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TEAM CODE: 08 reference for petitioners
CLASS MOOT FOR 8th SEMESTER OF BBALLB (HONS) DEGREE
IN THE HON’BLE SUPREMECOURT OF INDIA
AT NEW DELHI, INDIA
SHREYA SINGHAL
V.
UNION OF
INDIA
ON SUBMISSION TO THE REGISTRY OF THE COURT
OF THE HON’BLE SUPREME COURT OF INDIA
MEMORIAL FOR THE PETITIONER

TABLE OF CONTENTS
INDEX OF
AUTHORITIES…………………………………………………………………………………………
………
Table of Cases
Books
Journals
Websites
Other Authorities
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
STATEMENT OF ISSUES
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
ISSUE I : Whether Sec.66A and 69A of the Information Technology Act, 2000 is
violative of Art. (19) (1) (a) of the Constitution of India?

Article 19(1) in the Constitution of India, 1949
Section 66-A of the Information Technology Act 2000
Section 69-A of the Information Technology Act 2000 Right to Free
Speech and Expression is a fundamental right guaranteed under
Part III of the Constitution of India
Fundamental right to freedom of speech and expression has domain
over any other right
Punishment under Section 66A of IT Act, restricts a person to
freely express his views the term ‘Information’ mentioned under
Section 2(v) is Vague
Prayer
ISSUE II : Whether Art. (19) (2) of the Constitution of India is complimentary to
Sec. 66A of the Information Technology Act, 2000?
Article 19(2) in the Constitution of India, 1949
Article 19(1) (a) in the Constitution of India, 1949
The restriction imposed by Sec. 66A on the freedom of speech and expression is
not saved by Art. 19(2) of the Constitution
Fundamental rights available under Art. 19(1)
Importance of Art. 19(1) (a)
Criteria as to the validity of law according to Art.19 (2) of the Constitution
Test of reasonableness
Grounds for imposing reasonale restriction under Art.19(2)

Public order
Decency or Morality
Defamation
Incitement to an Offence
Prayer
ISSUE III: Whether the provisions of Indian Penal Code is sufficient to deal with
cyber crimes in India?
Information Technology Act, 2000 was enacted by an amendment
General Provisions of IPC are sufficient to deal with cyber offences
Obscenity
Defamation
Section 66A of the IT Act is ambiguous
Punishments under IT Act are more stringent when
compared to the IPC
Greater reliance must be placed upon IPC when compared to
the IT Act,2000
IT Act has not at all been effective in checking cyber crimes
Prayer

INDEX OF AUTHORITIES
TABLE OF CASES
Arun Gosh v. State of west Bengal
Burstyn v.Wilson
Central Prison, Fatehgarh v. Ram Manohar Lohia
Chintaman Rao v. State of Madhya Pradesh
Director General of Doordarshan v. Anand Patwardhan
Grayned and Cory Rockland
Herndon v. Lowry
In Re Berubari Case
Justice Holmes in Abrams v. U.S
Kartar Singh v. State of Punjab
Khushboo v.Kanniamal and Anr
Maneka Gandhi v.Union Of India
Public Services Tribunal Bar Association v. State of UttarPradesh
Ramji Lal Modi v. State of Uttar Pradesh
Reno Attorney General of U.S Petal v. American Civil Liberties Union

Romesh Thappar V. State of Madras
Sakal Papers (P) Ltd. And Ors v. UOI
State of Madhya Pradesh v. Baldeo Prasadh
State of Tamil Nadu v. Suheshkatta
Whitney v. California
State of West Bengal v. Subodh Gopal Base
Supdt. Central Prison v. Ram Manohar Lohia
BOOKS
1. K.D. Gaur , The Textbook on The Indian Penal Code, 2nd edn, Universal Law Publishing Co. Pvt
2. Chaudhari and Chaturvedi, Law of Fundamental Rights, 4 th edn, Delhi Law House
3. Eric Barendt, Freedom of Speech, 2nd Indian edn, Oxford University Press 4. B.M. Bakshi, The
Constitution of India, 9th edn, Universal Law Publishing co.
5. Dr. Avatar Singh, Introduction to Interpretation of Statutes, 1st edn, 2001
6. Vakul Sharma, Information Technology Law and Practice, 3rd edn, Universal Law Publishing co. Pvt
Ltd.
7. Suresh T. Vishwanath, Indian Cyber Law, Bharat Law House
8. Prof. M.P.Jain, Indian Constitutional Law, 5 th edn
9. Ratanlal and Dhirajlal, Indian Penal Code, 29th edn, Wadhwa and Nagpur co.
10. N.D. Basu, Indian Penal Code, 11th edn, 2007, Ashoka Law House
11. Dr. J.N. Pandey, The Constitutional Law of India, 49th edn, Central Law Agency
12. Prof. G.C.V. Subba Rao, Indian Constitutional Law, 9th edn, S. Gogia and Co. Hyderabad
13. D.S. Chopra, Interpretation of Statutes, 1st edn, 2014, Thomson Reuters
14. Durga Das Basu, Contemporary on the Constitution of India, 8th edn, 2007
15. Internet Law and Practice by International Contributors, Volume 2, 2013West South Asian edn.

STATEMENT OF JURISDICTION
The petitioner humbly submits the memorandum for petitioner before this
Hon’ble Court. The petition invokes its writ jurisdiction under Article 32 of the
Constitution of India. It sets forth the facts and the laws on which the claims are
based.

