TEAM CODE - 17

Intra Moot Court Competition 2.0

Before the Hon’ble Apex Court

WRIT PETITION (CIVIL) NO. ______ OF [2024]

IN THE MATTERS OF:

KISHAN and SHYAM PETITIONERS

V.

UNION OF THE REPUBLIC OF BHARAT ...RESPONDENTS

Memorial filled in behalf of Petitioners

[This Memorandum has been prepared for the Petitioners: Mr. Kishan and
Shyam].

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 TABLE OF CONTENTS

List of abbreviations ......……………………….……………………………... 03

Index of authorities ......………………………….……………………………. 05

Statement of jurisdiction ...……………………….…………………………… 07

Statement of facts ………………………………….……………………….…. 08

Issues to be considered …………………………….…………………...…….. 10

Summary of arguments …………………………….…………………………. 11

Written arguments ………………………………….…………………………. 13

ISSUE 1: WHETHER THIS WRIT PETITION UNDER ARTICLE 32 OF

THE CONSTITUTION IS MAINTAINABLE OR NOT? ....……..…… 13

ISSUE 2: WHETHER ANY FUNDAMENTAL RIGHTS ENSHRINED

UNDER ARTICLE 14,19 AND 21 OF THE CONSTITUTIONOF
BHARAT ARE VIOLATED OR NOT? ………………….……………. 17

ISSUE 3: WHETHER THE IT AMENDMENT RULES 2023 PROVIDE

ADEQUATE PROCEDURAL SAFEGUARDS TO PREVENT OF
POWERS BY THE FACT -CHECKING UNIT AND EXCEED THE
REGULATORY POWERS GRANTED TO THE GOVERNMENT
UNDER THE INFORMATION TECHNOLOGY ACT 2000? ..………. 27

Prayer ……………………………………………………………….………… 32

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 LIST OF ABBREVIATIONS

Abbreviation Expansion

& And

AIR All India Reporter

Art. Article

Const. Constitution

F.R. Fundamental rights

FCU Fact Check Unit

Ed. Edition

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Govt. Government

Hon’ble Honorable

I.T. Information Technology

Moot Proposition Statement of facts, Intra Moot Court Competition 2.0

No. Number

SC Supreme Court

Sec. Section

SCC Supreme Court Cases

SCR Supreme Court Reports

V. Versus

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 INDEX OF AUTHORITYS

STATUES REFERRED:

1. The Information Technology Act, 2000

2. The Information Technology (Amendment) Act, 2023

3. The Indian Constitution, 1950 (Articles 14, 19, 21, 32)

BOOKS REFERRED:

1. Constitutional Law of India" by H.M. Seervai (4th ed. 2023)

2. Information Technology Law" by D.P. Mittal (ed. 2022)

3. The Information Technology Act, 2000"by Apar Gupta (2nd ed. 2011)

LEXICONS:

1. Black's Law Dictionary by Bryan A. Garner (Latest edition: 11th ed.,

2019)

2. The Law Lexicon by P. Ramanatha Aiyar (Latest edition: 3rd ed., 2016)

CASES REFERRED:

1. Navtej Johar v. Union of India (2018) 10 SCC 1

2. State of Gujarat v. Shri Mohanlal Jitamalaji (2014) 5 SCC 417

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

4. Sabu Mathew George v. Union of India (2018) 2 SCC 56

5. Kesavananda Bharati v. State of Kerala (1973) AIR 1973 SC 1461

6. Kochuni v. State of Madras (1959) AIR 1959 SC 725

7. Kharak Singh v. State of U.P. (1963) AIR 1963 SC 1295

8. Daryo v. State of Uttar Pradesh (1961) AIR 1961 SC 1457

9. M.P. Jain & S.N. Jain, Principles of Administrative Law (8th ed., 2017) p.
2148

10. Kihota v. Zachilhu (1993) AIR 1993 SC 412

11. Fertilizer Corporation Kamgar Union v. Union of India (1981) AIR 1981
SC 344

12. Romesh Thappar v. State of Madras (1950) AIR 1950 SC 124

13. Daryo v. State of Uttar Pradesh (1961) AIR 1961 SC 1457

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 STATEMENT OF JURISDICTION

It is most humbly submitted the Petitioners approached Honorable Apex Court,

invoking Article 32 of the Constitution of the Republic of Bharat asserting
violations of Fundamental Rights guaranteed under Constitution of republic of
the Republic of Bharat seeking redress through Writ Petitions.

