Team AL Petitioner 231113 184205

32 KLA NATIONAL MOOT COURT COMPETITION, 2023
TEAM CODE – T-Al (P)
32ND ALL INDIA NATIONAL MOOT COURT (THIRD VIRTUAL)

COMPETITION
BY KERELA LAW ACADEMY, 2023
BEFORE THE HON’BLE SUPREME COURT OF UNION OF INDIA

UNDER ART. 32 OF THE CONSTITUTION
-IN THE MATTER OF-
POSTGRAM LIMITED
(PETITIONER)
V.
UNION OF INDIA
(RESPONDENT)
MEMORANDUM ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS
INDEX OF AUTHORITIES ................................................................................III
TABLE OF ABBREVIATION .......................................................................... XII
STATEMENT OF JURISDICTION ................................................................ XIII
STATEMENT OF FACTS ................................................................................ XIV
ISSUES RAISED ................................................................................................ XVI
SUMMARY OF ARGUMENTS ..................................................................... XVII
I. MINISTRY OF ELECTRONICS AND INFORMATION TECHNOLOGY DOES NOT
HAVE LEGISLATIVE COMPETENCY TO FORMULATE RULE 4(2) OF THE
INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL

MEDIA ETHICS CODE) RULES, 2021. ............................................................. XVII
II. RULE 4(2) OF THE IT RULES 2021 IS VIOLATIVE OF ART.14. ............. XVII
III. RULE 4(2) OF THE IT RULES 2021 IS VIOLATIVE OF ART.19(1)(A). ... XVII
IV. RULE 4(2) OF THE IT RULES 2021 IS VIOLATIVE OF ART.19(1)(G). ... XVII
V. RULE 4(2) OF THE IT RULES 2021 IS VIOLATIVE OF ART.21. ............XVIII
ARGUMENTS ADVANCED ................................................................................. 1
INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL

MEDIA ETHICS CODE) RULES, 2021. .................................................................... 1
A. RULE 4(2) OF IT RULES 2021 FAILS TO CONFORM TO THE SUBSTANTIVE

PROVISIONS OF THE STATUTE. .............................................................................. 2
B. THE EXECUTIVE HAS PERFORMED AN ESSENTIAL LEGISLATIVE FUNCTION

WHICH IS NOT PERMISSIBLE. ................................................................................. 3
-MEMORANDUM for PETITIONER- PAGE | I [TABLE OF CONTENTS]

II. RULE 4(2) OF THE IT RULES 2021 IS VIOLATIVE OF ART.14. .................... 6
A. RULE 4(2) OF IT RULES 2021 IS ARBITRARY IN NATURE. ........................... 6
B. RULE 4(2) DOES NOT SATISFY TWIN TEST OF REASONABLE CLASSIFICATION.

………………………………………………………………………….. 7
1. There is no intelligible differentia. ............................................................ 8
2. There is no Rational Nexus for object sought to be achieved. .................. 9
C. RULE 4(2) OF THE IT RULES 2021 SUFFERS FROM THE VICE OF VAGUENESS
AND AMBIGUITY. ................................................................................................ 10
III. THE RULE 4(2) OF IT RULES 2021 IS VIOLATIVE OF ART. 19(1)(A). ....... 12
A. THE RULE 4(2) OF IT RULES 2021 RESULTS IN CHILLING EFFECT ON
FREEDOM OF SPEECH AND EXPRESSION. ............................................................ 13
1. Rule 4(2) is Overbreadth in Nature. ........................................................ 13
2. Rule 4(2) suffers from the vice of vagueness and arbitrariness. ............. 15
B. THE RESTRICTIONS ARE NOT PROPORTIONAL TO THE OBJECTIVE SOUGHT TO

BE ACHIEVED. .................................................................................................... 16
IV. THE RULE 4(2) OF IT RULES 2021 IS VIOLATIVE OF ART. 19(1)(G). ....... 19
A. RULE 4(2) IS UNREASONABLE AND ARBITRARY. ...................................... 19
B. RULE 4(2) IS NOT IN THE INTEREST OF THE GENERAL PUBLIC. .................. 21
V. RULE 4(2) OF IT RULES 2021 IS VIOLATIVE OF ART. 21. ......................... 22
A. RULE 4(2) SUFFERS FROM THE VICE OF ILLEGALITY. ............................... 23
B. RULE 4(2) DOES NOT HAVE A LEGITIMATE STATE AIM. ............................ 24
C. RULE 4(2) IS DISPROPORTIONATE IN NATURE........................................... 25
PRAYER ............................................................................................................. XIX
-MEMORANDUM for PETITIONER- PAGE | II [TABLE OF CONTENTS]

INDEX OF AUTHORITIES
INDIAN CASES PAGE NO.
AIIMS Student Union v. AIIMS, (2002) 1 SCC 428 11
Asha Ranjan v. State of Bihar, (2017) 4 SCC 397 20
Ashok Kumar Lingala v. State of Karnataka, (2012) 1 SCC 321 18
Ashok Kumar Thakur v. Union of India, (2007) 4 SCC 361 11
Asif Hameed v. State of Jammu & Kashmir, AIR 1989 SC 25
1899
B. R. Kapur v. State of Tamil Nadu, AIR 2001 SC 3435 26
Balchandra L Jarkiholi v. B.S.Yeddyurappa & Ors., (2011) 7 17, 18
SCC 1
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 26
Bhagat Ram v. State of HP, AIR 1983 SC 454 8
Canara Bank v. Shri Debasis Dass, (2003) 4 SCC 557 18, 19
Canera Bank v. V.K. Awasthy, (2005) 6 SCC 321 18
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480 18
Chiranjit Lal Chowdhuri v. Union of India, (1950) SCR 869 5, 25
Deepak Sibal v. Punjab University, (1989) 2 SCC 145 6
Dr. Jaishri Laxmanrao Patil v. The Chief Minister & Ors., Civil 7
Appeal No. 3123 of 2020
Express Newspapers Pvt. Ltd. and Ors. v. Union of India Ors., 14
AIR 1986 SC 872
-MEMORANDUM for PETITIONER- PAGE | III [INDEX OF AUTHORITIES]

Goodricke Group Ltd. v. State of West Bengal, (1995) 1 SCC 13
707
Government of NCT Delhi v. Union of India and Ors., (2018) 8 26
SCC 501
Gujarat Water Supply v. Unique Electro (Gujarat), (1989) 1 9, 20
SCC 392
Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 3 SCR 13
130
I.R. Coelho (Dead) by Lrs. v. State of T.N., (2007) 2 SCC 1 14
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 22, 25
Indra Sawhney v. Union of India, AIR 1993 SC 477 7, 27
Jagdambika Pal v. Union of India, (1999) 9 SCC 95 28
Jagjit Singh v. State of Haryana, (2006) 2 SCC 1 17, 22
Jairam Ramesh v. Union of India, (2019) 366 ELT 238 2
Javed v. State of Haryana, (2003) 8 SCC 369 5
John Vallamattom v. Union of India, AIR 2003 SC 2902 6
K. Thimmappa v. Chairman, (2001) 2 SCC 259 6
K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1 1, 3
Kalpana Mehta and Ors. v. Union of India and Ors., (2018) 7 25
SCC 106
Keisham Meghachandra Singh v. The Hon’ble Speaker 18
Manipur Legislative Assembly, (2020) 4 SCJ 41
-MEMORANDUM for PETITIONER- PAGE | IV [INDEX OF AUTHORITIES]

Kerala State Education Board v. Indian Aluminium Co. Ltd., 13
(1976) 1 SCC 466
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 19, 21, 25
Kihoto Hollohan v. Zachillhu and Ors., (1992) 2 SCC 651 15, 20
Kuldip Nayar v. Union of India and Ors., AIR 2006 SC 3127 14
M. Nagraj v. Union of India & Ors., (2006) 8 SCC 212 7
Maneka Gandhi v. Union of India, (1978) 2 SCR 621 20, 26
Mangalore Ganesh Beedi Works v. State of Mysore, (2016) 2 3
SCC 556
Manoj Narula v. Union of India, (2014) 9 SCC 1 25
Minerva Mills Ltd. and Ors. v. Union of India and Ors., AIR 26
1980 SC 1789
Modern Dental College v. State of Madhya Pradesh, AIR 2016 10, 11
SC 2601
Mohd. Saeed Siddiqui v. State of Uttar Pradesh, (2014)11 SCC 3
415
Municipal Corporation of Ahmedabad v. Jan Mohammed 11
Usman, AIR 1986 SC 1205
N P Ponnuswami v. Returning Officer, AIR 1952 SC 64 2
Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal 28
Pradesh Legislative Assembly, (2016) 8 SCC 1
Nathi Devi v. Radha Devi Gupta, AIR 2005 SC 648 27
Om Kumar v. Union of India, (2001) 2 SCC 386 8
-MEMORANDUM for PETITIONER- PAGE | V [INDEX OF AUTHORITIES]

