TEAM CODE: CUM09

TEAM CODE: CUM09

IN THE HON’BLE HIGH COURT OF DHAKSHINAJAL

Writ Prtition
No.___ of 2021

IN THE MATTER BETWEEN

Kishan Manohar ….Petitioner

v.
Union Of India ….Respondent
No. 1

State of Dhakshinajal …Respondent

No. 2

MEMORANDUM ON BEHALF OF THE RESPONDENT

  

TABLE OF CONTENTS

ABBREVIATIONS.....................................................................................................................

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

CASES.........................................................................................................................................

BOOKS........................................................................................................................................

STATUTES REFERRED............................................................................................................

IMPORTANT DEFINITIONS....................................................................................................

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

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

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

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

WRITTEN SUBMISSIONS........................................................................................................

Issue One..................................................................................................................................

Whether the petition filed by Kishan Manohar is maintainable before the High Court of
Dhakshinajal?...........................................................................................................................

Issue Two.................................................................................................................................

Whether the order being challenged is violative of fundamental rights?................................

Whether Proper Legal Procedure Was Followed While Passing The Order Dated 8 JULY
2021?
 
  

ABBREVIATIONS

AIR : All India Reporter

Art. : Article
Factsheet : Statement of Facts, 1st Virtual National Moot Cout
Competition 2021, Problem

Hon'ble : Honorable
TSTS : Temporary Suspension of Telecom Services (Public
Emergency Or Public Safety) Rules, 2017.

Mahola : Mahola, Maholi, Mohala

  

INDEX OF AUTHORITIES
  

BOOKS
1. Aharon Barak,Proportionality: Constitutional Rights and Their Limitation
(Cambridge University Press, 2012)
2. MP JAIN, INDIAN CONSTITUTIONAL LAW, (6th Ed, LexisNexis Butterworth Wadhwa,
2010)
3. 1-4 M.V. PYLEE, CONSTITUTIONAL AMENDMENTS IN INDIA, (3rd Ed. Universal Law
Publishing House Co. Pvt. Ltd.,2010 )
4. 1-3 JUSTICE SUJATA V. MANOHAR, T.K. TOPE’S CONSTITUTIONAL LAW OF INDIA, (3rd
Ed. Eastern Book Company, 2010)
5. 1-4 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA A CRITICAL COMMENTARY, (4th
Ed. Universal Law Publishing Co. Pvt. Ltd., 2010)
6. 1-3 JAGDISH SWARUP & DR. L.M. SINGHVI, CONSTITUTION OF INDIA (3rd
Ed.Thomson Reuters South Asia Private Limited, 2013)
7. 1-10 ACHARYA DR. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF

INDIA, (11th Ed. , Lexis Nexis Butterworth Wadhwa, Nagpur, 2009)

8. 1-3 ARVIND P.DATAR, DATAR COMMENTARY ON THE CONSTITUTION OF INDIA, (2nd
Ed. , Lexis Nexis Butterworth Wadhwa, Nagpur, 2010)

WEBLIOGRAPHY
1. www.indiankanoon.org
2. www.dot.gov.in
3. www.legislative.gov.in
4. www.livelaw.in

STATUES REFERRED
1. Constitution of India, 1950

IMPORTANT DEFINITIONS
‘Petitioner’ for the purposes of this memorandum in the first issue shall stand for Kishan
Manohar.
‘Respondent’ for the purposes of this memorandum stands for ‘The Union of India’ and State
of Dakshinajal
 
  

STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble court under Article 226 of the Constitution of
India for the violation of Fundamental rights. The Respondent humbly submits that there was
no violation of the same as the Fundamental Rights are not absolute and subject to reasonable
restrictions and State has the power to put reasonable restrictions when circumstances
demand them to do so and priority of Protection of public will prevail and therefore the
Jurisdiction under Article 226 of Indian Constitution does not apply.
  

