V

U TEAM CODE:

TAMIL NADU STATE MOOT COMMITTEE

INTRA - COLLEGE MOOT COURT COMPETITION, 2024

BEFORE THE HON'BLE SUPREME COURT OF TENSANIYA

THE CASE CONCERNING THE CONSTITUTIONAL VALIDITY OF THE

INFORMATION TECHNOLOGY RULES 2021, ESTABLISHMENT OF FACT
CHECK UNIT, RIGHT TO PRIVACY, SPEECH AND EXPRESSION, AND
EDITORIAL FREEDOM OF DIGITAL MEDIA PLATFORMS.

Clubbing of Petitions as Per Order II Rule VI of the Supreme Court Rules 2013

Writ No. Of 2024

NOTSAPP …….……………………………………………...PETITIONER

Vs.

REPUBLIC OF TENSANIYA ………………………………...RESPONDENT

Writ Appeal. Of 2024

KUNAL …….……………………………….………………..APPELLANT

Vs.

REPUBLIC OF TENSANIYA …..……………….……………RESPONDENT

Writ No. Of 2024

TREELET ……………………………………………………PETITIONER

Vs.

REPUBLIC OF TENSANIYA …..………………………….....RESPONDENT

 UNDER ARTICLE 32, 136 AND 139A OF THE CONSTITUTION OF

TENSANIYA

"MEMORANDUM ON BEHALF OF THE PETITIONER(S)"

TABLE OF CONTENT

TABLE OF CONTENT ………………………………………………………………………..

2
INDEX OF AUTHORITIES ……………………………………………………………………
4
STATEMENT OF JURISDICTION ……………………………………………………….…
6
STATEMENT OF FACTS ……………………………………………………………………..
7
ISSUES RAISED …………………………………………………………………………..….…
8
SUMMARY OF ARGUMENTS ………………………………………………………………...
9
ARGUMENTS ADVANCED ……………………………………………………………….…..
12

I. WHETHER THE IMPUGNED PROVISIONS OFTHE I.T RULES, 2021

REQUIRES SOCIAL MEDIA INTERMEDIARIES TO ENABLE THE
IDENTIFICATION OF THE FIRST ORIGINATOR OF INFORMATION, ARE
CONSTITUTIONALLY VALID IN LIGHT OF THE RIGHT TO PRIVACY AND
WHETHER THEY ARE IN CONSONANCE WITH THE PROVISIONS OF THE
INFORMATION TECHNOLOGY ACT 2000?

1.1 VIOLATION OF RIGHT TO PRIVACY

1.2 INTERNATIONAL CONVENTIONS ON RIGHT TO PRIVACY
1.3 VIOLATION RIGHT TO SPEECH AND EXPRESSION
1.4 INTERNATIONAL CONVENTIONS ON RIGHT TO SPEECH AND EXPRESSION
1.5 DEVASTATING OF DEMOCRATIC SYSTEM
1.6 CONTRAVENES WITH INFORMATION TECHNOLOGY ACT 2000

W X
 II. WHETHER THE FACT CHECK UNIT GIVES EXCESSIVE POWER TO THE
EXECUTIVE BRANCH AND INFRINGES UPON THE INFORMATION
TECHNOLOGY ACT, 2000?

2.1 LACK OF JUDICIAL OVERSIGHT AND CONCENTRATION OF POWER

2.2 ARBITRARY AND UNCLEAR STANDARDS OF FCU
2.3 VIOLATION OF THE INFORMATION TECHNOLOGY ACT 2000

III. WHETHER THE ESTABLISHMENT OF FACT CHECK UNIT IS ULTRA VIRES

TO THE CONSTITUTION OF TENSANIYA?

3.1 LEGISLATIVE INTENT

3.2 ARBITRARY AND AGAINST DEMOCRACY

3.3 VIOLATION OF FUNDAMENTAL RIGHTS

3.4 LACK OF LEGAL BASIS

IV. WHETHER RULE 9 OF THE IT RULES, 2021, WHICH IMPOSES A CODE OF

ETHICS AND A THREE TIER GRIEVANCE REDRESSAL MECHANISM,
EXCEEDS THE LEGISLATIVE COMPETENCE GRANTED UNDER THE
INFORMATION TECHNOLOGY ACT, 2000, AND INFRINGES UPON THE
EDITORIAL FREEDOM OF DIGITAL NEWS MEDIA AND OTT PLATFORMS?

4.1 BEYOND THE PARENT ACT

4.2 INCONSISTENT CODE OF ETHICS

4.3 INFRINGES EDITORIAL FREEDOM

PRAYER FOR RELIEF ………………………………………………………………………….

25
 INDEX OF AUTHORITIES

Legislations and Statutes:

1. The Constitution of India (1950)

2. Information Technology Act 2000
3. Information Technology Amendment Act 2008
4. Information Technology (Intermediary Guidelines and Digital Media Ethics code) Rules
2021
5. The Cable Television Networks (Regulation) Act 1995
6. The Press Council Act 1978

International Conventions:
1. Universal Declaration on Human rights, 1948
2. International Covenant on Civil and Political Rights, 1966
3. European Convention on Human Rights, 1950

Books Referred:

1. Indian Constitutional Law, M. P. Jain (8th Edition)

2. Constitutional Law of India, Dr.J.N. Pandey (58th Edition)
3. Constitution of India, Dr. V.N. Shukla (13th Edition)
4. Constitution of India, P.M. Bakshi (19th Edition)
5. Information Technology Law and Practice, Vakul Sharma (8th Edition)
6. Cyber Law Information Technology, Singhal (2nd Edition)
7. Information Technology Law, Simmi Virk (1st Edition)

Online Sources :-

1. Legalservicesindia.com
2. Indianbarassociation.org
3. Scconline.com
4. supremetoday.ai
5. Livelaw.com
6. Drishti.ias.com
7. Casemine.com

MEMORANDUM ON BEHALF OF THE PETITIONER(S) Page | 4

 TABLE OF CASES

S.no. Case Name Citation Page No.

