AnandSwaroopMemoPDF (P3)

5th Anand Swaroop Gupta Memorial National Moot Court Competition, 2020
Team Code: P3
BEFORE THE HON’BLE SUPREME COURT OF SILVIA

(UNDER ARTICLE 32 OF THE CONSTITUTION OF SILVIA)
Dr. Simpara … Petitioner

-Vs-
Editor-in-Chief, Media House Pvt Ltd & Another … Respondent
CLUBBED WITH
Media Association of Silvia … Petitioner

-Vs-
Union of Silvia … Respondent
CLUBBED WITH
Mr. Caviar … Petitioner

-Vs-
Union of Silvia … Respondent
MEMORANDUM ON BEHALF OF THE PETITIONER
1
TABLE OF CONTENTS
TABLE OF CONTENTS ...................................................................................................... 2

LIST OF ABBREVIATIONS................................................................................................ 3
INDEX OF AUTHORITIES ................................................................................................. 4
STATEMENT OF JURISDICTION ...................................................................................... 6
STATEMENT OF FACTS .................................................................................................... 7
QUESTIONS PRESENTED ................................................................................................. 9
SUMMARY OF ARGUMENTS ......................................................................................... 10
1. Whether Dr. Simpara is entitled to enjoy the right to privacy. ................................... 10
2. Whether the guarantee under article 19(1)(a) of the Constitution extends to artificial
persons. ........................................................................................................................... 10
3. Whether section 69 of the Information Technology Act is constitutional................... 10
ARGUMENTS ADVANCED ............................................................................................. 11
ISSUE 1: WHETHER DR. SIMPARA IS ENTITLED TO ENJOY THE RIGHT TO
PRIVACY? ..................................................................................................................... 11
(1.1) Sting operations by the first respondent intervened the privacy of the petitioner
who is entitled to enjoy the right to privacy under Art.21 of the constitution. ............... 11
(1.2) Trial by media by the second respondent intervened the privacy of the petitioner
who is entitled to enjoy the right to privacy under Art.21 of the constitution. ............... 13
(1.3) Surveillance violated the entitled right to privacy of Dr. Simpara guaranteed by
the Constitution. ........................................................................................................... 14
(1.4) The petitioner is entitled to privacy under the Press Council Norms of Journalistic
Conduct, 2010. ............................................................................................................. 15
ISSUE 2: WHETHER THE GUARANTEE UNDER ARTICLE 19(1)(a) OF THE
CONSTITUTION EXTENDS TO ARTIFICIAL PERSONS. .......................................... 16
ISSUE 3: WHETHER SECTION 69 OF THE INFORMATION TECHNOLOGY ACT IS
CONSTITUTIONAL? ..................................................................................................... 19
(3.1) Section 69 is violative of Articles 19 and 21 of the Constitution. .......................... 20
(3.2) MHA Notification recognizes the unconstitutional elements in Section 69 of the IT
Act, 2000. .................................................................................................................... 22
(3.3) Absence of safeguards unlike the Telegraph Act. ................................................. 23
(3.4) Section 69 is violative of the principles of natural justice: .................................... 23
PRAYER ............................................................................................................................ 24
2
LIST OF ABBREVIATIONS
S. NO. ABBREVIATIONS FULL FORMS

1. AIR ALL INDIA REPORT
2. ANR. ANOTHER
PRESS COUNCIL OF
3. PCI
INDIA
4. TN TAMIL NADU
5. HON’BLE HONOURABLE
6. GOVT. GOVERNMENT
7. CO. COMPANY
8. LTD., LIMITED
INFORMATION
9. IT ACT.
TECHNOLOGY ACT
10. ORS. OTHERS
11. INT’L INTERNATIONAL
12. SC SUPREME COURT
SUPREME COURT
13. SCC
CASES
SUPREME COURT
14. SCR
RECORDS
15. ART. ARTICLE
16. V. VERSUS
17. UOI UNION OF INDIA

PEOPLE’S UNION FOR
18. PUCL
CIVIL LIBERTIES
MINISTRY OF HOME
19. MHA
AFFAIRS
FEDERAL INVESTIGATION BUREAU OF
19. FIBS
SILVIA
UNIVERSAL DECLARATION OF HUMAN
20. UDHR
RIGHTS
3
INDEX OF AUTHORITIES
BOOKS REFERRED:
S. NO. DESCRIPTION
1. Constitutional Law of India by J.N Pandey
2. Indian Constitutional Law by M.P. Jain
WEBSITES REFERRED:
S. NO. WEBSITE
1. https://www.manupatrafast.com/
2. https://indiankanoon.org/
3. https://www.scconline.com/blog/
4. https://cis-india.org/
5. http://www.legalservicesindia.com/
6. https://www.lawctopus.com/
STATUTES REFERRED:
S. NO. STATUTE
1. Telegraph Act, 1885
2. Information Technology Act, 2000
3. The Police Act, 1861
4. Press Council Act, 1978
5. The Citizenship Act, 1955
INTERNATIONAL CONVENTIONS:
S.NO. CONVENTION
1. Universal Declaration of Human Rights (1948)
2. International Covenant on Civil and Political Rights
3. European Convention on Human Rights
LAW COMMISION REPORTS:
S.NO. REPORT
st
1. 101 Law Commission Report
2. 200th Law Commission Report
4
CASES REFERRED:
S. No. Case Name Citation

