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XIII INTERNAL MOOT COURT COMPETITION, 2018

BEFORE THE SUPREME COURT OF INDIANA

HARRY, PARRY & ZINC ENTERPRISES LTD. ...........PETITIONER

V.

STATE OF INDIANA ...........RESPONDENT

SUBMISSION ON BEHALF OF PETITIONER


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XIII Internal Moot Court Competition, 2018

TABLE OF CONTENT

ABBREVIATIONS………………………………………………………………………………….3

INDEX OF AUTHORITIES ………………………………………………………………………….4

TABLE OF CASES ……………………………………………………………….………….4

BOOKS REFERRED ………………………………………………………………………...4

STATUES ………………………………………………………………………………….5

ONLINE DATABASES………………………………………………………………………..5

STATEMENT OF JURISDICTION …………………………………………………………………6

STATEMENT OF FACTS ………………………………………………………………………….7

STATEMENT OF ISSUES ……………………………………………............................................9

SUMMARY OF ARGUMENTS …………………………………………………………………….10

ARGUMENTS ADVANCED ………………………………………………………………………..13

ISSUE 1 THE CONSTITUTIONALITY OF SECTIONS 67A, 69A AND 69B OF THE INFORMATION

TECHNOLOGY ACT, 2000 (AS AMENDED) AND ALLIED PROVISIONS OF IPC (SECTION 340) &
INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986 (SECTION 3 AND 4)? .............13

ISSUE 2 WHETHER THERE WAS ANY UNDUE INFRINGEMENT OF RIGHT TO PRIVACY BY THE
SEARCH OF PRIVATE DOCUMENTS AND LETTERS WHICH WERE NOT MEANT FOR PUBLIC
DISCLOSURE? .................................................................................................................................18

ISSUE 3 WHETHER THERE IS VIOLATION OF ARTICLE 20(3) IF ANY PRIVATE UNPUBLISHED


DOCUMENT/ INFORMATION HAS BEEN USED IN ORDER TO CONVICT THE ACCUSED?...................20

PAYER........................................................................................................................................... 23

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ABBREVIATION

AIR...……………………………………………………………………ALL INDIA REPORT

SC…………………………………………………………………………SUPREME COURT

HC………………………………………………………………………………HIGH COURT

CO………………………………………………………………………………… COMPANY

SCC…………………………………………………………........SUPREME COURT CASES

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INDEX OF AUTHORITIES

Table of Cases

S.no Name of the case Citation


1 Gurbachan Singh v. State of Bombay AIR 1952 S.C. 221 (India)
(2015) 10 SCC 92
2 K.S. Puttaswamy v. Union of India

Kamalashanker Bhuleshanker Dave V. State of


3 AIR 1963 Guj 312.
Gujarat,
AIR 1963 sc 300
4 Kharak Singh v. State of Uttar Pradesh

5 M.P. Sharma V. Satish Chandra AIR 1954 SC 300


6 Ram Jethmalani v. Union of India
7 Selvi v. State of Karnataka AIR 2010 SC 1974
8 ShyamLal Sharma v. State of Madhya Pradesh (1972) 1 S.C.C. 764 (India)
9 State of Bihar v. Misra K.K. (1969) 3 S.C.C. 337 (India)
10 State of Bombay V. Kathi Kalu Oghad AIR1961 SC1808, 1817

Books Referred

1. APAR GUPTA, INFORMATION TECHNOLOGY ACT 238 (AKSHAYSAPRE, 3RD ED.


2016)
2. DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 193 (HON’BLEMR. JUSTICE
Y.V. CHANDRACHUD ED., 13TH ED.2006)
3. M P JAIN, INDIAN CONSTITUTIONAL LAW (7TH ED. 2010).
4. MAMTA RAO, CONSTITUTIONAL LAW, 210 (1ST ED. 2013)
5. R.V. KELKAR, CRIMINAL PROCEDURE 896 (K.N. CHANDRASEKHARAN PILLAI ED., 6TH
ED.2016)

6. RARTANLAL & DHIRAJLAL, THE LAW OF EVIDENCE (25TH ED. 2016)

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7. V N SHUKLA CONSTITUTION OF INDIA PG. 217 (13TH ED 2017)

Statutes

1. INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986


2. INDIAN PENAL CODE, 1860
3. THE CONSTITUTION OF INDIA
4. THE EVIDENCE ACT, 1995
5. THE INFORMATION TECHNOLOGY ACT, 2000