1. K.S. Puttaswamy (Retd.) vs. Union of India (2017) (2017) 10 SCC 1 11
2. Shyam Sundar and Ors. vs. Union of India (2020) (2020) 12 SCC 641 12
3. Puttaswamy vs. Union of India (2020) (2020) 10 SCC 1 12
4. Pallavi B vs. State of Karnataka (2021) (2021) 3 SCC 341 12
5. Anuradha Bhasin vs. Union of India (2020) (2020) 3 SCC 637 12
6. Kharak Singh v. State of Uttar Pradesh (1964) AIR 1964 SC 1405 12
7. Navtej Singh Johar v. Union of India (2018) (2018) 10 SCC 1 12
8. Lata Singh v. State of Uttar Pradesh (2006) (2006) 5 SCC 475 12
9. Nandini Satpathy v. P.L. Dani (1978) (1978) 2 SCC 424 12
10. Kesavananda Bharati v. State of Kerala (1973) AIR 1973 SC 1461 13
11. Romesh Thappar v. State of Madras (1950) AIR 1950 SC 124 14
12. Shreya Singhal v. Union of India (2015) (2015) 5 SCC 1 14
13. Ramesh v. Union of India (1988) (1988) 4 SCC 1 14
14. A.K. Roy v. Union of India (1982) (1982) 1 SCC 271 16
15. Indira Gandhi v. Raj Narain (1975) (1975) 2 SCC 1 17
16. Maneka Gandhi v. Union of India (1978) (1978) 1 SCC 248 17
17. Golak Nath v. State of Punjab (1967) AIR 1967 SC 1895 18
18. People’s Union for Civil Liberties v. U.O.I (2004) (2004) 9 SCC 580 18
19. Vikram Singh v. Union of India (2010) (2010) 3 SCC 615 19
20. Indian Oil Corporation Ltd. v. State of Orissa (1996) (1996) 6 SCC 736 20
21. State of Bihar v. Bal Mukund Sah (2000) (2000) 4 SCC 640 20
22. L. Chandra Kumar v. Union of India (1997) (1997) 3 SCC 261 21
23. R.K. Garg v. Union of India (1981) (1981) 4 SCC 675 21
24. Vineet Narain v. Union of India (1997) (1997) 1 SCC 226 21
25. S.P. Sampath Kumar v. Union of India (1987) (1987) 1 SCC 124 21
26. Kunal Kamra v. Union of India, [2020] SCC OnLine SC 1104 22
27. State of Tamil Nadu v. K. Shyam Sunder (2011) (2011) 8 SCC 737 23
28. State of Uttar Pradesh v. Rajesh Kumar (2006) (2006) 2 SCC 558 24
29. Indian Farmers Fertilizer Co-operative Ltd. v. U.O.I (2006) 6 SCC 228 24
30. Promotion of Nineteenonea Media (P) Ltd. v. U.O.I (2019) SCC 1364 24
31. R. Rajagopal v. State of Tamil Nadu (1994) (1994) 6 SCC 632 24

MEMORANDUM ON BEHALF OF THE PETITIONER(S) Page | 5

 STATEMENT OF JURISDICTION

It is humbly submitted before the Hon'ble Supreme Court of Tensaniya that the petitions are filed
under Article 32, 136 and 139A of the Constitution of Tensaniya, 1950 in the case concerning
the constitutional validity of the information technology rules 2021, right to
privacy, right to speech and expression and editorial freedom of digital media
platforms.

Article 32 of the Constitution, 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.

Article 136 of the Constitution, Special leave to appeal by the Supreme Court.
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces

Article 1139A of the Constitution, Transfer of certain cases.

2
[(1) Where cases involving the same or substantially the same questions of law are pending before
the Supreme Court and one or more High Courts or before two or more High Courts and the
Supreme Court is satisfied on its own motion or on an application made by the Attorney-General of
India or by a party to any such case that such questions are substantial questions of general
importance, the Supreme Court may withdraw the case or cases pending before the High Court or
the High Courts and dispose of all the cases itself
Provided that the Supreme Court may after determining the said questions of law return any case so
withdrawn together with a copy of its judgment on such questions to the High Court from which the
case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case
in conformity with such judgment.]
Thus, The Hon'ble Supreme Court of Tensaniya has Jurisdiction to entertain the present
case.

1
Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 24 (w.e.f. 1-2-1977).
2
Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 21, for cl. (1) (w.e.f. 1-8-1979).

MEMORANDUM ON BEHALF OF THE PETITIONER(S) Page | 6

 STATEMENT OF FACTS

1. The Republic of Tensaniya, the second most populous country and the most populous
democracy globally, is renowned for its diverse and multi-ethnic society. As a rapidly growing
major economy and a hub for information technology, the widespread availability of affordable
internet has enabled its population to actively engage with social media.
2. In Tensaniya, popular social media platforms like NotsApp, Facenote, and TwitX let people
express their views, showcase creativity, and criticize the government. However, these platforms
have also led to issues such as the spread of fake news, abuse of social media for sharing morphed
images, and revenge porn. Regrettably there are no strict complaint mechanism for users to register
complaint and get it redressed.
3. As digital use grows rapidly, safeguarding electronic data, personal information, and sensitive
content on various platforms is a key responsibility of the government. So the Government of
Tensaniya introduced the Information Technology (Intermediary Guidelines and Digital Media
Ethics Code) Rules, 2021. Soon after the enactment of the IT rules 2021 many social media
intermediaries opposed it as the new rules grant extensive authority to the government.
4. NotsApp, a major messaging app in Tensaniya, has challenged the IT Rules 2021 in the High
Court of Indraprastha. In despite of all oppositions the government introduced the IT Amendment
Rules On April 6, 2023, which regulate online gaming and establish a fact-checking unit. This unit
gives the government the authority to determine the accuracy of information and impose broad
censorship.
5. Kunal, a political commentator approached High Court of Kinsai seeking an interim stay to
Rules 3(i) (II) (A) and (C) of the IT Amendment rules 2023. Arguing that the Fact Check Unit
(FCU) would suppress criticism of the Central government. After the High Court denied his
request, Kunal has now appealed to the Supreme Court of Tensaniya.
6. Rule 9 of the IT Rules, 2021, mandates that online news publishers and content creators follow a
Code of Ethics and adhere to a three-tier complaint system managed by the government. The
Code of Ethics requires compliance with laws and journalistic standards set by the Press Council of
Tensaniya. However, this rule has faced criticism from journalists and media outlets, who argue that
it imposes overly strict compliance requirements. Additionally, while the Programme Code governs
cable services, it doesn't apply to online content creators
7. Treelet, a digital news media, challenged Rule 9 in the Supreme Court, arguing it violates the
Information Technology (Amendment) Act 2000. They claim the rule is overly harsh, unfair, exceeds
the government's legal authority, and infringes on freedom of speech.

MEMORANDUM ON BEHALF OF THE PETITIONER(S) Page | 7

8. The Supreme Court has transferred and tagged all the matters pending before various High
Courts relating to IT Rules, 2021 to prevent divergent judicial views and decided to hear on the
same day.

ISSUES RAISED

ISSUE - I

WHETHER THE IMPUGNED PROVISIONS OFTHE I.T RULES, 2021 REQUIRES

SOCIAL MEDIA INTERMEDIARIES TO ENABLE THE IDENTIFICATION OF THE
FIRST ORIGINATOR OF INFORMATION, ARE CONSTITUTIONALLY VALID IN
LIGHT OF THE RIGHT TO PRIVACY AND WHETHER THEY ARE IN CONSONANCE
WITH THE PROVISIONS OF THE INFORMATION TECHNOLOGY ACT 2000?

