Nalanda Law College Academic year 2021-2022

Amitabh Singh : 5th year BLS LL.B : Roll no. 55001

BEFORE THE HON’BLE

SUPREME COURT OF
INDORAMA

ORIGINAL WRIT JURISDICTION

W.P. (CIVIL) NO. OF 2021

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDORAMA

In the matter of Art. 14, 19(1)(a) and 19(1)(g) read

with Art. 21 of Constitution of Indorama

ASTALA VISTALA ........................................................................................................ PETITIONER

v.

UNION OF INDORAMA.................................................................................................. RESPONDENT

UPON SUBMISSION TO THE HON‟BLE CHIEF JUSTICE OF THE SUPREME

COURT OF INDORAMA

MEMORANDUM ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

 TABLE OF CONTENTS

Table of Arguments Advanced................................................................................................... 3

Index Of Authorities...................................................................................................................4

Statement of Jurisdiction............................................................................................................6

Statement of facts....................................................................................................................... 7

Statement of Issues.....................................................................................................................9

Summary of Arguments........................................................................................................... 10

Arguments Advanced………………………………………………………………………. 11

Prayer....................................................................................................................................... 26

MEMORIAL ON BEHALF OF THE PETITIONER

 TABLE OF ARGUMENTS ADVANCED

1. WHETHER THE Writ Petition FILED AGAINST UNION OF INDORAMA IS

MAINTAINABLE.
I.1. Can a Writ be filed against the Union of Indorama
I.2. Company under the Companies Act 2013:
I.3. Can A Company File A Writ Petition
I.4. Status of companies under the Constitution of India

II. WHETHER THE PETITIONER HAS COMMITTED ANY OFFENCE UNDER

SEC.306 AND 120B OF IPC BY INVOKING PROVISIONS OF INFORMATION
TECHNOLOGY ACT-2000 AS DONE BY STATE OF INDORAMA.

II.1 SUPREME COURT UPHOLDS FREEDOM OF SPEECH ON THE INTERNET.

III. WHETHER STATE OF INDORAMA HAS VIOLATED THE RIGHTS OF PETITIONER ENSHRINED
UNDER ART. 14, 19(1)(A) AND 19(1)(G) READ WITH ART. 21.

IV. WHETHER IMPOSING BAN ON THE APPLICATION “BADI MACHHLI ” U/S 69A OF
INFORMATION TECHNOLOGY ACT IS CONSTITUTIONALLY VALID?

MEMORIAL ON BEHALF OF THE PETITIONER

 INDEX OF AUTHORITIES

CASES

1) Experss Newspaper v Union of India

2) Khoday Distilleries Ltd. v State of Karnataka (1995) 1 SCC 574

3) Nathubhai v Muncipal Corporation

4) Olga Tellis v Bombay Municipal Corporation

5) State of Bihar v Shailbala Devi

BOOKS

 Constitution of India by R S Bedi

 Constitution of India by Dr J N Pandey

 Constitution of India by B N Ganhi

 Constitution of India by D D Basu

 PSA Pillai‟s Criminal Law

 Crimes and Indian Penal Code by S K Achari

 Company law by Avatar Singh

MEMORIAL ON BEHALF OF THE PETITIONER

LEGAL DATABASES

 Lawnotes.com

 Livelaw.in

 Scconline.com

 Indiakanoon.org

 Advocateskhoj.com

LEGISLATIONS

1. The Constitution of India, 1950

2. Indian Penal Code.

3. Criminal Procedure Code.

4. Indian Evidence Act.

5. Information Technology Act-2000.

MEMORIAL ON BEHALF OF THE PETITIONER

 STATEMENT OF JURISDICTION

The Hon‟ble Supreme Court of Indorama has the jurisdiction in

this matter under Article 32 of the Constitution of Indorama

which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part-

(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.”

MEMORIAL ON BEHALF OF THE PETITIONER

 STATEMENT OF FACTS

1. Astala Vistala , a company engaged in designation online games have created a game
entitled ‘ Badi Machhli ’

2. The game being challenging in nature, caught immediate attention of the users
especially children and youngsters. In short period of time it became a big hit and the game
is to be downloaded by the users from app store and a set of terms and conditions are to be
agreed by him. Among the set of terms, there exist a condition that the users must be above
age of 18.

