Team no.

_____

THE 23 ALL INDIA KERALA LAW ACADEMY MOOT COURT COMPETITION, 2012
RD

BEFORE THE HONBLE HIGH COURT OF DHANYASTHAN

AT

DHANYASTHAN

AMRITHKUMAR PETITIONER

VS.

STATE OF DHANYASTHAN RESPONDENT

W.P. (C) NO.:_______/2012

TABLE

OF CONTENTS _________________________________________________________

LIST

OF

ABBREVIATION

Sl. No. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Abbreviation A.I.R A.P. Art. Del. e.g. Etc. HC I.T. ID ILR LIC M.P. Mad. no. SC SCC SCR U.N U.P. U.S W.B. W.P.(C)

Explanation All India Reporter Andhra Pradesh Article Delhi Example Etcetra High Court Information Technology Identity Indian Law Reporter Life Insurance Corporation Madhya Pradesh Madras number Supreme Court Supreme Court Cases Supreme Court Reports United Nations Uttar Pradesh United States West Bengal Writ Petition Case

INDEX 1. STATUTES 1.1.The Constitution of India, 1950 1.2.The Indian Penal Code, 1860

OF

AUTHORITIES

1.3.The Information Technology (Amendment) Act, 2008 1.4.The Information Technology Act, 2000

Cases
, Ministry of Information and Broadcasting vs. Cricket Association of Bengal ,AIR 1995 SC 1236....19 A.K. Gopalan vs. State of Madras AIR 1950 SC 27.............................................................18 Ajay Goswami vs. Union of India, (2007)1 SCC 143...........................................................16 Arun Jaitley vs. Network Solutions Private Limited and others, 2011 Indlaw DEL 1341................19 Chintaman Rao vs. The State of Madhya Pradesh, 1950 SCR 759............................................14 Contests2Win.com India Pvt. Ltd. Vs. Cell Cast Interactive India, 2007 (109) Bom L R 747...........19 G.K. Krishnan v. State of Tamil Nadu, AIR 1975SC 538......................................................10 Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and another vs. UOI and others, 1960 SCR (2) 671...14 LIC vs. Manubhai D. Shah, (1992) 3 SCC 637...................................................................13 Narendra vs. State of State of MP, (2004)10 SCC 699.........................................................18 Oriental Gas Co., Ltd. vs. State of West Bengal, AIR 1961 Cal. 267.........................................15 Rajesh Ranjan vs. CBI (2007) 1 SCC 70...........................................................................18

Ram Krishna Dalmia v. Tendolkar ,AIR 1958 SC 538..........................................................12 Ramakrishna Dalmia v. Justice S.R.Tendolkar ,AIR 1958 SC 538...........................................10 Ranjit Singh vs State of Maharashtra, (2005) 5 SCC 294......................................................18 Ranjit Udeshi vs. State of Maharashtra, AIR 1965 SC 881....................................................16 Ranojirao Madhavrao vs. State of Madhya Pradesh, AIR 1965 MP 77.....................................14 S. Kuldip vs. State of Punjab, 56 Punj. L.R. 403.................................................................15 Samresh Bose v. Amal Mitra, AIR 1986 SC 967.................................................................15 Satyam Infoway Ltd. Vs. Sifynet Solutions Pvt. Ltd, AIR 2004 SC 3540....................................19 State of Bihar vs. K.K. Mishra.......................................................................................13 State of Madras vs. VG Row.........................................................................................13 T. Kannan v. Liberty Creations Ltd., AIR 2007 Mad. 1734....................................................15 Western UP, Electric Power v. State of U.P., AIR 1970 SC 1245............................................10

STATEMENT OF JURISDICTION

With reference to the circumstances that have been presented in the instant case, the respondent has moved the Honble Court due to the Petition for Writ filed against it by the Petitioner under Article 226 of the Indian Constitution.

The respondent most respectfully submits to the jurisdiction of the Honble Court.

