TEAMCODE: R27

2ND CNLU CYBER LAW NATIONAL MOOT COURT

COMPETITION, 2023

IN THE SUPREME COURT OF INTIA

W.P. No.__ / 2022

MS. HERMOINE AND MR. HARRY ..………….Petitioner

Versus

UNION OF INTIA ..………….Respondent

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TABLE OF CONTENTS

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

LIST OF ABBREVIATIONS .................................................................................................... I

INDEX OF AUTHORITIES..................................................................................................... II

STATEMENT OF JURISDICTION......................................................................................... V

STATEMENT OF FACTS ......................................................................................................VI

ISSUES RAISED ................................................................................................................... VII

SUMMARY OF ARGUMENTS .......................................................................................... VIII

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

1. WHETHER THE PETITIONS UNDER ARTICLE 32 ARE MAINTAINABLE. ........... 1

[1.1] There Is An Alternate Remedy Available .................................................................. 1

[1.2] There Is No Violation Of Fundamental Right ........................................................... 2

2. WHETHER THE RELEVANT PROVISIONS MADE UNDER IT RULES AND

TELECOMMUNICATION ACT, ARE ULTRA VIRES TO THE CONSTITUTION OF
INTIA. .................................................................................................................................... 4

[2.1] THE IMPUGNED PROVISIONS PASS THE FOUR-PRONGED TEST OF

PROPORTIONALITY AND ARE THEREFORE REASONABLE RESTRICTIONS ON THE RIGHT TO
PRIVACY. ................................................................................................................................ 4

[2.2] The Discretionary Powers Vested With The Government Are

Valid And Constitutional As Per Article 14 Of The Constitution ...................................... 8

3. WHETHER THE PROVISIONS UNDER THE IT RULES AND

TELECOMMUNICATIONS ACT ARE IN COMMENSURATION WITH THE
GOVERNMENT OF INTIA’S POLICY ON TELECOMMUNICATIONS AND
INFORMATION TECHNOLOGY...................................................................................... 11

3.1 That the IT Rules proposes a grievance redressal mechanism. ............................. 11

3.2 The Telecommunication act is on the same lines of the National Telecom Policy,
2012. 12

PRAYER ................................................................................................................................ XII

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LIST OF ABBREVIATIONS

• SCC – Supreme Court Case.

• Hon’ble – Honourable
• vs. – Versus.
• Art. - Article
• AIR – All India Report.
• SC – Supreme Court.
• Cal. – Calcutta.
• SCR – Supreme Court Report.
• Crl. – Criminal.
• M.C. – Miscellaneous.
• Comm. – Committee.
• Art- Article.
• Ors. – Others.
• Anr. – Another.
• The Act – Telecommunications Act
• IT Rules – Information Technology (Intermediary Guidelines and Digital Media Ethics
Code) Rules, 2022
• OTT – Over-the-top
• DoT – Department of Telecommunication
• Sec.- Section
• i.e.- That Is
• Govt. – Government

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INDEX OF AUTHORITIES

Cases

Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 (India). ............................................... 6

Attorney General for India v. Amratlal Prajivandas, (1994) 5 SCC 54 (India). See also
Attorney General for India v. Amratlal Prajivandas, (1994) 5 SCC 54 (India). ............... 6
Ballabhdas v. State of Bihar, 1966 AIR 814 (India). ................................................................. 2
Beedi Works v. Union of India, (1974) 4 SCC 43 (India) ......................................................... 8
Confederation of All Nagaland State Services Employees' Assn. v. State of Nagaland, 2006 1
SCC 496 (India). .................................................................................................................... 1
Directorate of Film Festivals v. Gaurav Ashwin Jain (2007) 4 SCC 737 (India). ..................... 2
ExArmymen's Protection Services Private Limited v. Union of India, (2014) 5 SCC 409
(India) ..................................................................................................................................... 7
Express Hotels Ltd. v. State of Gujarat, (1989) 3 SCC 677 (India). ......................................... 9
Facebook Inc. v. Union of India (2019), SCC, ......................................................................... 2
Harishankar Bagla v. State of M.P., AIR 1954 SC 465 (India). ................................................ 9
Harishankar v. State of U.P., AIR 1957 SC 896 (India). ........................................................... 8
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214 (India). . 2
K.S Puttaswamy v. Union of India, (2017) 10 SCC 1 (India .................................................... 4
Khare v. State of Delhi, 1950 SCR 519 (India). ........................................................................ 9
M.J. Sivani v. State of Karnataka, (1995) 6 SCC 289 (India) ................................................... 8
Mineral Development Ltd. v. State of Bihar, AIR 1960 SC 468 (India) ................................... 8
Orient Weaving Mills v. Union of India, AIR 1963 SC 98 (India) ........................................... 8
People's Union for Civil Liberties v. Union of India, (1997) 1 SCC 301 (India). ..................... 7
Prajwala v. Union of India (2009) SCC 4 798 (India). .............................................................. 2
Premium Granites v. State of T.N., AIR 1994 SC 223 (India) .................................................. 8
PUCL v. Union of India, (1996) SC 288 (India) ....................................................................... 9
R. v. Antonelli, 70 JP 4. ............................................................................................................. 6
Rama Rao v. Telega Desam, AIR 1984 AP 353 (Para 9.) (India) ............................................. 6
Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163 (India). ................................. 1
Romesh Thappar v. State of Madras, 1950 SCR 594. See also Supdt v. Ram Manohar, AIR
1960 SC 633 (India). .............................................................................................................. 6

