IN THE HON’BLE SUPREME COURT OF INDIGO

Civil Original Jurisdiction

WRIT PETITION NO: _____ / 2013

IN THE MATTER OF

Johnny M…………………………………………. Petitioner
Vs
State of Jhargram.......................……………………… Respondent

Memorial Most Humbly Submitted Before the Judges of the Hon’ble Supreme Court of Indigo on Behalf of the Petitioner

Rommel Khan
(Roll No. : 233)
Counsel for the Petitioner

Table of Contents

ABBREVIATIONS 3 Index Of Authorities 4 STATUTES 4 WEBSITES 4 BOOKS 4 STATEMENT OF JURISDICTION 5 STATEMENT OF FACTS 6 ENTITIES INVOLVED 6 EVENTS LEADING TO THE CASE 6 STATEMENT OF ISSUES 7 ISSUE 1 7 SUMMARY OF PLEADINGS 8 PLEADINGS 8 PRAYER FOR RELIEF 16

ABBREVIATIONS

1. & - And 2. AC - Appeal Cases 3. AIR - All India Reporter 4. All. E.R. - All England Law Reports 5. Anr. - Another 6. App. - Appeal 7. Art. - Article 8. Bom. - Bombay 9. Co. - Company 10. Cr. - Criminal 11. DC - District Court 12. Ed. - Edition 13. Hrs - Hours 14. IT - Information Technology 15. Ltd. - Limited 16. NLJ - National Law Journal 17. Ors. - Others 18. P. - Page 19. Para. - Paragraph 20. Pvt. - Private 21. SC - Supreme Court 22. SCC - Supreme Court Cases 23. SCR - Supreme Court Reporter 24. SCR - Supreme Court Reporter 25. Sec. - Section 26. V. - Verses 27. Vol. - Volume 28. WLR - Weekly Law Reports

Index Of Authorities

STATUTES

1. Information Technology Act, 2000 2. The Constitution of India
WEBSITES
1. www.manupatra.com 2. www.Indiankanoon.com

BOOKS

1. Bakshi P.M., The Constitution of India, Universal Law Publishing Co. New Delhi 2011 edition 2. Basu Durga Das, Commentary on the Constitution of India, Vol. 2, Wadhwa Nagpur, 8th Edition 2007 3. Basu Durga Das, Constitutional Law of India. 8th Edition Reprint 2009 4. Basu Durga Das, Shorter Constitution of India, Lexis Nexis Butterworths Wadhwa Nagpur, Vol. 1, 14th Edition Reprint 2011 5. Seervai H.M. Constitutional Law of India, Universal Law Publishing Co. Vol. 1, 4th Edition 6. Shukla V.N., Constitution of India. 11th Edition

TABLE OF CASES

1. A.K. Roy v. Union of India (1982) 1 SCC 271 2. Chintamanrao v. State of MP (1950) SCJ 571 3. Express Newspapers (P) Ltd. v. Union Of India [AIR 1986 SC 872] 4. Inderjeet v. State of Uttar Pradesh [AIR 1979 SC 1867]: (1990) 1 SCR 255 5. Javeed v. State of Haryana [AIR 2003 SC 3057] 6. Kathi Raning v. State of Saurashtra 952 SCR 435 7. Kedar Nath v. State of Bihar [AIR 1962 SC 955] 8. Life Insurance Corporation of India v. Manubhai D. Shah [AIR 1993 SC 171] 9. Maneka Gandhi v. Union of India [AIR 1978 SC 597] 10. Pathunma v. State of Kerala [AIR 1978 SC 771] 11. Ramji Lal v. State of Uttar Pradesh [AIR 1957 SC 620] 12. Sakal Papers v. Union of India [AIR 1962 SC 305] 13. Supdt. v. Ram Manohar [AIR 1960 SC 633]; 14.

STATEMENT OF JURISDICTION
_

The Honourable Supreme Court is vested with jurisdiction, to hear the present matter under Article 32 of the Constitution of Indigo.

Article 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.

STATEMENT OF FACTS ENTITIES INVOLVED

Jhonny M - A 4th year student of National Law School, situated in Jhargram,
Rinchi. It was he who had updated the status.
SG - A friend of Jhonny M. He had merely “liked” and “shared” the status.
AZB - The very respected political and social leader. He was the founder of one of the oldest political parties in Jhargram, Jhargram Sangharsh
Samity. He passed away at the age of 85 years.
RB - The restaurant where Jhonny M used to go every Sunday for a brunch

EVENTS LEADING TO THE CASE

1. Jhonny M, a 4th year student of National Law School of Jhargram used to go to restaurant ‘RB’ every Sunday for his brunch. 2. AZB, a much respected political leader had passed away at the age of 85 due to natural reasons. 3. This death led to his political party, Jhargram Sanghash Samity to call for a bandh for two days to mourn their fallen leader. 4. AZB’s funeral procession took place on Sunday. 5. When, on the funeral day my client had gone for his usual brunch, the shop was closed. This forced him to return to his hostel hungry, as all the other shops too were closed. By the time he had returned to his hostel, his lunch time had gotten over. This caused him to remain hungry. 6. In frustration, he logged onto his Facebook account and posted about AZB, to which his friend, SG had “liked” and “shared” his comment. 7. This led to the police arresting Jhonny M and SG under Section. 66A of the IT Act. My client was then released the next day.

