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IN THE
AT XXX
IN THE MATTERS OF
APPELLANT
v.
RESPONDENT
[XXX]
AND
PETITIONER
v.
STATE OF ANDREA
RESPONDENT
WRIT PETITION NO.: 321/XXXX
[XXX]
AND
STATE OF MANDRAKE
APPELLANT
v.
MR. THOR
RESPONDENT
[XXX]
AND
MS. JANE
PETITIONER
v.
RESPONDENT
[XXX]
XXX
III. THE ACTIONS OF MR. THOR DID NOT VIOLATE THE PROVISIONS OF THE INFORMATION
C. Section 66-C of the IT Act is also inapplicable to the present case. ....................... 3
iv
INDEX OFAUTHORITIES
Indian Cases
Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Limited, Haldia, (2005) 7
Chloro Controls(l) Pvt. Ltd. v. Severn Trent Water Purification Inc., (2013) 1 SCC 641 ........ 1
Crompton Greaves Ltd. v. Sky Cell Communications Ltd., (2002) 39 SCL 704 (Mad.). .......... 2
District Registrar and Collector v. Canara Bank, AIR 2005 SC 186 ..................................... 10
Divisional Forest Officer v. Bishwanath Tea Co., AIR 1981 SC 1368 ..................................... 7
Harish Kumar and Ors. v. Seb International SAS, (2013) 7 A.D. 268 (Del.). .......................... 3
I.L. & F.S. Trust Co. Ltd. v. Birla Perucchini Ltd., (2004) 121 Comp Cas 335 (Bom.) ........... 3
Naresh Chandra Sanyal v. Calcutta Stock Exchange Association Limited, AIR 1971 SC 422 2
v
National Insurance Co. Ltd v. M/S Boghara Polyfab Pvt. Ltd., (2009) 1 SCC 267 .................. 1
SBP & Co. v. M/S Patel Engineering Ltd., AIR 2006 SC 450 .................................................. 1
Shanti Prasad Jain v. Kalinga Tubes Ltd., AIR 1962 Ori 202 .................................................. 2
State of Maharashtra v. Bharat Shanti Lal Shah and Ors., (2008) 13 SCC 5......................... 10
Sukanya Holdings Pvt. Ltd. v. Jayesh Pandya, AIR 2003 SC 2252 .......................................... 1
Workmen of Meenakshi Mills Ltd. v. Meenakshi Mills Ltd., AIR 1994 SC 2696 ...................... 6
vi
World Phone India Pvt. Ltd v. WPI Group Inc. USA, (2013) 178 Comp Cas 173 (Del)........... 2
Statutes
THE ANCIENT MONUMENTS AND ARCHAEOLOGICAL SITES AND REMAINS (AMENDMENT AND
Rules
Treatises
K.I. VIBHUTE, PSA PILLAI’S CRIMINAL LAW 57-9 (10th ed. 2010) ............................................ 9
Foreign Cases
vii
STATEMENT OF FACTS
BACKGROUND
Phantom is a developing country, known for its rich cultural heritage consisting of
various historical monuments. These monuments have attracted tourists consistently over the
DATA MONITORING
In 2013, armed terrorists were intercepted near NAMO. Owing to rising terrorist
activities, the Ministry of Home Affairs authorized the National Investigative Agency
[“NIA”] to access email and social networking accounts of certain individuals on the grounds
of threat to the sovereignty, defense and public order of Phantom. The NIA authorized an IPS
officer, Mr. Thor to carry out the investigations. One of the suspects was his wife, Jane.
When Ms. Jane found out that her account was being monitored, she filed a Writ Petition
viii
STATEMENT OF JURISDICTION
The Respondents most humbly submit to the jurisdiction of this Honourable Court:
Under Article X of the Constitution of Phantom read with XXX of the Supreme Court Rules,
1966.
ix
ISSUES FOR CONSIDERATION
I. WHETHER THE ACTIONS OF MR. THOR VIOLATED THE PROVISIONS OF THE IT ACT?
x
SUMMARY OF ARGUMENTS
free speech and is arbitrary in its terms. Hence, Mr. Thor is not in violation of this provision.
