Evador

Issue 3 – Whether Rules 4(2) and Rule 4(4) are violative of right to privacy guaranteed
under the Constitution of Evador.
1. Analysis of Rule 4(2) and Rule 4(4) of the Information Technology (Intermediary
Guidelines) Rules 2021
1.1. Rule 4(2) of the Information Technology (Intermediary Guidelines) Rules 2021
1.1.1. Rule 4(2) of the impugned rules states the following:
“A significant social media intermediary providing services primarily in the
nature of messaging shall enable the identification of the first originator of the
information on its computer resource as may be required by a judicial order
passed by a court of competent jurisdiction or an order passed under section
69 by the Competent Authority as per the Information Technology (Procedure
and Safeguards for interception, monitoring and decryption of information)
Rules, 2009, which shall be supported with a copy of such information in
electronic form:
Provided that an order shall only be passed for the purposes of
prevention, detection, investigation, prosecution or punishment of an offence
related to the sovereignty and integrity of Evador, the security of the State,
friendly relations with foreign States, or public order, or of incitement to an
offence relating to the above or in relation with rape, sexually explicit material
or child sexual abuse material, punishable with imprisonment for a term of not
less than five years;
Provided further that no order shall be passed in cases where other less
intrusive means are effective in identifying the originator of the information;
Provided also that in complying with an order for identification of the
first originator, no significant social media intermediary shall be required to
disclose the contents of any electronic message, any other information related
to the first originator, or any information related to its other users;
Provided also that where the first originator of any information on the
computer resource of an intermediary is located outside the territory of
Evador, the first originator of that information within the territory of Evador
shall be deemed to be the first originator of the information for the purpose of
this clause.”
1.1.2. Rule 4(2) of the impugned rules requires significant social media
intermediaries to enable tracing of the originator of information, if required by
a court or a competent authority, under Section 69 of the Information
Technology Act, for certain offences.
It clarifies that such an order will not be passed in cases where other less
intrusive means are available and that no intermediary will be asked to disclose
the content of any electronic message or any other information related to the
originator.
The rule also clarifies that this is only allowed on specific grounds, including
security of the country, public order, preventing incitement to the commission
of any cognisable offence relating to public order or even for “investigation of
any offence”
1.1.3. Section 69 of the Information Technology Act 2000 empowers the central
government, the state government or its authorised officers to direct
“interception or monitoring or decryption” of any information through any
computer source “if satisfied that it is necessary or expedient to do”.
 All authorisation orders issued by the government under Section 69(1) must be
reasoned and written. Furthermore, they are scrutinised, at least once every two
months, by a review committee set up under the Evador Telegraph Rules, 1951,
which comprises of government secretaries in the Centre or the state in
question.

1.2. Rule 4(4) of the Information Technology (Intermediary Guidelines) Rules 2021
1.2.1. Rule 4(4) of the impugned rules states the following:
“A significant social media intermediary shall endeavour to deploy
technology-based measures, including automated tools or other mechanisms to
proactively identify information that depicts any act or simulation in any form
depicting rape, child sexual abuse or conduct, whether explicit or implicit, or
any information which is exactly identical in content to information that has
previously been removed or access to which has been disabled on the
computer resource of such intermediary under clause (d) of sub-rule (1) of rule
3, and shall display a notice to any user attempting to access such information
stating that such information has been identified by the intermediary under the
categories referred to in this sub-rule:
Provided that the measures taken by the intermediary under this sub-
rule shall be proportionate having regard to the interests of free speech and
expression, privacy of users on the computer resource of such intermediary,
including interests protected through the appropriate use of technical
measures:
Provided further that such intermediary shall implement mechanisms
for appropriate human oversight of measures deployed under this sub-rule,
including a periodic review of any automated tools deployed by such
intermediary:
Provided also that the review of automated tools under this sub-rule
shall evaluate the automated tools having regard to the accuracy and fairness
of such tools, the propensity of bias and discrimination in such tools and the
impact on privacy and security of such tools.”
1.2.2. Rule 4(4) requires significant social media intermediaries (not limited to
messaging) to develop and deploy technology-based measures. These include
automated tools or other mechanisms to proactively identify two categories of
content:
a) information that depicts any act or simulation in any form depicting
rape, child sexual abuse or conduct; and
b) b) content identical to anything that’s been taken down before.
information that depicts any act or simulation in any form depicting
rape, child sexual abuse or conduct.
1.2.3. It is pertinent to note how even the best effort deployment of such filtering
technologies (such as Photo DNA) can lead to function creeps. For instance,
the Delhi Police has sought for it to be used at least once in a criminal
investigation entirely unconnected to rape or child sexual conduct.
Additionally, the SSMI would be obligated to display a notice to the users who
attempt to access such disabled content.
1.2.4. The three provisos to the rule further delineate safeguards that the SSMI
would be expected to adopt, and includes: a) ensuring that the measures
adopted are proportionate to the interests of free speech and privacy of the
users, b) implementation of proper human oversight, including a periodic
 review of such automated tools, and c) ensuring that such review looks into the
accuracy and fairness of such tools, the propensity of bias and discrimination in
these tools, and the impact on their privacy and security. 