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Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India). ....................................................... 6

State of Mysore v. M.L. Nagade, (1983) 3 SCC 253 (India). .................................................... 8
Uzun v. Germany App no 35623/05 (Application No) IHRL 1838 (ECHR 2010). .................. 5
Virendra v. State of Punjab, 1957 AIR 896 (India). .................................................................. 8
X v. Hospital Z, (2003) 1 SCC 500 (India)................................................................................ 2

Statutes

Assistance for law enforcement Act, 47 U.S.C.§ 229. ............................................................ 10

Foreign Intelligence Surveillance Act, 1783, 50 U.S.C.§ 36. .................................................. 10
Information technology Act, 2000, § 69 cl A, No. 21, Acts of Parliament, 2000 (India). ........ 6
IT Act,2000, § 69, No. 21, Acts of Parliament, 2000 (India). ................................................... 5
Safe Streets Act, 1968, U.S.C.§ 32. ......................................................................................... 10
Telegraph Act, 1885, No. 1, Acts of Imperial legislative Council, S 5(2), 1885(India) ............ 9

Other Authorities

European Parliament and European Council ........................................................................... 10

Record ¶7. ................................................................................................................................ 14

Constitutional Provisions

India Const. art 226. ................................................................................................................... 1

India Const. art 32. ..................................................................................................................... 1
India Const. art. 14 ..................................................................................................................... 4
India Const. art. 14. .................................................................................................................... 8
India Const. art. 19(2). ............................................................................................................... 6

Policies

National Cyber Security Policy, Ministry of Information and Technology, Government of

India (2013) .......................................................................................................................... 11
National Digital Communication Policy, Ministry of Information and Technology,
Government of India (2018) ................................................................................................. 11

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National Telecom Policy, Department of Telecom, Government of India (2012). ................. 11

Books

2 Durga Das Basu, Commentary on the constitution of India 2337, (2007). ............................ 6

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STATEMENT OF JURISDICTION

The Hon'ble Supreme Court of Intia clubbed the Writ Petitions of Ms. Hermoine (IT Rules)
and Mr Harry (The Act) filed under Article 32 of the Constitution of India pursuant to its
powers under Article 139-A of the Constitution of Intia.

Article 139-A of the Constitution of Intia—

(1) “Where cases involving the same or substantially the same questions of law are pending
before the Supreme Court and one or more High Courts or before two or more High Courts
and the Supreme Court is satisfied on its own motion or on an application made by the
Attorney-General of India or by a party to any such case that such questions are substantial
questions of general importance, the Supreme Court may withdraw the case or cases pending
before the High Court or the High Courts and dispose of all the cases itself….”

Read with

Article 32 of the Constitution of India—

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

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

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

All of which is respectfully submitted.

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STATEMENT OF FACTS

BACKGROUND

The Republic of Intia is an extremely diverse country and has an enormous population. Intia’s
Ministry of Technology in exercise of the powers conferred under the appropriate sections of
its Information Technology Act, enabled the Information Technology (Intermediary Guidelines
and Digital Media Ethics Code) Rules, 2022(“IT Rules”) in May 2022.The new IT Rules, were
responded with a rebuttal from various intermediaries and social activists. While the IT Rules
debate was ongoing, the State of Intia enacted their new Telecommunications Act.

ENCROCHMENT TO THE POLICY OF INTERMEDIARIES

The intermediaries vociferously rebutted various provisions of the IT Rules and the
Telecommunication Act. One of the Intermediary, Whereapp contended that the new Rules are
in contradiction to their policy of E2E Encryption as it instructs them to help in identification
of ‘first originator’ of information after receiving ‘appropriate orders’. Whereapp also released
an official statement, clearly highlighting that adherence to the mandate under IT Rules will
lead to a compromise in people’s right to free speech and privacy.

Furthermore, Section 24 (2) of the new Telecommunication Act contains that in the occurrence
of public emergency or in the interest of public safety, the Central Government or an officer
employed by it may instruct the direct that a message or a class of messages transmitted for
received by any telecommunication services shall not be transmitted or shall be intercepted or
detained or disclosed.

PETITIONS FILED BEFORE THE SUPREME COURT IN PURSUANCE OF

BREACH OF FUNDAMENTAL RIGHTS

Ms Hermoine, a social activist approached the Supreme Court of Intia, citing various provisions
of the IT Rules “problematic for people’s privacy. Mr Harry, Founder of Humara Internet
Foundation, working towards protecting digital rights of the citizens, filed a petition before the
Hon’ble Supreme Court of Intia citing Section 24(2) of The Act as unconstitutional in its
present form. Since Ms Hermoine’s petition was sub judice, the Hon’ble Apex Court was of
the view that both the petitions involved similar set of question of facts and question of laws
and therefore clubbed the petitions for a combined hearing on January 27, 2023.

