2 n d HPNLU National Moot Court Competition , 2021

TC-H62 P

2nd HPNLU National Moot Court Competition, 2021

before The Hon’ble Supreme Court of Azeroth

WRIT PETITION NO.234 OF 2021

UNDER ARTICLE 32 OF THE CONSTITUTION OF THE AZEROTH

IN THE MATTER OF

Mr. Jon Snow & Ors. vs. Republic of Azeroth

With

M.A. No. 34814 of 2021

Mr. Jon Snow & Ors. vs. Republic of Azeroth

With

I.A. No. 34815 of 2021

Desh Ki Mitti vs. Mr. Jon Snow & Ors.

With

O.S. No. 1. Of 2021

Republic of Azeroth vs. State of Riverdale

MEMORIAL for PETITIONER

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TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................ii

LIST OF ABBREVIATIONS ................................................................................................ iv
INDEX OF AUTHORITIES ................................................................................................... v
STATEMENT OF JURISDICTION ....................................................................................vii
STATEMENT OF FACTS .................................................................................................. viii
ISSUES RAISED...................................................................................................................... x
SUMMARY OF ARGUMENTS ............................................................................................ xi
ARGUMENTS ADVANCED .................................................................................................. 1
1. THE PIL FILED BY THE GROUP OF JOURNALISTS, HEADED BY MR. JON SNOW IS
MAINTAINABLE. ......................................................................................................................... 1

1.1 The petition has been filed in public interest and therefore maintainable as Public
Interest Litigation ............................................................................................................... 1
1.2 Alternative Remedy Not a Bar ................................................................................ 2
2. USE OF SPYWARE BY THE GOVERNMENT DOES NOT COME UNDER THE CONTOURS OF
INDIAN TELEGRAPH ACT, OFFICIAL SECRETS ACT AND INFORMATION TECHNOLOGY ACT
OR ANY OTHER LAW FOR THE TIME BEING IN FORCE ............................................................... 2

2.1 Ultra Vires of the Indian Telegraph Act, 1885 ........................................................ 3

2.1.1 Public emergency or in interest of public safety .............................................. 3
2.1.2 Declaration of Public emergency ..................................................................... 4
2.1.3 Legitimate surveillance under the provision .................................................... 5
2.2 Non-conformity with Section 69 of the IT Act, 2000 ............................................. 6
2.2.1 Meaning of interception ................................................................................... 6
2.2.2 State action does not pass the test of proportionality ....................................... 7
2.3 Violates the Official Secrets Act, 1923 ................................................................... 8
3. THE SURVEILLANCE BY THE STATE IS AN INVASION OF PRIVACY OF THE CITIZENS OF
THE COUNTRY UNDER ARTICLE 21 OF THE CONSTITUTION AND ALSO DETERS FREE SPEECH
AND EXPRESSION WHICH IS A FUNDAMENTAL RIGHT ENSHRINED UNDER ARTICLE 19(1)(A)
OF THE CONSTITUTION. ............................................................................................................. 9

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3.1 Violation of Right to Privacy................................................................................... 9

3.1.1 Procedure established by law was not followed............................................. 10
3.2 Fails the Test of Reasonableness of Restrictions under Article 19 ....................... 11
3.2.1 No reasonable nexus between the manner of restriction and objective and
excessive nature of restriction imposed ........................................................................ 11
3.2.2 No legal sanction behind the use of a spyware for surveillance .................... 12
3.2.3 No urgency of evil sought to be remedied ..................................................... 13
4. AN AFFIDAVIT BY THE GOVERNMENT PERTAINING TO THE USE/NON-USE OF THE
SPYWARE SHOULD BE FURNISHED. .......................................................................................... 13

4.1 The Affidavit is necessary for the case to move forward ...................................... 13
4.2 The affidavit will not harm the country’s national security and the case involves
citizens as well as eminent people of the country ............................................................ 14
5. ‘NATIONALISM’ SHOULD NOT BE MADE A PART OF THE BASIC STRUCTURE OF THE
CONSTITUTION AND SHOULD THE FUNDAMENTAL DUTIES BECOME ENFORCEABLE. ........... 14
5.1 Nationalism is nowhere mentioned in the Constitution of Azeroth ...................... 15
5.2 Nationalism is an abstract concept ........................................................................ 15
5.3 Fundamental Duties are not practicable ................................................................ 15
5.3.1 The part of Fundamental Duties which can be enforced is enforced through
Legislations ................................................................................................................... 16
5.3.2 The scope of Fundamental duties is not well defined .................................... 16
5.4 Enforcing Fundamental Duties will bring a kind of autocracy ............................. 17
5.5 The application is politically motivated ................................................................ 17
6. THE STATE OF RIVERDALE IS COMPETENT TO APPOINT A COMMISSION OF ENQUIRY
IN THE PRESENT MATTER ........................................................................................................ 18
6.1 The state is competent to appoint a commission ................................................... 18
6.1.1 A commission can be appointed if the matter is pending in court ................. 19
6.2 The defense taken by the central government is not valid .................................... 19
PRAYER ................................................................................................................................. 20