2. Reasonable Restrictions to Right to Privacy

2.1. Article 19(2) of the Evador Constitution defines the reasonable restrictions that can be
placed on the right to privacy. It states, “Reasonable restrictions can be imposed on
the right to privacy in the interest of the sovereignty and integrity of Evador, the
security of the State, friendly relations with foreign States, public order, decency or
morality, or in relation to contempt of court, defamation or incitement to an offence”.
2.2. In the case of Govind v State of MP1, it was held that the right to privacy can be
restricted if there is an important countervailing interest which is superior to it. It was
also held in the same case that the right to privacy can be restricted if there is
a compelling state interest to be served.
2.3. In the landmark case of Justice K.S Puttaswamy (Retd.) v. Union of India and Ors2.
that held the Right to Privacy as a fundamental right under the Constitution, it was
held a law which encroaches upon the right to privacy will have to "withstand the
touchstone of permissible restrictions on fundamental rights" Any infringement of
privacy must be by a law which is "fair, just and reasonable". It states that any
infringement of fundamental rights will therefore have to pass a three-fold test based
on Articles 21 and 14 of the Constitution, which are as follows:
a) Legality, which postulates the existence of law;
b) Need, defined in terms of a legitimate state aim; and
c) Proportionality which ensures a rational nexus between the objects and the means
adopted to achieve them.

The case also defined the following reasonable restrictions to privacy:

a) Aside from meeting the 'fair, just and reasonable' requirement under Article 21,
there should be a requirement for 'compelling state interest' for those privacy
claims which deserve the 'strictest scrutiny'.
b) Any infringement of the fundamental right to Privacy must pass the same standard
required for the infringement of personal liberty, ie. In terms of the judgement in
the case of Maneka Gandhi v. Union of India3, such law must be "fair, just and
reasonable, not fanciful, oppressive or arbitrary"
c) Statutory restrictions on privacy would prevail if it is found that the 'social or
public interest and the reasonableness of the restrictions outweighs the particular
aspect of privacy claimed.
d) The right to privacy is subject to reasonable restrictions "in view of the social,
moral and compelling public interest that the state is entitled to impose by law."
e) Right to privacy would be subject to reasonable restrictions on the grounds of
national security, public interest and the grounds enumerated in the provisos to
Article 19 of the Constitution.