A.I.R. 1962 S.C.
1. Sakal Papers Ltd v. Union of India
305
(2008) A.I.R. 1962
2. Court on its Own Motion v. State
S.C. 305
(2005) 1 A.L.T.
3. Labour Liberation Front v. State of A.P. 740
1970 S.C. 1821

4. P.C. Sen (In Re)
1975 2 SCC 148
5. Govind v. State of MP
6. Chitranjit Lal Chowduri v. The Union of India And Others 1951 AIR 41
7. Kondoli Tea Co. Ltd v. Unknown Re Ilr [1886]
Jaipur Udhyog Ltd. v. Union of India And Others
8. 1975 SC 1056
Tata Engineering and Locomotive Co. v. State of Bihar
9. 1965 AIR 40
And Others
Star India Private Ltd. v. The Telecom Regulatory 146 (2008) DLT
10.
Authority of India And Others 455
11. PUCL v. UOI and Another AIR 1997 SC 568
AIR 597, 1978 SCR
12. Maneka Gandhi v. Union of India
(2) 621
Mohinder Singh Gill & Anr v. The Chief Election 1978 AIR 851, 1978
13.
Commissioner SCR (3) 272
14. Jupiter General Insurance Company v. Rajagopalan And AIR 1952 P H 9
Another
146 (2008) DLT
15. Star India Private Ltd. v. The Telecom Regulatory 455
Authority of India And Others
Tata Engineering and Locomotive Co. v. State of Bihar
16. AIR 1951 SC 21
And Others
2017 S.C.C. Online
17. K.S. Puttuswamy v. Union of India
996.
1995 AIR 264, 1994
18. R. Rajagopal v. State of Tamil Nadu
SCC (6) 632.
The State Trading Corporation of India Ltd., & Others V.
19. 1963 AIR 1811
The Commercial Tax Officer, Visakhapatnam And Others
1970 AIR 2079
20. V. Rev. Mother Provincial v. State of Kerala And Others
21. Express Newspapers (Private) v. Union of India And Ors. AIR 1958 SC 578
5
STATEMENT OF JURISDICTION
The Petitioners has approached this Hon’ble Apex Court of Silvia, under Article 32 of the
Constitution of Silvia:
“32. 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”
The Petitioner has approached this Hon’ble Court against the violation of fundamental rights
guaranteed under Article 21 of the Constitution.
THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS

AND ARGUMENTS IN THE PRESENT CASE.
6
STATEMENT OF FACTS
1. Dr. Simpara, a renowned neuropsychologist is based in Genia in the democratic republic

of Silvia and has clients of international repute around the globe. On September 29, 2019 a
few State installations in Genia were attacked by a group of terrorists, causing loss of life
and property.
2. The matter was handed over to the Federal Investigation Bureau of Silvia (FIBS), which
was required to submit a time bound report to the central government. During the
investigation, FIBS did not find sufficient evidence to indict anyone. Silvia Express, an
English daily owned by ‘Media House Pvt Ltd.’, in order to unearth the truth started its
own investigation through its network of journalists across nation and the globe.
3. During the investigation it was found that two suspects visited Dr Simpara’s clinic in Lymia
before 29th September 2019.The duo then planned to conduct a sting operation on Dr.
Simpara and during the operation they found no substantial evidence establishing a
connection with the suspects of the attack that had visited him in 2019.
4. After this sting operation the two reporters produced the entire report of the operation to
the Editor-in-chief Mr. Petro, who authorized them to publish the report and he wrote an
editorial entitled “Unholy Connection of Intellectuals with Unholy Elements”.
5. On October 1, 2019, a News Channel called ‘Truth Only’, after the editorial piece was
published in ‘Silvia Express’, conducted a survey, on the recent trends of unholy
connections and gathered, published, and broadcasted views expressed by several
individuals from different segments of the society. These remarks were published and
broadcasted alongside a survey that was open during a live streaming of the news.
6. Subsequently, many leading daily newspapers and news channels carried a news item on
the same subject matter in a much-distorted manner with low quality news disseminating
intentionally false information. Also, as a result of this Dr. Simpara was trolled, abused,
and even threatened on social media.
7. Violent conflict broke out between two social groups. Due to the increasingly violent
situation in the state, the government on 4 October 2019 established a Truth and
Reconciliation Commission, headed by a Supreme Court judge, which was required to
submit a time bound report and recommendations to the government.
8. The Commission after thorough investigation filed a report indicating that if the media had
not been irresponsible and aggressive in its reporting, as in the present case the situation
7
would have been altogether different. The Commission also referred to the 200th Report of
the Law Commission of Silvia on “Trial by Media: Free Speech and Fair Trial under
Criminal Procedure Code” of August 2006 which emphasized that there is little restraint
in the media so far as the administration of justice is concerned and recommended that
journalists need to be trained in certain aspects of law relating to free speech, human rights,
defamation, and contempt.
9. Aggrieved thereby, the Media Association of Silvia filed a writ petition before the Hon’ble
Supreme Court contending that any such action will be ultra-virus the Constitution as it
infringes the right to freedom of speech and expression.
10. During this time, based upon the reports in the news channels, the Police and FIBS started
keeping track of the movements of Dr. Simpara round the clock as well as tapping his
mobile conversations relying on Section 69 of the Information Technology Act.
11. Dr. Simpara was also terminated from his services at Global Medical Institute of Silvia.
Infuriated by the report and the editorial he approached Supreme Court of Silvia seeking
redress for the violation of his privacy against the Editor-in-chief Mr. Petro, the ‘Media
House Pvt. Ltd.’ and news channel ‘Only Truth’ against trial by media as it not only
distorted his reputation but also infringed his right to privacy as contemplated in the
Constitution.
12. In a separate petition by Mr. Caviar, a social activist, a similar question was being dealt by
the hon’ble court. Mr. Caviar’s petition argued that artificial persons are out of the reach of
Article 19 of the Constitution. The petition stressed that even the principle qui facit per
alium, facit per se will take in only natural persons for Article 19.
The petition also challenges the constitutional validity of section 69 of the Information
technology Act broadly on the ground that the said provision does not satisfy the test of
proportionality vis-a-via right to privacy.
8
QUESTIONS PRESENTED
1. Whether Dr. Simpara is entitled to enjoy the right to privacy.

