TEAM CODE NI-37 (P)

RAMAIAH COLLEGE OF LAW INTRA MOOT COURT COMETITION

IN THE SUPREME COURT OF INDUSTAN

IN THE MATTER OF

MR. EISENBURG……………………………………………………….PETITIONER

VERSUS

UNION OF INDUSTAN …………………………………………………RESPONDENT

WRIT PETITION INVOKED UNDER ART. 32 OF THE CONSTITUTION IF

INDUSTAN

ON SUBMISSION TO

THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE

HON’BLE SUPREME COURT OF INDUSTAN

MEMORIAL ON THE BEHALF OF THE PETITIONER

1
 TABLE OF CONTENTS

PARTICULARES PAGE NO.

Table of Contents 2

Index of Authority 3

Statement of Jurisdictions 5

Statement of Fact 6

Issues Raised 8

Summary of Arguments 9

Arguments Advanced 11

Prayer 26

2
 INDEX OF AUTHORITIES

CASES REFERED

1. Brij Mohan Lal v. Union of India, (2012) 6 SCC 571

2. Ramdas Athwale v Union of India AIR 2010 SC 1310
3. L. Chandra Kumar v Union of India AIR 1997 SC 1125
4. Jagisha Arora v state of Uttar Pradesh ((2019) 6 SCC 619)
5. Daryao v. State of Uttar Pradesh, 1962 SCR (1) 574
6. Jasbhai Motibhai Desai v. Roshan Kumar (AIR 1976 SC 578)
7. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
8. State of Bombay v. United Motors Ltd., AIR 1953 SC 252
9. K.K. Kouchunni v. the State of Madras, AIR 1959 SC 725
10. Ujjain Bai vs. State of Uttar Pradesh, AIR 1962 SC 1621
11. Mathai v. George, (2010) 3 SCR 533
12. In Perdue, Brackett, Flores, Utt & Burns v. Linebarger, Goggan, Blair, Sampson &
Meeks, L.L.P., 291 S.W.3d 448
13. Maneka Gandhi v. Union of India (AIR 1978 SC 597)
14. A.K. Kraipak and Ors. vs. Union of India (UOI) and Ors. (1969) 2 SCC 262
15. E.P. Royappa vs. State of Tamil Nadu and Ors. (AIR 1974 SC 555)
16. Bachan Singh v State of Punjab, AIR 1982 SC 1325
17. G. Venkata Naidu v. Bellary Central Co-operative Stores Ltd. AIR 1967 MYS 203
18. OSMANIA UNIVERSITY TEACHERS ASSOCIATION VERSUS STATE OF ANDHRA
PRADESH AIR 1987 AP 214
19. Laxmi Khandsari and Ors. v. State of U.P. and Ors
20. Union of India (UOI) and Ors. v. Mohan Lal Capoor and Ors (AIR 1974 SC 87)
21. Justice K.S. Puttaswamy and Ors. v. Union of India (AIR 2018 SC 237)
22. Kailash Chand Sharma v State of Rajasthan,2006 6 SCC 562
23. Srinivas v. State of Madras AIR 1932 Mad 70

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24. Ramji Lal Modi v. State of U.P. MANU/SC/0101/1957 : (1957) SC 620, spoke thus:
(AIR pp. 622-23, para 9)
25. Arnab Ranjan Goswami vs. Union of India and Others
26. Vinod Dua vs. Union of India (UOI) and Ors (2020) 14 SCC 51
27. Patricia Mukhim vs. State of Meghalaya and Others
28) Modern Dental College and Research Centre & Ors. v. State of Madhya Pradesh &
Ors.
29) Kedar Nath Singh v. the State of Bihar (1962) Supp. 2 SCR 769
30) S. Rangarajan v. P. Jagjivan Ram & Ors.

BOOKS REFERED

J.N Pandey- Constitutional law of India (J.N. Pandey 57th Edn.,2020)

M.P Jain, Indian Constitutional Law, 8th edn. 2018

CONSTITUTION
1. Constitution of Industan, 1950

STATUTES

1. Social media Regulation, 2021

2. Indian Penal Code,1860
3. Disaster Management Act,2005

WEBSITES

1. https://www.manupatrafast.in
2. https://www.lexisnexis.in
3. https://www.legislative.gov.in

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 STATEMENT OF JURISDICTION

The petitioner has approached the Hon’bleSupreme Court, under Article 32 of the
Constitution of India. Article 32 reads as under-

“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 the 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”

The Counsel for the petitioner most humbly and respectfully submits to the jurisdiction of
this Hon’ble Supreme Court of Industan.

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 STATEMENT OF FACTS

 The Union of Industan, a Sovereign, Socialist Democratic Republic, was struck by a

worldwide epidemic caused by SARS-CoV is called covid 19(coronavirus disease).
The World Health Organisation classified the situation as a pandemic.

