11stst UPES

UPES ONLINE
ONLINE INTERNAL
INTERNAL MOOT
MOOT COURT
COURT COMPETITION,
COMPETITION, 2020
2020 1

Before, THE HON’BLE SUPREME COURT OF INDRAHAAR AT DILLIBAD

CIVIL ORIGINAL JURISDICTION

W.P. NO. (Civil) 263 of 2020

MR. VIJAY TYAGI ……………………………………………………… PETITIONER
VERSUS
STATE OF VINDHYAPUR ……….……………………………….…..... RESPONDENT

AND

PUBLIC INTEREST LITIGATION NO. 165 OF 2020

HAQ: CENTRE FOR HUMAN RIGHTS ………….………………… PETITIONER

VERSUS
STATE OF VINDHYAPUR …………………………………………… RESPONDENT

AND

MR. SANJEEV MEHRA ………………………………………….....… PETITIONER

VERSUS
UNION OF INDRAHAAR ………………..…………………………… RESPONDENT

UNDER ARTICLE 32 OF THE CONSTITUTION OF UNION OF INDRAHAR

IN THE MATTER CONCERNING VIOLATION OF FUNDAMENTAL RIGHT.

MEMORIAL ON BEHALF OF PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

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

LIST OF ABBREVIATIONS .............................................................................................................. 3

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

STATUTES ........................................................................................................................................ 4
CASES ................................................................................................................................................ 4
BOOKS AND ARTICLES ................................................................................................................. 5
LEGAL DATABASES ....................................................................................................................... 6

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

STATEMENT OF JURISDICTION ................................................................................................... 9

CLUBING OF PETITIONS............................................................................................................... 10

STATEMENT OF ISSUES ................................................................................................................ 11

SUMMARY OF ARGUMENTS ........................................................................................................ 12

ARGUMENT ADVANCED ............................................................................................................... 13

ISSUE 1 - WHETHER THE WRIT PETITION NO. 263 OF 2020 FILED BY MR. VISHAL
TYAGI IS MAINTAINABLE? ........................................................................................................ 13
1.1 RIGHT OF FREEDOM OF SPEECH AND EXPRESSION ............................................ 13
1.2 RIGHT TO PRACTICE ANY PROFESSION, OR TO CARRY ON ANY OCCUPATION,
TRADE OR BUSINESS ................................................................................................................ 14
ISSUE 2 - WHETHER THE IMPOSITION OF SECTION 144 AND SUSPENSION OF
INTERNET THROUGHOUT THE STATE OF VINDHYAPUR WAS VALID? ........................... 16
2.1 CURFEW U/S 144............................................................................................................. 16
2.2 SUSPENSION OF INTERNET .......................................................................................... 17
2.3 WHETHER THE SUSPENSION OF INTERNET VIOLATES ARTICLE 19 OF THE
INDIAN CONSTITUTION?.......................................................................................................... 19
ISSUE 3 - WHETHER IMPOSITION OF PRESIDENT’S RULE IN THE STATE OF
VINDHYAPUR WAS JUSTIFIED? ................................................................................................ 21
3.1 PRESIDENT RULE IS A LAST RESORT ........................................................................ 21
3.2 ABUSE OF POWER ........................................................................................................ 22

PRAYER .............................................................................................................................................. 24

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LIST OF ABBREVIATIONS

& And
AIR All India Reporter
AIHC All India High Court Cases
Anr. Another
Art. Article
COVID-19 Coronavirus Disease
CM Chief Minister
Cr. Lj Criminal Law Journal
CrPC Code of Criminal Procedure
Del Delhi High Court
Govt. Government
HC High Court
Hon’ble Honourable
i.e. That is
IPC Indian Penal Code
KHC Kerala High Court
LR Law Report
Ltd. Limited
Ors. Others
PIL Public Interest Litigation
PPE Personal Protective Equipment
S. / Sec. Section
SC Supreme Court
SCC Supreme Court Cases
u/s Under Section
UOI Union of India
v. Versus
Vol. Volume
WHO World Health Organization

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INDEX OF AUTHORITIES

STATUTES
 Code of Criminal Procedure, 1973
 Indian Penal Code, 1860
 The Constitution of India, 1950
 The Epidemic Diseases Act, 1987
 Disaster Management Act, 2005
 Information and Technology Act, 2000
 Temporary Suspension of Telecom Services (Public Emergency or Public Safety)
Rules, 2017