STATEMENT OF ISSUES

ISSUE 1

Does Section 66A of the Information Technology Act, 2000, violate Article 19(1)(a) of the Constitution of Indigo?

SUMMARY OF PLEADINGS

1. Does Section 66A of the Information Technology Act, 2000, violate Article 19(1)(A) of the Constitution of Indigo?

PLEADINGS

1. Does Section 66A of the Information Technology Act, 2000, violate Article 19(1)(A) of the Constitution of Indigo?

It is humbly contented before this Hon’ble Court that Section 66A of the IT Act clearly violates Article 19(1)(a) of the Constitution of Indigo.
Also, if one proves that the aforementioned Section of the IT Act is null and void, then there would be no violation of Article 19(1)(a).
I will be doing that by proving that there 2.1 Article 19(1)(a) of the Constitution states that;
“Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right— (a) To freedom of speech and expression...” 2.2 Article 19(1)(a), as stated above, guarantees to all citizens the freedom of speech and expression. This right has been characterised as a “basic human right” 2.3 In the case Maneka Gandhi v Union of India, it had been stated that
“...Every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential…”

CONTENTION (A) – SECTION 66A IS NOT REASONABLE AND IS ARBITRARY

2.4 Now, in Article 19(2) there are certain restrictions which are imposed. These restrictions are exhaustive, and all these are strictly constructed. Hence, the Court should strike down any law which will not conform with Article 19(1)(a). II.V.I There are eight grounds upon which the term ‘reasonable restriction’ can be imposed. These grounds are: i. Sovereignty and integrity of India ii. Security of the State iii. Friendly relations with foreign States iv. Public order v. Decency or morality vi. Defamation vii. Contempt of Court viii. Incitement to an offence. 2.5 Moving on to whether Section 66A was reasonable or not. The requirement of reasonableness runs like a golden thread all through the fabric of Fundamental Rights. This leads to the conclusion that there are two ways in which a restriction becomes unreasonable. * If any law sweeps within its ambit the activities which constitute freedom of speech and expression. * The restriction is excess in what is required suppress or prevent the social mischief from taking place. 2.6 The word ‘reasonable’ enables the Court to determine not only whether the impugned restrictive law is, in fact, in the interests of any such ground as enumerated but also whether the restriction sought to be imposed by the legislation is reasonable, having regard to the objective test i.e. whether the restriction has a reasonable relation to the authorized purpose or is an arbitrary abridgement of the freedom guaranteed by the Article under the cloak of any of the exceptions. 2.7 In Papnasam Labour Union v. Madura Coats Ltd., the Supreme Court has stated that the following principles and guidelines should be kept in view while considering the constitutionality of a statutory provision: i. The restriction must not be arbitrary or of an excessive nature. ii. There must be a direct and proximate nexus between the restriction imposed and the object sought to be achieved iii. No abstract or fixed principle can be laid down which may have universal application in all cases. 2.8.2.1 Also, it has been held in Inderjeet v. State of Uttar Pradesh; that a given legislation would amount to an unreasonable restriction under Article 19 if the punishment is too harsh as and when compared to the present day scenario, in reference to the offence committed. 2.8.2.2 It is humbly submitted that, in the case at hand, Section 66A of the IT Act, has, within its ambit constituted activities which constitute a legitimate expression of speech and expression under article 19(1)(a). It covers categories such as “…causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will...” which do not and cannot fall within and under the ambit of restrictions which have been enumerated in Article 19(2). Hence, section 66A is not reasonable and should be struck down as unconstitutional.

