Petitioner Memo Final

XIII Internal Moot Court Competition, 2018
Team Code No.
XIII Internal Moot Court Competition, 2018.
Before the Honourable Supreme Court of Indiana.
In the matter of
Transfer Cases: /2018
(Under Article 32 read with Article 139-A)
HARRY &ORS
V.
UNION OF INDIANA&ANRS
MEMORIAL ON THE BEHALF OF PETITIONER
MEMORIAL ON THE BEHALF OFPETITIONER Page 1

TABLE OF CONTENTS
I. Table of Contents……………..…………………………………………………………... 2-3

II. Table of Abbreviation……………………………………………………………………...4
III. Index of Authorities………………………………………………………………………..5-7
IV. Statement of Jurisdiction…………………………………………………………………..8
V. Statement of Facts……………………………………………………………………….....9
VI. Statement of Issues………………………………………………………………………....10
1. The constitutionality of §67-A, §69-A and §69-B of Information Technology Act, 2000(as
amended) and application of §340 of Indian Penal Code, 1860 & §3-§4 of the Indecent
Representation of Women Prohibition Act, 1986?
2. Whether there was any due infringement of Right to Privacy during search of private documents
and letters that were not meant for public disclosure?
3. Whether there is a violation of A. 20(3) if any private unpublished documents/information has
been used in order to convict the accused?
VII. Summary of Arguments…………………………………………………………………. 11
VIII. Advanced Arguments……………………………………………………………………. 12-27
1. Whether §67 A, 69A & 69 B of Information Technology Act, 2008 and application of §340
of Indian Penal Code, 1872 and §3-§4 of Indecent Representation of Women (Prohibition)
Act, 1986?......................................................................................................................12-19
1.1 Whether the source of leaked information was the combined company?............... 12
1.2 Constitutionality of §67-A, §69-A & §69-B…………………………....................12- 16
1.3 Whether there is a contravention of §340 of Indiana Penal Code, 1860 in the present
case?..........................................................................................................................17-18
1.3.1Whether there was a wrongful restrain according to IPC, 1886?
1.3.2 Whether the restrain lead to wrongful confinement?
1.4 Whether there is a contravention of §3 and §4 of Indecent Representation of Women

(Prohibition) Act, 1986?...................................................................................................19
2. Whether there was any undue infringement of right to privacy by the search of private
documents and letters which were not meant for public disclosure?.........................20-24
2.1 Search and Seizures in United Kingdom………….....................................................20
2.2 Whether the documents were confidential and private?.............................................21

2.3 Whether there is breach of privacy in search of private and confidential

documents?..............................................................................................................21-24
3. Whether there is a violation of A. 20(3) if any private unpublished documents/information
has been used in order to convict the accused?...........................................................25-27
3.1 Article 20(3) and doctrine of self-incrimination……………....................................25

3.2 Whether Article 20(3) is applicable and violated in the present case?.......................25-27.
IX. Prayer ……………………………………………………………………………………......28.

LIST OF ABBREVIATIONS
Words Abbreviation
Zinc Enterprises Ltd. ZEL
Features Co. Ltd FCL
Progressive Conservative Association of Indiana. PCA
Government Govt.
Investigation Officer IO
Supreme Court. SC
High Court. HC
Article. A.
Section. §
Constitution of India, 1950. Const.
The Indian Evidence Act, 1872. IEA.
Indian Penal Code, 1860. IPC.
Criminal Procedure Code, 1973. Crpc.
Information Technology Act, 2008. ITA
Honourable Hon’ble
All India Report AIR
Supreme Court Cases SCC
Supreme Court Report SCR
SCC Online Case SCCOnline
Delhi Del
Kerela Ker
Punjab & Haryana P&H

INDEX OF AUTHORITIES
A. Statutes
1. Information Technology Act, 2000.
2. Information Technology (Procedure and Safeguards for Blocking for Access of Information
by Public) Rules, 2009.
3. Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption of Information) Rules, 2009.
4. Information Technology (Intermediaries Guidelines Rules) Rules, 2011.
5. Information Technology (Reasonable security practices and procedures and sensitive
personal data or information) Rules, 2011.
6. Indian Penal Code, 1860.
7. Code of Criminal Procedure, 1973.
8. Indecent Representation of Women Act, 1986.
9. Indian Evidence Act, 1872.
B. Books
1. M.P Jain on Indian Constitutional Law.
2. Arvind P.Datar Commentary on The Constitution of India, Volume 1.
3. D.D BasuComentary on Constitution of India, Volume 5.
4. Writ Remedies by Justice B.P Banerjee.
5. Right to Privacy Case by F.S. Nariman and K.K. Venugopal
6. S.R Bhansali, Commentary on The Information Technology Act, 2000.
7. Computers, Internet and New Technology Law by Justice A. Kabir.
8. Apar Gupta, Commentary on Information Technology Act and Rules.
9. Rantanlal and Dhirajlal on Indian Penal Code
10. R.A. Nelson on Indian Penal Code
11. Halsbury’s Law of India (Criminal)
12. Sarkar’s Code of Criminal Procedure
13. R.V. Kelkvars on Criminal Procedure Code
14. Ratanlal and Dhirajlal on Criminal Procedure Code
C. Foreign Legislation
1. Bill of Rights
i. 1st Amendment
ii. 4th Amendment
iii. 5th Amendment

D. International Conventions
1. Universal Declaration of Human Rights, 1948.
2. International Convention on Civil and Political Rights, 1966.
E. Case Laws Cited

