499P
SPRING MOOT INDUCTIONS 2022, O.P. JINDAL GLOBAL
UNIVERSITY
BEFORE THE HONOURABLE
SUPREME COURT OF BHARAT
TULSIRAM LOYA
STATE OF ARRAKIS
(PETITIONERS)
v.
UNION OF BHARAT
WOO
B.H. PRAJAPATI
(RESPONDENTS)
MEMORIAL FOR THE PETITIONERS
1
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Challenges to Government Regulation of Online Speech and Infrastructure in Bharat, Papers of Constitutional Law
The legal challenges and disputes surrounding the regulation of online speech and telecommunications infrastructure in the fictional state of arrakis in bharat. It covers issues such as the blocking of social media platforms, the enactment of the protection of towers act (pota), and the constitutional challenges brought by individuals and companies against these government actions. The document delves into the legal principles and precedents related to free speech, the scope of public order, and the legislative competence of state governments. It presents a nuanced analysis of the complex interplay between individual rights, public interest, and the government's regulatory powers in the digital age. Valuable insights into the evolving landscape of digital rights and the ongoing debates around balancing freedom of expression with concerns of national security and public order.
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2020/2021
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499P
SPRING MOOT INDUCTIONS 2022, O.P. JINDAL GLOBAL
UNIVERSITY
BEFORE THE HONOURABLE
SUPREME COURT OF BHARAT
TULSIRAM LOYA
STATE OF ARRAKIS
(PETITIONERS)
v.
UNION OF BHARAT
WOO
B.H. PRAJAPATI
(RESPONDENTS)
MEMORIAL FOR THE PETITIONERS
TABLE OF CONTENTS
STATEMENT OF RELEVANT FACTS…………………………………………………….
STATEMENT OF JURISDICTION………………………………………………………….
QUESTIONS PRESENTED………………………………………………………………….
SUMMARY OF ARGUMENTS……………………………………………………………...
ARGUMENTS ADVANCED…………………………………………………………………
1. THE OFFENCE OF SEDITION IMPERMISSIBLY RESTRICTS FUNDAMENTAL
RIGHTS UNDER CONSTITUTION OF BHARAT ……………………...………….
1.1 SECTION 124A OF THE IPC VIOLATES ARTICLE 19(1)(A) OF THE
CONSTITUTION’S FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH
AND EXPRESSION. .……………………….....
1.1.1 PROXIMITY TEST……………………………………………………….
1.1.2 OVERBREATH AND VAGUENESS TEST……………………………
1.2 SECTION 124A OF BPC INFRINGES THE FUNDAMENTAL RIGHT TO
LIFE AND LIBERTY ENSHRINED UNDER ARTICLE 21 OF THE
CONSTITUTION
2. THE DECISION DATED 7 NOVEMBER 2021 BY THE HIGH COURT OF
ARRAKIS IS ERRONEOUS ……………………….……………………………….
2.1 THE SUIT WAS MAINTANABLE UNDER ARTICLE
2.1.1 PRIVATE BODY (WOO) BEING AN AGENCY OF THE
GOVERNMENT ………………………………………………………
STATEMENT OF RELEVANT FACTS
Context - Bharat was a developing country where National Technological Alliance (‘NTA’) swept the national elections and rumours began to circulate that it was investing in spyware technology. These allegations were reiterated by Kauser Vanzara, the Chief Minister of Arrakis (a state in Bharat). In 2017, Sohrabuddin Khandalkar, the party President of the NTA launched ‘Woo’ a microblogging social media platform, which he owned 75% of. Woo quickly started gaining traction. under Section 69A of the Information Technology Act, 2000, the NTA Government blocked Facebook in Bharat, and notified both Twitter and Woo that unless they demonstrated concrete steps to improve their content moderation practices, they too would be blocked. Woo made an ‘Oversight Board’ comprising of Sohrabuddinn Khandalkar, and a Secretary, Ministry of Information and Broadcasting, Government of Bharat. In Jan 2021 the NTA government rolled out a 5G test program in the state of Arrakis and rumours of the government spying on the people through these towers, again came into the picture. On 1 February 2021, Tulsiram Loya (nephew of Vanzara) posted a message on his Woo account calling for resistance against the NTA’s 5G programme and claiming that no citizens of Arrakis would be punished for doing the same. This led to his post being removed from Woo and his account being suspended on the grounds of violation of community rules. Tulsiram Loya abandoned his online campaign and began a ‘Minar-Yatra’ across Arrakis, when the DOT and TRAB officials arrived he gave an impressionable speech.
