N.C.L.C.

’s 7TH NATIONAL MOOT COURT COMPETITION 2020, NANDED

TEAM CODE -

N.C.L.C.’s 7TH NATIONAL MOOT COURT COMPETITION 2020, NANDED

IN THE HON’BLE SUPREME COURT OF INDICA UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDICA, 1950

IN THE MATTER OF

ARTICLE 14, 19, 21 OF THE CONSTITUTION OF INDICA, 1950

WRIT PETITION NO.________/2020

M. BANERJEE AND OTHERS…….…………………………………….PETITIONER

V.

UNION OF INDICA…………………..………………..…………………RESPONDENT

BEFORE SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDICA

MEMORIAL ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

1) INDEX OF AUTHORITIES……………………………………………………....3

2) STATEMENT OF JURISDICTION…………………………………………..….5

3) STATEMENT OF FACTS…………………………………………….………..…6

4) STATEMENT OF ISSUES………………………………………………..………7

5) SUMMARY OF ARGUMENTS………………………………………………….8

6) ARGUMENTS ADVANCED………………………………………………...…..10

6.1 Whether suspension of internet facility is in violation of Art. 14?...............10

6.2 Whether suspension of Internet facility is in violation of Art. 19?..............13

6.3 Whether suspension of Internet facility is in violation of Art. 21?..............17

6.3 Whether Petitioners are entitled for compensation?....................................19

7) PRAYER…………………………………………………………………………..22

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INDEX OF AUTHORITIES

[A] Case Laws

A.P. Agarwal v. Government of NCT of Delhi [AIR 2000 SC 205]

E.P. Royappa v. State of Tamilanadu [AIR 1974 SC 55; 1974 3 SCC 3]
Bachan Singh v. State of Punjab [AIR 1982 SC 1325; 1982 3 SCC 24]
A.L.Kalra v. P and E Corporation of India Limited [AIR 1984 SC 1361, 1367]
Dwarkadas Marfatia and Sons v. Board of Trustees, Bombay Port [AIR 1989 SC 1642]
Express Newspapers PVT. LTD. v. Union Of India [AIR 1986 SC 872]
Delhi Transport Corporation v. DTC Mazdoor Congress [AIR 1991 SC 101]
The P.T.I. v. Union of India [AIR 1974 SC 1044]
Ajay Kumar v. Chandigarh Adm., Union Territory [ AIR 1983P & H 8]
Globe Theatres v. State of Maharashtra [AIR1983 Bimbay 265]
Jitendra Nath v. W.B. Board of Exams [AIR 1983 Calc. 275]
Shrilekha Vidyarthi v. State of Uttarpradesh [AIR 1991 SC 537]
Delhi Transport Corporation v. DTC Mazdoor Union [AIR 1999 SC 564]
Union of India v. Amrik Singh [AIR 1991 SC 564]
Maneka Gandhi v. Union of India [AIR 1978 SC 597]
Haji Abdool Shakoor & Company v. Union of India [JT 2001 (10) SC 438]
Union of India and Ors. v. The Motion picture Assn.& Ors. [AIR 1999 SC 2334]
Secretory, Ministry of Information & Broadcasting & Ors. v. Cricket Assn. of Bengal & Ors.
[1995 2 SCC 161]
Indian Express Newspapers (Bombay) Pvt.Ltd. v. Union of India [1985 1 SCC 641]
Secretary, Ministry of Information & Broadcasting Government of India v. Cricket
Association of Bengal [(1995) 2 SCC 161]
Shreya Singhal v. Union of India [(2015) 5 SCC 1]
Indian Express v. Union of India[(1985) 1 SCC 641]
Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana [(1988) 3 SCC 410]
Anuradha Bhasin v. Union of India and Ors.
Ghulam Nabi Azad v. Union of India and Anr.
Ganesh [38 CWN 388]

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Kamalkant [A 1962 B 292 on Appeal A 1971 SC 1667