STATEMENT OF FACTS
On the day Shiv Sena enforced a ‘bandh’ in Mumbai, Thane and Navi Mumbai
owing to the death of Shiv Sena leader Bal Thakre on Nov !8th 2014.Shaheen
Dhadha, a student, posted a status update on facebook as follows-
“With all respect, every day thousands of people die but still the world moves
on. Just due to one politician died, a natural death everyone goes crazy. Respect is
earned, not given, definitely not forced. Today Mumbai shuts down due to fear
and not due to respect”
To this her best friend Rinu Sreenivasan likes and commented-
“Everyone knows that it was done because of fear”
After this post and comment there was a wide outrage by the public and Shaheen’
uncle’s clinic was attacked. Subsequently both the girls were kept in police cell
overnight for their own safety after which they were arrested the next day.

A Public Interest Litigation was filed by Shreya Singhal challenging the law in the
Court. She contended that Sec.66A of the Information Technology Act, 2000 goes
against the right of freedom of speech and expression as enshrined in Article
19(1) (a) of the Constitution of India.
STATEMENT OF ISSUES
ISSUE I: Whether Sec.66A and 69A of the Information Technology Act, 2000 is
violative of Art. 19(1) (a) of the Constitution of India?
ISSUE II: Whether Art. 19(2) of the Constitution of India is complementary to

SUMMARY OF ARGUMENTS
ISSUE 1
Right to Freedom of Speech and Expression is a Fundamental Right envisaged

under Article 19(1)(a) of the Indian Constitution. It includes the right to express
one’s ideas through any communicable device. This right is being curtailed by
Sections 66-A and 69-A of the Information Technology Act, 2000. Section 66-A of
the I.T Act is vague which has lead to many innocent persons getting trapped.
Communication through Internet is important which has created an open market
for the exchange of ideas.
Hence 66-A of the IT Act must be struck down for being violative of Article
19(1)(a).
ISSUE 2

Article 19(2) of the Indian Constitution imposes restrictions upon the Right to
Freedom of Speech and Expression. These restrictions must be reasonable as per
the Test of Reasonableness. Sections 66-A and 69-A of the IT act, 2000 is not a
part of legislation but was inserted by way of amendment. It is open for the
authorities to act arbitrarily and whimsically in booking persons while exercising
the right under Sections 66-A and 69-A of the IT Act.
ISSUE 3
Indian Penal Code, 1860 is the main criminal code to deal with all crimes. Cyber
crimes were prevalent even before the enactment of Sections 66-A and 69-A of the
Information Technology Act,2000 which were dealt by the 150 year old IPC.
Section 66A of the IT Act is vague and rigid as the punishment under section 66-A
is double that that prescribed under the IPC. Hence IPC is sufficient to deal with
cyber crimes which are known as the Skeleton of Indian Criminal Justice System.
ARGUMENTS ADVANCED
ISSUE I : Whether Sec.66A and 69A of the Information Technology Act, 2000 is
violative of Art. (19) (1) (a) of the Constitution of India?

YOUR LORDSHIPS ,
My first point of contention is that the petitioner has the Right to Freedom of
Speech and Expression envisaged under Article 19(1) (a), which is being curtailed
by Sections 66-A and 69-A of the Information Technology Act 2000. Right to
Expression is an important right and the mention of Liberty of Thought and
Expression is the second stanza of the Preamble itself implies the cardinal value
and the paramount significance of Speech and Expression.
“Article 19(1) in the Constitution of India, 1949
(1) All citizens shall have the right
(a) to freedom of speech and expression;”
Section 66-A of the Information Technology Act 2000 states:
“Punishment for sending offensive messages through communication services etc.
Any person who sends by means of a computer resource or any communication

device:
a) Any information that is grossly offensive or menacing in character or,
b) Any information which he knows to be false but for the purpose of causing
annoyance, inconvenient, danger, obstruction, insult, injury, criminal
intimidation, enmity hatred or ill-will, persistently by making use of such
computer resources or communication device or
c) Any electronic mail message for the purpose of causing annoyance or

inconvenience or to deceive or mislead the addressee recipient about the
origin of such messages, shall be punishable with imprisonment for a term
which may extend to three years or fine

Power to issue directions for blocking for public access of any information through
any computer resources:-
1) Where the Central Government or any of its officers specially authorized by

it in this behalf is satisfied ,that it is necessary or expedient so to do in the interest
of sovereignty or integrity of India, defence of India , security of State, friendly
relations with Foreign states or public order or for preventing incitement to the
commission of any cognizable offence relating to above, it may be subject to the
provisions of sub-section(2) for the reasons to be recorded in writing, by order,
direct any agency of the government or intermediary to block for access by public
any information generated, transmitted, received, stored or hosted in any
computer resources.
2) The procedure and safeguards subject to which such blocking for access by
the public may be carried out shall be such as may be prescribed.
In Re Berubari Case1
The Supreme Court held that the preamble to the Constitution is a key to open
the mind of the makers and show the general purpose for which they made
several provisions of the Constitution.
YOUR LORDSHIPS,
My second point of contention is that, the Right to Free Speech and
1 AIR 1960 SC 845 MEMORIAL FOR THE PETITIONER

