BEFORE THE HON’BLE SUPREME COURT OF INDIA

WRIT PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

--IN THE MATTER OF--

Shreya Singhal …………………………….……….…………PETITIONER

VERSUS

UNION OF INDIA …………………………….……….…………RESPONDENT

MOST RESPECTFULLY SUBMITTED BEFORE THE HOUNARABLE CHIEF JUSTICE AND OTHER
JUDGES OF SUPREME COURT OF INDIA

MEMORANDUM ON BEHALF OF PETITIONER DRWAN AND FILED BY THE COUNSELS FOR

THE PETITIONER.

Submitted to Submitted by

Gokul

GLCT 3/4th LLB Roll No. 25

 MEMORIAL ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS

[1]. LIST OF ABBRIVATIONS…………………………………………………………………………………..

[2]. INDEX OF AUTHORITIES………………………………………………………………………………….

[3]. STATEMENT OF JURISDICTION……………………………………………………………………….

[4]. STATEMENT OF FACTS…………………………………………………………………………………..

[5]. STATEMENT OF ISSUES………………………………………………………………………………….

[6]. SUMMARY OF ARGUMENTS…………………………………………………………………………

[7]. ARGUMENTS ADVANCED………………………………………………………………………………

1.
 MEMORIAL ON BEHALF OF THE PETITIONER

LIST OF ABBREVIATIONS

S.No ABBREVIATION EXPANSION

1. ¶ Paragraph

2. AIR All India Report

3. Anr Another

4. Art. Article
5. Bom Bombay
7. S Section

8. Hon’ble Honourable

9. L.R Law Reporter

11. SC Supreme Court

12. SCC Supreme Court Cases

13. PIL Public Interest Litigation
14. IPC Indian Penal Code
15. CrPC Code if Criminal Procedure
16. Edn Edition
17. Ors Others
18. SUPP Supplementary
19. U.O.I Union of India
20. U.P Uttar Pradesh
22. v. Versus
23. Vol. Volume
 MEMORIAL ON BEHALF OF THE PETITIONER

INDEX OF AUTHORITIES

C ONSTITUTION OF INDIA

I. LIST OF STATUTES

1. THE INDIAN PENAL CODE, 1860

2. THE CODE OF CRIMINAL PROCEDURE, 1973

II. LIST OF CASES REFERRED

S.NO. CASES CITATION

1.
2.
3.
4.
5.
6.
7.

8.

9.
10.
11.
12.
 MEMORIAL ON BEHALF OF THE PETITIONER

LIST OF BOOKS REFERRED

S.NO B OOK TITLE

1. Dr. J S Pandey, Constitutional Law of India, 54th Edition
2. P.S Achuthan Pillai, Criminal Law
3. Universal’s The Constitution of India (Bare ACT)
4. S.N Mishra, The code of Criminal Procedure
5. K D Gaur, Textbook on Indian Penal Code
6.

Online Reference
1. www.indiankanoon.org
2. www.livelaw.in
3. www.lawotopus.com
4. www.scconline.com
5. www.lawaudiance.com
6. www.Journal.indianlegalsolution.com
 MEMORIAL ON BEHALF OF THE PETITIONER

STATEMENT OF JURISDICTION

The petitioner invokes the writ jurisdiction of the hon’ble Supreme Court of India under
Article 32 of the Constitution of India by way of Public Interest Litigation for seeking the
compensation of violation of fundamental rights of victims.

The petitioners have approached the Hon’ble Supreme Court under Article 32 of the
Constitution which reads as under:

(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 clause ( 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.
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STATEMENT OF FACT

Facebook is one of the most popular social media platform for communication in
India. It operates as a web-based and mobile application. Users can interact with each
other by Posting and responding to each others’ posts. Many media organisations use
Facebook as a forum to promote their news stories and editorial content. Most of the
politicians are also very active on Facebook. For instance, Our Prime Minister has 44
million Likes and followers in Facebook.

Mumbai police arrested two girls Shaheen Dhada and Rinu Srinivasan in 2012 for
communicating their dismay at a bandh brought in the wake of Shiv Sena boss Bal
Thackery's demise. The girls posted their remarks on the Facebook. The arrested girls
were discharged later on and it was decided to drop the criminal cases against them yet
the arrests of them pulled in across the country protest. It was presumed that the police
have abused its authority by invoking Section 66A at the same time it is a breach of
fundamental right of speech and expression

Over a couple of years, there has been many cases in which police has arrested
people for the broadcasting of the information through computer resource or
communication devices.