Gulam Abbas [1981 CRLJ 1835 SC]
Ramnand [A 1932 M 294
Bandhua Mukti Morcha v. Union of india [(1984) 3 SCC 161]
Mohini Jain v. State of Karnataka [(1992) 3 SCC 666]
Maneka Gandhi v. Union of India [AIR 1978 SC 597]
Francis Coralie v. Union Territory of Delhi [(1981) 1 SCC 609]
M.C. Mehta v. Union of India [AIR 1987 SC 1086]
Rudul Shah v. State of Bihar [AIR 1983 SC 1086; (1983) 4 SCC 141]
M. Hongray v. Union of India[AIR 1984 SC 1026]
Nilabati Behera v. State of Orissa [AIR 1993 SC 1960]
B.C. Oraon v. State of Bihar [AIR 1983]
Bhimsingh v. State of J&K [AIR 1986 SC 494]
Saheli v. Commr. Of Police [AIR 1990 SC 513]
State of Maharashtra v. Ravikant S. Patil [1991 AIR SCW 871]
Dhaman Joy Sharma v. State of Haryana [AIR 1995 SC 1795]

[B] Statutes

The Constitution of India, 1950

The Code of Criminal Procedure, 1973
The Information Technology Act, 2000
The Indian Telegraph Act, 1885
The Temporary Suspension of Telecom Services (Public Emergency or Public Safety)
Rules, 2017

[C] Bibliography

M.P. Jain, Indian Constitutional Law, Fifth Edition

Durga Das Basu, Commentary on the Constitution of India, 8th Edition
Vivek Sood, The Fundamental Right to Internet
J. N. Pandey, Constitutional law of India, Fifty Sixth Edition

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Indica has jurisdiction to hear the instant matter under Art.
32 of the Constitution of Indica.

The present memorandum sets forth the facts, contentions and arguments.

Art. 32 of the Constitution of Indica reads as:

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.

(3) Without prejudice to the powers conferred on the supreme court by clauses (1)
and (2), parliament may by law empowered any other court to exercise within the
local limits of its jurisdiction all or any of the powers exercisable by the supreme
court under clause (2).

(4) The right guaranteed by this Article shall not be suspended except as otherwise
provided for by this constitution.”

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STATEMENT OF FACTS
STATEMENT OF FACTS

1. The internet plays a vital role in ensuring that people stay in contact regardless of the
physical barriers. In an initiative to encourage digitalisation, the Hon’ble Prime
minister of Union of Indica started ‘Digital Indica’ drive.
2. The right to Internet access, also known as the right to broadband or freedom to
connect. International organisations are considering use of internet as basic human
right. Today, right to internet service is closely associated with other fundamental
rights such as right to speech and expression, right to development and right to
assembly.
3. The Union of Indica comprises of 29 states and 9 Union territories. The areas of
territorial autonomy are decided as per the scheduled provisions of Constitution of
Indica.
4. The Union Territory of Gudigudi in a dominion falling under the control of Union of
Indica. On one occasion, a WhatsOn (a messanger app) message disparaged a
particular religion causing sever unrest among the locals, eventually caused protests
and some incidences of violence in the territory.
5. To maintain law and order, the Union of Indica, imposed certain restrictions in
Gudigudi. Along with suspension of freedom of movement and other rights, the
authorities also suspended the Internet facility throughout the territory. The
suspension was not only limited to use of social media sites but internet service in
total. The decision adversely affected on the activities related to internet. This caused
serious unrest among the people as many people suffered irreparable loss.
6. Being aggrieved by the said decision and hardship, various petitions were filed before
the Hon’ble Supreme Court of Indica under Art. 32 of the Constitution of Indica.
Considering the similarity of matters, the Hon’ble Supreme Court clubbed all the
petitions as the present one.
7. In furtherance of the said writ, the Hon’ble Supreme Court issued a show cause notice
to the Union of Indica. In reply to the said notice, the Union of Indica opposed the
writ petition and justified their actions.
8. Considering the petition and say on it, the Supreme Court of Indica has posted this
case final hearing.

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STATEMENT OF ISSUES
STATEMENT OF ISSUES

1) Whether suspension of Internet facility is in violation of Article 14?

2) Whether suspension of Internet Facility is in violation of Article 19?

3) Whether suspension of Internet Facility is in violation of Article 21?

4) Whether Petitioners are entitled for compensation?

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SUMMARY OF
SUMMARY OFARGUMENTS
ARGUMENTS

1) Whether suspension of Internet facility is in violation of Article 14?