CONTENTION (B) – SECTION 66A DOES NOT SATISFY THE “TEST OF PROPORTIONALITY”

2.8 Under the “Principle of Proportionality”, the Legislature should maintain a proper balance between the adverse effects which the legislation may have on the rights and liabilities or interests of the persons keeping in mind the purpose they were intended to serve. 2.9 A law must not be arbitrary, vague or of an excessive nature. Legislation which arbitrarily or excessively invades the Fundamental Right cannot be said to contain the quality of reasonableness. 2.10 The Constitution leans in favour of liberty of people should be adopted in preference to one that curtails liberty. In reference to the previous line, it is, therefore, submitted that Section 66A of the I.T. Act violates Article 19(1) (a) of the Constitution as it of an excessive nature and fails to maintain a proper balance between the adverse effects which it may have on the rights and liabilities or interests of the persons in relation to the purpose that it was intended to serve. Section 66A can be misused by the Authorities as it contains terms such as as annoyance, inconvenience, obstruction and insult which are imprecise (i.e. arbitrary). It is therefore submitted before this Hon’ble court that the aforesaid section violates Article 19(1)(a) because it is of an excessive nature.

CONTENTION (C) – SECTION 66A AS RESTRICTION IMPOSED DOES NOT HAVE A “DIRECT AND PROXIMATE NEXUS” TO THE OBJECT SOUGHT TO BE ACHIEVED

2.11 Under Article 19(2), a restriction can be imposed due to eight grounds as it has been mentioned previously in the written submission on pgs. 9 & 10. The limitation which is to be imposed, to be a reasonable restriction, should be one which has a proximate connection or a nexus which is not to farfetched, hypothetical or simply, too remote. An indirect, or far-fetched or any unreal connections between the restriction and the public order would not fall within the purview of reasonable restrictions. II.XII.II It was held in Javali v. State of Mysore

Under Article 19(2), a restriction can be imposed in the “interests of the sovereignty and

integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” The limitation imposed in the interests of public order, or any other enumerated ground, to be a reasonable restriction, should be one which has a proximate connection
CONTENTION (C) – SECTION 66A AS AN ACT IS VAGUE IN ITSELF

2.12 In reference to the word “vague”, this Hon’ble Court has long held in A.K. Roy v. Union of India, that:
“...the impossibility of framing a definition with mathematical precision cannot either justify the use of vague expressions or the total failure to frame any definition at all which can furnish, by its inclusiveness at least, a safe guideline for understanding the meaning of the expressions used by the legislature...” II.XIII.III In reference to the above paragraph, one point from Kathi Ranning v. State of Saurashtracan be raised, i.e. where the standard of guide furnished by the statute is vague and uncertain it amounts to the absence of any guide at all and the law must be struck down as conferring unguided power upon the Executive. II.XIII.IV This court has the power to make any law unconstitutional if it confers discretionary powers on the authority which is too-broad and sweeping, as was declared in Naraindas v. State of Madhya Pradeshand in Maneka Gandhi. Another way in which this court can hold any law un-constitutional will be, if it infringes on any Fundamental Right. II.XIII.V A person’s Fundamental Rights cannot be taken away by a law whose command is uncertain, especially if the law does not provide methods as to avoid the mischief of the law. 2.13 If a penal law is so vague and uncertain that it does not give the accused any information on what constitutes an offence, it is unreasonable under the substantive perspective. Also, if any law has the capability to be used against anything not mentioned in the Constitution, that law has to be declared wholly unconstitutional and void, because the language is very wide, the restriction must be struck down as wholly voidThis very court has invalidated laws on the grounds of vagueness in a plethora of cases. 2.14 Now, the question arises as to how is it wide? In the act, the terms “annoyance, inconvenience” etc., have not been defined. This gives huge discretionary powers and flexibility which can be used in any circumstances possible. Given the way technology is being misused, there could be millions of situations in which would end up being offences under Section 66A. It is therefore humbly submitted that Section 66A should be wholly struck down as unconstitutional.

CONTENTION (C) – SECTION 66A DOES NOT SATISFY THE TEST OF “CLEAR AND PRESENT DANGER”

2.15 A State should bring about the legislation to curb freedom of expression only if the curtailment of liberty is justified by the clear and present danger test, viz., that the utterance, if allowed, would really imperil public safety, “The substantive evil must be extremely serious and the decree of imminence extremely high.”

II.XVI.VI This American Test of Clear and Present Danger have been applied in India in several cases. It was held in Romesh Thappar v. State of Madras that local breaches of public order are not grounds for restricting the Freedom of Speech and that it cannot be got under the ambit of “Present and Clear Danger Test”. II.XVI.VII Again, public order is not the same as public safety. Hence, no restrictions can be imposed on the right to freedom of speech and expression only on the grounds that it public safety is endangered. II.XVI.VIII The State cannot prevent open discussion and expression. It is not an offence to verbally insult or annoy someone without anything more being done such as a threat to commit an offence etc. when this is the case with verbal communications; there is no reason to make an exception foe electronic communication.

PRAYER FOR RELIEF

In these circumstances, your petitioner most humbly and respectfully pray that your Lordships would be graciously pleased to allow the application of my client i.e. Section 66 A of the IT Act is un-constitutional and to pass such other order or orders as your Lordships may seem fit and proper And your petitioner as in duty bound shall ever pray.