Issue 1
S.No Party Name Citation
1. Maneka Gandhi v. Union of India 2 SCR 621, (1978).
2. Shreya Singhal v. Union of India AIR SC 1523, (2015).
3. R.M. Malkani v. State of Maharashtra 2 SCR 417, (1973).
4. Amar Singh v. Union of India 7 SCC 148, (1975).
5. Gobind v. State of Madhya Pradesh 2 SCC 148, (1975).
6. Kharak Singh v. State of Uttar Pradesh 1 SCR 332, (1964).
7. Rupinder Singh Sodhi v. Union of India AIR SC 65, (1983).
8. Samir Saha v. State of Tripura Crilj 1360,(1998).
9. S.A. Hamid v. Sudhirmohan Gosh AIR Cal 730,(1929).
10. SharatBabuDigumarti v. Govt SCCOnline1464,(2016).
Issue 2
1. Entick v .Carrington, 19 St Tr 1030,(1765).
2. Justice K.S. Putaswamy v. Union of India 1 SCC 10, (2017).
3. Kharak Singh v. State of Uttar Pradesh 1 SCR 332,(1964).
4. A.K. Gopalan v. State of Madras AIR SC 27, (1950).
5. RustomCavasjee Cooper v. Union of India 1 SCC 248,(1970).
6. Wolf v. Colorado SCC Online US SC
102, (1949).
7. Directorate of Revenue v. Mohd. NisarHolia 2 SCC 370, (2008).
8. Suchita Srivastava v. Union of India 9 SCC 1, (2009).
9. State of Maharashtra v. Bharat Shantilal Shah 13 SCC 5, (2008).
10. Ram Jethmalani v. Union of India 8 SCC 1, (2011).
11. Hindustan Times v. High court of Allahabad 13 SCC 155,(2011).
Issue 3
1. Delhi Judicial Service Association v. State of Gujarat AIR SC 2176, (1991).
2. State of Bombay v. KathiKalluOghad 3 SCR 10, (1962).
3. Balkishan A. Devidayal v. State of Maharashtra AIR SC 379, (1971).
4. Raja NarayanlalBansilal v. ManeckPhiroz Mistry AIR SC 29, (1961).
5. Maqbool v. State of Maharashtra AIR SC 325, (1953).
6. NandiniSatpathy v. P.L. Dani 2 SCC 424,(1978).

F. Database Referred
1. www.lexisnexis.com
2. www.westlaw.com
3. www.scconline.com
4. www.bluebook.com
5. www.cis.in

STATEMENT OF JURISDICTION
Petitioner humbly approaches the Honourable SC under A. 139-A (1)1 and A. 322 of Constitution of
Indiana, which reads as follows
1
Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or
more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or on an application
made by the Attorney-General of India or by a party to any such case that such questions are substantial questions of general
importance,the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of
all the cases itself”
2
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
(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

STATEMENT OF FACTS
Indiana is a developing country with a population of 1.2 Billion approximately, majority of inhabitants are
aged between 16 to 25 years of age. In order to get foreign investments, government was keen to provide tax
benefits to foreign company to attract further investments. ZEL sought to seek the benefits from Govt. of
Indiana and started investing in Indiana, subsequently it gained large customer base due its economic &
catered the needs of people. It launched an ‘end-to-end encryption’ private messaging app ‘Commu-app’ in
2006 for sharing pictures, voice messages, videos messages and documents among personal contact. There
were standard terms and conditions, after accepting which the user of the device and proceed with install
button. It was huge success for ZEL & went on to become leading company in this field.
In 2008, after earning sufficient amount of goodwill ZEL collaborated itself with another company known as
‘features’ owned by FCL, another social networking media. The collaboration would have helped in better
product services and help in advertising the app along with making a complete profile of the user. The
history of data could be still collected even if the app is uninstalled, consent of user was taken by ‘opt-in-
basis’. FCL had paid US Dollar 10 Million ZEL for letting them use personal information of user, which
were not meant for public disclosure. Post-January 2009, the private information of the users was leaked on
the internet, particularly of women depicting obscene content. There was rage amongst adolescent youth and
also among old generation. Seeing the chaos created by the leak PCA lead by Sri Devi, protest were
conducted after hearing the plea of mothers who claimed that the children have been filled with sexual
urges. PCA attacked and harassed employees of FCL.
Subsequently PCA filed aimless complaints against internet service provider, companies that gave domain
and server space to the joint social media company, police initiated the investigation in search of real
offenders. Central Govt. banned both commu-app & features app. IO confiscated computers, hard disk,
papers and letters from angry mothers along with personal letter of Harry to his girlfriend stating he wanted
to change the social perspective of womanhood. The company and its directors were accused of various
offences with regard to obscenity, thereafter private letters of harry were published in local newspaper.
Harry filed a writ petition alleging breach of privacy in publication of private letters. ZEL 7 FCL filed a writ
petition against the ban imposed on them. Other intermediaries filed a writ petition alleging violation of
A.19 (1) (a) & (g). Due to voluminous of cases, application was moved under A.139-A to SC, division
bench moved the matter to constitutional bench headed by chief justice.

STATEMENT OF ISSUES
1. Whether §67 A, 69A & 69 B of Information Technology Act, 2008 and application of §340 of
Indian Penal Code, 1872 and §3-§4 of Indecent Representation of Women (Prohibition) Act,
1986?
2. Whether there was any undue infringement of right to privacy by search of private documents
and letters which were not meant for public disclosure?
3. Whether there is a violation of A. 20(3) if any private unpublished documents/information has

been used in order to convict the accused?

SUMMARY OF ARGUEMENTS
1. The Constitutionality of §67-A, §69-A and §69-B of ITA, 2000 and application of §340 of IPC and
§3-§4 of Indecent Representation of Woman (Prohibition) Act, 1986?
It is humbly submitted before the Honourable Supreme Court that §67-A,§69-A&§69-B , which state
about punishment for publishing or transmitting adult pornographic content, viewing pornographic
content amounts to one expressing his or her sexual orientation through private use. §69-A of the act
deals with blocking of any website if it endangers restrictions as enunciated under A. 19(2) other than
public morality and decency, the section faces a dearth of basic constitution principles of fair justice.
§69-B states regarding power of government to monitor data traffic, rule 3 of the section prescribed rule
which falls to be important rule for governing monitoring has broaden its ambit to all the citizen
regardless who is innocent or criminal. PCA is a right-wing association; the association wrongfully
restrained employees into a closed warehouse for whole night and made the employees march with
blackened faces. §3 & §4 of Indecent Representation of Women (Prohibition) Act, 1986 are criminal
substantial law; thereby it should satisfy the essentials of crime, which are not met in the present case.
2. Whether there was any undue infringement of right to privacy in search of private documents or
information not meant for public disclosure?
It is humbly submitted that there was undue infringement of right to privacy in search of private
documents or information not meant for public disclosure. The documents fall under the ambit of private
document as per §75 of Indian Evidence Act, 1872. The search was conducted by under §165 of Code of
Criminal Procedure Code, 1973 as provision which gives power to search and seizure in Information
Technology Act, 2000 are unreasonable and vague in nature.
3. Whether there was violation of A. 20(3) in using unpublished documents or information for
convicting the accused?
It is humbly submitted that, in order to apply A. 20(3), firstly the article should be applicable with the
present case, the three essential laid down in under Article 20(3) are satisfied, the facts of the case also
tends to incriminate the accused. Article 20(3) follows the principles as stated in Fifth Amendment of
U.S. Constitution but with a narrower scope.

