PETITIONER SPEECH

Your Ladyship, Your Lordship May it please the court.

Your Lordship the counsel would deal with 3 issues that is;

Firstly, whether the central govt. under sec 87 & 79 of the it act has ultra vires
legislated it rules, 2021 that prescribe unreasonable due diligence on
intermediaries & are violative of the doctrine of proportionality or not.

Secondly, issue related to the breach of the right to privacy of the petitoners by
the seizure of the digital devices.

thirdly, issue related to the reasonable expectation of privacy by the petitoners

with repect to any any info. Relating to the investigation by the ED.

Your lordships, issue 3 questions whether the central govt. under sec 87 & 79 of
the it act has ultra vires legislated it rules 2021.Yes, the counsel believes that the
central govt. under sec 87 & 79 of the it act did ultra vires legislate it rules 2021
that prescribe unreasonable due diligence on intermediaries and are violative of
the doctrine of proportionality.

To justify this statement, the counsel would like to provide 2 contentions:-

1. IT RULES 2021 are beyond the scope of the enabling IT ACT, 2000

2. there is a presence of unnecessary classification and expansion of obligations

The counsel would like to put forth the 1st contention by relying on the case of
Karnataka and Anr, v. Ganesh Kamath & Ors. In wich the SC held that “It is a
well settled principle of interpretation of statutes 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.”

Section 79(1) of the IT Act states that the intermediary will not be held liable for
any third-party information if the intermediary complies with the conditions laid
out in Section 79(2). One of these conditions is that the intermediary observe “due
diligence while discharging his duties under this Act and also observe such other
guidelines as the Central Government may prescribe in this behalf.” Further,
Section 87(2)(zg) 43empowers the central government to prescribe “guidelines
to be observed by the intermediaries under sub-section (2) of section 79. This is
made clear that the power of the Central Government is limited to prescribing
guidelines related to the due diligence to be observed by the intermediaries while
discharging its duties under the IT Act. However, the 2021 guidelines have
imposed additional requirements and widened the ambit of requirements to be
fulfilled by the intermediary.

The court in the case of Shreya Singhal opined that an order of blocking any
content on social media platforms must conform to the subject matters laid down
in art. 19(2).

The amended Rule 3(1)(b)(v)45 requires intermediaries to take down content

which has been determined by the FCU as “false, fake or misleading” “in respect
of any business of the Central Government”.

The counsel would like to rely on the case of Kaushal Kishor v. State of Uttar
Pradesh & Ors., the Supreme Court clarified that the eight grounds provided in
Article 19(2) in regard to restrictions on free speech are exhaustive. Any
restrictions imposed outside the purview of these eight grounds shall be invalid.
“False, fake or misleading” do not qualify as one of the grounds for restricting
free speech. They are too broad in their ambit, encompassing lawful and unlawful
speech.

Therefore, it can be said that the central govt, under sec 87 & 79 of the it act has
ultra vires legislated it rules 2021.

If your lordships are satisfied with the 1st contention and don’t have any queries,
may the counsel proceed with 2nd contention. (Much Obliged)

The counsel believes that there is a presence of unnecessary classification and

expansion of obligations.

The IT Act does not prescribe for any classification of intermediaries. The 2021
Intermediary Guidelines have established new categories of intermediaries: (i)
Social Media Intermediary (Rule 2(w)); and (ii) Significant Social Media
Intermediary (Rule 2(v)). This classification comes with an additional set of
obligations for significant social media intermediaries as well as expansion of
the obligations for social media intermediaries. The additional set of obligations
placed on social media intermediaries finds no basis in the IT Act, which does
not specify or demarcate between different categories of intermediaries.

The 2021 Rules have been prescribed under Section 87(1) and Section 87(2)(z)
and (zg) of the IT Act. These provisions do not empower the Central
Government to make any amendment to Section 2(w) or create any
classification of intermediaries. As discussed previously, the rules cannot go
beyond the parent act or prescribe policies in the absence of any law/regulation
authorising them to do so.