The circumstances warrant that this Hon’ble Court is vested with the jurisdiction
to entertain, try, and dispose of the matter.

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 STATEMENT OF FACTS

1. The Republic of Bharat is based on constitutional values like socialist,

sovereign, democratic, secular & having laws Pari Materia of those of the
Republic of India. It also grants fundamental rights and constitutional remedies
to its citizens

2. The Republic of Bharat is a growing and prospering nation and grants legal
recognition to electronic records while addressing cybercrimes and providing a
structured framework for e-governance. The legislation also focused on data
protection and privacy.

3. The Republic of Bharat's Parliament introduced the I T (Amendment) Act,

2023, which established a Fact-Checking Unit (FCU) to identify and remove
online content it deemed "false" or misleading. The govt. framed the unit as a tool
to curb misinformation and promote accountability.

4. Critics argued that the amendment granted the state disproportionate control
over digital speech. The amendment jeopardizes India's democratic fabric and
fundamental rights. With the FCU empowered to take down flagged content
without independent oversight or transparent criteria, fears arose that it could be
misused to suppress dissent and check critical discourse.

5. Kishan, a social media influencer, and Shyam, a dedicated activist, became

central figures in a heated national debate. Both had built large followings by
advocating for marginalized communities and highlighting government
shortcomings. Following the enactment of the recent amendment, however, both
faced an unexpected crackdown. Several of Shyam's posts, which addressed

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public concerns and critiqued government policies, were flagged and removed by
the Fact-Checking Unit (FCU). The flagged post includes

(I)"The military and police have surfaced as instruments of privacy

invasion for the preeminent politician in this nation."

(ii). “The Indian government's budget and defense are like a Bollywood
plot twist: full of drama, unexpected cameos, and zero logic.”

(iii). “They promise roads but deliver potholes, with ‘Make in Bharat’
turning into ‘Fake in Bharat’—the only thing rising briskly than inflation
is the terrorism in Bharat.”

(iv). “Why did the government invite terrorists in their political campaign?
They heard 'vote for us or else' is a great slogan!”

6. After Shyam’s posts were flagged, Kishan posted a reel in support, but his
account was soon banned by the FCU, silencing both their voices and followers
without explanation.

7. Concerns also arise under Article 14, questioning whether the FCU's opaque
criteria for flagging content meet standards of reasonableness and equality before
the law, as dissenting voices seem disproportionately targeted.

8. Kishan and Shyam argue that the IT (Amendment) Act, 2023, granting the FCU
broad powers, restricts digital speech without proper safeguards, making the
state’s actions excessive relative to its goal of controlling misinformation. They
have filed a petition in the Apex Court, challenging the Act under Articles 14, 19,
and 21 of the Constitution of Bharat.

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 ISSUES TOO BE CONSIDERED

1. Whether this writ petition under Article 32 of the Constitution is

maintainable or not?

2. Whether any Fundamental Rights enshrined under Article 14, 19, and
21 of the Constitution of Bharat are violated or not?

3. Whether the IT Amendment Rules 2023 provide adequate procedural

safeguards to prevent of powers by the Fact -checking Unit and exceed
the Regulatory powers granted to the government Under the
Information Technology act 2000?

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 SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THIS WRIT PETITION UNDER ARTICLE 32 OF

THE CONSTITUTION IS MAINTAINABLE OR NOT?

The Writ Petitions filed by the petitioners are maintainable under Article 32 of
the Constitution of Bharat due to the prima facie violation of their fundamental
rights. The petitioners, Mr. Kishan and Mr. Shyam, have locus standi as they have
been directly affected by the actions of the state through the implementation of
the Fact-Checking Unit (FCU), which infringes upon their rights under Articles
14, 19, and 21. Article 32 empowers individuals to approach the Supreme Court
for the enforcement of these rights, and the Court has a duty to protect
fundamental rights when they are violated. The availability of alternative
remedies does not hinder the maintainability of these petitions, as Article 32
allows for direct appeals without the need to exhaust other options. This
reinforces the Court's responsibility to safeguard citizens' fundamental rights and
ensure justice is served.

ISSUE 2: WHETHER ANY FUNDAMENTAL RIGHTS ENSHRINED

UNDER ARTICLE 14,19 AND 21 OF THE CONSTITUTIONOF BHARAT
ARE VIOLATED OR NOT?