It is contended before this Hon’ble Court that the suspension of internet facility is in
violation of Article 14. Article 14 outlaws arbitrary administrative action. When there
is Arbitrariness in state action, Article 14 springs into action and the Court strike
down such action. Arbitrary action infringes Article 14. A very fascinating aspect of
Article 14 which the Courts in India have developed over time is that Article 14
embodies “guarantee against Arbitrariness” on the part of administration.
2) Whether suspension of Internet facility is in violation of Article 19?
It is contended before this Hon’ble Court that the suspension of internet facility is in
violation of Article 19. The Internet has made an unimaginable Impact on the
fundamental right to the freedom of speech and expression guaranteed under Article
19 (1) (a) of the Constitution of India. The Internet democratises Article 19 (1) (a).
The Internet is a medium, platform, forum and a global loudspeaker of free speech
and expression that is available to the commoner as well. As a medium of free Speech
and Expression, the Internet is also an instrument to give birth to the social and
political revolutionaries.
3) Whether suspension of Internet facility is in violation of Article 21?
It is contended before this Hon’ble Court that the suspension of internet facility is in
violation of Article 21. Since the Internet has emerged as a way of life, being a
medium of free speech and expression, platform for business and profession, hub of
information and knowledge, world of entertainment and gaming, medium to form
associations and communities, it emerges as fundamental right which in future is
likely to knock at the door of the Basic Structure of The Constitution. At this point of
time, this may sound virtual fantasy but this virtual world (Internet) is likely to find its
way into the basic structure of the constitution and the place of pride in Part III.

4) Whether Petitioners are entitled for compensation?

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It is humbly contended before this Hon’ble Court that the petitioners whose
fundamental rights are violated, are entitled for compensation. The scope of Article 32
is wide enough to include the power to grant compensation for violation of
Fundamental Rights. The power of the Court under Article 32 is not merely
preventive that is, preventing the infringement of fundamental rights, but also
remedial in nature, i.e. power to grant compensation.

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THE ARGUMENTS ADVANCED

THE ARGUMENTS ADVANCED

I. Whether Suspension of Internet Facility Is In Violation of Article 14?

Arbitrary State action

The Counsel for Petitioner is contended that Article 14 outlaws arbitrary administrative
action. When there is Arbitrariness in state action, Article 14 springs into action and the
Court strike down such action. Arbitrary action infringes Article 14. 1

Furthermore, a very fascinating aspect of Article 14 which the Courts in India has have
developed over time is that Article 14 embodies “guarantee against Arbitrariness” on the part
of administration. As the SC has observed in Royappa: 2 “from a positivistic point of view,
equality is the antithetic to arbitrariness.” Any action that is arbitrary must necessarily
involve the negation of equality.

It is contended that the orientation being given to Article 14 by the Courts has been explained
by BHAGWATI, J., in Bachan Singh v. State of Punjab. 3 Rule of law which permits the
entire fabric of Indian Constitution excludes Arbitrariness. “Wherever we find arbitrariness
or unreasonableness there is denial of rule of law”. Article 14 enacts primarily a guarantee
against arbitrariness and inhibits State action, whether legislative or executive, which suffers
from the view of arbitrariness. “Every State action must be non arbitrary and reasonable.
Otherwise the Court strike it down as invalid.”

1
A.P. Agarwal v. Government of NCT of Delhi [AIR 2000 SC 205]
2
E.P. Royappa v. State of Tamilanadu [AIR 1974 SC 55; 1974 3 SCC 3]
3
AIR 1982 SC 1325; 1982 3 SCC 24
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To challenge an arbitrary action under Article 14, the Petitioner does not have to show that
there is someone else similarly situated as he himself, or that he has been dissimilarly treated.
On0 these point, the SC has observed in Kalra:4

“Article 14 strikes at arbitrariness in executive / administrative action because any action that
is arbitrary must necessarily involved the negation of equality. One need not confined the
denial of equality to a comparative evaluation between Two persons to arrived at a
conclusion of discriminatory treatment. An action per se arbitrary itself denies equality of
protection of law.”

