T12P

INSTITUTE OF LAW, NIRMA UNIVERSITY
INTRA MURALS- EVEN SEMESTER (2023-2024)
TEAM CODE: T12P

BEFORE THE HON’BLE SUPREME COURT OF RAVIS

UNDER ARTICLE 32 OF THE CONSTITUTION OF RAVIS
In The Matter Of -
HOWSAPP I N C . V. REPUBLIC OF RAVIS

(Petitioner) (Respondent)
I. WP NO. /2023
CLUBBED WITH
QUITER INC. V. REPUBLIC OF RAVIS

II. WP NO. /2023
CLUBBED WITH
DOMINIAN V. REPUBLIC OF RAVIS

III.WP NO. /2023
MEMORANDUM ON BEHALF OF THE PETITIONERS
MEMORIAL for CLAIMANT TABLE OF

CONTENTS
TABLE OF CONTENTS
TABLE OF CONTENTS.............................................................................................................1
TABLE OF ABBREVIATIONS....................................................................................................3
INDEX OF AUTHORITIES.........................................................................................................4
STATEMENT OF JURISDICTION..............................................................................................7
STATEMENT OF FACTS...........................................................................................................8
ISSUES RAISED......................................................................................................................10
SUMMARY OF ARGUMENTS..................................................................................................11
ARGUMENT ADVANCED........................................................................................................13
I. THE HON’BLE SUPREME COURT OF REPUBLIC OF RAVIS HAS JURISDICTION TO

HEAR THE PRESENT PETITION....................................................................................13
[ A ] The instant writ petition made by howsapp and quitter is admissible for
adjudication under Article 32...........................................................................................13
[ B ] Whether writ petition filed by the dominian challenging the order of the learned
additional sessions judge (ld. Asj) is maintainable...........................................................14
II. WHETHER THE IT RULES, 2021 ARE UNCONSTITUTIONAL AND ULTRAVIRES?.......15

[ A] The it rules are violative of article 19....................................................................15
[ B ] The it rules infringe on the right to privacy guaranteed under article 21..............16
[ C ] The it rules are ultra vires to the parent statute......................................................18
III. WHETHER THE PETITIONER, AS AN INTERMEDIARY UNDER SECTION 2 (1)(W) OF

THE IT ACT, CAN BE HELD LIABLE FOR FACILITATING THE PURCHASE OF A KNIFE
THAT RESULTED IN A CRIMINAL OFFENCE BY MANKAD...........................................19
[ A ] The petitioner awails protection under section 79(1) of the it act.........................19
[ B ] The petitioner qualifies to be an intermediary under the fdi guidelines................20
Page 1 of 24 MEMORIAL for PETITIONERS

[ C ] The petitioners have no reason to believe that involvement in such sale is

unlawful............................................................................................................................21
PRAYER..............................................................................................................................22

TABLE OF ABBREVIATIONS
¶ Paragraph
§ Section
Art. Article
FDI Foreign Direct Investment
Inc. Incorporation
IT Act The Information Technology Act, 2000
IT Rules Information Technology (Intermediary Guidelines and Digital

Media Ethics Code) Rules, 2021
Ld. ASJ Learned Additional Sessions Judge
Ltd. Limited
MeitY Ministry of Electronic and Information Technology, Government

of Republic of Ravis
u/s Under section
v. versus
W.P. No. Writ Petition Number

INDEX OF AUTHORITIES
CASES
Amazon Seller Services Pvt. Ltd. v. Amway India Enterprises Pvt. Ltd. and Ors 2020 (81)
PTC 399 (Del)..........................................................................................................................19
Anuradha Bhasin v. Union of India (2020) 3 SCC 637...........................................................18
Anvish Bajaj v. State (2008) 105 DRJ 721..............................................................................21
Bishan Das and Others v. State of Punjab AIR 1961 SC 1570................................................16
Central Public Information Officer, Supreme Court v. Subhash Chandra Agrawal, (2020) 5
SCC 481,..................................................................................................................................16
Employees State Insurance Corporation v. Mangalam Publications (India) Pvt. AIR 2017 SC
4525..........................................................................................................................................18
Flipkart Internet Private Ltd. vs State Of Nct Of Delhi & Anr . 2018 SCC OnLine Del
14406........................................................................................................................................19
Gobind v. State of M.P., (1975) 2 SCC 148............................................................................17
Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1.........................................17
K.S. Puttaswamy (Aadhar-5J.) v. Union of India, (2015) 10 SCC 92.....................................16
K.S. Puttaswamy (Aadhar-5J.) v. Union of India, (2015) 10 SCC 92, ¶ 325..........................16
Kent RO Ltd & Anr. Vs. Amit Kotak & Ors, 2017 (69) PTC 551 (Del).................................21
Kunj Behari Lal Butail v. State of H.P., (2000) 3 SCC 40......................................................18
M.S. Grewal v. Deep Chand Sood (2001)...............................................................................21
MySpace Inc v Super Cassettes Industries Ltd 2016 SCC OnLine Del 6382: (2017) 69 PTC
..................................................................................................................................................20
Naraindas Indurkhya v. State of M.P., (1974) 4 SCC 788.......................................................15

