Team Code: INRR 21

INTERNAL NATIONAL RANKING ROUNDS, 2021

Before

THE HON’BLE SUPREME COURT OF EVADOR

IN W.P (C) NO. OF 2021

JABBER INC. AND MR. AURTHOR VINCENT …PETITIONER

V.
UNION OF EVADOR …RESPONDENTS

with

IN W.P (C) NO. OF 2021

AURTHOR VINCENT …PETITIONER

V.
UNION OF INDIA …RESPONDENT

Memorial Submitted to the Registry of the Hon’ble Supreme Court of Evador

MEMORIAL ON BEHALF OF PETITIONER

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS III

INDEX OF AUTHORITIES IV

STATEMENT OF JURISDICTION VII

STATEMENT OF FACTS VIII

ISSUES RAISED IX

SUMMARY OF ARGUMENTS X

ARGUMENTS ADVANCED 1

PRAYER XI

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 LIST OF ABBREVIATIONS

AIR All India Reporter

Art. Article
cl. Clause
Ed. Edition
HC High Court
Id. Idem
Manu Manupatra
No. Number

Ors. Others
PC Privy Council
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
v. Versus

IT Information Technology
Cri.L.J. Criminal Law Journal(India)

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 INDEX OF AUTHORITIES

CASES
1. Facebook Inc vs Union of India on 22 October, 2019, Transfer Petition(s)(Civil) No(s).
1943-1946/2019.
2. In Re: v. Prajwala Letter Dated 18.2.2015 Videos of Sexual Violence and
Recommendations, (2018) 15 SCC 551.
3. Kunal Bahl v. State of Karnataka, 2021(2) KarLJ 254.
4. Amazon Seller Services Pvt. Ltd. v. Amway India Enterprises Pvt. Ltd. and Ors 2020
(81) PTC 399(Del)
5. State of Tamil Nadu and Another v. P Krishnamurthy and Ors, (2006) 4 SCC 517.
6. State of Madras v. VG Row, AIR 1952 SC 196
7. Chintama Rao v. State of Madhya Pradesh, AIR 1951 SC 118
8. Pathumma v. State of Kerala, AIR 1978 SC 771
9. Om Kumar v. Union Of India, AIR 2000 SC 3689
10. Superintendent, District Jail v. Lohia, AIR 1960 SC 633
11. Govind v. State of Madhya Pradesh, AIR 1975 SC 1378
12. B.K. Parthasarathi vs Government of A.P. And Others, 2000 (1) ALD 199
13. Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi, (2012) 13 SCC 61.
14. District Registrar and Collector v Canara Bank, (2005) 1 SCC 496.
15. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
16. People’s Union for Civil liberties v. Union of India, AIR 1991 SC 207
17. Sharda v. Dharmpal, AIR 2003 SC 3450.
18. Kalyan Chandra Sarkar v. Rajesh Ranjan (2005) 2 SCC 42;
19. Madhav Hayawadanrao Hoskot v. State of Maharashtra1979 SCR (1) 192.
20. Kharak Singh v. State of UP, (1994) 3 SCC 569.
21. Maneka Gandhi v. Union of India, (1978) 1 SCC 248;
22. Rameshbhai Chandubhai Rathod v. State of Gujarat (2009) 5 SCC 740.
23. Selvi & Ors v. State of Karnataka & Anr., (2010) 7 SCC 263.
24. Rajeev Suri v. Delhi Development Authority and Ors., 2021 SCC OnLine SC 73
25. P. Ramachandra Rao v. State of Karnataka, AIR 2002 SC 1856.
26. Shayara Bano vs Union of India & Others (2017) 9 SCC 1.
27. Indian Express Newspapers vs Union of India (1985) 1 SCC 641).

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STATUTES
1. The Information Technology Act, 2000.
2. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code)
Rules, 2021.
3. The Information Technology (Procedure and Safeguards for Blocking for Access of
Information by Public) Rules, 2009.
4. The Information Technology (Intermediary Guidelines) Rules, 2011.

CONSTITUTIONAL PROVISIONS

1. Article 14, Constitution of India.

2. Article 19, Constitution of India.
3. Article 21, Constitution of India.

BOOKS
1. Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, 5515 (8 th edn.,
Vol. 4, 2007).
2. M.P Jain, INDIAN CONSTITUTIONAL LAW, 909 (7th edn, 2014)

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 STATEMENT OF JURISDICTION

The Petitioner Jabber Inc., in W.P (C) of 2021 has approached the Supreme Court of
Evador under Art. 32 of the Constitution of Evador.
The Petitioner Mr. Aurthor Vincent, in W.P (C) No of 2021 has approached the
Supreme Court of Evador under Art. 32 of the Constitution of Evador.
The said provision confers powers to the Hon’ble Supreme Court for enforcement of
Fundamental Rights.
“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”

The Respondent has appeared before the Hon’ble Supreme Court of Evador in response
to the Writ Petition filed by the Petitioners maintainable under Article 32 of the
Constitution of Evador.