Online Database

1. SCC ONLINE
2. LEXIS NEXIS
3. TAXMANN.COM
4. MANUPATRA
5. ALL INDIA REPORTER

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STATEMENT OF JURISDICTION

The Petitioners have approached the Hon’ble Supreme Court of Indiana under Article 139A of
the Const. of Indiana. The matter has been referred by the division bench to this Hon’ble bench
of Supreme Court of Indiana.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS CONTENTIONS AND


ARGUMENTS IN THE PRESENT CASE

All of which humbly submitted:

Counsel for the Petitioner

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STATEMENT OF FACTS

I. Zinc Enterprises Ltd. was one of those companies which invested in Indiana. The company
mainly dealt with the computer and mobile applications. They developed new application
software known as ‘Commu-app’, a private messaging application that was easily available
on web store for download.
II. Commu-app used an ‘end – to – end encryption’ communication system. Users could easily
make an account and share pictures, voice messages, videos, messages and document with
their personal contacts through this medium.
III. In 2008, the Zinc Enterprises Ltd. Collaborated itself with another company, known as
‘Features’, owned by Feature Co. Ltd.
IV. Features Co. Ltd. was headed by Harry and Parry who were promoter directors of the
company. Feature allowed its users to update personal information over the internet and
allowed only close friend to have access to their personal information. It allowed its users to
share information like picture, videos, phone number and other personal information.
V. Post – January 2009 it was noticed that the private information of majority of the users
shared by them on both the applications was leaked on the internet. Private pictures and
videos of numerous people, particularly women depicting obscene content went viral on
various social networking sites. An anonymous blog on the internet explicitly stated that the
information might have leaked though Feature on the internet, which could be due to the lack
of appropriate cyber security measures.
VI. Such leak caused severe public disorder and chaos in the country which brought the
Progressive Conservative Association of Indiana (PCA), headed by Sri Devi, into action.
Several protests were arisen due to this leakage of sensitive personal information.
VII. PCA on one the night attacked some of the female employees of Features who were seen
going out to a pub. The employees were wrongfully restrained in a warehouse whole night
and paraded around the streets, the following morning with blackened faces.
VIII. PCA started filing aimless complaints against various internet service providers, companies
that gave domain and server space to Features and Zinc Enterprises for their app installation.

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Subsequently, the police initiated an investigation against all of these persons in order to
counteract the situation.
IX. Central Government issued an order banning both, the Commu app and Features app.
Consequently, the investigating officer entered the headquarters of Features and seized all the
computers, papers and hard disks.
X. Edited pictures of various women were found hanging on clipboard along with several letters
written by angry people lying on the floor. Apart from all this, another torn letter was found
written by Harry to his ex-girlfriend Karry, Stating that he want to change the societal
perspective of womanhood.
XI. On February 2011, Features Co. Ltd. and its directors were charged under various offences.
The video clippings, picture hanging and letters seized by the police authorities were annexed
to the charge sheet as proof. These letter including the private latter of harry were further
published in local newspapers.
XII. Harry and Parry applied to the High Court for Quashing of various Complaints but the court
refused. Harry additionally filed a separate Writ Petition alleging of privacy by the state in
publishing his private letters and hangings.
XIII. Unable to make personal appearances for various petitions, Harry and Parry along with Zinc
Enterprises Ltd. requested to move Supreme Court under Article 139A to transfer the case to
itself.

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STATEMENT OF ISSUES

The issues which were raised before court are as follow;

ISSUE 1

THE CONSTITUTIONALITY OF SECTIONS 67A, 69A AND 69B OF THE INFORMATION TECHNOLOGY
ACT, 2000 (AS AMENDED) AND ALLIED PROVISIONS OF IPC (SECTION 340) & INDECENT
REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986 (SECTION 3 AND 4)?

ISSUE 2

WHETHER THERE WAS ANY UNDUE INFRINGEMENT OF RIGHT TO PRIVACY BY THE SEARCH OF
PRIVATE DOCUMENTS AND LETTERS WHICH WERE NOT MEANT FOR PUBLIC DISCLOSURE?

ISSUE 3

WHETHER THERE IS VIOLATION OF ARTICLE 20(3) IF ANY PRIVATE UNPUBLISHED DOCUMENT/


INFORMATION HAS BEEN USED IN ORDER TO CONVICT THE ACCUSED?

