TC_17

5TH ANAND SWAROOP GUPTA MEMORIAL NATIONAL MOOT COURT

COMPETITION, 2020.

NATIONAL MOOT COURT COMPETITION, 2020

BEFORE THE HONOURABLE NATIONAL COURT OF JUSTICE

IN THE MATTER OF

DR. SIMPARA AND ANR. .…………………………….APPLICANTS

VS.

UNION OF SILVIA AND ANR. .………………………..RESPONDENTS

MEMORIAL SUBMITTED BY

DR, SIMPARA AND ANR. (PETITIONER)

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 TABLE OF CONTENTS

CONTENTS.....…………………………..…………………………………………PAGE NO.

INDEX OF AUTHORITIES……………………………………………….…………………2.

LEGISLATION…………………………………………………………………………...…..2.

CASES REFERRED………………………………………………………………………….2.

WEBSITES…………………………………………………………………………………...3.

LIST OF ABBREVIATION………………………………………………………………….4.

STATEMENT OF JURISDICTION………………………………………………………….6.

STATEMENT OF FACTS……………………………………………………………………7.

STATEMENTS OF ISSUES………………………………………………………………..10.

ISSUE I

WHETHER DOCTOR SIMPARA IS ENTITLED TO ENJOY THE RIGHT TO PRIVACY

OR NOT?

ISSUE II

WHETHER THE GUARANTEE UNDER ARTICLE 19(1)(A) OF THE CONSTITUTION

EXTENDS OF ARTIFICIAL PERSONS OR NOT?

ISSUE III

WHETHER SECTION 69 OF THE INFORMATION TECHNOLOGY ACT IS

CONSTITUTIONAL OR NOT?

SUMMARY OF ARGUMENTS…………………………………………………................11.

ARGUMENTS ADVANCED…………………………………………….…………………13.

PRAYER…………………………………………………………………………………….30.

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 INDEX OF AUTHORITIES

LEGISLATION

1. Cable Television Networks (Regulations) Act, 1995, Section 5.

2. International Covenant of Civil and Political Rights, 1976, Art 17.
3. Information technology Act, 2000.
4. The Indian Telegraph Act, 1885.
5. The Indian Telegraph Rules, 1951.
6. Universal Declaration Of Human Rights, 1948, Art. 12.

CASES REFERRED:

I. FOREIGN CASE:
1. Bowman v. Secular society, (1917) A.C.406 (house of lords) (H936) page:
856-857.(UK)

II. INDIAN CASES:

1. Benet Coleman and Co. and ors. v. Union of India, 1973 AIR106, 1973 SCR (2) 757.
2. Bijal Revashankar Joshi v. State of Gujarat (1997) 2 GLR 1147
3. Court on its motion v. State, 146 (2008) DLT 429.
4. Dharambir Khattar v. Union of India (1976) 2 SCC 128.
5. Vikas Yadav v. State of U.P. and ors., (2016) 9 SCC 541.
6. Kharak Singh v. State of U.P., AIR (1962) 1 SCR 332.
7. KLD Nagasree v. GOVT OF India, AIR(2007) AP 102
8. K.S Puttaswamy and anr. v. Union of India and ors.,(2017) 10 SCC 1
9. Labour Liberation Front v. State of Andhra Pradesh, 1998 (1) ALD 755, 1998 (1) ALD
Cri 283, 1998 (2) ALT Cri 411.
10. Maneka Gandhi v. Union of India, AIR (1978) SCC 597.
11. Manu Sharma v State, (2010) 6 SCC 1.
12. M.Nagraj v. Union of India, AIR 2007 SC 71.
13. M.P. Sharma and Others v. Satish Chandra, 1954 AIR 300, 1954 SCR.
14. Newspaper v. Union of India, AIR 1958 SC 578.
15. Om Prakash v. State of U.P., 2006 Crij 2913(SC).

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 16. PUCL v. Union of India, AIR 1997 SC 568.
17. Rama Thappar v. State of Madras, AIR (1950) SCR 594.
18. R.M. Malkani v. State of Maharashtra, 1973 AIR 157.
19. R. Rajagopal v. State of Tamil Nadu, (1994) 6S.C.632.
20. Sakal Newspaper v. Union of India, AIR 1962 SC 302.
21. Santosh Kumar Singh v. State, (2010) 9 SCC 747.
22. Sheela Borse v. Union of India, (1999) 6 SCC 667.
23. Sibal Kumar Gupta and ors. v. B.K.Sen and anr., AIR1972 SC 633.
24. State (NCT of Delhi) v. Navjot Sandhu, 2005(11) SCC 600.
25. State of Karnataka v. Puttaraja, 1998 CrLJ 3683 (Mad).
26. State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 368.
27. Unnikrishnan v. State of Andhra Pradesh, AIR 1993 SC 217.
28. Vikas Yadav v. State of U.P. and ors., (2016) 9 SCC 541.

BOOKS:

1) DURGA DAS BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW 70 TO 76

(3ed, 2008).
2) 1, Dr. SUBHASH KASHYAP, CONSTITUIONAL LAW OF INDIA 625-640 (1 ed.
2008).
3) 2, DURGA DAS BASU, COMMENTRY ON CONSTITUION OF INDIA 2126 (8
ed. 2007).
4) 3, DURGA DAS BASU, COMMENTRY ON CONSTITUION OF INDIA 2126 (8
ed. 2008).
5) DR. ISHITA CHATTERJEE, LAW ON INFORMATION TECHNOLOGY 98 (2 ed.
2018)
6) MP JAIN, INDIAN CONSTITUINAL LAW 1168-1172 (7 ed. 2015).
7) P. RAMANATHA AIYER’S LAW LEXICON 1689,(2 ed.2013).

WEBSITES:

1) http://www.civilservicetimes.co.in/editorial-/cunationalissues/416-trial-by-media-looking-
beyond-the-pale-of-legality-html (last visited on 26/02/2020 at 00:08).
2) http://www.legalservicesindia.com/article/2554/Phone-Tapping-Right-To-Privacy-Under-
Article-21.html (last visited on 27/02/2020 at 12:15).
3) https://blog.ipleaders.in/law-phone-tapping-india/(last visited on 27/02/2020 at 13:45).

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 LIST OF ABBREVIATION

AIR All India Reporter

AP Andhra Pradesh
A.C. Appeal Cases
Art Article
Anr. Another
ALD Andhra Legal Decision
Ass. Association
Co. Company
CrLJ Civil Rules for Courts of Limited
Jurisdiction
Cri. Confidential Reliable Informant
Del. Dehli
DLT Distributed ledger technology
Dr. Doctor
Ed. Edition
GLR Generalized left to right
HC High Court
Hon’ble Honourable
J. Justice
Ltd. Limited
Mad Madras
Mr. Mister
Ors. Others
PUCL. People’s Union of Civil Liberties
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Supp Supreme Court Cases
TN Tamil Nadu
UP Uttar Pradesh
UOI Union of India

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V. Versus

STATEMENT OF JURISDICTION

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THE PETITIONER HUMBLY SUBMITS TO THE HONOURABLE SUPREME COURT
OF SILVIA UNDER THE JURISDICTION OF ARTICLE 32 OF THE SUPREME COURT
OF SILVIA.

Remedies for enforcement of rights conferred by this Part

The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed

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

 Without prejudice to the powers conferred on the Supreme Court by clause (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)

 The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution

STATEMENT OF FACTS

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1) Dr. Simpara, a renowned neuropsychologist is based in Genia in the democratic
republic of Silvia, who was having client including of international repute and few
nations and suspicious personality in the list.
2) On 29th of September 2019 a few state in Genia were attack by group of terrorist for
which matter was handed to FIBS found some material indicate with foreign
connection But not sufficient to indicate anyone.
3) Silvia express reputed and oldest known dailies owned by media house private ltd
started its own investigation and it was found that two suspect visited Dr. Simpara’s
clinic in Genia before 29th September 2019 and had paid visited several times in the
respective countries of the suspects during Feb to May 2019.
4) In this connection reporters of Silvia express attempted to question Dr. Simpara but he
declined to which the duo planned to conduct a sting operation on Dr. Simpara. They
found that Dr. Simpara was holding an dubious mean of identification some papers in
code term and map of cities, unconnected with medical practices. This report was
published entitled “Unholy connection of intellectual with unholy elements”,
authorized by editor in chief Mr. Petro.
5) 1st October 2019 a news channel “Truth Only” after the report of Silvia express tried
to established on the basis of survey that such connection do exist by reference too
many cases from all over the world.
6) “Truth Only “ gather , published and broadcasted views expressed by different
segments of the society to which two panelist in their final arguments Ms. Glory and
Dr. Carlho emphasized that it is time to respond as there is a clear connection between
these intellectual and terror operating groups as they belong to a particular ethnic
group.
7) A survey was done during a live streaming of news where majority of audience gave
their positive response to unholy connection of intellectual with unholy elements
because of particular ethnic similarities to which time has arrived to respond.
8) Many leading media group carried news on the same subject matter in a much
distorted manner, disseminating identically false information as a result Dr. Simpara
was called abused and even threatened on social media.
9) After the news violent conflict broke out between two social groups as result security
troops were dispatched to different parts of state to maintain law and order.

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 10) On 4th of October 2019 government established a truth and reconciliation commission
headed by Justice Kahn (j of SC) and two high court judge to submit the line bound
report recommendation.
11) The commission after thorough investigation filed a report indication that “There is
strong protection of press freedom in the constitutional philosophy. The press must
not be used as a mean of disseminating truth, it must be transparent responsible and
accountable”.
12) The commission also referred to 200th reports of law commission of Silvia “Trial by
Media” of August 2006 which read as “Innocents may be condemned for no reason
or those who are guilty may not get a fair trial or may get a higher sentence after
than they deserved. There appears to be very little restraint in the media in so far as
the administration of criminal justice is concerned.
13) The Commission recommended that:

…journalists need to be trained in certain aspects of law relating to freedom of speech

in Article 9(1)(a) and the restrictions which are permissible under Art. 19(2) of the
Constitution, human rights, law of defamation and contempt.

14) The media association of Silvia filled written petition no. 100 of 2019 before the
honorable Supreme Court contending that any such action will be ultra vires the
constitution article 19 (1) (a).
15) The (FIBS) relied on section 69 of the Information Technology Act, and started
keeping track of the movements of Dr. Simpara as it is expedient to do on in the
interest of sovereignty or integrity of Silvia.
16) Dr. Simpara was also terminated form his services as global institute of Silvia where
he was the head and the dean in the neuropsychology department. He approached
supreme court of Silvia seeking redress for the violation of his privacy against the
editor in chief Mr. Petro, the media house pvt ltd and news channel TRUTH ONLY
against trial by media as it is not only distorted his reputation but also infringed his
right to privacy as contemplated in the constitution .
17) In a separate petition in by Mr. Caviar, a social activist the Supreme Court was
dealing with similar question in which contented that the constitution of Silvia does
not employ the term “Freedom of Press” unlike the American constitution. Freedom
of speech and express of the citizen does not confer an absolute right; it is limited and
it is restricted for press because the guarantee is not only to the natural person and not

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 to the artificial person. It was argued that the guarantee of Article 19(1)(a) of the
Constitution only affirms what already exists in the natural person with the rider that
the state can make responsible restrictions in the exercise of the rights which is right
to freedoms listed under Article 19(1). It cannot take into its ambit what did not exist
naturally. Artificial persons are out of the reach of Article 19 of the Constitution. It
further argues that through it is true that citizens only, the exercise will have to be by
individuals; A legal person created by or under law cannot exercise the freedoms
under Article (1)(a) in that artificial personality. Even the principle qui facit per
alium, facit per se will take in only natural persons for Article 19 purposes.
18) The petition also challenges the constitutional validity of section 69 of the
Information technology Act broadly on the ground that the said provision does not
satisfy the test of proportionality vis-a-via right to privacy.

STATEMENTS OF ISSUES

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 ISSUE I

WHETHER DOCTOR SIMPARA IS ENTITLED TO ENJOY THE RIGHT TO PRIVACY

OR NOT?

ISSUE II

WHETHER THE GUARANTEE UNDER ARTICLE 19(1)(A) OF THE CONSTITUTION

EXTENDS OF ARTIFICIAL PERSONS OR NOT?

ISSUE III

WHETHER SECTION 69 OF THE INFORMATION TECHNOLOGY ACT IS

CONSTITUTIONAL OR NOT?

SUMMARY OF ARGUMENTS

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 1) WHETHER DOCTOR SIMPARA IS ENTITLED TO ENJOY THE RIGHT TO
PRIVACY OR NOT?

It is humbly submitted that the law on privacy is recognition of the individual’s right to be let
alone and to have his personal space inviolate. Dr. Simpara is entitled to enjoy the right to
privacy under Article 21 of the Constitution of Silvia. In the light of this, “No person shall be
deprived of his life or personal liberty except according to a procedure established by law.”
Trial by media has created a ‘problem’ because it involves a tug of war between two
conflicting principles: free press and free trial. Information Technology Act, 2000
incorporated provisions that make the disclosure of Information contained in an electronic
record without the consent of the concerned person a punishable offence

2) WHETHER THE GUARANTEE UNDER ARTICLE 19(1)(A) OF THE

CONSTITUTION EXTENDS OF ARTIFICIAL PERSONS OR NOT?

It is humbly submitted that the guarantee under article 19(1) (a) of the constitution extends to
artificial person. Any action taken by the Law Commission against Media association of
Silvia will be ultra-virus the constitution as it is flagrant violation of the freedom of speech
and expression, the freedom of press and the freedom of profession as guaranteed under the
constitution. That Media plays a vital role in molding the opinion of the society and it is
capable of changing the whole viewpoint through which people perceive various
events. Heinous crimes must be condemned and the media would be justified in calling for
the perpetrators to be punished in accordance with the law. Media is regarded as one of the
four pillars of democracy. 

3) WHETHER SECTION 69 OF THE INFORMATION TECHNOLOGY ACT IS

CONSTITUTIONAL OR NOT?

It is humbly submitted that section 69-A of the Information and Technology Act, 2000 is
unconstitutional as there is no pre-decisional hearing offered by the Information Technology.
Rules, 2009. As amended in the recent Supreme Court judgment, right to privacy is an
integral part of right to life, which is enshrined under Article 21 of the Indian Constitution.
Intercepting a telephone of an individual without any intimation infringes right to privacy of
an individual. The power conferred under section 5(2) to the government is not absolute as it
is a matter of privacy of an individual. Nobody can intercept a telephone of a person without
taking permission from the government. Government can exercise its rights to intercept an

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individual’s telephone only to a certain extent, by showing reasonable grounds to do so.
Government can exercise its right but outside a particular ambit because an individual has a
right to privacy and he also has a right to safeguard his right to privacy.

ARGUMENTS ADVANCED

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ISSUE I. WHETHER DOCTOR SIMPARA IS ENTITLED TO ENJOY THE RIGHT
TO PRIVACY OR NOT?

Dr. Simpara is entitled to enjoy the right to privacy under Article 21 of the Constitution of
Silvia. In the light of this, “No person shall be deprived of his life or personal liberty except
according to a procedure established by law.”The law on privacy is recognition of the
individual’s right to be let alone and to have his personal space inviolate. In the modern era,
as the focus has shifted from society to individual and due to the progress of civilization, the
personal, intellectual and spiritual facets of the personality have gained recognition and the
scope of law has expanded to give protection to these needs.

According to Black’s Law Dictionary “right to be let alone; the right of a person to be free
from any unwarranted publicity; the right to live without any unwarranted interference by the
public in matters with which the public is not necessarily concerned”. In many countries the
concept has been fused with data protection, which interprets privacy in terms of
management of personal information. In Silvia the right of privacy is frequently seen as a
protection by way of drawing the line at how far society can intrude into a person’s affairs.

However, in the instant case, violation of privacy has been done beyond limits. It is submitted
that, violation of privacy has occurred; firstly, by the sting operation conducted by the media
reporters was violative of Dr. Simpara’s privacy [1.1]. Secondly, by the excessive use of
freedom of press [1.2]. Thirdly, by the phone tapping done by FIBS and the Police [1.3]. The
right to reputation is harmed by the disclosure of identity [1.4].

[1.1] The sting operation was violative of Dr. Simpara’s privacy.

[1.1.1] The counsels rely on Article 12 of the Universal Declaration of Human Rights (1948)
defines privacy as:- No one shall be subjected to arbitrary interference with his privacy,
family, home and correspondence, not to unlawful attacks on his honor and reputation. In law
enforcement, a sting operation is an operation designed to catch a person committing a crime
by means of deception. Now the moot question that arises is whether it is for the media to act
as the “law enforcement agency”.

[1.1.2] The carrying out of a sting operation may be an expression of the right of free press
but it carries with it an indomitable duty to respect the privacy of others. The individual who
is subject of a press or television ‘item’ has his or her personality, his or her reputation or
career dashed to the ground after the media exposure. He too has a fundamental right to live

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with liberty, dignity and respect and a right to privacy guaranteed to him under Article 21 of
the Silvia Constitution.

[1.1.3] This technique or method of exposing a public wrong has been greeted with mix
responses and have raised serious ethical and legal concerns. In the Instant case, a sting
operation was conducted by the reporters of the Media House Pvt. Ltd. and the reports so
generated by the two reporters were published by the authority of Editor-in-chief Mr. Petro. 1
The sting operation resulted into hampering of his freedom as well as restricted his rights.

[1.1.4] The counsels humbly cite the case of R.k. Anand v. Delhi High Court 2: - The Supreme
Court held that media is not free to publish any kind of report of a sub-judice matter and to a
sting of a pending trial in any matter they please. In the instant case, publication of matter
based on the sting operation by the reporters was infringement of Dr. Simpara’s right to
privacy.

[1.1.5] The Delhi High Court on Friday, 7th sept, 2007, issued notices to the Delhi
government and city police after taking suo motu cognizance of media reports alleging that a
sting operation carried out by a TV channel, which claimed to have exposed a sex racket run
by a government school teacher Uma Khurana,3 for allegedly luring her pupils into
prostitution has now been revealed to be completely fabricated and was fake and distorted.

[1.1.6] These incidents are an example of how a sting operation can go wrong and become an
exercise in trapping an innocent person. The 17TH Law commission in its 200th report has
made recommendations to the centre to enact a law to prevent the media from interfering
with the privacy rights of the individual. As has been mentioned earlier, great power comes
with great responsibility and therefore it is very essential to identify the manner in which it is
to be used so that it does not create any nuisance to the other members of the society. For this
one should identify one’s limits over others rights like privacy, which is mainly dealt in such
kind of operations.
[1.1.7] It is humbly stated that the pity is that both legislature and judiciary is silent on the
subject. Where there is an urgent need of a law or any guidelines from the lawmakers of our
country, they are standing as a mute spectator as if they do not have any responsibility to
determine how exactly and in what circumstances the citizens of the country should exercise
their freedom of speech and expression in this form. Further in this regard it is stated that it is
1
Page 1, STATEMENT OF FACTS, Anand Swaroop Gupta Memorial National Moot Court, 2020.
2
AIR(2009)8 S.C.C.106.
3
146 (2008) DLT 429.

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urged that the matter should be taken up in manner so that both right to freedom of speech
and expression under Article 19(1) (a) and right to privacy under Article 21 of the
Constitution of India are addressed in a balanced manner.

[1.2 ] The excessive use of freedom of press disrupted right to privacy.

[1.2.1] A very fascinating development in the Indian Constitutional jurisprudence is the

extended dimension given to Article 21 by the Supreme Court in post-Maneka era . It directed
news channels to take steps to prohibit “reporters from producing or airing any programme
which are based on entrapment and which are fabricated, intrusive and sensitive. 4 Section 5 of
the Cable Television Networks (Regulation) Act, 1995 and the Cable Television Network
Rules (hereafter the Cable Television Networks Act), stipulates that no programme can be
transmitted or retransmitted on any cable service which contains anything obscene,
defamatory, deliberate, false and suggestive innuendos and half truths.

[1.2.2] The counsels humbly rely on the case of Kharak Singh v. The State of U.P.5 Justice
Subba Rao held that, “the right to personal liberty takes is not only a right to be free from
restrictions placed on his movements, but also free from restrictions placed on his
movements, but also free from encroachments on his private life. It is true our Constitution
does not expressly declare a right to privacy as a fundamental right but the said right is
essential ingredient of personal liberty. Despite of the sting operation conducted, no
publication of the material should have been done by Mr. Petro and the news channel ‘Only
Truth’.

[1.2.3] The counsels humbly cite the case of R. Rajagopal v. State of Tamil Nadu 6 which
involved a balancing of the right of privacy of citizens against the right of the press to
criticize and comment on acts and conduct of public officials. The criticism done by the other
news channels based on the reports of the ’SILVIA Express’ had not only violated right to
privacy but also caused harm to the reputation of Dr. Simpara. Article 17 of International
Covenant of Civil and Political Rights (to which India is a party) states “No one shall be
subjected to arbitrary or unlawful interference with his privacy, family, home and
correspondence, nor to unlawful attacks on his honor and reputation”

4
NBA is a community formed by private television & current affairs broadcasters. As per the NBA website, it
currently has 20 leading news channels and current affairs broadcaster as its members. Complaints can be filed
against any of the broadcasters that are members of NBA on whom the Code of Ethics is binding.
5
1 SCR 332.
6
(1994) 6 S.C.C. 632.

MEMORIAL ON BEHALF OF PETITIONER Page | 15

 [1.2.4] The ever-expanding readership and viewership coupled with the use of modern
technologies foe newsgathering has given media organizations an unprecedented role in
shaping popular opinions. However, media freedom also entails a certain degree of
responsibility.7 In an increasingly competitive market for grabbing the attention of viewers
and readers, media reports often turn to distortion of facts and sensitization.

[1.2.5] In recent times there have been numerous instances in which media has conducted the
trial of an accused and has passes the verdict even before the court passes its judgment. Some
famous criminal cases that would have gone unpunished but for the intervention of media, are
Priyadarshini Mattoo case 8, Jessica Lal case9, Nitish Katara murder case  10 and Bijal Joshi
rape case 11. The media however drew flak in the reporting of murder of Aarushi Talwar,
when it preempted the court and reported that her own father Dr. Rajesh Talwar and possibly
her mother Nupur Talwar were involved in her murder, the CBI later declared that Rajesh
was not the killer.

[1.2.6] The counsels humbly cite on the case of Sibal Kumar Gupta and ors. v. B.K. Sen and
Anr12 It was held by the supreme court that: “no doubt it would be mischievous for a
newspapaer to systematically conduct an independent investigation into a crime for which a
man has been arrested and to publish the results of that investigation. This is because trial by
newspapers when a trial by one of the regular tribunals of the country is going on, must be
prevented. The basis for this view is that such action on the part of the newspaper tends to
interfere with the course of justice whether the investigation tends to prejudice the accused or
the prosecution. There is no comparison between a trial by a newspaper and what has
happened in this case.”

[1.2.7] The counsels further rely on The Law Commission in its 200 th report, Trial by Media:
Free Speech versus Fair Trial Under Criminal Procedure (Amendments to the contempt of
courts Act, 1971) has recommended a law to debar the media from reporting anything
prejudicial to the rights of the accused in criminal cases, from the time of arrest to
investigation and trial. The case of Sheela Barse v. Union of India13 the Supreme Court held

7
http://www.civilservicetimes.co.in/editorial-/cunationalissues/416-trial-by-media-looking-beyond-the-pale-of-
legality-html (last visited on 26/02/2020 at 00:08).
8
( 2010)9SCC747.
9
(2010) 6 SCC ⁴.
10
(2016) 9 SCC 541.
11
(1997) 2 GLR 1147.
12
AIR 1961 SC 633.
13
 [(1999) 6 SCC 667].

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that there must be a balance between the two interests, and that no person (whether or not
they are a prisoner) should be compelled to grant an interview or have photographs taken.

[1.2.8] Trial by media has created a ‘problem’ because it involves a tug of war between two
conflicting principles: free press and free trial. In labour Liberation Front v. State of Andhra
Pradesh14 it was held that once an incident involving prominent person takes place, the media
is swinging into action and virtually leaving very little for the prosecution of the courts to
examine the matter. The ability to do great good rarely comes without some power to do
harm, and the free press is no exception to this general rule.

[1.2.9] In State of Maharashtra v. Rajendra Jawanmal Gandhi15, the Supreme Court observed
:- “there is procedure established by law governing the conduct of trial of a person accused of
an offense. A trial by press, electronic media or public agitation is very antithesis of rule of
law. It can well lead to miscarriage of justices. Lastly, words of Justice H.R. Khanna are
summed up as “ certain aspects of a case are so much highlighted by the press that the
publicity gives rise to strong public emotions.

[1.2.10] Finally, on the reliance of arguments made, authorities cited, and case laws referred,
the Counsels humbly submit before this Court that the right to privacy under constitution of
Silvia is highly infringed.

[1.3] The phone tapping done by FIBS and the Police was complete infringement of the Right
to Privacy.

[1.3.1] The counsels humbly submitted that, The Information Technology Act, 2000
incorporated provisions that make the disclosure of Information contained in an electronic
record without the consent of the concerned person a punishable offence. As in the instant
case, Dr. Simpara was also terminated from his services at Global Medical Institute of Silvia,
where he was the head and dean in the neuropsychology department. 16the phone tapping and
the reports in news paper not only hampered his reputation but also his job.

[1.3.2] In August 2017, a nine-judge bench of the Supreme Court in the Puttaswamy

Case17 gave legitimacy to the right to privacy under the Constitution of India and overruled

14
1998 (1) ALD 755, 1998 (1) ALD Cri 283, 1998 (2) ALT Cri 411.
15
 (1997) 8 SCC 386.
16
Page 4, STATEMENT OF FACTS, Anand Swaroop Gupta Memorial National Moot Court, 2020.
17
(2017) 10 SCC ⁴.

MEMORIAL ON BEHALF OF PETITIONER Page | 17

the M.P Sharma case18 and the Kharak Singh case19 in relation to the guarantee of the right to
privacy under the Constitution, and, therefore, made its derogation subject to the highest level
of judicial scrutiny. Premised on the principle that “Privacy is the ultimate expression of the
sanctity of the individual”, the Supreme Court affirmed the reasoning and judgment given in
the PUCL case20 and held that: The violation of privacy with regard to arbitrary state action
would be subject to the “reasonableness” test under Article 14.Privacy invasions that
implicate Article 19 freedoms would have to fall under the restrictions of public order,
obscenity etc. Intrusion of one’s life and personal liberty under Article 21 will attract the just,
fair and reasonable threshold.

[1.3.3] Phone tapping not only infringes Article 21 but also contravenes Article 19 freedoms.
In addition to being “fair, just and reasonable” as required by Article 21, and as was held in
the PUCL Case21. It would also need to be subject to a higher threshold of “compelling state
interest”. The ‘proportionality and legitimacy’ test was also established – which is a four-fold
test that needs to be fulfilled before state intervention in the right to privacy:
i. The state action must be sanctioned by law.
ii. In a democratic society, there must be a legitimate aim for action.
iii. Action must be proportionate to the need for such interference.
iv. And it must be subject to procedural guarantees against abuse of the power to interfere.

[1.3.4] The counsel humbly cite the case of case of PUCL v. Union of India 22 THE Supreme
Court held that right to privacy included the right to have a telephonic conversation in the
privacy of one’s home or office and that telephonic tapping which is a form of ‘technological
eavesdropping’ infringed the right to privacy. Similarly, in the case of R.M. Malkani v. State
of Maharashtra23 the Supreme Court held that the telephonic conversation of an innocent will
be protected by Courts against wrongful or high handed interference by tapping the
conversation.

[1.3.5] The court also read the right to privacy as deriving from article 19. “when a person is
talking on telephone, he is exercising his right to freedom of speech and expression”, the
court observed, and therefore “telephone tapping would infract Article 19(1)(a) of the

18
1954 AIR 300, 1954 SCR 1077.
19
supra note 1.
20
AIR 1997 SC 568.
21
supra note 2.
22
Supra note 3.
23
1973 AIR157.

MEMORIAL ON BEHALF OF PETITIONER Page | 18

Constitution. Hence, it is submitted that the phone tapping done has completely led to the
infringement of the right to privacy of Dr. Simpara.

[1.4] The right to reputation is harmed by the disclosure of identity.

[1.4.1] The non-erasure of any derogatory news and the disclosure of the identity by the
search engines attracts the violation of the right to reputation. Here, in this regard the
counsels humbly submit that existing news on, “Unholy Connection of Intellectuals with
Unholy Elements”, harms the reputation of Dr. Simpara.

[1.4.2] It is humbly submitted that the non erasure of the news by “Truth only” news portal
about the case of Dr. Simpara is the violation of the right to reputation. Reputation is directly
associated with a person’s personal as well as social life. The existing news about Dr.
Simpara is of the connection of him with the terror attack in Genia, it was observed that the
evidence was insufficient to prove the guilt of Dr. Simpara.

[1.4.3] It is further submitted that the only findings were some papers in coded terms and the
map of cities which states that the publication of reports based on this reports by the reporters
was directly affecting the reputation of Dr. Simpara

[1.4.5] Counsels further submit that in the name of right to information or freedom of speech
and expression, the news agency is misusing the freedom of press and such news which have
no existence in present and is if no relevance today must be erased immediately.

[1.4.6] Thus, on reliance of the arguments made and the authorities cited, the counsels
humbly submit that such disclosure of identity is a clear cut violation of the safeguard
provided by the Constitution of Silvia including the right to reputation.

ISSUE II.WHETHER THE GUARANTEE UNDER ARTICLE 19(1)(A) OF THE

CONSTITUTION EXTENDS OF ARTIFICIAL PERSONS OR NOT?

 The council on the behalf of the petition would like to context that the guarantee under
article 19(1)(a) of the constitution extends to artificial person. Any action taken by the Law
Commission against Media association of Silvia will be ultra-virus the constitution as it is

MEMORIAL ON BEHALF OF PETITIONER Page | 19

flagrant violation of the freedom of speech and expression, the freedom of press and the
freedom of profession as guaranteed under the constitution.

It further submitted before the Hon’ble bench that the constitutional guarantees of free speech
and free press do not permit a State to forbid or proscribe advocacy of the use of force or of
law violation. Firstly, it is contended that Media Association has right to Media Trial [2.1].
Secondly, the Law Commission report given is violative of the article 19 (1) (a) which
guarantees “freedom of speech and expression” [2.2]. Thirdly, the grantees under article
19(1) (a) of the constitution extends to artificial person [2.3].

[2.1] Media Association has right to Media Trial.

[2.1.1] It is humbly submitted that Democracy is based essentially on free debate and open
discussion for that it is the only corrective of government action in a democratic setup. If
democracy means the government of the people, by the people, it is obvious that every citizen
must be entitled to participate in the democratic process and is order to enable him
intelligently.24

[2.1.2] Further it is contended that Media plays a vital role in molding the opinion of the
society and it is capable of changing the whole viewpoint through which people perceive
various events. Heinous crimes must be condemned and the media would be justified in
calling for the perpetrators to be punished in accordance with the law. Media is regarded as
one of the four pillars of democracy. 

[2.1.3] Tradition of freedom selection from the writer J S mill is "on liberty” suggested that
“the only purpose for which the power can be right fully exercised over any member of
civilized commonly against his will, is to prevent harm to others”.25

[2.1.4] It is humbly submitted that as the Law Commission report recommended that the
innocents may be condemned for no reason or those who are guilty may not get a fair trial or
may get a higher sentence after trial than they deserve , but here the Media Association
investigated through its network as in the context of security of the state. Rohilla Hassan in
its legal perspective contended that “Media plays many important role in democracy. It
create the society, a sense of awareness regarding the democratic and social obligation”.26
24
Maneka Ghandi v. Union of India AIR 1978  Sec.597.
25
- Mittton Sanford Mayer , THE TRADITIONAL CONCEPTS OF FREEDOM AND JUSTICE IN AMERICA
1957, P.467 .
26
Rohilla Hasan, Freedom of media in India (Legal Persective) 3IJHSS (2014), P.191.

MEMORIAL ON BEHALF OF PETITIONER Page | 20

[2.2] The Law Commission report given is violative of the article 19 (1) (a) which guarantees
“freedom of speech and expression”

[2.2.1] The council on the behalf of petitioner humbly put forward before the Hon’ble bench
that Media Association being a corporate comes in the preview of artificial person as
“Artificial person is an entity created by law and given certain legal rights and duties of a
human being. It can be real or imaginary and for the purpose of legal reasoning is treated
more or less as a human being. For example, corporation, company etc. An artificial person is
also referred to as a fictitious person, juristic person, juridical person, legal person or moral
person”.27

[2.2.2] It is humbly submitted before the court that as the Law Commission that the
restrictions which are permissible under article 19 (2) of the constitution, human rights, law
of defamation and contempt. In Ville constitutional law of the United States, “ Corporation
as persons are protected as much as natural person by the constitutional guarantee of freedom
of speech of the press.”28

[2.2.3] All Indian companies engaged in the business of communication and whose share
holders are citizens should be deemed to be citizen for the purpose of the relevant clauses of
article 19(1)(a).29 Dr. Ambedkar’s draft the no law shall be made abridging the freedom of
speech of the press of the association and the assembly except for consideration of public
30
order and morality. Further, Pritchett, American Constitution , Considering the importance
of group in liberal democratic society ,it would be a devious and even illiberal policy to
guarantee the rights to individual which denying them to organized groups .

[2.2.4] In Benet Coleman and Co. and ors v. Union Of India and ors Court noted that
freedom of the press is an essential element of the article 19(1)(a) as act 19(1)(a) read as -
“And the absence of an express mention of such freedom as a special category is irrelevant.
Free press is to be regarded as an essential element of freedom. The expression is general as
freedom of press is both qualitative and quantitative elements and therefore the quantitative
controls. Constitute restrictions on freedom of expression”.31   

27
https://definitions.uslegal.com/a/artificial-person.
28
Bowman v. secular society (1917) A.C.406 (House of Lords). (H936) Page:856 -857).
29
101 report law commission report (dated 28th May 1984).
30
(T.M.R. Edition 1977, page 524,fn.
31
 1973 AIR 106, 1973 SCR(2) 757.

MEMORIAL ON BEHALF OF PETITIONER Page | 21

[2.2.5] It is further contended that Article 19(1) (a) Provides that “all citizens shall have right
to freedom of speech and expression”. This freedom place a pivotal role in generating
“public opinion” regarding “economic, political and social matter”. This freedom Companies
within its ambit the “distribution of information”, “ Freedom of Propagation” and “
exchange of idea” that help forming once opinion and point of view and debates on matter of
public concern.

[2.2.6] In Sakal Newspaper v. Union of India32 the court held that “the state couldn’t make
laws which directly affect the circulation of the newspaper   for that would amount to the
rotation of Freedom of speech”. The press keeps an extra check over the three branches of
government, the legislative Executive and Judiciary. Therefore the press is commonly
regarded as a 4th state. In Sakal Newspaper v. Union of Silvia33 the “freedom of press” is
regarded as “the spices of which freedom of expression is genius”.

[2.2.7] It is humbly submitted Media association being a artificial person is entitled to enjoy
the rights granted under article 19(1)(a) of the constitution of Silvia. Any restriction on media
association or media trial would be amounted to violation of the article 19 (1)(a) of the
constitution of Silvia Ayesha Khalid, media as 4th pillar of democracy, VOJ Blog, “Media
is considered as 4th pillar of democracy and it brings to the people the information about the
other 3 pillars Executive , Legislative , judiciary by making their work transparent”.34

[2.3] The guarantees under article 19(1) (a) of the constitution extends to Artificial person.

[2.3.1] Council on the behalf of petitioner humbly submits before the Media Association
being a company, engaged in the business of communication and whose share- holders are
citizens should be deemed to be 'citizen' for the purpose of the relevant clauses of article 19."

[2.3.2] A legal entity that is not a human being but for certain purposes is considered by
virtue of statute to be a natural person. In Rama Thappar v. State of Madras35 the Supreme
Court has included press the definition of freedom of speech or expression. Freedom of press
was included in the right to speech and expression. By apex court in Rama Thappar .vs. state
of Madras court held that this freedom include “rights to propagate ideas” including “right
to circulate”.

32
AIR 1962 SC 305.
33
  Supra note 02.
34
http://www.voj.news/media as a 4th pillar of democracy/ April 24 .2018.
35
AIR 1950 SCR 594.

MEMORIAL ON BEHALF OF PETITIONER Page | 22

[2.3.3] Further it is contended that the freedom of the press is more for benefit of general
public than for press itself. “It is the primary duty of the court to uphold the said freedom and
invalidate laws or administrative action which interferes with the freedom of the press
contrary to the constitutional mandate”.36

[2.3.4] The express Newspaper v. Union of India37 the court held that the pre- censorship
imposed or calculated curtailed or newspaper prevented from starting under a law led to
violation of freedom of speech and expression.

[2.3.5] The council of behalf of petitioner come to the conclusion that to limit the freedom of
speech and expression to the natural person (as in the position presents) leads to serious
anomalies. It has the effect of excluding  a pretty large number of institution who deserve the
protection in question as much as natural person , as we have tried to show media association
have come to acquire the role of their own and to leave them out of protection of article 19
(1)(a) amount to deny the benefit to a fairly sizeable proportion of humanity the country
whose claimed to constitutionality  favorable climate for itself expression cannot be seriously
disputed.

ISSUE III. WHETHER SECTION 69 OF THE INFORMATION TECHNOLOGY

ACT IS CONSTITUTIONAL OR NOT?

It is humbly submitted that section 69-A of the Information and Technology Act, 2000 is
unconstitutional as there is no pre-decisional hearing offered by the Information Technology.
Rules, 2009. As amended in the recent Supreme Court judgment, right to privacy is an
integral part of right to life, which is enshrined under Article 21 of the Indian Constitution.

36
Indian Express newspaper ( Bombay) Pvt. Ltd. V/s union of India AIR 1986 SC 515 ).
37
AIR 1958 SC 578.

MEMORIAL ON BEHALF OF PETITIONER Page | 23

Intercepting a telephone of an individual without any intimation infringes right to privacy of
an individual. But the same can be done by the government if any special situation arises. The
power is conferred to the government under section 5(2) of Telegraph Act. The provision laid
down under section 5(2) gives power to government to intercept a telephone in interest of
public or in a case of emergency. The power conferred under section 5(2) to the government
is not absolute as it is a matter of privacy of an individual. Nobody can intercept a telephone
of a person without taking permission from the government. Government can exercise its
rights to intercept an individual’s telephone only to a certain extent, by showing reasonable
grounds to do so. Government can exercise its right but outside a particular ambit because an
individual has a right to privacy and he also has a right to safeguard his right to privacy. With
the reference to the facts of the instant case the counsels humbly submits that;

In the instant case after intimation was made by the Police and FIBS satisfied themselves into
deciding to lay a wire tap. On the basis of ineffectual inquiry, the provisions and guidelines
laid by the Legislature and Supreme Court respectively were violated in the exercise of
arbitrary power. Therefore, it is humbly submitted that in the instant case the phone tap and
other inquiry was done without application of mind to the facts and circumstances of the case
on hand. Hence, there was no compliance of mandatory provisions of 419- A.

3.1. Invalid telephone tap on petitioner was in violation of his constitutional Right to privacy

[3.1.1] It is humbly relied on the Blacks law Dictionary defines privacy as the right of a
person and his property to be free from unwarranted public security and exposure.38 Invasion
of privacy has direct connection with shame and dignity and it is related to a person’s self
respect. The term “Right to privacy” is generic term encompassing various rights recognized
to be inherent in concept or ordered liberty. The right to be left alone or the Right of a person
to be free from unwarranted publicity is the Right to Privacy. 39 The right to enjoy life is a
right to enjoy it in the most agreeable and pleasant way and the right of privacy is nothing
more than a right to live in a particular way.40

[3.1.2] It is further stated that the Right to privacy is implicit in the Right to Life and Liberty
guaranteed to the citizens of India by Article 21of the Constitution of India. Disclosure of
true private facts has the tendency to disturb a person’s tranquility. It may generate many
complexes in him and may even lead to many psychological problems. He may, thereafter,
38
Zaidi, Hasan. Mobile Phone Forensics and Electronic Surveillance, Alia Law Agency (2010).
39
P.Ramanatha Aiyer’s Law Lexicon, 2nd Edition,p.1689.
40
Black’s Law Dictionary, 8th Edition, p.1350.

MEMORIAL ON BEHALF OF PETITIONER Page | 24

have a disturbed life all through. In the face of these potentialities, the right of privacy is an
essential component of the right to life envisaged by Article 21.

3.2 “Right to privacy” is implicit in “Right to life”

[3.2.1] The counsels further state that the Privacy is one of the basic and integral part of one’s
life and is all the more necessary in a democratic set up of society. It is not an independent
fundamental right. It has been developed by Courts in various cases which came before it for
adjudication. However, the Courts have not defined privacy on the ground that it may be too
broad and moralistic to define it judicially.

[3.2.2] The Right to Privacy was first raised in Kharak Singh v State of U.P41. The majority
opinion was that no such right is conferred under Articles 19(1)(d), 19(1)(e) and 21 but
Justice Subba Rao opined that this right may be inferred from right to personal liberty under
Article 21. In Unnikrishnan v. State of Andhra Pradesh42, the Supreme Court took a broader
view and gave a list of rights under the expression personal liberty which arise from Article
21 and it included right to privacy. A detailed analysis of the right took place in R. Rajgopal
v State of Tamil Nadu43 and held that right to privacy has acquired constitutional status and is
implicit under Article 21.

[3.3] Telephone tapping infringed Article 21 due to non-compliance of procedure established

by law under Section 5(2) of The Silvia Telegraph Act and 419-A under The Silvia Telegraph
Rules, 1951

[3.3.1] It is further stated that the Communication privacy is a bedrock constitutional

principle and electronic communications must be protected through strong privacy
legislation. Striking the proper balance between privacy and law enforcement in the
electronic realm has always been a complex endeavor.

[3.3.2] The Court observed in M. Nagaraj v. Union of India44, that it is a fallacy to regard
fundamental rights as a gift from the State to its citizens. Individuals possess basic human
right independently of any Constitution by the fact that they are members of human race. The
Right to life is not merely physical or animal existence. It includes the right to life with
human dignity.

41
AIR 1963 SC 1295.
42
AIR 1993 SC 2178.
43
AIR 1995 SC 264.
44
AIR 2007 SC 71.

MEMORIAL ON BEHALF OF PETITIONER Page | 25

[3.3.3] Conversation on phone is often of an intimate and confidential character. Telephone
conversation is a part of modern man’s life. Telephone conversation is an important facet of
man’s private life. Right to privacy would certainly include telephone conversation in the
privacy of one’s home or office. Telephone tapping would thus infract Article 21 of the
Constitution of India unless it is permitted under the procedure established by law.45

[3.3.4] Telephone tapping under Section 5(2) of the Telegraph Act was challenged in
P.U.C.L. v Union of India46, where it was held that right to privacy was a part of right to life
and personal liberty under Article 21 of the Constitution and it cannot be curtailed except
according to procedure established by law. In Maneka Gandhi v Union of India47, it was held
that personal liberty under Article 21 was to be read in conjunction with Articles 19 and 14
in as much as the law authorizing interference with personal liberty and right of privacy must
also be right, just and fair and not fanciful, oppressive or arbitrary.

[3.3.5] In the instant case, as already established above, the mandatory provisions of
procedure envisaged in 419-A was not complied with and thus telephone tap was invalid.
Since, the telephone tap was not laid according to the procedure established by law, it infracts
the fundamental right i.e. right to privacy which is implicit in fundamental right under Article
21 i.e. Right to life.

[3.3.6] In K.L.D. Nagasree v Union of India, sub rule (9) of the procedure laid in 419-A was
not complied with and it was held that the provisions laid in 419-A were mandatory to
follow. Also, it was held that due to non- compliance of provisions of 419-A, the phone tap
was invalid and infracted the Right to privacy under Article 21. Also, the bench opined that
keeping in view the object and purpose of the said Rules as declared in People's Union For
Civil Liberties’48 case and particularly since the violation of the said provisions would result
in infraction of right to privacy of an individual which is a part of the right guaranteed under
Article 21 of the Constitution of India, that Rule 419-A though procedural in nature is
mandatory and the non-compliance of the same has resulted in violation of the Right to
Privacy.

45
P.U.C.L. v Union of India, AIR 1997 SC 568.
46
supra note 4.
47
AIR 1978 SC 597.
48
supra note 5.

MEMORIAL ON BEHALF OF PETITIONER Page | 26

[3.3.7] Similarly, R.M Malkhani case49 supreme court held that”... Article 21 was invoked by
Submitting that the privacy of the applicant’s conversation was invaded. Article 21
contemplates procedure established by law with regard to deprivation of life or person liberty.
The telephone conversation of an innocent citizen will be protected by court against wrongful
or high end interferences by tapping the conversation. There should be some trust between
husband and wife and in any case, in my views, the right of privacy of the wife is infringed
by her husband by recording her conversation on telephone to other and if such a right is
violated, which is fundamental, can such husband, who was resorted to illegal mean , which
are not only unconstitutional, but also immoral, later on rely on the evidence gather by him
by such means clearly, it must not be permitted

[3.3.8] In K.S Putta Swami case, CJI Deepak Mishra ask the government to take measures to
provide more security to protect the data obtained by people and the information which has
been obtain by Aadhar should not be released .Clause (3) article 20 provides that “No person
of any offence shall be compelled to be witness against at himself.

[3.3.9] The unbridled discretion granted to the named security and intelligence agency to
access information under section 69(1) amount to a breach of fundamental right to free
speech and expression guarantee under article 19(1)(a) and right to privacy and liberty under
article 21 of the constitution of India. The restriction can be invoked on the right of privacy.

a) Backed by Law b) For legitimate state aim, and c) Proportionate

[3.3.10] Consequently, any government order under section 69(1) of IT act must fulfill this
three part test to be constitutional. The absence of judicial and legislative judicial oversight
over the executive’s decision – making under section 69(1) is likely to make it a
disproportionate restriction on an individual’s fundamental right to privacy and therefore,
unconstitutional.

[3.3.11] Thus, on reliance of the arguments made and authorities cited, the counsels humbly
submit that such mode of use of technology is complete violation of right to privacy given
under Constitution of Silvia including the right to reputation.

49
supra note 6.

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 PRAYER

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, THE COUNSEL FOR RESPONDENT HUMBLY PRAYS
THAT THE HON‟BLE SUPREME COURT OF BINDIA BE PLEASED:

MEMORIAL ON BEHALF OF PETITIONER Page | 28

I. DECLARE THAT DOCTOR SIMPARA IS ENTITLED TO ENJOY THE
RIGHT TO PRIVACY.

II. DECLARE THAT THE GUARANTEE UNDER ARTICLE 19(1)(A) OF THE

CONSTITUTION EXTENDS OF ARTIFICIAL PERSON.

III. DECLARE THAT SECTION 69 OF THE INFORMATION TECHNOLOGY

ACT IS UNCONSTITUTIONAL.

AND/OR

PASS ANY ORDER THAT THIS HON’BLE COURT MAY DEEM FIT IN THE
INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

AND FOR THIS ACT OF KINDNESS, THE COUNSELS FOR

THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

(COUNSEL FOR THE PETITIONER)

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