NAVITAS, 2024 Participation Code: 26P

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

NAVITAS, 2024

Before
THE HONORABLE SUPREME COURT OF WADIYA

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF WADIYA

XWITTER…………………………….……………………...PETITIONER

v.

MEITY…………………………………...…….RESPONDENT

CLUBBED WITH

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF CHEEKU

REPUBLIC

EDITORS GUILD OF INDIA ……………….……………………PETITIONERS

V.

UNION OF INDIA……………………………….………..RESPONDENT

WRITTEN SUBMISSION ON THE BEHALF OF THE PETITIONER

COUNSEL APPEARING FOR THE PETITIONER

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TABLE OF CONTENTS

Contents
TABLE OF CONTENTS........................................................................................................II

LIST OF ABBREVIATIONS................................................................................................III

INDEX OF AUTHORITIES.................................................................................................IV

STATEMENT OF JURISDICTION......................................................................................V

STATEMENT OF FACTS...................................................................................................VII

STATEMENT OF ISSUES......................................................................................................1

SUMMARY OF ARGUMENTS..............................................................................................2

ARGUMENTS ADVANCED...................................................................................................4

ISSUE 1: Whether the FCU’s functioning & its classification of the report as ‘misleading’ is
violative of Article 14?................................................................................................................4
[1.1] The FCU Fulfills the Criteria of the ‘Class Legislation’ Ultra Vires To Article 14 & Not of A Reasonable
Classification................................................................................................................................................4
[1.2] The FCU’s Functioning & The Classification As “Misleading” Is Subject to Violation of Natural Justice
Enshrined Under Article 14 Of The Constitution..........................................................................................6

ISSUE 2: Whether the FCU’s functioning & its classification of the Report as ‘misleading’ is
violative of the freedoms enshrined under Article 19 (1) (a) & Article 19 (1) (g) of the
Constitution?..............................................................................................................................8
[2.1] Violative of the authority of the Courts and creates a Chilling Effect on Freedom of Speech: -...........8
[2.2] Fails the four-pronged test givenin Modern Dental College & Research Centre v State of MP..........10
[2.3] Violative of Ar. (19) (G) as It Discriminates Between a Medium Concerning Access to The
Information................................................................................................................................................11

ISSUE 3: Whether Xwitter is liable to lose its safe harbour protection under Sec. 79 (1) of the IT
Act, 2000?................................................................................................................................13
[3.1] Xwitter Comes Under the Exception Rule Of Sec. 79, IT Act 2000......................................................13
[3.2] Media Companies will bow down to the govt. motivated by business interests fearing the loss of
safe harbour...............................................................................................................................................14

PRAYER................................................................................................................................XV

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LIST OF ABBREVIATIONS

ABBREVIATION CORRESPONDING EXPANSION

& And

Anr. Another

Ar. Article

Govt. Government

Hon’ble Honourable

i.e., That is

Ors. Others

SEC. Section

SC Supreme Court

Cons. Constitution

P. Page

FCU Fact Check Unit

IT Act Information Technology Act, 2000

HC High Court

v. Versus

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INDEX OF AUTHORITIES

CASES

AK Kraipak & Ors v Union of India & Ors. [1970] 1 SCR 457................................................6

Anand Patwardhan v Union of India 1996 SCC OnLine Bom 306...........................................9

Anuradha Bhasin v Union of India (2020) SCC Online SC 25...............................................11

Bennett Coleman & Co & Ors v Union of India & Ors AIR 1973 SC 106.............................12

Gujarat Mazdoor Sabha v State of Gujarat and Anr (1998) 2 GLR 1135..................................4

KS Puttaswamy v Union of India (2017) 10 SCC 1.................................................................10

New York Times v United States 403 US 713 (1971)..............................................................11

Philadelphia Newspapers Inc v Hepps 475 US 767 (1986).....................................................9

Sakal Papers (P) Ltd v Union of India [1962] 3 SCR 842.......................................................11

Shreya Singhal v UOI (2015) 5 SCC 1......................................................................................8

State Bank of India v Rajesh Agarwal & Ors MANU SC 0308 2023.......................................6

