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    Proposition

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    Kaushal Suresh Sanaba

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    Proposition

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    Kaushal Suresh Sanaba

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    of 9

    6TH INTRA-MOOT COURT COMPETITION – 2024

    Organized by

    MOOT COURT ASSOCIATION


    SCHOOL OF LEGAL STUDIES
    REVA UNIVERSITY, BENGALURU

    PROPOSITION

    DATE: 23RD & 24TH OCT, 2024

    VENUE:
    SCHOOL OF LEGAL STUDIES, REVA UNIVERSITY,
    BENGALURU, KARNATAKA – 560064

    Scan QR for Registration:

    E – MAIL: sols.mca@reva.edu.in
    FACTUAL MATRIX

    1. In response to escalating concerns over national security, misinformation,


    and the influence of foreign entities on Indian digital platforms, the Indian
    Parliament enacted the "Digital Governance and Regulation Act, 2024"
    (DGRA 2024). This legislation was designed to enhance the regulation of
    digital content, enforce stricter data localisation norms, and grant
    extensive powers to the newly formed regulatory body, the National Digital
    Authority (NDA).

    2. The DGRA 2024 provides the NDA with the authority to order the removal
    of online content deemed a threat to national security, public order or the
    sovereignty and integrity of India. This power can be exercised without
    requiring prior judicial oversight, which raises concerns about the
    potential for abuse and the lack of accountability in content regulation.

    3. The Act mandates that all digital platforms operating in India must store
    user data exclusively on servers located within the country. The rationale
    behind this provision is to enhance data security and ensure that the
    Indian government can access user data when needed. However, the
    mandatory data localization requirement has sparked fears about the
    infringement of user privacy, particularly because the Act allows
    government agencies to access this data without a warrant if they cite
    national security concerns.

    4. Another significant aspect of the DGRA 2024 is the power granted to the
    NDA to suspend the operations of any digital platform that fails to comply
    with its orders. This suspension can take effect immediately and remain in
    place pending the outcome of an inquiry. This provision has raised alarms
    among digital businesses, as the lack of immediate recourse can lead to
    significant disruptions in operations and services.

    5. The Act prescribes stringent penalties, including imprisonment, for


    individuals or entities found guilty of disseminating misinformation or
    content that could incite violence or disrupt public order. The broad and
    vague criteria for determining misinformation have led to concerns that
    this provision could be used to suppress dissenting voices and restrict
    freedom of speech.

    6. The DGRA 2024 also grants immunity to officials of the NDA for actions
    taken in "good faith" under the provisions of this law. This immunity
    shields NDA officials from any legal consequences, which critics argue
    could lead to a lack of accountability and potential misuse of power.

    7. A coalition of digital rights groups, media houses, and opposition political


    parties has challenged the constitutionality of the DGRA 2024 by filing a
    writ petition before the Supreme Court of India under Article 32 of the
    Constitution. The petitioners argue that the Act infringes upon several
    fundamental rights, including the right to freedom of speech and
    expression, the right to privacy, and the right to equality.

    8. The petitioners contend that the Act's provisions allowing content removal
    without judicial oversight impose unreasonable restrictions on freedom of
    speech and expression. They argue that the broad and undefined criteria
    for content removal could lead to arbitrary censorship and stifle legitimate
    criticism and dissent.

    9. The mandatory data localization requirement and the provision allowing


    government agencies to access user data without a warrant are argued to
    infringe upon the right to privacy. The petitioners claim that these
    provisions lack the necessary safeguards to prevent misuse and overreach
    by the government, thereby violating the right to privacy as recognized by
    the Supreme Court in the Puttaswamy judgment.

    10. The grant of immunity to NDA officials is challenged as being


    discriminatory and violative of the right to equality. The petitioners argue
    that this provision creates an unequal application of the law and
    undermines the principles of accountability and transparency.

    11. The petitioners also raise concerns about the centralization of


    regulatory power in the NDA, arguing that it undermines the federal
    structure of governance by encroaching on the powers of state
    governments. They contend that the concentration of such extensive
    powers in a central authority is inconsistent with the principles of
    federalism enshrined in the Constitution.

    12. To further analyze the implications of the DGRA 2024, consider the
    following hypothetical scenario: A globally popular social media platform,
    "ConnectWorld," has a significant user base in India. Under the DGRA
    2024, ConnectWorld is required to store all user data on servers located
    within India and faces strict scrutiny from the NDA regarding the content
    posted by its users.

    13. The NDA orders ConnectWorld to remove a series of posts criticizing the
    government's economic policies, deeming them a threat to public order.
    The platform is given 24 hours to comply, without any opportunity to
    challenge the order in court beforehand. This situation illustrates the
    potential for arbitrary content removal and the suppression of dissenting
    opinions.

    14. Following a mass protest organized through ConnectWorld, the NDA


    demands access to user data, including private messages exchanged
    between the protest organizers, citing national security concerns. The
    platform complies but raises concerns about user privacy and the lack of
    judicial oversight in data access requests.

    15. ConnectWorld delays compliance with one of the NDA's content removal
    orders, arguing that the content does not pose any real threat. In response,
    the NDA suspends the platform's operations in India pending an inquiry.
    This suspension leads to significant disruption for millions of users and
    affects the platform's business operations, highlighting the impact of the
    NDA's powers on digital businesses.

    16. The platform's executives face criminal charges for allegedly allowing
    the spread of misinformation, despite the company's efforts to implement
    fact-checking mechanisms. Meanwhile, NDA officials involved in the
    enforcement actions are granted immunity under the DGRA 2024, raising
    concerns about the lack of accountability for those enforcing the law.
    DIGITAL GOVERNANCE AND REGULATION ACT, 2024 (DGRA 2024)

    An Act to provide for the regulation of digital content, data


    localization, and to establish the National Digital Authority (NDA) with
    powers to oversee and enforce compliance in matters of national
    security, public order, and the sovereignty and integrity of India.