Expression is a fundamental right guaranteed under Part III of the Constitution of
India. Right to speech includes right to express one’s
ideas through any communicable devices. Here the petitioner has the right to
express her ideas through any social media sites. Hence curbing such a right
through different laws is an intrusion into this fundamental right. It includes the
right to publish one’s views.
Romesh Thappar v.State of Madras2 , the Court held that
“Freedom of Speech and press lay at the foundation of all democratic

organizations, for without free political discussion no education essential for the
proper functioning of the process of popular government is possible”.
Freedom of speech and expression means the right to express one’s own
convictions and opinions freely by words freely by words of mouth , writing,
printing, pictures or any other mode.It includes expression of ideas through any
communicable medium or visible representation such as gestures, signs and the
like .The expression also cannotes publication and hence Freedom of Press is
included in this category.The Freedom of Propogation of Ideas is secured by the
Freedom of Circulation.Liberty of circulation is essential to that freedom as the
liberty of publication.Indeed ,without circulation the publication would be of the
value .
Freedom of Speech and Expression includes liberty to propogate not only

one’s views only but also the right to propogate or publish the views of other
people .
2 1950 SC R 594 at 602
YOUR LORDSHIPS,

My third point of contention is that the fundamental right to freedom of speech
and expression.
has domain over any other right.No authority has the right to block for public
access and curtail this right for its own satisfaction or for the satisfaction of
the politicians.
Public Services Tribunal Bar Association v. State of UttarPradesh2
It was held that
When acting with the competence,neither Parliament,nor a State Legislature can

violate any of the provisions of the Constitution,eg:-The Fundamental Rights.A
law enacted by the Parliament and the State Legislature;is open for Judicial
Review on the grounds of lack of Legislative Competence and violation of other
provisions of the Constitution.
Fundamental rights are deemed essential to protect the rights and liberties of
the people against the encroachment of the power delegated by them to their
government .3
Maneka Gandhi v.Union Of India4
It was held that the Fundamental Rights represents the basic value cherished by
people of the country since Vedic times.It weaves a “Pattern of Guarantee” on the
2 (2003) 4 SCC 104 p. 120.
3 Hartado v. People of California,28 as per Mathew J

4 AIR 1978 SC 594 at p.619 MEMORIAL FOR THE PETITIONER
basic structure of Human Rights and imposes negative obligations on the State
not to encroach individual liberty dimensions.
YOUR LORDSHIPS,
My fourth point of contention is that the punishment under Section 66A of IT Act,
restricts a person to freely express his views and would just be a puppet in the
hands of the authorities, as to what one cannot. Authorities are required to
tolerate the unpopular views as well.
Whitney v. California,(71 led)
Justice Brandeis held that
“Liberty means the Freedom to Think as you will and Freedom to speak as you
think are means indispensible to the discovery and spread of political truth,that
without Free Speech and Assembly,discussion would be futile,that with them
discussion affords ordinarily adequate protection against dissemination of the
noxious doctrine which was a menace to the Freedom and Fundamental Point of
the Government of America.”
“Freedom of Speech and Press is the Ark of covenant of democracy because

public criticism is essential for the working of the institution”
Similarly in,
Khushboo v.Kanniamal and Anr5
The Court held the Right to Freedom of Speech and Expression is not absolute, it
was necessary as we need to tolerate the unpopular views as well. The right
5 (2010)4SCC 600 MEMORIAL FOR THE PETITIONER

requires free flow of ideas and opinions essential to sustain the collective life of
citizenry.
Justice Holmes in Abrams v. U.S7
“Ultimate good desired is better reached by free trade in ideas that the best test
in truth is the power of thought to get itself accepted in the completion of
market,a ground where wishes could be carried our safely.”
YOUR LORDSHIPS,
My fifth point of contention is that the term’Information’mentioned under

Section 2(v) is Vague,which creates a confusion as to what is violative of
Section66A and what is not and the public’s right to know is clearly violated.
Section 2(v) of the IT Act 2000,defines Information as follows-
2(1)-In this act,unless the content otherwise requires,
“Information” includes data, messages, text, images, sound, voice, codes,

computer programmes, software and databases or microfilm or computer
generated micro-fiche’:
Now from the above definitions 2 things are to be noted-
1) That the definition is not an inclusive one.
2) It does not tell what sort of information can be, but only talks of the
medium through which it can disseminated.

Hence due to the vagueness, it is impossible to know in advance, what actions fall
within the rule and which ones are not covered by it.
7 250 US 616(1919)
The U.S Supreme Court have time and again held in a series of Judgments that
there are no reasonable standards laid to define guilt in a Section which creates
offence.
Herndon v. Lowry 8
It was held that where a statute is vague,so much to make a criminal an innocent
act,a conviction under it cannot be sustained.
Burstyn v.Wilson9
The sacrilegious writings and utterances were outlawed and the U.S. Supreme
Court struck down the offending section.
The Court held that it was not sufficient to say that sacrilegious is definite,
because if it were so interpreted, it would result in striking the whole 300 sections
of NewYork as offending religious beliefs.
Grayned and Cory Rockland10
The law on the subject of vagueness was clearly stated thus:
“It is a basic rule of due process that the enactment is void by vagueness,if its
prohibitions are not clearly defined.

a) Law gives the persons of ordinary intelligence to know what is prohibited,
so that he may act accordingly. Because vague laws keep trapping the innocent by
not providing fair warning.
8 301 U.S. 242 (1937) 9 343 U.S. 495 (1952) 10 33 L.Ed .2d. 222
b) Vague laws impermissibly delegates the basic policy matters to policemen,
judges and juries for resolution on an ad hoc and subjective basis.
“Uncertain meaning inevitably leads citizens to steer far wider of the unlawful
zone than if the boundaries of forbidden areas were dearly made”.
State of Madhya Pradesh v. Baldeo Prasadh6
In this case, the word “Goonda” under the Goondas Act, was held to be vague
and violative of the Fundamental Right of the Constitution.It was held by the
Court that necessary safeguards should be provided by the Act to protect the
Fundamental Right of Innocent Citizens and save them from unnecessary
harassment.
Kartar Singh v. State of Punjab7
Court held that,
“It is the basic principle of legal jurisprudence that an enactment is void for
vagueness if its prohibition are not clearly defined”.
Vague laws offend several important values.It is insisted or emphasized that

laws should give the person of ordinary intelligence, a reasonable opportunity to
know what is prohibited, so that he may act accordingly.”Vague laws trap
innocent by not providing fair warning.Such a law impermissibly delegates basic
6 (1961) I SCR, 970

