TEAM-CODE: 106

NATIONAL LAW UNIVERSITY, DELHI

THE 2ND KIIT UNIVERSITY NATIONAL

TRAINING MOOT
IMS 2019 - 2020COURT COMPETITION, 2014

5TH – 7TH SEPTEMBER 2014

BEFORE THE HON’BLE HIGH COURT OF BOMBAY

BEFORE THE HON’BLE SUPREME COURT OF SILVIA

CHEETAH AND CHETAK PVT. LTD. (APPLICANT)

DR. SIMPARA & ANR. (PETITIONER) V.

FEDERAL INVESTIGATION BUREAU OF SILVIA &

MEMORIAL FOR THE RESPONDENT- INCOME TAX AUTHORITY
ORS. (RESPONDENT)

ON SUBMISSION TO THE REGISTRY OF

THE HON’B SUPREME COURT OF SILVIA

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 MEMORIAL FOR THE RESPONDENT

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 NLUD TRAINING IMS 2019 – 2020

TABLE OF CONTENTS

TABLE OF CONTENTS 2

LIST OF ABBREVIATIONS 4

AUTHORITIES CITED 5

STATEMENT OF FACTS 9

STATEMENT OF ISSUES 10

SUMMARY OF ARGUMENTS 11

ARGUMENTS ADVANCED…………………………………………………………………...…13

I. Dr. Simpara is not entitled to the right to privacy because the right is limited to enforcement
against the state alone…………………………………………..………………………….….13

a. Fundamental right to privacy is not available against non- state actors……………...13

b. The sting operation was conducted as an exercise of the right to free press of the
respondent…………………………………………………………….………….…..14

II. The guarantee under article 19(1)(a) extends to Artificial

persons……………………………………………………………………………………15

a. Silvia express and truth only are merely a manifestation of the citizens working under
it………………………………………………………………………………………..15
b. Article 19(1)(a) of the constitution envisages freedom of the press, which is an artificial
person…………………………………………………………………………………16
c. Intention of the constitution drafters was in favour of grant of rights of article 19 to
associations.……………………………………………………………………………16
 d. Provision of rights of article 19(1)(a) to only natural persons is violative of the ethos of
the constitution…………………………………………………………………………
18

III. Section 69 of the information technology act, 2000 is constitutional……………………20

a. Presumption of constitutionality……………………………………………...20
b. Section 69 of the act doesn’t violate the right to privacy under article 21………21
c. Section 69 of the act doesn’t violate article 19(1)(a)……………………………..22
d. Section 69 doesn’t violate article 14…………………………………………………..24

PRAYER………………………………………………………………………………………….26
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AIR All India Reporter

Art Article
Cl Clause
Co. Company
e.g. Exemplum Gratia (For Example)
Edn. Edition
IT Information Technology
Ors. Others
p. Page
Para. Paragraph
S Section
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
UK United Kingdom
UN United Nations
US United States of America
LIST OF ABBREVIATIONS

INDEX OF AUTHORITIES

Cases

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Akashi Padhan v. State of Orissa, AIR 1963 SC 1047.........................................................................26

Amrit Banaspati Ltd v. Union of India, AIR 1995 SC 1340.................................................................23

Aniruddha Bahal v. State 2010 172 DLT 269......................................................................................16

Arunachala Nadar, M.C.V.S. v. State of Madras, AIR 1950 SC 300...................................................26

Bachan Singh v. State of Punjab, AIR 1982 SC 1325..........................................................................23

Bennet Coleman v. Union of India, AIR 1973 S.C. 106.....................................................17, 18, 25, 26

Bharadwaaj Media Pvt. Ltd. v. State 2007 SCC OnLine Del 1561.....................................................16

Bombay v. F.N. Balsara, AIR 1951 SC 318.........................................................................................23

Bowman v. Secular Society (1917) A.C. 406 (House of Lords)...........................................................22

Brij Bhushan v. State of Delhi, 1950 A.I.R 129 SC........................................................................17, 18

Charanjit lal Chowdhary v. Union of India, AIR 1951 SC 41.............................................................23

Confederation of Ex-serviceman Association v. Union of India, AIR 2006 SC 2945..........................23

Delhi Cloth Mills v. The Union of India, A.I.R. 1983 S.C. 937,943.....................................................20

Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101..................................23

Dharamdutt v. Union of India, (2004) 1 SCC 712................................................................................20

Express Newspapers (Private) Ltd v. Union of India, 1958 A.I.R 578 SC.....................................18, 25

Federation of Railway officers Association v. Union of India, AIR 2003 SC 1344.............................27

Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148................................................................23, 27

Javed v Haryana, (2003) 8 SCC 369....................................................................................................21

K.S Puttaswamy v Union of India, (2017) 10 SCC 1............................................................................24

Kedarnath v. State of Bihar, 1962 AIR 955..........................................................................................23

Laxmi Khandsari v. State of UP, AIR 1981 SC 873.............................................................................21

Laxmi v. State of U.P., AIR 1971 SC 873.............................................................................................25

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Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942................................................................................23

Minneapolis & St. Louis Railroad Co. v. Beckwith, 129 U.S. 26.........................................................22

Om Kumar v. Union of India, AIR 2000 SC 3689................................................................................24

Parvej Akhtar v. Union of India, (1993) 2 SCC 221.............................................................................21

People’s Union of Civil Liberties v. Union of India, AIR 2004 SC 1442......................................26, 27