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 STATEMENT OF FACTS

EVADOR
Evador is the most popular democracy in the world, in the year 2013. It has a population that
is suitable for a large mobile ownership base. The most suitable characteristics of its
population are: mean age of its population and their access to the internet. Evador was ruled
by a conservative party at the Centre. Despite the fact that the Constitution of Evador
provided for Freedom of Speech and Expression to its citizens, there were constant internet
shutdowns and, in some cases, prosecution for posting content online.
JABBER
Jabber is a popular American social media website, owned by Jabber Inc. It was founded by
Mr James Berger in 2009. Jabber’s USP was that it provided all the features of different social
media sites in one place. Jabber made its debut in the year 2013. Evador’s population
characteristics: the mean age of its population; their access to the internet and the fact that it
had the largest ‘mobile phone ownership base’ in the world spurred Jabber to become an
overnight success in the country.
JABBERWOCKY
Jabberwocky became the most popular messaging application in the country surpassing all
other rivals. Its end-to-end encryption policy that ensured maximum privacy to its users was
an added advantage. As of October 2020, Jabberwocky had over 400 million users in Evador,
thus making it the primary means of internet communication there.
MR AURTHOR VINCENT
Mr Aurthor Vincent, the owner of Hustle Media House, had a verified Jabber profile with over
three million followers. He was known for his vlogs and videos vehemently condemning
Government’s inaction during the pandemic. His vlogs reporting from various hospitals about
the scarcity of beds during the pandemic went viral on Jabber. He became an overnight
sensation in all of Evador.
MR JAMES BERGER
Mr James Berger was known to be a liberal and a left-wing sympathiser. Over the years, there
have been many allegations against Jabber that their algorithm promoted liberal content and
suppressed conservative content.
2018 CONTROVERSY

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In the year 2018, Jabber was embroiled in a controversy regarding data leaks and enabling
the spread of fake news. There was even an allegation that the leaked data was used to
manipulate the course of the US elections but it was never proved.
ACTION TAKEN BY JABBER AFTER CONTROVERSY
Following this incident, Jabber employed various technologies to weed out alleged hate
speech content and fake news. This included adding flags and warnings to content that were
unverified or provocative. Jabber also made end-to-end encryption a default mode in its chat
application, thereby
ensuring maximum privacy to its users. This feature ensured that the photos, videos, voice
chats and messages were personal only to the sender and the receiver and even Jabberwocky
would have no access to it.
LANDMARK JUDGMENT BY THE SUPREME COURT OF EVADOR
The Supreme Court of Evador passed a landmark decision on the issue of online speech and
intermediary liability. This judgement was hailed as the beacon of internet freedom in
Evador.
INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES) RULES 2019
In light of various incidents in 2018 and January 2019, the Government of Evador, in
December 2019, Evador, sought to introduce the draft Information Technology (Intermediary
Guidelines) Rules 2019 to replace the Information Technology (Intermediaries Guidelines)
Rules, 2011. The key features of the new draft rules included due diligence to be followed by
intermediaries which involved blocking access to illegal content within 36 hours; provide
identification of the first originator of information; publish a monthly compliance report and
appoint a grievance officer, a Chief Compliance Officer, a Nodal Contact Person, and a
Resident Grievance Officer among other things.
WRIT PETITIONS BEFORE THE HON’BLE SUPREME COURT OF EVADOR
Jabber filed a case before the Supreme Court of Evador claiming that the enforcement of rule
4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code)
Rules, 2021, will infringe into the privacy and freedom of speech of its users. Mr Vincent filed
a writ petition before the Supreme Court of Evador, challenging the excessive power granted
to intermediaries such as Jabber under the Information Technology (Intermediary
Guidelines) Rules 2021. The Supreme Court of Evador combined both the petitions
challenging the Information Technology (Intermediary Guidelines) Rules 2021 and decided
to hear the arguments of the parties.

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 STATEMENT OF ISSUES

ISSUE 1: WHETHER THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES) RULES 2021 IS

BEYOND THE SCOPE OF THE INFORMATION TECHNOLOGY ACT, 2000?

ISSUE 2: WHETHER RULES 3(1)(d) AND 3(1)(j) VIOLATE FREEDOM OF SPEECH AND EXPRESSION
GUARANTEED BY THE CONSTITUTION OF EVADOR?

ISSUE 3: WHETHER RULES 4(2) AND 4(4) ARE VIOLATIVE OF RIGHT TO PRIVACY GUARANTEED UNDER
THE CONSTITUTION OF EVADOR?

ISSUE 4: WHETHER PART III OF THE IMPUGNED RULES VIOLATE ARTICLE 14, 19(1)(a), 19(1)(g) AND
21 OF THE CONSTITUTION OF EVADOR?

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 SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES) RULES 2021 IS

BEYOND THE SCOPE OF THE INFORMATION TECHNOLOGY ACT, 2000?
It is humbly submitted that the Information Technology (Intermediary Guidelines) Rules,
2021 is within the scope of its parent legislation the Information Technology Act, 2000. It is
submitted that the rules were made with a specific purpose in mind, the purpose based on
decisions by the apex court and recommendations from the upper house of the parliament.
Additionally, it is pointed out that the rules merely defined the due diligence to be followed
by intermediaries as required under Section79(3) of the Act.

ISSUE 2: WHETHER RULES 3(1)(d) AND 3(1)(j) VIOLATE FREEDOM OF SPEECH AND EXPRESSION
GUARANTEED BY THE CONSTITUTION OF EVADOR?

It is humbly submitted that Rules 3(1)(d) and 3(1)(j) of the Information Technology
(Intermediary Guidelines) Rules 2021 do not violate the Freedom of Speech and Expression
guaranteed by the Constitution of Evador and therefore are intra vires the Constitution. The
said rules are formed keeping in mind specific interests permitted under Article 19(2).
There exists checks and balances on the actions of the intermediary. There exists a direct
and proximate nexus between the Rules 3(1)(d) and 3(1)(j) and the object that it seeks to
achieve which is to safe guard the interest of the sovereignty and integrity of India; security
of the State; friendly relations with foreign States; public order and decency or morality.
Rules 3(1)(d) is worded in verbatim from Article 19(2) of the Constitution of Evador and
Rule 3(1)(j) merely furthers the intention of Rule 3(1)(d), therefore this is no possibility of
any remoteness from the grounds of Article 19(2).
ISSUE 3: WHETHER RULES 4(2) AND 4(4) ARE VIOLATIVE OF RIGHT TO PRIVACY GUARANTEED UNDER
THE CONSTITUTION OF EVADOR?