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ISSUES RAISED

THE RESPONDENTS VERY RESPECTFULLY PUT FORTH TO THE HON’BLE SUPREME COURT, THE
FOLLOWING QUERIES:

[ISSUE 1]

WHETHER THE PETITIONS UNDER ARTICLE 32 ARE MAINTAINABLE.

[ISSUE 2]
WHETHER THE RELEVANT PROVISIONS MADE UNDER IT RULES AND
TELECOMMUNICATION ACT, ARE ULTRA VIRES TO THE CONSTITUTION
OF INTIA.

[ISSUE 3]

WHETHER THE PROVISIONS UNDER THE IT RULES AND

TELECOMMUNICATION ACT ARE IN COMMENSURATION WITH THE
GOVERNMENT OF INITIA’S POLICY ON TELECOMMUNICATION AND
INFORMATION TECHNOLOGY.

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SUMMARY OF ARGUMENTS

1. WHETHER THE PETITIONS UNDER ARTICLE 32 ARE MAINTAINABLE.

It is submitted that the petitions under Art. 32 of the constitution are not maintainable. The new
IT Rules and the new Telecommunication act are not in violation of fundamental rights, as they
impose a reasonable restriction and the restrictions contained under them qualify as reasonable.
Furthermore, there is an alternate remedy available with the petitioners but they are not
exercising it.

2. WHETHER THE RELEVANT PROVISIONS MADE UNDER IT RULES AND

TELECOMMUNICATION ACT, ARE ULTRA VIRES TO THE CONSTITUTION OF
INTIA.

It is submitted that the IT rules and the Act are in conformity with the Constitution of Intia.
The IT rules and the Act conforms to the test of proportionality given by the honourable SC in
Puttswamy, 2017. The provisions confirm to article 14 and article 19. Firstly, the Policy under
which the discretion is to be exercised in clearly expressed in the statute and the IT rules. [2.2.1]
Secondly, in arguendo absence of exhaustive or express guidelines does not render the
provisions unconstitutional. [2.2.2] Fourthly, vesting of power in a high authority is in itself a
circumstance against arbitrariness. [2.2.3] Lastly, Possibility of abuse is no ground to hold a
provision as ultra-virus or unconstitutional. [2.2.4]

3. WHETHER THE PROVISIONS UNDER THE IT RULES AND

TELECOMMUNICATION ACT ARE IN COMMENSURATION WITH THE
GOVERNMENT OF INITIA’S POLICY ON TELECOMMUNICATION AND
INFORMATION TECHNOLOGY.

It is submitted that the IT rules and Telecommunications Act is in commensuration with the
Government of Intia’s policy on Information Technology and Telecommunication on many
accounts as both of them had a provision for the establishment of a grievance redressal
mechanism. Both of them also has provision related to ensuring the security of communication
flow along with also having a provision for helping Law enforcement agencies in the
investigation of cases concerning national security. The argument is two-legged one leg deals
with compliance with the National digital communication policy and the other one deals with
the National telecom policy.

.
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ARGUMENTS ADVANCED

1. WHETHER THE PETITIONS UNDER ARTICLE 32 ARE MAINTAINABLE.

It is humbly submitted before the Hon’ble that the Petitions are not maintainable under article
321 of the Constitution of Intia because, there is an alternate remedy available [1.1], There is
no Violation of a Fundamental right [1.2].

[1.1] THERE IS AN ALTERNATE REMEDY AVAILABLE

1. It is humbly submitted before the Hon’ble court the petitioners have the option to move the
High court under article 2262 of the Constitution of Intia but they didn’t exercise that right
and directly filed a petition under 32 in the Supreme court. This has been maintained in a
slew of judgements issued by this Hon'ble Court.
2. “It is a well settled proposition of law that existence of an alternative adequate remedy is
a factor taken into consideration in a writ petition.” This was held in the case of Rashid
Ahmed v. Municipal Board, Kairana3
3. In the matter of Confederation of All Nagaland State Services Employees' Assn. v. State
of Nagaland 4, the Hon'ble Court stated that writ petitions should be raised in the first
instance before the High Court of Judicature using its jurisdiction under Article 226 of the
Constitution.
4. In this matter, despite having an alternate remedy available under Article 226 of the
Constitution, the Petitioner has addressed the Honourable Apex Court directly under an
article 32 petition.
5. Keeping the facts of the present case in mind and applying the law mentioned in the above-
mentioned landmark cases makes it very clear that the petition before the supreme court of
Intia should not be maintainable on the grounds that the petitioners have an alternate
remedy available to themselves.
6. Therefore, it is humbly submitted before this supreme court that the petition of the
petitioner should not be maintainable before this court.