Petronet LNG Ltd. v. Indian Petro Group 2009 SCC OnLine Del 841...............................................15

R. M. Malkani v. State of Maharashtra, (1973) 1 SCC 471.................................................................25

R. Rajagopal v. State of TN (1994) 6 SCC 632....................................................................................15

R.C. Cooper v. Union of India, A.I.R 1970 S.C. 564...........................................................................17

R.K. Anand v. Delhi High Court, (2009) 8 SCC 106............................................................................16

Rajat Prasad v. CBI (2014) 6 SCC 495................................................................................................16

Ram Krishna Dalmia v. S.R. Tendolkar, AIR 1958 SC 638.................................................................23

Rayala v. Rayala AIR 2008 AP 98.......................................................................................................15

Romesh Thappar v. State of Madras 1950 AIR 124.............................................................................16

Romesh Thapper v. State of Madras, 1950 A.I.R 124 SC....................................................................18

S.K. Chakraborty v. Union of India, (1988) 3 SCC 575.......................................................................20

Sakal Newspapers (Private) Ltd v. Union of India, 1962 A.I.R 305 SC........................................17, 18

Santokh Singh v. Delhi Administration, AIR 1973 SC 1091................................................................25

State of Andhra Pradesh v. McDowell & Co., AIR 1996 SC 1628 at 1641.........................................23

State of Bihar v. Shailabala Devi, 1952 A.I.R 329 SC.........................................................................18

State of Haryana v. Jai Singh, (2003) 9 SCC 114................................................................................21

State Trading Corporation v. Commercial Tax Officer, [1964] 4 S.C.R 99.........................................17

Superintendent Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633........................................26

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U.P. Power Corpn. Ltd v Ayodhya Prasad Mishra, (2008) 10 SCC 139.............................................21

Vrajlal Manilal & Co. v. State of Madhya............................................................................................23

Welfare Arson, ARP v. Ranjit P. Gohil, (2003) 9 SCC 358..................................................................21

'X' v. Hospital 'Z' (1998) 8 SCC 296.....................................................................................................15

Statutes

Information Technology (Procedure & Safeguards for Interception, Monitoring and Decryption of
Information) Rules, 2009..................................................................................................................27

Section 5(2), The Indian Telegraph Act, 1885......................................................................................26

Special Courts Bill, 1978, In re, (1979) 2 SCR 476.............................................................................20

Other Authorities

Ambedkar’s draft, article II(1)(3); Select Documents, II, 4(ii) (d), pages 86-87..................................19

Arohibald Cox, “Freedom of Expression in the Burger Court” (1980) 94 Harvard Law Rev. p. 1-98.
...........................................................................................................................................................21

B.R. Ambedkar, VIII Constituent Assembly Debates 716-17..............................................................17

D.D. Basu, “Laws of the Press In India”, 244 (1980)..........................................................................18

E.S. Venkataramiah, “Freedom of the Press: Some Recent Trends”, 14-25 (Endowment Lecture
1984)..................................................................................................................................................18

Gautam Bhatia, ‘State surveillance and the right to privacy in India: A constitutional biography”
(2014) 26(2) NLSIR..........................................................................................................................15

K.V. Krishnaprasad, “Unveiling the Rights: Corporate Citizenship in India Post State Trading
Corporation.” National Law School of India Review, vol. 22, no. 1, 2010, pp 159-172..................21

Law Commission of India, Hundred First Report on “Freedom of Speech and Expression under
Article 19 of the Constitution.”, May, 1984......................................................................................22

Mary Lyn Stoll, “Corporate Rights to Free Speech?” Journal of Business Ethics, vol. 58, no. 1/3,
2005, pp. 261–269.............................................................................................................................20

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Munshi’s draft, article V(1) and (2); Select Documents, II, 4(ii) (b), page 75.....................................18

O’Kelley, “The Constitutional Rights of Corporations Revisited” (1979) Vol. 67, Georgia Law
Journal 1847......................................................................................................................................22

Pritehett, “The American Constitution” (T.M.R Edition 1977), page 524, fn. 30...............................21

Roger Pilon, "Corporations and Rights: On Treating Corporate People Justly," Georgia Law Review,
vol. 13 (Summer 1979), pp. 1245-1370............................................................................................20

Second Press Commission, Report (1981), Vol. 1, pages 32-34, paragraphs 3-14..............................19

Shiva Rao, “The Framing of the Constitution of India”, (1968), page 211.........................................18

Constitutional Provisions

Art. 19(1)(a), The Constitution of India,1950.......................................................................................15

The Constitution of India, 1950, Article 14..........................................................................................19