R. Rajagopal v. State of T.N., (1994) 6 SCC 632....................................................................15
Ram Jethmalani v. Union of India, (2011) 8 SCC 1................................................................17
Shreya Singhal v. Union of India, (2015) 5 SCC 1..................................................................15
State of Haryana v. Subhash Chand (2003) (2003) 11 SCC 326.............................................16
State of Maharashtra v. Abdul Hamid Haji Mohammed.........................................................14
State of Punjab v. Manohar Lal (1965) AIR 1965 SC 1107....................................................21
Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110.....................................................13
THE INFORMATION ACT, 2000
The Information Technology Act 2000, s 2………………………………………….. 19
The Information Technology Act 2000, s 79………………………………………… 11
The Information Technology Act 2000, s 79(2)(c)………………………………… 19
The Information Technology Act 2000, s 79(3)(a)…………………………………... 20
THE CONSTITUTION OF INDIA
INDIA CONST. art. 226..........................................................................................................13
INDIA CONST. art. 32............................................................................................................13
INDIA CONST. art. 19............................................................................................................15
ARTICLES
Anjali Singh, Safe Harbour Protection: A Blanket Immunity to the E-Commerce

Intermediary, 5 INDIAN J.L. & LEGAL RSCH. 1 (2023)......................................................20

Guidelines for Foreign Direct Investment (FDI) on E-Commerce, Press Note No. 3 (2016
Series), dated 9 March 2016....................................................................................................20
Mukul Sharma, Ishita Khandelwal, Sanchit Garg & Astha Tambi, Safe Harbour
Protection for E-Commerce.....................................................................................................20
Review of the Policy on Foreign Direct Investment (FDI) in e-commerce, Press Note No.
2 (2018 Series), dated 26 December 2018 (FDI Guidelines - 2018 Series).............................20
Vasundhara Majithia, The Changing Landscape of Intermediary Liability for E-Commerce

Platforms: Emergence of a New Regime, 15 INDIAN J. L. & TECH. 470 (2019..................21

STATEMENT OF JURISDICTION
The petitioner humbly submits this memorandum before the Hon’ble Supreme Court of Ravis
under article 32 read with article 142 of the constitution of republic of ravis.

STATEMENT OF FACTS
BACKGROUND
The Republic of Ravis, a sovereign nation in South Asia, emerged from British colonial rule
in 1947 alongside the creation of the Republic of Freman. It is a diverse nation with a rich
cultural, linguistic, and ethnic tapestry, comprising of 80% Hindus, 15% Muslims, and 5%
other minority groups. Recent census data reveals that Republic of Ravis is home to
approximately 30.4 million Dinkoists, representing 2.7% of the population. The majority of
Dinkoists, around 20 million, reside in the northern state of Kaziranga, constituting 60% of
the state's population. Post-independence, a movement advocating for an independent
autonomous Dinkoist State emerged but eventually waned. However, the movement regained
momentum recently, particularly amongst the Dinkoist diaspora in Republic of Caladan,
home to the largest national Dinkoist population (2.1%). The resurgence of the movement for
an independent Dinkoist State has led to heightened tensions between Republic of Ravis and
Republic of Caladan. Instances of hate crimes targeting people of Ravisian descent in
Republic of Caladan have been reported, including the tragic deaths of Ravisian students.
Quiter Inc. and HowsApp Inc. are prominent social media intermediaries operating in
Republic of Ravis. Quiter boasts over 200 million active users across the country, facilitating
public discourse and conversation. HowsApp, with over 400 million users in Republic of
Ravis, offers end-to-end encrypted messaging and calling services, prioritizing user privacy
and security. Recently amidst the rising tensions the Government of Republic of Ravis
alleges that certain social media accounts on Quiter and HowsApp are spreading anti-
Republic of Ravis propaganda, provocative content, and misinformation. These accounts,
believed to be operated from territories backed by Republic of Caladan, pose a threat to
public order and sovereignty.
In 2020 the Government of Republic of Ravis in response to the misuse of social media
platforms, issued an Office Memorandum-I under Section 69A the IT Act which directed
Quiter to permanently remove accounts spreading anti-Republic of Ravis propaganda. The
same year the Government of Republic of Ravis also issued an Office Memorandum-II on
similar lines under section 69A IT Act to HowsApp to break its encryption and reveal the
identities of individuals spreading secessionist ideas.

Subsequently, in and around May 2021, the Ministry of Electronics and Information
Technology, Republic of Ravis, introduced the Information Technology (Intermediary
Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021). These rules
mandated social media intermediaries to remove objectionable content and enable the
identification of the first originator of information. However, the introduction of IT Rules
2021 was met with resistance from social media intermediaries and in April 2023, HowsApp
filed a writ petition under article 226 of Constitution of Republic of Ravis challenging the
validity of the IT Rules 2021 on the grounds that it violates the fundamental right to privacy
and freedom of speech and expression guaranteed under Articles 19 by enabling the
identification of the first originator of the information in Republic of Ravis and Article 21 of
the Constitution of Republic of Ravis of more than 400 million HowsApp users in Ravis and
is also ultra vires, the IT Act.
In May 2023, Quiter also challenged the vires of IT Rules 2021 along with Office
Memorandum-I on the ground that it gives the government the power to demand takedowns
of any content deemed objectionable and dilutes Quiter’s identity of being a platform that
welcomes all manner of political debate.
Both these petitions were dismissed by the High court of Kemp without a speaking order and
thus, Quiter and HowsApp independently moved a writ petition under Article 32 of the
Constitution of Republic of Ravis challenging the vires of IT Rules 2021 on same grounds as
before High Court.
Meanwhile in April 2023 in a separate legal proceeding, e-commerce platform Dominian
found itself unfairly targeted in a trial related to an offense under the Ravisian Penal Code,
1860, and Arms Act, 1959. On April 5, 2023, the accused allegedly used a knife purchased
from Dominian to cause injuries. After finishing the investigation, the Police filed the
chargesheet designating Mankad as an accused party while the trial was still in progress;
Dominian was not named as an accused party. Through the Order, the Ld. ASJ gave police
instructions to look into Dominian's involvement in the crime and add its name to the
chargesheet. However, Dominian contests this order, asserting its exemption from liability
under Section 79(2)(c) of the IT Act as an intermediary.
Given the interconnected nature of these legal issues and the far-reaching implications for
fundamental rights and democratic values, the Supreme Court of Ravis has rightfully
consolidated the writ petitions challenging the validity of IT Rules 2021 with Dominian's
petition.

