1

TC – P(07)

NOVICE INTRA-MOOT COURT COMPETITION, 2024

Before

HON’BLE SUPREME COURT OF INDIA

CIVIL WRIT JURSIDICTION

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

IN THE MATTER OF
SUGREEV RATHI & ORS. v. UNION OF INDIA & ORS.

CEO OF HINDENBURG …. PETITIONER

LEADER OF OPPOSITION .… PETITIONER

SUGREEV RATHI …. PETITIONER

VERSUS
UNION OF INDIA ….RESPONDENT
MR. ADANI …. RESPONDENT

MEMORIAL for PETITIONERS

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TABLE OF CONTENTS

INDEX OF AUTHORITIES....................................................................................................3

INDEX OF ABBREVIATIONS..............................................................................................6

STATEMENT OF JURISDICTION.......................................................................................12

STATEMENT OF FACTS.....................................................................................................13

STATEMENT OF ISSUES.....................................................................................................16

SUMMARY OF ARGUMENTS.............................................................................................17

ARGUMENTS ADVANCED.................................................................................................19

[1.] PETITIONER HAS FREEDOM OF SPEECH & EXPRESSION IN INSTANT

CASE............................................................................................................19

1.2 PETITONER’S RIGHT TO TRADE AND OCCUPATION IS .................................21

1.3 PETITIONER IS PROTECTED BY FUNDAMENTAL RIGHTS.............................22
1.4 THE PETITIONER HAS THE RIGHT TO OCCUPATION AND PROFESSION
UNDER ARTICLE 19........................................................................................................25
1.5 THERE IS VIOLATION OF FUNDAMENTAL RIGHTS IN THE GIVEN CASE...26

[2.] THE RIGHT TO ACCESS INTERNET IS A FUNDAMENTAL RIGHT IN THE

PROVISION OF PART-III OF THE CONSTITUTION ALONG WITH CERTAIN
RESTRICTIONS .............................................................................................................28

2.1 REASONABLE RESTRICTIONS ARE TO BE IMPOSED ...................................28

2.2 PUBLIC ORDER & NATIONAL SECURITY ACTS AS CRUCIAL FACTOR

FOR IMPLEMENTATION OF RESTRICTIONS IN THE GIVEN CASE ........32

2.3 PUBLIC ORDER ........................................................................................................34

[3.] THE IT ACT, 2000 WILL PREVAIL OVER THE BNS,2023..............................37

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3.1 PETETIONERS HAVE A LEGAL MAXIM IN THE INSTANT CASE ...................37

3.2 IT ACT PREVAILS OVER BNS..................................................................................38

[4.] THE FIR CAN NOT BE FILED UNDER SECTION 66A OF THE IT ACT,
2000 AS IT IS UNCONSTITUTIONAL.........................................................................39

PRAYER___________________________________________________________________
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INDEX OF AUTHORITIES
1. Constitution
Constitution of India, 1950

2. Statutes

Bharatiya Nyaya Sanhita, 2023

Information Technology Act, 2000 (IT Act)

3. International Convention
 Universal Declaration of Human Rights

 International Covenant Civil and Political Rights

 Human Rights Council Resolutions Human Rights and Climate Change

4. Cases Referred
1. Tata Sons Limited v. Greenpeace International 2011 SCC OnLine Del 466 : (2011) 178
DLT 705 : (2011) 45 PTC 275 .......................................................................................22
2. SHREYA SINGHAL V UOI (2015) 5 SCC 1................................................................33
3. Brij Bhushan And Another vs The State of Delhi 1950 AIR 129, 1950 SCR 605, AIR 195
SUPREME COURT 129, 1963 MADLW 934 ...............................................................23
4. Sakal Papers (P) Ltd. v. Union of India, 1961 SCC OnLine SC 124..............................24
5. Kedar Nath Singh v. State of Bihar 1962 SCC OnLine SC 6..........................................24
6. Reno v. American Civil Liberties Union, 521 US 844 (1997) at pp. 859, 862, 872, 874,
877 and 878 .....................................................................................................................26
7. Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal,
(1995) 2 SCC 161 ...........................................................................................................26
8. Anuradha Bhasin v. UOI (2020) 3 SCC 637 ..................................................................27
9. Subramanian Swamy v. Union of India (2016) 7 SCC 221............................................27
10. Romesh Thappar v. State of Madras 1950 SCC 436, 1950 SCR 594.............................28
11. Handyside v. the United Kingdom, 1976 EHRR 737.....................................................21
12. Klass v. Germany (1978) 2 E.H.R.R. 214, IHRL 19 (ECHR 1978)...............................20
13. PUCL v. Union of India, (1997) 3 SCC 433...................................................................33
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14. Sabu Mathew George v. Union of India,( 2018) 3 SCC 229...........................................33

15. Bennett Coleman & Co. & Ors. v. Union of India & Ors., [1973] 2 S.C.R. 757 at 829..35
16. Dr. Ram Manohar Lohia v. State of Bihar & Ors., [1966] 1 S.C.R. 70...........................37
17. S. Khushboo v. Kanniamal & Anr., (2010) 5 SCC 600...................................................38
18. R v Greenwood, [1992] 7 O.R. (3d) 1..............................................................................39
19. General Manager Telecom v. M. Krishnan and Another, AIR 2010 SC 90.....................39

5. Books & Commentaries

 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 689
(8th ed. 2007)
 Shorter Constitution of India, Durga Das Basu, (16th Edition)
 P Jain, Indian Constitutional Law 262 (Lexis Nexis 2020)
 M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1430 (8th ed. 2008)

6. Web Sources
1. https://www.scobserver.in/ (SUPREME COURT OBSERVER)
2. www.judis.nic.in (SUPREME COURT OF INDIA OFFICIAL)
3. www.manupatrafast.com (MANUPATRA)
4. www.scconline.com SCC ONLINE
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INDEX OF ABBREVIATIONS

IMF International Monetary Fund

ISP Internet Service Providers

CEO Chief Executing Officer

IT Information Technology

BNS Bharatiya Nyaya Sanhita

UDHR Universal Declaration of Human Rights

EUC European Union Agency Charter

ICCPR International Covenant on Civil and

Political Rights

PUCL People's Union for Civil Liberties

LOP Leader of Opposition

NCT National Capital Territory

/ or

HC High Court

Art. Article

Govt. Government
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UOI Union of India

EC European Courts

SC Supreme Court

Ors. Others

NRI Non-Resident Indian

Sec. Section

Para. Paragraph

Anr. Another

AIR All India Reporter

SCC Supreme Court Cases

SCR Supreme Court Reporter

Hon’ble Honorable

v. Versus
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US United States
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STATEMENT OF JURISDICTION

The Petitioners Mr. Sugreev Rathi, Mr. Raul Sindhi, & CEO of Hindenburg
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herein, have invoked the Jurisdiction of this Hon’ble Court under Art. 32 1 of the
Constitution of India.