It is humbly submitted that Rule 4(2) and 4(4) of the Information Technology
(Intermediary Guidelines) Rules 2021 are violative of the Right to Privacy as guaranteed
under the Constitution of Evador. Article 21 guarantees the right to life and personal liberty
which encompasses the right to privacy. However, the right to privacy is not absolute and is
subject to restrictions on the basis of public interest. It is subject to restriction by the state
to promote the compelling interest of the state. The State may make any law imposing
reasonable restrictions on the exercise of the right to privacy, in the interests of security of
the State, public safety or for the prevention of disorder or crime, or for the protection of
health or morals, or for the protection of the rights and freedoms of others. Furthermore, if
the rights guaranteed under Article 21 can be restricted using the procedure established by
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law. The Information Technology (Intermediary Guidelines) Rules 2021 provide such a
procedure.

ISSUE 4: WHETHER PART III OF THE IMPUGNED RULES VIOLATE ARTICLE 14, 19(1)(a), 19(1)(g) AND
21 OF THE CONSTITUTION OF EVADOR?

It is humbly submitted that in the matter at hand, the IT Rules, 2021 are constitutionally
valid and are not ultra vires the Constitution of Evador. This is argued on three limbs, firstly
that fundamental rights are not absolute. Second, the rules and the enabling legislation are
in accordance with the compelling state interest test laid down in the Puttuswamy
judgement. Lastly, the rules fall within the scope of the Information Technology Act, 2000.

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 ARGUMENTS ADVANCED

I. WHETHER THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES) RULES

2021 IS BEYOND THE SCOPE OF THE INFORMATION TECHNOLOGY ACT, 2000?

¶1 . It is humbly submitted before this honourable court that the Information

Technology (Intermediary Guidelines) Rules, 2021 fall within the scope of the
Information Technology Act, 2000 and are in pursuance of the objectives of the Act.
Section 87 of the Act allows the appropriate authority to issue rules pertaining to
certain subject matter as provided under the said provision. The provision reads as
follows:

“87. Power of the Central Government to make rules. –(1) The Central Government
may, by notification in the Official Gazette and in the Electronic Gazette, make rules to
carry out the provisions of this Act.

A. Appropriate rationale for introduction of rules

¶2. It is humbly submitted that the Information Technology (Intermediary

Guidelines) Rules, 2021 have been introduced in order to mitigate the anti-social
elements of the internet. On various occasions, the threats faced by women and
children have been highlighted.1 The Rajya Sabha with respect to the same raised a
Calling Attention Motion on 26/07/2018 asking the central government to take
appropriate actions and update the laws to make social media platforms more
accountable for such offences online.2

¶3. It is humbly submitted that on another occasion, the Ad Hoc Committee of the
Rajya Sabha in 2020 deliberating over the issue of child pornography on social media
and its impacts. In this report, after consultation with various stakeholders and
experts in the subject matter, the committee called for changes to be made to the
Information Technology (Intermediary Guidelines) Rules, 2011 and suggested the
following: -

1
Press Trust of India, 58 per cent young women face online harassment, abuse: Report, The Indian
Express(October 7, 2020, 9:40pm) https://indianexpress.com/article/lifestyle/life-style/58-per-cent-
young-women-face-online-harassment-abuse-state-of-the-worlds-girls-report-plan-international-6706258/
2
Aarartika Bhaumik, IT Rules 2021 Empower Ordinary Users of Digital Platforms To Seek Redressal: Centre
Tells Madras High Court, LiveLaw(September 4, 2021 11:18am) https://www.livelaw.in/news-updates/it-
rules-2021-digital-platforms-to-seek-redressal-centre-tells-madras-high-court-180902?infinitescroll=1
 “2.2 Permit breaking of end-to-end encryption to trace distributors of child
pornography
The Committee recommends modifying the IT (Intermediary Guidelines) Rules
2011 to include the ability to trace the originator or sender of the message
shared on end-to-end encryption platforms in cases where Child Sexual Abuse
Material(CSAM) that has been shared has come to the attention of law
enforcement agencies.”

¶4. It is humbly submitted that these concerns have been raised not just by the
Rajya Sabha but also by this Honourable Court in previous instances. In the case of
Facebook v. Union of India,3 the court highlighted the issues with respect to harmful
messages/content especially those that incite violence being circulated on various
platforms. In the same case, the Supreme Court pointed out the need for de-encryption
provisions to be introduced in order to track down the first originator of such
messages. The court, while being mindful of the possible infringement on fundamental
rights of the people, said,

“However at the same time, the sovereignty of the State and the dignity and
reputation of an individual are required to be protected. For purposes of
detection, prevention and investigation of certain criminal activities it may be
necessary to obtain such information. De-encryption and revelation of the
identity of the originator of the message may also be needed in certain other
cases.”

¶5. It is humbly submitted that in the case of In Re: v. Prajwala Letter Dated
18.2.2015 Videos Of Sexual Violence And Recommendations ,4 the Supreme Court
instructed the concerned ministries to implement necessary guidelines and Standard
Operating Procedures(SOPs) in order to combat child pornography, rape and gang
rape imageries circulated online.

3
Facebook Inc vs Union Of India on 22 October, 2019, Transfer Petition(s)(Civil) No(s). 1943-1946/2019.
4
In Re: v. Prajwala Letter Dated 18.2.2015 Videos of Sexual Violence and Recommendations, (2018) 15 SCC 551 .
 ¶6. It is humbly submitted that based on previous decisions of the court and the
growing need for regulation in the area owing to technological developments in the
field, these rules are required to be provided. It is submitted that similar to other
forms of media, social media intermediaries also require appropriate legislation to
regulate content that is present online.

