IN THE HON’BLE SUPREME COURT OF

IN THE MATTER OF:

MS. RUHI SHAH …PETITIONER

Versus

UNION OF INDIA …RESPONDENT

APPEAL NOS. _______/2014

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

NAME : PARMAR KRUNAL KUMAR JASHUBHAI

ROLL No : 301090

Written Submissions on Behalf of the Respondent

Memorial for Respondent 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………………………………………………………………….. 8

6. SUMMARY OF ARGUMENTS………………………………………………………… 9

7. BODY OF PLEADINGS……………………………………………………………….. 11

8. PRAYER…………………………………………………………………………………17

Memorial for Respondent pg. 2

 LIST OF ABBREVIATIONS

 Art : Article

 SC : Supreme Court

 UOI : Union of india

 V/s. : Versus

 Hon’ble : Honorable

 PIL : Public Interest Litigation

 FIR : First Information Reports

 SEC : Section

 IPC : Indian Penal Code

Memorial for Respondent pg. 3

 BIBILIOGRAPHY AND REFERENCES

(A) LIST OF STATUES

 THE CONSTITUTION OF INDIA/ INDIANA, 1950

 INFORMATION TECHNOLOGY ACT, 2000
 INDIAN PENAL CODE ,1860

(B) BOOKS REFERRED

 Dr. J.N. Pandey The Constitutional Law Of India

(C) INTERNET SOURCES

 www.indiankanoon.org
 Information technology Act

(D) CASES CITED

 Shreya Singhal V/s UOI

Memorial for Respondent pg. 4

 STATEMENTOF JURISDICTION

TO HON'BLE THE CHIEF JUSTICE OF

AND HIS COMPANION JUDGES OF THE

SUPREME COURT OF

The Petitioner has filed this writ petition under Article 32 of the Constitution of Indiana for the

violation of fundamental rights enumerated in Part III of the Constitution. The Respondent

maintain that no violation of the rights has taken place. Therefore , this Hon’ble Court need not

entertain its jurisdiction in this writ petition.

Memorial for Respondent pg. 5

 SUMMARY OF FACTS

 Ms Ruhi Shah is an author and also social activist. she is also user of the internet and social

networking sites such as spacebook. She posted a comment and cartoon on 16 th 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). The party activist of RSP filed an FIR against the Ms Ruhi on 17th July 2014 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. Police arrested and later released her on bail.

 Another incident again on 20th July 2014, two Air Indiana employees were arrested by the

police in Avadrastra under interlia sec 66 of 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 Ms Ruhi and two air Indiana employees, Ms

Ruhi has filed the present writ petition under Article 32 of the constitution of Indiana, whose

constitution is same as Indian constitution, by way of Public Interest Litigation (PIL) on the 4th

August 2014 seeking the section 66A of the IT Act and certain provisions of the Information

Technology (Intermediaries Guidelines) Rules,2011 as unconstitutional, as violative of

fundamental rights guaranteed under the constitution.

Memorial for Respondent pg. 6

 QUESTIONS OF LAW

1. Whether this writ petition filed by Ms Ruhi, the petitioner is maintainable ? And whether

petitioner is guilty under Indian Penal Code 1860 ?

2. Whether the fundamental Rights of Ms Ruhi and Two Air Indiana employees are Violative

3. Whether section 66A of Information act is vague in nature ?

Memorial for Respondent pg. 7

 SUMMARY OF ARGUMENTS

1. Whether this writ petition filed by Ms Ruhi, the petitioner is maintainable ? And whether

petitioner is guilty under Indian Penal Code ?

This writ petition is not maintainable because the fundamental rights given under the constitution

of Indiana is not violative. Writ Petition can be filed when FIR is violated.

Petitioner should approach HC first by way of PIL under article 226 then if the judments is not

satisfactory she can file in SC under article 32.as alternative remedies is available.

2 Whether the fundamental Rights of Ms Ruhi and Two Air Indiana employees are Violative ?

NO the fundamental rights under article 14,19(1)(a), and 21 are not violated

3Whether section 66A of Information act is vague in nature ?

The legislature is in the best position to understand and appreciate the needs of the people.There

is a presumption in favour of the constitutionality of an enactment.The Constitution does not

impose impossible standards of determining validity. Mere possibility of abuse of a provision

cannot be a ground to declare a provision invalid. Loose language may have been used in Section

66A to deal with novel methods of disturbing other people's rights by using the internet as a tool

to do so. Further, vagueness is not a ground to declare a statute unconstitutional

Memorial for Respondent pg. 8

 BODY OF PLEADINGS

1.Whether this writ petition filed by Ms Ruhi, the petitioner is maintainable ? And whether

petitioner is guilty under Indian Penal Code ?