A major amendment was made in 2008. It introduced the Section 66A which
penalized sending of “offensive messages” and introduced the section 69. It was passed
on 22 December 2008 without any debate in Lok Sabha. It was signed into law by
president Pratiba Patil, on 5th February, 2009.

Section 66A of Information Technology Act States that “

 MEMORIAL ON BEHALF OF THE PETITIONER

66-A. Punishment for sending offensive messages through communication service,

etc.-Any person who sends, by means of a computer resource or a communication
device,-

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing
annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation,
enmity, hatred or ill will, persistently by making use of such computer resource or a
communication device; or

(c) any electronic mail or electronic mail message for the purpose of causing
annoyance or inconvenience or to deceive or to mislead the addressee or recipient about
the origin of such messages, shall be punishable with imprisonment for a term which may
extend to three years and with fine.

Explanation.- For the purposes of this section, terms "electronic mail" and
"electronic mail message" means a message or information created or transmitted or
received on a computer, computer system, computer resource or communication device
including attachments in text, image, audio, video and any other electronic record, which
may be transmitted with the message."[1]

The offence under section 66A of IT act being cognizable, law enforcement
agencies have authority to arrest or investigate without warrants, based on charges
brought under the information technology act. The outcome of this was many highly
famous arrests of people throughout the country for posting their views and opinions
whereas govt called them ‘objectionable content’ but more often these content were
dissenting political opinions. In January 2013, the central govt had turned out with an
advisory under which no person can't be arrested without the police having prior approval
of inspector general of police or any other senior official to him/her.
 MEMORIAL ON BEHALF OF THE PETITIONER

STATEMENT OF ISSUES

ISSUE I :

Whether the writ petition challenging the constitutional validity of Section 66A of
Information Technology Act 2000, brought before this court is maintainable?

ISSUE II :
 MEMORIAL ON BEHALF OF THE PETITIONER

SUMMARY OF ARGUMENTS

Issue I : Whether the writ petition challenging the constitutional validity of Section 66A of
Information Technology Act,2000 brought before this court is maintainable?

It is humbly submitted before the Hon’ble Court that the present PIL is maintainable. It is
further submitted that since there has been gross violation of Article 14,15, and 21 of the Indian
constitution, the PIL is maintainable and on account of the same relief is sought. Article 32 provides
the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by Part III of the Constitution. The right to access to the Supreme Court under Article 32 is
the Fundamental Right itself. It is contended that the petitioners have the locus standi, there is
violation of fundamental right, Supreme Court has the jurisdiction to hear the present case and
alternative remedy not a bar to maintainability.

Issue II :

It is humbly submitted before the Hon’ble Court that there has been gross violation of Article
14,15 and 21 of the Indian constitution. The Section is manifestly arbitrary as it treats women as
property of husband and creates unreasonable categorization between genders. The law intrudes in
the privacy of the individual and hurts the dignity of women by allowing her husband to control her
sexual activities. Also, there can’t be any segregation of valid provision from given provisions as it
would then lead to a residue having no practical application. Hence, it needs to be annulled as a
whole owing to doctrine of severability, which in this case is that if law be made gender neutral it
would no longer have any efficacy.
 MEMORIAL ON BEHALF OF THE PETITIONER

ARGUMENTS ADVANCED

I : Whether the writ petition challenging the constitutional validity of Section 66A of
Information Technology Act,2000 brought before this court is maintainable?

The present petition is maintainable under Article 32 of the constitution of India, The
petitioner invokes the writ jurisdiction of the hon’ble Supreme Court of India under Article 32 of the
constitution of India by way of Public Interest Litigation for the violation of fundamental rights. It is
contended that the petitioners have the locus standi [1.1], there is violation of fundamental right
[1.2.], Supreme Court has the jurisdiction to hear the present case [1.3.], alternative remedy not a bar
to maintainability [1.4.].

Dr. B.R.Ambedkar described Article 32 as the most important one, without which the
Constitution would be reduced to nullity. It is also referred to as the heart and soul of the
Constitution. By including Article 32 in the Fundamental Rights, the Supreme Court has been made
the protector and guarantor of these Rights.