B. Defines due diligence for intermediaries.

¶7. The Information Technology Act, 2000 provides for safe harbour to
intermediaries in the form of Section 79 of the Act.5 The act provides a safe harbour to
entities which meet the definition of intermediary, from any liability arising out of
third party actions on their platform. However, in order to avail the exemption under
the said provision, intermediaries are required to adhere to Section 79(2) and
accordingly ensure due diligence in the matter.6

¶8. It is submitted that the Information Technology (Intermediary Guidelines)

Rules, 2021 are in furtherance of obligations under the Information Technology Act,
2000, specifically Rule 9 which lays down the due diligence to be adhered to. In the
case of Amazon Seller Services Pvt. Ltd. v. Amway India Enterprises Pvt. Ltd. and Ors, 7
the Hon’ble Delhi High Court reaffirmed the safe harbour principle and emphasized
that it cannot be availed unless Section 79(2) and 79(3) were also adhered to. 8

¶9. The rules merely define the due diligence which have to be followed by
intermediaries and therefore does not fall outside the ambit of the act. In the case of
State of Tamil Nadu and Another v. P Krishnamurthy and Ors .,9 It was held that any
subordinate legislation that does not conform to the objectives, schemes and
provisions of the enabling Act, is to be considered invalid and ultra vires, however, in
the matter at hand Rule 9 is merely defining the ambitions of section 79(2) of the Act.
Additionally, it is important to note that under the same case, this Hon’ble Court
emphasized that there is a presumption in favour of constitutionality of the
subordinate legislation and the burden to prove otherwise lies on the “attacker.”
5
The Information Technology Act, § 79, No. 21, Acts of Parliament, 2000(IND).
6
Kunal Bahl v. State of Karnataka, 2021(2) KarLJ 254.
7
Amazon Seller Services Pvt. Ltd. v. Amway India Enterprises Pvt. Ltd. and Ors 2020 (81) PTC 399(Del)
8
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, Rule 9, 2021.
9
State of Tamil Nadu and Another v. P Krishnamurthy and Ors, (2006) 4 SCC 517.
 C. Rules are upgrade on Information Technology (Intermediary Guidelines) Rules, 2011

¶10. It is humbly submitted that the latest rules are mere amendments to the
Information Technology (Intermediary Guidelines) Rules, 2011 and are an update to
the rules. Over the years the social media usage has increased and the types of
platforms available are more advanced than merely ten years ago. The 2011
guidelines were considered and examined in the landmark case of Shreya Singhal v.
Union of India,10 where the court upheld the constitutional validity of the rules. The
rules were not considered to be ultra vires the parent legislation. Therefore, by
extension the above guidelines are also intra vires the IT Act.

II. WHETHER RULES 3(1)(d) AND 3(1)(j) VIOLATE FREEDOM OF SPEECH AND

EXPRESSION GUARANTEED BY THE CONSTITUTION OF EVADOR?

¶1. It is humbly submitted that Rules 3(1)(d) and 3(1)(j) of the Information
Technology (Intermediary Guidelines) Rules 2021 do not violate the Freedom of
Speech and Expression guaranteed by the Constitution of Evador and therefore are
intra vires the Constitution. It is humbly submitted that Article 19(1)(a) of the
Constitution of Evador confers upon the citizens of Evador the freedom of speech and
expression. However, this right is not absolute and can be restricted reasonably under
Articles 19(2) to 19(6). In the present matter, it is contended that Rules 3(1)(d) and
3(1)(j) are reasonable restrictions to freedom of speech and expression.
The restriction placed upon the fundamental rights guaranteed under Article 19(1)
have to meet a double test to adjudge them as valid:
(a) Whether it is reasonable; and
(b) Whether it is for a purpose mentioned in the clause under which the restriction
is imposed?11

A. Provisions fit the standard of reasonableness

¶2. It is humbly submitted that it is rather difficult to define what is reasonable and
what is not. The definition of reasonableness if applied in an ad-hoc practice where the

10
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
11
M P JAIN, INDIAN CONSTITUTIONAL LAW 1053 (8th ed. 2019)
 merits and facts of the matter are analyzed to determine reasonableness. The Hon’ble
Supreme Court realized this while declaring the judgment in the case of State of
Madras v. VG Row,12 the court had stated that ‘... no abstract standard or general
patter, of reasonableness can be laid down as applicable to all cases.’ While adjudging
reasonableness of a restriction, the Court consider such factors as: the duration and
the extent of the restrictions; the circumstances under which, and the manner in
which, that imposition has been authorized. The nature of the right infringed, the
underlying purpose of the restrictions imposed, the extent and urgency of the evil
sought to be remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time, all these considerations enter into the judicial verdict. 13

¶3. It is humbly submitted that the Rule 3 focuses upon the due diligence to be
observed by an intermediary including social media intermediary (SMI) and
significant social media intermediary (SSMI) while discharging its duties thereby
providing a clear picture of the functions to be undertaken by the intermediaries.

¶4. It is humbly submitted that in the present matter Rules 3(1)(d) and 3(1)(j) fall
under Article 19(2) of the Constitution of Evador. The said rules are formed keeping in
mind the interest of sovereignty and integrity of Evador; security of the State; friendly
relations with foreign States; public order and decency or morality. The said rules
merely restrict the speech and expressions which are against the aforementioned
criteria. The rules also direct restriction only when a court of competent jurisdiction
or appropriate government issues a notice. Such notices are issued in cases where the
information shared on the intermediary’s platform violate the criteria laid down under
Rules 3(1)(d) and 3(1)(j).

