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TEAM CODE: U

32nd ALL INDIA MOOT COURT (3rd VIRTUAL) COMPETITION

2023

IN THE HON’BLE SUPREME COURT OF INDIA

Filed under Article 32 of the Constitution of India

W.P. No. / 2023

IN THE MATTERS OF:

POSTGRAM LIMITED ........................................................................ ..Petitioner

versus

UNION OF INDIA…………………….………………………………Respondent

As Submitted to the Chief Justice & other Companion Judges of the Hon’ble Supreme Court of
India.

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TABLE OF CONTENTS

INDEX OF AUTHORITIES .................................................................................. .4

STATEMENT OF JURISDICTION.......................................................................6

STATEMENT OF FACTS………………………………………………………..7

QUESTIONS PRESENTED. ................................................................................ ..8

SUMMARY OF PLEADINGS…….................................................................... ...9

PLEADINGS AND AUTHORITIES……………………………………………10

I. WHETHER THE WRIT OF MANDAMUS IS MAINTAINABLE

BEFORE THE SUPREME
COURT?..................................................................10

A. No violation of fundamental rights and absence of locus standi……..10

i. Reasonable restrictions ......................................................................... 10

B. Rule of exhaustion of alternative remedies……………………………12

ii. Remedy available under Article 226 ..................................................... 12

C. Nature of case does not permit to do so ………………………………..13

II. WHETHER RULE 4(2) OF INFORMATION TECHNOLOGY RULES,

2021 IS UNCONSTITUTIONAL?..............................................................15

A. Rationale and justification for enactment of Rule 4(2)……………...…15

i. Recommendations from the Rajya Sabha.............................................. 15

ii. Need to curb rising public disorder ................................................ 16

iii. Other significant reasons ............................................................... 16

B. Rulemaking power of the Central Government……………………….17

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C. Procedure Established by Law. ............................................................ 18

D. No violation of fundamental rights ...................................................... 19

i. Does not suffer from manifest arbitrariness ......................................... 20

ii. It is a reasonable restriction ........................................................... 21

iii. Satisfies the three-test set forth for violation of right to privacy .... 22

E. International Precedence ...................................................................... 23

III. WHETHER THE IMPOSITION OF CRIMINAL LIABILITY FOR NON

COMPILANCE WITH RULE 4(2) IS UNCONSTITUTIONAL?..............24

A. Consistent with the parent statute…………………………………..….24

i. Recommendations from the Rajya Sabha.............................................. 24

ii. Need to curb rising public disorder ................................................ 24

iii. Other significant reasons ............................................................... 24

B. Involvement of Alter Ego and Mens Rea………………………...……25

C. Need for lifting of Corporate Veil….................................................... 26

i. Against public policy ............................................................................. 27

ii. Against welfare legislation .............................................................. 28

PRAYER FOR RELIEF……………………………………….……………...…30

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TABLE OF ABBREVIATIONS

TERMS ABBREVIATIONS
Hon’ble Honourable
WP Writ Petition
CBI Cental Bureau Intelligence
SCC Supreme Court Compedenium
AIR All India Reporter
SC Supreme Court
TR Trade Repository
Ker Kerala
All ER All England Law Reports
SCR Supreme Court Reports
IT Rules Information Technology (Intermediary
Guidelines and Digital Media Ethics
Code) Rules, 2021
IT Act Information Technology Act, 2000
CGST Central Goods and Service Tax
HC High Court
CSAM Child Sexual Abuse Material
LEA Law Enforcement Agency
Sec. Section
SSMI Significant Social Media Intermediary

