BEFORE THE HON’BLE

SUPREME COURT OF INTIA

Union of Intia

(RESPONDENT)

V.
Harry & Hermione

(PETITIONERS)

MEMORIAL FOR THE PETITIONERS

Maharishi Vaidya
Roll.no . 73
T.Y LLB
 TABLE OF CONTENTS

INDEX OF AUTHORITIES. ..................................................................................................... 3

STATEMENT OF JURISDICTION.......................................................................................... 4

STATEMENT OF FACTS . ....................................................................................................... 5

ISSUES RAISED . ...................................................................................................................... 7

ARGUMENTS ........................................................................................................................... 8

PRAYERS.................................................................................................................................11

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 INDEX OF AUTHORITIES

RELEVANT CASES :

1. Justice K.S. Puttaswamy and Ors. v. Union of India

(UOI) and Ors. citation - MANU/SC/1044/2017

2. Kharak singh v. State of Uttar Pradesh. citation - (1964) 1 SCR 332

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 STATEMENT OF JURISDICTION

It is humbly submitted that the petitioner has approached this Hon’ble Court invoking
its jurisdiction under Article 32 of the Constitution of Intia.

Article 32 in The Constitution of India, 1950-

32. Remedies for enforcement of rights conferred by this Part-
(1) The right to move the Supreme Court by appropriate proceedings for the enforce-
ment 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 certi-
orari, whichever may be appropriate, for the enforcement of any of the rights conferred
bythis 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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 STATEMENT OF FACTS

 The Republic of Intia is extremely diverse and has an enormous population size. Inspite
of a stark digital divide persisting in the country, cheap access to internet has enabled
the citizens of Intia [across all ages] to use and spend a major chunk of their daily time
using the internet and social media.

 WhereApp is one of the most prominent online-messaging applications used in Intia. In

fact, Intia has a greater number of WhereApp users than any other country with an active
monthly userbase of 390 million. Due to its immense popularity, WhereApp has time and
again gathered controversy for its role in several incidents of mob lynching, due to spread
of fake news and misinformation.

 One of the most important features of WhereApp is the use of end- to-end encryption
technology, which ensures complete privacy of its users and helps in keeping the ex-
change of messages between two or more people secure and private. Intia’s Ministry
of Technology (“MoT”) in exercise of the powers conferred under the appropriate
sections of its Information Technology Act, enacted the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2022 (“ITRules”) in
May 2022. Soon after the enactment, the IT Rules received a severe backlash due to
its mandate of requiring online-communication applications like WhereApp to help in
the identification of “first-originator” of information after receiving appropriate
orders.
 Ms Hermoine, a social activist immediately approached the Hon’ble Supreme Court
of Intia, citing various provisions of the IT Rules “problematic for people’s privacy”.
WhereApp also released an official statement, clearly highlighting that adherence to
the mandate under IT Rules will lead to a compromise in people’s right to free speech
and privacy. MoT responded and strongly rebutted this statement and said-
“WhereApp’s statement is an attempt to dictate terms to the world’s largest demo-
cracy. Through its actions and deliberate defiance, WhereApp seeks to undermine
Intia’s legal system. Furthermore, WhereApp is refusing to comply with the very
regulations in the intermediary guidelines on the basis of which it claims safe harbour
protection from any criminal liability in Intia.”

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While the IT Rules debate was ongoing, the State of Intia enacted their new Tele-
communications Act [hereinafter, “The Act”] with an aim to consolidate and amend the
laws governing provision, development, expansion and operation of telecommunication
services, telecommunication networks and telecommunication infrastructure and
assignment of spectrum, etc. There was a lot of hue and cry by digital rights
organizations and non-profit organizations concerning Section 24(2) of The Act which
states:
On the occurrence of any public emergency or in the interest of the public safety, the
Central Government or a State Government or any officer specially authorized in this
behalf by the Central or a State Government, may, if satisfied that it is necessary or ex-
pedient to do so, in the interest of the sovereignty, integrity or security of Intia, friendly
relations with foreign states, public order, or preventing incitement to an offence, for
reasons to be recorded in writing, by order:
(a) Direct that any message or class of messages, to or from any person or class of persons,
or relating to any particular subject, brought for transmission by, or transmitted or
received by any telecommunication services or telecommunication network, shall not be
transmitted, or shall be intercepted or detained or disclosed to the officer mentioned in
such order;

 The Act which aims to unify and repeal several old statutes, now explicitly broadened the
definition of “telecommunication services”, and included “Over-the-top (OTT)” and
“internet-based communication services” as well.
 Mr. Harry, Founder of Humara Internet Foundation, working towards protecting digital
rights of the citizens, filed a petition before the Hon’ble Supreme Court of Intia citing
Section 24(2) of The Act as unconstitutional in its present form. Mr. Harry during an
address to a media house said- “The new Telecommunications Act is an attack on end-
to-end encryption and the protection of fundamental rights of people and miserably fails
to adhere to the internationally recognized privacy principles endorsed by the Hon’ble
Apex Court of Intia in its landmark judgment.” His stand garnered support from a
wealth of digital rights organizations and people, and soon became a hot topic of discus-
sion for the prime-time debates.

