THE KERALA LAW ACADEMY LAW COLLEGE

TEAM CODE : A5

KERALA LAW ACADEMY LAW COLLEGE

IN THE HON’BLE SUPREME COURT OF REPUBLIC OF INDIA

Civil
appeal NO. /2023

UNDER ARTICLE 133 OF THE CONSTITUTION OF INDIA

IN THE MATTER OF

SUMALI ..............................................................................................PETITIONER

V.

STATE OF NITHISTHAN ..................................................................... RESPONDENT

MEMORIAL ON BEHALF OF THE PETTIONERS

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TABLE OF CONTENTS

TABLE OF CONTENTS............................................................................................. II

LIST OF ABBREVIATIONS...................................................................................... IV

LIST OF AUTHORITIES ........................................................................................... VI

STATEMENT OF FACTS........................................................................................... X

STATEMENT OF JURISDICTION ........................................................................... XII

ISSUES RAISED..................................................................................................... XIII

SUMMARY OF ARGUMENTS............................................................................... XIV

ARGUMENTS ADVANCED....................................................................................... 1

ISSUE 1: WHETHER ARTICLE 133 OF INDIAN CONSTITUTION HAS A

JURISDICTION OF CRIMINAL APPEAL?
1.A. The order passed by the High Court not quashing the F.I.R is a final order

1.B. Quashing a F.I.R for the enforcement of Fundamental Right is a civil

proceeding

1.C. Determination of Constitutional validity of Section 66A falls

within the purview of Article 133(2) of the Constitution

ISSUE 2: WHETHER THERE WAS AN ABUSE OF PROCESS IN THE MATTER OF

FILING F.I.R AGAINST SUMALI?
1.A There is abuse of process in the matter of filing FIR against Sumali

1.B There is abuse of process in the matter of investigation conducted by the

police under section 156(1) and section 157 and arrest of sumali under section 157
of CrPC. 1.C. There is abuse of process in the matter of arrest of Sumali by the
police under Section 41 of CrPC

1.D. The court should quash the FIR

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ISSUE 3: WHETHER SECTION 66A OF THE INFORMATION TECHNOLOGY ACT 2000

VIOLATES ARTICLE 14, ARTICLE 19(1)(A) AND ARTICLE 21 OF INDIAN
CONSTITUTION?

3,A Section 66A of IT Act, 2000 violates Article 14

3.B Section 66A of the IT Act, 2000 violates Article 19(1)(a)
3.C Section 66A of the IT Act, 2000 violates Article 21

ISSUE 4: WHETHER THERE IS ANY SUBSTANTIAL QUESTION OF LAW IN

THE ORDER OF THE HONOURABLE HIGH COURT OF NITHISTHAN?

4.A Abuse of process in the matter of arrest and filing FIR against Sumali
4.B Section 66A of IT Act 2000 violates Article 14,Article 19(1)(a)

and Article 21 of The Constitution of India

PRAYER

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LIST OF ABBREVIATIONS

ABBREVIATION FULL FORM

AC Appeal Cases

AIR All India Reporter

All. Allahabad

All ER All England Law Reports (United Kingdom)

Cr.L.J Criminal Law Journal

FIR First Information Report

Gau. Guwahati

HL House of Lords

I.T.O Income Tax Officer

Ker. Kerala

Ori. Orissa

Para. Paragraph

SCALE Supreme Court Almanac

SC Supreme Court

SCC Supreme Court Cases

SCJ Supreme Court Journal

SCR Supreme Court Reporter

SCW Supreme Court Weekly

Supdt. Superintendent

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LIST OF AUTHORITIES

A.CASES

1. Mohan Lal Magan Lal Thacker v. State of Gujarat, AIR 1968 SC733

2. Saiffuddin v. State of Bombay, AIR 1958 SC 253

3. Prem Chand Satramdas v. State of Bihar, AIR 1951 sc14

4. Amar Nath and Others v. State of Haryana, 1977 AIR 2185;1978 SCR(1)222

5. State of Haryana v. Bhajan Lal, 1992 AIR SCW 237

6. Arbind v. Nand Kishore, AIR 1968 SC 1227

7. Vishaka v.State of Rajasthan, AIR 1997 SC 3011

8. Sunil Batra(I) v. Delhi Administration 1978 AIR 1675

9. S.N. Palanitkar v.State of Bihar, AIR 2001 SC 2960

10. State of Haryana v. Ch.Bhajan Lal, AIR 1992 SC 2042;1992 CrLJ 527(SC)

11. Kali Charan Mohapatra v. Srinivas Sahu, 1960 CrLJ 97; AIR 1960 Ori.65

12. Kedarnath Singh v. State of Bihar, (1962) 2Crlj 103; AIR 1962 SC 955

13. Omkar Lal Bajaj v.Union of India, AIR 2003 SC2562

14. Samdeep Varghese v. State of Kerala

15 .State of Haryana v. Bhajan Lal,AIR 1992 SCW 237

16. R.P.Kapur v. The State of Punjab, AIR 1960 SC 86

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18. State of Haryana v. Ch.Bhajan Lal, AIR 1992 SC 2042; 1992 CrLJ 527 (SC)

19. State of Gujarat v. Mohanlal Jitamalji Porwal ,AIR 1987SC1321

20. State of West Bengal v. Swapan Kumar Guha , AIR 1982 SC949

21. State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC2042; 1992 CrLJ 527 (SC)

22. Makhan Singh v. State of Punjab, (1950) SCR 88; AIR 1950 SC 27

23. Pushkar v.State of West Bengal, AIR 1970 SC 852

24. Prabhu Dayal Deorah v. The District Magistrate,Kamrup& Others

25. R.P.Kapur v. The Stste of Punjab, AIR 1960 SC 866

26. Joginder Kumar v. State of UP, 1994 AIR 1349,;1994 SCC (4) 260

27. Lalkamendra Pratap Singh v. State of Uttar Pradesh,(2009) 4 SCC 437

28. Vimalabai , A 1946 PC 123

29. Dinkarrao Rajaram Pant v. State of Maharashtra ,(2003) 105 BOMLR 302

30. Omkar Lal Bajaj v. Union of India ,AIR 2003 SC 2562

31. Bannari Amman Sugars Ltd v. CTO, (2005)1 SCC 625

32.Style (Dress Land) v. Union Territory , Chandigarh ,AIR 1999 SC

3678 38.Dwarkadas Marfatia & Sons v. Board of Trustees,

Bombay Port, AIR 1989 SC 1642

39. Kajal Dey v. State of Assam ,1989 CrLJ 1209 (Gau)

40. State of Rajasthan v. Bhera, 1997 CrLJ 1237

41. Kartick-A 1932 P 171;Appaswamy, 47 M 442

42.State of Bihar v. Sharma ,AIR 1991 SC 1260

43. Kathi Raning v. State of Saurashtra ,1952 SCR 435

44. Bhagat Ram v. State of Himachal Pradesh, AIR 1983 SC 454

45. State of Madhya Pradesh v. Mandavar ,AIR 1955 SC 493

46. Javed v. State of Haryana, AIR 2003 SC 3057

47.A.K.Roy v. Union of India, (1982) 1 SCC 271; AIR 1982 SC 710

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48.State of Uttarpradesh v. Kartar Singh , AIR 1964 SC 1135

49. Netai Baig v. State of W.B,(2000) 8 SCC

50.Sudhir Chandra v. Tata Iron and Steel Co.Ltd, AIR 1984 SC 1064

51. Maneka Gandhi v. Union of Indhia (1978) 2 SCJ at 350

52. Naraindas v. S tate of Madhya Pradesh ,AIR 1974 SC 1232

53. Suraj Mall v. Vishwanatha, (1955) 1 SCR 448

54. Himmat lal K.Shan v. Commr. Of Police, (1973) 1 SCC 227

55.B.B Rajwanshi v. State of UP,AIR 1988 SC 1089

56. Life Insurance Corporation of India v.Manubhai D. Shah, AIR 1993 SC 171

57.Union of India v. Motion Pictures Association, AIR 1999 SC 2334

58.Senior Supdt v. Izhar, AIR 1989 SC 2262

59. Ghosh v. Joseph, AIR 1963 SC 812

60. B.B.Rajwanshi v. State of UP, AIR 1988 SC 1089

61. Maneka Gandhi v. Union of India, AIR 1978 SC 597

62. Sakal Papers v. Union of India, AIR 1962 SC 305

63. Kameshwar v. State of Bihar, AIR 1962 SC 1166

64. Javeed v. State of Haryana, AIR 2003 SC 3057

65. Ramji Lal v. State of U.P, AIR 1957 SC 620

66. Pathunma v. State of Kerala, AIR 1978 SC 771

67. Chintamanrao v. State of MP, (1950) SCJ 571

68. Papnasam Labour Union v. Madura Coats Ltd, AIR 1995 SC 2200

69. Inderjeet v. State of UP, AIR 1979 SC 1867; (1990) 1 SCR 255

70. Express Newspapers (P) Ltd v. UOI, AIR 1986 SC 872

71. Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118

72. Krishnan. S v. State of Madras, AIR 1951 SC 301

73. Arunachala Nadar M C v. State of Madras, AIR 1950 SC 300

74. Superintendent Central Prison v. Ram Manohar Lohia ,AIR 1960 SC 633
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75. O.K Ghosh v. E.X.Joseph, AIR 1963 SC 812

76. Javali V.K (Dr)v. State of Mysore, AIR 1966 SC 1387

77. Baumgartner v. U.S (1944) 322US 665

78. Laxmi Khandsari v. State of UP, AIR 1981 SC 873

79. Sakal Papers v. UOI, (1962) 3 SCR 842

80. Chintamanrao v. State of MO, (1950) SCJ 571

81. K.A .Abbas v. UOI, AIR 1973 SC 123

82. Collector of Custom v. Nathella Sampathu Chetty, AIR 1962 SC 316

83. Prem Chand v. UOI, (1981) CrLJ

84.Romesh Thappar v. State of Madras , AIR 1950 SC 124

85. Romesh Thappar v. State of Madras, AIR 1950 SC 124

86. Harakchand v. UOI, AIR 1970 SC 1453

87.Bridges v. California ,(1941) 314 US 252

88. Duda v. Shiv Shankar , AIR 1988 SC 190

89. Romesh Thappar v. State of Madras, AIR (1950) SCR 694 (602)

90. Superintendent v. Ram Manohar , AIR 1960 SC 633

91. Anand Patwardhan v. UOI, AIR 1997 Bom 25

92. B.Banerjee v. Anita Pan, AIR 1975 SC 1146

93. Confederation of Ex- serviceman Association v. UOI, (2006) 8 SCC 399

94. Ozhair Hussain v. UOI ,AIR 1992 SC 1858

95.Francis Coralie Mullin v. Administrator,Union territory of Delhi,(1981)2 SCR

516
96.Ammini E.D V. UOI, AIR 1995 Ker 252

97. Indian Drug and Pharmaceuticals v. Workmen ,(2007) 1 SCC 301

98.Peoples Union of Civil Liberties v. UOI, AIR 1997 SC 568

99. State of Mharashtra v. Chandrabhan, AIR 1983 SC 803

100. Hussainara v. Home Secretary, AIR 1979 SC 1360

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101.Indian Drug and Pharmaceuticals v. Workmen, (2007) 1 scc 408