1
India Const. art 32.
2
India Const. art 226.
3
Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163 (India).
4
Confederation of All Nagaland State Services Employees' Assn. v. State of Nagaland, 2006 1 SCC 496 (India).
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[1.2] THERE IS NO VIOLATION OF FUNDAMENTAL RIGHT

7. It is humbly submitted before the Hon’ble court that there is no violation of a fundamental
right as the restriction being imposed by the Government is a reasonable restriction.
8. The respondents further respectfully submit that there is no breach of Fundamental Rights
in the current situation. Because Art. 32 is just a remedy accessible solely for the
enforcement of fundamental rights, no question other than one related to a fundamental
right will be decided in a procedure under Art. 32. The same has been held in different
cases which are mentioned below.
9. “If the constitutionality of other parts of the legislation is challenged for reasons other than
a breach of basic rights, the court will not hear the claim in a case under Article 32 of the
Grand-line Constitution” This was held in the case of Jamshed Hormusji Wadia v. Board
of Trustees, Port of Mumbai5
10. “It cannot be dependent on determination of question of law or fact but must be a clear
breach of a fundamental right” held in case of Ballabhdas v. State of Bihar6
11. Discloser of an information that violated the privacy of an individual in aim of greater
public interest is allowed, this was enshrined under the case of Mr X v Hospital Z7 in which
it was held that a medical professional’s duty to maintain confidentiality could be breached
in cases where public interest was at stake.
12. The Supreme Court in the case of Directorate of Film Festivals v. Gaurav Ashwin Jain8
Has held that, “Courts cannot interfere with policy either on ground that it is erroneous or
on ground that a better, fairer or wiser alternative is available. Legality of the policy, and
not the wisdom or soundness of the policy, is the subject of judicial review.”
13. The Supreme Court of India in Prajwala vs Union of India9 and Facebook Inc. vs Union
of India10 urged the Government of India to develop required rules to delete child
pornography and associated content from internet platforms and other apps.

5
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214 (India).
6
Ballabhdas v. State of Bihar, 1966 AIR 814 (India).
7
X v. Hospital Z, (2003) 1 SCC 500 (India).
8
Directorate of Film Festivals v. Gaurav Ashwin Jain (2007) 4 SCC 737 (India).
9
Prajwala v. Union of India (2009) SCC 4 798 (India).
10
Facebook Inc. v. Union of India (2019), SCC, https://www.supremecourtcases.com/?print-my-blog=1&post-
type=post&statuses%5B0%5D=publish&rendering_wait=0&columns=1&font_size=normal&image_size=medi
um&links=parens&show_site_title=1&show_date_printed=1&show_title=1&show_date=1&show_excerpt=1&
show_content=1&format=print&pmb-post=6343/.
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14. In the present cases Government of Intia came out with The new Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 11 (“IT rules”)
guidelines which received backlash because of the its provision regarding the release of
First originator’s name from the intermediatory.
15. The new IT act , contains provisions which are in concordance with the above precedent as
it compels the Intermediary to make the central government or any officer authorized by
the government to make knowledgeable about the first originator of a message which is
against the public interest or which hampers the integrity or sovereignty of the state or
which has the potential or evoked controversy without followers of different ideologies and
will lead to public disturbance and will disturb the tranquillity of the society.
16. This makes it very evident that government of Intia has not done anything which will
violate the fundamental rights of the citizen and all of the actions of the government of Intia
would come under reasonable restrictions.
17. Therefore, it is humbly submitted before this honourable supreme court that the petition of
the petitioner should not be maintainable on the grounds that the rules rolled out by the
government does not violate any fundamental rights.

11
The new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, Ministry
of Information and Technology, Government of India (2021)[Hereinafter, IT Rules].
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2. WHETHER THE RELEVANT PROVISIONS MADE UNDER IT RULES AND

TELECOMMUNICATION ACT, ARE ULTRA VIRES TO THE CONSTITUTION
OF INTIA.

18. It is humbly submitted that to regulate the institution of the internet and apply reasonable
restrictions to regulate its utilization and consumption for the welfare of the country’s
citizens which is a formidable force to drive the country to prosperity, it can also be used
in contrast to deride it.
19. To prevent that from happening, the government of Intia enacted the Information
Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 202112 in
May 2022 in the exercise of the powers conferred under the appropriate sections of its
Information Technology Act providing guidelines for requiring applications like Whereapp
to help in the identification of ‘first-originator’ of information after receiving ‘appropriate
orders.’
20. The state of Intia also enacted The Act with an aim to consolidate and amend the laws
governing the provision, development, expansion, and operation of telecommunication
services, telecommunication networks, and telecommunication infrastructure and
assignment of the spectrum, etc. Also, it provides a framework to regulate the internet for
public safety and national security.

[2.1] THE IMPUGNED PROVISIONS PASS THE FOUR-PRONGED TEST OF

PROPORTIONALITY AND ARE THEREFORE REASONABLE RESTRICTIONS ON THE RIGHT
TO PRIVACY.

21. It is humbly submitted that the impugned provisions pass the four-pronged test of
Proportionality13 and are therefore reasonable restrictions as Firstly, the restrictions are
warranted by a legislatively enacted law. Secondly, the grounds of restrictions are
necessary and legitimate aims. [2.1.1.] Thirdly, the restrictions would not
disproportionately affect the rights of the right holder [2.1.2.] and lastly, there are adequate
procedural safeguards in place. [2.1.3.]