State of Gujarat & Anr v Shri Ambica Mills Ltd & Anr (1974) 4 SCC 656..............................5

State of Rajasthan v Mukan Chand Ors 1964 SCR (6) 903.......................................................5

Zeran v America Online 129 F3d 327 (4th Cir 1997)................................................................9

STATUTES

Constitution of India 1950, art 14..............................................................................................4

Constitution of India 1950, art 19 (1) (a)...................................................................................8

Constitution of India 1950, art 19 (1) (g)...................................................................................8

IT Act 2000, sec 69A..................................................................................................................4

IT Act 2000, sec 79 (1) A.........................................................................................................13

IT Act 2000, sec 79 (2).............................................................................................................13

IT Act 2000, sec 79(2)................................................................................................................8

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IT Act 2000, sec 87(2) (zg)........................................................................................................7

IT Act 2000, sec 87....................................................................................................................7

OTHER AUTHORITIES

Solum Lawrence, ‘Freedom of Communicative Action: A Theory of the First Amendment

Freedom of Speech’, (1988-1989) 83 Nw U L Rev 54..........................................................9

RULES

Government of India (Allocation of Business) Rules 1961.......................................................5

IT Rules 2009, Rule 3(1)(b)(v)..................................................................................................5

IT rules 2021..............................................................................................................................6

Norms of Journalists Conduct, 2022........................................................................................12

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STATEMENT OF JURISDICTION

The Petitioners humbly submit to the jurisdiction of the Hon'ble Supreme Court of Wadiya in

pursuance of Article 32 and Article 132 of the Constitution of Wadiya on account of the

violation of Fundamental Rights.

Article 32 of the Constitution:

“32. Right to Constitutional Remedies—

(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 empower 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.”

Article 132 of the Constitution:

“132. Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a

High Court in the territory of India, whether in a civil, criminal or other proceeding, if the

High Court certifies under Article 134A that the case involves a substantial question of law

as t the interpretation of this Constitution

(2) Omitted

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(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court

on the ground that any such question as aforesaid has been wrongly decided Explanation For

the purposes of this article, the expression final order includes an order declaring an issue

which, if decided in favour of the appellant, would be sufficient for the final disposal of the

case.

The present memorial on behalf of the Petitioner sets forth the facts, contentions &

arguments in the present case.

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STATEMENT OF FACTS

This table provides a concise overview of the events in chronological order: -

EVENT DESCRIPTION

1. In the Republic of Wadiya, social media is integral to daily life, driven by

affordable internet access. Xwitter plays a vital role in news and discourse,

leading to its designation as a Significant Social Media Intermediary (SSMI)

under Wadiya’s IT Rules. However, Xwitter’s content policies prompted the

Wadiyan government to enhance regulations, particularly under the IT Act,

2000.

2. To counter misinformation, the govt. established the FCU under the MeitY,

operating within the Press Information Bureau of Wadiya (PIBW). The FCU,

designated as the official fact-checking unit by the MeitY is tasked with

identifying misinformation related to government business.

3. Controversy erupted when Flay M’Douza published a report on March 25,

2024, challenging government unemployment statistics. The FCU labeled the

report “misleading,” leading Xwitter to add the label without removing the post.

This resulted in an attack in the Wadiyan Parliament by the group “Students for

an Employed Wadiya,” inspired by Flay’s report.

4. On March 31, 2024, MeitY ordered Xwitter to block Flay’s post and issued a

SCN for failing to exercise due diligence. Xwitter challenged the order in the

High Court of Sampark but faced an Rs. 50 lakhs fine. The case escalated to the

Supreme Court, while journalists and the Editors Guild of Wadiya filed

petitions challenging the constitutionality of the FCU, arguing it threatened free

speech and press freedom.

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STATEMENT OF ISSUES

[ISSUE 1]

Whether the FCU’s functioning & its classification of the report as ‘misleading’ is violative

of Article 14?

[ISSUE 2]

Whether the FCU’s functioning & its classification of the Report as ‘misleading’ is violative

of the freedoms enshrined under Article 19 (1) (a) & Article 19 (1) (g) of the Constitution?