3. Once the user get registered the, he is required to furnish his personal details and after
the registration he is provided with an administrator and he will observe the the given tasks
performed by the player .The game consists of 50 levels, on each level, the difficulty level
increases.

4. Initially the tasks will be simple and in order to prove the performance of tasks the
players has to make some mark and upload the video of the same.

5. The game became more so popular among the youth that even it penetrated into few
school going children around the age group of 11-12 who were found committing suicide
with a logo on their hand. All this despite explicit warnings by the company that only person
above the age of 18 are allowed to participate.

6. The ‘State of Indorama’ identifying it as a threat to the life of children and abusive of
life have issued notice to the company Astila Vistala asking them to withdraw their
operation from the cyber space. The company replied saying that they will not withdraw the
game as such it does not fall within the six golden freedoms as guaranteed by the
constitution. The company replied to the notice that the object of the game is to make the
user more firm and competent at their decision. It also consisted of a statement that “there is
no abatement to suicide as such as the task given was supposed to be individual competence
and observance and one must understand whether to commit suicide on once provocation or
not”.
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MEMORIAL ON BEHALF OF THE PETITIONER

7. Moreover the reply consisted on allegations on the state that so many persons have
committed suicide for various reasons either by hanging to a tree or fan or poisoning even
many of the times brides are burnt by gas explosion. The reply further alleges that the
government did nothing to prevent these.

8. A writ petition was filed by Astala Vistala , a company engaged in designation online
games before the HON’BLE SUPREME COURT OF Indorama.

MEMORIAL ON BEHALF OF THE PETITIONER

 STATEMENT OF ISSUES

ISSUE I:

Whether the Writ Petition is Maintainable.

ISSUE II:
Whether the petitioner has committed any offence under sec. 306 and 120B
of IPC?

ISSUE III:
Whether the State of Indorama has violated the rights of petitioner enshrined
under Art. 14, 19(1)(a) and 19(1)(g) read with Art. 21?

ISSUE IV:
Whether imposing ban on the application “Badi Machhli ” u/s 69A of
Information Technology Act is constitutionally valid?

MEMORIAL ON BEHALF OF THE PETITIONER

 SUMMARY OF ARGUMENTS

Issue I

Can a Writ be filed against the Union of Indorama

Can A Company File A Writ Petition

Issue II
The state of Indorama have registered a crime under Sec. 306 and Sec. 120B of IPC
against the company for abatement of suicide by conspirating with the administrators,
imposed a ban on the game throughout the country by invoking provisions of information
Technology Act-2000.

Issue III
Whether State of Indorama has violated the rights of petitioner enshrined under Art.
14, 19(1)(a) and 19(1)(g) read with Art. 21.

It is humbly submitted before the Hon‟ble Court that, State of Indorama is liable for
violating the rights of petitioner by committing acts of misuse of power and such which
have further violated fundamental rights of the people.

Issue IV

The imposing of ban on the application “Badi Machhli ” u/s 69A of Information
Technology Act is not constitutionally valid.

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MEMORIAL ON BEHALF OF THE PETITIONER
 ARGUMENTS ADVANCED

I. WHETHER THE WRIT PETITION FILED AGAINST UNION OF INDORAMA

IS MAINTAINABLE.

The present petition is maintainable under Article 32 of the Constitution, since Astala
Vistala falls within the ambit of “other authorities” as enshrined in the Constitution .
Further. there has also been violation of Fundamental Rights of people as their rights
have also been encroached.

I.1. Writ can be filed against the Union of Indorama

It is essentially people’s will which is reflected in the Fundamental Laws. They are
contained in the Indian Constitution, Part III including the right to equality, the right to
life and freedom, etc. But it is not justified merely to provide for Fundamental Rights, it is
a remedy that makes rights much more effective and exact. Therefore it is well said, “A
right without a remedy is the most grotesque kind of legal conundrum.” In order to
safeguard fundamental rights, the Indian Constitution grants, under Articles 32, the right
to approach the Supreme Court of Justice of any person who has been infringed.

Writs in the Indian constitution were embraced as such from the English law, but with a
slight difference that it can be accessible by any individual to exercise or claim his right
against the order of the courts when served injustice or impugned, as the case may be. A
Writ petition for a civil or criminal nature depending on the situation can be filed by an
Individual/aggrieved party to a higher level of court against the order/decision of the lower
court.