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INDEX OF AUTHORITIES

Supreme Court Cases

Amitbhai Anilchandra Shah v. CBI, (2013) 6 SCC 348…………………..…….16
Anuradha Bhasin v. Union of India, 2020 3 SCC 637……………………….….23
Asstt. Commr. V. Velliappa Textiles Ltd. (2003) 11 SCC 40…………………..27
Barium Chemicals Ltd. v. Company Law Board AIR 1967 SC 295…………....12
Bhagwan Singh v. State of UP, 1994 Supp (1) SCC 613…………………...…..16
Chintaman Rao v, State of MP, AIR 1951 38 SC 118…………………………..24
Daljit Singh Dalal v. Union of India, (199i) 4 SCC 62……………………...….15
Devendra Dwivedi Vs. Union Of India & Ors. 2021 (1) TR 3703……………...16
Facebook Inc v. Union of India, 2019 SC 1717……………………………...….18
Gobind V. State of M.P, 1975 2 SCC 148………………………………………21
GS Sodhi v. Union of India, (1991) 2 SCC 381…………………………...…….16
Gulabdas v. Assistant Collector, Customs, AIR 1957 SC 733, 737………….....16
Hindustan Construction Company v. Union of India, 2019 SC 1520…………...16
Iridium India Telecom Ltd vs Motorola Incorporated (2011) 1 SCC 74…….….27
Janta Dal v. H.S.Chowdhary (1992) 4 SCC 305………………………...………13
Jyoti Limited v. Kanwaljit Kaur Bhasin, 1987 32 DLT 198……........……….…30
K.K. Kochunni v. State of Madras, AIR 1959 SCC 725………………..………13
K.S. Puttaswamy and Anr. vs. Union of India ((2017) 10 SCC 1)…………...…14
Kailash Nath & Anr. v. State of U.P. & Ors., AIR 1957 SC 790…………….…15
Kailash Nath v. State of U.P., AIR 1957 SC 79……………………………...….16
Kanubhai Brahmbhatt v State of Gujarat AIR 1987 SC 1159…………………..15
Kerela Union of Working Journalists v. Union of India and Ors. 2021 SC
3372…………………………………………………………………………...…15
Louise Fernandes v. Union of India, (1988) 1 SCC 201………………..……….15
M/s BST Engineering Service v. Union of India, 1990 SCC 77………………...16
Narayanlal Bansilal v. Manak Phiroz Mistry AIR 1961 SC 29……………...….29
National Council for Civil Liberties vs. Union of India and Ors, 2007 SC
2993……………………………………………………………………...………13
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R. Rajagopal and Anr, v. State of Tamil Nadu, 1954 6 SCC 632……………….21
R.C. Cooper V. Union of India AIR 1970 SC 564…………………………..….12
R.M. Muraleedharan v. State of Kerala, 2018 Ker 1438…………………..……16
Satish Chandra v. Registrar of Cooperative Societies, (1994) 4 SCC 332……...15
Savita Kumari v. Union of India and Anr., (1993) 2 SCC 357……………...…..16
Shreya Singhal v. Union of India, 2015 2 SCC 449……………………….……20
Sumedha Nagpal v. State of Delhi, (2000) 9 SCC 745………………...………..15
Sunil Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC 60…….…28
Surendra Prasad Khusgal v. Chairman MMTC, 1994 (1) SCC 87………….…..15
Tejaswini Gaud v. Shekhar Jagdish Prasad, (2019) 7 SCC 2……………….…..16
Tesco Supermarkets Ltd. .v. Nattrass (1971) 2 All E.R. 127……………………28
The Superintendent, Central Prison, Fatehgarh vs Ram Manohar Lohia 1960 AIR
633, 1960 SCR (2) 821……………………………………………………….….23
The Workmen Employed in Associated Rubber Industries Ltd., Bhavnagar v. The
Associated Rubber Industries Ltd., Bhavnagar, A.I.R 1986 S.C 1……………...30

INTERNATIONAL CASES

Tesco Supermarkets Ltd v. Nattrass (1971) 2 All ER 127………………………29

STATUTES
Constitution of India, 1950…………………………………………………...…15
Information Technology Act, 2000……………………………………………...27
Information Technology (Intermediary and Digital Media Ethics) Rules, 2021
General Clauses Act, 1897………………………………………………………17

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STATEMENT OF JURISDICTION

Petitioners have approached the Hon’ble Supreme Court of India under Article 32
of the Constitution of India.

The Respondent humbly submits to the jurisdiction of this Hon'ble Court

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STATEMENT OF FACTS

Background:

Shanthisthan is a state in the Indian Union Postgram, Postgram is the largest

social media platform of Shanthisthan, Population of the State is 5,48,67,345.
Postgram allows the user to create and share the photos, stories, and videos with
the friends and followers. The purpose is notified as “Connect with friends, share
what you're up to, or see what's new from others all over the world. Explore our
community where you can feel free to be yourself and share everything from your
daily moments

Relevant Facts:

On 07/07/2022, Shanthisthan Times published an article titled “Postgram is the

Champion of Fake News”. This article was co-authored by 2 researchers at the
University of Shanthisthan. It stated that false news travels faster as it is shared
more often by users. The study also found that the majority of the fake news that
was spread on Postgram was of political nature. On 02/09/2022, Shanthisthan
published another article accusing Postgram of not taking any steps to observe the
Information Technology (Intermediary Guidelines and Digital Media Ethics
Code) Rules, 2021. This act puts due diligence on significant social media
companies who must enable the identification of the first originator of information
within India on its platform. This may be required by an order of a Court or the
competent authority under the IT Act.

The Final Dispute:

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On 17 -10 -2022 Postgram filed a petition before the Supreme Court 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 violative of Articles 14, 19(1)(a), 19(1)(g), and 21 of the Constitution, ultra vires
the IT Act, and illegal as to end-to-end encrypted messaging services; and (ii)
criminal liability may not be imposed for noncompliance with 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

-The matter is slated to be heard on 8th February, 2023

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QUESTIONS PRESENTED

The respondent very respectfully puts forth to the hon’ble supreme court,
the following queries:

ISSUE I

WHETHER THE WRIT PETITION FILED BY POSTGRAM IS

MAINTAINABLE BEFORE THE SUPREME COURT?

ISSUE II

WHETHER RULE 4(2) OF INFORMATION TECHNOLOGY RULES, 2021 IS

UNCONSTITUTIONAL?

ISSUE III

WHETHER THE IMPOSITION OF CRIMINAL LIABILITY FOR NON-

COMPLIANCE WITH RULE 4(2) OF THE IT RULES IS
UNCONSTITUTIONAL?

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SUMMARY OF PLEADINGS

I. WHETHER THE WRIT OF MANDAMUS IS MAINTAINABLE

BEFORE THE SUPREME COURT?

It is humbly submitted to the Hon’ble Court that the writ petition is not
maintainable as there is (A) No violation of fundamental rights, (B) Doctrine of
exhaustion of alternative remedies was not followed, (C) Nature of case does not
permit to do so. Hence, It is submitted that a Writ Petition under Article 32 shall
not be the appropriate remedy to adjudicate upon disputed questions of facts or the
constitutional validity of legislative enactments. Thereby, the Writ Petition should
not be maintainable.

II. WHETHER RULE 4(2) OF INFORMATION TECHNOLOGY

RULES, 2021 IS UNCONSTITUTIONAL?