102. State of West Bengal v. Ashok Dey ,AIR 1972 SC 1660

103. Maneka Gandhi v. UOI, AIR 1978 SC 597

104. Haradhan Shah v. State of West Bengal , (1975) 3 SCC 731

105. District Registrar and Collector , Hyderabad v. Canara Bank

106.Maneka Gandhi v. UOI, AIR 1978 SC 597

107. Kartar Singh v. State of Punjab, (1994)3 SCC 569

108. Dilip Kumar Sharma v. State of Madhya Pradesh , AIR 1976 SC 133

109. Seksaria Cotton Mills v. State of Bombay , AIR 1953 SC 278

110. Avais v. Hartford Social Club Ltd, (1969) 1 All ER 130(HL)

111.Bachan Singh v. State of Punjab, (1980) 2SCC 84

112.Bachan Singh v. State of Punjab, AIR 1980 SC 898

113. Hussainara v. Home Secretary , AIR 1979 SC 1360

114. Francis Coralie Mullin v. Administrator , Union Territory of Delhi ,(1981)2 SCR 516

115.Ammini E.D v. UOI, AIR 1995 Ker 252

116. Indian Drug and Pharmaceuticals v. Workmen, (2007) 1 SCC 408

B. BOOKS REFFERED

1.Garner, Brayan A , Black’s Law Dictionary,(7th edition,1999), West Group

2.Nelson R A, Sarvaria S.K, Indian Penal Code, 9th edition, Volume 4, Lexis Nexis
Butterworths
3.Rathanlal and Dhirajlal, The Indian Penal Code, 29TH Edition, Wadhwa and
Company Nagpur
4.Gupta , A Part Commentary on Information Technology Act, 2nd edition, 2011
5.Pranesh Prakash, Comments on the Draft Rule under the Information
Technology Act(July 28, 2009)

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STATEMENT OF FACTS

Nithisthan is a State in the Indian Union. Acharya Sukh Dev was a spiritual figure,
mystic, choreographer, philanthropist and educator. During late 1990s there was a
movement led by the atheist group, known as Indian Rationalists, against the activities of
Acharya Sukh Dev. Accusations leveled against Acharya include everything from sexual
abuse, money laundering fraud in the performance of service projects, to murder.

The Acharya and his followers consistently denied the charges of misconduct, which
were never proved. Devotees generally responded to allegations, such a as those of sexual
misconduct, with outright denial, asserting that former followers were vindicative and not
reputable. However Indian Rationalists started to propagate the allegations against
Acharya through public meetings. The movement led to frequent clashes between the
followers of Acharya and Indian Rationalists. In the year 2011 itself there were 1118
reported incidents of such clashes.

On 10-10-2012 Acharya died in a car accident. On 11-10-2012 the followers of Acharya

had called for a bandh in the capital city to mourn the death of Acharya Sukh Dev. On
11-10-2012 one Sumali, who was a fourth year LL.B student entered the following
comments in her Facebook “People like Acharya Sukh Dev are born and die daily and
one should not observe a bandh for that,” “Respect is earned, not given and definitely not
forced. Today Dharmapur shuts down due to fear and not due to respect”.

On 12-10-2012 around 6.pm police arrested Sumali on the bass of a complaint filed by
one Jan Dev stating that the Facebook comment of Sumali is a criminal offence under
section 505 of Indian Penal Code read with section 66A of Information Technology Act
2000. On 13-10-2012 around 4.30pm she was produced before the Magistrate. In the First
Information Report it is stated that her action is a criminal offence under section 505 of
Indian Penal Code read with 66A of the Information Technology Act 2000. Magistrate
granted bail to her.

On 1-11-2012 Sumali filed a petition before the High Court of Nithisthan under section
482 of the Code of Criminal Procedure 1973 for quashing the F.I.R. On 2-11-2012
Sumali filed another petition under Article 226 of the Constitution of India challenging
the validity of section 66A of the Information Technology Act 2000 on the ground of
violation of Article 14, Article 19(1)(a) and Article 21 of the Indian Constitution. The
Division Bench of High Court heard both the petitions together and dismissed the two
petitions filed by Sumali, through the Order dated 30-11-2012.

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However, on the basis of the application filed by Sumali under Article 134A of the Indian
Constitution the leave to file appeal under Article 133 of the Indian Constitution was
granted by the High Court. On 10-12-2012 Sumali filed an appeal under Article 133 of
the Indian Constitution challenging the decision of the Nithisthan High Court dated 30-
11-2012.
The following contentions are raised by Sumali.
A. Abuse of process is involved in the matter of the arrest of Sumali and filing of
FIR.
B. Section 66A of the Information Technology Act 2000 violates Article 14, Article
19(1)(a), Article 21 of the Indian Constitution.
On behalf of the State of Nithisthan all the contentions are refuted and submitted that
findings of High Court regarding the quashing of FIR could not be the subject matter
of appeal under Article 133 of the Indian Constitution.

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STATEMENT OF JURISDICTION

The Honourable Supreme Court is vested with jurisdiction, to hear the present
matter under Article 133 and Article 134 A of the Constitution of India.

Article 133: Appellate jurisdiction of Supreme Court in appeals from High

Courts in regard to civil matters

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final

order in a civil proceeding of a High Court in the territory of India if the High
Court certifies under Article 134A

a) that the case involves a substantial question of law of general importance;

and
b) that in the opinion of the High Court the said question needs to be

decided by the Supreme Court

(2) Notwithstanding anything in Article 132, any party appealing to the

Supreme Court under clause (1) may urge as one of the grounds in such
appeal that a substantial question of law as to the interpretation of this
Constitution has been wrongly decided.

Article 134 A: Certificate for appeal to the Supreme Court

Every High Court, passing or making a judgment, decree, final order, or

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sentence, referred to in clause (1) of Article 132 or clause (1) of Article 133, or
clause (1) of Article 134

(a) may, if it deems fit so to do, on its own motion; and

(b) shall, if an oral application is made, by or on behalf of the party aggrieved,

immediately after the passing or making of such judgment, decree, final order

or sentence, determine, as soon as may be after such passing or making, the

question whether a certificate of the nature referred to in clause (1) of Article

132, or clause (1) of Article 133 or, as the case may be, sub clause (c) of clause

(1) of Article 134, may be given in respect of that case.1

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ISSUES RAISED

ISSUE 1:

Whether Article 133 of Indian Constitution has a Jurisdiction of Criminal

Appeal?

ISSUE 2:

Whether There Was Abuse of Process in the Matter of Filing F.I.R Against
Sumali?

ISSUE 3:

Whether Section 66 A of The Information Technology Act 2000 Act Violates

Article 14, Article 19(1)(A) and Article 21 of the Constitution?

ISSUE 4:

Whether There Is Any Substantive Question of Law in the Order of the

Honourable High Court of Nithisthan

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SUMMARY OF ARGUMENTS

issue 1: whether Indian Constitution has a Jurisdiction of

Criminal Appeal?

It is humbly submitted on behalf of the counsel for the Petitioner that the
dismissal of the petitions filed by Sumali by the High Court is a final order
within the meaning of Article 133 of the Constitution. Furthermore,
fundamental rights are civil rights and the enforcement of the same amounts to a
civil proceeding within the meaning of Article 133. The abuse of process
involved in manner of filing a FIR and arrest is violative of Article 14 and
hence, the present appeal is a civil proceeding. Lastly, the case involves a
substantial question of law of general importance as it is pertinent to decide the
constitutional validity of Section 66A of the Information Technology Act.

Issue 2: Whether There Was Abuse of Process in the Matter of Filing F.I.R
Against Sumali?

It is humbly submitted on behalf of the counsel for the Petitioner that the
authority of the court exists for advancement of justice and the court has power
to prevent abuse of process, if any. The allegations made in the FIR, even if
they are taken at their face value & accepted in their entirety, do not prima facie
constitute any offence or make out a case against the Petitioner. The comments
posted by the Petitioner on her Facebook page do not satisfy the ingredients of
Section 505 of IPC and Section 66A of Information Technology Act. There is
abuse of Process in the matter of investigation conducted by the Police under
Section 156(1) and Section 157 & arrest of Sumali under Sections 41 and 157 of
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the Cr.P.C as it was conducted in bad faith. Thus, the Court should quash the
FIR and the subsequent proceedings.

Issue 3: Whether Section 66 A of The Information Technology Act 2000 Act

Violates Article 14, Article 19(1)(A) and Article 21 of the Constitution

It is humbly submitted on behalf of the counsel for the Petitioner that Article 14
confers to all citizens the equality before law and equal protection of law. If a
law is arbitrary or irrational it would fall foul of Article 14. Article 66 A of the
Information Technology Act is Arbitrary, Vague and Unreasonable. It covers all
data that is transmitted through any computer resource. This coupled with
extremely wide meaning terms, such as annoyance, inconvenience etc. gives a
tremendous handle in the hands of the authorities. When a statute vests
unguided and unrestricted power in an authority, it would be affected by the
vice of discrimination. Also, where statutory provision is plainly in violation of
Article14, having conferred unguided and unfettered power on the executive,
the Court cannot uphold its constitutionality. Hence, it is submitted that Article
66 A should be declared unconstitutional.
Article 19(1) (a) guarantees to all citizens the freedom of speech and expression,
subject to reasonable restrictions under Article 19 (2). A restriction is
unreasonable if it sweeps within its ambit activities which constitute a legitimate
exercise of freedom of speech. 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 of the persons keeping in
mind the purpose they were intended to serve. It must not be arbitrary or of an
excessive nature. Article 66 A does not have a “direct and proximate nexus” to
its object i.e. attaining public order. If at all, the relation is conjectural, far-
fetched and hypothetical in nature. A law affecting Fundamental Right can be
held to be invalid the sheer ground of vagueness and uncertainty. If the scope of
an Act is very wide, it leads to vagueness. Also, Article 66 A does not satisfy the
“Clear and Present Danger” Test i.e. that the act, if allowed, would really imperil
public order. Causing annoyance or inconvenience can never imperil public
order directly. Hence, it is humbly submitted that Article 66 A should be
declared unconstitutional.
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The right to life includes the right to carry on such functions and activities
adequate to give expression to human self. A person is entitled to enjoy his
personal rights and to be protected from encroachments on such personal
rights, freedoms and liberties. Article 21 is of the widest amplitude, and it thus
includes the right to socialize with members of one’s family and friends. Article
66 A of the I.T. Act, 2000 takes away the right to socialize as it can make
interactions between individuals also a criminal offence. Where criminal offence
is created, it should be created in clear language. However,the language used
in 66 A is not clear and suffers from ambiguity. Due to this lack of clarity, it does
not contain any definitive ingredients of an offence. Therefore, Article 66 A
should be declared unconstitutional.