ISSUES RAISED
I. WHETHER THE HON’BLE SUPREME COURT OF REPUBLIC OF RAVIS HAS
JURISDICTION TO HEAR THE PRESENT PETITION.
II. WHETHER THE IT RULES, 2021 ARE UNCONSTITUTIONAL AND ULTRA VIRES?
III. WHETHER THE PETITIONER, AS AN INTERMEDIARY UNDER SECTION 2 (1)(W) OF
THE IT ACT, CAN BE HELD LIABLE FOR FACILITATING THE PURCHASE OF A KNIFE
THAT RESULTED IN A CRIMINAL OFFENCE BY MANKAD.

SUMMARY OF ARGUMENTS
I. THE THE HON’BLE SUPREME COURT OF REPUBLIC OF RAVIS HAS

JURISDICTION TO HEAR THE PRESENT PETITION
The Hon'ble Supreme Court of the Republic of Ravis has jurisdiction to hear the
present petitions. Firstly, the writ petition filed by HowsApp and Quiter under Article
32 is maintainable despite previous dismissal under Article 226. The dismissal under
Article 226 was not based on merits and was without a speaking order. Secondly, the
writ petition by Dominian challenging the order of the Ld. ASJ remains maintainable,
as the judge exceeded jurisdiction by unilaterally appending names to the chargesheet
without proper investigation or prosecution request, contrary to established legal
principles in relevant case laws. These petitions highlight the necessity for the
Supreme Court's intervention to ensure justice and uphold constitutional rights in
Republic of Ravis.
II. THE IT RULES, 2021 ARE UNCONSTITUTIONAL AND ULTRAVIRES THE

PARENT STATUTE
The Information Technology (Intermediary Guidelines and Digital Media Ethics

Code) Rules 2021 (IT Rules 2021) face constitutional and statutory challenges before
the Hon’ble Supreme Court of Republic of Ravis. The submissions made by the
petitioners contend that the IT Rules violate fundamental rights enshrined in the
Constitution, specifically Articles 14, 19, and 21. And the IT Rules are ultra vires to
the parent statute, the Information Technology Act (IT Act) as they exceed the
statutory authority granted under Sections 69A and 79, and contravene the Act's
objective of promoting uniformity of law. These contentions collectively challenge
the constitutionality and legality of the IT Rules, seeking their invalidation by the
Hon’ble Supreme Court.
III. THE PETITIONER, AS AN INTERMEDIARY UNDER SECTION 2 (1)(W) OF

THE IT ACT, CANNOT BE HELD LIABLE FOR FACILITATING THE
PURCHASE OF A KNIFE.

It is respectfully submitted that the petitioner, Dominian, seeks exemption from

criminal liability under Section 2(1)(w) of the Information Technology Act (IT Act)
concerning the purchase of a knife resulting in a criminal offense. The petitioner
asserts protection under Section 79(1) of the IT Act, invoking safe harbor principles
and demonstrating compliance with Sections 79(2) and 79(3). Arguing its
classification as a marketplace model aligned with Foreign Direct Investment (FDI)
Guidelines, Dominian contends that it merely facilitates transactions, devoid of
involvement in conspiratorial or unlawful activities, thereby qualifying for statutory
protection. Additionally, the petitioner underscores the impracticality of subjecting
products to constant scrutiny, emphasizing the absence of government restrictions on
knives. It further stresses its obligation to act solely in response to court orders or
government notifications, maintaining that lacking specific knowledge, it should not
be criminally liable for facilitating the sale without reason to believe in the purchaser's
intent.

ARGUMENT ADVANCED
I. THE HON’BLE SUPREME COURT OF REPUBLIC OF RAVIS HAS JURISDICTION TO

HEAR THE PRESENT PETITION
[¶1] It is humbly submitted before the Hon’ble Supreme Court of Republic of