The IT Rules, 2021 have been lawfully enacted under the provisions of the
Information Technology Act, 2000, and Rule 4(2) framed thereunder is with an
endeavor to regulate the spread of fake news through intermediary platforms such
as Postgram and identify the originators of the information. It is humbly
submitted to the Hon’ble Supreme Court that Rule 4(2) is not Unconstitutional as
there is (A) Rationale and Justification for Enactment of Rule 4(2). (B) Power
with central government to notify rules. (C) Procedure established by law and
hence is not manifestly arbitrary. (D) No violation of Fundamental rights. (E)
International Precedence on requirement of traceability, and hence it is not the
Rule 4(2) is not constitutional.

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III. WHETHER THE IMPOSITION OF CRIMINAL LIABILITY FOR

NON-COMPLIANCE WITH RULE 4(2) IS

UNCONSTITUTUIONAL?

It is humbly submitted that the imposition of criminal liability is within the tenets
of constitutional framework as firstly it is consistent with parent statute, secondly
there is involvement of Alter Ego and mens rea, and thirdly there is a need for
lifting of corporate veil. Hence, it is most respectfully submitted that the imposition
of criminal liability on non-compliance with Impugned Rule is not unconstitutional
as there is consistency with the parent statute, there is involvement of mens from
the alter ego of the company and lastly based on the threat Postgram poses due to
its non-compliance with the impugned rule requires a strong need for lifting of
corporate veil.

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PLEADINGS AND AUTHORITIES

W.P. No. / 2023

I. WHETHER THE WRIT PETITION IS MAINTAINABLE BEFORE THE

SUPREME COURT?

1. It is humbly submitted to the Hon’ble Court that the writ petition is not

maintainable as there is (A) No violation of fundamental rights, (B) Doctrine of

exhaustion of alternative remedies was not followed, (C) Nature of case does not
permit to do so.

A. NO VIOLATION OF FUNDAMENTAL RIGHTS AND ABSENCE OF

LOCUS STANDI

2. It is respectfully submitted that there is prima facie no violation of fundamental

rights as, it is the citizens alone whom the rights under Article 19 of the Indian
Constitution are secured. An alien or a foreigner has no rights under this Article
because he is not a citizen of India. Juristic persons such as companies or
corporations are not citizens within the meaning of Article 19.1 ‘Citizens’ under
this Article means only natural persons who have the status of citizenship under
the law.

3. In the Bank Nationalization case2 it was held that a shareholder, a depositor or a

director is not entitled to move a petition for infringement of the rights of the
company, unless by the action impugned by him. Thus, it is pertinent to that, the
corporations’ fundamental rights are not infringed by the virtue of non-
availability of these rights.

4. Furthermore, the petitioners lack locus standi in the present case, the court in the

1
Barium Chemicals Ltd. v. Company Law Board AIR 1967 SC 295
2
R.C. Cooper V. Union of India AIR 1970 SC 564;
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case of The Janta Dal v. H.S.Chowdhary the apex court held that, the Locus standi
is mandatory factor to any Litigation, the relevant extract has been highlight
below,

“In paras 60, 61 and 62 of the said judgment, it was pointed out as
follows: (SCC p.334) Be that as it may, it is needless to emphasis that
the requirement of locus standi of a party to a litigation is mandatory,
because the legal capacity of the party to any litigation whether in
private or public action in relation to any specific remedy sought for
has to be primarily ascertained at the threshold.” 3

5. In the present case, from facts we cannot infer that Postgram has been regarded

as a public-spirited body, who files PILs and nor has undertaken an research and
coordinated with any affected parties, but rather prima facie it appears that the
petitioner have approached the hon’ble Supreme Court in an “act of defiance”
and “unfortunate attempt to prevent the rules from coming into force”.

6. The Even in the case of departure from requirement of locus standi, the necessary

condition of violation of fundamental right4 needs to be fulfilled to file a petition

under Article 32.5

7. The Court in multiple reiterations have observed the need for infraction of at least

one of the fundamental rights for an application to be maintainable under Article

32, reliance is placed in the case of National Council for Civil Liberties vs. Union
of India6 for the same. However, in instantaneous writ petition, the fundamental
rights are not violated as,

• Firstly, privacy is not infringed as the Information Technology

(Intermediary Guidelines and Digital Media Ethics Code) Rules,

3
Janta Dal v. H.S.Chowdhary (1992) 4 SCC 305
4
K.K. Kochunni v. State of Madras, AIR 1959 SCC 725
5
INDIA CONST. art.32.
6
2007 SC 2993
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20217 satisfies the three - part test set forth in the case of K.S
Puttuswamy8.

• Secondly. The IT Rules and the Rule 4(2)9 are not met with
legislative incompetence, the rules were notified only after
thorough research and recommendations by the expert
committees and is therefore not manifestly arbitrary. Thereby it
is not violative of Article 14.

• Thirdly, all fundamental rights are subject to reasonable

restrictions that includes in the interest of national security 10,
integrity11 and greater public interest.12

B. RULE OF EXHAUSTION OF ALTERNATIVE REMEDIES

8. It is a settled law that the petitioners should’ve followed the rule of alternative

remedy and approached the high court under Article 22613 before approaching the
Supreme court. The petitioners have failed to observe this doctrine and therefore
the writ petition is not maintainable.

9. The doctrine of exhaustion of alternative remedies is borne out of necessity. In

the wake of mounting piles of arrears and backlogs, the judiciary has categorically
no other option but to exercise its discretion and apply the rule. Thus, the rule is
undisputedly applied wherever, the Court is satisfied that a bare minimum is
available i.e., an alternative remedy that is at least as effective as that under its
jurisdiction.