Moreover, no offence is made out under Section 66-C of the Act considering that there has
xi
ARGUMENTS ADVANCED
I. THE ACTIONS OF MR. THOR DID NOT VIOLATE THE PROVISIONS OF THE
The actions of Mr. Thor in logging into Ms. Jane’s account and making personal
communications did not violate any of the provisions of the Information Technology Act
[hereinafter “IT Act”]. Mr. Thor cannot be held liable under Section 66-A of the Act as it is
unconstitutional [A]. In any event, it does not apply in the present case [B]. Further, he is not
Section 66-A unreasonably curtails the freedom of speech and expression under Article
19(1)(a) of the Constitution and suffers from the vice of arbitrariness under Article 14 of the
Constitution.
communications directly impinges upon the right of free speech guaranteed under Article 19.1
Section 66-A clearly seeks to curtail the freedom of speech and expression by making it
criminal to send certain forms of messages through computer resources. Therefore, it must be
determined if the said restriction is one that satisfies the criterion of reasonability laid down
in Article 19(2). It is undisputed that the circumstances laid down in Article 19(2) are the
only grounds on which the freedom of speech can be curtailed.2 However, Section 66-A
1
Saghir Ahmad v. State of U.P., 1955 (1) SCR 707, 726.
2
Divisional Forest Officer v. Bishwanath Tea Co., AIR 1981 SC 1368.
1
contains additional grounds for imposing restrictions on communication, such as causing
mere annoyance or inconvenience to another person. Additionally, the restrictions must not
be framed in subjective and wide-ranging terms.3 Thus, Section 66-A goes beyond Article
19(2) and is constitutes an unlawful restriction on the fundamental right to free speech.
A provision in a statute containing terms that are imprecise, all-encompassing and vague
does not stand the test of reasonability and non-arbitrariness that are inherent in Article 14.4
Under Section 69, the terms used such as “annoyance, inconvenience, danger, obstruction”
are excessively wide, subjective and in the nature of catch-all phrases. Such wide terms are
capable of extension by the executive and can be wantonly abused.5 In fact, making offences
criminal on such vague and frivolous grounds is in itself a violation of Article 14.6 Hence,
menacing in nature. While Ms. Jane alleged that the communications made were lewd and
obscene, there is an absence of any other substantial proof to support these claims. Notably,
the House of Lords has interpreted the words “grossly offensive” and “menacing” to set a
very high threshold of proving that the communications must be of such character as to
completely shock the conscience of reasonable people.7 In fact, the Adjudicating Officer who
3
O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812, 816.
4
A.K. Roy v. Union of India, (1982) 1 SCC 271.
5
Pathumma v. State of Kerala, AIR 1978 SC 771, ¶¶14-16.
6
S. Khushboo v. Kanniammal, (2010) 5 SCC 600.
7
Director of Public Prosecutions v. Collins, [2006] UKHL 40.
2
has similar fact-finding powers as that of a civil court8 did not find Mr. Thor guilty in the first
instance, thereby raising a presumption that the messages were not lewd or obscene in nature.
Section 66-C punishes the fraudulent or dishonest use of passwords of another individual.
The terms “dishonest” and “fraudulent” under the IT Act have the same definition as under
Sections 24 and 25 of the IPC.9 Under the IPC, the terms dishonestly or fraudulently have
been used in the context of causing wrongful gain or wrongful loss, with an intention to
defraud. Thus, there is a requirement of an intention to materially cause loss to the other
person.10 In the absence of any such intention in the present case, the use of Ms. Jane’s
8
§46(5), INFORMATION TECHNOLOGY ACT, 2000.
9
§66, INFORMATION TECHNOLOGY ACT, 2000.
10
S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1; K.I. VIBHUTE, PSA PILLAI’S
CRIMINAL LAW 57-9 (10th ed. 2010).
3
PRAYER FOR RELIEF
Wherefore in the light of facts stated, issues raised, authorities cited and arguments advanced,
it is most humbly and respectfully prayed that this Honourable Court may be pleased to:
• Hold that Mr. Thor is not criminally liable for any of the offences alleged against him.
And further pass any other order in favour of the Respondents, as this Court may so deem fit