All of which is most humbly submitted.
Dated: 10-4-2013

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[ 2 ]. Life Insurance Corporation of India v. Manubhai D. Shah, [AIR 1993 SC 171]
[ 3 ]. Maneka Gandhi v. Union of India [AIR 1978 SC 597] para 696
[ 4 ]. Sakal Papers v. Union of India [AIR 1962 SC 305]; Supdt. v. Ram Manohar [AIR 1960 SC 633]; Kedar Nath v. State of Bihar, [AIR 1962 SC 955]
[ 5 ]. Ghosh v. Joseph, AIR 1963 SC 812
[ 6 ]. Kameshwar v. State of Bihar, [AIR 1962 SC 1166]
[ 7 ]. Basu Durga Das, Commentary on the Constitution of India, Vol. 2, Wadhwa Nagpur, 8th Edition 2007 pp 2427-2428
[ 8 ]. Javeed v. State of Haryana, [AIR 2003 SC 3057]
[ 9 ]. Ramji Lal v. State of Uttar Pradesh, AIR 1957 SC 620
[ 10 ]. Pathunma v. State of Kerala AIR 1978 SC 771
[ 11 ]. Chintamanrao v. State of MP, (1950) SCJ 571
[ 12 ]. Papnasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200
[ 13 ]. The term “arbitrary” has also been used in Chintamanrao v. State of MP, (1950) SCJ 571
[ 14 ]. Inderjeet v. State of Uttar Pradesh, AIR 1979 SC 1867 : (1990) 1 SCR 255
[ 15 ]. Express Newspapers (P) Ltd. v. Union Of India, AIR 1986 SC 872
[ 16 ]. Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118
[ 17 ]. Krishnan S. v. State of Madras; AIR 1951 SC 301
[ 18 ]. Basu Durga Das, Commentary on the Constitution of India, Vol. 2, Wadhwa Nagpur, 8th Edition 2007 pp 2427-2428
[ 19 ]. Arunachala Nadar, M.C.V.S. v. State of Madras, AIR 1950 SC 300
[ 20 ]. Superintendent Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633
[ 21 ]. O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812
[ 22 ]. Javali V. K. (Dr.) v. State of Mysore, AIR 1966 SC 1387
[ 23 ]. A.K. Roy v. Union of India (1982) 1 SCC 271
[ 24 ]. Kathi Raning v. State of Saurashtra, 1952 SCR 435
[ 25 ]. Naraindas v. State of Madhya Pradesh, AIR 1974 SC 1232
[ 26 ]. Maneka Gandhi v. Union of India (1978) 2 SCJ
[ 27 ]. K.A. Abbas v. Union of India, AIR 1973 SC 123
[ 28 ]. Collector of Custom v. Nathella Sampathu Chetty, AIR 1962 SC 316
[ 29 ]. Prem Chand v. Union of India, (1981) Cr. L.J. (para 9) SC; Sunil Batra (I) v. Delhi Administration, AIR 1978 SC 1675; Nandlal v. State of Punjab, AIR 1981 SSC 2041
[ 30 ]. Romesh Thappar v. State of Madras, AIR 1950 SC 124; State of Madhya Pradesh v. Baldeo Prasad, (1961) 1 SCR 1970; Abbas v. Union of India, AIR 1971 SC 481
[ 31 ]. Romesh Thappar v. State of Madras, AIR 1950 SC 124; Abbas v. Union of India, AIR 1971 SC 481
[ 32 ]. Harakchand v. Union of India, AIR 1970 SC 1453, P.A. Inamdar v. State of Maharashtra, AIR 2005 SC3226, Nandlal v. State of Haryana, AIR 1980 SC 2097, Lakshmanrao v. Judicial Magistrate, AIR 1971 SC 186, Sawai Singh v. State of Rajasthan, AIR 1986 SC 995, Surath Chandra Chakraborthy v. State of West Bengal, AIR 1971 SC 752, State of A.P. v. Shree Ramarao, AIR 1963 SC 1723, Dr. Ram Krishna Bharadwaj v. State of Delhi, AIR 1953 SC 318, Naresh Chandra Ganguly v. State of W.B., AIR 1959 SC 133
[ 33 ]. Bridges v. California (1941) 314 US 252
[ 34 ]. Duda v. Shiv Shankar AIR 1988 SC 190; Odyssey v. Lokvidayar AIR 1988 SC 1642; Babulal v. State of
Maharashtra AIR 1961 SC 884
[ 35 ]. Anand Patwardhan v. Union of India; AIR 1997 Bom 25
[ 36 ]. Pranesh Prakash, Comments on the Draft Rules under the Information Technology Act (July 28, 2009)