STATEMENT OF FACTS

1. Mr. Sugreev Rathi is an NRI YouTuber and social media activist who has gained
significant attention for his critical commentary on various societal issues in India. His video
blogs and analyses are well-received, particularly among political analysts and opposition
parties. Mr. Sugreev Rathi's influence extends across multiple social media platforms, where
he has built a substantial following. He is frequently invited to participate in both academic
and non-academic events, including literary festivals, indicating his recognition as a thought
leader in contemporary discourse.

2. Hindenburg Research, an international organization known for its investigative reports,

published findings that highlighted serious irregularities involving the officers of India’s
stock market regulator. This report not only caused turmoil in the stock market but also
sparked significant political controversy. The Leader of the Opposition, Mr. Raul Sindhi,

1
32. Remedies for enforcement of rights conferred by this part
The right to move the Supreme Court by appropriate proceedings for the enforcement of the riht conferred by
this part is guaranteed.
The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo- warranto and certiorari, which may be appropriate, for the
enforcement of any of the rights conferred by this Par.
Without prejudice to the powers conferred on the SC by clauses(1) and (2), Parliament may by law empower
any other court to exercise within the local limits of its jurisdiction all or any of the powers exercised by.the SC
under clause (2)
The Right guaranteed by this Article shall not be suspended except as otherwise provided by this constitution.
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called for the resignation of the finance minister, criticizing the government's failure to
manage the ensuing financial crisis effectively.

3. During parliamentary sessions, the Opposition Leader criticized the government's

negligence in addressing the stock market crisis and alleged governmental complicity in the
scam. There were demands for the resignation of both the finance minister and the
Chairperson of the stock market regulator, reflecting deepening political tensions surrounding
financial governance.

4. Hindenburg Research accused the Central Government of being complicit in stock market
corruption, asserting that public funds were at risk and that democratic values were eroding.
They called for judicial intervention to address these issues and suggested that international
bodies like the IMF and World Bank should hold the government accountable for its actions.

5. In response to Hindenburg's report, Mr. Sugreev Rathi created a detailed video blog that
accused Prime Minister of involvement in a stock market scam linked to businessman Mr.
Adani. Mr. Sugreev Rathi's video claimed that Adani had bribed officials within the stock
market regulatory body through investments in his companies, labelling him as a traitor and
corporate terrorist. This video gained traction rapidly across various platforms, including
Telegram and YouTube.

6. The leader of opposition organized a nationwide protest ('Bandh') in reaction to Rathi's

video, which disrupted normalcy across various sectors, including a significant decline in
stock market performance. This protest highlighted public discontent with government
actions and policies, reflecting widespread concern about financial integrity.

7. In light of the escalating situation, an emergency Cabinet meeting was convened to

address public unrest caused by Hindenburg's report and Mr. Sugreev Rathi's video.
The Cabinet directed telecom authorities to inform Internet Service Providers (ISPs) to
remove access to Hindenburg’s report, arguing it lacked relevance and authority within
India.
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8. FIRs were filed against several individuals, including the Leader of Opposition and
Hindenburg's CEO, for allegedly disseminating false information detrimental to national
integrity under various provisions of Indian law. Additionally, Mr. Sugreev Rathi faced legal
action from Mr. Adani due to significant losses incurred by his company following Mr.
Sugreev Rathi's allegations.

9. Despite directives from regulatory authorities to remove Mr. Sugreev Rathi’s video from
Telegram, the platform did not comply, leading the government to consider banning
Telegram in India altogether as a measure to control what they deemed false propaganda
against the country.

10. The individuals targeted by government actions filed petitions with the Supreme Court
challenging these measures on grounds of free speech and trade rights under Indian law. They
argued that FIRs filed against them were unconstitutional and violated fundamental rights
guaranteed by the Constitution.

11. The Supreme Court agreed to hear these cases together under Article 32 of the
Constitution, framing critical issues such as whether freedom of speech extends over the
Internet similarly as it does offline, if internet access is a fundamental right, how laws interact
between different legal frameworks (IT Act vs BNS), and whether FIRs under certain
provisions are valid given prior judicial rulings declaring them unconstitutional.
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ISSUES RAISED

-I-

WHETHER THERE EXISTS A FREEDOM OF SPEECH AND EXPRESSION AND A

FREEDOM OF TRADE, OCCUPATION AND PROFESSION OVER THE MEDIUM OF
INTERNET IN THE SAME MANNER AS IS EXERCISED OTHERWISE?

-II-

WHETHER THE RIGHT TO ACCESS INTERNET IS A FUNDAMENTAL RIGHT IN

ANY OF PROVISIONS OF THE PART-III OF THE CONSTITUTION?

-III-

WHETHER THE PROVISIONS OF THE IT ACT, 2000 SHALL PREVAIL OVER THE
BNS, 2023?

-IV-

WHETHER THE FIR UNDER SECTION 66A OF THE IT ACT, 2000 AS EXISTS IN
THE STATUTE BOOK, BE FILED?
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SUMMARY OF ARGUMENTS

1. THERE EXISTS A FREEDOM OF SPEECH AND EXPRESSION AND A FREEDOM

OF TRADE, OCCUPATION AND PROFESSION OVER THE MEDIUM OF
INTERNET

There exists a freedom of speech and expression and a freedom of trade, occupation and
profession over the medium of internet in the same manner as is exercised otherwise as same is
provided in the Article 19 (1)(a) and Article 19 (1)(g). The case involves substantial question of
law which is infringement of fundamental rights of the petitioner which are freedom of speech
and expression and a freedom of trade, occupation, and profession over the medium of internet.

2. THE RIGHT TO ACCESS INTERNET IS A FUNDAMENTAL RIGHT IN THE

PROVISION OF PART-III OF THE CONSTITUTION

Right to access internet is a fundamental right provided in the Article 19(1)(a) of the Part III of
the constitution. Article 19(1)(a) protects freedom of speech and expression, which includes the
right to use internet to engage in any profession or business. The case involves substantial
question of law which is infringement of fundamental rights of the petitioner which is right to
access internet.