7
Hereinafter referred to as the “IT Rules”
8
K.S. Puttaswamy and Anr. vs. Union of India ((2017) 10 SCC 1)
9
Hereinafter referred to as “Impugned Rules”
10
INDIA CONST. art. 19(4)
11
INDIA CONST. art. 19(5)
12
INDIA CONST. art. 19(6)
13
INDIA CONST. art.226.

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10. In Satish Chandra v. Registrar of Cooperative Societies 14, the remedy under

Article 226 was specifically stated as the alternative remedy, and the petition
under Article 32 was consequently dismissed. Where the vires of the statute is
capable of being examined by the High Court, the Supreme Court has usually
redirected the petitioner to pursue that course of action, before petitioning under
Article 32.15

11. Moreover, in Kanubhai Brahmbhatt v State of Gujarat16 a division bench of the

Supreme Court observed that a petitioner complaining of infraction of his

Fundamental Right should approach the High Court first rather than the Supreme
Court in the first instance, the reason for such an observation as given was that
there was a huge backlog of cases pending before the Supreme Court.

12. In Siddique Kappan's case,17 the Kerala Union of Working Journalists invoked

Article 32 through a writ petition. The SC, however, has said that the matter
should be transferred to the high court in UP.

C. NATURE OF CASE DOES NOT PERMIT TO DO SO

13. The disposal of cases via Writ Jurisdiction under Article 32 is summary in nature. 18

Thus, the disposal of cases is expected to be expeditious 19 Supreme Court deals

with only substantial questions of law and does not entertain facts.20 Furthermore,
through various judicial interpretations, it has been established that the Supreme
Court should not delve into matters with disputed facts21 or purely factual
questions22 via its Writ Jurisdiction.

14
1994 4 SCC 332.
15
Louise Fernandes v. Union of India, (1988) 1 SCC 201
16
AIR 1987 SC 1159\
17
Kerela Union of Working Journalists v. Union of India and Ors. 2021 SC 3372
18
Sumedha Nagpal v. State of Delhi, (2000) 9 SCC 745
19
Abhe Singh, Efficacy of writ jurisdiction a socio legal critique, Punjab University, (2006).
20
Kailash Nath & Anr. v. State of U.P. & Ors., AIR 1957 SC 790
21
Surendra Prasad Khusgal v. Chairman MMTC, 1994 (1) SCC 87; Daljit Singh Dalal v. Union of
India, (1997) 4 SCC 62
22
Bhagwan Singh v. State of UP, 1994 Supp (1) SCC 613.

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14. Since the facts of the present case as mentioned above are disputed, arriving at a

conclusion as to the veracity of the facts would require intensive discussions, along
with appreciation of evidence. Detailed investigation into evidences 23 and claims
cannot be made via a writ petition.24

15. Doing so would defeat the summary nature of the Writ Jurisdiction of the Hon’ble

Supreme Court of India.25 Where the question of fact involved has no bearing on
the question of enforcement of fundamental right and must require an investigation
into disputed facts and materials, the Supreme Court will not deal with it in an
application under Article 32 of the Constitution.26 The facts of a case at hand need
to be established before an appropriate Authority.27

16. Furthermore, the constitutional validity of legislative enactments cannot be

challenged. In Devendra Dwivedi Vs Union of India,28 the SC dismissed Writ

challenging constitutional validity of various provisions under CGST Act, directed
to pursue the remedies before HC.

17. Hence, It is submitted that a Writ Petition under Article 32 shall not be the

appropriate remedy29 to adjudicate upon disputed questions of facts30 or the

constitutional validity of legislative enactments.31 Thereby, the Writ Petition
should not be maintainable.

II. WHETHER RULE 4(2) OF THE INFORMATION TECHNOLOGY

(INTERMEDIARY GUIDELINES) RULES IS UNCONSTITUTIONAL?

23
Tejaswini Gaud v. Shekhar Jagdish Prasad, (2019) 7 SCC 2
24
Hindustan Construction Company v. Union of India, 2019 SC 1520.
25
Kailash Nath v. State of U.P., AIR 1957 SC 79; Savita Kumari v. Union of India and Anr., (1993) 2
SCC 357
26
Gulabdas v. Assistant Collector, Customs, AIR 1957 SC 733, 737.
27
R.M. Muraleedharan v. State of Kerala, 2018 Ker 1438
28
2021 (1) TR 3703
29
M/s BST Engineering Service v. Union of India, 1990 SCC 77.
30
Amitbhai Anilchandra Shah v. CBI, 2013 6 SCC 348; GS Sodhi v. Union of India, 1991 2 SCC 381.
31
Ibid at 25
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18. The IT Rules, 2021 have been lawfully enacted under the provisions of the

Information Technology Act, 2000,32 and the Impugned Rule framed thereunder is
with an endeavor to regulate the spread of fake news through intermediary
platforms such as Postgram and identify the originators of the information.

19. It is humbly submitted to the Hon’ble Supreme Court that Impugned Rule is not

Unconstitutional as there is (A) Rationale and Justification for Enactment of

Impugned Rule. (B) Power with central government to notify rules. (C) Procedure
established by law and hence is not manifestly arbitrary. (D) No violation of
Fundamental rights. (E) International Precedence on requirement of traceability.

