TC - 06

B. M. S. COLLEGE OF LAW
INTER-CLASS MOOT COURT COMPETITION, 2023

27TH AND 28TH FEBRUARY

BEFORE THE HON’BLE SUPREME COURT OF SAKINADA

MR. JAKE PERALTA .……………………. (PETITIONER)

VERSUS

UNION OF SAKINADA ……………………… (RESPONDENT)

PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF SAKINADA

WRIT PETITION NO.___/2023

MEMORANDUM on behalf of the PETITIONER

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS .................................................................................................. 3

INDEX OF AUTHORITIES ................................................................................................... 5

STATUTES/RULES/ORDINANCES REFERRED............................................................................................. 5

LIST OF BOOKS ................................................................................................................................................. 5

DYNAMIC LINKS ............................................................................................................................................... 5

LIST OF CASES ................................................................................................................................................................ 6

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

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

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

I. WHETHER THE SUPREME COURT HAS JURISDICTION TO ENTERTAIN THE WRIT
PETITION IN VIEW OF ARTICLE 32 OF THE CONSTITUTION? ............................................................ 10

II. WHETHER THE GOVERNMENT CAN CLAIM EXEMPTION FROM PRODUCING ALL OF THE
RESTRICTION ORDERS? ............................................................................................................................................ 10

III. WHETHER THE RESTRICTIONS AFFECTED THE FREEDOM OF MOVEMENT, FREEDOM OF

SPEECH AND EXPRESSION? ......................................................................................................................... 10

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

ARGUMENTS ADVANCED ................................................................................................ 12

PRAYER ................................................................................................................................ 17
 LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

& AND

§ SECTION

¶ PARA

AIR ALL INDIA REPORTER

Anr. ANOTHER

A. ARTICLE

Cl. CLAUSE

CONST. CONSTITUTION

Cr. LJ CRIMINAL LAW JOURNAL

Ed. EDITION

Govt. GOVERNMENT

HC HIGH COURT
i.e., THAT IS

Id. IBIDEM

Ltd. LIMITED

NATIONAL GOVERNMENTAL
NGO
ORGANISATION
No. NUMBER

Ors. OTHERS

SC SUPREME COURT

SCC SUPREME COURT CASES

SCJ SUPREME COURT JOURNAL

SCR SUPREME COURT REPORT

UOI UNION OF INDIA

v. VERSUS

WP WRIT PETITION
 INDEX OF AUTHORITIES

STATUTES/RULES/ORDINANCES REFERRED:

1) Constitution of India, 1950

2) Essential Commodities Act, 1955

3) Supreme Court Rules, 2013

4) Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules,
2017- Section: R. 2(1), R. 2(2)
5) Telegraph Act,1885; – Section: 5(2)
6) Information Technology Act, 2000; – Section: 69-A
7) Criminal Procedure Code, 1973. – Section: 144
LIST OF BOOKS

1) V.N. Shukla, Indian Constitution, 13th edition, EBC explorer

2) MP Jain, Indian Constitutional Law, 8th edition, LexisNexis Butterworths, Wadhwa,

Nagpur
3) H.M. Seervai, Constitutional Law of India, 4th edition, Universal Book Traders

4) 9 Durga Das Basu, Commentary on The Constitution of India 9373, Justice S Subramani
ed., 9th ed.

DYNAMIC LINKS

1) www.scconline.com
2) www.scobserver.com
3) www.manupatra.com
4) www.livelaw.com
5) https://legislative.gov.in/
6) www.barandbench.com
7) www.ipleaders.com
LIST OF CASES

Sl. No. CASE LAWS CITATIONS

Anuradha Bhasin v Union of India AIR 2020 SC 1308

1.
Foundation of Media Professionals v.
2. Union Territory of J&K 2020 SCC 453
Madhu Limaye and Anr v. Ved Murti and (1970) 3 SCC 746
3. Ors.
Ghulam Nabi Azad Vs Union of India
4. 2019 SCC Online SC
1726
Ram Jethmalani Vs Union of India (2011) 8 SCC 1
5.
Shreya Singhal Vs Union of India (2015) 5 SCC 1
6.