STATEMENT OF FACTS

PART-I
1. Mahola is the most backward district of the state of Dakshinajal because of low literacy
rate, bad infrastructure facilities, lacking toilet facilities, etc.
2. Since January 1988 Mahola is a Maoist affected district. Pandemic COVID-19 had its
effect in Mahola district.
 From February 2020 onwards educational institutes were closed and students were
depending on online classes.
 In October 2020 the print and electronic media published many reports highlighting
the gravity of digital divide in the state, especially in Mahola district and its adverse
effect on online learning.
 In November 2020 the state government started a project in the state named as
“Digitalization of School Education”. As a part of this project, the government had
distributed digital devices which came with a five-year warranty and insurance
coverage, trained teachers, set up high-tech labs and also installed high-speed internet
in over 12,000 schools. Several NGOs, celebrities and elected representatives provided
TV sets.
3. Maoist attacks started taking place from April 2021 many people were injured and killed.
There are 246 incidents of Maoist attack in the months of April and May alone. The
police identified that the network set up by the government for school education had been
intercepted by the Maoist as they were using it for their illegal activities.
4. Following these events on 15th June 2021 the Principal Secretary (Home Affairs) of the
state issued notification under TSTS temporarily suspending the internet services for 15
days.
5. On 17th June 2021 complying with the legal rules and procedures the State Government
constituted review committee and on basis of its recommendations the temporary
suspension continued.
6. On 7th July a suspected Maoist was killed in an alleged encounter between the police and
a gang of left extremist in the district of Mahola. However, through a press release the
Maoists alleged that the incident was a fake encounter and in the last three months itself
65 Maoists had been killed.
  

7. On 8th July the Principal Secretary (Home Affairs) of the state issued notification under
TSTS temporarily suspending the internet services indefinitely with effect from 15th July
2021.
8. To this effect Kishan Mohan (petitioner) higher secondary student of Government HSS
Nalpur, Mahola filed a writ petition challenging the order of the Principal Secretary
(Home Affairs) dated 8th July 2021 and the act of TSTS itself.
  

STATEMENT OF ISSUES

ISSUE 1: Whether the petition filed by Kishan Manohar is maintainable before the High
Court
of Dhakshinajal?

ISSUE 2: Whether the order being challenged is violative of fundamental rights?

ISSUE 3: Whether proper legal procedure was followed while passing the order dated 8 july
2021?
  

SUMMARY OF ARGUMENTS

ISSUE ONE: THE PETITION FILED BY KISHAN MANOHAR IS MAINTAINABLE

BEFORE THE HIGH COURT OF DHAKSHINAJAL
The Petition filed by Petitioner is not maintainable. The Order passed by Principal Secretary
(Home affairs) of State (Authority) have strictly complied with the Rules and issued
notification in exercise of power conferred under Rule 2(1) of temporary suspension of
telecom services (public emergency or public safety) Rules, 2017 (called Suspension Rules)
assuming legal obligation/duty in the interest of maintaining public safety and averting
(undesirable occurrence) public emergency.

ISSUE TWO: THE ORDER BEING CHALLENGED IS VIOLATIVE OF

FUNDAMENTAL RIGHTS
Fundamental Rights are not absolute and subject to reasonable restrictions. Also, the security
of State is definitely vital and beyond the Fundamental Rights

ISSUE THREE: PROPER LEGAL PROCEDURE WAS NOT FOLLOWED WHILE

PASSING THE ORDER DATED 8 JULY 2021
Suspension of Internet services was absolutely necessary in the interest of public to prevent
misuse of internet by Maoists who were endeavouring to spread false information and hence
the notification was issued in the interest of sovereignty and integrity of State, the security of
the State and for maintaining public order. The Order was issued in the interest of public, to
prevent any disturbance of peace and ensure public security in the district. It would have been
questionable on the part of State if preventive steps are not taken in time so as to avoid
mishaps. The notification was passed in compliance with and in power exercise of the power
conferred by Temporary Suspension of Telecom Services, Rule 2017
  

WRITTEN SUBMISSIONS

ISSUE ONE

WHETHER THE PETITION FILED BY KISHAN MANOHAR IS MAINTAINABLE BEFORE THE

HIGH COURT OF DHAKSHINAJAL?

A. The Learned Counsel on behalf of the Respondent vehemently opposes the petitions and
argues that the Principal Secretary (Home affairs) of state (Authority) have strictly
complied with the Rules and issued notification in exercise of power conferred under Rule
2(1) of Temporary Suspension of Telecom Services (public emergency or public safety)
Rules, 2017 (called Suspension Rules) assuming legal obligation/duty in the interest of
maintaining public safety and averting (undesirable occurrence) public emergency.

B. It submits that this Writ of Mandamus is not maintainable. Writ of Mandamus can be filed
against a person who has a legal duty to perform but has failed to do so. Here, Authority
was rightly performed their legal duties.