 The government officials were accused of mishandling the situation during pandemic
by not taking proper preventive measures as a result of which the citizens rose to
occasion to provide help to each other via social platforms being the crucial
information providers in the time of crises. The government tried to clamp down on
citizens seeking help and raising criticism on the presumption that they are raising
false grievances on the internet

 On the contrary government agencies found it difficult to differentiate whether the

news being circulated on social media is fake or factually true. The Government of
Industan was determined to find a remedy for this situation. As the parliament was not
in session, the Cabinet approved an Ordinance called the Social Media Regulation
Ordinance, 2021, which came into effect from 3rd March 2021 to deal with the crisis
of fake news.

 Clause 2(3) of the Social Media Regulation Ordinance, 2021 defined the Controller as
“an officer appointed by the government, being a retired government employee
preferably of the rank of a cabinet secretary”, while Clause 2(5) defined fake news as
“any information that the Controller believes to be factually incorrect, misleading or
deceptive.”

 As per Clause 4 of the Social Media Regulation Ordinance, 2021, “if it appears to the
Controller that any information, data, post, picture or video is a fake news, then the

6
 Controller is empowered to issue directions to the social media intermediary/platform
directing it to remove the said information, data, post, picture or video within 24
hours of the receipt of such direction”. If any intermediary fails to obey, then as per
clause 7 a penalty of Rs. 100000 or imprisonment up to 1 year.

 The Social Media Regulation Ordinance was introduced as the “Social Media
Regulation Bill, 2021”, which later passed with the majority in both the Houses of the
Parliament and the same has got the Presidential Assent on 23rd May 2021. The new
Act, i.e., the Social Media Regulation Act, 2021 (SMRA), was adopted with
immediate effect.

 The central government failed in analysing the aftermath of the first wave considering
it to be the end of the pandemic and started to focus on multitude of things without
anticipating the second wave which led to shortage of medical supplies and vaccines.

 An RTI activist and a public-spirited person, Mr. Eisenberg criticized the mishandling
of the pandemic by the government by posting and tweeting about the same on
various social media platforms. An FIR was lodged against t Mr Eisenberg for posting
“Fake News” and tweeting anti-national comments. He was arrested by the Police the
next day and was released on Bail.

 Mr. Eisenberg filed a writ petition before the Hon’ble Supreme Court as he was of the
opinion that the provisions of SMRA were violative of the constitution, questioning
the constitutional validity of the act.

 In its petition, Mr Eisenberg contended that Sec. 2(5) of SMRA was arbitrary and
violative of Article 14 of the Constitution of Industan. Sec. 4 and Sec. 7 were in
apparent contravention of Article 19 and 21 of the Constitution of Industan. It was
contended that SMRA was disguised legislation to prevent the fair criticism of the
handling of the pandemic by the Government. Further, the enactment gives unbridled
power to the Controller without having any safeguard against its misuse or abuse.

 The Government of the Industan responded by objecting to the writ petition and
justifying SMRA on the grounds of larger public interest after being served. The

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Government also contends reasonable restrictions of fundamental rights during a
pandemic.

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 ISSUES RAISED

I) WHETHER THE WRIT PETITION IS MAINTAINABLE BEFORE THE

HON’BLE SUPREME COURT?

1.1 ) The writ petition filed under Art 32 by Mr. Eisenburg is maintainable.

1.2 ) The petitioner has locus standi in the instant matter.

1.3) Alternative remedy is no bar to approach the Hon’ble Supreme Court on

violation of Fundamental rights.

II) WHETHER SMRA,2021 IS VIOLATIVE OF BASIC STRUCTURE OF

THE CONSTITUTION?

2.1) The controller has a quasi-judicial function did not concede to principles of
natural justice.

2.2) The SMRA,2021 violates Rule of Law.

2.3) That provisions of SMRA, 2021 are unconstitutional for being violative of
Art. 14.

III) WHETHER SEC. 4 AND 7 OF THE SMRA ACT,2021 ARE

CONSTITUTIONALLY VALID?

3.1) Section 4 and Section 7 are is violative of the fundamental right of freedom of
speech and expression and the right to life and liberty must be struck down.

3.2) Fake news under SMRA, 2021 and Sedition laws overlaps

3.3) The doctrine of proportionality

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 SUMMARY OF ARGUMENTS

I. WHETHER THE WRIT PETITION MAINTAINABLE BEFORE HON’BLE

SUPREME COURT?

It is most humbly submitted before the Hon’ble Court that the instant petition is maintainable
as the Fundamental Rights of the Petitioner has been violated by arbitrary provisions of the
Social Media Regulation Act, 2021. The petitioner is also an aggrieved party by
administrative action and has locus standi move to the Court for the issue of a writ to enforce
his rights. It is also contended that alternative remedy is no bar for granting relief under
Article 32 of the Constitution of Industan.

II. WHETHER SMRA, 2021 IS VIOLATIVE OF THE BASIC STRUCTURE OF THE

CONSTITUTION?

It is humbly submitted that the respondents having a quasi-judicial function did not adhere to
principles of natural justice. There was a miscarriage of justice in broad daylight when the
controller with insurmountable and arbitrary powers arrested the petitioner, thus not violating
the Rule of Law. For the above reasons, the provision in question is violative of article 14 and
thus ultra vires under the Constitution of Industan.

III. WHETHER SECTION 4 AND 7 OF THE SMRA,2021 ARE

CONSTITUTIONALLY VALID?

