Sample Memo (1)

IN THE

HONOURABLE SUPREME COURT OF TOTOTIA

AT RAVIBHA

PETITIONS CLUBBED UNDER ARTICLE 142 OF THE CONSTITUTION

IN THE MATTER OF:

Writ Petition No. 886871 of 2014

Petition Filed Under Article 32 of the Constitution r/w Order XXXV, Rule 7 of Supreme

Court Rules, 1966

Mr.Gusfring and MCC Parent’s Association.……………………………….….. Petitionerv.

State of Karpush- Nadu…………………………………………………………..Respondent

CLUBBED WITH

Special Leave Petition No. 945902 of 2014

Petition Filed Under Article 136 of the Constitution r/w Order XVI, Rule 1 of Supreme

Court Rules, 1966

Sanga Shipping Company………………………………………………………Petitionerv.

Providence Shipping Company…….………………………………………….Respondent

-MEMORIAL ON BEHALF OF THE RESPONDENT-

039 R

Table of Contents

INDEX OF AUTHORITIES..............................................................................................................II

SUMMARY OF FACTS..................................................................................................................V

STATEMENT OF JURISDICTION..................................................................................................VII

ISSUES FOR CONSIDERATION...................................................................................................VIII

I. Whether there was a violation of fundamental rights by virtue of The Cellular Phone

(Prevention of Misuse) Act, 2012?.....................................................................................viii

SUMMARY OF ARGUMENTS.....................................................................................................VIII

ARGUMENTS ADVANCED............................................................................................................1

I. Whether there was a violation of fundamental rights by virtue of The Cellular Phone

(Prevention of Misuse) Act, 2012?........................................................................................1

A. There has been a violation of Article 19(1)(a) of the customers, retailers and

distributors.........................................................................................................................1

B. The restriction does not fall within the parameters mentioned in Article 19(2)........2

C. There has been a violation of Article 19(1)(g) of the Tokmore Ltd..........................4

D. The Cellular Phone (Prevention of Misuse) Act is unconstitutional, unreasonable

and arbitrary.......................................................................................................................5

PRAYER FOR RELIEF....................................................................................................................7

ii

INDEX OF AUTHORITIES

Cases

Aditya Thackeray v. TRAI, TDSAT, New Delhi Appeal No. 1 of 2012 (With M.A.

No. 20 of 2012) Decided On: 17.07.2012………………..………………………….6,8

Bennett and Coleman and Co. and Ors. Vs. UOI and Ors., AIR 1973 SC 106……...5

Chiranjit Lal Chowdhuri v. The Union of India and Ors., AIR1951SC41………..1

Commissioner of Police and Ors. v. Acharya Jagadishwarananda Avadhuta and Anr.,

(2004)12SCC770……………………………………………………….....10,11

Express Newspapers (Pvt.) Ltd.and Anr. v. UOI and Ors., AIR 1958 SC 578…...2,7

Gulam Abbas v. State of U.P, AIR 1981 SC 2198…………...…………………….11

Indian Banks' Association, Bombay and Ors. v. Devkala Consultancy Service and

Ors……………………………………………………………………………………..2

Life Insurance Corporation of India and Union of India and Anr v. Prof. Manubhai

D. Shah and Cinemart FoundationAIR 1993 SC 171.………….…………………...4

Maneka Gandhi v. Union of India and Anr. AIR1978SC597…………….…...…12

Mohammed Faruk v. State of MP and Ors., AIR 1970 SC 93…………..………….6

R.C. Cooper v. Union of India, AIR 1970 SC 564………………………………….2

Ram Sunder Dubey v. State, AIR1962All262……………...……….……………12

Romesh Thappar v. State of Madras, AIR 1950 SC 124…………………………….4

S. Rajan v. Jagjivan Ram, (1989) 2 SCC 572……………………..…………………7

Sakal Papers Ltd. and Ors. v. Union of India, AIR 1962 SC 305………………...…2

Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi, 1987 1 SCR 458…...……..3

The State Trading Corporation of India Ltd. and Ors. v. The Commercial Tax Officer,