CASES
 Sabu Mathew George v. Union of India [2016 SCC Online SC 681]
 Secretary, Ministry of Information and Broadcasting vs. Cricket Association of
Bengal [1995 SCC (2) 161]
 Maneka Gandhi vs. Union of India [1978 AIR 597]
 Guarav Sureshbhai Vyas v. State of Gujarat [W.P. (PIL) No. 191 of 2015]
 Shreya Singhal v. Union of India [(2013) 12 SCC 73]
 Re Ramlila Maidan [(2012) 5 SCC 1]
 Faheema Shirin R. K. v. State of Kerala [2019 (2) KHC 220]
 Ramlila Maidan Incident v. Home Secretary, UOI & Ors. [(2012) 5 SCC 1]
 Anuradha Bhasin v. Union of India [WP (C) 1031/2019]
 Ghulam Nabi Azad v. UOI [WP (C) 1164/2019]
 Madhu Limaye & Anr. v. Ved Murti & Ors. [1971 SCR (2) 711]
 Sharat Babu Digumatri v. Government of NCT of Delhi [(2005) 3 CompLJ 364 Del]
 Kamlesh Vaswani v. Union of India [(2014) 6 SCC 705]
 S.R. Bommai v UOI [1994 AIR 1918]
 H.S. Jain v UOI [(1997) 1 UPLBEC 594]
 Nabam Rebia and Bamang Felix v. Deputy Speaker Arunachal Pradesh [(2016) 8
SCC 1]
 Sunderlal Patwa v. Union of India [AIR 1993 MP 214]

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 Vamuzo v. Union of India [(1988) 2 Gauh LJ 468]

 Bijayananda Patnaik V. President of India [AIR 1974 Ori 52]

BOOKS AND ARTICLES

 A. Sabitha,Public Health: Enforcement and Law (1st ed. 2008).
 Arvind P. Datar, Commentary on the Constitution of India (2d ed. 2007)
 Archana Sharma, Ecommerce in India will be $60B in GMV by 2020: Google – A.T.
Kearney Study, MEDIANAMA (May 31, 2016),
http://www.medianama.com/2016/05/223-online-retail-google-study
 C. Kashyap, B.N. Patel, The constitution of India and International Law,19 (3rd ed.,
2005).
 D.D Basu, Commentary on the Constitution of India (9th ed., 2014)
 Dr. L.M. Singvi, Jagadish Swarup Constitution of India (3d ed. 2013).
 Dr. L.M. Singhvi, Fundamental Rights and Consttitutional amendments (1st ed.
1971).
 Durga Das Basu, Commentary on the Constitution of India (8th ed. 2007).
 Gaur, KD, Criminal Law: Cases And Materials, (6th Ed. 2009)
 Gujarat banks lose Rs 7,000 crore, telcos Rs 30 crore on restricted internet services,
DNA INDIA (Sep. 1, 2015 09:45 AM), http://www.dnaindia.com/money/report-
gujarat-banks-lose-rs-7000-crore-telcos-rs-30-crore-on-restricted-internet-services-
2120685.
 H.W. E. Wade, Adminitrative Law (10th ed. 2009).
 H.M. Seervai, Constitutional law of India (4th ed. 2008)
 Joshua Meltzer, Supporting the Internet as a Platform for International Trade:
Opportunities for Small and Medium sized Enterprises and Developing Countries,
Working Paper 69, BROOKINGS (2014) vi, https://www.brookings.edu/wp-
content/uploads/2016/06/02-international-trade-version-2_REVISED.pdf
 Justice GP Singh, Principles of Statutory Interpretation (13th Ed., 2007), Lexis Nexis
Butterworths Wadhwa, Nagpur.
 Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)
 M. Hidyatullah, Constitutional Law of India (1st ed. 1984)
 M.P. Jain, Indian Constitutional Law, (7th Ed., 2014)
 MP Jain & SN Jain’s Principles of Administrative Law

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 M.P. Singh, V.N. Shukla’s Constitution of India (11th ed. 2008)

 Matthieu Pélissié du Rausas et al., Internet matters: The Net’s sweeping impact on
growth, jobs, and prosperity, MCKINSEY GLOBAL INSTITUTE (May 2011),
available at http://www.mckinsey.com/industries/hightech/our-insights/internet-
matters
 Mitra, B.B., Code Of Criminal Procedure, 1973 (20th Ed. 2006)
 Nelson R. A. Indian Penal Code, 10th Ed. (2008)
 Princep’s Commentary On The Code Of Criminal Procedure, 1973 (18th Ed. 2005)
 Ratanlal And Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)
 S.P. Sathe, Administrative Law (7th ed. 2004).
 Sarvaria, SK, Indian Penal Code, (10th Ed. 2008)
 William A. Edmundson, An Introduction to Rights (2d ed. 2012).

