MEMORIAL ON BEHALF OF RESPONDENT

INFORMATION TECHNOLOGY LAW MOOT

BEFORE HON’BLE SUPREME COURT

WRIT PETITION
Under Article 32 of Constitution of India

Mr. X ................................................................................ Petitioner

Versus
Union of India… ............................................................ Respondent

UPON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ............................................................................................. 03

INDEX OF AUTHORITIES................................................................................................04

STATEMENT OF JURISDICTION .....................................................................................05

STATEMENT OF FACTS ................................................................................................... 06

STATEMENTOF ISSUES ................................................................................................... 08

SUMMARY OF ARGUMENT ............................................................................................ 09

ARGUMENTS ADVANCED .............................................................................................. 10

1. WHETHER THE PRESENT PUBLIC INTEREST LITIGATION IS MAINTAINABLE

BEFORE THE HON’BLE SUPREME COURT OR NOT? .......................................... 10

2. WHETHER SOCIAL MEDIA HAS LEAD TO VIOLATION OF ARTILE 19 OF

CONSTITUTION OF INDIA AND AFFECTING THE PRESENT CRIMINAL JUSTICE
SYSTEM? .......................................................................................................................... 11

2.1. Violation of Art. 19 of Constitution of India or not.................................................. 11

2.2. Criminal Justice System is affected or not due to social media ................................ 13

3. WHETHER THE ONLINE PORTAL SHOULD BE BAN OR KEEP AN EYE, AS WE ALL

KNOW THAT THE ONLINE PORTALS HAVE PLAYED A GREATE ROLE DURING
THE PANDEMIC? .......................................................................................................... 15
3.1. Role of Online Portals in an individual life before and during Pandemic ................ 15
3.2. Remedies................................................................................................................... 17

PRAYER… ........................................................................................................................... 18

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LIST OF ABBREVATIONS

1. AIR All India Report

2. Art. Article
3. CJI Chief Justice of India
4. Ed. Edition
5. Hon’ble Honorable
6. ICCPR International Covenant On Civil and
Political Rights
7. No. Number
8. PIL Public Interest Litigation
9. SC Supreme Court
10. SCC Supreme Court Cases
11. U/A Under Article
12. U/S Under Section
13. UDHR Universal Declaration of Human Rights
14. V. Versus
15. W. P. Writ Petition

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INDEX OF AUTHORITIES

❖ Statutes Referred:
• Constitution of India, 1950
• Indian Penal Code, 1860
• Disaster Management Act, 2005
• Information Technology Act, 2000

❖ Books Referred:
• Dr. J.N.Pandey, Constitutional Law of India- 171-174 (10th Edition, Central
Law Agency)
• Dr. J.N.Pandey, Constitutional Law of India- 405-412 (56th Edition, Central
Law Agency,2019)
• Durga Das Basu, Introduction to The Constitution of India- 115-118 (20th
Edition, Lexis Nexis Butterworths Wadhwa, 2011)
• Ratanlal & Dheerajlal: Indian Penal Code, 1860, 36th Ed

❖ Cases Referred:
S. No. Case Name Citation Pg. No.
1. Anuradha Bhasin Vs. Union of India 2019 SCC Online SC 16
1725.
2. K. S. Puttaswamy v. Union of India (2017) 10 SCC 1. 16
3. Lovell v. City of Griffin 303 US 444 15
4. Mohammad Salim Pandith Vs State of J&K & CRMC No.152/2018 14
another
5. Romesh Thappar v. The State of Madras 1950 SCR 594. 15
6. Sharat Babu Digumarti v. Government of AIR 2017 SC150 10
NCT of Delhi
7. Shreya Singal v. UOI AIR 2015, SC 1523 12
8. State of Maharashtra vs M.H. George 1965 SCR (1) 123. 12

STATEMENT OF JURISDICTION

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The Respondents have approached this Hon’ble Court in response to the case listed before this
Hon’ble Court which has been filed under the original writ jurisdiction of this court under Art.
321 of the Constitution of India. The Respondents acknowledge the jurisdiction of this Hon’ble
Court; however, they reserve their right to put to question the maintainability of the instant writ
petition.

