10​th​ NATIONAL ​MOOT​ COURT COMPETITION, 2019

TABLE OF CONTENTS

1. INDEX OF AUTHORITIES ii
2. STATEMENT OF JURIDICTION iii
3. STATEMENT OF FACTS iv
4. ISSUES RAISED vi
5. SUMMARY OF ARGUMENTS vii
6. ARGUMENTS ADVANCED 1
I. THE UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ACT, 2019 DOES
NOT VIOLATE ANY FUNDAMENTAL RIGHT OF THE CONSTITUTION 1
[I.1] THE AMENDMENT IS NOT ARBITRARY BUT BASED ON REASONABLE
CLASSIFICATION 1
[I.2] THE AMENDMENT FOLLOWS THE RULE OF EJUSDEM GENERIS 2
II.THE POWERS GRANTED TO NATIONAL INVESTIGATION AGENCY, DOES NOT
VIOLATES THE QUASI-FEDERAL NATURE OF VIKAS ENSHRINED UNDER THE
BASIC STRUCTURE OF THE CONSTITUTION OF VIKAS 5
[2.1]THE AMENDMENT FOLLOWS THE DOCTRINE OF PITH AND SUBSTANCE 9
7. PRAYER 11

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INDEX OF AUTHORITIES

CASES
1. Amar Chandra Chakraborty v. Collector Of Excise, Government 1972 AIR 1863 3
2. Bharat Hydro Power Corp. Ltd. v. State of Assam , AIR 2004 SC 3173 10
3. Budhan Choudhry v. The State Of Bihar 1955 AIR 191 2
4. Delhi Cloth and General Mills v. Union of India 1983 AIR 937 11
5. DN Banerji v. PR Mukherjee, AIR 1953 SCR 302 11
6. Dr. Pradeep Jain v. Union of India AIR 1984 SC 1420 8
7. Haryana v. Punjab AIR 2002 SC 658 8
8. Indu Bhushan Bose v. Rama Sundari Debi (1969) 2 SCC 289 6
9. Kartar Singh v State of Punjab (1994) 3 SCC 569 9
10. Kuldip Nayar v. Union of India AIR 2006 SC 3127 8
11. M/s. Bhanwarlal Sohanlal v. State 1966 R.L.W. 339 4
12. M/S. Grasim Industries Limited vs Collector Of Customs, Bombay AIR 2002 SC 1766 3
13. People’s Union for Civil Liverties v Union of India AIR 2004 SC 456 9
14. Prafulla Kumar Mukherjee v. Bank of Commerce Ltd. AIR 1947 PC 60 6
15. R. v. Cleworth, (1864) 4 B & S 927 4
16. Rajasthan v. Union of India AIR 1977 SC 1361 7
17. Ratanlal Sitaram And Anr. v. Rukhmabai AIR 1977 Bom 24 3
18. Re Special Courts Bill, AIR 1979 SC 478 1
19. Satpal v. Punjab (1982) 1 SCC 12 8
20. Shayra Bano v. Union of India (2017) 9 SCC 1 2
21. Sondur Gopal v. Sondur Rajini AIR 2013 SC 2678 9
22. State of Bengal v. Tarun Kumar, AIR 1975 Cal. 39 11
23. State of Bombay v. Ali Gulshan, AIR 1955 SC 810 3
24. Subramaniam v. Mutuswami (1940) 45 CWN 1 6
25. Tillmans & Co. v. S. S. Knutsford Ltd., (1908) 2 KB 385 4
26. Tribhuban Parkash Nayyar v. The Union Of India 1970 AIR 540 3
27. Union of India v. Harbhajan Singh Dhillon (1971) 2 SCC 779 6
28. United Bank Of India vs Pijush Kanti Nandy (2008) SCC 605 4
29. Vijay Kumar Sharma. v. State of Karnataka, AIR 1990 SC 2072 11
30. Vishwakarma Timber Mart vs The State Of Rajasthan 1984 WLN 402 5
31. West Bengal v. Union of India AIR 1963 SC 1241 7

FOREIGN CASES
32. Monck v. Hilton 46 LJMC 167 11
33. Re, Samuel, 91913) AC 514 11

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STATEMENT OF JURIDICTION

The respondents approach The Hon’ble Supreme Court of Vikas in this matter under Article
32 of the Constitution of Vikas filed by the petitioner which reads as follows:

“32. 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.”

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE INSTANT CASE.

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STATEMENT OF FACTS

BACKGROUND OF VIKAS

As the 7​th largest country in the world, Vikas stands apart from the rest of the Asian countries,
marked off as it is by the mountains and the sea, which gives the country a distinct
geographical entity. The Constitution of Vikas is the supreme law of Vikas. It imparts
constitutional supremacy and not parliamentary supremacy, as it is not created by the
Parliament but, by a Constituent Assembly, and adopted by its people.

