Name: Poonam Bansal

Roll No. 33008

College- Nalanda Law College

BEFORE THE HON’ABLE

SUPREME COURT OF BHARAT

IN THE MATTER OF

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

VS.

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

MEMORANDUM ON BEHALF OF THE PETITIONER

1
 TABLE OF CONTENTS [INDEX]

1. INDEX OF AUTHORITIES

2. STATEMENT OF JURISDICTION

3. STATEMENT OF FACTS

4. ISSUES RAISED

5. ARGUMENTS ADVERSED-:

6. PRAYER

2
 INDEX OF AUTHORITIES

RELEVANT CASES :

1. Justice K.S. Puttaswamy and Ors. v. Union of India(UOI) and Ors. Citation
MANU/SC/1044/20172.

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

3
 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.

4
 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
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;

5
 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.

6
 ISSUE RAISED

1. WHETHERTHE PETITIONS UNDER ARTICLE 32 MAINTAINABLE?

2. WHETHER THE RELEVANT PROVISIONS MADE UNDER IT RULESAND

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?

7
 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, also no other efficacious remedy is
available to petitioner.

2. Whether IT Rules and Telecommunications Act, ultra vires to the

Constitution of India?

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 ofadult years and sound mind
has a right to determine what shall be done with hisown messages and social media
presence.

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 mutilation 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.”

8
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 constitution can be changed except the basic structure
of the constitution which also counts fundamental right.

9
 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 India.

2. Surveillance on messages and other intimate chats is violative of the right to speech
and expression including right to remain silent under Article19(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: Petitioner

10