Issue 4: Whether There Is Any Substantive Question of Law in the Order

of the Honourable High Court of Nithisthan?

It is humbly submitted on behalf of the counsel for petitioner that there is error
on the order of the Honourable High Court of Nithisthan as there is abuse of
process in the matters of arrest and filing FIR against Sumali, there is abuse of
process in the matter of investigation conducted by the police under section
156(1) and section 157 and arrest of Sumali under Section 41 and 157 of CrPC as
it was conducted in bad faith and Section 66A of the Information Technology Act
2000 violate Article 14 as it confers to all its citizens the right to equality before
la and equal protection of law, Article 19(1)(a) guarantees to all its citizens the
freedom of speech and expression subject to reasonable restrictions under
Article 19(2), and Article 21 which guarantees right to life which includes right to
carry on such functions and activities adequate to give expression to human self.

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ARGUMENTS ADVANCED

Indian Constitution has a Jurisdiction of Criminal Appeal?

1. It is humbly submitted on behalf of the petitioner that the present appeal under
Article 133 of the Constitution is maintainable because [A]; firstly, the order passed
by the High Court not quashing the FIR is a final order [B] secondly, quashing a
F.I.R. for the enforcement of Fundamental Rights is a Civil Proceeding.
A. The Order Passed by the High Court not Quashing the F.I.R is a Final Order.

The conditions for a civil appeal under Article 133 are hereunder:

2. The subject of appeal is a judgment, decree or final order.

3. The High Court grants a certificate for such appeal which is at the discretion of
the High Court that the case is a fit one for decision of the Supreme Court on
appeal, provided, the case involves a ‘substantial question of law’.
When nothing remains to be tried and the rights in dispute between the parties have
already been determined, the order is a final order within the meaning of Article 133
of the Constitution.2 If the decision on an issue puts an end to the proceeding, the
order is undoubtedly a final one.3
An order is a final order if it satisfies the following tests:
4.
It should not be interlocutory.4
5.
That there should be a final determination of the rights of the parties or should of
its own force dispose of the rights of the parties.5
6. The fact that the controversy still remains alive is considered irrelevant.6 An

2
Jethanand & Sons v. State of Uttar Pradesh, AIR 1961 SC 794

3
Mohan Lal Magan Lal Thacker v. State of Gujarat, AIR 1968 SC 733

4
Saifuddin v. State of Bombay, AIR 1958 SC 253

5
Prem Chand Satramdas v. State of Bihar, AIR 1951 SC 14

6
Amar Nath And Others v. State Of Haryana, 1977 AIR 2185 : 1978 SCR (1) 222

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order, though not conclusive of the main dispute may be conclusive as to the
subordinate in respect of which it is issued.
7. It is humbly contended that in the present case, Sumali had filed two petitions
in the High Court for quashing of F.I.R. and challenging the constitutional
validity of Section 66A of Information Technology Act. The High Court had
subsequently dismissed the petitions. This dismissal amounts to a final order
as it was a final decision relating to the rights of Sumali and there was a final
determination of the rights of the parties.

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B. Quashing a F.I.R. for the enforcement of Fundamental Rights is a Civil

Proceeding.

8. Civil rights are the individual rights of personal liberty and include the right of
life, the right of due process and the right of equal protection under law. 7 A
proceeding is civil if it relates to a civil right, and it could cover all proceedings
which directly affect a civil right.8 The Fundamental Rights under Articles 14, 19
and 21 are also inscribed in the International Covenant on Civil and Political
Rights, 1976 listed under Articles 6, 9, 17 and 19.
9. Any International Convention not inconsistent with the fundamental rights and
in harmony with its spirit must be read into these provisions to enlarge the
meaning and content thereof, to promote the object of the constitutional
guarantee. This is implicit from Article 51(c) and enabling power of the
Parliament to enact laws for implementing the International Conventions and
norms by virtue of Article
253 read with Entry 14 of the Union List in Seventh Schedule of the
Constitution.9 In view of the Preamble and Article 51 of the Constitution, which
obligate the State to respect human dignity and foster respect for international
law and obligations, the Courts have a constitutional duty in interpreting
provisions of domestic laws to give due regard to international law and country's
international obligations.10 Hence, it can be inferred that the Fundamental Rights
are Civil Rights within the meaning of ICCPR, 1976.
10.
The police arrested Sumali on the basis of the allegation made by Jan Dev, a
follower of Baba Acharya Sukh Dev. She was a fourth year LLB student and
such arrest is capable of causing harm to her reputation and self-esteem as it was
done with non-application of mind. Therefore, such abuse of process attracts
judicial scrutiny by virtue of a civil appeal for enforcing fundamental rights
which have been transgressed. Furthermore, the High Court of Allahabad has
stated that one of the remedies available for quashing a F.I.R. includes the
appellate jurisdiction under Article 133 of the Constitution. Therefore, this

7
Garner, Bryan A, Black’s Law Dictionary, (7th Ed., 1999), West Group

8
Arbind v. Nand Kishore, AIR 1968 SC 1227
9
Vishaka v. State of Rajasthan, AIR 1997 SC 3011
10
Sunil Batra (I) v. Delhi Administration 1978 AIR 1675
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jurisdiction is correct for quashing of the First Information Report, as being

sought by Sumali.11
11. The condition precedent for the Court to entertain a civil appeal is being
satisfied. The dismissal of the petition is a final order within the meaning
of Article 133.
12. Furthermore, a certificate was granted by the High Court on the basis of the
application filed by Sumali under Article 134A which is the basis of such an
appeal. Therefore, it is humbly contended that the proceedings for enforcing
such civil rights fall in the purview of civil proceedings within the meaning of
Article 133.

C. Determination of Constitutional Validity of Section 66A falls within the purview

ofArticle 133 (2)

13. The case involves a substantial question of law of general importance as it is

pertinent to decide the constitutional validity of Section 66A of the Information
Technology Act, 2000. This is a substantial question of law which involves the
deliberation by the Supreme Court as to the interpretation of the Constitution.

ISSUE 2: Whether there was Abuse of Process in the Matter of Filing F.I.R

Against Sumali?
14. The counsel on behalf of the petitioner humbly submits that [A] firstly, abuse of
process is involved in the matters of the arrest of Sumali and filing of FIR ,[B]
secondly, There is Abuse of Process in the matter of Investigation Conducted by
the Police under Section 156(1) and Section 157 & Arrest of Sumali under
Section 157 of the Cr.P.C ,[C] thirdly, there is abuse of process in the matters of
arrest of Sumali by the police under Section 41 of the CrPC, [D] fourthly, the
court should quash the FIR.
A. There is Abuse of Process in the Matter of Filing FIR Against Sumali

15.The FIR registered against Sumali does not disclose the Commission of a
Cognizable Offence. The FIR gives information of the commission of a

11
Nand Kishore Kanaudia v. State of Uttar Pradesh, 1992 Cr.L.J 953

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 THE KERALA LAW ACADEMY LAW COLLEGE

cognizable crime. It may be made by the complainant or by any other person knowing
about the commission of such an offence. It is intended to set criminal law in motion.
The condition which is sine qua non for recording a first information report is that there
must be information & that information must disclose a cognizable offence before an
officer-in-charge of a police station, satisfying the requirements of S. 154(1). 12 The First
Information Report stated that the Appellant’s action is a criminal offence under Section
505 of the Indian Penal Code read with Section 66A of Information Technology Act
2000. It is submitted before this Hon’ble Court that the allegations made in the FIR, even
if they are taken at their face value & accepted in their entirety, do not prima facie
constitute any offence or make out a case against the Appellant.
a. The accused made, published, or circulated, a statement, or rumour, or report; &
b. He did so with the intent to incite, or which was likely to incite, a class (or
community) of persons to commit an offence against another class or
community.
15. The ingredients of the offences under section 505 of IPC are as

follows:13 If the offence falls u/s. 505(1)(b):

a. The accused made, published or circulated, a statement, rumour, or report;

b. He did so with the intent to cause, or which was likely to cause, fear (or
alarm) to the public (or to a section of the public); &
c. Thereby a person was induced to commit an offence against the: i. State or
ii. Public Tranquillity.
16. If the Offence falls u/s. 505(1)(c):

The Offence falls under section. 505(2):

a. The accused made, published, or circulated, the statement (or report),

containing rumour (or alarming news), in question; &
b. He did so with intent to create, or which was likely to create, feelings of enmity
or ill- will between different religious, racial, language or regional groups or
castes
12
S.N. Palanitkar v. State of Bihar, AIR 2001 SC 2960; State of Haryana v. Ch. Bhajan Lal. AIR 1992 SC 2042 1992 Cr.L.J.
527 (SC)
13
Nelson, R.A. Sarvaria, S.K. Indian Penal Code 9th Edition, Volume 4, LexisNexis Butterworths; Ratanlal &
Dhirajlal, The India Penal Code, 29th Edition, Wadhwa & Company Nagpur

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or communities on grounds of:

i) Religion, ii) Race, iii) Place of Birth, iv) Residence, v) Language, vi) Caste or
community, or on any other ground whatsoever.
The comments posted by the Appellant on her Facebook page do not satisfy the
ingredients of the abovementioned sections as Reading Section 505 along with the
provisions of Article 19(1) & (2) of the Constitution which guarantees to the
Appellant her right of freedom of speech & expression it follows that the legitimate
ventilation of grievance, which some sections of the public may have against the local
authorities should not be checked by initiating a prosecution under Section 505. 14 The
Appellant also did not intend to:

a. cause fear or alarm to the public,

b. to incite, a class or community of persons to commit an offence against

another class or community
c. create, feelings of enmity or ill-will between different religious, racial,
language or regional groups or castes or communities
Therefore, her acts do not fall within the ambit of section 505 of IPC.15
18.
The ingredients of the offence under section 66A of the Information Technology
Act are as follows:16
Section 66A prohibits sending any electronic communication which contains any
information which,
a. is grossly offensive or has menacing character; or
b. the sender knows to be false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity,
hatred or ill will sends; facie offence.17