STATEMENT OF FACTS 1. Dhanyasthan is a state in the Indian Union having 95% literacy. The computer literacy of the state is 52%.
2. Since 2008 the leading newspapers and news channels of the state have been publishing

several reports regarding the misuse of social networking websites, like communication of obscene material and personal harassment. 3. The annual conference of the principals of engineering colleges passed a resolution, requesting the government to take adequate measures to control the misuse of the social networking websites. 4. On 2-11-2011 Dhanyasthan Legislative assembly passed Dhanyasthan Social Networking safety bill 2011. On 4-11-2011 the Governor of the state granted assent to the bill and the Dhanyasthan Social Networking Safety Act 2011 came into force on 5-11-2011. 5. The provisions of the act restrict a person from transmitting sexually offensive communication (defined under the act) through a social networking website, to or about a person located in Dhanyasthan who is less that 18 years of age and to or about any person located in Dhanyasthan without obtaining the prior consent of that person. 6. Further, it restricts a person from transmitting any abusive communication or defamatory communication (defined under the act) through a social networking website about a person located in Dhanyasthan.
7. The Act also imposes penalties on any person who violates any of the provisions of the Act

with imprisonment and fine. 8. According to the provision of the act the government of Dhanyasthan has power to make necessary rules for the implementation of the act.
9.

On 14-12-2011 Mr. AmirthKumar, a student of Dhanya Medical College filed a writ

petition before the High Court of Dhanyasthan challenging the validity of the Dhanyasthan Social Networking Safety Act 2011 on the ground of violation of Art. 14, Art. 19(1)(a), Art. 19(1)(c) and Art. 21 of the Constitution of India.

ISSUES RAISED

I.

THE

PROVISIONS

OF

THE

DHANYASTHAN

SOCIAL

NETWORKING SAFETY ACT IS NOT IN VIOLATION OF ARTICLE 14 OF THE CONSTITUTION OF INDIA

II.

THE

PROVISIONS

OF

THE

DHANYASTHAN

SOCIAL

NETWORKING SAFETY ACT ARE NOT IN VIOLATION OF ARTICLE 19(1)(A) OF THE CONSTITUIOTN OF INDIA

III.

THE

PROVISIONS

OF

THE

DHANYASTHAN

SOCIAL

NETWORKING SAFETY ACT ARE NOT IN CONTRAVENTION OF ARTICLE 19(1)(C) OF THE CONSTITUTION OF INDIA

IV.

ARTICLE 21 GUARANTEES PERSONAL LIBERTY BUT THAT IS ACCORDING TO THE PROCEDURE ESTABLISHED BY LAW

SUMMARY OF ARGUMENTS

I.

THE PROVISION OF THE ACT IS NOT IN VIOLATION OF ARTICLE 14 OF THE CONSTITUTION OF INDIA

It is humbly submitted before the Ld. Court that the presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to the problem made manifest by experience and its discrimination are based on adequate grounds. The classification which has been made here is reasonable and in no way is violating Article 14 of the Constitution.

It is most respectfully laid before the Honble Court that the provisions of the Act are not arbitrary and that the Act is reasonable, fair and just.

II.

THE PROVISIONS OF THE ACT IS NOT IN VIOLATION OF ARTICLE 19(1) (A) OF THE CONSTITUTION OF INDIA

It is most humbly submitted before the Court that the Act passed in reasonable, fair and just as the restrictions bear a close nexus with the object in the interest of which they are imposed.

According to Article 19(2) of the Constitution of India reasonable restrictions can be imposed in order to put a bar on communication of defamatory material and if that restriction is trying to curb something which is indecent and immoral.

It is most respectfully brought before the Ld. Court that the Act imposes reasonable restrictions on Article 19(1)(a)

III.

THE PROVISIONS OF THE ACT IS NOT ARTICLE 19(1)(c) OF THE CONSTITUITON

IN CONTRAVENTION WITH

It is most humbly submitted that the restriction imposed on the people of Dhanyasthan is reasonable on the grounds that it falls within the sweep of article 19(4) of the constitution which imposes restriction on Article 19(1)(c), and it is the requirement of the society in order to maintain public order and morality of the state. Further, it also has rational nexus with the object that is to be achieved as restricting people from transmission of offensive material will control the misuse of social networking websites. The provision of the act is also neither arbitrary nor excessive as it qualifies the test of proportionality and does not impose excessive restriction as it does not restrict any person from becoming a part of the association. Hence the validity of the act cannot be challenged on the ground of violation of Article 19(1)(c).

IV.

ARTICLE 21 GUARANTEES PERSONAL LIBERTY BUT THAT IS ACCORDING TO THE PROCEDURE ESTABLISHED BY LAW

It is humbly submitted before the court that the Sate of Dhanyasthan has the power to frame laws on the subjects that are mentioned in the State list and accordingly the State of Dhanyasthan has the capability of making such a law as this. The Procedure established by law is reasonable, just and fair, more because it has been made keeping the general welfare, in mind.