7 MEMORIAL
(1994) 3 scc 569 AT PARA 130-131 FOR THE PETITIONER
policy matters to policeman and also judges for resolution on ad hoc and
subjective basics”.
It was said that the uncertain and undefined words deployed inevitably leads
citizens to “steer far wider of the unlawful zone than if the boundaries of
forbidden areas were clearly marked.
Due to the Vague laws,neither the accused person would be put on notice as
to what exactly the offence is which has been committed nor would the
concerned authorities administering the section be clear as to which side of a
clearly drawn line is a particular communication fall.Hence it is submitted that the
vague Section 66A of the IT Act should be struk down.
YOUR LORDSHIPS,
My sixth point of contention is that internet is important in this modern era.

Expulsion of the usage of internet may result in an argument for democracy. With
the arrival of internet, greater participation in public discourse and politics,
enables everyone to share their views with others and communicate them to the
authorities.8
Many optimists believe Internet to create genuinely free and open market for the
exchange of ideas, making realistic Holmes J’s famous metaphor9 .Internet has to
be treated as a public forum such that the individuals can claim access to it. It also
8For a discussion of the implication of Net for democracy in Britain Sec C. Walker and Y Akdeniz Virtual Democracy
(1993) PC 489
9Dalzell Dist.Judge,in ACLU v .Reno(L.2 above) . 1 commenting on Holmes market place of ideas arguments in
Abrams U.S 250 US 616,630(1913) MEMORIAL FOR THE PETITIONER
helps the individuals to speak to each other on an unlimited range without
significant cost.
Prayer
Therefore the appellant prays that this Hon’ble Court may be pleased to consider
the above points of arguments and strike down Sections 66-A and 69-A of the
Information Technology Act,2000 which are contrary to the fundamental right to
freedom of speech and expression .

ISSUE 2 : Whether Art. (19) (2) of the Constitution of India is complimentary to
The Counsel petitioner most humbly submits that Sec. 66A if IT ACT, 2000 is not
saved by Art. 19 (2) of the Indian Constitution.
Sec. 66A reads as-
“66A. Punishment for sending offensive messages through communication

service, etc.
Any person who sends, by means of a computer resource or a communication

device,—
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing
annoyance, inconvenience, danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred or ill will, persistently by making use of such
computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing
annoyance or inconvenience or to deceive or to mislead the addressee or
recipient about the origin of such messages,shall be punishable with
imprisonment for a term which may extend to three years and with fine.
Explanation.— For the purpose of this section, terms “electronic mail” and
“electronic mail message” means a message or information created or
transmitted or received on a computer, computer system, computer resource or
communication device including attachments in text, images, audio, video and
any other electronic record, which may be transmitted with the message.”
Whereas Art. 19(2) read as follows-
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any
existing law, or prevent the State from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the right conferred by the said
sub clause in the interests of the sovereignty and integrity of India, the security of
the State, friendly relations with foreign States, public order, decency or morality
or in relation to contempt of court, defamation or incitement to an offence.”
Whereas, Art.19 (1) (a) defines-
(1) All citizens shall have the right
(a) to freedom of speech and expression;”
YOUR LORDSHIPS,
The Counsel submits that the restriction imposed by Sec. 66A on the freedom of
speech and expression over any communication device or by means of computer
resources are not reasonable and thus not saved by Art. 19(2) of the Constitution.
YOUR LORDSHIPS,

The question arises are whether Art. 19(2) saves Sec.66A of IT Act, 2000 and
whether the restrictions imposed by the said provision are reasonable as
mentioned in the aforesaid Article of the Constitution.
Before, analyzing the matter in detail it is important to note that the freedom
recognized by Art.19 (1) of the Constitution as fundamental rights available to the
citizens of India are of vital importance. The six freedom mentioned in Art. 19 (1)
are-
(a) Freedom of speech and expression;
(b) Freedom to assemble peacefully and without arms;
(c) Freedom to form associations or unions;
(d) Freedom to move freely throughout the territories of India;
(e) Freedom to reside and settle in any part of the territory in India;
(f) Freedom to practice any profession, or to carry on any occupation, trade or

business.
State of West Bengal v. Subodh Gopal Base10
In this case, the court held that the rights enumerated in Art. 19(1) are those
great and basic right which are recognized as natural rights in the status of citizen.
YOUR LORDSHIPS,
My first point of contention is that,
Among the six natural rights available to the citizens, the one enshrined in Art.
19(1) (a) is of vital importance. i.e. Right to freedom of speech and expression.
Even though it is true that by the virtue of Art.19(2) the aforesaid freedom may
be restricted reasonably by law.
10 AIR 1954 SC,92,95 MEMORIAL FOR THE PETITIONER