1
Govind vs State Of Madhya Pradesh & Anr, 1975 AIR 1378, 1975 SCR (3) 946
2
Justice K.S.Puttaswamy(Retd) vs Union Of India And Ors. II (1997) DMC 503, ILR 1997 KAR 1729, 1997 (3)
KarLJ 227
3
Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621
Jabber
Issue 3 – Whether Rules 4(2) and Rule 4(4) are violative of right to privacy guaranteed
under the Constitution of Evador.
1. Violations by Rule 4(2)
1.1. Impugned Rule 4(2) violates the fundamental right to freedom of speech and
expression, as it chills even lawful speech. Citizens will not speak freely for fear that
their private communications will be traced and used against them, which is
antithetical to the very purpose of end-to-end encryption.
1.2. Impugned Rule 4(2)’s requirement to enable the identification of the first originator
of information in Evador is ultra vires its parent statutory provision, Section 79 of the
Information Technology Act, 2000 (“IT Act”), and the intent of the IT Act itself for
the following reasons:
a) To require intermediaries like Petitioner to enable the identification of the first
originator of information in Evador on their end-to-end encrypted messaging
services, there must be a clear policy declaration in Section 79 that Parliament
intended to impose such a requirement. However, no such declaration exists in
Section 79. Nothing in Section 79 suggests that Parliament intended to impose
such a requirement, and certainly not at the expense of changing the fundamental
nature of intermediaries’ platforms. Respondent may not seek to fulfil an
essential legislative function by declaring such a policy through the Intermediary
Rules.
b) Section 79 only allows the Central Government to prescribe the “due diligence”
that intermediaries must observe to maintain their immunity. Compelling an
intermediary to fundamentally alter its platform to enable the ability to identify
the first originator of information in Evador falls far outside “due diligence”.
c) The preamble of the IT Act provides that the intent of the statute is to achieve
“uniformity of the law” with other countries. Petitioner is not aware of any
country that requires intermediaries to enable the identification of the first
originator of information on end-to-end encrypted messaging services, even if it
means fundamentally changing their platforms to do so.
2. Violations by Rule 4(4)
2.1. Impugned Rule 4(2) infringes upon the fundamental right to privacy without
satisfying the three-part test set forth by the Hon’ble Supreme Court: (i) legality; (ii)
necessity; and (iii) proportionality. (See K.S. Puttaswamy v. Union of India4, (2017)
10 SCC 1 (“Puttaswamy I”).)
a) Legality: To satisfy the legality requirement, there must be a valid law allowing
for the invasion of privacy. However, there is no statute requiring intermediaries
to enable the identification of the first originator of information in Evador on end-
to-end encrypted messaging services upon government or court order. Nor is there
any statute that allows the imposition of such a requirement through subordinate
legislation like the Intermediary Rules.
b) Necessity: To satisfy the necessity requirement, there must be a “guarantee against
arbitrary State action”. (Puttaswamy I.) Notably, the Hon’ble Supreme Court has
emphasized the importance of judicial review before the invasion of privacy
occurs to guarantee against arbitrary State action. (Puttaswamy I; see also K.S.
Puttaswamy v. UOI, (2019) 1 SCC 1 (“Puttaswamy II”).) The Impugned Rule,
however, allows tracing orders to be issued with no judicial review.
4
Justice K.S.Puttaswamy(Retd) vs Union Of India And Ors. II (1997) DMC 503, ILR 1997 KAR 1729, 1997 (3)
KarLJ 227
 c) Proportionality: To satisfy the proportionality requirement, the infringement of
fundamental rights must “be through the least restrictive alternatives5”. However,
enabling the identification of the first originator of information in Evador is not
the least restrictive alternative. Since there is no way to predict which message
will be the subject of a tracing order, intermediaries like Petitioner would have to
build the ability to identify the first originator of every communication sent in
Evador on their platforms for all time, infringing upon the privacy of even lawful
users. Enabling the identification of the first originator of information in Evador
breaks end-to-end encryption and the privacy principles underlying it.