Ravis that the present writ petition challenging the vires of the Information
Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021
(hereinafter referred to as “IT Rules”) under Article 321 of the Constitution of
Republic of Ravis and the writ petition filed by Dominian are both maintainable
before the Hon’ble Supreme Court. The premise of the issue is two-fold: [A] the
instant writ petition made by Howsapp and Quiter is maintainable before this Hon’ble
Supreme Court; and [B] the writ petition made by Dominian challenging the order of
the Ld. Additional Session Judge is maintainable.
THE INSTANT WRIT PETITION MADE BY HOWSAPP AND QUITTER IS ADMISSIBLE FOR
ADJUDICATION UNDER ARTICLE 32
[¶2] It is submitted that both Howsapp and Quitter had previously filed under
Article 2262 of the Constitution of the Republic of Ravis challenging the vires of IT
Rules.3 The same was dismissed without a speaking order and thus aggrieved by such
a dismissal the two intermediaries moved to the Supreme Court under Article 32. 4 In
the case of Tilokchand Motichand v. H.B. Munshi5it has been held that the Supreme
Court in a case which has been dismissed without a speaking order in a suitable case
entertains the application before itself. 6 The judgement states how there is no short
period of limitation prescribed for Fundamental Rights lest they be frustrated and how
in a suitable case the Supreme Court may entertain a petition after a lapse of time.
[¶3] In the case of Daryao v. State of U.P. 7 it has been held that, “when a petition
1
INDIA CONST., Art. 32.
2
INDIA CONST., Art. 226
3
Moot Proposition, ¶ 16.
4
INDIA CONST. art. 32.
5
Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110.
6
Ibid.
7
Daryao v. State of U.P. 1961 AIR 1457.

under, Article 226 is dismissed not on the merits but because of laches on the party
applying for the writ or because an alternative remedy is available to him, such
dismissal is no bar to the subsequent petition under Article 32 except in cases where
the facts found by, we High Court might themselves be relevant under Article 32.”
[¶4] It is submitted that the petition has been filed in 2023 owing to two major
factors, firstly as per the circular of the Supreme Court dated 20 th April 2021, only
matters of urgency were being taking up owing to the global pandemic of COVID-
19.8 The circular explicitly listed Fresh matters as those that shall not be treated as
matters of urgency. Quitter and HowsApp being leading pioneers of the digital world
were going through the IT Rules, 2021 with a fine-tooth comb before raising these
heavy contentions while also going through the updated versions which came out in
both 20229 as well as 202310 before finally submitting the same before the Hon’ble
Court
[¶5] The Writ Petition is thus maintainable under Article 32 11 of the Constitution of
Republic of Ravis before the Hon’ble Supreme Court.
THE WRIT PETITION FILED BY THE DOMINIAN CHALLENGING THE ORDER OF THE
LEARNED ADDITIONAL SESSIONS JUDGE (LD. ASJ) IS MAINTAINABLE.

[¶6] It is humbly submitted that the Ld. ASJ. lacks the authority to unilaterally
append person’s name to a chargesheet during the course of the trial in the absence of
any investigation or formal request from any party in State of Maharashtra v. Abdul
Hamid Haji Mohammed, the court primarily addresses the power to mandate the
submission of a supplementary chargesheet based on “newly discovered evidence”,
emphasizing the court's authority to ensure the comprehensive inclusion of pertinent
facts and parties in the chargesheet to facilitate a just trial.12
[¶7] The writ remains justifiable, notwithstanding its filing against the order of the
Learned Additional Sessions Judge, as the latter has exceeded his jurisdiction. The
judge has directed an amendment to the chargesheet devoid of any solicitation from
the prosecution based on "new evidence" or information, and lacking proper
8
Supreme Court of India, F. No. /Judl.(I)/2021 (issued on 20th April, 2021).
9
Notification dated 28 October 2022, https://www.meity.gov.in/content/notification-dated-28th-october-2022-
gsr-794e-information-technology-intermediary-guidelines (last visited February 1, 2024).
10
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023,
Acts of Parliament, 2023.
11
12
State of Maharashtra v. Abdul Hamid Haji Mohammed, 1994 SCC (2) 664.

13
investigation or prosecution request. The writ petition under Article 32 is thus
maintainable due to the Judge's exercise of authority beyond the confines of his
jurisdiction.
II. THE IT RULES, 2021 ARE UNCONSTITUTIONAL AND ULTRAVIRES

[¶8] It is humbly submitted before the Hon’ble Supreme Court of Republic of
Ravis that the IT Rules are in violation of the Fundamental Rights enshrined in Part-
III of the Constitution of Ravis and are promulgated lacking legislative competency.
The premise of the present issue is four-fold: [A] The IT Rules are violative of Article
19 of the Constitution; [B] The IT Rules infringe the Right to Privacy guaranteed
under Article 21 of the Constitution, and [C] the IT Rules are ultra-vires to the parent
statute.
THE IT RULES ARE VIOLATIVE OF ARTICLE 19

[¶9] It is submitted before the Hon’ble Supreme Court that this court has long
recognized the freedom of speech and expression as a fundamental right guaranteed
under Article 19(1)(a)14 of the Constitution. Such a fundamental right entails
“freedom not only for the thought that we cherish but also for the thought that we
15
hate.” In the case of Shreya Singhal v. UOI,16 Section 66A of the IT Act was
struck down for it using “vague, undefined terms which were not covered under the
grounds of reasonable restrictions given under Article 19(2)”.
[ ¶ 10 ] The various rules direct social media intermediaries to remove any news/texts
related to the “business of the Government of Republic of Ravis that was deemed” as
“provocative”, “false”, or “misleading” as deemed so “by a fact-checking unit
17
established by the Government of Republic of Ravis”. Most of these terms are not
legal standards but merely subjective markers of individual sensitivities. The same
sense of freedom granted under this article loses all meaning when the government
enables the identification of the first originator of information in Republic of Ravis.
[ ¶ 11 ] The Hon’ble Supreme Court has held that a law is said to violate the
fundamental right of speech and expression if it chills lawful speech. 18 End-to-
13
14
15
Naraindas Indurkhya v. State of M.P., (1974) 4 SCC 788.
16
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
17
18
R. Rajagopal v. State of T.N., (1994) 6 SCC 632.