ADVANCED ARGUEMENTS
1. Whether §67 A, 69A & 69 B of Information Technology Act, 2008 and application of §340 of
Indian Penal Code, 1872 and §3-§4 of Indecent Representation of Women (Prohibition) Act,
1986?
1.1 Whether the source of leaked information was the combined company?
It humbly submitted that the company had not generated the obscene material or for that matter
created information in such as way so as to appeal obscene. A detailed report has been made
and attached in the annexure for kind perusal. Commu-app use to provide services of that to
E2EE, which means that the information sent by the sender in his or her language while
transition to the receiver be in the form of non-comprehendible electronic code, which the
person operating the server cannot decrypt or decode using human intellect. If the attention is
drawn towards point (d) and (e) of the terms and condition3 , the electronic application had the
access to pictures and video which would have been saved in the server the company. Now the
sources of obscene content was not the company, rather it was being transmitted amongst the
users itself. Therefore the source of these obscene content is not the company rather the citizens
of Indiana, who have the hidden urges of seeing and transmitting such content.
1.2 Constitutionality of §67-A, §69-A & §69-B.
§67-A states “Whoever publishes or transmits or causes to be published or transmitted in the
electronic form any material which contains sexually explicit act or conduct shall be
punished……”.According to S.R. Bhansali Commentary on Information technology, §67-A
covers the ambit of sexually explicitly act or conduct among adults4 . The obscene material may
or may not be depicted in from of pornography, according to Apar Gupta, Commentary on
Information technology act, § 67A which has been inserted by the IT Amendment Act, 2008
expressly prohibits the publication or the transmission ofpornographic content. Though
pornographic content as would have fell as species of content prohibited under §67, there seems
to have been a push towards expressly prohibiting pornography.
If the section is applied to facts of present case, two points are clear from the case. Firstly there
is nothing in the facts which signifies leak of pornographic content , it said leak of obscene
content in which women are depicted, there should some material on the basis of which the
court can establish that the said information leaked on is obscene, mere fact that it is obscene ,
doesn’t without a scope of doubt make the said information pornography, secondly the leak
3
¶3 of Moot Court Proposition.
4
S.R. Bansali, Commentary on the Information Technology Act, 273(3 rd edition, 2015).
which is so contended to be leaked by Features and Commu-app is that it went viral on social
media websites other than commu-app and features that is Fake-book, Tiber and Intra-gram, to
which the former joint company has no control on. The above mentioned clarity had to be given
in order to bring the lack of procedural safeguards in this section has, A. 21 of Indiana
Constitution states about the fundamental right of a person not to be deprived of his life and
liberty except according to procedure established by law. Procedure established by law includes
both substantial law and procedural law, section does not have procedure under which state or
its officer can confirm that the said action has been caused by the accused.
If the section is applied to the current case, it can be seen that the police had charged the
directors of a company for electronic transmission of obscene matter(which actually didn’t take
place) without conducting a lawful investigation, by lawful investigation it means the for
punishing any offender under this section, a lawful investigation as per the section has to be
prescribed, §292 of IPC has a procedural backing of §94 of Crpc, the question lies where is the
procedural backing of this section. In an article on Right to Pornography5, it was stated that “as
soon as a law is passed declaring a certain activity to be criminal, people engaged in it tend to
operate underground, same is the case with pornography, it can lead to abuse of power by the
police and government officials who work in collusion with the violation of law. This is evident
from thriving black market for pornography.
According to various studies done on black money, one of the studies done by Indira Gandhi
Institute of Development Research estimates 18-21 % of the GDP is black money out of the
major portion of black money is generated from illegal gambling, smuggling and pornography 6.
It is only raises scepticism regarding the powers of this section, lastly the legislation and law-
makers in our country have failed to establish as to how does private use and enjoyment of
pornography can lead to violation of public morality and decency, also state has failed over the
years as how is adults consenting to pornography affecting any kind of harm upon the
community. Pornography in its limited acceptable meaning can sub-serve towards positive
contribution of sexual freedom and liberation, which would ultimately lead to the healthy
development of adults in the society. In absence of any such exposition, the right to moral
independence is violated by legislation whose only justification is the pain and disgust
experienced by some people when others read or enjoy pornography.
5
MadhuKirthwar& Ruth Vanita, Using women as a pretext for repression: Indecent Representation of Women (Prohibition) Bill.
Article was mentioned in Right to Pornography published in NUJS Law Review.
6
The study was mentioned in ENS Economic Bureau, Black Market constitutes nearly 18-21% of the India’s GDP, August 2
1999.
The way in which one gives expression. Sexual orientation is an essential attribute of privacy.
Discrimination against an individual on the basis ofsexual orientation is deeply offensive to the
dignity and self-worth of the individual.Equality demands that the sexual orientation of each
individual in society must beprotected on an even platform. The right to privacy and the
protection of sexual orientation lie at the core of the fundamental rights guaranteed by Article
21 of the Constitution.
§69-A states regarding the powers of central government to block a website if is found to
disturb the following areas of restrictions laid down under A. 19(2), the interest of sovereignty
,Integrity of India ,Defence of India, Security of the State, Friendly relations with foreign States
and Public order.The section’s procedural safeguard faces a tremendous amount of
unconstitutionality though not put in light to the SC ever since the enactment of the amended
act. The first and the foremost point of unconstitutionality is the ignorance to doctrine of natural
justice, the procedural safeguard also known as the Information Technology (Procedure and
Safeguard for Blocking for access of Information by Public) Rules, 2009 has established
procedure for blocking of websites under rule 6. A through reading of the rule would clearly
state that there exists no hearing from the originator of such content, for a better understanding
let’s take an example of a person getting arrested, the police is duty bound under Constitution of
India as to on what charges a person has been arrested under A. 22. The scope of pre-decisional
hearing is missing in the present rule, which is violation of audi-alterumpaterum.
According to M.P. Jain on Indian Constitutional Law, “With a view to control arbitrary action on
the part of the administration that the person adversely affected by administrative action the right
of being heard before the administration passes an order against him. It is believed that such a
procedural safeguard may minimise the chances of the administration passing an arbitrary order,
thus Supreme Court has extracted from A. 14 the principle that natural justice is an integral part
of administrative process”, if the emphasis is laid upon the present facts of the case, the central
government had blocked those applications which had not caused transmission of obscene
content, it was rather the other social media websites that were responsible for it, it just throws
light on violation of natural justice can lead to miscarriage of justice. In Maneka Gandhi v.
Union of India7, is an authority for the proposition that the principle of natural justice are as an
integral part of the guarantee of equality assured by A. 14. An order depriving a person of his
civil rights passed without affording him an opportunity of being heard suffers from the vice of
violation of natural justice and is thus an arbitrary order. The civil right or fundamental right
7
2 SCR 621, (1978).
enshrined under 19(1)(g) has been taken away by the central government without hearing from
the side of the accused company and its directors. Post-Maneka Gandhi, the court emphasized
the judicial concept of A. 14 has progressed from a prohibition against discrimination to
invalidating factor for any arbitrary state action. There has been constant complaints of blocking
websites in secrecy by the government without any judicial scrutiny, if the above arguments are
read with the constant complaints, it is evident that the rule of law is not followed, the rule of
law stats that the law should not:
 It should not give arbitrary powers to the state.