Evador
Issue 4 – Whether Part III of the impugned rules violate Article 14, 19(1)(a), 19(1)(g) and
21 of the Constitution of Evador.
1. Clarification by the Ministry of Electronics and Information Technology
1.1. The Ministry of Electronics and Information Technology of Evador, in a press
release6 clarified that "Such Requirements are only in case when the message is
required for Prevention, Investigation or Punishment of Very Serious Offences
related to the sovereignty and integrity of Evador, the security of the State, friendly
relations with foreign States, or public order, or of incitement to an offence relating
to the above or in relation with rape, sexually explicit material or child sexual abuse
material." The press release further clarified that the opposed Rules passes the
proportionality test of the Constitution and stated, "The cornerstone of this test is
whether a lesser effective alternative remedy exists. As per the Intermediary
Guidelines, the originator of information can only be traced in a scenario where
other remedies have proven to be ineffective, making the same a last resort measure.
Moreover, such information can only be sought as per a process sanctioned by the
law thereby incorporating sufficient legal safeguards." 
2. Reasonable Restrictions to Article 19
2.1. The Supreme Court in State of Madras v G Row7 laid the basic principle that test of
reasonableness whenever prescribed shall be applied to each individual statute
impugned and no abstract or general principle of reasonableness shall be laid down
as applicable in all cases.
2.2. In Romesh Thappar v Union of India8, Justice Patanjali has rightfully held
that Article 19(1)(g) is the very basis and essence of the constitution and our
democracy. Reasonable restrictions, however, he noted, should be such that others’
rights should not be hindered or affected by the acts of one man, in the case of
Menaka Gandhi v. Union of India.
2.3. Article 19(2) of the Evador Constitution contains the grounds on which restrictions
on the freedom of speech and expression can be imposed:
a) Security of state: Under Article 19(2) reasonable restrictions can be imposed on
freedom of speech and expression in the interest of the security of State.
b) Friendly relations with foreign states: A country has to maintain a good and
friendly relationship with other countries. Something which has the potential to
5
Kerala State Beverages (M&M) Corp. Ltd. v. P.P. Suresh, (2019) 9 SCC 710
6
Press Release, Ministry of Electronics & IT, Government of India (May 26, 2021),
https://pib.gov.in/Pressreleaseshare.aspx?PRID=1721915
The Government Respects the Right of Privacy and Has No Intention to Violate it When WhatsApp is Required
to Disclose the Origin of a Particular Message, 26 May 2021
7
State of Madras v G Row, (1952 AIR 196, 1952 SCR 597)
8
Romesh Thappar v Union of India, 1950 AIR 124, 1950 SCR 594
 affect such relationship should be checked by the government. Keeping this thing
in mind, this ground was added by the constitution (First Amendment) Act, 1951.
The object behind the provision is to prohibit unrestrained malicious propaganda
against a foreign friendly state, which may jeopardize the maintenance of good
relations between Evador and that state.
c) Decency or morality: The way to express something or to say something should
be a decent one. It should not affect the morality of society adversely. Sections
292to 294 of the Evador Penal Code provide instances of restrictions on the
freedom of speech and expression in the interest of decency or morality. These
sections prohibit the sale or distribution or exhibition of obscene words, etc. in
public places. No fix standard is laid down till now as to what is moral and
indecent. The standard of morality varies from time to time and from place to
place.
d) Contempt of Court: In a democratic country, the Judiciary plays a very important
role. In such situation, it becomes essential to respect such an institution and its
order. Thus, restriction on the freedom of speech and expression can be imposed
if it exceeds the reasonable and fair limit and amounts to contempt of court.
According to Section 2 ‘Contempt of court’ may be either ‘civil contempt’ or
‘criminal contempt.’ But now, Evador contempt law was amended in 2006 to
make “truth” a defence.
However, even after such amendment, a person can be punished for the statement
unless they were made in public interest. Again, in Indirect Tax Practitioners
Assn. vs R.K. Jain9, it was held that, “Truth based on the facts should be allowed
as a valid defence if courts are asked to decide contempt proceedings relating to
contempt proceeding relating to a speech or an editorial or article”. The
qualification is that such defence should not cover-up to escape from the
consequences of a deliberate effort to scandalize the court.
e)  Defamation: Ones’ freedom, be it of any type, must not affect the reputation or
status of another person. A person is known by his reputation more than his
wealth or anything else. Constitution considers it as ground to put restriction on
freedom of speech. Basically, a statement, which injures a man’s reputation,
amounts to defamation. Defamation consists in exposing a man to hatred,
ridicule, or contempt. The civil law relating to defamation is still uncodified in
Evador and subject to certain exceptions.
f) Incitement to an offense: This ground was also added by the Constitution (First
Amendment) Act,1951. Obviously, freedom of speech and expression cannot
confer a right to incite people to commit offense. The word ‘offense’ is defined as
any act or omission made punishable by law for the time being in force.
g) Sovereignty and integrity of Evador: To maintain the sovereignty and integrity of
a state is the prime duty of government. Taking into it into account, freedom of
speech and expression can be restricted so as not to permit anyone to challenge
sovereignty or to permit anyone to preach something which will result in threat to
integrity of the country.
From above arguments, it is evident that Grounds contained in Article 19(2) show
that they are all concerned with the national interest or in the interest of the society.
The first set of grounds i.e. the sovereignty and integrity of Evador, the security of
the State, friendly relations with foreign States and public order are all grounds
referable to national interest, whereas, the second set of grounds i.e. decency,
morality, contempt of court, defamation and incitement to an offence are all
9
Indirect Tax Practitioners' Association v. R.K. Jain, (2010) 8. SCC 281
 concerned with the interest of the society. Hence, the impugned rules are in line with
the reasonable restrictions defined under Article 19(2).
3. Non-Eligibility of Rights under Article 14 and Article 21
3.1. Jabber, being based out of the United States of America, is a foreign entity that has
no place of business in India and is engaged in the business of propagating
information created by its users. The petitioner is foreign commercial entity and its
plea challenging the Constitutionality of any Evador law is hence not maintainable at
the instance of a foreign commercial entity. The theory of a representative action is
not applicable in the facts of the case, there is no fundamental right to anonymity
under Part III of the Constitution.
3.2. The impugned rule is an embodiment of competing rights of the citizens of Evador.
The rule is designed with an objective of preserving and securing Article 21 rights of
vulnerable citizens within the cyberspace who can be or are victims of cyber-crime or
crime propelled through cyberspace. In that context, the victims’ Article 21 rights
overwhelms and overweighs the right of the petitioner under Article 19(1)(a) and
19(1)(g).
3.3. The government is not seeking the platforms to break the encryption but enable
identify the first originator of the information by existing means or mechanisms or
evolve a mechanism by which it can be identified. The government expects the
platforms to use a mechanism that guards the encryption and protects user’s privacy.
3.4. It is submitted that if the existing technology does not allow identification of first
originator as the petitioner claims, then it is the legal obligation of the intermediaries
to define a solution which can enable identification of first originated without
compromising upon its users’ privacy.
3.5. The IT Rules are framed based on numerous parliamentary and judiciary
recommendations which seek to protect the users against child sexual abuse material,
fake news and other harmful online content which was considered to be beyond the
bounds of free speech. It is respectfully submitted that Part III of the impugned Rules
is constitutionally valid and contains adequate legal safeguards from any potential
misuse by the Executive. It does not affect user privacy or warrants breaking of end-
to-end encryption as alleged in the writ petitions. It is respectfully submitted that
collective security is essential to make people safe and allow them to enjoy privacy
protections. Thereby, the responsibility of providing collective security can be
achieved jointly by the Evador Government, LEA, Judiciary, and Internet platforms
like Jabber. The IT Rules 2021 seek to achieve this larger social good.