LEGAL DATABASES
 Manupatra, http://www.manupatra.com.
 Lexis Nexis Academica, http://www.lexisnexis.com/academica.
 Lexis Nexis Legal, http://www.lexisnexis.com/in/legal.
 SCC Online, http://www.scconline.co.in.
 Oxford Dictionary, http://www.oxforddictionaries.com.

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STATEMENT OF FACTS

1. Indrahaar is a Republic in South Asia whose laws are pari materia to the laws of India. The
rapid and sudden outbreak of the Coronavirus Disease (COVID-19) in China led to a global
pandemic in the beginning of 2020 which led to sharp increase in victims and deaths. The
government of Indrahaar, in consultation with all the states, imposed a 21 day lockdown in
the country in the month of May and the Prime Minister of Indrahaar appealed to every
citizen to remain at home, after the WHO declared the virus to be a global pandemic. The
govt. of Indrahaar issued mandatory guidelines which were to be followed by the States and
citizens alike for containing the spread of COVID-19.
2. In the capital of Indrahaar, Dillibad, several cases of COVID-19 came up due to a huge
congregation of around 5000 people of Aiyazi sect of the Harzani community who gathered
for a yearly prayer meet in the famous Dome of the Aiyazi in that area. Due to sudden
imposition of Lockdown, all those members were stuck in dire conditions in the dome and
somehow they had been infected with the virus. Thousands of cases were reported throughout
the country and it was found that most of those people belonged to the Aiyazi sect and that
they visited the congregation in Dillibad but had left before the lockdown was imposed.
Social media was abuzz with communal comments against the Harzani Tribe.
#HarzaniCoronaTerror and #AiyaziCoronaCarriers were the leading hashtags on Twitter. The
entire Harzani community of the country witnessed an outpour of hatred and violence against
them.
3. Vindhyapur, State in Indrahaar, witnessed communal hatred against Harzani community,
although violence was limited. The state govt. Ensured that the situation did not go out of
control in most of the city where as in the city of Taranagar, the capital of the state, witnessed
massive violence against the Harzani Community where the social distancing measures were
completely ignored and the Harzani-dominated regions in the city were attacked by the
fundamentalists. Further, the state of Vindhyapur reported the highest number of cases and
deaths in Indrahaar the reason being that the state was unable to supply the required personal
protective equipment (PPE’s) to its medical staff, within the first week of the lockdown. The
central govt. did not provide the state govt. of Vindhyapur with adequate funding. In order to
curb the situation, the district administration of Taranagar imposed a curfew under Section
144 of the Code of Criminal Procedure and suspended the internet connectivity throughout
the district for a period of three weeks. The rest of districts followed this move and internet

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was suspended throughout Vindhyapur, however curfew was imposed only in Taranagar. The
central govt. was at odds with the state govt. of Vindhyapur and hence they dismissed the
state govt. and imposed Art. 356 (President’s Rule) of the constitution of Indrahaar. In
response to this move, Mr. Sanjeev Mehra, CM of Vindhyapur, approached the Supreme
Court of Indrahaar by a writ petition and challenged the constitutional validity of the
imposition of President’s rule on his State.
4. The suspension of internet led to being a loss and reason for unemployment for the IT
companies and it’s employees. Mr. Vijay Tyagi was an IT specialist, who, lost his job due to
suspension of internet as his work came to halt, was handling important projects for his
company and lost the deal. Due to the financial crisis his company was facing, they had to
fire hundreds of employees including him. Aggrieved by this, Mr. Vijay Tyagi filed a Writ
Petition No. 263 of 2020 before the Supreme Court of Indrahaar alleging violation of
fundamental rights. He contended that it was wrong for the State Government to suspend
internet throughout the State and it was because of the internet suspension that he was fired
by his company, as he was unable to perform any work. He further contended that now he has
no source of income for his family and therefore the State government must compensate him
for his loss.
5. An NGO, Haq: Centre for Human Rights filed a PIL No. 165 of 2020 before the SC of
Indrahaar stating that the complete internet suspension throughout the State was an erroneous
move on part of the State Govt. The contention of the NGO was that it was extremely
essential to maintain free flow of information to keep the people updated about recent
happenings throughout the state whereas the state govt. contended that the situation in the
state was tired and imposition of Sec. 144 was a matter of executive policy and hence the
court should refrain from interfering.
6. Since the issue pertains to a significant question of law, or relating to the state of Vindhyapur,
the SC clubbed the various petitions for hearing via video-conference.

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STATEMENT OF JURISDICTION

The counsel for the petitioners humbly submit to the jurisdiction of this honourable court
under Art. 32 of the constitution of Indrahaar 1950.1 the petitioners have approached this
honourable court on violation of rights.