The Preamble of the Constitution of India inter alia speaks of liberty of
thought,expression, belief, faith and worship. It also says that India is a sovereign
democratic republic and the freedom of speech and expression is of paramount
importance under a democratic constitution which envisage changes in the
composition of legislature and government and must be preserved, as held in
Romesh Thappar V. State of Madras11
While, Sec.66A of IT Act, 2000 imposes a restriction on the natural rights of a

citizen. The right of freedom of speech and expression is needed both from the
point of view of liberty of the individual and from the point of view of our
democratic form of government. Thus any kind of restriction upon the right of
freedom of speech and expression in any form is thus to be uprooted.
YOUR LORDSHIPS,
My second point of contention is based on,
The criteria as to the validity of law according to Art.19 (2) of the Constitution.
The consideration which generally prevail in judging the validity of a law are-
(a) Whether the law impose a restriction on the freedom in question?
(b) Whether the restrictions have been imposed by law?
(c) Whether the restrictions are reasonable? And
(d) Whether the restrictions besides being reasonable is imposed for one of the
specified purposes relevant to the freedom in question enumerated in the
applicable clauses out of (2) to(6) of Art. 19?
The restriction here is Sec. 66A of IT Act, 2000. It infringes the fundamental right
to free speech and expression and it is not saved by any of the rigjt subjects
contained in art. 19 (2).
11 Ibid 2 MEMORIAL FOR THE PETITIONER

The causing of annoyance, inconvenience, enmity, hatred or ill will are all outside
the purview of art. 19(2), Further in creating an offence, Sec.66A suffers from the
veil of vagueness ( as already discussed in Issue I) because none of the aforesaid
terms are even attempted to be defined. The result being that innocent persons
are roped in as well as those who are not. Such persons are not told clearly on
which side of the line they fall; and it would be open to the authorities to be
arbitrary and whimsical as they like in booking such persons under the said
section. The enforcement of said section would really be the restriction, again, as
mentioned aforesaid is imposed by Sec66A of the IT Act, 2000.
YOUR LORDSHIPS,
My third point of contention is based on test of reasonableness,

Test of Reasonableness
The restriction, on the rights under Art.19 (1) can only be imposed by a law. The
phrase ‘reasonable restriction’ means that the restrictions imposed on a citizen in
the enjoyment of his rights which are guaranteed. A law restraining the exercise
of any of the rights guaranteed by clause (1) of Art.19 to be constitutionally valid
must satisfy two conditions-
(1) the restriction must be for the particular purpose mentioned in the clauses
permitting the imposition of restriction in the particular right, and
(2) the restriction must be reasonable.
Sec. 66A restricting the freedom of speech and expression is not for any purpose
in particular. It creates vague and ambiguous restriction upon anything posted

over through the medium of computer resources or any other communication
devices.
In applying the test of reasonableness the broad criteria is whether the law strikes
a proper balance between social control on the one hand and the rights of
individual on the other hand. The following aspects must be taken into
consideration-
(a) nature of the right infringed;
(b) underlying purpose for the restriction imposed;
(c) evil sought to be remedied by the law, its extend and urgency (d) how far the
restriction is or is not proportionate to the evil; and
(e) prevailing conditions at the time.
Applying the aforesaid test in Sec.66A of IT Act, 2000 the nature of rights infringed
by Sec.66A is the freedom of speech and expression.
The purpose for which the restriction was imposed is on the background of
increased cyber crimes. But the fact, that the provisions of Indian Penal Code is
sufficient enough to deal with the crimes mentioned in Sec.66A and also the other
sections of IT ACT, 2000 Sec.66B to 67C( the issue will be dealt separately as Issue
III)
The evil which is sought by including the section is to prevent public from using
the communication device illegally and abusively. Internet being a wide forum it
has access to public more than any other media. It is true that cyber crimes has
accelerated but the solution for preventing such crimes is not by the way of
putting up restrictions to the fundamental rights of a human being.

Sakal Papers (P) Ltd. And Ors v. UOI17
The court held that, under our constitutional scheme, it is not open to the State to
curtail freedom of speech and expression to promote the general public interest.
By upholding Sec.66A not only persons who do offence are being bought in front
of law to be punished but also those innocent people who are booked by
authorities by their arbitrary discretional power, are also being punished because
the law is arbitrary and does not draw a fair line between the information passed
with or without intention.
A crime is happened combining both ‘actus rea’ and ‘mens rea’. Those who do not
have an intention to cause any of the mentions in Sec.66A but has send his
opinions and expressions are being also punishes. This is opposed to the very
principle of justice.
“Never punish an innocent even though thousands of culprits go unpunished”
17 1926, 3, SCR 842

Chintaman Rao v. State of Madhya Pradesh18
The court said, the phrase ‘reasonable restriction’ connotes that the limitation
imposed on a person in enjoyment of the right should not be arbitrary or of an
excessive nature, beyond what is required in the interests of the public. The word
‘reasonable’ implies intelligent care and deliberation, that is, the choice of a
course which reason dictates. Legislation which arbitrarily and excessively invades
the right cannot be said to contain the quality of reasonableness and unless it
strikes a balance between freedoms guaranteed in art. 19(1) and social control
permitted by relevant clauses of Art. 19

In the present case, the section is arbitrary and excessive by not clearly defining
the circumferences into which the offences fall and the evil sought to be
prohibited and restriction imposed are not proportionate.
Taking all these contexts into relevance, it can be proven without any doubt that
the restriction being put on Art. 19 (1) (a) by sec. 66A is totally unreasonable.
YOUR LORDSHIPS,
My fourth point of contention is that,
Art. 19(2)of Indian constitution does not compliment Sec.66A of IT Act, 2000.
Art 19(2) specifies the grounds on which the freedom of speech and expression
may be restricted. It enables the legislature to impose reasonable restrictions on
the right of free speech and expression ‘ in the interest of’ or ‘in relation’ to the
following-
(1) Sovereignty and integrity of India;
(2) Security of the State;
(3) Friendly relations with foreign states;
(4) Public order;
18 1950 SCR 759