It is contended that every action of the State must be informed by reasons and guided by
public interest. Actions uninformed by reason may be questioned as arbitrary. Whenever
there is arbitrariness in state action, Article 14 sp0rings to life and judicial review strikes such
an action down.5 Arbitrariness is the antithesis of Article 146. Equality and arbitrariness are
sworn enemies. Article 14 strikes at Arbitrariness in state action and ensures fairness and
equality of treatment.7

Furthermore, in a number of cases, Government action has been Quashed on the ground of its
being arbitrary or discriminatory. Article 14 strikes not only at discrimination but also at
arbitrariness in general. The wage Board for working journalists divided the newspapers and
the news agencies into seven classes on the basis of gross revenue. According to these test,
the P.T. I. should have been placed in the third category but the wage board placed it in the
second- A Higher category, thus, placing on the P.T.I. more onerous obligations. These was
held to be arbitrary which “singles out the P.T.I. for the discrimination.”8

It is contended that spot admission on the last day for vacant seats without notice in State
owned institutions for Higher professional Education was held bad as it denied equality of
opportunity and the test of merit. “The State even in the exercise of its administrative power
cannot act arbitrarily. Being the State, it is obliged to act in a fair, reasonable and equitable
manner.”9

4
A.L.Kalra v. P and E Corporation of India Limited [AIR 1984 SC 1361, 1367]
5
Dwarkadas Marfatia and Sons v. Board of Trustees, Bombay Port [AIR 1989 SC 1642]
6
Express Newspapers PVT. LTD. v. Union Of India [AIR 1986 SC 872]
7
Delhi Transport Corporation v. DTC Mazdoor Congress [AIR 1991 SC 101]
8
The P.T.I. v. Union of India [AIR 1974 SC 1044]
9
Ajay Kumar v. Chandigarh Adm., Union Territory [ AIR 1983P & H 8]
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Furthermore, the state government exempted only a specified number of prints of the Gandhi
Film (20) from payment of entertainment tax. Viewers of other prints of the film had to pay
the tax. The Court held the exempting only a few prints, and not all the prints of the film, was
discriminatory and arbitrary.10

In a number of other cases, arbitrary or discriminatory exercise of power by the

administration has been quashed by the Courts.11

Counsel for the Petitioner cited that the Government of Uttar Pradesh issued an order
terminating at one stroke the appointment of all the Governmental Advocates throughout the
entire state. In Shrilekha Vidyarthi v. State of Uttar Pradesh,12 the SC quashed the order
characterising it as arbitrary: “Arbitrariness is writ large in the impugned circular.” The Court
stated the applicable principle as follows: “It is now well settled that every State action, in
order to survive, must not be Susceptible to the vice of arbitrariness which is the crux of
Article 14 of the Constitution and basic to the Rule of Law, the system which governs us,
arbitrariness being the negation of the rule of law.”

Right of Hearing

It is further contended that Audi Alteram Partem is no one shall be condemned unheard; fair
hearing and fair justice to both the parties. Article 14 guarantees the right of Hearing to the
person adversely affected by an administrative order. As the SC has observed in the case
noted below,13 “the Audi Alteram Partem Rule, in essence, enforces the equality clause in
Article 14 and it is Applicable not only to quasa judicial bodies but also to administrative
orders adversely affecting the party in question unless the rule has been excluded by the act
in question.”14

Counsel for the Petitioner cited the decision in the case of Maneka Gandhi 15 is an authority
for the proposition that the principles of natural justice are an integral part of the guarantee of
equality assured by Article 14.An Order depriving a person of his Civil rights passed without

10
Globe Theatres v. State of Maharashtra [AIR1983 Bimbay 265]
11
Jitendra Nath v. W.B. Board of Exams [AIR 1983 Calc. 275]
12
[AIR 1991 SC 537]
13
Delhi Transport Corporation v. DTC Mazdoor Union [AIR 1999 SC 564]
14
Union of India v. Amrik Singh [AIR 1991 SC 564]
15
Maneka Gandhi v. Union of India [AIR 1978 SC 597]
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affording him an opportunity of being heard suffers from the vice of violation of natural
justice and his thus an arbitrary order.16

The Temporary Suspension of Telecom
Services (Public Emergency or Public Service) Rules, 2017
It is contended that Rule 2(2) is also extremely important, as it lays down twin requirements
for orders passed under Rule 2(1). First, it requires that every order passed by a competent
authority under Rule 2(1) must be a reasoned order. This requirement must be read to extend
not only to orders passed by a competent authority, but also to those orders passed by an
authorised officer which is to be sent for subsequent confirmation to the competent
authority. The reasoning of the authorised officer should not only indicate the necessity of
the measure but also what the “unavoidable” circumstance was which necessitated his
passing the order. The purpose of the aforesaid rule is to integrate the proportionality
analysis within the framework of the Rules.
Furthermore, Lastly, we think it necessary to reiterate that complete broad suspension of
telecom services, be it the Internet or otherwise, being a drastic measure, must be considered
by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must
assess the existence of an alternate less intrusive remedy. Having said so, we may note that
the aforesaid Suspension Rules have certain gaps, which are required to be considered by the
legislature.