BODY

OF

ARGUMENTS

1. THE PROVISION OF THE ACT IS NOT IN VIOLATION OF ARTICLE 14 OF THE CONSTITUTION OF INDIA

1.1.Presumption that the classification is reasonable

The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to the problem made manifest by experience

and its discrimination are based on adequate grounds.1 In order to sustain the presumption the court may take into consideration matters of common knowledge, matter of common report, the history of times and assume every state of facts which can be conceived as existing at the time og legislation.2 Here to sustain the constitutionality the above conditions are satisfied.3

1.2.The classification made here is reasonable and is not in violation of Article 14

It is well settled law that Article 14 forbids class legislation; however, it does not forbid reasonable classification for the purpose of legislation. Therefore, it is competent for the legislature to make reasonable classification for the purpose of legislation. The Supreme Court in Western UP, Electric Power v. State of UP4 observed that art. 14 does not operate against rational classification.

1.2.1. There is an intelligible differentia which distinguishes persons that are grouped together from others: The principle of intelligible differentia was evolved by the Supreme court in Ram Krishna Dalmia case5 where it was held that classification must be founded on these basis, namely, geographical, or according to the object or occupation or the like. In the above case the act extends to whole state of Dhanyasthan i.e. within a defined territory of the Indian union.

1.2.2. The differentia has a reasonable nexus to the object which is to be achieved: The object to be achieved here is to take adequate measures to control the misuse of social networking websites, like communication of obscene material and personal harassment, since it has been in the news in the state of Dhanyasthan. By imposing
1 2

State of Bombay v. F.N. Balsara, (1950) SC 318 (316); G.K. Krishnan v. State of Tamil Nadu, AIR 1975SC 538 Ramakrishna Dalmia v. Justice S.R.Tendolkar, AIR 1958 SC 538 3 Refer to Para 1 of the moot problem. 4 Western UP, Electric Power v. State of U.P., AIR 1970 SC 1245 5 Ramakrishna Dalmia v. Justice S.R.Tendolkar ,AIR 1958 SC 538

restriction on transmission of such material in that state about people of that same state the differentia forms a reasonable nexus to the object of the act.

1.3.The provisions of the Act are not arbitrary

The test whether an act is arbitrary or not is an important question. Here it is contended that the arbitrariness test lies outside the Article 14 and virtually replaces the right to equality itself by failing to read arbitrary in the sense of discriminatory. In the presence of the reasonable classification doctrine, bringing in the extra-Constitutional test of arbitrariness is both unnecessary and undesirable. The doctrine virtually replaces and redefines the right to equality as a new right itself, the right against arbitrariness. Here, however, by creating a new right, not only the doctrine but the right itself becomes an extra-Constitutional right. In case of Article 14, the right to equality itself disappears. According to Basu, the American interpretation of equal protection clause and the earlier Indian decisions considered that the test of violation of Article14 was the absence of reasonable classification. In Mardia case, it was also possible to reach the same decision without applying the arbitrariness test. If an extra-constitutional doctrine is sought to be brought within the legal framework, it must assist in filling some manifest void or it must lead to some substantial benefit to the legal position already existing6. When a constitutional doctrine can serve the same purpose, there is no need to bring an ambiguous extra constitutional doctrine to test the validity of state action.

See B.N. Srikrishna, Skinning a cat, (2005) 8 SCC 3, 24, Although basic structure doctrine is extraconstitutional, it may be justified on the ground that in its absence, the legislature may virtually redraft the Constitution by amending any of its provisions. If the Supreme Court had not brought this doctrine, such a situation could not have been prevented due to the void in law in this regard. This is a justifiable exercise because without it, there would have been no Constitution and no independent judiciary worth the name

1.3.1. The Act passed is just and fair according to the contemporary situation of society For deciding whether a particular decision is arbitrary or reasonable, the existing circumstances at the time of taking the decision had to be examined.7 In Ram Krishna Dalmia v. Tendolkar8 the question of validity of a statute may be based on five classes and one of the class being that the basis of classification may be gathered from the surrounding circumstances known to or brought to the court. Herein, since a long time before passing of this act there were several reports in the leading newspaper and news channel of the state, regarding the misuse of social networking websites, the state has to pass such an act in the state of Dhanyasthan for its people which are a class, defined within a fixed territory. Also, the act has been passed in the larger public interest. According to the Websters new World Dictionary, Public Interest means, the general welfare and well being; something into which the populace as a whole is at stake.9 The Constitution of India also provides for exception to the fundamental rights of article 19 which is in favour of law which imposes restriction in the interest of decency and morality. 2. THE ACT IS NOT VIOLATING ARTICLE 19(1)(A) OF THE CONSTITUTION 2.1.Article 19(2) of the Constitution of India allows the imposition of reasonable restrictions on the freedom of speech and expression guaranteed under Article 19(1) (a) It is absolutely necessary to maintain and preserve freedom of speech and expression in a democracy, but it is equally necessary to place some curbs on this freedom for the maintenance of social order. No freedom can be absolutely or completely unrestricted.10 It is rightly said that absolute freedom must not be given as that leads to the jeopardizing of freedom of some people.