ISSUE - II

WHETHER THE FACT CHECK UNIT GIVES EXCESSIVE POWER TO THE

EXECUTIVE BRANCH AND INFRINGES UPON THE INFORMATION TECHNOLOGY
ACT, 2000?

ISSUE - III

WHETHER THE ESTABLISHMENT OF FACT CHECK UNIT IS ULTRA VIRES TO

THE CONSTITUTION OF TENSANIYA?

ISSUE – IV
WHETHER RULE 9 OF THE IT RULES, 2021, WHICH IMPOSES A CODE OF ETHICS
AND A THREE TIER GRIEVANCE REDRESSAL MECHANISM, EXCEEDS THE
LEGISLATIVE COMPETENCE GRANTED UNDER THE INFORMATION
TECHNOLOGY ACT, 2000, AND INFRINGES UPON THE EDITORIAL FREEDOM OF
DIGITAL NEWS MEDIA AND OTT PLATFORMS?

MEMORANDUM ON BEHALF OF THE PETITIONER(S) Page | 8

 SUMMARY OF ARGUMENTS

I. WHETHER THE IMPUGNED PROVISIONS OF THE I.T RULES, 2021 REQUIRES

SOCIAL MEDIA INTERMEDIARIES TO ENABLE THE IDENTIFICATION OF THE
FIRST ORIGINATOR OF INFORMATION, ARE CONSTITUTIONALLY VALID IN
LIGHT OF THE RIGHT TO PRIVACY AND WHETHER THEY ARE IN CONSONANCE
WITH THE PROVISIONS OF THE INFORMATION TECHNOLOGY ACT 2000?

Yes, it is humbly submitted before this Hon'ble Supreme Court of Tensaniya that the impugned
provisions of the IT rules, 2021 requires social media intermediaries to enable the identification of
the first originator of information, are constitutionally invalid in the light of the Right to Privacy and
they are in consonance with the provisions of the Information Technology Act, 2000. The following
are the arguments presented in support of the petitioner in this issue,
i. Right to Privacy is ensured to be a fundamental right and various international conventions
also emphasise its importance, the right to privacy is a basic human right according to
various Human Rights conventions. Hence the IT rules 2021 which requires identification of
the first originator of the information is in clear violation of the Right to privacy and invalid
ii. In addition to that it also violates Right to Speech and Expression, through imposing such
stringent rules they are trying to supress the voice of the people against the Government.
iii. IT rules 2021 contravene with Section 43A, Section 69A, Section 72A and Section 79 of the
Information Technology Act 2000 and many other sections relating to privacy, censorship,
redressal mechanism, liabilities and etc of the Information Technology Act 2000.

II. WHETHER THE FACT CHECK UNIT GIVES EXCESSIVE POWER TO THE
EXECUTIVE BRANCH AND INFRINGES UPON THE INFORMATION
TECHNOLOGY ACT, 2000?

Yes, it is humbly submitted before this Hon'ble Supreme Court of Tensaniya that the FCU gives
excessive power to the executive branch and infringes upon the Information Technology Act, 2000.
The arguments supporting the petitioner in this issue are detailed as follows,
i. This country is said to be the most populous democracy in the world but actions of the
Government like the establishment of FCU challenges the accuracy of such fact, as every
healthy democracy should include criticism and people's opinion and free speech without
apprehension. As there is no one above the constitution and welfare of the people this FCU
undoubtably gives excessive power to the executive branch.
ii. Moreover it infringes the Information Technologies Act, 2000 with its utmost efficiency in
matters like privacy, data protection, transparency, censorship, regulation of intermediaries
and also there is a chance of undue influence of the government through this stringent act.

MEMORANDUM ON BEHALF OF THE PETITIONER(S) Page | 9

III. WHETHER THE ESTABLISHMENT OF FACT CHECK UNIT IS ULTRA VIRES TO
THE CONSTITUTION OF TENSANIYA?
Yes, it is humbly submitted before this Hon'ble Supreme Court of Tensaniya that the establishment of
fact check unit is ultra vires to the constitution of Tensaniya, Presented below are the supporting
arguments for the petitioner in this issue,
i. The Constitution of Tensaniya provides right to speech and privacy to all its citizens which
includes the publishers of online content as well, people are entitled to express and publish
their opinion which they believe to be true, hence Fact Check Unit ultimately poses a threat
to their freedom of speech and expression, also the duty of the government is to hear from
people and not to supress their voices as this FCU is in violation of the fundamental rights of
the people its establishment is absolutely ultra vires to the Constitution of Tensaniya
ii. The establishment of FCU exceeds the constitutional limits and hence it is ultra vires in
addition to that Tensaniya is democratic in nature establishment of FCU is totally totalitarian
in nature and restrictions cannot be mandated when there is no emergency which is clearly
provided under the constitution, so the Government of Tensaniya has no power to establish
FCU upon the democratic people of Tensaniya.

VI. WHETHER RULE 9 OF THE IT RULES, 2021, WHICH IMPOSES A CODE OF ETHICS
AND A THREE TIER GRIEVANCE REDRESSAL MECHANISM, EXCEEDS THE
LEGISLATIVE COMPETENCE GRANTED UNDER THE INFORMATION
TECHNOLOGY ACT, 2000, AND INFRINGES UPON THE EDITORIAL FREEDOM OF
DIGITAL NEWS MEDIA AND OTT PLATFORMS?
Yes, it is humbly submitted before this Hon'ble Supreme Court of Tensaniya that rule 9 of the IT
rules, 2021, which imposes a code of ethics and a three tier grievance redressal mechanism, exceeds
the legislature competence granted under the Information Technology act, 2000, and infringes upon
the editorial freedom of digital news media and OTT platforms, The following points have been
raised in support of the petitioner in this issue,
i. Rule 9 of the IT Rules, 2021 has been subjected to judicial review due the Infringement on
Editorial Freedom, Vague Guidelines (Unclear Standards) , Unequal Burden, lack of
competence in addition to that it is ultra vires in nature.
ii. The three-tier grievance redressal mechanism and the code of ethics affects the editorial
freedom of the publishers as it gives government influence over the contents and even has
influence handling grievances which may be seen as extending beyond the legislative
competence granted by the Act. As the IT rules 2021 takes more power than provided it
exceeds legislative competence provided by the Information Technology Act 2000.

