutted this statement and said- “WhereApp’s statement is an attempt to dictate terms to the world’s largest democracy. Through its actions and deliberate defiance, WhereApp seeks to undermine Bharat’s legal system. Furthermore, WhereApp is refusing to comply with the very regulations in the intermediary guidelines on the basis of which it claims safe harbour protection from any criminal liability in Bharat.”

5. While the IT Rules debate was ongoing, the State of Bharat enacted their new Telecommunications Act [hereinafter, “The Act”] with an aim to consolidate and amend the laws governing provision, development, expansion and operation of telecommunication services, telecommunication networks and telecommunication infrastructure and assignment of spectrum, etc. There was a lot of hue and cry by digital rights organizations and non-profit organizations concerning Section 24(2) of The Act which states: On the occurrence of any public emergency or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central or a State Government, may, if satisfied that it is necessary or expedient to do so, in the interest of the sovereignty, integrity or security of Bharat, friendly relations with foreign states, public order, or preventing incitement to an offence, for reasons to be recorded in writing, by order: (a) Direct that any message or class of messages, to or from any person or class of persons, or relating to any particular subject, brought for transmission by, or transmitted or received by any telecommunication services or telecommunication network, shall not be transmitted, or shall be intercepted or detained or

disclosed to the officer mentioned in such order; (b) Direct that communications or class of communications to or from any person or class of persons, or relating to any particular subject, transmitted or received by any telecommunication network shall be suspended.

6. The Act which aims to unify and repeal several old statutes, now explicitly broadened the definition of “telecommunication services”, and included “Over-the-top (OTT)” and “internet-based communication services” as well.
7. Mr. Harry, Founder of Humara Internet Foundation, working towards protecting digital rights of the citizens, filed a petition before the Hon’ble Supreme Court of Bharat citing Section 24(2) of The Act as unconstitutional in its present form. Mr Harry during an address to a media house said- “The new Telecommunications Act is an attack on end-to- end encryption and the protection of fundamental rights of people and miserably fails to adhere to the internationally recognized privacy principles endorsed by the Hon’ble Apex Court of Bharat in its landmark judgment.” His stand garnered support from a wealth of digital rights organizations and people, and soon became a hot topic of discussion for the prime-time debates.
8. Responding to the statement made by Mr. Harry, the Department of Telecommunications (“DoT”) states- “Evidence suggests that the use of Dark net and end-to-end encrypted messaging platforms have become a haven for terrorists. Therefore we need to have strong measures in place for effective surveillance and tracking of such anti- social elements. The government is not asking for access through an unsecured backdoor but instead is requesting for the digital equivalent of a secured fortified ‘front door’ with locks and bars.”
9. Since Ms. Hermoine’s petition was sub-judice, the Hon‟ble Apex Court was of the view that both the petitions involved

similar set of question of facts and question of laws and therefore clubbed the petitions for a combined hearing on November 06, 2022. The Hon’ble Court framed the following issues and directed that unless compelling reasons are shown no further issues shall be taken up for hearing.

STATEMENT OF ISSUES

1. Whether the Petition under Article 32 is

maintainable before the Hon’ble Supreme Court of

Bharat?

2. Whether the relevant provisions under IT Rules are

ultra vires to the Constitution of Bharat?

3. Whether the relevant provision under the

Telecommunication Act, ultra vires to the

Constitution of Bharat?

SUMMARY OF ARGUMENTS

1. Whether the Petition under Article 32 is

maintainable before the Hon’ble Supreme Court of

Bharat?

It is humbly submitted by the Ld. Counsel of Petitioners before this Hon’ble Supreme Court of Bharat that the grounds stated and arguments advanced are sufficient for the sake of maintainability of this Petition before the Hon’ble Supreme Court of Bharat.

2. Whether the relevant provisions under IT Rules are

ultra vires to the Constitution of Bharat?

It is humbly submitted by the Ld. Counsel of Petitioners before this Hon’ble Supreme Court of Bharat that the relevant provisions as stated in the relevant provision of the IT Rules breaches and/or Obliterates the most basic

Fundamental Right which is provided for in the Constitution of Bharat under Article 21 and hence it is Ultra vires to the Constitution of Bharat.

3. Whether the relevant provision under the

Telecommunication Act, ultra vires to the

Constitution of Bharat?

It is humbly submitted by the Ld. Counsel of Petitioners before this Hon’ble Supreme Court of Bharat that the relevant provisions as stated in the relevant provision of the IT Rules breaches and/or infringes the most basic Fundamental Right which is provided for in the Constitution of Bharat under Article 21 and Article 19(1)(a) and hence it is Ultra vires to the Constitution of Bharat.

ARGUMENTS ADVANCED

1. Whether the Petition under article 32 is

maintainable?

OUR LEGAL SUBMISSION:

1. On the base of the fact as mentioned by the Petitioners that pointed out that “MoT” wants the WhereApp to help in identification of the First originator of Message. Hence breaking their End to End encryption technology.
2. Whereas the State of Bharat have framed the new law which brings under their purview “OTT” and “Internet Based Communication Service” which targets to break the End to End Encryption and also violates the basic Fundamental Rights which are so provided in the Constitution of Bharat. Article 21 i.e. Right to Privacy and Article 19(1)(a) i.e. Freedom of Speech which are under attack or under gross violation due to the said IT Rules and Telecommunication Act. CITATION: IN THE CASE OF JUSTICE K.S. PUTTASWAMY (RETD.) & ANR. VS. UNION OF INDIA & ORS. (2017) 10 SCC 1, AIR 2017 SC 4161.