¶5. It is humbly submitted that the said the Respondent does not block any content
under the said rules. The Rules only apply between the intermediary and the user, in
so far that the intermediary shall inform the user not to publish any content which is
specifically prohibited.

12
State of Madras v. VG Row, AIR 1952 SC 196
13
Chintama Rao v. State of Madhya Pradesh, AIR 1951 SC 118
 ¶6. It is humbly submitted that Rule 3(1)(d) only prescribes the blocking of such
content that is violative of any law in force for the time being. The content that is
removed under Rules 3(1)(d) is based on the order of the court of competent
jurisdiction or on being notified by the appropriate government or its agency will pass
an order and notification following the principles of natural justice. This will ensure
that Rule 3(1)(d) affords the opportunity to the person or notified or being heard
before taking down the content and is not violative of the principles of natural justice.
Therefore, there exists checks and balances on the actions of the intermediary.

¶7. The Court should always keep in mind the social setting if the country so as to
show a complete consciousness and deep awareness of the deep awareness of the
deep awareness of the growing requirements of the society, the increasing needs of
the nation, the burning problems of the day and the complex issue facing the people
which the legislature in its wisdom through beneficial legislation seeks to solve. The
judicial approach should be dynamic rather than static, pragmatic and not pedantic,
and elastic rather than rigid. The Hon’ble Supreme Court stated this in the landmark
judgment of Pathumma v. State of Kerala.14 In the present matter the country has
recent entered into the digital ear due to the hard effort of the Digital Evador Moment
which has given internet access to millions of citizens of Evador. Furthermore, the
pandemic has resulted in more citizens of Evador being active on the internet and
using social media which has made it necessary to regulate the content on social
media and other computer resources.

¶8. A restriction should strike a proper balance the proper balance between the
freedom guaranteed by any of the clauses and the social control, so that the freedom is
limited only to the extent necessary to protect society of which a citizen is only a
part.15 Rules 3(1)(d) and 3(1)(j) strikes proper balance between the freedom
guaranteed under Article 19(1)(a) and the restriction provided under Article 19(2) of
the Constitution of Evador. It is necessary for the Respondent to direct intermediaries
to prohibit and take down content which prohibited under any law for the time being
in force in relation to the interest of the sovereignty and integrity of India; security of
the State; friendly relations with foreign States; public order; decency or morality; in

14
Pathumma v. State of Kerala, AIR 1978 SC 771
15
Om Kumar v. Union of India, AIR 2000 SC 3689
 relation to contempt of court; defamation; incitement to an offence relating to the
above, or any information which is prohibited under any law for the time being in
force.16

¶9. It is humbly submitted that there exists a direct and proximate nexus between
the Rules 3(1)(d) and 3(1)(j) and the object that it seeks to achieve which is to safe
guard the interest of the sovereignty and integrity of India; security of the State;
friendly relations with foreign States; public order and decency or morality. A
restriction to be valid must have a rational relation with the grounds for which the
legislature it entitled to impose restrictions. These grounds are laid down in Article
19(2) to (6). Too remote connection between a restriction and the constitutionally
authorized ground for restriction will render the law invalid. 17 Rules 3(1)(d) is
worded in verbatim from Article 19(2) of the Constitution of Evador and Rule 3(1)(j)
merely furthers the intention of Rule 3(1)(d), therefore this is no possibility of any
remoteness from the grounds of Article 19(2).

¶9. It is, therefore, humbly submitted that Rules 3(1)(d) and 3(1)(j) of the
Information Technology (Intermediary Guidelines) Rules 2021 do not violate the
Freedom to Speech and Expression under and are should be declared to be intra vires
the Constitution of Evador.

III. WHETHER RULES 4(2) AND 4(4) ARE VIOLATIVE OF RIGHT TO PRIVACY

GUARANTEED UNDER THE CONSTITUTION OF EVADOR?

¶1. It is humbly submitted that the Rules 4(2) and 4(4) of the Information

16
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, Rule 3(1)(d), Ministry
of Electronics and Information Technology notification, 2021
17
Superintendent, District Jail v. Lohia, AIR 1960 SC 633
Technology (Intermediary Guidelines) Rules 2021 are not violative of right to privacy
as guaranteed under the Constitution of Evador. The said rules state the following:
“4. Additional due diligence to be observed by significant social media
intermediary…
…(2) A significant social media intermediary providing services primarily in the
nature of messaging shall enable the identification of the first originator of the
information on its computer resource as may be required by a judicial order
passed by a court of competent jurisdiction or an order passed under section 69 by
the Competent Authority as per the Information Technology (Procedure and
Safeguards for interception, monitoring and decryption of information) Rules,
2009, which shall be supported with a copy of such information in electronic form:
Provided that an order shall only be passed for the purposes of prevention,
detection, investigation, prosecution or punishment of an offence related to the
sovereignty and integrity of India, the security of the State, friendly relations with
foreign States, or public order, or of incitement to an offence relating to the above
or in relation with rape, sexually explicit material or child sexual abuse material,
punishable with imprisonment for a term of not less than five years:
Provided further that no order shall be passed in cases where other less
intrusive means are effective in identifying the originator of the information:
Provided also that in complying with an order for identification of the first
originator, no significant social media intermediary shall be required to disclose
the contents of any electronic message, any other information related to the first
originator, or any information related to its other users:
Provided also that where the first originator of any information on the
computer resource of an intermediary is located outside the territory of India, the
first originator of that information within the territory of India shall be deemed to
be the first originator of the information for the purpose of this clause…
…(4) A significant social media intermediary shall endeavour to deploy
technology-based measures, including automated tools or other mechanisms to
proactively identify information that depicts any act or simulation in any form
depicting rape, child sexual abuse or conduct, whether explicit or implicit, or any
information which is exactly identical in content to information that has previously
been removed or access to which has been disabled on the computer resource of
such intermediary under clause (d) of sub-rule (1) of rule 3, and shall display a
notice to any user attempting to access such information stating that such
 information has been identified by the intermediary under the categories referred
to in this sub-rule:
Provided that the measures taken by the intermediary under this sub-rule
shall be proportionate having regard to the interests of free speech and
expression, privacy of users on the computer resource of such intermediary,
including interests protected through the appropriate use of technical measures:
Provided further that such intermediary shall implement mechanisms for
appropriate human oversight of measures deployed under this sub-rule, including
a periodic review of any automated tools deployed by such intermediary:
Provided also that the review of automated tools under this sub-rule shall
evaluate the automated tools having regard to the accuracy and fairness of such tools,
the propensity of bias and discrimination in such tools and the impact on privacy and
security of such tools…”