Kishan and Shyam contend that the IT (Amendment) Act, 2023, particularly its
establishment of the Fact-Checking Unit (FCU), violates their fundamental rights
under Articles 14, 19, and 21 of the Constitution of Bharat. The FCU has the
authority to remove content deemed "false" or "misleading" without independent
oversight, which leads to arbitrary suppression of critical discourse regarding

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government policies and infringes on their freedom of speech and expression.
This lack of transparency in the FCU’s operations denies them the opportunity to
contest content removal, undermining principles of natural justice and procedural
fairness. Consequently, they argue that the Act imposes disproportionate
restrictions on their rights, affecting their ability to engage in public discourse
and impacting their professional roles as influencers and activists. They seek
judicial review to address these constitutional violations.

ISSUE 3: WHETHER THE IT AMENDMENT RULES 2023 PROVIDE

ADEQUATE PROCEDURAL SAFEGUARDS TO PREVENT OF
POWERS BY THE FACT -CHECKING UNIT AND EXCEED THE
REGULATORY POWERS GRANTED TO THE GOVERNMENT UNDER
THE INFORMATION TECHNOLOGY ACT 2000?

The IT (Amendment) Rules, 2023, establishing the Fact-Checking Unit (FCU),

are criticized for lacking adequate procedural protections against arbitrary
actions. Influencers Kishan and Shyam faced content removals and account bans
after criticizing government policies, highlighting issues such as a lack of
transparency, absence of due process, no independent oversight, and insufficient
appeal mechanisms. Critics argue that these rules exceed the regulatory powers
granted under the original IT Act, 2000, which focused on e-commerce and
cybersecurity, and do not provide necessary safeguards against misuse. Judicial
precedents emphasize the need for reasonable restrictions on digital speech,
further raising concerns about the constitutionality of the new rules. Overall, the
IT (Amendment) Rules may violate fundamental rights enshrined in Articles 14,
19, and 21 of the Constitution.

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 WRITTEN ARGUMENTS

ISSUE 1: WHETHER THIS WRIT PETITION UNDER ARTICLE 32 OF

IS THE CONSTITUTION MAINTAINABLE OR NOT?

1. It is humbly submitted that the Writ Petitions filed by the petitioners are
maintainable under Art. 321 of the Constitution of Bharat.

I. The petitioners have locus standi in this case due to a prima facie
violation of citizens' fundamental rights.
II. The Hon'ble Court has the jurisdiction to hear this matter.
III. The existence of alternative remedies does not bar the admissibility
of these petitions.

[I] The petitioners have locus standi in this case due to a prima facie
violation of citizens' fundamental rights.

2. In order to have the locus standi, the person or body approaching must have
enforceable fundamental rights2. Further, the rule of locus standi is a self-imposed
restriction by the court for judicial convenience. The rule states that only an
"aggrieved person" is entitled to file a case to seek redress for their grievances. A
person acquires a locus standi when there exists a right that was violated or
threatened to be violated3.

1
CONST. OF BHARAT art.32
2
2 State of Haryana v. Ram Kumar Mann, (1997) 3 SCC 321.
3
Trilok Singh & Co. v. District Magistrate Lucknow, AIR 1976 SC 1988

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Violation of the right to speech and expression of Mr. Kishan and Mr. Shyam
entitles them to file a writ petition

3. In the present case, Mr. Kishan and Mr. Shyam were directly and substantially
affected by the action of the legislative through the implementing FCU. Article
32 of the Constitution provides individuals with the right to seek enforcement of
fundamental rights by moving the Supreme Court through suitable legal
proceedings.

4. Rights conferred by Part III of the Constitution4. As this Court is constituted

as the protector and guarantor of the Fundamental Rights5 it is clear that this Court
cannot refuse to entertain a petition where a fundamental right has been
infringed6.