The High Court should quash an FIR u/s 482 of Cr.P.C if the allegations made in
the FIR even if they are taken at their face value & accepted in their entirety do
not prima facie constitute any offence or make out a case against the Appellant.18

14
Kali Charan Mohapatra v. Srinivas Sahu, 1960 CrLJ 97, AIR 1960 Ori. 65
15
Kedarnath Singh v. State of Bihar, (1962) 2 CrLJ 103; AIR 1962 SC 955
16
Gupta, Apar Commentary on Information Technology Act, 2nd Edition 2011
17
Samdeep Varghese v. State of Kerala; L.K. Jaseer v The State of Kerala; In the High Court of Kerala
18
State of Haryana v. Bhajan Lal, 1992 AIR SCW 237 quoted in Rupan Deol Bajaj v. Kanwar Pal Singh Gill, AIR
1996 SC 309 State of Uttar Pradesh through CBI, Lucknow v. R.K. Srivastava, AIR 1989 SC 2222

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 THE KERALA LAW ACADEMY LAW COLLEGE

In such cases no question of appreciating evidence arises. It is a matter merely of

looking at the complaint or the First Information Report to decide whether the
offence alleged is disclosed or not. In such cases, it would be legitimate for the
High Court to hold that it would be manifestly unjust to allow the process of the
criminal court to be issued against the accused person.19

19. The Allegations made in the FIR are so Absurd & Inherently Improbable based on
which no Prudent Person can ever reach a Just Conclusion that there is Sufficient
Ground for Proceeding

20.
The power under the section 482 of Cr.P.C should be exercised ex debito justitiae
to prevent the abuse of process of the Court as it is meant to advance justice. 20 Where
even remote chance of the prosecution resulting in conviction did not exist, it was held
to be a fit case for interference u/s. 482 of the Cr.P.C. The Supreme Court upheld the
High Court’s order in quashing the F.I.R holding that no case was made out against
the accused even after taking the allegation as correct on its face value.21 When the FIR
& charges give rise to no offence, the Court quashed it because it was an abuse of the
process of the Court.22

21.
The inherent powers under Section 482 of the Cr.P.C are present for the
advancement of justice. Injustice by abuse of process of Court can be prevented by
exercising inherent powers. Such powers have to be used when facts are incomplete or
hazy or no evidence is produced in support of the facts. 23 In exercising jurisdiction
under Section 482 of Cr.P.C. the High Court can quash proceedings if there is no legal
evidence.24 In cases where FIR does not disclose a prima facie offence it is legitimate
for the High Court to hold that it would be manifestly unjust to allow the process of the
criminal Court to be issued against the accused.25

19
R.P. Kapur v. The State of Punjab, AIR 1960 SC 866, Gajendragadkar
20
State of Maharashtra v. Arun Gulab Gawali, AIR 2010 SC 3762 : (2010) 9 SCC 70
21
Dhanwanti Vaswani (Dr.) v. State, AIR 1993 SC 1218 : 1993 CrLJ 52
22
Parminder Kaur v. State of Uttar Pradesh, AUR 2010 SC 840 : (2010) 1 SCC 322 : 1010 CrLJ 895 (SC)
23
Inder Mohan Goswami v. State of Uttaranchal, AIR 2008 SC 251 : (2007) 12 SCC 1
24
Hazari Lal Gupta v. Rameshwar Prasad, AIR 1972 SC 484
25
R.P. Kapur v. The State of Punjab, AIR 1960 SC 866

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B. There is Abuse of Process in the Matter of investigation Conducted by the Police Under Section 156(1) and Section 157 &

Arrest of Sumali Under Section 157 of the Cr.P.C

22. The Conditions Requisite for an Investigation under Section 157(1) are not
satisfied.

The commencement of investigation in a cognizable offence by a police officer is

subject to the following conditions:26

23. The police officer should have reason to suspect the commission of a cognizable
offence as required by S. 157(1).
The expression "reason to suspect" as occurring in Section 157(1) is not qualified as
in Section 41(a) & (g) of the Cr.P.C, wherein the expression, "reasonable suspicion"
is used. Section 157(1) requires the police officer to have reason to suspect only with
regard to the commission of an offence which he is empowered Under Section 156 to
investigate, but not with regard to the involvement of an accused in the crime.
Therefore, the expression "reason to suspect the commission of an offence" would
mean the sagacity of rationally inferring the commission of a cognizable offence
based on the specific articulate facts mentioned in the F.I.R. & any attending. In other
words, the meaning of the expression "reason suspect" to has to be governed &
dictated by the facts & circumstances of each case.27

26
State of Haryana v. Ch. Bhajan Lal. AIR 1992 SC 2042 : 1992 Cr.L.J. 527 (SC)
27
State of Gujarat v. Mohanlal Jitamalji Porwal, AIR 1987 SC 1321

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1. The police officer should subjectively satisfy himself as to whether there is sufficient
ground for entering on an investigation even before he starts an investigation into the
facts & circumstances of the case as contemplated by S. 157(1)(b).
The condition precedent to the commencement of investigation Under Section 157 of the
Code is that the F.I.R must disclose, prima facie, that a cognizable offence has been
committed. The police do not have an unfettered discretion to commence investigation
UnderSection 157 of the Code. Their right of enquiry is conditioned by the existence of
reason to suspect the commission of a cognizable offence & they cannot, reasonably, have
reason so to suspect unless the F.I.R., prima facie, discloses the commission of such
offence.33
Further, clause (b) of the proviso permits the police officer to satisfy himself about the
sufficiency of the ground even before entering on an investigation, it postulates that the
police officer has to draw his satisfaction only on the materials which were placed before him
at that stage, namely the information together with the documents, if any, enclosed.34

1. Clause (b) of the said proviso imposes a fetter on a police officer directing him not to
investigate a case where it appears to him that there is no sufficient ground in entering
on an investigation. In other words, the police officer has to satisfy himself only on the
allegations mentioned in the first information before he enters on an investigation as to
whether those allegations do constitute a cognizable offence warranting an investigation

2. The Investigation conducted by the Police was in Bad Faith. When such a condition
precedent for the exercise of the power is the judgment or opinion or subjective
satisfaction of the person upon whom the power is conferred, the court cannot interfere
with that judgment or opinion or inquire into the propriety of the grounds for forming
such opinion, unless the person or authority exercises the power in bad faith or for a
collateral purpose.35

3. An interference of bad faith may be made where it is shown that there were no
grounds on which was a condition precedent to his exercise of the statutory power.36 Since
no offence is disclosed, an investigation cannot be permitted, as any investigation, in the
absence of any offence being disclosed, will result in unnecessary harassment to a party,
whose liberty & property may be put to jeopardy for nothing. The liberty & property of any
individual are sacred & sacrosanct & the Court zealously guards them & protects them.37

32 State of Gujarat v. Mohanlal Jitamalji Porwal, AIR 1987 SC 1321

33 State of West Bengal v. Swapan Kumar Guha, AIR 1982 SC 949: Chandrachud, C.J. while
agreeing with the judgment of Justice A.N. Sen & Justice Vardarajan
34 State of Haryana v. Ch. Bhajan Lal. AIR 1992 SC 2042 : 1992 Cr.L.J. 527 (SC)
35 Makhan Singh v. State of Punjab, (1950) SCR 88 : AIR 1950 SC 27

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1. Section 157 of the Cr.P.C does not give the Police officers carte blanche Powersdrawing
no Legal Bounds in the Province of Investigation & Arrest. There is no such thing like
unfettered discretion in the realm of powers defined by statutes & unlimited discretion in
that sphere can become a ruthless destroyer of personal freedom. The power to investigate
into cognizable offences must, therefore, be exercised strictly on the condition on which it
is granted by the Cr.P.C38 It is of utmost importance that investigation into criminal
offence must always be free from any objectionable features or infirmities which may
legitimately lead to the grievance of the accused that the work of investigation is carried
on unfairly & with any ulterior motive.39 Denying a person of his liberty is a serious
matter. A person is not liable to arrest merely on the suspicion of complicity in an
offence. There must be some reasonable justification in the opinion of the officer
effecting that such arrest is necessary & justified. Except in heinous offences, an arrest
must be avoided if a police officer issues notice under Section 41 A of the Cr.P.C to
person to attend the Station House & not to leave the Station without permission would
do.40

C.There is Abuse of Process in the matter of Arrest of Sumali by the Police under Section41 of the Cr.P.C

1. In Jogindar Kumar v. State of Uttar Pradesh,41 the Apex Court has issued directions
regarding arrest and has held that an arrest can cause incalculable harm to a person’s
reputation and self-esteem. “No arrest can be made in a routine manner on a mere
allegation of commission of an offence made against a person. It would be prudent for a
police officer inthe interest of protection of the constitutional rights of a citizen and
perhaps in his own interest that no arrest should be made without a reasonable
satisfaction reached after some investigation as to the genuineness and bona fides of a
complaint and a reasonable belief both as to the person’s complicity and eve so as to
the need to effect arrest.” The Court has not expressly said that arrest is not a must in all
cases of cognizable offences.42 In the present case, the Police did not conduct any
investigation into the genuineness and bona fides of the complaint and since the FIR did
not disclose a cognizable offence there was no reasonable belief as to the Appellant’s
complicity and even as to the need to effect arrest.

