KLA Petitioner

Team Code – H
Kerala Law Academy Law

College
32ND ALL INDIA MOOT COURT COMPETITION 2023
BEFORE THE HON’BLE SUPREME COURT
W.P No. /2023
Postgram Ltd...................................................................................PETITIONER
v.
Union of India................................................................................RESPONDENT
MEMORANDUM ON BEHALF OF THE PETITIONER

Kerala Law Academy Law College 32nd All India Moot Court Competition 2023
TABLE OF CONTENTS
LIST OF ABBREIATIONS............................................................................................................3
INDEX OF AUTHORITIES...........................................................................................................5
STATEMENT OF JURISDICTION...............................................................................................7
STATEMENT OF FACTS..............................................................................................................8
ISSUES RAISED............................................................................................................................9
SUMMARY OF ARGUMENTS..................................................................................................10
ARGUMENTS ADVANCED.......................................................................................................12
PRAYER.......................................................................................................................................36
MEMORANDUM ON BEHALF OF THE Page

LIST OF ABBREIATIONS
A. Article
Sec Section
IT Act Information Technology Act
M Million
Ors Others
Anr Another
& and
SSMI Significant Social Media Intermediaries

MeitY Ministry of Electronics and Information
Technology
MIB Ministry of Information Bureau
Govt Governemnt
i.e. That is
Ltd Limited
No. Number
SCC Supreeme Court Cases
UP Uttar Pradesh
MP Madhya Pradesh
Hon’ble Honorable
FR Fundamental Rights
UOI Union of India

WP Writ Petition
AIR All India Report
SC Supreme Court

INDEX OF AUTHORITIES
Statutes/Rules/Ordinances Referred:
1) Constitution of India, 1950

2) Information Technology Act, 2005
Books Referred
1) V.N. Shukla, Indian Constitution, 13th edition, EBC explorer
2) MP Jain, Indian Constitutional Law, 8th edition, LexisNexis

Butterworths, Wadhwa, Nagpur
3) H.M. Seervai, Constitutional Law of India, 4th edition, Universal Book Traders
4) 9 Durga Das Basu, Commentary on The Constitution of India 9373, Justice S

S Subramani ed., 9th ed
Online Services
1) www.scconline.com
2) www.scobserver.com
3) www.manupatra.com
4) www.livelaw.com
5) https://legislative.gov.in/
6) www.barandbench.com

Cases Referred
Ram Jethmalani v. Union of India (2011) 8 SCC 1
Romesh Thappar v. State of Madras AIR 1950 SC 124
Justice K. S. Puttaswamy v. Union of (2017) 10 SCC 1

India
Dharampal Satyapal v. Commissioner 2021 871 NCLT
of Central Excise & ors.
E P Royappa v. State of Tamil Nadu 1974 AIR 555
State of Punjab v. Sri Amar Singh General (civil) 938 of 1964
Kihoto Hollohan v. Zachillhu and ors 1992 SCR (1)
Anuradha Bhasin v. Union of India AIR 2020 3SCC 6372112
Union of India v. Associatiion for

Democratic Reforms (2002) AIR 2112
Karmanya Singh Sareen and Anr v. (2015) 8 SCC 735

Union of India
Shreya Singhal v. Union of India (2013) 12 SCC 73
Karnataka and Another v. (1983 SCR (2) 665)
Ganesh Kamath & Ors
Academy of Nutrition Improvement (8 SCC 274).
v Union of India

STATEMENT OF JURISDICTION
The Counsel of respondent humbly and respectfully submits before this Hon’ble Supreme Court
of India has the jurisdiction to entertain the instant writ petition filed under A.32 of the
Constitution of India.
A.32 of the Indian Constitution states
“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”

STATEMENT OF FACTS
1) Social media and state of Shantistan

Shanthistan is a state in the Indian union with a population of 54 million people. shantistan hosts
several social media platforms such as postgram with around 11.4M users, Facebook having
11M users, twitter with seventy eight thousand and Instagram having twenty eight thousand
users and postgram clearly being one of the most used and most popular social media in the
country.
2) Shantistan times and university of Shantistan:

Leading newspapers of Shantistan published defamatory comments about postgram calling it
champion of fake news and also published article regarding the research done about postgram
saying that the media acts as an observer to false news and that these inaccurate stories are
disseminate through people than the bots and the technology used by the intermediary. it was
also over served that similar issues were faced by Facebook and other social media platforms.
3) Response of postgram:
Postgram filed a petition before the SC of India under Art 32 of constitution to issue writ of
mandamus or any other writ and an order to declare the Rule 4(2) of IT rules 2021 is violative of
the art 14, 19(1)(g) and 21 of the constitution and it is ultra-virus and illegal to the constitution
due to the end-to-end encryption system. according to the petitioner disclosing information about
the “originator of the information “on their E2EE service violates the fundamental right to
privacy of the citizens of India and is also trying to seek shelter under the sec 79 of IT act 2000.
4) Response of union of India:

Union of India refuted all contentions and stated that the government has no intention to violate
any fundamental right of its citizens but rather such requirements are only in need at the time
when offences are related to the integrity and sovereignty of India and that none of the
fundamental rights provided are absolute in nature and that all the rules and guidelines issued by
the government for the intermediary platforms are fully applicable in present context

ISSUES RAISED
ISSUE 1
WHETHER THE WRIT PETITION FILED IS MAINTAINABLE UNDER

A.32 OF THE INDIAN CONSTITUTION
ISSUE 2
WHETHER THE IT RULES, 2021 VIOLATE THE

FUNDAMENTAL RIGHTS OF THE CITIZENS
ISSUE 3
WHETHER THE IT RULES ARE ULTRA VIRUS THE IT ACT
i. SHOULD CRIMINAL LIABILITY BE IMPOSED FOR

NON COMPLIANCE WITH THE RULES

Kerala Law Academy Law College 32nd All India Moot Court Competition
SUMMARY OF ARGUMENTS
ISSUE 1
WHETHER THE WRIT PETITION FILED IS MAINTAINABLE UNDER