According to Article 32 writ petition by way of PIL can only be filed when fundamental rights are

violated but here sec.66 A does not violate any funadamental rights ,hence this petition is not

maintainable.

And yes the petitioner is make an offence under IPC section 499 Defamation and it is punishable

under sec 500 of IPC.

Section 499 : Defamation.

—Whoever, by words either spoken or intended to be read, or by signs or by visible

representations, makes or publishes any imputation concerning any person intending to harm, or

knowing or having reason to believe that such imputation will harm, the reputation of such person,

is said, except in the cases hereinafter expected, to defame that person.

Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the

imputation would harm the reputation of that person if living, and is intended to be hurtful to the

feelings of his family or other near relatives.

Explanation 2.—It may amount to defamation to make an imputation concerning a company or

an association or collection of persons as such.

Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount

to defamation.

Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation

directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that

Memorial for Respondent pg. 9

person, or lowers the character of that person in respect of his caste or of his calling, or lowers the

credit of that person, or causes it to be believed that the body of that person is in a loathsome state,

or in a state generally considered as disgraceful.

 The Supreme Court has ruled that the criminal provisions of defamation are constitutionally

valid and are not in conflict with the right to free speech.

 The court stated that notwithstanding the expansive and sweeping ambit of freedom of

speech, like all rights, the right to freedom of speech and expression is “absolutely

sacrosanct” but “is not absolute.” It is subject to the imposition of reasonable

restrictions. It also said that the reputation of a person is an integral part of the right

to life granted under Article 21 of the Indian Constitution and it cannot be allowed

to be crucified at the altar of the other’s right of free speech

Sec 500 :

Punishment for defamation :

Whoever defames another shall be punished with simple imprisonment for a term which may

extend to two years, or with fine, or with both.

Memorial for Respondent pg. 10

2. Whether the fundamental Rights of Ms Ruhi and Two Air Indiana employees are Violative ?

Challenge on ground of wisdom of legislation is not permissible as it is for the legislature to

balance various interests.The Legislature appreciates and understands the needs of the people, that

it knows what is good or bad for them, that the laws it enacts are directed to problems which are

made manifest by experience, that the elected representatives in a legislature enact laws which

they consider to be reasonable, for the purposes for which these laws are enacted and that a

legislature would not deliberately flout a constitutional safeguard or right.

The original Section 66 of the IT Act 2000 was only limited to the hacking of the websites which

proved to be ineffective in tackling the problems of wrongful emails, messages and campaigns on

the social media like Facebook. The amendment was brought in and Section 66A of the IT Act

was inserted in the statute book to tackle all such kinds of problems on the internet. By its simple

definition the Section 66 A of the IT Act gives widest powers to stop any kind of objectionable

email, messages on the social media, SMS etc.

If a stalker or fraudster uses the internet or other communication media to do an unlawful act the

government cannot be a mere spectator because it is done in the virtual world Phishing is the

internet age crime, born out of the technological advances in internet age. Phishing is a form of

social engineering, characterized by attempts to fraudulently acquire sensitive information, such

as passwords, usernames, login IDs, PINs and credit card details, by masquerading as a

trustworthy person or business in an apparently official electronic communication, such as an

email or an instant message. The phishing attacks will then direct the recipient to a web page

(mirror webpage) so exactly designed to look as a impersonated organization’s (often bank &

Memorial for Respondent pg. 11

financial institution) own website and then they cleverly harvest the user’s personal information,

often leaving the victim unaware of the attack.

Due to the misuse of the modern communication device and increased incidents of sending hate

messages, threatening SMS, threatening Email to politicians, VIPs in politically charged

environment, the legislature introduced Section 66A Information Technology (Amendment) Act,

2008. The IT Act includes Section 78 so that adequate consideration, at an appropriate level, is

given before charging someone under Section 66A. Section 78: Power to Investigate Offence:

“Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a

police officer not below the rank of Deputy Superintendent of Police shall investigate any offence

under this Act.”58 Subsequently, on January 9, 2013, an advisory to State and Union governments

was issued where the approval for such arrests was elevated to “an officer not below the rank of

Inspector General of Police in metropolitan cities or of an officer not below the rank of DCP or

SP at district level”.

Once the policy is laid down by law it cannot be held invalid merely on the ground that the

discretion conferred by it may be abused in some cases and may be exercised in a manner which

is in fact discriminatory.74 If the power is actually abused in any case the exercise of the power

is actually abused in any case, the exercise of the power may be challenged as discriminatory or

mala fide, 75 but the statute will not fail on that ground.76 The Supreme Court has reiterated the

principle that mere likelihood of abuse of discretionary power conferred under statute would not

render the statutory provision unconstitutional.