A. RATIONALE AND JUSTIFICATION FOR ENACTMENT OF RULE 4(2)

20. The rules substantially empower the ordinary users of digital platforms to seek

redressal for their grievances and command accountability in case of infringement

of their rights. In particular Impugned Rule was enacted based on these following
noteworthy observations.

i. Recommendation of Rajya Sabha

21. The Ad-hoc committee of the Rajya Sabha laid its report on the 3rd of February

2020, after studying the alarming issue of pornography on social media and its
effect on children and society as a whole and recommended by enabling the
identification of the first originator of such content. One of the Committee’s
recommendations pertains to tracing the first originator and reads as follows:

“Permit breaking of end-to-end encryption and trace distributors of child

pornography: The Committee recommends modifying the IT intermediary
Rules 2011 to include the ability to trace the originator or sender of the

32
Hereinafter referred to as “IT Act”

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message shared on end-to-end encryption platforms in cases where CSAM
has been shared and also come to the attention of the LEAs”.

ii. Need to curb rising public disorder

22. In the case of Facebook Inc vs Union of India,33 the Hon’ble Supreme Court

observed that there are various messages and content spread / shared on social
media, some of which a harmful i.e., they may incite violence, maybe against
sovereignty and integrity of the country, may be used for committing crimes, etc.
In such circumstances, the Court held it imperative that there is a properly framed
regime to find out the persons/institutions/bodies who are the originators of such
content.

23. The Court further noted that “We must also highlight that de-encryption, if

available easily, could defeat the fundamental right of privacy and de-encryption
of messages may be done under special circumstances but it must ensure the
privacy of an individual is not invaded. However, at the same time, the sovereignty
of the State and the dignity and reputation of an individual are required to be
protected. For purposes of detection, prevention, and investigation of certain
criminal activities it may be necessary to obtain such information. De-encryption
and revelation of the identity of the originator may also be necessary in certain
other cases.”

24. Hence the Impugned rule was the need of the hour in the hindsight of rising public

disorder.

iii. Other significant reasons

25. There other reasons for enacting Impugned Rule includes

33
2019 SC 1717
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a. Inherent risk of false news brought in by Significant Social Media
Intermediaries34 through their social media platforms and their
influencing capabilities.

b. Need for behavioural interventions and technological solution to stop

the spread of false news and protection of sovereignty and security of
India.

c. Compelling need to have a framework to deal with messages which

have become viral and have resulted in riots, mob lynching or other
heinous crimes including those concerning dignity of women and
sexual abuse of women

d. Alignment with the requirements of the law enforcement agencies

(LEAs) and other Appropriate Government or their agencies

e. The absolute confidentiality provided by encrypted online

communication platforms makes it harder for the investigative
agencies to engage in real-time surveillance to investigate crimes and
identify wrongdoers. Impugned Rule seeks to address the challenges
faced by these agencies in their investigation.

B. RULE MAKING POWER OF THE CENTRAL GOVERNMENT

26. Section 87 of the IT Act,35 empowers the Central Government to make Rules to

carry out the provisions of the Act. It is through this Section that the Ministry of
IT and Technology has exercised the powers to make the IT Rules, 2021, which
supersedes the Rules made in 2011.

27. The Central Government is empowered u/s 79(2)(c)36 to prescribe guidelines for

the intermediary to observe due diligence while discharging its duties under the

34
Hereinafter referred to as “SSMI”
35
Section 87 of Information Technology Act, 2000
36
Section 79(2)(c) pf Information Technology Act, 2000
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Act and also observes such other Guidelines as the Govt may prescribe on this
behalf. Moreover, the Rules are not new but an amendment to an already existing
Rule, i.e., the IT Rules, 2011, were upheld as constitutionally valid in the Shreya
Singhal case.37

28. Impugned Rule of the IT Rules, 2021 is a mere extension to the IT Act, 2000, and

also an amendment to the IT Rules, 2011. It is enacted u/s 69Aof the IT Act.
Section 69A empowers and delegates to the Central Govt to direct an intermediary
to block access of any information available on its computer resource. 38 Section
69A (2) also empowers the Cent Govt to prescribe “the procedure and safeguards
subject to which blocking for access by the public may be carried out.”39 In the
present case the identification of the first originator is a procedure and a safeguard
after which a blocking order may be passed to disable access to the information.

C. PROCEDURE ESTABLISHED BY LAW

29. It is submitted that Rule 4 of the IT Rules, 2021, relates to additional functions to

be performed by the SSMI. Rule 4 casts certain duties upon the SSMI in addition
to the duties laid down under Rule 3. Under Impugned Rule, the SSMI providing
service primarily in the nature of messaging shall enable the identification of the
first originator of the information on its computer resource only on the following
grounds:

a. Required by a judicial order passed by a court of competent jurisdiction or

an order passed under Section 69 of the Information Technology Rules 2009,
which shall be supported with the copy of such information in electronic
form.40

b. Further, the scope for exercising such power by the court of competent

37
Shreya Singhal v. Union of India, 2015 2 SCC 449
38
Section 69(A) of Information Technology Act, 2000
39
Section 69(A)(2) of Information Technology Act, 2000
40
Rule 4(2) of Information Technology (Intermediary Guidelines and Digital Media Ethics Code)
Rules, 2021
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jurisdiction is strictly limited to the conditions laid down under Impugned
Rule, which are as follows:

i. For the purposes of prevention, detection, investigation, prosecution

or punishment of an offence relating to the sovereignty and integrity
of India, etc

30. Thus, it is pertinent to note that the SSMI are authorized to enable the identification

of the first originator of the information on its computer resource only by a judicial
order. The rule granting powers to the SSMI comes with the set of checks and
balances and hence is a procedure established by law. The purpose behind
Impugned Rule is that by seeking details of the first originator, the Central
Government is enlarging the present scope of rules for effective investigation
purposes only.