A.32 OF THE INDIAN CONSTITUTION
It is humbly submitted before the Hon’ble Court that the writ petition filed by the Petitioner
should be held maintainable under A.32 of the Indian Constitution. This is because the Central
Government has violated the fundamental rights of not only Postgram but also of the citizens. By
demanding the traceability, the Government is violating various fundamental rights guaranteed
to the citizens by the Constitution of India.
ISSUE 2
WHETHER THE IT RULES, 2021 VIOLATE THE

FUNDAMENTAL RIGHTS OF THE CITIZENS
It is humbly submitted before this Hon'ble Supreme Court that the fundamental rights are the
basic human rights enshrined in the Constitution of India which are guaranteed to all citizens
under Article 14, 19, and 21which are Right to Equality, Right to Free speech and expression
and Right Life and Liberty respectively. Rule 4(2) of the IT Rules, 2021 threatens the Right to
Privacy as recognized by this Hon’ble Supreme Court in the case of Retd. Justice Puttuswamy
v. Union of India.

ISSUE 3
WHETHER THE IT RULES ARE ULTRA VIRUS THE IT ACT

It is humbly submitted before the Hon'ble Supreme Court that the Rule 4(2) of the IT Rules is
Ultra Vires to the IT Act and violates the Fundamental rights guaranteed to the citizens and
exceeded its limit and bounds beyond and is not within the objective of the Constitution. In
addition to this criminal liability should not be imposed for non compliance with Rule 4 (2) of
the IT Rules, 2021.

ARGUMENTS ADVANCED
ISSUE 1
WHETHER THE WRIT PETITION FILED UNDER A.32 OF THE INDIAN

CONSTITUTION IS MAINTAINABLE.
It is humbly submitted before the Hon’ble Supreme Court that this writ petition filed should be
maintainable because of the following contentions- A) The Centre has violated Postgram's basic
fundamental rights. B) The Union has demanded and forced Postgram to reveal its users’
identities. C) Demanded Postgram to follow Rule 4(2) of the IT Rules, 2021 which is ultra-vires
to the IT Act.
At this juncture, it becomes crucial to take a look at A.32 of the Indian Constitution-
“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”

1.1. UNION’S DEMAMD TO REVEAL POSTGRAM USERS’ IDENTITY
It is humbly submitted before the Hon’ble Court that the Central Government has gone beyond
its jurisdiction and abused its powers by compelling, forcing and demanding Postgram to reveal
its customers’ identities. Postgram is a platform where the privacy of its users is prioritized and
which, under no circumstance, can be compromised. Thus, making it one of the major reasons
for Postgram’s popularity amongst the citizens.
It is further submitted that post knowing the above fact, the fact that Postgram’s basic structure is
based on the anonymity and privacy of its users, has demanded Postgram to reveal the
originator’s identity. This shows the ill intention of the Government to not only defame Postgram
but also violate and infringe the basic fundamental rights guaranteed to the citizens of this
sovereign country.
It is also noteworthy that the Union has claimed to demand the identity for the sovereignty and
integrity of the country, however, there is no proof that the news spread causes any harm to the
sovereignty and integrity of the country. The method used by the researchers to publish that fake
news is promoted faster through Postgram is not revealed and the method used for arriving at the
said conclusion itself is anonymous. By demanding the traceability the Centre is breaching the
‘end to end encryption’ policy which in turn, breaches privacy of millions of citizens using
Postgram because of the surety and guaranteed protection of identity delivered by Postgram.
It is submitted that in the case of Ram Jethmalani v Union of India1, it was held that
“Right to privacy is an integral part of right to life and that it is a cherished constitutional value,
and it is important that human beings be allowed domains of freedom that are free of public
scrutiny unless they act in an unlawful manner. (…) The solution for the problem of abrogation
of one zone of constitutional values cannot be the creation of another zone of abrogation of
constitutional values. The rights of citizens, to effectively seek the protection of fundamental
rights, under Clause (1) of Article 32 have to be balanced against the rights of citizens and
persons under Article 21.”
1
Ram Jethmalani v Union of India (2011) 8 SCC 1

In the current scenario, we see a very familiar pattern and the fundamental rights cannot
infringed or violated for the purpose of suspicion of threat to integrity of the country without any
substantial proof. It is also to be noted that it is the duty of the Government to ensure the rights
of its citizens are upheld and protected at all points of time except if it poses harm, danger and
terror to the integrity and sovereignty of the country. The Government, here, demanding the
identity of the messengers clearly shows their malicious intention. The Government demanding
to break Postgram’s basic structure demonstrates the ill intention of defaming us and is rather
scared their true identity will be exposed.
1.1. AUDI ALTERAM PARTEM
It is humbly submitted before this Hon’ble Court that the Union by demanding the traceability
has certainly infringed and violated the fundamental rights guaranteed by the Constitution. This
also gives the reason why this writ petition should be maintainable. Postgram is a platform where
anonymity is promised and guaranteed to its users and which is the basic structure of working of
Postgram. This is the reason why the citizens feel safe to use Postgram and become its active
users. The Government demanding traceability breaks the whole basic structure on which
Postgram works.
It is submitted that the Centre has violated A. 19(1)(a), A. 19(1)(g) and A.21 of the Constitution.
The Centre by demanding the identity of the messengers violates right to freedom of speech and
expression. By demanding the identity, this breaks the basic structure of the working of
Postgram which violates the right to profession. This writ petition filed is maintainable as the
Government has not only stepped out of their way but also ruthlessly and deliberately violated
the basic fundamental rights guaranteed to the citizens by the Constitution.
It is humbly submitted before the Hon’ble Court that in the case of Ramesh Thappar v. State of
Madras2, the Supreme Court held that the petitioner could directly move to the supreme court to
protect and enforce his fundamental right without approaching the High Court first. In the
current scenario, since the Petitioner’s fundamental rights are violated, Postgram has the right to
2
Ramesh Thappar v. State of Madras, (AIR 1950 SC 124)