So any aggrieved party whose fundamental rights the State has breached can file a
writ petition

I.2. Company under the Companies Act 2013:

Section 2(20) of the Companies Act, 2013, defines the term ‘Company

In the late nineteenth and early twentieth century’s, with the growth of corporate business
structure, the corporations began to offer so much political and economic influence that
legal theorist had to reconsider corporate theory in the light of the degree to which the
state should exert control over such entities. The “Grant Theory” or “Concession Theory”
or “Artificial Entity Theory”, asserts that the corporation is an artificial entity.
In HL Bolton Engineering Co Ltd v TJ Graham Sons Ltd, Denning LJ has described
companies as A company can be compared to a human body in many ways. It has a core of
brain and nerve which controls what it is doing. . Many of the people in the company are
pure [employees] and agents who are nothing more than hands for doing the job and can’t

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MEMORIAL ON BEHALF OF THE PETITIONER
be assumed to represent the mind or will. These are managers and directors who represent
the company ‘s driving mind and will and monitor what it does. Such managers’ state of
mind is the company’s state of mind and is regarded as such by law.
A corporation is regarded as an artificial human being, and it offers a different legal body.
The best concept of a separate legal entity can be defined in the case of Sunrise Sdn Bhd v
First Profile (M) Sdn Bhd & Anor whereby there was no dispute of who the identity
controller of the company was. Unlimited liability is whereby a company cannot lose more
than the amount invested. The members are not personally liable for the debts and
obligations of the company.

I.3. Can A Company File A Writ Petition

Principle of Separate Legal Entity of Companies:

The rule of separate legal entity of a company was recognized in the case of Salomon v.
Salomon and Co. Ltd, which claimed that the company had a separate life from its
employees. In addition the Supreme Court in the case of Tata Engineering Locomotive Co.
Ltd. v. State of Bihar and Ors., It has been held that the company is a natural person and
has its own life.

I.4. Status of companies under the Constitution of India:

Corporate bodies are autonomous legal organizations that are allowed to own, enter into
contracts, sue or be sued. And these corporate bodies are not human structures but
artificial structures. So the essential question that sometimes arises as to whether the
corporations are entitled to same legally guaranteed fundamental rights as granted to
human persons. Part III of the Constitution speaks about fundamental rights, but there is
a thin line of distinction between the rights provided for in Part III as some are available
only to citizens, others are available to persons.

The debate relating to nature if corporate bodies and the right they are entitled to arise in
India no sooner India got its independence in 1947. It was as early as 1950 that we found
Indian courts delivering decisions on the issue of whether the companies are entitled to
fundamental rights and with this comes whether a company can file a writ petition?

An incorporated company is indeed a juristic person with certain privileges and

responsibilities in the eye of law. It is a well-settled proposition in law that these
incorporated persons are entitled to the protection of those fundamental rights in the
Constitution which are as broad as covering all ‘persons.’ Since a company gets
recognized as a legal person even in different cases, Indian courts have granted certain
fundamental rights that the company can enjoy, as we have seen in the above case
scenarios. As stated in the case of Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh,
Additional Collector of Customs20, the Supreme Court of India clearly held that a
company which was both- a company and a foreign company- is not entitled to claim the
benefits of Article 19(1)(g) of the Constitution of India. Therefore, the foundations of
petitioning the courts are confined to certain provisions of the Constitution only.

Thus, it can be concluded from the above-mentioned case that a company can file a writ
petition for infringement of its rights.

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MEMORIAL ON BEHALF OF THE PETITIONER
II. WHETHER THE PETITIONER HAS COMMITTED ANY OFFENCE UNDER
SEC. 306 AND 120B OF IPC BY INVOKING PROVISIONS OF INFORMATION
TECHNOLOGY ACT-2000 AS DONE BY STATE OF INDORAMA.

II.1 Supreme Court Upholds Freedom of Speech on the Internet

Case Law : Shreya Singhal v. Union of India

In its decision in Shreya Singhal v. Union of India, the Supreme Court of India struck
down Section 66A of the Information Technology Act, 2000 on the grounds that the
Section has a chilling effect on the right to freedom of speech and expression over the
Internet. At the same time, the apex court also read down some of the harsher
provisions of the Intermediary Guidelines that dealt with the takedown of illegal
content posted on the Internet. Both for its jurisprudential content as well as the
immediate effect that it will have on companies operating on the Internet in India, this
decision will have a significant impact on the way in which the Internet is used in India.

On 24 March 2015, the Supreme Court of India issued a long awaited judgment on the
constitutional validity of various provisions that had been newly introduced into the
Information Technology Act, 2000 (IT Act). The 122 page judgment is exhaustive in its
analysis, carefully reasoned and will have far reaching consequences on the
jurisprudence relating to the freedom of speech and expression in the country. To the
extent that this judgment also deals with the liability of intermediaries for content
published on their platforms it will have a significant impact on e-commerce entities,
social media companies and all other commercial enterprises whose business model is
largely dependent on the internet.

THE PROVISIONS IN QUESTION

The crux of the decision was whether or not the provisions of Sections 66A, 69A and the
Rules under Section 79 of the IT Act were constitutionally valid. Each of these
provisions had been introduced as amendments into the IT Act with a view to further
regulate conduct over the Internet. They each had, in the short history of their existence,

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MEMORIAL ON BEHALF OF THE PETITIONER
given rise to a number of unfortunate incidents in which over-zealous law enforcement
agencies brought excessive force to bear on ordinary citizens exercising their right to
voice an opinion on the Internet.

Section 66A of the IT Act prescribes punishments for communicating certain types of
information over the Internet. Under its provisions, any person who disseminates over
the Internet (i) information which is grossly offensive or menacing; (ii) false
information sent with the intention of causing annoyance, inconvenience, danger,
obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will or (iii) any
email intended to annoy or inconvenience or to deceive or mislead the recipient as to the
origin of these messages could be punished with imprisonment of upto three years and
fine.

Section 69A of the IT Act, empowers the Central Government to order that access to
certain websites and computer resources) be blocked in the interest of the defense of the
country, its sovereignty and integrity, the security of the State, friendly relations with
foreign States, public order or for preventing incitement to the commission of an
offence. The details of the procedural safeguards that had to be followed while blocking
access were set out in in more detail in the Information Technology (Procedure and
Safeguards for Blocking for Access of Information by Public) Rules, 2009 (Blocking
Rules).

Section 79 of the IT Act is India's safe harbor clause that provides intermediaries
exemption from liability for content uploaded or hosted on their platforms subject to
their compliance with the conditions set out in the Section and Information Technology
(Intermediary Guidelines) Rules, 2011 (Intermediary Guidelines). Rule 3(2) of the
Intermediary Guidelines casts an obligation on the intermediary to inform users to
refrain from hosting, transmitting, displaying, uploading, publishing, modifying or
sharing certain kinds of content on its platform. Further, Rule 3(4) requires the
intermediary to takedown all content that contravenes Rule 3(2) once it has been
notified that such content has been posted on its site.

The judgment examines the constitutional validity of each of these provisions separately.

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MEMORIAL ON BEHALF OF THE PETITIONER
SECTION 66A AND THE FREEDOM OF SPEECH AND EXPRESSION

Before getting into the specifics of Section 66A, Justice Rohinton F. Nariman spent
some time analyzing the concept of freedom of speech and expression. With the help of
a pithy excerpt from William Shakespeare's 'Julius Caesar', he explained that the three
fundamental aspects of speech and expression were discussion, advocacy and incitement.
In the view of the court, the mere discussion or advocacy of a particular cause, no
matter how odious, would always be protected by the right to freedom of speech and
expression. It is only when either discussion or advocacy reaches the level of incitement
that restrictions kick in.

This powerful articulation of the fundamental right very clearly circumscribes the zone
within which the legislature has the power to enact legislation. As a principle, it will be
capable of being applied across a wide range of circumstances where freedom of
expression is in jeopardy.

When the Court examined the provisions of Section 66A, in the context of this principle
it was clear that the Section did not differentiate between the mere discussion or
advocacy of a point of view and the use of that point of view to incite prohibited actions.
This according to the Court, went against the spirit of 'freedom of speech and
expression' and hindered the free flow of opinions and ideas.