12
Id.
13
K.S Puttaswamy v. Union of India, (2017) 10 SCC 1 (India).
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[2.1.1] THE GROUNDS OF RESTRICTIONS ARE NECESSARY AND LEGITIMATE AIMS.

22. It is humbly Submitted before this Hon'ble Court that, the right to privacy is protected as
an intrinsic part of the right to life and personal liberty under Article 2114 and as a part of
the freedoms guaranteed by Part III of the Constitution.15 However, the same is not an
absolute right and is subject to reasonable restrictions.16 Any restriction on right to privacy
has to stand the test of proportionality as laid down in the case of K.S.
Puttaswamy v. Union of India.17
23. It is humbly submitted that for a restriction on the right to privacy to be reasonable it has
to be “necessary” for the state. The Test of necessity warrants that there are no alternative
less invasive measures available.18 Further, the legitimate purposes of the state would
include for instance protecting national security, preventing and investigating crime etc.19
24. In the case of Uzun v. German20 surveillance of a person was done to investigate several
cases of attempted murder and it was held to be a reasonable restriction on the right to
privacy as it was done to achieve legitimate goals including national security and public
safety, the prevention of crime etc.
25. It is contended that under Section 24 (2)21 of the Act, However, the same can be done only
on five narrowly tailored grounds22 including but not limited to “Security of the state”,
“Sovereignty of India” etc. which are necessary legitimate aims23 in a democratic
society. Therefore, the restrictions to the right to privacy in the form of sections 24 (2) of
the Act24 and IT rules are reasonable as they provide exemption on grounds that are
legitimate aims of the state.
26. Further, Section 24 (2) of the Act25 and the IT rules26 allow interception or blocking of
information only when it is “Necessary” therefore ensuring that the government will only
take action under the provisions in absence of any alternative less invasive measure.27

14
India Const. art. 14.
15
Supra note 13.
16
Id.
17
Id.
18
Id.
19
Id.
20
Uzun v. Germany App no 35623/05 (Application No) IHRL 1838 (ECHR 2010).
21
IT Act,2000, § 69, No. 21, Acts of Parliament, S 24(2) 2000 (India).
22
Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India).
23
Supra note 13.
24
Supra note 21.
25
Id.
26
Supra note 11, S 24(2).
27
Supra note 13.
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27. Therefore, it is humbly contended before this Hon'ble Court that the impugned provisions
fulfil the test of necessity and legitimate purpose as they are necessary restrictions on the
right to privacy and the powers under the impugned provisions are exercised
only for legitimate purposes of the state.

[2.1.2] THE RESTRICTIONS WOULD NOT DISPROPORTIONATELY AFFECT THE RIGHTS OF

THE RIGHT HOLDER

28. It is humbly submitted before this Hon'ble Court that for a restriction on the fundamental
right to privacy to be reasonable must inter-alia, be the least intrusive measure, proportional
to the restriction and the privacy of an individual.28 The proportionality principle requires
balancing of the object sough to be achieved by the restriction with the harm suffered by
the individual.29
29. Furthermore, the Hon'ble Supreme Court in Anuradha Bhasin v. Union of India30 has held
that the freedom of speech and expression and the freedom to practice any profession or
carry on any trade, business, or occupation over the medium of the internet enjoys
constitutional protection. The restriction on fundamental rights should align with Articles
19(2) and (6) of the Constitution, including the test of proportionality.
30. It is humbly contended that the Central Government under Section 24 (2) of the Act, can
allow lawful interception and ask for the first originator of the information under IT rules.
However, the same can be done only on five narrowly tailored grounds31 including but not
limited to “Security of the state”, “Sovereignty of India” etc. These grounds are a verbatim
reproduction of reasonable restrictions contained in Article 19(2).32 Further, these grounds
including Sovereignty and Integrity of India,33 Security of the state,34 Friendly relations
with foreign states,35 Public Order36 etc. have all been well defined in a catena of judgments
leaving no scope of vagueness in these terms.

28
Id.
29
Id.
30
Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 (India).
31
Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India).
32
India Const. art. 19(2).
33
Rama Rao v. Telega Desam, AIR 1984 AP 353 ¶9 (India).
34
Attorney General for India v. Amratlal Prajivandas, (1994) 5 SCC 54 (India). See also Attorney General for
India v. Amratlal Prajivandas, (1994) 5 SCC 54 (India).
35
R. v. Antonelli, 70 JP 4.
36
Romesh Thappar v. State of Madras, 1950 SCR 594. See also Supdt v. Ram Manohar, AIR 1960 SC 633
(India).
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31. It is submitted that even if all these grounds have not been defined in the Act does not
make it vague or liable to be struck down as every word need not be defined. It may be a
matter of judicial construction. Mere fact that a word has not been defined is not a found to
declare the provision unconstitutional.37
32. A similar worded section that is section 69(A)38 of the IT Act was also held to be valid by
this apex court in Shreya Singhal v. Union of India39 on the ground that it was a narrowly
drawn provision with several safeguards. on the ground that it was a narrowly drawn
provision with several safeguards.
33. Therefore, it is humbly submitted that the proportionality principle is fulfilled by the
impugned provision as the narrowly tailored grounds are well defined and not vague.
Therefore, they ensure balancing of the object sought to be achieved by the restriction with
the harm suffered by the individual.