approach the Hon’ble Supreme Court without exhausting the alternate remedy of approaching
the High Court prior.
It is submitted that in the case of K.S. Puttaswami v Union of India3, it was held that Right to
Privacy is an integral part of right to life and personal liberty. The Court held that the right to
privacy was integral to freedoms guaranteed across fundamental rights, and was an intrinsic
aspect of dignity, autonomy and liberty. The Bench unanimously held that
“the right to privacy is protected as an intrinsic part of the right to life and personal liberty
under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.
It is submitted that with regards to the current scenario the writ petition filed by the petitioner,
under A.32 of the Constitution to issue writs, in order for enforcement of fundamental rights of
Postgram, which has been violated by the order passed by the Government. Therefore, due to
violation of a fundamental right guaranteed by the Constitution the writ petition filed by
Postgram should be entertained and held maintainable.
3
K.S. Puttaswami v Union of India (2017) 10 SCC 1

ISSUE 2
WHETHER THE IT RULES VIOLATE THE FUNDAMENTAL

RIGHTS OF THE CITIZEN
It is humbly submitted constitution of India is considered to be the supreme law of the land and
all actions of individuals and organizations are required to be in tune with the same. Being a law
that supersedes all other laws and takes the apex stance, it is reasonably assumed that all
legislation passed by the legislature (and in this case the executive) must be in line with the
provisions of the Constitution. However, there appears to be a significant departure from the
same regarding many points of the IT Rules, 2021. As a rule, any law that is in contravention of
the Constitutional provisions is liable to be struck down by the judiciary.
2.1 ARTICLE 14:
Article 14 of the Indian Constitution upholds the equality of law and equal protection of the law
to all individuals. Discrimination between individuals in the eyes of law is held unconstitutional
and differential treatment of the same is prohibited.
Article 14 is considered to be the protector against any form of arbitrariness and unfettered
discretion. This violates the principle of natural justice as well which goes hand in hand with the
fact that in the instance where any proceedings are found to violate being fair, just, and
reasonable, such proceedings offend Article 14 and Article 21, as held by the Court in the case
of Dharampal Satyapal v. Commissioner of Central Excise & Ors4.
4
Dharampal Satyapal v. Commissioner of Central Excise & Ors 2021 871 NCLT

in other words, Article 14 targets arbitrariness as it is believed that any action in order to be
defined as arbitrary must involve the negation of equality, and therefore equality is antithetic to
arbitrariness, as stated by the Court in the case of EP Royappa v. State of Tamil Nadu5 (1974).
As held by the Court in the case of State of Punjab v. Shri Amar Singh, General (1998),
6
reasonability and fairness, being a basic requirement of Article 14, is the antithesis of the
arbitrariness exercised by the Government in the passage and criteria of these rules. These rules
thus fail the test of reasonability.
There have been no clear limits that have been stated by these rules as to just how far the rules
empower intermediaries to ‘regulate’ digital media. This particular ambiguity of the rules is of
paramount concern as users of these intermediary platforms are left feeling insecure and unsafe
about personal and private data which is put out on these intermediary platforms.
Although the rules specify that they are limited to only identifying the first originator of the
information and do not disclose all the contents of the message, the government can choose to
couple this with the IT Decryption rules and, in this event, there will be no question of retaining
our right to privacy.
The rules under Section 3(1)(h) also state that the intermediaries are empowered to preserve the
information of their users for a period of 180 days on receiving such an order from the
authorized agency ‘for investigative purposes’, even after the said user has deleted his/her
account. This is particularly dangerous to the user’s privacy as in the absence of any data
protection law in our country, it is unclear to the user how much data will be under surveillance
and how safe this entire process is.
2.2 ARTICLE 19
5
EP Royappa v. State of Tamil Nadu 1974 AIR 555
6
State of Punjab v. Shri Amar Singh, General (1998), (civil) 938 of 1964

Article 19 upholds the freedoms of the various rights contained under it from sub-
clauses (1)(a) to (1)(g).
Violation of article 19 (1)(a):
Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression of all the
citizens of the country.
Freedom of the press implicitly comes under Article 19(1)(a). having a censorship on this will
have a wrong effect on democracy.
Violation of right to freedom and opinion and the concept of democracy:
The press release of the MeiTY regarding these rules prohibits intermediaries from hosting
‘unlawful information’. The specifics of this are not mentioned and this could be used to the
Government’s convenience to term any form of opposition and criticism towards it as ‘anti-
national’ in nature, which could be transmitted to the masses through the intermediary platforms.
This will inevitably lead to autocracy and is completely against the principle of democracy
guaranteed by the preamble of our Constitution which upholds the same.
The need for the vibrancy of democracy to be retained was further emphasized in the case
of Kihoto Hollohan v. Zachillhu And Ors. (1992)7 as democracy, which is put into effect by
Article 19(1)(a) forms an integral part of the basic structure doctrine.
2.3 VIOLATION OF RIGHT TO INFORMATION
Coupled with the violation of the right of freedom of the press, the grievance redressal
mechanism of these rules is flawed. If they really were to cater solely to every single grievance
and complaint as the rules state, the criteria according to which the intermediaries are required to
7
Kihoto Hollohan v. Zachillhu And Ors. 1992 SCR (1)

