BEFORE THE HON’BLE

SUPREME COURT OF INTIA

Union of Intia

(RESPONDENT)

V.
Harry & Hermione

(PETITIONERS)

MEMORIAL FOR THE RESPONDENT

Maharishi Vaidya
Roll.no . 73
T.Y LLB
 TABLE OF CONTENTS

INDEX OF AUTHORITIES. ..................................................................................................... 3

STATEMENT OF JURISDICTION.......................................................................................... 4

STATEMENT OF FACTS . ....................................................................................................... 5

ISSUES RAISED . ...................................................................................................................... 7

ARGUMENTS ........................................................................................................................... 8

PRAYERS.....................................................................................................................................

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 INDEX OF AUTHORITIES

RELEVANT websites :

1. https://www.meity.gov.in/writereaddata/files/Press%20Note%20dated
%206%20June%2022%20and%20Proposed%20draft%20amendment
%20to%20IT%20Rules%202021.pdf

2. https://thepolicyobserver.in/the-information-technology-rules-2021-a-
constitutional-scrutiny/2287/#:~:text=The%20Rules%20incur%20liability
%20upon,The%20Information%20Technology%20Act%2C%202000.

3. https://www.medianama.com/2021/06/223-legality-constitutionality-of-
it-rules/

4. https://blog.ipleaders.in/it-rules-2021-argument-towards-unconstitu-
tionality/

5. https://cis-india.org/internet-governance/blog/on-the-legality-and-
constitutionality-of-the-information-technology-intermediary-guidelines-
and-digital-media-ethics-code-rules-2021

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 STATEMENT OF JURISDICTION

It is humbly submitted that the petitioner has approached this Hon’ble Court invoking
its jurisdiction under Article 32 of the Constitution of Intia.

Article 32 in The Constitution of India, 1950-

32. Remedies for enforcement of rights conferred by this Part-
(1) The right to move the Supreme Court by appropriate proceedings for the enforce-
ment 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 certi-
orari, whichever may be appropriate, for the enforcement of any of the rights conferred
bythis Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and
(2), Parliament may by law empower any other court to exercise within the local limits
of its jurisdiction all or any of the powers exercisable by the Supreme Court under
clause (2).

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

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 STATEMENT OF FACTS

 The Republic of Intia is extremely diverse and has an enormous population size. Inspite
of a stark digital divide persisting in the country, cheap access to internet has enabled
the citizens of Intia [across all ages] to use and spend a major chunk of their daily time
using the internet and social media.

 WhereApp is one of the most prominent online-messaging applications used in Intia. In

fact, Intia has a greater number of WhereApp users than any other country with an active
monthly userbase of 390 million. Due to its immense popularity, WhereApp has time and
again gathered controversy for its role in several incidents of mob lynching, due to spread
of fake news and misinformation.

 One of the most important features of WhereApp is the use of end- to-end encryption
technology, which ensures complete privacy of its users and helps in keeping the ex-
change of messages between two or more people secure and private. Intia’s Ministry
of Technology (“MoT”) in exercise of the powers conferred under the appropriate
sections of its Information Technology Act, enacted the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2022 (“ITRules”) in
May 2022. Soon after the enactment, the IT Rules received a severe backlash due to
its mandate of requiring online-communication applications like WhereApp to help in
the identification of “first-originator” of information after receiving appropriate
orders.
 Ms Hermoine, a social activist immediately approached the Hon’ble Supreme Court of
Intia, citing various provisions of the IT Rules “problematic for people’s privacy”.
WhereApp also released an official statement, clearly highlighting that adherence to
the mandate under IT Rules will lead to a compromise in people’s right to free speech
and privacy. MoT responded and strongly rebutted this statement and said-
“WhereApp’s statement is an attempt to dictate terms to the world’s largest demo-
cracy. Through its actions and deliberate defiance, WhereApp seeks to undermine
Intia’s legal system. Furthermore, WhereApp is refusing to comply with the very
regulations in the intermediary guidelines on the basis of which it claims safe harbour
protection from any criminal liability in Intia.”