[ISSUE 3]

Whether Xwitter is liable to lose its safe harbour protection under Sec. 79 (1) of the IT Act,

2000?

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SUMMARY OF ARGUMENTS

[ISSUE 1] Whether the FCU’s functioning & its classification of the report as

‘misleading’ is violative of Article 14?

It is humbly submitted that the "right to be heard" under Article 14 is breached when users

are denied the ability to voice their views. The Union Government encroached on the

jurisdiction of the courts, effectively making it the sole arbiter through its Fact Checking

Unit. The Union government's fact-checking unit becomes the "sole authority" in determining

whether a piece of news or information is real or fake. ‘Misleading’ is entirely subjective vis-

à-vis what content can be categorized into it & it comes as a violation of the Shreya Singhal

Case where Sec. 66A of the IT Act was struck down because it suffered from the ‘vice of

vagueness.’

[ISSUE 2] Whether the FCU’s functioning & its classification of the Report as

‘misleading’ is violative of the freedoms enshrined under Article 19 (1) (a) & Article 19

(1) (g) of the Constitution?

The Counsel for the petitioners humbly submits that broad & imprecise terms such as

‘Misleading’ would lead to self-censorship by social media users resulting in excessive

regulation & suppression of free speech which will make the restrictions as non-exhaustive

which will violate Kaushal Kishore vs Union of India where it was held that the restrictions

in Ar. 19 (2) in relation to the Ar. 19 (1) (a) are exhaustive., the SC ruled that these

restrictions are exhaustive. Moreover, social media intermediaries might opt to remove

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information to avoid the risk of losing their safe harbour protection. It fails the ‘test of

proportionality’ explained under the K. S. Puttaswamy v. Union of India.

[ISSUE 3] Whether Xwitter is liable to lose its safe harbour protection under Sec. 79 (1)

of the IT Act, 2000?

It is most humbly submitted that the Formation of a fact-checking unit conflicts with Sec. 79

(1) of the Information Technology Act, 2000 (IT Act) which is a safe harbour provision for

social media intermediaries. The SC held in the Shreya Singhal v Union of India 2015 that

notifications to take down content should be issued through a court order. It enables the

Union Government to bypass this process & address the social media intermediary directly.

The Union would act as both the Judge & the Prosecutor. The Social Media Companies are

motivated by business interests & would comply gladly, fearing the loss of safe harbour

protections under Sec. 79(1) of the IT Act of 2002. It is also a violation of Sec. 79(3)(b) to

mean that an intermediary would lose safe harbour only if it did not remove or disable access

to identified material despite receiving actual knowledge of a court order or a legislative body

& not an executive body.

Intermediaries are granted conditional immunity under Sec. 79(1) of the IT Act with respect

to any information, data, or communication link that they host or make available to third

parties. The IT Act's Sec. 79(2) & 79(3) apply to this immunity.

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ARGUMENTS ADVANCED

ISSUE 1: Whether the FCU’s functioning & its classification of the report as

‘misleading’ is violative of Article 14?

1. The Petitioner humbly submits that the FCU functioning fails the Survival Test of Article

141 &, specifically, both parts of it: equality before the law & equal protection of the law.

Article 14 does not permit class legislation as done in this case. It also comes as a violation of

the natural justice in the Ar. 14 as there is no safeguard against bias & entirely subjective.

Additionally, it makes the government the judge in its own case. The impugned rule even

fails the proportionality test as given in the Gujarat Mazdoor Sabha & Anr v State of

Gujarat2. This rule works outside the ambit of the IT Act of 2000 which is the parent act as it

is not made under Sec. 87(2)(z)3 of the IT Act, 2000.

[1.1] The FCU Fulfills the Criteria of the ‘Class Legislation’ Ultra Vires To Article 14 &

Not of A Reasonable Classification

2. Article 14 only authorizes reasonable classification, but not class legislation. Here, the

class legislation is being done in the name of class legislation as it categorizes only the

Central Government's business. Even if the thought process is good i.e. removing content

that is fraudulent, or misleading – but doing this only for the business of the Central

Government is class legislation.