II. Whether Suspension of Internet Facility Is In Violation of Article 19?

The counsel for the Petitioner most humbly submit that the Internet is the most powerful
mode of communication, speech and expression humanity could ever imagine. The
fundamental right to freedom of speech and expression guaranteed under Article 19 (1) (a)
of the Constitution is the foundation of democratic society. A free exchange of ideas,
dissemination of information without restrains, dissemination of knowledge, airing of
differing viewpoints, debating and forming once own views and expressing them, are the

16
Haji Abdool Shakoor & Company v. Union of India [JT 2001 (10) SC 438]

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basic indicia of a free society. The freedom alone makes it possible for people to formulate
their own views and opinions and to exercise their social, economic and political rights in a
free society in a informed manner. The right has been jealously guarded by the Courts. 17 The
fundamental right to freedom of speech and expression includes the right to educate,
informed and entertained.18 The importance of the freedom of speech and expression has
been repeatedly stressed by the SC in numerous decisions.19
It is contended that the Internet has made an unimaginable Impact on the fundamental right
to the freedom of speech and expression guaranteed under Article 19 (1) (a) of the
Constitution of India. The Internet democratises Article 19 (1) (a). The Internet is a medium,
platform, forum and a global loudspeaker of free speech and expression that is available to
the commoner as well. As a medium of free Speech and Expression, the Internet is also an
instrument to give birth to the social and political revolutionaries. For instance, Ukraine’s
‘Orange Revolution was unleashed by the Internet.

Now, we need to concern ourselves about the freedom of expression over the medium of
internet. There is no gainsaying that in today’s world the internet stands as the most utilized
and accessible medium for exchange of information.
At this point it is important to note the argument of Mr. Vinton G. Cerf, one of the ‘fathers
of the internet’. He argued that while the internet is very important, however, it cannot be
elevated to the status of a human right. 20 Technology, in his view, is an enabler of rights and
not a right in and of itself. He distinguishes between placing technologies among the exalted
category of other human rights, such as the freedom of conscience, equality etc. With great
respect to his opinion, the prevalence and extent of internet proliferation cannot be
undermined in one’s life.
Furthermore, we need to distinguish between the internet as a tool and the freedom of
expression through the internet. There is no dispute that freedom of speech and expression
includes the right to disseminate information to as wide a section of the population as is
possible. The wider range of circulation of information or its greater impact cannot restrict
the content of the right nor can it justify its denial.21

17
Union of India and Ors. v. The Motion picture Assn.& Ors. [AIR 1999 SC 2334]
18
Secretory, Ministry of Information & Broadcasting & Ors. v. Cricket Assn. of Bengal & Ors. [1995 2 SCC
161]
19
Indian Express Newspapers (Bombay) Pvt.Ltd. v. Union of India [1985 1 SCC 641]
20
Vinton G. Cerf, Internet Access is not a Human Right, The New York Times (January 04, 2012).
21
Secretary, Ministry of Information & Broadcasting Government of India v. Cricket Association of Bengal
[(1995) 2 SCC 161];
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The development of the jurisprudence in protecting the medium for expression can be traced
to the case of Indian Express v. Union of India22. In Odyssey Communications Pvt. Ltd. v.
Lokvidayan Sanghatana,23 it was held that the right of citizens to exhibit films on
Doordarshan, subject to the terms and conditions to be imposed by the Doordarshan, is a
part of the fundamental right of freedom of expression guaranteed under Article 19(1)(a),
which can be curtailed only under circumstances set out under Article 19(2). Further, this
Court expanded this protection to the use of airwaves in the case of Secretary, Ministry of
Information & Broadcasting, Government of India. 24 In this context, we may note that this
Court, in a catena of judgments, has recognized free speech as a fundamental right, and, as
technology has evolved, has recognized the freedom of speech and expression over different
media of expression. Expression through the internet has gained contemporary relevance and
is one of the major means of information diffusion. Therefore, the freedom of speech and
expression through the medium of internet is an integral part of Article 19(1) (a) and
accordingly, any restriction on the same must be in accordance with Article 19(2) of the
Constitution.
In this context, we need to note that the internet is also a very important tool for trade and
commerce. The globalization of the Indian economy and the rapid advances in information
and technology have opened up vast business avenues and transformed India as a global IT
hub. There is no doubt that there are certain trades which are completely dependent on the
internet. Such a right of trade through internet also fosters consumerism and availability of
choice. Therefore, the freedom of trade and commerce through the medium of the internet is
also constitutionally protected under Article 19(1) (g), subject to the restrictions provided
under Article 19(6).
The counsel for the Petitioner humbly submit that the right to freedom of speech and
expression under Article 19(1) (a), and the right to carry on any trade or business under
19(1) (g), using the medium of internet is constitutionally protected.
It was contended in Anuradha Bhasin v. Union of India and Ors. that the freedom of speech
and expression and the freedom to practice any profession or carry on any trade, business or
occupation over the medium of internet enjoys constitutional protection under Article 19(1)
(a) and Article 19(1) (g). The restriction upon such fundamental rights should be in

