memorial moot court ashok kumar moot court 2, Summaries of Law

Download memorial moot court ashok kumar moot court 2 and more Summaries Law in PDF only on Docsity! BEFORE THE HON’BLE SUPREME COURT OF BHARAT CIVIL WRIT PETITION NO. ____ OF 2023. IN THE MATTER OF MS. HERMOINE & HARRY ......................PETITIONER VERSUS UNION OF INDIA ......................RESPONDENT UPON SUBMISSION TO THE HON’BLE SUPREME COURT OF BHARAT. ------------------------------------------------------------------------------ MEMORANDUM ON BEHALF OF THE PETITIONER ------------------------------------------------------------------------------ TABLE OF CONTENTS SR NO. INDEX PAGE NO. 1. LIST OF ABBREVIATION. 3 2. INDEX OF AUTHORITIES. 4 3. STATEMENT OF JURISDICTION. 5 4. STATEMENT OF FACTS 6-8 5. STATEMENT OF ISSUES 9 6. SUMMARY OF ARGUMENTS 10- 11 7. ARGUMENT ADVANCED 12 - 17 8. PRAYERS 18 9. DOCKET 19 STATEMENT OF JURISDICTION The Petitioners has approached the Hon’ble Supreme Court of Bharat for safeguarding and enforcement of their most basic Fundamental Rights under Article 32 of Constitution of Bharat. ARTICLE 32 OF CONSTITUTION OF BHARAT (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court 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 exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. STATEMENT OF FACTS 1. The Republic of Bharat is extremely diverse and has an enormous population size. Inspite of a stark digital divide persisting in the country, cheap access to internet has enabled the citizens of Bharat [across all ages] to use and spend a major chunk of their daily time using the internet and social media. 2. WhereApp is one of the most prominent online-messaging applications used in Bharat. In fact, Bharat has a greater number of WhereApp users than any other country with an active monthly user base of 390 million. Due to its immense popularity, WhereApp has time and again gathered controversy for its role in several incidents of mob lynching, due to spread of fake news and misinformation. 3. One of the most important features of WhereApp is the use of end- to-end encryption technology, which ensures complete privacy of its users and helps in keeping the exchange of messages between two or more people secure and private. Bharat’s Ministry of Technology (“MoT”) in exercise of the powers conferred under the appropriate sections of its Information Technology Act, enacted the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2022 (“IT Rules”) in May 2022. Soon after the enactment, the IT Rules received a severe backlash due to its mandate of requiring online communication applications like WhereApp to help in the identification of “first-originator‟ of information after receiving appropriate orders. 4. Ms. Hermoine, a social activist immediately approached the Hon’ble Supreme Court of Bharat, citing various provisions of the IT Rules “problematic for people’s privacy”. WhereApp also released an official statement, clearly highlighting that adherence to the mandate under IT Rules will lead to a compromise in people’s right to free speech and privacy. MoT responded and strongly rebutted this statement and said- “WhereApp’s statement is an attempt to dictate terms to the world’s largest democracy. Through its actions and deliberate defiance, WhereApp seeks to undermine Bharat’s legal system. Furthermore, WhereApp is refusing to comply with the very regulations in the intermediary guidelines on the basis of which it claims safe harbour protection from any criminal liability in Bharat.” 5. While the IT Rules debate was ongoing, the State of Bharat enacted their new Telecommunications Act [hereinafter, “The Act”] with an aim to consolidate and amend the laws governing provision, development, expansion and operation of telecommunication services, telecommunication networks and telecommunication infrastructure and assignment of spectrum, etc. There was a lot of hue and cry by digital rights organizations and non-profit organizations concerning Section 24(2) of The Act which states: On the occurrence of any public emergency or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central or a State Government, may, if satisfied that it is necessary or expedient to do so, in the interest of the sovereignty, integrity or security of Bharat, friendly relations with foreign states, public order, or preventing incitement to an offence, for reasons to be recorded in writing, by order: (a) Direct that any message or class of messages, to or from any person or class of persons, or relating to any particular subject, brought for transmission by, or transmitted or received by any telecommunication services or telecommunication network, shall not be transmitted, or shall be intercepted or detained or SUMMARY OF ARGUMENTS 1. Whether the Petition under Article 32 is maintainable before the Hon’ble Supreme Court of Bharat? It is humbly submitted by the Ld. Counsel of Petitioners before this Hon’ble Supreme Court of Bharat that the grounds stated and arguments advanced are sufficient for the sake of maintainability of this Petition before the Hon’ble Supreme Court of Bharat. 