ARGUMENTS ADVANCED
MEMORANDUM ON BEHALF OF THE PETITIONER(S) Page | 10
ISSUE – 1 WHETHER THE IMPUGNED PROVISIONS OF THE I.T RULES, 2021
REQUIRES SOCIAL MEDIA INTERMEDIARIES TO ENABLE THE IDENTIFICATION
OF THE FIRST ORIGINATOR OF INFORMATION, ARE CONSTITUTIONALLY VALID
IN LIGHT OF THE RIGHT TO PRIVACY AND WHETHER THEY ARE IN
CONSONANCE WITH THE PROVISIONS OF THE INFORMATION TECHNOLOGY ACT
2000?

Yes, it is humbly submitted before this Hon'ble bench that the impugned provisions of the IT rules,
2021 requires social media intermediaries to enable the identification of the first originator of
information, are constitutionally invalid in light of the right to privacy and they are in consonance
with the provisions of the Information Technology Act 2000,
 The IT rules 2021 is in direct violation of fundamental rights and therefore constitutionally
invalid. Literally IT rules 2021 exceeds the scope of the Information Technology Act 2000
and infringes several provisions of the Information Technology Act 2000 as well.
 IT rules must focus on cyber security and regulation of electronic records instead of doing
that these rules majorly focus in restricting people's opinion and infringe their privacy,
therefore these rules are the result of malicious intent of the corrupted political system.
 In the name of reasonable restrictions they are institutionalizing injustice upon the
democratic people of Tensaniya, since Tensaniya is a democratic republic these kind of
regulations cannot be tolerated in the most populous democracy in the world. "In a
democracy, criticism is not only a right but a responsibility." — Nelson Mandela.

1.1 VIOLATION OF RIGHT TO PRIVACY :

Article – 21of the Constitution of Tensaniya,
Protection of life and personal liberty. - No person shall be deprived of his life or personal liberty
except according to procedure established by law.
In the case of K.S. Puttaswamy (Retd.) vs. Union of India (2017) 3. The Court ruled that privacy is
an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution. This case
significantly affirmed that privacy is a fundamental right protected by the Constitution.
Justice N. V. Ramana in his words says '"Privacy is the essence of the individual’s dignity. It is the
sanctuary where we should feel safe from the prying eyes of the state and society." Which means
every individual needs a personal space where they can truly be themselves. One must not have fear

3
(2017) 10 SCC 1

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to express himself and when an individual ensures their privacy, it inherently gives them a sense of
safety.
Here in this issue the Information technology (Intermediary Guidelines and Digital Media Ethics
Code) Rules 2021, which requires social media intermediaries to enable the identification of the first
originator of information eventually infringes the right to privacy of the first originator.
The country of Tensaniya is the 2nd most populous country and most populous democracy in the
world its affordable internet and rapid digitalization enabled its population to encage extensively in
social media where most of the people spend their lifetime. Having such digital development, the
government should focus on securing their privacy rather than conducting surveillance on them.
Every publishers agrees and believes the privacy policies provided by the intermediaries if the
government can infiltrate data then there is a lack of confidence upon the intermediaries in addition
to that is if there is no cyber privacy no one can act independently.
One of the great advantages of the use of social media platforms is the identification privacy,
eventually many famous publishers use pseudonyms instead of their real identity to their safety for
instance the Watergate scandal it was a major political scandal in the United States during the early
1970s that ultimately led to the resignation of President Richard Nixon. It was revealed by a secret
publisher who used a pseudonym "Deep Throat" so privacy of identification is more important for
publishers.
 Shyam Sundar and Ors. vs. Union of India (2020) 4. This case addressed privacy
concerns related to online data and social media. The Supreme Court highlighted the need
for stringent regulations to ensure user privacy.
 Puttaswamy vs. Union of India (2020) 5. This case continued the discussion on privacy,
particularly focusing on data protection. The Supreme Court reiterated that privacy is
essential to personal dignity and freedom.
 Pallavi B vs. State of Karnataka (2021) 6. The court emphasized that government officials
must adhere to data protection laws and respect individual privacy.
 Anuradha Bhasin vs. Union of India (2020)7
 Kharak Singh v. State of Uttar Pradesh (1964)8
 Navtej Singh Johar v. Union of India (2018)9
 Lata Singh v. State of Uttar Pradesh (2006)10
4
(2020) 12 SCC 641
5
(2020) 10 SCC 1
6
(2021) 3 SCC 341
7
(2020) 3 SCC 637
8
AIR 1964 SC 1405
9
(2018) 10 SCC 1
10
(2006) 5 SCC 475

MEMORANDUM ON BEHALF OF THE PETITIONER(S) Page | 12

  Nandini Satpathy v. P.L. Dani (1978)11, all these cases emphasise the importance of
privacy of individuals and data protection of users on online media platforms.
1.2 INTERNATIONAL CONVENTIONS ON RIGHT TO PRIVACY :
 Article 12 of UDHR - No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has
the right to the protection of the law against such interference or attacks . This article
emphasizes the importance of privacy and personal liberty of an individual
 Article 21 (3) of UDHR - The will of the people shall be the basis of the authority of
government. This article emphasizes that will of the people is supreme than the authority
John Locke once said "Liberty of the people gave power to the government, not the
power of the government gave liberty to the people"
 Article 27 (2) of UDHR - Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production of which he is the author.
 Article 17 (1) of ICCPR - No one shall be subjected to arbitrary or unlawful interference with
his privacy, family, home or correspondence, nor to unlawful attacks on his honour and
reputation. This article also emphasizes the right to privacy.

1.3 VIOLATION OF RIGHT TO SPEECH AND EXPRESSION :

Article 19 (1) (a) of the constitution of Tensaniya provides Right to freedom of speech and
expression;
Article 14 of the constitution provides right to equality which means every citizen of Tensaniya has
equal right to speech and expression, right to speech and expression is fundamental right and basic
human right, by enforcing the IT rules 2021 the government is threatening the people by tracking
down the first originator of information they can take stringent actions against him, making him a
lesson for others to maintain silence against the government eventually threatening them not to raise
voice against them which absolutely violates their right to speech and expression. People are entitled
to share their opinions without fear when these rules monitor them like terrorist then there is no free
speech and expression, no one can express what they think when they are constantly under
surveillance. "The world suffers a lot not because of the violence of bad people, but because of
the silence of good people." – Napoleon
The right to free speech and expression encompasses the right to criticize. It is not merely a privilege
but a responsibility for every citizen to voice their concerns and stand against injustice and anarchy.
Upholding this right involves actively engaging in the discourse, challenging abuses of power, and
contributing to a just and equitable society.