STATEMENT OF FACTS

1. In the present times, there is an increase in spread of fake news and there are all sorts of
misleading posts in the media. While the world is attempting to get to grasps with Corona

1 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

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virus (Covid-19), social media is dealing with another pandemic i.e. circulation of fake
news. India has become a home for extensive spread of false news. The damage caused
due to fake news on social media has increased due to the growth of the internet
penetration in India, which has risen from 137 million internet users in 2012 to over 600
million in 2019.
2. The recent news of forest fires in Uttarakhand aren’t remotely as serious as online posts
have been overflowed with pictures demonstrating patches of forest on fire. The old
images were posted claiming it to be recent ones.
3. Another false news was that of the controversial 'Bois Locker Room’ case in which the
screenshots of objectionable comments about girls became viral and received hatred all
over the social media. Later, it was found that a girl had made a fake Snapchat account in
the name of boy to test the qualities and character of her other male friends.
4. In 2019, Dibrusaiwood, a small village in Americana, witnessed one of the most
gruesome cases of lynching. The smartphone footage which went viral, showed two
blood-soaked men pleading for their lives, moments later they were dead. These two
youths were from Gangotri, capital of the north-eastern state of Americana.
5. The fake news of child lifter was made viral by one of the villagers, named Xylo, who
met the two youths on the way, when they stopped to ask regarding the way to a
particular spot in the region. Both the youths were travelling by motorcycle and they had
an argument with Xylo while asking for the address due to some misbehaviour by Xylo.
In order to avenge the youths, Xylo made the false news viral with the picture of the
youth travellers through WhatsApp that the youths were actually child lifters. Within
fraction of seconds, the news spread in the village of Dibrusaiwood though the WhatsApp
like wild fire. And when the youths reach the outskirt of the village, the crazy villagers
gheraoed the youths and beat them with bamboo sticks, machetes, and rocks, thinking
them to be child lifters till they died.
6. Again in March 2020, a district in the Telepede, State of Indivar, named JagJivan, fell
prey to viral forwards on WhatsApp which carried fake photographs of villagers of that
district being depicted as organ harvesters and child kidnappers. As part of these
forwards, many videos were circulated to advise the villagers to hide at sundown. The
terrified villagers had imposed curfews in the villages, which resulted in the streets

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felling silent after dark. As the village started falling into a frenzy, several innocents
suspected of being abductors were mobbed and assaulted.
7. There are provisions for punishment against the spread of fake news in various legislative
pieces – like Indian Penal Code,1860 Even the Disaster Management Act, 2005 has a
provision which says that – “whoever makes or circulates a false alarm or warning as to
disaster or its severity or magnitude, leading to panic, shall on conviction, be punishable
with imprisonment which may extend to one year or with fine”.
8. The application of provisions from Disaster Management Act along and IPC have not
been able to stop the increasing number of fake cases circulated through social media like
WhatsApp, Facebook, etc. There had been reports that around 20 people were victims to
cases of lynching in May and June 2019 alone, due to the viral news spread through
Facebook and WhatsApp. More than 18 people were killed as a result of the violence
fuelled by the rumours spread on WhatsApp in 2020.

STATEMENT OF ISSUES

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ISSUE I WHETHER THE PRESENT PUBLIC INTEREST LITIGATION IS

MAINTAINABLE BEFORE THE HON’BLE SUPREME COURT OR NOT?

ISSUE II WHETHER SOCIAL MEDIA HAS LEAD TO VIOLATION OF ARTILE 19 OF

CONSTITUTION OF INDIA AND AFFECTING THE PRESENT CRIMINAL JUSTICE
SYSTEM?

ISSUE III WHETHER THE ONLINE PORTAL SHOULD BE BAN OR KEEP AN EYE,
AS WE ALL KNOW THAT THE ONLINE PORTALS HAVE PLAYED A GREATE
ROLE DURING THE PANDEMIC?