persons.
3. Whether section 69 of the Information Technology Act is constitutional.
9
SUMMARY OF ARGUMENTS
1. Whether Dr. Simpara is entitled to enjoy the right to privacy.

The counsel for the petitioner humbly submits before this Hon’ble Supreme court that, Dr.
Simpara is explicitly entitled to enjoy the right to privacy. The sting operation and media
trial carried out by the respondents were negative and grossly violates the petitioner’s right
to privacy guaranteed under Article 21 of the Constitution. The surveillance operations
conducted by the FIBS and Police Department have additionally infringed the right to
privacy of the petitioner who is entitled to enjoy the same.
persons.
It is humbly submitted by the petitioner that the rights guaranteed under Article 19 of the
Constitution is restricted to citizens only. Artificial persons being impersonal in character,
cannot qualify for citizenship. Hence, the protection of article 19(1)(a) is not available to
them and is confined to natural persons.
3. Whether section 69 of the Information Technology Act is constitutional.

It is humbly submitted by the petitioner that Section 69 of the Information Technology Act
is unconstitutional as it allows disproportionate state action, antithetical to the right to
privacy. Additionally, it falls short of the principles of natural justice.
10
ARGUMENTS ADVANCED
ISSUE 1: WHETHER DR. SIMPARA IS ENTITLED TO ENJOY THE RIGHT TO