P.D. Agarwal v. State Bank of India, (2006) 8 SCC 776 18
R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 16
Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 25, 27
Rameshwar Prasad v. Union of India, (2006) 2 SCC 1 22, 28
Ramlila Maidan Incident v. Home Secretary, (2012) 5 SCC 1 9
Ravi S. Naik v. Union of India, AIR 1994 SC 1558 15, 16, 19
Roop Chand Adalkha v. Delhi Devlopment Authority, AIR 5
1989 SC 307
S. Nalini v. The State of Tamil Nadu, AIR 1999 SC 2640 28
S.R. Bommai v. Union of India, AIR 1994 SC 1918 22, 26
Samsher Singh v. State of Punjab, AIR 1974 SC 2192 21, 28
Sanchit Bansal v. Joint Admission Board, (2011) 15 SCR 1057 8
Shakti Vahini v. Union of India, AIR 2018 SC 1601 19
Shivraj Singh Chouhan & Ors. v. Speaker Madhya Pradesh 26
Legislative Assembly, (2020) 5 SCJ 444
Shrimanth Balasaheb Patil and Ors. v. Hon'ble Speaker, 16, 20, 23
Karnataka Legislative Assembly and Ors., (2020) 2 SCC 595
State of Bombay v. F.N. Balsara, AIR 1951 SC 318 5
State of Haryana v. Jai Singh, (2003) 9 SCC 114 5
State of Madras v. VG Row, (1952) SCR 597 9, 20
State of Rajasthan v. Union of India, (1977) 3 SCC 592 27
State of West Bengal v. Anwar Ali, AIR 1952 SC 75 5, 6
-MEMORANDUM for PETITIONER- PAGE | VI [INDEX OF AUTHORITIES]

T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors., 11
(2002) 8 SCC 481
U.N.R Rao v. Smt. Indira Gandhi, AIR 1971 SC 1002 21
Union of India v. M.V. Valliappan, (1999) 6 SCC 259 6
Union of India v. Rajendra Shah, Civil Appeal No. 9108 of 12
2014
Vipulbhai M. Chaudhary v. Gujarat Coop. Milk Mktg. 13
Federation Ltd., (2015) 8 SCC 1
Yogendra Kumar Jaiswal v. State of Bihar, AIR 2016 SC 1474 3
OTHER CASES PAGE NO.
Bobb v. Manning, (2006) UKPC 22 21
Civil Service Unions v. Minister for Civil Service, [1983] 8, 28

UKHL 9
Northern Suburbs General Cemetery Reserve Trust v. The 1

Commonwealth, (1993) 176 CLR 555
Permanent Trustee Australia Ltd. v. Commr. of State Revenue, 1

(2004) HCA 53
R (Miller) v. Secretary of State for Exiting the European Union, 21

(2018) AC 61
CONSTITUTIONAL PROVISIONS PAGE NO.
INDIA CONST. ART.19(6) 9
-MEMORANDUM for PETITIONER- PAGE | VII [INDEX OF AUTHORITIES]

INDIA CONST. ART. 75(1-B) 20
INDIA CONST. ART. 159 26
INDIA CONST. ART. 163 27, 28
INDIA CONST. ART. 164 20, 21, 22
INDIA CONST. ART. 199 1, 2, 3, 4
INDIA CONST. ART. 361B 20
INDIA CONST. VII SCHEDULE LIST I ENTRY 72 13
INDIA CONST. VII SCHEDULE LIST II ENTRY 37 13
BOOKS PAGE NO.
A.P. DATAR, DATAR ON CONSTITUTION OF INDIA 23
BRYAN A. GARNER, BLACK’S LAW DICTIONARY 8, 11
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 13, 25, 27
DR. SUBHASH C. KASHYAP, REVIEWING THE CONSTITUTION? 16
H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 9, 27
L.M. SINGHVI, JAGDISH SWARUP, CONSTITUTION OF INDIA 20
M.N. KAUL, PARLIAMENTARY PRACTICE AND PROCEDURE 3, 4
-MEMORANDUM for PETITIONER- PAGE | VIII [INDEX OF AUTHORITIES]

M.P. JAIN, INDIAN CONSTITUTION LAW 13, 19
M.V. PYLEE, FREE SPEECH AND PARLIAMENTARY PRIVILEGES IN 14

INDIA
MAHENDRA P SINGH, V.N. SHUKLA'S CONSTITUTION OF INDIA 26
RAMANATHA AIYER, ADVANCED LAW LEXICON 5
ARTICLES PAGE NO.
Ajay K. Mehra, Review: Working of the Indian Party System 15
Arvind P. Datar, Aadhaar: The Money Bill Controversy 3
Dalip Singh, The Role of the Governor under the Constitution 29

and the Working of Coalition Governments
Kathleen Bawn, A Theory of Political Parties: Groups, Policy 18

Demands and Nominations in American Politics
M.P. Singh, Governor’s Power to Dismiss Ministers or Council 27

of Ministers-An Empirical Study
Mahander Kumar Saini, A Study of No-Confidence Motions in 17

the Indian Parliament (1952-70)
Paras Diwan, Aya Ram Gaya Ram: The Politics Of Defection 18
Paras Diwan, Indian Political Parties in the working of 15

Parliamentary Democracy: An Analysis
Pratap Chandra Swain, Dynamics of the Indian Party System: 15

Emergence of Competitive Multi-Party Coalitions
-MEMORANDUM for PETITIONER- PAGE | IX [INDEX OF AUTHORITIES]

Rajeev Dhavan, Hung Assembly: Whom should Governor call 23

first?
Randall G. Holcombe, Political Parties and the Legislative 18

Principal-Agent Relationship
Vincent Joy, The Use and Abuse of Discretionary Powers of 28

Governor in Formation of Ministry in a State in India
OTHER AUTHORITIES PAGE NO.
COMMISSION ON CENTRE-STATE RELATIONS, Constitutional 22, 23

Governance and the Management of Centre-State Relations
COMMISSION ON CENTRE-STATE RELATIONS, Report on Local 22, 23

Self Governments And Decentralized Governance
WORLD BANK, Data Bank-Jobs 10
LAW COMMISSION OF INDIA, One Hundred Seventieth Report on 15

Reform of Electoral Laws
LOK SABHA, Constituent Assembly Debates 1
MINISTRY OF FINANCE, CONTROLLER GENERAL OF ACCOUNTS, 4

List of Major and Minor Heads of Accounts Union and States
LMMH
DATA BASES REFERRED PAGE NO.
www.epw.in
www.jstor.org
-MEMORANDUM for PETITIONER- PAGE | X [INDEX OF AUTHORITIES]

www.lexisnexis.com
www.manupatra.com
www.scconline.com
www.westlawindia.com
-MEMORANDUM for PETITIONER- PAGE | XI [INDEX OF AUTHORITIES]

TABLE OF ABBREVIATION
ABBREVIATION WORDS
& And
v. Versus
§ Section
¶ Paragraph
Art. Article
Const. Constitution
DPSP Directive Principles of State Policy
E2EE End to end encryption
Govt. Government
Hon’ble Honorable
IT Information Technology
MeitY Ministry of Electronics and Information Technology
SC Supreme Court
SMI Social Media Intermediary
SSMIs Significant Social Media Intermediaries
-MEMORANDUM for PETITIONER- PAGE | XII [TABLE OF ABBREVIATIONS]

STATEMENT OF JURISDICTION
THE PETITIONER HUMBLY SUBMITS THIS MEMORANDUM BEFORE THE HON’BLE

SUPREME COURT OF INDIA UNDER ART. 32 OF THE CONSTITUTION OF UNION OF
INDIA.
It sets forth the facts, contentions and arguments in the present case in the
jurisdiction of the Petitioners.
-MEMORANDUM for PETITIONER- PAGE | XIII [STATEMENT OF JURISDICTION]

STATEMENT OF FACTS
BACKGROUND
Postgram is the most popular app among the inhabitants of Shanthisthan, which is a
state in the Indian Union with a population of 5,48,67,345. Postgram is an app that
creates a space for its users to connect by allowing people to create and share photos,
videos and stories with their friends and followers from their daily moments. 80%
of its users are youngsters of 16-30 age group.
THE STUDY
The newspaper Shanisthan Times published a news on 7-7-2022 with the title
“Postgram is the champion of fake news”. The news mentioned a study of two
researchers of University of Shanthisthan who found that false news spreads
significantly faster, deeper, and more broadly than the truth, in all categories of
information on Postgram than real news.
The reason behind the same, according to the scholars was the people sharing the
inaccurate news items through Postgram. For the purpose of this study, the
researchers monitored around 14,800 news story cascades that propagated on
Postgram from 2010 to 2018. These cascades were collectively shared over 4,50,000
times by roughly 300,000 people. It was discovered that out of 14,800 cascades,
politics comprised the largest news category with around 8,500, followed by
terrorism, business, and other categories.
The scholars laid emphasis on the fact that it is likely that the same phenomenon
occurs on the other social media platforms, including Facebook which has
1,11,30000 users in the State of Shanthisthan. Following this news, Shanthisthan
Times published another news on 2-9-2022 stating that Postgram had not yet taken
any action to comply with the Information Technology (Intermediary Guidelines and
Digital Media Ethics Code) Rules 2021 issues through the Notification of the
Ministry of Electronics and Information Technology dated 25th February, 2021.
-MEMORANDUM for PETITIONER- PAGE | XIV [STATEMENT OF FACTS]

THE PETITION
Later on 17-10-2022, Postgram aggrieved by the formulation of news laws, filed a
petition before h Supreme Court of under Art 32 of the Constitution with a prayer to
issue a writ of mandamus or any other appropriate writ, direction, or order, to declare
that (i) Rule 4(2) of Information Technology (Intermediary Guidelines and Digital
Media Ethics Code) Rules 2021 is violation of Art. 14, 19(1)(a), 19(1)(g) and 21 of
the Constitution, ultra vires the IT ACT, and illegal as to end-to-end encryption
messaging services and; (ii)criminal liability may not be imposed for non-
compliance with the Impugned Rule 4(2) and any attempt to impose criminal
liability for non-compliance with impugned rule 4(2) is unconstitutional, ultra vires
the IT Act, and illegal.
GOVERNMENT’S CONTENTION
In response to the petition, the Union of India has denied all of the arguments and
stated that the Government respects the Right to Privacy and has no intention of
infringing upon it when Postgram is required to disclose the origin of a specific
message. Such a requirement is limited to cases where offences related to the
sovereignty of India, the security of the state, friendly relations with foreign states,
or public order, or of incitement to an offence related to any of those, are involved.
No Fundamental Right is absolute under Art. 21, and the proportionality standard
outlined in K.S. Puttaswamy is fully relevant.
The matter has been posted before the Supreme Court of India for hearing.
-MEMORANDUM for PETITIONER- PAGE | XV [STATEMENT OF FACTS]