5. In the present case, the provisions related to the FCU violate their fundamental
right. Enshrined in the provisions of Articles 14, 19, and 21 of the Constitution of
Bharat. Freedom provided under Art. 19 of the Constitution is necessary to protect
the freedom of speech and expression of the citizens.7 Infringement of this right
would be a grave and unacceptable breach of constitutional principles.8

4
Sukhdev and Ors v. Bhagat Ram and Ors., AIR 1975 SC 1331.
5
Romesh Thapar v. State of Madras, AIR 1950 SC 124.
6
Basappa v. Nagappa, AIR 1954 SC 440.
7
Shreya Singhal v. Union of India (2015) 5 SCC 1
8
Lohania v. Union of India (1960) 2 SCR 821

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6. It is also contended that Art. 19 coupled with Art. 32 of the Constitution
provides the It is also contended that Art. 19 coupled with Art. 32 of the
Constitution provides the right to speech and expression of every person, and if
there has been a violation of Art. 199 it would be the Court’s bounded duty to step
in to protect those rights against the unlawful attack by the state. Therefore, the
right to seek redress from this Court is fundamental to the democratic structure
established by the Constitution.

[II]. The apex court has the jurisdiction to hear the present matter.

7. Article 32's jurisdiction is an essential and inherent part of the Constitution's

basic structure10 as it provides an effective remedy for the enforcement of the
fundamental right.11 Upon violation, the Supreme Court bears the responsibility
to safeguard and ensure the enforcement of fundamental rights.12 Therefore, the
Supreme Court is duty-bound to hear the petitioner and protect fundamental
rights.

[III]. The availability of alternative remedies does not preclude the

maintainability of these petitions.

8. It is humbly submitted that Article 32 is a fundamental right, and thus,

the presence of an alternative remedy does not prevent the Supreme Court

9
M.P. JAIN & S.N. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW 2148
(8th ed., 2017).
10
Kihota v. Zachilhu, AIR 1993 SC 412
11
Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 344.
12
Romesh Thappar v. State of Madras, AIR 1950 SC 124.

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 from accepting a petition under Article 32 to safeguard fundamental
rights.13

9. In the present case, Mr. Kishan and Shayam have filed a writ petition for the
enforcement of a fundamental right, therefore, a writ petition under Article 32,
being a fundamental right itself, serves as the most effective remedy14 Once this
Court is satisfied that the petitioner's fundamental right has been infringed, it is
not only its right but also its duty to afford relief to the petitioner,15 and it is not
necessary for him to prove that he lacks other sufficient remedies or that he has
utilized all available legal remedies.16 Therefore, it is a well settled rule that when
the petitioner establishes infringement of his fundamental right, the court has no
other discretion but to issue an appropriate writ in his favor.17

10. Further, there is no expression in Art. 32, which makes its exercise subject to
Art. 226. It is a well settled position of law that simply because a remedy exists
for filing a writ in the High Court concerned, it does not prevent or place any bar
on an aggrieved person to directly approach the Supreme Court under Art. 3218.
Not only that, but it also devalues the whole gamut of fundamental rights. In
factum, this would inevitably cause unnecessary delay and prove costlier to the
petitioner than a writ petition directly to this Hon'ble Court under Art. 32. 19

13
Daryo v. State of Uttar Pradesh, AIR 1961 SC 1457
14
Supra note 9, at 2147.
15
Kochuni v. State of Madras, AIR 1959 SC 725.
16
Kharak Singh v. State of U.P., AIR 1963 SC 1295
17
Daryo v. State of Uttar Pradesh, AIR 1961 SC 1457.
18
Supra note 9, at 2148.
19
Id. at 2151

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11. In the light of the aforementioned arguments, it is firmly established that the
state has violated various fundamental rights guaranteed under the Constitution
of Bharat. It is therefore most humbly prayed before this Hon'ble Court that this
Hon'ble Court is laid with the responsibility to protect and guarantee the
Fundamental Rights, and since in the present case the Fundamental Rights of the
petitioner have been violated, the writ petition filed by the petitioners be accepted.

ISSUE 2: WHETHER ANY FUNDAMENTAL RIGHTS ENSHRINED

UNDER ARTICLE 14,19 AND 21 OF THE CONSTITUTIONOF BHARAT
ARE VIOLATED OR NOT?

12. It is humbly submitted that Articles 14, 19, and 21 of the Constitution of
Bharat are fundamental rights integral to the Basic Structure Doctrine 20,
safeguarding the principles of equality, freedom of speech and expression, and
the right to personal liberty. Are being violated. These freedoms are essential for
protecting the citizen’s right to equal treatment, the free exchange of ideas, and
personal autonomy. Any infringement of these rights would constitute a serious
and unacceptable violation of core constitutional principles.