2. Whether the relevant provisions under IT Rules are ultra vires to the Constitution of Bharat? It is humbly submitted by the Ld. Counsel of Petitioners before this Hon’ble Supreme Court of Bharat that the relevant provisions as stated in the relevant provision of the IT Rules breaches and/or Obliterates the most basic Fundamental Right which is provided for in the Constitution of Bharat under Article 21 and hence it is Ultra vires to the Constitution of Bharat. 3. Whether the relevant provision under the Telecommunication Act, ultra vires to the Constitution of Bharat? It is humbly submitted by the Ld. Counsel of Petitioners before this Hon’ble Supreme Court of Bharat that the relevant provisions as stated in the relevant provision of the IT Rules breaches and/or infringes the most basic Fundamental Right which is provided for in the Constitution of Bharat under Article 21 and Article 19(1)(a) and hence it is Ultra vires to the Constitution of Bharat. ARGUMENTS ADVANCED 1. Whether the Petition under article 32 is maintainable? OUR LEGAL SUBMISSION: 1. On the base of the fact as mentioned by the Petitioners that pointed out that “MoT” wants the WhereApp to help in identification of the First originator of Message. Hence breaking their End to End encryption technology. 2. Whereas the State of Bharat have framed the new law which brings under their purview “OTT” and “Internet Based Communication Service” which targets to break the End to End Encryption and also violates the basic Fundamental Rights which are so provided in the Constitution of Bharat. Article 21 i.e. Right to Privacy and Article 19(1)(a) i.e. Freedom of Speech which are under attack or under gross violation due to the said IT Rules and Telecommunication Act. CITATION: IN THE CASE OF JUSTICE K.S. PUTTASWAMY (RETD.) & ANR. VS. UNION OF INDIA & ORS. (2017) 10 SCC 1, AIR 2017 SC 4161. Encryption. Now if the rules are implemented this will result in breach of their privacy of the person or an individual using such application. Hence there will be a gross violation of privacy on account of such rules. 3. On the other hand, According to the Constitution of Bharat it is stated Article 13(2) that state shall not make any law which takes away or abridges the fundamental rights. CITATION: AMAR SINGH V. UNION OF INDIA [(2011) 4 AWC 3726 SC] In this case, the petitioner had alleged that his calls were being tapped unauthorizedly by his telecom service provider. He had claimed that the alleged tapping was violating his fundamental right to privacy under Article 21 of the Constitution of India. The service provider had argued that it was complying with the government orders. This case is important in the context of Sections 69, 69A, and 69B of the IT Act, 2000. The court observed that a telecom service provider performs a function of public nature. It is his inherent duty to act carefully and in a responsible manner. Furthermore, it was observed that when the orders of the government 'to tap calls' have gross mistakes, then the service provider must verify the authenticity of such orders. The court also directed the Central Government to frame certain directions/guidelines to prevent unauthorized interception of calls. 3. Whether the provisions under the IT Rules and Telecommunication Act are in commensurate with the Government of Bharat’s policy on Telecommunication and Information Technology? OUR LEGAL SUBMISSION: 1. Whereas on the other hand inclusion of under the purview of “OTT” and “Internet Based Communication Service” under the Telecommunication Act. Will inherently target the basic right of Freedom of Speech as well as expression as stated in the Article 19(1)(a) of the Constitution of Bharat. As it is stated in the Section 24(2) of the said Act. In the following way a. any message or class of messages shall not be transmitted, or shall be intercepted or detained or disclosed to the Officer as mentioned b. communication or class of communication shall be suspended. 2. On the other hand it will also result to target the End to End Encryption as the messages and communication of the people will be intercepted by the “DoT”. This will breach the Article 21 of Constitution of Bharat. CITATION: ARUNA RAMACHANDRA SHANBAUG V. UNION OF INDIA & ORS, it was held that in common law it is the right of every individual to have the control of his own person free from all restraints or interferences of others. Every human being of adult years and sound mind has a right to determine what shall be done with his own messages and social media presence. Section 24(2) of The Act which states: On the occurrence of any public emergency or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central or a State Government, may, if satisfied that it is necessary or expedient to do so, in the interest of the sovereignty, integrity or security of Bharat, friendly relations with foreign states, public order, or preventing incitement to an offence, for reasons to be recorded in writing, by order: (a) Direct that any message or class of messages, to or from any person or class of persons, or relating to any particular subject, brought for transmission by, or transmitted or received by any telecommunication services or telecommunication network, shall not be transmitted, or shall be intercepted or detained or disclosed to the officer mentioned in such order; (b) Direct that communications or class of communications to or from any person or class of persons, or relating to any particular subject, transmitted or received by any telecommunication network shall be suspended.