SUMMARY OF ARGUMENTS

ISSUE I WHETHER THE PRESENT PUBLIC INTEREST LITIGATION IS

MAINTAINABLE BEFORE THE HON’BLE SUPREME COURT OR NOT?

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It is humbly submitted before the hon’ble court that the present PIL is not maintainable in the SC
as there is no violation of Art. 19 of Constitution of India also there is specific Act of the present
case.

ISSUE II WHETHER SOCIAL MEDIA HAS LEAD TO VIOLATION OF ARTILE 19 OF

CONSTITUTION OF INDIA AND AFFECTING THE PRESENT CRIMINAL JUSTICE
SYSTEM?

It is humbly submitted before the hon’ble court that social media has not violated Art. 19 of
constitution as social media has provided platform to the people to express their views freely,
also this right has been recognized in Art. 19 of UDHR and Art. 19(3) of ICCPR. In the present
case the people has expressed their views and haven’t gone beyond the restrictions provided
under Art. 19 (2) of constitution of India. The respondent also pleads that criminal justice system
has not at all affected from social media in fact social media has helped in finding evidence
against criminals. If any crime is committed through social media then it can be easily detected
by tracking the computer also no one can delete the data permanently from social media, all
these can be used as a evidence against a criminal.

ISSUE III WHETHER THE ONLINE PORTAL SHOULD BE BAN OR KEEP AN EYE,
AS WE ALL KNOW THAT THE ONLINE PORTALS HAVE PLAYED A GREATE
ROLE DURING THE PANDEMIC?

The respondent humbly submits before the hon’ble court that online portal should not be banned
as it a part of everyone’s life, also played a great role during pandemic by giving another mode
to education system, provided online portal to businessmen for trading and also to customers for
purchasing online by staying safe at home. Internet has provided every facility at door for the
consumers. Connecting through social media and expressing on social media is not fundamental
right. Therefore, before putting restrictions on individual’s fundamental right the court should
follow the test of principality.

ARGUMENTS ADVANCED

ISSUE I WHETHER THE PRESENT PUBLIC INTEREST LITIGATION IS

MAINTAINABLE BEFORE THE HON’BLE SUPREME COURT OR NOT?

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It is humbly submitted before the hon’ble court that the present PIL is not maintainable under
Article 32 of the Constitution, a PIL is maintainable only if there is a violation of one or more of
the fundamental rights guaranteed under Part III of the Constitution. In the present case
fundamental rights has not been violated. The present case is related to IT Law and in that case
IT Law would be applied.

In Sharat Babu Digumarti v. Government of NCT of Delhi2,The Supreme Court quashed the
proceedings against Sarat Digumarti and ruled that if an offence involves an electronic record,
the IT Act alone would apply since such was the legislative intent. It is a settled principle of
interpretation that special laws would prevail over general laws and latter laws would prevail
over prior legislation. Further, section 81 of the IT Act states that the provisions of the IT Act
shall have effect notwithstanding anything inconsistent therewith contained in any other law for
the time being in force.

In 2019 PIL was filed by a lawyer, Anuja Kapur, which sought guidelines from the Indian
government to frame rules aimed at stopping the circulation and publication of fake news.
Kapur’s petition has been filed in the SC seeking a direction from the central governmentto
frame necessary guidelines for checking the spread of fake news by elaborating on aspects such
as accountability, liability and responsibility. She also sought a direction from the centre to
constitute a committee responsible for curbing fake news. Example of several fake news
campaigns regarding Pulwama attacks, across social media platform, was also shared in the
petition. A Bench headed by CJI Ranjan Gogoi decided to ignore the PIL for now.

ISSUE II WHETHER SOCIAL MEDIA HAS LEAD TO VIOLATION OF ARTILE 19 OF

CONSTITUTION OF INDIA AND AFFECTING THE CRIMINAL JUSTICE SYSTEM?