3. THE PROVISIONS OF THE IT ACT, 2000 WILL PREVAIL OVER BNS, 2023

Provisions of the IT Act, 2000 will prevail over the Bhartiya Nyaya Sanhita, 2023 as Section 81
of the IT Act, 2000 provides a provision for its overriding affect over the other acts. The IT Act,
2000 is specifically made for addressing the issues related to cyber laws and these cases is
related to cyber laws so the provisions of the IT, Act 2000 should be used. Also, the legal maxim
generalia specialibus non derogant states that "the general does not detract from the
specific". It's a common law principle that's used to interpret legislation and other
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documents. When there's a conflict between a general law and a specific law, the specific law
takes precedence.

4.THE FIR CAN NOT BE FILED UNDER SECTION 66A OF THE IT ACT, 2000 AS IT
IS UNCONSTITUTIONAL

The FIR filled under Section 66A of the IT Act, 2000 as it exists in the statue book is
unconstitutional as The Hon’ble Supreme Court invalidated the Section 66A of the IT Act in its
entirety in the case Shreya Singhal vs. Union of India (UOI) as it violated the right to freedom of
expression guaranteed under the Article 19(1)(a) of the constitution of India. The FIR filled
under sect. 66A of the IT Act, 2000 infringes the fundamental right to freedom of expression
provided in the Part III of the constitution of the petitioner.
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ARGUMENTS ADVANCED

[1.] THERE EXISTS A FREEDOM OF SPEECH AND EXPRESSION AND A

FREEDOM OF TRADE, OCCUPATION AND PROFESSION OVER THE MEDIUM OF
INTERNET

1. It is respectfully submitted before the Hon’ble SC that the CEO of Hindenburg Research,
as a foreign national operating outside India is entitled to protection, under Art. 19 of
UDHR [1.1] & Article 15 of The EUC [1.2] in the present case.

2. The Leader of Opposition, Mr. Raul Sindhi is exercising his constitutional right to free
speech as enshrined in Art. 19(1)(a) [1.3] of the Indian Constitution and his freedom of
trade, occupation and profession is protected under Art. 19(1)(g) [1.4].

3. Mr. Sugreev Rathi's actions are protected under the fundamental right to free speech as
guaranteed by Art. 19 of UDHR & Art. 19(1)(a) [1.5].

4. Thus, it is submitted that the petitions clubbed by the SC need an interference of the
Hon’ble Court and are liable to be entertained.

[1.1] PETITIONER HAS FREEDOM OF SPEECH & EXPRESSION IN INSTANT CASE

5. Art. 19 of UDHR states that, “Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without interference and to seek,
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receive and impart information and ideas through any media and regardless of frontiers.”2
“Any media” here also include internet.

6. The petitioner is a foreign national individual and in accordance with Art. 19 of

UDHR2 there exists a right to freedom of speech and expression.

7. It is most humbly submitted before the Hon’ble Court that the UN Human Rights
Committee adopted (102nd Session) General Comment 34 on States parties' obligations
under Article 19 of the ICCPR 3: Freedoms of opinion and expression (CCPR/C/GC/34).
The General Comment provides guidance to States on what the freedoms of opinion and
expression mean in practice. Among others, the General Comment refers to: Freedom of
expression and the media; Right of access to information; Freedom of expression and
political rights.

8. The petitioner’s right to freedom of speech and expression infringes over Article 19 of
ICCPR states that
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.3

9. The council on behalf of the petitioner argues that his activities are protected under this
framework of Art. 19 of ICCPR3, asserting that his research and reports are legitimate
expressions of free speech.

10. In the case of Klass and Others v. Germany (1978)4 the Hon’ble European Court of
Human Rights established that state surveillance must be necessary in a democratic

2
https://www.un.org/en/about-us/universal-declaration-of-human-rights
3
https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights
4
Klass v. Germany (1978) 2 E.H.R.R. 214, IHRL 19 (ECHR 1978)
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society and should not infringe upon freedom of expression. The principles derived from
this case are in accordance with the petitioner against governmental overreach in
regulating or censoring information disseminatedby Hindenburg Research.

11. The Hon’ble European Court of Human Rights held in its judgement in Handyside v.
the United Kingdom5, “Freedom of expression...is applicable not only to 'information' or
'ideas' that are favorably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb the State or any sector of the
population." This case supports the notion that critical reports on government actions,
such as those by Hindenburg Research, should be protected even if they provoke
controversy.

12. The United Nations Human Rights Council (2016 Resolution) explicitly recognized
that the same rights that people have offline must also be protected online, especially
freedom of expression.6

[1.2] PETITONER’S RIGHT TO TRADE AND OCCUPATION IS VIOLATED

13. Article 15 of the EUC7 states that Freedom to choose an occupation and right to
engage in work- Everyone has the right to engage in work and to pursue a freely chosen
or accepted occupation.

14. The petitioner owns a firm that specializes in forensic financial research. Hindenburg
Research focuses on uncovering accounting irregularities, unethical practices, and
undisclosed financial issues within corporations. The council on behalf of the petitioner
argues that in accordance with Art. 15 of EUC7 the petitioner has the right to free trade
and occupation.
5
Handyside v. the United Kingdom, 1976 EHRR 737
6
https://www.ohchr.org/en/climate-change/human-rights-council-resolutions-human-rights-and-climate-change
7
https://fra.europa.eu/en/eu-charter/article/15-freedom-choose-occupation-and-right-engage-work?page=1
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15. It is submitted before the Hon’ble Court that Hindenburg, as a research firm engaged
in financial analysis, has the right to operate its business and publish reports under the
principle of freedom of occupation of Art. 15 of EUC7. The Hindenburg’s activities are
lawful and do not violate market regulations (e.g., insider trading, fraudulent practices),
and is only following its business model which is to provide market research and
investment opinions.

16. It is humbly submitted before this Court that the U.S. Supreme Court ruled that
companies engaged in the financial market must not engage in fraudulent practices or
insider trading, but legitimate market analysis and research reports are protected as part
of normal business activity.8

17. In Tata Sons Limited v. Greenpeace International8 the Hon’ble HC held that public
interest and freedom of expression were significant defences, if the parties involved are
practicing in activism.

18. The Court recognized the Internet as a medium for trade, commerce, and information
dissemination, and any restriction on Internet access must meet the test of reasonableness
under Article 19(2) and Article 19(6).

[1.3] PETITIONER IS PROTECTED BY FUNDAMENTAL RIGHTS

19. Art. 19(1)(a)9 states that, “(1) All citizens shall have the right -(a)to freedom of speech
and expression.” Also, Article 19(2)10 states:

8
Tata Sons Limited v. Greenpeace International 2011 SCC Online Del 466 : (2011) 178 DLT 705 : (2011) 45 PTC
275
9
INDIA CONST. art. 19(1)(a)

10
INDIA CONST. art. 19(2)
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"Article 19. Protection of certain rights regarding freedom of speech, etc.- (2) Nothing in
sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State
from making any law, in so far as such law imposes reasonable restrictions on the exercise of
the right conferred by the said sub-clause in the interests of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign States, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an offence" 11. The
second petitioner being a citizen of India is protected by Art. 19(1)(a).