3. In this case, where the due diligence is in question, the intent or the knowledge will not

matter which will come as a violation of Article 14, following the decision of the SC in the

State of Gujarat & Anr v Shri Ambica Mills Ltd & Anr 4. Thus, this becomes the example or

the case of over-inclusion since it includes protected speech but disregards intent.

1
Constitution of India 1950, art 14.
2
Gujarat Mazdoor Sabha v State of Gujarat and Anr (1998) 2 GLR 1135.
3
IT Act 2000, sec 69A.
4
State of Gujarat & Anr v Shri Ambica Mills Ltd & Anr (1974) 4 SCC 656.

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4. The amended Rule 3(1)(b)(v)5 of the IT Rules, 2021 from which FCU is formed mentions

the term ‘Business of the Central Government.’ But the ‘Business of the Central Government’

is not explicitly defined as well as in the Government of India (Allocation of Business) Rules,

19616; Entry 97 in ‘List I’ has a residuary provision, making it expansive. This expansion

allows the executive the form rules even on matters that the Parliament has not legislated. So,

it becomes almost impossible to comprehend what is exactly the ‘Business of the Central

Government.’

5. In the State of Rajasthan v Mukan Chand Ors. 7, there should be a rationale nexus as to how

a separate distinguishment is being made & the differentiation must be evident between those

within & outside the class based on intelligible differentia. There should be a justification for

preferential treatment. Thus, there is no justification for why the Central Government

business-related content a class apart stands or should stand on a special footing distinct from

other information. Why not the information of the state government or any other private

individuals? Only the Central Government has the power to decide on this not even the state

govt.

6. The Life Insurance Corporation of India would have accurate & up-to-date information on

its business. Similarly, the State Bank of India & hundreds of other entities. They do not have

this authority. Thus, this method of class legislation in the name of classification directly

violates the essence of Article 14 of the Constitution i.e. class legislation.

[1.2] The FCU’s Functioning & The Classification As “Misleading” Is Subject to

Violation of Natural Justice Enshrined Under Article 14 Of The Constitution

5
IT Rules 2009, Rule 3(1)(b)(v).
6
Government of India (Allocation of Business) Rules 1961.
7
State of Rajasthan v Mukan Chand Ors 1964 SCR (6) 903.

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7. In the notifications & the IT rules of 2021 8, there is no mention of guidelines, no procedure

for hearing, & no opportunity to counter the case that some information is fake, false or

misleading. This is just based on the subjective justification of the government’s will as well

& it is fact-checked based on unknown material that is not revealed even to the grievance

officer on which the FCU acted & it additionally infringes the right to information established

through the principles of Article 14.

8. This rule makes the Central Government a judge in its own cause which again goes against

the natural justice & right to be heard because it is the ‘business of the central government.’

This method or process of being a judge in your own case was declared unconstitutional in

the AK Kraipak & Ors v Union of India & Ors.9

9. As est. in State Bank of India v Rajesh Agarwal & Ors. 10, there has to be a hearing in the

court which has the respective authority before reaching to a decision in a conflict & any

govt. entity cannot decide on its own especially when the fundamental rights are in question.

[1.3] The FCU’s Functioning & The Classification As “Misleading” Fails the

Established Proportionality Test

10. It fails the five-fold tests as established in Gujarat Mazdoor Sabha & Anr v State of

Gujarat which is seen as a parameter for checking in case of a violation of a fundamental

right. The five-fold tests are as follows: -

(i) A law interfering with fundamental rights must be in pursuit of a legitimate State

aim.

8
IT rules 2021.
9
AK Kraipak & Ors v Union of India & Ors. [1970] 1 SCR 457.
10
State Bank of India v Rajesh Agarwal & Ors MANU SC 0308 2023.

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(ii) Any law that infringes, abridges or abrogates the exercise of fundamental rights

must bear a rational connection between the measure, the factual situation & the

objective or aim of the statute.

(iii) The measures must be shown to be (a) necessary & (b) not more excessive than

needed.

(iv) Such restrictions must be shown to be necessary to protect or advance legitimate

purposes; &

(v) The State must provide sufficient safeguards against the abuse of such

interference.