Shreya Singhal v. Union of India [(2015) 5 SCC 1].

22
(1985) 1 SCC 641
23
(1988) 3 SCC 410
24
(supra).
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consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of
the test of proportionality.
It was also contended in Ghulam Nabi Azad v. Union of India and Anr. that an order
suspending internet services indefinitely is impermissible under the Temporary Suspension
of Telecom Services (Public Emergency or Public Service) Rules, 2017.
Abridging Liberty

The counsel for the petitioner humbly states that the phraseology which is very wide
designedly confers extraordinary an extensive powers to the Magistrate to deal with the
situation effectively and swiftly. Action under section through meant for public good may
cause infringement or abridgement of individual liberty and so the power must be exercised
with the greatest caution. As has frequently been held, it is only in exceptional circumstances
where emergency of the gravest character is made out (Ex. Danger to human life, eminent
disturbance of public tranquillity or a riot or a affray or an urgent case of nuisance or
apprehended danger) that the Magistrate would be justified in making an order under Section
144 which would have the effect of interfering with the private rights of individuals.25

State Government

It is contended that power of the State Government on the code of 1898 to extend the period
indefinitely was held to violate Article 19 (1) (b) (c) (d) of the Constitution.26

Furthermore, Legal right should be regulated and not prohibited altogether for avoiding
breach of peace or disturbance to public tranquillity, it is only in an extremely extraordinary
situation, when other measures are bound to fail, that a total prohibition or suspension of their
rights may be resorted to as a last measure. 27 An absolute prohibition of all processions in all
streets at all times is Prima Facie unreasonable.28

III. Whether Suspension of Internet facility is in violation of Article 21?

25
Ganesh [38 CWN 388]
26
Kamalkant [A 1962 B 292 on Appeal A 1971 SC 1667]
27
Gulam Abbas [1981 CRLJ 1835 SC]
28
Ramnand [A 1932 M 294
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The counsel for the Petitioner cited the decision of the SC in Bandhua Mukti Morcha v.
Union of India29 held that the right to life guaranteed by Article 21 covers educational
facilities and the right to education is implicit therein and flows therefrom. The SC in Mohini
Jain v. State of Karnataka30 declared that on a cumulative reading of Article 21 (right to life
and personal liberty), it was clear that the framers pf the Constitution made it obligatory for
the state to provide education for its citizens. The Court said that the preamble promises to
secure justice-social, economic and political, which cannot be achieved and shall remain on
paper unless the people in the country are educated. The three-pronged justice promised by
the preamble is only an illusion to the teaming millions who are illiterate. It is only education
which equites a citizens to participate in achieving the objectives in the preamble. The court
emphasised the education as an integral component of human dignity.

Subsequent to the decision in Maneka Gandhi v. Union of India, 31 Article 21 has been held to
cover a wide gamut of areas and rights. The SC in Francis Coralie v. Union Territory of
Delhi again expanded the fundamental right to life. 32 “We think that the right to life includes
the right to live with human dignity and all that goes along with it, namely, the bare
necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities
for reading, writing and expressing oneself in diverse forms, freely moving about and mixing
and commingling with fellow human beings.”