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STATEMENT OF FACTS

A group of terrorists attacked a few state installations in Silvia resulting in loss of life and property.
Thereafter, in an investigation carried out by FIBS, no sufficient evidence to make any arrest was
found though some foreign interference was confirmed. ‘Silvia Express’, one of the most reputed
English news daily starts its own private investigation into the matter to unearth the truth. During this
investigation, they discovered that two of the suspects had visited Dr. Simpara’s clinic during
February to May of the year. Dr. Simpara turned down advances by reporters to interview him
regarding the matter, following which they conducted a sting operation. Though they could not find
any connection between the two suspects, they found maps and coded papers unconnected with
medical practice with Dr. Simpara. This report was submitted to Mr. Petro, the Editor-in-Chief, who
authorized its publication and wrote an editorial on it titled “Unholy Connection of Intellectuals with
Unholy Elements”. Truth Only, a news channel conducted a survey on these “unholy connections”
and also published views of various people on the issue. In one such discussion, Dr. Simpara was
portrayed in a bad light and accused of being involved with the perpetrators in the attack. After the
publication of the editorial and the survey, false and distorted news was propagated which resulted in
Dr. Simpara being abused and trolled on social media. This also led to a violent conflict between two
social groups. A Truth and Reconciliation Commission was set up under Justice Kahn of the Supreme
Court. It opined that though Freedom of Press is key to democracy, there must be self-restraint
exercised by the press in order to avoid interference in the field of administration of justice through
media trials. All this while, Dr. Simpara was placed under surveillance by police and FIBS, his phone
conversations were also tapped by using their powers under Sec. 69 of the IT Act. Dr. Simpara was,
also, terminated from his post at Global Medical Institute of Silvia.

APPLICATION TO THIS COURT

Dr. Simpara has sued Mr. Petro, Media House and Truth Only for damaging his reputation and
infringing his privacy in the Supreme Court. Mr. Caviar had filed a similar suit concerning the scope
of Freedom of Press as under Art. 19(1)(a) and whether it can be extended to artificial persons also.
The petition also challenged the constitutionality of Sec. 69 of the IT Act on the grounds that it does
not satisfy the test of proportionality of right to privacy.
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STATEMENT OF ISSUES

ISSUE I. Whether Dr. Simpara is entitled to enjoy the Right to Privacy.

ISSUE II. Whether the guarantee under Article 19(1)(a) of the Constitution extends to artificial
persons.

ISSUE III. Whether section 69 of the Information Technology Act is unconstitutional.

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SUMMARY OF ARGUMENTS

I. DR. SIMPARA IS NOT ENTITLED TO THE RIGHT TO PRIVACY.

The respondents claim that Dr. Simpara is not entitled to the right to privacy against their acts
by presenting a two-fold argument. (A) Fundamental rights are applicable only against the state
and the respondents do not fall under the definition of “state” provided in Art. 12 of the
constitution. (B) The sting operation carried out by the respondents was done with public
interest as its sole objective and is hence legitimate. The freedom of press is protected by the
constitution, it is the duty of the media to disclose the truth. It was carried out after obtaining
certain evidence which put the petitioner’s involvement in the attack under suspicion.

II. THE GUARANTEE UNDER ARTICLE 19(1)(a) EXTENDS TO ARTIFICIAL

PERSONS.

The guarantee of the right of freedom of speech and expression under Article 19(1)(a) of the
Constitution of Silvia, which is pari materia to the constitution of India extends to artificial
persons as Sylvia Express, owned by Media House Pvt. Ltd. and Truth Only are merely a
manifestation of the citizens working under it, and the fundamental rights cannot be denied to
the shareholders, editors, managers who are all citizens of Sylvia. It is humbly submitted that
Article 19(1)(a) of the Constitution envisages freedom of the press and exclusion of artificial
person out of the scope of Article 19(1)(a) would be violative of the ethos of the Constitution.
Further, denying the rights of Article 19 to juristic persons would be contrary to the intention
of the Constitutional framers, who put deep thought into its making.

III. THE SECTION 69 OF THE IT ACT, 2000 IS NOT UNCONSTITUTIONAL

It is submitted that the Section 69 of the IT Act, 2009 is not unconstitutional because there

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 exists a ‘presumption of constitutionality’ in favour of the legislation and the onus is on the
petitioner’s to establish a ‘direct, specific and unambiguous’ charge of infringement of
fundamental rights under Part III by the impugned provision. The right of life and liberty so
guaranteed under Article 21 is subject to the rule of proportionality. Where individual liberty
comes into conflict with an interest of the security of the state or public order, the liberty of the
individual must give way to the larger interest of the nation. The impugned section also
doesn’t violate the Freedom of Speech and Expression under Article 19(1)(a) because any
infringement of the said right, if at all, is merely incidental, remote or collateral. Moreover, the
restriction to the right in 19(1)(a) is based on a rational proximate nexus to its objective.
Section 69 is also not violative of the Article 14 because the said section doesn’t suffer from
the vice or arbitrariness or vagueness, and also that the substantive law in Section 69 is
complemented with procedural guidelines that serve as adequate safeguards to keep the power
of the State in check.

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ARGUMENTS ADVANCED

I. DR. SIMPARA IS NOT ENTITLED TO THE RIGHT TO PRIVACY BECAUSE

THE RIGHT IS LIMITED TO ENFORCEMENT AGAINST THE STATE ALONE.

A. FUNDAMENTAL RIGHT TO PRIVACY IS NOT AVAILABLE AGAINST

NON-STATE ACTORS.

The fundamental rights, provided in Part III of the constitution, are limited in their applicability
to the state alone. The term “state” is defined under Art. 12 of the constitution. Clearly, the
respondents fall outside the purview of the term “state”. So the fundamental right to privacy is
not available against them.

The fundamental rights are not horizontally applicable, specifically for which different
legislations like the Indian Penal Code exist, they are enforceable only against the state. The
fundamental rights are vertically applicable unless explicitly provided in the text of the article
itself like in Art. 15(2).1 In the absence of such explicit mention, it is to be assumed that the
fundamental right is by default applicable only against the state.

The fundamental right to privacy is different from the right to privacy as a common law right,
while the former is applicable only against the state, the latter extends to private individuals
also.2 The case at hand belongs to the latter kind only.