13. Therefore, it respectfully submitted that art. 14, 19, & 21 are being violated
on the grounds followed by.

I. Infringing on the freedom of speech and expression [Art. 19(1)(a)]

20
Kesavananda Bharati v. State of Kerala (1973) AIR 1973 SC 1461

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 II. Limits the freedom to pursue one’s profession [Art. 19(1)(g)]
III. Contravenes the principles of natural justice [Art. 14]
IV. Safeguarding life and personal liberty [Art. 21]

[I]. Infringing on the freedom of speech and expression [Art. 19(1)(a)]

14. Art. 19(1) (a) 21

of the Const. of Bharat grants every citizen the right to
freedom of speech and expression.

This right is granted exclusively to Indian citizens and does not extend to foreign
nationals. It includes the freedom to express one’s views and opinions on any
subject through various forms, such as speech, writing, print, images, or other
media. This right is not absolute, allowing the government to enact laws that
impose certain reasonable restrictions22 where necessary.

15. However, in this present case, the state introduced a body called FCU, that
keeps a check on content which seems deemed misleading to the state.

16. The establishment of the FCU under the IT (Amendment) Act, 2023, has
raised issues about whether these rights are being unduly restricted, the FCU
empowered to take down flagged content without independent oversight or
transparent criteria

21
CONST. OF BHARAT art 19(1)(a)
22
CONST OF BHARAT art 19(2)

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17. Kishan, a social media influencer, and Shyam, an activist. Both are working
on exposing govt. shortcomings and for the betterment of society. After the
enactment of FCU, both influencers faced an unexpected crackdown. Several of
Shyam's posts criticizing government policies and discussing public concerns
were flagged and taken down by the FCU.

18. The flagged posts included:

i. "In this country, the military and police have become tools for invading
privacy on behalf of the highest political powers."

ii. "The Indian government's budget and defense policies resemble a

Bollywood film: filled with drama, surprise appearances, and a lack of
rationality."

iii. "They promise highways but deliver potholes, turning 'Make in Bharat' into
'Fake in Bharat'—the only thing increasing faster than inflation is the threat of
terrorism in Bharat."

iv. "Why did the government include terrorists in their campaign events?
Because they believe the slogan 'vote for us or else' works wonders!"

19. In response to Shyam’s post being taken down, petitioner Kishan posted a
reel on his social media account addressing the problem, only to have his account
banned by FCU and the content deleted without any explanation. Their accounts
got suspended, and the followers were silenced.

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20. It drives that FCU is harming a person’s digital speech and infringes upon
the right to freedom of speech and expression under art. 19(1)(a) of the
constitution of Bharat.23

21. The primary concerns include:

i. Excessive Control over Digital Speech: The FCU has been given
significant powers to remove flagged content without the need for
judicial oversight or transparent criteria. This allows for potential
arbitrary control over what content remains on digital platforms,
especially if it is critical of government policies, as illustrated in the
experiences of Kishan and Shyam. This digital control raises concerns
about the government’s granting excessive control of digital speech
without adequate safeguards to prevent misuse.24
ii. Reasonable Restrictions: The restrictions imposed by a law on the
media are reasonable and relate to the purposes specified in Art. 19(2).
While Article 19(2) 25
allows the government to impose "reasonable
restrictions" on freedom of speech in the interest of public order,
sovereignty, and integrity, these restrictions must pass the test of
reasonableness and proportionality.
• Lack of transparency: the process by which the FCU deems
content "false" or "misleading" lacks transparency, as the criteria
are not clearly defined and independent oversight is absent.
Flagging content has given rise to fear of arbitrary decision-
making, making it difficult for posts that expose govt.

23
Shreya Singhal v. Union of India (2015) 5 SCC 1
24
Sabu Mathew George v. Union of India (2018) 2 SCC 56
25
CONST. OF BHARAT art 19(2)

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 shortcomings or are not in favor of govt. to be flagged or
removed.
• Doctrine of Proportionality: Under the doctrine of
proportionality, restrictions on fundamental rights must be
balanced against the need for such restrictions. While the
government’s aim to curb misinformation is valid, the extent of
control granted to the FCU appears to exceed what is necessary,
as it lacks safeguards to prevent abuse of power. Without judicial
or independent checks, this broad power infringes upon the spirit
of Art. 19, which protects open and democratic dialogue.

22. Conclusion

Kishan and Shyam's petition argues that these restrictions on digital speech under
the IT (Amendment) Act violate their fundamental rights under Article 19(1)(a),
asserting that citizens’ right to free speech and fair participation in public
discourse is constitutionally protected and cannot be restricted without
proportional and reasonable safeguards.