Academy of Nutrition Improvement v Union of India51 - “Such a power will

not support attempts to widen the purposes of the Act, to add new and different
means to carrying them out, to depart from or vary its terms”.
Issue 4 of the moot proposition questions whether the seizure of digital devices
by ED is violative of the fund. Right to privacy of the petitioners. Yes, the
seizure was violative of the right to privacy of the petitioners. To support this
the counsel would like to provide 3 contentions:-

1. ED’s was arbitrary in seizing the devices thereby leading to the violation of
right to privacy of the petitioners.

2. cryptocurrency’s nature vitiated the purpose behind the ED’s seizure of digital
devices

3. seizure violates the fundamental right to privacy

Beginning with the 1st contention your lordships, the counsel is relying on the
case of STATE OF HARYANA V. BHAJAN LAL (1992)facts…..the SC held that
the exercise of power by law enforcement agencies, including seizures must be
justified based on credible material and not for extraneous reasons ...if I may
divert your lordship’s attention to the moot prop para no. …

Also, Section 17 of the Prevention of money laundering act, 2000 states that if
the law enforcement agencies have a reason to believe that there is money
laundering, the officers have the power to seize and search the property but in the
present case it is nowhere confirmed that money has been laundered but only been
suspected.

(para 10 of the prop) Your lordship, here the reason of believe given by the ED
i.e. transactions in flipcoins were not recognised and were prohibited is rendered
void by the court’s recognition of cryptocurrency in the case of Internet and
mobile association of india v. rbi, where a petition was filed against the excessive
use of power by the rbi. The SC ruled that RBI was well within its power to issue
such a circular to protect the banking sector. However, there was a lack of any
proportional damage in the present case and there exists no case which has
affected the banking sector or the economy of Aryavarta in any way by the arrival
of cryptocurrency. Hence, the circular is baseless and cannot stand to take the
fundamental rights of the cryptocurrency exchanges in any way. SC as well made
it clear that cryptocurrency in Aryavarta is unregulated and not illegal, which in
the present case renders ED’s reason to believe void.

The ED must demonstrate a legitimate need to seize devices and avoid excessive
or arbitrary exercise of its powers. While the PMLA is intended to combat money
laundering and illicit activities, it is important to strike a balance between these
goals and the rights of individuals and businesses. In the present case it’s stated
that a news article claims that the agency’s (ED’s) investigation had revealed
cryptocurrency payments by Netzwerk to Red Light area but we have no idea
how reliable the news article is and therefore there should be stricter judicial
oversight of the agency’s (ED’s) actions under act to prevent potential excesses.

Therefore, the ED had no clear evidence relying on which he should have seized
the digital devices leading to arbitrary use of its powers, in return of which the
petitioners’ right to privacy was violated.

If your lordships are satisfied with the 1st contention and don’t have any queries,
may the counsel proceed with 2nd contention. (Much Obliged)

Your lordship, the counsel would like to make the contention that the very
nature of cryptocurrency i.e. it being an open and transparent ledger vitiates the
purpose behind the ED’s seizure of digital devices. This transparency ensures
that transaction data is publicly accessible, eliminating the need for authorities
to seize physical records or devices. In the present case, since cryptocurrency is
an open ledger, the information is already available leading to the seizure of
devices unnecessary resulting in the collection of more info. Than required.

Your lordship to support this contention, the counsel would like to rely on the
case of United States v. Ulbricht (2015)…in this case the investigation into the
Silk Road darknet marketplace revealed that Bitcoin transactions on the
blockchain were crucial evidence. The prosecution did not need to seize
physical documents or devices because the blockchain served as an open ledger
accessible by all.

This accessibility to the public can be leveraged by enforcement agencies. Thus,

seizure of digital devices was an unnecessary step taken by the ED leading to a
collection of more info. Than needed which resulted in the violation of privacy
of the petitioners.

If your lordships are satisfied with the 2nd contention and don’t have any queries,
may the counsel proceed with 3rd contention. (Much Obliged)

The counsel would like to put forth that the seizure violated the right to privacy
of the petitioners and was not proportional to achieving the object required.

Your Lordship, art. 21 –right to life and personal liberty which also includes the
right to privacy. Seizure of digital devices often involves accessing personal
data. Such data is considered an extension of an individual's private life and
should be protected.

Your lordship, the counsel would like to rely on the landmark judgement of
JUSTICE KS PUTTASWAMYY V. UOI(2017), the seizure of the digital
devices which can contain a vast amount of personal data unrelated to the
investigation must be subject to strict limitations and should not result in the
overbroad collection of data i.e. the seizure of devices in the present case that
infringes upon an individual's Right to Privacy. Allowing unchecked seizures of
digital devices can lead to abuse by law enforcement agencies, resulting in
unwarranted invasions of privacy.

Seizing digital devices, which can potentially contain a vast amount of personal
info unralted to the investigation, may not be a proportionate measure. Another
case that the counsel would like to rely is People's Union for Civil Liberties
(PUCL) vs. Union of India (2003).. in this case the sc emphasized the need for
strict adherence to legal procedures and proportionality when conducting
searches and seizures.