PRIVACY?
(1.1) Sting operations by the first respondent intervened the privacy of the petitioner
who is entitled to enjoy the right to privacy under Article 21 of the Constitution.
It is submitted before this Hon’ble Apex Court that the English daily ‘Silvia Express’ owned
by Media House Pvt Ltd., has violated the privacy of the petitioner by carrying out sting
operations.
1. Media has an incredible role to play as the fourth pillar of democracy1. It acts in the public
interest and does so within its right to freedom of speech and expression enshrined under
Article 19(1)(a) in the Constitution2. However, no right can be considered absolute, it must
be practiced with reasonable constraints. The media thus has a greater responsibility in this
regard to act responsibly and to ensure that the privacy and dignity of every individual are
respected. The media does not have the right to tarnish one’s image or reputation on the
pretext of freedom of the press.
2. It is submitted that in the present case, ‘Silvia Express’ owned by Media House Pvt Ltd.,
has conducted a sting operation on the petitioner, thereby violating his privacy. Article 21
of the Constitution provides "No person shall be deprived of his life or personal liberty
except according to procedure established by law” 3.
3. In PUCL v. UOI4 , the court observed that the right to privacy is an essential ingredient of
the right to life. Further, in the case of K.S. Puttuswamy v. Union of India5, 2017 a nine-
judge bench of this Hon’ble Court, pointed out that privacy is an essential element of life
and personal liberty and is a part of the fundamental right guaranteed under Article 21 of
the Constitution in its spirit.
1
Sakal Papers Ltd v. Union of India, A.I.R. 1962 S.C. 305
2
Constitution of Silvia pari materia to the Constitution of India
3
Article 21
4
PUCL v. UOI AIR 1997 SC 568.
5
K.S. Puttuswamy v. Union of India, 2017 S.C.C. OnLine 996.
11
4. The Privacy Bill, 20116 mandates for protection of honour and goodwill of person in the
society. Dr. Simpara, is a renowned neuropsychologist and has clients not only in Silvia
but across the world. His clients include persons of international repute like diplomats,
Ministers, and CEOs of multinational companies.
5. The 17th Law Commission in its 200th report has made recommendations to the Centre to
enact a law to prevent the media from interfering with the privacy rights of individuals.
Hence, it is humbly submitted before this hon’ble court that there is no procedure
established by law which allows media to intervene the petitioner’s privacy.
6. A defendant/convict/accused has the right to be presumed innocent until proven guilty and
this is a central tenet of our criminal justice system. 7 But it has become habitual of the
media to ignore this and term the person on whom string operation is conducted, as
‘convicts’. It is submitted that the FIBS had already submitted a report that it found some
material indicating foreign connections with the terrorist attack that took place on
September 29, 2019. But those were not sufficient enough to indict anyone. Thus, the
petitioner is deemed to be innocent. Despite which the first respondent had carried out the
sting operation and defamed the petitioner as convict in front of the society.
7. Sting operations carried out by the media might not always be legitimate with pure public
interest. The position on sting operations was explained by the Delhi High Court in the case
pertaining to a “Live India” sting operation referred as Uma Khurana case, where the Court
discovered that the accused was innocent, and a piece of the sting operation had been
arranged dramatically. 8
8. There have been quite a few instances where media has encroached upon the right to
privacy of an individual exposing his private life to the scrutiny of general public. The
production of what a Mumbai newspaper asserted were photos of Kareena Kapoor and
Shahid Kapoor sharing intimate moments, the revelation of Shakti Kapoor's casting couch
controversy, and the video of Swami Nithyananda in a compromising position with a Tamil
actress, that ended her career, have all collectively added to the outcry for a more
6
The Privacy Bill, 2011
“Every individual shall have a right to his privacy — confidentiality of communication made to, or, by him —
including his personal correspondence, telephone conversations, telegraph messages, postal, electronic mail and
other modes of communication; confidentiality of his private or his family life; protection of his honour and good
name; protection from search, detention or exposure of lawful communication between and among individuals;
privacy from surveillance; confidentiality of his banking and financial transactions, medical and legal information
and protection of data relating to individual.”
7
Jurist Blackstone laid down the principle of “Presumption of Innocence”
8
Court on its own motion v. State (2008) 146 D.L.T. 429.
12
characterized right to privacy in the nation9. It is to be noted in the present case that the
image of the petitioner has been maligned which eventually led to his job termination.
9. Grave mishandling of innovative progress and the unhealthy rivalry in the field of news
coverage has brought about the pulverization of the standard sense of duty expected in the
noble profession.10 Therefore, the right to express freely, which is the backbone of media,
has been subjected to abuse.
10. The 3rd condition of Triple Test 11 for any law interfering with personal liberty prescribes
that it must withstand test of Article 14. It is submitted that a particular ethnic community
has been targeted by the media and press, thereby violating Article 14 of the Constitution.
11. International Concepts of Privacy:
(a) Article 12 of Universal Declaration of Human Rights (1948) states that “No one
shall be subjected to arbitrary interference with his privacy, family, home or
correspondence nor to attack upon his honour and reputation. Everyone has the right to
protection of the law against such interference or attacks.”
(b) Article 17 of International Covenant on Civil and Political Rights (to which Silvia
is a party) states “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”
(c) Article 8 of European Convention on Human Rights states “Everyone has the right
to respect for his private and family life, his home and his correspondence; there shall be
no interference by a public authority except such as is in accordance with law and is
necessary in a democratic society in the interests of national security, public safety or the
economic well-being of the country, for the protection of health or morals or for the
protection of the rights and freedoms of others.
(1.2) Trial by media by the second respondent intervened the privacy of the petitioner
who is entitled to enjoy the right to privacy under Article 21 of the Constitution.
1. Media trials become more influencing, particularly, when they happen because of a sting