 There should be equality before law.
 No person should deprived of his or her personal liberty.
It can be evidently inferred that the rule of law is being violated.
In Shreya Singhal v. Union of India8, Court observed that § 69A requires the reasons for
blocking content to be recorded in writing, is so that the order may be assailed in a writ petition
under A. 226 of the Constitution. While neither Section 69A nor the rules clearly articulate
whether or not the orders and the reason for the orders as recorded must be published or made
available to the owner or originator of the blocked content, the reason why the request and
complaint are confidential is because of rule 16 of the rules.
To know the ground reality of this section from the present case, there is no evidence that the
complaint was even made by anyone, even if the complaint was filed the social media which
were responsible for the transmission are conducting their business freely, it just shows what is
level of examination conducted by authorities under rule 8. The case wouldn’t fall under
emergency as the block should have been done right after the public disorder created by PCA,
it was only PCA filing aimless complaint against intermediaries, the state woke up and started
taking hasty actions. This brings to lackadaisical and callous attitude of authority in deciding
the organisation as stated under 2(g) of the rules, if one tries to search it in official websites of
Gazette of India and DeitY or even MeitY, they would find nothing in it.
§69-B of Information Technology Act, 2000 states regarding the power to authorize to monitor
or collect traffic data or information through any computer resource for cyber security.
According to Apar Gupta, “A review of § 69B and the Monitoring of Traffic Data Rules, 2009
make it clear that the harms which will be incurred are in the nature of information processing,
8
AIR SC 1523, (2015).
such as aggregation and identification.An argument against the constitutionality of the section
as the regulations formed under it clearly contemplate independent directions to monitor data,
which as a technicalpre-requisite necessarily requires interception”.
If rule 3(4) of the monitoring rules is given a through reading it would suggest that monitoring
may include the monitoring of data or information from any person or any class of persons, this
would include innocent citizens of Indiana as well, in the case of R.M. Malkani v. State of
Maharashtra9, the court observed that “The telephonic conversation of an innocent citizen will
be protected by Courts against wrongful or high handed' interference by tapping the
conversation”, right to privacy of innocent citizens will always get breached of the provision of
3(4) is not struck done. In short §69-B is an electronic surveillance provisions for enhancing
cyber security. According to Indiana case history dealing with surveillance, the pertinent thing
note was that the surveillance was restricted to people guilty of an offence and habitual
offenders10 , in terms of electronic surveillance would offenders like hackers who operate
illegally, offender known to be involved in terrorist activity, instilling that kind of surveillance
on innocent citizen would just deprive them from personal liberty vesting in using the internet.
The rule gives autonomy to the competent authority, which is executive in simpler sense to
pass monitoring orders, the problem is that latter faces a dearth of judicial intervention,
according to rule 3(3), competent authority is suppose to send the direction to a reviewing
committee, the job of review committee is check whether the said direction for monitoring is in
conformity with the rules, the fact is that review committee does not have a single person from
judiciary only raises questions as to who will determine that through monitoring , competent
authority has contravened the provisions of the constitution.
1.3 Whether there is a contravention of §340 of Indiana Penal Code, 1860 in the present case?
According to Indiana Penal Code, §340 states “Whoever wrongfully restrains any person in
such a manner as to prevent that person form proceeding beyond certain circumscribing limits,
9
2 SCR 417, 1973. Amar Singh v. Union of India, 7 SCC 69, (2011).
10
Kharak Singh v. State of Uttar Pradesh, read with Gobind v. State of Madhya Pradesh, 2 SCC 148,(1975).
is said wrongfully to confine that person”. There are 2 conditions precedent to application of
current section:
 There should be a wrongful restrain
 The restrain must prevent a person from proceedings beyond certain circumscribing
limits.
1.3.1Whether there was a wrongful restrain according to IPC, 1886?
§ 339 of Indian Penal Code, 1886 states that “Whoever voluntarily obstructs any person so as to
prevent that person from proceeding in any direction in which that person has a right to
proceed, is said wrongfully to restrain that person”. The section shares a direct nexus with A. 19
(1)(d), article states about the freedom of movement freely throughout the territory of India,
clause 5 of the article gives inherent powers to the state for restricting such freedom in the
interest of general public and interest of schedule tribe. Restriction maybe seen as encroachment
on personal liberty, according to Kharak Singh v. State of Uttar Pradesh 11, personal liberty refers
to freedom from restrictions or encroachments imposed directly or indirectly upon him by
calculated measures.
If the section is applied to the present case, there exists prima facie evidence stating about there
was a wrongful restrained followed by wrongful confinement. “The employees were wrongfully
restrained into a warehouse whole night and paraded on around the streets following morning
with blackened faces12”, the female employees had all right to proceed and consume liquor in
the pub, even though consumption of alcohol may be seen as immoral with given standards of
Indiana culture but such authority of restraining someone is only vested with the state to restrict
freedom of movement in the interest of general importance and schedule tribe 13, PCA on the
other-hand is a right-wing privately funded association has no authority to regulate any such
freedom from the point of constitutional law, simply stating the exceptions to the section a
person can restrain if he or she has some lawful authority to do, now from the point of Indiana
Penal Code, taking the actus rea in consideration it was certainly not carried out in good faith
because restraining a person and then parading them with blackened faces is not justified and
does not amount to good faith. Thereby it is humbly submitted that there was wrongful restrain.
11
1 SCR 332,(1964).
12
¶9 of moot court proposition.
13
Rupinder Singh Sodhi v. Union of India, AIR 1983 SC 65. Khare N.B v. State of Delhi, AIR 1950 SC 211.
1.3.2 Whether the restrain lead to wrongful confinement?
It is submitted that there was a contravention of §340 of IPC, if any person has to be punished
under two essentials that is wrongful restrain and restrain leading to confinement has to be
established. If emphasis is laid upon the facts of the present case, the female employees were
wrongful restrained into a warehouse and then confined there for a whole night, it is evident that
there were confined because if they had the chance to exit the warehouse they wold have but
they couldn’t as PCA would have blocked the exit, thereby confining them into a warehouse.
Moreover if the scepticism is regarded to the short interval of confinement, according to R.A.
Nelson on IPC, “Unlawful confinement deprives a person of the liberty to move from point to
point. Unlawful confinement is a general intent offence requiring proof only of a minimal intent
to effect deprivation of freedom of movement. Confinement does not require proof of total
physical restraint or confinement for the entire time period alleged. It is sufficient to show that
the confinement lasted for a significant period of time. An inability to escape is necessary with
an unlawful confinement”.An inability to escape would amount to wrongful confinement the
same view was even shared in Physical restraint standing alone will satisfy the minimum intent
to perform the act which constitutes the actus reusof unlawful confinement. PCA has no legal
authority for confining anyone leave aside the providing the victims with a reasonable ground as
to why were they confined. It was observed in Samir Saha v. State of Tripura14 “Proof of actual
physical obstruction is not essential to support a charge of wrongful confinement. It must, in
each case, be proved that there was, at least, such an impression produced, in the mind of the
person detained, as to lead him reasonably to believe that he was not free to depart and that he
would be forthwith restrained if he attempted to do so”, if the observation is applied to current
case at hand, it would imply the avaricious nature and abrupt nature of confined had created fear
in minds of female employees and the way they were paraded just shows the aggravated insulted
and humiliation faced by these women. Furthermore if the emphasis is supplied from S.A.
Hamid v. Sudhirmohan Gosh15, “The restraining of a person in a particular place or the
compelling him to go in a particular direction by force of an exterior will overpowering or
suppressing in any way his own voluntary action is an imprisonment on the part of him who
exercises that exterior will”. While the parade had been in procession, the employees had been
forced march with blackened faces, thereby there was an external force at their back.
14
Crilj 1360, (1998).
15
AIR Cal 730, (1929).
1.4.Whether there is a contravention of §3 and §4 of Indecent Representation of Women