encryption provides the users with a safe space allowing them to communicate at
liberty, enabling the identification of the first originator of information in Republic of
Ravis on HowsApp breaks end-to-end encryption and restricts this freedom.
Individuals will not feel safe to speak freely as they shall now fear that private
interactions will be used against them and this defeats the intent of the creation of
such a Fundamental Right.
[ ¶ 12 ] Lastly, there has been no express valid law passed by the Parliament
authorizing this infringement upon the fundamental right of speech and expression. In
Bishan Das and Others v. State of Punjab,19 it has been held that any infringement
on a fundamental right must be backed by law. Accordingly, IT Rules, 2021 should be
struck down owing to their unconstitutional violation of the fundamental right to
freedom of speech and expression.
THE IT RULES INFRINGE ON THE RIGHT TO PRIVACY GUARANTEED UNDER ARTICLE 21

[ ¶ 13 ] In the landmark case of K.S. Puttaswamy v. Union of India,20 the Hon’ble
Supreme Court held that the right to privacy is a fundamental right guaranteed under
Article 21 of the Constitution.21 In more recent times the Hon’ble Supreme Court in
the case of Central Public Information Officer, Supreme Court v. Subhash
Chandra Agrawal22 affirmed that the right to privacy includes the right to anonymity
and held that, “Privacy and confidentiality encompass a bundle of rights including
the right to protect identity and anonymity.”
[ ¶ 14 ] As per the test given in Puttaswamy to justify an intrusion into the
fundamental right of privacy, there are three requirements that must be satisfied: “(i)
legality, (ii) need; and (iii) proportionality”23
[ ¶ 15 ] Under the IT Rules, 2021 the state has directed that it can issue order for
identification of first originator of information. Such a requirement forces
Intermediaries to break end-to-end encryption on its messaging service and the
privacy principles underlying it. Thus, infringing the fundamental right to privacy and
is severe invasion of privacy.
[ ¶ 16 ] It is submitted that there has been no express valid law passed by the
19
Bishan Das and Others v. State of Punjab AIR 1961 SC 1570.
20
K.S. Puttaswamy (Aadhar-5J.) v. Union of India, (2015) 10 SCC 92.
21
22
Central Public Information Officer, Supreme Court v. Subhash Chandra Agrawal, (2020) 5 SCC 481.
23

Parliament requiring an intermediary to enable the identification of the first originator

of information. The IT Rules impose such a requirement but it is not a valid law as it
is subordinate legislation that has not been passed by the Parliament but by a
Ministry, it is ultra vires to the parent statute i.e., Section 79.24
[ ¶ 17 ] Section 79 exempts intermediaries from liability for the content of third-
parties and states that “due diligence” must be observed so as to continue enjoying
such an immunity. It is above and beyond the scope of Section 79 to enable the
Respondent to impose such a requirement that calls for the identification of the first
originator of information. For such directions to be followed there must be clear
allowance for the same under section 79.
[ ¶ 18 ] It is submitted that the IT Rules do not satisfy the “necessity” requirement as
it is bereft of any “guarantee against arbitrary State action”. Article 14 ensures that
the imposed restriction is of reasonable nature, which acts as a safeguard against
arbitrariness and as discussed in the previous premise, these rules are arbitrary and do
provide the adequate safeguards to protect the fundamental right to privacy.
[ ¶ 19 ] The privacy of each registered user of HowsApp and Quitter is at risk when
such a direction is followed. This will cause people to open up their private lives to
the public. In permitting such a tracing, it would allow tracing every single
communication, including lawful users of these intermediaries and this is in
contravention to the Hon’ble Supreme Court’s precedent that surveillance must be
limited only to those “persons, whether or not previously convicted, whose conduct
25
shows a determination to lead a life of crime”. Thus, is violative of the law laid
down in the supra judgement and goes against the principles of legality, necessity, and
proportionality.26
[ ¶ 20 ] Thus, compelling the Petitioners to follow such directs would result in
invading a law-abiding individual’s privacy so as to investigate another person’s
wrongful conduct. This was highlighted in the case of Ram Jethmalani v. Union of
India27 where it was held that, “fundamental rights cannot be sacrificed on the anvil
of fervid desire to find instantaneous solutions to systemic problems”.
[ ¶ 21 ] In light of all the above submissions, it is henceforth submitted that, the IT
Rules are violate the Right to Privacy guaranteed under of Article 21 of the
24
Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1.
25
Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148.
26
27
Ram Jethmalani v. Union of India, (2011) 8 SCC 1.