[II]. Limits the freedom to pursue one’s profession [Art. 19(1)(g)]

23. The situation described regarding Kishan and Shyam's experiences under the
I.T. Amendment Act, 2023, violates the right to freedom to pursue one’s
profession under Article 19(1)(g) 26
of the Constitution of Bharat. This art.
guarantees the rights to practice any profession or to carry on any occupation,

26
CONST. OF BHARAT art 19(1)(g)

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trade, or business. Here’s an analysis of how the provisions of the Act may
infringe upon this right.

24. Direct Impact on Professional Activities: Kishan and Shyam, as social

media influencers and activists, depend on their ability to freely express opinions
and engage in public discourse to maintain their professional roles. The FCU’s
authority to remove content deemed "false" or "misleading" can directly
undermine their ability to communicate effectively and serve their audience. The
removal of their content limits their professional engagement and may hinder
their livelihoods, as their influence and income are closely tied to their online
presence.

25. Chilling Effect on Speech: The threat of having their content flagged and
removed creates a chilling effect, discouraging them and others in similar
professions from expressing govt. shortcomings or discussing sensitive issues
that affect society. This fear of repercussions can limit their willingness to speak
out on matters of public interest, which is essential for professionals engaged in
advocacy, journalism, or public commentary.

26. Economic Consequences: The ability to freely communicate and engage

with their audience is crucial for Kishan and Shyam's professional viability. If the
FCU disproportionately censors content that criticizes the government, it could
have significant economic implications for them and others in their field,
constituting a violation of their right to pursue a profession.

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27. Interference with Public Engagement: Article 19(1)(g) not only
encompasses the freedom to pursue a profession but also the freedom to
participate in public discourse. The restrictions imposed by the FCU limit the
ability of individuals like Kishan and Shyam to engage meaningfully with societal
issues, undermining the very essence of democratic participation.

28. Conclusion

Based on the outlined points, it is reasonable to argue that the provisions of the
IT Amendment Act, particularly those related to the establishment and operation
of the FCU, may violate the freedom to pursue one’s profession as guaranteed
under Article 19(1)(g) of the Constitution of Bharat. The potential for arbitrary
action, the chilling effect on free expression, and the economic ramifications
collectively indicate a significant encroachment on their professional rights.
Kishan and Shyam’s petition under Article 32 aims to address these violations
and seek judicial review of the provisions that restrict their fundamental rights.

[III.] Contravene the principles of natural justice [Art. 14] Article 14 of the
Constitution of Bharat

29. Article 14 guarantees the right to equality before the law and equal protection
of the laws to all individuals within the territory of Bharat. This principle
encompasses not just the prohibition of discrimination but also the requirement
of fair and just procedures in administrative actions.27

27
CONST OF BHARAT art 14

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30. Principles of Natural Justice

The principles of natural justice are primarily based on two key tenets:

i. The Right to a Fair Hearing: These principal mandates that individuals

must be given an opportunity to present their case before any action is
taken against them, particularly in matters that could adversely affect
their rights or interests.28
ii. No One Should Be a Judge in Their Own Cause: This principle ensures
that decisions are made impartially, without any bias or conflict of
interest.

31. Analysis

1. If the FCU operates without an external check on its authority, it could

potentially lead to arbitrary actions that fail to respect the principles of
natural justice. In Kishan and Shyam’s case, their content was removed
without any opportunity for them to contest the decision or to present their
side of the argument.

2. The lack of clear and transparent criteria for determining what constitutes
"false" or "misleading" content undermines the principle of fairness. If the
guidelines for flagging content are vague or arbitrary, individuals have no
way to understand what could lead to their content being flagged or
removed, resulting in a form of legal uncertainty that is incompatible with
the principle of equality before the law.

28
State of Gujarat v. Shri Mohanlal Jitamalaji (2014) 5 SCC 417

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 3. Kishan and Shyam were not afforded the opportunity to defend their
statements or appeal the FCU's decisions. The removal of their content
without explanation or a chance to contest these actions violates the right
to a fair hearing, a fundamental aspect of natural justice.

4. The potential for the FCU to suppress dissenting voices creates an

environment where individuals might be hesitant to engage in public
discourse. This can disproportionately affect those who criticize
government policies or actions, further undermining the equal protection
of the law that Art. 14 seeks to uphold.