The tortious aspect of the right to privacy has been considered by this court in several cases.3
This case also must be viewed and judged along the same lines. For, it is established law of the

1
Gautam Bhatia, “State surveillance and the right to privacy in India: A constitutional biography” (2014) 26(2) NLSIR.

2
R. Rajagopal v. State of TN, (1994) 6 SCC 632
3

'X' v. Hospital 'Z' (1998), 8 SCC 296; Rayala v. Rayala, AIR 2008 AP 98

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 land that fundamental right to privacy is limited in its application against state only.4

Thus, the petitioner has no right to privacy against non-state actors under which the respondent
of the present case falls. So, the petitioner is not entitled to any right to privacy against the acts
of the respondent.

B. THE STING OPERATION WAS CONDUCTED AS AN EXERCISE OF THE

RIGHT TO FREE PRESS OF THE RESPONDENT.

The right to free press is guaranteed as a fundamental right under the constitution.5 It is the duty
of the media to disclose the truth and inform the public about it. The citizens of a democratic
country are entitled to know the occurrences that affect them.6 Sting operations are one of the
methods used by the media to fulfill this duty.

A sting operation is a complicated plot hatched by two persons to trick a third person into
committing a crime.7 Though not recognized as a law enforcement method in India as of now,
sting operations have been previously recognized as legitimate basing on the grounds that they
were conducted for the sake of public interest.8 The right to sting is an integral part of freedom
of speech and expression and is of great significance in times when we are striving towards a
corruption free society.9

The visits of the suspects to the petitioner’s clinic and his foreign visits to the places of the
suspects together have led to a reasonable doubt about the involvement of the petitioner in the
attacks. The petitioner also turned down requests for an interview. It is under these
circumstances that the respondents have conducted the sting operation to unearth the truth.
They were also successful in finding key information such as the coded documents and maps
unconnected with medical profession in the petitioner’s possession.10

Though the evidence gathered may not be sufficient to indict the petitioner, it proves that the
4
Petronet LNG Ltd. v. Indian Petro Group, 2009 SCC OnLine Del 841
5

Art. 19(1)(a), The Constitution of India,1950.

6

Romesh Thappar v. State of Madras, 1950 AIR 124

7

Rajat Prasad v. CBI, (2014) 6 SCC 495

8

R.K. Anand v. Delhi High Court, (2009) 8 SCC 106; Bharadwaaj Media Pvt. Ltd. v. State, 2007 SCC OnLine Del 1561
9

Aniruddha Bahal v. State, 2010 172 DLT 269

10
Fact sheet.
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 breach of privacy caused due to the sting operation is proportionate to the public interest
involved.

Thus, the sting operation and the subsequent publication of the findings are legitimate in the
eyes of law as they fall under the right to free press and satisfy the proportionality test.

II. THE GUARANTEE UNDER ARTICLE 19(1)(a) EXTENDS TO ARTIFICIAL PERSONS.

A. SILVIA EXPRESS AND TRUTH ONLY ARE MERELY A MANIFESTATION OF

THE CITIZENS WORKING UNDER IT.

Press editors, herein, Mr. Petro and managers of ‘Truth Only’ and Media House Pvt. Ltd. are all
citizens, and when they write in newspapers, they are thereby exercising their individual right
of expression.11 It is a settled law in India that the right of freedom of speech and expression
includes the liberty of the press as well. 12 The corporation per se is a citizen 13 and hence
entitled to the right of freedom speech and expression. The corporation can also claim rights
through its citizen shareholders.14 But the shareholders of a company can challenge the
constitutional validity of a law on the ground of infringement of article 19, if their own rights
are infringed15, and in such a proceeding the company may be joined as a party. 16 It is humbly
submitted that the although the corporations speak as a collective, yet they are comprised of
individual employees and shareholders, all of whom have fundamental rights and hence the
counsel submits that these rights should be retained by the company, as well.

11

B.R. Ambedkar, VIII Constituent Assembly Debates 716-17.

12
Sakal Newspapers (Private) Ltd v. Union of India, 1962 A.I.R 305 SC

13
Brij Bhushan v. State of Delhi, 1950 A.I.R 129 SC

14
State Trading Corporation v. Commercial Tax Officer, [1964] 4 S.C.R 99
15

R.C. Cooper v. Union of India, A.I.R 1970 S.C. 564

16

Bennet Coleman v. Union of India, AIR 1973 S.C. 106

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 B. ARTICLE 19(1)(a) OF THE CONSTITUTION ENVISAGES FREEDOM OF THE
PRESS, WHICH IS AN ARTIFICIAL PERSON:

The press continues to play an important part in creating, molding and reflecting public opinion
in India. The press played a vital role in India's freedom struggle, functioning as a crusading
agent for the independence of the country.17 Freedom of the press was developed in light of the
Constitution through the Cross-Road newspaper18, Organizer newspaper19 and Bharati Press20
case. In the cases of Express newspapers21, Sakal newspaper22 and Bennett Coleman23 case,
various policies, acts and orders were struck down as being violative of art. 19(1)(a) citing that
the press has a right of free propagation and free circulation without restraint on publication. By
way of these cases, it is, thus, humbly submitted that Article 19(1) envisions liberty of the press
or any organization set up for the purposes of mass communication, and therefore the counsel
pleads that Article 19(1)(a) in the Constitution of Silvia extends to artificial persons.