The Court went on to hold that Section 66A cannot be justified under the exceptions to
the freedom of speech and expression under Article 19(2) such as of public order,
defamation, incitement to an offence, decency and morality. The Court refused to
accept that the Section had been enacted in the interests of 'public order' given that it
covers within its scope, both messages to individuals as well as mass messages. It
refused to allow the Section to be protected under the exception for defamation since it
didn't concern itself with injury to reputation. The Section did not fall within the
exception granted to prevent the 'incitement to an offence' since it seeks to control all
information irrespective of whether it 'incites' anyone or not. Finally, the court rejected
all attempts to bring it under the exception for indecency or immorality when the
Section made only oblique reference to those concepts.

The Court also pointed out that the terms used in Section 66A were vague, undefined
and open-ended. Terms like 'annoying', 'inconvenience' and 'grossly offensive', as used
in the provision do not point to a specific offence and leave both law enforcement

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MEMORIAL ON BEHALF OF THE PETITIONER
agencies as well as the general public unsure of what is permitted and what is not.

In many ways, this was the decision that the Internet community in the country was
hoping for. For a nation that only recently adopted this new medium it was a much
needed shot in the arm. While this aspect of the judgment will have no direct bearing on
the behavior of social media companies it will encourage users to express their views on
these platforms without fear of reprisal. Many of these companies are dedicated to
protecting freedom of speech around the world and to have the apex court of one of
their largest markets strongly uphold that principle can only be good for business.

SECTION 69A AND THE BLOCKING RULES

The Court was not as readily convinced by the arguments on the constitutionality of
Section 69A of the IT Act and the Blocking Rules. The petitioners contended that
Sections 69A and the Blocking Rules neither provided the opportunity for a pre-
decisional hearing nor necessary procedural safeguards such as the requirement of a
search warrant and the ability to make an application to Court to appeal the blocking
order.

However, unlike in the case of Section 66A, the Court was of the view that Section 69A
is narrowly drafted and has inbuilt safeguards. Blocking can be carried out only when
the Central Government is satisfied that it is necessary and the restrictions sought to be
imposed fall squarely within the reasonable restrictions to freedom of speech and
expression under Article 19(2). It cannot be carried out without the approval of a
committee that, at least, theoretically would take into account the views of all affected
parties. The Court seemed to draw particular comfort from the fact that the reasons for
the blocking were required to be recorded in writing so that they could be challenged if
need be in a writ petition.

It is unfortunate that the Court did not see fit to evaluate for itself whether provisions
set out in the Blocking Rules, are applied in practice as described. Anecdotally, it would
appear that at least some of the blocking orders issued recently did not take the trouble
to seek the views of the originator or even the intermediary. Presumably, after this
judgment, writ remedies would be maintainable for all such breaches in protocol.

SECTION 79 AND THE INTERMEDIARY GUIDELINES

From a commercial perspective, the arguments around the Intermediary Guidelines are
perhaps the most relevant part of the judgment. It's a pity that the Judges spent just 6
pages on them.
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MEMORIAL ON BEHALF OF THE PETITIONER
The principle contention of the petitioners was that Rule 3(4) of the Intermediary
Guidelines left it to the intermediary to exercise its discretion as to whether or not the
notified content was prohibited under Rule 3(2). The list of items that are prohibited
under Rule 3(2) is extensive and additionally, the Rule contains language that seeks to
include information that is "otherwise unlawful in any manner whatever", making it
almost impossible to draw up a finite list of prohibited content.

The petitioners argued that an intermediary is, by definition, a neutral platform on

which parties interact. It should not have to take sides on disputes over prohibited
content. To do so would force the intermediary to exercise its judgment on a dispute
that often revolves around principles of law and matters of fact – issues on which the
intermediary does not and should not be expected to have expertise. Under Rule 3(4)
the intermediary has just 36 hours in which to decide whether or not a request received
is legitimate and take down the infringing content. This has put intermediaries in a
tough spot as they try and abide by the requirements of the law while at the same time
protecting the legitimate interests of their users.

In its judgment, the Supreme Court ruled that instead of striking down Rule 3(4), the
provision should be read down. Based on the judgment, an intermediary is now only
obliged to remove content after it has received an order from a court or from the
Designated Officer under the Blocking Rules, directing it to do so. The court also
clarified that the scope of the term 'unlawful act' should be limited to only those types
of matters that are under Article 19(2) and nothing else.

This decision has brought some clarity to the manner in which businesses are obliged to
respond to takedown notices. It is no longer left to the intermediary to decide whether
or not content is prohibited. Unless it receives a notice from a court or from the
Designated Officer, it is not obliged to take down any content. The ruling also provides
some succor to users who are no longer forced to acquiesce to random takedown notices
in relation to an uncertain list of prohibited items.

THE FAR REACHING IMPACT OF THE JUDGMENT

The most direct benefit of this judgment is the positive impact that it will have on
freedom of speech on the Internet, one aspect of our fundamental rights that has in the
recent past been systematically eroded. The Court has been unequivocal in the test it
has laid down – that until it rises to the level of "incitement" all discussion and
advocacy has the protection of the fundamental right to freedom of speech and

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MEMORIAL ON BEHALF OF THE PETITIONER
expression. The legislature is bound to abide by this clear direction from the highest
court in the land and ensure that any future legislative exercise follows that principle.

Section 66A was originally intended to address the twin problems of spam and cyber
stalking. It has, unfortunately, been used to crackdown on online dissent and political
criticism. With the increased use of social media this has been further exacerbated and
various agencies of the government have swooped in to curb the dissemination of
information and the voicing of opinions on social media sites like Facebook and Twitter.

By declaring Section 66A unconstitutional, the Supreme Court has acknowledged that
freedom of speech extends to the online realm as well and that for the most part, much
of the same principles apply. It has tacitly acknowledged that much of what is said on
social media and the internet will provoke or annoy but has ruled that even in those
cases the government may not curb the rights of individuals to enjoy their fundamental
right of freedom of speech and expression. It is only when social media is used to incite
persons to public disorder that the restrictions offered under Article 19(2) can be
invoked.

It is perhaps unfortunate that the Court did not see fit to apply the same logic to the
provisions of Section 69A. However, the decision to read down the provisions of Rule
3(4) and consequently rationalize the benefit of Section 79 of the IT Act to the broad
community of intermediaries is likely to have a significant benefit on Indian companies
whose business model is based on the Internet.

Keeping all this aside, the judgment has a broader, perhaps less tangible impact. Never
since the 1960's has a court made such a bold ruling on freedom of speech. And it could
not have come at a better time. Today the world is a far more connected place than it
was when the Constitution was drafted. The ripple effect of actions are felt much
further afield and modern technologies allow our voices to be amplified. The
government legitimately fears the consequences of allowing radical elements to use
these modern technologies unchecked as this can be a powerful weapon of
destabilisation.

Yet even in this modern age there is a need to preserve and protect the fundamental
right to freedom of speech and expression. Rather than block the use of modern
technologies, the government must devise new ways in which freedom can be enjoyed
without descending into chaos and public disorder. With this unequivocal and
unassailable judgment, the Supreme Court has just mandated the Government to find

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MEMORIAL ON BEHALF OF THE PETITIONER
those solutions.

In an alleged case of data theft, Bombay high court allowed police to proceed against
two accused of offences only under the Information Technology Act holding that their
prosecution under (IPC) too, “would be a brazen violation of protection against ’ Indian
Penal Code double jeopardy.”

The HC further observed, "and prosecuting the petitioners under both Indian Penal
Code and Information Technology Act would be a brazen violation of protection
against double jeopardy," the HC held. Article 20(2) of the Constitution of India, says

that "no person shall be prosecuted and punished for the same offence more than
once,” setting out the doctrine against double jeopardy.

Looking at the above the petitioner has not committed any offence under under Sec.
306 and Sec. 120B of IPC by invoking provisions of information Technology Act-2000.

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MEMORIAL ON BEHALF OF THE PETITIONER
___________________________________________________________________________
III. WHETHER STATE OF INDORAMA HAS VIOLATED THE RIGHTS OF
PETITIONER ENSHRINED UNDER ART. 14, 19(1)(A) AND 19(1)(G) READ
WITH ART. 21.

III. We all know the underlying fact that our Constitution is the longest written
Constitution of any sovereign country in the world. A nation is governed by its
Constitution. It is the Supreme Law of our Country. Constitution declares India a
sovereign, socialistic, secular, democratic, republic, assuring its citizens of justice,
equality and liberty, and endeavors to promote fraternity among them. While looking
at the fundamental rights enumerated in the Constitution, it will be well clear that the
framers of the Constitution had done it in such a way that it acts a pillar to the national
security and integrity of the country. The fundamental rights, embodied in part III of
the Constitution provide civil rights to all the citizens of India and prevent them from
the encroachment of society and also ensure their protection. There are seven rights
which are enumerated as fundamental rights which include:

Right to equality

Right to freedom

Right against exploitation

Right to freedom of religion, education and cultural rights

Right to constitutional remedies

Article 14, 19 and 21 are popularly known as the ‘golden triangle’ of the Indian
Constitution.

The Golden Triangle

Article 14 – Equality before the law, the state shall not deny any person equality before
the law or equal protection of law within the territorial limits of India or prohibition on
the grounds of race, caste, religion, sex or place of birth.

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MEMORIAL ON BEHALF OF THE PETITIONER
Article 19 – Protection of certain rights regarding freedom of speech and expression. All
citizen shall have the right

To freedom of speech and expression

To assemble peacefully and without arms

To form associations or unions

To move freely throughout the territory of India

To reside and settle in any part of the territory of India, and

To practice any profession or to carry on any occupation, trade or business.

Article 21 – Protection of life and personal liberty, no person shall be deprived of his
personal liberty except according to the procedures established by law.

Now it is clear why these provisions under the Constitution regarded as the ‘golden
triangle’. These rights are regarded as the basic principles for the smooth running of
life for the citizens of our country. The golden triangle provides full protection to
individuals from any encroachment upon their rights from the society and others as
well. Article 14, it provides for equality before law and equal protection of the law. It
means that no person is deprived of his equality among other citizens of our
country. The provision also gains importance because the enactment of such a
provision leads to the abolishing of certain inhuman customary practices of our country.
The provisions of this article also envisage certain legal rights like protection of law
which purely means that the law should be the same for every person with some
necessary exceptions.

Article 19 provides certain absolute rights such as freedom of speech and expression,
freedom of movement, freedom of forming associations and unions, etc. This Article
brings about important changes in the society as it provides various rights to the people
so that there is harmony among the people of our country. Even though this Article
covers a vast area of operation, it does not provide a person the freedom to do anything
and everything as per his whims and fancies. Various other provisions of the Article
provide restrictions to various issues affecting public tranquillity and security. Such
restrictions include:

Security of the State

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MEMORIAL ON BEHALF OF THE PETITIONER
Friendly relation with foreign states

Public order

Decency and morality

Contempt of court

Defamation

Incitement of offenses

Sovereignty and integrity of India.

On the other hand Article, 21 provides for protection of life and personal liberty. This
provision of the Constitution is one of the most implemented as well as widely
interpreted areas in the field of law enforcement. The Article covers the most sensitive
area, i.e. protection and securing the life and liberty of a person. Perhaps this may be
the most violated provision of our Constitution as well. Various courts in our country
have interpreted the constitutional validity of Article 21 in a common man’s life.
Important among them is the case of Maneka Gandhi v. The Union of India wherein the
court looked into matters not only affecting Article 21 but also Articles 14 and 19 as
well. The court stated that the act on the part of the respondents was violating Article
14 in the sense that the act leads to arbitrariness on the part of the respondent which
violated the right to equality of the petitioner. Article 21 was being violated in the sense
that petitioner was restrained from going abroad. The judgment was one of the
landmarks among the cases relating to the violation of certain fundamental rights
mainly, Articles 14, 19 and 21.

Article 21 is applicable even during the time of election wherein people have the sole
right of electing the best person as their representative. No person has a right to compel
anyone to elect the person other than his/her wish. Even though voting is not a
fundamental right but a ‘statutory right’, the court, in the judgment of the case PUCL v.
Union of India, distinguishes “right to vote” and the “freedom of voting as the species of
the freedom of expression” under Article 19 of the Constitution. There are various
other major judgments in cases regarding enforcement of fundamental rights. For
example, the case of Kesavananda Bharathi v. Union of India, which is considered as a
landmark among cases regarding the enforceability of constitutional rights.

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MEMORIAL ON BEHALF OF THE PETITIONER
Thanks to the drafters of the Constitution for framing it in such a way that it neither
makes any mandatory provisions regarding various rights for the citizens nor makes
any citizen free from certain fundamental duties that must be followed by every citizen
of the country. It has also looked deeply into the socio-economic scenario of India so
that no rights or duties will be omitted. Apart from certain fundamental rights, the
Constitution also provides certain other rights and duties towards the citizen which are
enclosed in Part IV of the Constitution known as ‘Directive Principles of State policy.’
Such provisions are framed under the notion that rights of each and every individual
change accordingly and such rights cannot be considered as fundamental but have to be
enforced.

So one can conclude that State of Indorama has violated the rights of Petitioner.

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MEMORIAL ON BEHALF OF THE PETITIONER
_____________________________________________________________________
IV. WHETHER IMPOSING BAN ON THE APPLICATION “BADI MACHHLI ”
U/S 69A OF INFORMATION TECHNOLOGY ACT IS
CONSTITUTIONALLY VALID?
_____________________________________________________________________

IV. Section 69A of the IT Act, 2000, allows the Centre to block public access to an
intermediary “in the interest of sovereignty and integrity of India, defence of India,
security of the State, friendly relations with foreign States or public order or for
preventing incitement to the commission of any cognisable offence relating to above”.

According to the definition under Section 2(w) of the IT Act, an intermediary includes
“telecom service providers, network service providers, internet service providers, web-
hosting service providers, search engines, online payment sites, online auction sites,
online marketplaces, cyber cafes etc”.

While Section 69A provides the government the power to take such steps, the procedure
to do so is listed in the Information Technology (Procedure and Safeguards for Blocking
of Access of Information by Public) Rules, 2009.

“Any request made for blocking by the government is sent to an examining committee,
which then issues these directions,” Apar Gupta, lawyer and executive director of the
NGO Internet Freedom Foundation, told ThePrint.

However, Gurshabad Grover, senior researcher at the Centre for Internet and Society,
underlined that in case of an emergency situation, such orders are passed by the
committee’s chairperson first and then presented to the committee.

While no time is given to the stakeholder to respond before the action is taken in the
case of an emergency situation, Rule 9 of the IT blocking rules allows for a review
committee to send “recommendations regarding the case, including whether it is
justifiable to block the accounts” in order to uphold the blocking of an account
permanently.

However, it is Rule 16 of the IT Blocking Rules — which states that requests and
complaints to block accounts must remain confidential — that has been repeatedly
criticised for being “unconstitutional”.

24
MEMORIAL ON BEHALF OF THE PETITIONER
Going by the contention of the State of Indorama that they are protecting people’s lives
then in that case when slippers are stolen from temples will they shut down all temples
and have bans.

In what is being termed as one of the most landmark judgments upholding the right to
free speech in recent times, the Supreme Court in Shreya Singhal and Ors. vs Union of
India, struck down Section 66A of the Information & Technology Act, 2000. The ruling
which is being lauded by the common man and legal luminaries alike, found the Cyber
law provision to be open-ended, vague and unconstitutional owing to the restriction it
caused to the Indian citizens' right to free speech.

Also thus, Sec. 69 of the IT Act is antithetical to the right to privacy as it fails the litmus
test of proportionality, and, therefore, should be deemed unconstitutional.

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MEMORIAL ON BEHALF OF THE PETITIONER
 PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this
Hon‟ble Court be pleased to:

1. Quash charges under Sec. 306 and Sec. 120B of IPC against the company for

abatement of suicide by conspirating with the administrators by invoking provisions

of Information Technology Act-2000.

2. Removal of ban on the game throughout the country which was done by invoking

provisions of Information Technology Act-2000 by the State of Indorama.

3. Order and direct the government to take corrective measures to restore the rights of

the petitioner enshrined under Art. 14, 19(1)(a) and 19(1)(g) read with Art. 21

which was violated by them .

4. Award compensatory damages to be paid by Union of Indorama as the court may

deem fit.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good

Conscience. And for this, the Petitioner as in duty bound, shall humbly pray.

COUNSELS FOR THE

PETITIONER

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MEMORIAL ON BEHALF OF THE PETITIONER