Jabber
Issue 4 – Whether Part III of the impugned rules violate Article 14, 19(1)(a), 19(1)(g) and
21 of the Constitution of Evador.
1. Applicability of Article 14
1.1. Applicability of Article 14 of the Constitution of Evador
1.2. Article 14 of the Constitution of Evador provides for equality before the law or equal
protection of the laws within the territory of Evador. Part III of the impugned Rules
are vague, overbroad, arbitrary and violative of Article 14 of the Constitution, and
will have a chilling effect on speech online.
1.3. In the case of Shayara Bano v Union of India & Others10, the Supreme Court laid
down the test to determine if a provision is manifestly arbitrary as:

10
Shayara Bano v Union of India & Others (2017) 9 SCC 1
 “52. Manifest arbitrariness, therefore, must be something done by the legislature
capriciously, irrationally and/or without adequate determining principle. Also, when
something is done which is excessive and disproportionate, such legislation would be
manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of
manifest arbitrariness as pointed out by us above would apply to negate legislation as
well under Article 14.”
1.4. The Supreme Court also recognised that this doctrine may be used to strike down
subordinate legislation11. It is respectfully submitted that Rule 14(1)(b) r/w Rule
14(1)(6) is manifestly arbitrary as it permits the respondent to be a ‘judge in its own
cause’.