1
32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate,
for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may
by law empower any other court to exercise within the local limits of its jurisdiction all or any of the
powers exercisable by the Supreme Court under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution

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CLUBING OF PETITIONS

The Hon’ble Supreme Court under the inherent power, clubbing the petitions together and
presenting them as Public Interest Litigation under order “LV”, Rule 6 of the Supreme Court
Rules 2013.

“Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of
the Court to make such orders as may be necessary for the ends of justice or to prevent abuse
of the process of the Court.”

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STATEMENT OF ISSUES

I. Whether the Writ Petition No. 263 of 2020 filed by Mr. Vishal Tyagi is maintainable?
II. Whether the imposition of Section 144 and suspension of Internet throughout the State of
Vindhyapur was valid?
III. Whether imposition of President’s rule in the State of Vindhyapur was justified?

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SUMMARY OF ARGUMENTS

I. Whether the Writ Petition No. 263 of 2020 filed by Mr. Vishal Tyagi is maintainable?

It is humbly submitted before the Hon’ble Supreme Court that Article 32 of the Constitution
of Indrahaar gives the right to individual to move to the Supreme Court to seek justice when
they feel their right has been ‘unduly deprived’. With the advent of the new technologies
many rights have come into light with right to communication and right to express oneself on
a bigger platform. Denial of such right is a very grim way of expression domineering power
of the government. Recently, the Apex Court observed that that Right to Internet Access is a
part of Article 19(1) (a) of the Indian Constitution.

II. Whether the imposition of Section 144 and suspension of Internet throughout the State
of Vindhyapur was valid?

It is humbly submitted before the Hon’ble Supreme Court that the imposition of curfew u/s
144 of CrPC is not valid as it should only be imposed as the last resort and the district
administration in Taranagar could have used other alternatives under the Epidemic Act and
the Disaster Management Act rather than imposing curfew when it wasn’t even required.
Moreover, the suspension of internet throughout the state was invalid as well because such
restrictions not only impact the right to free speech of individual but also impinges on the
right to trade. Therefore, a less restrictive measures, such as restricting only social media
websites like Facebook and WhatsApp, should and could have been passed, as has been done
in India while prohibiting human trafficking and child pornography websites.

III. Whether imposition of President’s rule in the State of Vindhyapur was justified?

It is humbly submitted before the Hon’ble Supreme Court that imposition of President’s rule
under Article 356 is not justified as president rule is to be considered as a last resort. There
was no breakdown of constitutional machinery as the State was following the lockdown
measures in the entire state. Therefore imposing President’s rule is unconstitutional.

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ARGUMENT ADVANCED

ISSUE 1 - WHETHER THE WRIT PETITION NO. 263 OF 2020 FILED BY MR.
VISHAL TYAGI IS MAINTAINABLE?

Article 32 of the Constitution of Indrahaar gives the right to individual to move to the
Supreme Court to seek justice when they feel their right has been ‘unduly deprived’. In the
present case the internet suspension by the district administration let him lost his job and he
became jobless in the condition of COVID-19.

1.1 RIGHT OF FREEDOM OF SPEECH AND EXPRESSION

With the advent of the new technologies many rights have come into light with right to
communication and right to express oneself on a bigger platform. Denial of such right is a
very grim way of expression domineering power of the government. Recently, the Apex
Court observed that that Right to Internet Access is a part of Article 19(1) (a) of the Indian
Constitution. The three judge bench headed by Dipak Misra J., observed that every Indian
citizen has “the right to be informed and the right to know and the feeling of protection of
expansive connectivity”2. In this case Internet was metaphorically said to be a “virtual world”
with tangible and discernible nature. This right has been granted as a quid pro quo for no
violation of any right of privacy and no act done of condemnable or criminal nature. In
another landmark case, Secretary, Ministry of Information and Broadcasting vs. Cricket
Association of Bengal3, the Apex Court pinioned that electronic media is a means to
disseminate information

Furthermore, an obiter dicta in another landmark case Maneka Gandhi vs. Union of India 4,
points to the importance as a limitless phenomenal to gather, transmit and receive
information.
Antagonists might argue that even without Internet, an individual is at liberty to express his
opinions, for example through print media. It may also be argued that Internet rights does not
needs to be the last stand for the people to put up their opinions in perforated acts of the
2
Sabu Mathew George v. Union of India, 2016 SCC OnLine SC 681
3
1995 SCC (2) 161.
4
1978 AIR 597

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society. However, the authors believe that it is not the contingent nature of the right to
freedom of expression and association which makes them useful, rather to make such right
useful is the condition put on a person exercising it. Not all the opinions in the society gets
published unless it is poised and suave. Therefore, people tend to mend their ways of
reaching general through internet, as a medium which allows everybody to put their thoughts
on a single screen which presents it to the world and not only to the person buying the
newspaper. All in all, it is argued that the right as guaranteed under Art. 19(1) (a) shall only
be fulfilled when people will have ‘adequate’ opportunities, to express themselves, that are
relevant to the contemporary lifestyle.
However, whether there lies an opportunity for everybody to exercise such right and to what
extent should they manoeuvre such right with respect to their ability to use certain force for
its application is a complex question of law5. In the present case there is clear violation of
fundamental right of speech and expression which makes the petition maintainable before the
Hon’ble court.