¶2. It is humbly submitted that Article 21 guarantees right to life and personal
liberty which encompasses right to privacy. However, right to privacy is not absolute
and is subject to restrictions on the basis of public interest. 18 It is subject to restriction
by the state to promote compelling interest of the state. 19 The State may make any law
imposing reasonable restrictions on the exercise of the right to privacy, in the
interests of security of the State, public safety or for the prevention of disorder or
crime, or for the protection of health or morals, or for the protection of the rights and
freedoms of others.20

A. The Right to Privacy under Article 21 is subject to reasonable restrictions.

¶3. It is humbly submitted that, it is essential for Government of Evador to impose
reasonable restrictions on the exercise of Right to Privacy of its people, in view of
larger public interest.21
¶4. It is humbly submitted that In District Registrar and Collector v Canara Bank ,22
it was held that the right to privacy is not absolute and there can be reasonable
intrusion or reasonable restrictions if State has reasonable basis or reasonable
materials to support it and any such restriction should be proportionate to the

18
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378
19
B.K. Parthasarathi vs Government Of A.P. And Others, 2000 (1) ALD 199
20
DD Basu: Commentary on the Constitution of India, 9th ed, Vol 5, Art.s 19, pg 247
21
Bihar Public Service Commission v.Saiyed Hussain Abbas Rizwi, (2012) 13 SCC 61.
22
District Registrar and Collector v Canara Bank, (2005) 1 SCC 496.
 purpose sought to be achieved. Seeking reliance on K.S. Puttaswamy case,23
‘Proportionality’ is an essential facet of the guarantee against arbitrary state action
because it ensures that the nature and quality of the encroachment on the right is not
disproportionate to the purpose of the law. This will ensure that the legitimate
concerns of the state are duly safeguarded while, at the same time, protecting privacy
concerns. Prevention and investigation of crime and protection of the revenue are
among the legitimate aims of the state.

¶5. Furthermore, it is humbly submitted that in the case of People’s Union for Civil
Liberties v. Union of India,24 this Hon’ble Court while dealing with the constitutionality
of Section 5 of the Indian Telegraph Act, 1855, a similar provision which pertains to
telephone wiretapping, had held that the executive does not have the authority to
exercise its power unless “public emergency” occurs or the same is in the “interest of
public safety.” This is one such instance where reasonable restrictions can be imposed
with regards to Article 21.

¶6. The Apex Court has held that the right to privacy must be examined on a case-
by-case basis25 and State intrusion can be justified if there is a reasonable basis and
materials to support it.26 Moreover, if there is ever a conflict of fundamental rights, the
right that advances public morality will prevail 27 and the rights of an individual are
always subject to the better rights of society.

A. The right under Article 21 are subject to procedure established by law.

¶7. It is humbly submitted that in arguendo, even if the said act is said to curtail the
right to life and liberty, it is doing so via a procedure established by law. Article 21
guarantees each individual the right to life and personal liberty. However, the same is
subject to any procedure established by law. 28 If a person’s fundamental right under
Article 21 is supposedly infringed upon, the government can justify such an
infringement by relying upon a law.29

23
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
24
People’s Union for Civil liberties v. Union of India, AIR 1991 SC 207.
25
Gobind v. State of MP, AIR 1975 SC 1378.
26
District Registrar and Collector v. Canara Bank Appeal, (2005) 1 SCC 496.
27
Sharda v. Dharmpal, AIR 2003 SC 3450.
28
INDIAN CONST., art. 21; Kalyan Chandra Sarkar v. Rajesh Ranjan (2005) 2 SCC 42; Madhav Hayawadanrao
Hoskot v. State of Maharashtra1979 SCR (1) 192.
29
Kharak Singh v. State of UP, (1994) 3 SCC 569.
 ¶8. It is humbly submitted that as long as the procedure established by law is just,
fair and reasonable, the law made must be held as constitutional. 30 The validity of
governmental action that imposes restrictions on Art. 21 must be tested on the anvil of
substantive due process.31

¶9. It is humbly submitted that because of a mere disagreement of a certain class of

the population with the course of action taken by the government, judicial review
cannot be resorted to by this class, unless it is proven that the procedure established
by law has not been followed.32

¶10. It is humbly submitted that the creation of such a regime requires a careful and
sensitive balance between individual interests and legitimate concerns of the state.
The authority of the government has been circumscribed that if the person whose
liberty is sought to be deprived is a citizen and that liberty happens to be one of the
freedoms enumerated in Art. 19(1), such a law is required to be reasonable within the
parameters stipulated in clauses (2) to (6) of Art. 19. The function of an intermediary
is limited to provide information in interest of the state to secure the right to live of
the public of Evador.

