D.E.S.

SHRI NAVALMAL FIRODIA LAW COLLEGE

BEFORE

THE HON'BLE SUPREME COURT OF INDIA

Original Writ Jurisdiction

Writ Petition No. 167 of 2012

IN THE MATTER OF

SHREYA SINGHAL PETITIONER

VERSUS

UNION OF INDIA RESPONDENT

MEMORIAL SUBMITTED ON BEHALF OF PETITIONER

NAME: SANIKA CHANDRASHEKHAR ATHALYE

CLASS: LL.B III

DIV: C

ROLL NO.: 132

MEMORIAL ON BEHALF OF THE PETITIONER 1|Page

 TABLE OF CONTENTS

SR. CONTENTS PAGE

NO. NO.
1. LIST OF ABBREVIATIONS 3

2. LIST OF AUTHORITIES 4

3. STATEMENT OF JURISDICTIONS 5

4. STATEMENT OF FACTS 6

5. STATEMENT OF ISSUES 8

6. ARGUMENTS ADVANCED 9

7. PRAYER 13

MEMORIAL ON BEHALF OF THE PETITIONER 2|Page

 LIST OF ABBREVIATIONS
Ors Others
v Versus
Anr Another
AIR All India Reporter
SCC Supreme Court Cases
SCR Supreme Court Reporter
Hon’ble Honorable
& And
Art Article
IPC Indian Penal Code
IT Act Information Technology Act

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 LIST OF AUTHORITIES

STATUTES:

1. Information Technology Act, 2000

2. Indian Penal Code, 1860
3. The Constitution of India, 1950

REFERENCES:

1. https://www.manupatrafast.com/
2. https://main.sci.gov.in/
3. https://www.google.com/
4. https://lawfoyer.in/
5. https://www.casemine.com/

CASE LAWS:

1. Romesh Thappar v. State of Madras, 1950 AIR 124, 1950 SCR 594.
2. Sakal Papers (Private) Ltd. v. Union of India, [1962] 3 SCR. 842 at 866.
3. Government of India v. Cricket Association of Bengal, 1995 AIR 1236, 1995 SCC (2)
161.
4. Chintaman Rao v State of Madhya Pradesh, [1950] S.C.R. 759.

MEMORIAL ON BEHALF OF THE PETITIONER 4|Page

 STATEMENT OF JURISDICTION

The petitioners have approached the Hon’ble Supreme Court of India to hear and adjudicate over
the matter under Article 32 of the Constitution of India. The provision under which the
petitioners have approached the Hon’ble court is read herein under as follows:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part.

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

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

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 STATEMENTS OF FACTS

1. In the year 2000, Information Technology Act was enacted. The original Act contained 94
sections divided into 13 chapters and 4 schedules.

2. A major amendment was made in 2008 which introduced Section 66A which penalized
sending offensive messages.

3. There was a Bandh declared on 19th November, 2012 by Shiv Sena party in Maharashtra on
account of death of the Shiv Sena Chief Bal Thackery.

4. A girl named Shaheen Dhada aged 21 years expressed her displeasure against the bandh by
posting a comment on Facebook saying “With all respect, every day, thousands of people die, but
still the world moves on, just due to one politician died a natural death, everyone just goes bonkers.
They should know, we are resilient by force, not by choice. When was the last time, did anyone
showed some respect or even a two-minute silence for Shaheed Bhagat Singh, Azad, Sukhdev or any
of the people because of whom we are free-living Indians? Respect is earned, given, and definitely
not forced. Today, Mumbai shuts down due to fear, not due to respect.” and her friend Rinu
Shrinivasan aged 20 years liked the comment showing her assent to that opinion.

5. They were immediately arrested by Mumbai Police under section 66-A of Information
Technology Act for posting and liking comment which could cause annoyance & hatred in
minds of public at large.

6. The women were initially booked for hurting religious sentiments under Section 295A1 of the
Indian Penal Code, along with Section 66A of the Information Technology Act. On
investigation, the police altered the charges, withdrawing Section 295(A). They were formally
arrested and later released on bail by a local court on a bond of Rs.15,000.

__________________________

1. Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of
India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts
to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description
for a term which may extend to three years, or with fine, or with both.

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7. It was also asserted that the police authorities abuse their power by invoking Section 66 of I.T
Act which allow the police authorities to investigate a case without any warrant. It has led to
large arrest of innocent people for mere expressing their opinion and views which according
to the Government was Obnoxious Content.

8. There has been a public outcry over what has been widely condemned as an attack on the
constitutionally guaranteed right of free speech and expression. Following which questions
are raised about the constitutionality of Section 66A of the IT act, 2000.

9. The provisions mentioned in the Section 66A of IT act,2000 is deemed to be contradictory to

the rights conferred to the citizens of India, by the Constitution vide Article 19(1)(a).

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 ISSUES RAISED

1. Whether the Hon’ble Court has the jurisdiction to hear the present matter
filed before it?

2. Whether Section 66A of the Information Technology Act, 2000 is

constitutionally valid?

3. Whether section 66A of the IT Act, 2000 falls within the ambit of Article
19(2) of the constitution of India?

4. Whether amendment of 2008 that introduced Section 66A of IT act, 2000

should be revoked?

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 ARGUMENTS ADVANCED

A. Whether, the Hon’ble Court has the jurisdiction to hear the present matter
filed before it.

The Petitioner submits,

1. That, the Government of India has passed the Information Technology Act, 2000. The Act
eventually came into effect on 09th June 2000.