ISSUES RAISED
I. WHETHER THE MINISTRY OF ELECTRONICS AND INFORMATION

TECHNOLOGY HAS THE LEGISLATIVE COMPETENCY TO FORMULATE RULE 4(2) OF
THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL
MEDIA ETHICS CODE) RULES, 2021?
II. WHETHER THE RULE 4(2) OF IT RULES, 2021 IS VIOLATIVE OF ART. 14?
III. WHETHER THE RULE 4(2) OF IT RULES, 2021 IS VIOLATIVE OF ART.
19(1)(A)?
IV. WHETHER THE RULE 4(2) OF IT RULES, 2021 IS VIOLATIVE OF ART.
19(1)(G)?
V. WHETHER THE RULE 4(2) OF IT RULES, 2021 IS VIOLATIVE OF ART. 21?
-MEMORANDUM for PETITIONER- PAGE | XVI [ISSUES RAISED]

SUMMARY OF ARGUMENTS

INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA

ETHICS CODE) RULES, 2021.
The Ministry of Electronics and Information Technology does not have the
legislative competence to promulgate the Rule 4(2) of the IT Rules 2021. The
impugned rule is ultra-vires to the IT Act from which they derive the rule making
power on two grounds. Firstly, The Impugned Rule fails to conform to the
substantive provisions of the statute. Secondly, the Executive has performed an
essential legislative function which is not permissible.
II. RULE 4(2) OF THE IT RULES 2021 IS VIOLATIVE OF ART.14.
The impugned Rule 4(2) of IT Rules 2021 is violative of Art. 14 on three grounds.
Firstly, the IT Rules are arbitrary. Secondly, the rule 4(2) does not satisfy twin test
of reasonable classification. Thirdly, the relevant provisions suffer from the vice of
vagueness and ambiguity.
III. RULE 4(2) OF THE IT RULES 2021 IS VIOLATIVE OF ART.19(1)(A).
The IT Rules 2021 is violative of Art. 19(1)(a) as Freedom of Speech and Expression
as the impugned rules fail to qualify the test of reasonable restriction provided under
Art. 19(2) of The Constitution on two grounds. Firstly, the rule 4(2) of IT rules 2021
is overbreadth and vague leading to a disproportionate chilling effect on speech.
Secondly, the restrictions are not proportional to the objective it wants to achieve.
IV. RULE 4(2) OF THE IT RULES 2021 IS VIOLATIVE OF ART.19(1)(G).
-MEMORANDUM for PETITIONER- PAGE | XVII [SUMMARY OF ARGUMENTS]

Art. 19(1)(g) of the Constitution provides natural and inalienable right to freedom to
carry any trade, occupation, profession or business to all. However, this freedom is
also not absolute and is subject to reasonable restrictions under Art. 19(6). These
restrictions do not fall under Art. 19(6) due to these two grounds. Firstly, the
restrictions imposed by Rule 4(2) are unreasonable and arbitrary. Secondly, Rule
4(2) is not in the interest of the general public.
V. RULE 4(2) OF THE IT RULES 2021 IS VIOLATIVE OF ART.21.
The Rule 4(2) of IT Rules 2021 is violative of Art. 21 as it infringes upon the
fundamental right to privacy without satisfying the three-part test set forth by the
Hon’ble Supreme Court: (i) legality; (ii) necessity; and (iii) proportionality relying
heavily on K.S. Puttaswamy v. Union of India.
-MEMORANDUM for PETITIONER- PAGE | XVIII [SUMMARY OF ARGUMENTS]

ARGUMENTS ADVANCED

INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA

ETHICS CODE) RULES, 2021.
¶|1|. It is humbly submitted before this Hon’ble Court that the Ministry of
Electronics and Information Technology (hereinafter referred as “MeitY”) has no
Legislative Competency to formulate the Information Technology (Intermediary
Guidelines and Digital Media Ethics Code) Rules, 2021,1 (hereinafter referred as
“The IT Rules 2021”) because the Rule 4(2) of the IT Rules 2021 is ultra vires to
the parent Act i.e., Information and Technology Act, 2000 (hereinafter referred as
“IT Act”).2
¶|2|. The Union of India follows the Doctrine of Separation of Power which is
enshrined and protected under the Basic Structure of Constitution,3 which confers
the power to make laws for the country only upon the union legislation.4
Nevertheless, sometimes the Government can delegate this power to the Executive
to make rules, regulations etc., this is known as ‘Delegated Legislation’.5
¶|3|. However, this power comes with certain restrictions that the Executive cannot
make rules which are beyond the scope of the Parent Act,6 and it will be considered
ultra vires to the Parent Act and will be liable to struck down.7 The argument for the
1
Govt. of India, Ministry of Electronics and Information Technology, CG-DL-E-26022021-
225497 (2021).
2
The Information Technology Act, 2000, No. 21, Acts of Parliament, 1999 (India).
3
Keshavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
4
M.P. JAIN, INDIAN CONSTITUTION LAW (Lexis Nexis Butterworths, 8th ed. 2017).
5
V.N Shukla, Judicial Control of Delegated Legislation in India, 1(3) Journal of Indian Law
Institute 357 (1959).
6
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 1474 (Lexis Nexis Butterworths et al
eds., 9th ed. 2015).
7
Additional District Magistrate (Rev.) Delhi Administration v. Shri Ram, (2000) SCR 1019.
-MEMORANDUM for PETITIONER- PAGE | 1 [ARGUMENTS ADVANCED]

same is based on two grounds: [A] Rule 4(2) of IT Rules 2021 fails to conform to
the substantive provisions of the statute and; [B] The Executive has performed an
essential legislative function which is not permissible.
A. RULE 4(2) OF IT RULES 2021 FAILS TO CONFORM TO THE SUBSTANTIVE

PROVISIONS OF THE STATUTE.
¶|4|. It is humbly submitted that MeitY has formulated the IT Rules 20218 in
exercise of the power conferred by sub-section (1), clauses (z) and (zg) of sub-
section (2) of § 87 of the IT Act, 2000.9 However, the same has been conferred only
to regulate the intermediaries.10
¶|5|. Furthermore, no provision of the Act was applicable to digital media, as it
was not covered under the definition of the Intermediaries.11 Thus, the scope of the
IT Act, was only limited to Intermediaries, however, the rules have extended the
scope which is beyond the ambit and scope of the IT Act 2000.
¶|6|. The Hon’ble Supreme Court has ruled in a number of judgements that,12
“Rules cannot change the enabling Act’s provisions, principles, or scope.”13 In the
case of General Commanding officer v. Dr. Subhash Chandra,14 a basic criterion
was laid down to determine that the rule cannot go beyond the scope of the parent
statute. The Hon’ble Supreme Court opined that, “it must confirm to the provisions
of parent statute and come within the purview of the general rule-making power of
the authority framing those rules.”15
8
Govt. of India, Ministry of Electronics and Information Technology, CG-DL-E-26022021-
225497 (February 25, 2021).
9
The Information Technology Act, 2000, § 87(1), 87(2)(z), (zg), No. 21, Acts of Parliament, 1999
(India).
10
Freedom Foundation, Submission of comments on the consultation paper on ‘Need for a new
legal framework governing Telecommunication in India, IFF/2022/089 (2022).
11
id.
12
Agricultural Market Committee v. Shalimar Chemical Works Ltd, (1997) SCR 164.
13
State of Karnataka v. Ganesh Kamath, (1983) SCR 665; Kerela State Electricity Board v. Indian
Aluminium Company, (1976) SCR 552.
14
General Officer Commanding-in-Chief v. Subhash Chandra Yadav, (1988) 2 SCC 351, ¶ 14.
15
id.

¶|7|. The objective of the IT Act is to give legal recognition to transactions that
involve the exchange of electronic data.16 Any of the objectives do not apply to the
regulation of digital media.17 The parent Act does not explicitly state that it provides
the government with the authority to create regulations to oversee the use of digital
media or establish standards for digital media ethics.18
¶|8|. Furthermore, for the very same reason they must be held void because the
said action is beyond the scope beyond the scope and purview of the ministry’s
authority and jurisdiction which is a blatant violation of embargo placed over
delegated legislations.
B. THE EXECUTIVE HAS PERFORMED AN ESSENTIAL LEGISLATIVE FUNCTION WHICH

IS NOT PERMISSIBLE.
¶|9|. It is humbly submitted that an Act of user privacy invasion is not permissible
delegation for the fact that it is a crucial legislative function. The Parliament has not
offered any guidance on traceability and automated filtering in the context of Rule
4(2),19 and Rule 4(4),20 making the contested legislation a matter of excessive
delegation.
¶|10|. Furthermore, in the case of Vasantlal Maganbhai v. State of Bombay,21 the
Hon’ble Supreme Court held that, “the essential legislative function is the
determination of the legislative policy and its formulation as a rule of conduct,”
which entails that the executive cannot be given authority to formulate on lines of
16
The Information Technology Act, 2000, § 2, cl. t, No. 21, Acts of Parliament, 1999 (India).
17
APAR GUPTA, COMMENTARY ON INFORMATION TECHNOLOGY ACT (LexisNexis, 2nd Ed. 2011).
18
In Re the Delhi Laws Act, 1912 and Ors. v. The Part C States (Laws) Act, 1950, 1951 AIR 332.
19
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules,
2021, Rule 4, cl. 2.
20
2021, Rule 4, cl. 4.
21
Vasantlal Maganbhai v. State of Bombay, (1961) SCR 341.