C. The Learned Counsel on behalf of the Respondent also submits that the notification does
not go beyond the Act as power has been conferred on the Authority by Suspension Rules
which is passed in exercise of power conferred under Section 7 of Indian Telegraph Act,
1885.

D. And notification was passed in order to prevent any disturbance of peace and for public
security in the district. It would have been foolish to have not taken any preventive
measures in the circumstances.
  

In light of the above-mentioned reason, it is humbly submitted that this writ petition is NOT
maintainable and the petition should be thereby dismissed.
  

ISSUE TWO

WHETHER THE ORDER BEING CHALLENGED IS VIOLATIVE OF FUNDAMENTAL RIGHTS?

1. The Learned Counsel on behalf of the Respondent further submits that the claims of
fundamental rights have to be examined with the larger public interest of protecting
the security of the State, wherein, while balancing the aforesaid conflicting rights, the
security of the nation triumph(win) against the fundamental rights of the citizens. The
fundamental rights of citizens are must but when the situation so demands, the public
security concerns must be given importance against other Rights, and for that steps
shall be taken with utmost seriousness to ensure that citizens enjoy life to the greatest
possible extent.

2. It submits that the impugned notification which affected telecom services in the
district of Mahola did not offend Article 14 of the constitution. Article 14 forbids
class legislation and not reasonable classification for the purpose of legislation. It
must pass the test of permissible classification. To pass the test of permissible
classification two conditions must be fulfilled, namely, (i) that the classification must
be found on intelligible differentia which distinguishes person or things that are
grouped together from others left out of the group and, (ii) that differentia must have a
rational relation to the object sought to be achieved by the statute in question. This
classification is based on the intelligible differentia which places the Mahola District
in well-defined class which were Maoist attacks affected and Internet were misused
distinguishes them from other districts where no Internet were not misused and this
differentia has a close (nexus) connection with the object sought to be achieved by
impugned acts, namely protection of public of Mahola district, to prevent misuse of
internet and preventing to spread false information by Maoist which can create
confusion or feeling of enmity against government in the mind of people.

3. The learned counsel on behalf of respondent submits that Article 19(1) guarantees
Fundamental Rights but also empowers state to impose reasonable restrictions on
  

those freedoms in public interest under Article 19(2) and authority is within its power
restricted/temporarily suspended through Suspension rules. This suspension is
justified and reasonable in the interest of security of state, to protect public and
maintain peace as laid down under Article 19(2) of the Constitution. The restriction
imposed cannot be held to be violative of Right to freedom of speech and expression
and authority is entitled to restrict the freedom guaranteed under part III of the
Constitution. The degree of restriction and scope of the same, must stand in relation to
what is actually necessary and prioritize the various factors to combat an emergent
situation and it can be said that restrictions were necessary and in compliance with
law.

4. To prove restriction reasonable, it must pass the test of proportionality. If

Fundamental Rights are curtailed without appropriate justification, then only it would
be classified as disproportionate. The concept of Proportionality requires a restriction
to be tailored in accordance with the territorial extent of the restriction, nature of
urgency, duration of such restrictive measure and nature of such restriction.

5. The Supreme court observed that fundamental rights are principles and any
restrictions on the same would need to adhere to the “Principle of proportionality”
K.S. Puttaswamy v. Union of India

6. In Anuradha Bhasin v. Union of India and ors. it is said that the Speed Restriction
orders fail the test of proportionality, as the order passed by the Respondent are absent
on the objective which is required to be achieved by placing restrictions on the
dissemination of information. Here, in this case the object of the order was stop to
spread the false information by Maoist to public, therefore the measures taken by
authority “to suspend internet” was reasonable and can be said that it passed the test
of proportionality.

7. It is also imperative to place reliance on Aharon Barak’sseminal book15 on proportio
nality upon which Dr A.K. Sikri, J.
placed reliance while expounding the doctrine of proportionality in Modern Dental
College case (Supra) as follows:
  

A limitation of Constitutional right will be constitutionally permissible if (i) it is

designed for a proper purpose; (ii) the measures undertaken to effectuate such a
limitation are rationally connected to the fulfilment of that purpose; (iii) the measures
undertaken are necessary in that there are no alternative measures that may similarly
achieve that same purpose with a lesser degree of limitation; and finally (iv) there
needs to be a proper relation (“proportionality stricto sensu” or “balancing”) between
the importance of achieving the proper purpose and the social importance of
prevailing the limitation on the Constitutional Right.