(5) Decency and morality;
(6) Contempt of court;
(7) Defamation;
(8) Incitement to an offence.
As among the restrictions enlisted in Art.19(2)those which are relevant to the

context and which may be wrongly interpreted to be a reasonable restriction are,

* Public order * Decency and morality
* Defamation * Incitement to an offence
Sec. 66A of IT Act, 2000 being vague, ambiguous and arbitrary, it is to be checkd
whether the terms mentioned in Sec.66A are synonymous to those restrictions
mentioned in Art. 19(2) and thus Sec.66A is saved or not;
Public order
The preservation of public order is one of the grounds for imposing restriction on
the freedom of speech and expression. The expression ‘public order’ is
synonymous with public peace, safety and tranquility, as held in Supdt. Central
Prison v. Ram Manohar Lohia19. The expression ‘public order’ signifies absence of
disorder involving breaches of local significances in contradiction to national
upheavals such as revolution, civil strife of wars, affecting the security of state.
The terms mentioned in Sec.66A does not lead to or signify anything covered in
the definition of ‘public order’.
Central Prison, Fatehgarh v. Ram Manohar Lohia20
The court held that the ‘restriction’ made in the interests of public order must
also have reasonable relation to the object sought to be achieved i.e. the public
order. If the restriction has no proximate relationship to the achievement of
19 AIR 1960 SC 633 at p. 641 20 1960 2 SCR 821

public order, it c12annot be said that the restriction is reasonable within the
meaning of he said clause.
Arun Gosh v. State of west Bengal21
In this case, the court observed that the question to be asked in a case relating to
such matter is that-
12 SCR 288 MEMORIAL FOR THE PETITIONER

‘Does it lead to disturbance of the current of life of the community so as to
amount to a disturbance of the public order or does it affect merely an individual
leaving the tranquility of the society undisturbed? This question has to be faced in
every case on facts. There is no formulae by which one case can be distinguished
from another’
Here, there is no proximate relationship between the restriction made and

achievement of public order. Again in, Romesh Thoppar’s case13, the court held
that the term ‘public order’ does not refer to ordinary breaches of public order
which do not involve any change to the state itself.
By relying upon the test to be gone through as stated in Arun Gosh v. State of
West Bengal14, it is clear that sec. 66A is intended to punish any person who uses
internet to disseminate any information that falls within the sub-clauses of
Sec.66A. it is noticed that the recipient of the written word that is sent by the
person who is accused of the offence is not of any importance so far as this
section is concerned. It is clear, therefore, that the information that is
disseminated may be to one individual or to several. The section makes no
distinction between mass dissemination and dissemination to one person.
Further, the section does not require that such message should have a clear
tendency to disrupt public order. Such message need not have any potential
which would disturb the community at large. And there is no ingredient in the
offence which would have a tendency of being an immediate threat to the public
safety or tranquility. On all these counts, it is clear that the section has no
proximate relation to public order.
13 Ibid 2
14 Ibid 10 MEMORIAL FOR THE PETITIONER
Ramji Lal Modi v. State of Uttar Pradesh24
It was held, in this case, that merely creating disaffection or creating feelings of
enmity in certain people was not good enough to create an offence. If so it would
violate the fundamental right of free speech and expression.
YOUR LORDSHIPS,
It may be noted based on the above contentions that, the terms defining offences
in Sec.66A of IT Act, is not parallel to Public order enshrined as a restriction upon
the freedom of speech and expression.
Decency or Morality
Decency or morality is another ground on which freedom of speech and

expression may be reasonably restricted.
Director General of Doordarshan v. Anand Patwardhan25
The court, in this case, said that a material may be regarded as obscene if the
average person applying contemporary community standards would find the
subject matter taken as a whole appeals to the prurient interest and that taken as
a whole it otherwise lacks serious literary, artistic, political, educational or
scientific value.
Sec.66A cannot possibly, applying what has been said with regard to public order,
create an offence falls within the expression ‘decency’ or ‘morality’ in that what
may be grossly offensive or annoying under the section need not be obscene at
all- in fact the word ‘obscene’ is conspicuous by its absence in Sec.66A of IT Act,
2000
24 1957 SCR 860 at p. 867 25 2006 (8) SCC 433

YOUR LORDSHIPS,

The counsel submits that, neither in the gorund of obscenity Sec.66A is saved by
Art. 19 (2)
Defamation
Defamation is defined in Sec.499 of Indian Penal Code.
It is to be noted that for something to be defamatory, injury to reputation is a

basic ingredient. Sec.66A of IT Act, 2000 does not concern itself with injury to
reputation. Something may be grossly offensive and may annoy or be
inconvenient to somebody without at all affecting his reputation. It is clear
therefore, that the section is not aimed at defamatory statements.
YOUR LORDSHIPS,
The counsel, humbly request to note the above mentioned point.

Incitement to an Offence
Equally, Sec.66A has no proximate connection with a incitement to commit an

offence. Firstly, the information disseminated over the internet need not be
information which ‘incites’ anybody at all.
Written words may be sent that may be purely in the realm of ‘discussion’ or
‘advocacy’ of a ‘particular point of view’. Further, the mere causing of annoyance,
inconvenience, danger etc., or being grossly offensive or having a menacing
character are not offences under the Indian Penal Code at all. They may be
ingredients of certain offences in themselves. For these reasons, Sec.66A has
nothing to do with ‘incitement to an offence’. As Sec.66A has nothing to do with
‘incitement to an offence’ and as Sec.66A severely curtails information that may
be sent on the internet based on whether it is grossly offensive, annoying,
inconvenience etc. and being unrelated to any of the eight subject matters under
Art. 19 (2) must, therefore, fall foul of Art.19 (1) (a) and not being saved under
Art. 19 (2) and it may be declared as unconstitutional.