1.2 RIGHT TO PRACTICE ANY PROFESSION, OR TO CARRY ON ANY

OCCUPATION, TRADE OR BUSINESS

Since the last decade Internet has not only transformed how people communicate and express
their views, it has also transformed how individuals carry on their respective trade and
professions. With the emergence of Internet, the definition of trade and profession has been
completely altered, to now include, out of other things, e-commerce. According to a study
undertaken by Google and A.T. Kearney, the e-commerce alone would be a $60 Billion
industry in gross merchandising value by year 20206. “The Internet is no longer a digital
storefront”7, it accounts for a significant portion of global GDP as well8. A broad economic
potential of the Internet may be perceived from these statistics. Internet is, therefore, a
transborder means for realising the FR guaranteed under Art. 19(1) (g) of the Indian

5
Guarav Sureshbhai Vyas v. State of Gujarat, (W.P. (PIL) No. 191 of 2015); Shreya Singhal v. Union of India,
(2013) 12 SCC 73; In re Ramlila Maidan, (2012) 5 SCC 1
6
Archana Sharma, Ecommerce in India will be $60B in GMV by 2020: Google – A.T. Kearney Study,
MEDIANAMA (May 31, 2016), http://www.medianama.com/2016/05/223-online-retail-google-study
7
Joshua Meltzer, Supporting the Internet as a Platform for International Trade: Opportunities for Small and
Medium sized Enterprises and Developing Countries, Working Paper 69, BROOKINGS (2014) vi,
https://www.brookings.edu/wp-content/uploads/2016/06/02-international-trade-version-2_REVISED.pdf
8
Matthieu Pélissié du Rausas et al., Internet matters: The Net’s sweeping impact on growth, jobs, and
prosperity, MCKINSEY GLOBAL INSTITUTE (May 2011), available at
http://www.mckinsey.com/industries/hightech/our-insights/internet-matters

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Constitution. It is for the access to Internet that Indian startups such as Flipkart are now
surfing among the billion dollar companies of Silicon Valley. Internet has changed the way
people look at business models, now refraining largely from the conventional ‘bricks and
mortar’ model. From a very small retailer or service provider to multi-million dollar funded
startups, all carry on business under the aegis of Internet – integrated and dependant on it.
Even a day of Internet shutdown could bring down their businesses immensely9.

Thus, Internet has acted as a conduit by paving way for individuals to realise their Right to
practise any profession, or to carry on any occupation, trade or business. “Understanding the
Internet as a platform for trade highlights its broad economic potential. The global nature of
the Internet means that these opportunities are no longer limited to domestic markets, but are
embraced wherever Internet access is available”10. It is therefore imperative that there shall
be minimum blanket shutdown by the Government, because by doing so it is violating Art.
19(1) (g) of the Indian Constitution.

Many business in today’s scenario are run on internet and it has become a very important
source in one’s life. In the present case as we saw how suspension of internet has made him
loose his job in a very critical condition of COVID-19, being an It professional his whole
work run on the internet so by this step of the government he became jobless as suspending
internet is violation of his fundamental right under article 19(1)(a) and 19(1)(g).

9
Gujarat banks lose Rs 7,000 crore, telcos Rs 30 crore on restricted internet services, DNA INDIA (Sep. 1,
2015 09:45 AM), http://www.dnaindia.com/money/report-gujarat-banks-lose-rs-7000-crore-telcos-rs-30- crore-
on-restricted-internet-services-2120685.
10
Supra note 6.

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ISSUE 2 - WHETHER THE IMPOSITION OF SECTION 144 AND SUSPENSION

OF INTERNET THROUGHOUT THE STATE OF VINDHYAPUR WAS
VALID?

2.1 CURFEW U/S 144

It is humbly submitted to the Hon’ble Supreme Court that the curfew11 imposed by the state
is not valid. It is argued that because curfew should be the last resort while curbing a
situation. The authorities in these circumstances, for preventing danger to human life, health
or safety, disturbance of public tranquillity, or a riot or an affray, may issue such orders. If
anyone defies such orders issued under Section 144 CrPC, the enforcement agencies have a
right to detain/arrest the violators. Riot-curfew is an extension of Section 144, CrPC wherein
even individuals are instructed not to move around for a particular period of time.