2.2.The Act is reasonable, fair and just

7 8

Patna Regional Development Authority v. Rashtriya Pariyogna Nirman Nigam, AIR 1996 SC 2074 Ram Krishna Dalmia v. Tendolkar ,AIR 1958 SC 538 9 Retrieved from www.law.yourdictionary.com visited on 31-01-2012 10 MP Jain, Indian Constitutional Law, Lexis Nexis, Nagpur, 1962, p. 1104

Internet has long back emerged as an important means of telecommunication and users of the Internet have the freedom of speech and expression. But it has been held by the Supreme Court in LIC vs. Manubhai D. Shah, Every citizen has a right to air his views through the printing and/or electronic media subject to permissible restrictions under Article 19(2).11 Article 19(2) imposes reasonable restrictions and rightly enough, reasonable restrictions have been put on the use of the social networking sites by the Dhanyasthan Social Networking Safety Act, 2011. 2.2.1. The Act is reasonable, fair and just Reasonableness of a statutory provision cannot be determined by the application of a set formula: it must be determined on a review of the procedural and substantive provisions of the statute keeping in mind the nature of the right intended to be infringed, underlying purpose of the restriction to be contemplated to be imposed, gravity of the evil intended to be remedied thereby, object intended to be achieved by the imposition of the restriction and other relevant circumstances.12 The underlying purpose of the restriction is to put a bar on the abusive, defamatory, sexually offensive communication. The Act does not aim at banning the use of social networking sites in Dhanyasthan. It puts a partial restriction in the sense that a full stop needs to be put to a few things and that will be for the greater good of the society. Out of the 52% of the people of Dhanyasthan who are computer literate, a restriction has not been put on all. It has been put only on those persons who jeopardize the freedom of others. The Act puts a restriction on the transmission of sexually offensive communication to persons below the age of 18 years.13 This is fair, just and reasonable because even minors access the social networking sites and communications such as these will leave a heavy impact on their minds

11 12

LIC vs. Manubhai D. Shah, (1992) 3 SCC 637 State of Bihar vs. K.K. Mishra, AIR 1971 SC 1667; State of Madras vs. VG Row, AIR 1952 SC 196; Chintamon Rao vs. State of MP, AIR 1951 SC 196 13 Sec. 3 of the Dhanyasthan Social Networking Safety Act, 2011 holds out, No person shall transmit a sexually offensive communication through a social networking website to or about a person located in Dhanyasthan who is less than 18 years of age.

The Act also bars defamation which is punishable under Section 500 of the IPC.14 Defamation humiliates and demeans a person, whether what has been said about him is true or not. In order to stop that, the step taken by the State of Dhanyasthan is justified. The Dhanyasthan Social Networking Safety Act, 2011 imposes reasonable restrictions according to Article 19(2) and hence cannot and should not be scrapped. 2.2.2. The restrictions bear a close nexus with the object in the interest of the restriction imposed The restrictions which have been put, do bear a very close nexus with the object in the interest of which they are imposed. The Act has not put a complete restriction on the use of social networking sites. It has put a partial restriction on the use of social networking sites so as to put a bar on such use turning into sources of disruption of public order or resulting into decency and immorality. It has also put a bar on defamatory materials and sexually offensive communication. The object is to protect the interests of all and not only of a small group of people. The main purpose of the Act is to control the misuse of social networking websites and put a bar on the communication of obscene material and personal harassment. Thus the Government of Dhanyasthan has put a restriction only on abusive, defamatory and sexually offensive communication. Had the Government been arbitrary in its decision, it would have banned the very use of social networking sites in Dhanyasthan. In Chintaman Rao vs. State of Madhya Pradesh15, it was in held that the phrase reasonable restriction connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The same has been upheld by the M.P. High Court in Ranojirao Madhavrao vs. State of Madhya Pradesh16.