It is humbly submitted that Section 4 and Section 7 are is violative of the fundamental right
of freedom of speech and expression and the right to life and liberty must be struck down as
ultra vires, which also interrupts public peace and tranquillity. This provision of the SMRA,
2021 is open-ended and would also cover the actions of citizens which would otherwise not
lead to seditions, under 124A of the IPC, 1860. Restrictions imposed are also arbitrary or of
an excessive nature so as to go beyond the requirement of the interest of the general public,
that the government claims to achieve.

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 ARGUMENTS ADVANCED

I) WHETHER THE WRIT PETITION MAINTAINABLE BEFORE

HON’BLE SUPREME COURT?

It is most humbly submitted before the Hon’ble Court that the instant petition is
maintainable as the Fundamental Rights of the Petitioner has been violated by
arbitrary provisions of the Social Media Regulation Act, 2021.

1.1 The Writ Petition filed under Art 32 by Mr Eisenberg is Maintainable.

The fundamental right of freedom of speech and expression, right to equality and right to live
with dignity of the petitioner, Mr Eisenberg’s right is violated and he has a right to approach
the Hon’ble Supreme Court.

The petitioners respectfully submit that this is a Writ Petition challenging the Constitutional
Validity of the relevant provisions of the SMRA, 2021. The petitioner submits the following
to reaffirm the maintainability of the case before this Hon’ble Court.

The Petitioners have approached this Hon’ble Court under Article 32 read with Art 13(2) of
the Constitution of Industan. Art. 32 reads declare that ‘State shall not make any law’ which
takes away or abridges the Fundamental Rights. Thus, the power of the legislature is limited
by the Fundamental Rights of the citizen 1.

Art 32 of the Constitution guarantees the right to Constitutional remedy and relates only to
the enforcement of the right conferred by Part III of the Constitution i.e., Fundamental Rights
to the citizens and unless a question of enforcement of a Fundamental right arises, Art 32
does not apply 2. The power of judicial review conferred upon the Supreme Court under Art
32 of the Constitution is part of the inviolable basic structure of the Constitution 3.The
fundamental rights guaranteed under the constitution of India and in particular Articles 19
and 21 of the constitution are non-negotiable 4.

Moreover, the petitioner need not establish either that he has no other adequate
remedy or that he has exhausted all other remedies provided by law, as Art. 32 is a

1
Brij Mohan lal v. Union of India (2012) 6 SCC 571
2
Ramdas Athwale v. Union of India AIR 2010 SC 1310
3.
L. Chandra Kumar v Union of India AIR 1997 SC 1125
4
Jagisha Arora v state of Uttar Pradesh (2019) 6 SCC 619

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 Fundamental Right in itself and therefore the existence of an alternate remedy is no
bar to the Supreme Court entertaining a petition under it 5.

The petitioner submits that the instant case is maintainable.

1.2 The Petitioner has locus standi in the Instant Matter.

The Supreme Court held the basic rule for locus standi is that a person aggrieved by an
administrative action can move to the Court for the issue of a writ to enforce his rights in
paragraph 36 of Jasbhai Motibhai Desai v. Roshan Kumar (AIR 1976 SC 578) 6-

“36. It will be seen that in the context of locus standi to apply for a writ of certiorari,
an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved'; (ii)
'stranger'; (iii) busybody of the meddlesome interloper.”

The petitioner has been aggrieved by the arbitrary action of the respondents when they
arrested and strong-armed them under the SMRA-2021 read with Section 505(1)(b) of the
Indian Penal Code-1860, and Section 52, 54 of the Disaster Management Act, 2005 for
exercising his rights by posting and tweeting on social media by criticising the Government
for mishandling the 2nd wave of the pandemic in the country.

It is further humbly submitted that to invoke the writ it is not necessary that the fundamental
rights have been actually infringed- a threat to the same is sufficient 7. Thus, it is submitted
that locus standi exists in the instant matter.

1.3 Alternative Remedy is No bar to Approach Thd Hon’ble Supreme Court on

Violation of the Fundamental Rights.

The main allegation of the petitioner being the violation of fundamental rights, the alternative
remedy is no bar for granting relief. The existence of an alternative legal remedy cannot ‘per
se’ be a sufficient ground for not considering the petition under Art. 32. In this petition, the
existence of a fundamental right and alleged breach of such fundamental right is established
‘prima facie’8. It is reverently submitted that where there is a well-founded allegation of
violation of fundamental right alternative remedy is no bar for entertaining writ petition and
granting relief.

5
Daryao v. State of Uttar Pradesh, 1962 SCR (1) 574
6
Jasbhai Motibhai Desai v. Roshan Kumar (AIR 1976 SC 578)
7
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802
8
State of Bombay v. United Motors Ltd., AIR 1953 SC 252

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Therefore, the mere existence of an adequate alternative remedy cannot per se be a sufficient
ground for refusal of a writ petition if the existence of fundamental rights and a breach, actual
or threatened, of such right and is alleged is prima facie established on the petition 9. Further,
in paragraph 63 of Ujjain Bai vs. State of Uttar Pradesh 10, AIR 1962 SC 1621 it was observed
that Article 32 is itself a fundamental right, on the behalf of the petitioner it was submitted
that whenever it is prima facia established that there is a violation of fundamental right, the
question of its enforcement arises.