(Prohibition) Act, 1986?
It is humbly submitted that there is no contravention of §3 and §4 of Indecent Representation Act,

1986, Section state regarding the prohibition on advertisement and publication of material that
depict women indecently. Firstly the act is a criminal substantial law as stated in
Ratanlal&Dhirajlal, being a criminal substantial law, it needs following elements for it to a
crime:-
 It should be committed by a natural person

 There should be a mens rea.
 Actus Rea.
 Injury.
The elements should compared with the facts of the case and then it should be decided whether
the issue is a crime or not. Firstly the leak of personal information was not done by Harry or Parry
who happen to be natural person in the accused company, the reason for leak of personal
information was due to technicality in storage of the information, a detailed report has been
attached for kind perusal. The mens rea if taken in consideration would lead as to why Harry and
Parry would leak such information which will inturn bring harm to repute the company, it has to
be noted that the all such obscene content was transmitted on other social media websites not on
Commu-app or Features. The first two essential cannot be established, rest of two essential are in
succession to the above 2 elements, if nothing really existed, how can there be an action and
injury. It has to be noted the present act does not extend its ambit to electronic transmission, a
careful study would show that the language shared by the section is similar to that of §292 of the
IPC. In the case of SharatBabuDigumati v. Govt( NCT of Delhi) 16, it was held by court that the
sections of Information Technology Act, 2000 dealing with obscenity cannot be read with section
of IPC dealing with obscenity.
16
SCC Online SC 1464,(2016).
2. Whether there was any undue infringement of right to privacy by the search of private documents
and letters which were not meant for public disclosure?
It is humbly submitted that there has been an undue infringement of right to privacy by search of
private documents and letters which were not meant for public disclosure.
2.1 International view of Search and Seizures
Indiana inherited its procedural law from United Kingdoms, so thereby it would be prudent to
analyse the legislations, conventions and cases related to its parent country.Article 12 of Universal
Declaration of Human Rights (1948) states,
"No one shall be subjected to arbitrary interferencewith his privacy, family, home or
correspondence nor to attacks upon his honour and reputation. Everyone has the right to the
protection of law against such interference or attacks."
Article 17 of the International Covenant of Civil and Political Rights provides that,
"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home
and correspondence nor to unlawful attacks on his honour and reputation." (Indiana is a party to
the covenant).
The Canadian Charter of Rights and Freedoms declares, "Everyone has the right to be secure
against 'unreasonable' search and seizure".The New Zealand Bill of Rights declares in §21 that,
"Everyone has the right to be secure against unreasonable search or seizure, whether of person,
property or correspondence or otherwise”. These conventions and legislations have been enacted
in order to protect citizens from arbitrary powers of the state.
If reference is placed upon the time when investigating officer started his investigation he came
there with a motive of conducting general search , he seized everything and anything which he
thought would be prove that the accused have committed an offence. The position regarding
general search is often criticised in United kingdoms. Entick v .Carrington17,held that except in
the case of stolen goods, there was no common law power to issue a general warrant (i. e .,
without specifying the papers or objects to be searched andseized) for the search of premises on
the ground of State necessity or otherwise. Court declared the warrant andthe behaviour as
subversive "of all comforts of society" and the issuance of a warrant for the seizure of all of
aperson's "papers" and not those only alleged to be criminal in nature was "contrary to the genius
of the law of England"18.
17
19 St Tr 1030, (1765).
18
D.D. BASU, Commentary on Constitution of India, Vol. 5, 119 (Lexis Nexis, 9e 2015).
2.2 Whether the documents were confidential and private?