11
(1978) 2 SCC 424

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Kesavananda Bharati v. State of Kerala (1973)12.
This landmark case established the basic structure doctrine of the Indian Constitution. The Supreme
Court ruled that Parliament cannot alter the basic structure of the Constitution, even through
amendments. While this case primarily dealt with constitutional amendments. The case reinforced
that the fundamental rights, including the right to free speech and expression under Article 19(1)(a),
are a core part of the Constitution's basic structure and cannot be abridged.
Romesh Thappar v. State of Madras (1950)13.
The Supreme Court held that the right to freedom of speech and expression under Article 19(1)(a)
includes the freedom to propagate one's views through publications. The case involved the banning of
a political journal, and the Court ruled that such a ban violated the right to free speech and
expression.
Shreya Singhal v. Union of India (2015)14.
The Supreme Court struck down Section 66A of the Information Technology Act, which
criminalized sending offensive messages through electronic communication. The Court ruled that the
section was unconstitutional as it violated freedom of speech and expression and was overly broad
and vague. This case reaffirmed the principle that laws restricting speech must be precise and cannot
be used to suppress legitimate expression, particularly in the digital context.
Ramesh v. Union of India (1988)15.
The Supreme Court addressed whether the freedom of speech and expression includes the right to
criticize the government and its policies. The case involved a publication critical of government
actions, and the Court ruled that the right to criticize government policies is an essential aspect of
free speech. All these cases support the right to speech and expression includes right to criticise as
well.

1.4 INTERNATIONAL CONVENTIONS ON RIGHT TO SPEECH AND EXPRESSION :

 Article 18 of UDHR - Everyone has the right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief in teaching,
practice, worship and observance.
 Article 19 of UDHR - Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.

12
AIR 1973 SC 1461
13
AIR 1950 SC 124
14
(2015) 5 SCC 1
15
(1988) 4 SCC 1

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  Article 19 of ICCPR – (1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.
 Article 10(1) of ECHR - Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article shall not prevent
States from requiring the licensing of broadcasting, television or cinema enterprises.

1.5 DEVASTATING OF DEMOCRATIC SYSTEM :

A democratic system must allow for healthy criticism of government actions; when people are unable
to express their concerns, the very essence of democracy is compromised. As Mahatma Gandhi
aptly stated, "In a democracy, the people get the government they deserve." The government
must remain accountable to its citizens, and if there is a risk of fake news, wiser methods should be
employed rather than stifling public expression. Historically, the Press Act of 1910, established by
the British to penalize writers critical of the empire, was repealed in 1922. The current IT Rules bear
a troubling resemblance to the Press Act, as both seek to suppress dissenting voices. Consequently,
these rules are unconstitutional and undermine democratic principles.

1.6 CONTRAVENES WITH INFORMATION TECHNOLOGY ACT 2000 :

Section 43A of the IT Act, 2000, mandates that social media intermediaries must protect users'
personal data and not disclose any information without the owner's consent. However, the IT Rules,
2021 require intermediaries to provide information to law enforcement agencies and comply with
government orders, which could involve sharing or processing sensitive personal data. These
additional compliance requirements could increase the burden on intermediaries to ensure their
data handling practices align with both Section 43A and the new rules, potentially heightening the
risk of breaches.
Section 69A of the IT Act, 2000 authorizes the government to direct the blocking of public access to
information through computer resources if deemed necessary for national security, public order, or
other specified reasons. However, the IT Rules, 2021 introduce a structured framework for content
management and compliance that could potentially broaden the scope of content blocking. As a
result, intermediaries might be required to act on a wider range of government directives, which
could lead to more frequent instances of content blocking. This expanded scope raises concerns about
potential overreach and its impact on free speech and digital expression.
Section 72A of the IT Act, 2000 addresses the unauthorized disclosure of personal information,
criminalizing the act of disclosing personal data obtained through computer resources in breach of a

MEMORANDUM ON BEHALF OF THE PETITIONER(S) Page | 15

lawful contract and without the consent of the individual to whom the data pertains. However, the IT
Rules, 2021 require intermediaries to disclose personal data in compliance with government orders
and provide information to law enforcement agencies. This requirement could lead to conflicts with
Section 72A, as it necessitates sharing personal data with authorities, which might be considered
unauthorized disclosure under Section 72A. The IT Rules impose additional compliance burdens on
intermediaries, potentially complicating the process of obtaining consent and maintaining contractual
obligations regarding personal data. Consequently, intermediaries may face increased risks of
inadvertently breaching Section 72A due to the added administrative demands and the challenge of
balancing data protection with compliance with legal directives.
Section 79 of the IT Act, 2000 protects intermediaries like social media platforms from liability for
user-generated content, as long as they act responsibly and follow due process when handling
complaints. However, the IT Rules, 2021 introduce new responsibilities that might put this
protection at risk. The additional requirements could make intermediaries more accountable for
content and increase their operational costs and complexities. If intermediaries fail to meet these new
demands, they might lose their safe harbor protection. The broad and sometimes unclear definitions
in the IT Rules could force intermediaries to manage a wider range of content than before, leading to
excessive monitoring or content removal. This could undermine Section 79’s protection and lead to
unnecessary censorship, impacting free expression. The new rules also create uncertainty, making it
harder for intermediaries to maintain their safe harbor protections and increasing the risk of legal
issues
The IT Rules 2021 lack clear definitions of standards, which is unacceptable. Every regulation must
be precise and well-defined to ensure proper enforcement and administration.
A.K. Roy v. Union of India (1982)16
In this case, the Court addressed the lack of clarity and the confusing nature of certain statutory
provisions. This case dealt with the validity of the Maintenance of Internal Security Act (MISA),
1971. The petitioners challenged the Act on the grounds that it was vague and lacked clarity, thus
violating the principles of fair and just procedure. The Supreme Court held that the Act, in certain
respects, was indeed vague and lacked clarity. The Court emphasized that laws must be clear and
precise to avoid arbitrary enforcement and ensure that individuals are aware of what constitutes an
offense. The Court ruled that laws should be framed in a manner that avoids ambiguity and ensures
fair application.

Ergo, the counsel appearing on behalf of the petitioner(s) humbly submits before this The Hon'ble
Supreme Court of Tensaniya, that the impugned provisions of the IT rules, 2021 requires social
16
(1982) 1 SCC 271

MEMORANDUM ON BEHALF OF THE PETITIONER(S) Page | 16

media intermediaries to enable the identification of the first originator of information, are
constitutionally invalid in light of the right to privacy and they are in consonance with the provisions
of the Information Technology Act 2000

ISSUE – 2 WHETHER THE FACT CHECK UNIT GIVES EXCESSIVE POWER

TO THE EXECUTIVE BRANCH AND INFRINGES UPON THE INFORMATION
TECHNOLOGY ACT, 2000?
Yes, it is humbly submitted before this Hon'ble bench that the Fact Check Unit gives excessive power
to the executive branch and infringes upon the information technology act, 2000,
 "Democracy thrives on the distribution of power; tyranny thrives on its concentration." The
Fact Check Unit increases the risk of concentrating power within the executive branch by
endowing it with significant control over content moderation and the regulation of
intermediaries and online content publishers.
 The Fact Check Unit grants the executive branch the authority to potentially infringe upon
freedom of the press, freedom of speech, and privacy. It indirectly allows for the restriction of
information flow among the public. This could lead to the removal of content deemed "fake,"
even if it is true, and the restriction of information critical of the executive branch itself.