20. It is contended on behalf of the petitioners that notwithstanding these recitals the order
complained against is liable to be quashed, because it amounts to an infringement of the right of
freedom of speech and expression guaranteed by article 19 (1) (a) of the Constitution. Articles
19 (1) (a) and (2), which are to be read together, run as follows: -

19, (1) All citizens shall have the right

(a) to freedom of speech and expression;

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so
far as it relates to, or prevent the State from making any law relating to, libel, slander,
defamation, contempt of Court or any matter which offends against decency or morality or
which undermines the security of, or tends to overthrow, the State."12

21. "Freedom of speech and expression of opinion is of paramount importance under a

democratic Constitution which envisages changes in the composition of legislatures and
governments and must be preserved."13

11

12
Brij Bhushan and Another vs The State of Delhi 1950 AIR 129, 1950 SCR 605, AIR 1950 SUPREME COURT
129, 1963 MADLW 934
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22. "There is nothing in clause (2) of Article 19 which permits the State, to abridge this right
on the ground of conferring benefits upon the public in general or upon a section of the
public. It is not open to the State to curtail or infringe the freedom of speech of one for
promoting the general welfare of a section or a group of people unless its action could be
justified under a law competent under clause (2) of Article 19."14 The petitioner in the given
case has not done anything again Art. 19(2)11

23. Restrictions which can be imposed on freedom of expression can be only on the heads
specified in Article 19(2)11 and none other. Restrictions cannot be imposed on the ground of
"interest of general public" contemplated by Article 19(6)14.14

24. It is contended that The Leader of Opposition, Mr. Raul Sindhi under which the FIR has
been filed, cannot be restricted by clause (2) of article 19 of the Constitution, because it does
not relate to any matter which undermines the security of, or tends to overthrow, the State as
per the case of Shreya Singhal v. Union of India.

25. The petitioner’s criticisms regarding government involvement in stock market

irregularities are matters of significant public interest that too are based on certain research
and vlog. The right to inform and engage the public on such issues is essential for
accountability in governance.15

26. The petitioner in the given case has full rights to convey his views and criticize the
Government as the right to inform and engage the public on such issues is essential for
accountability in governance as per the judgement of the SC.

27. “We may now summarize the law on the freedom of speech and expression under Article
19(1)(a) as restricted by Article 19(2). The freedom of speech and expression includes the
right to acquire information and to disseminate it. Freedom of speech and expression is
13
Sakal Papers (P) Ltd. v. Union of India, 1961 SCC Online SC 124

14
INDIA CONST. art. 19(6)

15
Kedar Nath Singh v. State of Bihar 1962 SCC Online SC 6.
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necessary, for self-expression which is an important means of free conscience and self-
fulfillment. It enables people to contribute to debates on social and moral issues. It is the best
way to find the truest model of anything, since it is only through it that the widest possible
range of ideas can circulate. It is the only vehicle of political discourse so essential to
democracy. Equally important is the role it plays in facilitating artistic and scholarly
endeavors of all sorts. The right to communicate, therefore, includes right to communicate
through any media that is available whether print or electronic or audio-visual such as
advertisement, movie, article, speech, etc. That is why freedom of speech and expression
includes freedom of the Press. The freedom of the Press in terms includes the right to
circulate and also to determine the volume of such circulation. This freedom includes the
freedom to communicate or circulate one's opinion without interference to as large a
population in the country, as well as abroad, as is possible reach.”12

28. Freedom of speech and expression of opinion are of paramount importance to a

democracy. There is nothing in Article 19(2) which permits the State to abridge this right on
the ground of conferring benefits upon the public in general. It is also not open to the State to
curtail or infringe the freedom of speech of one for promoting the general welfare of a section
or a group of people, unless such action could be justified under a law contemplated under
one of the heads of Article 19(2).14

29. That the content of the right under Article 19(1)(a)10 remains the same whatever the
means of communication including internet communication is clearly established by Reno
case16 & Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of
Bengal.1712

16
Reno v. American Civil Liberties Union, 521 US 844 (1997) at pp. 859, 862, 872, 874, 877 and 878
17
Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161
 26

30. Thus, the counsel on behalf of the petitioner, requests the Hon’ble Court to seek the
quashing of FIR based on facts that the petitioner cites free speech clause on the internet.

[1.4] THE PETITIONER HAS THE RIGHT TO OCCUPATION AND PROFESSION UNDER
ARTICLE 19

31. “(1) All citizens18 shall have the right – (g) to practice any profession, or to carry on any
occupation, trade or business.

Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far
as it imposes, or prevent the State from making any law imposing, in the interests of the general
public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and,
in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far
as it relates to, or prevent the State from making any law relating. The Constitution, under this
Article includes citizens19. The petitioner in the given case fulfils all the ground to be called as a
citizen.19

32. The globalization of the Indian economy and the rapid advances in information and
technology have opened vast business avenues and transformed India as a global IT hub. There is
no doubt that there are cert ain trades which are completely dependent on the internet. Such a
right of trade through internet also fosters consumerism and availability of choice. Therefore, the
freedom to practice any profession or carry on any trade, business or occupation through the
medium of internet enjoys constitutional protection under Article 19(1)g)20.21

18
Every person who was at the commencement of the Constitution (26 January 1950) domiciled in the territory of
India, and (a) who was born in India, or (b) either of whose parents was born in India, or (c) who has been ordinarily
resident in India for not less than five years, became a citizen of India.

19
INDIA CONST. art. 19(1)(g)
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33. The learned Senior Counsel emphasized on the term "reasonable", as used in Article 19(2) of
the Constitution, in the case Anuradha Bhasin v. UOI and submitted that the restrictions on the
freedom of speech should be reasonable as mandated under Art. 19 of the Constitution. These
restrictions need to be tested on the anvil of the test of proportionality.20

34. Being the Leader of opposition party the main aim of the petitioner is to criticize the
government. The petitioner is a political leader and according to Art. 19(1)(g) it is his freedom to
perform any occupation and profession to find faults in government. The petitioner being a
political leader, it is his freedom and ability to criticize public policies and engage in political
discourse, which are integral to his professional role.21

[1.5] THERE IS VIOLATION OF FUNDAMENTAL RIGHTS IN THE GIVEN CASE

35. The petitioner being an NRI22 can be protected by Art. 19 of the Indian Constitution states
that Protection of certain rights regarding freedom of speech, etc.

