Moot Memorial

IN THE HON’BLE SUPREME COURT OF INDIANA

IN THE MATTER OF:

PUBLIC INTEREST LETIGATION NO. _____/2014 (Under Article 32 of the Constitution of INDIANA) … PETITIONER

Ms. RUHI SHAH

Versus UNION OF INDIANA

…RESPONDENT

ADVOCATE FOR PETITIONER

NAME: SUKETU KIRANCHNDRA BHATT ROLL No: 301011

Memorial for Petitioner

1|Page

INDEX

1.

LIST OF ABBREVIATIONS………………………………………………. 3

2.

BIBILOGRAPHY AND REFERENCES………………………………….. 4

3.

STATEMENT OF JURISDICTION……….………………………………. 5

4.

SUMMARY OF FACTS……………………………………………………. 6

5.

QUESTIONS OF LAW…………………… ……………………………….. 7

6.

SUMMARY OF ARGUMENTS…………………………………………… 8

7.

BODY OF PLEADINGS…….………………………………………….. 9

8.

PRAYER……………………..……………………………………………12

Memorial for Petitioner

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LIST OF ABBREVIATIONS



IT ACT – Information Technology



AIR- All India Reporting



SC – Supreme Court



SCR- Supreme Court Reports



SCC- Supreme Court Cases



Hon’ble- Honorable



V. - Versus



Art- Article



FIR – First Information Report



PIL- Public Interest Litigation

Memorial for Petitioner

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BIBILIOGRAPHY AND REFERENCES

(A) (B)

LIST OF STATUES  THE CONSTITUTION OF INDIA/ INDIANA, 1950  INFORMATION TECHNOLOGY ACT 2000

(C)

BOOKS REFERRED  THE CONSTITUTION OF INDIA BY NOSHIRVAN H. JHABVALA  INFORMATION TECHNOLOGY ACT 2000, JAMNA DAS & CO.

(D)

INTERNET SOURCES  www.indiankanoon.org  www.lawctopus.com

(E)

CASES CITED  D.S. Nakara V. Union of India  A K Roy Vs. Union of India  Life Insurance Corporation of India & Union of India

Memorial for Petitioner

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STATEMENT OF JURISDICTION TO HON'BLE THE CHIEF JUSTICE OF INDIANA AND HIS COMPANION JUDGES OF THE SUPREME COURT OF INDIANA.

MOST RESPECTFULLY SHOWETH THAT: That the present petition seeks to challenge the constitutional validity of various provisions of the amended Information Technology Act, 2000, under Article 32 of the Constitution of Indiana by way of Public Interest Litigation, including Sections 66A as being violative of constitution of Indiana.

ADVOCATE FOR PETITIONER

Memorial for Petitioner

pg. 5

SUMMARY OF FACTS

 The Petitioner Ms. Ruhi Shah, like many other citizens of this Country is a user of the internet and social networking sites such as Spacebook. The Petitioner is an author and also a social activist who posted a comment and Cartoon on 16th of July 2014 on a social networking site, namely Spacebook. The post was related to a prominent political leader of the national party, Regional Seva Party (RSP). In wake of the comments and picture posted by the Petitioner concerning the leader of RSP, the party activist of RSP filed an FIR on 17th of July 2014 against the Petitioner in the city of Brahmapuri, Avadrastra.  The FIR was filed under Section 66A of the Information Technology Act (IT Act), 2000, which provides for a cognizable offence. Taking cognizance of the FIR the police arrested the petitioner and later released her on bail. On 20th July 2014, again in another incident, two Air Indiana employees, were arrested by the Police in Avadrastra under inter-lia Sec 66 of the IT Act, for putting up content on SpaceBook against a trade union leader and some politicians and were held in custody 14 days .  Aggrieved by the action of the police against the petitioner and other similar incident, the Petitioner has filed the present Writ Petition under Article 32 of the Constitution of Indiana by way of Public Interest Litigation (PIL) on the 4th August 2014.  From the above facts contentions are raised by petitioner Ms. Ruhi Shah is that Section 66 A of the Information Technology Act 2000 is unconstitutional and violates constitution of Indiana.

Memorial for Petitioner

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QUESTIONS OF LAW

1.

Weather the writ petition under Article 32 is maintainable or not?

2. Weather Sec 66A of Information Technology Act 2000 is unconstitutional and violates Fundamental Rights guaranteed under constitution? 3. Weather Section 66A of the Information Technology Act 2000 is Arbitrary, Vague & Unreasonable?

Memorial for Petitioner

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SUMMARY OF ARGUMENTS

1. Weather the writ petition under Article 32 is maintainable or not? •

Petition filed by Ms. Ruhi Shah & others is maintainable because the PIL under Article 32 is filed when there is breach of some public duty or a breach of a constitutional provision which causes injury to the general public, any person may be allowed to file writ petition for such violation. In this case Sec. 66A of Information Technology Act 2000 is violative of fundamental rights guaranteed in chapter-III of constitution of Indiana.