[2.1.3] THERE ARE ADEQUATE PROCEDURAL SAFEGUARDS IN PLACE.

34. It is humbly submitted before this Hon'ble Court that for a restriction on the right to privacy
to be reasonable there must be adequate procedural safeguards in place. It is contended that
firstly, under Section 24 (2) when the Central government exercises the power under the
section, it has to give an order and record reasons in writing.40Therefore, it is humbly
contended that the impugned provisions provide for adequate procedural safeguards to
prevent abuse of power.
35. It is to be noted that secondly, what is in the interest of national security is not a question
of law. It is a matter of policy and should be left to the executive.41 This Apex Court has
further held in PUCL v. UOI that “in absence of any provision in the statute, it is not
possible to provide for prior judicial scrutiny as a procedural safeguard.”42
36. Therefore, whether a government agency is to be exempted from the provisions of the Act
on presence of certain grounds like security of the State etc is to be left to the
discretion and subjective satisfaction of the executive being a matter of policy.

37
2 Durga Das Basu, Commentary on the constitution of India 2337, (2007).
38
Information technology Act, 2000, § 69 cl A, No. 21, Acts of Parliament, 2000 (India).
39
Supra note 13.
40
Supra note 21.
41
ExArmymen's Protection Services Private Limited v. Union of India, (2014) 5 SCC 409 (India).
42
People's Union for Civil Liberties v. Union of India, (1997) 1 SCC 301 (India).
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37. Therefore, it is humbly submitted that the impugned provision apart from providing for a
sufficient mechanism of oversight also provides for other additional procedural safeguards
to prevent abuse of power by the executive.

[2.2] THE DISCRETIONARY POWERS VESTED WITH THE GOVERNMENT ARE

VALID AND CONSTITUTIONAL AS PER ARTICLE 14 OF THE CONSTITUTION

38. The discretionary powers vested with the government are valid and Constitutional as per
Article 1443 of the Constitution as Firstly, the Policy under which the discretion is to be
exercised in clearly expressed in the statute and the IT rules. [2.2.1] Secondly, in arguendo
absence of exhaustive or express guidelines does not render the provisions
unconstitutional. [2.2.2] Fourthly, vesting of power in a high authority is in itself a
circumstance against arbitrariness. [2.2.3] Lastly, Possibility of abuse is no ground to hold
a provision as ultra-virus or unconstitutional. [2.2.4]

[2.2.1] THE POLICY UNDER WHICH THE DISCRETION IS TO BE EXERCISED IS CLEARLY

EXPRESSED IN THE STATUTE.

39. It is humbly submitted before this Hon'ble Court that when the policy44 according to which
or the purpose45 for which a discretion is to be exercised by an officer is clearly expressed
in the statute, it cannot be said to be an unregulated discretion.46 Nor can it be said to be
unrestricted where the discretion is to be exercised according to conditions47 or upon a
consideration of the matters48 specified in the statute.49
40. It is contended that in the present instance section 24 (2) of the Act50 and the IT rules51 are
not violative of Article 1452 as it allows the Government to exercise powers under the Act
and IT rules however the statute and rules have laid down a clear consideration wherein the
same can be done only on five narrowly tailored grounds including public order, security

43
India Const. art. 14.
44
Orient Weaving Mills v. Union of India, AIR 1963 SC 98 (India).
45
Virendra v. State of Punjab, 1957 AIR 896 (India).
46
Harishankar v. State of U.P., AIR 1957 SC 896 (India).
47
Mineral Development Ltd. v. State of Bihar, AIR 1960 SC 468 (India).
48
Beedi Works v. Union of India, (1974) 4 SCC 43 (India).
49
Orient Weaving Mills v. Union of India, AIR 1963 SC 98 (India).
50
Supra note 21.
51
Supra note 11.
52
India Const. art. 14.
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of the state etc. Further, under IT rules 4 (2) clearly specifies that no other information
related to the first originator of the information shall be required to disclose.
41. The rules provide that such order shall only be passed for prevention, detection,
investigation, prosecution, or punishment of certain offenses that are specifically stated, the
category of ‘public order’. This provision shall help in reducing the cases, and identifying
the culprits of serious cyber offenses.

[2.2.2] IN ARGUENDO ABSENCE OF EXHAUSTIVE OR EXPRESS GUIDELINES DOES NOT

RENDER THE PROVISIONS UNCONSTITUTIONAL.