According to Indian Evidence Act, 1872, §74 states regarding what documents are public
documents, Documents forming the acts, or records of the acts, they are of the sovereign
authority, they are of official bodies and tribunals, and they are of public officers, legislative,
judicial and executive, of any part of India or of the Commonwealth or of a foreign country of
any part of India or of the Commonwealth or of a foreign country.
If the criteria’s of public document is applied to case at hand, it is evident that the documents
which were seized does not fall under the category of public documents. The documents which
are now private documents from the preview of Indian Evidence Act, 1872(§75 of the act) are,
documents revived from the seized computers and hard disks, which provided the police with
video clippings, edited picture found on clipboards, letters of mothers and Harry found on the
floor.
The question now arises as to how be these private documents personal or confidential in nature.
The video clippings which were found in server (computers and hard disks) had its origin from
the end-to-end encrypted chats between the users, the chats between the users would private. The
edited pictures were printed from the other social media websites where such content was
transmitted. Letters of mothers personally request the company to remove such content and letter
of harry was private and intimate to him.
2.3 Whether there is breach of privacy in search of private and confidential documents?
The Greek philosopher Aristotle spoke of a division between the public sphereof political affairs
(which he termed the polis) and the personal sphere of human life(termed oikos). This
dichotomy may provide an early recognition of “a confidentialzone on behalf of the citizen”.
Aristotle’s distinction between the public and privaterealms can be regarded as providing a basis
for restricting governmental authority toactivities falling within the public realm. On the other
hand, activities in the privaterealm are more appropriately reserved for “private reflection,
familial relations andself-determination”. According to Austin, the distinction between the
public and private realms has its limitations. If the reason for protecting privacy is the dignity of
the individual, the rationale for its existence doesnot cease merely because the individual has to
interact with others in the public arena.The extent to which an individual expects privacy in a
public street may be differentfrom that which she expects in the sanctity of the home. Yet if
dignity is the underlyingfeature, the basis of recognising the right to privacy is not denuded in
public spaces.The extent of permissible state regulation may, however, differ based on the

legitimateconcerns of governmental authority. According to Justice K.S. Putaswamy v. Union of