1.1 That the petitioners have a locus standi.

1.1(1) “Locus standi” is the right of a party to appear and be heard on the question before any
tribunal(1). It means the legal capacity to invoke the jurisdiction of the court.

1.1(2) The SC has ruled that to exercise its jurisdiction under art 32, it is not necessary that the
affected person should personally approach the court. The court can itself take cognizance of the
matter and proceed suo motu or on a petition of any public spirited individual or body (2).

1.1(4) In landmark cases(3) the SC has evolved a new rule viz., any member of the public, acting
bona fide and having sufficient interest can maintain an action for redressal of public wrong or public
(4)
injury. In S.P Gupta v. UOI the court observed that, “any member of the public having sufficient
interest

(1) Wharton’s Law Lexicon, 15th Edn. 2009, p.1019.

(2) Bodhisattwa Gautam v. Subbra Chakraborty, AIR 722, (SC 1996).
(3) S.P Gupta v. UOI, AIR 149, (SC 1982); PUDR v. UOI, AIR 1473,( SC 1982); Bandhua Mukti Morcha v. UOI, AIR 802, (SC 1986).
(4)AIR 149, (SC 1982).
 MEMORIAL ON BEHALF OF THE PETITIONER

can maintain an action for judicial redress for public injury arising from breach of public duty or
from violation of some provisions of the constitution or the law and seek enforcement of such public
duty and observance of such constitutional or legal provision”.

1.1(5) However, the member of the public should not be a mere busybody or a meddlesome
interloper but one who has sufficient interest in the proceeding. In the instant matter, the petitioner is
a very close friend of the victim and have sufficient interest.

1.1(6) Furthermore, even if the petitioner in fact moved to the Court in private interest and for the
redressal of his personal grievances, or to seek his personal revenge, Court can proceed to enquire the
state of affairs of the subject of the litigation in the interest of justice and in furtherance of justice.
Individual conduct of the party would not be of any relevance when the Court entertains PIL and
construed not only provisions of any statute but also had taken into consideration the subsequent
events.(5) If the court finds the question raised to be of substantial public interest, the issue of locus
standi of the person placing the relevant facts and materials before the court becomes irrelevant. (6)

Further under the well-established doctrine of Parens Patrae, it is the obligation of the state to protect
and take into custody of the rights and the privileges of its citizens for discharging its obligations. (7)

It was made clear in Janata Dal v H.S. Chaudhary (8) that only a person ‘acting bona fide (9)
’and
‘having sufficient public interest (10)’ in the proceeding of public interest litigation will have alone the
locus standi(11) but not a person for personal gain or political motive or any oblique consideration.

The rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest
in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the
court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but
not for personal gain or private profit or political motive or any oblique consideration.

(5)Ashok Lanka v. Rishi Dixit,5 SCC 598, (SC 2005).

(6) T.N. Godavarman Thirumulkpad v. UOI, , 2006 WP(C) No. 202 of 1995.
(7) Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, ¶ 35
(8) AIR 1993 SC 892 ,¶ 64
(9)Fertilizer Corporation Kamgar Union v Union of India, AIR 1981 SC 844
“whenever there is a public wrong or public injury caused by an act or omission of the State or public authority which is contrary to the
Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such
public wrong or public injury.
(10)In Black's Law Dictionary (Sixth Edition)
Public Interest- Something in which community at large has some pecuniary interest or some interest by which their legal rights or liabilities are
affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the
matters in question. Interest shared by citizens generally in affairs of local, state or national government. See also Vineet Narain v Union of India,
AIR 1998 SC 889.
(11)In Blacks’s Law dictionary (6th Edition)
Locus standi- the right to bring an action or to be heard in a given forum.
MEMORIAL ON BEHALF OF THE PETITIONER
 MEMORIAL ON BEHALF OF THE PETITIONER

Therefore, locus standi of the petitioners should not be in question.

1.2 That the hon’ble supreme court of India has the jurisdiction to entertain the present
PIL

1.2(1) The petitioner herein invokes the writ jurisdiction of the Hon’ble Supreme court of India
under Article 32 of the Indian constitution for issuance of an order, direction, writ in the nature of
mandamus or any other appropriate writ challenging the constitutional validity of section 497 of IPC
which describes and defines the adultery and the punishment for the offence. The petitioner herein
also challenge the constitutionality of section 198(2) of the code of criminal procedure 1973, which
contains procedure for prosecution of the offences under chapter XX of the IPC. Both these
provisions are apparently gender discriminatory and suffers from constitutional vices.