    Preamble

    Whereas it is expedient to enact legislation to address the growing concerns


    over national security, misinformation, and the influence of foreign entities
    on Indian digital platforms;
    And whereas it is necessary to enforce stricter data localization norms and
    ensure the protection of India's sovereignty and integrity in the digital domain;
    It is hereby enacted as follows:

    CHAPTER I

    PRELIMINARY

    Section 1: Short Title, Extent, and Commencement

    1. This Act may be called the Digital Governance and Regulation Act,
    2024.
    2. It extends to the whole of India.
    3. It shall come into force on such date as the Central Government may,
    by notification in the Official Gazette, appoint.

    Section 2: Definitions

    1. "Digital Platform" means any online platform, website, or mobile


    application that allows users to create, share, or exchange content,
    including social media platforms, news portals, and messaging services.
    2. "National Digital Authority (NDA)" means the regulatory body
    established under this Act.
    3. "Data Localization" means the requirement for storing all user data
    generated by digital platforms operating in India on servers located
    within the territory of India.
    4. "Content Removal Order" means an order issued by the NDA directing
    the removal of specific online content deemed a threat to national
    security, public order, or the sovereignty and integrity of India.

    CHAPTER II

    ESTABLISHMENT OF THE NATIONAL DIGITAL AUTHORITY

    Section 3: Establishment of the National Digital Authority

    1. The Central Government shall, by notification, establish a body to be


    known as the National Digital Authority (NDA).
    2. The NDA shall consist of a Chairperson and such other members as
    may be appointed by the Central Government.
    3. The NDA shall have its headquarters in New Delhi and may establish
    regional offices as required.

    Section 4: Powers and Functions of the NDA

    1. The NDA shall have the power to regulate digital content, enforce data
    localization norms, and ensure compliance with the provisions of this
    Act.
    2. The NDA shall have the authority to issue Content Removal Orders to
    any digital platform operating in India.
    3. The NDA may suspend the operations of any digital platform that fails
    to comply with its orders, pending the outcome of an inquiry.
    4. The NDA shall have the power to prescribe penalties for non-compliance
    with the provisions of this Act.

    CHAPTER III

    REGULATION OF DIGITAL CONTENT

    Section 5: Content Removal Orders

    1. The NDA may issue a Content Removal Order if it determines that the
    content in question poses a threat to national security, public order, or
    the sovereignty and integrity of India.
    2. The Content Removal Order shall specify the content to be removed and
    the timeframe for compliance.
    3. The digital platform shall comply with the Content Removal Order
    within the specified timeframe, failing which the NDA may take further
    action, including suspension of the platform's operations.

    Section 6: Appeals

    1. Any digital platform aggrieved by a Content Removal Order issued by


    the NDA may appeal to the Central Government within 15 days of the
    order.
    2. The decision of the Central Government on the appeal shall be final and
    binding.

    CHAPTER IV

    DATA LOCALIZATION AND ACCESS

    Section 7: Mandatory Data Localization

    1. All digital platforms operating in India shall store user data exclusively
    on servers located within the territory of India.
    2. The NDA shall prescribe the technical standards and security measures
    required for the storage of user data.

    Section 8: Access to Data by Government Agencies

    1. Government agencies may request access to user data stored within


    India without a warrant, citing national security concerns.
    2. The digital platform shall comply with such requests immediately and
    provide the requested data to the concerned agency.
    3. All data accessed by government agencies shall be used solely for the
    purposes of national security and public order.
    CHAPTER V

    PENALTIES AND ENFORCEMENT

    Section 9: Penalties for Non-Compliance

    1. Any digital platform or individual found guilty of non-compliance with


    the provisions of this Act shall be liable to a fine or imprisonment, as
    prescribed by the NDA.
    2. Dissemination of misinformation or content that incites violence or
    disrupts public order shall be punishable with imprisonment for a term
    not less than three years, which may extend to seven years, and a fine.

    Section 10: Immunity of NDA Officials

    1. No suit, prosecution, or other legal proceeding shall lie against any


    official of the NDA for any action taken in good faith under this Act.
    2. This immunity shall not apply in cases of proven mala fide intent or
    gross negligence.

    CHAPTER VI

    MISCELLANEOUS

    Section 11: Protection of Actions Taken in Good Faith

    1. No suit, prosecution, or other legal proceeding shall lie against the


    Central Government, the NDA, or any of its officers for anything done
    in good faith or intended to be done under this Act.

    Section 12: Power to Make Rules

    2. The Central Government may, by notification, make rules for carrying


    out the provisions of this Act.
    3. Every rule made under this Act shall be laid before each House of
    Parliament, while it is in session, for a total period of thirty days.

    Section 13: Amendment and Repeal

    1. The Central Government may, by notification in the Official Gazette,


    amend or repeal any provision of this Act as deemed necessary.
    ISSUES:

    1. Whether the NDA's power to remove online content without judicial


    oversight violates the right to freedom of speech under Article 19(1)(a) of
    the Constitution.

    2. Whether the mandatory data localization and warrantless government


    access to user data infringe upon the right to privacy under Article 21.

    3. Whether granting immunity to NDA officials for actions taken in "good


    faith" is discriminatory and violates the right to equality under Article 14.

    4. Whether the centralization of regulatory authority in the NDA undermines


    the federal structure and encroaches upon the powers of state
    governments.

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