Your lordship, Considering all the contentions put forth, the counsel would like
to state that the seizure of digital devices by the ED was an arbitrary and
unnecessary step taken by the ED since it led to collection of way more info.
Than what was required in the present case when there was no clear evidence as
given in the facts of the case. The seizure of the devices was a disproportionate
step taken by the ED leading to the violation of the right to privacy of the
petitioners.

If your Lordships are satisfied with the arguments and don’t have concerns,
counsel would like to proceed with the 5th Issue.

Issue 5 of the moot proposition questions whether the petitioners had the
reasonable expectation of privacy wrt any info. Collected by the ED relating to
the investigation. Yes, your lordship the petitioners did have a fair amount of
reasonable expectation privacy with respect to info. Collected by the ED. To
support this, the counsel would like to provide 2 contentions:-

1. doctrine of legitimate expectation must be taken into consideration

2. leakage of essential information would lead to its misuse and prevention of
leakage of information is necessary to reduce the probability of a media trial

Beginning with the 1st contention your lordships, the counsel would like to
state tha the doctrine of legitimate expectation ensures that individuals have a
reasonable expectation that a public authority will follow certain procedures or
rights, and if those expectations are not met, they may have legal remedies.

This doctrine reinforces the principle that individuals have a right to expect fair
and just treatment from public authorities during investigations. The doctrine
can be used to protect an individual's privacy during investigations by
preventing unwarranted intrusion.

To support this, the counsel would like to rely on the case of BLOOMBERG V.
ZXC(2020) in which a two- stage test for a privacy claim was laid. It talked
about how a claimant has a reasonable expectation of privacy and held that
someone who comes under the suspicion by an organ of the state has a founded
expectation of privacy in relation to that fact and an expressed basis for that
suspicion.

In the case of State of Punjab v. Amar Singh (1975),the court held that the
doctrine of legitimate expectation is based on the principles of natural justice
and fairness. It recognized that a person has a legitimate expectation that the
government will follow its own policies and procedures, and any failure to do so
without justification would violate this doctrine.

Therefore, according to the doctrine of legitimate expectation, it can be said that

the petitioners can claim to have a reasonable expectation of privacy wrt any
onfo. Relating to the investigation collected by the ED.
If your lordships are satisfied with the 1st contention and don’t have any queries,
may the counsel proceed with 2nd contention. (Much Obliged)

If I may divert your lordship’s attention to moot prop para 13, there was
selective leakage of findings of the investigation which would lead to misuse of
the information of the petitioners.

leaking sensitive information infringes upon an individual's right to privacy and

dignity, as it exposes their personal details and potentially damaging allegations
to the public. Leaking information can lead to vigilante justice, where members
of the public take the law into their own hands based on incomplete or biased
information. This can undermine the rule of law and lead to miscarriages of
justice. Maintaining confidentiality in investigations is essential to uphold
public trust in the judicial system.

The counsel would like to rely on the case of BLOOMBERG V. ZXC , in this
case, the court emphasized that it is important to uphold the principle of privacy
by not jumping to conclusions based solely on suspicion or investigation.

People should be given the benefit of the doubt and their privacy should be
respected unless there is concrete evidence to suggest wrongdoing. By
recognizing the distinction between suspicion and guilt, the court aimed to
protect individuals' privacy rights and prevent unwarranted invasion of privacy
based on mere suspicions or allegations.

Your lordship in the present case, in the clarification of the moot proposition, it
was stated that the the digital devices that the ED seized that was talked about
in the paragraph no. 14 of the moot prop tend to contain at least some personal
material/ data…which would have been misused which in turn, makes it clear
that the petitioners had the reasonable expectation of privacy wrt any info.
Collected by the ED.

Your lordship, the counsel would like to put forth that prevention of leakage of
info. Is necessary to reduce the probability of media trial. When information
collected during investigations is leaked to the media, it can lead to public
prejudice and preconceived notions about the accused. This compromises the
right to a fair trial. It is submitted that when information is leaked to the media,
there is a risk of sensationalism and biased reporting. This can further prejudice
public opinion and make it difficult for the accused to receive a fair trial. The
sensational or biased media coverage could interfere with the administration of
justice.

Your lordship, the counsel would like to rely on the case of Maneka Gandhi vs.
UOI, wherein sc held that fair trial is an essential part of art. 21

To conclude the contention your lordship, the counsel would like to say that in
the present case there is selective leakage of findings of the information which
would create a prejudice among the public which would vitiate the right to free
trial and there would be breach of reasonable of expectation of privacy.