Rules 4(2),22 and 4(4).23 Only the procedural elements of the said rules can be
ascertained by the executive over the subjects listed in Rules 4(2) and 4(4).
¶|11|. It is humbly submitted that under the IT Rules 2021 the intermediaries have
been divided into two classes (i) Social media intermediary (hereinafter referred as
“SMI”) and (ii) Significant Social Media Intermediary (hereinafter referred as
“SSMIs”).24 The SSMIs have the task of observing due diligence and breaking the
end-to-end encryption to identify the first originator of the message as the
circumstances might require. The same does not finds its mention in the Parent Act.
¶|12|. The same is based on the premise that the said action would go beyond the
authority granted to the government by the Act to define new categories of

intermediaries and provide the government the authority to set thresholds for these
classifications and impose duties on particular entities. The parent Act need to
include provisions defining new entities and their obligations.25
¶|13|. Furthermore, it is submitted that an internet user who begins disseminating
any malicious information or engaging in other negative behaviors is considered the

‘first originator’.26 The IT Act 2000, the parent statute, does not, however, offer any
instructions on how to interpret obligation.27 It should be emphasized that neither
the parent Act nor the aforementioned rule define the term ‘first originator’.
¶|14|. The Provision of traceability under the IT Rules 2021 is also in conflict with
the § 69 of the IT Act 2000.28 Rules notified under § 69 are known as the Information
Technology (Procedure and Safeguards for Interception, Monitoring and Decryption
22
2021, Rule 4, cl. 2.
23
The Information Technology (Intermediary Guidelines and Media Ethics Code) Rules, 2021,
Rule 4, cl. 4.
24
2021, Rule 2 cl. 1(v), 1(w).
25
M.P. JAIN & S.N. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW (Lexis Nexies, 7th ed. 2013).
26
Tabrez Ahmed, Information Technology Laws: Mapping the Evolution and Impact of Social
Media Regulation in India, 4 DESIDOC Journal of Library & Information Technology 286 (2021).
27
Maharshi Thakkar, The Concept of Originator in Terms of Information Technology Rules 2021
and Its Implications on the Freedom of Trade, 4 Issue 3 Int’l J.L. Mgmt. & Human. 6113 (2021).
28
The Information Technology Act, 2000, § 69, No. 21, Acts of Parliament, 1999 (India).

of Information) Rules, 2009 which provides for decryption, monitoring and

interception of communication read with § 87(2)(y) of the Information Technology
Act, 2000.29
¶|15|. Furthermore, Rule 6,30 of the contested Rules gives the State the arbitrary
authority to notify any other intermediary that is not a SSMIs to abide by Rule 4’s,31
requirements on the grounds of “material risk of harm to the sovereignty and
integrity of India”, “security of state”, “friendly relations with foreign states”, or
“public order”.
¶|16|. Furthermore, in the case of Hiralal P. Harsora v. Kusum Narottamdas
Harsora,32 the Hon’ble Supreme Court held that, “the preamble of the legislation,
which defines the intended goal and purpose of the Act, could be used to interpret
the legislation’s object.” The preamble of the IT Act states:
“An Act to facilitate electronic filing of documents with government agencies, to
provide legal recognition for transactions made through electronic data
interchange and other forms of electronic communication, also known as ‘electronic
commerce,’ which involve using alternatives to paper-based methods of
communication and information storage, and to further amend the Indian Penal
Code, the Indian Evidence Act of 1872, the Banker’s Books Evidence.”33
¶|17|. In the preamble itself it is nowhere mentioned that it covers content
regulation of Digital media platforms or OTT platforms thus, the Respondents do
have authority to formulate Rule 4(2) which sets some guidelines for the SSMIs to
follow.
¶|18|. In light of the aforesaid submissions, it is humbly submitted that the
29
The Information Technology Act, 2000, § 87(2)(y), No. 21, Acts of Parliament, 1999 (India).
30
2021, Rule 6.
31
2021, Rule 4.
32
Hiralal P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165.
33
The Information Technology Act, 2000, § 87(2)(y), No. 21, Acts of Parliament, 1999 (India),
Preamble.

Respondent has no Legislative Competency to formulate the Rule 4(2) of IT Rules

2021 as it is beyond the scope of the Parent Act and there is excessive delegation in
terms that they have introduced new clauses, classes etc. on which they don’t have
any authority as it is not being mentioned in the Parent statute.
II. RULE 4(2) OF THE IT RULES 2021 IS VIOLATIVE OF ART.14.
¶|19|. It is submitted that the IT Rules are violative of Art. 14. The premise of the
present issue is in three-fold: [A] Rule 4(2) is arbitrary in nature; [B] Rule 4(2) does
not satisfy twin test of reasonable classification and [C] Rule 4(2) suffers from the
vice of vagueness and ambiguity.
A. RULE 4(2) OF IT RULES 2021 IS ARBITRARY IN NATURE.
¶|20|. It is humbly submitted that, Art. 14 guarantees fair treatment against arbitrary
actions of the state.34 The law must not be arbitrary since arbitrariness and equality
are sworn enemies where equality belongs to Rule of Law and arbitrariness belongs
to whims and fancies of the absolute autocracy.35 If a particular Act is arbitrary, it
violates Art. 14 of the Constitution as inequality is always implicit in arbitrariness.36
¶|21|. In the case of Jaisinghani v. Union of India and Ors.,37 the Hon’ble Supreme
Court emphasized that, “the test of arbitrariness and the pitfalls to be avoided in all
State actions to prevent that vice, and emphasized in this context that the lack of
arbitrary authority is the primary component of the rule of law, upon which our
whole constitutional system is built.” Discretion must be kept within very narrow
parameters when given to executive authorities in a society that maintains the rule
of law.38
¶|22|. In the present case, Impugned Rule 4(2) allows for the issuance of orders to
34
AP Seeds Merchants Association v. Union of India, (1970) 2 SCC 71; Samrathmal Keshrimal
Agarwal Bus Operator v. Regional Transport Authority, Indore & Anr., (1972) 4 SCC 738.
35
E.P. Royappa v. State of Tamil Nadu & Anr., (1974) 4 SCC 3.
36
Chiranjit Lal Chaudhary v. Union of India & Ors., AIR 1951 SC 41.
37
Jaisinghani v. Union of India and Ors, (1981) 2 SCC 362: (1967) 2 SCR 703.
38
Dwarkadas Marfatia v. Bombay Port, (1989) 2 SCR 751.

identify the first originator of information without judicial oversight. Thereby, there
is no ‘guarantee against arbitrary State action’ and gives absolute arbitrary power to
the state to act upon its whims and fancies to issue such order against any individual
which might include press media persons, opposite party leaders, army personnel’s
and investigative agencies etc.
¶|23|. Such backdoor interference on the part of the state will have a tyrannical
impact on the roots of the democracy and will disrupt the balance between the state’s
power & fundamental rights granted to the citizens under the Constitution.
¶|24|. Furthermore, it provides no legal grounds for intelligence agencies or
corporations to undertake electronic surveillance; they may even operate at the

request of their political superiors, who may secretly monitor discussions with
dissidents and opposition leaders. Under the rule 4(2) of IT Rules 2021, 39 state’s
power to issue an order for the identification of the first originator is ultimate and
absolute.40
¶|25|. Therefore, it is humbly submitted that the rule 4(2) of IT Rule, 2021 is
arbitrary in nature and imposes unnecessary restrictions on Postgram to curtail

freedom, which has been done in the name of public interest and to safeguard
sovereignty, integrity and security of the nation.
B. RULE 4(2) DOES NOT SATISFY TWIN TEST OF REASONABLE CLASSIFICATION.
¶|26|. Art. 14 of the Constitution guarantees the right to quality before the law and
the equal protection of law to every person.41 It forbids class legislation but it does
not forbid reasonable classification of person, objects and transaction by the
legislature for achieving specific ends.42 “The guarantee of ‘equal protection of
39
2021, Rule 14, cl. 2.
40
VIKRAM RAGHAVAN, COMMUNICATIONS LAW IN INDIA (LEGAL ASPECTS OF TELECOM,
BROADCASTING, AND CABLE SERVICES) 133 (LexisNexis Butterworths, 2007).
41
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 1474 (Lexis Nexis Butterworths et
al eds., 9th ed. 2015).
42
Chiranjit Lal Chowdhuri v. Union of India, (1950) SCR 869.

laws’ requires that, there must equality of treatment of persons who are similarly
situated, without discrimination inter se”.43 It is a corollary that that persons situated
differently cannot be treated alike.44
¶|27|. A classification to be reasonable must pass the twin test laid down by the
Hon’ble Supreme Court of India in the case of State of West Bengal v. Anwar Ali
Sarkar,45 that includes: [1] the Classification must have an Intelligible Differentia
upon which the things or persons are grouped together and others are left out of the
group46 and; [2] the Differentia must have a rational relation with the objective
sought to be achieved.47
1. There is no intelligible differentia.
¶|28|. Intelligible Differentia can be interpreted as a difference which shows the
capability of being understood.48 It differentiates a state or class of persons or objects

from each other on the basis of reasonability.49 It explains all the factors on the basis
of which the classification has been undertook by the authority. 50 The prominent
feature of this doctrine is that classification should not be arbitrary, artificial or
evasive.51
¶|29|. The basis of classification should have some real and substantial distinction
due to which different treatment is operated amongst two or more classes. 52 The
reasonableness of this differentiation or formation of categories depends on the
objective for which that particular classification is made.53 While adjudicating the
43
M.P. JAIN, INDIAN CONSTITUTION LAW (Lexis Nexis Butterworths, 8th ed. 2017).
44
Indra Sawhney v. Union of India, 1992 SCC 217.
45
State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284.
46
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
47
State of Tamil Nadu v. K. Shyam Sunder (2011) 8 SCC 737.
48
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
49
RAMANATHA AIYER, ADVANCED LAW LEXICON 2391 (Lexis Nexis Butterworths Wadhwa eds.,
3rd ed., 2005).
50
State of Bombay v. F.N. Balsara, AIR 1951 SC 318.
51
Roop Chand Adalkha v. Delhi Devlopment Authority, AIR 1989 SC 307.
52
State of Haryana v. Jai Singh, (2003) 9 SCC 114.
53
Javed v. State of Haryana, (2003) 8 SCC 369.