32. Conclusion

"An assessment of the principles of natural justice in relation to the IT

Amendment Act, 2023, indicates that the provisions involving the FCU could
contravene the principles of natural justice protected under Article 14 of the
Constitution of Bharat."

This rephrasing captures the essence while avoiding direct duplication.

[IV.] Safeguarding life and personal liberty [Art. 21]

33. Article 21 of the Constitution of Bharat states: 'No person shall be deprived
of his life or personal liberty except according to the procedure established by
law.' While reasonable restrictions may be placed on the rights protected under
Article 21 for purposes such as public order, national security, public health, or
morality, these limitations must adhere to principles of fairness, justice, and
proportionality.

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34. The following analysis examines potential violations of this right under the
Act's provisions.

i. Procedure Established by Law: While the Act grants the FCU the power
to remove flagged content, the process by which content is identified as
"false or misleading" is critical. In this present case, the FCU lack of
transparent criteria and the absence of independent oversight in the
process raise concerns about procedural fairness and reasonableness. A
law that empowers such significant action must provide clear, non-
arbitrary standards for its application to comply with Article 21.
ii. Proportionality: This principle ensures that any imposed restrictions are
balanced and not overly excessive29. Critics argue that the powers
granted to the FCU under the Act are disproportionate because: No
Independent Oversight: The FCU's authority to act unilaterally without
judicial or independent checks can lead to potential misuse, suppressing
legitimate dissent and critical discourse. Excessive Control: Suspension
of social media accounts and removal of content without a clear appeals
process, or review mechanism can be viewed as disproportionate
responses to the problem of misinformation. The Supreme Court in
cases like K.S. Puttaswamy v. Union of India (2017) 30 emphasized that
state actions infringing upon privacy and personal liberty must be
necessary and proportionate.

35.Conclusion
Based on the Annalise of IT act. 2023, particularly related to the establishment

29
Navtej Johar v. Union of India (2018) 10 SCC 1 .
30
(2017) 10 SCC 1

MEMORIAL ON BEHALF OF THE PETITIONERS Page | 26

and act of FCU Violets FR under art. 21 that affects the right to life and human
dignity.

Kishan and Shyam’s argument holds that the IT Amendment Act, 2023,
authorizes the FCU in a way that fails to uphold the just, fair, and reasonable
restrictions under Article 21. The combination of arbitrary action, the absence
of Proportionality, procedure established by law, and the chilling effect on free
speech collectively demonstrate how their right to life and personal liberty
could be violated. Therefore, the Act, as it stands, raises significant
constitutional concerns.

ISSUE 3: Whether the IT Amendment Rules 2023 provide adequate

procedural safeguards to prevent powers by the Fact -checking Unit and
exceed the Regulatory powers granted to the government Under the
Information Technology act 2000?

[I]. The IT Amendment Rules 2023 fail to establish adequate procedural

protections against arbitrary actions by fact-checking units. We can
conclude this by looking at the facts given below.

36. Kishan, a social media influencer, and Shyam, an activist. Both are working
on exposing govt. shortcomings and for the betterment of society. After the
enactment of FCU, both influencers faced an unexpected crackdown. Several of
Shyam's posts criticizing government policies and discussing public concerns
were flagged and taken down by the FCU. For the same, Kishan posted a reel on

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his social media account addressing the issue, only to have his account
subsequently banned by the FCU.

So, they contend that the provisions regarding procedural safeguard fail to be
adequate.

37. Adequacy of Procedural Safeguards

Procedural safeguards fail to be considered adequate for the following reasons:

• Transparency: The FCU does not operate under clear and publicly
disclosed criteria for what constitutes "false" or "misleading" content.

• Due Process: Affected parties are not getting an opportunity to be heard

before content is taken down.

• Independent Oversight: Decisions by the FCU are not subject to review by

an independent or judicial authority to prevent misuse.

• Right to Appeal: A well-defined mechanism for appealing the FCU’s

decisions is not present. There is no adequate remedy.

The IT (Amendment) Rules, 2023, appear to lack these safeguards, which raises
questions about potential misuse and the proportionality of restrictions on
freedom of speech.

[II]. Yes, the IT Amendment Act 2023 exceeds the regulatory powers
granted to the government under the Information Technology Act 2000.