In July 2021 the state legislature of Arrakis passed the Protection of Towers Act (POTA) that concerned violence and instability near telegraph infrastructure in Arrakis. Loya’s appeal in the Supreme court – In response to the suspension of his account and blocking of the post, Loya filed an appeal under article 226 in the high court of Arrakis alleging a violation of his right to free speech. Due to the violence that followed, the high court refused to unblock his account but began hearing the case. They did not comment on whether his post was constitutionally protected speech. Loya further appealed in the Supreme Court. Loya’s challenge to the constitutionality of the Section 124A of BPC – Loya made a speech wherein he called people to peacefully ‘Chipko’ themselves onto the towers. This led to his supporters creating unrest and violence. Subsequently he was booked for the offence of sedition under Section 124 A of BPC. Loya filed a constitutional challenge to Section 124A in the Supreme Court on April 15, inspired by Vanzara's speech in which she promised to repeal it if she is elected Prime Minister. Prajapati’s petition in the supreme court – After the enactment of POTA, the telecom maintenance costs in Arrakis rose manifolds. This prompted B.H. Prajapati, head of Bharat’s second largest telecom company to file a petition in the supreme court challenging the constitutional validity of POTA as being enacted in absence of legislative competence. The Case - The Hon’ble Supreme Court has decided to admit all 3 matters clubbing them together as Tulsiram Loya & Ors. v. The Union Government & Ors. and constituted a seven- judge bench.
QUESTIONS PRESENTED
1. WHETHER THE OFFENCE OF SEDITION AS SET OUT IN SECTION 124A OF
THE BPC IMPERMISSIBLY RESTRICTS FUNDAMENTAL RIGHTS UNDER
CONSTITUTION OF BHARAT?
2 WHETHER THE DECISION DATED 7 NOVEMBER 2021 BY THE HIGH COURT
OF ARRAKIS IS CORRECT?
3. WHETHER THE STATE LEGISLATURE OF ARRAKIS HAD THE
LEGISLATIVE COMPETENCE TO ENACT THE POTA?
SUMMARY OF ARGUMENTS
1. THE OFFENCE OF SEDITION IMPERMISSIBLY RESTRICTS
FUNDAMENTAL RIGHTS UNDER CONSTITUTION OF BHARAT.
Applying the proximity test established in the Lohia case as well as the overbreadth and vagueness test it can be easily demonstrated that the Section 124A BPC violates the right to free speech under article 19(1)(a). It can also be argued that the harsh penalties imposed under the law and the recent misuse creates a certain chilling effect and threatens the dignity of the citizens, in turn violating the right to Life and Liberty.
2. THE DECISION DATED 7 NOVEMBER 2021 BY THE HIGH COURT OF ARRAKIS IS ERRONEOUS. Woo being a private entity performing public functions, is said to be an agency of the Government and hence comes under the ambit of Article 226. Also, the alternate remedy i.e. appealing to the woo oversight board was against the principles of Natural justice as the element of ‘bias’ was present. Hence, the court should have adjudicated on this matter. Loya’s Post on Woo was constitutionally protected speech as neither did it tend to create public disorder nor caused any imminent violence.
Supreme Court in Lohia case further interjected that “ there must be proximate and reasonable nexus between the speech and the public order.”^3 Lohia case, therefore, introduces a double test – ‘proximity and proportionality’. The Supreme Court further visualized this proximity test in S.Rangarajan case arguing “The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg.’”^4 However, rather than clarifying the scope of public order the Supreme Court further went back to the reasoning applied in Ramji case, i.e. the bad tendency test to upheld sedition in the Kedar Nath Judgement.^5 Therefore, it is submitted that the court did not establish a credible nexus between speech and its role as an instrument in the cause of public disorder, despite the 1962 provision's limitations on its scope. This brings in direct contradiction with the “proximity rule” laid down in Art. 19(2) and hence violated Article 19(1)(a) of the Bharat constitution. 1.1.2 Overbreadth and Vagueness Test To determine the constitutionality of a provision the overbreadth test should be applied. In a recent case^6 the supreme court struck down Section 66A of the IT act on the grounds of it being overbroad and vague and its ability to create a chilling effect. “ Section 66A creates an offence which is vague and overbroad, and, therefore, unconstitutional under Article 19(1) (a) and not saved by Article 19(2).” Applying this reasoning to section 124 of the BPC, the exact connotation of the word “disaffection” is uncertain. This can have a very broad interpretation and is very vaguely worded. (^3) The Superintendent, Central v. Ram Manohar Lohia , (1960) AIR 633. (^4) S. Rangarajan Etc v. P. Jagjivan Ram, (1989) SCC (2) 574. (^5) Kedar Nath Singh v. State Of Bihar (1962) AIR 955. (^6) Shreya Singhal v. U.O.I , (2015) SC 1523.
1.2 Section 124A of BPC infringes the Fundamental Right to Life and Liberty enshrined under Article 21 of the Constitution – One of the fundamental rights guaranteed by Article 21 of the Bharat Constitution is the right to live with dignity. The sedition law is being misapplied in various cases^78. The convicts under this section “ shall be punished with imprisonment for life , to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine .”^9 Sedition is a criminal offence with harsh and rigorous punishment thus cementing a certain Chilling effect on the general public. Sedition charges in Bharat, on the other hand, are not limited to instances "in the interest of public order," but sometimes also defamation, deviations from accepted standards of morality and decency etc. Hence, it is argued that the right of live with dignity of the public is in question and section 124A BPC is violating that right, hence it is unconstitutional. Therefore, in light of the recent judgements, it is only reasonable for this 7 judge bench to make use of the proximity and overbreadth test as well as to keep in mind the right of individuals to live with dignity while adjudicating on this issue. Hence, it is submitted that the Section 124A should be declared unconstitutional under Article 13 of the Bharat constitution.