(1)All citizens shall have the right-(a)to freedom of speech and expression; (b)to assemble
peaceably and without arms;(c)to form associations or unions or co-operative societies;(d)to
move freely throughout the territory of India;(f)sub-clause (f) shall be omitted;(e)to reside and
settle in any part of the territory of India; and(g)to practice any profession, or to carry on any
occupation, trade or business.

36. Article 19(1)(a)10 guarantees the right to freedom of speech and expression to all citizens of
India. As an Indian citizen, regardless of his NRI status, Sugreev Rathi the petitioner retains
these rights. The Constitution does not distinguish between residents and NRIs regarding

20
Anuradha Bhasin v. UOI (2020) 3 SCC 637
21
Subramanian Swamy v. Union of India (2016) 7 SCC 221
22
NRI for this purpose is defined as a person resident outside India who is citizen of India. In terms of Regulation 2
of FEMA Notification No.13 dated May 3, 2000, Non-Resident Indian (NRI) means a person resident outside India
who is a citizen of India.
 28

fundamental rights. The Hon’ble Court has stated in the judgement that freedom of speech
includes the right to criticize government actions, reinforcing that citizens retain these rights
irrespective of their residency status.16

37. Art. 19 of UDHR states that, “Everyone has the right to freedom of opinion and expression;
this right includes freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers”2. The petitioner as per this
article is free to express his opinion and express his views.

38. The petitioner’s video blog addressed significant allegations regarding corruption in the stock
market and government involvement, which is a matter of public interest. The right to inform
and engage the public on such issues is essential for transparency and accountability in
governance.16

39. In the present matter, there is violation of the afore-mentioned fundamental rights of the
petitioner. The FIR filed against the petitioner creates a chilling effect on free speech. If
individuals fear legal repercussions for expressing dissent or discussing controversial topics, it
undermines democratic engagement. The Supreme Court emphasized that restrictions on free
speech must not deter individuals from expressing their views in Romesh Thappar v. State of
Madras.23

40. International human rights standards recognize freedom of expression as a fundamental right
applicable across all media, including digital platforms in accordance with Art. 19 of UDHR. 2

41. The Court acknowledged in Subramanian Swamy v. Union of India24 that truth is a defence
in defamation cases if it is made for the public good. Statements or opinions expressed in good
faith and in the public interest are protected under freedom of speech, provided they are not

23
Romesh Thappar v. State of Madras 1950 SCC 436, 1950 SCR 594

24
Subramanian Swamy v. Union of India (2016) 7 SCC 221
 29
NOVICE INTRA-MOOT COURT COMPETITION
malicious and are reasonably based on facts. The Court stressed that the intention behind the
expression matters. If the statements are made in good faith and with due care to serve the public
interest, they are protected from defamation claims.

[2.] THE RIGHT TO ACCESS INTERNET IS A FUNDAMENTAL RIGHT

42. It is respectfully submitted before the Hon’ble SC that the Petitioners have the right to
access to the internet as it has been recognized as a fundamental right in India, particularly
linked to the provisions of Part III of the Constitution.

[2.1] RECOGNIZED AS A FUNDAMENTAL RIGHT UNDER PART III OF THE

CONSTITUTION

43. Access to the internet has been recognized as a fundamental right in India, particularly
linked to the provisions of Part III of the Constitution, which outlines fundamental rights,
under Art. 19(1)(a) & Art. 21.
44. Article 19(1)(a) guarantees the right to freedom of speech and expression, which has
been interpreted by the Supreme Court to include the right to access the internet. The Court
has emphasized that the internet is a vital medium for exercising this freedom, thereby
making restrictions on internet access subject to scrutiny under this article.
45. Article 21 provides the right to life and personal liberty. The Kerala High Court, in the
case of Faheema Shirin v. State of Kerala (2019), recognized that the right to access the
internet is integral to the right to education and the right to privacy, both of which fall under
Article 21. This judgment marked a significant step in affirming internet access as a
fundamental right, linking it to essential services and educational opportunities.
46. In a landmark ruling by the Supreme Court in January 2020, the Court explicitly declared
 30

that access to the internet is a fundamental right under Article 19. This decision arose from a
case challenging internet restrictions imposed in Jammu and Kashmir following the
abrogation of Article 370. The Court ruled that such restrictions must adhere to the principles
of proportionality and cannot be applied indefinitely to suppress freedom of expression.25
47. The recognition of internet access as a fundamental right aligns with international
perspectives. The United Nations has advocated for internet access as a human right,
emphasizing its importance in facilitating other rights, including freedom of expression and
access to information.
48. While the Constitution of India does not explicitly mention the right to access the
internet, judicial interpretations have effectively integrated it within the framework of
existing fundamental rights, particularly under Articles 19 and 21. This evolution reflects
the growing recognition of the internet as essential for exercising various rights and
participating in modern society.
49. Yes, the right to access the internet has been recognized as a fundamental right in
India, albeit indirectly under Part-III of the Constitution, which deals with fundamental
rights.
50. The Supreme Court of India recognized this right in the case of Anuradha Bhasin
v. Union of India (2020). In this case, the Court ruled that access to the internet is an
extension of the right to freedom of speech and expression under Article 19(1)(a) and the
right to practice any profession or carry on any occupation, trade, or business under
Article 19(1)(g) of the Constitution.26
51. However, the Court also held that the government can impose reasonable restrictions
on internet access under Article 19(2) and Article 19(6) in the interests of the
sovereignty and integrity of India, security of the state, public order, decency, or
morality.
52. So, while the Constitution does not explicitly mention the "right to access the
internet," it is interpreted as a fundamental right within the framework of Article 19.
25
Faheema Shirin v. State of Kerala 2019 SCC OnLine Ker 2976 : (2019) 4 KLJ 634 : AIR 2020 Ker 35 : (2019) 4 KLT
301 : (2019) 4 RCR (Civil) 585
26
Anuradha Bhasin v. UOI (2020) 3 SCC 637
 31
NOVICE INTRA-MOOT COURT COMPETITION
53. Restrictions on the fundamental right to access the internet in India are applied in
accordance with the reasonable restrictions permitted under Article 19(2) and Article
19(6) of the Constitution. These articles allow the state to impose restrictions on the
freedom of speech and expression (Article 19(1)(a)) and freedom to practice any
profession or trade (Article 19(1)(g)) in certain circumstances. Here's how the
restrictions work:
1. Reasonable Restrictions (Article 19(2) and 19(6))
The state can impose restrictions on fundamental rights only for specific purposes, and
such restrictions must be reasonable. The grounds on which restrictions can be
imposed include:
· Security of the State
· Public Order
· Sovereignty and Integrity of India
· Friendly relations with foreign states
· Decency or morality
· Contempt of court
· Defamation
· Incitement to an offense
These restrictions must be proportionate, meaning they should not be excessive in
relation to the purpose they serve. The government must justify that the restriction
imposed (such as suspending internet access) is necessary and not arbitrary.
54. The government can temporarily suspend internet access for maintaining public
order or national security under provisions of laws like:
· The Temporary Suspension of Telecom Services (Public Emergency or Public Safety)
Rules, 2017: These rules allow the government to suspend telecom services, including
internet access, in case of public emergencies or threats to public safety.