38 Chandrachud, C.J. in Swapan Kumar Guha's case affirming view of Mathew, J in Prabhu Dayal Deorah v. The
District Magistrate, Kamrup & Ors. & Raj Kumar Deorah v. The District Magistrate & Ors. AIR 1974 SC 183
39 R.P. Kapur v. The State of Punjab, AIR 1960 SC 866
40Joginder Kumar v. State Of Uttar Pradesh, 1994 AIR 1349, 1994 SCC (4) 260
41 AIR 1994 SC 1349

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 THE KERALA LAW ACADEMY LAW COLLEGE

1. Arrest of Sumali under Section 41 of CrP.C. was not justified. The burden is on the police
officer to satisfy the court before which the arrest is challengedthat he had reasonable
grounds of suspicion.43 In M.C. Abraham v. State of Maharashtra44, the Supreme Court has
observed that Police Officer was not expected to act in a mechanical manner and in all cases
to arrest the accused as soon as the report is lodged. In appropriate cases, after some
investigation, the Investigating Officer may make up his mind as to whetherit is necessary to
arrest the accused person. Since the power to arrest was a discretionary one, a Police Officer
is not always bound to arrest an accused even if the allegation against him was of having
committed a cognizable offence. Since an arrest was in the nature of an encroachment on
the liberty of the subject and does affect the reputation and status of the citizen, the power
has to be cautiously exercised. It depends upon the nature of the offence alleged and the
type of persons who are accused of having committed the cognizable offence. 45

1. The Appellant’s Right to Equality under Article 14 has been Violated. The non-application of
mind is a facet of arbitrary exercise of power.46

2. Where a particular mode is prescribed for doing an act & there is no impediment in adopting
the procedure, the deviation to act in a different manner which does not disclose any
discernible principle whichis reasonable in itself shall be labelled or arbitrary. Every State
action must be informed by reason & it follows that an act uninformed by reason is per se
arbitrary.47 “Non-arbitrariness, being a necessary concomitant of the rule of law, it is
imperative that all actions of every public functionary in whatever sphere must be guided by
reason & not humour, whim, caprice or personal predilections of the persons entrusted with
the task on behalf of the state & exercise of all powers must be for public good instead of
being an abuse of power.”48Any
action that is arbitrary must necessarily involve the negation of quality. Abuse of power is hit

42 Lalkamendra Pratap Singh v. State of Uttar Pradesh, (2009) 4 SCC 437

43 Vimlabai, A 1946 PC 123; Shearer, 1914 AC 808
44 2002 (9) Scale 769 : 2003 (1) Supreme 126
45 Dinkarrao Rajaram Pant v. State of Maharashtra; (2003) 105 BOMLR 302
46 Omkar Lal Bajaj v. Union of India, AIR 2003 SC 2562
47 Bannari Amman Sugars Ltd. V. CTO, (2005) 1 SCC 625
48 Style (Dress Land) v. Union Territory, Chandigarh, AIR 1999 SC 3678; Dolly Chanda v. Chairman, JEE, AIR 2004
SC 5043

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by Article 14.49 Whenever there is arbitrariness in state action, Article 14 springs to life &
judicial review strikes such an action down.50 The power to arrest under this section shall not
be exercised arbitrarily violating dignity and the liberty of an individual.51 The power of
arrest under Section 41 of the Cr.P.C given to the police is not absolute and is not to be
exercised in arbitrary manner, but judiciously.52 When an arrested person is told that it is
done under a particular authority and it turns out thatauthority is wanting; it cannot be
validated by saying that the police had authority to arrest under Section 41 of the Cr.P.C.53

D. The Court should Quash the FIR

1. The Court can interfere where the investigation is the ensuing prosecution has been
initiated on extraneous considerations or for some purpose other than the detection
and punishment of a crime.54 In the present case since the FIR does not establish a
prima facie offence & there is no evidence to support the allegations that the Appellant
has committed the offence under Section 505 of the Indian Penal Code read with Section
66A of Information Technology Act 2000. The Police action was not informed with
reason & it is also clear that there was non- application of mind on their part during the
registering of FIR under section 154 as well as arrest under section 157(1) read with
section 41 & the investigation under section 157 of Cr.P.C. Therefore there has been
abuse of process in the matter of the arrest of Sumali & filing of FIR which therefore,
should be quashed

ISSUE 3: SECTION 66A OF THE INFORMATION TECHNOLOGY ACT 2000 ACTVIOLATES

ARTICLE 14, ARTICLE 19(1) (A) AND ARTICLE 21 OF
THECONSTITUTION

The counsel on behalf of the petitioner humbly submits that [A]; firstly, Section 66A of the
Information Technology Act 2000 violates Article 14 of the Constitution of India, [B];
secondly, Section 66A of the Information Technology Act 2000 violates Article 19(1)(a) of
the Constitution of India, [C]; thirdly Section 66A of the Information Technology Act 2000
violates Article 21 of the Constitution of India.

49 Suresh Chandra Sharma v. Chairman, UP SEB, AIR 2005 SC 2021

50 Dwarkadas Marfatia & Sons v. Board of Trustees, Bombay Port, AIR 1989 SC 1642
51 Kajal Dey v. State of Assam, 1989 CrLJ 1209 (Gau.)
52 State of Rajasthan v. Bhera, 1997 CrLJ 1237
53 Kartick – A 1932 P 171; Appaswamy, 47 M 442

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34.State of Bihar v. Sharma AIR 1991 SC 1260; Sharma Bipen, AIR 1970 SC SC 786

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 THE KERALA LAW ACADEMY LAW COLLEGE

A. Section 66A of the Information Technology Act 2000 Act violates Article 14

1. Section 66A of the Information Technology Act 2000 violates arbitrary, vague,
unreasonable. When one sends either by means of a Computer, Computer System,
Computer Network or using Mobile Phone, Smart Phone, iPhone, iPad, Tablet, Smart
Devices, BlackBerry or any other communication devices,55 any information, i.e. data,
message, text, images, sound, voice, codes, computer programmes, software and
databases or micro film or computergenerated micro fiche,56 one can be brought under
the purview of Section 66A. Section 66(A)in its current form fails to define the categories
mentioned in it, which has led to inconsistent and arbitrary use of the provision.

1. In the case of 66(A), interpreting it to include any form of communication transmitted

using computer resource or communication device renders it to be absurd and arbitrary. It
is so vast that is gives a tremendous handle in the hands of the complainant and the police
to target anyone. Section 66A applies only to online communications. So a speech which
can be considered legal in physical communications such as pamphlets or in addressing
public gatherings can be called “illegal” simply because it is published online. While
abusing a person who is physically present is not a crime, if someone abuses a person
over phone or an electronic device, it is a crime as per section 66A. It is a logically
inconsistent section. There is no objective criterion laid down about what is offensive.

1. 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.57 If a law is arbitrary or irrational it would fall foul of Article
14. As an example thereof, it has been held that any penalty disproportionate to the
gravity

55 Section 2(1)(ha) & Section 2(1)(k) of The Information Technology Act, 2000
56 Section 2(1)(v) of The Information Technology Act, 2000
57 Kathi Raning v. State of Saurashtra, 1952 SCR 435

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of the misconduct would be violative of Article 14.58 When a statute is impugned under
Article 14,a statute upon a similar subject deriving its authority from another source can be
referred to,59 and the extent to which it is not unconstitutional.60
1. “The formulation of definitions cannot be a panacea to the evil of vagueness and
uncertainty.The impossibility of framing a definition with mathematical precision cannot
either justify theuse 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.” The expressions “acting in any
manner prejudicial to the maintenance of supplies andservices essential to the
community” and was held as capable of being abused and was struck down for
vagueness and uncertainty. It was further held that expression “services essential to the
community” also required a prior enumeration of the services considered essential to
the community of people have to be warned if new categories are to be added to the list
of services which are commonly accepted to as being essential to the community.61
2. The requirement that crimes must be defined with appropriate definiteness is regarded
as a fundamental concept in criminal law and is regarded as a pervading theme of the
Constitutionsince the decision in Maneka Gandhi v. Union of India.62 The underlying
principle is that every person is entitled to be informed as to what the State commands
or forbids and that the life and liberty of a person cannot be put in peril on an ambiguity
3. Section 66A of the Information Technology Act 2000 vests Unguided and
UnfetteredPower on the Executive and is thus Arbitrary & Discriminatory.
4. If the standard laid down by law is unreasonable or arbitrary, then law may be struck
down asdiscriminatory.63 The Executive Government or its officers cannot be allowed to
possess
arbitrary powers over the interest of the individual. Every action of the Government must be
in conformity with reasons and should be free from arbitrariness.64 In Sudhir Chandra
v.Tata

58 Bhagat Ram v. State of Himachal Pradesh, AIR 1983 SC 454

59 State of Madhya Pradesh v. Mandavar, AIR 1955 SC 493; Bar Council, Uttar Pradesh v. State of Uttar
Pradesh, AIR 1973 SC 231
60 Javed v. State of Haryana, AIR 2003 SC 3057
61 A.K. Roy v. Union of India, (1982) 1 SCC 271 : AIR 1982 SC 710
62 (1978) 2 SCJ
63 State of Uttar Pradesh v. Kartar Singh, AIR 1964 SC 1135; A.P. Grains & Seeds merchants Association v. Union
of India; AIR 1971 SC 1986

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64 Netai Baig v. State of W.B., ( 2000) 8 SCC

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Iron and Steel Co. Ltd., 65, the Supreme Court has observed: “Absolute discretion
uncontrolled by guidelines which may permit denial of equality before law is the antithesis of
rule of law.”

1. Bhagwati, J., has enunciated the principle in Maneka Gandhi66 as follows: “When a
statute vests unguided and unrestricted power in an authority to affect the rights of
person without laying down any policy or principle which is to guide the authority in
exercise of this power,it would be affected by the vice of discrimination since it would
leave it open to authority to discriminate between persons and things similarly situated.”
2. The Supreme Court can strike down any conferment of discretionary power on an
authority ifit’s too broad, sweeping or uncanalized. The Supreme Court has laid down
the applicable principle in the words in Naraindas v. State of Madhya Pradesh,67 “If
power conferred by statute on any authority of the State if vagrant and unconstitutional
and no standards or principles are laid down by the statute to guide and control the
exercise of such power, the statute would be violative of the equality clause.” The
legislature while enacting a special lawfor dealing with a special problem may authorise
the Executive at its unguided option, to proceed against a person either under a special
law or under the general law which would otherwise have been applicable. In such
cases, even though the enactment of the special law may be justified as reasonable
classification, the conferment of arbitrary power upon the Executive to apply either the
general law or more stringent special law to persons who may have committed identical
acts must be held to offend equal protection.68
3. Rule 7 framed under the Bombay police Act was held to be arbitrary and discriminatory
sincethe rule did not give any guidance.69 Where statutory provision is plainly in
violation of Article 14, having conferred unguided and unfettered power on the
executive Court cannot uphold its constitutionality by reading into it the validating
requirements which is lacking.70 Unguided discretion in a Rule cannot be cured by
supplying guidelines

65 Sudhir Chandra v. Tata Iron and Steel Co. Ltd., AIR 1984 SC 1064
66 Maneka Gandhi v. Union of India (1978) 2 SCJ at 350
67 Naraindas v. State of Madhya Pradesh, AIR 1974 SC 1232
68 Suraj Mall v. Vishwanatha (1955) 1 SCR 448; Khan Chand v. State of Punjab (1974) UJSC 66
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69 Himmat Lal K. Shan v. Commr. of Police, (1973)1 SCC 227