It has also been noticed that fake messages have the potential to rupture the
community fabric in no time and often leads to serious public order problems. With
the new amendment, the Central Government is seeking the details of the original
perpetrators behind publication/transmission of fake news. Thus, the Supreme
Court in the 2018, Puttuswamy41 judgement has also rightly observed that the right
to privacy must be considered in the relation to its function in society and be
balanced against other fundamental rights. In a catena of judgements, the Hon’ble
Supreme Court has also held that the right to privacy is not an absolute right,42 and
it can be regulated within the realm of permissible grounds.43 Hence, the above rule
is completely rational and enacted to serve a larger purpose.

D. THE IMPUNGNED RULE DOES NOT VIOLATE FUNDAMENTAL

RIGHTS

41
Supra Note at 7
42
Gobind V. State of M.P, 1975 2 SCC 148
43
R. Rajagopal and Anr, v. State of Tamil Nadu, 1954 6 SCC 632

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31. It is humbly submitted to the Hon’ble Court that the Impugned Rule is in

conformity with the Fundamental Rights such as Right to Equality, Freedom of

Speech and Expression and Privacy enshrined under the Constitution of India. The
Hon’ble Supreme Court has laid down a threefold requirement for State’s
interference with the fundamental rights.

i. Does not suffer from manifest arbitrariness

32. As contented previously, it is a procedure established by law due to which the

enactment of Impugned Rule is not manifestly arbitrary and therefore it is not

violative of the Right to Equality. To determine the test of manifest arbitrariness,
it needs to be decided whether the enactment is drastically unreasonably and/ or
capricious, irrational or without adequate determining principle. 44 The Impugned
Rule is read in its entirety along with its provisos, it can be very easily be
deciphered that much caution has been exercised, at each step, by the central
government starting with the requirement of a court order requiring the
intermediary to share the necessary information, to listing of specific offences in
relation to which an order may be passed, to making sure that no order shall be
passed in cases where other less intrusive means are effective, and most
importantly that the intermediary shall not be required to disclose the contents of
any information related to its other users. Thus, adequate principles have been
determined; the rule is completely rational and enacted to serve a larger purpose.

33. Furthermore, no authority has been empowered (govt, or platform) to take an

arbitrary action. The order for identification of any originator of information on its
computer resource on the basis of this checks and balances:

• Requirement of a Judicial order

• Absence of less intrusive way
• Non - disclosure of contents of any electronic message

44
Union of India v. M/s. Ganpati Dealcom Pvt. Ltd.2022 SC 1064

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34. Therefore, it is clear from above that the executive is not over empowered to take

down content and that only through a court order by the appropriate court with
jurisdiction can the identification of first originator can be enabled. These adequate
checks and balances show that rules are not arbitrary.

i. It is a reasonable restriction

35. The rights guaranteed and Article 19 are not absolute and are subject to the

limitations under Articles 19 (2) and 19 (6). A common thread that runs across all
reasonable restrictions is the public interest and it is beyond doubt that restrictions
may be imposed on freedoms for the interest of the public at large.45 The rules have
clearly been enacted bona fide for the benefit of the public and its intention is to
ensure adequate regulation of digital and intermediary platforms. The rules are in
the public interest to ensure the regulation of unlawful content.

36. The argument that Impugned Rule violates the free speech is not sustainable, it is

submitted that by the government has the reasonable power to restrict exercise free
speech in order to avoid the circumstance of public disorder.

37. In India under Art. 19(2) this wide concept of "public order" is split up under

different heads. It enables the imposition of reasonable restrictions on the exercise

of the right to freedom of speech and expression in the interests of the security of
the State, friendly relations with foreign States, public order, decency or morality,
or in relation to contempt of court, defamation or incitement to an offence. All the
grounds mentioned therein can be brought under the general head "public order"
in its most comprehensive senses.46

38. Therefore, even if the burden is placed on the exercising of free speech, it is done

so as a reasonable restriction under Article 19(2).

45
Anuradha Bhasin v. Union of India, 2020 3 SCC 637
46
The Superintendent, Central Prison, Fatehgarh vs Ram Manohar Lohia 1960 AIR 633, 1960 SCR (2)
821

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39. The phrase "reasonable restriction" connotes that the limitation imposed on a

person in enjoyment of the right should not be arbitrary or of an excessive nature,

beyond what is required in the interests of the public. The word "reasonable"
implies intelligent care and deliberation, that is, the choice of a course which reason
dictates.47

40. The Impugned Rule seeks to safeguard the sovereignty and security of the nation

by placing reasonable restrictions on the above-mentioned Fundamental Rights by

asking the SSMIs to enable traceability of certain content circulated on their
platforms. The procedure prescribed by the Rule seeks to attain the objective of
maintaining public order thereby being a reasonable restriction.

i. Satisfies the three-test set forth for violation of right to privacy

41. It is not violative of the principles laid down in KS Puttuswamy vs Union of India,48

as Impugned Rule satisfies the three-fold Puttuswamy test in order for legislation
to violate the right to privacy, it must fail the following:

42. Legality - The rules have been enacted after the recommendation of Rajya Sabha

and catena of judgments that advised the central government to break end to end
encryption and identify the potential miscreants. Furthermore, the rules have been
enacted under section 87(2), 69A(2) & 79(2) of the IT Act as safeguard and
procedure that is to be followed by the SSMIs. Therefore, the Impugned Rule is a
law that exists and is a mere extension of the IT Act.