2.1. Violation of Art. 19 of Constitution of India or not

It is humbly submitted before the hon’ble court that social media has not violated Art. 19 of
Constitution of India because the advent of social media has given numerous people a universal
platform to voice their opinions, comments, appreciation or to share their likes/dislikes openly.
Today, the social networking sites like Facebook, Twitter, Instagram etc. have expanded the
scope of public to express and speak3, in other words, ‘Democracy in India’.

The Internet and Social Media has become a vital communications tool through which
individuals can exercise their right of freedom of expression and exchange information and
ideas. In the past year or so, a growing movement of people around the world has been witnessed

2 AIR 2017 SC150

3 Art.19 (1) (a) of constitution of India
1. All citizens shall have the right
(a) to freedom of speech and expression;

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who are advocating for change, justice, equality, accountability of the powerful and respect for
human rights. In such movements, the Internet and Social Media has often played a key role by
enabling people to connect and exchange information instantly and by creating a sense of
solidarity.

The UN Human Rights Committee has also tried to give practical application to freedom of
opinion and expression in the radically altered media landscape, the centre stage of which is
occupied by the internet and mobile communication. Describing new media as a global network
to exchange ideas and opinions that does not necessarily rely on the traditional mass media, the
Committee stated that the States should take all necessary steps to foster the independence of
these new media and also ensure access to them. Moreover, Art. 19 of the UDHR4 and Art.
19(2) of the ICCPR5 also provides for freedom of speech and expression even in case of internet
and social media.

but in 2015, the landmark judgment of Shreya Singal v. UOI6, the supreme court struck down
the section 66A of the IT Act and uphold the right to free speech in the recent times.

Thus, it is seen that freedom of speech and expression is recognized as a fundamental right in
whatever medium it is exercised under the Constitution of India and other international
documents. And in the light of the growing use of internet and social media as a medium of
exercising this right, access to this medium has also been recognized as a fundamental human
right. Therefore, in the present case also people are exercising their fundamental right if speech
and expression through the medium of internet by sharing the news with each other

In State of Maharashtra v. M.H. George7, the Supreme Court held that criminal intention is a
psychological fact which needs to be proved even with regards to offences under special acts
unless it’s specifically ruled out or ruled out by necessary implication.

2.2. Criminal Justice System is affected or not due to social media.

2.2.1 Social media is playing a an important role criminal investigation

Social media is typically used for recreation and entertainment. The medium has also become
a powerful tool for criminal justice professionals.

4 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions
without interference and to seek, receive and impart information and ideas through any media and regardless of
frontiers.
5 Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and

impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice.

6 AIR 2015, SC 1523

7 1965 SCR (1) 123.

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Facebook, Twitter, and YouTube are fully interactive channels of communication — and
they are providing new ways of finding facts. Criminal justice and social media are joining
forces as investigators can track criminal behavior and bring fugitives to justice. According
to the Brennan Center for Justice, up to 96.4 percent of law enforcement agencies in one
survey reported using social media in some capacity. It’s all a part of law enforcement’s
ever-evolving efforts to protect the public.

Citizens have aided in these efforts by reporting info on criminal confessions and sightings
through these networks. After all, the vast majority of Americans are active on social
networks to some degree, including criminals. Criminals have even exposed their own guilt
on social media. Some have posted boastful videos of criminal mischief on YouTube. Others
have tweeted self-incriminating remarks.
The role of social media in criminal justice is growing. The Urban Institute and the
International Association of Chiefs of Police (IACP) surveyed 539 law enforcement agencies
in a 2016 study. According to their research, more than half of the surveyed agencies
reported that they have specifically contacted social media companies for evidence in
investigations. Specifically, 76 percent of agencies use social media to solicit tips on crimes
and 70 percent use it to gather intelligence for investigations.
Furthermore, the social media “broadcasting” of criminal trials has added an extra level of
transparency to criminal proceedings. Therefore, social media has helped and become a part
of criminal investigation.

ISSUE III WHETHER THE ONLINE PORTAL SHOULD BE BAN OR KEEP AN EYE,
AS WE ALL KNOW THAT THE ONLINE PORTALS HAVE PLAYED A GREATE
ROLE DURING THE PANDEMIC?