· Section 144 of the Code of Criminal Procedure (CrPC): This is often invoked to prevent
unrest by restricting public gatherings or internet services in a specific area to maintain
public order.
 32

· The Information Technology Act, 2000: This law grants powers to block access to
specific websites or content that threatens national security or public order.

54. It is humbly submitted before the Hon’ble Court that in the landmark case of
Anuradha Bhasin v. Union of India (2020) it was established that the principle that
internet access is a part of the fundamental rights under Article 19, and any restrictions
must pass the test of proportionality. This means that: Restrictions must have a
legitimate aim, such as maintaining public order or protecting national security. The
restrictions must be necessary to achieve that aim. They must be the least restrictive
means available. The impact of the restriction must not outweigh its benefits.
55. The Faheema Shirin v. State of Kerala (2019) case is important because it
extended the right to access the internet not only as a part of freedom of speech but
also as part of the right to education and the right to privacy.

56. The PUCL v. Union of India (1997) case is relevant to internet-related restrictions
because it established the foundation for privacy rights in India, which are increasingly
invoked in cases involving online privacy and government surveillance.27

57. The Shreya Singhal v. Union of India (2015) case is a landmark for protecting
online freedom of speech and expression and ensuring that any restrictions on internet
content comply with the reasonable restrictions under Article 19(2).28
58. The Sabu Mathew George v. Union of India (2018) case further solidified the notion
that the right to access the internet is intertwined with the right to freedom of speech and
expression. The Supreme Court acknowledged that the right to be informed and to know
is encompassed within the broader framework of free speech, thereby supporting the
argument that internet access is vital for democratic engagement and information
dissemination29
59. Allahabad High Court Case (2020) In a Suo moto public interest litigation, the
Allahabad High Court opined that the right to access the internet is an extension of
27
PUCL v. Union of India, (1997) 3 SCC 433
28
SHREYA SINGHAL V UOI (2015) 5 SCC 1
29
Sabu Mathew George v. Union of India,( 2018) 3 SCC 229
 33
NOVICE INTRA-MOOT COURT COMPETITION
the right to live in the present era. This case further contributed to the discourse on
recognizing internet access as a fundamental right, potentially paving the way for
future judicial acknowledgment of this right

[2.2] FREE SPEECH RIGHTS FOR FOREIGN NATIONALS

60. Foreign nationals operating independent think tank bodies in India may not be fully
protected by the same free speech rights as Indian citizens, primarily due to the
constitutional framework governing freedom of speech and expression in India.
61. Article 19(1)(a) of the Indian Constitution guarantees the right to freedom of speech
and expression specifically to "all citizens" of India. Therefore, this right is not
automatically extended to foreign nationals or entities operating in India or outside its
borders.
62. Article 19(2) allows for reasonable restrictions on the freedom of speech and
expression, including grounds such as national security, public order, and friendly relations
with foreign states. These restrictions apply primarily to citizens and may impact foreign
nationals if their activities are seen as threatening these interests.

63. While international human rights frameworks recognize freedom of expression as a

fundamental right, the application of these rights can vary significantly by country. In India, the
protection offered under Article 19 is specific to citizens, which means that foreign nationals
may not have the same legal recourse in cases of censorship or repression.

64. Independent think tanks can operate in India and engage in research and advocacy on various
issues. However, their ability to express opinions freely may be limited by Indian laws that
regulate speech, including sedition laws (Section 124A of the IPC) and laws concerning public
order.

65.The Supreme Court has ruled in various cases that while freedom of speech is a
fundamental right, it is subject to reasonable restrictions. For instance, in cases involving
sedition or public disorder, expressions that incite violence or threaten national integrity
 34

could lead to legal action against individuals or organizations, regardless of their

nationality.

66. Foreign think tanks operating in India must navigate local laws and regulations regarding
speech and expression carefully. They may also face scrutiny from government
authorities regarding their funding sources and activities, especially if they engage in
criticism of government policies.

67. The council on behalf of the petitioner’s state that while foreign nationals can engage in
discourse and research through independent think tank bodies, their protection under free speech
rights in India is limited compared to that afforded to citizens. They must operate within the
constraints of Indian law, which includes potential restrictions based on national security and
public order considerations. Therefore, while they can express ideas and conduct research, they
do so with an understanding that their freedoms may not be absolute and are subject to local
legal frameworks.

68. Various judgments of this Court have referred to the importance of freedom of speech and
expression both from the point of view of the liberty of the individual and from the point of view
of our democratic form of government. For example, in the early case of Romesh Thappar v.
State of Madras, this Court stated that freedom of speech lay at the foundation of all democratic
organizations.30

69. In Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962], a Constitution Bench of this Court
said freedom of speech and expression of opinion is of paramount importance under a
democratic constitution which envisages changes in the composition of legislatures and
governments and must be preserved. 31

70. In a separate concurring judgment Beg,J. said, in Bennett Coleman & Co. & Ors. v. Union of

30
Romesh Thappar v. State of Madras, [1950] S.C.R. 594 at 602
31
Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842 at 866
 35
NOVICE INTRA-MOOT COURT COMPETITION
India & Ors., [1973], that the freedom of speech and of the press is the Ark of the Covenant of
Democracy because public criticism is essential to the working of its institutions.32

[2.3] PUBLIC ORDER

69. In Article 19(2) (as it originally stood) this sub-head was conspicuously absent. Because of
its absence, challenges made to an order made under Section 7 of the Punjab Maintenance of
Public Order Act and to an order made under Section 9 (1)(a) of the Madras Maintenance of
Public Order Act were allowed in two early judgments by this Court. Thus in Romesh Thappar v.
State of Madras, [1950] S.C.R. 594, this Court held that an order made under Section 9(1)(a) of
the Madras Maintenance of Public Order Act (XXIII of 1949) was unconstitutional and void in
that it could not be justified as a measure connected with security of the State. While dealing
with the expression "public order", this Court held that "public order" is an expression which
signifies a state of tranquility which prevails amongst the members of a political society as a
result of the internal regulations enforced by the Government which they have established.