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SUMMARY OF ARGUMENT

ISSUE 1
1) The Constitutionality of Section 67-A of Information and Technology Act, 2000 (as
amended).
It is humbly submitted that the section 67-A of the Information technology Act, 2000 is
not constitutional as it is infringing the Article 19(1) (a) and doesn’t come under the
ambit of Article 19(2) of the Indian Constitution.
There is a clear contradiction between section 66-E and other pornographic related
section of Information and Technology Act, 2000. Section 66-E prohibits capturing,
transmitting or publishing the image of a private area of a person without the consent, but
the matter of contradiction is that in Section 67-A of the Information and Technology
Act, 2000 there strictly punishment for publishing or transmitting of material containing
sexually explicit act, etc., in electronic form. Here it is not talked about any consent.
So this contradiction also held section 67-A as unconstitutional.
2) The Constitutionality of Section 69-A and 69-B of Information and Technology Act,
2000 (as amended).
It is humbly submitted that section 69-A of the Information and Technology Act, 2000 is
unconstitutional as there is no pre-decisional hearing offered by the Information
Technology (Procedure and safeguards for blocking for Access of Information by Public)
Rules, 2009 particularly to the “originator” of information, which is defined under section
2(1) (za) of the Act. Further, procedural safeguards such as which are provided under
Sections 95 and 96 CrPc are not available here.
This affects the basic structure of the Constitution and the fundamental rights of
appellant.
3) The applicability of Section 340 of the Indian Penal Code, 1860.
Here Section 340 would be directly applicable which says that “whoever wrongfully
restrains any person in such a manner as to prevent that person from proceeding beyond

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certain circumscribing limit, is said wrongfully to confine that person1”. In this case
employees of the Features were wrongfully restrained in a warehouse whole night by the
PCA. The essential ingredients of the offence of wrongful confinement are:
(i) Wrongful restraint of a person.
(ii) The restraint must be to prevent that person from proceeding beyond certain
circumscribing limits beyond which,
(iii) He/she has right to proceed.

In the present case all the ingredients of wrongful confinement mentioned above are
getting fulfilled. So, Section. 340 of IPC, 1860 would be directly applicable.

4) The applicability of Sections 3 & 4 of Indecent Representation of Women


Prohibition Act, 1986.
Here Section 3 of the Indecent Representation of Women Prohibition Act, 1986 would
not be applicable as, in this case nowhere the advertisement has been done by the
petitioners, which is very much needed for an offence to come under the ambit of Section
3 of the Act.
Section 4 of the Indecent Representation of Women Prohibition Act, 1986 also would not
be applicable here as it is not confirmed that the private picture and videos which got
leaked was done by the Features.
An anonymous blog on the internet explicitly stated that the information might have
leaked through ‘Features’ on the internet. An information shared by the anonymous blog
was not authorized and was not confirmed.
So, Sections 3 & 4 of the Indecent Representation of Women Prohibition Act, 1986
would not be applicable here
ISSUE 2
In the case of Kharak Singh v. State of Uttar Pradesh it was held that the right of privacy
was infringed as the police officers were taking him in surveillance. In the case of K S
Puttaswamy it was held that right to privacy was an intrinsic right. In the case of Ram
Jethmalani v. Union of India it was held that right to privacy also requires the state not to

1
Indian Penal Code, 1860, No.45, Acts of Parliament, 1860 (India).

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make public and private information about an individual which would violate the privacy
of any person.

ISSUE 3

The council from the side of petitioner humbly submit that there has been violation of
fundamental right given under constitution. Article 20(3) which is governed on the maxim
“nemo teneteur seipsum accussare” which mean “no one can be compelled to incriminate
himself” has been violated in this case. The personal letter of Harry which he wrote to her ex-
girlfriend Karry was use against him as incriminating evidence against his will.

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ARGUMENT ADVANCE

- ISSUE 1-

THE CONSTITUTIONALITY OF SECTIONS 67A, 69A AND 69B OF THE INFORMATION


TECHNOLOGY ACT, 2000 (AS AMENDED) AND ALLIED PROVISIONS OF IPC (SECTION 340) &
INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986 (SECTION 3 AND 4)?