The respondent humbly submits before the hon’ble court that the online portal should not be
banned as it plays a great role during this pandemic and before also. The social media such as
twitter, Facebook, whatsapp, instagram, etc. connects everyone with each other, even if a person
is in other country then also he can stay connected through social media.

3.1 Role of Online Portals in an individual life before and during Pandemic.

The wider range of circulation of information or its greater impact cannot restrict the content of
the right nor can it justify its denial. In Romesh Thappar v. The State of Madras8, the majority
of the Court held that the freedom of speech and expression includes freedom of propagation of
ideas and that freedom is ensured by the freedom of circulation. In support of this view, the
Court referred to two decisions of the U.S. Supreme Court viz., [1]Exparte Jackson [96 US
727] and [ii] Lovell v. City of Griffin [303 US 444] and quoted withapproval the following

8 1950 SCR 594.

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passage therefrom: "Liberty of circulation is as essential to that freedom asthe liberty of

publication. Indeed, without circulation the publication would be of little value".

Therefore, respondent humbly submits before the court that social media does not violate Art. 19
of constitution and the situation given in the present case don’t comes under the restrictions
given under Art. 19(2) of Constitution of India.

Test of proportionality was upheld by this Court in the case of K. S. Puttaswamy v. Union of
India9, Hon’ble Chandrachud J. Supreme Court judge held that, notes that any invasion of life or
personal liberty must meet the three requirements of:

• Legality, i.e. there must be a law in existence

• Legitimate aim/State interest, which he illustrates as including goals like national
security, proper deployment of national resources, and protection of revenue, social
welfare; and
• Proportionality of the legitimate aims with the object sought to be achieved. There should
be a rational nexus between the objects and the means adopted to achieve them.

Most recently, in Anuradha Bhasin V. Union of India10, wherein, the validity of internet
shutdown and movement restrictions in J&K was challenged in the Hon'ble Supreme Court. It
was held - To summarize the requirements of the doctrine of proportionality which must be
followed by the authorities before passing any order intending on restricting fundamental rights
of individuals.

Because of lockdown the economic growth of country is also affected but it has not stopped
completely just because of online portals. Online portals such as amazon, flipkart, ebay have
provided a platform for online shopping option to public, due to this the businessman had not
suffered loss and the public also get their necessary things by staying safe at home. Lockdowns
results in, businesses and consumers increasingly “went digital”, providing and purchasing more
goods and services online, raising e-commerce’s share of global retail trade from 14% in 2019 to
about 17% in 2020. Now banking services are also available 24×7 for their customers just
because of internet. Not only this everyone is working digitally during this pandemic even the
court proceedings were conducted in online mode.

3.2 Remedies to general public

9 (2017) 10 SCC 1.
10 2019 SCC Online SC 1725

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• A popup should be there that the particular news is true or fake when it is forwarded. This
will reduce the spreading of fake news, also the public will get aware and will not trust in
that. Also the warning signals should be the on sensitive contents.
• Before believing in any news one should first confirm from others that its content is fake
or not.
• Internet platform is very wide it has no start and end, for this particular programme
should be organized at state or district level for making aware about how to use internet
or social media in a good way also to tell them about advantages and disadvantages of it,
how online crimes are committed and how one can protect from all these crimes.
• Also the education about online portals should be included in education curriculum of
school and colleges.

PRAYER

Wherefore, in the lights of the issues raised, argument advanced and authorities cited it is most
humbly and respectfully prayed before the Hon‟ble Court to adjudge and declare:

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I. That, the Public Interest Litigation lacks maintainability and should be dismissed
thereby.
II. That, the social media doesn’t lead to violation of Art. 19 of Constitution of India and
it is also not affecting the criminal justice system. Therefore, online portals should not
be banned; rules and regulations can be made for keeping eye on the activities done in
online mode.

In the alternative, pass any other relief which the court may deem fit and proper.

All of which is humbly submitted.

Sd/-

(Counsel on behalf of the Respondents)

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