Constitution and thus, it must be declared unconstitutional.
THE IT RULES ARE ULTRA VIRES TO THE PARENT STATUTE

[ ¶ 22 ] It is humbly submitted before the Hon’ble Court that the IT Act states that it
was enacted in order to promote “uniformity of the law” with other countries of the
world. There is no country however that forces intermediaries to change their modus
operandi in order to enable the identification of the first originator of information by
breaking end-to-end encryption. Thereby such a requirement is in contravention to the
intention with which the IT Act has been created and enforced.
[ ¶ 23 ] It is also ultra vires to Section 69A and 79 of the parent statute, the same
28
principle has been explained in the case of Kunj Behari Lal Butail v. State of H.P.
which held that, “It is a well-recognised principle of interpretation of a statute that
conferment of rule-making power by an Act does not enable the rule-making authority
to make a rule which travels beyond the scope of the enabling Act or which is
inconsistent therewith or repugnant thereto.”
[ ¶ 24 ] Section 69A of the IT Act empowers the Central Government to direct an
intermediary to simply block access to content on it platform and further it also
provides for procedures and safeguards for such a blocking. In the case of Anuradha
Bhasin v. Union of India29 it has been held that, “The aim of the section is not to
restrict/block the internet as a whole, but only to block access to particular websites
on the internet”. Thus, the IT Rules are doing none of the above-mentioned functions
and thus exceed the scope of Section 69A.
[ ¶ 25 ] It is also beyond the rule-making authority under Section 69A of the IT Act to
issue an office memorandum directing removal of all accounts which are making
“false, intimidatory and provocative tweets.”30 Such an Office Memorandum is in
contravention of the statutory rules and the same has been established in the case of
School Managing Committee of Amaramunda Govt. Primary School v. State of
Odisha which held that, “ instructions can be issued only to supplement the statutory
rules but not to supplant it. Such instructions should be subservient to the statutory
provisions.”31 Thus, the effect of the IT Act enacted by the Parliament cannot be
28
Kunj Behari Lal Butail v. State of H.P., (2000) 3 SCC 40.
29
Anuradha Bhasin v. Union of India (2020) 3 SCC 637.
30
31
School Managing Comm. Amaramunda Gov’t Primary Sch. v. State of Odisha, 2021 SCC OnLine Ori 474.

circumvented by the department office memorandum.32

III.THE PETITIONER, AS AN INTERMEDIARY UNDER SECTION 2 (1)(W) OF
THE IT ACT, CANNOT BE HELD CRIMINALY LIABLE FOR
FACILITATING THE PURCHASE
[ ¶ 26 ] It is most respectfully submitted before this Hon’ble court that the Petitioners
are not criminally liable while they are exempted from any liability under
Section79(2)(c) of the Information Technology Act,2000 (hereinafter referred to as
“IT Act”). For sake of convenience and brevity of this Hon’ble Court the argument is
based on three premises viz. Firstly the petitioners are protected by the safe harbor
principle; Secondly, the petitioner qualifies to be an intermediary to avail the
protection; Thirdly, the petitioners believe their product sales are lawful, citing no
government restrictions.
THE PETITIONER AVAILS PROTECTION UNDER SECTION 79(1) OF THE IT ACT.

[ ¶ 27 ] Information Technology Act, 2000 specifically u/s 7933, elucidates the legal
34
posture of Dominian as an intermediary. Pursuant u/s 2(1)(w) of the IT Act,
Dominian qualifies as an "intermediary,". Firstly, Section 79(1) of the IT Act
furnishes a safeguard to intermediaries against liabilities through the Sage Harbour
Protection35, subject to the fulfilment of conditions delineated under Sections 79(2)
36
and 79(3) of the IT Act. This was laid out in Amazon Seller Services Pvt. Ltd. v.
Amway India Enterprises Pvt. Ltd. And Ors 37("Amazon Case") .
[ ¶ 28 ] Secondly, under Section 79(2), an intermediary is absolved of liability
concerning third-party information if its function is confined to only providing access,
and the transmission is not initiated, selected, or modified by the intermediary. 38It is
clear that Dominian, solely facilitated access to information and did not instigate any
alterations or initiations in the transmission process. Consequently, the provisions of
Section 79(2) fortify Dominian's claim for exemption from liability.
32
Employees State Insurance Corporation v. Mangalam Publications (India) Pvt. AIR 2017 SC 4525.
33
The Information Technology Act 2000, § 79, No. 21, Acts of Parliament, 2000 (India)
34
The Information Technology Act 2000, § 2, No. 21, Acts of Parliament, 2000 (India)
35
Flipkart Internet Private Ltd. vs State of Nct Of Delhi & Anr. 2018 SCC OnLine Del 14406.
36
Mukul Sharma, Ishita Khandelwal, Sanchit Garg & Astha Tambi, Safe Harbour Protection for E-Commerce
platforms, CYRIL AMARCHAND MANGALDAS,
(2021)https://corporate.cyrilamarchandblogs.com/2021/07/safe-harbour-protection-for-e-commerce-platforms/
(accessed on 12/12/2022)
37
Amazon Seller Services Pvt. Ltd. v. Amway India Enterprises Pvt. Ltd. and Ors 2020 (81) PTC 399 (Del).
38
The Information Technology Act 2000, § 79(2)(c), No. 21, Acts of Parliament, 2000 (India)

[ ¶ 29 ] Lastly, Section 79(1) does not extend 39 its protective mantle when an
intermediary is implicated in conspiring, abetting, aiding, or inducing an unlawful act.
In scrutinizing Dominian's role, it emerges that it remained intact within the ambit of
its role as a mere intermediary platform, devoid of any involvement in conspiratorial,
abetting, or inducing activities vis-à-vis unlawful acts. 40 Consequently, Dominion
stands entitled to the protection accorded by Section 79(1) of the IT Act, absolving it
from liability arising from the dissemination of third-party information on its
platform.
THE PETITIONER QUALIFIES TO BE AN INTERMEDIARY UNDER THE FDI GUIDELINES.