C. INTENTION OF THE CONSTITUTION DRAFTERS WAS IN FAVOUR OF GRANT

OF RIGHTS OF ARTICLE 19 TO ASSOCIATIONS.

The leaders of the independence movement attached great significance to this freedom of
speech and expression for both the individual and the media.24 This was reflected in the
Constitutional drafts and debates:

i. Constitution Drafts:

17

D.D. Basu, “Laws of the Press In India”, 244 (1980).

18

Romesh Thapper v. State of Madras, 1950 A.I.R 124 SC

19

Brij Bhushan v. State of Delhi, 1950 A.I.R 129 SC

20

State of Bihar v. Shailabala Devi, 1952 A.I.R 329 SC

21

Express Newspapers (Private) Ltd v. Union of India, 1958 A.I.R 578 SC

22

Sakal Newspapers (Private) Ltd v. Union of India, 1962 A.I.R 305 SC

23

Bennett Coleman and Co. Ltd v. Union of India, 1973 AIR 106 SC

24
E.S. Venkataramiah, “Freedom of the Press: Some Recent Trends”, 14-25 (Endowment Lecture 1984).
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 As per Dr. Munshi’s draft25 of personal rights which were to be safeguarded by the constitution,
freedom of press was also to be guaranteed, subject only to such restrictions imposed by the law
of the Union as might be necessary in the interests of public order or morality.26

In addition to that, Dr. Ambedkar’s draft27 proposed that “no law shall be made abridging the
freedom of speech, of the press, of association, and of assembly, except for considerations of
public order and morality.”28

ii. Recommendations of the Press Commission

Here, it is worth mentioning the Recommendations of The Press Commission formed in the
post-Independence era:

The Second Press Commission, in May, 1984, in its Hundred First Report on “Freedom of
Speech and Expression under Article 19 of the Constitution.” forwarded to the Government of
India made a special recommendation to the effect that for the purpose of freedom of speech
and expression, all Indian companies engaged in the business of communication, of which the
shareholders are (Indian) citizens shall be deemed to be citizens of India.

"To sum up, a company is not a citizen and therefore cannot claim the fundamental rights
enumerated under Article 19. Since many newspapers are published by the companies, and a
company is not entitled to the fundamental right under Article 19, being not a citizen, we
recommend that all Indian companies, engaged in the business of communication and whose
shareholders are citizens should be deemed to be 'citizen' for the purpose of relevant clause of
Article 19."29

Thus, it is humbly submitted that a literal construction of the word ‘citizens’ in Article 19(1)(a)
should be avoided and it should be extended to the artificial persons, applying the golden and
the mischief rule of interpretation.

25

Munshi’s draft, article V(1) and (2); Select Documents, II, 4(ii) (b), page 75.

26
Shiva Rao, “The Framing of the Constitution of India”, (1968), page 211.

27
Ambedkar’s draft, article II(1)(3); Select Documents, II, 4(ii) (d), pages 86-87.

28
Ibid, note 26.
29

Second Press Commission, Report (1981), Vol. 1, pages 32-34, paragraphs 3-14.

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 iii. PROVISION OF RIGHTS OF ARTICLE 19(1)(a) TO ONLY NATURAL
PERSONS IS VIOLATIVE OF THE ETHOS OF THE CONSTITUTION.

I. That it violates the Right to Equality under Article 14 of the Constitution of India.

Although corporations are treated as artificial persons, they are not capable of voting. The only
means available to corporations to influence laws and the political culture is through their
political speech.30 To limit juristic persons’ political speech would be barring them to have any
fair say in the political process.31 Individuals are allowed to engage in political speech and vote,
if corporations are not given a similar right, they are at a disadvantage in putting forward their
point of view. Corporations may not be able to directly have equal say and equal representation
in government, but continuing to grant them speech protections is an important step towards
achieving the right to equality elucidated in Article 1432 of the Constitution. In the Delhi Cloth
Mills case, it was observed that “the trend is in the direction of holding that in the matter of
fundamental freedoms being guaranteed by Article 19, the rights of the shareholder and the
company which the shareholders have formed are rather co-extensive and the denial to one, of
the fundamental freedom, would be denial to the other.”33 Denial of fundamental right of speech
to corporations was a denial of equality before law as guaranteed by article 14 – this was one of
the grievances that was looked into and objected in the case.

II. The classification between artificial and natural persons is not reasonable

Article 14 permits reasonable classification for the purpose of disposition. 34 The condition that

30
Roger Pilon, "Corporations and Rights: On Treating Corporate People Justly," Georgia Law Review, vol. 13 (Summer
1979), pp. 1245-1370.

31
Mary Lyn Stoll, “Corporate Rights to Free Speech?” Journal of Business Ethics, vol. 58, no. 1/3, 2005, pp. 261–269
32

The Constitution of India, 1950, Article 14.

33

Delhi Cloth Mills v. The Union of India, A.I.R. 1983 S.C. 937,943

34
S.K. Chakraborty v. Union of India, (1988) 3 SCC 575

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 the classification must be founded on an intelligible differentia which distinguishes those that
are grouped together must be fulfilled. 35 The subject matter of the legislation should be a well-
defined class founded on an intelligible differentia which distinguishes the subject matter from
the others that are left out.36 In other words, equals must be treated alike in like circumstances
and conditions37 and such classification is based in legal and relevant consideration. 38 It is
humbly submitted that the respondents should be remedied by the Supreme Court for two
reasons: first , the ‘Silvia Express’ and ‘Truth Only’ news channel’s claim of fundamental
rights is only a matter of form and in essence, the question is that of protection of fundamental
rights of citizens39 who are shareholders, managers and editor-in-chief of the company and
secondly, minor flaws regarding the non- impleading of shareholders as parties to the petition,
ought not to prevent the Supreme Court of Silvia from granting relief as long as a violation of
the citizen’s fundamental right is proved.