8. Thereafter, a comprehensive doctrine of proportionality in line with the German

approach can be propounded by this Hon’ble Court in the Modern Dental College
case (Supra) wherein the Court held that:
“In this direction, the question that arises is as to what criteria is to be adopted for a
proper balance between the two facets viz. the rights and limitations imposed upon it
by a statute. Here comes the concept of “proportionality”, which is a proper criterion.
To put it pithily, when a law limits a constitutional if it is proportional. The law
imposing restrictions will be treated as proportional if it is meant to achieve a proper
purpose, and if the measures taken to achieve such a purpose are rationally connected
to the purpose, and such measures are necessary….

9. In Modern Dental college case (supra), this Hon’ble court can analyse that the
principle of proportionality is inherently embedded in Indian Constitution under the
realm of the doctrine of reasonable restrictions and that the same can be traced under
Article 19. The relevant extracts are placed below:

“We may unhesitatingly remark that this doctrine of proportionality, explained

hereinabove in brief, is enshrined in Article 19 itself when we read clause (1) along
with clause (6) thereof. While defining as to what constitutes a reasonable restriction,
this court in a plethora of judgements has held that the expression “reasonable
restriction” seeks to strike a balance between the freedom guaranteed by any of the
sub-clauses of clause (1) of Article 19 and the social control permitted by any of the
clauses (2) to (6). It is held that the limitation imposed on a person in the enjoyment
  

of the right should not be arbitrary or of an excessive nature beyond what is required
in the interest of public. Further, in order to be reasonable relation to the object which
the legislation seeks to achieve, and must not go in excess of that object (see P.P.
Enterprises v. union of India, (1982) 2 SCC 33). At the same time reasonableness of
restriction has to be determined in an objective manner and from the standpoint of the
interest of general public and not from the point of view of the persons upon whom
the restrictions are imposed or upon abstract considerations (see Mohd. Hanif
Quareshi v. State of Bihar, AIR 1958 SC 731).”

10. The Learned Counsel on behalf of the Respondent submits that Article 21 provides
for Right to life and personal liberty. The Respondent concerns were about Right to
life needs to be secured. In put Dr. D. Y.Chandrachud, J Justice
K.S.Puttaswamy(Retd) vs Union Of India

11. To enjoy a personal liberty to the full extent, firstly the life of public needs to be
protected. The order passed for temporary suspension of Internet by Authority was
absolute necessary.

12. Right to internet: Mr. Vinton G. Cerf, one of the fathers of Internet said that
1.The Internet is very important; however, it cannot be elevated to the status of
Human Right.
2.Technology, in his view, is an enabler of Rights and not in and of itself. Placing
Technology among the exalted category of other Human Rights, such as Right to
conscience, equality etc. with respect to his opinion, the prevalence and extent of
Internet proliferation cannot be undermined in one’s life.

13. Right to education: To enjoy Right to education by Citizens there must be life of
people protected. Nevertheless, State has taken various steps in compliance with
Article 41 with respect to the right to education of the students and endeavour to
increase the literacy rate and bring it at par first with state and then with national.

In November 2020, the state government started a project in the state Named as
Digitalization of school education. Government had distributed close to 3.75 Lakh
  

digital devices to 16,027 schools from class 1 to 12 as part of this project. By the end
of March 45,000 high tech class rooms were set up in 4752 high schools and higher
secondary schools. High tech labs have been setup in the 11,275 schools at the time
primary and upper primary levels. High speed internet has been installed in 12,678
schools. More than 1.83 lakh teachers have been trained in as part of this project.
Several NGO’s, celebrities and elected representatives have provided TV sets. The
Government has also made arrangements with the help of NGO’s to distribute TV sets
even in remote places.

In light of the above-mentioned reason, it is humbly submitted that the petition be dismissed

ISSUE THREE

ISSUE III: WHETHER PROPER LEGAL PROCEDURE WAS FOLLOWED WHILE

PASSING THE ORDER DATED 8 JULY 2021?

A. The Learned Counsel on behalf of Respondent highlights the fact that over 246
Maoist attack incidents have taken in the months of April and May leading to the
death of 78 persons.

B. In view of the aforesaid fact, the learned Counsel on behalf of Respondent submits
that the current situation in the Mahola districts is very grave and volatile, even
referring to the recent incident on 5th April in the Maranguda Village of Maholi
district 14 security Personnel were killed, 32 injured and one Jawan was reportedly
missing in a six- hour- long encounter with Maoist.
  