AMENDMENT TO ANTI-TERROR LAW

On 3​rd June 2019, the Ministry of Home Affairs, Government of Vikas, amended the
anti-terror law, Unlawful Activities (Prevention) Act, 1967, -

(A) to empower the Central Government to designate individuals as terrorists, similar to

the procedure in force for terrorist organizations, if the person commits or participates
in acts of terrorism, cyber terrorism, prepares for terrorism, promotes terrorism or is
otherwise involved in terrorism, and

(B) Providing the National Investigation Agency power to investigate and seize property
with mere permission from Director General of National Investigation Agency, vide
the Unlawful Activities (Prevention) Amendment Act, 2019.

NOTIFICATION BY THE CENTRAL GOVERNMENT AND PIL

To counter cyber terrorism, the Government of Vikas further issued a notification under
Section 69 of the Information Technology Act, 2000, that empowers investigation agencies to
intercept, monitor and decrypt any information which is generated, transmitted, received or
stored in any computer source. An NGO, named Specter Donna Organization, filed a PIL
challenging the impugned notification within 4 days of its publication in the Official Gazette
of Government of Vikas, before the Hon’ble Supreme Court of Vikas.

ARREST OF Mr. NESAMANI

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On 7​th July 2019, the Customs Department of Vikas received information about smuggling of
counterfeit currencies worth VNR 10 lakhs by a passenger named Mr. Nesamani from El
Dorado, through the Mahindra Jhangir Airport, Dhanjan. Upon receipt of the same, the
officials initiated action, by tapping his mobile phone and tracking it under surveillance. The
officials arrested the passenger and took him into custody for questioning. He admitted to
possession of the said counterfeit currency and named his boos Mr. Chiddu, a resident of
Dhanjan.

TRANSFER OF CASE TO NIA

The Central Government referred the case to the National Investigation Agency (Hereinafter
referred to as the “NIA”) for investigation, in light of the gravity of the offence and to bust
the racket of counterfeit currency market and allied activities in Vikas vide notification dated
10 th July 2019. The NIA registered a case against him as RC/07/2019/DNG/MR under
Sections 489B, 489C of the Vikanian Penal Code, 1860 and Sections 16 and 18 of the
Unlawful Activities (Prevention) Act, 1967.

FIR BY NIA

The NIA officials added Mr. Chiddu to the same registered FIR and tried him under Sections
489B, 489C r/w 120B of the Vikanian Penal Code, 1860 and Sections 16 and 18 of the
UAPA. The Government of Vikas issued a notification adding the names of the accused Mr.
Chiddu and Mr. Nesamani into the Fourth Schedule of the Unlawful Activities (Prevention)
Act, 1967 (as amended in 2019), as ‘terrorists’.

CASE IN SUPREME COURT

The accused challenged the constitutionality of the Unlawful Activities (Prevention)

Amendment Act, 2019 and the impugned notification designating him as a ‘terrorist’ before
the Hon’ble High Court of Dhanjan. Upon an application made by the Attorney General of
Vikas in the PIL filed by Spectre Donna Organization in re the same substantial questions of
law before the Hon’ble High Court of Dhanjan, the Hon’ble Supreme Court Bench
transferred the case from the Hon’ble High Court and clubbed the same with the PIL filed by
Specter Donna Organization

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The Hon’ble Chief Justice of the Supreme Court of Vikas constituted an 11 Judge Bench to
adjudicate upon the aforementioned issues listed the matter before the Constitutional Bench
of Hon’ble Supreme Court at 11:30 AM on 15​th​ September 2019

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ISSUES RAISED

Whether the amendments to the Unlawful Activities (Prevention) Act, 1967, vide the
Unlawful Activities (Prevention) Amendment Act, 2019 violates Article 14 and 21 of the
Constitution of Vikas?

II

Whether the excessive powers granted to National Investigation Agency, vide the
Unlawful Activities (Prevention) Amendment Act, 2019, violates the quasi-Federal
nature of Vikas enshrined under the basic structure of the Constitution of Vikas?

III

Whether the Section 69 of the Information Technology Act 2000, the Information
Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of
Information) Rules, 2009 and the impugned notification issued by the Central
Government under the aforesaid law violates Article 14 and 21 of the Constitution?

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SUMMARY OF ARGUMENTS

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ARGUMENTS ADVANCED

I. THE UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ACT, 2019 DOES NOT

VIOLATE ANY FUNDAMENTAL RIGHT OF THE CONSTITUTION

1. It is humbly submitted that amendment brought onto the Unlawful Activities (Prevention)
Act, 1967 is not arbitrary or non-rational but based on reasonable classification, by
classifying individuals as terrorist in order to combat the vile of terrorism in a more
effective manner [I.1]. The amendment follows the rule of ‘​ejusdem generis’ which asks a
statute to be constructed as a whole and not take terms in their individual context. [I.2]

[I.1] THE AMENDMENT IS NOT ARBITRARY BUT BASED ON REASONABLE

CLASSIFICATION

2. A legislation can classify and apply to single individual, if because of some special
1
circumstances or reasons applicable to him and not applicable to others. The amendment
in question is thus classifying individual as terrorist in pursuit to achieve to control and
tackle the menace of terrorism in the country.