take down content being complained about are very broad and vague in nature. Under the
ambiguity of Section 3(b) of the rules, the press would suffer from a lack of credibility and this
would hinder its circulation, ultimately building up to a point where the public is deprived of any
legitimate news and issues which hinders their right to information.
In the judgments of UOI v. Association for Democratic Reforms (2002)8 and Anuradha Bhasin v.
Union of India 9(2020), the Supreme Court formally recognized the people’s right to information
and the right to be informed as a fundamental right. The users of social media intermediaries are
denied their right to information in the event of an ‘emergency’ for the same reasons as stated
above.
2.4 ARTICLE 21:
Article 21 guarantees an individual with the fundamental right of protection of his life and
personal liberty. Article 14 needs to be harmoniously read with Articles 19 and 21, as held by the
Court in Maneka Gandhi’s case10. As the rules are clearly in violation of Articles 14 and 19 as
proved above, this negates the constitutionality of the rules under Article 21 as well.
Right to Privacy:
The Court declared that the right to privacy fell under the ambit of Article 21 in the case
of Justice K.S Puttaswamy (Retd.) and Anr. v. Union of India (2018).
From Section 3(j) of the rules, we see that no actual autonomy given is to the intermediary, as on
receiving the Government’s orders in writing, they are required to hand over personal
information of the users and their data violating their right to privacy within 72 hours.
8
UOI v. Association for Democratic Reforms (2002) AIR 2112
9
Anuradha Bhasin v. Union of India AIR 2020 3SCC 6372112
10
Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR (2) 621

Under Section 7, if for any reason the intermediary does not follow the rules, Section 79 (1) of
the IT Act 2000 guaranteeing the immunity of the intermediary (also known as the ‘safe harbour
provisions’) stands cancelled and they can face action under the Indian Penal Code, 1860. The
intermediary is thus left at the mercy of the government, to act as its puppet, and in order to
continue to receive this immunity, it has to obey the Government’s orders to hand out our private
information to them leaving our data and privacy at risk.
Encryption under right to privacy:
Section 4(2) of the Rules violate an individual’s right to privacy as intermediaries providing
primarily messaging services are now required to ‘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 the interception, monitoring,
and decryption of information) Rules, 2009, which shall be supported with a copy of such
information in electronic form’. This violates the end-to-end encryption services guaranteed by
such intermediaries. The grounds on which this identification and traceability are to be given by
enabled intermediaries are vague such as what exactly constitutes ‘public order’ is not defined.
This promotes the arbitrary action of the government.
The means as to how the intermediaries will be able to track the first sender are ambiguous. The
case of Karmanya Singh Sareen and Anr. v. Union of India 11 (2016) is still pending before the
Supreme Court which when decided will clear up the privacy policy issues of such
intermediaries.
11
Karmanya Singh Sareen and Anr. v. Union of India (2015) 8 SCC 735

ISSUE 3
WHETHER THE IT RULES ARE ULTRA VIRES THE IT ACT

It is humbly submitted before the Hon’ble Supreme Court that, rule 4(2) of the Information
Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is ultra vires
the IT Act since it does not concur with the purpose and the objectives of the IT act in addition to
violating the Fundamental Rights enshrined in the Constitution.
3.1. REGULATORY APPARATUS FOR INTERMEDIARIES

Section 79 of the Information Technology (IT) Act, 2000 forms the basis of online intermediary
liability in India, granting immunity to intermediaries for third-party content provided they do
not initiate the transmission, modify its contents, select its recipients, and observe due diligence
in carrying out its functions. Standards of due diligence were previously laid out in the
Information Technology (Intermediaries Guidelines) Rules, 2011.
Section 69A of the IT Act allows the government to order intermediaries to take down or block
access to certain information.
The rules, notified in February 2021, have been issued by the rule-making power granted to the
government under sections 69A and 79, referred to in Section 87(2)(zg) and Section 79(2) of the
IT Act, and supersede the 2011 rules.
3.2. VIRES OF THE RULES

The 2021 Rules fall foul in two ways; they are
(i) unconstitutional and ultra vires the IT Act; and

(ii) (ii) prescribe a Code of Ethics for regulating digital media, despite the fact that the
parent Act does not recognise digital media as a separate category of entities and does
not seek to subject them or their content to any set of special regulations.
A. Ultra Vires the IT Act
(i) Section 79(1) of the IT Act states that the intermediary will not be held liable for any third-
party information if the intermediary complies with the conditions laid out in Section 79(2). One
of these conditions is that the intermediary observe “due diligence while discharging his duties
under this Act and also observe such other guidelines as the Central Government may prescribe
in this behalf.” Further, Section 87(2)(zg) empowers the central government to prescribe
“guidelines to be observed by the intermediaries under sub-section (2) of section 79.”
It has been held by the Supreme Court in State of Karnataka and Another v. Ganesh Kamath &
Ors12 that:
“It is a well settled principle of interpretation of statutes that conferment of rule making power
by an Act does not enable the rule making authority to make a rule which travels beyond the
scope of the enabling Act or which is inconsistent therewith or repugnant thereto.”
A combined reading of Section 79(2) read with Section 89(2)(zg) makes it clear that the power
of the Central Government is limited to prescribing guidelines related to the due diligence to be
observed by the intermediaries while discharging its duties under the IT Act. However, the 2021
guidelines have imposed additional requirements and widened the ambit of requirements to be
fulfilled by the intermediary.
For instance, the rules include an obligation on a significant social media intermediary, primarily
messaging services, to enable the identification of the first originator of the information on their
service when required either by a government (under Section 69 of the IT Act) or court order.
This obligation can only be fulfilled if messaging services technically modify their platform to
remove end-to-end encryption, or add additional metadata to each message in a way that
undermines security and privacy guarantees that end-to-end encryption offers. The executive
through subordinate legislation can only make rules that are consistent with the parent act and
with the legislative policy enunciated by the central government. There is nothing in Section 79
12
State of Karnataka and Another v. Ganesh Kamath & Ors12 (1983 SCR (2) 665)