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LIST OF ABBREVIATIONS
AIR All India Reporter
& And

Anr. Another

Art. Article

PIL Public Interest Litigation

IT Act Information Technology Act, 2000

COI Constitution of India

SOR The State of Riverdale

DPSPs Directive Principles of State Policy

OS Act Official Secrets Act, 1923
ITA Indian Telegraph Act, 1885

I.A. Intervention Application

M.A. Miscellaneous Application

MP Madhya Pradesh

HC High Court

O.A. Original Suit

ROA Republic of Azeroth

Eg. Example

Ors. Others

¶ Paragraph
Com. Commission

FDs Fundamental Duties

§ Section

Comm. Committee

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INDEX OF AUTHORITIES

STATUTES AND REGULATIONS

• Constitution of Azeroth
• Indian Telegraph Act, 1885
• The Information Technology Act, 2000
• The Official Secrets Act, 1923
• Commission of Inquiry Act, 1952
• Universal Declaration of Human Rights

LIST OF CASES

Kansing Kalusing Thakore v. Rabari Maganbhai Vashrambhai, (2006) 12 SCC 360. ..... 1
Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590. ............................ 1
State of Bombay v. United motors Ltd., AIR 1953 SC 252. ................................................. 2
K.K. Kouchunni v. State of Madras, AIR 1959 SC 725. ...................................................... 2
HarbansalSahnia v. Indian Oil Corporation Ltd., AIR 2003 SC 2120. .............................. 2
Hukam Chand Shyam Lal v. UOI, (1976) 2 SCC 128. ...................................................... 3,5
PUCL v. UOI, AIR 1997 SC 568..................................................................................... 3,9,11
Vinit Kumar v. CBI, W.P. No. 2367 of 19(J). ........................................................................ 4
Liversidge v. Anderson, (1942) AC 206. ................................................................................ 4
The State of MP v. Baldeo Prasad, 1961 SCR (1) 970. ......................................................... 4
Gobind v. State of MP, AIR 1975 SC 1378. ................................................................... 5,8,12
R. M. Malkani v. State of Maharashtra, 1973 SCR (2) 417. ........................................ 5,9,12
Kharak Singh v. State of UP, 1964 SCR (1) 332, ............................................................. 5,12
Malak Singh v. State of P&H, 1981 AIR 760. .................................................................... 5,9
Lachmi Narain v. Union of India & Ors., 1976 (2) SCC 953. .............................................. 7
Justice K. S. Puttaswamy v. UOI, AIR 2017 SC 4161. ...................................................... 7,9
Thumkunta Madhava Reddy v. The State of Telangana, W.P. No. 18726 of 2020. .......... 9
A K. Gopalan v. State of Madras, AIR 1950 SC 27. ........................................................... 10
Maneka Gandhi v. UOI, AIR 1978 SC 597.......................................................................... 10

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D. Bhuvan Mohan Patnaik & Ors v. State of AP, 1974 AIR 2092. ................................... 10
Dr. Y.P. Singh v. State of U.P., AIR 1982 All 439. .............................................................. 11
State of Madras v. V.G. Row, 1952 AIR 196. ...................................................................... 11
M.R.F. Ltd. v. Inspector Kerala Govt., AIR 1999 SC 188. ................................................ 11
Arunachala Nadar v. State of Madras, AIR 1959 SC 300. ................................................. 11
Re-Ramlila Maidan Incident v. Home Secretary and UOI, Re (2012) 5 SCC 1 .............. 12
Hindustan Times v. State of U.P., (2003) 1 SCC 591. ......................................................... 12
Municipal Corp. v. Jan Mohd. Usmanbhai. (1986) 2 SCC 20. .......................................... 12
Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118. ...................................... 13
Manohar Lal Sharma v. Union of India, W.P. (Crl) 314/2021. ......................................... 14
Indira Nehru Gandhi v. Raj Naraian AIR 1975 SC 2299. ................................................. 15
Minerva Mills v. Union of India AIR 1980 SC 1789. .......................................................... 15
Surya Narain v. UOI, AIR 1982 Raj 1……………………………………………………..15