2.1 LACK OF JUDICIAL OVERSIGHT AND CONCENTRATION OF POWER:

The concentration of power in the executive branch heightens the risk of corruption and abuse due
to diminished oversight mechanisms, which are crucial for preventing unethical behaviour. With
reduced transparency and accountability, there is a greater potential for favouritism and misuse of
power for personal or political purposes. This concentration of power can also lead to the suppression
of opposition and the restriction of public debate, thereby stifling free expression and undermining
democratic discourse. Excessive authority granted to the executive branch compromises the principle
of separation of powers and weakens judicial oversight. For a democracy to function effectively, it is
essential that the judiciary maintains robust oversight of executive actions, as the judiciary is the
guardian of the Constitution. When the executive acts beyond its authority, it is the judiciary's role to
intervene. Therefore, any special unit established for national security or other critical concerns
should include judicial oversight to ensure the legitimate enforcement of laws. Without such
oversight, administrative power concentrated in the executive branch can become arbitrary and
unchecked
 Indira Gandhi v. Raj Narain (1975) 17. This case addressed the issue of executive overreach
and the abuse of power in the context of election laws. The Supreme Court invalidated the

17
(1975) 2 SCC 1

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 election of then Prime Minister Indira Gandhi, highlighting the importance of maintaining
judicial oversight over executive actions to prevent undue influence and ensure fair
governance.
 Maneka Gandhi v. Union of India (1978) 18. The Supreme Court of India expanded the
scope of the right to personal liberty under Article 21, emphasizing that any executive action
affecting personal freedom must meet the standards of fairness and reasonableness. This case
highlighted the need for executive actions to align with constitutional principles.
 Golak Nath v. State of Punjab (1967) 19. The Supreme Court ruled that Parliament could not
alter fundamental rights through amendments, thus limiting the extent to which the executive
branch could affect these rights. This case established that constitutional amendments cannot
infringe upon fundamental rights, thereby placing a check on executive and legislative
powers.
 People’s Union for Civil Liberties v. Union of India (2004) 20. The Supreme Court ruled on
the use of the Prevention of Terrorism Act (POTA) and emphasized the need for safeguards
against misuse. The case highlighted the need for judicial oversight in executive actions
related to national security to prevent potential abuse.
Here in this present issue there is no fair reasonableness in the actions of executive branch regarding
the establishment and administration of Fact Check Unit, since there is a lack of judicial oversight
then this Fact Check Unit is deemed to give excessive power to the executive branch.

2.2 ARBITRARY AND UNCLEAR STANDARDS OF FCU:

Undefined Criteria for Misinformation, When a Fact Check Unit lacks clear, specific criteria for
identifying misinformation or fake news, it may lead to arbitrary decisions. Without detailed
guidelines, the unit might use subjective judgments that can vary greatly. This can cause inconsistent
evaluations of content, with similar information being assessed differently due to personal
interpretations or fluctuating standards
Lack of Transparency, the unit does not openly disclose its methods, criteria, or sources used for
fact-checking, it can create a perception of arbitrariness. Transparency is crucial for accountability
and trust. Users and content creators may find it difficult to understand how decisions are made or to
challenge them, leading to a lack of trust in the unit’s impartiality.
When the standards for evaluating content are not objectively defined, fact-checkers may rely on
personal beliefs or biases. For instance, if the unit lacks clear guidelines on how to handle
controversial or complex topics, decisions may be influenced by the fact-checkers' own perspectives.

18
(1978) 1 SCC 248
19
AIR 1967 SC 1895
20
(2004) 9 SCC 580

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This can lead to biased content moderation, where certain viewpoints are unfairly targeted or
suppressed.
Inconsistent Application, arbitrary standards can lead to inconsistent enforcement. If the unit does
not apply the same criteria uniformly across different cases, similar content might be treated
differently based on varying interpretations or ad hoc decisions. This inconsistency undermines the
credibility of the fact-checking process and can result in perceived unfairness or discrimination.
Broad and Vague Definitions, this can stifle legitimate speech and public debate by allowing the
unit to censor content that might be controversial but not necessarily false.
Inadequate Appeal Mechanisms, if there are no clear or fair processes for challenging or appealing
the unit’s decisions, users may have limited recourse if they believe their content was unfairly
flagged or removed. This can result in unchecked power and potential abuses, with no means for
individuals or organizations to contest or rectify decisions they perceive as unjust.
Unclear Guidelines for Content Moderation, if the guidelines for moderating content are not well-
defined or are frequently changing, it can lead to confusion among both users and fact-checkers. For
example, changing guidelines on what is considered harmful or misleading can create uncertainty.
This can result in erratic enforcement of content policies, where users and content creators cannot
reliably predict what will be deemed acceptable or unacceptable.
Lack of Expert Input, This can lead to inaccurate or misleading assessments of content, especially
on specialized topics where nuanced understanding is required.

2.3 VIOLATION OF THE INFORMATION TECHNOLOGY ACT 2000:

Violation of Section 43 of Information Technology Act 2000, Penalty and Compensation for
damage to computer, computer system, etc (Amended vide ITAA-2008)
If any person without permission of the owner or any other person who is in charge of a computer,
computer system or computer network – (a) accesses or secures access to such computer, computer
system or computer network or computer resource
(b) downloads, copies or extracts any data, computer data base or information from such computer,
computer system or computer network including information or data held or stored in any removable
storage medium; Hence this Section protects from privacy breach which is violated by the FCU
Vikram Singh v. Union of India (2010) 21. The Court noted that special laws must be consistent with
general laws, and in case of conflict, the special law must be examined to ensure it does not
contravene fundamental principles laid out in other laws. And A.K. Roy v. Union of India (1982)22

21
(2010) 3 SCC 615

22
(1982) 1 SCC 271

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Ergo, the counsel appearing on behalf of the petitioner(s) humbly submits before this Hon'ble
Supreme Court of Tensaniya, that the Fact Check Unit gives excessive power to the executive branch
and infringes upon the information technology act, 2000, and it is constitutionally invalid.