2. That, the Petitioner contend that the provision of Section 66A of Information Technology Act,
2000 under Part XI of the act are contradictory to the provisions given under the Constitution
of India under Article 19(1)(a).

3. The said section of Information Technology Act violates Article 19(1)(a) of the Constitution
and hence, needs to be revoked.

4. The Supreme Court of India, vide article 32, 141, 142 can enforce a writ of mandamus and
direct the Central Government to revoke Section 66A of Information Technology Act
contradicting the provisions of the Constitution of India with immediate effect.

B. Whether, Section 66A of the Information Technology Act,2000 is

constitutionally valid?
The Petitioner submits,

1. That, the IT Act 2000 vide Art. 66A(a) makes a provision for punishment to any person who
sends “grossly offensive” or “menacing” information/ messages or any text that are meant to
mislead, deceive, infuriate or hurt the sentiments of the recipient.

2. That, Article 66A of IT Act 2000 is contradictory and conflicting in nature with the
fundamental nature of the right to freedom of expression guaranteed under Art. 19(1)(a).

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3. That, the constitution of India guarantees right to free speech and expression the same is
fundamental to democracy. “In Romesh Thapar V State of MP1 the Hon’ble Court
observed that freedom of speech and press lay at the foundation of all democratic
organizations, for without free political discussion, no public education so essential for the
proper functioning of process of popular government is possible”.

4. That, freedom of speech and expression of opinion is of paramount importance under a

democratic Constitution which forecasts changes in the composition of legislatures and
governments, hence must be preserved was held in Sakal Papers (Private) Limited v
Union of India2.

5. That, the provisions mentioned in Sec. 66A of IT Act 2000 violate the constitutional validity
of Art. 19 of Constitution of India, as it is difficult to contend what might affect someone
and what might not.

6. That, Sec. 66A (b) and (c) of IT Act 2000 states that any information or any electronic
mail/message for the purpose of causing annoyance, inconvenience, danger, obstruction,
insult, injury which he knows to be false shall be punished. However, as every human being
is different the conscience, beliefs, opinions and ideologies differ from person to person.
Hence, a message/text which might cause annoyance, inconvenience, danger, obstruction,
insult, injury might be perfectly reasonable for one. Also, it is very difficult to prove a
person’s mens rea regarding the passing of the message/text.

7. That, the Supreme Court in Government of India v. Cricket Association of Bengal3 has
stated that diversity of opinions, views, and ideas cannot be guaranteed in an environment
controlled by a monopoly, whether it belongs to the state or to another person, group, or
organization. Broadcasting media should be controlled by the public, not by the government.
This mark is implied in Article 19(1) (a)” of the constitution.

_________________________
1. 1950 AIR 124, 1950 SCR 594
2. [1962] 3 SCR. 842 at 866
3. 1995 AIR 1236, 1995 SCC (2) 161

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C. Whether section 66A of the IT Act, 2000 falls within the ambit of Article
19(2) of the constitution of India?

The Petitioner submits,

1. That the terminology which is used in section 66-A of the act to cause nuisance, annoyance,
inconvenience, danger, obstacles, and insult, do not fall under the Reasonable Limitation of
the right to freedom of Expression provided for in clause 2 of Article 19.

2. With respect to the ambit of reasonable restrictions, the Supreme Court in Chintaman Rao
v State of Madhya Pradesh1 had laid down the principle that a restriction in order to be
referred to as reasonable shall not be arbitrary and shall not be beyond what is required in
the interest of the public. The reasonable implies intelligent care and deliberation Legislation
which excessively invades the right cannot be said to contain the quality of reasonableness
and unless it strikes a proper balance between the freedom guaranteed.

3. Article 19(2) draws a line of division between permissible speech and impermissible speech.
It lays down a number of grounds under which the government may interfere and impose
restrictions upon free speech. Moreover, the said article, does not come under the head of the
provisions under art. 19(2). Thus, it can be fairly concluded that the Section 66A does not
fall within the ambit of Art. 19 (2).

D. Whether amendment of 2008 that introduced Section 66A of IT act, 2000

should be revoked?

The Petitioner submits,

1. That, the very basis of Section 66A - that it has given rise to new forms of crimes - is incorrect, and
that Sections of the IPC are good enough to deal with all these crimes.

2. That, the amendment of 2008, was introduced as a means to control the rising crimes via electronic
media. However, the provisions under Section 66A of the act are violative of the Fundamental
rights guaranteed to every citizen of India vide Art. 14, 19(1)(a) and 21.

___________________
1. [1950] S.C.R. 759

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3. That, coloring an act as a crime via one medium and not for other medium is in itself a
contradiction. It is a trite position of law that a crime at one place is a crime everywhere within the
territory of India.
4. That in light of the abovementioned contentions, the amendment that introduced the Sec. 66A
should be revoked.

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 PRAYERS

It is thus prayed, in the light of the facts stated, issues raised and arguments advanced, on behalf
of the petitioner,

1. That, the present petition may please be allowed, tried and entertained by the Hon’ble
Court in exercise of its jurisdiction.
2. That, the constitutional validity of Section 66A of IT Act, 2000 may please be verified in
light of Article 14, 19(1)(a) and 21 of the Constitution of India.
3. That, the provision of Section 66A of IT Act, 2000 may please be repealed under the light
of its contradictions to the to the provisions under the Constitution of India and series of
judgements by this Hon’ble Court.
4. Any other judgement in the right interest and justice that the Court may deem fit may
please be passed in favor of the Petitioner.

Sd/-

COUNSEL FOR THE PETITIONER

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