3. Classification means segregation in classes which have a systematic relation, usually

found in common properties and characteristics. It postulates a rational basis and does not
mean herding together of certain persons and classes arbitrarily. The law can make and
set apart the classes according to the needs and exigencies of the society and as suggested
2
by experience. Article 14 forbids class-legislation but it does not forbid reasonable
classification. The classification however must not be “arbitrary, artificial or evasive” but
must be based on some real and substantial bearing, a just and reasonable relation to the
3
object sought to be achieved by the legislation.

1
Chiranjit Lal Chowdhury v. Union of India AIR 1951 SC 41
2
Re Special Courts Bill, AIR 1979 SC 478

3
S Seshachalam v. Bar Council of TN, (2014) 16 SCC 72; State of Bombay v. F.N. Balsara (1951) SCR 682 at
708

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4. In order to pass the test for permissible classification two conditions must be fulfilled,
namely,
a) the classification must be founded on an intelligible differentia which
distinguishes persons from things that are grouped together from others left out of
the group; and
b) The differentia must have a rational relation to the object sought to be achieved by
4
the statute in question.

5
5. Every Act carries with it the presumption of constitutionality and in order to sustain the
presumption of constitutionality the court may take into consideration matters of common
knowledge, matters of common report, and the history of the times and may assume every
6
state of facts which can be conceived existing at the time of legislation. Republic f Vikas
has emerged as a as one of the world’s most consistent targets of radical militants. In
2008, the terrorists planted seven bombs in the Railway Stations and 5-star Hotels of
Chumban, causing the death of more than 200 people. These security lapses made it
evident the inability of the Vikanian security apparatus to anticipate and appropriately
7
respond to major terrorist related intelligence. Recently, in 2018, two attacks on the
military jawans of Vikas by the militants resulted in the deadly retaliation across the
international borders, that wiped out the target militant camp bases, in the form of
surgical and air strikes by Armed Forces. The State police were mandated by the
Unlawful Activities (Prevention) Act, 1967 so as to attach and seize the properties of such
terrorists for investigation purposes which were considered to be the main cause of delay
and inefficiency of the law. Therefore, because of the needs of the country, the parliament
had enacted the legislation in question.

4
State of W.B v. Anwar Ali Sarkar, AIR 1952 SC 75; Budhan Choudhry v. The State Of Bihar 1955 AIR 191
upheld in ​Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722​ and ​Shayra Bano v. Union of India (2017)
9 SCC 1
5
State Of Maharashtra v. Basantibai Mohanlal Khetan 1986 AIR 1466
6
Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar 1958 AIR 538
7
Moot Proposition para 3

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[I.2] THE AMENDMENT FOLLOWS THE RULE OF EJUSDEM GENERIS

6. It is humbly submitted that the amendment brought to the Unlawful Activities

(Prevention) Act is not vague, arbitrary and non-rational. It is based on the rule of
‘Ejusdem Generis. The rule reflects an reflects an attempt to reconcile incompatibility
between the specific and general words, in view of the other rules of interpretation, that
all words in a statute are given effect if possible, that a statute is to be construed as a
8
whole and that no words in a statute are presumed to be superfluous. It is based on the
idea that

7. When particular words pertaining to a class of genus are followed by general words, they
are construed as limited to things of the same kind as those specified. The rule applies
9
only when :
a) the statute enumerates the specific words
b) the subjects of enumeration constitute a class or category
c) that class or category is not exhausted by the enumeration
d) the general terms follow the enumeration and
e) there is no indication of a different legislative intent.
To put it in a slightly different language, where general and specific words, which are capable
of analogous meaning are associate together, they take colour from each other and the
10
general words are restrained and limited to a sense analogous to the less general.

11
8. In ​Utkal Contractors and Joinery Pvt Ltd v. State of Orissa ​the following was observed:
“​A statute is best understood if we know the reason for it. The reason for a statute is the
safest guide to its interpretation. The words of a statute take their colour from the
reason for it…. ​No provision in the statute and no word of the statute may be

8
Tribhuban Parkash Nayyar v. The Union Of India 1970 AIR 540

9
Amar Chandra Chakraborty v. Collector Of Excise, Government 1972 AIR 1863; M/S. Grasim Industries
Limited vs Collector Of Customs, Bombay AIR 2002 SC 1766

10
Sankaran Bair v. Madhavan Pillai 1976 Kr LT 837

11
AIR 1987 SC 1454

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construed in isolation. Every provision and every word must be looked at generally
before any provision or word is attempted to be construed. It is again i​ mportant to
remember that Parliament does not waste its breath unnecessarily. J​ ust as
Parliament is not expected to use unnecessary expressions, ​Parliament is also not
expected to express itself unnecessarily.​ Even as Parliament does not use any word
without meaning something, Parliament does not legislate where no legislation is
called for. Parliament cannot be assumed to legislate for the sake of legislation​, nor
can it be assumed to make pointless legislation. Parliament does not indulge in
legislation merely to state what it is unnecessary to state or to do what is already
validly done.”