¶11. It is humbly submitted that in light of the arguments stated above, it can be
stated that the said rules are not violative of the Right to Privacy as guaranteed by the
Constitution of Evador. A seven judge Bench of the Supreme Court in P. Ramachandra
Rao v. State of Karnataka33, observed: “Courts can declare the law, they can interpret
the law, they can remove obvious lacunae and fill the gaps, but they cannot entrench
upon in the field of legislation, properly meant for legislature.” It is thus prayed that
this Hon’ble Court does not declare the rules as violative of the Right to Privacy as it
has been enacted in the interest of sovereignty and a law imposing reasonable
restrictions upon right to privacy for compelling interest of State is to be held valid. 34

IV. WHETHER PART III OF THE IMPUGNED RULES VIOLATE ARTICLE 14, 19(1)(a),
19(1)(g) AND 21 OF THE CONSTITUTION OF EVADOR?

30
Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Rameshbhai Chandubhai Rathod v. State of Gujarat (2009) 5
SCC 740.
31
Selvi & Ors v. State of Karnataka & Anr., (2010) 7 SCC 263.
32
Rajeev Suri v. Delhi Development Authority and Ors., 2021 SCC OnLine SC 73
33
P. Ramachandra Rao v. State of Karnataka, AIR 2002 SC 1856.
34
DD Basu: Commentary on the Constitution of India, 9th ed, Vol 5, Art.s 19, pg 289
 ¶1. It is humbly submitted that the Part III Information Technology Rules, 2021
introduced by the government are intra vires the Constitution of Evador and it is not
violative of fundamental rights guaranteed under the Constitution of Evador.

¶2. It is humbly submitted that the Information Technology (Intermediary

Guidelines) Rules, 2021 was created in order to implement the provisions of the IT
Act and to ensure the fulfilment of the objectives of the legislation. The Rules are also
not violative of the Constitutional freedoms granted within Part III of the Indian
Constitution as they would fall under the category of reasonable restrictions under
Article 19 as well as the “procedure established by law” provided under Article 21.

A. Fundamental Rights are not absolute

¶3. It is humbly submitted before this Honorable court that the fundamental rights
provided under the constitution are though enforceable are not absolute. 35 It is to be
noted in the case of Govind v State of Madhya Pradesh,36 where this Hon’ble Court
looked into the case of police surveillance and in its judgement pointed out that Article
21, while integral to the people of the country is not absolute and can be circumvented
through a procedure established by law.

¶4. It is humbly submitted that with respect to Article 19(1)(a) of the Indian
Constitution, Article 19(2) provides for reasonable restrictions on the freedoms
prescribed under sub-section 1.37 In the case of Ramlila Maidan Incident v. Home
Secretary, Union of India emphasized on the non-absoluteness of fundamental rights
with specific reference to Article 19(1) (a) stating,
“The right that springs from Article 19(1)(a) is not absolute and unchecked.
There cannot be any liberty absolute in nature and uncontrolled in operation
so as to confer a right wholly free from any restraint.”

¶5. It can be established that fundamental rights are not absolute and can be
circumvented through a procedure established by law 38 or by placing reasonable
restrictions39 on the rights of a person for reasons of public order, national security or
35
Ramlila Maidan Incident v. Home Secretary, Union of India (2012) 5 SCC 1
36
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378 .
37
Constitution of India, Article 19
38
Constitution of India, Article 21
39
Constitution of India, Article 19(2)
 any other legitimate aim.40

B. Right to privacy & compelling state interest test

¶6. The inherent right to privacy finds its place in the Constitution under Article
21, which guarantees the right to personal life and liberty. 41 Most recently in the
landmark case of Justice K.S Puttuswamy(Retd.) v. Union of India ,42 the nine-judge
bench held that the right to privacy found protection under the right to life and
personal liberty and was a guaranteed right under Part III of the Constitution.
However, it is submitted that the same right is subject to restrictions. 43

¶7. It is submitted that in the Puttaswamy judgement, Justice Chandrachud lays

down the compelling state interest test, where three criterions were laid down for an
invasion of privacy to be considered procedure established by law. 44 The compelling
state interest lays down the following criteria – legality, legitimate aim and
proportionality.45 In addition to this test Justice Kaul in the same case, introduced a
fourth criteria of procedural safeguards which is closer to the EU model of privacy. 46

¶8. It is submitted that the IT Rules, 2021 passes the compelling state interest test
and therefore holds constitutional validity. The first limb requires that a law be in
place, which in the matter at hand is in existence. The Rules are a subordinate
legislation to the IT Act under Section 87. The relevant provisions to the matter at
hand are as follows:

“87. Power of Central Government to make rules – (1) The Central Government
may, by notification in the Official Gazette and in the Electronic Gazette, make
rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the

40
NATIONAL COUNCIL OF EDUCATIONAL RESEARCH AND TRAINING, INDIAN CONSTITUTION AT WORK,
Pg.33(NCERT, 2006)
41
People’s Union for Civil liberties v. Union of India, AIR 1991 SC 207
42
Justice KS Puttuswamy (Retd.) v. Union of India, (2017) 10 SCC 1
43
MP JAIN, INDIAN CONSTITUIONAL LAW, Pg. 1220(8th Ed. 2018)
44
Kanu Agarwal, Legitimate and compelling State Interest: The Test For Aadhar, BAR & BENCH (31 Aug, 2017,
7:04 pm) https://www.barandbench.com/columns/legitimate-state-interest-test-aadhaar
45
Vrinda Bhandari, Amba Kak et al., An Analysis of Puttuswamy: The Supreme Court’s Privacy Verdict, IndraStra
Global, 11, 1-5 https://www.ssoar.info/ssoar/bitstream/handle/document/54766/ssoar-indrastraglobal-2017-
11-bhandari_et_al-An_Analysis_of_Puttaswamy_The.pdf?sequence=1
46
Id.
 foregoing power, such rules may provide for all or any of the following
matters, namely:–
(y) the procedures and safeguards for interception, monitoring or
decryption under sub-section (2) of section 69;
(z) the procedures and safeguards for blocking for access by the public
under sub-section (3) of section 69 A;
(za) the procedure and safeguards for monitoring and collecting traffic
data or information under sub-section (3) of section 69B;”47