2. Weather Sec 66A of Information Technology Act 2000 is unconstitutional and violates Fundamental Rights guaranteed under constitution? •

vague description of various acts constituting an offence under Section 66A of the IT Act, without any definition or prescription of standards whatsoever and being capable of wanton abuse is violative of the sacrosanct freedom of speech and expression guaranteed by Article 19 (1) (a) of the Constitution and so also violative of Article 14 and 21 of the Constitution

•

vague and arbitrary terms under Section 66A of the amended Information Technology Act, 2000 provides the scope for their blatant abuse by the law-enforcement agencies, thereby prejudicially impacting the enjoyment of the fundamental rights under Chapter III of the Constitution of Indiana

3. Weather Section 66A of the Information Technology Act 2000 is Arbitrary, Vague & Unreasonable? 

When one sends either by means of a Computer, Computer System, Computer Network or using Mobile Phone or any other communication devices, any information, i.e. data, message, text, images, sound, voice, codes, computer programs, software and databases or micro film or computer generated micro fiche, one can be brought under the purview of Section 66A. Section 66(A) in its current form fails to define the categories mentioned in it, which has led to inconsistent and arbitrary use of the provision.



In the case of Sec. 66(A), interpreting it to include any form of communication transmitted using computer resource or communication device renders it to be absurd and arbitrary. It is so vast that is gives a tremendous handle in the hands of the complainant and the police to target anyone.

Memorial for Petitioner

pg. 8

BODY OF PLEADINGS

1. Weather the writ petition under Article 32 is maintainable or not? •

Petition filed by Ms. Ruhi Shah & others is maintainable because the PIL under Article 32 is filed when there is breach of some public duty or a breach of a constitutional provision which causes injury to the general public, any person may be allowed to file writ petition for such violation. In this case Sec. 66A of Information Technology Act 2000 is violative of fundamental rights guaranteed in chapter-III of constitution of Indiana.

•

Case Explaining Scope of PIL : In D.S. Nakara V. Union of India, (1983 1 S.C.C., 305) The Supreme Court explained the scope of public interest litigation in the following words: “Any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the constitution or the law, and seek enforcement of such public duty and observance of such constitutional or legal provisions.” In this writ petition, petitioner Ms. Ruhi Shah is an author and also a social activist who posted a comment and Cartoon on 16th of July 2014 on a social networking site, namely Spacebook. The post was related to a prominent political leader of the national party, Regional Seva Party (RSP). In wake of the comments and picture posted by the Petitioner concerning the leader of RSP, the party activist of RSP filed an FIR on 17th of July 2014 against the Petitioner in the city of Brahmapuri, Avadrastra. The FIR was filed under Section 66A of the Information Technology Act (IT Act), 2000, which provides for a cognizable offence. Taking cognizance of the FIR the police arrested the petitioner and later released her on bail. Due to this reasons petitioner Ms. Ruhi Shah has sufficient interest to file the PIL for unconstitutionality of the Sec. 66A of the Information Technology Act, 2000.

2. Weather Sec 66A of Information Technology Act 2000 is unconstitutional and violates Fundamental Rights guaranteed under constitution? •

That the phraseology of Section 66A of the IT Act, 2000 is so wide and vague and incapable of being judged on objective standards, that it is susceptible to wanton abuse and hence falls foul of Article 14, 19 (1) (a) and Article 21 of the Constitution.

•

That all terms constituting an offence under Section 66 A of the IT Act have not been defined either under the IT Act, 2000 or under the General Clauses Act or under any other legislation and thus susceptible to abuse and consequentially violative of Article 14 and 21 of the Constitution. That there have been so many examples where the alleged misuse and abuse of section 66A IT act have hit national headlines. They include the application

Memorial for Petitioner

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of this section in the cases of Ms Shaheen Dadha, a 21-year-old girl, who was arrested for questioning the shutdown of the city after Shiv Sena Chief Bal Thackeray's death in her post on Facebook, which was 'liked' and shared by her friend, Renu, who was also arrested by Thane Rural police in Maharashtra; businessman Ravi Srinivasan, who was arrested by Puducherry police in October 2012 for his tweets about Union Finance Minister Sri P. Chidambaram’s son, Karthi Chidambaram; Ambikesh Mahapatra , a Kolkata professor, who was arrested in April 2012 for posting cartoons critical of Ms Mamata Banerjee on social networking sites, Nandakumar Venkataraman, CEO-designate of Ecole Mondiale International School, Chennai, arrested in 2008 by the Thane Cyber Crime Cell, Maharashtra for hosting an allegedly libellous blog about a company’s board of governors.