1) The Constitutionality of Section 67-A of Information and Technology Act, 2000 (as
amended).
It is humbly submitted that the section 67-A of the Information technology Act, 2000 is
not constitutional as it is infringing the Article 19(1) (a) and doesn’t come under the
ambit of Article 19(2) of the Indian Constitution. Section 67-A imposes restriction on the
Art. 19(1) of the constitution which is right to freedom of speech and
expression.Fundamental Rights or freedoms contained in Art. 19(1) are those great and
basic rights, which are recognized as the natural rights of every citizen. These rights,
though fundamental, are subject to following restriction as mentioned in Art. 19 (2) of the
Indian Constitution:
(i) The sovereignty and integrity of India
(ii) Security of the state
(iii) Friendly relation with the foreign states
(iv) Public order
(v) Decency or morality
(vi) In relation to contempt of court
(vii) Defamation and incitement to an offence
Section 67-A of the Information and Technology Act, 2000 which talks about the
punishment for publishing or transmitting of material containing sexually explicit act,
etc., in electronic form states that- “Whoever publishes or transmits or causes to be

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XIII Internal Moot Court Competition, 2018

published or transmitted in the electronic form any material which contains sexually
explicit act or conduct shall be punished on first conviction with imprisonment of either
description for a term which may extend to five years and with fine which may extend to
ten lakh rupees and in the event of second or subsequent conviction with imprisonment of
either description for a term which may extend to seven years and also with fine which
may extend to ten lakh rupees2”. The word “sexually explicit” which is used in the
Section 67-A of the Information and Technology Act, 2000 is nowhere defined in the
statute which make it difficult to explain that which act can be a sexually explicit act. As
in Section 67-A the word “sexually explicit” is not clear so it can’t be said whether this
fall under decency and morality which is one of the restrictions to the Art 19 (1)
mentioned in the Constitution of India. So, Section 67-A of the Information Technology
Act, 2000 is infringing the Article 19 (1) of the Constitution and because of the word
sexually explicit which is nowhere defined in the statute, it also doesn’t come under the
restrictions given under Article 19 (2) of the Constitution.
There is a clear contradiction between section 66-E and other pornographic related
Section of Information and Technology Act, 2000. Section 66-E prohibits capturing,
transmitting or publishing the image of a private area of a person without the consent3,
but the matter of contradiction is that in Section 67-A of the Information and Technology
Act, 2000 there is strict punishment for publishing or transmitting of material containing
sexually explicit act, etc., in electronic form4. Here it is not talked about any consent. In
the same statute in Section 66-E it is mentioned that capturing, transmitting or publishing
of the image of private area of a person is prohibited if it is done without his consent,
which by default comes up with the opposite side of this section which is that if the
consent is there then it is not prohibited. Where as in the Section 67-A of the Information
and Technology act, it is directly punishable whether it is done with or without the
consent. So, here both the Sections of the statute is contradicting with themselves on the
topic of pornography.

2
The Information Technology (Amendment) Act, 2008, No.10, Acts of Parliament, 2008 (India).
3
APAR GUPTA, INFORMATION TECHNOLOGY ACT 238 (AkshaySapre, 3rd ed. 2016).
4
APAR GUPTA, INFORMATION TECHNOLOGY ACT 244 (AkshaySapre, 3rd ed. 2016).

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Therefore ambiguity in the meaning of word sexually explicit act, infringement of the
Article 19 (1) and contradiction between the two sections of the statute would make
Section 67-A of the Information Technology Act, 2000 unconstitutional in nature.
2) The Constitutionality of Section 69-A and 69-B of Information and Technology Act,
2000 (as amended).
It is humbly submitted that section 69-A of the Information and Technology Act, 2000 is
unconstitutional as there is no pre-decisional hearing offered by the Information
Technology (Procedure and safeguards for blocking for Access of Information by Public)
Rules, 2009 particularly to the “originator” of information, which is defined under section
2(1) (za) of the Act as a “Person who sends, generates, stores or transmits any electronic
message or causes any electronic message to besent, generated, stored or transmitted to
any other person but does not include an intermediary”5.
Section 69-A of the Information and technology Act, 2000 tells about the power to issue
directions for blocking public access of any information through any computer resource,
that:
(1) “Where the Central Government or any of its officer specially authorised by it in this
behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty
and integrity of India, defence of India, security of the State, friendly relations with
foreign States or public order or for preventing incitement to the commission of any
cognizable offence relating to above, it may subject to the provisions of sub-section (2)
for reasons to be recorded in writing, by order, direct any agency of the Government or
intermediary to block for access by the public or cause to be blocked for access by the
public any information generated, transmitted, received, stored or hosted in any
computer resource.
(2) The procedure and safeguards subject to which such blocking for access by the public
may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-section (1)
shall be punished with an imprisonment for a term which may extend to seven years and
shall also be liable to fine6”.

