Name: Poonam Bansal

Roll No.-33008
College: Nalanda Law College

BEFORE THE HON’ABLE

SUPREME COURT OF BHARAT

IN THE MATTER OF

Union of Bharat........................................................................................................Respondent

VS.

Hary & Hermoine.................................................................................................Petitioner

MEMORANDUM ON BEHALF OF THE RESPONDENT

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 TABLE OF CONTENTS [INDEX]

1. INDEX OF AUTHORITIES

2. STATEMENT OF JURISDICTION

3. STATEMENT OF FACTS

4. ISSUES RAISED

5. ARGUMENTS ADVERSED-:

6. PRAYER

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 INDEX OF AUTHORITIES

RELEVANT websites:

1. https://www.meity.gov.in/writereaddata/files/Press%20Note%20dated%206%20June
%2022%20and%20Proposed%20draft%20amendment%20to%20IT%20Rules
%202021.pdf

2. https://thepolicyobserver.in/the-information-technology-rules-2021-a-constitutional-
scrutiny/2287/#:~:text=The%20Rules%20incur%20liability%20upon,The%20Information
%20Technology%20Act%2C%202000

3. https://www.medianama.com/2021/06/223-legality-constitutionality-of-it-rules/

4. https://blog.ipleaders.in/it-rules-2021-argument-towards-unconstitu-tionality/

5. https://cis-india.org/internet-governance/blog/on-the-legality-and-constitutionality-of-the-
information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021

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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 India.

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 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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 STATEMENT OF FACTS

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

2. WhereApp is one of the most prominent online-messaging applications used in Bharat. In fact, Bharat
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.

3. 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 exchange of messages between
two or more people secure and private. Bharat’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 (“IT
Rules”) 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.

4. Ms Hermoine, a social activist immediately approached the Hon’ble Supreme Court of Bharat, 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
democracy. Through its actions and deliberate defiance, WhereApp seeks to undermine Bharat’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
Bharat.”

5. While the IT Rules debate was ongoing, the State of Bharat enacted their new
Telecommunications 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 Section24(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 expedient to do so, in the
interest of the sovereignty, integrity or security of Bharat, 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

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 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;

b. Direct that communications or class of communications to or from any person or class of persons,
or relating to any particular subject, transmitted or received by any telecommunication network
shall be suspended.

6. 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.

7. 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 Bharat 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 Bharat in its landmark judgment.” His
stand garnered support from a wealth of digital rights organizations and people, and soon became
a hot topic of discussion for the prime-time debates.

8. Responding to the statement made by Mr Harry, the Department of Telecommunications (“DoT”)

states- “Evidence suggests that the use of Darknet and end-to-end encrypted messaging platforms
have become a haven for terrorists. Therefore we need to have strong measures in place for
effective surveillance and tracking of such anti-social elements. The government is not asking for
access through an unsecured backdoor but instead is requesting for the digital equivalent of a
secured fortified ‘front door’ with locks and bars.”

9. Since Ms Hermoine’s petition was sub judice, the Hon‟ble Apex Court was of the view that both
the petitions involved similar set of question of facts and question of laws and therefore clubbed
the petitions for a combined hearing on November 06, 2022. The Hon’ble Court framed the
following issues and directed that unless compelling reasons are shown no further issues shall be
taken up for hearing.

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 ISSUE RAISED

1. WHETHERTHE PETITIONS UNDER ARTICLE 32 MAINTAINABLE?

2. WHETHER THE RELEVANT PROVISIONS MADE UNDER IT RULES AND

TELECOMMUNICATIONS ACT , ULTRA VIRES TO THECONSTITUTION OF INDIA?

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 ANDINFORMATION TECHNOLOGY?

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 ARGUMENTS ADVERSED
1. 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 India. It is further submitted that since there has been
gross violation of Article 21 of the Constitution.

The broad principles that underpin these amended rules are the following :

 The Internet should be Open, Safe & Trusted and Accountable for All Indians
using the internet – our Digital Nagriks.

 That ALL online intermediaries providing services in India shall never

contravene the Indian Constitution, Laws and Rules and follow them in letter
and spirit.

 Unlawful and harmful information violation of their own terms and conditions
shall be quickly removed when reported by users, while also providing the
users a reasonable opportunity to respond in case of significant social media
platforms.

 The IT Rules, 2021 provide for a robust grievance redressal mechanism.

However, there have been many instances that grievance officers of
intermediaries either do not address the grievances satisfactorily and /or
fairly. In such a scenario, the need for appellate forum has been proposed to
protect the rights and interests of user.

“WhereApp’s statement is an attempt to dictate terms to the world’s largest

democracy. Through its actions and deliberate defiance, WhereApp seeks to
undermine India’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 India.”

On the occurrence of any public emergency or in the interest of public safety, the
Central Government or a State Government or any officer specially authorized in
this behalf by the Central Government or a State Government, may, if satisfied that it
is necessary or expedient to do so, in the interest of the sovereignty, integrity or

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 security of India, 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 service or telecommunication
network, shall not be transmitted, or shall be intercepted or detained or disclosed
to the officer mentioned in such order;

b. Direct that communications and class of communications to or from any person

or class of persons, or relating to any particular subject, transmitted or received
by any telecommunication network shall be suspended.

Responding to the statement made by Mr. Harry, the Department of Telecommunications

(“DoT”) states- “Evidence suggests that the use of Darknet and end-to-end encrypted
messaging platforms have become a haven for terrorists. Therefore we need to have strong
measures in place for effective surveillance and tracking of such anti-social elements. The
government is not asking for access through an unsecured backdoor but instead is requesting
for the digitalequivalent of a secured fortified ‘front door’ with locks and bars.

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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 not violative of
right to life including right to privacy guaranteed under Article 21 and right to
speech and expression under Constitution of India.

2. Surveillance on messages and other intimate chats is not 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 India.

And pass any other order or relief that it deems fit in the interest of justice, Equity and good
conscience.

All of which is most humbly and respectfully submitted

District: Mumbai S/d

Date: Defence Lawyer

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