Narendra Kumar Vs Union of India (1960) 2 SCR 375

7.
Minerva Mills Limited Vs Union of India (1980) 2 SCC 581
8.
Bennet Coleman & Company Vs (1972) 2 SCC 788
9. Union of India
K.S. Puttaswamy (Privacy-9J) Vs Union
10. of India (2017) 10 SCC 1
 STATEMENT OF JURISDICTION

The Counsel of Petitioner humbly and respectfully submits before this Hon’ble Supreme Court
of Sakinada has the jurisdiction to entertain the instant writ petition filed under Article 32 of the
Constitution of Sakinada.

Article 32 of the Sakinada Constitution states

“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”
 B. M. S. COLLEGE OF LAW – INTER - CLASS MOOT COURT COMPETITION, 2023

STATEMENT OF FACTS
I. THE UNION OF SAKINADA AND K ALAKSHETRA
Sakinada is second largest country and highest in terms of population. The neighboring state was
Pakinada which was partitioned in mid 90s. Sakinada became independent in 1947. In 1952,
Sakinada enacted its own Constitution where it gave the citizens their own fundamental rights.
Today, Sakinada is the 3rd highest country in GDP performance and a hub for science and
technology. Kalakshetra is a state in the south of Sakinada which has beautiful architecture and
resources. The people of Kalakshetra are known as indigenous people as they occupy the highest
positions when it comes to science and technology in both Sakinada and abroad. Through the mode
of internet, the people of Kalakshetra are able to develop a new kind of technology which will aid
people all over the world to fight depression.

II. THE FIGHT OF KALAKSHETRA

Kalakshetra is always prone to terror attacks, infiltration and instability within the state since it shares
its borders with Pakinada. Pakinada claims that the territory of Kalakshetra belongs to them and want
this to get so to get global attention. Kalakshetra was given a special status under the Constitution of
Sakinada since inception owing to the peculiar nature of the State. In 2019 the government of
Sakinada revoked the special status of Kalakshetra. The government of Sakinada is aware of the
problem in Kalakshetra and thereby time and again impose restriction on the fundamental rights of
the people of Kalakshetra, through government orders.

III. THE INTERNET SHUTDOWN

Internet shutdown is seen as the most common restriction and has affected the livelihood of many
residents. On 10-1-23, the Civil Secretariat, Home Department and Government of Kalakshetra
advised the tourists to vacate the state under the interest of safety and security. And on 14-1-23,
mobile phones, internet serviced and landlines connectivity were discontinued indefinitely with the
pretext of maintaining peace and stability and protection of national security. This restriction has
made a negative effect on the indigenous people of Kalakshetra and likewise affected their freedom
of speech and expression of the journalists.

MEMORANDUM on behalf of the PETITIONER Page 8

 B. M. S. COLLEGE OF LAW – INTER - CLASS MOOT COURT COMPETITION, 2023

IV. THE RESPONSE OF HOME MINISTER

The Home Minister made a statement that the restriction at Kalakshetra was with the view of
protecting national security, since the terror groups highly rely on internet to disrupt peace and order
and stated that “better to be free than secure or be secure than free”

V. THE JOURNALIST FILES A PETITION

Affected by the governments order, Mr. Jake Peralta, a top journalist files a petition at the Supreme
Court of Sakinada in view that the order restricting internet service is violating the Temporary
Suspension of Telecom Services (Public Emergency or Public Services) Rules, 2017. Filing the
petition, he seeks issuance of an appropriate writ to set aside all the orders and reinstate all modes of
communication in Kalakshetra

MEMORANDUM on behalf of the PETITIONER Page 9

 B. M. S. COLLEGE OF LAW – INTER - CLASS MOOT COURT COMPETITION, 2023

ISSUES RAISED

I. WHETHER THE S U P R E M E COURT HAS JURISDICTION TO

ENTERTAIN THEWRIT PETITION IN VIEW OF ARTICLE 32 OF THE
CONSTITUTION?