5
Supra note 2.
6
Ibid.

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According to the constitution of India a fundamental right to be heard is given to the


people, infringement of which would arise question on the constitutionality of the statute.
A law of externment or internment would be void if it does not offer a right of
representation or an opportunity to be heard to the person against whom the order is
made7. He must have an opportunity not only of controverting the grounds communicated
to him or the allegations made against him, but also of showing that he is not a person
coming within the mischief of the law sought to be applied against him8. In particular
circumstances, it may be that in the interest of public welfare it would not be possible or
obligatory to give the person, who is sought to be removed, a public hearing with a
confrontation of witness, in as much as peaceful citizens would not come forward to give
evidence in the public against dangerous characters and habitual offenders. In such a
case, the reasonableness of the restriction imposed by law would sustain in view of other
safeguards9.
Further, procedural safeguards such as which are provided under Sections 95 and 96
CrPc are not available in the Section 69-A of the act10.This affects the basic structure of
the Constitution and the fundamental rights of petitioner. So, Section 69-A of the
Information Technology Act, 2000 would be unconstitutional in nature.
3) The applicability of Section 340 of the Indian Penal Code, 1860.
Here Section 340 of IPC, 1860 would be directly applicable which says that “whoever
wrongfully restrains any person in such a manner as to prevent that person from
proceeding beyond certain circumscribing limit, is said wrongfully to confine that
person11”. In this case employees of the Features were wrongfully restrained in a
warehouse whole night by the PCA. The essential ingredients of the offence of wrongful
confinement are:
(iv) Wrongful restraint of a person.
(v) The restraint must be to prevent that person from proceeding beyond certain
circumscribing limits beyond which,

7
State of Bihar v. Misra K.K., (1969) 3 S.C.C. 337 (India).
8
Gurbachan Singh v. State of Bombay, AIR 1952 S.C. 221 (India).
9
DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 193 (Hon’bleMr. Justice Y.V. Chandrachud ed., 13 th
ed.2006).
10
R.V. KELKAR, CRIMINAL PROCEDURE 896 (K.N. Chandrasekharan Pillai ed., 6th ed.2016).
11
Supra note 1.

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(vi) He/she has right to proceed.

In the present case all the ingredients of wrongful confinement mentioned above are
getting fulfilled. For an offence to be a wrongful confinement there must be total restraint
not the partial one and this particular same thing happened when PCA wrongfully
restraint the employees of Features for whole night in which the employees were not able
to move in the direction in which they want to and in which they have the right too.

In ShyamLal Sharma v. State of Madhya Pradesh12, some officials were demanding


bribes at a traffic barrier from the drivers of the vehicles. A trap was laid. A circle officer
raided the office and recovered the notes which were given. The accused objected to the
search as it was done without the warrant and also demanded that a search memo be
given. The circle inspector agreed to give the search memo and he was allowed to go. But
after he went out of the office and was on the road, he was forcibly seized, lifted, taken
into office and thrown on a chair. He was confined there and threatened with a lathi, till
he had complied with the demand that he gives in writing that he had conducted the
search of the barrier.

It was held that Section 342, which is punishment for the wrongful confinement, was not
confined to the offences against the public servants, but is a general section and makes a
person who wrongfully restraint another, guilty of the offences under the section.

So, Section. 340 of IPC, 1860 would be directly applicable in the present case as the
ingredients of the wrongful confinement is fulfilled here.

4) The applicability of Sections 3 & 4 of Indecent Representation of Women


Prohibition Act, 1986.

Here Section 3 of the Indecent Representation of Women Prohibition Act, 1986 would
not be applicable, as in this case nowhere the advertisement has been done by the
petitioners, which is very much needed for an offence to come under the ambit of Section
3 of the Act.

12
(1972) 1 S.C.C. 764 (India).