reasonableness of the classification, the court must look into the nature of the
classification, prevailing circumstances, purpose, its extent, involvement public
interest and the dire need of the restriction.54
¶|30|. In the present case, IT Rules, a classification is made between an SMI and an
SSMI. The classification is made on the basis of number of registered users and the
same is decided by the Government of India.55 This classification lacks intelligible
differentia as there is no set guiding formula or principle to calculate the threshold
limit of the users.
¶|31|. It is based on the whims and fancies of the government and can be changed
time and again without any due justification or considerations. Furthermore, these
users are most likely to switch to SMI following the implementation of the
regulation, and the propagation of bogus news will continue, hence, nullifying the
whole premise of rule 4(2).
2. There is no Rational Nexus for object sought to be achieved.
¶|32|. The differentiation must be reasonable i.e., there must be a rational basis with
respect to the object which the authorities have in mind.56 For the justification of the
classification the circumstances must be of the nature that this classification sub-
serves the object sought to be achieved.57 Additionally, the classification shall be
based on the qualities and characteristics of the objective.58
¶|33|. In the present case, no rational nexus is established from this classification to
the object sought to be achieved. Under Art. 14 of the Constitution every

classification made must have justification and be free of arbitrary action.59
54
Chintaman Rao v. State of Madhya Pradesh, (1950) SCR 759.
55
2021, Rule 2 cl. 1(v), 1(w).
56
K. Thimmappa v. Chairman, (2001) 2 SCC 259.
57
Akshay N. Patel v. RBI, (2022) 3 SCC 694.
58
John Vallamattom v. Union of India, AIR 2003 SC 2902.
59
Netai Baig v. State of WB, AIR 2005 SC 1775.

Furthermore, additional due diligence has been grafted for an SSMI,60 to put larger
accountability on it when its platform/services are used for transmission of any
content/data that is ultra vires to security of the state, public order or its sovereignty.
However, only registered user also carry tendency to create havoc or disorder in the
society.
¶|34|. The Rule’s purpose in this instance is unclear, but it will limit peoples’ right
to free expression and privacy. As a result, it is argued that there is no difference, as

identified, and therefore there is no reasonable nexus between the Act’s object and
the rule.
¶|35|. The government has not provided any objective sought to be achieved by this
classification neither it has given a justification for an SSMI to bear any extra burden
on itself in comparison to an SMI which is clearly, on the face of it, discriminatory
in nature. An SMI holds equal importance as SSMI and is equally capable of
spreading fake news, therefore, the classification between the two is unreasonable
and is violative of Art. 14 of the Constitution.
C. RULE 4(2) OF THE IT RULES 2021 SUFFERS FROM THE VICE OF VAGUENESS AND
AMBIGUITY.
¶|36|. In the case of Kartar Singh v. State of Punjab,61 the Hon’ble Supreme Court
held that, the fundamental tenet of legal jurisprudence is that if a law’s prohibitions
are not specified, it is invalid due to vagueness. Multiple key values are violated by
vague legislation.62 It is demanded or stressed that laws should provide a fair
opportunity for a person of average intellect to know what is banned so that he can
behave properly.63 By not giving the innocent a fair notice, vague laws may trap
them.64
60
2021, Rule 4.
61
Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
62
Shrinivasa Rao v. J. Veeraiah, AIR 1993 SC 929.
63
R.L. Bansal v. Union of India, AIR 1993 SC 978.
64
Sanchit Bansal v. Joint Admission Board, (2011) 15 SCR 1057.

¶|37|. Similarly, in the case of Hiralal Ratanlal v. State of U.P.,65 The Hon’ble
Supreme Court held that, laws must be explicit and clear. A law is void if it is
irrational, ambiguous, or fails to sufficiently inform a victim of the crime of what is
prohibited.66 Consequently, it is against Art. 14.67
¶|38|. In the present case, second proviso to Rule 4(2) states that an order cannot be
passed if there are ‘other less intrusive means’ effective in identifying the originator
of the information.68 In this regard, the government has not defined the meaning of
‘other less intrusive means’. The phrase is vague in nature and is left at the discretion
of the government to interpret the same as per their whims and fancies.
¶|39|. In addition to this, the said rule is so vaguely worded that it is difficult to
gather precisely what the social media intermediary will have to do in order to
identify the first originator of information. In the case of Shreya Singhal v. Union of
India,69 the Hon’ble Supreme Court held that, “what may be offensive to one may
not be offensive to another and what may cause annoyance or inconvenience to one
may not cause annoyance or inconvenience to another.”
¶|40|. In the present case, proviso 1 of Rule 4(2) of IT Rules,70 2021 says, an order
shall only be passed for the purposes of prevention, detection, investigation,

prosecution or punishment of an offence related to the sovereignty and integrity of
India, the security of the State, friendly relations with foreign States, or public order,
or of incitement to an offence relating to the above or in relation with rape, sexually
explicit material or child sexual abuse material, punishable with imprisonment for a
term of not less than five years.
¶|41|. In this regard, terms like “public order”, “sexually explicit material” and,
65
Hiralal Rattanlal v. State of U.P., (1973) 1 SCC 216.
66
Civil Service Unions v. Minister, (1983) 3 All ER 935.
67
Om Kumar v. Union of India, (2001) 2 SCC 386.
68
2021, Rule 4 cl. 2 Proviso.
69
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
70

“child sexual material” are relatively broad in operation and can give rise to many
demands. Moreover, Applications like Postgram which are end to end encrypted,
how their messages or voice calls will be intercepted or disclosed, nothing in this
regard is specified, will it be at expense of the privacy of individual. Hence, they are
left in ambiguity and therefore, the said rule is unreasonable and violative of Art.
14.
III. THE RULE 4(2) OF IT RULES 2021 IS VIOLATIVE OF ART. 19(1)(A).
¶|42|. It is humbly submitted before the Hon’ble Supreme Court of India that IT
Rules 2021 is violative of Art. 19(1)(a)71 as Freedom of Speech and Expression is

indispensable in a democracy.72 However, this freedom guaranteed is not absolute
and is subject to restrictions stated in Art. 19(2).73 Pertinently, the restrictions
imposed under Art. 19(2) should be reasonable in nature.74
¶|43|. In the case of Romesh Thapper v. State of Madras,75 the Hon’ble Supreme
Court observed that all democratic organizations were built on the principle of free
speech. Additionally, it was determined that very strict restrictions control the
legality of legislative abridgment of the right to free expression.76
¶|44|. Ordinarily, any abridgement of free speech by means of censorship must be
compatible with one or more of the grounds provided for under Art. 19(2).77
Similarly, in the case of Express Newspapers (Private) Ltd. v. Union of India,78 the
Hon’ble Supreme Court held that limitations on the exercise of the Art. 19(1)(a)
right which do not fall within Art. 19(2) cannot be upheld.
71
INDIA CONST. art. 19, cl.1(a).
72
M.V. PYLEE, FREE SPEECH AND PARLIAMENTARY PRIVILEGES IN INDIA (Pacific Affairs, 11th ed.
1962).
73
INDIA CONST. art. 19, cl.2.
74
Chintaman Rao v. State of Madhya Pradesh, (1950) SCR 759.
75
Romesh Thappar v. State of Madras, 1950 SCR 594.
76
id.
77
Brij Bhushan v. State of Delhi, 1950 SCR 605.
78
Express Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133.

¶|45|. Therefore, it is submitted that the impugned rules fail to qualify the test of
reasonable restriction provided under Art. 19(2) of The Constitution on two grounds:
[A] The rule 4(2) of IT rules 2021 is overbreadth and vague leading to a
disproportionate chilling effect on speech and; [B] The restrictions are not
proportional to the objective sought to be achieved.
A. THE RULE 4(2) OF IT RULES 2021 RESULTS IN CHILLING EFFECT ON FREEDOM

OF SPEECH AND EXPRESSION.
¶|46|. It is humbly submitted that Rule 4 (2) violates Art. 19(1)(a) of the Constitution
of India as it will have a chilling effect on freedom of speech and expression.