70 B.B Rajwanshi v. State of U.P, AIR 1988 SC 1089

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in supplementary executive instructions71. Similarly when a statutory provision is plainly

violative of Article 14having conferred unguided and unfettered power on the executive, the
Court cannot uphold its constitutionality by reading into it the validity requirements it
lacked.72
B. Section 66A of the Information Technology Act, 2000 Act violates Article 19(1)(a)
1. Article 19(1) (a) guarantees to all citizens the freedom of speech and expression. This
righthas characterised this right as a ‘basic human right’.73 “Free speech is the
foundation of ademocratic society. A free exchange of ideas, airing of different
viewpoints, forming one’sown view points and expressing them, are the basic ideals of
free society. This freedom alonemakes it possible for people to formulate their own views
and opinions.”74 In Maneka Gandhi v. Union of India,75 the Supreme Court observed
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.” Previously, the only way an ordinary
citizen could express her views in the mediawas through a letter to the editor. Now, with
the advent of social media websites, a citizencan reach out on a much wider platform
with as much as a click. On October 3rd, 2012, Facebook recorded 1 billion users i.e. the
same as the entire world population in 1804. 2011 was the year of the Arab Spring. Long
ensconced dictators fell like nine pins across the Arab world. The domino effect of the
revolutions in the Middle East was attributed to the new social media, in particular,
Facebook and Twitter which enabled the translation of ideas shared in cyberspace to
real life action on the ground. This was regarded as something of a miracle a bloodless
revolution within a matter of a few months, something that previous generations could
not dream of. This trend blurs the traditional boundaries between the journalist and his
audience it enables the ordinary citizen who lacks media connections to reach out to an
audience. It is submitted, therefore, that it is very important that such transmission of
thought is never hindered. However, certain restrictions are laid down

71 Senior Supdt v. Izhar AIR 1989 SC 2262

72 B.B Rajwanshi v. State of U.P, AIR 1988 SC 1089
73 Life Insurance Corporation of India v. Manubhai D. Shah, AIR 1993 SC 171
74 Union of India v. Motion Pictures Association, AIR 1999 SC 2334
75 Maneka Gandhi v. Union of India AIR 1978 SC 597

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in Article 19(2). These restrictions are exhaustive76 and are to be strictly construed.77 Thus,
the Court must strike down any law which imposes a restriction upon the freedom of speech
or expression unless it falls under directly under any of the grounds specified in Article
19(2).78
1. Section 66A of the Information Technology Act, 2000 is not “reasonable”

The requirement of “reasonableness” runs like a golden thread through the entire fabric of
Fundamental Rights.79 A restriction is unreasonable if it sweeps within its ambit activities
which constitute a legitimate exercise of freedom of speech and expression,80 or the
restriction is in excess of what was necessary to suppress or prevent the social mischief
aimedat.81The 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 oris an arbitrary
abridgement of the freedom guaranteed by the Article under the cloak of any ofthe
exceptions.82 In Papnasam Labour Union v. Madura Coats Ltd.83, the Supreme Court has
stated that the following principles and guidelines should be kept in view while considering
the constitutionality of a statutory provision: The restriction must not be arbitrary or of an
excessive nature; there must be a direct and proximate nexus between the restriction imposed
and the object sought to be achieved; No abstract or fixed principle can be laid down which
may have universal application in all cases.Also, it has been held that any legislation would
be an unreasonable restriction within the purview of Article 19 if the punishment is too harsh
in the present-day social background, in relation to the offence committed.84 It is humbly
submitted that, in the instant case, Article 66A sweeps within its ambit activities which
constitute a legitimate exercise of freedom of speech and expression. It covers categories
such as annoyance, inconvenience, obstruction and insult which
76 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
77 Ghosh v. Joseph, AIR 1963 SC 812
78 Kameshwar v. State of Bihar, AIR 1962 SC 1166
79 Javeed v. State of Haryana, AIR 2003 SC 3057
80 Ramji Lal v. State of Uttar Pradesh, AIR 1957 SC 620
81 Pathunma v. State of Kerala AIR 1978 SC 771
82 Chintamanrao v. State of MP, (1950) SCJ 571
83 Papnasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200
84 Inderjeet v. State of Uttar Pradesh, AIR 1979 SC 1867 : (1990) 1 SCR 255

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do not and cannot fall within the ambit of the restrictions enumerated in Section 19(2). Also,
the punishment may extend to imprisonment for 3 years: which is excessive for violations
such as causing annoyance or inconvenience. Hence, Article 66A is not reasonable and hence
should be struck down as unconstitutional
1. Restriction imposed does not satisfy the “Test of Proportionality”:

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. 85 It must
not be arbitrary or of an excessive nature. Legislation which arbitrarily or excessively
invadesthe Fundamental Right cannot be said to contain the quality of reasonableness.86 By
proportionality, we mean the question whether while regulating exercise of fundamental
rights, the appropriate or least restrictive choice of measures has been made by the
Legislature so as to achieve the purpose of the Legislation.87It is humbly submitted,
therefore,that Section 66A does not satisfy the “Test of Proportionality”. However, the there
is no reason why the same acts should be punishable under the IT Act. It is, therefore,
submitted that Article 66A of the
I.T. Act violates Section 19(1) (a) of the Constitution as itof 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.
The Constitution which leans in favour of liberty of people should be adopted in preference
to one that curtails liberty.88
1. Restriction imposed does not have a “direct and proximate nexus” to the object soughtto
be achieved:

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

85 Express Newspapers (P) Ltd. v. Union Of India, AIR 1986 SC 872

86 Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118
87 Ibid
88 Krishnan S. v. State of Madras; AIR 1951 SC 301

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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 connection89 or nexus with
public order, but not one which is far-fetched, hypothetical, problematic or too remote.90 A
restriction can be said to be in the interests of public order only if the publicorder is
proximate and direct. Indirect or far-fetched or unreal connection between the restriction and
public order would not fall within the purview of reasonable restriction.91
1. It was held in Javali v. State of Mysore,92 that an “expression of opinion” by a
Government servant or any citizen for that matter on a certain controversy, without
more, cannot rationallybe said to lead to any disturbance of public order.93 The
impugned legislation (Section 66A), however, could be used to bring mere “expression of
opinion” under its ambit. The right to criticize public men and measures is not confined
to informed and responsible criticism but includes the freedom to speak “foolishly and
without moderation”. So long as the means are peaceful, the communication need not
meet “standards of common acceptability”.94 Also, even when the restriction imposed
has a rational relation to the object which the Legislature seeks to achieve, it will be
“unreasonable” if it is unnecessarily harsh or if it overreaches the scope of the object to
achieve which it was enacted.95 The impugned law must not, under the guise of
protecting public interests, arbitrarily interfere with the exercise of a fundamental
right.96 It was held in O.K. Ghosh v. E.X. Joseph97 that, “The true test is whether the
effect of the impugned action is to take away or abridge fundamental rights.”

It is humbly submitted before the Hon’ble Court that Article 66A does not have a “direct and
proximate nexus” with the attainment of its object i.e. maintaining public order. The nexus, if at
all any, is too far-fetched, hypothetical, conjectural and remote. Also, the degree ofrestriction

89 Arunachala Nadar, M.C.V.S. v. State of Madras, AIR 1950 SC 300

90 Superintendent Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633
91 O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812
92 AIR 1966 SC 1387
93 JavaliV. K. (Dr.) v. State of Mysore, AIR 1966 SC 1387
94 Baumgartner v. U.S. (1944) 322 US 665 Naraindas v. State of M.P. (1974) 4SCC 788 (816)>
95 Sakal Papers v. Union of India, (1962) 3 SCR 842; Maneklal Chottalal v. M.G. Makwana, AIR 1967 SC
1373; Cooper v. Union of India, AIR 1970 SC 564
96 Chintamanrao v. State of MP, (1950) SCJ 571; Maneklal Chottalal v. M.G. Makwana, AIR 1967 SC 1373
97 AIR 1963 SC 812
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imposed is more than what is necessary to ensure public order. Therefore, the impugned
Section, under the guise of protecting public interests, actually interferes arbitrarilywith the
exercise of
freedom of speech and expression and hence should be struck down.
1. Restriction imposed is “vague in character” and is, therefore, unreasonable:

It was held in K.A. Abbas v. Union of India,98 that a law affecting a Fundamental Right may be
held bad for sheer vagueness and uncertainty. A person cannot be deprived of his
Fundamental Right by a law whose command is uncertain and does not sufficiently indicateto
the individual offered by it how he could avoid coming within the mischief of the law. 99
1. A penal law which is so vague and uncertain that it gives no notice to the accused as to
exactly what act or conduct would constitute the offence, is unreasonable from the
substantive point of view.100 Where a law purports to authorize the imposition of
restrictions on a fundamental right in language wide enough to cover restrictions both
within and without the limits of constitutionally permissible legislative action affecting such
right, it is not
possible to uphold it even so far as it may be applied within the constitutional limits as it isnot
severable. So long as the possibility of its being applied to purposes not sanctioned by the
Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. 101 It
follows that if the restriction is clothed in such wide language that it is possible to apply it
forpurposes not sanctioned by the relevant limitation clause [i.e. 19(2)], the restriction
must be struck down as wholly void.102 The Supreme Court of India has invalidated laws on
the ground of “vagueness” in a plethora of cases since.103
2. All wide meaning terms used under Section 66A of the I.T. Act, such as annoyance,
inconvenience etc., have not been defined, which itself provides huge amount of flexibility in
Section 66A to be used in any circumstances perceivable. Thus, large

98 K.A.Abbas v. Union of India, AIR 1973 SC 123

99 Collectorof Custom v. Nathella Sampathu Chetty, AIR 1962 SC 316
100 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
101 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
102 Romesh Thappar v. State of Madras, AIR 1950 SC 124; Abbas v. Union of India, AIR 1971 SC 481
103 Harakchand v. Union of India, AIR 1970 SC 1453, P.A. Inamdar v. State of Maharashtra, AIR 2005 SC 3226,
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
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portions of legitimate free online speech could also be brought within the ambit of the
section. Given the advent of technology and the way people are misusing the same, there
could be millions of situations which could qualify as offences under Section 66A. Therefore,
it is submitted that Article 66A of the I.T. Act is vague in character and should hence be
wholly struck down.
1. Restriction imposed does not satisfy the “Clear and Present Danger” Test:

A State is entitled to bring about legislation abridging the 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 extremelyserious
and the decree of imminence extremely high.”104 The anticipated damage should not be
remote, conjectural or far-fetched. It should have a direct and proximate nexus to the
expression. The American Test of Clear and Present Danger has been applied in India in
several cases.105 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”.106 Also, public order is not the same
thing as public safety. Hence no restrictions can be imposed on the right to freedom of
speechand expression on the ground that public safety is endangered.
1. Though the Legislature would be competent to create a new offence and to provide that
incitement to that offence will be punishable, the word “reasonable” enables the Court
to interfere if the Legislature seeks to make that illegal which was never illegal, only to
impose an arbitrary restriction upon the freedom of speech and expression.107
Everyone has a fundamental right to form his opinion on any issue of general concern by
legitimate means. The State cannot prevent open discussion and open expression.108 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 for those made through the
electronic medium.109

104 Bridges v. California (1941) 314 US 252

105 Duda v. Shiv Shankar AIR 1988 SC 190; Odyssey v. Lokvidayar AIR 1988 SC 1642; Babulal v. State of
Maharashtra AIR 1961 SC 884
106 Romesh Thappar v. State of Madras (1950) SCR 694 (602)
107 Superintendent v. Ram Manohar AIR 1960 SC 633
108 Anand Patwardhan v. Union of India; AIR 1997 Bom 25

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109 Pranesh Prakash, Comments on the Draft Rules under the Information Technology Act (July 28, 2009)

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Hence, it is humbly submitted before the Hon’ble Court that Section 66A does not fall under
the
ambit of “Clear and Present Danger Test” as the substantial evil sought to be prevented is
remote and far-fetched in relation to the wide terms and provisions included under
theSection. Also, causing annoyance or inconvenience can never imperil public order
directly, and hence does not satisfy the “Clear and Present Danger Test” and, hence, the
Section should be struck down.
1. Burden of Proof lies with the State:

Under Article 19, the burden is never on the Appellant to prove that the restriction is not
reasonable or that the restriction is not in the interest of matters mentioned in Clause (2).110
In spite of there being a general presumption in favour of constitutionality of a legislation, in
a challenge laid to the validity of any legislation, allegedly violating any right of freedom
guaranteed by clause (1) of Article 19, on a prima facie case of such violation having been
made out, the onus would shift upon the respondent State to show that the legislation comes
within the permissible limits of restrictions set out in clauses (2) to (6) of Article 19, and that
the particular restriction is reasonable. Thus, the onus is on the state to justify that the
restriction imposed on any Fundamental Right guaranteed by Articles 19(1)(a) to (g) is
reasonable under clauses 19(2) to (6).111

C.Section 66A of the Information Technology Act, 2000 Act violates Article 21

1. The Right to Life guaranteed under Article 21 embraces within its sweep not only
physical existence but the quality of life. If any statutory provisions run counter to such a
right it must be held unconstitutional.112 Right to life and personal liberty are
compendium terms which include a variety of rights and attributes. The expanded
meaning includes the right to hold a particular opinion, to sustain and to nurture that
opinion.113
2. Section 66A of the Information Technology Act, 2000 Act violates the Right to Life.

In Francis Coralie Mullin v. Administrator, Union Territory of Delhi,114 it was held

110 B.Banerjee v. Anita Pan, AIR 1975 SC 1146; Pathumma v. State of Kerala, AIR 1978 SC 771
111 Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873; Saghir Ahmed, M.S. Faruk v. State of Madhya
Pradesh, AIR 1980 SC 93 : (1982) 3 SCC 24
112 Confederation of Ex-serviceman Association v. Union of India, (2006) 8 SCC 399 : AIR 2006 SC 2945
113 Ozhair Hussian v. Union of India AIR 2003 Del 103
114 Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 2 SCR 516; Mohini Jain v. State of
Karnataka, AIR 1992 SC 1858

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that the right to life includes facilities foe reading , writing and expression oneself in diverse
forms, freely moving about, mixing and commingling with fellow human beings, also the
right to carry on such functions and activities to constitute the bare minimum necessities of
the human self.” It was held that the right to life includes the right to carry on such functions
and activities adequate to give expression to human self.115
1. It was held that life and personal liberty will not only include physical security, but would
comprehend those rights enumerated in Article 19, as well as others which would go to
make a man’s life meaning and worth living.116 The requirement of acquiring
knowledge, the freedoms as contemplated by the Constitution, the personal rights and
their enjoyment are nothing but a part of life. A person is entitled to enjoy his personal
rights and to be protected from encroachments on such personal rights, freedoms and
liberties. Any action taken which may create hazards of life will be encroaching upon the
personal rights of a citizen to enjoy the life according to law.117
2. In Jogindar Kumar v. State of Uttar Pradesh,118 the Apex Court held that arrest can
cause incalculable harm to a person’s reputation and self-esteem. Reputation of an
individual is an important party and of one’s life. One has the right to have and preserve
his reputation and also to protect it.119 A person’s reputation is a facet of his Right to
Life under Article 21of the Constitution.120 Right to reputation is a facet of the right to
life of a citizen under Article 21. 121
3. Article 21 is of the widest amplitude,122 and it thus includes the right to socialise with
members of one’s family and friends.123 It is humbly submitted that Section 66A of the
I.T. Act, 2000 takes away the right to socialise as it makes interactions between
individuals a criminal offence and on account of being cognizable enables the Police to
arrest any individual which in turn leads to an infringement of the right to reputation and
self-esteem.

115 Ammmini ED v. Union of India, AIR 1995 Ker252

116 IndianDrug and Pharamaceuticals v. Workmen, (2007)1SCC301
117 Peoples’ Union of Civil Liberties v. Union of India AIR 1997 SC 568
118 AIR 1994 SC 1349
119 Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542
120 State of Maharashtra v. Public Concern for Governance Trust, (2007) 3 SCC 587, 606; AIR 2007 SC 777
121 State of Bihar v. Lal Krishna Advani, (2003) 8 SCC 361 : AIR 2003 SC 3357
122 State of Maharashtra v. Chandrabhan, AIR 1983 SC 803 : (1983) 3 SCC 887 paras. 1,20
123 Hussainara v. Home Secretary, AIR 1979 SC 1360 : (1979) 3 SCR 169; Kadra v. State of Bihar, AIR 1981

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SC 939 : (1981) 3 SCC 671 (para. 2

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1. Section 66A of the Information Technology Act, 2000 Act violates Personal Liberty.

Life and personal liberty comprehends those rights enumerated in Article 19, as well as others
which would go to make a man’s life meaning and worth living.124 It was held in Maneka Gandhi
v. Union of India,125 that the expression personal liberty in Article 21 of the widest amplitude
and it causes a variety of rights which go to constitute the personal libertyof man and some of
them have been raised to the status of distinct fundamental rights and given additional
protection under Article 19.
1. In Kharak Singh v. State of Uttar Pradesh,126 it was observed by the majority that the term
personal liberty does not include the rights in Article 19. But in the minority view expressed
by Justice Subba Rao that the state must satisfy that both fundamental rights are not
infringedby showing that there is a law and it does not amount to a reasonable restriction
within the meaning of Article 19(2) of the Constitution was later accepted by the Supreme
Court in many cases.127
2. The right to personal liberty in Article 21 must be read with Article 19 and Article 14, with a
view to strengthen the right of personal liberty and to overcome the weakness of guarantee
of procedure established by law.128 As the test propounded by Article 14 pervades Article 21
as well, the law and procedure authorizing interference with personal liberty and the right
to life must also be right and just and fair and not arbitrary, fanciful or oppressive. 129
Thereforesince Section 66A imposes unreasonable restrictions with respect to Article 19(1)
(a) and is arbitrary, vague and fanciful with respect to Article 14, it violates Article 21
3. Section 66A of the Information Technology Act, 2000 Act suffers from Ambiguity.

Even apart from Article 19, the requirement of fairness is inherent in Article 21 which is akin to
the concept of reasonableness. 130 Where criminal offence is created, it should be created in
clear language. Clear language is needed to create a crime. It is the basic principle of legal

124 Indian Drug and Pharamaceuticals v. Workmen, (2007) 1 SCC 408

125 AIR 1978 SC 597
126 AIR 1963 SC 1295
127 State of West Bengal v. Ashok Dey, AIR 1972 SC 1660; Haradhan Saha v. State of West Bengal, AIR 1974 SC
2154; John Martin v. State of West Bengal, AIR 1975 SC 775 and finally in Maneka Gandhi v. Union of India, AIR
1978 SC 597
128 Haradhan Saha v State of West Bengal, (1975) 3 SCC 731; Sambhu Nath Sarkar v. State of West Bengal,
(1973) 1 SCC 856; R C Cooper v. Union of India, (1970) 1 SCC 248
129 District Registrar and Collector, Hyderabad v. Canara Bank AIR 2005 SC 186
130 Maneka Gandhi v. Union of India, AIR 1978 SC 597, Sunil Batra (I) v. Delhi Administration I (1978) SC 1675,
Sita Ram v. State of Uttar Pradesh, AIR 1979 SC 745; Jolly v. Bank of Cochin, AIR 1980 SC 470 (para. 10)

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jurisprudence that is enactment is void for vagueness if its prohibition is not clearly
defined.131 In the word of Lord Porter “A man should not be put in peril on an
ambiguity”.132The existence of the rule of strict constriction in its “true and sober sense” as
now understood, can be justified so that the present day growth of the criminal laws, “will not
become traps for honest, unlearned (in the law) and unwary men.”133 Law must be expressed
with such clarity and certainty as to give reasonably precise and adequate guidance to those
who want to be law abiding.134
1. Offences under Section 66A are Novel & do not Contain any Limitations

The phrases contained under Section 66A which have been highlighted are novel and do not
find definition through the Information Technology Act, 2000. Further, the phrases do not
have analogous provisions existing under other criminal laws or have been developed
judicially. They in themselves are a wholly novel set of offences which have been broadly
prescribed under the Information Technology Act, 2000. Due to the absence of any
definitions of “grossly offensive” or “menacing character”, the offences under it are without
any limitation. The absence of limitations itself is against Article 19(1)(a) & Article 21 of the
Constitution and as per the general rule that criminal statutes should be defined certainly and
strictly construed. In as much due to the vague phrasing they are ripe for arbitrary application
and can be struck down as unconstitutional as being vague.
1. Ingredients of offence under Section 66A are not specified

Section 66A does not contain one offence, but contains any possible offence which may be
applied to any speech or content uploaded online. In as much Section 66A lacks any
coherence and structure as to the commission of a single offence. Due to this lack of clarity it
does not contain any definitive ingredients of an offence which are specified in its clauses.
This is most noticeable in Section 66A(2), which contains a list of distinct grounds under
which the section can be attracted. Most of the grounds are not even specified for instance,
“annoyance” or “inconvenience” does not contain any ingredients.