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. The 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. IN THE CASE OF THE SECRETARY, MINISTRY OF ... VS CRICKET ASSOCIATION OF BENGAL 1995 AIR 1236 1995 SCC (2) 161. The Supreme Court expressly held that the right to freedom of speech and expression, under Article 19(1)(a) of the Constitution of India, includes the right to impart and receive information via electronic media.

2. Whether the relevant provisions under IT Rules are

ultra vires to the Constitution of Bharat?

OUR LEGAL SUBMISSION:

1. As stated in the IT Rules issued by the “MoT” to help in the identification of “First-originator‟ of information after receiving appropriate orders. The major factor for the people of Bharat to use the Application named WhereApp is for the important feature End to End Encryption technology which is provided by them. This in simple laymen term means that the outsider or third party including the Company won’t be able to access the information or text messages exchanged between the parties which are very much personal and intimate. This helps to ensure their privacy in the given matter and that is the major factor so as to why they have active monthly user base of 390 million because of the sole factor Privacy due to their End to End Encryption feature.
2. The constitution of Bharat ensures Right to Privacy as Fundamental Right under Article 21 and so as the WhereApp through its important feature End to End

Encryption. Now if the rules are implemented this will result in breach of their privacy of the person or an individual using such application. Hence there will be a gross violation of privacy on account of such rules.

3. On the other hand, According to the Constitution of Bharat it is stated Article 13(2) that state shall not make any law which takes away or abridges the fundamental rights. CITATION: AMAR SINGH V. UNION OF INDIA [(2011) 4 AWC 3726 SC] In this case, the petitioner had alleged that his calls were being tapped unauthorizedly by his telecom service provider. He had claimed that the alleged tapping was violating his fundamental right to privacy under Article 21 of the Constitution of India. The service provider had argued that it was complying with the government orders. This case is important in the context of Sections 69, 69A, and 69B of the IT Act, 2000. The court observed that a telecom service provider performs a function of public nature. It is his inherent duty to act carefully and in a responsible manner. Furthermore, it was observed that when the orders of the government 'to tap calls' have gross mistakes, then the service provider must verify the authenticity of such orders. The court also directed the Central Government to frame certain directions/guidelines to prevent unauthorized interception of calls.

3. Whether the provisions under the IT Rules and

Telecommunication Act are in commensurate with

the Government of Bharat’s policy on

Telecommunication and Information Technology?

OUR LEGAL SUBMISSION:

1. Whereas on the other hand inclusion of under the purview of “OTT” and “Internet Based Communication Service” under the Telecommunication Act. Will inherently target the basic right of Freedom of Speech as well as expression as stated in the Article 19(1)(a) of the Constitution of Bharat. As it is stated in the Section 24(2) of the said Act. In the following way a. any message or class of messages shall not be transmitted, or shall be intercepted or detained or disclosed to the Officer as mentioned b. communication or class of communication shall be suspended.
2. On the other hand it will also result to target the End to End Encryption as the messages and communication of the

people will be intercepted by the “DoT”. This will breach the Article 21 of Constitution of Bharat. CITATION: ARUNA RAMACHANDRA SHANBAUG V. UNION OF INDIA & ORS, it was held that in common law it is the right of every individual to have the control of his own person free from all restraints or interferences of others. Every human being of adult years and sound mind has a right to determine what shall be done with his own messages and social media presence. Section 24(2) of The Act which states: On the occurrence of any public emergency or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central or a State Government, may, if satisfied that it is necessary or expedient to do so, in the interest of the sovereignty, integrity or security of Bharat, friendly relations with foreign states, public order, or preventing incitement to an offence, for reasons to be recorded in writing, by order: (a) Direct that any message or class of messages, to or from any person or class of persons, or relating to any particular subject, brought for transmission by, or transmitted or received by any telecommunication services or telecommunication network, shall not be transmitted, or shall be intercepted or detained or disclosed to the officer mentioned in such order; (b) Direct that communications or class of communications to or from any person or class of persons, or relating to any particular subject, transmitted or received by any telecommunication network shall be suspended.

PRAYER

WHEREFORE IN THE light of the issues raised, arguments advanced and authorities cited, it is prayed before the Hon’ble Supreme Court of Bharat to-

1. To please be admit the said Petition.
2. To strike down the relevant provisions of the IT Rules and Telecommunication Act which are unconstitutional as it breaches and/or infringes the Fundamental Rights as provided in the constitution.
3. To provide the cost of this petition.
4. And pass any other order or relief that it deems fit in the interest of justice, Equity and good conscience. And for this, the Petitioner as in duty bound, shall humbly pray PETITIONER Date: 06/11/2023. Place: BHARAT

COUNSEL OF PETITIONER

BEFORE THE HON’BLE

SUPREME COURT OF

BHARAT.

CIVIL WRIT PETITION NO.

___ OF 2023

MS. HERMOINE & HARRY

..........PETITIONER

VERSUS

UNION OF INDIA

........RESPONDENT

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MEMORANDUM OF

SUBMISSION ON BEHALF

OF THE PETITIONER

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COUNSEL OF PETITIONER.