India19, it held that right to privacy is an intrinsic part of personal liberty under A. 21.
Fundamental rights under article 21 are not absolute and can be taken away as per procedure
established by law. When the decision in Kharak Singh v. State of Uttar Pradesh 20, was handed
down the principles governing the interrelationship between the rights protected by article 19
and right to life and personal liberty under article 21 were governed by the judgement in A.K.
Gopalan v. State of Madras21.Gopalan considered each of the articles in chapter on fundamental
right as embodying distinct (as opposed to overlapping) freedoms. However in RustomCavasjee
Cooper v. Union of India22, both sets of rights overlap and hence a law which affects one of the
personal freedoms under Article 19 would, in addition to the requirement of meeting the
permissible restrictions contemplated in clauses 2 to 6, have to meet the parameters of a valid
‘procedure established by law’ under Article 21 where it impacts on life or personal liberty.
Therefore if a person’s fundamental right under article 21 is infringed, the state can rely upon a
law to sustain the action; but that cannot be a complete answer unless the said law satisfies the
test laid under A. 19(2).
So far as the attributes covered article 19(1) are concerned, in other words the state must satisfy
that both the fundamental rights are not infringed by showing that there is a law and it does
amount to be reasonable within the meaning of constitution. If the above mentioned observations
are to applied to the present case, the letters between Harry-Karry and personal request cum
letters to the companyby mothers comes within the scope of private documents which were not
meant for public disclosure and unlawful search by the investigation officer amounted to breach
of their privacy. Also they were exercising their right under A. 19(1)(a), which states about
freedom of speech and expression which can be curtailed only according to reasonable
restrictions under A. 19(2) and arbitrarily search for the purpose of investigation is clearly not
one of them. According to Wolf v. Colorado23 , which held “The security of one’s privacy
against arbitrary intrusion by the police is a basic to free society.
§165 of CRPC, states that police officer making an investigation has
 reasonable grounds for believing that anything necessary for the purposes of an
investigation into any offence which he is authorised to investigate may be found in any
19
1 SCC , 10 (2017).
20
1 SCR 332, (1964).
21
AIR SC 27,(1950).
22
1 SCC 248,(1970).
23
SCC Online US SC 102, (1949).
place with the limits of the police station of which he is in charge, or to which he is
attached.
 That such thing cannot in his opinion be otherwise obtained without undue delay, such
officer may,
 after recording in writing the grounds of his belief and specifying in such writing, so far
as possible, the thing for which search is to be made, search, or cause search to be made,
for such thing in any place within the limits of such station.
Considering facts of the case and its application with above mentioned section,there are only 2
instances where the company was accused of the offence informally, one was by the anonymous
blog stating the leak could have been through Features and second one was PCA’s protests on the
grounds that mother of users felt that their children are getting moral depraved and filled with
sexual urges due to leakage of sensitive personal information. Therefore there are no reasonable
grounds for police to conduct a search without warrant on the basis of a belief that anything
necessary for the purpose of investigation maybe found in this place. The leak was caused in 2009
and police initiated investigation in the year of 2011 as the charge sheet was filed on February
2011. Therefore it is incorrect to say that the police officer had a valid opinion that such things
cannot be obtained without further undue delay, rather this show the lackadaisical attitude of
investigators, it took them 2 years to realise that there was such a leak. Also, it is evident from
the facts that investigation officer did not make any such efforts to record such reasonable grounds
on the basis of which search was conducted.
In accordance with A. 21, a person cannot be deprived of his or her personal liberty and life
without procedure established by law. If ignorance of such procedure, despite the knowledge of
procedure’s existence, deprives someone of his liberty it is a gravest offence a State can commit.
In the present case the authorities responsible for investigating did not even follow due procedure
established by law, hence there act did not fall under the scope of exception mentioned in A. 21.
Thus, neglecting the very concept of state’s duty for social welfare. Ignorance of law is not an
excuse, should have been borne by the investigating officer when he was conducting the unlawful
search and seizure.
In the case of Canara Bank 24, the Hon’ble Court emphasised the need to read procedural
safeguards to ensure that the power of search and seizure of the nature contemplated by Section
73 is not to be exercised arbitrarily. Right to Privacy is an integral part of right to life. This is a
24
1 SCC 496,(2005).Read with P.R. Metrani v. CIT, 1 SCC 789,(2007). Directorate of Revenue v. Mohd. NisarHolia, 2 SCC 370,
(2008).Suchita Srivastava v. Union of India, 9 SCC 1, (2009). State of Maharashtra v. Bharat Shantilal Shah, 13 SCC 5, (2008).
cherished constitutional value and it is important that human beings be allowed domains of
freedom that are free of public scrutiny unless they act in unlawful manner. Right to privacy is not
absolute and it need to be balanced with legitimate and compelling State Interest to ensure that
ends of justice are met in accordance with procedure established by law. In thepresent
case,majorly the search and seizure inclined towards administration of Justice rather than equally
balancing both the fundamental right of privacy and justifiable administration of justice, in Ram
Jethmalani v. Union of India 25, the honourable court while reading the PIL held that the solution
for the problem of abrogation of one’s own constitutional values cannot be creation of another
zone of abrogation of constitutional values, if the said statement is applied to current case , the
investigation officer inclined himself more towards administration of justice not realising the fact
that when he seized theletter of Harry and Karry, he took away the right to privacy which Harry
was entitled to under A. 21
Media is the fourth pillar of democracy and trial by media has evolved to be crucial concept,
media is powerful medium of communication for exercising the right of freedom speech and
expression, it is a prudent to not use such a right arbitrarily and infringement other persons
fundamental rights. §2 of Contempt of Courts Act and defines contempt as publication of any
matter:
 That prejudices or interferes with due course of judicial proceedings.

 Obstructs administration of justice.
In the present case, media reporting undoubtedly gives the impression that accused has committed a
crime which is prejudices fair trial, presumption of innocence and natural justice. In the case of
Hindustan Times v. High court of Allahabad 26, it was held “The unbridled power of the media can
become dangerous if check and balances are not inherent in it. The role of media is to provide the
reader and public in general with information and views testing and found as true and correct. This
power has to carefully regulate and must reconcile with a person’s fundamental right to privacy”.
25
8 SCC 1, (2011).
26
13 SCC 155, (2011).
3. Whether there is a violation of A. 20(3) if any private unpublished documents/information has been
used in order to convict the accused?
3.1 Article 20(3) and doctrine of self-incrimination.