131 Kartar Singh v. State of Punjab (1994) 3 SCC 569; Dr. Surajmani Stella Kujur v. Durgacharan Hansdah AIR 2001
SC 938
132 Dilip Kumar Sharma v. State of Madhya Pradesh, AIR 1976 SC 133 : (1976) 1 SCC 586; State of West
Bengal v. Swapan Kumar, AIR 1982 SC 949 : (1982) 1 SCC 561.
133 Seksaria Cotton Mills v. State of Bombay, AIR 1953 SC 278; State of Bihar v. Bhagirath, AIR 1973 SC 2198
134 Avais v. Hartford Social Club Ltd. (1969) 1 ALL ER 130 (HL)

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Moreover, even for grounds for which analogous criminal offences may exist, there is no
reference made to such distinct sections. For instance, it states “criminal intimidation” but
does not make reference to Section 503 of the Indian Penal Code, 1860 which contains the
offence of criminal intimidation.
1. Offence under Sec. 66A Increases Jail Terms for Existing Offences

Any punishment imposed must be proportionate to the charge and the same is guaranteed
under Article 21.135 Section 294 of the Indian Penal Code, 1860 contains a punishment for
obsence songs and gestures. On conviction of an offence under Sec. 294 the punishment
which is prescribed is an imprisonment for a maximum period of three months. However,
under Sec. 66A the period of imprisonment is a maximum of three years
1. The Burden of Proof is on the State to Justify Section 66A of the InformationTechnology
Act, 2000

In Bachan Singh v. State of Punjab,136 it was observed that in cases coming under Article
21, if it appears that a person is being deprived of his life or liberty, the burden rests on the
State to establish the constitutional validity of such law.

ISSUE 4: THERE IS ERROR ON THE ORDER OF THE HONOURABLE HIGH COURT OF NITHISTHAN

The counsel on behalf of the petitioner humbly submits that[A]; firstly, there is abuse of
process in the matters of arrest and filing FIR against Sumali, [B]; secondly, Section 66A of
the Information Technology Act 2000 violates Article 14, Article 19(1)(a), and Article 21
of the Constitution of India.

A. Abuse of process in the matters of arrest and filing FIR against Sumali

135 Bachan Singh v. State of Punjab, (1980) 2 SCC 84 – Opinion of Bhagavati J. Om Kumar v. Union of India,
AIR 2001 SC 3689
136 Bachan Singh v. State of Punjab, AIR 1980 SC 898; Liversidge v. Anderson ( 1942) AC 206

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1. The authority of the court exists for advancement of justice & if any attempt is made to
abusethat authority so as to produce injustice, the court has power to prevent abuse. It
would be an abuse of process of the court to allow any action which would result in
injustice & prevent promotion of justice. In exercise of the powers court would be
justified to quash any proceeding if it finds that initiation/continuance of it amounts to
abuse of the process of court or quashing of these proceedings would otherwise serve
the ends of justice.137 The scope of exercise of power under Section 482 of the Cr.P.C &
the categories of cases where the High Court may exercise its power under it relating to
cognizable offences to prevent abuse of process of any court or otherwise to secure the
ends of justice were set out by the Supreme Court in State of Haryana v. Bhajan Lal,138
2. Where the allegations made in the first information report or the complaint, even if they
are taken at their face value & accepted in their entirety do not prima facie constitute
any offence or make out a case against the accused.
3. Where the uncontroverted allegations made in the F.I.R. or complaint & the evidence
collected in support of the same do not disclose the commission of any offence & make
out a case against the accused.

1. Where the allegations made in the FIR or complaint are so absurd & inherently
improbable on the basis of which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the accused.

2. Where the allegations in the first information report & other materials, if any,
accompanying the FIR do not disclose a cognizable offence.

B. Section 66A of the Information Technology Act 2000 violates Article 14 , Article 19(1)(a) ,
and Article 21 of the Constitution of India.

1. 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. If a law is arbitrary or irrational it would fall foul of
Article 14 As an example thereof, it has been held that any penalty disproportionate to
the gravity

137 Central Bureau of Investigation v. Shri Ravi Shankar Srivastava, IAS, AIR 2006 SC 2872; State of Andhra
Pradesh v. Golconda Linga Swamy, AIR 2004 SC 3967
138 State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 2042 : 1992 Cr.L.J. 527 (SC)

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of the misconduct would be violative of Article 14.139 When a statute is impugned under
Article 14,a statute upon a similar subject deriving its authority from another source can be
referred to, and the extent to which it is not unconstitutional.140
1. The Supreme Court can strike down any conferment of discretionary power on an
authority ifit’s too broad, sweeping or uncanalized. The Supreme Court has laid down
the applicable principle in the words in Naraindas v. State of Madhya Pradesh,141“If
power conferred by statute on any authority of the State if vagrant and unconstitutional
and no standards or principles are laid down by the statute to guide and control the
exercise of such power, the statute would be violative of the equality clause.” The
legislature while enacting a special law for dealing with a special problem may authorise
the Executive at its unguided option, to proceed against a person either under a special
law or under the general law which would otherwise have been applicable. In such
cases, even though the enactment of the special law may be justified as reasonable
classification, the conferment of arbitrary power upon the Executive to apply either the
general law or more stringent special law to persons who may have committed identical
acts must be held to offend equal protection.142
2. Article 19(1) (a) guarantees to all citizens the freedom of speech and expression. This
righthas characterised this right as a ‘basic human right’.143 “Free speech is the
foundation of ademocratic society. A free exchange of ideas, airing of different
viewpoints, forming one’sown view points and expressing them, are the basic ideals of
free society. This freedom alonemakes it possible for people to formulate their own views
and

opinions.”144 In Maneka Gandhi v. Union of India,145 the Supreme Court observed 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.” Previously, the only way an ordinary citizen could
express
her views in the media was through a letter to the editor. Now, with the advent of social
media websites, a citizencan reach out on a much wider platform with as much as a click. On
October 3rd, 2012, Facebook recorded1 billion users i.e. the same as the entire world
population in 1804.

139 State of Madhya Pradesh v. Mandavar, AIR 1955 SC 493; Bar Council, Uttar Pradesh v. State of Uttar
Pradesh, AIR 1973 SC 231
140Javed v. State of Haryana, AIR 2003 SC 3057
141 Naraindas v. State of Madhya Pradesh, AIR 1974 SC 1232
142 Suraj Mall v. Vishwanatha (1955) 1 SCR 448; Khan Chand v. State of Punjab (1974) UJSC 66
143 Life Insurance Corporation of India v. Manubhai D. Shah, AIR 1993 SC 171
144 Union of India v. Motion Pictures Association, AIR 1999 SC 2334
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145 Maneka Gandhi v. Union of India AIR 1978 SC 597

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2011 was the year of the Arab Spring. Long ensconced dictators fell like nine pins across the
Arab world. It is submitted, therefore, that it is very important that such transmission of
thought is never hindered. However, certain restrictions are laid down in Article 19(2). These
restrictions are exhaustive76 and are to be strictly construed.146 Thus, the Court must strike
down any law which imposes a restriction upon the freedom of speech or expression unless it
falls under directly under any of the grounds specified in Article 19(2).147
1. Also, it has been held that any legislation would be an unreasonable restriction within
the purview of Article 19 if the punishment is too harsh in the present-day social
background, in relation to the offence committed.148 It is humbly submitted that, in the
instant case, Article 66A sweeps within its ambit activities which constitute a legitimate
exercise of freedom of speech and expression. It covers categories such as annoyance,
inconvenience, obstruction and insult which do not and cannot fall within the ambit of
the restrictions enumerated in Section 19(2). Also, the punishment may extend to
imprisonment for 3 years: which is excessive for violations such as causing annoyance or
inconvenience. Hence, Article 66A is not reasonable and hence should be struck down as
unconstitutional.
2. Article 21 is of the widest amplitude,149 and it thus includes the right to socialise with
members of one’s family and friends.150 It is humbly submitted that Section 66A of the
I.T. Act, 2000 takes away the right to socialise as it makes interactions between
individuals a criminal offence and on account of being cognizable enables the Police to
arrest any individual which in turn leads to an infringement of the right to reputation and
self-esteem.

1. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi,151 it was held that
theright to life includes, facilities for reading, writing and expression oneself in diverse
forms, freely moving about, mixing and commingling with fellow human beings, also the
right to carry on such functions and activities to constitute the bare minimum necessities
of the human self.” It was held that the right to life includes the right to carry on such
functions and activities adequate to give expression to human self.152

146 Ghosh v. Joseph, AIR 1963 SC 812

147 Kameshwar v. State of Bihar, AIR 1962 SC 1166
148 Inderjeet v. State of Uttar Pradesh, AIR 1979 SC 1867 : (1990) 1 SCR 255
149 State of Maharashtra v. Chandrabhan, AIR 1983 SC 803 : (1983) 3 SCC 887 paras. 1,20
150 Hussainara v. Home Secretary, AIR 1979 SC 1360
151 Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 2 SCR 516
152 Ammmini E.D. v. Union of India, AIR 1995 Ker 252

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1. Life and personal liberty comprehends those rights enumerated in Article 19, as well
asothers which would go to make a man’s life meaning and worth living.153 It was held
in Maneka Gandhi v. Union of India,154 that the expression personal liberty in Article 21
of the widest amplitude and it causes a variety of rights which go to constitute the
personal liberty of man and some of them have been raised to the status of distinct
fundamental rights and given additional protection under Article 19.
2. Section 66A does not contain one offence, but contains any possible offence which may
be applied to any speech or content uploaded online. In as much Section 66A lacks any
coherence and structure as to the commission of a single offence. Due to this lack of
clarity it does not contain any definitive ingredients of an offence which are specified in
its clauses. This is most noticeable in Section 66A(2), which contains a list of distinct
grounds under which the section can be attracted. Most of the grounds are not even
specified for instance, “annoyance” or “inconvenience” does not contain any
ingredients.

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153 Indian Drug and Pharamaceuticals v. Workmen, (2007) 1 SCC 408

154 AIR 1978 SC 597

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PRAYER FOR RELIEF

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed before this Honourable Court that it may be pleased to:

1. Set aside the order of the High Court and quash the F.I.R. due to Abuse of Process is
involved in the matter of the arrest of Sumali and filing of FIR;

2. Declare Section 66A of Information Technology Act unconstitutional and violative of

violates Art 14, Art 19(1) (a) and Art 21 of the Constitution.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the Appellant as in duty bound, shall humbly pray.

COUNSELS ON BEHALF OF APPELLANT

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