operation. The broadcast of sting operations happens in such a manner that a prejudice is
set in the minds of the public. The PCI norms12 lay down the guidelines for reporting cases
9
Shoma Chatterjee, Sting Operations and the Ethics of Journalism, KERALA MEDIA ACADEMY
10
Labour Liberation Front v. State of A.P., (2005) 1 A.L.T. 740.
11
Maneka Gandhi v. Union of India, 1978 AIR 597 1978 SCR (2) 621 197.
12
Press Council of India Norms of Journalistic Conduct, 2010
13
and avoiding trial by media. The PCI warns journalists not to give excessive publicity to
victims, witnesses, suspects and accused as that amounts to invasion of privacy.
2. As soon as a sting operation takes place, media transforms itself into a public court. Trial
run by media does not only add prejudice against the accused but also does severe damage
to the person’s reputation, even after his acquittal.
3. A classic example of this is the Uma Khurana13 case where the court found that the sting
operation was false. Though the accused was acquitted but the media trial following the
sting, resulted in her termination and she was assaulted by the protesting mob. This case
demonstrates how sting operations can victimize an innocent and cause damage to one’s
reputation as similar to the present case.
4. It is also submitted that the Delhi High Court, has made an observation stating, “Media
trials do tend to influence judges. Subconsciously a pressure is created, and it does have an
effect on the sentencing of the accused/convict”.14 Various courts and law commissions all
around the world have seconded this view. 15 The Court also, in various cases, has observed
that the media publication of a sub-judice trial tends to induce the judges subconsciously16.
5. Further, it is submitted before this Hon’ble Court that the Court in the case of R Rajagopal
v. State TN17 popularly known as ‘Auto Shankar case’ has expressly held the right for
privacy or the right to be let alone is guaranteed by Art 21 of the Constitution. The second
respondent conducted a libellous media trial without considering its authenticity and
fairness, thereby, infringing his rights guaranteed under Article 21.
(1.3) Surveillance operations violated the entitled right to privacy of Dr. Simpara
guaranteed by Article 21 of the Constitution.
Thomas Jefferson once said, “those who desire to give up freedom in order to gain security
will not have, nor do they deserve, either one”- which is quite true even today in the light of
the technological progress leading to inevitable methods of privacy invasion.” The right to
privacy in terms of Article 21 has been discussed in various cases.
13
I.L.R. (2008) 2 Delhi 44
14
Media Trials Tend to Influence Judges: Delhi HC on India's Daughter Documentary, FIRST POST, (March 12,
2015)
15
200th Law Commission Report on Media Trial, 51-57.
16
P.C. Sen (In Re), A.I.R. 1970 S.C. 1821
17
Rajagopal V. State of Tamil Nadu 1995 AIR 264, 1994 SCC (6) 632.
14
1. The Police and FIBS started keeping track of the movements of the petitioner round the
clock as well as tapping his mobile conversations. In the context of surveillance, it has been
held that surveillance, if intrusive and seriously encroaches on the privacy of citizen, can
infringe the freedom of movement, guaranteed by Articles 19(1)(d) and 21.
2.
As per regulation 855 of the Police Act, 1861 surveillance can be empowered only of
persons against whom reasonable material exists to include to opinion that they show a
determination to lead a criminal life 18. Thus, it is submitted that in the present case, there
was no sufficient information to conclude that the petitioner shows a determination to lead
a criminal life and hence the surveillance protocol imposed is to be considered an excess
by the intelligence agency and police. Hence, the petitioner is entitled to Right to Privacy
and the FIBS and Police have no right to conduct surveillance.
(1.4) The petitioner is entitled to privacy under the Press Council of India Norms of
Journalistic Conduct, 2010.
1. The PCI norms19 lay down the guidelines for reporting cases and avoiding trial by media.
The PCI warns journalists not to give excessive publicity to victims, witnesses, suspects
and accused as that amounts to invasion of privacy.
2. It is deferentially submitted that the first respondent has violated the norms of journalistic
conduct established by the Press Council by publishing unauthorized and inconclusive
information. The two reporters of Silvia Express found no substantial evidence against the
petitioner during the sting operation.
3. Under Part A of the Norms of Journalistic Conduct20, the Press Council strictly condemns
the press from publishing baseless, inaccurate material. While revealing the wrongdoing,
the findings must be backed up with facts and evidence which Silvia Express has failed to
do.
4. The norms while cautioning the press against defamatory writings gave out a statement. 21
18
Govind v State of MP 1975 2 SCC 148
19
Press Council of India Norms of Journalistic Conduct, 2010
20
“The Press shall eschew publication of inaccurate, baseless, graceless, misleading or distorted material. All
sides of the core issue or subject should be reported. Unjustified rumours and surmises should not be set forth as
facts. While it is the duty of the press to expose the wrong doings that come to their notice, such reports need to
be backed by irrefutable facts and evidences."
21
“Newspaper should not publish anything which is manifestly defamatory or libellous against any
individual/organisation unless after due care and verification, there is sufficient reason/evidence to believe that it
is true and its publication will be for public good”
15
Unless there is adequate evidence, the press shall not publish anything defamatory and
hence the person can enjoy the right to privacy. Since there is absence of sufficient evidence
against the petitioner, he is unambiguously entitled to right to privacy and the media houses
has unwantedly intruded his privacy. Thereby, Silvia Express has explicitly violated the
norms clearly stated by the Press Council of India.
5. Media trials are frequently violating the press council norms. Recently, in the case of
alleged suicide of actor Sushant Singh Rajput, the PCI found several press institutions
violating the norms of journalistic conduct and gave out a brazen statement. 22
Such media trials violating the norms of journalistic conduct poses a serious threat to the
fundamental rights of citizens. The petitioner has been aggrieved by the illegal actions of
Silvia Express and is clearly entitled to enjoy the right to privacy.
Hence, in the light of aforementioned arguments stated, it is contended that the sting operation,
media trial, surveillance, infraction of PCI Norms carried out by the respondents has flagrantly
violated the privacy of the petitioner who is irrefutably entitled to Right to Privacy guaranteed
under Article 21 of the Constitution.
ISSUE 2: WHETHER THE GUARANTEE UNDER ARTICLE 19(1)(a) OF THE