“63. On behalf of the petitioner it has been submitted that whenever it is prima facie
established that there is a violation of a fundamental right, the question of its enforcement
arises; for example, (a) it may arise when the statute itself is ultra vires and some action is
taken under such a statute, or (b) it may also arise when some action is taken under an intra
vires statute, but the action taken is without jurisdiction so that the statute though intra vires
do not support it; to (c) it may again arise on a misconstruction of the statute which is intra
vires, but the misconstruction is such that the action taken on the misconstrued statute results
in the violation of fundamental right...the action of such bodies whenever such action violates
or threatens to violate a fundamental right gives rise to the question of enforcement of such
right and no distinction can be drawn in respect of three classes of cases referred to above…”

In addition to this, the instant case raises important questions of law; and laying down
law for the nation is one of the key functions of the Hon’ble Supreme Court,7 thus the
petition that raises a question of law is held to be maintainable 11.

In the light of cases cited wherefore, it is clear that the present petition is admissible before
this Court and that this Court has the jurisdiction to hear the matter. Therefore, it is thus
humbly submitted to this Hon’ble Court that the present matter is maintainable.

II. WHETHER SMRA, 2021 IS VIOLATIVE OF THE BASIC STRUCTURE OF THE

CONSTITUTION

Industan is a democratic republic country that has adopted Rule of Law as some of their basic
features of the constitution. In order to tackle the “fake news” during the period of a
worldwide pandemic the Social media Regulation Act, 2021 was promulgated. Further, the

9
K.K. Kouchunni v. the State of Madras, AIR 1959 SC 725
10
Ujjain Bai vs. State of Uttar Pradesh
11
Mathai v. George, (2010) 3 SCR 533

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Social Media and Regulation Act, 2021 was promulgated on 23rd May 2021 after passing
with the majority in both the house and receiving the President’s consent.

2.1 The controller has a quasi-judicial function did not concede to principles of natural
justice

It is humbly submitted that in the instant matter if the authority has any express statutory duty
to act judicially in arriving at the decision in question, it would be deemed to be quasi-
judicial. It is more than clear from the below case that the controller, acting on behalf of the
Government was indeed a quasi-judicial power refers to the power vested in the commissions
established by law. It is also contended, in the instant case, the controller had and continues
to have extraordinary exclusive powers to investigate and draw conclusions to such
investigation and impose sanctions, powered by the bias of his own.

In Perdue, Brackett, Flores, Utt & Burns v. Linebarger, Goggan, Blair, Sampson & Meeks,
L.L.P., 291 S.W.3d 448 (Tex. App. 2009) 12, the court observed that

“Texas courts have recognized six powers relevant to the determination of whether a
body possesses quasi-judicial power: (1) the power to exercise judgment and
discretion; (2) the power to hear and determine or to ascertain facts and decide; (3) the
power to make binding orders and judgments; (4) the power to affect the personal or
property rights of private persons; (5) the power to examine witnesses, to compel the
attendance of witnesses, and to hear the litigation of issues on a hearing; and (6) the
power to enforce decisions or impose penalties.”

In a landmark judgment, it was held by the Supreme Court that while exercising any function
which is quasi-judicial in nature, the rules of natural justice must be followed. It was further
held that the adherence to principles of natural justice is to prevent a miscarriage of justice.
The respondent party, being a quasi-judicial body, any person acting under that ought to carry
out actions which are abiding principles of natural justice. The Petitioner hereby was arrested
even without notice to remove the posts or tweets that the petitioner has made. This is the

12
Perdue, Brackett, Flores, Utt & Burns v. Linebarger, Goggan, Blair, Sampson & Meeks, L.L.P., 291
S.W.3d 448 (Tex. App. 2009)

14
prime example of a violation of principles of natural justice, and how governments strong-
arm people who criticize and point out the mistake 13.

The following is an extract from A.K. Kraipak and Ors. vs. Union of India (UOI) and Ors.
(1969) 2 SCC 262

“13. The dividing line between an administrative power and a quasi-judicial power is
quite thin and is being gradually obliterated. For determining whether power is an
administrative power or a quasi-judicial power one has to look to the nature of the
power conferred, the person or persons on whom it is conferred, the framework of the
law conferring that power, the consequences ensuing from the exercise of that power
and the manner in which that power is expected to be exercised...”

The action of the controller, being a quasi-judicial function, did not give a fair chance of
hearing the petitioner before the arrest, nor there was a remedy for the petitioner to rely upon
in the SMRA, 2021. There was a miscarriage of justice in broad daylight when the controller
with insurmountable powers arrested the petitioner. While the statute provides only sanctions
to be imposed to the social media intermediary under Sec. 4 and 7 of the SMRA, 2021.

2.2 The SMRA, 2021 violates Rule of Law

In order for an act of the state to be in conformity with Art.14, it must not only be non-
arbitrary but also be reasonable and in conformity with rule of law.