Javed v. State of Haryana, AIR 2003 SC 3057. ................................................................... 16

N.K. Bajpai v. Union of India AIR 2012 INSC 179. ........................................................... 16
Mumbai Kamgar Sabha v. Abdulbhai, AIR 1976 SCR (3) 591. ........................................ 16
Mohan Kumar Singhania v. Union of India, AIR 1991 SC 1150. ..................................... 16
Shyam Narayan Chouksey v. Union of India, AIR 2003 MP 233. .................................... 17
Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 538. ............................................... 18
P. V. Jagannath Rao & Ors v. State of Orissa & Ors, AIR 1969 215. .............................. 19

REPORTS OF COMMITTEES AND COMMISSIONS

• Central Secretariat Library, Report Second Press Commission, Vol II, paras 164, 165
& 166.
• Swaran Singh Committee Report, 1976 2 SCC 17-2.
• Ministry of Law, Justice and Company Affairs, Department of Legal Affairs, The
National Commission to Review the Working of the Constitution, Vol. 1, Chapter 3,
pg. 3.37.
• Ministry of HRD, Department of Education, Fundamental Duties of Citizens, Vol 1, Chapter
6, pg. 24.

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Azeroth has the jurisdiction to try the present case by virtue of
Article 32 of the Constitution of Azeroth.

read with

Article 131 as the Original Suit has been filed by the Republic of Azeroth against the State of
Riverdale.

Important Note: The Constitution and all other laws of Azeroth are pari materia to the
Constitution and other laws of India.

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STATEMENT OF FACTS

COUNTRY OF AZEROTH

The Country of Azeroth is a Sovereign, Democratic, Secular, Republic and Socialist country
in the South-Asian Region. The Nationalist Party of Azeroth, a Hindu majority party, came to
power in 2014 after defeating SPA, which was in power for the past several years. NPA is
highly influenced by the idea of ‘nationalism’ and any sort of dissent or critique of nationalist
ideas are ethos are not always welcomed. The country is surrounded by 5 enemy states. After
frequently being subjected to Guerrilla warfare, insurgency and terrorist attacks, the attacks
have finally declined sharply under the NPA in 2014-19.

NEWS REGARDING THE USE OF SPYWARE

On June, 2021, ‘The Rope’ reported that phone numbers of 40 journalists of Azeroth were
being hacked using a Palpanese military-grade spyware, Kimetsu. Journalists were majorly
targeted between 2018-19, prior to the 2019 Lok Sabha Elections. The company refused to
make the list of affected customers public. Although the Government said that there have been
no such unauthorized interceptions, the Palpanese firm NSO group stated that it only gives the
software to vetted governments. Later it was revealed that 300 citizens had been under
surveillance by the use of the said software including members of the opposition party and
some union ministers amongst others.

PIL FILED BY JOURNALISTS LED BY MR. JON SNOW

A PIL was filed by a group of journalists, led by Mr. Jon Snow demanding the SC to appoint
an SIT to investigate in the matter, to declare that such surveillance violates right to privacy
and right to freedom of speech and expression as enshrined in the Constitution. Republic of
Azeroth filed a reply questioning the maintainability of the PIL, claiming that there has been
no unauthorized surveillance conducted and the rights of the citizens can be restricted on
certain grounds mentioned in the Constitution itself. However, the Government did not
explicitly admit or deny the use of Kimetsu software.

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MISCELLANEOUS APPLICATION FILED BY PETITIONERS

Petitioners also filed an M.A. seeking the relief that the respondent is directed to furnish an
affidavit stating the use/non-use of the Kimetsu Software.

INTERVENTION APPLICATION FILED BY DESH KI MITTI

An NGO group, Dekh ki Mitti, supporting the nationalist ideals of NPA government, is headed
by Mr. Malcolm David, a former Union Minister during 2014-19. The NGO filed an I.A to
pray that 'Nationalism' be declared as a part of the Basic Structure of the Constitution of
Azeroth. It also prayed that the Fundamental Duties be made enforceable as the terms
Patriotism and Nationalism have lost all meaning.