11. The FCU does not have a legitimate state aim & even fact-checking cannot be put in this

regard as PIB has been doing the same thing since its inception & there is no such evidence/

report/ suggestion by an established authority to show that there is a need of an additional

unit.

12. The measures in point (iii) can only come into question when the authority to decide will

have the authority to decide on the respective matter. In this case, the FCU doesn’t have the

authority to decide whether the information is misleading or not. The grievance redressal

mechanism is meaningless for the officer in question simply does not know & cannot know

the basis for the identification as fake, false or misleading of any content.

[1.4] The FCU’s Functioning & the Classification as “Misleading” is Ultra Vires (IT

ACT)

13. Sec. 8711 of the IT Act empowers the Central Government to issue rules through

notification to carry out the Act's provisions. The challenged rule falls under Sec. 87(2)(zg)12

- the guidelines to be observed by the intermediaries under sub-Sec. (2) of Sec. 79. Sec. 87(2)

11
IT Act 2000, sec 87.
12
IT Act 2000, sec 87(2) (zg).

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(zg) makes a clear reference to Sec. 79(2)13, which is about safe harbour. This is another

reason it is impossible to argue that the impugned Rule does not result in loss of safe harbour

if not followed; the loss of safe harbour is the Rule’s intent.

14. It is very clear that there is no obvious connection between a fact-checking unit & social

media or intermediaries. Thus, the Central Government cannot, by a Rule, create an FCU to

‘identify’ any information.

ISSUE 2: Whether the FCU’s functioning & its classification of the Report as

‘misleading’ is violative of the freedoms enshrined under Article 19 (1) (a) & Article 19

(1) (g) of the Constitution?

15. The Petitioner humbly submits that FCU’s functioning & its classification of the Report

as ‘misleading’ is violative of the freedoms enshrined under Article 19 (1) (a)14 & Article 19

(1) (g)15 of the Constitution.

[2.1] Violative of the authority of the Courts and creates a Chilling Effect on Freedom of

Speech: -

16. In Shreya Singhal v Union of India16, it was held that only the court order has been given

this power of takedown of any content as the SC also held that in the same case that it will be

very difficult to look at the millions of requests by the people & the government. Thus, this

shall curtail the freedom of speech & expression under the Ar. 19 (1) (a) when no

intermediary could judge the legitimacy of such requests.

17. In the Zeran v America Online case17, it was held that tort liability in the field of free

expression would have an obvious ‘chilling effect.’ It is impossible for service providers to

13
IT Act 2000, sec 79(2).
14
Constitution of India 1950, art 19 (1) (a).
15
Constitution of India 1950, art 19 (1) (g).
16
Shreya Singhal v UOI (2015) 5 SCC 1.
17
Zeran v America Online 129 F3d 327 (4th Cir 1997).

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screen everyone & look through their millions of postings for potential concerns. So, they

might choose to drastically limit the quantity & type of messages that are being posted. The

case of Philadelphia Newspapers, Inc. v. Hepps18 ruled out the same thing.

18. In Anand Patwardhan v Union of India 19, Citizens in this free democracy have the right to

express themselves through print & electronic media, even if they disagree with the views of

the government. In this case, a documentary was allowed to air on the Doordarshan even

though it was a staunch opp. of the govt. Everyone has the fundamental right to create their

own opinions about any problem. He can form & inform using whatever authorized means.

19. Archibald Cox20 said on “First Amendment” that there are some ideas that seem

completely unethical but are still followed. Adolf Hitler’s brutal theory of a ‘master race’ is

sufficient example. The liberty cannot be denied to some ideas & saved for others. The reason

is simple: No Government, has the wisdom accurately to separate what is true from what is

debatable. The decision that risks of suppression are greater than the harm done by bad ideas

rests upon faith in the ultimate good sense & decency of free people.

[2.2] Fails the four-pronged test givenin Modern Dental College & Research Centre v

State of MP

20. There is a four-pronged test propounded in Modern Dental College & Research Centre v

State of MP21 & then followed in KS Puttaswamy v Union of India22. It is as follows: -

I. A measure restricting a right must have a legitimate goal (legitimate goal

stage).