of the IT Act to suggest that the legislature intended to empower the Government to to mandate
changes to the technical architecture of services, or undermine user privacy.
(iii) Similarly, the IT Act does not prescribe for any classification of intermediaries. Section
2(1)(w) of the Act defines intermediaries as
“with respect to any particular electronic records, means any person who on behalf of
another person receives, stores or transmits that record or provides any service with
respect to that record and includes telecom service providers, network service providers,
internet service providers, web-hosting service providers, search engines, online
payment sites, online-auction sites, online-market places and cyber cafes”.
Intermediaries are treated and regarded as a single monolithic entity with the same
responsibilities and obligations.
The 2021 Intermediary Guidelines have now established and defined new categories of
intermediaries; namely (i) Social Media Intermediary (Rule 2(w)); and (ii) Significant Social
Media Intermediary (Rule 2(v)). This classification comes with an additional set of obligations
for significant social media intermediaries as well as expansion of the obligations for social
media intermediaries. The additional set of obligations placed on social media intermediaries
finds no basis in the IT Act, which does not specify or demarcate between different categories of
intermediaries.
The 2021 Rules have been prescribed under Section 87(1) and Section 87(2)(z) and (zg) of the
IT Act. These provisions do not empower the Central Government to make any amendment to
Section 2(w) or create any classification of intermediaries. As discussed previously, the rules
cannot go beyond the parent act or prescribe policies in the absence of any law/regulation
authorizing them to do so.
Therefore, while we believe and agree that classification of intermediaries (instead of treating the
disparate group of intermediaries as one category) is a more nuanced approach for their
regulation, we recommend that such a classification should happen through an amendment to the
parent act and the amendment should also prescribe the additional responsibilities and
obligations of significant social media intermediaries. Documents obtained under the Right to

Information Act reveal that advisors in the Ministry of Law and Justice were also of the opinion
that the changes brought through the rule went beyond the scope of the current IT Act.
Note that many of the new obligations in the 2021 rules are outside the scope of delegated
legislation. For brevity, this point is not repeated in our analysis of specific rules (in the next
section).
B. The IT Act’s lack of power to regulate ‘digital media’
Part III of the 2021 Rules regulate ‘digital media’ which is defined as digitized content
transmitted, processed, edited etc. by intermediaries and ‘publishers’. (Rule 2(i)) The rules
further classify ‘publishers’ in two parts:
1. ‘publisher of news and current affairs content’: which includes online papers, as well as
intermediaries like news portals and aggregators, but not printed newspapers (Rule 2(t),
read with Rule 2(n)) or individuals who are not transmitting content in “the course of
systematic business, professional or commercial activity”.
2. ‘publisher of online curated content’: which includes OCCPs, but does not include any
individual or user who is not transmitting such content “in the course of systematic
business, professional or commercial activity”.
Section 69A and 79 (under which these rules are issued) of the IT Act are both very clear that
they apply to intermediaries. Section 79 primarily discusses intermediary liability, and the
conditions an intermediary has to meet to qualify for immunity from liability for third-party
content. Section 69A is also clear that directions for content takedown may only be issued to
intermediaries or government agencies. The provision further notes that the “intermediary” that
does not comply with such orders will be criminally liable.
The rules define publishers and allow the government to send takedown notices to them, whereas
these parent provisions in the Act do not envision such powers. As discussed previously, the
subordinate legislation cannot through rules go beyond the remit of the parent act. In regulating
publishers under section 69A and 79 therefore, the rules exceed the ambit of the rule-making
powers contained in the said sections read with section 87(2). Any regulation of the digital media

is only possible through an amendment to the IT Act, so as to empower the government to

regulate the content of publishers.
However, the counsel would argue that the rules may be saved by the general rule-making power
contained in a statute, provided the rules do not travel beyond the scope of the Act, as has been
held by the SC in the case of Academy of Nutrition Improvement v Union of India 13. But even a
general power to make rules or regulations for carrying out or giving effect to the Act, is strictly
ancillary in nature and cannot enable the authority on whom the power is conferred to extend the
scope of general operation of the Act. As it was relied upon in the case:
“Such a power will not support attempts to widen the purposes of the Act, to add new and
different means to carrying them out, to depart from or vary its terms”.
In this case, the general rule making power under the IT Act has been conferred under section
87(1). The scope and ambit of the Act may be inferred from other provisions in the Act, and the
Statement of Objects and Reasons of the Act (see: the Act, IT Amendment Act, 2008, and 8 SCC
747). The relevant portion of the Statement of Objects and Reasons of the IT Act and the
Amendment that impose publisher liability are codified under sections 66, 67, 67A, and 67B ,
impose only criminal liability based on certain grounds on publishers. Moreover, these sections
only lay down the offences, without laying down any power to make rules and without
empowering the government to order them to take particular content down. Thus, these
provisions as well as the Statement of Objects and Reasons do not foresee regulation of such
‘publishers’ under the Act or rules thereunder. As a consequence, part III of the rules fails in
terms of validity and legality to that effect.
Moreover, through an amendment of 2020 to the AoB Rules, ‘digital media’ now comes under
the purview and remit of the I&B Ministry. Therefore, any legislative proposal to regulate such
media should come from the I&B Ministry. The intent behind the amendment to the Business
Rules was that the content by publishers (and consequently the publishers of such content) shall
be regulated by the I&B Ministry, while ‘platforms’ (and consequently the content on platforms)
shall be regulated by the MeitY. Thus, the current framework for the rules results in the
13
Academy of Nutrition Improvement v Union of India (8 SCC 274).