CASE FILED BY UNION GOVERNMENT AGAINST STATE OF RIVERDALE

State of Riverdale is one of the states which are discontent and disagree with the modus
operandi of the current Central Government under the rule of NPA. It has alleged that the
Central Government uses its investigating agencies to target the ministers of the State of
Riverdale. Moreover, due to alleged use of the spyware, the State of Riverdale appointed a
Commission of Inquiry (Kimetsu Inquiry Commission) to look into the alleged invasion of
privacy by the Republic of Azeroth of several individuals, journalists, activists, business
persons, police officials, politicians, both in the government and the opposition. Pursuant to
this, the Union Government moved the Hon’ble Supreme Court against the State of Riverdale
thereby seeking that the State has no right to appoint a Commission of Inquiry when the matter
is one of National Importance involving two or more states amongst other grounds.

COMBINING PETITIONS BY THE SUPREME COURT

The Supreme Court has now agreed to hear the petition filed by the Republic of Azeroth with
the pending PIL and has referred the matter to a larger bench of 11 judges as the matter involves
questions of constitutional importance.

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ISSUES RAISED

-I-

Whether the PIL filed by the group of journalists, headed by Mr. Jon Snow, is maintainable
or not?

-II-

Whether the use of spyware by the government comes under the contours of the Indian
Telegraph Act, Official Secrets Act and Information Technology Act or any other law for the
time being in force?

-III-

Whether the surveillance by the state is an invasion of privacy of the citizens of the country
under Article 21 of the Constitution and also deters free speech and expression which is a
fundamental right enshrined under Article 19(1)(a) of the Constitution?

-IV-

Whether an affidavit should be furnished by the government?

-V-

Whether ‘Nationalism’ should be made a part of the basic structure of the Constitution and
should the Fundamental duties become enforceable?

-VI-

Whether the State of Riverdale is competent to appoint a Commission of Enquiry in a matter

of national importance?

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SUMMARY OF ARGUMENTS

I. PIL FILED BY THE GROUP OF JOURNALISTS, HEADED BY MR. JON SNOW IS

MAINTAINABLE.

It is submitted that the present petition filed by the group of journalists, headed by Mr. Jon
Snow is maintainable in the Hon’ble Supreme Court under Article 32. The petitioners do have
locus standi in the present matter as it violates the right of privacy and right to freedom of
speech and expression of nearly 40 journalists in the country. Therefore, they are acting in good
faith and have sufficient interest. Moreover, any alternative remedy cannot restrict them from
filing a writ petition as it is well-founded that their fundamental rights are being infringed.

II. THE USE OF SPYWARE BY THE GOVERNMENT COMES UNDER THE CONTOURS OF
THE INDIAN TELEGRAPH ACT, OFFICIAL SECRETS ACT AND INFORMATION

TECHNOLOGY ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORCE

The counsel submits that the use of spyware by the Government does not conform with Section
5(2) of the India Telegraph Act, 1885 and Section 69 of the Information Technology Act, 2000
as they provide for surveillance through interception of messages and computer resource and
not spying through the use of a spyware. Such surveillance has to be reasonable and
proportional through law and regular means. Innocent people should not be subjected to
surveillance. Moreover, both the provisions provide that such interception should take place
through government orders, which was not done in the present case. Since, no law provide for
surveillance through a spyware, the Government is also violating Section 3 of the Official
Secret Act, 1923.

III. SURVEILLANCE BY THE STATE IS AN INVASION OF PRIVACY OF THE CITIZENS OF

THE COUNTRY UNDER ARTICLE 21 OF THE CONSTITUTION AND ALSO DETERS

FREE SPEECH AND EXPRESSION WHICH IS A FUNDAMENTAL RIGHT ENSHRINED

UNDER ARTICLE 19(1)(A) OF THE CONSTITUTION

The counsel humbly submits that such state surveillance through a spyware is violating right
to privacy. They Government cannot justify it as it going beyond the procedure and scope of
the law pertaining to surveillance and interception and resorting to the use of a spyware. Such
an act of the Government also violates Article 19(1)(a) of the Constitution as it does not pass

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the test of reasonableness of restrictions. There is not nexus between the manner and objective
or restriction. Such a restriction is also not legal and urgent as security of the State is currently
not as risk.

IV. AN AFFIDAVIT SHOULD BE FURNISHED BY THE GOVERNMENT

It is submitted that the Government should be directed by the Hon’ble Supreme Court to furnish
an affidavit on the use/non-use of Kimetsu, a Palpanese spyware as it involves the question of
infringement of Fundaments Rights of few citizens, without any reasonable cause. Moreover,
such an affidavit is necessary for the case to move forward. Furnishing of an affidavit in the
Court will not hamper national security as it is only required to provide whether a spyware is
being used or not.