The fact that general words are used in a statute is not in itself a conclusive reason why every
case falling literally within them should be governed by that statute, and the context of an
12
Act may well indicate that wide or general words should be given a restrictive meaning.
13
While the words of an enactment are important, the context is no less important. The
context which will be elucidated in the subsequent paragraph, nevertheless, the primary
objective is clear behind enacting the legislation which is to combat terrorism and prevent
this malaise activity by targeting the very source. In ​Chertsey UDC v. Maxnam’s
14
Properties, ​Reid J said that the general effect of the authorities was properly stated in
Maxwell’s interpretation of statutes a​ s follows:

‘General words and phrases, therefore, however wide and comprehensive they may be in
their literal sense, must usually be construed as being limited to the actual object of
15
the Act’.

9. The general word which follows particular and specific words of the same nature as itself
takes its meaning from them, and is presumed to be restricted to the same genus as those
16
words The legislation in question uses specific words to demarcate a genus and then is
17
followed by a general term as is the requisite under this rule. Specific words namely;

12
Halsbury’s laws of England, 4​th​ edn, Vol 44, p 894
13
Supra utkal
14
[1964] 2 All ER 627
15
[1975] 1 All ER 16
16
Maxwell on Interpretation of Statutes, 11th Edn. pp. 326, 327.
17
State of Bombay v. Ali Gulshan, AIR 1955 SC 810

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’commits or participates’, ‘prepares’ and ‘promotes’ and the uses the term ‘or otherwise
involved in terrorism’. The Legislature when it used the words "or otherwise" apparently
intended to cover other cases, which may not come within the meaning of the preceding
words. By using the general words "or otherwise" the Legislature intended to cover all
18
possible cases of assignments which are not transfers inter vivo or by act of parties.

19
10. The meaning of the word `otherwise' as given in `Advanced Law Lexicon' is as under:

"By other like means; contrarily; different from that to which it relates; in a different
manner; in another; in any other way; differently in other respects in different
respects; in some other like capacity."

As a general rule, `otherwise', when following an enumeration, should receive an ejusdem

20
generis interpretation The words `or otherwise', in law, when used as a general phrase
following an enumeration of particulars, are commonly interpreted in a restricted sense,
21
as referring to such other matters as are kindred to the classes before mentioned.

11. The introduction of the words ‘whatsoever’ after the general words following particular
22
instances of a genus does not exclude the application of ejusdem generis principle. The
Privy Council construed the words ‘any other person or persons whatsover’ by this rule
and restricted their meaning to officers of similar kind specified before these general
23
words.

24
12. In ​M/s. Bhanwarlal Sohanlal v. State : where in it has been held by Division Bench of
this Court that the words "otherwise as specified in the Schedule" no doubt widen the

18
Ratanlal Sitaram And Anr. v. Rukhmabai AIR 1977 Bom 24

19
3rd Edn - 2005
20
United Bank Of India vs Pijush Kanti Nandy (2008) SCC 605

21
Monck v. Hilton 46 LJMC 167

22
R. v. Cleworth, (1864) 4 B & S 927 ​referred ​to in Tillmans & Co. v. S. S. Knutsford Ltd., (1908) 2 KB 385

23
Re, Samuel, 91913) AC 514

24
1966 R.L.W. 339

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scope of the definition, but Section 40 of the Punjab Laws Act, 1872 has to be utilised
only in keeping with the underlying purposes of the Act. If anything which is wholly
unconnected with agricultural produce is sought to be included, then it may be a ground
for striking down the item to be so included, but thereby we cannot strike down the
section itself. It is further stated that the words "or otherwise" must be construed
25
according to the ejusdem generis rule.

25
Vishwakarma Timber Mart vs The State Of Rajasthan 1984 WLN 402

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II. THE POWERS GRANTED TO NATIONAL INVESTIGATION AGENCY, DOES

NOT VIOLATES THE QUASI-FEDERAL NATURE OF VIKAS ENSHRINED
UNDER THE BASIC STRUCTURE OF THE CONSTITUTION OF VIKAS

13. The counsel on behalf of the respondent contends that the recent amendment to the
National Investigation Authority is constitutional in nature and is in line with
quasi-Federal structure nature of Vikas as enshrined under the basic structure of the
Constitution of Vikas. The federal structure forms the bedrock the constitutional
machinery prevalent in Vikas and its states. The obvious tendency of the constitution is
towards centralisation within a federal pattern and framework. The scheme of the
constitution is to secure a constitutionally strong centre having adequate powers both in
extent and in nature so that it can maintain and protect the unity and integrity of the
26
country.