Chilling effect is stifling legitimate speech through excessively broad laws.79 In Pith
and substance, it is the unwelcome restriction of one’s right to free expression out
of concern for punishment.80
¶|47|. When determining whether a law is constitutional, the court must take into
account both the immediate and inevitable effects of the restriction imposed.81
Therefore, the legislation’s restriction must take the strictest shape conceivable. The
issue of the chilling effect is caused by: [1] Rule 4(2) is Overbreadth in Nature and;
[2] Rule 4(2) suffers from the vice of vagueness and arbitrariness.
1. Rule 4(2) is Overbreadth in Nature.
¶|48|. A restriction on speech is “overbroad” when it restricts both the speech that
the government can legally restrict but also goes on to restrict speech other speech
that is constitutionally protected.82 The provision has the potential of criminalizing
lawful speech, and will lead to self-censorship.83
¶|49|. Therefore, it is humbly submitted that breaking the E2EE would create a fear
in the minds of journalists, civil society organizations, members of ethnic or
79
80
Cushing v. Dupuy [1880] 5 A.C. 409.
81
Marbury v. Madison, [1803] 5 US 1(SC).
82
City of Houston v. Hill, [1987] 482 U.S. 451.
83
New York Times Company v. United States, 403 US 713 (1971).

religious groups, activists, academicians, and artists and they would not be freely
able to express themselves on such platforms.
¶|50|. In the Shreya Singhal Case,84 the Hon’ble Supreme Court distinguished
between discussion, advocacy, and incitement. It held that the first two formed the
heart of constitutionally protected speech while inciteful speech may be legally
restricted.85 Simply put, restrictions on speech that restrict inciteful speech are broad
enough to go on to restrict discussion and advocacy are unconstitutional.
¶|51|. For Instance, the law of defamation includes a criterion known as actual
malice to counteract this chilling effect.86 According to this rule, a speaker’s

statement cannot be deemed defamatory unless it showed actual malice or a reckless
disregard for the truth.87 The reasoning is that, given how much free-flowing
discourse there is in society, some mistakes are going to appear. The legislation
provides that where these slight omissions lack any actual malice, they are immune
from prosecution rather than being aggressively prosecuted and frightening all other
speakers.88
¶|52|. Accordingly, in the Rajagopal case,89 the Hon’ble Supreme Court accepted
the actual malice criterion in civil defamation proceedings, and most recently, the
Madras High Court adopted the criteria in the context of criminal defamation. Not
all fake news is likely to harm someone’s reputation, which is a requirement for
defamation.90
¶|53|. However, the rationale that minor inaccuracies should not lead to punitive
action which has a chilling effect on speech should certainly apply, and any
84
85
id.
86
New York Times Co v. Sullivan, [1964] 376 U.S. 254.
87
St. Amant v.Thompson,[1968] 390 U.S. 727.
88
Manohar Lal Sharma v. Narendra Damodardas Modi, REVIEW PETITION (CRIMINAL) NO.
58 OF 2019 IN WRIT PETITION(CRIMINAL) No.225 of 2018.
89
Rajgopal v. State of Tamil Nadu, (1994) 6 SCC 632.
90
id.

restrictions on fake news should incorporate the actual malice standard.91

¶|54|. Pertinently even in the present case breaking E2EE of all the users to find the
first originator are overboard and imprecise and they intimidate speakers. Creators
of content, journalists, publishers, media organizations, and regular people are
inclined to err on the side of caution and refrain from speaking altogether rather than
take the chance that their communication would be seen as a crime.
¶|55|. Therefore, the rule of actual malice should be incorporated on these platforms
and E2EE should only be broken for such individuals instead of a blanket rule on all
the users which would lead to restriction on their fundamental right to freely express
their opinion and eventually lead to shaking the foundations of democracy.
2. Rule 4(2) suffers from the vice of vagueness and arbitrariness.
¶|56|. It is humbly submitted that Vagueness is characterized on two grounds: first,
the law must provide a man of reasonable intellect with the opportunity to
understand what is banned and what is not; and second, the law must provide precise
norms to prevent arbitrariness and discrimination.92 The concept for vagueness can
be used to invalidate a legislation when both of these components are missing.93
¶|57|. Furthermore, In the present case, second proviso to Rule 4(2) states that an
order cannot be passed if there are ‘other less intrusive means’ effective in
identifying the originator of the information.94 The phrase is vague in nature and is
left at the discretion of the government to interpret the same as per their whims and
fancies.
¶|58|. In addition to this, the said rule is so vaguely worded that it is difficult to
gather precisely what the social media intermediary will have to do in order to
identify the first originator of information. Moreover, Applications like Postgram
91
S.J. Sorabjee, Freedom of the Press, Its Contents and Facets, 13, IIC Quarterly 173, 173-184
(1986).
92
93
Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
94

which are E2EE, how their messages or voice calls will be intercepted or disclosed,
nothing in this regard is specified, will it be at expense of the privacy of individuals.
¶|59|. Hence, they are left in ambiguity and therefore, the said rule is said to be
vague as the terms have not been defined, therefore the interpretation of such terms
is left in the hands of the executive which can be widely misused. Thus, it is causing
a chilling effect on free speech as the impugned rules are overbreadth and vague in
nature resulting in the violation of Art. 19(1)(a).
B. THE RESTRICTIONS ARE NOT PROPORTIONAL TO THE OBJECTIVE SOUGHT TO

BE ACHIEVED.
¶|60|. It is humbly submitted before the Hon’ble Supreme Court that Fake news can
have a variety of negative effects, including greater political polarization, electoral

system damage, and violence.95 However, limiting fake news is problematic from a
constitutional standpoint when considered in the context of India’s free speech legal
framework.96
¶|61|. Petinently, it’s critical to keep in mind that speech cannot be silenced by the
government merely because it is false or inaccurate.97 According to Art. 19(2) of the

Constitution, any restriction must, in brief, (i) demonstrate some real, imminent, and
discernible harm;98 (ii) be justified by the harm;99 (iii) take into account the fake
news medium, timing, and impact;100 (iv) adhere to the actual malice standard101
and; (v) be the least restrictive measure at the government’s disposal.102
¶|62|. If the government attempted to censor fake news, it would probably also
attempt to censor a sizable portion of advocacy and discussion that is protected by
95
CITS, The Danger of fake news in inflaming or supressing Social Conflict,
https://www.cits.ucsb.edu/fake-news/danger-social.
96
97
REPORT OF THE SECOND PRESS COMMISSION, Vol I, 34-35.
98
Bennett Coleman & Company v. Union of India, (1972) 2 SCC 788.
99
Sakal Papers v. Union of India, AIR 1962 SC 305.
100
Indian Express Newspapers Private Ltd. v. Union of India, (1985) 1 SCC 641.
101
Tereminiello v. Chicago, 337 US 1 (1982).
102
Whitney v. California, 247 US 214 (1927).

the constitution.103 At its most blatant, fake news could include satire, parody, and
reports critical of the government.104 More importantly, a ban on fake news would
expose media outlets and journalists to accountability because even one factually
incorrect statement might result in suppression or other negative consequences. 105
¶|63|. In the Alvarez Case,106 the U.S. Supreme Court overturned a law that
penalized people for making fraudulent claims about receiving military honors. The
court stated in its decision to overturn the statute that it was suspicious of the
government’s assertion of broad censorial power to regulate falsehoods, noting that
the very existence of such a power would stifle free speech.107
¶|64|. Consequently, the government does regulate lies in some circumstances, most
notably in those involving perjury, consumer protection, and defamation. Since the
prohibitions on speech are only applicable in situations where they are particularly
likely to cause harm and are only actionable when they do cause harm to identified
individuals, this is acceptable.
¶|65|. It is submitted that in a similar vein, India already has a plethora of antiquated
laws that can be applied to censor and criminalize speech that incites violence and
is capable of doing so.108 Regulating fake news raises the prospect of a government
truth, which any democracy should be wary of as it lacks this direct link to genuine
threats.
¶|66|. Furthermore, the protection of the data of Indian individuals will be
insufficient if the fundamental right to free speech and expression is restricted by

technology-based regulations. The social media intermediary is given the authority
to use technology-based measures by § 4(4),109 of the Rules, which includes the use
103
Ramlila Maidan Incident v. Home Secretary, (2012) 5 SCC 1.
104
Subramanium Swamy v. Union of India, (2016) 7 SCC 221.
105
Keshab Sarkar v. The State of Tripura, (2018) 3 SCC 780.
106
United States v. Alvarez, [2007] 567 US 709 (SC).
107
id.
108
Joseph Shine v. Union of India, 2018 AIR SC 1676.
109
2021, Rule 4 cl. 4.

of artificial intelligence tools. As has been observed over time, artificial intelligence
is not perfect because it depends on technology to address human-related issues.
¶|67|. The notion that such technology is biased is untrue as well because humans
who must develop these technologies in order for them to function are biased
individuals themselves, and such biases in coding further to a lack of accountability
and transparency. It can be concluded that these rules empower Artificial
intelligence to regulate the fundamental right of free speech and expression, which
is very dangerous.
¶|68|. The Hon’ble Supreme Court in the case of Anuradha Bhasin v. Union of
India,110 declared the freedom to access the internet to be a fundamental right. The
adoption of these regulations, which impose various limitations on the online
material, can also be seen as a breach of the right to access the full internet, the scope
and character of which are still developing.111 Furthermore, in the case of Faheema
Shirin R.K. v. State of Kerala,112 the Kerala High Court was the first to declare this
right to be a basic right under Art. 19 of the Constitution.
¶|69|. Therefore, it may well be within the State’s authority to impose limitations on
a citizen’s ability to conduct business in the interest of the public at large, but it is
not within the State’s purview to accomplish this goal by directly and immediately
restricting any other freedom of that citizen guaranteed by the Constitution and
which is not amenable to abridgment on the same grounds as are specified in clause
(6) of Art. 19.113 Therefore, the freedom of expression cannot be restricted in order
to impose limitations on a citizen’s commercial activities.114
¶|70|. In light of all the aforesaid submissions, it is henceforth submitted that the
4(2) of the IT Rules 2021 infringes upon the right to free speech and expression and
that the restrictions imposed do not fall under the various exceptions given under
110
Anuradha Bhasin. v. Union of India, (2020) 3 SCC 637.
111
id.
112
Faheema Shirin R.K. v. State of Kerala, 2019 SCC OnLine Ker 2976.
113
INDIA CONST. art. 19, cl.6.
114
New York Times v. Sullivan, 376 US 254 (1964).