Prayer
The counsel humbly prays that based on the above contentions, Art. 19(2) does
not compliment Sec.66A of IT Act, 2000

YOUR LORDSHIPS,
My first point of contention is that the Information Technology Act, 2000 was
enacted by an amendment. Cyber crimes did happen in India even before the
enactment of the IT Act 2000.And these crimes were dealt with the help of IPC.
Hence there is no requirement for a separate law. The genesis of every cyber
crime is available in the general criminal law i.e. INDIAN PENAL CODE. Here
relevant provisions from the code are referred along with the IT Act,
2000.Therefore with every new cyber crime emerging, it is of no use to bring in
new statutes but to deal with such crimes by making the utmost use through the
existing laws.
YOUR LORDSHIPS,
My second point of contention is that the General Provisions of IPC are sufficient
to deal with cyber offences. Since the beginning of civilization, man has always
been motivated by the need to make progress and better the existing
technologies. This has lead to tremendous development. However rapid evolution
of internet has also given birth to numerous legal issues and questions. As the
scenario continues to be still not clear, countries resorting to different approaches
towards controlling, regulating and facilitating electronic communications and e-
commerce, like the two sides of the same coin. Cyberspace too has its own
weaknesses and strength. In Internet related cyber crimes, obscenity and
pornography poses a major challenge, especially in societies, where moral
standards are held in the core value of culture and reinforced by religious values.
Thus standards of such morals vary from society to society and even in a given
society undergo substantial changes.

Now to deal with such Cyber Offences, it is always better to deal with the old
existing general law, which has more experience rather than bringing new laws
for new crimes, thus making the procedure more complicated.
Reno Attorney General of U.S Petal v. American Civil Liberties Union 26
In this case the two provisions of Communications Decency Act 1960, was held to
be unconstitutional, which was made to protect the minors. The Supreme Court
impugned a large amount of speech in order to protect the children, which
actually the adults had constitutional right to. It also contained a large amount of
non-pornographic material with serious and other educational values. Hence
these two provisions were repealed so as to do justice to a small percentage of
people; a considerable amount of injustice was being done to the rest of the
society.
YOUR LORDSHIPS,
My third point of contention is that it is better to take refuge in the 150 year old
law. The main object of IPC was to provide a General Penal Code. Hence a great
reliance has been placed upon IPC to do off with all criminal offences.
There are a large number of offences under the IT Act which can easily be dealt
with IPC.
Obscenity
In India, the legal provisions that regulate obscenity are Sections 292,293 and 294
of IPC. There are various tests like contemporary test and Hichlins test to
determine the contempt of obscenity in a case. As to what is considered as
obscene by one group might not be considered as obscene by the other. The
courts have been successful in tackling with problem of obscenity by using the
provisions under IPC and have been able to curb a considerable amount of
obscenity.
26

507 U.S. 292, 302 (1993)
Defamation – Section 499 of IPC
IPC defines Defamation as “Whoever by words either spoken or intended to be

read, or by signs or by visible representation makes or publishes any imputation
concerning any person intending to harm or knowing or having reason to believe
that such imputation will harm the reputation of such person is said, except in
cases, hereinafter expected to defame that person. In India cyber defamation
results in civil as well as criminal proceedings against the accused.
State of Tamil Nadu v. Suheshkatta27
In this case the accused send defamatory and annoying messages about a
divorcee in Yahoo message group. There was a false email in the name of the
victim and the message was send to the victim as well. Here the accused was
charged under the provisions of IPC.
In India a person violating the cyber crimes, has always been charged mostly
under the IPC provisions or the IPC provisions along with the IT Act. The Counsel
humbly submits that if the IT Act were sufficient to deal with cyber crimes then
why IPC provisions are taken into account by the learned courts to punish the
offender? It is because even they know that it is better to rely on the old
experienced law than placing their trust on special provisions.
YOUR LORDSHIPS,
My next point of contention is that Section 66A of the IT Act is ambiguous. The
Court cannot rely on an ambiguous term. Most of the Sections of the IT Act are
ambiguous like Section 2(v) of the IT Act which does not define information but
only the mediums through which it can be sent are there. None of the expressions
used in Section 66A is defined. Even criminal intimidation has not been defined.
27

C.C.NO.4680/2004
Reno Attorney General of U.S. v. American Civil Liberties Union28
Under this case, the term ‘Patently Offensive’ was not defined under the
Communications Decency Act, 1960, which is similar to our case, as IT Act does
not define ‘Grossly Offensive’. There are more reasons regarding the vagueness of
Section 66A of the IT Act, 2000, which has been dealt in Issue-1.
Therefore relying on such an incomplete and ambiguous Section is worthless

and a mockery to Justice.
YOUR LORDSHIPS,
My next point of contention is that the Punishments under IT Act are more
stringent when compared to the IPC. Under Section 67 of the IT Act, first
conviction is punished with fine of Rs.1 lakh and is the event of second or
subsequent conviction, the culprit will be punished for a description of a term
which may extend to 10years and fine of Rs.2 lakhs. While under Section 292 of
the IPC, first conviction shall be punished for a term extending to 2years and
fine of Rs.2000/-.Second and subsequent conviction will result in further
imprisonment of 5years and also fine which may extend to Rs.5000/-
On comparing the punishment under these 2 laws, IT Act is more stringent.