The government can put complete restrictions on traffic as well. Markets, schools, colleges
and offices remain closed under the curfew and only essential services are allowed to run on
prior notice. Those violating can be booked for engaging in rioting, which has harsh
punishment. There is also a tendency of the population to acquiesce with the control over
their liberties expecting that this is being done in their best interests. It is surprising to see
that the terms ‘lockdown’ and ‘curfew’ have not been defined under Indian law but are still
being used to curtail the fundamental right of movement12.

Therefore while supporting a lot of measures for the fight against CORONA virus, it is
important to recognise the continued importance of civil liberties and human rights – which
are guaranteed under Chapters III and IV of the Constitution of India- the Fundamental
Rights and Directive Principles chapters. Undoubtedly there can be restrictions on these
rights but only to a limited extent and proportionate to the mischief sought to be dealt with
and legitimate state interest sought to be protected. The Coronavirus situation must be viewed
within the wider perspective of human rights- socio economic rights – in Indrahaar which
still has the largest concentration of poor. In an already malnourished, anaemic population,
large number of whom are migrant labourers, homeless people, landless labourers, those

11
S. 144, CrPC
12
Article 19, Constitution of India

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working in unorganised sector, sex workers, transgenders, orphans, abused women, Dalits,
Adivasis and many of them divided on basis of caste and communal fault lines – it is vital
that all steps to deal with the pandemic bear in mind the socio economic rights of millions of
already disadvantaged people.

It is humble contended before the Hon’ble SC that above all, the most basic human right, the
right to food and to receive adequate financial support cannot be postponed till the
Coronavirus comes under control. For millions this is a matter of life or death. Since,
Indrahaar is already in a lockdown, curfew wasn’t required to curb the situation because any
person who violates these containment measures will be liable under section 51 to 6013
(offences and penalties) and u/s 18814 which creates the punishment for disobedience to order
duly promulgated by a public servant. The situation could have been handled by the district
administration which implies that using curfew- a last resort to handle situation, was not
needed and it is, thus, invalid.

2.2 SUSPENSION OF INTERNET

It is humbly submitted to the Hon’ble Supreme Court that the suspension of internet by
the state is not valid. There was no such severe crisis or urgency that led to the
suspension of internet, it was merely an annoyance. Kerala High Court held that the right
to access the internet is a part of fundamental right under Article 21 of the Constitution. This
view has been upheld by the Supreme Court too.15 Although it has been held that Section 144
for internet shutdown can only be used as a last resort, the government has incessantly used
the backing of Section 144 as the primary measure.16 This vaguely worded provision, that
includes terms like 'annoyance 17', was constitutionally challenged in the Supreme Court
in 1970, but retained its place when it was held that the likelihood of its misuse is not a
reason enough for it to be struck down. Even though the appointed authorities have the
discretion to decide the measures required to curb a situation, their acti ons are not
protected from judicial review. 18

13
Disaster Management Act
14
Indian Penal Code, 1860
15
Faheema Shirin R.K. v. State of Kerala
16
Ramlila Maidan Incident v. Home Secretary and Ors.
17
Anuradha Bhasin v. Union of India
18
1971 SCR (2) 711

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Curtailment of the internet, is a restriction on the right to free speech, should be tested on the
basis of reasonableness and proportionality.19 The procedure that is to be followed for
restricting internet services as provided under The Temporary Suspension of Telecom
Services (Public Emergency or Public Service) Rules, 2019 (Hereinafter Suspension Rules),
which were notified under the telegraph Act. Such restrictions not only impact the right to
free speech of individuals but also impinges on the right to trade. Therefore, a less restrictive
measures, such as restricting only social media websites like Facebook and WhatsApp,
should and could have been passed, as has been done in India while prohibiting human
trafficking and child pornography websites20.

Supreme Court bench headed by the then chief Justice R. M. Lodha, called for a combined
effort between the Department of Telecommunication, Information and Broadcasting
Ministry and home Ministry to deal with issues that consists the synthesis between law and
technology in order to control the abundant availability and misuse of technology.21 While
imposing restrictions on internet, the rights of individuals need to be balanced against the
duty of the state to ensure security. The state must ensure that measures are in place that
allows people to continue with their life, such as public transportation for work and schools,
to facilitate business, etc. More ambitious should be provided on the term reasonable as used
in Article 19(2)22 and that the restrictions on the freedom of speech should be reasonable as
mandated under Article 1923. These restrictions need to be tested on the anvil of the test of
proportionality.