CONSTITUTION EXTENDS TO ARTIFICIAL PERSONS.
1. Artificial persons (like institutions, organisations and corporations) being impersonal in

character, cannot qualify for "citizenship". The protection of Article 19 is, thus, not
available to them, and is confined to natural persons, on a reading of the judicial
pronouncements.
2. Chronologically, the first important case to be noticed on the point at issue is of 1957. The
Supreme Court had, in that case, hinted at the difficulty that might arise, out of the fact that
corporations are not "citizens" 23. In 1959, the Supreme Court observed that a non-citizen
running a newspaper is not entitled present position under Article 19 of the Constitution24.
3. When constitution confers a particular right to be enjoyed by citizen in contradiction to
those enjoyed by all, the Constitution has used the word “any citizen” or “all citizens”. It
22
“Newspaper should not publish anything which is manifestly defamatory or libellous against any
individual/organisation unless after due care and verification, there is sufficient reason/evidence to believe that it
is true and its publication will be for public good”
23
101st Law Commission Report on freedom and speech and expression under Article 19
24
Express Newspapers (Private) vs The Union of India And Ors. on 19 March, 1958
16
is in this context that the difference between person and citizen becomes vital to determine
which fundamental rights are available to companies in India. 25
4. Part II of the Constitution of India which deals with Citizenship confers the right of
citizenship to person born in India, or whose parents are born in India or who had resided
for a period not less than 5 years before the commencement of the Constitution. 26 It also
talks of rights of citizenship of certain persons who had migrated to India from Pakistan.27
Thus Part II talks only about natural persons who can be citizen of India and does not
contemplate corporate bodies as citizen.
5. The Citizenship Act 1955 basically talks about five types of citizenship i.e., citizenship by
birth28, citizenship by descent 29, citizenship by registration30 citizenship by naturalization31
and citizenship by incorporation of territory32. Interestingly, it is to be noted that this act
has also excluded persons other than natural persons from the scope of citizenship.
6. The freedom of the press which had been proposed as a separate right by Dr. K. M.
Munshi33, has not ultimately found a place in the Constitution as a separate right. Thus, the
provisions in question have come to be confined to citizen only. A corporation cannot claim
citizenship and cannot therefore claim any right under Article 19, as it stands at present.
7. Petronet LNG LTD vs. Indian Petro Group and Another (2006). In this case before the
Delhi High Court, it was established that corporations and companies cannot assert a
fundamental right to privacy. Furthermore, the right to privacy is not available against non-
state individuals or actors.
8. In the Sholapur Spinning and Weaving Company case34, a shareholder of the Sholapur
Spinning and Weaving Company challenged the Sholapur Spinning and Weaving
Company (Emergency Provisions) Act, 1950 on the ground that the Act was not within the
Legislative competence of the Parliament and infringed his fundamental rights guaranteed
by Article 19 (1) (f), Article 31 and Article 14 of the Constitution and was consequently
void. The court while giving the decision reiterated the long-established principle of
25
1963 AIR 1811, 1964 SCR (4) 89
26
Article 5 of the Constitution of Silvia pari materia to the Constitution of India
27
Article 6 of the Constitution of Silvia pari materia to the Constitution of India
28
Section 3 of The Citizenship Act 1955
29
Section 4 of The Citizenship Act, 1955
30
Section 5 of The Citizenship Act,1955
31
32
33
Member of Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar
34
Chitranjit Lal Chowduri v. The Union of India And Others 1951 AIR 41
17
separate legal entity35 and said individual shareholders and company are separate entities.
Therefore, a shareholder cannot claim infringement of fundamental rights on behalf of the
company unless it infringes his own rights too.
9. The Court restated the same opinion that only certain fundamental rights are available to
companies in the Jupiter General Insurance Company v. Rajagopalan36 case. It dismissed
the petition of Jupiter General Insurance Company, Ltd. along with other insurance
companies like the Empire of India Life Assurance Company, Ltd., and the Tropical
Insurance Company, Ltd and said a corporation is not a citizen and therefore it is not
entitled to raise questions that the impugned legislation has taken away or abridged the
rights conferred by Article 19(1) (f) and (g), Constitution of India.
10. The issue was again discussed by Supreme Court of India in The State Trading
Corporation of India Ltd & others v. The commercial tax officer, Visakhapatnam, and
others37. While deciding the writ was filed under Article 32 of the constitution by State
Trading Corporation, the court had to decide whether State Trading corporation which is
incorporated under Companies Act, 1956 is a citizen within the meaning of Article 19 of
the constitution and can ask for the enforcement of fundamental rights granted to the citizen
under the said article.
11. The Supreme Court explained clearly that corporate bodies are juristic persons and so they
cannot be termed as citizens though they may be of Indian nationality due to incorporation
in India. Thus, the court distinguished that corporate body being Indian national is entitled
to civil rights accruing from international law but such corporate body is not a citizen.
Hence it is not entitled to any particular right available only for citizen like that under
Article 19.
12. The court in Tata Engineering and Locomotive Co. v. State of Bihar and Others held that
“Associations cannot lay claim to the fundamental rights guaranteed by that Article solely
on the basis of their being an aggregation of citizens . Once a company or a corporation is
formed, the business which is carried on by the said company or corporation is the business
of the company or corporation and is not the business of the citizens who got the company
or corporation formed or incorporated and the rights of the incorporated body must be
35
Kondoli Tea Co. Ltd, Re ILR [1886] where Calcutta High Court observed, “The company was a separate person,
a separate body altogether from the shareholders and the transfer was as much a conveyance, a transfer of property,
as if the shareholders had been totally different persons.”
36
Jupiter General Insurance Company v. Rajagopalan and Anr AIR 1952 P H 9
37
The State Trading Corporation of India ltd., & others v. The Commercial Tax Officer, Visakhapatnam and
others 1963 AIR 1811
18
judged on that footing and cannot be judged on the assumption that they are the right
attributable to the business of individual citizens.”38.
13. Subsequent cases like Jaipur Udhyog Ltd. v. Union Of India and others39 where writ
petition had been filed under Article 226 of the Constitution of India challenging the
constitutionality of the Cement Control Order 1967 and V. Rev. Mother Provincial v. State
of Kerala and others40 where some provisions of Kerala University Act, 1969 were
challenged to be violative Article 19 (1) (f), Article 31 (2) and Article 30 (1) of the Indian
constitution, courts decided in line of the Tata Engineering and Locomotive case41 that a
company registered under the Companies Act 1956 not being a citizen is not entitled to
claim enforcement of fundamental rights under Article 19.
14. Other recent cases like Star India Private Ltd. v. The Telecom Regulatory Authority of
India and Others42 are also decided on similar rationale that companies are not citizen thus
they cannot claim fundamental right that are specifically provided for citizens. Even the
principle qui facit per alium, facit per se considers only natural persons for Article 19
purposes.
ISSUE 3: WHETHER SECTION 69 OF THE INFORMATION TECHNOLOGY ACT