14. Article 246 (1) states; ​“Notwithstanding anything in clauses (2) and (3)”​, and the opening
words of clause (3) states; ​“Subject to clauses (1) and (2)”,​ leave no doubt that the effect
of these words is that if the legislative powers of the Union and State legislatures, which
are enumerated in Lists I and II of Schedule VII, cannot fairly be reconciled, the latter
must give away to the former. Thus, if a subject happens to be included both in List I and
in List II, the Union Legislature alone will be competent to legislate on that subject.
Likewise, if there is overlapping between List I and List III, the List I shall prevail.
Equally, the opening words of clause (2) ​“Notwithstanding anything in clause (3) ….”
make it clear that the Union power shall prevail in case of conflict between List II and
27
List III

15. The doctrine of Predominance of the Union power has also been reaffirmed by the
judiciary in order to protect national security and political integrity of Vikas. The
constitution grants state Legislative assemblies to make laws upon certain subjects

26
Supra mp jain p. 535
27
Prafulla Kumar Mukherjee v. Bank of Commerce Ltd. AIR 1947 PC 60; Subramaniam v. Mutuswami (1940)
45 CWN 1; Indu Bhushan Bose v. Rama Sundari Debi (1969) 2 SCC 289; Union of India v. Harbhajan Singh
Dhillon (1971) 2 SCC 779

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keeping in mind the unique needs of each state considering their population composition.
However, List -II of Schedule – 7 should never be interpreted as sovereignty for each
individual state, it is merely a constitutional power granted by the framers in order to
ensure smooth function of the Union of Vikas. Thus, the drafting committee has put
Defence of Vikas under Entry 1 of List-I under the 7​th schedule of the constitution,
28
thereby granting sovereignty only to the Centre. This has been enshrined by the case
29
West Bengal v. Union of India , the Supreme Court rejected the claim of shared
sovereignty of the centre and the state. The court was of belief that our Republic would
dissolve without a strong central government. Therefore, the apex court gave adequate
precautions to strengthen the centre for future contingencies.

16. To understand the true nature of Federalism under our Republic and Constitution the
30
counsel on behalf of the respondent cites the ruling under ​Rajasthan v. Union of India in
which this Hon’ble court characterises the Indian political structure more unitary than
federal. Learned Chief Justice Beg explains this with extreme eloquence by calling the
constitution of India as an “amphibian” he further stated that if our constitution creates a
central government which is amphibian in the sense that it can be either federal or unitary
according to the need of the situation and the circumstances of the case.

17. Article 251 when read with Article 249 provides that in case of inconsistency between a
law made by parliament under Article 249 and a law made by a State legislature, the
Union law will prevail to the extent of such inconsistency or ‘repugnancy’. In effect, this
provision permits the Rajya Sabha to encroach upon the specified legislative competence
of a state legislature by declaring a matter to be of national importance. Though it may
have been incorporated as a safeguard in the original constitutional scheme, this power
allows the Union government to interfere with the functioning of a State government,
which is most often prompted by the existence of opposing party-affiliations at the
Central and state level.

28
M. P. Jain, ‘Indian Constitutional Law’ 8​th​ edn. LexisNexis
29
AIR 1963 SC 1241
30
AIR 1977 SC 1361

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18. In the ​Satpal v. Punjab case, the view was put forward that there is a combination of the
federal structure with the unitary feature in the Indian Constitution. This clearly implies
that our state is not only federal in nature and another affirmation of the Doctrine of
Predominance of central powers. The apex court even in the case of ​Dr. Pradeep Jain v.
32
Union of India the court held that India is not a compact of sovereign states which have
come together to form a federation by ceding a part of their sovereignty to the federal
state and thus, India cannot be characterized as a federal state

33
19. It was observed by the court in ​the Haryana v. Punjab that in a semi-federal system of
government, which has been adopted under the Indian Constitution, all the essential
powers, both legislative and executive have been conferred on the central government.
True federalism means the distribution of powers between a central authority and
constitution units. The nature of federalism in the Indian Constitution is no longer res
integra (matter not yet decided). There can be no quarrel with the proposition that the
Indian model is broadly based on a federal form of governance but with a tilt towards the
34
centre as adjudicated in ​Kuldip Nayar v. Union of India case.

20. Indian Constitution in its seventh schedule includes entries related to diplomacy and
defense, war and peace, treatise, the United Nations, pilgrimages outside India, piracies
and crimes committed on the high seas or in the air and offences against international law
in the Union list, which gives power to the federal government as per Article 245 of the
Constitution of India.