C. The Competent authority have calibrated the restrictions based on the requirement so
as to reduce the misuse of internet.

D. It might be desirable and to have better internet for progress of Digital India, however,
the fact that Maoist attacks are increasing day by day and resulting in the death of
innocent citizens and security forces every day cannot be ignored. The police also
identified that the digital network set up by the Government for school education has
been intercepted by the Maoist and they are using it for their illegal activities.

E. And in the prevailing circumstances wherein there is continuing insurgency in the

region, the spreading of fake news to incite violence, it was duty of competent
authority to suspend the internet services therefore Notification was issued to prevent
the Maoist using the digital network set up for illegal activities. Competent authority
is cognizant of not only the changing circumstances but also the ground realities.

F. Emergency was sudden, as on 7th July after alleged encounter between Police and a
gang of Left extremists in the district of Mahola, a suspected Maoist was killed.
However, through a press release the Maoists alleged that the incident was a fake
encounter and in the last three months itself 65 Maoists had been killed. This action of
spreading of false information can create a confusion in the mind of public and enmity
against the state.

G. Suspension of internet services have been necessitated in view of its misuse in

planning and executing acts, including attacks on security forces, and innocent
civilians, propagation of ideologies inimical to the interests of the state, misguiding
the youth, communicating and coordinating with handlers to facilitate infiltration and
insurgency”

H. It was absolutely necessary in the interest of the sovereignty and integrity of state, the
security of the state and for maintaining public order,” hence the issuance of notice.

I. In B K Srinivasan & Another Etc. Etc vs State of Karnataka & Ors, 1987 AIR 1059,
1987 SCR (1) 1054. It was held that:
  

a. The High Court was of the view that such defect as there was in regard to
publication of the Plan was cured by s.76J, the Omnibus Curative clause,
called by this Court as the "Ganga" clause. Provisions similar to s.76J are
found in several modern Acts and their object is to put beyond challenge
defects of constitution of statutory bodies and defects of procedure which have
not led to any substantial prejudice. A defective publication which has
otherwise served its purpose is not sufficient to render i1legal what is
published and that such defect is cured by Section 76 J.[1077B-D] Bangalore
Woollen, Cotton & Silk Mills Co. Ltd. Bangalore v. Corporation of the City
of Bangalore, [1961] 3 S.C.R.707 and Municipal Board, 'Sitapur v. Prayag
Narain Saigal & Firms Moosaram Bhagwandas, [1969] 3 S.C.R.

b. In the present case, there certainly was an effort to bring the Plan and
Regulations to the notice of the public by giving notice of the Plan in the
Official Gazette. Non-publication of the Plan in the Official Gazette was,
therefore, a curable defect capable of being cured by s.76J. [1077H; 1078A-B]

J. Failure of the appellant to plead want of publication or want of knowledge assumes

Failure of the appellants to plead want of publication or want of knowledge assumes
importance. In answer to the Writ Petition, the appellants took up the substantial plea
that they had complied with the requirements of the Outline Development Plan and
the Regulations but not that they had no knowledge of any such requirement. It can
safely be said that the defect or irregularity did not affect the merits of the case.
[1078B]

K. Further, The Respondent hereby humbly requests that it would not be appropriate for
the judiciary to wear the shoes of executive in the matters relating to security of a
state. In Zamora, (1916) 2 AC 77 (PC) Lord Parker held that:
‘Those who are responsible for the national security must be the sole judge of what
the national security requires. It would be obviously undesirable that such matters
should be made the subject of evidence in a court of law or otherwise discussed in
public. The Courts should not step into issues of national security which are best left
to those in charge of policy making.’
  

In light of the above mentioned reasons it is humbly submitted that the Notification was
issued in compliance and proper exercise of power conferred by TSTS, Rule 2017
  

PRAYER
WHEREFORE, in light of the issues raised, arguments advanced and authorities cited it is
most humbly and respectfully requested that this Hon’ble Court to kindly dismiss the petition
with costs.
The court may also be pleased to pass any other order, which this Hon’ble Court may deem
fit in light of justice, equity and good conscience. All of which is respectfully submitted on
behalf of the respondents.

The Respondents
Sd/-
..............................
(Counsel for the “Respondents”)
 
1st VIRTUAL NATIONAL MOOT COURT COMPETITION, 2021

47
Memorial on behalf of the Petitioners