Visakhapatnam and Ors., AIR 1963 SC 1811……………...………..………..1

iii

The Superintendent, Central Prison, Fategarh v. Dr. Ram Manohar Lohia, AIR 1960

SC 633...…………………………………………………………………………5

Virendra v. State of Punjab, AIR 1959 SC 896…….……………………………….8

Statutes

Article 17, International Covenant on Civil and Political Rights, 1966………………4

Article 25, Constitution of India………………………………………………………9

Article 29, Constitution of India……………………………………………………..13

Section 309, Indian Penal Code…………………………………………………...…11

Books

D.D Basu, Shorter Constitution of India, pg. 164……………………………………..5



V. G. Ramachandran’s Law of Writs, pg. 39………………………………….………3

iv

SUMMARY OF FACTS

Background

Zutshi, a secular, democratic nation has a diverse population in terms of religious and ethnic

groups. Most its citizens belong to the Hansa religion while there is a substantive proportion

of its population belonging to the Manjuman religion. Technology in Zutshi is rapidly

developing. Forty percent of its large group of cell phone users have access to internet

facilities such as GPRS and Edge on their cell phones and therefore to instant messaging

applications such as Whatsapp and BBM. The Cellular Phone (Prevention of Misuse) Bill

was passed in 2012. This Bill authorized the Central Government or the State Government to

restrict the number of messages that may be sent by a user in times whenever the Government

anticipated danger, as they deemed fit. The republic of Monga is a neighbouring

underdeveloped country where most of the individuals belong to the Manjuman religion.

The Disputes

In a situation of communal disharmony, infuriated Linglas attacked the Mongan immigrants

on June 16th, resulting in the death of 22 and injury of 63. Few days later, Sheikh Mario, a

leader of the Manjuman community, statedon national television that revenge would be

served.In another event, Linglas in Bulomanu, capital of the state of Apugarh, were targeted.

On 20th June, the Manjuman residents of Chindambara Nagar in Bulomanu retaliated causing

the death of 28 Linglas and injuring 42. Following this, there was a spread of messages aimed

at causing fear in the Lingla community and many Linglas headed back home. The

Government, under Section 5 of the Act, restricted the number of messages that a person

could send to five per day.

Thus, the present matter has come up before the Court by way of a writ petition filed by

Public Interest Litigation against the action of the Government.

v

STATEMENT OF JURISDICTION

WRIT PETITION NO. 754

Forum for Free Speech has filed Writ Petition no. 754 before the High Court of Apugarh

under Article 226 of the Constitution of Zutshi.

This has been transferred to the Supreme Court under Article 139A (1) of the Constitution of

Zutshi read with Rule 8 of Order XXXVIA of The Supreme Court Rules, 1966.

All of which is urged in detail in the written submission and is most humbly submitted.

vi

ISSUES FOR CONSIDERATION

I. WHETHER THERE WAS A VIOLATION OF FUNDAMENTAL RIGHTS BY VIRTUE OF

THE CELLULAR PHONE (PREVENTION OF MISUSE) ACT, 2012?

vii

SUMMARY OF ARGUMENTS

I. THE CELLULAR PHONE (PREVENTION OF MISUSE) ACT VIOLATED FUNDAMENTAL

RIGHTS 19(1)(A) AND 19(1)(G).

Article 19(1)(A) of the people of Zutshi has been violated by virtue of the restriction

placed by the Act. The restriction does not qualify as a valid one within the ambit of

Article 19(2) since it is not reasonable nor is it in the interests of the larger public.

There is a violation of Article 19(1)(g) of telecom service providing companies as

their right to conduct business was infringed by virtue of limiting the SMSes per

person to 5 per day, which in turn violates another essential fundamental right.

(Article 19(1)(a))

The restriction imposed by the Act is unconstitutional, unreasonable and arbitrary.