Article 245(2) reads as –

“No law made by Parliament shall be deemed to be invalid on the grounds that it would have
extra-territorial operation.”

Understanding that the general principle underlying the sovereignty of States is that Article
245(2) provides that no law made by Parliament shall be deemed to be invalid on the

31
(1982) 1 SCC 12
32
AIR 1984 SC 1420
33
AIR 2002 SC 658
34
AIR 2006 SC 3127

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ground that it would have extra territorial operation. But this does not mean that law
having extra territorial can be enacted which has no nexus at all with India. Unless such
contingency exists, the Parliament shall be incompetent to make law having
35
extra-territorial operation as held under ​Sondur Gopal v. Sondur Rajini case.

21. Laws related to terrorism fall within multiple entries of the Seventh Schedule to the
Constitution. In the Union List, it relates to the ‘defence of India’, ‘armed forces’, and
36 37
‘preventive detention’ In the State List, ‘public order’, and ‘police’ are used to
legislate on activities related to terrorism. Terrorism laws have been challenged in the
past on the ground of lack of legislative competence. However, it has been established
early on that the Centre retains the power to enact laws related to combating terrorism.

38
22. ​This was the question in ​Kartar Singh v State of Punjab , where the constitutional
validity of TADA was challenged before the Supreme Court on the ground that
Parliament does not have the legislative competence to enact TADA. It was contended
that such a law falls within the power of State legislatures under Entry 1 of List II on
public order. However, the Court held that Parliament has legislative competence to enact
TADA. It explained that ‘public order’ under Entry 1 in the State List is confined to
disorders of lesser gravity having an impact within the boundaries of the State. More
serious activities threatening the security and integrity of the country as a whole were
held to be falling within the ambit of Entry 1 of the Union List relating to defence of
India, and, in any event, under the residuary power conferred on Parliament under Article
248 read with Entry 97 of the Union List.
23. ​This reasoning was applied to POTA as well in ​People’s Union for Civil Liverties v
39
Union of India The Court upheld the legislative competence of Parliament to enact
POTA. In doing so, the Court explained that Entry 1 of the State List (‘public order’)
empowers States to enact a legislation relating to public order or security in so far as it
affects or relates to a particular State. The Court noted that terrorism is a trans-national

35
AIR 2013 SC 2678
36
Constitution of India, Schedule VII, List I, Entries 1, 2 and 9 respectively.
37
Constitution of India, Schedule VII, List II, Entries 1 and 2 respectively.
38
(1994) 3 SCC 569.
39
AIR 2004 SC 456.

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and not a State-specific problem, affecting the security and sovereignty of the nation. The
present day problem of terrorism does not fit within ‘public order’ under the State List,
which is confined to disorders of lesser gravity having an impact within the State. In line
with Kartar Singh, the Court held that activities of a more serious nature which threaten
the security and integrity of the country as a whole fall within the ambit of Entry 1 of the
40
Union List relating to defence of India.

24. The circumstances in the present case are such that require the Central government to
increase the powers granted to the NIA as stands as an extremely crucial issue of National
Security which stands of paramount important for any state especially with the global
political climate and how it stands. The state is making laws under the head of ‘defence of
India’ that is entry 1 of the Union List. The Republic of Vikas in recent times had been
dealing with rampant terrorism and the existing laws were proving ‘inefficient’ to tackle
41
it.

[2.1] THE AMENDMENT FOLLOWS THE DOCTRINE OF PITH AND SUBSTANCE

25. It is humbly submitted that the petitioner’s arguments raising questions on the amendment
brought in the functioning of NIA alleging infringement of the qasi-federal structure of
the Constitution of Vikas are baseless since the constitution follows the doctrine of pith
and substance. It is not possible to make so clean a cut between the powers of the various
42
legislatures; they are bound to overlap from time to time. To examine whether a
legislation has impinged in the field of other legislatures, in fact or in substance, or is
incidental, keeping in view the true nature of the enactment, the Courts have evolved the
doctrine of "pith and substance" for the purpose of determining whether it is legislation
43
with respect to matters in one list or the other. The phrase’pith and substance’ means
‘true nature and character’. If the pith and substance of legislation is covered by an Entry

40
Supra Kartar Singh
41
Moot Proposition p. 17 para 5 and 6
42
Prafulla v. Bank of Commerce, AIR 1947 PC 28
43
Bharat Hydro Power Corp. Ltd. v. State of Assam , AIR 2004 SC 3173

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within the permitted jurisdiction of the Legislature, any incidental encroachment in the
44
rival field is to be disregarded.

26. The doctrine of pith and substance has been summarized in the case of ​Delhi Cloth and
45
General Mills v. Union of India

“To resolve the controversy if it becomes necessary to ascertain to which entry in the three
lists, the legislation is referable, the Court has evolved the doctorine of “pith and
substance.” If in pith and substance. the legislation falls within one entry or the other
but some portion of the subject-matter of the legislation incidentally trenches upon
and might enter a field under another list, then it must held to be valid in its entirety,
even though it might incidentally trench on matters which are beyond its
competence.”