14

Sec. 5 of the Dhanyasthan Social Networking Safety Act,2011 says, No person shall transmit any abusive communication of defamatory communication through a social networking website about a person located in Dhanyasthan 15 Chintaman Rao vs. The State of Madhya Pradesh, 1950 SCR 759 16 Ranojirao Madhavrao vs. State of Madhya Pradesh, AIR 1965 MP 77; Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and another vs. UOI and others, 1960 SCR (2) 671

Reasonable restrictions mean restrictions in the public interest17 and cannot be determined from point of view of individual persons.18 The State of Dhanyasthan has imposed reasonable restrictions keeping in mind the general welfare of the people. 2.3.The imposition of the restriction is valid if it is because of the abusive and defamatory material communicated over the social networking sites

In a democratic country, people can misuse their free speech rights to post inaccurate and harmful information on the internet about someones life which can cause devastating harm. Defamation under IPC has been defined as Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. It has been defined as an offence and even freedom of press does not permit to publish any defamatory matter. In Samresh Bose v. Amal Mitra19 it was held that article 19 requires that there should be a balance between freedom of speech and restrictions imposed on it. As we have seen that various reports regarding the misuse of social networking websites by communication of obscene material and personal harassment was taking place in the state of Dhanyasthan which disturbed the public order and disturbed decency and morality of the state. Hence, the possible harm justifies and requires restrictions to be imposed on it. In T. Kannan v. Liberty Creations ltd.20 has said that there should be substantial allowance of freedom thus, there are certain exceptional case in the definition of defamation which does not fall under the section 500 of the IPC.

17 18

S. Kuldip vs. State of Punjab, 56 Punj. L.R. 403 Oriental Gas Co., Ltd. vs. State of West Bengal, AIR 1961 Cal. 267 19 Samresh Bose v. Amal Mitra, AIR 1986 SC 967 20 T. Kannan v. Liberty Creations Ltd., AIR 2007 Mad. 1734

2.4.The imposition of restriction is valid if it tries to curb something which is indecent and immoral Article 19(2) of the Constitution of India provides for reasonable restrictions to be put on the freedom of speech and expression such that such freedom doesnt result in something indecent and immoral being done. The meaning of the word decency varies according to age, culture and alike things of the audience. In common law, this word is used in the sense of obscenity and conveys the idea of offending against the recognised standards of property21. Decency is defined as propriety of action, speech, dress etc.22 Decency is becomingness and it is what is not indecent, immodest or obscene.23 The term obscenity is not been defined either in the Indian Constitution or in other Act of the Parliament. The said term is most often used in a legal context to describe expression (words, images, actions) that offend the prevalent sexual morality.24 Obscenity which is offensive to modesty or decency is not within constitutional protection given to free speech or expression because article dealing with the right itself excludes it.25 Internet is a modern means of communication. Transmitting and publishing of obscene material over the internet constitutes cyber crime.26 The test of obscenity is whether the tendency of the matter charged as obscene is to deprive and corrupt those minds which are open to such immoral influences, and into whose hands a publication of this sort is to fall.27 Communication of obscene material does not only include sexually offensive communication. There are various types of users who use the social networking sites. The matter which is being communicated, if it falls in the hands of a minor, his mind
21 22

Durga Das Basu, Commentary on the Constitution of India,,,p.125 Black Law Dictionary, 6th Edition., p. 405 23 Kagzi, The Constitution of India, 6th Edn., p. 1126 24 Ajay Goswami vs. Union of India, (2007)1 SCC 143 25 Brajesh Rajak, Pornography Law, Universal Law Publishers, New Delhi, 2011, p. 96 26 Mubashir Sharshar, Cyber crimes and effectiveness of law in India to protect them. Retrieved from http://works.bepress.com/cgi/viewcontent.cgi?article=1013 visited on 30-01-2011 27 Ranjit Udeshi vs. State of Maharashtra, AIR 1965 SC 881

set up will be deeply affected. Similarly, there may be certain groups of people who may be offended by certain obscene material. The Act passed by the Dhanyasthan State Government rightly tries to put a restriction on the cyber crime and also reasonably tries to bar it in order to uphold the decency and morality of the people.