Article 20(3) states that “No person accused of an offence should be shall be compelled to be a witness
against himself”27. A. 20 (3) is in lines with the legal maxim Nemo teneturseipsumaccusare, which at its
core means no man is bound to accuse himself. The article was enacted from Fifth Amendment of U.S.
Constitution. According to commentary by D.D. Basu on A. 20(3), it was stated that the Article embodies
the principle of protection against compulsion of self-incrimination. This principle is also enunciated by
the Fifth Amendment to the U.S. Constitution28. There are 3 conditions precedent for seeking protection
under A. 20(3), which are as follows 29:-
 The person must be accused of an offence.
 The element of compulsion to be a witness should be there.
 It must be against himself.
The above mentioned are sin qua non for seeking protection, all of them have to present for the
protection30.The right against self-incrimination is viewed as an essential safeguard in criminal
procedure. Its underlying rationale broadly corresponds with two objectives - firstly that of ensuring
reliability of statements made by theaccused and secondly ensuring that such statements are made
voluntarily31.“It was held in that case that Art. 20(3) has to be interpreted as a facet of the wider right of
personal liberty under Art. 21 and the right to answer question that may incriminate a person is a
procedural safeguard which bears a close relation with the right to fair trial under A. 21” 32.
3.2 Whether Article 20(3) is applicable and violated in the present case?
Article 20(3) as stated in the earlier sub-issue has to have 3 conditions precedent to it, firstly the person
should be accused of an offence, a person is accused when there is a formal accusation against him or her
in the form of F.I.R or any formal complaint or formal document or notice served33. There were letters of
complaint from angry mothers found in headquarters of Features Co. Ltd, the letters were directed to
official address of the company to be reviewed by the public relation department of the company, thereby
making the complaint formal as it is directed to the formal address of the company. In the case ofRaja
27
Constitution of India, Bare Act 14 (Universal Law Publication, 2017).
28
D.D. Basu, Commentary on the Constitution of India, Vol 5, 83 (Lexis Nexis9e 2015).
29
Arvind P Datar, Commentary on the Constitution of India, Vol 1, 355(Lexis Nexis Buttersworth, 2010).
30
Delhi Judicial Service Association v. State of Gujarat, AIR 1991 SC 2176. Read with State of Bombay v. KathiKallu Oghad,3
SCR 10, (1962).
31
Supra Note 3.
32
Ibid.
33
Balkishan A. Devidayal v. State of Maharashtra, AIR SC 379, (1971).
NarayanlalBansilal v. ManeckPhirozMistry 34, it has been held that the lodging of a First Information
Report or complaint is not an indispensable condition to ‘accuse’ a person so as to attract Art. 20(3), and
that there may be cases where an accusation may be held to have been made in substance. According to
Maqbool v. State of Maharashtra35, “The protection of this clause [A. 20(3)] is confined to criminal
proceedings or proceedings of that nature before a court of law, 90 or other Tribunal before whom a
person maybe accused of an 'offence' as defined in s. 3(38)of the General Clauses Act,that is an
actpunishable under the Penal Code or any special or local law”, in the present case the petitioner were
charged with various offences dealing with obscenity such as §67 and section 67-A to be more accurate,
information technology being a special law with a punitive punishment for transmitting the content of
sexually explicit acts. In NandiniSatpathy v. P.L. Dani36, the court also touched upon the question who is
an 'accused' for the purpose of invoking Art. 20(3), court saidthat even at the stage of police interrogation
by way of an investigationinto an offence a personcan be an accused and such a person can claim
protection under Art. 20(3).Therefore it is safe to conclude that the first condition to that of protection is
applicable in the present case.
Secondly there is testimonial compulsion against the directors and the company. According to Black’s
Law Dictionary, compulsion refers to “Forcible inducement to the commission of an act” and testimonial
according to dictionary refers to “Evidence given by a competent witness, under oath or affirmation; as
distinguishedfrom evidence derived from writings, andother sources”. In simpler terms testimonial
compulsion means that forcible testimony given by a witness in a case which turned out to incriminate
him or her to the offence. The protection under the article is afforded to an accused in so far as it is
related to the phrase to be a witness is not merely in respect oftestimonial compulsion in the court-room
but may well extend to compelled testimonypreviously obtained from him. In NandiniSathpathy v. P.L.
Dani , it was observed by Justice Krishna Iyer “"If evidence procured not merely by physical threats or
violence, but also psychic torture, atmosphericpressure, environmental coercion, tiring interrogative
prolixity, overbearing and intimidatorymethods and the like are compelling testimony”, if reference is
placed to facts in present case, the accused was subjected to atmospheric pressure and environmental
coercion, no investigation had been conducted between February 2009-January 2011, investigating
officer entered the headquarters of Features Co. Ltd and seized anything-everything he thought would
incriminate such as the letters lying on the floor. Furthermore the personal letter of Harry was published,
how the court of law expects the accused to give a testimony, given in consideration the amount of self-
incrimination it has caused to Harry, to give statement with the atmospheric and environmental pressure
34
AIR SC 29, (1961).
35
AIR SC 325, (1953).
36
2 SCC 424, (1978).
around. In the successive sub-issue the illegality and unreasonableness of search and seizure would be
examined. Therefore it is humbly submitted that there is a violation of 20(3).

PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is humbly requested
that this Honourable Court may be pleased to adjudge and declare:
1. That the writ petition filed by the petitioners is maintainable before the Supreme Court of India.
2. That section 67-A, 69-A & 69-B of Information Technology Act 2000 are ultra vires to the
Constitution of India.
3. That the ban imposed on Features and Commu-App is unlawful and draconian.
4. That respondent is liable for the wrongful confinement under § 342 of IPC
5. That the respondent is liable for the breach of privacy under A.21 of Constitution
6. That the respondent is liable for the infringement of Article 20(3) of Constitution
And pass any such order, writ or direction as the Honourable Court deems fit and proper, for this the
Petitioner shall duty bound pray.
Respectfully Submitted
Sd/-
Counsel for the petitioners

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XIII Internal Moot Court Competition, 2018

Team Code No.

XIII Internal Moot Court Competition, 2018.

Before the Honourable Supreme Court of Indiana.

Transfer Cases: /2018

(Under Article 32 read with Article 139-A)

MEMORIAL ON THE BEHALF OF PETITIONER

MEMORIAL ON THE BEHALF OFPETITIONER Page 1

I. Table of Contents……………..…………………………………………………………... 2-3

1.4 Whether there is a contravention of §3 and §4 of Indecent Representation of Women

MEMORIAL ON THE BEHALF OFPETITIONER Page 2

2.3 Whether there is breach of privacy in search of private and confidential

3.1 Article 20(3) and doctrine of self-incrimination……………....................................25

IX. Prayer ……………………………………………………………………………………......28.

MEMORIAL ON THE BEHALF OFPETITIONER Page 3

MEMORIAL ON THE BEHALF OFPETITIONER Page 4

MEMORIAL ON THE BEHALF OFPETITIONER Page 5

E. Case Laws Cited

MEMORIAL ON THE BEHALF OFPETITIONER Page 6

MEMORIAL ON THE BEHALF OFPETITIONER Page 7

MEMORIAL ON THE BEHALF OFPETITIONER Page 8

MEMORIAL ON THE BEHALF OFPETITIONER Page 9

3. Whether there is a violation of A. 20(3) if any private unpublished documents/information has

MEMORIAL ON THE BEHALF OFPETITIONER Page 10

MEMORIAL ON THE BEHALF OFPETITIONER Page 11

 It should not give arbitrary powers to the state.

It can be evidently inferred that the rule of law is being violated.

1.3.2 Whether the restrain lead to wrongful confinement?

1.4.Whether there is a contravention of §3 and §4 of Indecent Representation of Women

It is humbly submitted that there is no contravention of §3 and §4 of Indecent Representation Act,

 It should be committed by a natural person

2.2 Whether the documents were confidential and private?

MEMORIAL ON THE BEHALF OFPETITIONER Page 21

legitimateconcerns of governmental authority. According to Justice K.S. Putaswamy v. Union of

§165 of CRPC, states that police officer making an investigation has

 That prejudices or interferes with due course of judicial proceedings.

3.1 Article 20(3) and doctrine of self-incrimination.

MEMORIAL ON THE BEHALF OFPETITIONER Page 27

Counsel for the petitioners

MEMORIAL ON THE BEHALF OFPETITIONER Page 28

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