For applying the principle of "pith and substance”, regard is to be had (i) to the enactment as
46
a whole, (ii) to its main objects, and (iii) to the scope and effect of its provisions. Where
a law passed by the State Legislature while being substantially within the scope of the
entries in the State List entrenches upon any of the Entries in the Central List the
constitutionality of the law may be upheld by invoking the doctrine of pith and substance
if on an analysis of the provisions of the Act it appears that by and large the law falls
within the four corners of the State List and entrenchment, if any, is purely incidental or
47
inconsequential. If the substance of enactment falls within the Union List, then the
48
incidental encroachment by the enactment on the State List would not make it invalid.

27. The Industrial Disputes Act enacted by Parliament, even though it applies to the
employees of municipalities, is as valid as, in substance, it deals with ‘industrial and
49 50 51
labour disputes’ and not with ‘local government’ . The Central Reserve Police Force

44
State of Bombay v. F.N. Balsara, AIR 1951 SSC 318
45
1983 AIR 937
46
Supra Bharat
47
Vijay Kumar Sharma. v. State of Karnataka, AIR 1990 SC 2072

48
Supra Bharat
49
Constitution of India, Schedule VII, List III, Entry 22
50
​ ist II, Entry 5
​Ibid, L
51
DN Banerji v. PR Mukherjee, AIR 1953 SCR 302

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Act enacted by Parliament falls under Entry 2, List I (Armed Forces), and Entries 1 and 2,
List III (Criminal Law and Criminal Procedure respectively), and not under Entry 2, List
52
II (Police).
28. Therefore, by applying the same rule of interpretation the current legislation should be
taken to be under Entries 1 and 2 of List I (Defence of India and Armed Forces
respectively) and not any subject mentioned under List II.
29.

52
State of Bengal v. Tarun Kumar, AIR 1975 Cal. 39

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III. SECTION 69 OF THE IT ACT, 2009 AND THE NOTIFICATION ISSUED BY

THE CENTRAL GOVERNMENT DOES NOT VIOLATE ARTICLE 14 AND 21
OF THE CONSTITUTION

28. The counsel contends that the S 69 of the Information Technology Act, 2000 and the
Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption)Rules, 2009, and the impugned notification made under it, has not violated
the Article 14 and Article 21 of the Indian Constitution and is not arbitrary or excessive in
nature.

53
29. Recognised as one of the basic features of the Constitution , the right to equality has now
been accepted as a dynamic concept which goes on changing with changing times and
54
social contexts and must be understood in that sense. Constitutional interpretation being
difficult task, its concept varies from statute to statute, fact to fact, situation to situation
55
and subject matter to subject matter. In a world warping through technological progress,
based on the United Nations Commission on International Trade Law’s Model Law on
Electronic Commerce (MLEC), the aim of the Act, by and large, was covering e-
governance and facilitating e-commerce by providing infrastructural facilities for
creation, promotion and use of digital signatures as also providing for electronic records.
For allowance of public welfare, Article 14 does not outlaw discrimination between the
state and a private individual because the two are not placed on the same footing. Thus,
creation of monopoly by the State in its favour, for its objective, will not be bad under
56
Article 14

57
30. The state can lean on the initial presumption of validity of the law. The Supreme Court
has explained the principle of initial presumption of validity as follows in ​Ashutosh Gupta
58
v State of Rajasthan,

53
Indira Sawhney (2) v UOI, (2000) 1 SCC 168 : AIR 2000 SC 498
54
Bose J in State of W.B. v Anwar Ali Sarkar, AIR 1952 SC 75. 101ff
55
Chhattisgarh Rural Agriculture Extension Officers Association v State of MP, (2004) 4 SCC 616 : AIR 2004
SC 2020
56
Saghir Ahmad v State of Uttar Pradesh, AIR 1954 SC 728 : (1955) 1 SCR 707
57
GK Krishnan v State of Tamil Nadu, AIR 1975 SC 583 : (1975) 1 SCC 375
58
(2000) 4 SCC 34 at 41 : AIR 2002 1533

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“There is always a presumption in favour of the constitutionality of enactment and the

burden is upon him who attacks it to show that there has been a clear transgression of
the constitutional principles. The presumption of constitutionality stems from the wide
power of classification which the legislature must, of necessity possess in making laws
operating differently as regards different groups of persons in order to give effect to
policies. It must be presumed that the legislature understands and correctly
appreciates the need of its own people.”