2.5.The Act passed rightly tries to put a restriction on the cyber crime and also reasonably tries to bar it in order to uphold decency and morality of the people 2.5.1. The Act of Dhanyasthan is putting a restriction on the communication on the basis of obscene material as defined in the Information Technology Act, 2000

The Information Technology Act, 2000 under Section 67, makes transmission and publication of obscene materials a punishable offence. Section 90 of the same Act gives power to the State Governments to make rules in order to carry out the provisions of the Act. The Air Force Bal Bharti School Case demonstrated how Section 67 of the Information Technology Act, 2000 could be applicable for obscene content created by a school going boy. The Act of Dhanyasthan, through its provisions, has put a bar on obscenity and harassment, and this step is also protected by the Information Technology Act, 2000. 3. THE PROVISIONS OF THE ACT ARE NOT IN CONTRAVENTION OF ARTICLE 19(1)(C) OF THE CONSTITUTION At the most basic level, linguistically, networks and associations are close synonyms. They both depend on links and relationships. If there is a tool for lots and lots of networking, then it also is a tool for how we do lots and lots of associations. In this respect, social networking websites are simply the latest and strongest associational tools for online group activity, building on email and the Web itself. 28 Article 19(1)(c) guarantees to the citizen of India to form associations or unions.
28

Retrieved from http://www.peterswire.net/ftc%20feb%202011.pdf on 23-1-2012

Under art.19(4), reasonable restriction in the interest of public order or morality or sovereignty and intergrity of India may be imposed on this right by the law. 3.1. The restriction imposed are valid as it qualifies the double test.

In State of Madras v. V.G.Row29, the Supreme Court observed that, it is important in this context that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases. Therefore, there is a double test to adjudge the validity of a restriction: (a) whether it is reasonable (b) whether it is for the purpose mentioned in the clause under which the restriction is being imposed. 3.1.1. The restriction imposed is reasonable because it falls within the scope of clause (2) to(6) of article 19.: Under art.19(4), reasonable restriction in the interest of public order or morality or sovereignty and intergrity of India may be imposed on this right by the law. For adjudging reasonableness of a restriction, the court consider such factor as: The nature of the right infringed, the underlying purpose of the restriction imposed, the extent and the evil sought to be remedied thereby, the prevailing conditions at the time, all these considerations enter into the judicial verdict.30 The purpose of the restriction imposed here is in the interest of public order and morality as the act is restricting the people of Dhanyasthan from communicating abusive or defamatory statements and sexually offensive communication31 which hurts any persons morality and can disturb public order. 3.1.2. There was a requirement for imposition of restriction in the society: The standard of reasonableness is to be judged with due reference to the subject matter of the legislation in question, economic and social conditions in India and surrounding conditions. The Supreme Court has emphasized in Pathumma32 that the Court should keep in mind the social setting of a country so as to show a complete
29 30

State of Madras v. V.G. Row, AIR 1952 SC 196 Pathumma v. State of kerala, AIR 1978 SC 771; State of Madras v. V.G. Row, AIR 1952 SC 196. 31 Refer to provision 3,4, and 5 of the problem. 32 Pathumma vs. State of Kerala, AIR 1978 SC 771

consciousness and deep awareness of the growing requirements of the society, the burning problem of the day and the complex issues facing the people which the legislature in its wisdom through beneficial legislation seek to solve restriction is meant to promote social welfare satisfying need prevailing social values. The restriction imposed here is to maintain decency and morality of the society. 3.1.3. Any restriction which has a effect of promoting a directive principle can be presumed to be a reasonable restriction in public interest: The Directive Principle Of State Policy are also relevant in considering whether a restriction on a fundamental right is reasonable or not33. So far the concept of public interest must receive its orientation from Directive principle. Article 38(1) directs the state to strive to promote the welfare of the people by securing and protecting as effectively as it may as a social order in which justice, social, economic and political shall inform all the institution of national life. 34 Here the state strives to promote the welfare of the people by protecting social order which was hindered by doing indecent and immoral activities. 3.2. The restriction is valid as it has a rational relation with the grounds for

which the legislature is entitled to impose restrictions A restriction to be valid must have a direct and proximate nexus, or rational relation with the object which the legislature seeks to achieve and must not be in excess of the object.35 It is the direct, inevitable and the real not the remote effect of the legislation on the fundamental right which is to be considered 36, subject to the rider that the legislature cannot indirectly take away or abridges a fundamental right when it cannot do so directly.37 Here, the restriction imposed on people is not restraining them to form an association or to be a member of the association, the Act is just restricting certain activities which falls under the sweep of article 19(4) of the constitution of India. 3.3. The restriction imposed on freedom is not arbitrary or excessive.