70. Similarly, in Brij Bhushan & Anr. v. State of Delhi, [1950], an order made under Section 7
of the East Punjab Public Safety Act, 1949, was held to be unconstitutional and void for the self-
same reason.33
30. As an aftermath of these judgments, the Constitution First Amendment added the words
"public order" to Article 19(2).

71. In Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, [1960] 2 S.C.R. 821,
this Court held that public order is synonymous with public safety and tranquility; it is the
absence of disorder involving breaches of local significance in contradistinction to national
upheavals, such as revolution, civil strife, war, affecting the security of the State.

72. This definition was further refined in Dr. Ram Manohar Lohia v. State of Bihar & Ors.,
32
Bennett Coleman & Co. & Ors. v. Union of India & Ors., [1973] 2 S.C.R. 757 at 829
33
Brij Bhushan & Anr. v. State of Delhi, [1950] S.C.R. 605
 36

[1966], where this Court held:

"It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said
to comprehend disorders of less gravity than those affecting "security of State", "law and order"
also comprehends disorders of less gravity than those affecting "public order". One has to
imagine three concentric circles. Law and order represent the largest circle within which is the
next circle representing public order and the smallest circle represents security of State. It is then
easy to see that an act may affect law and order but not public order just as an act may affect
public order but not security of the State." (at page 746)34

73. In Dr. Ram Manohar Lohia's case this Court pointed out the difference between maintenance
of law and order and its disturbance and the maintenance of public order and its disturbance.
Public order was said to embrace more of the community than law and order. Public order is the
even tempo of the life of the community taking the country as a whole or even a specified
locality. Disturbance of public order is to be distinguished, from acts directed against individuals
which do not disturb the society to the extent of causing a general disturbance of public
tranquility. It is the degree of disturbance and its effect upon the life of the community in a
locality which determines whether the disturbance amounts only to a breach of law and order.
Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of
the community keeps moving at an even tempo, however much one may dislike the act. Take
another case of a town where there is communal tension. A man stabs a member of the other
community. This is an act of a very different sort. Its implications are deeper and it affects the
even tempo of life and public order is jeopardized because the repercussions of the act embrace
large Sections of the community and incite them to make further breaches of the law and order
and to subvert the public order. An act by itself is not determinant of its own gravity. In its
quality it may not differ from another but in its potentiality, it may be very different. Take the
case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber
maids. He may annoy them and also the management but he does not cause disturbance of public
order. He may even have a fracas with the friends of one of the girls but even then, it would be a

34
Dr. Ram Manohar Lohia v. State of Bihar & Ors., [1966] 1 S.C.R. 709
 37
NOVICE INTRA-MOOT COURT COMPETITION
case of breach of law and order only. Take another case of a man who molests women in lonely
places. As a result of his activities girls going to colleges and schools are in constant danger and
fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The
activity of this man in its essential quality is not different from the act of the other man but in its
potentiality and in its effect upon the public tranquility there is a vast difference. The act of the
man who molests the girls in lonely places causes a disturbance in the even tempo of living
which is the first requirement of public order. He disturbs the society and the community. His act
makes all the women apprehensive of their honor and he can be said to be causing disturbance of
public order and not merely committing individual actions which may be taken note of by the
criminal prosecution agencies. It means therefore that the question whether a man has only
committed a breach of law and order or has acted in a manner likely to cause a disturbance of the
public order is a question of degree and the extent of the reach of the act upon the society. The
French distinguish law and order and public order by designating the latter as order publique.
The latter expression has been recognized as meaning something more than ordinary
maintenance of law and order. Justice Ramaswami in Writ Petition No. 179 of 1968 drew a line
of demarcation between the serious and aggravated forms of breaches of public order which
affect the community or endanger the public interest at large from minor breaches of peace
which do not affect the public at large. He drew an analogy between public and private crimes.
The analogy is useful but not to be pushed too far. A large number of acts directed against
persons or individuals may total up into a breach of public order.
74. In Dr. Ram Manohar Lohia's case examples were given by Sarkar, and Hidayatullah, JJ.
They show how similar acts in different contexts affect differently law and order on the one hand
and public order on the other. It is always a question of degree of the harm and its effect upon the
community. The question to ask is: Does it lead to disturbance of the current of life of the
community so as to amount to a disturbance of the public order or does it affect merely an
individual leaving the tranquility of the society undisturbed? This question has to be faced in
every case on facts. There is no formula by which one case can be distinguished from another."
(at pages 290 and 291).
 38

75. Equally, in S. Khushboo v. Kanniamal & Anr., (2010) this Court stated, in paragraph 45 that
the importance of freedom of speech and expression though not absolute was necessary as we
need to tolerate unpopular views. This right requires the free flow of opinions and ideas essential
to sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for
meaningful governance, the culture of open dialogue is generally of great societal importance. 35

[3.] THE IT ACT, 2000 WILL PREVAIL OVER THE BNS, 2023.

76. It is respectfully submitted before the Hon’ble SC that the IT Act, 2000 will prevail
over the BNS, 2023, as they have Generalia Specialibus Non Derogant [3.1], under Sec.
81 of IT Act [3.2] in the case of L.O.P. & others vs. U.O.I.
The IT Act, 2000 will prevail over the BNS, 2023

[3.1] PETETIONERS HAVE A LEGAL MAXIM IN THE INSTANT CASE

77. It is humbly submitted before the Hon’ble SC that IT Act, 2000 is a special act and
BNS, 2023 is a general act and in case of conflict between a general act and a special act
the principle of generalia specialibus general non- derogant is invoked which gives the
special act overriding effect over the general one. Justice Griffith said, “The maxim
generalia specialibus non derogant means that, for the purposes of interpretation of two
statutes in apparent conflict, the provisions of a general statute must yield to those of a
special one.” 36
78. In the case of General Manager Telecom v. M. Krishnan and Another 37, it was held
that, if there is any claim regarding telephone bills then it is to be addressed under the
Indian Telegraph Act, 1985 which is a specific act and not under the Consumer
Protection Act. This is through the maxim of Generalis Specialibus non Derogant– by
application of this maxim, the Consumer Protection Act is considered general law.

35
S. Khushboo v. Kanniamal & Anr., (2010) 5 SCC 600
36
R v Greenwood, [1992] 7 O.R. (3d) 1
37
General Manager Telecom v. M. Krishnan and Another, AIR 2010 SC 90
 39
NOVICE INTRA-MOOT COURT COMPETITION
Also, the principle is defined by Maxwell in his book 38 Maxwell on the Interpretation
of Statutes Twelfth Edition page 198. The book states that when interpreting
conflicting statutes, the provisions of a general statute must yield to those of a special
one. This interpretation reinforces the idea that lawmakers intend for specific laws to
govern particular circumstances without being overridden by broader regulations.
79. This principle of Maxwell is applied by Hon’ble Apex court in the case of Maharaja
Pratap Singh Bahadur vs. Thakur Manmohan Dey & Ors39 and apex court held that the
general law does not abrogate earlier special law by mere implication.