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Section 2(a) of the Act, defines advertisement as “advertisement includes any notice,
circular, label, wrapper or other document and alsoincludes any visible representation
made by means of any light, sound, smoke or gas13”.
In the present case no circular, label, wrapper, other document or visible representation
made by any light, sound, smoke or gas was done. That’s why Section 3 of the Act would
not be applicable here.
Section 4 of the Indecent Representation of Women Prohibition Act, 1986 also would not
be applicable here as it is not confirmed that the private picture and videos which got
leaked was done by the Features.
An anonymous blog on the internet explicitly stated that the information might have
leaked through ‘Features’ on the internet. An information shared by the anonymous blog
was not authorized and was not confirmed.
So, Sections 3 & 4 of the Indecent Representation of Women Prohibition Act, 1986
would not be applicable here

- ISSUE 2 –

WHETHER THERE WAS ANY UNDUE INFRINGEMENT OF RIGHT TO PRIVACY BY THE SEARCH
OF PRIVATE DOCUMENTS AND LETTERS WHICH WERE NOT MEANT FOR PUBLIC
DISCLOSURE?

1. In the case of Kharak Singh v. State of Uttar Pradesh 14 the Supreme Court held that
petitioner’s freedom under article 19(1)(a) of the constitution was also infringed it was
impossible for a person in the position of the petitioner to express his real and intimate
thoughts to the visitor as fully as he would like to do. With the help of this case we can
say that right to privacy is our fundamental right and that can’t be violate by the state.

13
Indecent Representation of Women Prohibition Act, 1986 No.60, Acts of Parliament, 1986 (India).
14
AIR 1963 sc 300

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2. In the case of K.S. Puttaswamy v. Union of India15 it was held that right to privacy is a
fundamental right and an intrinsic part of right to life and personal liberty under article 21
and as a part of freedoms guaranteed by part III of the constitution. This is not an
absolute right but interference must meet the threefold requirement of legality, the need
for a legitimate aim and proportionality. The need arises to highlight the development of
a right to privacy as a customary right with the help of widespread state practice around
the world. The most recent country to address the question of what status privacy holds in
the legislative framework of that state is India.
The right to privacy was protected as an intrinsic part of the right to life and personal
liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the
Constitution. The decisions of M.P. Sharma v Satish Chandra, which holds that the right
to privacy is not protected by the Constitution, and Kharak Singh v State of Uttar Pradesh
(to the extent that it holds that the right to privacy is not protected by the Constitution)
were overruled. Court noted that at least three connotations of privacy viz. spatial control,
decisional autonomy and informational control are essential for individual self-
development, which lies at the heart of democracy, dignity and fraternity. Also
considered comparative law and international instruments that codify the right to privacy,
and observed that in the absence of any specific municipal prohibition, international law
forms part of Indian law and must be read into or as part of our fundamental rights.
However, the Court cautiously expressed the fact that the right is not of an absolute
nature, and is subject to reasonable regulations made by the state to protect its legitimate
interests. With the aid of both domestic and international law, the Court reaffirmed the
place of an individual at the core of constitutional focus in India. While this judgment has
been widely celebrated for its progressive take on civil liberties, the real outcome of this
seminal verdict will only be apparent once the Court applies these abstract principles in
practice. It also considered comparative law and international instruments that codify the
right to privacy, and observed that in the absence of any specific municipal prohibition,
international law forms part of Indian law and must be read into or as part of our
fundamental rights. However, the Court cautiously expressed the fact that the right is not
of an absolute nature, and is subject to reasonable regulations made by the state to protect

15
(2015) 10 SCC 92

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XIII Internal Moot Court Competition, 2018

its legitimate interests. With the aid of both domestic and international law, the Court
reaffirmed the place of an individual at the core of constitutional focus in India. While
this judgment has been widely celebrated for its progressive take on civil liberties, the
real outcome of this seminal verdict will only be apparent once the Court applies these
abstract principles in practice. With the help of this case we can say that right to privacy
of the features had been infringed by the investigating officer by enter in the private
premises of the features and searching of private documents and letters.
3. In the case of Ram Jethmalani v. Union of India16 the right to privacy also requires the
state not to make public and private information about an individual which would violate
her privacy. With the help of this case we can say that the action of the investigating
officer is against the right to privacy.

- ISSUE 3 -

WHETHER THERE IS VIOLATION OF ARTICLE 20(3) IF ANY PRIVATE UNPUBLISHED


DOCUMENT/ INFORMATION HAS BEEN USED IN ORDER TO CONVICT THE ACCUSED?