 Under what circumstances, Freedom of speech including freedom of

expression on online by way of using internet service would be restricted by
Union of Saakinada?

II. WHETHER T H E G O V E R N M E N T C A N C L A I M E X E M P T I O N
FROM PRODUCING ALL OF THE RESTRICTION ORDERS?

III. WHETHER THE RESTRICTIONS AFFECT FREEDOM OF MOVEMENT,

FREEDOM OF SPEECH AND EXPRESSION?

MEMORANDUM on behalf of the PETITIONER Page 10

 B. M. S. COLLEGE OF LAW – INTER - CLASS MOOT COURT COMPETITION, 2023

SUMMARY OF ARGUMENTS
I. WHETHER THE SUPREME COURT HAS JURISDICTION TO ENTERTAIN
THEWRIT PETITION IN VIEW OF ARTICLE 32 OF THE CONSTITUTION?

It is humbly submitted before this Hon’ble Supreme Court of Sakinada that the Supreme
Court of Sakinada has jurisdiction to entertain the writ petition in view of Article 32 ofthe
Constitution

II. WHETHER T H E G O V E R N M E N T C A N C L A I M E X E M P T I O N
FROM PRODUCING ALL OF THE RESTRICTION ORDERS?

It is humbly submitted before this Hon’ble Supreme Court that the State had to first produce the
order placing restricting before the Supreme Court of Sakinada. The court should also take proactive
orders in producing before court unless there is special privilege or countervailing public interest. Hence,
the court cannot claim exemption from producing all of the restriction orders.

III. WHETHER THE RESTRICTIONS AFFECT FREEDOM OF MOVEMENT,

FREEDOM OF SPEECH AND EXPRESSION?
It is humbly submitted before the Hon’ble Supreme Court that in a recent case the Court
held that freedom of expression through the internet is one of the “integral parts” of Article
19(1)(a). So, we can say that the restrictions have affected the freedom of movement and
freedom of speech and expression.

MEMORANDUM on behalf of the PETITIONER Page 11

 B. M. S. COLLEGE OF LAW – INTER - CLASS MOOT COURT COMPETITION, 2023

ARGUMENTS ADVANCED

1. WHETHER THE SUPREME COURT HAS JURISDICTION TO ENTERTAIN

THEWRIT PETITION IN VIEW OF ARTICLE 32 OF THE CONSTITUTION?

It is humbly submitted before this Hon’ble Supreme Court of Sakinada that the Supreme
Court of Sakinada has jurisdiction to entertain the writ petition in view of Article 32 of the
Constitution because of the following contentions:

Article 19 of the Indian Constitution, given fundamental rights to its citizens. Article 19 (a)
permits Freedom of speech and expression.

Article 19 (2) imposed certain reasonable restriction in case of freedom of speech and
expression.

As such Hon’ble Supreme court Bhasin v. Union of India1, it has held that the Union of
India could be imposed restrictions on suspension of internet service in interest of National
Security.

But such restrictions should be temporary and for limited period. This issue was aroused
before Hon’ble Supreme Court when the Sakinada Government had withdrawn the special
status given to Kalakshetra by withdrawing Article 370.

Before imposing the restrictions, including indefinite suspension of internet services the
Government of Sakinada, found that in case of withdrawal of special status of Kalakshetra.

There was a possibility of communal rights on minority people by the majority people of
the instigation of the neighboring state Pakinada. Therefore, Union of Sakinada, imposed
such indefinite restrictions which is contrary to Article 19 (2) of Sakinada Constitution.

Though the constitution permits Sakinada to impose restrictions such as online freedom of
speech and expression in the interest of security of the nation.