The Supreme Court of India ruled that an indefinite suspension of internet services would be
illegal under Indian law and that orders for internet shutdown must satisfy the tests of
necessity and proportionality.24 Having laid out the principles of proportionality and
reasonable restrictions, the Court turned to assessing the restriction imposed on freedom of
speech online. It outright rejected the State’s justification for a total ban on the internet

19
Supra note 17
20
Read with section 67A, IT Act, 2000; Bazee.com case where the CEO was arrested for an advertisement by
the user to sell the DPSX scandal video. Avinash was arrested under section 67 of the information technology
act. Intermediary guidelines were passed in 2011 whereby and intermediaries’ liability would be absolved if
they exercised due diligence to ensure obscene content is not displayed on their portal.
21
Kamlesh Vaswani v. Union of India
22
Constitution of India
23
Id
24
Supra note 17

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because it lacked the technology to selectively block internet services as accepting such logic
would have given the State green light to completely ban internet access every time.
However, the Court conceded that there was “ample merit in the contention of the
Government that the internet could be used to propagate terrorism thereby challenging the
sovereignty and integrity of India” and thus it had to determine the extent to which the
restriction burdened free speech.25

The Suspension Rules of the Telegraph Act were passed in 2017 and allowed the government
to restrict telecom services, including access to the internet, subject to certain safeguards.26
These safeguards were that first, the suspension orders may be issued only by the Secretary to
the Government of India in the Ministry of Home Affairs or by the Secretary to the State
Government in charge of the Home Department. In unavoidable circumstances another
official not below the rank of a Joint Secretary to the Government of India may issue the
orders provided that the competent authority approves the orders within 24 hours of its
issuance. Without approval the suspension must be lifted within 24 hours. The orders must
include reasons for the suspension and its copy must be sent to a Review Committee
consisting of senior State officials. The reasons should not only explain the necessity of the
suspension but also the “unavoidable” circumstance which necessitated the order.27 Supreme
Court emphasised on the complete broad suspension of telecom services, beat the internet or
otherwise, being a drastic measure, must be considered by the state only if necessary and
unavoidable. In furtherance of the same, the state must assess the existence of an alternate
less intrusive remedy.28

2.3 WHETHER THE SUSPENSION OF INTERNET VIOLATES ARTICLE 19 OF

THE INDIAN CONSTITUTION?

Fundamental Rights are the core of the Indian Constitution since they define the existence of
individuals and govern their relationships with the State. The present article deals exclusively
with Article 19. Even though Article 19 is not absolute, the limitations to be imposed on the

25
Id, para 76
26
Section 7, Telegraph Act
27
Supra note 17
28
Id, para 99

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rights have to stand the ‘Test of Proportionality ’, which is “inherently embedded” in the
Constitution under the realm of the ‘Doctrine of Reasonable Restrictions’.

The law imposing restrictions will be treated as proportional if it is meant to achieve a

proper purpose, being of sufficient importance to warrant overriding a constitutionally
protected right or freedom. The measures imposed should be necessarily and
rationally connected to the purpose sought to be achieved. There needs to be a proper
relation between the importance of achieving the proper purpose and the social
importance of preventing the limitation on the constitutional right. The least
restrictive measure should be adopted with procedural guarantees against abuse of
such interference.

The concept of proportionality requires a restriction to be tailored in accordance with

the territorial extent of the restriction, the stage of an emergency, nature of u rgency,
duration of such restrictive measure and nature of such restriction. Since the
restrictions imposed have serious implications on the fundamental rights of the
affected parties, they should be supported by sufficient material and should be
amenable to judicial review. Internet is a very important tool for trade and commerce.
Therefore the freedom of trade and commerce through the medium of internet is also
constitutionally protected 29 subject to the restrictions provided under Article 19(6).
Thus, the right to freedom of speech and expression 30 and the right to carry on any
trade or business 31 using the medium of internet, is constitutionally protected.

29
Article 19(1)(g)
30
Article 19(1)(a)
31
Supra note 29

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ISSUE 3 - WHETHER IMPOSITION OF PRESIDENT’S RULE IN THE STATE

OF VINDHYAPUR WAS JUSTIFIED?

It is humbly submitted before the Hon’ble Supreme court imposing the President’s rule by
the government of Indrahhaar was not justified.

3.1 PRESIDENT RULE IS A LAST RESORT

The Sarkaria Commission32 recommended various safeguards. Article 356 should be invoked
very sparingly as a measure of last resort when all available alternatives fail to prevent or
rectify a breakdown of constitutional machinery in the State. The president rule can only be
imposed when there is complete breakdown of law and order in the state. The State of
Vindhyapur followed the directions of the central government by imposing the lockdown in
the entire state and the curfew in the capital city of Taranagar. The government has imposed
president’s rule in the first instance only and not providing aid to the state with proper
funding.