1.2(2) the credentials, motive and the object, of the petitioner is the protection of public interest.
There is neither civil, criminal no revenue litigation involving the petitioner which as or could have
legal nexus with the issues involved in the present public interest litigation. It is further submitted
that there is no adequate or efficacious alternative remedy available to the petitioner and thus this
Public interest litigation is filed.

1.2(3) Article 32 of the constitution of India provides remedies for enforcement of fundamental rights
guaranteed by part III of the constitution. Whenever there is a violation of fundamental rights, the
citizen can approach the Hon’ble Supreme Court or high court for enforcement of the same. The
article itself is a guarantor of fundamental rights and it is a fundamental right (12).

1.2(4). The implication of section 497 of IPC is that it punishes only men and not women even if the
women, the consenting party to the sexual intercourse outside the marriage prima facie, on a perusal
of this section it is found that the provision lacks gender neutral approach and is arbitrary. Section
198(2) of CrPC which prohibits the wife from filing a complaint fail the test of reasonable
classification under Article 14 of the constitution.

1.2(5) The adverse impact of section 497 of IPC Read with Section 198(2) of CrPC up on gender
justice is a great concern to be addressed and it is violative of the right of the citizen guaranteed
under Article 14,15,and 21 of the constitution. Hence, the hon’ble supreme court has jurisdiction to
entertain the matter as there is gross violation of fundamental rights guaranteed under the
constitution.

1.2(6) The petition herein prefers this petition in the nature of PIL and the same squarely falls within
 MEMORIAL ON BEHALF OF THE PETITIONER

(12) Assam Public Works vs Union Of India AIR 2015 SC 783.

the ambit of the guidelines prescribed in the decision of the High Court in State of Uttaranchal
v.Balwant Singh Chantal and others. The petitioner has filed the PIL with the noble aim of ensuring
gender justice.

1.2(7) In fertilizer corporation Kamgar union V. Union of India and ors (13), it was observerd that the
maintainability of a Writ petition is co-relate to the existence and violation of fundamental rights.

1.2(8) Also in people union for civil liberties V. union of india (14), a public interest litigation, for the
protection of the right to privacy was entertained by the court the instance of a voluntary association.

1.2(9) A writ of mandamus is a judicial remedy in the form of an order from a court to any
government, subordinate court, corporation or public authority to do some specific act which that
body is obliged under the law to do which is in the nature of public duty and in certain cases one of a
statutory duty.

1.2(10) In Prabodh verma V. Sate of UP (15), the apex court held that if the court finds that an act or
ordinance is unconstitutional or void, the court can declare the act or ordinance as unconstitutional
and issue a writ of mandamus to the government and its officers not to enforce the provisions of the
Act or Ordinance.

(16)
1.2(11) Further, in Murali V. Returning officer , the kerala High court held that, the legislature is
not a inferior court or tribunal, but it is a co-ordinate branch. The court is competent to examine the
constitutional validity of legislation and entitled to declare the legislation as ultra vires of the
constitution if it is found be offensive of Part III of the constitution. The court can issue a writ of
mandamus to the government not to enforce the unconstitutional legislation.

1.2(12) The purpose of this progressive writ is to remedy the defects off justice and the grant of
mandamus is therefore an equitable remedy. A writ of mandamus is issued under Article 32 when
there is an infringement of fundamental rights. Hence in the present PIL, the issuance of a writ of
mandamus Is most appropriate to redress the constitutional vices in the impugned provisions.