1
Anuradha Bhasin Vs Union of India, (2020) 3 SCC 637
MEMORANDUM on behalf of the PETITIONER Page 12
 B. M. S. COLLEGE OF LAW – INTER - CLASS MOOT COURT COMPETITION, 2023
But such restrictions could not be for indefinite period and subject to judicial review.
According to the Hon’ble Court, issued a direction to the Union of Sakinada to review its
order imposing indefinite suspension of internet and upheld the fundamental rights of
freedom of speech and expression guaranteed under Constitution of Sakinada.

MEMORANDUM on behalf of the PETITIONER Page 13

 B. M. S. COLLEGE OF LAW – INTER - CLASS MOOT COURT COMPETITION, 2023

2. WHETHER T H E G O V E R N M E N T C A N C L A I M E X E M P T I O N
FROM PRODUCING ALL OF THE RESTRICTION ORDERS?

It is hu mbly su bmit t ed befo r e t he Ho n’ble Supr eme Co urt t hat

the State had to first produce the order placing restricting before the Supreme Court of Sakinada. The
court should also take proactive orders in producing before court unless there is special privilege or
countervailing public interest. Hence, the court cannot claim exemption from producing all of the
restriction orders. Considering the judgment in the case, Bhasin v. union of India2, the Court held that
state had to produce the order placing restrictions before the court. It had cited difficulty in determining
the legality of restriction imposed when the state refused to produce the order before the court. On the
obligation of the state to disclose information, especially in writ petition.

The judgment passed in Ram Jethmalani v. Union of India3, that in order to be Article 32 meaningful,
Article 19 can be interpreted in such a way where right to information is one of the important facets of
freedom of speech and expression. “a democracy, which is sworn to transparency and accountability,
necessarily mandates the production of orders as it is the right of an individual to know.” This obliges
the state to protect the fundamental rights and does not away them in a cavalier manner.

The Government can impose restriction as long as they are sanctioned by law, reasonable in nature and
for a legitimate purpose, the court further emphasized on the term ‘reasonable’ which is limited to as
interests of the sovereignty, integrity, security, friendly relations with the foreign States, public order,
decency or morality or contempt of Court, defamation or incitement to an offence.

The State cannot pass any law in a clandestine manner on mere apprehension of danger. James Madison
stated “a popular government, without popular information, or the means of acquiring it, is but a
prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern ignorance and a people
who mean to be their own Governors must arm themselves with the power which knowledge gives”.
The court should take proactive orders in producing before court unless there is special privilege or
countervailing public interest. Initially the state privilege but later on produced some orders citing some
difficulty in producing all the orders. Hence, this cannot be a valid ground or reason to refuse to produce
the order.

2
Anuradha Bhasin Vs Union of India, (2020) 3 SCC 637
3
Ram Jethmalani Vs Union of India, (2011) 8 SCC 1
MEMORANDUM on behalf of the PETITIONER Page 14
 B. M. S. COLLEGE OF LAW – INTER - CLASS MOOT COURT COMPETITION, 2023

3. WHETHER THE RESTRICTIONS AFFECT FREEDOM OF

MOVEMENT, FREEDOM OF SPEECH AND EXPRESSION ?
It is humbly submitted before the Hon’ble Supreme Court that in a recent case the Court
held that freedom of expression through the internet is one of the “integral parts” of Article
19(1)(a). So, we can say that the restrictions have affected the freedom of movement and
freedom of speech and expression. Considering the judgment in the case, Bhasin v. union
of India, the Court held that freedom of expression through the internet is one of the
“integral parts” of Art.19(1)(a). The court has emphasized on its earlier judgments in which
it has protected new medium of expression.

In Indian Express v. Union of India 4, that freedom of print medium is a fundamental right
under Article 19(1)(a).

In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana 5, it was held that it is the
right of citizens to exhibit films which is now protected under Article 19(1)(a).

In these Catena of judgments, we held freedom in speech as a fundamental right through

various means of expression. Nowadays, the internet is one of the major means to
disseminate information and therefore, freedom of speech and expression through the
internet is a fundamental right under Article 19(1)(a) and restrictions can be put in
accordance with Article 19(2).