In the famous E.P. Royappa vs. State of Tamil Nadu and Ors. 14 AIR 1974 SC 555)

“85...Where the operative reason for State action, as distinguished from motive inducing from
the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the
area of permissible considerations, it would amount to mala fide exercise of power and that is
hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal
radiations emanating from the same vice: in fact, the latter comprehends the former. Both are
inhibited by Articles 14 and 16.”

“Fake news” is defined as “any information that the Controller believes to be factually
incorrect, misleading or deceptive” not the information which is factually incorrect.

13
Maneka Gandhi v. Union of India (AIR 1978 SC 597)
14
E.P. Royappa vs. State of Tamil Nadu and Ors

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Information or opinions that you disagree with may not necessarily constitute fake news.
However, according to Sec. 2(5) of the SMRA, it is left for the controller to decide what fake
news is and to instruct social media platform to remove that from the platform. There is no
policy/guidelines nor a fact-checking mechanism mentioned as of which the controller goes
through and decides if the news is incorrect, misleading and deceptive instead It is done
solely on the basis of what the controller thinks. The petitioner also extends that the practice
of calling an individual’s information or opinion misinformation based on the premise that it
does not align with your political views cannot be considered fake news. And, any sanction
upon such view would abridge Art. 19(1)(a) which would be dealt with in detail in the 3rd
issue.

(a) Absence of Rule of Law

Dicey propounded the theory of Rule of Law and laid down the principles-(1) Absence of
arbitrary power (2) Equality before law (3) Individual Liberties. India incorporates the
principle of the absence of arbitrary power and equality before the law.

Justice Bhagwati held that the “rule of law excludes arbitrariness and unreasonableness”15.

It is humbly submitted that under the rule of law that there is supposed to be an absence of
arbitrary power in law. Sec 2(5) of SMRA 2021 clearly envisages the right to equality as it
has and will be surrounded by the arbitrariness of the government. According to the SMRA,
the controller is empowered to restrict any news as ‘fake news’ in accordance according to
his/her understanding which is also powered by his/her bias and the absence of guardrails in
the statute aid arbitrariness and uncontrolled powers. The petitioner relies upon the below
judgments -

G. Venkata Naidu v. Bellary Central Co-operative Stores Ltd. 16

“28...the Legislature has not given any guidance as to how the power should be exercised by
the Government and hence the conferment of such unguided and uncontrolled power is
violative of Article 14 of the Constitution as such power is capable of being abused or
exercised arbitrarily.”

15
Bachan Singh v State of Punjab, AIR 1982 SC 1325
16
G. Venkata Naidu v. Bellary Central Co-operative Stores Ltd. AIR 1967 MYS 203

16
(Supra A.K Kriapak)

“13...Under our Constitution, the rule of law pervades over the entire field of administration.
Every organ of the State under our Constitution is regulated and controlled by the rule of law.
In a welfare State like ours, it is inevitable that the jurisdiction of the administrative bodies is
increasing at a rapid rate. The concept of rule of law would lose its vitality if the
instrumentalities of the State are not charged with the duty of discharging their functions in a
fair and just manner. The requirement of acting judicially, in essence, is nothing but a
requirement to act justly and fairly and not arbitrarily or capriciously.”

OSMANIA UNIVERSITY TEACHERS’ ASSOCIATION VERSUS STATE OF ANDHRA

PRADESH17 AIR 1987 AP 214

(27) “We find it difficult to accept the contention that the provisions contained in the
Act, with particular reference to Sections 11 and 16 are arbitrary, conferring
uncontrolled power without guidelines on the Commissionerate and, therefore, Article
14 is violated. The academic freedom and the autonomy of the University are also
concepts that are subject to reasonable restrictions and, therefore, we find little
substance in the argument that the provisions in the Act which contain a semblance of
right in favour of the Government in the affairs of the University is violative of,
Article 19 (1) (a) of the Constitution…..”

Thus, in the light of the precedents stated, it is contended that we see how the uncontrolled
power of authority violates the equal rights of other citizens. Further in the case of Laxmi
Khandsari and Ors. v. State of U.P. and Ors 18, the Supreme Court held that any action which
is unreasonable or unjustifiable or arbitrary is violative of Article 14. In the instant case, the
statute fails to guide the power given to the authorities which result in the authorities
exercising their powers in a manner that violate the equal rights of other people or otherwise
the violation of Article 14.

(b) Absence of Rational Nexus

17
Osmania University Teachers’ Association v. State of Andhra Pradesh AIR 1987 AP 214
18
Laxmi Khandsari and Ors. v. State of U.P. and Ors
17
 The differentia must have a rational relation to the object sought to be achieved by the
act. In the instant case, any “fake news” would be made to delete from the platform
upon the direction from the Government established by the law to the Social Media
intermediary. If the social media intermediary does not comply, it would receive
further direction as a penalty under Sec 7 of the SMRA, 2021. As held in Union of
India (UOI) and Ors. v. Mohan Lal Capoor and Ors (AIR 1974 SC 87) 19 that the
authority should reveal a rational nexus between the facts considered and the
conclusions reached. Only in this way can opinions or decisions recorded be shown to
be manifestly just and reasonable. Further in the case of, Justice K.S. Puttaswamy and
Ors. v. Union of India (AIR 2018 SC 237) 20, the court held that the justification for
rights-infringing measures that interfere with or limit the exercise of fundamental
rights and liberties must be based on the existence of a rational connection between
those measures, the situation in fact and the object sought to be achieved.