1.3 That there was violation of fundamental rights

1.3(1) The fundamental rights are fundamental in the sense that human liberty is predicated on their
availability and vice versa, and thus they cannot be waived. (17)
 MEMORIAL ON BEHALF OF THE PETITIONER

(13) AIR 1981 SC 344

(14) 1997 SCC 361
(15) AIR 1985 SC 167
(16) (2001) 1 KLT 854
(17) Basheshar Nah v. I.T. Commissioner, AIR 149, (SC 1959) ; Olga Tellis v Bombay Municipal Corporaion, AIR 180, (SC 1986) ; Nar Singh
Pal v. UOI ,3 SCC 589,(SC 2000)

1.3(2) The fundamental rights are intended not only to protect individual rights but they are based on
high public policy. Liberty of the individual and the protection of the fundamental rights are the very
essence of the democratic way of life adopted by the constitution, and it is the privilege and the duty
of this court to uphold those rights. (18)

1.3(4) Violation of fundamental rights is sin qua non of the exercise of the right conferred by art.32.
(19)
When once the court is satisfied that the petitioner’s fundamental right has been infringed, it is not
only its right but also the duty to afford relief to the petitioner, and he need not establish either that he
has no other adequate remedy, or that he has exhausted all remedies provided by law, but has not
obtained proper redress. When the petitioner establishes infringement of his FR, the court has no
discretion but to issue an appropriate writ in his favor. (20)

1.3(5) In Bandhua Mukti morcha(21) case the supreme court endorsed the statement of J.
Bhagawati :- Art 32 does not merely confer power on the court to issue a direction order or writ for
the enforcement of the fundamental rights but it also lays a constitutional obligation on this court to
protect the fundamental rights of the people and for that purpose this court as all incidental and
acillary powers including to forge new remedies and fashion new strategies designed to enforce
fundamental rights. It is in this realization of this constitutional obligation that this court has
innovated new methods and strategies particularly for enforcing the fundamental rights of the poor
and disadvantaged who are denied their human rights and to whom freedom and liberty have no
meaning.

Hence, it is humbly submitted that since there has been a violation of the fundamental rights, the
Court has the requisite jurisdiction to entertain this writ petition under Article 32 of the Constitution
of India bought as a Public Interest Litigation.

1.4 There is no requirement for the Petitioner to exhaust local remedies / ALTERNATIVE
REMEDY DOES NOT BAR ISSUE OF WRIT UNDER ART. 32

a) The right under Art. 32 is not subject to the exhaustion of local remedies
 MEMORIAL ON BEHALF OF THE PETITIONER

1.4(1) The right to approach this Hon'ble Court in case of violation of fundamental rights is itself a
fundamental right enshrined in Art. 32 (22). In Prem Chand Garg, it was held that this right is absolute

(18) Daryao v. State of UP, AIR 1457, (SC 1961

(19) Federation of Bar association in Karnataka v UOI, AIR 344, (SC 1981)
(20) Janata Dal v H.S. Chaudhary AIR 1993 SC 892
(21) AIR 814, (SC 1984)
(22) Indian Constitution Article 32
And may not be impaired on any ground (23). Further, unlike in Art. 226, the remedy provided by Art.
32 is a fundamental right and not merely a discretionary power of the Court (24). Moreover, this
Hon’ble Court has on multiple occasions expressly rejected an argument that called for exhaustion of
local remedies(25). Therefore, it submitted that it is not open to this Court to carve out exceptions
when there are none in the text.

1.4(2) Furthermore, judicial orders are not amenable to writ jurisdiction under Art. 32 (26).
Consequently, if a violation of Art. 32 takes place by this Court's rejection of the instant petition, the
petitioners will have absolutely no remedy for such violation of their fundamental right. Hence, the
Petitioner submits that a liberal approach should be adopted, erring on the side of caution, in cases
where the Court rejects a petition under Art. 32.

b) The rule of exhaustion of local remedies is not binding on this Hon'ble Court

1.4(3) Admittedly, cases such as Paul Manickam (27), Kanubhai(28), and PN Kumar(29) require the
exhaustion of local remedies before approaching the Court under Art. 32. However, it is submitted
that this Hon'ble court must not be constrained by these decisions for the following reasons: First,
this self-imposed restraint is merely a rule of convenience and discretion (30) and does not oust the
(31)
jurisdiction of this Court under Art. 32. Secondly, these cases are per incuriam as they were
rendered in ignorance of previous decisions by higher benches of this Hon'ble Court that expressly
rejected such a rule. Finally, Art. 32(4) specifically provides that this right may not be suspended
except by a constitutional provision. (32) A rule of self-imposed restraint by the judiciary that requires
exhaustion of local remedies constitutes an extra-constitutional partial suspension and is therefore,
unconstitutional.