There is no proximate, logical and direct nexus between the restriction and its

objective. By virtue of the Act, the Executive possesses excessive subjective power,

which is arbitrarily exercised. The gravity of the action did not coincide with the

gravity of the situation. There were various other alternatives, which the State could

have adopted.

viii

ARGUMENTS ADVANCED

I. WHETHER THERE WAS A VIOLATION OF FUNDAMENTAL RIGHTS BY VIRTUE OF

THE CELLULAR PHONE (PREVENTION OF MISUSE) ACT, 2012?

[A] There has been a violation of Article 19(1)(a) of the people of Zutshi. [B] The

imposed restriction does not fall within the parameters mentioned in Article 19(2). [C] There

is a violation of Article 19(1)(g) of telecom service providing companies. [D] The Cellular

Phone (Prevention of Misuse) Act is unconstitutional, unreasonable and arbitrary.

A. There has been a violation of Article 19(1)(a) of the people of Zutshi.

The Petitioners contend that the right to speech and expression of the citizens of Zutshi

has been violated by Section 5 of the Act. Article 19(1)(a) of the Constitution of Zutshi states

that all citizens shall have the right to freedom of speech and expression. Freedom of

expression includes the freedom of propagation of ideas, their publication and circulation.1

The words ‘freedom of speech and expression’ must, therefore, be broadly construed to

include the freedom to circulate one's views by words of mouth or in writing or through

audio-visual instrumentalities. It, therefore, includes the right to propagate one's views

through the print media or through any communication channel.2 Thus, in the above case,

there has been a clear violation of the fundamental right to free speech and expression of the

parties as their SMSes are being curtailed to five per day on unreasonable grounds.

1 Romesh Thappar v. State of Madras, AIR 1950 SC 124.

2 Life Insurance Corporation of India and Union of India and Anr. v. Prof. Manubhai D.

Shah and Cinemart Foundation, AIR 1993 SC 171.

1

B. The restriction does not fall within the parameters mentioned in Article 19(2).

1. The restriction is not “reasonable” or “in the interests of public order”.

Reasonable restrictions can be imposed in the interests of the sovereignty and integrity of

India, security of the state, friendly relations with foreign states, public order, decency or

morality or in relation to contempt of court, defamation or incitement to an offence. 3

These restrictions must be “reasonable” and should have a proximate relationship to

achieve public order. If it does not, it cannot be said to be in the interests of the public. It has

been held that mere instigating speeches cannot be held as a violation of public order and a

restriction to it is not reasonable nor is it valid under Article 19(2).4 Similarly, the curtailing

of dissemination of messages is an unreasonable restriction and it does not have a proximate,

logical link to achieve the objective of ending the communal tension. There should be a

logical link between the gravity of the disturbance and the gravity of the restriction or the

restriction cannot be called reasonable.

2. The restriction is hampering the wider interests of the society.

Only reasonable restrictions can be imposed on essential commodities, such as those,

which facilitate freedom of speech and expression5. In the case of Aditya Thackery v. TRAI 6

it was concluded that a Regulation to cap the number of messages sent by a person is not a

law within the meaning of Article 19 (2) of the Constitution of India.

3 D.D Basu, Shorter Constitution of India, p. 164.

4 The Superintendent, Central Prison, Fategarh Vs. Dr. Ram Manohar Lohia, AIR 1960 SC

633

5 Bennett and Coleman and Co. and Ors. Vs. UOI and Ors., AIR 1973 SC 106.

6 Aditya Thackeray Vs. TRAI, TDSAT, New Delhi Appeal No. 1 of 2012 (With M.A. No. 20 of

2012) Decided On: 17.07.2012

2

The SMS cap by the TRAI was not only restricting the telemarketers but also the bonafide

users. A citizen's right to propagate his views, communicate the same and the fellow citizen's

right to receive is absolute and only subject to reasonable restrictions as envisaged under

Article 19(2) of the Constitution of India.7

Similarly, in this case, the restriction is being imposed on all the cell phone users across

the country. It is an infringement of their fundamental right to speech and expression and

cannot qualify as a “reasonable” restriction under Article 19(2), since it cannot be said to be

in the interests of public order and the interests of the wider public are being violated.