Furthermore, from the foregoing detailed discussion in the present chapter, the various facets,
dimensions, functions and utilities of the Internet, the fundamental right to internet emerges
from its indispensability, usage under fact that the present society is an information society.
The fundamental right to Internet emerges from the fact that the innumerable human
activities are run by, or through, or on, or with the help of, the Internet. The Internet is a way
of life without which its users just cannot function. The Fundamental Right to Internet
emerges from its use as a way of life. Communication, human interaction, speech and
expression, publishing, education, searching for knowledge and information, business and
commerce, the senses of touch and smell, entertainment, and myriad other human activities
have been taken over by the Internet. The Right to Internet becomes basic and / or
fundamental, not due to legislative exercise but the reality that the global society is driven by
the internet and the various connected information and communication technology.
29
(1984) 3 SCC 161
30
(1992) 3 SCC 666
31
AIR 1978 SC 597
32
(1981) 1 SCC 609
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It is contended that the Internet has numerous dimensions and facets. It is the medium of free
speech and expression, source of knowledge and entertainment, hub of business and services,
platform for social and personal interaction, channel for publishing, platform for voting, and
the world that gives life and space to the virtual persona.

For instance, ‘Blogging’ revolutionises the freedom of speech and expression while sitting at
home, one can type out his views on any subject under the sun and post them on his blog.
Today, every citizen of the country is enabled by the Internet to exercise his right to freedom
of speech and expression under Article 19 (1) (a) of the Constitution, to the fullest extent
possible and that too before a global audience.

It is contended that the Internet has thus emerged as a way of life, without which “ WE THE
PEOPLE OF INDIA” rather, “ We the citizens of planet earth” cannot function. We are
vegetables without the Internet. The fundamental Right to Internet is hence a part of and can
be read into this numerous fundamental rights guaranteed in part III of the Constitution. Each
of the numerous dimensions and facets, finds a significant place in different fundamental
rights laid down in Part III of the Constitution of India, such as Articles 19(1) (a), 19 (1) (c),
19 (1) (g), 21 and 21A.

Since the Internet has emerged as a way of life, being a medium of free speech and
expression, platform for business and profession, hub of information and knowledge, world
of entertainment and gaming, medium to form associations and communities, it emerges as
fundamental right which in future is likely to knock at the door of the Basic Structure of The
Constitution. At this point of time, this may sound virtual fantasy but this virtual world
(Internet) is likely to find its way into the basic structure of the constitution and the place of
pride in Part III.

IV. Whether Petitioners are entitled for compensation?

The counsel for the Petitioner humbly states as a new judicial trend has manifested itself in
the era of personal liberty for some time now. This is the manifestation of the “dynamic
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constitutional jurisprudence” which the SC is evolving in this area. The question, however, is
whether the court can award compensation to one who may have unduly suffered detention or
bodily harm at the hands of the employees of the State, and whether the victim can move a
writ Petition for this purpose rather than take recourse to an ordinary civil suit.

Power to Award Compensation under Article 32

Counsel for the Petitioner cited the decision in the case of M.C. Mehta v. Union of India, 33
the SC held that the scope of Article 32 is wide enough to include the power to grant
compensation for violation of Fundamental Rights. The power of the Court under Article 32
is not merely preventive that is, preventing the infringement of fundamental rights, but also
remedial in nature, i.e. power to grant compensation. The Court said, “the power of the Court
to grant such remedial relief may include the power to award compensation in appropriate
cases.”

It is contended that in the precedent- setting judgement in Rudul Shah v. State of Bihar, 34 the
SC in a writ Petition under Article 32 awarded Rs. 35,000 as compensation against the State
of Bihar to the petitioner because he was kept in jail for 14 years after he had been acquitted
by a criminal court.

Furthermore, the sum ordered by the Court was only an interim measure. It did not preclude
the petitioner from suing the State and its officers for appropriate damages. This was a bold
departure from the existing legal position, but alarming situations call for new strategies and
methods to solve them. As the protector of the Fundamental Rights, it is incumbent on the SC
to provide an effective remedy in case such rights are violated. In view of the gross violation
of the petitioners personnel liberty for as long as 14 years, had legal technicalities been
allowed to stand in the way, it would have amounted to a surrender to State lawlessness,
showing cold indifference to the personal liberty of the individual, and his immense
sufferings certainly not contemplated by the Constitution-makers in the independent India.
Since Rudul Shah, there have been several cases of compensation being awarded to the
petitioners for infringement of Article 21.