(23) Prem Chand Garg v. Excise Commissioner, AIR 996, (SC 1963)
(24) Daryao v. The State of Uttar Pradesh, AIR 1457, (SC 1961); Tilokchand Motichand v. H.B. Munshi, AIR 878,(SC 1970)
 MEMORIAL ON BEHALF OF THE PETITIONER

(25) Kharak Singh v. State of Uttar Pradesh, AIR 1295, ( SC 1963); Romesh Thappar v. The State of Madras, AIR 124, (SC 1950)
(26) Sahibzada Saiyed Muhammed Amirabbas Abbasi v. The State of Madhya Bharat, AIR 768,( SC 1960); Naresh Shridhar Mirajkar v. State of
Maharashtra, AIR 1, (SC 1978)
(27) Union of India v. Paul Manickam, AIR 4622, ( SC 2003)
(28) Kanubhai Brahmbhatt v. State of Gujarat, AIR 1159, ( SC 1987)
(29) P. N. Kumar v. Municipal Corporation of Delhi,4 SCC 609, ( SC 1987)
(30) State of Uttar Pradesh v. Mohammad Nooh, AIR 86, (SC 1958)
(31) Mohammed Ishaq v. S. Kazam Pasha, 1 SCC (Cri.) 721
(32) India Constitution. Art. XXXII, ¶ 4

b) This Hon'ble Court has a constitutional duty to entertain the instant petition

1.4(3) The Constitutional obligation of this Hon'ble Court as the guarantor of fundamental rights has
been interpreted broadly(33) and as one that exists independent of any other remedy that may be
available(34). This is particularly true in cases of grave public importance, such as environmental
litigation where relief may not be denied on mere technical grounds. Consequently, it is submitted
that a refusal to entertain the instant petition would be inconsistent with the aforesaid obligation. (35)

Therefore, on the basis of the authorities cited, it is most humbly submitted that the present writ
petition is maintainable under article 32 of the constitution as the impugned provisions are
unconstitutional.
 MEMORIAL ON BEHALF OF THE PETITIONER

(33) MC Mehta v. Union of India, AIR 1086, (SC 1987)

(34) Nilabati Behera v. State of Orissa, AIR 1960,( SC 1993); Kharak Singh v. State of Uttar Pradesh, AIR 1295,( SC 1963)
(35) Kharak Singh v. State of Uttar Pradesh, AIR 129, (SC 1963);. Romesh Thappar v. The State of Madras, AIR 124, ( SC 1950)

PRAYER

Therefore, in the light of the issues raised, arguments advanced and authorities cited, it is most
humbly prated that this hon’ble court may be pleased to adjudge and declare that;

• The writ petition is maintainable under Article 32 of the Constitution.

And pass any other order that it deems fit in the interests of justice, equity and good
conscience. All of which is respectfully submitted.

Date:
Place: New Delhi, India Adv. Manoj KTM
Adv. Aiswarya Jose
Adv. Sunil C G
(Counsels for the Petitioner)
 MEMORIAL ON BEHALF OF THE PETITIONER

POINTS FOR 2nd ISSUE and ARGUMENTS

In Romesh Thappar v. State of Madras [2], it was stated that “Freedom of speech and
Expression that of the press lay at the foundation of all democratic organisations, without free
political discussion no public education which is essential for the proper functioning of the process of
popular government, is possible.” The Supreme Court in Union of India v. Association for
Democratic Reforms and Anr [3] held that “One sided information, disinformation, misinformation
and noninformation, all equally create an uninformed citizenry which makes democracy a farce.
Freedom of speech and expression includes right to impart and receive information which includes
freedom to hold opinions”. Liberty of speech and expression is infact the most essential of all
freedoms. In the leading case of Bennett Coleman v Union of India (1973) [4] it was observed that
freedom of speech and press is the ark of the covenant of democracy because assessment of views by
people is vital for the working of democratic institution. The Supreme Court in Sakal Papers v Union
of India (1962) [5] observed that the freedom of speech and expression is one of the most important
principles under a democratic constitution. Similarly in the S. Khushboo v Kanniamal and Anr
(2010) [6] the apex Court observed that the freedom of speech and expression even not absolute in
nature is essential as we need to tolerate unpopular opinions. The right of freedom of speech and
expression needs free flow of opinions and views essential to support collective life. Custom of
Social dialogue by and large is of great social importance