43. Necessity - The State has a legitimate claim to trace the originator of the message

only for the purposes of prevention, investigation, punishment, etc. of inter alia an
offence relating to sovereignty, integrity and security of India, public order
incitement to an offence relating to rape, sexually explicit material or child sexual
abuse material punishable with imprisonment for not less than 5 years. It is in

47
Chintaman Rao v, State of MP, AIR 1951 38 SC 118
48
Supra Note at 7

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public interest that who started the mischief leading to such crime must be detected
and punished. In India, cases of mob lynching and riots, etc. occur because of
messages being circulated and recirculated on SSMIs. Hence, the role of who
originated is very important.

44. Proportionality - The cornerstone of this test is whether a lesser effective

alternative remedy exists. As per the Rules, the originator of information can only
be traced in a scenario where other remedies have proven to be ineffective, making
the same a last resort measure. Moreover, such information can only be sought as
per a process sanctioned by the law thereby incorporating sufficient legal
safeguards. Hence, the test of proportionality is also met.

45. The Impugned Rule passes all of the 3 tests prescribed by the judgment of the

Puttuswamy case and does not violate the right to life and personal liberty
prescribed under Article 21.

E. INTERNATIONAL PRECEDENCE

46. In the United States of America (USA), it is mandatory for intermediaries to report

any content that involves child pornography to the National Center for Missing and
Exploited Children under “Reporting requirements of electronic communication
service providers and remote computing service providers”.49 In fact,
intermediaries such as Facebook have acknowledged on affidavit before the
Hon’ble Supreme Court that they are complying with such reporting requirements
in USA.

47. The Network Enforcement Act or Netzwerkdurchsetzungsgesetz is a German law

that was passed in the Bundestag that officially aims to combat fake news, hate
speech and misinformation online. The Act obliges social media platforms with
over 2 million users to remove "clearly illegal" content within 24 hours and all
illegal content within 7 days of it being posted, or face a maximum fine of 50

49
18 U.S. Code § 2258A

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million Euros. The deleted content must be stored for at least 10 weeks afterwards,
and platforms must submit transparency reports on dealing with illegal content
every six months.

48. Throughout 2016, several courts in Brazil passed orders have demanded

temporarily blockage of WhatsApp due to disputes over access to encrypted data.

The most recent of these court orders occurred in October 2016. The company was
asked to produce users’ IDs and the content of conversations. The case in question
was an investigation on criminal organizations.

49. What India is asking for is significantly much less than what some of the other

countries have demanded. Privacy is a fundamental right subject to reasonable

restrictions. Impugned Rule of the Guidelines is an example of such a reasonable
restriction. The objective behind the Impugned Rule of the Intermediary
Guidelines is to protect law and order. All sufficient safeguards have also been
considered as it is clearly stated that it is not any individual who can trace the first
originator of information. However, the same can only be done by a process
sanctioned by law. Additionally, this has also been developed as a last resort
measure, only in scenarios where other remedies have proven to be ineffective.

III. WHETHER THE IMPOSITION OF CRIMINAL LIABILITY FOR NON-

COMPLIANCE WITH RULE 4(2) IS UNCONSTITUTIONAL?

50. It is humbly submitted that the imposition of criminal liability is within the tenets

of constitutional framework as firstly it is consistent with parent statute, secondly

there is involvement of Alter Ego and mens rea, and thirdly there is a need for
lifting of corporate veil.

A. CONSISTENT WITH PARENT STATUTE

51. The IT Act, prescribes punishment in the form of either imprisonment or fine, and

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imposes certain criminal liability in case of failure or violation of any offences
mentioned in the Act. All these offences have one thing in common, that is offence
effects the public at large.

52. The IT act, punishes offences that are committed against the society or which

effects the society at large and for deterrence imposes criminal liability. The
enacted rules are a similar step as the social media is a tool of destruction and
champion of fake news as reported by the Shantisthan times.50

53. Now, the Intermediary rules 2021, framed under section 87 of IT Act, 2000 has

similar objective in mind by imposing criminal liability on non-adherence to the

obligations by the significant social media intermediaries as set out in the rules.

54. The rationale for such imposition stems from the research carried out by two

researchers from Shantisthan. The research identifies that the false news travels
faster than accurate news especially in platforms like Postgram.51

55. Hence Postgram who is carrying out its business as a social media platform has a

higher responsibility, role and accountability in ensuring security and public order.
The non-compliance with Rule 4(2) effects the public at large and is there
necessary to impose criminal liability

B. INVOLVEMENT OF ALTER EGO AND MENS REA

56. The law has evolved from the position that a company cannot be prosecuted for

offences that require imposition of a mandatory imprisonment,52 to the position

that the mens rea of the ‘alter ego’ of the company (i.e. the person or group of
people that guide the business of the company) will be imputed to the company.