42. Even if wide power is given to the delegate, the same will not be ultra-virus
if guidelines can be gathered from Preamble, Objects, and other provisions of the
Act.53 Absence of exhaustive guidelines for exercise of discretion will not render the
provision unconstitutional as the same can be inferred from setting up of the statute.54 Even
in the absence of express guidelines, the same can be gathered on a whole reading of the
statute, from the setting of the provision, the purpose of the Act, the preamble etc.55
43. It is contended that in PUCL v UOI56, the Section 5 (2)57 of the telegraph act which is
constructed similar to the Section 24 (2) of the Act was held constitutional even though the
government after independence never exercised their power under Section 7 (2)58 to frame
safeguards for the exercise of the powers under the said provisions.

[2.2.3] VESTING OF POWER IN A HIGH AUTHORITY IS IN ITSELF A CIRCUMSTANCE

AGAINST ARBITRARINESS.

44. It is submitted that vesting of power on a high authority like the Government itself is a
circumstance against arbitrariness.59 It is contended that in the present instance exercising
their power to lawfully intercept and to request about the information of the first
originator has been delegated to the Central or State Government and Judiciary. Therefore,
this in itself is a circumstance against arbitrariness.

53
State of Mysore v. M.L. Nagade, (1983) 3 SCC 253 (India).
54
Premium Granites v. State of T.N., AIR 1994 SC 223 (India).
55
M.J. Sivani v. State of Karnataka, (1995) 6 SCC 289 (India).
56
PUCL v. Union of India, (1996) SC 288 (India).
57
Telegraph Act, 1885, No. 1, Acts of Imperial legislative Council, S 5(2), 1885(India).
58
Supra note 57, S 5(2).
59
Express Hotels Ltd. v. State of Gujarat, (1989) 3 SCC 677 (India).
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45. It is contended that in section 24 (2) and IT rules even if the discretion is provided to the
Central or State government, it does not invest it with arbitrary power so as to destroy the
limitations to which it is subjected by its inherent nature. It has to be assumed that the
power will be exercised in an objective manner.

[2.2.4] POSSIBILITY OF ABUSE IS NO GROUND TO HOLD A PROVISION AS ULTRA-VIRUS OR

UNCONSTITUTIONAL.

46. It is humbly Submitted before this Hon'ble Court that where the discretionary power is valid
the same cannot be held as unconstitutional on the mere possibility of abuse of power.60 If
the discretion is shown to be abused the aggrieved person shall can have his remedy by
filling a case however, the same cannot be held as a reason for invalidating the provision
itself61
47. In the present instance as well the possibility of abuse of power granted to the government
under section 24 (2) of the Act and the IT rules cannot be used to declare the provisions
unconstitutional.
48. The Government also studied the models in other countries, including Singapore, Canada,
the EU, the UK, and the USA, and has gathered that most of them have codified laws for
Lawful Interception, the legal term used worldwide for interception. European Parliament
has enacted the Data Retentive Directive62 that applies broadly to almost all public
electronic communications and requires capturing most related information, including
location, for every communication. In the US, first, they have Omnibus Crime Control and
Safe Streets Act63, Title III pertains mainly to lawful interception of criminal investigations.
The second law, the 1978 Foreign Intelligence Surveillance Act64, governs wiretapping.
The third Communications Assistance for Law Enforcement Act65 (CALEA) was in 1994
to help law enforcement agencies to carry out wiretapping operations effectively.

60
Khare v. State of Delhi, 1950 SCR 519 (India).
61
Harishankar Bagla v. State of M.P., AIR 1954 SC 465 (India).
62
European Parliament and European Council.
63
Safe Streets Act, 1968, U.S.C.§ 32.
64
Foreign Intelligence Surveillance Act, 1783, 50 U.S.C.§ 36.
65
Assistance for law enforcement Act, 1994, 47 U.S.C.§ 229.
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3. WHETHER THE PROVISIONS UNDER THE IT RULES AND

TELECOMMUNICATIONS ACT ARE IN COMMENSURATION WITH THE
GOVERNMENT OF INTIA’S POLICY ON TELECOMMUNICATIONS AND
INFORMATION TECHNOLOGY.

49. It is humbly submitted before the honourable supreme court of Intia that the IT rules and
the Telecommunication act the government of Intia came out with are not in
commensuration with the government of Intia policy on Telecommunications and
Information Technology and the following arguments are present before the court to
substantiate the same.
50. The counsel humbly submits that for this the counsel would be relying on the following
policies of government of Intia: -
• National Cyber Security Policy66, 2013.
• National Digital Communications Policy67, 2018.
• National Telecom Policy68, 2012.
51. The argument for this issue is divided into 2 sub arguments which are numbered as [3.1]
and [3.2].