The sections in question are merely rational decisions backed with political motives and are
not reasonable as the classification is based on “artificial distinction” 21 . Therefore, The
government’s primary focus during such a pandemic should be to handle the medical
situation and to be not enacting or coming with acts that do not comply with equality before
the law and is subjected to arbitrariness. The government can be clearly seen to be abusing its
power by going against the Indian constitution just to cover up its inefficiency in handling the
pandemic Further, Article 14 is an authority for the proposition that the principles of natural
justice are an integral part of the guarantee of the equality assured by Article 14 22. An act
that is discriminatory is liable to be labelled as arbitrary and thereby void.

2.3 That provisions of SMRA, 2021 are unconstitutional for being violative of Article 14.

It is humbly submitted that provisions of with quasi-judicial function and as established in the
previous sub-issue, every quasi-judicial authority has to adhere to the principles of natural
justice. However, the provisions do not give the person a chance to show cause their side nor
consider the question of intention but directly will be arrested under the provisions of IPC,

19
Union of India (UOI) and Ors. v. Mohan Lal Capoor and Ors (AIR 1974 SC 87)
20
Justice K.S. Puttaswamy and Ors. v. Union of India (AIR 2018 SC 237)
21
Kailash Chand Sharma v State of Rajasthan,2006 6 SCC 562
22
Supra 13

18
1860 by intentionally no making any provisions under audi alteram partem. Therefore,
excluding adherence to principles of natural justice in the exercise of quasi-judicial power is
violative of Article 14, since, every act in pursuance of quasi-judicial power has to conform
to the principles of natural justice. It has contended that Section 2(5) of SMRA, 2021 must be
held void and unconstitutional.

III Whether Sec 4 and 7 of the SMR Act, 2021 are constitutionally valid?

The unhindered flow of words in an open forum is the essence of a free society and needs to
be safeguarded at all times. One’s opinions may, therefore, be expressed by words of mouth,
in writing, printing, pictures, or any other mode. This freedom includes a person’s right to
propagate or publish the views of other people 23. (The freedom) lay at the foundation of all
democratic organisations, for without free political discussion no public education, so
essential for the proper functioning of the processes of popular government, is possible. A
freedom of such amplitude might involve risks of abuse. (But) ‘it is better to leave a few of
its noxious branches to their luxuriant growth, than, by pruning them away, to injure the
vigour of those yielding the proper fruits. (Romesh Thappar case this Court said at p. 602:)

3.1 Section 4 and Section 7 are is violative of the fundamental right of freedom of speech
and expression and the right to life and liberty must be struck down.

It is humbly submitted that in the present case, the problem we have has a binary outcome.
That is to say, “fake news” might create public disorder or it might not. Section 7 of the
SMRA is open-ended and the interpretation is problematic. The paper might duly consider
the dealing of “fake news” when it interrupts public peace and tranquillity or has a tendency
to create havoc if dealt with under the provisions of the SMRA,2021. However, more often
than not, in the practical sense, the later part when the social media posts do not create havoc
is completely left out. Relying on the below case, the Hon’ble court has given due importance
to the intention of the person committing such an offence whereas provisions of SMRA, 2021
have completely omitted which makes the interpretation precarious. In addition to this as
proved earlier, “fake news” is what the controller believes it to be and not which is
contradictory to the facts and circumstances.

23
Srinivas v. State of Madras AIR 1932 Mad 70
19
The Hon’ble Bench in Ramji Lal Modi v. State of U.P. MANU/SC/0101/1957: (1957) SC
620, spoke thus: (AIR pp. 622-23, para 9) 24

“ In the first place Clause (2) of Article 19 protects a law imposing reasonable
restrictions on the exercise of the right to freedom of speech and expression "in the
interests of public order", which is much wider than "for maintenance of" public
order. If therefore, certain activities have a tendency to cause public disorder, a law
penalising such activities as an offence cannot but be held to be a law imposing
reasonable restriction "in the interests of public order" although in some cases those
activities may not actually lead to a breach of public order...The calculated tendency
of this aggravated form of insult is clearly to disrupt the public order and the section,
which penalises such activities, is well within the protection of Clause (2) of Article
19 as being a law imposing reasonable restrictions on the exercise of the right to
freedom of speech and expression guaranteed by Article 19(1)(a). Having regard to
the ingredients of the offence created by the impugned section, there cannot, in our
opinion, be any possibility of this law being applied for purposes not sanctioned by
the Constitution. In other words, the language employed in the Section is not wide
enough to cover restrictions both within and without the limits of constitutionally
permissible legislative action affecting the fundamental right guaranteed by Article
19(1)(a)...”

Whereas in the instant case, the petitioner, Mr. Eisenberg’s tweet did not lead to any
public disorder or chaos hence, the government has no right to impose any kind of
reasonable restrictions on Mr. Eisenberg’s right to freedom of speech and expression
in the name of ‘public interest’.