The Court in various judgments held that restriction also includes complete restriction but
in appropriate cases. Again, considering the judgement in the case, Bhasin v. union of
India6, the Court discussed the U.S. First Amendment to the present day that speech that
incites violence does not come from freedom of speech. During U.S. civil war Clement L.
Vallandigham who had called war ‘wicked, cruel and unnecessary’.

4
Indian Express v. Union of India 1985 SCR (2) 287
5
Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana , 1988 AIR 1642, 1988 SCR Supl. (1) 486
6
Anuradha Bhasin Vs Union of India, (2020) 3 SCC 637
MEMORANDUM on behalf of the PETITIONER Page 15
 B. M. S. COLLEGE OF LAW – INTER - CLASS MOOT COURT COMPETITION, 2023

Later he was found guilty and was imprisoned during the war. U.S. enacted Espionage Act,
1917 which penalizes anyone who “willfully caused or attempted to cause insubordination,
disloyalty, mutiny by refusal from duty or naval services.
In Abraham v. United States7, Justice Holmes said that to punish speech that intends to
produce a clear and imminent danger is greater in times of war, as war opens danger which
does exist other times.

In the case of Brandenburg v. Ohio 8, the court held that the state cannot punish advocacy
of any unlawful conduct unless here it is intended or likely to incite ‘imminent lawless
action’.

The Court in CPIO v Subhash Chandra Aggarwal9, define proportionality “…that neither
right is restricted to a greater extent than necessary to fulfill the legitimate interest of the
countervailing interest in question…”

In the case of Modern Dental College & Research Center v. State of Madhya Pradesh10,
that “no constitutional right can be claimed to be absolute in a realm where rights are
interconnected to each other, and limiting some rights in public interest might therefore be
justified.” Whenever two fundamental rights are in conflict, they must be balanced so that
they “harmoniously coexist with the others.”

11
The Court in K.S. Puttaswamy held that five sub-components of proportionality must
satisfied: (a) legitimate goal (b) the existence of a rational connection (c) necessary to
achieve the object and must not infringe rights to an extent greater than is necessary to
fulfill the aim (d) necessary to protect them (e) provide sufficient safeguards relating to the
storing and protection of centrally stored data. In light of all the arguments based on the
judgments in different cases, the Council on behalf of the Petitioner humbly submits that
restrictions in internet service affects freedom of speech and expression and freedom of
movement.

7
Abrams v. United States, 250 U.S. 616 (1919)
8
Brandenburg v. Ohio, 395 U.S. 444 (1969)
9
CPIO v Subhash Chandra Aggarwal
10
Modern Dental College & Research Center v. State of Madhya Pradesh (2009) 7 SCC 751
11
K.S.Puttaswamy (Privacy-9J) Vs Union of India (2017) 10 SCC 1
MEMORANDUM on behalf of the PETITIONER Page 16
 B. M. S. COLLEGE OF LAW – INTER - CLASS MOOT COURT COMPETITION, 2023

PRAYER
In light of the issues raised, arguments advanced, and authorities cited, the counsel on behalf of
the Petitioner most humbly prays and implores that the Hon’ble Supreme Court of Sakinada be
pleased to adjudge, hold and declare that:

1. The High Court of Sakinada has jurisdiction to entertain the writ petition in view of
Article 32 of the Constitution; and
2. The Government cannot claim exemption from producing all of the restriction orders; and
3. The restrictions imposed have affected the freedom of movement and freedom of speech
and expression; and
4. The Writ Petitioner Mr. Jake Peralta humbly seeks issuance of an appropriate writ to set aside
all the orders and restrictions imposed; and
5. The Council also humbly request the Supreme Court of Sakinada to reinstate all modes of
communication in Kalakshetra.

And/or

Pass any other order that this Hon’ble Supreme Court may deem fit in the interest of equity, justice
and good conscience.

And for this act of kindness, the counsel shall duty bound forever pray.

Respectfully submitted,

Sd/-

(COUNSEL FOR THE PETITIONER)

MEMORANDUM on behalf of the PETITIONER Page 17