3.1 THAT THE IT RULES PROPOSES A GRIEVANCE REDRESSAL MECHANISM.

52. It is submitted before this honorable court that Government of Intia came out the National
Digital Communications policy in year 2018 with a vision
“To fulfil the information and communication needs of citizens and enterprises through
the establishment of a ubiquitous, resilient, secure, accessible and affordable Digital
Communications Infrastructure and Services; and in the process, support India’s
transition to a digitally empowered economy and society”.
53. Along with this mission one crucial objective was also mentioned that the policy that was
rolled out by the government of Intia which was mentioned under point no. 1.5.
54. Point 1.5 (a) states that-
“Establishing effective institutional mechanisms to protect consumers’ interests including:
I. Telecom Ombudsman
II. A centralised web-based complaint redressal system”

66
National Cyber Security Policy, Ministry of Information and Technology, Government of India (2013).
67
National Digital Communication Policy, Ministry of Information and Technology, Government of India
(2018).
68
National Telecom Policy, Department of Telecom, Government of India (2012).
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55. In all seriousness by this the intention of the government of Intia has become abundantly
clear and this shows that they had nothing but the good interest of the citizens of Intia at
their heart. They wanted a grievance redressal mechanism which was effective and
institutionalized.
56. Given the facts at hand the Republic of Intia is extremely diverse and has an enormous
population size and cheap access to internet has enabled the citizens of Intia [across all
ages] to use and spend a major chunk of their daily time using the internet and social media,
and hence as the users and usage is ginormous then the grievances are bound to emerge and
hence a robust grievance redressal system has become the need of an hour.
57. So, it was nothing but perfect when the government decided to come out with the IT rules
in May 2022 with one of its main objectives as establishaing grievance redressal
mechanism.
58. The Grievance redressal mechanism was spot-on and robust. It consisted of 3 levels,
namely-
I. Self-Regulating Mechanism- The publisher itself
II. Self-Regulating Mechanism- A self-regulating body at upper level than before
III. Oversight mechanism-Level III
59. So, this above-mentioned grievance redressal mechanism is a perfect example of how the
IT rule is in commensuration with the Government of Intia policy called National Digital
communications policy.
60. Therefore, it is humbly submitted before this Honorable supreme court the Government of
Intia’s IT rules is in commensuration with the Government of Intia’s policy namely
National digital communications, 2018.

3.2 THE TELECOMMUNICATION ACT IS ON THE SAME LINES OF THE NATIONAL TELECOM
POLICY, 2012.

61. It is humbly submitted that the Government of Intia can out with the National Telecom
Policy of Intia in year 2012 with a vision-
“To provide secure, reliable, affordable and high-quality converged telecommunication
services anytime, anywhere for an accelerated inclusive socio-economic development.”
62. Along with the abovementioned vision government of under the section named ‘Security’
a very important statement was mentioned and is quoted below-

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“(7.1) To mandate and enforce that the Telecom Service Providers take adequate measures
to ensure the security of the communication flowing through their network by adopting
contemporary information security standards.
(7.2) To provide communication assistance to Law Enforcement Agencies (LEAs) through
regulatory measures in tune with the extant license guidelines and in conformity with
Indian Telegraph Act keeping in view individual privacy and following international
practices to the extent possible for fulfilling National Security needs. To develop and
deploy State of art system for providing assistance to LEAs.”
63. This essentially means that the government of Intia did intend for the security of the
messages transmitted to be assured along with having a contingency plan which would
come to rescue if and when there was a need to help Law enforcement Agencies but the
important thing here to be kept in mind is that the help would only be provided only if they
have Extant license guidelines and in conformity with Indian Telegraph Act keeping in
view, Individual Privacy which off course is of utmost importance to the government of
Intia. This would come into play only in the cases to cater national security needs of the
Republic of Intia.
64. In the present case Government of Intia came out the National telecom policy which had
provisions regarding what would happen to transmission in case of public emergency.
65. Section 24(2) of Telecommunications act states that-
“On the occurrence of any public emergency or in the interest of the public safety, the Central
Government or a State Government or any officer specially authorized in this behalf by the
Central or a State Government, may, if satisfied that it is necessary or expedient to do so, in
the interest of the sovereignty, integrity or security of India, friendly relations with foreign
states, public order, or preventing incitement to an offence, for reasons to be recorded in
writing, by order:
(a) direct that any message or class of messages, to or from any person or class of persons,
or relating to any particular subject, brought for transmission by, or transmitted or received
by any telecommunication services or telecommunication network, shall not be transmitted,
or shall be intercepted or detained or disclosed to the officer mentioned in such order; or
(b) direct that communications or class of communications to or from any person or class of
persons, or relating to any particular subject, transmitted or received by any
telecommunication network shall be suspended.”69

69
Record ¶7.
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66. This means that the act intends to intercept the transmission and that interception would
most probably be done by law enforcement agencies but only in case of emergencies and
in the interest of the public at large and National security which is exactly what the National
Telcom policy meant by the statement just stated above.
67. Therefore, it is humbly submitted before this honourable Supreme court that the
Telecommunications Act is in commensuration with the National Telecom policy rolled
out by the government of India in the year 2012.

Mention chapters

Department mention

Infer advantages.

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PRAYER

WHEREFORE, IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED, REASONS GIVEN AND
AUTHORITIES CITED, THIS HON’BLE COURT MAY BE PLEASED TO

1. HOLD THAT THE RELEVANT PROVISIONS ARE CONSTITUTIONAL IN THE PRESENT FORM.

2. HOLD THAT THE RELEVANT PROVISIONS ARE IN COMMENSURATION WITH THE

GOVERNMENT OF INTIA’S POLICIES.

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 RESPONDENTS

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