33 34

Kasturi lal Lakshmi Reddy v. State of Jammu & Kashmir, AIR 1980 SC 1992 This Article is included in Directive Principles of State policy. 35 Arunachala Nadar v. State of Madras, AIR 1958 SC 300 36 Express Newspapers v. Union of India, AIR 1958 SC 578; Bachan Singh v. State of Punjab, AIR 1980SC 898. 37 In re Kerala Education bill, AIR 1958 SC 956

The restriction imposed on freedom imposed is not arbitrary or excessive i.e. beyond what is required in the situation in the interest of the public. A restriction should strike a proper balance between the freedom guaranteed by of the clause and the social control, so that the freedom is limited only to the extent necessary to protect society of which a citizen is a part38. 3.3.1. The test of proportionality: the restriction imposed here are proportionate to the situation i.e. it maintains a proper balance between the fundamental right guaranteed and the restriction imposed thereon39 and is not beyond what is required to achieve the object of the legislation. In the case the legislature imposes restriction only on the subject matter which is mentioned in Art. 19(4) since there was misuse of social networking website by communication of obscene material and personal harassment and was against the public order and morality. The restriction imposed is not excessive also because it just restrict the member from transmitting those material which causes obscenity and are immoral and neither restricting them to either be a member of the group nor declaring the association to be unconstitutional.

4. ARTICLE

21

GUARANTEES

PERSONAL

LIBERTIES

BUT

THAT

IS

ACCORDING TO THE PROCEDURE ESTABLISHED BY LAW Personal liberties may be compendiously summed up as the right to do as one pleases within the law, because liberty is not an unbridled licence.40 It is what Edmund Burke called as regulated freedom.41

38 39

Om Kumar v. Union of India, AIR 2000SC 3689 Ibid. 40 Montesquie in Book III Chapter III, of his Spirit of the Laws, said, In Governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and is being constrained to do what we ought not to will. We must have continually present to our minds the difference between independence and liberty. Liberty is the right of doing whatever the laws permit, and if a citizen could do what they forbid, he would no longer be possessed of liberty, because his fellow citizens would enjoy the same power 41 Dr. L. M. Singhvi, Constitution of India, Modern Law Publications, New Delhi, 1984-85, p. 948

Similarly, according to the observations of Webster42, Liberty exists in proportion to wholesome restraint; the more restraint on others to keep-off from us, the more liberty we have. Article 21 gives to the people of India the right to personal liberty but that is subject to the procedure established by law. It was held in Rajesh Ranjan vs. CBI, While it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance as to be struck between the right to individual liberty and the interest of the society. No right can be absolute, and reasonable restrictions can be placed on them.43 As the Supreme Court held in the case of Gopalan vs. State of Madras44, There cannot be any such thing as absolute or uncontrolled liberty wholly free from restraint, for that would lead to anarchy and disorder This is a very serious and delicate issue and must be addressed in such a manner. Thus, when any action is taken by any public authority, that action must be tested by the application of two standards: the action must be within the scope of the authority conferred by law and secondly, it must be reasonable.45 4.1.The State of Dhanyasthan has adequate authority to frame the Dhanyasthan Social Networking Act, 2011 4.1.1. A state has been given the power to make laws regarding those subjects which are mentioned in the State List Article 246 and the Seventh Schedule of the Constitution of India make it clear that that the subjects have been divided into three categories. Entry 13 of List II includes, Communications that is to say, roads, bridges, ferries and other means of communication not specified in List I; municipal tramways, roadways; inland waterways and traffic thereon subject to the provisions of List I and List II with regard to the waterways; vehicles, other than mechanically propelled vehicles.
42

Webster in his works, Vol. II, p.393 quoted In A.K. Gopalan vs. State of Madras AIR 1950 SC 27: 1950 SCR 88: 1950 SCJ 174: 1950 Cr LJ 1383 43 Rajesh Ranjan vs. CBI (2007) 1 SCC 70; Ranjit Singh vs State of Maharashtra, (2005) 5 SCC 294; Narendra vs. State of State of MP, (2004)10 SCC 699 44 A.K. Gopalan vs. State of Madras AIR 1950 SC 27 45 Dr. L.M. Singhvi, Constitution of India, Modern Law Publications, New Delhi, 1984-85, p. 948

It is noteworthy to mention here that in the other means of communication, social networking sites are also included. The Supreme Court of India has recognised internet as a means of communication.46 In various cases, it has been observed b the Supreme Court that the internet has developed from a mere means of communication to a mode of carrying on commercial activity, which means that the internet has been already recognised by the Supreme Court as a means of communication.