[ ¶ 30 ] As per the Guidelines for Foreign Direct Investment in E-Commerce ('the FDI
Guidelines') of 2016 41and 201842, there are two e-commerce models. A marketplace
model is defined as the one facilitating transactions between buyers and sellers, 43
while an inventory-based model involves an e-commerce entity owning the inventory
of goods and services, sold directly to customers. 44 A market place model qualifies to
avail protection under the safe harbour principle.45
[ ¶ 31 ] It is contended that Dominion, by providing an information technology
platform facilitating transactions between buyers and sellers, unequivocally aligns
itself with the marketplace model as defined under the FDI Guidelines. The platform's
role as an intermediary is affirmed, thus qualifying it for protection under the IT Act.
The said provision in the FDI Guidelines of 2018, grants e-commerce marketplaces
the prerogative to offer services. The prima facie merit in an e-commerce platform's
performance is asserted concerning the provision of value-added services, which is
deemed congruent with its role as an intermediary.46
[ ¶ 32 ] It is submitted that Dominian's provision of access to buyers and interactive
39
The Information Technology Act 2000, s 79(3)(a), No. 21, Acts of Parliament, 2000 (India)
40
Anjali Singh, Safe Harbour Protection: A Blanket Immunity to the E-Commerce Intermediary, 5 INDIAN J.L.
& LEGAL RSCH. 1 (2023).
41
Guidelines for Foreign Direct Investment (FDI) on E-Commerce, Press Note No. 3 (2016 Series), dated 9
March 2016.
42
Review of the Policy on Foreign Direct Investment (FDI) in e-commerce, Press Note No. 2 (2018 Series),
dated 26 December 2018 (FDI Guidelines - 2018 Series).
43
Department for Promotion of Industry and Internal Trade, Consolidated FDI Policy Circular of 2020, DPIIT
File Number 5(2)/2020-FDI Policy, para 5.2.15.2.2 (iv), (issued on October 15, 2020).
44
Department for Promotion of Industry and Internal Trade, Consolidated FDI Policy Circular of 2020, DPIIT
File Number 5(2)/2020-FDI Policy, para 5.2.15.2.2 (iii), (issued on October 15, 2020).
45
Vasundhara Majithia, The Changing Landscape of Intermediary Liability for E-Commerce Platforms:
Emergence of a New Regime, 15 INDIAN J. L. & TECH. 470 (2019)
46
Amazon Seller Service Pvt. Ltd. v. Amway India Pvt. Ltd., 2020 SCC OnLine Del 454.

engagement with them inherently falls under the umbrella of value-added services.
Considering the lack of “specific knowledge” 47 as per My Space Inc. v. Super
Cassettes Industries Ltd or “actual knowledge”,48 such services, when aligned with
the marketplace model, do not contravene its intermediary role, rendering Dominian
eligible for protection under the Safe Harbour Principle.
THE PETITIONERS HAVE NO REASON TO BELIEVE THAT INVOLVEMENT IN SUCH SALE IS

UNLAWFUL
[ ¶ 33 ] Constant examination of products as an intermediary is deemed an unjust

intrusion into the intermediary's business rights, potentially transforming it from a
facilitator to an adjudicator49. According to Section 79 50
and the IT Rules, 2011,
intermediaries are obligated to remove content only upon receiving a court order or
government notification. Therefore, Dominian is not obliged to scrutinize every
product unless there is a government notification to ban it, and none exists in this
case. Intermediaries act based on their terms, conditions, and privacy policies, and
they are required to take down content only when notified by a court or an authorized
government agency.51 As there was no government ban on knives, Dominion was
justified in facilitating the sale.
[ ¶ 34 ] If the seller knows or has reason to believe that the purchaser intends to use
the item for an unlawful purpose, then the seller may be held liable 52 and the seller
could be held liable if it is proven that the sale of the product was made with the
knowledge or intention that it would be used to commit a crime 53 or cause harm to
another person54
[ ¶ 35 ] Dominian acted merely as a facilitator, providing a platform for buyers and
sellers to transact, and had no knowledge or reason to believe that the purchaser
intended to use the knife for unlawful purposes. The platform is not directly involved
nor physically handles or inspects in the actual sale or transfer of the products. Hence,
it does not possess the means to verify the intentions of each individual user 55.
47
MySpace Inc v Super Cassettes Industries Ltd 2016 SCC OnLine Del 6382.
48
Shreya Singhal v. Union of India, AIR 2015 SC 1523.
49
Kent RO Ltd & Anr. vs. Amit Kotak & Ors, 2017 SCC OnLine Del 7201.
50
The Information Technology Act 2000, § 79(3)(b), No. 21, Acts of Parliament, 2000 (India)
51
Shreya Singhal v. Union of India, AIR 2015 SC 1523.
52
Manohar Lal v. State of Punjab, 1951 SCR 671.
53
State of Haryana v. Subhash Chand, (2003) 11 SCC 326
54
M.S. Grewal v. Deep Chand Sood, 2001 (8) SCC 151
55
Anvish Bajaj v. State, (2008) 105 DRJ 721.