bypassing legislative and parliamentary procedure of enacting specific legislation that regulates
digital news content, leading to abdication of legislative duties.
Since the entirety of Part III of the Rules suffers from illegality, in this note, we do not go into
the specific merits of the framework that seeks to regulate digital news publishers and online
curated-content platforms. Any such framework must find its foundation in a law duly
deliberated and passed by the Parliament.
3.3. TRACEABILITY PROVISION UNDERMINES PRIVACY
These rules seriously impinge on the right to privacy as enshrined in the Justice K.S.
Puttaswamy vs. Union of India (2017) by not adhering to the four pronged tests espoused
therein-
a. The action must be sanctioned by law;
b. The proposed action must be necessary in a democratic society for a legitimate state
aim;
c. The extent of such interference must be proportionate to the need for such
interference. There should be a rational nexus between the objects and the means
adopted to achieve them; and
d. There must be procedural guarantees against abuse of such interference.
In the present case, while the rules have sanction of law, they bypassed legislative scrutiny
by virtue of just being tabled in the Parliament and not being debated upon. While the rules
have been notified, the Government has not stated a legitimate state aim behind originator’s
provision. The government has also failed to substantiate the non-availability of less
intrusive means than the traceability provision. The procedural guarantees in the new rules
are absent too.
The traceability provisions raise several legal concerns, which includes the following:
a. Lack of general guidance: Although Rule 4(2) seeks to mandate the identification of
first originators; the provision is bereft of any procedural guidance on the same. This

vests enormous discretion in the hands of law enforcement agencies to employ wide-
ranging means to elicit such information.
b. Either/or situation; No transparency: The acquisition of information via Rule 4(2)

requires the passing of either a judicial order or an order under Section 69, IT Act.
This either/or situation gives the information-seeking agencies to circumvent judicial
scrutiny since Section 69, IT Act lacks procedural safeguards. Further, orders passed
under this section are not available in the public domain, thereby compromising on
the principles of accountability and transparency.
c. ‘Less intrusive means’: One of the provisos to Rule 4(2) states that an order cannot
be passed if there are ‘other less intrusive means’ to identify the first originator.
However, the said proviso stands of little to no value as the phrase ‘less intrusive
means’ find no definition/guidance within the Rules, thereby rendering the proviso
unclear and ambiguous.
The final proviso to Rule 4(2) states that on account of the first originator being
located outside India’s territory, the ‘first originator of that information within the
territory of India’ is deemed the first originator of the information. This proviso, in
effect, forces social media intermediaries to ensure access to users’ entire chain of
metadata communication. This carries a significant impact on several quarters:
Firstly, it will have a chilling effect on free speech. As of now, End-to-End

encryption on instant messaging applications allows for dissent. If this is
compromised, it would impact the working of protestors, activists, journalists etc.
who rely on confidential sources to gather information.
Secondly, traceability means that companies will have to compromise on End-to-End

(‘E2E’) encryption. In this regard, E2E encryption means that messages between two
individuals cannot be accessed by any other entity including the social media
intermediary. Therefore, any compromise on the E2E encryption design undermines
the hitherto-existing privacy of communication over messaging apps, as ensured
through end-to-end encryption.

Thirdly, companies will be forced to modify their existing tech-infrastructure to

comply with this proviso’s requirement of metadata access.
Fourthly, it disproportionately impacts fledgling tech-companies since they have few

resources to incorporate such changes into their tech-infrastructure.
Fifthly, the proviso disregards a vital canon of law: mens rea. This means that a
video or news link with incorrect facts innocently shared by one person to another
does not necessarily makes the person sharing such link have the criminal intent to
commit any crime. This may lead to several legal tussles. It also needs to be
understood that an originator may not be the author of information.
d. Fate of federated messaging applications like Matrix, Diaspora, Mastodon: Several

messaging applications which are federated in nature such as Matrix, Discord etc.
may cross the user base of 50 lakh registered users or may be categorised as
significant social media intermediaries via a notification under Rule 6. However,
these messaging applications are federated in nature meaning that various
individuals, group of individuals or organisations use these applications for
organizational or personal purposes. These organisations/ groups of people exist in
silos and do not interact with each other.
Rule 4(2) does not elaborate if federated messaging applications would be deemed as
significant social media intermediaries or not. On a broad interpretation of the
threshold required for SSMIs, there is a possibility that the federated services would
also be deemed as SSMIs.
e. Impact on Open-Source Applications: There are several services which are federated
in nature i.e. are operated by various servers across the globe like Matrix (Element
on PlayStore), Diaspora etc. The Rules, 2021 do not differentiate these services with
centralised services. This could lead to compliance and regulatory challenges going
forward.

SFLC.in is assisting a FOSS developer volunteering with FSCI, Praveen

Arimbrathodiyil14 in his petition challenging Part II of the Rules, 2021 in the Kerala
High Court.
f. Compromising technical infrastructure will compromise technical infrastructure

across the globe: Technological implementations on a global level are not designed
in a manner to incorporate significant infrastructural alterations territorially.
WhatsApp or Signal, when required to incorporate traceability/ originator
requirement in their technical infrastructure may find it challenging to do so without
denting the privacy by design principle.
Incorporating this feature in India would automatically mean that SSMIs would be
compromising their technical infrastructure globally and thereby, undermining
privacy of all its users.
So far, we have not seen any instance where a company has been successfully or
unsuccessfully introduced traceability without breaking end-to-end encryption.
g. Fate of small not-for-profit messaging applications: In addition to the traceability

requirement, SSMIs would be required to have a physical office in India, appoint 3
different officers who would be residents of India - a nodal officer, a compliance
officer, and a grievance redressal officer.
These requirements clubbed with the traceability required would make it difficult for
companies operating with limited resources and staff such as Signal, Telegram,
Matrix etc. to function in India.
3.4. ENCRYPTION UNDER THE RIGHT TO PRIVACY
It is humbly submitted that Section 4(2) of the Rules violate an individual’s right to privacy as
intermediaries providing primarily messaging services are now required to ‘enable the
14
Praveen Arimbrathodiyil v. Union of India