Art. 19(2).
IV. THE RULE 4(2) OF IT RULES 2021 IS VIOLATIVE OF ART. 19(1)(G).
¶|71|. Art. 19(1)(g) of the Constitution provides natural and inalienable right to
freedom to carry any trade, occupation, profession or business to all.115 However,

this freedom is also not absolute and is subject to reasonable restrictions under Art.
19(6).116
¶|72|. Pertinently, any kind of restriction imposed upon the citizen by the state must
be reasonable and should not be arbitrary or excessive in nature. The court must
consider the nature of the right infringed, the circumstances of the case, purpose,
extent and the urgency of the restriction, while adjudging the test of reasonableness.
The premise of the submission is two-fold: [A] Rule 4(2) is unreasonable and
arbitrary and; [B] Rule 4(2) is not in the interest of the general public.
A. RULE 4(2) IS UNREASONABLE AND ARBITRARY.
¶|73|. The right to freedom of trade and commerce guaranteed under the Art. 19
(1)(g) is not an absolute right and is subject to reasonable restrictions. 117 For any
restriction to qualify as a reasonable restriction they need to qualify the test of
proportionality.118 In the case of Modern Dental College v. State of Madhya
Pradesh,119 the Hon’ble Supreme Court held that the restriction imposed under Art.
19(6) should be balanced with freedom under Art. 19(1)(g), and such restrictions
should be analyzed through the doctrine of proportionality.
¶|74|. It laid down a four-fold test of proportionality: first, the limitation imposed
should be designated for proper purpose; second, the measures taken to give effect
to such restriction are rationally connected to fulfillment of the purpose; third, the
115
INDIA CONST. Art. 19(1)(g).
116
Ramlila Maidan Incident v. Home Secretary, (2012) 5 SCC 1.
117
Chintaman Rao v. State of MP, (1950) SCR 759.
118
T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors., (2002) 8 SCC 481.
119
Modern Dental College v. State of Madhya Pradesh, AIR 2016 SC 2601.

measure taken was necessary and there is no other alternative to achieve the same
purpose with lesser degree of restriction; and fourth, balance should be maintained
between purpose to be achieved and restriction on constitutional rights.
¶|75|. In the present case the four-fold test has not been fulfilled as according to the
First test it is being done for a proper purpose in this case the purpose they want to
achieve by implementing Rule 4(2), of the IT Rules 2021 is to break the E2EE that
is provided on the platform of Postgram limited for the purpose of tracking and
stopping the spread of fake news but to achieve such purpose they are undermining
the right of privacy and free speech of all the individuals.120
¶|76|. It considers every citizen as a possible criminal and gathers identification
information without having justified belief and judicial finding. 121 Therefore,
violating their freedom on no proper, rationale and reasonable grounds.
¶|77|. The second test talks about the measures taken to give effect to such
restrictions are rationally connected to the fulfillment of achieving the same purpose,
in the present case the measures taken are extreme as it is compromising the right of
free speech and privacy of all the users just to curb the spread of fake news.
¶|78|. The third test talks about the measure taken as necessary and there is no other
alternative to achieve the same purpose with lesser degree of restriction; in the
present case there exists a clear alternative, which imposes a lesser restriction over
the citizens.
¶|79|. The adoption of less intrusive procedures, as opposed to the required
implementation of Rule 4(2),122 can achieve this legitimate goal. It is imperative to

note that breaking E2EE is not the only technique to identify the message’s original
120
Simerpreet Kaur, Unpacking IT Rules: Threat to Digital Rights, 2 DME Journal of Law 27
(2021).
121
Shipra Tiwari, Information Technology Rules 2021: Are We Heading towards a Draconian
Rule?, 8 RGNUL Fin. & Mercantile L. Rev. 247 (2021).
122
2021, Rule 4 cl. 2.

sender when discussing the “least restrictive option.”123 Less restricted methods are
available, and the Central Government itself has suggested them.124
¶|80|. Consequently, the fourth test states that balance should be maintained
between purpose to be achieved and restriction on constitutional right, in the present

case there is no balance achieved as the step taken by the government exceeds the
power provided to them for the fulfillment of the purpose of reducing spread of fake
news.125 Justice D.Y Chandrachud has stated in the Aadhar Case that,126 “we cannot
permit constitutional safeguards to be impacted by the vicissitudes of technology.”
¶|81|. It takes more than the existence of a justifiable goal to uphold the legality of
a law; it must also adhere to the other proportionality requirements outlined in

Puttaswamy Judgement.127 Wherefore in the light of the aforesaid submissions, the
four-fold test is not satisfied and therefore the restrictions are not reasonable to the
objective sought to be achieved.
B. RULE 4(2) IS NOT IN THE INTEREST OF THE GENERAL PUBLIC.
¶|82|. The term ‘In the interest of General Public’ under Art. 19(6) refers to the
general welfare of the people that guarantees protection.128 These rights are not
absolute and can reasonably be restricted to create a balance between individual’s
right to claim fundamental rights and societal limitation upon that fundamental
right.129
¶|83|. In the case of Municipal Corporation of Ahmedabad v. Jan Mohammed
123
Tabrez Ahmed, Information Technology Laws: Mapping the Evolution and Impact of Social
Media Regulation in India, 4 DESIDOC Journal of Library & Information Technology 286 (2021).
124
Maharshi Thakkar, The Concept of Originator in Terms of Information Technology Rules 2021
and Its Implications on the Freedom of Trade, 4 Issue 3 Int’l J.L. Mgmt. & Human. 6113 (2021).
125
Rahul Kumar, New IT Rules, 2021 in India Privacy vs Public Safety, 5 Int’l J.L. Mgmt. &
Human. 460 (2022).
126
K.S. Puttaswamy (Aadhar-5J.) v. Union of India, (2015) 10 SCC 92.
127
K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161.
128
BRYAN A. GARNER, BLACK’S LAW DICTIONARY, 791 (9th ed. 2009).
129
Municipal Corporation of Ahmedabad v. Jan Mohammed Usman, AIR 1986 SC 1205.

Usman,130 the Hon’ble Supreme Court observed that the phrase “in the interest of
the general public” has a broad meaning that encompasses public order, public
health, public security, morals, communal welfare, and the things that are stated in
parts IV and IV-A of the Constitution.
¶|84|. Notably, in the present case, breaking the E2EE would lead to loss in the
business of SSMI as journalists would be at risk of retaliation for investigating issues

that may be unpopular.131 Secondly, civil or political activists could be at risk of
retaliation for discussing certain rights and criticizing or advocating for politicians
or policies.132 Lastly, even the clients and attorneys will be reluctant to share private
information on these social media platforms like WhatsApp.133
¶|85|. This would lead to reduction in the number of users on SSMI and making that
intermediary SMI.134 Furthermore, leading to not having the burden of complying

with rule 4(2) and therefore the purpose of controlling the fake news would not be
achieved. Moreover, it would lead to reduction in the business of such platforms
therefore impacting the economy of the country without achieving the objective.
¶|86|. In light of all the aforesaid submissions, it is henceforth submitted that the
4(2) of the IT Rules 2021 infringes upon the right to free trade and occupation and
that the restrictions imposed do not fall under the various exceptions given under
Art. 19(6).
V. RULE 4(2) OF IT RULES 2021 IS VIOLATIVE OF ART. 21.
130
id.
131
Aman Abhishek, The State Deputizing Citizens to Discipline Digital News Media: The Case of
the IT Rules 2021 in India, Digital
Journalism, DOI: https://doi.org/10.080/21670811.2022.213413.
132
Ashit Kumar, Reading Regulation as a Prohibition: A Critical Review of the New IT Rules
2021 in Relation to Social Media Networks and Messaging Applications, 7 Eur. Data Prot. L. Rev.
450 (2021).
133
Rahul Kumar, New IT Rules, 2021 in India Privacy vs Public Safety, 5 Int’l J.L. Mgmt. &
Human. 460 (2022).
134
Anandini Saha, Construction of Hierarchies: A Critical Analysis of the Information Technology
Rules, 2021, 5 Indian Politics & Law Review 282 (2021).

¶|87|. In the case of K.S. Puttaswamy v. Union of India,135 the nine-judge bench of
the Hon’ble Supreme Court held that, “the Right to Privacy is a constitutionally
protected right in India. The Court reasoned that privacy is an incident of
fundamental freedom or liberty guaranteed under Art. 21.” Further, in the case of
Ram Jethmalani v. Union of India,136 it was held that, “right to privacy also requires
the state to not make any private information public about an individual which would
violate his privacy.”
¶|88|. In the present case Under Rule 4(2), the state can issue order for identification
of first originator of information. This requirement forces Intermediaries to break
end-to-end encryption on its messaging service and the privacy principles
underlying it.137 Thus, infringing the fundamental right to privacy and free speech
of millions of citizens using that intermediary to communicate privately and
securely.138 This promotes the arbitrary action of the government. It is violative of
the law laid down in the supra judgement and goes against the principles of
proportionality, necessity and minimization.139
¶|89|. Moreover, in the case of K.S. Puttaswamy & Anr. v. Union of India & Ors.,140
the Hon’ble Supreme Court held that, to justify an intrusion into the fundamental
right of privacy, the following four requirements must be satisfied: “(i) Legality,
which postulates the existence of valid law; (ii) Necessity, defined in terms of a
legitimate State aim; and (iii) Proportionality, which ensures a rational nexus
between the objects and the means adopted to achieve them.
A. RULE 4(2) SUFFERS FROM THE VICE OF ILLEGALITY.
135
136
Ram Jethmalani & Ors. v. Union of India, (2011) 8 SCC 1.
137
Aditi Singh and Ujjwal Agarwal, Privacy, National Security, and Government Interest: The
many facets of End-to-End Encryption in India, 8 CMET 46 (2021).
138
WhatsApp, About end-to end encryption, FAQ WHATSAPP,
https://faq.whatsapp.com/820124435853543/.
139
140