It is humbly submitted by the petitioner that a law must be capable of being separated into
legally distinct rights or obligations that can be enforced independently without hindrance
and for the sake of clarity while enforcing such provision. The provision of SMRA does not
give due to weightage to the contents of the posts and the aggravated tendency to create
havoc, but only deals where the controller believes a “fake news” is. Under SMRA it does not

24
Ramji Lal Modi v. State of U.P. MANU/SC/0101/1957: (1957) SC 620, spoke thus: (AIR
pp. 622-23, para 9)
20
matter whether the person who posted social media is having a malafide intention or not, to
vilify the actions of government established by law; if the controller suspects the post is “fake
news” as per his/her believes, the person posted would bear the consequences of From the
above case, it is more than clear that the respondents ought to consider the effect of making
any provision, especially while making a law under reasonable restriction “in the interest of
public order” which the respondents have omitted.

In the case of Arnab Ranjan Goswami vs. Union of India and Others25, relief was granted
against multiple FIRs arising from the same television show and pending at places other than
Mumbai but this Court refused to exercise jurisdiction under, Article 32 of the Constitution
for the purpose of quashing the basic FIR registered at Mumbai. The relevant discussion on
that behalf was: -

“39. The manner in which the petitioner has been subjected to numerous FIRs in
several States, besides the Union Territories of Jammu and Kashmir on the basis of
identical allegations arising out of the same television show would leave no manner of
doubt that the intervention of this court is necessary to protect the rights of the
petitioner as a citizen and as a journalist to fair treatment (guaranteed by article 14)
and the liberty to conduct an independent portrayal of views. In such a situation to
require the petitioner to approach the respective High Courts having jurisdiction for
quashing would result in a multiplicity of proceedings and unnecessary harassment to
the petitioner, who is a journalist.

The petitioner humbly submits that the Hon’ble court intervened to settle the matter when
a citizen who is also a journalist is criticising and pointing the mistakes of the
Government for its wrongdoings. An Activist is also a public-spirited person like a
journalist but the degree of interpreting, contextualising, and conveying the nuances of a
particular issue might be different, over and above both are citizens of this country where
they have freedom of speech guaranteed under Article 19(1)(a) of the Constitution.

It was the intention of the Government to intimidate Mr Eisenberg valiantly doing his job
during the current pandemic keeping the public informed through the social media

25
Arnab Ranjan Goswami vs. Union of India and Others

21
platform. Instead, the government responded to such reports and critiques by taking
measures to alleviate distress among the people, instead of shooting the messenger.

3.2 Fake news under SMRA, 2021 and Sedition laws overlaps-

Sedition considers and penalises any spoken or written words or signs or visible
representations, etc. which have the effect of bringing, or which attempt to bring into hatred
or contempt or excites or attempts to excite disaffection towards the Government established
by law.

Vinod Dua vs. Union of India (UOI) and Ors (2020) 14 SCC 51 .-

28.6.1. Finally, while considering the applicability of Section 124A of the Indian Penal Code,
especially in the context of the Right guaranteed Under Article 19(1)(a) of the Constitution,
this Court concluded:

“...In other words, any written or spoken words, etc. which have implicit in them the
idea of subverting Government by violent means, which are compendiously included
in the term "revolution", has been made penal by the Section in question. But the
Section has taken care to indicate clearly that strong words used to express
disapprobation of the measures of Government with a view to their improvement or
alteration by lawful means would not come within the section...A citizen has a right to
say or write whatever he likes about the Government, or its measures, by way of
criticism or comment, so long as he does not incite people to violence against the
Government established by law...criticism of public measures or comment on
Government action, however strongly worded, would be within reasonable limits and
would be consistent with the fundamental right of freedom of speech and expression.
It is only when the words, written or spoken, etc. which have the pernicious tendency
or intention of creating public disorder or disturbance of law and order that the law
steps in to prevent such activities in the interest of public order. So construed, the
section, in our opinion, strikes the correct balance between individual fundamental
rights and the interest of public order.”

It is contended that the action by the petitioner was clear and it can neither be proved that the
posts criticising the Government were unambiguous and nor it had elements inciting

22
violence. In other words, disloyalty to Government established by law is not the same thing
as commenting in strong terms upon the measures or acts of Government, or its agencies, so
as to ameliorate the condition of the people or to secure the cancellation or alteration of those
acts or measures by lawful means, that is to say, without exciting those feelings of enmity and
disloyalty which imply excitement to public disorder or the use of violence. If on the other
hand, we give a literal meaning to the words of the section of Section 4 & 7 divorced from all
the antecedent background in which the law of sedition has grown but also very much beyond
the limits laid down in Clause (2) aforesaid which hinders the fundamental rights of the
petitioner under Art 19 and 21. In the below case the, intention of the person posting was not
to incite violation nor to vilify the government, Thus, the FIR was dismissed.