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 the interception, monitoring, and decryption of information) Rules, 2009, which
shall be supported with a copy of such information in electronic form’. This violates the end-to-
end encryption services guaranteed by such intermediaries. The grounds on which this
identification and traceability are to be given by enabled intermediaries are vague such as what
exactly constitutes ‘public order’ is not defined. This promotes the arbitrary action of the
government.
The means as to how the intermediaries will be able to track the first sender are ambiguous. The
case of Karmanya Singh Sareen And Anr. v. Union of India (2016) is still pending before the
Supreme Court which when decided will clear up the privacy policy issues of such
intermediaries.
3.5. EXEMPTION FROM LIABILITY OF INTERMEDIARY
An intermediary does not create any information by itself but only receives, stores and transmits
the information created or posted by users i.e. third parties. Intermediaries merely act as a
middleman between those who create content and those who consume it. Hence, it would be
wrong to hold the intermediary liable for everything that is posted by a third party as it would be
unreasonable to expect that the intermediary tracks every piece of information posted by millions
of users on its platform. This is the reason why intermediaries enjoy some special legal
privileges.
India operates on the ‘Safe Harbour model’, under which the intermediaries are provided
protection against liability for the acts of third parties who use the infrastructure provided for

committing unlawful acts. For example, a social media platform will not be held liable for the
defamatory content posted by a user.
SECTION 79 OF THE IT ACT
It is humbly submitted before the Hon’ble Supreme Court that under the IT Act, as originally
enacted, only the network service providers were granted protection from liability for illegal acts
of third parties. But after the Amendment Act of 2008, the definition of the intermediary under
the Act and Section 79 of the Act were amended to provide for a wider scope of protection to
intermediaries.
Section 79 of the IT Act provides for ‘Exemption from liability of intermediary in certain cases:
Exemption from liability
Section 79(1) provides for exemption from liability of an intermediary for any third party
information, data, or communication link made available or hosted by him. However, this shall
be subject to provisions of sub-section (2) and sub-section (3) of Section 79.
When exempted
Section 79 (2) provides for the conditions which must be fulfilled for granting exemption from
liability to an intermediary, which are as follows:
1. The intermediary’s function is limited to providing access to a communication system

over which information made available by third parties is transmitted, hosted or
stored;
2. The intermediary does not:
1. initiate the transmission,
2. select who receives the transmission, and
3. select or modify the information contained in the transmission,

3. The intermediary observes due diligence while performing his duties under this Act
and also observes such other guidelines prescribed by the Central Government.
3.6. THIRD-PARTY INFORMATION
According to the explanation attached to Section 79 of the IT Act, ‘third party information’
means information that is dealt with by an intermediary in his capacity as an intermediary.
Section 79 (3) of the IT Act provides an exception to the immunity granted to intermediaries
from liability for third party information and acts under Section 79 (1) of the Act. Intermediaries
can be held liable for third party content hosted by them in the following cases:
1. The intermediary is guilty of conspiring, abetting, aiding or inducing the commission

of the unlawful act;
2. Intermediary fails to expeditiously remove or disable access to any material residing

in or connected to a computer resource upon receiving actual knowledge, or on being
notified by the Government that any information residing in or connected to such
computer resource controlled by the intermediary is being used to commit an unlawful
act. Such removal or disabling of access has to be done without vitiating the evidence
in any manner.
Thus, the immunity provided to intermediaries is not absolute but is subject to fulfillment of
certain duties and following of certain guidelines or rules issued as by the government.
3.7. POTENTIAL RISKS
It is humbly submitted before the court that Social Media Intermediaries like WhatsApp also
allows doctors and patients to discuss confidential health information with total privacy, enables
clients to confide in their lawyers with the assurance that their communications are protected,

and allows financial and government institutions to trust that they can communicate securely
without anyone listening to their conversations, it said.
There is no way to predict which message will be the subject of such a tracing order. Therefore,
the petitioner would be forced to build the ability to identify the first originator for every
message sent in India on its platform upon request by the government forever. This breaks end-
to-end encryption and the privacy principles underlying it, and impermissibly infringes upon
users’ fundamental rights to privacy and freedom of speech, the petition said.
3.8. TRACEABILITY BREAKS END-TO-END ENCRYPTION
Whatsapp Deployed End-To-End Encryption Throughout Our App In 2016, So That Calls,
Messages, photos, videos, and voice notes to friends and family are only shared with the
intended recipient and no one else
“Traceability” is intended to do the opposite by requiring private messaging services like

WhatsApp to keep track of who-said-what and who-shared-what for billions of messages sent
every day. Traceability requires messaging services to store information that can be used to
ascertain the content of people’s messages, thereby breaking the very guarantees that end-to-end
encryption provides. In order to trace even one message, services would have to trace every
message.
That’s because there is no way to predict which message a government would want to investigate
in the future. In doing so, a government that chooses to mandate traceability is effectively
mandating a new form of mass surveillance. To comply, messaging services would have to keep
giant databases of every message you send, or add a permanent identity stamp -- like a
fingerprint -- to private messages with friends, family, colleagues, doctors, and businesses.
Companies would be collecting more information about their users at a time when people want
companies to have less information about them.
Tracing messages would be ineffective and highly susceptible to abuse. If you simply
downloaded an image and shared it, took a screenshot and resent it, or sent an article on
WhatsApp that someone emailed you, you would be determined to be the originator of that

content. At another point, someone might copy and paste the same piece of content and send it
along to others in an entirely different circumstance. Think of this like a tree with many branches
-- looking at just one branch doesn’t tell you how many other branches there.
i. SHOULD CRIMINAL LIABILITY BE IMPOSED FOR NON

COMPLIANCE WITH THE RULES
It is humbly submitted before the Hon’ble Supreme Court that criminal liability should not be
imposed for non-compliance with the rules.
Criminal penalties curtail the right to life and liberty; the incriminating evidence should be such
that establishes, beyond reasonable doubt, that the accused cannot be given the benefit-of-doubt.
For example, in murder cases, the bar to establish the accused’s guilt is high. The accused is
presumed innocent unless the prosecution can prove that s/he had the intention to kill and the
knowledge that his/her actions could cause death. In cases of criminal negligence, such as using
the phone while driving, the prosecution has to prove that the accused acted in a manner that was
obviously risky, with the knowledge that it was so, and that it was not a mere mistake or
accident.
Prima facie, the ambiguity inherent in the IT Rules raises doubts about how such a threshold of
proof will be met. In our assessment, they require platforms to make objective determinations
over matters that are subjective. For example, the rules require digital platforms to prohibit their
users from posting content that is “defamatory’ or “obscene”. They must also remove content
that, in the eyes of the government, is indecent or immoral. However, when it comes to free
speech, content that is acceptable to someone may prompt strong objections from others. The
legislature has not yet developed nuanced standards to make such complex determinations –
even though it seems to be the need of the hour. The lack of clarity has spilled over into courts,
which do not proffer any universal formula to regulate speech in various media.