In the case of Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal47, the Supreme Court agreed that the right to communicate electronic, audio-visual advertisement, movie or speech. Thus it can be seen that states can make laws on internet, and hence social networking sites, as it s a means of communication and that is exactly what has been done by the State of Dhanyasthan. It has passed an act, the subject of which is mentioned in the State List and this Act stands, as the State of Dhanyasthan has the capability of framing and passing such laws. 4.2.The procedure established by law should be fair, just and reasonable The right of life and personal liberty protected by Article 21 is not an absolute right. It is a right circumscribed by the possibility or risk of being lost according to the procedure established by law.48 The procedure in Article 21 must be right, just and fair and not arbitrary, fanciful, oppressive, otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.49 The Dhanyasthan Social Networking Safety Act, 2011 imposes certain restrictions on the residents of Dhanyasthan and these restrictions are absolutely fair, just and reasonable.

46

See Satyam Infoway Ltd. Vs. Sifynet Solutions Pvt. Ltd, AIR 2004 SC 3540, Arun Jaitley vs. Network Solutions Private Limited and others, 2011 Indlaw DEL 1341, Contests2Win.com India Pvt. Ltd. Vs. Cell Cast Interactive India, 2007 (109) Bom L R 747 47 Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal ,AIR 1995 SC 1236 48 A.K. Gopalan vs. State of Madras, AIR 1950 SC 27 49 Per Bhagwati, J., at 624

Sec. 2(a) of the Act aims to put a bar on the communication of abusive material 50. Abusive material not only relates to material which is sexually offensive. It can also relate to communication which hurt communal and religious feelings because of which there might be disruption of public order in the state. Sec. 2(b) of the Act tries to restrict defamation51. By restricting ones liberty to defame another, the court enhances the other persons liberty to lead an easy and dignified life. Sec. 3 and Sec. 4 of the Dhanyasthan Social Networking Safety Act, 2011 very reasonably put a bar on the sexually offensive communication and also make it a punishable offence.52 The State of Dhanyasthan has tried to bring about law and order with this regard to Sec. 67 and Sec. 90 of the I.T. Act and has hence put a bar on sexually offensive communication. The Supreme Court also held in the case of Chintamoni Rao vs. MP53, that a restriction would be regarded as reasonable when there is a proper balance between the rights of the individual and the claims of the society. The court further held that the restriction must not be greater than the mischief to be prevented The Indian society claims morality and decency and that is exactly what has been guaranteed to the resident of Dhanyasthan by the introduction of this legislation and by limiting the rights of certain individuals in this case. In Inderjit Barua vs. Assam54, the Delhi High Court observed: What is therefore just and, fair and reasonable procedure established by reasonable law as opposed to procedure which can be called arbitrary or discriminatory is a question to be answered in the facts and circumstances of a case. If to save hundreds of lives, one life is put in peril or if a law protects and ensures the greater social interest, then such a law will be regarded as a wholesome and beneficial law although it may infringe the liberty of some individual: It will ensure for the liberty of the greater number of the members of society at the cost of one or few.
50

Such communication which a reasonable person would believe is intended to threaten, intimidate or harass another person. 51 Section 499 of IPC defines defamation as Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, to defame that person. 52 Where Section 3 reads, No person shall transmit a sexually offensive communication through a social networking site to or about a person located in Dhanyasthan who is less than 18 years of age. And Section 4 reads as, No person shall transmit a sexually offensive communication through a social networking website to or about any person located in Dhanyasthan without obtaining the prior consent of that person. 53 Chintamoni Rao vs. MP, 1950 SCR 759 54 Inderjit Barua vs. Assam ,AIR 1983 Del 513

The restrictions imposed are reasonable, just and fair and The Dhanyasthan Social Networking Safety Act, 2011 cannot be declared unconstitutional.

PRAYER

FOR

RELIEF

Wherefore in the light of above facts stated, arguments advanced and authorities cited, the Petitioner prays before the Honble Court to be graciously pleased to declare: I. That the Act is not violating the Right to Equality of the residents of Dhanyasthan II. That the Act is imposing reasonable restrictions on the freedom of speech and expression of the people of Dhanyasthan III. That the Act is in not in contravention of the freedom of association of the people of Dhanyasthan IV. That the procedure established by law is reasonable, fair and jsut and is thus not infringing on the right of personal liberty of the residents of Dhanyasthan V. That the Dhanyasthan Social Networking Safety Act, 2011 as constitutional

The Court may also be pleased to pass any other order in the light of justice, equity and good conscience. And for this act of kindness of your Lordship, the Petitioner as in duty bound shall ever pray.

All of which is respectfully submitted.

At: Dhanyasthan Date: X February, 2012

Counsels on behalf of Respondents X___________________