IS CONSTITUTIONAL?
It is submitted before this Hon’ble Court the statement of Section 69 of the IT Act.43 Section
69 grants the power to the government intercept, monitor, or decrypt any information
38
Tata Engineering and Locomotive Co. v. State Of Bihar and Others 1965 AIR 40
39
Jaipur Udhyog Ltd. v. Union of India and others AIR 1975 SC 1056
40
V. Rev. Mother Provincial v. State of Kerala and others 1970 AIR 2079
41
Supra note 38
42
Star India Private Ltd. v. The Telecom Regulatory Authority of India and Others 146 (2008) DLT 455
“The involved in this case was whether Star India Private Limited is entitled to protection under Article 19 of the
Constitution of India and therefore whether it can file writ petition for quashing the proviso to Section 2 (1) (k)
of the TRAI Act to be violative of Articles 14 and Article 19 (1) (a) and (g) and also of Articles 301 to 307 of the
Constitution. The court dismissed the petition saying Star India Private Limited is a foreign company as well as
companies are not entitled to benefits under Article 19 of Constitution of India.”
43
2 “ Power to issue directions for interception or monitoring or decryption of any information through any
computer resource.–(1) Where the Central Government or a State Government or any of its officers specially
authorized by the Central Government or the State Government, as the case may be, in this behalf may, if satisfied
that it is necessary or expedient so to do, in the interest of the sovereignty or integrity of India, defence of India,
security of the State, friendly relations with foreign States or public order or for preventing incitement to the
commission of any cognizable offence relating to above or for investigation of any offence, it may subject to the
provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the appropriate
Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information
generated, transmitted, received or stored in any computer resource. (2) The procedure and safeguards subject to
which such interception or monitoring or decryption may be carried out, shall be such as may be prescribed. (3)
19
generated, transmitted, received, or stored in any computer resource. It also imposes explicit
punishment to any person who fails to assist the government in accessing the information. It is
a highly potent tool against privacy of individuals. It allows disproportionate state action,
antithetical to the right to privacy. Such a broadly worded provision can have potential
ramifications on free speech. This is because a constant sense of being watched can create a
chilling effect on online communication, crippling dissent. Section 69 of the IT Act is so
broadly worded that it could enable mass surveillance to achieve relatively far less serious aims
such as preventing the incitement of the commission of a cognizable offence and is liable to be
repealed as unconstitutional.
(3.1) Section 69 of the Information Technology Act, 2000 is violative of Articles 19 and 21
of the Constitution.
1. In PUCL v. UOI44, popularly known as the ‘wire-tapping case’, the question before the
court was whether wiretapping was an infringement of a citizen’s right to privacy. The
court held that an infringement on the right to privacy would depend on the facts and
circumstances of a case. It observed that, "telephone conversation is an important facet of
a man's private life. Right to privacy would certainly include telephone-conversation in the
privacy of one's home or office.”
2. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is
permitted under the procedure established by law. It further observed that the right to
privacy also derives from Article 19 for "when a person is talking on telephone, he is
exercising his right to freedom of speech and expression."
Hence, it is submitted that Section 69 of the Constitution grants excessive powers to the
Government to impose restrictions on the fundamental right to privacy of the citizens thereby
violating Articles 19 and 21 of the Constitution.
The subscriber or intermediary or any person in-charge of the computer resource shall, when called upon by any
agency referred to in sub-section (1), extend all facilities and technical assistance to– (a) provide access to or
secure access to the computer resource generating, transmitting, receiving or storing such information; or (b)
intercept, monitor, or decrypt the information, as the case may be; or (c) provide information stored in computer
resource. (4) The subscriber or intermediary or any person who fails to assist the agency referred to in sub-section
(3) shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to
fine.”
44
PUCL v. UOI and Anr AIR 1997 SC 568
20
(3.1.1) Section 69 does not constitute a reasonable restriction to Article 21.
The Apex court in the case of Maneka Gandhi v. UOI, explained what constitutes procedure
established by law. The court held “The procedure prescribed by law has to be fair, just and
reasonable, not fanciful, oppressive or arbitrary.”45
1. Any procedure prescribed by law must be fair, just, and reasonable to serve as a restriction
imposed on the fundamental right to life and personal liberty. In order for a restriction such
as Section 69 allowing for interception of personal data on a computer to be constitutionally
valid, it would not only have to pursue a legitimate state aim but also be proportionate, so
that there is a rational nexus between the means adopted (i.e., authorization of interception)
and the aim.
2. It is submitted that the provisions of Section 69, while excessively delegating powers to the
Executive, failed to instil adequate safeguards to prevent abusive, excessive, and arbitrary
exercise of its powers.
3. In particular, the ‘necessary or expedient’ standard adopted under sub-clause (1) of
Section 69 to authorize electronic surveillance woefully falls short of ‘the test of
proportionality’ – a sine-qua-non to curtail fundamental rights under Articles 19(1)(a) and
21. It also enables the agencies to reach subscribers directly, besides through
intermediaries.
4. The section is highly dominative by making it a punishable crime with seven years of
imprisonment for not assisting the agencies. These provisions make it explicitly clear that
Section 69 of the IT Act does not pass the test of “necessity and proportionality” 46 of
surveillance.
Thus, it is submitted that Section 69 cannot be regarded as a reasonable restriction to the

fundamental right of privacy and is liable to be declared unconstitutional.
45
1978 AIR 597, 1978 SCR (2) 621
46
Justice K.S.Puttaswamy (Retd) vs Union of India on 26 September, 2018
21
(3.2) MHA Notification furthers the unconstitutional elements in Section 69 of the