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 ISSUES RAISED

1. WHETHER THE PETITIONS UNDER ARTICLE 32 MAINTAINABLE?

2. WHETHER THE RELEVANT PROVISIONS MADE UNDER IT RULES

AND TELECOMMUNICATIONS ACT , ULTRA VIRES TO THE
CONSTITUTION OF INTIA?

3. WHETHER THE PROVISIONS UNDER THE IT RULES AND TELECOM-

MUNICATIONS ACT ARE IN COMM ENSURATE WITH THE GOVERN-
MENT OF INTIA’S POLICY ON TELECOMMUNICATIONS AND
INFORMATION TECHNOLOGY?

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 ARGUMENTS

WHETHER THE WRIT PETITION FILED IS MAINTAINABLE OR NOT?

It is humbly submitted before the Hon`ble Court that present writ petition is
maintainable against Union of Intia
It is further submitted that since there has been gross violation of Article 21 of
the Constitution, also no other efficacious remedy is available to
petitioner.

In the case of Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors

“Privacy is the constitutional core of human dignity. Privacy

has both a normative and descriptive function. At a normative level privacy sub-serves
those eternal values upon which the guarantees of life, liberty and freedom are founded.
Privacy includes at its core the preservation of personal intimacies, the sanctity of family
life, marriage, procreation, the home and sexual orientation. Personal choices governing
a way of life are intrinsic to privacy. While the legitimate expectation of privacy may
vary from the intimate zone to the private zone and from the private to the public arenas,
it is important to underscore that privacy is not lost or surrendered merely because the
individual is in a public place. Privacy attaches to the person since it is an essential facet
of the dignity of the human being”.

Here massive public interest is put at stake just to facilitate government. This very act itself
violates the public interest at large.

If data is leaked then it will be used for multiple purposes as data is in hand of private
companies which can use this data for telemarketing, making the life of consumers’ hell by
selling all sorts of products to them.

As all this integrated personal information will put the citizens in a very vulnerable state of
threat.
Thus the Hon’ble Supreme Court should allow the petition for restoring bodily integrity,
right to remain silent and not to reveal personal information so that they can completely
enjoy their personal liberty.

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 ARGUMENTS

Whether IT Rules and Telecommunications Act, ultra vires to the Constitution of Intia?

The project is ultra vires because there is no statutory guidance-

i) on who can collect information
ii) on how the information is to be collected
iii) on how the information is to be stored
iv) on how throughout the chain beginning with the acquisition of data to its
storage and usage, this data is to be protected
v) on who can use the data
vi) on when the data can be used.

The question of whether or not the government’s bureaucracy is equipped to

handle something like this database and this is pertinent as the incapability to do
so will only make it easier for hackers to target the data system. It is clearly
evident from the facts of the case that hackers and internet users leaked crores of
data from database which are now it is in the hands of the private companies.
This shows that bureaucracy is not well equipped to handle the system currently.

Aruna Ramachandra Shanbaug v. Union of India & Ors, it was held that in
common law it is the right of every individual to have the control of his own
person free from all restraints or interferences of others. Every human being of
adult years and sound mind has a right to determine what shall be done with his
own messages and social media presence.
.

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In Kharak Singh case Subba Rao, J. quoted Field, J. in Munn v.
Illinois to emphasise the quality of life covered by Art.21:
“Something more than mere animal existence. The inhibition
against its deprivation extends to all those limbs and faculties by
which life is enjoyed. The provision equally prohibits the mutil-
ation of the body by the amputation of an arm or leg, or the putting
out of an eye or the destruction of any other organ of the body
through which the soul communicates with the outer world.”

.
Looking very deep into the topic the counsel come across a very
important aspect of government’s continuous attempts to amending
the fundamental rights as government is directly affecting an
individual’s Right to Privacy and creating a risk to their personal
data which should be kept safe. But it is laid down in the case of
Keshavnanda Bharti v. State of Kerala that any part of the consti-
tution can be changed except the basic structure of the constitution
which also counts fundamental right.

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 PRAYER

In light of the issues raise, arguments advanced and authorities

cited, the counsel for the Petitioners humbly prayers that the:

1. Section 24(2) of the Telecommunications Act,and IT rules 2022 is violative

of right to life including right to privacy guaranteed under Article 21 and right
to speech and expression under Constitution of Intia.

2. Surveillance on messages and other intimate chats is violative of the

right to speech and expression including right to remain silent under Article
19(1) (a) and right to life including right to privacy under Article 21 of the
Constitution of Intia.

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