III. That there is no rational nexus between the classification and the object sough to be
achieved by the act.

It is humbly submitted that in addition to the reasonable classification, there should also be a
clear nexus between the classification and the objects sought to be achieved. It is part of the
twin test of reasonable classification as propounded by the Hon’ble Supreme Court in a number
of cases.40

There is a specific objective to the freedom of speech and expression – it is for the pursuit of
truth that such freedom is given. It is only when there is free expression of ideas that truth
reveals itself. The object of protecting freedom of speech and expression is to ensure that the
life of the mind, as lived by members of society, is given full expression. Considering the
importance of groups in a liberal democratic society, it would be a dubious and even illiberal

35
Special Courts Bill, 1978, In re, (1979) 2 SCR 476

36
Dharamdutt v. Union of India, (2004) 1 SCC 712
37

Parvej Akhtar v. Union of India, (1993) 2 SCC 221

38

U.P. Power Corpn. Ltd v Ayodhya Prasad Mishra, (2008) 10 SCC 139
39

K.V. Krishnaprasad, “Unveiling the Rights: Corporate Citizenship in India Post State Trading Corporation.” National
Law School of India Review, vol. 22, no. 1, 2010, pp 159-172.
40

LaxmiKhandsari v. State of UP, AIR 1981 SC 873; State of Haryana v. Jai Singh, (2003) 9 SCC 114; Welfare Arson,
ARP v. Ranjit P. Gohil, (2003) 9 SCC 358; Javed v Haryana, (2003) 8 SCC 369.

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 policy to guarantee rights to individuals while denying them to organized groups.41 Such
classifications hinder efforts to achieve liberal democracy, characterized both by vigorous
participation and by vigorous individual rights.42 When the matter is viewed in this light, the
counsel humbly submits that the case for making a distinction between ‘natural’ and ‘artificial’
persons becomes very weak43 and the case for conferring the protection on all entities becomes
almost unanswerable. It should also be borne in mind that the life of the mind is not exclusively
lived on an individual level. It is as much lived through the entities that carry on social
activities. It is for these reasons that the Supreme Court of U.S.A has found corporations to be
persons.44 Even, In Britain, there was an implicit recognition of the principle that a corporation
can make or publish any statement which does not violate a specific prohibitory rule of law by
the House of Lords in the case of Bowman v. Secular Society.45 It is, thus, put forward that
present situation must be remedied and remedied urgently and the guarantee of Article 19 must
be extended to artificial persons, herein Media House Pvt. Ltd. & Only Truth, if the freedom of
speech and expression is to be implemented in its true spirit and if the Constitution is to meet
the needs of the society, its structure and working, its ethos and aspirations.46

III. THE SECTION 69 OF THE IT ACT, 2000 IS NOT UNCONSTITUTIONAL

A. PRESUMPTION OF CONSTITUTIONALITY

The power to legislate is a plenary power vested in the legislature and there exists a
‘presumption of constitutionality’ in favour of the statute legislated by a competent legislative
body, unless the challenge on the constitutionality of the legislation clearly establish that the
fundamental rights under the Constitution are affected. A statute cannot be struck down merely

41
Pritehett, “The American Constitution” (T.M.R Edition 1977), page 524, fn. 30.

42
Arohibald Cox, “Freedom of Expression in the Burger Court” (1980) 94 Harvard Law Rev. p. 1-98.
43

O’Kelley, “The Constitutional Rights of Corporations Revisited” (1979) Vol. 67, Georgia Law Journal 1847.
44

Minneapolis & St. Louis Railroad Co. v. Beckwith, 129 U.S. 26

45

Bowman v. Secular Society, (1917) A.C. 406 (House of Lords)

46

Law Commission of India, Hundred First Report on “Freedom of Speech and Expression under Article 19 of the
Constitution.”, May, 1984.
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 because the Court thinks it to be arbitrary or unreasonable. Any such ground of invalidity must
be related to a Constitutional provision, such as, Articles 14, 19 or 21.

Also the court cannot challenge the statute on the pretext on the legislative body lacking
adequate wisdom, as it is always assumed that the legislature will always make laws in the best
interests of the society.47 So a question on ‘Legislative wisdom’ cannot sustain in a court of
law.48 Thus, making it very clear that a presumption lies in the law to maintain the
constitutionality of the law and the onus is on the party that is challenging the statute to show
that the statute violates the fundamental guarantees provided under part III of the constitution 49.
The allegation that a fundamental constitutional provision is infringed, therefore must be
specific, clear, and concise.50

The judiciary’s function is just to check if the statute in question transgresses on a fundamental
constitution provision or not. A statute cannot be struck down as unconstitutional only because
the court thinks it is unwise or unjustified.51

It is also a principle of law, well established in the case of Kedarnath v. State of Bihar 52, that the
first attempt by the court should be to uphold the statute under challenge and not deem it
unconstitutional just because one of the many possible interpretations of the statute makes it so.
This is also termed as the rule of ‘narrow tailoring’ and has been adopted into the Right of
Privacy discussion by the Hon’ble Supreme Court in Gobind v. State of MP.53