In this context, it is surprising that the new rules not only force social media platforms to
exercise judgments on censorship, but also potentially implicate their employees in criminal
proceedings. The constitutionally enshrined right to free speech of users is the principal reason
why companies err on the side of caution. Now, digital platforms will be less inclined to resist
requests made in bad faith and take the safer route of censoring content, rather than attempt to
strike a delicate balance that preserves individual liberties.
The responsibilities imposed on intermediaries in the light of new IT rules may have detrimental
impacts on ease of doing business. Ease of Doing Business (EoDB) and Unclogging the Justice
System by De-Criminalization of Certain Laws is on the radar of government for a long time.
There is an increased traction by corporate in jurisprudence towards replacing criminal liability
with monetary penalties. Due to the fear of criminal prosecution, pivotal players of a growing
economy are hesitant to make financial decisions. It is necessary that timely and in sync with the
need for restoring confidence of trade and industry, some bold steps should be taken. These steps
should surmount any fear of being penalized for small/bona fide mistakes (which are rectified).
This is the immediate need of time.

PRAYER
In the light of the issues raised, arguments advanced, and authorities cited, the counsel on behalf
of the Petitioner most humbly prays and implores that the Hon’ble Supreme Court of the Indian
Union be pleased to adjudge, hold and declare that:
1. The writ petition filed is maintainable under A.32 of the Indian Constitution; and
2. Declare that the IT Rules violate fundamental rights guaranteed by the Constitution; and
3. Declare the Information Technology (Intermediary Guidelines and Digital Media Ethics
Code) Rules, 2021 are ultra-vires to the IT Act as well as the Constitution of India;
And/or
Pass any other order that this Hon’ble Supreme Court may deem fit in the interest of equity,
justice and good conscience.
And for this act of kindness, the counsel shall duty bound forever pray.
Respectfully submitted,
Sd/-
(COUNSEL FOR THE PETITIONER)

KLA Petitioner

Uploaded by

Copyright:

Available Formats

You might also like

KLA Petitioner

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

KLA Petitioner

Uploaded by

Copyright:

Available Formats

Team Code – H

Kerala Law Academy Law

BEFORE THE HON’BLE SUPREME COURT

W.P No. /2023

MEMORANDUM ON BEHALF OF THE PETITIONER

MEMORANDUM ON BEHALF OF THE Page

IT Act Information Technology Act

SSMI Significant Social Media Intermediaries

SCC Supreeme Court Cases

UOI Union of India

MEMORANDUM ON BEHALF OF THE Page

AIR All India Report

MEMORANDUM ON BEHALF OF THE Page

1) Constitution of India, 1950

1) V.N. Shukla, Indian Constitution, 13th edition, EBC explorer

2) MP Jain, Indian Constitutional Law, 8th edition, LexisNexis

4) 9 Durga Das Basu, Commentary on The Constitution of India 9373, Justice S

MEMORANDUM ON BEHALF OF THE Page

Romesh Thappar v. State of Madras AIR 1950 SC 124

Justice K. S. Puttaswamy v. Union of (2017) 10 SCC 1

State of Punjab v. Sri Amar Singh General (civil) 938 of 1964

Kihoto Hollohan v. Zachillhu and ors 1992 SCR (1)

Anuradha Bhasin v. Union of India AIR 2020 3SCC 6372112

Union of India v. Associatiion for

Karmanya Singh Sareen and Anr v. (2015) 8 SCC 735

MEMORANDUM ON BEHALF OF THE Page

A.32 of the Indian Constitution states

“Remedies for enforcement of rights conferred by this Part

MEMORANDUM ON BEHALF OF THE Page

1) Social media and state of Shantistan

2) Shantistan times and university of Shantistan:

4) Response of union of India:

MEMORANDUM ON BEHALF OF THE Page

WHETHER THE WRIT PETITION FILED IS MAINTAINABLE UNDER

WHETHER THE IT RULES, 2021 VIOLATE THE

WHETHER THE IT RULES ARE ULTRA VIRUS THE IT ACT

i. SHOULD CRIMINAL LIABILITY BE IMPOSED FOR

MEMORANDUM ON BEHALF OF THE Page

WHETHER THE WRIT PETITION FILED IS MAINTAINABLE UNDER

WHETHER THE IT RULES, 2021 VIOLATE THE

MEMORANDUM ON BEHALF OF THE Page

WHETHER THE IT RULES ARE ULTRA VIRUS THE IT ACT

i. SHOULD CRIMINAL LIABILITY BE IMPOSED FOR

MEMORANDUM ON BEHALF OF THE Page

WHETHER THE WRIT PETITION FILED UNDER A.32 OF THE INDIAN

“Remedies for enforcement of rights conferred by this Part

MEMORANDUM ON BEHALF OF THE Page

1.1. UNION’S DEMAMD TO REVEAL POSTGRAM USERS’ IDENTITY

MEMORANDUM ON BEHALF OF THE Page

1.1. AUDI ALTERAM PARTEM

MEMORANDUM ON BEHALF OF THE Page

MEMORANDUM ON BEHALF OF THE Page

WHETHER THE IT RULES VIOLATE THE FUNDAMENTAL

2.1 ARTICLE 14:

MEMORANDUM ON BEHALF OF THE Page

MEMORANDUM ON BEHALF OF THE Page

Violation of article 19 (1)(a):

Violation of right to freedom and opinion and the concept of democracy: