TEAM CODE T-27

UNIVERSITY MOOT COURT SELECTION, GRAND INTRA, 2023.

Before

THE SUPREME COURT OF

ARYAVARTA

FILED U/A 32 OF THE CONSTITUTION OF

ARYAVARTA

(W.P NO. /2023)

NETZERK AND ANR.................................................................................PETITIONER

VERSUS

UNION OF ARYAVARTA….....................................................................RESPONDENT

MEMORIAL for PETITIONERS

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TABLE of CONTENTS

INDEX of AUTHORITIES..............................................................................................4

LIST OF ABBREVIATIONS..........................................................................................6

STATEMENT OF JURISDICTION..............................................................................7

STATEMENT OF FACTS..............................................................................................8

ISSUES RAISED............................................................................................................10

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

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

I. WHETHER SECTION 69A OF THE IT ACT, 2000 READ WITH THE IT

(BLOCKING) RULES, 2009 AUTHORIZES THE ISSUANCE OF A
DIRECTION TO BLOCK USER ACCOUNTS IN THEIR ENTIRETY OR
WHETHER SUCH
POWER IS URL/LINKS SPECIFIC?.........................................................................13

II. THE BLOCKING ORDER WHICH WAS PASSED BY THE MeitY

(DESIGNATED OFFICER) IS VOID AS IT HAS NOT BEEN FOUNDED ON
THE BASIS OF DISCERNIBLE REASONS RELATED TO
OBJECTIONABLE CONTENT AND ON THE BASIS OF NON-
COMMUNICATION OF REASON TO THE USER IN TERMS OF RULE 8 OF
THE IT (BLOCKING), RULES,
2009?................................................................................................................................15

III. WHETHER THE CENTRAL GOVERNMENT, UNDER SECTIONS 87 AND

79 OF THE IT ACT, HAS ULTRA VIRES LEGISLATED IT RULES, 2021 THAT
PRESCRIBE UNREASONABLE DUE DILIGENCE ON INTERMEDIARIES
AND ARE VIOLATIVE OF THE DOCTRINE OF PROPORTIONALITY ETC?
20

IV. WHETHER THE SEIZURE OF DIGITAL DEVICES BY THE AGENCY

(ED) IS VIOLATIVE OF THE FUNDAMENTAL RIGHT TO PRIVACY OF THE
PETITIONERS?............................................................................................................25
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V. WHETHER THE PETITIONERS HAVE REASONABLE EXPEACTATION

OF PRIVACY WITH RESPECT TO ANY INFORMATION RELATING TO
THE
INVESTIGATION COLLECTED BY ENFORCEMENT DIRECTORATE?.......28

PRAYER FOR RELIEF................................................................................................33

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INDEX of AUTHORITIES

Cases

Bloomberg LP v. ZXC, [2022] UKSC 5............................................................................26, 28

Brij Bhushan And Another vs. The State Of Delhi, (1950) SCC 449......................................13
Chintaman Rao v. State of M.P, (1950) SCC 695...................................................................13
CST v. Parson Tools and Plants, (2011) 4 SCC 266................................................................11
Department of Electronics and Information Technology v. Star India Pvt. Ltd., 2016 SCC Del
4160......................................................................................................................................12
Dwaraknath vs. Municipal Corp (1971) SCC (2) 314.............................................................20
ERY v Associated Newspapers Ltd [2016] EWHC 2760 (QB)...............................................28
Fateh Singh vs. State of Rajasthan, AIR 1995 Raj 15..............................................................17
Gurudevdatta VKSSS Maryadit v. State of Maharashtra, [(2001) 4 SCC 534........................12
Harbans Lal v. Collector or Central Excise AIR 1993 SC 2487..............................................17
Hiralal Rattanlal v. State of U.P, (1973) 1 SCC 216................................................................12
Internet and Mobile Association of India vs. Reserve Bank of India, MANU/SC/0264/2020.
..............................................................................................................................................25
Jollyamma Joseph v State of Kerala, LAWS(KER)-2023-6-126............................................29
Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors, MANU/SC/1044/201.24
Justice KS Puttaswamy v. Union of India, (2017) 10 SCC 1..................................................12
LIC V. Manubhai D. Shah, 1993 AIR 171...............................................................................22
Maneka Gandhi v. Union of India 1978 AIR 597....................................................................16
National Central Co-operative vs. Ajay Kumar and Others, AIR 1994 SC 39........................17
PNM v Times Newspapers Ltd [2014] EWCA Civ 1132;......................................................28
Prakash Nath Khanna v. CIT, (2004) 9 SCC 686....................................................................12
Quint Digital Media Limited & Anr. Vs. Union of India, 2021 W.P.(C) 3659/2021 & CM
APPL. 11097/2021.........................................................................................................18, 19
Richard v British Broadcasting Corpn [2018] EWHC 1837 (Ch); [2019] Ch 169.................28
Riley v. California, 573 U.S. 373 (2014).................................................................................23
Romesh Thappar v. State of Madras (1950) AIR 124..............................................................14
S. Khushboo v. Kanniammal, (2010) 5 SCC 600....................................................................13
Shilpa Shetty v Clapping Hands Pvt Ltd and Ors, MANU/MH/3240/2021............................27
Shreya Singhal v. Union of India (2015) AIR 2015 SC 1523,................................................17

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State of Karnataka vs. Ganesh Kamath, 1983 2 SCC 402.......................................................20

State of Maharashtra Vs. Rajendra Jawnmal Gandhi, [1997] INSC 724.................................27
State of Uttar Pradesh v. Raj Narain (1975) 4 SCC 428..........................................................14
Tanul Thakur v. Union of India, 2019 W.P.(C) 13037/2019 & CM No.53165/2019..............17

Statutes

Contempt of Courts Act, 1971, No. 70, Acts of Parliament, 1971(India)................................29

Information Technology ( Procedure and safeguards for blocking for access of information ),
Rule 16, 781, G.S.R, 2009...................................................................................................14
Information Technology Act, 2000, § 69 (A), No.21, Act of Parliament, 2000......................20
Information Technology Act, 2000, § 69(a), No. 21 of 2000, 2009........................................16
Information Technology Act, 2000, § 79, No.21, Act of Parliament, 2000.............................21
Information Technology Act, 2000, § 87(2) (zg), No.21, Act of Parliament, 2000.................19
IT (Intermediary Guidelines and Digital Media Ethics Code), 139 G.S.R. 2021....................18
IT (Intermediary Guidelines and Digital Media Ethics Code), Rules 3(1)(b)(x), 139 G.S.R.,
2009......................................................................................................................................22
IT (Intermediary Guidelines and Digital Media Ethics Code), Rules 3(j), 139 G.S.R., 2009. 21
Prevention of Money Laundering Act, 2002, § 17(1)(iii), No. 15, Acts of
Parliament,2003(India).............................................................................................................25
Prevention of Money Laundering Act, 2002, § 66, No. 15, Acts of Parliament,2003(India). .26
Prevention of Money Laundering Act, 2002, No. 15, Acts of Parliament,2003(India)...........25

Constitutional Provisions

Germany Const. Art.15............................................................................................................15

RSA Const. Art. 16.................................................................................................................15
INDIA CONST. art. 21............................................................................................................23
Moot Proposition

¶ 2, MOOT CLARIFICATION................................................................................................18
¶16, MOOT PROPOSITION...................................................................................................23
¶7, MOOT PROPOSITION....................................................................................................19
¶10Moot Proposition................................................................................................................25

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LIST OF ABBREVIATIONS

Abbreviations Corresponding Expansion

& And
Cri. LJ Criminal Law Journal
¶ Paragraph Number
Art. Article
i.e., That is
Anr Another
Ors Others
SCC Supreme Court Cases
Hon’ble Honorable
Sec Section
AIR All India Reporter
Ker Kerala
sch Schedule
HC High Court

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STATEMENT OF JURISDICTION

The Counsel for the Petitioner has filed this present writ petition before the Hon'ble Supreme
Court of Aryavarta under Article 32 of the Aryavarta Constitution in the dispute related to
Information Technology Act 2000, Information Technology (Intermediary Guidelines and
Digital Media Ethics Code) Rules, 2021, Information Technology (Procedure and Safeguards
for Blocking for Access of Information by Public) Rules. 2009 and Prevention of Money
Laundering Act, 2002, impleading the Union of Aryavarta as Respondent. The Counsel for
the Petitioners hereby submits to the jurisdiction of this Hon'ble Court.

ARTICLE 32 OF THE CONSTITUTION OF ARYAVARTA

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.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

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

THIS MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS ON BEHALF OF THE PETITIONER IN THE PRESENT MATTER.

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STATEMENT OF FACTS
The Republic of Aryavarta and the New Age Innovations

The Republic of Aryavarta (“Aryavarta”) is a federal republic located in the South Asian
region, regarded as one of the most innovative and fastest-growing developing countries in
the world and has consistently seen multiple tech start-ups and new-age innovations in the
last few years. Industrial growth, overpopulation, and online service demand have led to the
influx of foreign tech giants operating as major digital service providers in Aryavarta across
various sectors like social media, e-commerce, payments, and online gaming.

The IT Rules of 2021

To impose due diligence on intermediaries and online publishers, the Government of

Aryavarta notified the Information Technology (Intermediary Guidelines and Digital Media
Ethics Code) Rules, 2021 (IT Rules, 2021) on 25.02.2021 in the exercise of its powers
conferred under sections 87(1), 87(2)(z), 87(2)(zg), and Section 79.

The Netzwerk Platform

Netzwerk, a U.S.-based social media company, provides a wide range of online services in
Aryavarta, including social networking, entertainment, media sharing (pictures, reels,
videos), communication, live streaming, online gaming, chatting, and trading blockchain-
based virtual tokens called 'Flip coins’.
The Videos and Account ‘X’

During the 2021-22 COVID-19 pandemic, several videos were shared on the Netzwerk
platform that alleged a particular ethnic group to have been spreading the COVID-19 virus.
This incident, coupled with speeches at a rally in New Delhi, led to violent communal
clashes. Several transactions worth lakhs were made to one account, ‘X’, using ‘Flipcoins’ by
users of Netzwerk. ‘X’ account also shared some relevant information for the public and
many satirical tweets.

The Blocking Order by ‘MeitY’

The government of Aryavarta called for the videos to be removed from the platform
(Netzwerk) under Section 69A of the IT Act. The designated officer of the MeitY also issued
the blocking order for blocking URLs/Links of the videos and the account. Netzwerk
accepted the following charges but restrained from blocking the account of ‘X’. A review

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committee constituted under

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IT (Blocking rules) 2009 confirmed the blocking order and issued notice to Netzwerk to show
cause as to why it shall not be held liable and prosecuted for sharing inflammatory content on
its platform as most of the videos shared on Netzwork platform had been first shared in 2008
before the amendment of to the Information technology Act 2000 which guaranteed safe
harbour protection to intermediaries under section 79.

Money Laundering Investigation under PMLA, 2022

The Enforcement Directorate (ED) took proactive measures by initiating an investigation

under the Prevention of Money Laundering Act (PMLA, 2002) in response to legitimate
concerns regarding the Netzwerk platform's association with "Flip coins." The ED justified
its investigation because transactions in ‘Flipcoins’ were not recognised, making them
prohibited. The ED summoned Shri Dave Rajan, the head of Netzwerk in Aryavarta, in
connection with the same matter. During the PMLA investigation, a news article also
surfaced, alleging cryptocurrency payments from Netzwerk to Red Light districts.

Breach of Privacy in Investigation

The petitioners' challenge against the seizure of digital devices of Netzwerk staff and
employees by the Enforcement Directorate (ED) raises concerns about the potential violation
of their Fundamental right to privacy under Article 21 of the Constitution of Aryavarta.
According to the petitioners, agencies should limit their data collection to information
directly related to the investigation, and the seizure of digital devices may lead to the
gathering of excessive and unnecessary information.

Petitioners approached the Supreme Court under Article 32 of the Constitution.

Dave Rajan and Netzwerk have petitioned the Supreme Court of Aryavarta under Article 32,
claiming a "reasonable expectation of privacy" during investigations. They challenge the
ED's seizure of Netzwerk staff's digital devices, alleging a violation of Article 21. They also
contest Section 69A of the IT Act, 2000, and the 'Blocking Order' from MeitY, arguing these
actions exceed government authority, infringe Articles 14, 19, and 21, and eliminate 'safe
harbour' under Section 79 of the IT Act, 2000. Netzwerk further challenges the
constitutionality of IT Rules 2021, issued under Sections 87(1), 87(2)(z), and 87(2)(zg) of the
IT Act.

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ISSUES RAISED

I. WHETHER SECTION 69A OF THE IT ACT, 2000 READ WITH THE IT

(BLOCKING) RULES, 2009 AUTHORIZES THE ISSUANCE OF A DIRECTION TO
BLOCK USER ACCOUNTS IN THEIR ENTIRETY OR WHETHER SUCH POWER
IS URL/LINKS SPECIFIC?

II. WHETHER MEITY (DESIGNATED OFFICER) ‘BLOCKING ORDER’ IS VOID

AS NOT BEEN FOUNDED ON DISCERNIBLE REASONS RELATABLE TO
OBJECTIONABLE CONTENT AND NON-COMMUNICATION OF REASONS TO
THE USER (ORIGINATORS OF INFORMATION) IN TERMS OF RULE 8 OF THE
IT (BLOCKING), RULES, 2009?

III. WHETHER THE CENTRAL GOVERNMENT, UNDER SECTIONS 87 AND 79

OF THE IT ACT, HAS ULTRA VIRES LEGISLATED IT RULES, 2021 THAT
PRESCRIBE UNREASONABLE DUE DILIGENCE ON INTERMEDIARIES AND
ARE VIOLATIVE OF THE DOCTRINE OF PROPORTIONALITY ETC.?

IV. WHETHER THE SEIZURE OF DIGITAL DEVICES BY THE AGENCY (ED) IS

VIOLATIVE OF THE FUNDAMENTAL RIGHT TO PRIVACY OF THE
PETITIONERS?

V. WHETHER THE PETITIONERS CAN CLAIM TO HAVE A REASONABLE

EXPECTATION OF PRIVACY WITH RESPECT TO ANY INFORMATION
RELATING TO THE INVESTIGATION” COLLECTED BY THE AGENCY (ED)?

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SUMMARY OF ARGUMENTS

I. Whether section 69a of the IT Act, 2000 read with the it (blocking) rules, 2009
authorizes the issuance of a direction to block user accounts in their entirety or whether
such power is url/links specific?

It is most humbly submitted before this hon'ble Supreme Court that Section 69A of the IT
Act, 2000, read with the IT (Blocking) Rules, 2009, does not authorise the issuance of a
direction to block user accounts in their entirety. Such power is just URL/links specific
because Section 69A of the IT Act, 2000, read with the Blocking Rules 2009, does not
mandate the complete blocking of user accounts. In statutory interpretation, legal principles,
such as casus omissus and the presumption that the legislature intended what it said, should
be followed. Further, blocking an entire user account, which may contain numerous lawful
posts, to address a single or a few allegedly unlawful videos violates proportionality
standards. Additionally, blocking entire user accounts constitutes an unreasonable and
excessive restriction on freedom of speech and expression, as protected under Article 19 (1)
(a) of the Indian Constitution.

II. Whether MeitY (designated officer) ‘blocking order’ is void as not been founded on
discernible reasons relatable to objectionable content and non-communication of
reasons to the user (originators of information) in terms of rule 8 of the it(blocking),
rules, 2009?

It is humbly submitted by the counsel for the petitioners that the blocking order which was
issued by the designated officer was not as per the rules prescribed by the Information
Technology (Procedures and safeguards for blocking for access of information). Rule 9
prescribes that the blocking order should be issued prior to the formation of review
committee, but the blocking order was issued after the review committee was constituted. As
per Section 69 of the IT Act, notice is required to be issued to both the intermediary as well
as the originator whose content is to be taken down. It states that blocking order can be issued
only with respect to blocking of websites, URL’s and nowhere it states the blocking of
entirety of an account.

III. Whether the central government, under sections 87 and 79 of the IT Act, has ultra
vires legislated it rules, 2021 that prescribe unreasonable due diligence on
intermediaries and are violative of the doctrine of proportionality etc.?

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Section 79(2) read with Section 87(2)(zg) makes it clear that the power of the Central
Government is limited to prescribing guidelines related to the due diligence to be observed by
the intermediaries while discharging its duties under the IT Act. However, the 2021

guidelines

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have imposed additional requirements and widened the ambit of requirements to be fulfilled
by the intermediary. The rule making power envisaged under section 79(2) only provides the
power of the Government to provide guidelines for the observation of due diligence. Test of
proportionality was introduced to be taken in account while invading fundamental right of
privacy which guarantees that the objects and the means adopted to achieve them should have
a rational nexus however, Rule 4(2) of the said Rules does not meet this requirement.

IV.Whether the seizure of digital devices by the agency (ed) is violative of the
fundamental right to privacy of the petitioners?

It is humbly submitted that the seizure of digital devices by the agency (ED) is violative of
the Fundamental right to privacy of the Petitioners because against Right to Privacy of an
Individual as guaranteed under art. 21 of the Constitution. Provisions of PMLA do not allow
seizure of information not pertaining to the investigation. The search and seizure of personal
devices is illegal because the investigation is void ab initio, as it is based on factually wrong
premise.

V. Whether the petitioners can claim to have a reasonable expectation of privacy with
respect to any information relating to the investigation” collected by the agency (ed)?

It is humbly submitted before the Hon’ble SC of Aryavarta that the petitioner has rightly
claimed to have reasonable expectation of privacy with respect to any information relating to
the investigation collected by Enforcement Directorate because the petitioners’ reputation will
ordinarily be adversely affected causing prejudice to personal enjoyment of the right to
respect for private life such as the right to establish and develop relationships with other
human beings. Contentions include violation of art. 21 of Constitution of Aryavarta which
guarantees right to privacy and divulgence of findings of investigation is prohibited under sec
66 of PMLA.

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ARGUMENTS ADVANCED

I. WHETHER SECTION 69A OF THE IT ACT, 2000 READ WITH THE IT

(BLOCKING) RULES, 2009 AUTHORIZES THE ISSUANCE OF A DIRECTION TO
BLOCK USER ACCOUNTS IN THEIR ENTIRETY OR WHETHER SUCH POWER
IS URL/LINKS SPECIFIC?
It is humbly submitted before this Hon’ble Court that Section 69A of the IT Act, 2000 read
with the IT (Blocking) Rules, 2009 does not authorize the issuance of a direction to block
user accounts in their entirety, and such power is URL/links specific because [1.1] the
language employed in section 69A of the IT Act, 2000 read with Blocking Rules 2009, does
not mandate blocking of user account in its entirety. [1.2] Blocking of account in its entirety
goes against proportionality standards. [1.3] Blocking of account in its entirety violates
Article 19 (1) (a) and 19 (2) of the Indian constitution and is an unreasonable and excessive
restriction.

[1.1] It is submitted that the language employed in section 69A of the IT Act, 2000 read with
Blocking Rules 2009, does not mandate blocking of user account in its entirety.
The terms employed in section 69A are “any information” and “any computer resource” The
term Computer Resource under section 2 (1) k of IT Act 2000 means computer, computer
system, computer network, data, computer database or software, whereas the term
Information under section 2(1) v of IT Act 2000 means data, message, text, images, sound,
voice, codes, computer programmes, software and databases or micro film or computer
generated micro fiche; hence nowhere it can be assumed that accounts come under it too.
Further, Rule 8 (1) of the Blocking Rule mentions such information or PART THERE OF,
suggesting the legislature's intent was not indefinite blocking. Further as per Blocking Rules
2009, firstly nodal officer has to make a request regarding website blocking in a particular
format. In that format, section B deals with details of the URL, website, intermediary etc. but
nowhere it is mentioned that details of the account from which the information was shared
are needed.

It is to be noted that the primary function of a Court of law is jus dicere and not jus dare.1
The Hon’ble Supreme Court in. CST v. Parson Tools and Plants2 held that “if the legislature
wilfully omits to incorporate something of an analogous law in a subsequent statute, or even
if there is a casus omissus in a statute, the language of which is otherwise plain and
unambiguous, the Court is not competent to supply the omission by engrafting on it or
introducing in it, under the
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1
Prem Nath L. Ganesh v. Prem Nath L. Ram Nath, (2011) 4 SCC 266.
2
CST v. Parson Tools and Plants, (2011) 4 SCC 266; Para 16.

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guise of interpretation, by analogy or implication, something what it thinks to be a general

principle of justice and equity. To do so “would be entrenching upon the preserves of
legislature.” Further it was held in Prakash Nath Khanna v. CIT3 that “the language
employed in a statute is the determinative factor of the legislative intent. The legislature is
presumed to have made no mistake. The presumption is that it intended to say what it has
said. Assuming there is a defect or an omission in the words used by the legislature, the Court
cannot correct or make up the deficiency”.

Building onto the above-mentioned arguments, statutory interpretation should adhere to the
natural grammatical meaning, and the rule of literal interpretation must be employed. The
words generated, transmitted, received, stored, or hosted section 69A of the IT Act 2000 are
used in past tense. In Gurudevdatta VKSSS Maryadit v. State of Maharashtra4it was held that
“it is a cardinal principle of interpretation of statute that the words of a statute must be
understood in their natural, ordinary or popular sense and construed according to their
grammatical meaning” In Hiralal Rattanlal v. State of U.P5 the Hon’ble supreme court held
that “In construing a statutory provision, the first and the foremost rule of construction is the
literary construction. All that the court has to see at the very outset is what does that provision
say. If the provision is unambiguous and if from that provision the legislative intent is clear,
the court need not call into aid the other rules of construction of statutes. The other rules of
construction of statutes are called into aid only when the legislative intention is not clear.”

[1.2] Blocking of account in its entirety goes against proportionality standards.

The test of proportionality as set in K.S. Puttaswamy6 which held that that the extent of state
interference must be proportionate to the need for such interference. Further in In Department
of IT vs Star India7, the Delhi High Court had to determine whether to block individual
webpages or an entire website for hosting copyright infringing content. The Delhi High Court
came up with a list of factors to consider before blocking an entire website, such as (i) the
comparative importance of the rights at issue; (ii) the availability of less restrictive measures;
(iii) the costs of implementing the measures; (iv) the efficacy of the measures; and (v)
whether the dominant activity of the website was unlawful. Hence blocking an entire
account (and

3
Prakash Nath Khanna v. CIT, (2004) 9 SCC 686.
4
Gurudevdatta VKSSS Maryadit v. State of Maharashtra, [(2001) 4 SCC 534.
5
Hiralal Rattanlal v. State of U.P, (1973) 1 SCC 216; Para 22.
6
Justice KS Puttaswamy v. Union of India, (2017) 10 SCC 1.

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Department of Electronics and Information Technology v. Star India Pvt. Ltd., 2016 SCC Del 4160

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numerous lawful posts) to curtail a single or handful of allegedly unlawful videos is not the
least restrictive measure available to the government and, depending on the context, is
disproportionate.

[1.3] Blocking of account in its entirety violates Article 19 (1) and 19 (2) of the Indian
constitution and is an unreasonable and excessive restriction.

Article 19 (1) (a) of the Indian Constitution provides for freedom of speech and expression,
and Article 19 (2) empowers the state to impose reasonable restrictions on the exercise of
such right. In S. Khushboo v. Kanniammal8, the Hon’ble Supreme Court held that the
importance of freedom of speech and expression, though not absolute, was necessary as we
need to tolerate unpopular views. This right requires the free flow of opinions and ideas
essential to sustain the collective life of the citizenry. While an informed citizenry is a
precondition for meaningful governance, the culture of open dialogue is generally of great
societal importance. Further, in Chintaman Rao v. State of M.P9. it was held that the phrase
‘reasonable restriction’ connotes that the limitation imposed on a person in the enjoyment of
the right should not be arbitrary or of an excessive nature beyond what is required in the
interests of the public. Blocking of entire account in response to the posting of few unlawful
posts would be a restriction of an excessive nature. Most importantly, blocking a user account
prevents the user from posting in future, which undermines the user’s freedom of speech and
expression. In Brij Bhushan and Another vs. The State of Delhi10 the Supreme Court held that
pre-censorship on freedom of speech is unconstitutional.

II. THE BLOCKING ORDER WHICH WAS PASSED BY THE MeitY

(DESIGNATED OFFICER) IS VOID AS IT HAS NOT BEEN FOUNDED ON THE
BASIS OF DISCERNIBLE REASONS RELATED TO OBJECTIONABLE CONTENT
AND ON THE BASIS OF NON-COMMUNICATION OF REASON TO THE USER IN
TERMS OF RULE 8 OF THE IT (BLOCKING), RULES, 2009?
It is humbly submitted before this Hon’ble Court that the blocking order is in violation of
Section 69 of the IT Act and IT (Procedure and Safeguards for blocking for access of
Information by Public) Rules, 2009 because the [2.1] The Designated Officers blocking order

8
S. Khushboo v. Kanniammal, (2010) 5 SCC 600.
9
Chintaman Rao v. State of M.P, (1950) SCC 695.
10
Brij Bhushan And Another vs. The State Of Delhi, (1950) SCC 449.

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were found to be void for lack of discernible reasons related to objectionable content. [2.2]
The blocking order violates the user’s fundamental right [2.3] The Blocking Order passed by
the Designated Officer was not communicated to the User.

[2.1] The Designated Officers blocking order found to be void for lack of discernible reason
related to Objectionable content.

In the case of State of UP v. Raj Narain11, Justice Mathew noted that “in a government like
ours, where all the agents of the public must be responsible for their conduct, there can be but
few secrets. The people of this country have a right to know every public act, everything that
is done in a public way, by their public functionaries. Rights of readers and right to

and viewers to access information constitute part of the right to freedom of expression under
article 19(1)(a)”. This rule has been challenged multiple times by the concerned website
owners and user accounts. In the case of Romesh Thapper v. State of Madras12, the supreme
court has
occasion to interpret the meaning of the words “Security of State”. The court said that there
different grades of offences against “public order”. Every public disorder cannot amount to
be regarded as threatening the security of the state. The term “Security of the State” refers
to serious and aggravated forms of public disorder, e.g., rebellion, waging war against the
insurrection and not ordinary breaches of public order and public safety, e.g., riots, unlawful

assembly, affray.” Rule 16 of IT Rules 2021 states “strict confidentiality shall be maintained
regarding all the requests and complaints received and actions taken thereof”. 13 In the current
case, the blocking order was issued by the government of Aryavarta, citing the violence, calls
for the videos to be removed from Netzwerk Platform under section 69A of the Information
Technology Act, 2000.14 The Designated Officer of the Ministry of Electronics & IT of
Aryavarta (MeitY) issued ‘Blocking Order' to Netzwerk for blocking of URLs/links of
impugned videos on a continuous basis and the account. But neither the originator nor the

intermediary knows the reason for such blocking. The intermediary through the notice was
conveyed of the actions which was taken by the government to block such URL links and the
user account. However, the court has noted while upholding the constitutionality of the
blocking procedure under section 69-A that the reasons must be recorded in writing in such

11
State of Uttar Pradesh v. Raj Narain (1975) 4 SCC 428
12
Romesh Thappar v. State of Madras (1950) AIR 124
13
Information Technology ( Procedure and safeguards for blocking for access of information ), Rule 16, 781,
MEMORIAL for ARGUMENTS
2
 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,
G.S.R, 2009
14
¶ 7, MOOT PROPOSITION

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 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,

blocking order so that they may be assailed in a writ petition under article 226.15 There can be
two most important take aways from the above. First one that the fundamental right which is
vested under the article 19(1)(a) does not merely include the right of expression but also the
right of access to information. Secondly, by the doctrine of necessity it followed that for the
public to challenge any blocking order under article 226, the blocking order must be made

public.

In the case of Shreya Singhal vs. Union of India 16, the supreme court strikes down Section
66(a) as it was held violative of Article 19(1)(a) and not saved under Article 19(2). It is
important to refer the paragraph 20 of the judgement where the court says that: “It is clear,
therefore, that the petitioners are correct in saying that the public’s right to know is directly
affected by Section 66A. Information of all kinds is roped in – such information may have
scientific, literary or artistic value, it may refer to current events, it may be obscene or
That such information may cause annoyance or inconvenience to some is how the offence is
made out. The right of the people to know – the marketplace of ideas – which the internet
provides to persons of all kinds is what attracts Section 66A. This means that Article 19(1)(a)
not only guarantees freedom of speech but also the rights to the listeners to access
Constitutions such as South African and German guarantees expressly include the right of

listeners as a freedom of expression. 17

Section 69A empowers the government to block information from public access under
specific conditions of: (i) interest of sovereignty and integrity of India, (ii) defence of India,
(iii) security of the State, (iv) friendly relations with foreign States or (v) public order or (vi)
for preventing incitement to the commission of any cognizable offense relating to above, but
nowhere it is mentioned that the government can ask for the blocking of the entire account.18

[2.2] The Blocking Order violates the user’s fundamental right.

In the case of Maneka Gandhi v. Union of India,19 it was stated that “Democracy is based
essentially on free debate and open discussion, for that is the only corrective of Government

action in a democratic set up.”20 If we talk about freedom to express it also entails the
concept of online media, online entertainment etc. The right to freedom of speech and

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 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,
expression is the

15
Shreya Singhal v. Union of India, (2015) AIR 2015 SC 1523, para 109.
16
Id. at 20.
17
Germany Const. Art.15; RSA Const. Art. 16.
18
Information Technology Act, 2000, § 69(a), No. 21 of 2000, 2009.
19
Maneka Gandhi v. Union of India 1978 AIR 597.
20
Id. at 29.

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 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,

first condition of liberty for an individual, and is predominant for any democracy, and thus
equal importance needs to be given to the online provision of this right. In India there is a lot
of censorship over the content, which is being posted, any news or information as well under
the veil of reasonable restriction. There have been numerous incidents when on the online
front this right has been violated several times being termed as provocative, degrading, and
offensive.

In the Bal Thackeray case,21 the court held that the two girls who was held for hurting the
religious sentiment and one of the girls who was arrested only for mere “liking” of the said
video should be released since they did not hurt the religious sentiment of people but only the

sentiments of a particular group of people. Section 69-A of the Information Technology.,

2000- “Power to issue directions for blocking for public access of any information through
any computer resource.” Recently the government to take counter measures against the ISIS
propaganda has blocked several websites including the websites which were of a different
paradigm. The blocking provisions have several loopholes which aggravates the chance of
exploitation.

In Jadhav University Case,22 Calcutta High Court directed the west Bengal Government to
pay
Rs 50,000 to a Jadavpur University professor and his neighbour who were arrested and
three years ago for spreading a cartoon that ridiculed chief minister Mamata Banerjee. We
seen several instances where the websites get blocked, or people gets arrested for something
which is not digestible to the political parties. In 2011 the Centre for Internet Society in an
answered that government of India has banned eleven websites with the help of the 69 B
was incorporated of recent amendment. Since IT Rules, 2009 the Review committee has not
passed a single order revoking the content takedown order.23

[2.3] The User was not informed of the blocking order issued by the designated officer.

In the case of Tanul Thakur vs Union of India24, the court directed the “committee constituted
by the MeitY under the blocking rules, 2009 to give a post-decisional hearing to the counsel
for the petitioner and further asked to deliver the copy of original blocking order after redacting

21
The Centre for Internet and Society, https://cis-india.org/internet-governance/blog/bal-thackeray-comment-
arbitrary-arrest-295A-66A, (last visited, September 15, 2023.)
22
The Times of India, https://timesofindia.indiatimes.com/india/hc-upholds-rs-50k-relief-to-ju-professor-over-
toon-row/articleshow/46523022.cms, (last visited, September 14, 2023)
23
Saurav Das, “Indian Govt Censored thousands of twitter posts, IT Body reviewed none”, The Wire
(September 15, 2023)
24
Tanul Thakur v. Union of India, 2019 W.P.(C) 13037/2019 & CM No.53165/2019

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 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,

the portion pertaining to the third parties.” Further, in the case of Shreya Singhal v. Union of
India25, it was held that an originator of the content must be provided with a hearing before
their content is blocked and before the committee is constituted. These hearings are deemed
be important because if one does not know why their speech is being restricted by the
government, it is impossible for them to challenge the blocking and that is a serious violation
of the principles of natural justice. In the case of Maneka Gandhi v. Union of India26, Principle
of natural justice was established which provided for the doctrine of Audi Alteram Partem
which entitles an entity/individual with the opportunity to be heard before the passing of any
order. This describes us about two elements: the right to be provided a notice of any

claims/charges raised against them; and the right to a pre-decisional hearing. In the case of
Harbans Lal v Commissioner27, National Co-operative Bank v. Ajay Kumar28 and Fateh Singh
v State of Rajasthan29, it was established that every person should get a fair chance of being
heard or fair hearing. This condition is accompanied by the authority providing written or oral
hearing, which is discretion of the authority, unless the statute under which action is taken by
the authority provides otherwise. It is the duty of authority to ensure that affected parties
should get a chance of oral or personal hearing. Rule 8 of Information Technology
(Procedure and
safeguards for blocking for access of information by public) Rules, 2009 states “On receipt of
request under rule 6, the Designated Officer shall make all reasonable efforts to identify the
person or intermediary who has hosted the information or part thereof as well as the computer
resource on which such information or part thereof is being hosted and where he is able to
identify such person or intermediary and the computer resource hosting the information or
thereof which have been requested to be blocked for public access, he shall issue a notice”30
the rule uses the phrase “All Reasonable efforts should be made” but in the case of Netzwerk
it was mentioned that only some efforts were made to identify the user and after that they
not find updated communication details of the X account.31

Rule 17 of (Intermediary Guidelines and Digital Media Ethics Code) Rules, states “The
Review Committee shall meet at least once in every two months and record its findings
the directions of blocking of content or information issued under these rules are in accordance

25
Shreya Singhal v. Union of India (2015) AIR 2015 SC 1523, para 110.
26
Maneka Gandhi vs. Union of India, 1978 AIR 597, para 5.
27
Harbans Lal v. Collector or Central Excise AIR 1993 SC 2487
28
National Central Co-operative vs. Ajay Kumar and Others, AIR 1994 SC 39
29
Fateh Singh vs. State of Rajasthan, AIR 1995 Raj 15
30
Information Technology (Procedure and Safeguard for blocking for access of information), Rule 8, 781
G.S.R., 2009.

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31 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,
¶ 2, MOOT CLARIFICATION

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 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,

with the provisions of sub-section (1) of section 69A of the Act and if it is of the opinion that
the directions are not in accordance with the said provisions, it may set aside the directions
issue order for unblocking of such content or information generated, transmitted, received,

stored or hosted in a computer resource.”32 but there has been questions regarding the
independence of the review committee. In the case of Quint Digital Media Ltd. Vs. Union of
India,33 it was established that the disproportionate power granted to the members of the
executive in the absence of any guidelines or principles, which are essential in the exercise of
such power, raises the question of independence of the review committee. The only
circumstances where the Netzwerk can't get a chance for hearing is when the blocking order
has been passed in the case of emergency. Under Rule 16(2) it is mentioned that “In case of
emergency nature, the Secretary, Ministry of Information and Broadcasting may, if he is
satisfied that it is necessary or expedient and justifiable for blocking for public access of any
information or part thereof through any computer resource and after recording reasons in
writing, as an interim measure issue such directions as he may consider necessary to such
identified or identifiable persons, publishers or intermediary in control of such computer
resource hosting such information or part thereof without giving him an opportunity of
hearing.”34 In a writ petition filed at the high court of Delhi by the news organisation “quint”
stated that rule 16 is violative of article 19(1)(a) and does not fall under the article 19(2).
High Court noted that the rules had a chilling effect on the right to freedom of speech and
expression. No safeguards had been provided on the extent of discretion granted to the
Committee in the text of the Rules, which raised the question of the arbitrary exercise of
powers.35

III. WHETHER THE CENTRAL GOVERNMENT, UNDER SECTIONS 87 AND 79

OF THE IT ACT, HAS ULTRA VIRES LEGISLATED IT RULES, 2021 THAT
PRESCRIBE UNREASONABLE DUE DILIGENCE ON INTERMEDIARIES AND
ARE VIOLATIVE OF THE DOCTRINE OF PROPORTIONALITY ETC?
It is humbly submitted before the court, that the Central Government has ultra vires legislated
IT Rules, 2021 under the sections 87 and 79 of the IT Act under the grounds that [3.1]
Section

32
Intermediary Guidelines and Digital Media Ethics Code, Rule 17, 139 G.S.R., 2021.
33 Quint Digital Media Limited & Anr. Vs. Union of India, 2021 W.P.(C) 3659/2021 & CM APPL. 11097/2021
34
IT (Intermediary Guidelines and Digital Media Ethics Code), 139 G.S.R. 2021
35Quint Digital Media Limited & Anr. Vs. Union of India, 2021 W.P.(C) 3659/2021 & CM APPL. 11097/2021

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 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,
Para 26.

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 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,

87 and Section 79 of the IT Act does not allow the government to enact rules putting
unreasonable due diligence upon intermediary [3.2] IT Rules, 2021 should be declared as
ultra vires as they have not followed the prescribed procedure which is to be followed as per
section 87 and Section 79 of the IT Act.
[3.1] Section 87 and section 79 of the IT Act do not allow the government to enact rules,
putting unreasonable due diligence upon intermediaries.
Under Section 79(1) of the IT Act states that the Intermediary will not be held liable for any
third-party information if the intermediary complies with the conditions laid out in Section
79(2) of the IT Act.36 One of these conditions is that the Intermediary observe “due diligence
while discharging his duties under this Act and observe such other guidelines as the Central
Government may prescribe in this behalf.” Further, Section 87(2) (zg) empowers the Central
Government to prescribe “guidelines to be observed by the intermediaries under sub-section
(2) of section 79.”37 In the case of Netzwerk, the central government citing the violence asked
the videos to be removed from Netzwerk platform under section 69 A of the platform and to
block the account of “X” in its entirety because the “X” Account had been actively sharing
and had the maximum number of shares of the videos which caused controversy. 38 Under
Section 69A of the IT Act 2000 empowers Government to block information from public
access under specific conditions of : (i) interest of sovereignty and integrity of India, (ii)
defence of India,
(iii) security of the State, (iv) friendly relations with foreign States or (v) public order or (vi)
for preventing incitement to the commission of any cognizable offence relating to above. 39 In
the case of State of Karnataka vs. Ganesh Kamath, 40 the supreme court held that it is a well
settled principle of interpretation of statutes that conferment of rulemaking power by an Act
does not enable the rule making authority to make a rule which travels beyond the scope of
the enabling Act, or which is inconsistent therewith or repugnant thereto.33 A combined
reading of Section 79(2) with Section 87(2) (zg) makes it clear that the power of central
government is limited to prescribing guidelines related to due diligence to be observed by the
intermediaries while discharging its duties under the IT Act. In the case of Dwaraknath vs.
Municipal Corp41, the supreme court under section 23(1) of the prevention of food
adulteration act, 1954, authorized the central government to make rules for restricting the
packing and labelling of any

36
Information Technology Act, 2000, § 79 (1), No.21, Act of Parliament, 2000.
37
Information Technology Act, 2000, § 87(2) (zg), No.21, Act of Parliament, 2000.
38
¶7, MOOT PROPOSITION.
39
Information Technology Act, 2000, § 69 (A), No.21, Act of Parliament, 2000.
MEMORIAL for ARGUMENTS
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40 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,
State of Karnataka vs. Ganesh Kamath, 1983 2 SCC 402
41
Dwaraknath vs. Municipal Corp (1971) SCC (2) 314

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 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,

article of food, with a view to preventing the public from being deceived or misled as to
quantity or quality of the article.
Rule 32 framed there under by the Government if there would be specified on every label
name and business address of the manufacturer, as also batch number or code number in
Hindi or English. The appellant, the manufacturers of Mohan Ghee sold in tins labelled
Mohan Ghee Laboratories, Delhi challenged Rule 32 as beyond the power of the Government
conferred under Section 23(1) of the Act, 1954. They contended that the requirement of
address under Rule 32 was more than the power conferred, which was restricted to “quantity
and quality” only. Accepting the contention of the appellants, the Hon'ble Supreme Court
held Rule 32 ultra vires the as it was beyond the power conferred on the Government the
rules making power envisaged under Section 79(2) only provides the power of the
Government to provide guidelines for the observation of due diligence. It has not enabled the
rule-making authority to provide additional guidelines. The Government is trying to bring
back Section 66A of the Act through backdoor entry by enacting the ultra-virus and
unconstitutional Rules. The Hon'ble Supreme Court in Shreya Singhal v. Union of India had
declared Section 66A of the IT Act42, which provided for the imprisonment of a person for
posting objectionable comments on the Internet and social media, unconstitutional. The said
unconstitutional section was being used arbitrarily by the Government for their political
motives. The Government under the garb of regulating social media intermediaries and
brining certain checks and balances, wants to indirectly curb, restrict and prevent the
communication between certain person for their political motives and thus is violating the
fundamental right of privacy of the all the citizens. Under section 79 of the IT Act43, it
states that intermediary is immune from hosting any third-party information, data,
information, or communication, if they observe due diligence while discharging their duties
under the act. And the due diligence which is imposed on intermediaries includes a wide
range of obligations on intermediaries which includes identification of first originator,
surveillance, pro-actively identifying certain information, deploying technology-based
measures, including automated tools or other mechanisms to pro- actively identify certain
information's, and the non-compliance of the said would lead to criminal prosecution.44 In the
case of Shreya Singhal vs. Union of India45 it was held that a law restricting free speech could
not pass muster merely by virtue of being in the ‘public interest’,

42
Shreya Singhal vs. Union of India (2015) AIR 2015 SC 1523, para 44
43
Information Technology Act, 2000, § 79, No.21, Act of Parliament, 2000.
44
IT (Intermediary Guidelines and Digital Media Ethics Code), Rules 4(2), 139 G.S.R., 2009.

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45 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,
Shreya Singhal vs. Union of India (2015) AIR 2015 SC 1523, para 78.

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 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,

but instead, such restrictions had to be covered by one of the eight subject matters listed in
Article 19(2) of the Constitution. On this ground, Section 66A of the IT Act — which
criminalised the intentional publication (by anyone) of information that caused annoyance,
inconvenience, or insult — was struck down as unconstitutional. Thus, it is unarguable that
the intermediaries be required to redress every annoyance, inconvenience, or insult that their
reporting may cause, and that the non-compliance of the said provisions would lead criminal
prosecution.
[3.1.1] Mandatory Assistance to State Agencies is unreasonable and arbitrary.
Intermediaries are required to aid requested by “any government agency”, within 72 hours
of such request being made. This request may be for the security of the State; cyber security;
the purpose of investigation, detection, prosecution, or prevention of offence, or for
protective or cyber security and matters connected with or incidental thereto.46 Investigation
and prosecution of cyber offences require the investigating body to have sophisticated
technical capabilities. Consequently, the IT Act has specific requirement as to the rank of the
officer who may investigate offences under the IT Act and the authorities who may issue
orders to block monitor or collect data. The IT Rules significantly water down these
requirements and oblige intermediaries to assist any government agency. This would lead to
the breach of privacy of the users, who have complied with the Netzwerk’s terms and
conditions.
[3.2] IT Rules, 2021 should be declared as ultra vires as are in contravention of the test of
proportionality.
As per rule 3(1)(b)(x) requiring intermediaries to warn users against posting content that is
“patently false and untrue…with the intent to… cause any injury to any person” 47 is void
because the use of such vague and undefined terms makes it impossible to foresee the
application of the Intermediaries Rules 2021. The cumulative impact of rules 3(1)(b) and 3(1)
(c) and the threat of termination of access or usage rights induces a chilling effect on the users
and causes them to alter the content of their posts online. 48 These affects the right of the users
or causes them to alter the content of their posts online. This effects the right of the users and
the public to know and to receive information, which is guaranteed under article 19(1)(a). It
also established the test of reasonableness under article 19(2) which is the test of
proportionality. Proportionality consists mainly of four elements, i.e. A measure restricting a
right must have a legitimate goal, it must be suitable means of furthering his goal. There must

46
IT (Intermediary Guidelines and Digital Media Ethics Code), Rules 3(j), 139 G.S.R., 2009.
47
IT (Intermediary Guidelines and Digital Media Ethics Code), Rules 3(1)(b)(x), 139 G.S.R., 2009

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48 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,
IT (Intermediary Guidelines and Digital Media Ethics Code), Rules 3(1)(b), 139 G.S.R., 2009

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 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,

not be any less restrictive but equally effective alternative. Thus, the impugned rules, fail
both the necessity and stages of proportionality test.49
Rule 4(1) will adversely impact the fundamental right of the Indian citizen to receive access
to information by increasing the cost of compliance for foreign intermediaries who may
decide to withdraw their services to the Indian Market. It has long been established that the
right under article 19(1)(a) includes the right to seek and receive information. In the case of
LIC v. Manubhai D. Shah.50 The court held freedom of expression not only includes to
circulate one’s views but also the right to defend them. Thus, laws that inappropriately limit
access to information fall foul of Article 19(1)(a) and are not saved by article 19(2).
As per Rule 3 sub rule (j) of the IT Rules, the intermediary is required to as soon as possible,
but not later than seventy-two hours of the receipt of an order, provide information under its
control or possession, or assistance to the Government agency which is lawfully authorized
for investigative or protective or cyber security activities, for the purposes of verification of
identity, or for the prevention, detection, investigation, or prosecution, of offences under any
law for the time being in force, or for cyber security incidents. 51 Further the rule 4(2) of IT
Rules, requires the first originator of the message to be disclosed to the government by the
intermediary.52 In the current case, it has been stated that a wide range of due diligence has
been imposed on intermediaries like identifying the first originator, and proactively
identifying several information, etc.53 In the case of K.S. Puttaswamy v. Union of India 54, has
stated that the right of privacy is protected as an intrinsic part of the right to life and personal
liberty under article 21 and an integral part to part III of the constitution. In this case
informational privacy was held to be vital aspect of the fundamental right to privacy. Test of
proportionality was introduced to be taken in account while invading fundamental right of
privacy which guarantees that the objects and means adopted to achieve them should have a
rational nexus, however rule 4(2) doesn't meet this requirement.

49
K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1, para 71.
50
LIC V. Manubhai D. Shah, 1993 AIR 171.
51
IT (Intermediary Guidelines and Digital Media Ethics Code), Rules 3(j), 139 G.S.R., 2009.
52
IT (Intermediary Guidelines and Digital Media Ethics Code), Rules 4 (2), 139 G.S.R., 2009.
53
¶ 16, MOOT PROPOSITION.
54
K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1, para 16.

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 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,

IV. WHETHER THE SEIZURE OF DIGITAL DEVICES BY THE AGENCY (ED) IS

VIOLATIVE OF THE FUNDAMENTAL RIGHT TO PRIVACY OF THE
PETITIONERS?
It is humbly submitted before the Hon’ble Supreme Court of Aryavarta that the seizure of
digital devices by the agency (ED) is violative of the Fundamental right to privacy of the
Petitioners because [1] Against Right to Privacy of an Individual as guaranteed under art. 21
of constitution55 [2] Provisions of PMLA do not allow seizure of information not pertaining to
the investigation. [3] The search and seizure of personal devices is illegal because the
investigation is void ab initio, as it is based on factually wrong premise.

[4.1] Against Right to Privacy of an Individual as guaranteed under art. 21 of the Constitution.

It is humbly submitted that in Riley v. California56, Chief Justice Roberts delivered the
opinion of the Court and commented on the impact on privacy in an era of cell phones:”
Before cell phones, a search of a person was limited by physical realities and tended as a
general matter to constitute only a narrow intrusion on privacy...the possible intrusion on
privacy is not physically limited in the same way when it comes to cell phones...Data on a cell
phone can also reveal where a person has been. Historic location information is a standard
feature on many smart phones and can reconstruct someone's specific movements down to the
minute, not only around town but also within a particular building... Mobile application
software on a cell phone, or "apps," offer a range of tools for managing detailed information
about all aspects of a person's life. Modern cell phones are not just another technological
convenience. With all they contain and all they may reveal, they hold for many “the privacies
of life”. The fact that technology now allows an individual to carry such information in his
hand does not make the information any less worthy of the protection 57” under right to
privacy. The seizure of devices of Netzwerk employees, which they use for personal purposes
as well, is violative of the spirit of privacy as their autonomy vis-à-vis the personal
information contained in those devices is impeded.

The above-mentioned case was also referred to in the landmark judgement of KS Puttaswamy
v Union of India58 which established that Right to Privacy is embodied under art. 21 of
Constitution59 and includes Information privacy as a tenet: “Informational privacy which does

55
INDIA CONST. art. 21.
56
Riley v. California, 573 U.S. 373 (2014).
57
Id. at 32.
58
Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors, MANU/SC/1044/2017.
59
INDIA CONST. art. 21.

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 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,

not deal with a person's body but deals with a person's mind, and therefore recognizes that
an individual may have control over the dissemination of material that is personal to him.
Unauthorised use of such information may, therefore, lead to infringement of this right60.”

The above view of Hon’ble Supreme Court marks that a person has absolute authority over
personal information and unwarranted use of the same breaches the bar of privacy. The
Enforcement Directorate, by seizing devices of Netzwerk employees, has overstepped its
authority as these devices also contained personal information.

The Enforcement directorate also violated the Test of Proportionality61 laid in KS

Puttaswamy v Union of India62. Firstly, there is no legitimate state concern 63 in the present
case mandating infringement on right to privacy. Further, the seizure of personal devices is
not sanctioned by law64, which is one of the tenets of test of proportionality. There are no
procedural guarantees65 against abuse with respect to seizure of personal digital devices. The
arbitrariness of the seizure is against the spirit of judgement in Maneka Gandhi66 which
propounds that the life and liberty of a person cannot be restricted by any procedure that is
established by law but only by a procedure that is just, fair, and reasonable 67. Confiscating the
devices used for personal use is unreasonable, and not held on legitimate grounds, thus
inconsistent with the test of proportionality, and is unconstitutional.

[4.2] Provisions of PMLA do not allow seizure of information not pertaining to the
investigation.

It is submitted that Sec 17 of PMLA authorises search and seizure of records relating to
money- laundering under 17(1)(iii)68. The provision specifically mentions that the record
thereby seized must be related to money laundering. Seizure of devices used for
personal purposes is,

60
Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors, MANU/SC/1044/2017; Para 364.
61
Ibid. at 490.
62
Ibid.
63
Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors, MANU/SC/1044/2017; Para 489.
64
Sanchita Kadam, Seizing mobiles, laptops during arrests: A lawless act?, Citizens for Justice and Peace (17,
Nov 2022), https://cjp.org.in/seizing-mobiles-laptops-during-arrests-a-lawless-act/.
65
Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors, MANU/SC/1044/2017; Para 287.
66
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
67
Editor, Constitutionalizing principles of natural justice: the impact of Maneka Gandhi Case, TheLawmatics,
(Apr7,2023),https://thelawmatics.in/constitutionalizing-principles-of-natural-justice-the-impact-of-maneka-
gandhicase/#:~:text=In%20Maneka%20Gandhi%20(supra)%2C,Passport%20Officer%20impounding%20her%
20passport.

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68 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,
Prevention of Money Laundering Act, 2002, § 17(1)(iii), No. 15, Acts of Parliament,2003(India).

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 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,

therefore, explicitly prohibited under sec 17 69 when literal interpretation is done, thereby
promoting certainty within the statute.

Sec 17(1)70 also puts a prerequisite of ‘reason to believe’ for search and seizure of property or
record related to money laundering. But in the present case, the reason stated by Enforcement
Directorate is factually wrong which makes the entire investigation prejudiced and blatantly
arbitrary and hence illegal and unconstitutional. This contention is dealt with in the next
argument.

[4.3] The search and seizure of personal devices is illegal because the investigation is void ab
initio, as it is based on factually wrong premise.

It is most humbly submitted the search and seizure of personal devices of Netzwerk
Employees is unconstitutional because the reason provided for initiating the investigation
under PMLA71 is based on a factually wrong premise. The ED justifies its investigation on
grounds that as transactions in ‘Flipcoins’ were not recognized, they were prohibited 72. But
this is factually wrong. In 2020, Supreme Court in the case Internet and Mobile Association
of India v Reserve Bank of India73 allowed banks to handle cryptocurrency transactions from
exchanges and traders, overturning the ban by Reserve Bank of India. The central
government has also regulated the blockchain based cryptocurrencies by taxing income from
transfer of virtual assets by 30%74. These provisions have essentially recognised and validated
cryptocurrency transactions.

Hence, the initiation of the investigation under PMLA itself is illegal and void ab initio.
Therefore, any investigation conducted, thereby infringing Fundamental rights of persons, is
not authorised it being in violation of principle of “Due process of law.”

69
Ibid.
70
Id.
71
Prevention of Money Laundering Act, 2002, No. 15, Acts of Parliament,2003(India).
72
Moot Proposition, ¶10.
73
Internet and Mobile Association of India vs. Reserve Bank of India, MANU/SC/0264/2020.
74
UNION BUDGET 2022-23 PRESS INFORMATION BUREAU GOVERNMENT OF INDIA ***
SUMMARY OF UNION BUDGET 2022-23

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V. WHETHER THE PETITIONERS HAVE REASONABLE EXPEACTATION OF

PRIVACY WITH RESPECT TO ANY INFORMATION RELATING TO THE
INVESTIGATION COLLECTED BY ENFORCEMENT DIRECTORATE?
It is humbly submitted before the Hon’ble SC of Aryavarta that the petitioner has rightly
claimed to have reasonable expectation of privacy with respect to any information relating to
the investigation collected by Enforcement Directorate because [1] the petitioners’ reputation
will ordinarily be adversely affected causing prejudice to personal enjoyment of the right to
respect for private life such as the right to establish and develop relationships with other
human beings75, [2] The divulgence of confidential information would lead to media trial and
impact adversely the right of petitioner to have a fair trial, [3] Violation of art. 21 76 of
Constitution of Aryavarta which guarantees right to privacy and [4] divulgence of findings of
investigation is prohibited under sec 66 of PMLA77.

[5.1] The petitioners’ reputation will ordinarily be adversely affected by disclosure of

information relating to the investigation.

It is humbly submitted that the petitioners’ reputation is harmed by disclosure of information

relating to the investigation prior to the framing of charges. In Bloomberg LP v ZXC78, the
Supreme Court of UK held that prior to framing of charges, an individual has a reasonable
expectation of privacy in information relating to investigation. Otherwise, it would lead to
blot on the reputation of the concerned individual, thereby depriving him the right to establish
and develop relationships with other human beings79.

One of the petitioners’ being a multinational company, and other being its high-profile
employee, the business relationships with other firms and the personal capacity of Dave
Rajan, the head of Netzwerk in Aryavarta, in maintaining such relationships, would be
hampered by disclosure of information relating to investigation by ED before the charges are
framed. A person’s inner circle, their business or professional associates and the general
public, will react negatively to the publication of information that that person is under
criminal investigation80 or any information regarding the findings, thereby leading to
feelings of incredulity and

75
Bhumika Indulia, Bloomberg Privacy Case | Whether a person under criminal investigation can have a
reasonable expectation of privacy? UKSC explains, SCC Blog, (March 15, 2022),
https://www.scconline.com/blog/post/2022/03/15/bloomberg-privacy-case/
76
INDIA CONST. art. 21.
77
Prevention of Money Laundering Act, 2002, § 66, No. 15, Acts of Parliament,2003(India).
78
Bloomberg LP v. ZXC, [2022] UKSC 5.
79
Ibid. at 71.

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Ibid. at 108.

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suspicion for the firm or the person rendering them hesitant in conducting their business with
such person or firm.

Hon’ble Delhi high court dismissed the writ petition filed by Google 81 against dissemination
of information relating to investigation by Competition Commission of India (CCI), only
after, the CCI undertook to recall the Impugned Order and accept all confidentiality claims
made by Google before the DG. In view of this and considering the similar situation in the
case of Google v. CCI82, it is imperative upon the Enforcement Directorate to grant the
reasonable expectation of privacy in the information relating to investigation.

[5.2] The divulgence of confidential information would lead to media trial and impact
adversely the right of petitioner to have a fair trial.