1. The council from the side of petitioner submit that there was violation of article 20(3) when
the private unpublished letter was used in order to convict the accused. Article 20(3) of the
constitution grant a protection against self incrimination and by using of the private letter of
harry which he wrote there self incrimination was done.
2. Article 20(3) of the constitution is governed on the maxim “nemo teneteur seipsum
accussare” which mean “no one can be compelled to incriminate himself.”17 The main three
element of the article 20(3) are as follow;
 Accused is presumed to be innocent
 It is for prosection to establish his guilt
 Accused need not make any statement against his will

16
V N Shukla Constitution of India pg. 217 (13th ed 2017)
17
Mamta Rao, Constitutional Law, pg210 (1st ed. 2013)

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The letter which was written by Harry to her ex girlfriend Karry, in which he made the statement
was used against his will to make him guilt.

3. Any police officer, not below the rank of a Deputy Superintendent of Police, or any other
officer of the Central Government or a State Government authorised by the Central
Government in this behalf may enter any public place and search and arrest without warrant
any person found therein who is reasonably suspected of having committed or of committing
or of being about to commit any offence.18 In this case the police inspector investigated
headquarters of feature without any warrant which violated section 80 of the information
technology Act, 2000.
4. The courts emphatically laid down that the benefit of Article 20(3) is available to a person
against whom a formal accusation have been levelled which in the normal course would lead
to his prosecution and convictions.19 In Selvi v. State of Karnataka20 , also it was held that
right under Art. 20(3) become available when a person "has been formally accused". In this
case, PCA started filing aimless complaints against various internet service providers,
companies that gave domain and server space to Features and Zinc Enterprises for their app
installation, web store and istore, claiming that these were beneficial intermediaries which
aided to disruption in public order prevalent in the society.21 Hence the benefit was available
with the accused when PCA started filing the complaints.
5. In case of M.P. Sharma V. Satish Chandra22 it was held by the supreme court that article
20(3) not only cover oral testimony or statements in writing of the accused but also
production of a thing or of evidence by other modes. Oral admissions as to the contents of a
document are not relevant, unless and until the party proposing to prove them shows that he
is entitled to give secondary evidence of the contents of such document under the rules
hereinafter contained, or unless the genuineness of a document produced is in question.23 The
video clippings, picture hanging and letter seized by the police authorities were annexed to
the charge sheet as proof for company’s moral indecency by the Prosecution. 24 No additional

18
Section 80; The Information Technology Act, 2000
19
Kamalashanker Bhuleshanker Dave V. State of Gujarat, AIR 1963 Guj 312.
20
(2010) 7 SCC 263: AIR 2010 SC 1974
21
Moot Proposition ¶ 11
22
AIR 1954 SC 300; 1954 Cri Lj 865.
23
Section 22; The Indian evidence act, 1872.
24
Moot Proposition ¶ 12, Line 2.

Submission on Behalf of Petitioner


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XIII Internal Moot Court Competition, 2018

evidence was recorded along with the founded letter and photograph which could prove that
accused to be proven guilty. Therefore there was violation of article 20(3) as no additional
evidence was presented.
6. Giving thumb-impression or impression of foot or palm or finger or specimen writings or
showing parts of the body by way of identifying are not included in the expression ‘to be a
witness’ in Article 20(3).25 For example the accused may be in possession of a document
which is in his writing or which contains his signature or his thumb-impression. The
production of such document, with the view to comparison of the writing or the signature or
the impression, is not the statement of an accused person, which can be said to be of the
nature of a personal testimony. The letter which was written by Harry to her ex-girlfriend
Karry was not used as a specimen writings but was used as evidence against him to be
proven guilty.

25
State of Bombay V. Kathi Kalu Oghad, AIR 1961 SC1808, 1817.

Submission on Behalf of Petitioner


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XIII Internal Moot Court Competition, 2018

PRAYER

Wherefore in light of the issue raised, arguments advanced and authorities cited, it is humbly
prayed that this Hon’ble Court be pleased adjudge and declared that:

1. The section 67 A, 69B and 69B of the Information Technology Act, 2000 as well
as the allied provision of IPC (section 339) & Indecent Representation of Women
(Prohibition Act, 1986 (Section 3 and 4) are unconstitutional.
2. There has been infringement of right of Privacy i.e. Article 21 of the constitution
by search and publication of private document and letter.
3. And there have been violation of Article 20(3) by using unpublished private
document to order to convict the accused.

And any other order that this Court may deem fit in the interest of justice, equity and good
conscience.

All of which is humbly prayed

Counsel for the Petitioner

Submission on Behalf of Petitioner