¶9. It is humbly submitted that the IT Rules also satisfy the second criteria under
the compelling state interest test, which is the legitimate aim. 48 In essence this
criterion looks at the reasons and objectives behind a law and the need to implement
the said rules. The judgement in Puttuswamy case while referring to legitimate state
interest laid emphasis and borrowed from the European Convention of Human Rights,
specifically Article 8 which recognizes the right to privacy however, provides an
exemption for state interference in the “interests of national security, public safety, for
the prevention of disorder and crime or for the protection of health and morals.” 49 The
IT Act is an umbrella legislation dealing with cyberspace in India and that also
includes regulation of online media. Therefore, it covers wide areas and strives to
protect various interests one of the key aspects and in the light of the same, the IT Act
under Section 69 allows the government to intercept, monitor or decrypt any
information “if satisfied that it is necessary or expedient so to do, in the interest of the
sovereignty or integrity of India, defence of India, security of the State, friendly
relations with foreign States or public order or for preventing incitement.”

¶10. It is humbly submitted that the third limb of the compelling state interest is
whether there exists a less intrusive manner of meeting the legitimate aim. 50 This
Hon’ble Court while examining the Aadhar provisions in the Puttuswamy judgement 51,
had looked at whether there were any considerable alternative ways to achieve the

47
The Information Technology Act, § 87, No. 21, Acts of Parliament, 2000(IND)
48
Id.
49
Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as
amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5
50
SFLC, Legal Challenges o the Tracebility provision: What is happening in India?, SOFTWARE FREEDOM LAW
CENTRE(August 20, 2021, 10:57pm) https://sflc.in/legal-challenges-traceability-provision-what-happening-
india
51
Justice KS Puttuswamy(Retd.) v. Union of India, (2017) 10 SCC 1
 objective the state seeks to achieve.52 Breaking through the end-to-end encryption to
identify originator of a message becomes important in situations such as these as
there exists no other alternative to extract information in order to protect the
legitimate interests.53 Alternative methods have been discussed in such matters and
one such instance was the Ad Hoc Committee of the Rajya Sabha in 2020 deliberating
over the issue of child pornography on social media and its impacts, discussed the
issue of breaking end-to-end encryption however despite of various literature on the
subject matter, they saw no other alternative but to suggest the following change to
the Intermediary Guidelines Rules, 201154:-

“2.2 Permit breaking of end-to-end encryption to trace distributors of child

pornography - The Committee recommends modifying the IT (Intermediary
Guidelines) Rules 2011 to include the ability to trace the originator or sender
of the message shared on end-to-end encryption platforms in cases where
Child Sexual Abuse Material (CSAM) that has been shared has come to the
attention of law enforcement agencies.”

¶11. It is submitted that while the committee’s recommendation is with respect to

child pornography, however, the same reasoning could apply in this situation as both
involve sensitive subject matters. The same suggestion was also included in the Draft
Intermediary Guidelines, 2018, which have now been implemented.

¶12. It is humbly submitted before this Hon’ble Court that in Shayara Bano v. Union
of India,55 this Hon’ble Court had held that laws are “manifestly arbitrary” in violation
of Article 14 of the Constitution when they are “obviously unreasonable”, capricious,
irrational, without adequate determining principle, or excessive and disproportionate.
However, the matter at hand does not find that the Part III of the Rules in question,
manifesting arbitrariness.

52
Gautam Bhatia, The Aadhaar Judgement nd the Constitution – II: On Proportionality, INDIAN CONSTITUIONAL
LAW AND PHILOSOPHY(August 20, 2021, 6:53pm) https://indconlawphil.wordpress.com/2018/09/30/the-
aadhaar-judgment-and-the-constitution-ii-on-proportionality-guest-post/
53
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, Rule 4(2), 2021.
54
Information Technology (Intermediaries Guidelines) Rules, 2011.
55
Shayara Bano v. Union of India AIR 2017 SC 4609.
 PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced and
authorities cited, it is most humbly prayed and implored before the Hon’ble Supreme
Court of Evador that it may be graciously pleased to adjudge and declare that:
 I. The Information Technology (Intermediary Guidelines) Rules, 2021 is intra vires the
Information Technology Act, 2000.
II. Rules 3(1)(d) and Rule 3(1)(j) of the Information Technology (Intermediary
Guidelines) Rules, 2021 do not infringe upon the freedom of speech and expression
guaranteed by the Constitution of Evador.
III. Rules 4(2) and 4(4) of the Information Technology (Intermediary Guidelines) Rules,
2021, do not violate of the Right to Privacy enshrined under Article 21 of the Indian
Constitution.
IV. Part III of the Information Technology (Intermediary Guidelines) Rules, 2021 are not
violative of Article 14, Article 19(1)(a), Article 19(1)(g) and Article 21 of the Indian
Constitution.

Also, pass any other order that it may deem fit in the favour of the RESPONDENT in the
light of equity, justice and good conscience.

For this act of Kindness, the RESPONDENT shall be duty bound forever pray.

Place: Evador sd /-
Dated: 30th October, 2021 Counsel for Respondent