The guidelines set in the case of S.R. Bommai v Union of India33 is to provide a warning
before imposing article 356. This is not considered as a pre-requisite condition but a proper
warning has to be given to the state to define its accountability. The State of Vindhyapur after
receiving the warning has responded the government that the centre has been unable to
provide adequate funding to impose the lockdown measures. The central government has not
done anything after this but in its first instance imposed the article 356.

The Punchhi Commission34 has also recommended along the guidelines of Bommai’s case
the provision of ‘Localized Emergency’ which means that centre govt can tackle issue at
town/district level without dissolving the state legislative assembly while at same time
carrying out duty of the Union to protect States under Article 355.

32
Sarkaria Commission on Centre-State Relations, Report (1988)
33
1994 AIR 1918
34
Punchhi Commission on Centre-State Relations, Report (2010)

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The imposition of president’ rule was also challenged in the case of H.S. Jain v Union of
India35 without resorting to any option which is left, the imposition of president’s rule
straightaway is clearly unconstitutional.

3.2 ABUSE OF POWER

In S.R. Bommai v Union of India36, the Supreme Court junked expanded the scope of judicial
review and made it an absolute power of judicial review. In Nabam Rebia and Bamang Felix
versus Deputy Speaker Arunachal Pradesh37, the Supreme Court further asserted that
‘Discretionary power of Governor is amenable to judicial review. There is no substance in
submission that decision of Governor would be final and binding and beyond the purview of
judicial review’

In Sunderlal Patwa v. Union of India38, the Presidential Proclamation is open to judicial

review on the ground of irrationality, illegality, and impropriety or mala fide or in short, on
the ground of abuse of power. The Court was of the opinion that Article 356 has to be
sparingly used considering its federal nature. It is the first case where the Court struck down a
Presidential Proclamation as unconstitutional.

Justice Hansaria in Gauhati High Court in Vamuzo v. Union of India. 39 judicial review is
available under Article 356 if there is abuse of power. In Bijayananda Patnaik V. President of
India40, the Thirty Eighth Constitutional Amendment inserted a new Clause 5 in Article 356
barring 'judicial review' of a Proclamation under Art. 356 (1) on any ground. The Clause
made Presidential 'stratification' to issue a Proclamation under Art. 356 (1) as 'final and
conclusive' which shall not be questioned in any Court on any ground. This Clause was,
however, withdrawn by the Constitution (44th Amendment) ACT, 1978.

35
(1997) 1 UPLBEC 594
36
1994 AIR 1918
37
(2016) 8 SCC 1
38
AIR 1993 MP 214
39
(1988) 2 Gauh LJ 468
40
AIR 1974 Ori 52

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Since the government of Vindhyapur was at odds with the government of Indrahaar, the
central government without providing any proper measure to solve the problems of the state,
imposed the president’s rule and abused its power of being in majority in centre.
In the case of Nabam Rebia and Bamang Felix v Dy. Speaker, Arunachal Pradesh
Legislative Assembly41, A Governor may have to make a report to the President under Article
356 that a situation has arisen in which the Government of the State cannot be carried on in
accordance with the provisions of the Constitution. Obviously, in such a situation he may
have to act against the aid and advice of the Council of Ministers as the situation may be due
to the various acts of omission or commission on the part of the Council of Ministers (Article
356).

The State of Vindhyapur has provided a dire situation to the centre for not providing adequate
funds to which the state was unable to curb the pandemic situation and was not able to
provide proper PPE’s to its medical staff. It is humbly submitted before the Hon’ble
Supreme court that imposing President’s rule in first instance is unconstitutional. Some
measures have to be taken by the government of Indhrahaar to curb the situation in the State
of Vindhyapur before imposing Article 356 of the Constitution. The government should
provide adequate funding to the state to curb the Coronavirus situation.

41
(2016) 8 SCC 1

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PRAYER

WHEREFORE, in the light of the facts used, issues raised, arguments advanced and
authorities cited, it is most humbly and respectfully prayed that this Hon'ble Court may be
pleased to adjudge and declare that:

I. The Petition filed before this Hon’ble Court is maintainable.

II. The Apex Court has the jurisdiction in defining the validity of the order given by
State Government as violation of the Fundamental Rights.
III. Directions should be given by the court to the companies to take back the people they
have fired and pay them compensation as half amount of salary for each month.
IV. The court shall address the Hon’ble President for using it powers unnecessary.

The Court may also be pleased to pass any other order, which this Hon'ble Court may deem
fit in the interest of justice, equity and good Conscience.

All of which has been respectfully submitted,

COUNSEL FOR THE PETITONERS

MEMORIAL ON BEHALF OF THE PETITIONER