B. SECTION 69 OF THE ACT DOESN’T VIOLATE THE RIGHT TO PRIVACY

UNDER ARTICLE 21

47
Ram Krishna Dalmia v. S.R. Tendolkar, AIR 1958 SC 638; Vrajlal Manilal & Co. v. State of Madhya
Pradesh, AIR 1970 SC 129; Bachan Singh v. State of Punjab, AIR 1982 SC 1325

48
State of Andhra Pradesh v. McDowell & Co., AIR 1996 SC 1628

Charanjit lal Chowdhary v. Union of India, AIR 1951 SC 41.; Bombay v. F.N. Balsara, AIR 1951 SC 318.; Mahant
49

Moti Das v. S.P. Sahi, AIR 1959 SC 942.; Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101

50
Amrit Banaspati Ltd v. Union of India, AIR 1995 SC 1340
51

State of Andhra Pradesh v. McDowell & Co, AIR 1996 SC 1628

52

Kedarnath v. State of Bihar, 1962 AIR 955

53

Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148

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 The Rights of individuals in India are not absolute and are subject to reasonable restrictions.
The Individual rights have to be subservient in nature to the Rights of the public at large. 54
Following this norm, the Right to Privacy, which is a fundamental right under Article 21, is also
subject to the ‘Test of Proportionality’.55

This means that whenever the individual liberty is in conflict with the need of security of state,
or public interest, then the individual right must give way to larger interest of the nation. 56 The
Section 69 of the Information Technology Act, 2000 restricts the individual liberty by
infringing one’s privacy but it does so with an interest to uphold the welfare of the society at
large. It is the State’s duty to ensure that the rights offered under Article 21 are available to the
greatest number of the people.

In the case of Inderjeet Barua vs State of Assam, the Delhi High Court upheld the
constitutionality of the Assam Disturbed Areas Act, 1955 & The Armed Forces Act, 1958 on
the grounds that it is totally within the power of the State to promulgate a law that will be
regarded as a beneficial law despite it infringing the liberty of some individuals. The court
reasoned that the power vested in the police and military through these acts is no unreasonable
or arbitrary because sufficient safeguards existed to ensure proper exercise of power. Similarly,
Section 69 cannot be said to be an arbitrary restriction on the Right to Privacy because it sub
serves a legitimate purpose of ensuring Public Order and Security of State, and there exist
adequate procedural safeguards in the IT (Procedure and Safeguards for Interception,
Monitoring and Decryption of Information) Rules, 2009 to ensure that there is no misuse of the
provision. These rules stipulate who may issue the directions for interception and monitoring;
how to execute such directions; the duration for which they remain in operation; periodic
oversight of interception directions by a Review Committee under the Rule 419 A of the Indian
Telegraph Act, 1885.

Section 69 provides for controlled and safe surveillance with the aim of ensuring peace and
maintaining public order, which are the legitimate functions of the State.

To ensure fairness on all sides there should be harmony between individual rights and the rights
of the public at large, the society takes precedence over the singular interests of an individual.

54

Confederation of Ex-serviceman Association v. Union of India, AIR 2006 SC 2945

55

K.S Puttaswamy v Union of India, (2017) 10 SCC

56
Om Kumar v. Union of India, AIR 2000 SC 3689
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 Since Section 69 has been enacted with a lawful purpose of maintaining peaceful interactions
between members of the society without violating public order, and lays down sufficient
procedural safeguards to check the abuse of the power, it doesn’t transgress the Right to
Privacy under Article 21.

C. SECTION 69 OF THE ACT DOESN’T VIOLATE ARTICLE 19(1)(A)

The court in R.M Malkani v State of Maharashtra 57 held that the surveillance or monitoring of
the actions of a person cannot be said to implicate the freedoms under Article 19 as the
individual is not coerced. The court opined that since the surveillance was done in a
clandestine manner which was largely unobtrusive, it cannot be said to hinder the liberties
offered to that individual under Article 19(1).

Furthermore, no right granted by the Constitution can be said to be absolute. All the rights are
subject to certain reasonable restrictions that may be deemed necessary to maintain the safety,
peace, general order and morals of the society. Thus, the Constitution attempts to strike a fine
balance between individual and social rights. Article 19(1) offers different liberties to
individuals but the State can impose restrictions on these liberties under any of the conditions
listed in 19(2). So, the State may make a law imposing 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, morality, sovereignty and integrity
of India.58

It is the Respondent’s contention that the Restrictions imposed by Section 69 are reasonable
and fall under the ambit of Article 19(2). The court in Santosh Singh v. Delhi Administration 59
held that the test of reasonableness of restriction has to be considered in each case, keeping in
mind the peculiar features of each case. No abstract standard of reasonableness can be laid
down. The idea that the Freedom of Speech and Expression is violated by Section 69 is based
upon the understanding that the perceived suspicion of the State intercepting or monitoring all
the information shared over a computer resource might restrict citizens’ right to express their
opinions on certain provocative or controversial issues. It is the Respondent’s view that even if
such an idea was to be admitted, it affects the citizen’s right of Freedom of Speech and
57
R. M. Malkani v. State of Maharashtra, (1973) 1 SCC 471