Therefore, it can be humbly argued that Dominion should not be held criminally liable
for the actions of individual users who may misuse the platform for unlawful
purposes.
PRAYER
Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsel on behalf of the Petitioners humbly prays before this
Hon’ble Court that it may be pleased to adjudge and declare that:
I. THE ORDER OF THE LD.ASJ TO BE QUASHED

II. THE HON’BLE SUPREME COURT OF REPUBLIC OF RAVIS HAS THE
JURISDICTION TO HEAR THE PRESENT PETITION.

III. THE IT RULES,2021 ARE UNCONSTITUTIONAL AND ULTRA VIRES
THE PARENT STATUTE.
IV. THE PETITIONER, QUALIFIED AS AN INTERMEDIARY UNDER SECTION
2(1)(W) OF THE IT ACT, CANNOT BE HELD CRIMINALLY FOR
FACILITATING THE PURCHASE OF KNIFE THAT CRIMINAL OFFENCE.
and/or
Pass any other order, direction or relief that it may deem fit in the interest of justice, equity,
fairness and good conscience.
For this act of kindness of your lordship, the Petitioners shall duty bound forever pray.
Place: S/d-
Date: COUNSELS for the

PETITIONERS

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INSTITUTE OF LAW, NIRMA UNIVERSITY

INTRA MURALS- EVEN SEMESTER (2023-2024)

TEAM CODE: T12P

INSTITUTE OF LAW, NIRMA UNIVERSITY

BEFORE THE HON’BLE SUPREME COURT OF RAVIS

HOWSAPP I N C . V. REPUBLIC OF RAVIS

QUITER INC. V. REPUBLIC OF RAVIS

DOMINIAN V. REPUBLIC OF RAVIS

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORIAL for CLAIMANT TABLE OF

I. THE HON’BLE SUPREME COURT OF REPUBLIC OF RAVIS HAS JURISDICTION TO

II. WHETHER THE IT RULES, 2021 ARE UNCONSTITUTIONAL AND ULTRAVIRES?.......15

[ C ] The it rules are ultra vires to the parent statute......................................................18

III. WHETHER THE PETITIONER, AS AN INTERMEDIARY UNDER SECTION 2 (1)(W) OF

THAT RESULTED IN A CRIMINAL OFFENCE BY MANKAD...........................................19

[ A ] The petitioner awails protection under section 79(1) of the it act.........................19

[ B ] The petitioner qualifies to be an intermediary under the fdi guidelines................20

Page 1 of 24 MEMORIAL for PETITIONERS

[ C ] The petitioners have no reason to believe that involvement in such sale is

Page 2 of 24 MEMORIAL for PETITIONERS

FDI Foreign Direct Investment

IT Act The Information Technology Act, 2000

IT Rules Information Technology (Intermediary Guidelines and Digital

MeitY Ministry of Electronic and Information Technology, Government

W.P. No. Writ Petition Number

Page 3 of 24 MEMORIAL for PETITIONERS

Anuradha Bhasin v. Union of India (2020) 3 SCC 637...........................................................18

Anvish Bajaj v. State (2008) 105 DRJ 721..............................................................................21

Bishan Das and Others v. State of Punjab AIR 1961 SC 1570................................................16

Gobind v. State of M.P., (1975) 2 SCC 148............................................................................17

Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1.........................................17

K.S. Puttaswamy (Aadhar-5J.) v. Union of India, (2015) 10 SCC 92.....................................16

K.S. Puttaswamy (Aadhar-5J.) v. Union of India, (2015) 10 SCC 92, ¶ 325..........................16

Kunj Behari Lal Butail v. State of H.P., (2000) 3 SCC 40......................................................18

M.S. Grewal v. Deep Chand Sood (2001)...............................................................................21

Naraindas Indurkhya v. State of M.P., (1974) 4 SCC 788.......................................................15

Page 4 of 24 MEMORIAL for PETITIONERS

R. Rajagopal v. State of T.N., (1994) 6 SCC 632....................................................................15

Ram Jethmalani v. Union of India, (2011) 8 SCC 1................................................................17

Shreya Singhal v. Union of India, (2015) 5 SCC 1..................................................................15

State of Haryana v. Subhash Chand (2003) (2003) 11 SCC 326.............................................16

State of Maharashtra v. Abdul Hamid Haji Mohammed.........................................................14

State of Punjab v. Manohar Lal (1965) AIR 1965 SC 1107....................................................21

Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110.....................................................13

THE INFORMATION ACT, 2000

The Information Technology Act 2000, s 2………………………………………….. 19

The Information Technology Act 2000, s 79………………………………………… 11

The Information Technology Act 2000, s 79(2)(c)………………………………… 19

The Information Technology Act 2000, s 79(3)(a)…………………………………... 20

THE CONSTITUTION OF INDIA

INDIA CONST. art. 226..........................................................................................................13

INDIA CONST. art. 32............................................................................................................13

INDIA CONST. art. 19............................................................................................................15

Anjali Singh, Safe Harbour Protection: A Blanket Immunity to the E-Commerce

Page 5 of 24 MEMORIAL for PETITIONERS

Vasundhara Majithia, The Changing Landscape of Intermediary Liability for E-Commerce

Page 6 of 24 MEMORIAL for PETITIONERS

Page 7 of 24 MEMORIAL for PETITIONERS

Page 8 of 24 MEMORIAL for PETITIONERS

Page 9 of 24 MEMORIAL for PETITIONERS

I. WHETHER THE HON’BLE SUPREME COURT OF REPUBLIC OF RAVIS HAS

JURISDICTION TO HEAR THE PRESENT PETITION.

III. WHETHER THE PETITIONER, AS AN INTERMEDIARY UNDER SECTION 2 (1)(W) OF

THAT RESULTED IN A CRIMINAL OFFENCE BY MANKAD.