33
AIR 1987 SC 1086
34
AIR 1983 SC 1086; (1983) 4 SCC 141
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Counsel for the Petitioner cited the decision in the case of Sebastian M. Hongray v. Union of
India35 the SC issued a writ of habeas corpus requiring the Government of India to
physically produce to person before it. These persons were taken to the military camp by
Jawans of the army. The government failed to produce them expressing its inability to do so.
The Court found the explanation given by the Government to be untenable and incorrect. The
truth was that this persons had met an unnatural death. In the circumstances, the SC keeping
in view the torture, agony and mental operation through which the writs the wives of the
persons in question had to pass, instead of imposing a fine on the Government for civil
contempt for the Court, required that “ as a means exemplary costs as is permissible in such
cases,” the Government must pay Rs. 1 Lac each of the aforesaid two women.

The court declared in the case of Boma Charan Oraon that anyone deprived illegally of his
personal liberty can come before it and ask for compensation for a violation of his
fundamental right under Article 21. Oraon as an under trial prisoner was detained in a lunatic
asylum for a six year after he had been certified as fit for a discharge. The Court awarded him
Rs. 15,000 as a compensation. The Court observed that no amount could possibly
compensate Oraon for a living in a lunatic asylum for a six years.36

It is contended that in a number of cases, the SC has awarded damages to the person who
have been detained illegally by he Government, or for a death in police custody. In a
Bhimsingh37 the SC awarded a compensation to the petitioner for his illegal detention in a
police custody which was held to constitute violation of his rights under Article 21 in a
[Article 22(2) as well]

Counsel for the petitioner cited the decision in the case of Saheli, 38 the state was held liable to
pay compensation to the mother of the deceased who had died because of police beating and
assault. In a Ravikant,39 damages awarded by HC under Article 226 for a violation of the
fundamental right under Article 21 of an under trial prisoner, who was handcuffed and taken
through the streets in procession by the police during investigation. The SC upheld the HC
decision.

35
AIR 1984 SC 1026
36
B.C. Oraon v. State of Bihar [AIR 1983]
37
Bhimsingh v. State of J&K [AIR 1986 SC 494]
38
Saheli v. Commr. Of Police [AIR 1990 SC 513]
39
State of Maharashtra v. Ravikant S. Patil [1991 AIR SCW 871]
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Counsel for the petitioner cited the decision in the case of Nilabati Behera v. State of Orissa, 40
awarding damages in a case of police custodial death, the SC has said of Article 32 that these
provision imposes an obligation on the Court “to forge such a new tools which may be
necessary for doing complete justice and enforcing the fundamental rights guaranteed in the
Constitution”. What happened in Nilabati was that the Petitioner’s son was taken into police
custody in a connection with the investigation of an offence of theft. Next day his dead body
was found on the railway track. The Court treated these as a case of custodial death as the
body bore many injury marks. The Court awarded compensation of Rs. 1,50,000 to the
petitioner.

The Court has emphasised in a Dhaman Joy Sharma v. State of Haryana 41 that “ the right of
personal liberty of a citizen is all too precious and no one can be permitted to interfere with it
except in accordance with the procedure established by law.” 42 The State must be held
responsible for the unlawful act of its officer and it must repair the damage to the citizens by
its officer.43

PRAYER

40
AIR 1993 SC 1960
41
AIR 1995 SC 1795
42
IBID 1807
43
IBID 1809
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Wherefore, in the light of the facts explained, Issues Raised, Argument Advanced, reasons
given and Authorities Cited, this

Hon’ble Supreme Court may be pleased to:

1. Declare that Suspension of Internet Facility is in violation of Art. 14;

2. Declare that Suspension of Internet Facility is in violation of Art. 19;
3. Declare that Suspension of Internet Facility is in violation of Art. 21;
4. Issue the Appropriate Writ;
5. Grant the Compensation for the losses suffered to the Petitioner;
6. Set Aside or Quash the Order of Suspension of Internet Service in the Union
Territory to restore all modes of communication.

AND/OR

Pass any other order, direction or relief that this Hon’ble Court may deem fit in the interest of
Justice, Equity And Good Conscience.

For this act of kindness, the Petitioner shall as in duty bound, forever humbly pray.

Sd/-

(Counsel on behalf of the Petitioner)

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