Information Technology Act, 2000.
1. In exercise of the powers conferred by sub-section (1) of section 69 of the Information
Technology Act, 2000 (21 of 2000) read with rule 4 of the Information Technology (
Procedure and Safeguards for Interception, Monitoring and Decryption of Information)
Rules, 2009, the Ministry of Home Affairs (MHA) issued a notification authorizing 10
Security and Intelligence Agencies for the purposes of interception, monitoring and
decryption of any information generated, transmitted, received or stored in any computer
resource.47
2. The move has drawn criticism, with many calling it dangerous, and saying that this could
be the beginning of further surveillance on citizens by the government. Five writ petitions
were also filed before the Hon’ble Supreme Court challenging the notification and
constitutionality of Section 69 of the IT Act.
3. The government order and the underlying legislation does not satisfy the test of
proportionality put forth by the right to privacy judgement by the Supreme Court. 48 This
order by the MHA is a key tool to recognize the unconstitutional elements in Section 69.
4. It is submitted that the unbridled discretion granted to the named Security and Intelligence
agencies to access information under section 69(1) amounts to a breach of fundamental
right to free speech and expression guaranteed under Article 19(1)(a) and right to privacy
and liberty under Article 21 of the Constitution of India.
5. Such violations need not be manifested in the form of physical coercions or restraints but
the very existence of such unregulated surveillance authority in the form of a central
government order results into the said violations of fundamental rights and freedoms
enshrined under Part III of the Constitution of India. The order has diluted the very letter
and spirit of the original intent of the legislature.
6. The MHA notification has essentially activated an “unconstitutional surveillance
mechanism” that was provided for by provisions of the IT Act.
Hence, in the light of the aforementioned arguments, it is submitted that the provisions of
Section 69 of the IT Act pave way for unconstitutional measures like MHA Notification.
47
Ministry of Home Affairs (Cyber and Information Security Division) order on 20th December, 2018
48
Justice K.S. Puttaswamy (Retd) vs Union of India on 26 September, 2018
22
(3.3) Absence of safeguards in the Information Technology Act, 2000 unlike the
Telegraph Act, 1885.
The Court laid down exhaustive guidelines to regulate the discretion vested in the State under
Section 5 of the Indian Telegraph Act for the purpose of telephone tapping and interception
of other messages so as to safeguard public interest against arbitrary and unlawful exercise of
power by the Government.
1. Section 5(2) of the Act permits the interception of messages in accordance with the
provisions of the Act 49 demands, the authorities have no jurisdiction to exercise the powers
under the said legislation except for the conditions of ‘Public Emergency’ or ‘Public
Interest’.
2. The petitioners humbly submit before the Hon’ble court that the situation concerning the
petitioner is neither a matter of ‘Public Emergency’ nor has been carried out in the interest
of ‘Public Safety’.
3. While Section 5(2) of the Act provides for adequate safeguards, Section 69 of the IT Act is
completely deprived of any safeguard.
(3.4) Section 69 of the Information Technology Act, 2000 is violative of the principles of
natural justice:
1. In the case of Mohinder Singh Gill vs. The Chief Election Commissioner50, the court held
that the concept of fairness should be in every action whether it is judicial, quasi-judicial,
administrative and or quasi-administrative work.
2. It is submitted that Section 69 falls short of meeting with the principles of natural justice
by failing to accommodate ‘pre-decisional hearings’. The Section only makes post-
decisional hearings before a review committee possible as a part of its procedure,
compelling people to give up their personal information without being given an opportunity
to be heard.
Therefore, in the lights of the above arguments, it is most humbly submitted that Section 69 of
IT Act, 2000 is liable to held unconstitutional.
49
“Occurrence of any public emergency or in interest of public safety” are the sine qua non “for the application
of provisions under section 5(2) of the Act unless a public emergency has occurred or the interest of public safety”
50
Mohinder Singh Gill & Anr v. The Chief Election Commissioner 1978 AIR 851, 1978 SCR (3) 272
23
PRAYER
Wherefore, in the light of the facts stated, issues raised, arguments advanced, and
authorities cited, it is most humbly prayed by the Petitioner that this Hon’ble Court may
be pleased:
1. To declare that the petitioner is entitled to Right to privacy and thus, hold the
respondents liable for violating the same.
2. To declare, Article 19(1)(a) of the constitution extends only to natural persons.

3. To declare, Section 69 of Information Technology Act, 2000 as unconstitutional.
And to pass any other order, direction, or relief that this Hon’ble Court may be deem fit in
the interest of equity, justice, and good conscience.
All of which is humbly prayed,

P3
Counsels for the Petitioner
24

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5th Anand Swaroop Gupta Memorial National Moot Court Competition, 2020

BEFORE THE HON’BLE SUPREME COURT OF SILVIA

Dr. Simpara … Petitioner

Media Association of Silvia … Petitioner

Mr. Caviar … Petitioner

MEMORANDUM ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS ...................................................................................................... 2

S. NO. ABBREVIATIONS FULL FORMS

17. UOI UNION OF INDIA

LAW COMMISION REPORTS:

S. No. Case Name Citation

1970 S.C. 1821

“32. Remedies for enforcement of rights conferred by this Part

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS

1. Dr. Simpara, a renowned neuropsychologist is based in Genia in the democratic republic

1. Whether Dr. Simpara is entitled to enjoy the right to privacy.

1. Whether Dr. Simpara is entitled to enjoy the right to privacy.

3. Whether section 69 of the Information Technology Act is constitutional.

ISSUE 1: WHETHER DR. SIMPARA IS ENTITLED TO ENJOY THE RIGHT TO

ISSUE 2: WHETHER THE GUARANTEE UNDER ARTICLE 19(1)(a) OF THE

1. Artificial persons (like institutions, organisations and corporations) being impersonal in

ISSUE 3: WHETHER SECTION 69 OF THE INFORMATION TECHNOLOGY ACT

(3.1.1) Section 69 does not constitute a reasonable restriction to Article 21.

Thus, it is submitted that Section 69 cannot be regarded as a reasonable restriction to the

(3.2) MHA Notification furthers the unconstitutional elements in Section 69 of the

2. To declare, Article 19(1)(a) of the constitution extends only to natural persons.

All of which is humbly prayed,

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