80. If we consider the was accepted by the Hon’ble Apex court in the case of
Maharaja Pratap Singh Bahadur vs. Thakur Manmohan Dey & Ors then also
maxwell principles clearly states that special legislation cannot be altered or
derogated from merely by force of such general words of the acts.
81. Taking into the reference of the above-mentioned judicial precedents, principle
of Generalia specialibus non derogant, Maxwell Interpretation it can be said that IT
Act, 2000 will prevail over the BNS, 2023.

[3.2] IT ACT PREVAILS OVER BNS

82. It is respectfully submitted before the Hon’ble SC that the IT Act, 2000 have
provisions of overriding effect in the Section 81 of IT Act, 2000 which states that
the provisions of this Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force40. The petitioners
rely on this act to submit that IT Act, 2000 contains provisions through which it can
prevail over the BNS, 2023.
83. It is respectfully submitted before the Hon’ble SC that the considering judicial
interpretation by the court in the case of Sharat Babu Digumarti vs Govt. of NCT

38
Maxwell on the Interpretation of Statutes Twelfth Edition page 198
39
Maharaja Pratap Singh Bahadur vs. Thakur Manmohan Dey & othrs. AIR 1966 SC 1931
40
Information Technology Act, 2000
 40

of Delhi 41 Information and technology Act, 2000 have provision to override any of
the general act. Since the BNS, 2023 is a general act, The Overriding effect of the IT
Act, 2000 vested in the section 81 can be applied in this case.

84.The Section 81 was also interpreted by the Bombay High Court in its judgment in the
case Gagan Harsh Sharma v. State of Maharashtra42 , it was held that when the acts
specified under Section 43 of the IT Act are done dishonestly and fraudulently, the same
becomes an offence and by virtue of the overriding effect of the IT Act (Sections 79 and
81), the offences punishable by Section 43 read with 66 of the IT Act would take out
provisions of the IPC.

85. In the case Awadhesh Kumar Parasnath Pathak v. State of Maharashtra43 , the
court held that while the IT Act has an overriding effect, it does not exclude IPC
provisions when the IT Act does not adequately address all elements of an offence.
The court emphasized that if an act involves deceit or cheating as defined under IPC,
those provisions can be invoked alongside those in the IT Act.

[4.] THE FIR CAN NOT BE FILED UNDER SECTION 66A OF THE IT ACT, 2000 AS
IT IS UNCONSTITUTIONAL

86. It is respectfully submitted before the Hon’ble SC that an FIR cannot be filed under Sec. 66
A of the IT act, 2000 as is invalid.

2.66-A. Punishment for sending offensive messages through communication service, etc.--Any
person who sends, by means of a computer resource or a communication device, --

(a) any information that is grossly offensive or has menacing character; or

41
Sharat Babu Digumarti v. State (NCT of Delhi), (2017) 2 SCC 18
42
Gagan Harsh Sharma v. State of Maharashtra, 2018 SCC OnLine Bom 13046
43
Awadhesh Kumar Parasnath Pathak v. State of Maharashtra, 2024 SCC OnLine Bom 1074
 41
NOVICE INTRA-MOOT COURT COMPETITION
(b) any information which he knows to be false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill
will, persistently by making use of such computer resource or a communication device; or

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the addressee or recipient about the origin of such
messages, shall be punishable with imprisonment for a term which may extend to three years
and with fine.

87. From Shreya Singhal v. Union of India (2015), it was held that Sec. 66 A of the IT act,
2000 is unconstitutional.44

88. Sec. 66A has no proximate connection with incitement to commit an offence. Firstly, the
information disseminated over the internet need not be information which "incites" anybody at
all. Written words may be sent that may be purely in the realm of "discussion" or "advocacy" of
a "particular point of view".

89. As Sec. 66A severely curtails information that may be sent on the internet based on whether
it is grossly offensive, annoying, inconvenient, etc. and being unrelated to any of the eight
subject matters Under Art. 19(2) must, therefore, fall foul of Art. 19(1)(a), and not being saved
Under Art. 19(2), is declared as unconstitutional.

90. In similar case, Under Art. 14 and 21 rights are breached inasmuch there is no intelligible
differentia between those who use the internet and those who by words spoken or written use
other mediums of communication. (E.P. Royappa v. State of Tamil Nadu (1974))

91. The U.S. Supreme Court has also held in a series of judgments that “where no reasonable
standards are laid down to define guilt in a Section which creates an offence, and where no
clear guidance is given to either law abiding citizens or to authorities and courts, a Section
which creates an offence and which is vague must be struck down as being arbitrary and
unreasonable.”

44
SHREYA SINGHAL V UOI (2015) 5 SCC 1
 42

92. In Musser v. Utah, a Utah statute which outlawed conspiracy to commit acts injurious to
public morals was struck down. Sec. 66A of the IT Act, 2000 is struck down in its entirety being
violative of Art. 19(1)(a) and not saved Under Art. 19(2). (Romesh Thappar v. State of Madras)

93. The observations of Justice Jackson in are apposite:

“Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the
function of our Government to keep the citizen from falling into error; it is the function of the
citizen to keep the Government from falling into error. We could justify any censorship only
when the censors are better shielded against error than the censored.” (American
Communications Association v. Douds 94 L. Ed. 925)

94. Therefore, in light of all the arguments put forth, it is submitted that FIR under Sec. 66A of
the IT Act, 2000 cannot be filed as it is unconstitutional.
 43

PRAYER

Wherefore, in the light of facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly and respectfully prayed before this Hon’ble SC that it may be pleased
to adjudge and declare:

1. To Declare that, there exists a freedom of speech and expression and a freedom of trade,
occupation and profession over the medium of internet in the same manner as is exercised
otherwise.
2. To Hold that, right to access internet is fundamental right under Part III of the
Constitution.
3. To Hold that, the provisions of the Information Technology Act, 2000 will prevail over
the Bhartiya Nyaya Sanhita, 2023.
4. To Hold that, the action of FIR under Section 66A of the Information Technology Act,
2000 is invalid .

AND PASS ANY SUCH OTHER ORDER, DIRECTION, OR RELIEF THAT IT MAY DEEM
FIT IN THE BEST INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND GOOD
CONSCIENCE.

All of which is humbly submitted on behalf of the Petitioner

(Counsel for Petitioner)

PAGE | 39
MEMORIAL for PETITIONER PRAYER