31. With Devoid of discrimination, based on impermissible or invalid classification; and

excessive delegation of powers, i.e. conferment of uncanalised and unguided powers on
59
the executive, based on some real and substantial bearing, a just and reasonable relation
60
to the object sought to be achieved by the legislation.
Vikas, emerging as one of the world’s most consistent targets of radical militants, is a victim
of not only horrific terrorist incidents, but also a hotbed of cyber crimes. Accompanied by
the server intrusion in one of the primary data centers of Reserve Bank of Vikas, cyber
terrorism as a tool could be utilized to conduct unlawful attacks and threats of attacks
against computers, networks, and information stored therein to intimidate or coerce the
government or its people for propagating hidden political or unlawful social and religious
agendas. These attacks could result in violence against persons or property or cause
public unrest, through explosions, plane crashes and severe losses. It is also a noted fact
that Terrorists tend to use Internet to prepare the schemes, recruit potential terrorists, raise
61
funds and spread cyber terrorism.

32.
33.
34.

59
​Subramanian Swamy v CBI​(2014) 8 SCC 682 : (2014) 4 MLJ 603
60
S Seshachalam v. Bar Council of TN, (2014) 16 SCC 72; State of Bombay v. F.N. Balsara (1951) SCR 682 at
708
61
moot proposition

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62
35. With the term “life” being something more than mere animal existence, according to
Bhagwati J Article 21 "embodies a constitutional value of supreme importance in a
63
democratic society”
The expression "procedure established by law" was initially interpreted as procedure
64
prescribed by the law of the State. Accordingly, it required , firstly, existence of an
enacted law authorising interference with the life or personal liberty, secondly, the law
should be valid, and thirdly, the procedure laid down by the law must be followed. In the
absence of non-compliance of any of these conditions any deprivation of life or personal
liberty of a person by any authority violates Article 21. ​But in ​Maneka Gandhi v Union of
65
India , t​ he Supreme Court has overruled the above case and has held that the mere
prescription of some kind of procedure is not enough to comply with the mandate of
Article 21. The procedure prescribed by law has to be fair, just and reasonable. It should
not be fanciful, oppressive or arbitrary. A procedure to be fair or just must embody the
principles of natural justice.

66
36. ​The Supreme Court has observed in ​People's Union for Civil Liberties v Union of India ,

“We have, therefore, no hesitation in holding that right to privacy is a part of the right
to"life" and "personal liberty" enshrined under Article 21 of the Constitution. Once
the facts in a given case constitute a right to privacy, Article 21 is attracted. The said
right cannot be curtailed 'except according to procedure established by law'.”

By exercising of S69 (2) and S 87 (2) of the IT Act 2000, Information Technology
(Procedure and Safeguards for Interception, Monitoring and Decryption) Rules, 2009
was created, which provides for a comprehensive framework for disclosure of
information. With Secretary in the Ministry of Home Affairs (Central Government) or
67
Secretary in charge of the Home Department defined as “​competent authority” , their

62
Field J in Munn v Illinois, 94 US 113 (1877)
63
Francis Coralie v Union Territory of Delhi, AIR 1981 SC 746, 752: (1981) 1 SCC 608.
64
A.K Gopalan v State of Madras, AIR 1950 SC 27 : 1950 SCR 88; Bishan Das v. State of Punjab, AIR 1961
SC 1570
65
AIR 1978 SC 597.
66
AIR 1997 SC 568 : (1997) 1 SCC 301
67
Rule 2 (d) Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption)Rules, 2009

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68
each order is accompanied by reasons for such direction and a copy of such direction
69
shall be forwarded to the Review Committee within a period of seven working days.
The rules further lay down more procedural safeguards, and allocate responsibility and
70
accountability of all officers. Rule 8 emphasizes the consideration of alternate means
for acquiring information, using rule 3 as a last option. Other than strict instructions
with regards to disclosure of data acquired and its disposal, these rules put a fence
around the enlarged scope of S69 of the IT Act 2000. Arbitrariness on the possibility
that a power may be abused, despite the guidelines, in the provisions providing for such
71
power cannot be held to be arbitrary and unreasonable.

37. With the increasing threats to the public through internal and external actors through
the outlet of cyberspace, in the name of the public good and security we submit that S
69 of the Information Technology Act, 2000 and the Information Technology
(Procedure and Safeguards for Interception, Monitoring and Decryption) Rules, 2009,
and the impugned notification made under it is not arbitrary or unconstitutional.

68
Rule 3 Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption)Rules, 2009
69
Rule 7 Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption)Rules, 2009
70
Rule 21 Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption)Rules, 2009
71
Commissioner of Central Excise Jamshedpur v Dabur (India) Limited, (2005) 3 SCC 646 : (2005) 5 JT 582

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PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Honourable Court may be pleased to adjudge and declare that:

38. The Provincial Legislature of Gatoch had legislative competence to enact the Gatoch
Kormi Shrines Management Act, 2014.

And pass any other order that this Honourable Court deems fit in the interests of justice,
equity and good conscience.

All of which is humbly prayed,

SLCU35,

Counsels for the Petitioner.

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