38. Scope and Purpose of the IT Act, 2000

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The Information Technology Act, 2000, was enacted to facilitate e-commerce,
secure electronic transactions, and combat cybercrimes. It provided the
government with regulatory powers to manage and control the digital ecosystem,
including the authority to enact rules for the interception and monitoring of data
and content under certain conditions.

39. Powers Granted Under the IT Act, 2000

Section 69A of the IT Act, 2000 empowers the government to issue directions for
blocking public access to any information if it is deemed necessary for: sec. 69A,
the so-called ‘takedown’ provision. 69A Authority to issue directives for blocking
public access to information via any computer resource.

• Sovereignty and integrity of the country

• Defense of the state

• Security of the state

• Public order

• Preventing the incitement of any act that qualifies as a cognizable offense.

These powers are subject to procedural safeguards to prevent arbitrary use,

including oversight by a committee and the opportunity for a hearing.

40. Sec. 79: Provides intermediaries with certain protections, granting them
immunity from liability for third-party content. However, this immunity is
conditional and subject to specific obligations. Under Sec. 79(2), intermediaries
must meet certain criteria to qualify for safe harbor, with Sec. 79(2)(c)
highlighting the obligation to 'exercise due diligence' in the management of their

MEMORIAL ON BEHALF OF THE PETITIONERS Page | 29

platforms. This includes removing unlawful content upon acquiring actual
knowledge or receiving a notification from the appropriate authorities.

41. Provisions of the IT (Amendment) Rules, 2023

The IT (Amendment) Rules, 2023, introduced the Fact-Checking Unit (FCU)

with the authority to:

• Identify and flag online content as "false" or "misleading."

• Direct the removal of such content from online platforms.

The IT (Amendment) Rules, 2023, introduced significant regulatory changes,

including the establishment of the Fact-Checking Unit (FCU), which was vested
with extensive authority to monitor and control online content. The key
provisions related to the FCU include:

42. Regulatory Overreach

The original IT Act 2000 did not explicitly envisage the establishment of a fact-
checking body with the authority to remove content unilaterally. The broad
powers granted to the FCU under the 2023 amendment may exceed the regulatory
intent of the 2000 Act, as it shifts from mere monitoring and blocking to content
moderation based on subjective assessments.

Critics argue that the IT (Amendment) Rules, 2023, extend beyond what was
initially provided for in the parent legislation (the IT Act, 2000), thus constituting
regulatory overreach. The power to regulate content must be balanced against
fundamental rights, particularly Article 19 (freedom of speech and expression)
and Article 14 (equality before the law).

43. Judicial Precedents

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The Supreme Court of India, in cases like Shreya Singhal v. Union of India,31 has
emphasized that restrictions on digital speech must be reasonable and backed by
procedural safeguards. This judgment invalidated vague provisions that allowed
for arbitrary interpretation. If the safeguards under the IT (Amendment) Rules,
2023, do not align with these principles, they could be deemed unconstitutional.

44. Conclusion

The IT (Amendment) Rules, 2023 appear to lack adequate procedural safeguards

to prevent the abuse of power by the FCU. The rules grant substantial authority
to the unit without sufficient oversight, transparency, or an appeals mechanism.
Additionally, these powers may exceed the regulatory scope of the IT Act, 2000,
potentially violating constitutional rights and principles, including those under
Articles 14, 19, and 21.

31
(2015) 5 SCC 1.

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 PRAYER

WHEREFORE, in light of the issues raised, arguments advanced and authorities

cited it is most humbly and respectfully prayed and implored before the Hon’ble
Court, that it may be graciously pleased to adjudge and declare on behalf of the
petitioners that:

1. Declare the IT (Amendment) Act, 2023 unconstitutional, particularly

the provisions relating to the Fact-Checking Unit (FCU), for violating
Articles 14, 19, and 21 of the Constitution of Bharat.
2. Uphold the Petitioners’ right to freedom of speech under Article 19 by
rejecting excessive restrictions imposed by the FCU.
3. Direct the Respondent to implement transparent criteria for flagging
content to prevent arbitrary enforcement, ensuring adherence to Article 14.
4. Mandate independent oversight for the FCU's actions to safeguard due
process under Article 21.

The court may also be pleased to pass any other order, which this Hon’ble Court
may deem fit in light of justice, equity and good conscience. All of which is
respectfully submitted on behalf of the Petitioners.

The Petitioners

Sd/- ..............................

(Counsel for the “Petitioners”)

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