ISSUE – 3 WHETHER THE ESTABLISHMENT OF FACT CHECK UNIT IS ULTRA

VIRES TO THE CONSTITUTION OF TENSANIYA?
Yes, it humbly submitted before this Hon'ble bench that the establishment of Fact Check Unit is ultra
vires to the constitution of Tensaniya,
 The constitutionality of a Fact Check Unit hinges on its structure and the powers it wields. If
the unit infringes on fundamental rights of individuals and publishers, its establishment may
be considered ultra vires to the constitution of Tensaniya.
 In this case, the Fact Check Unit exceeds its authority by arbitrarily infringing on peace and
privacy through its stringent rules and regulations, unjustly imposing its power on innocent
people of Tensaniya. Under the guise of reasonable restrictions, they are institutionalizing
injustice against the people and intermediaries by abusing the power granted to them. This
situation is deeply unacceptable and must be addressed immediately.

3.1 LEGISLATIVE INTENT:

Before interpreting any law or act, it is essential to understand the intent behind the legislation, which
outlines the scope and application of the act. In this case, the IT Act and IT Rules were enacted with
the intent of enhancing cyber security, regulating electronic records, and safeguarding data privacy
and protection. However, the establishment of the Fact Check Unit appears to deviate significantly
from this intent. It is perceived as totalitarian and extends beyond the scope of the original acts,
violating several provisions within them. The Fact Check Unit not only breaches privacy and
mishandles personal data but also imposes burdensome restrictions on intermediaries.
While the original objective was to enable individuals to share information and thoughts freely and
safely, the Fact Check Unit ultimately restricts expression and infringes upon cyber rights,
contradicting the foundational goals of the IT legislation. This shift undermines the very principles of
open and secure communication that the original laws sought to promote. Moreover, the Fact Check
Unit's approach to monitoring and regulating content introduces a level of oversight that risks stifling
legitimate discourse and dissent. The stringent measures it employs may lead to self-censorship
among individuals and intermediaries, who might avoid sharing content out of fear of reprisal or
misinformation accusations.

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Indian Oil Corporation Ltd. v. State of Orissa (1996) 23. This case stressed that any government
action must be consistent with the scope of authority granted by law and cannot exceed or misuse the
powers provided. The same was held in State of Bihar v. Bal Mukund Sah (2000)24.

This chilling effect contradicts the IT Act's intention to foster an environment where information can
be exchanged freely and without undue restriction. The unit's actions may create a pretext for
excessive control and censorship, which undermines democratic principles and impedes the open
flow of information essential for a healthy society. The imbalance between security and freedom
could ultimately erode public trust in the digital governance framework and hinder the very
objectives the IT legislation was designed to achieve.
3.2 ARBITRARY AND AGAINST DEMOCRACY:
The establishment of the Fact Check Unit is prima facie problematic as it infringes on fundamental
rights and is detrimental to democratic values. A democratic society should encourage active social
engagement rather than intimidate individuals from participating.
"The strength of a democracy lies not just in electing leaders but in how governance is
conducted". Legislators must carefully consider public welfare when enacting laws, ensuring that no
right is violated in the process of protecting another.
The Fact Check Unit's imposition of stringent rules is unnecessary when there is another existing
mechanisms for addressing fake news. Fake news should be countered with public awareness, not
through intrusive surveillance of citizens. Such actions undermine democratic principles and moral
governance. Therefore, the Fact Check Unit's establishment is arbitrary, undermines democracy, and
affects the basic structure of our constitution, rendering it ultra vires to the Constitution of Tensaniya.

L. Chandra Kumar v. Union of India (1997) 25. The Court underscored the importance of judicial
review as a safeguard against actions that could undermine democratic values, highlighting that no
branch of government is above the Constitution.
R.K. Garg v. Union of India (1981) 26. The Court emphasized that any legislation must align with
the fundamental principles of the Constitution, including democratic governance. It underscored that
laws cannot violate the basic structure or democratic framework of the Constitution.
Vineet Narain v. Union of India (1997) 27.The Supreme Court emphasized that government
authorities and their actions must operate within the scope defined by law, and any deviation or abuse
of power is subject to judicial review.

23
(1996) 6 SCC 736
24
(2000) 4 SCC 640
25
(1997) 3 SCC 261
26
(1981) 4 SCC 675
27
(1997) 1 SCC 226

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S.P. Sampath Kumar v. Union of India (1987)28 . The Supreme Court held that the jurisdiction and
powers of any administrative authority must be exercised within the limits prescribed by law. Any
action exceeding these limits is considered ultra vires and invalid.

3.3 VIOLATION OF FUNDAMENTAL RIGHTS:

No provision of any act should infringe upon the fundamental rights guaranteed by the Constitution,
this is a basic principle that must be adhered to in legislation. In this case, the legislature has failed to
uphold this crucial principle with the establishment of the Fact Check Unit.
This unit violates the right to free speech, infringes on privacy rights, and undermines the right to
equality by imposing disproportionate burdens in which the small-scale publishers suffers more while
larger ones experience minimal effect. The Fact Check Unit is widely disliked and has faced
significant opposition. In Tensaniya, where the people are the ultimate sovereigns who determine
leadership and governance, such entities erode the people's power.
In a democracy, it is the people who should control their thoughts and expressions, not a unit that
dictates what can be shared. This approach represents a clear violation of fundamental rights, and it is
disgraceful for any government to surveil its own citizens in such a manner.
Such overreach not only disrupts the balance of democratic principles but also breeds distrust
between the government and its citizens. Instead of fostering open dialogue and constructive
criticism, it imposes top-down control that stifles dissent and curtails the free exchange of ideas,
Therefore, the Fact Check Unit’s actions represent a profound misalignment with democratic values
and constitutional principles, warranting a revaluation of its legitimacy and impact.

3.4 LACK OF LEGAL BASIS:

The Fact Check Unit may lack a solid legal foundation due to several key issues. It might operate
without a clear legislative mandate, risking its legitimacy. Without adherence to due process
standards, its penalties could be unjust. Vague or undefined rules might lead to arbitrary enforcement.
Since existing mechanisms already address fake news, the need for this new unit is questionable.
Additionally, if it undermines constitutional values like democratic governance and individual
liberties, its legal validity may be challenged.
Kunal Kamra v. Union of India 29, The Court's decision underscores the need for any regulatory or
fact-checking entity to operate within the bounds of constitutional rights and ensure that its actions
are justified and transparent. The judgment contributes to the broader discourse on content regulation
and freedom of expression in the digital age.

28
(1987) 1 SCC 124
29
[2020] SCC OnLine SC 1104

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Ergo, the counsel appearing on behalf of the petitioner(s) humbly submits before this Hon'ble bench,
that the establishment of Fact Check Unit is ultra vires to the constitution of Tensaniya and invalid.