¶|90|. A combined reading of § 79(2), read with § 89(2) (zg),141 of the IT Act
2000,142 makes it crystal clear that the power of the MeitY is limited to prescribing
guidelines for observation of due diligence by the Intermediaries while discharging
its duties under the IT Act.
¶|91|. Furthermore, the messaging services must technically change their platform
in order to either remove end-to-end encryption or add extra metadata to every

communication in a way that compromises the security and privacy that end-to-end
encryption ensures.143
¶|92|. However, the executive through a subordinate law may only promulgate rules
that are consistent with the Parent Act and within the confines of the legislative
policy enunciated by the central government.144 Nothing in § 79 of the IT Act of
2000 shows that the legislature wanted to give MeitY the authority to compel service
provider alterations to their technical design or to jeopardise user privacy.145
B. RULE 4(2) DOES NOT HAVE A LEGITIMATE STATE AIM.
¶|93|. As per third proviso to Rule 4(2) of IT Rules, 2021, an order to identify the
first originator of a message can be passed by a competent authority. However, the

order passed should be for one or more legitimate state aims or is necessary in a
democratic society to achieve such aim.
¶|94|. In this instance, Rule 4(2) results in predictability in the unique setting of
covert surveillance methods, such as the interception of communications. This does

not imply that a person should be able to anticipate when the police are going to
eavesdrop on his communications and adjust his behavior accordingly.
141
The Information Technology Act, 2000, § 79(2), 87(2)(zg), No. 21, Acts of Parliament, 1999
(India).
142
The Information Technology Act, 2000, § 79, No. 21, Acts of Parliament, 1999 (India).
143
Urs Gasser, Don’t Panic. Making Progress on the “Going Dark”, The Berkman Klein Center
for Internet & Society at Harvard University, (1 February 2016)
https://cyber.harvard.edu/publications/2016/Cybersecurity/Dont_Panic.
144
Darshan Lal Mehra and Others v. Union of India and Others, 1992 AIR SC 1848.
145
Abhishek Bhardwaj, New IT Rules, 2021 in India Privacy v. Public Safety, 4 INT. J.L. MGMT.
& HUMAN. 4640 (2021).

¶|95|. Having autonomy and control over our lives, which are essential elements of
freedom in a democracy, would be impossible if ongoing surveillance continued. A

democratic society can never have the goal of monitoring people’s private lives in
this way.146
C. RULE 4(2) IS DISPROPORTIONATE IN NATURE.
¶|96|. In the case of Kerala State Beverages (M&M) Corp. Ltd. v. P.P. Suresh,147
the Hon’ble Supreme Court held that to be proportional, infringement of

fundamental rights should be “be through the least restrictive alternatives.” In the
present case, the objective of determining the original source of the material calls
for disabling end-to-end encryption in its entirety and endangering the privacy of
millions of individuals.
¶|97|. The security of end-to-end encryption used by an intermediary puts the
privacy of all logged-in users at risk.148 The result will be the public revelation of
people’s personal information which will lead to mass surveillance. When mass
surveillance in the shadows fairly infringes on people’s privacy, the minimization
principle is broken.149 The rule gives the federal and state governments the authority
to intercept messages in the event of a crisis or in the interest of public safety without
specifically defining the guidelines that must be followed.
¶|98|. Additionally, it was stated in the 2015 Report by UN Special Rapporteur
David Kaye that “encryption breaking technologies meant to give access to law
enforcement authorities might also be utilized by criminals.”150 Therefore, the state’s
action does not ensure a rational nexus between the objects and the means adopted
to achieve them, leading to an imbalance between the two. Hence, the rule is
146
Rajiv Agarwal v. Union of India & Anr., W.P.(C) 7978/2020.
147
Kerala State Beverages (M&M) Corp. Ltd. v. P.P. Suresh, (2019) 9 SCC 710.
148
WhatsApp, About end-to end encryption, FAQ WHATSAPP,
https://faq.whatsapp.com/820124435853543/.
149
Andy Greenberg, Hacker Lexicon: What is End-to-End Encryption?, Wired, (25 November
2014) http://www.wired.com/2014/11/hacker-lexicon-end-to-end-encryption/.
150
David Kaye, Report of the Special Rapporteur on the Promotion and Protection of the Right to
Freedom of Opinion and Expression, A/HRC/29/32 (2015).

disproportionate under Art. 21 of the Constitution.

PRAYER
Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsel on behalf of the Petitioner humbly prays before this
Hon’ble Court to adjudge and declare that:
1. Ministry of Electronics and Information Technology does not have legislative
competency to formulate the Information Technology (Intermediary Guidelines
and Digital Media Ethics Code) Rules, 2021.
2. The Rule 4(2) of IT Rules 2021 is violative of Art. 14.
3. The Rule 4(2) of IT Rules 2021 is violative of Art. 19(1)(a).
4. The Rule 4(2) of IT Rules 2021 is violative of Art. 19(1)(g).
5. The Rule 4(2) of IT Rules 2021 is violative of Art. 21.
and/or
Pass any other order, direction or relief that it may deem fit in the interest of
justice, equity, fairness and good conscience.
For this act of kindness of your lordship, the Petitioner shall duty bound forever
pray.
Place: S/d-
Date: COUNSELS for PETITIONER
-MEMORANDUM for PETITIONER- PAGE | XIX [PRAYER]

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32 KLA NATIONAL MOOT COURT COMPETITION, 2023

TEAM CODE – T-Al (P)

32ND ALL INDIA NATIONAL MOOT COURT (THIRD VIRTUAL)

BEFORE THE HON’BLE SUPREME COURT OF UNION OF INDIA

-IN THE MATTER OF-

MEMORANDUM ON BEHALF OF THE PETITIONER

INDEX OF AUTHORITIES ................................................................................III

TABLE OF ABBREVIATION .......................................................................... XII

STATEMENT OF JURISDICTION ................................................................ XIII

STATEMENT OF FACTS ................................................................................ XIV

ISSUES RAISED ................................................................................................ XVI

SUMMARY OF ARGUMENTS ..................................................................... XVII

I. MINISTRY OF ELECTRONICS AND INFORMATION TECHNOLOGY DOES NOT

HAVE LEGISLATIVE COMPETENCY TO FORMULATE RULE 4(2) OF THE

INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL

V. RULE 4(2) OF THE IT RULES 2021 IS VIOLATIVE OF ART.21. ............XVIII

ARGUMENTS ADVANCED ................................................................................. 1

I. MINISTRY OF ELECTRONICS AND INFORMATION TECHNOLOGY DOES NOT

HAVE LEGISLATIVE COMPETENCY TO FORMULATE RULE 4(2) OF THE

INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL

A. RULE 4(2) OF IT RULES 2021 FAILS TO CONFORM TO THE SUBSTANTIVE

B. THE EXECUTIVE HAS PERFORMED AN ESSENTIAL LEGISLATIVE FUNCTION

-MEMORANDUM for PETITIONER- PAGE | I [TABLE OF CONTENTS]

II. RULE 4(2) OF THE IT RULES 2021 IS VIOLATIVE OF ART.14. .................... 6

A. RULE 4(2) OF IT RULES 2021 IS ARBITRARY IN NATURE. ........................... 6

B. RULE 4(2) DOES NOT SATISFY TWIN TEST OF REASONABLE CLASSIFICATION.

1. There is no intelligible differentia. ............................................................ 8

2. There is no Rational Nexus for object sought to be achieved. .................. 9

A. THE RULE 4(2) OF IT RULES 2021 RESULTS IN CHILLING EFFECT ON

FREEDOM OF SPEECH AND EXPRESSION. ............................................................ 13

1. Rule 4(2) is Overbreadth in Nature. ........................................................ 13

B. THE RESTRICTIONS ARE NOT PROPORTIONAL TO THE OBJECTIVE SOUGHT TO

A. RULE 4(2) IS UNREASONABLE AND ARBITRARY. ...................................... 19

B. RULE 4(2) IS NOT IN THE INTEREST OF THE GENERAL PUBLIC. .................. 21

V. RULE 4(2) OF IT RULES 2021 IS VIOLATIVE OF ART. 21. ......................... 22

A. RULE 4(2) SUFFERS FROM THE VICE OF ILLEGALITY. ............................... 23

B. RULE 4(2) DOES NOT HAVE A LEGITIMATE STATE AIM. ............................ 24

C. RULE 4(2) IS DISPROPORTIONATE IN NATURE........................................... 25

PRAYER ............................................................................................................. XIX

-MEMORANDUM for PETITIONER- PAGE | II [TABLE OF CONTENTS]

INDIAN CASES PAGE NO.

AIIMS Student Union v. AIIMS, (2002) 1 SCC 428 11

Asha Ranjan v. State of Bihar, (2017) 4 SCC 397 20

Ashok Kumar Lingala v. State of Karnataka, (2012) 1 SCC 321 18

Ashok Kumar Thakur v. Union of India, (2007) 4 SCC 361 11

Asif Hameed v. State of Jammu & Kashmir, AIR 1989 SC 25

B. R. Kapur v. State of Tamil Nadu, AIR 2001 SC 3435 26

Balchandra L Jarkiholi v. B.S.Yeddyurappa & Ors., (2011) 7 17, 18

Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 26

Bhagat Ram v. State of HP, AIR 1983 SC 454 8

Canara Bank v. Shri Debasis Dass, (2003) 4 SCC 557 18, 19

Canera Bank v. V.K. Awasthy, (2005) 6 SCC 321 18

Charan Lal Sahu v. Union of India, AIR 1990 SC 1480 18

Chiranjit Lal Chowdhuri v. Union of India, (1950) SCR 869 5, 25

Deepak Sibal v. Punjab University, (1989) 2 SCC 145 6

Appeal No. 3123 of 2020

Express Newspapers Pvt. Ltd. and Ors. v. Union of India Ors., 14

AIR 1986 SC 872