C. There has been a violation of Article 19(1)(g) of telecom service companies.

1. There is a violation of freedom of profession, trade and business.

There is an unreasonable restriction placed upon the companies from conducting its

business. Though a restriction may be placed in the interests of the general public, this

restriction does not qualify as a reasonable one. In the case of Mohammed Faruk v. State of

MP and Ors., it was elaborated that a prohibition imposed on the exercise of a fundamental

right to carry on an occupation, trade or business will not be regarded as reasonable, if it is

imposed not in the interest of the general public, but merely to respect the susceptibilities and

sentiments of a section of the people.8

Thus, in the present case, the freedom to conduct trade and business of the telecom

service companies cannot be curtailed on the grounds of public interest since it is denying a

basic fundamental right to majority of the population of Zutshi.

D. The Cellular Phone (Prevention of Misuse) Act is unconstitutional, unreasonable

and arbitrary.

1. There is no proximate, logical and direct nexus.

7 Id.8 Mohammed Faruk Vs. State of MP and Ors., AIR 1970 SC 93

3

Where the court applies the test of “proximate and direct nexus with the expression”, the

court also has to keep in mind that the restriction should be founded on the principle of least

invasiveness i.e. the restriction should be imposed in a manner and to the extent which is

unavoidable in a given situation.9 By issuing the Regulations, it is difficult to say that the

purport and object of the Constitution makers, as contained in Clause 2 of Article 19, has

been fulfilled.

Similarly, in this particular case, restricting the messages of only those who are

propagating disturbing messages is a more logical solution than to impose restrictions on the

genuine users of SMS services. Their rights cannot be infringed for the sake of a smaller

group of individuals.

Another reason why the restriction is not logical is that since 40% of all the cellphone

users have access to Internet on their phones, such messages can be spread through

Whatsapp, BBM, etc. There are various other forms of media too, through which the

messages can be propagated such as television, newspapers, pamphlets, phone calls, letters,

etc. The curtailing of the SMSes does not seem to logically be able to reach the end objective

it has framed. The Government’s inability to control violence cannot restrict the free flow of

information of its citizens.10

2. The Executive possesses excessive subjective power, which is arbitrarily exercised.

In the case of Virendra v. State of Punjab11, Section 3 of the Punjab Special Powers

(Press) Act was ruled out since the invoking of this Act was upto the subjective satisfaction12

of the State Government, i.e., if the state felt satisfied that the restriction needs to be imposed

9 S. Rajan Vs. Jagjivan Ram, (1989) 2 SCC 572

10 Paragraph 11, Proposition.

11 Virendra Vs. State of Punjab, AIR 1959 SC 896

12 D.D Basu, Shorter Constitution of India, pg. 201

4

for the maintenance of communal harmony and public order, the state could impose it. The

party affected was not even given the right of representation.

The present case is similar. The State Government has extraordinary powers to call upon

the Cellular Phone Act whenever it anticipates nuisance or danger. The Companies affected

by this act were not provided with a right to represent either and there was a violation of

Article 19.

PRAYER FOR RELIEF

Wherefore in light of the facts stated, issues raised, arguments advanced and authorities cited

it is most humbly prayed before this Honorable Court: -

ISSUE, a writ of Mandamus directing the State to lift the restriction imposed by the

Act.

DECLARE, Section 5 Cellular Phone (Prevention of Misuse) Act to be ultra vires of

the provisions of the Constitution of Zutshi.

5

And pass any such order which the Honorable Court may deem fit in the eyes of equity,

justice and good conscience.

All of which is most humbly and respectfully, submitted.

Date: 25th September 2012 S/d:

Place: The Republic of Zutshi (Counsel for the Petitioners)

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