ISSUE – 4 WHETHER RULE 9 OF THE IT RULES, 2021, WHICH IMPOSES A CODE OF

ETHICS AND A THREE TIER GRIEVANCE REDRESSAL MECHANISM, EXCEEDS THE
LEGISLATIVE COMPETENCE GRANTED UNDER THE INFORMATION
TECHNOLOGY ACT, 2000, AND INFRINGES UPON THE EDITORIAL FREEDOM OF
DIGITAL NEWS MEDIA AND OTT PLATFORMS?
Yes, it is humbly submitted before this Hon'ble bench that rule 9 of the IT rules, 2021, which imposes
a code of ethics and a three tier grievance redressal mechanism, exceeds the legislative competence
granted under the Information Technology Act, 2000, and infringes upon the editorial freedom of
digital news media and OTT platforms,
 The requirement for digital publishers to follow a Code of Ethics and the implementation of a
multi-tier grievance redressal system could lead to excessive censorship, resembling
authoritarian control. This mandate extends beyond the original scope of the Information
Technology Act, which did not aim to regulate journalism.
 Additionally, the Code is outdated and does not align with today’s digital landscape. The
fundamental role of journalism is to report the truth, even when it challenges the government.
However, these new regulations seem to distort the essence of journalism. Instead of being
referred to as the IT Rules, 2021, they might as well be called the JWYW (Just Do Whatever
You Want) Rules, 2021.

IV.1 BEYOND THE PARENT ACT:

The IT Act, 2000 does not mandate that publishers adhere to a Code of Ethics, nor does it grant the
government the authority to enforce the Press Council of India’s Norms of Journalistic Conduct or
Programme Code. The Act primarily focuses on regulating online content through Section 69A,
without addressing journalistic standards. However, the IT Rules of 2021 have expanded the Act's
scope, turning it into a mechanism for exerting pressure on intermediaries. These rules, intended to
regulate cyber content, now intrude into journalistic regulation traditionally overseen by the Press
Council Act. Rule 9, which enforces adherence to a Code of Ethics, exceeds the IT Act 2000's
authority and encroaches on established journalistic frameworks. This shift raises concerns about the
balance between regulating digital content and preserving journalistic independence
Therefore Rule 9 exceeds the Legislative competence granted under the IT Act 2000.

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State of Tamil Nadu v. K. Shyam Sunder (2011)30. The Supreme Court of India held that any rule
or regulation made under the authority of an act must conform to the provisions of the parent act. If a
rule exceeds the power conferred by the act, it can be struck down as unconstitutional. The Court
emphasized that rules cannot alter the fundamental provisions of the parent legislation.
State of Uttar Pradesh v. Rajesh Kumar (2006)31. The Supreme Court of India held that rules and
regulations must adhere to the framework established by the parent legislation. Regulations that go
beyond or conflict with the parent act are invalid.

IV.2 INCONSISTENT CODE OF ETHICS:

On the other hand, Section 5 of the Cable TV (Regulation) Act 1975 states —No person shall
transmit or re-transmit through a cable service any programme unless such programme is in
conformity with the prescribed programme code. Here the Programme Code regulates cable services
but cannot mind writers/editors/publishers of content on the internet. So Rule 9 which mandates
social media intermediaries to comply with the programme code is inconsistent in that sense. As the
code of ethics itself is unethical it cannot be mandated on intermediaries and totally invalid.
Indian Farmers Fertilizer Co-operative Ltd. v. Union of India (2006) 32. The Supreme Court
reaffirmed that legislation must be clear and consistent. Rules that exceed the scope or contradict the
parent Act’s provisions are invalid. So in this matter the Programme code is vague.

IV.3 INFRINGES EDITORIAL FREEDOM:

Promotion of Nineteenonea Media (P) Ltd. v. Union of India 33, the Bombay High Court stayed
Rule 9 of the Rules on the grounds of excessive delegation and violation of Article 19(1)(a).
As a fundamental right, it must be protected, and any act that infringes upon it should be struck down
immediately. Rule 9 of the IT Rules 2021, which imposes constraints on the press, is therefore
unconstitutional and should be challenged. The IT Act, 2000 does not grant authority to encroach
upon the freedom of speech. Additionally, the three-tier redressal mechanism under these rules
allows undue government influence over published content, compromising press freedom. These
regulations create a climate of fear among publishers, potentially leading intermediaries to censor
legitimate content unjustly, thereby violating the public’s right to information
R. Rajagopal v. State of Tamil Nadu (1994)34. The Court recognized that the freedom of the press
is a fundamental right within the broader framework of Article 19(1)(a). The judgment highlighted
that the press freedom is a component of the freedom of speech and expression.

30
(2011) 8 SCC 737
31
(2006) 2 SCC 558
32
(2006) 6 SCC 228
33
(2019) SCC 1364
34
(1994) 6 SCC 632

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Ergo, from the above arguments it is humbly submits before this Hon'ble bench, that Rule 9 of the IT
rules, 2021, exceeds the legislative competence granted under the Information Technology Act,
2000, and infringes upon the editorial freedom of digital news media and OTT platforms,

PRAYER

WHEREFORE, IN THE LIGHT OF THE FACTS STATED, ISSUES RAISED,

ARGUMENTS ADVANCED AND AUTHORITIES CITED, IT IS MOST HUMBLY PRAYED
AND IMPLORED BEFORE THE HON'BLE SUPREME COURT OF TENSANIYA THAT IT
MAY BE GRACIOUSLY PLEASED TO
1. Declare that the challenged provisions of the IT Rules 2021 are constitutionally invalid as
they infringe upon the right to privacy. Confirm that these provisions are inconsistent with the
Information Technology Act 2000 and are vague. Request that no actions be taken based on
these provisions until they are amended.
2. Declare that the Fact Check Unit grants excessive power to the executive branch, rendering it
constitutionally invalid and in violation of the Information Technology Act 2000. Issue an
immediate stay order to suspend the operations of the Fact Check Unit.
3. Declare that the establishment of the Fact Check Unit is beyond the constitutional authority of
Tensaniya and must be either abolished or significantly amended.
4. Declare that Rule 9 of the IT Rules 2021 exceeds the legislative competence conferred by the
Information Technology Act 2000 and encroaches upon the editorial freedom of digital news
media and OTT platforms. Request immediate intervention to address these concerns and
recommend that the legislature revise these rules to ensure they are balanced and address
public concerns appropriately.

ALSO PASS ANY OTHER ORDER THAT THIS HONOURABLE COURT DEEMS FIT AND
PROPER IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

For this act of Kindness, the PETITIONER(S) shall be duty bound forever to pray.

All of which is humbly prayed,

Counsel appearing on behalf of the PETITIONER(S)

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