57. ‘Principle of attribution’ is applied to impute criminal intention to the company on

50
Moot Proposition
51
Ibid at 47
52
Asstt. Commr. v. Velliappa Textiles Ltd. (2003) 11 SCC 40
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account of the criminal intention of its ‘alter ego’.53 In other words, the criminal
intent of the "alter ego" of the company / body corporate, i.e., the person or group
of persons that guide the business of the company, would be imputed to the
corporation.54

58. It is submitted that the settled position of law is that if a company commits a

criminal offence, the liability rests with the directors in two ways:

i. When the offence committed by the company involves mens rea, or

ii. Where the statutory regime has provisions for vicarious liability55

59. Therefore, for the alter ego to be held liable, there is a requirement of mens rea to

willfully commit the crime and when the offence committed by the company
involves mens rea, the involvement of mens rea would normally come down to the
intent and action of the individual acting on behalf of the company. In present case,
Postgram from the day of introduction of the Intermediary rules, has no intention
to comply with the provisions of the impugned rule, the civil punitive measures are
not enough for such deliberate act of defiance by the alter ego of the company.

C. NEED FOR LIFTING CORPORATE VEIL

60. An entity like Postgram is seen as a distinct legal entity apart from its members,

however in reality, it is an association of people who are the beneficial company

owners and its corporate property. This illusion is established through a veil, which
is referred to as the Corporate Veil.

61. Piercing /lifting of corporate veil entails disregarding the notion that a corporation

is a separate legal entity with its own identity (Corporate personality). In the
present case, Postgram’s non-compliance is a clear act of defiance that effects

53
Iridium India Telecom Ltd vs Motorola Incorporated (2011) 1 SCC 74
54
Tesco Supermarkets Ltd. .v. Nattrass (1971) 2 All E.R. 127
55
Sunil Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC 60

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entire public and creates public disorder. Hence, there is a strong need to disregard
the business’s distinct identity & focus on the actual owners or real people in
control of the organization.

62. The Hon’ble court should pierce the company’s shell and sue the persons who have

deliberately not complied with the Impugned rules on two grounds.

i. Actions against public interest

63. The actions of the senior management of Postgram to not comply affects the public

order, security and safety of the citizens who uses the services of the Postgram and
in instances where the activities of a company are violating the public interest or
public policy, the courts possess the authority to lift the veil and personally hold
the guilty parties liable for their actions.

64. As stated in Narayanlal Bansilal v. Manak Phiroz56 Mistry though the Companies

Act on the one hand throws open to all citizens the privilege of carrying on business
with limited liability, on the other hand, since the company's business has to be
conducted through human agency irregularities and even malpractices in the
management of the company's affairs sometimes arise the relevant extract is given
below:

“If persons in charge of the management of companies abuse their position

and make personal profit at the cost of the creditors, contributories and
others interested in the company, that raises a problem which is very much
different from the problem of ordinary misappropriation or breach of trust.
The interest of the company is the interest of several persons who constitute
the company, and thus persons in management of affairs of such companies
can be classed by themselves as distinct from other individual citizens. A
citizen can and may protect his own interest but where the financial interest
of a large number of citizens is left in charge of persons who manage the

56
AIR 1961 SC 29 at p. 41
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affairs of the companies it would be legitimate to treat such companies and
their managers as a class by themselves and to provide for necessary
safeguards and checks against a possible abuse of power vesting in the
managers”

65. In Jyoti Limited v. Kanwaljit Kaur Bhasin:57 The Supreme Court utilized this

doctrine to investigate the firm's interests in a commercial transaction; it was found

that the corporation is liable for contempt of court; ultimately, the members were
held liable.

66. Hence the need for lifting of corporate veil is emphasized with the impact that

Postgram’s non-compliance carries. The identification of first originator of

information is not something out of the ordinary or onerous and has international
precedence. Therefore, the non-compliance by Postgram is willful and deliberate
and a clear act of defiance which is against the public interest, which requires
criminal liability to be constituted.

i. Avoiding welfare legislation (salus populi suprema lex)

67. India is a socialist country which looks after the welfare of its citizens, a business

objective simply cannot be to exploit the citizens for their profit. The Impugned
Rule is a welfare legislation aimed at curbing the social disorder and identifying
the root of hysteria caused by social media.

68. Postgram’s defense of fundamentally altering the business is a deliberate action of

avoiding welfare legislation. The objective of Postgram appears to be to cause

damage to the framework of the country.

69. Workmen Employed in Associated Rubber Industries Ltd., v. The Associated

Rubber Industries Ltd., Bhavnagar:58 The Supreme Court stated that any action
taken by a firm to enhance the avoidance of welfare laws will be a good enough

57
1987 62 Comp. Cas. 626
58
A.I.R 1986 S.C 1.
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ground for the courts to pierce the veil.

70. Therefore, based on the two-fold submission it is humbly submitted before the

Hon’ble court that the there is a strong need for lifting of corporate veil and
imposing criminal liability, as the Postgram is not only deliberately avoiding
welfare legislation, but by doing is causing pernicious effects on the society at
large.

71. Hence, it is most respectfully submitted that the imposition of criminal liability on

non-compliance with Impugned Rule is not unconstitutional as there is consistency

with the parent statute, there is involvement of mens from the alter ego of the
company and lastly based on the threat Postgram poses due to its non-compliance
with the impugned rule requires a strong need for lifting of corporate veil.

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PRAYER FOR RELIEF

Wherefore, in the light of the issues raised, arguments advanced, reasons given
and authorities cited, this hon’ble court may be pleased to

• DISMISS the writ petition filed by Postgram Limited before Hon’ble

Supreme Court
• UPHOLD the Constitutional Validity of Rule 4(2) of IT (Intermediary
Guidelines and Digital Media Ethics Code) Rules, 2021.

And any other relief that this hon’ble court may be pleased to grant in the interests
of justice, equity and good conscience, all of which is respectfully submitted.

Sd/-

COUNSELS FOR THE

RESPONDENT

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