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

 The Act which aims to unify and repeal several old statutes, now explicitly broadened the
definition of “telecommunication services”, and included “Over-the-top (OTT)” and
“internet-based communication services” as well.
 Mr. Harry, Founder of Humara Internet Foundation, working towards protecting digital
rights of the citizens, filed a petition before the Hon’ble Supreme Court of Intia citing
Section 24(2) of The Act as unconstitutional in its present form. Mr. Harry during an
address to a media house said- “The new Telecommunications Act is an attack on end-
to-end encryption and the protection of fundamental rights of people and miserably fails
to adhere to the internationally recognized privacy principles endorsed by the Hon’ble
Apex Court of Intia in its landmark judgment.” His stand garnered support from a
wealth of digital rights organizations and people, and soon became a hot topic of discus-
sion for the prime-time debates.

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 ISSUES RAISED

1. WHETHER THE PETITIONS UNDER ARTICLE 32 MAINTAINABLE?

2. WHETHER THE RELEVANT PROVISIONS MADE UNDER IT RULES

AND TELECOMMUNICATIONS ACT , ULTRA VIRES TO THE
CONSTITUTION OF INTIA?

3. WHETHER THE PROVISIONS UNDER THE IT RULES AND

TELECOMMUNICATIONS ACT ARE IN COMM ENSURATE WITH THE
GOVERNMENT OF INTIA’S POLICY ON TELECOMMUNICATIONS AND
INFORMATION TECHNOLOGY?

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 ARGUMENTS

WHETHER THE WRIT PETITION FILED IS MAINTAINABLE OR NOT?

It is humbly submitted before the Hon`ble Court that present writ petition is
not maintainable against Union of Intia
It is further submitted that since there has been no violation of Article 21 of the
Constitution.

The broad principles that underpin these amended rules are the following

• The Internet should be Open, Safe & Trusted and Accountable for ALL Indians
using the Internet – our Digital Nagriks.
• That ALL online intermediaries providing services in India shall never contravene
the Indian constitution, Laws and Rules, and follow them in letter and spirit.
• Unlawful and harmful information violative of their own terms and conditions shall
be quickly removed when reported by users, while also providing the users a
reasonable opportunity to respond in case of significant social media platforms.
• The IT Rules, 2021 provide for a robust grievance redressal mechanism. However,
there have been many instances that grievance officers of intermediaries either do
not address the grievances satisfactorily and/or fairly. In such a scenario, the need
for an appellate forum has been proposed to protect the rights and interests of users,

“WhereApp’s statement is an attempt to dictate terms to the world’s largest

democracy. Through its actions and deliberate defiance, WhereApp seeks to
undermine Intia’s legal
system. Furthermore, WhereApp is refusing to comply with the very regulations
in the intermediary guidelines on the basis of which it claims safe harbour
protection from any criminal liability in Intia.”

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 ARGUMENTS

Whether IT Rules and Telecommunications Act, ultra vires to the Constitution of Intia?

On the occurrence of any public emergency or in the interest of the public

safety, the Central Government or a State Government or any officer specially
authorized in this behalf by the Central or a State Government, may, if satisfied
that it is necessary or expedient to do so, in the interest of the sovereignty, integ-
rity or security of Intia, friendly relations with foreign states, public order, or
preventing incitement to an offence, for reasons to be recorded in writing, by
order:
(a) Direct that any message or class of messages, to or from any person or class
of persons, or relating to any particular subject, brought for transmission by, or
transmitted or received by any telecommunication services or telecommu-
nication network, shall not be transmitted, or shall be intercepted or detained or
disclosed to the officer mentioned in such order;

(b) Direct that communications or class of communications to or from any

person or class of persons, or relating to any particular subject, transmitted or
received by any telecommunication network shall be suspended.

Responding to the statement made by Mr. Harry, the Department of Telecom-

munications (“DoT”) states- “Evidence suggests that the use of Darknet and
end-to-end encrypted messaging platforms have become a haven for terrorists.
Therefore we need to have strong measures in place for effective surveillance
and tracking of such anti-social elements. The government is not asking for
access through an unsecured backdoor but instead is requesting for the digital
.
equivalent of a secured fortified ‘front door’ with locks and bars.”

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 PRAYER

In light of the issues raise, arguments advanced and authorities

cited, the counsel for the Respondents humbly prayers that the:

1. Section 24(2) of the Telecommunications Act,and IT rules 2022 is not vi-

olative of right to life including right to privacy guaranteed under Article 21
and right to speech and expression under Constitution of Intia.

2. Surveillance on messages and other intimate chats is not violative of the

right to speech and expression including right to remain silent under Article
19(1) (a) and right to life including right to privacy under Article 21 of the
Constitution of Intia.

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