•

That Section 66A IT Act has led to extensive abuse and misuse because of its extreme vagueness, incongruity, looseness and ambiguity. This section violates the Fundamental Right under Article 19(1)(a), which guarantees that all citizens shall have the right to freedom of speech and expression, subject to reasonable restrictions provided under Article 19(2), i.e. in the interests of the sovereignty and integrity of Indiana, 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.

•

That the vague and wide terms employed in Section 66A of the amended Information Technology Act, 2000 are incapable of being judged on objective standards and are susceptible to wanton abuse and hence are violative of Articles 14, 19 & 21 of the Constitution of Indiana. Seen in the context of the law of the land decided by this Hon’ble Court in A K Roy Vs. Union of India (1982) 1SCC 271, it may be submitted that Section 66A of the amended Information Technology Act, 2000 is capable of wanton abuse and further capable of being extended cavalierly in such a manner as to allow the deprivation of the personal liberty of people, which per se would be a flagrant violation of the principle of fairness and justness of procedure that is implicit in Article 21 of the Constitution of Indiana.

•

That Section 66A of the amended Information Technology Act, 2000, is capable of tremendous abuse which could have a chilling effect on online free speech. Its arbitrary invocation has elicited strident protests from all sections of the stakeholders, including the online community.

•

That as per the established law of the land, the constitutional protection of free speech is calculated to insulate the freedom from such a “chilling effect”. Section 66A of the amended Information Technology Act, 2000 allows the institution of criminal proceedings on frivolous grounds against law abiding citizens exercising legitimate freedom of speech and expression as guaranteed to them under Article 19 of the Constitution of Indiana, which by itself is tantamount to harassment of bona fide law abiding citizens, inadequately mitigated by eventual discharge.

Memorial for Petitioner

pg. 10

•

That Section 66A IT Act is extremely vague, wide, all pervasive, confusing, incongruent and ambiguous, and violates the Fundamental Rights of the citizen under Articles 14, 19 and 21 of the Constitution of Indiana, and has all the possibility of being misused and abused.

•

The Section 66A of the Information Technology Act negates the law laid down in Life Insurance Corporation of India & Union of India & Anr. vs. Prof Manubhai D. Shah & Cinemart Foundation AIR 1993 SC 171, wherein the Court held the freedom of speech to be a basic human right in the following words: o “Speech is God's gift to mankind. Through speech a human being conveys his thoughts, sentiments and feelings to others. Freedom of speech and expression is thus a natural right which a human being acquires on birth. It is, therefore, a basic human right. "Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers" proclaims the Universal Declaration of Human Rights (1948). The People of Indiana declared in the Preamble of the Constitution which they gave unto themselves their resolve to secure to all citizens liberty of thought and expression. The words 'freedom of speech and expression' must, therefore, be broadly construed to include the freedom to circulate one's views by words of mouth or in writing or through audio-visual instrumentalities. It, therefore, includes the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this free country, therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution.”

3. Weather Section 66A of the Information Technology Act 2000 is Arbitrary, Vague & Unreasonable? •

That the Information Technology Act, 2000 was enacted in Indiana as a legislation to provide legal recognition for transactions carried out by means of electronic data interchange and other means of an electronic communication commonly referred to as electronic commerce, which involved the use of alternatives to paper-based methods of communication and storage of information.

•

The following important provisions of the Information Technology Act, 2000, as amended by the Information Technology (Amendment) Act, 2008, are under challenge in the present petition.

“Section 66A- 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

Memorial for Petitioner

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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 makes 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 two three years and with fine. Explanation:- For the purposes of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.” All wide meaning terms used under Section 66A of the I.T. Act, such as annoyance, inconvenience etc., have not been defined, which itself provides huge amount of flexibility in Section 66A to be used in any circumstances perceivable. Thus, large portions of legitimate free online speech could also be brought within the ambit of the section. Given the advent of technology and the way people are misusing the same, there could be millions of situations which could qualify as offences under Section 66A. Therefore, it is submitted that Article 66A of the I.T. Act is vague in character and should hence be wholly struck down.

Memorial for Petitioner

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PRAYER

Wherefore, in light of the facts of the case, issues raised, arguments advanced & authorities cited; this Hon’ble Court may be graciously pleased to adjudge and declare that:

1. Issue appropriate writ declaring Section 66A of the amended Information Technology Act, 2000 as violative of Articles 14, 19 & 21 of the Constitution of Indiana and hence unconstitutional. AND/OR Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience. FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALLEVER PRAY. Filed by: ADVOCATE FOR THE PETITIONER

FILED ON:

Memorial for Petitioner

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Memorial for Petitioner

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