18
Philadelphia Newspapers Inc v Hepps 475 US 767 (1986).
19
Anand Patwardhan v Union of India 1996 SCC OnLine Bom 306.
20
Solum Lawrence, ‘Freedom of Communicative Action: A Theory of the First Amendment Freedom of
Speech’, (1988-1989) 83 Nw U L Rev 54.
21
Modern Dental College & Research Centre v State of MP AIR 2009 SC 2432.
22
KS Puttaswamy v Union of India (2017) 10 SCC 1.

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- The FCU doesn’t have a legitimate goal as the same work was being done by the PIB

from many years & even if it has, it cannot be held valid as it becomes the judge in its

own case violating the natural justice & the authority of the courts.

II. It must be a suitable means of furthering this goal (suitability or rational

connection stage).

- There is no mention in the IT rules, 2021 as to how the functioning of the FCU will

help in furthering of a goal that is not even present in this case.

III. There must not be any less restrictive but equally effective alternative

(necessity stage).

- There is no alternative available that can be said efficient as there is just a mention of

Redressal Grievance Committee but how it can be called efficient when its redressal

offices don’t have the data or the info. He/she is using to decide on a matter.

IV. The measure must not have a disproportionate impact on the right-holder

(balancing stage).

21. The measure or the step taken has a direct disproportionate impact on the right-holder as

the only thing it does is to ask an intermediary to remove a content that it finds to be fake, or

like in this case – ‘misleading.’ So, it is the harm of the content maker as it does not provide

any alternative solution.

22. In the Anuradha Bhasin v. Union of India23, the principles very similar to the four-pronged

test were said out to determine if a state action is legitimate or not. One of them was that

order needs to be backed up by enough evidence & be subject to court review because it

significantly affects the party’s basic rights.

23
Anuradha Bhasin v Union of India (2020) SCC Online SC 25.

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23. In the New York Times v. United States 24 or famously known as Pentagon Papers case, it

was held that any system of restraints of (freedom of) expression upon publication of material

defamatory of the State or of the officials comes to the Court. This cannot be done either by

the State or by its officials. In other words, the Government cannot apprehend that they may

be defamed, have the right to impose a restraint upon the publication. (Similar to Sakal

Papers (P) Ltd v Union of India25)

[2.3] Violative of Ar. (19) (G) as It Discriminates Between a Medium Concerning Access

to The Information

24. There is no doubt that that the content does not become fake, false or misleading just

because of its medium. The medium does not determine the message. But the impugned FCU

applies only to online content. So, if there is any print version, it is not subjected to the same

level of scrutiny. This clearly indicates that an actual, objective judgment of what is fake,

false or misleading is of little significance to the government.

25. It will surely lead to the discrimination to the writers, editors, journalists sitting & making

content on the social media in comparison to the people making the same informational

content through any other medium & it comes as the violation of Ar. (19) (g). In the Bennett

Coleman & Co & Ors v Union of India & Ors 26, it was said that the press, the fourth estate,

needs infrastructure to generate & disseminate news. Control over it & unencumbered

circulation are protected.

26. These days, social media is the main source for news distribution. The contested rule

targets journalists & editors & some of them even work in print media, as well as social

media content (about which no laws & regulations are proposed). There is, thus, a direct

24
New York Times v United States 403 US 713 (1971).
25
Sakal Papers (P) Ltd v Union of India [1962] 3 SCR 842.
26
Bennett Coleman & Co & Ors v Union of India & Ors AIR 1973 SC 106.

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infringement of Article 19(1)(g). It will mean that if they would have said the same thing with

same data, facts & premise, no action wouldn’t have been taken onto them. This is a clear

violation.

27. So, it compels journalists and editors to post a purely biased version online. The official

position is stated explicitly in the Press Council of India's guidelines 27 that a journalistic

position can be on the one hand and the govt. view on the other hand. The FCU, however,

essentially simply pushes the government's perspective.

28. The government had one set of figures for the COVID-19 patients & deaths. Others

reported differently in print. & they did so online as well. Govt. did not do anything as a

matter of the fact that for changing or restricting these reports when they showed the other

side of the picture. So, why such a double-faced nature in this case?