Patricia Mukhim vs. State of Meghalaya and Others26, the requisite intention to bring out
the basic ingredient of offences under Sections 153A and 505 (1) (c) of the IPC was found
to be absent. This Court observed :

“13. In the instant case, applying the principles laid down by this Court as mentioned
above, the question that arises for our consideration is whether the Facebook post -
dated 04.07.2020 was intentionally made for promoting class/community hatred and
has the tendency to provoke enmity between two communities...As there is no attempt
made by the Appellant to incite people belonging to a community to indulge in any
violence, the basic ingredients of the offence under Sections 153 A and 505(1)(c) have
not been made out. Where allegations made in the FIR or the complaint, even if they
are taken on their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused, the FIR is liable to be
quashed.”

3.3 The doctrine of proportionality

Restrictions must not be arbitrary or of an excessive nature so as to go beyond the

requirement of the interest of the general public. In order to judge the reasonableness of the
restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of
universal application and the same will vary from case to case as also with regard to changing
conditions, values of human life, social philosophy of the Constitution, prevailing conditions
and the surrounding circumstances.Thus, while examining as to whether the impugned
26
Patricia Mukhim vs. State of Meghalaya and Others

23
provisions of the statute and rules amount to reasonable restrictions and are brought out in the
interest of the general public, the exercise that is required to be undertaken is the balancing of
fundamental right to carry on occupation on the one hand and the restrictions imposed on the
other hand. This is what is known as the doctrine of proportionality. Jurisprudentially,
proportionality can be defined as the set of rules determining the necessary and sufficient
conditions for the limitation of a constitutionally protected right by law to be constitutionally
permissible 27. The time is long past when the mere criticism of Governments was sufficient
to constitute sedition, for it is recognized that the right to utter honest and reasonable
criticism is a source of strength to a community rather than a weakness. Criticism of an
existing system of Government is not excluded, nor even the expression of a desire for a
different system altogether28.

This Court might take note that, after SMRA, 2021 not only such activities which would be
intended or have a tendency to create disorder or disturbance of public peace by resort to
violence - are rendered penal but those actions by the citizens which the controller believes to
be false also come under Sections 124-A and 505 of the Indian Penal Code. The petitioner’s
criticism of the Government happened to come under the SMRA, 2021 and he was arrested
even without notice nor an opportunity was given to hear his side of the story. The has an
erroneous approach in this regard, by first the definition of fake news is in such a manner that
is skewed enough to help government established by law (here the controller who is
empowered) to declare any new which the person deems fit to be “fake news”. There is no
proof found by the respondents about infirmity or illegality in the statements made by the
petitioner, on the basis of which it could be possibly be said that he was attempting to
disseminate any news capable of causing panic. Further, there was the lodging of a false
claim by a petitioner for obtaining any relief, assistance, etc., nor circulated a false alarm or
warning as to disaster or its severity or magnitude, leading to panic, thus Section 52 &
Section 54 of the Disaster Management Act would also not be appropriate in the instant case.
The only things the petitioner did was to criticizes the measures that the government had
taken until now.

The anticipated danger should not be remote, conjectural or far-fetched. It should have a
proximate and direct nexus with the expression. The expression of thought should be

27
Modern Dental College and Research Centre & Ors. v. State of Madhya Pradesh & Ors
28
Kedar Nath Singh v. the State of Bihar (1962) Supp. 2 SCR 769

24
intrinsically dangerous to the public interest. In other words, the expression should be
inseparably locked up with the action contemplated like the equivalent of a “spark in a
powder keg”29

VINOD DUA VERSUS UNION OF INDIA & OTHERS LNIND 2021 SC 177; (2020) 14 SCC
51

42...he would be within his rights to say that as a Journalist he was touching upon issues of
great concern so that adequate attention could be bestowed to the prevailing problems. It
cannot be said that the petitioner was spreading any false information or rumours. It is not the
case of the respondents that the migrant workers started moving towards their
hometowns/villages purely as a result of the statements made by the petitioner. Such
movement of migrant workers had begun long before. In the circumstances, these statements
can neither be taken to be an attempt to incite migrant workers to start moving towards their
hometowns or villages nor can they be taken to be an incitement for causing any food
riots…”

The petitioner most respectfully prays that this Hon’ble court declares Articles 19 and 21
of the Constitution of Industan are non-negotiable. Further, it would be a grave injustice
to people and reversal of all the cases in support of the above contention if the SMRA
were to be left unchanged.

PRAYER

Wherefore, in the light of the legal precedents and principles cited; and in light of the
provisions of the Constitution applied and arguments advanced; it is most humbly pleaded
before the Hon’ble Court that this Court adjudges and declare that:

29
S. Rangarajan v. P. Jagjivan Ram & Ors.48-45
25
 1. That the Writ Petition filed by Mr Eisenberg is maintainable before the Supreme
Court of Industan.

2. Section 2(5) under the Social Media Regulation Act, 2021 is violating Article 14, thus
ultra vires under the Constitution of Industan.

3. Section 4 and 7 under the Social Media Regulation Act, 2021 Article 19 and 21 thus
ultra vires under the Constitution of Industan.

And pass any other order, direction, or relief that it may deem fit in the best interests of
justice, fairness, equity and good conscience.

ALL OF WHICH IS MOST RESPECTFULLY SUBMITTED.

COUNSEL FOR THE PETITIONER

26