58
Santokh Singh v. Delhi Administration, AIR 1973 SC 1091; Laxmi v. State of U.P., AIR 1971 SC 873
59

Santokh Singh v. Delhi Administration, AIR 1973 SC 1091

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 Expression under Article 19(1)(a) in an indirect or incidental manner only. It is well established
that the possible or remote effects of legislation upon a fundamental right cannot be said to
constitute a restriction upon the right.60 So, if the legislation doesn’t infringe the rights under
Art 19(1) in a direct and unambiguous manner but only does so in an indirect manner, it cannot
introduce any infirmity to the validity of the legislation.61

Additionally, Section 69 lays down the measures for the interception of information only on the
grounds of certain reasonable grounds like interest of the sovereignty or integrity of India,
defence of India, security of state, friendly relations with foreign states, or public order or for
investigation of any offence, many of which even find mention in the reasonable restrictions
listed under Article 19(2). Hence, clearly there is no complete ‘extinction’ of the Freedom of
Speech and Expression. If at all, it is just ‘regulation’. The court in Bennett Coleman v. Union
of India62 held that ‘regulation’ and not ‘extinction’ is the standard to which the permissible
restriction may go in order to satisfy the test of reasonableness, for a restriction to be deemed
‘Reasonable’, it must be ‘Direct’ and should have a Rational ‘Proximate Nexus” with achieving
public order.63 The restriction must not be far-fetched, hypothetical or too remote. 64 Section 69
imposes a very calculated restriction on the Article 19(1) that has a very clear Rational
proximate nexus with its objective i.e. maintenance of public order.65 It is a regulatory measure,
which inter alia provides against an apprehended injury as offensive or potentially dangerous
information shared over computer resources has the potential of destroying or hampering public
order. Hence, it is humbly submitted that the restriction imposed by Section 69 is a reasonable
restriction well under the ambit of Article 19(2).

D. SECTION 69 DOESN’T VIOLATE ARTICLE 14

60
Express Newspapers v. Union of India, AIR 1958 SC 578; Bennett Coleman & Co. Ltd. v. Union of India, AIR 1973 SC
106

61
Akashi Padhan v. State of Orissa, AIR 1963 SC 1047

62
Bennett Coleman & Co. Ltd. v. Union of India, AIR 1973 SC 106
63

Arunachala Nadar, M.C.V.S. v. State of Madras, AIR 1950 SC 300

64

Superintendent Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633

65

People’s Union of Civil Liberties v. Union of India, AIR 2004 SC 1442

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 It is the Respondent’s view that Section 69 is not Arbitrary, Vague or Unreasonable and thereby
doesn’t attract Article 14. The Section 69 contains measures to allow for the state to intercept,
monitor or decrypt information shared over computer resources. The impugned section is
broadly based on the Section 5(2) of the Indian Telegraph Act, 1885. 66 The aforementioned
section was deemed to pass the ‘Test of Arbitrariness’ by the Hon’ble Supreme Court in PUCL
v. Union of India.67 Also, the impugned section cannot be said to be unreasonable as it has a
proximate nexus with its objective of maintaining public order, and security of state.

Also, Section 69 doesn’t grant Excessive or Unguided powers to the Executive. Controlled
discretion exercisable according to established guidelines for a clear purpose doesn’t suffer
from the vice of unrestricted or unguided discretion. 68 Section 69 is a substantive law and the
complete procedure for its implementation and other safeguards have been laid down in the IT
(Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules,
2009. These rules stipulate necessary guidelines like who may issue the directions for
interception and monitoring; how to execute such directions; the duration for which they remain
in operation; periodic oversight of interception directions by a Review Committee under the
Rule 419 A of the Indian Telegraph Act, 1885. Additionally, Rule 16 also contains a guideline
that requires the concerned officer to also take note of the proper records mentioning therein,
the intercepted or monitored or decrypted information, the particulars of persons, computer
resource, e-mail account, website address, etc. whose information has been intercepted or
monitored or decrypted. In addition to this, Rule 7 states that any direction issued for
interception or monitoring information must be forwarded to the Review Committee within a
period of seven working days; and the Rule 22 mandates that the Review Committee shall meet
at least once every two months to review the direction issued under Section 69. The presence of
such extensive guidelines clearly goes on to show that Section 69 doesn’t give excessive or
unfettered powers to the State. The adequate safeguards present in the IT Rules, 2009 69 also
ensure that Section 69 manages to retain its constitutionality by applying the Test of
Proportionality. Thus, the Section 69, read alongside the various guidelines under IT Rules,
2009, manages to strike a balance between the Rights of the citizens that it seeks to curtail and

66
Section 5(2), The Indian Telegraph Act, 1885.

67
People’s Union of Civil Liberties v. Union of India, AIR 2004 SC 1442

68
Federation of Railway officers Association v. Union of India, AIR 2003 SC 1344

69
Information Technology (Procedure & Safeguards for Interception, Monitoring and Decryption of Information) Rules,
2009.
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 the function it seeks to achieve.70

PRAYER

In light of the issues raised, arguments advanced and authorities cited, the counsel for the
Respondent humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:

1. That, the petitions filed against them be quashed.

2. That, the guarantee under Article 19(1)(a) extends to artificial persons.

3. That, Section 69 of the Information Technology Act is constitutional.

4. That, Section 69 of the IT Act satisfies the test of proportionality vis-à-vis right to privacy.

And pass any order that this Hon’ble court may deem fit in the interest of equity, justice and
good conscience.

And for this act of kindness, the counsel for the respondent shall duty bound forever pray.

Sd/-

(Counsel for Respondent)

70

Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148

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