It is most humbly submitted that trial by electronic media, press or by way of public agitation
is anti-thesis to the rule of law and can lead to a miscarriage of justice 83. In the present case,
Netzwerk is a reputational social media platform, which by the virtue of being so well known
is most susceptible to media trials. The authority for famous or eminent persons mostly being
on the receiving end of media trials could be found in the case of Shilpa Shetty v Clapping
Hands Pvt Ltd and Ors84 where she was targeted by media houses in relations with criminal
investigation of her husband, Raj Kundra which didn’t even involve her. When such instances
are available, and in common knowledge, allowing information related to investigation to be
shared with media houses or any other third party would be adverse for petitioners.

In Bloomberg LP v ZXC85, examining the report entitled Police Bail dated 20 March 2015 of
the House of Commons Home Affairs Committee86 that “The police should not release
information on a suspect to the media in an informal, unattributed way. If the police do
release the name of a suspect it has to be limited to exceptional cases, such as for reasons of
public safety87.” Similarly, it was held in PNM v Times Newspapers Ltd88 “that as a matter of
public policy the identity of those arrested or suspected of a crime should not be released to
the public save in exceptional and clearly defined circumstances”. But in the present case,
there is no

81
Vaish Associates Advocates, https://www.vaishlaw.com/google-versus-cci-whom-to-blame-for-the-media-
leak/, (last visited September 15, 2023).
82
Ibid.
83
State of Maharashtra Vs. Rajendra Jawnmal Gandhi, [1997] INSC 724.
84
Shilpa Shetty v Clapping Hands Pvt Ltd and Ors, MANU/MH/3240/2021.
85
Bloomberg LP v. ZXC, [2022] UKSC 5; Para 83.
86
¶7 Police bail (Seventeenth Report of Session 2014– 15), Ordered by the House of Commons.
87
Ibid. at 14.

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88 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,
PNM v Times Newspapers Ltd [2014] EWCA Civ 1132; Para 37.

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exceptional situation compelling the ED to disseminate information relating to the

investigation under PMLA.

In ERY v Associated Newspapers Ltd 89 the claimant was a businessman who had been
interviewed by police under caution in respect of his suspected involvement in a financial
crime. The defendant publisher conceded that the fact that the businessman had been
interviewed under caution would engage his art. 8 right and that, on the facts, the defendant's
art. 10 right was not capable of prevailing over that right. On the basis of that concession,
Nicol J held, that the businessman had a reasonable expectation of privacy in the information
that he was being investigated by the police90.

In Richard v British Broadcasting Corpn91 Mann J held:

"It seems to me that on the authorities, and as a matter of general principle, a suspect has a
reasonable expectation of privacy in relation to a police investigation, and I so rule. As a
general rule it is understandable and justifiable (and reasonable) that a suspect would not
wish others to know of the investigation because of the stigma attached.... If the presumption
of innocence were perfectly understood and given effect to, and if the general public were
universally capable of adopting a completely open and broad-minded view of the fact of an
investigation so that there was no risk of taint either during the investigation or afterwards
(assuming no charge) then the position might be different. But neither of those things is true.
The fact of an investigation, as a general rule, will of itself carry some stigma, no matter how
often one says it should not."

In Jollyamma Joseph v State of Kerala92, the Kerala High court opined that “If the confession
statement and other materials collected during investigation are discussed in media and
divulged to the general public, the situation will be perilous.”

Leak of information related to the investigation would lead to media trial of the accused.
Such trials create a bias in the minds of persons responsible for delivering justice thus,
depriving them of right to fair trial and breach the principles of natural justice. The Law
Commission in its 200th report said:

89
ERY v Associated Newspapers Ltd89 [2016] EWHC 2760 (QB).
90
Ibid. at 65.
91
Richard v British Broadcasting Corpn [2018] EWHC 1837 (Ch); [2019] Ch 169; Para 248.
92
Jollyamma Joseph v State of Kerala, LAWS(KER)-2023-6-126.

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“Today there is feeling that in view of the extensive use of the television and cable services,
the whole pattern of publication of news has changed and several such publications are likely
to have a prejudicial impact on the suspects, accused, witnesses and even judges and in
general on the administration of justice93”

The “Right to Fair Trial”, i.e., a trial uninfluenced by extraneous pressures is recognized as a
basic tenet of justice in India. Provisions aimed at safeguarding this right are contained under
the Contempt of Courts Act, 197194 and under Art. s 129 and 21595(Contempt Jurisdiction-
Power of Supreme Court and High Court to punish for Contempt of itself respectively) of the
Constitution of India. Any leak of information should be prevented to avoid such situation
where the accused may not get justice.

[5.3] Violation of art. 2196 of Constitution of Aryavarta which guarantees right to privacy.

It is most humbly submitted that information relating to investigation being divulged to

media houses or third parties affects the Right to privacy as guaranteed by Art. 21 of
Constitution97 through the judgement of K.S. Puttaswamy and Anr. vs. Union of India98. As
the charges have not yet been framed, any information related to investigation might include
those that have no bearing to the allegations and which the person or firm did not intend to
reveal. In such cases, if such information is leaked, it would violate art. 21 of Constitution in
the form of breach of their privacy.

[5.4] Divulgence of findings of investigation is prohibited under sec 66 of PMLA.

It is humbly submitted that sec. 66 of PMLA99outlines directives for the ED authorities to

furnish or facilitate the provision of information to various government agencies in case such
information is necessary for such agencies to perform their functions under the respective
laws. Under this provision, information can be shared with certain specified agencies
only100.

93
Law Commission Report, Law Commission, 200. Ed 2006.
94
Contempt of Courts Act, 1971, No. 70, Acts of Parliament, 1971(India).
95
INDIA CONST. art. 129; INDIA CONST. art. 215.
96
INDIA CONST. art. 21.
97
INDIA CONST. art. 21.
98
Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors, MANU/SC/1044/2017.
99
Prevention of Money Laundering Act, 2002, § 66, No. 15, Acts of Parliament,2003(India).
100
Srishty Jaura, Scope of information sharing by ED under sec 66 of PMLA, Metalegal Advocates, Metalegal
Advocates, (Aug 17, 2023), https://www.metalegal.in/post/scope-of-information-sharing-by-ed-under-section-
66ofpmla?utm_source=mondaq&utm_medium=syndication&utm_term=Tax&utm_content=articleoriginal&utm

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 UNIVERSITY MOOT COURT SELECTION, GRAND INTRA,
_campaign=article.

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Currently there are 26 government agencies with which ED can share findings of
investigation under PMLA.

Presence of such a provision, specifying the scope of information sharing by investigating

authority depicts the intent of preventing dissemination of information to third parties. Hence,
no information with regards to the ongoing investigation under PMLA should be shared.

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PRAYER FOR RELIEF

Wherefore, in the light of the facts of the case, issues raised, arguments advanced and
authorities cited, it is most humbly and respectfully requested that the Hon'ble Supreme
Court of Aryavarta be pleased to:

1. Declare, that the Section 69A of the IT Act, 2000 read with the IT (Blocking) Rules,
2009 does not authorize the issuance of a direction to block user accounts in their
entirety and such power is URL/links specific.
&
2. Declare, that the ‘Blocking Order’ issued by MeitY (Designated Officer) is void as it
is not founded on discernible reasons relatable to objectionable content and non-
communication of reasons to the user (originators of information) in terms of Rule 8
of the IT (Blocking), Rules, 2009.
&
3. Declare, that the Central Government, under Sections 87 and 79 of the IT Act, has
ultra vires legislated IT Rules, 2021 that prescribe unreasonable due diligence on
intermediaries and are violative of the doctrine of proportionality.
&
4. Declare, that the seizure of digital devices by the agency (ED) is violative of the
Fundamental right to privacy of the Petitioners.
&
5. Declare, that the Petitioners can claim to have a reasonable expectation of privacy
with respect to any information relating to the investigation” collected by the agency
(ED).
AND/OR
The court may issue any other order as the court deems fit in the interest of justice, equity,
and good conscience.
For this act of kindness, the Petitioner shall be duty-bound forever.
All of which is most humbly and respectfully submitted.

(Respectfully Submitted)
- Counsel on behalf of Petitioner

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