2. Applicability of Articles 19(1)(a)

2.1. Article 19(1)(a) of the Constitution of Evador guarantees to all its citizens the right to
freedom of speech and expression.
2.2. It is well-established through a long line of judicial precedent that fundamental rights
cannot be restricted through vaguely phrased laws. Vague laws, by their very nature,
are overbroad and they cover within their ambit both unlawful and legitimate speech.
The existence of a vague and overbroad law has a chilling effect on freedom of
speech because citizens lack clarity about whether the content of their speech is
prohibited, and therefore, they engage in self-censorship to avoid unintentionally
violating the law. For instance, Rule 3(1)(b)(x) requiring intermediaries to warn users
against posting content that is “patently false and untrue...with the intent to... cause
any injury to any person” is void because the use of such vague and undefined terms
makes it impossible to foresee the application of the Intermediaries Rules 2021. The
cumulative impact of Rules 3(1)(b) and 3(1)(c) and the threat of termination of
access or usage rights induces a chilling effect on the users and causes them to alter
the content of their posts online. The ensuing chilling effect, thus, affects the rights of
the users and the general public, to know and to receive information, which is
guaranteed under Article 19(1)(a).

3. Applicability of Article 19(1)(g)

3.1. Article (19)(1)(g) guarantees the right to practise any profession, or to carry on any
occupation, trade, or business.
3.2. The Intermediaries Rules violate the right to carry on any trade guaranteed by Article
19(1)(g) of the Constitution because they impose onerous and irrational obligations
on intermediaries and compel modifications to the underlying technical architecture
of platforms and are thus beyond the scope of Article 19(6), but also manifestly
violative of the right to privacy of users by requiring changes to tried and tested
technical standards to ensure compliance.
3.3. Part III of the impugned Rules interfere with the Petitioners’ freedom of business and
trade by imposing onerous obligations through the three-tier regulatory framework.
The Petitioner will have to devote significant resources in resolving each complaint
received within 15 days and in defending itself before multiple forums.
Consequently, even if it can continue its operations, the volume of content produced
by the Petitioner will be reduced due to diversion of resources which itself amounts
to an infringement of the rights guaranteed under Article 19(1)(g) and Article 19(1)
(a)12.

11
Indian Express Newspapers vs Union of India (1985) 1 SCC 641
12
Sakal Papers v. Union of India, AIR 1962 SC 305
4. Applicability of Article 21
4.1. Article 21 of the Constitution of Evador guarantees the protection of life and personal
liberty. No person shall be deprived of his life or personal liberty except according to
procedure established by law. The Right to Privacy is declared a fundamental right
under Article 21.
4.2. Part III imposes an onerous set of disproportionate administrative regulations upon
Digital News Media, which will make it virtually impossible for small or medium-
sized publishers to function. Finally, Part III requires publishers to comply with a
Code of Ethics that is both vague and overbroad in its formulation and seeks to
proscribe constitutionally protected speech. The net effect of Part III, it is
respectfully submitted, is to cause a chilling effect upon entities such as the
Petitioner, in the exercise of their constitutional rights under Articles 19(1)(a) of the
Constitution, and to disproportionately infringe their rights under Articles 19(1)(g)
and 21 of the Constitution.
Part III of the Rules provide for the blocking and oversight of content by ‘publishers of
news and current affairs’ and ‘publisher of online curated content’. The regulation of
Digital News Media is beyond the scope of Section 69-A or 79 of the IT Act 2000; and is
ultra vires that Act. The creation of grievance redressal mechanism, through a
governmental oversight body (the Inter-Departmental Committee constituted under Rule
14) through guidelines amounts to excessive delegation, given that such grievance
redressal mechanisms are not envisaged by the parent statute; and poses an unreasonable
restriction to free speech guaranteed to the Petitioner under Article 19(1)(a). This is both
arbitrary and violates the rule of law and separation of powers, especially since there is no
provision for the aggrieved publishers to appeal against the decision of the Inter-
Departmental Committee.