The punishment stated under IT Act,2000 is double the punishment given in IPC
for the similar sections. So it is strict and rigid. This will result in overcrowding of
prisons and no place for those who commits serious offences.
Without any demarcation or limit under Section 66A of the IT Act, 2000,it is
difficult for the users to know as what is right and what is wrong. Such a strict
28

punishment for first offenders under IT Act implies that there is no mercy for the
culprits, many of who are wrongly accused.
Ibid 28
29

YOUR LORDSHIPS,
The Counsel humbly submits that greater reliance must be placed upon IPC when
compared to the IT Act,2000.IPC is the earliest comprehensive and codified
criminal law that the British Indian Administration enacted primarily for India but
later on extended to other Asian countries like Singapore, Malaysia. It is to the
credit of this unique code that even after 150years, it has continued to occupy the
position of the basic criminal law in India. Hence IPC is the ‘Skeleton of Indian
Criminal Justice System’. The most important feature of IPC is its impartial nature
of judgments promoted by the document. When compared to the IT Act, IPC is
impartial and does not act arbitrarily. Unlike the IT Act, due to its vagueness in
terms like injury, insult, annoyed mentioned under Section 66A has led to many
innocent persons roped, who are actually not the culprits. It is also open for
increasing number of authorities to act in arbitrary or whimsical manner in
booking the person under the act. The IT Act does not clearly tell us to what can
lead to cyber offences.
IPC in the present day has almost done away with all its flaws and has
evolved into a modern law enforcing document that takes into consideration the
humane side of the personalities of culprits as well.
YOUR LORDSHIPS,
The Information Technology Act has not at all been effective in checking cyber
crimes. In fact it is a toothless wonder in fighting against the cyber crime. The IT
Act has become irrelevant because of its quantum of punishment. Majority of the
cyber crimes are non-bailable, while today even murderers get bail. It does not
cover a large number of crimes committed through mobile, which is not taking
serious action against serious offenders.
Therefore counsel humbly submits that the court must strike down Section 66A as
the 150 year old IPC is sufficient to deal with cyber crimes.

Prayer
Therefore, the appellant prays that this Hon’ble Court may be pleased to
consider the above point of arguments and allow the appeal to strike down
Section 66A of the Information Technology Act, 2000.
Be Pleased to Consider
Advocate of Appellant

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TEAM CODE: 08 reference for petitioners

CLASS MOOT FOR 8th SEMESTER OF BBALLB (HONS) DEGREE

IN THE HON’BLE SUPREMECOURT OF INDIA

AT NEW DELHI, INDIA

ON SUBMISSION TO THE REGISTRY OF THE COURT

OF THE HON’BLE SUPREME COURT OF INDIA

MEMORIAL FOR THE PETITIONER

violative of Art. (19) (1) (a) of the Constitution of India?

MEMORIAL FOR THE PETITIONER

Section 66-A of the Information Technology Act 2000

Section 69-A of the Information Technology Act 2000 Right to Free

Speech and Expression is a fundamental right guaranteed under

Part III of the Constitution of India

Fundamental right to freedom of speech and expression has domain

over any other right

Punishment under Section 66A of IT Act, restricts a person to

freely express his views the term ‘Information’ mentioned under

Section 2(v) is Vague

ISSUE II : Whether Art. (19) (2) of the Constitution of India is complimentary to

Sec. 66A of the Information Technology Act, 2000?

Section 66-A of the Information Technology Act 2000

Article 19(2) in the Constitution of India, 1949

Article 19(1) (a) in the Constitution of India, 1949

not saved by Art. 19(2) of the Constitution

Fundamental rights available under Art. 19(1)

Importance of Art. 19(1) (a)

Criteria as to the validity of law according to Art.19 (2) of the Constitution

Grounds for imposing reasonale restriction under Art.19(2)

MEMORIAL FOR THE PETITIONER

cyber crimes in India?

Information Technology Act, 2000 was enacted by an amendment

General Provisions of IPC are sufficient to deal with cyber offences

Section 66A of the IT Act is ambiguous

Punishments under IT Act are more stringent when

compared to the IPC

Greater reliance must be placed upon IPC when compared to

IT Act has not at all been effective in checking cyber crimes

MEMORIAL FOR THE PETITIONER

Arun Gosh v. State of west Bengal

Central Prison, Fatehgarh v. Ram Manohar Lohia

Chintaman Rao v. State of Madhya Pradesh

Director General of Doordarshan v. Anand Patwardhan

Grayned and Cory Rockland

Justice Holmes in Abrams v. U.S

Kartar Singh v. State of Punjab

Khushboo v.Kanniamal and Anr

Maneka Gandhi v.Union Of India

Public Services Tribunal Bar Association v. State of UttarPradesh

Ramji Lal Modi v. State of Uttar Pradesh

Reno Attorney General of U.S Petal v. American Civil Liberties Union

MEMORIAL FOR THE PETITIONER

Sakal Papers (P) Ltd. And Ors v. UOI

State of Madhya Pradesh v. Baldeo Prasadh

State of Tamil Nadu v. Suheshkatta

State of West Bengal v. Subodh Gopal Base

Supdt. Central Prison v. Ram Manohar Lohia

MEMORIAL FOR THE PETITIONER

MEMORIAL FOR THE PETITIONER

To this her best friend Rinu Sreenivasan likes and commented-

“Everyone knows that it was done because of fear”

MEMORIAL FOR THE PETITIONER

violative of Art. 19(1) (a) of the Constitution of India?

ISSUE II: Whether Art. 19(2) of the Constitution of India is complementary to