- THE DECISION DATED 7 NOVEMBER 2021 BY THE HIGH COURT OF ARRAKIS IS ERRONEOUS 2.1 The Suit was Maintainable under article 226 – 2.1.1 Private Body (Woo) being an agency of the Government In the International Airports Authority of India case the Supreme Court held that a private body can be considered an agency of the government and hence within the meaning of (^7) Vinod Dua v. Union of India, (2021) LL 2021 SC 266. (^8) P. Hemalatha v. The Govt. Of Andhra Pradesh AIR 1976 AP 375. (^9) INDIAN PENAL CODE, S. 124A.
Arrakis in 2019 and in 2020, if they come to build their #spytowers, they will again be met with fierce resistance. Do your part to keep Arrakis safe – our leaders cannot say this – but I have it on good authority that no citizen of Arrakis will go to jail for actions taken to stop these spy towers being built. It would be a shame if these tower-builders were to suffer any accidents. ”^15 was critical of the NTA government. This makes a case of strong bias resulting in violation of principle of natural justice_._^16 Hence, the High Court should have adjudicated on this matter. 2.2 Tulsiram Loya’s speech was constitutionally protected as it didn’t incite violence – In the Balwant Singh case, after the assassination of Indra Gandhi (Former Prime minister), slogans were chanted by the defendants such as ‘Khalistan Zindabad’. The court held that the casual raising of slogans without the intention of inciting people to cause violence and disorder doesn’t amount to Sedition.^17 Court also mentioned in the landmark Kedarnath Judgement that “ A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder”.^18 Mirroring this logic, the contents of the Loya’s Woo post were constitutionally protected as Loya specifically mentioned “ It would be a shame if these tower-builders were to suffer any accidents”^19 and his post was not followed by imminent violence. Neither did he incite people to violence nor had an intention to create public disorder. (^15) Moot proposition, Para 7. (^16) State of U.P. v. Mohammad Nooh. (1958) AIR 86. (^17) Balwant Singh And Anr. v. State Of Punjab, (1995) 1 SCR 411. (^18) See supra note 5. (^19) See supra note 14.
3. THE STATE LEGISLATURE OF ARRAKIS HAD THE LEGISLATIVE
COMPETENCE TO ENACT THE POTA
3.1 The Doctrine Of Pith and Substance – The court observed in Praful Kumar Mukherjee case that the impugned statute is examined to ascertain its 'pith and substance', or its 'true nature and character', for the purpose of determining whether it is legislation with respect to matters in this list or in that.^20 “ In characterising a law for the purpose of judicial review on legislative -competence grounds - it is relevant to look at the purpose of the statute and its effect.”^21 It is therefore submitted that if every legislature were to be declared invalid in case it touches upon the subject matter of another law then the powers of the legislature would be circumcised. Various instances like the violence by Tulisram’s supporters possessed a threat to the public order. The Protection of Towers act (POTA) passed by the Arrakis government was done in order to ensure public order, with this given objective “ The systemic violence and threats to peace concerning telegraph infrastructure have caused telecom signal towers to become hotbeds of violence and unrest. Existing legislation has proved inadequate to combat this unrest and stringent and specialised provisions are required to provide an (^20) Prafulla Kumar Mukherjee v. The Bank of Commerce, (1947) 49 BOMLR 568. (^21) Babu Rao And Ors. v. Deputy Registrar Of Co-Operative , 2005 (4) ALD 582.
3.4 Both Legislations must have been enacted under the same entry in List III to be tested for repugnancy – “ The doctrine of repugnancy or inconsistency under Art.254 of the Constitution would arise only when the Act or provision/ provisions in an Act made by the Parliament and by a State Legislature on the same matter must relate to the Concurrent List III of Seventh Schedule to the Constitution; must occupy the same field and must be repugnant to each other. 31 ” Since, the impugned law falls under entry No. 1, List II and the possible conflict, the section 4 of the Indian Telegraph Act, 1885^32 falls under Entry No. 31, List I. No question of repugnance arises as not being enacted under list III and being disparate entries. PRAYER IN LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND THE AUTHORITIES CITED, MAY THIS HON’BLE SUPREME COURT OF INDIA BE PLEASED TO ADJUDGE AND DECLARE THAT:
- SECTION 124 A OF THE BPC IS UNCONSTITUTIONAL
- THE DECISION DATED 7 NOVEMBER 2021 BY THE HIGH COURT OF ARRAKIS WAS ERRONEOUS
- THE STATE LEGISLATURE OF ARRAKIS HAD THE LEGISLATIVE COMPETENCE TO ENACT THE POTA. AND/OR PASS ANY OTHER ORDER THAT THIS HON’BLE COURT MAY BE PLEASED TO GRANT IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONCIENCE. (^31) VK Sharma v. State of Karnataka, 1990 AIR SC 2072. (^32) See supra note 26.