29. Additionally, Others reported differently in print. & they did so online as well. Would the

online content be ‘fake, false or misleading’ but the identical content in hard copy not? It

again comes as a violation of the Ar. 19(1)(g). This unjustly produces a contradiction in

Article 19, which is invalid & does not meet the survival test of Article 14.

ISSUE 3: Whether Xwitter is liable to lose its safe harbour protection under Sec. 79 (1)

of the IT Act, 2000?

30. The Petitioner humbly submits that the Xwitter is not liable to lose its safe harbour

protection under Sec. 79 (1)28 of the IT Act, 2000 as Xwitter will not be liable for the

information uploaded by any third party i.e, the user of the Xwitter.

27
Norms of Journalists Conduct, 2022.
28
IT Act 2000, sec 79 (1) A.

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[3.1] Xwitter Comes Under the Exception Rule Of Sec. 79, IT Act 2000

31. The Information Technology Act, 2000 (henceforth referred to as the "IT Act"), Sec. 79,

exempts intermediaries from responsibility in specific situations. It specifies that

intermediaries will not be held accountable for any data, information, or communication link

that they make available by third parties. The Act only provides "safe harbour protection" in

situations when the intermediary just serves as a conduit & is not involved in the creation or

alteration of the data or information.

32. The IT Act's Sec. 79(2)29 primarily addresses situations in which the intermediary engages

in technical, automated, & passive activities. Consequently, intermediaries must not possess

knowledge or control over the information that is sent or stored in order for Sec. 79(2) of the

IT Act to be applicable.

33. Xwriiter did not have the knowledge of the content being uploaded by the Flay M’Douza

until it was uploaded on its platform & flagged by the govt. FCU as misleading. The Xwitter

has the control over the information & it also flagged the xweet as misleading based on the

FCU’s update on Xwitter. So, it cannot be said that the Xwitter did not take reasonable

restriction as per the govt. notice.

34. The MeitY’s show case notice for Xwitter stating that it did not take any exercise the

necessary standard of due diligence required, for it took no ‘reasonable efforts’ to not host

information in respect to the business of the Central Government. If we go word by word –

due diligence of the government is flawed because there is no requirement of knowledge or

intent here; the reasonable efforts were done by the Xwitter fagging the report as misleading

on its platform; & the business of the government fails the proportionality test of Ar. 14

discussed in previous arguments.

29
IT Act 2000, sec 79 (2).

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NAVITAS, 2024

35. So, the whole show cause cause notice becomes flawed & unconstitutional & thus,

leading the Xwitter to not lose its safe harbour.

[3.2] Media Companies will bow down to the govt. motivated by business interests

fearing the loss of safe harbour.

36. The SC held in the Shreya Singhal v Union of India 2015 that notifications to take down

content should be issued through a court order. It enables the Union Government to bypass

this process & address the social media intermediary directly. The Union would act as both

the Judge & the Prosecutor. The Social Media Companies are motivated by business interests

& would comply gladly, fearing the loss of safe harbour protections under Sec. 79(1) of the

IT Act. So, it become unconstitutional & arbitrary to give so much power to the govt.

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NAVITAS, 2024
[PRAYER]

PRAYER

Therefore, in the light of the facts stated, arguments advanced, & authorities cited, it is

most humbly prayed & implored before the Hon'ble SC of Wadiya, that it may be

graciously pleased to adjudge & declare in the case of Xwitter & Ors. v. Union of

Wadiya:

The FCU’s functioning & its classification of the Report as ‘misleading’ is

I.
violative of Article 14 of the Constitution.

The FCU’s functioning & its classification of the Report as ‘misleading’ is

II.
violative of the freedoms enshrined under Article 19 (1) (a) & Article 19 (1) (g) of

the Constitution.

III. Xwitter is not liable to lose its safe harbour protection under Sec. 79 (1) of the

IT Act.

AND/OR

& also, pass any order that The Hon'ble SC may deem fit in the interest of equity, justice, &

good conscience.

For this gracious act of kindness, the Petitioner shall duty-bound forever pray.

All of which is respectfully submitted.

Sd/-

Counsel on behalf of

Petitioner

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