When a statute is impugned under Article 14, it is the function of the court to decide whether the

statute is so arbitrary or unreasonable that it has to be struck down. At best, a statute upon a similar
Memorial for Respondent pg. 12
subject deriving its authority from another source can be referred to, if its provisions have to be

held to be unreasonable, or have stood the test of time, only for the purpose of indicating what

may be said to be reasonable in the context,78 and the extent to which it is not unconstitutional.

Freedom of Speech and Expression Article 19(1)(a) of the Constitution of India states as follows:

"Article 19. Protection of certain rights regarding freedom of speech, etc.- (1) All citizens shall

have the right

(a) to freedom of speech and expression;"

Article 19(2) states:

"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."

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, [1950] S.C.R. 594 at 602, this Court stated that freedom of speech lay at the foundation

of all democratic organizations.

Memorial for Respondent pg. 13

Individual rights cannot be absolute in a welfare state. It has to be subservient to the Rights of the

public at large.110 The right of life and liberty so guaranteed under Article 21 is also subject to

the rule of proportionality.111 Liberty is the right of doing an act which the law permits.112

Liberty is confined and controlled by law as it is regulated freedom. It is not an abstract or absolute

freedom. The safeguard of liberty is in the good sense of the people and in the system of

representative and responsible Government which has been evolved. Liberty is itself the gift of

law and may bye law be forfeited or abridged .

Where individual liberty comes into conflict with an interest of the security of the state or public

order, the liberty of the individual must give way to the larger interest of the nation.114 There can

be no liberty without social restraint. Liberty of each citizen is born of and must be subordinated

to the liberty of the greater number, in other words, common happiness as an end of the society.

The essence of civil liberty is to keep alive the freedom of individual subject to the limitation of

social control, which could be adjusted according to the needs of the dynamic social evolution.

Section 66A imposes social restraint on the liberty of an individual since an individual’s liberty

is subordinated to the Liberty of the society.

To ensure fairness on all sides there must be harmony and accord between the rights of two

individuals or the rights of an individual on one hand and the society on the other hand. Every

individual in the society has been guaranteed the rights under Article 21 however since the

interests and necessities of the collective, i.e. the society as a whole takes precedence over the

singular interests of one person, any law which prescribes specific limits on the exercise of the

rights enshrined under Article 21 with the end being the continuation of peaceful public life cannot

Memorial for Respondent pg. 14

be said to be violative of Article 21. Since Section 66A has been enacted to achieve that end which

is tantamount to peaceful interactions between members of the society without violating public

order, it does not transgress Article 21.

Memorial for Respondent pg. 15

3.Whether section 66A of Information act is vague in nature ?

The legislature is in the best position to understand and appreciate the needs of the people. The

Court will, therefore, interfere with the legislative process only when a statute is clearly violative

of the rights conferred on the citizen under Part-III of the Constitution. There is a presumption in

favour of the constitutionality of an enactment. Further, the Court would so construe a statute to

make it workable and in doing so can read into it or read down the provisions that are impugned.

The Constitution does not impose impossible standards of determining validity. Mere possibility

of abuse of a provision cannot be a ground to declare a provision invalid. Loose language may

have been used in Section 66A to deal with novel methods of disturbing other people's rights by

using the internet as a tool to do so. Further, vagueness is not a ground to declare a statute

unconstitutional if the statute is otherwise legislatively competent and non-arbitrary.

Section 66A of the Information Technology Act, made it a punishable offence for any person to

"send, by means of a computer resource or a communication device, -

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

(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,

(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,"

Memorial for Respondent pg. 16

The vague and arbitrary terms used in the Section led to much misuse of both personal and

political nature, with several criminal cases being instituted against innocuous instances of online

speech, including political commentary and humour.

Case: Shreya Singhal V/s Union of India

Memorial for Respondent pg. 17

 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. Dismiss the petition filed in the way of Public Interest Litigation by the petitioner

In the alternative

2. Declare that section 66A of the Information Technology Act 2000 is not of vague descriptin
of various facts constituting an offence, and without any definition or prescription of
standards.
3. Declare that section 66A of the information technology Act 2000 is not violative of
fundamental rights under article 14,19 (1) (a) and 21 of the constitution Of India and it is
constitutinallly valid.

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 RESPONDENT AS IN DUTY BOUND SHALLEVER

PRAY.
Filed by:

ADVOCATE FOR THE RESPONDENT

FILED ON:

Memorial for Respondent pg. 18

Memorial for Respondent pg. 19