V. ‘NATIONALISM’ SHOULD NOT BE MADE A PART OF THE BASIC STRUCTURE OF THE

CONSTITUTION AND FUNDAMENTAL DUTIES SHOULD NOT BECOME
ENFORCEABLE.

It is submitted that ‘Nationalism’ should not be made a part of the Basic Structure of the
Constitution as it nowhere mentioned or explained in it. In addition, it is an abstract concept
which cannot be laid out objectively. It is further submitted that Fundamental Duties should
not be made enforceable as they are supposed to be aims for the citizens to achieve and
enforcing them will not only bring autocracy. Moreover, relief to the NGO should not be sought
as their application is politically motivated for their head is an ex-Union minister from NPA.

VI. THE STATE OF RIVERDALE IS COMPETENT TO APPOINT A COMMISSION OF

ENQUIRY IN A MATTER OF NATIONAL IMPORTANCE.

The counsel submits that the State of Riverdale is competent to appoint the Commission of
Enquiry (Kimetsu Inquiry Commission) in a matter of national importance as the Commission
of Inquiry Act, 1956 authorises the state governments to appoint a commission. This can also
be done when the matter is related to an ongoing case and the defence taken by the central
government is not correct.

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ARGUMENTS ADVANCED

1. THE PIL FILED BY THE GROUP OF JOURNALISTS, HEADED BY MR. JON SNOW IS
MAINTAINABLE.

1) The counsel submits that the present petition is maintainable under Article 32 of the
Constitution1 since Republic of Azeroth falls within the ambit of Article 12 of the
Constitution2 and any action taken by it can be scrutinized by the court of law to determine
its constitutional validity.
2) The Republic of Azeroth is suspected of using Kimetsu, a military-grade spyware
developed by a Palpanese firm NSO group. Although the Government has not accepted that
it is using the software to spy on about 300 citizens of the country including journalists,
opposition party members and some union ministers, it has also not explicitly denied such
allegations either.
3) PIL has been filed by a group of journalists led by Mr. Jon Snow, the editor of The Azeroth
Times, a leading newspaper in the country against such usage of spyware by the
Government. There is a clear violation of the fundamental rights like right to privacy and
right to freedom of speech and expression as guaranteed by the Part III of the Constitution.

1.1 The petition has been filed in public interest and therefore maintainable as Public
Interest Litigation

4) The Supreme Court in a catena of decisions have emphasised that only a person acting
bonafide and having sufficient interest in the proceeding of PIL will alone have locus standi
and can approach the Court3 to wipe out the violation of fundamental rights and genuine
infraction of statutory provisions, but not for personal gain or private profit or political
motive or any oblique consideration.4
5) In the present petition it will be wrong to comment that the petitioners do not have any
locus standi in the matter as it pertains to National Security. The group of journalists led by
Mr. Jon Snow, are acting in good faith and have sufficient interest in the PIL as the alleged

1
INDIA CONST. art. 32.
2
INDIA CONST. art. 12.
3
Kansing Kalusing Thakore v. Rabari Maganbhai Vashrambhai, (2006) 12 SCC 360.
4
Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590.

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usage of Kimetsu, a spyware, for the surveillance of several journalists is an attack on the
fraternity of press and media. It is a clear violation of their right to privacy and right to
freedom of speech and expression. Thus, the petition filed before the Apex Court is
maintainable.

1.2 Alternative Remedy Not a Bar

6) Where there is well-founded allegation that fundamental right has been infringed,
alternative remedy is no bar for entertaining writ petition and granting relief.5 The mere
existence of an adequate alternative legal remedy cannot be per se be a good and sufficient
ground for throwing out a petition under Art. 32 if the existence of a fundamental right and
a breach, actual or threatened, of such right and is alleged is prima facie established on the
petition.6
7) In spite of availability of the alternative remedy, the court may exercise its writ jurisdiction
in at least petitions where the petitioner seeks enforcement of any of the fundamental
rights.7 Thus, the counsel humbly submits that writ petition is maintainable as existence of
alternative remedy is not a bar.

2. USE OF SPYWARE BY THE GOVERNMENT DOES NOT COME UNDER THE CONTOURS OF
INDIAN TELEGRAPH ACT, OFFICIAL SECRETS ACT AND INFORMATION TECHNOLOGY
ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORCE

8) Palpanese spyware Kimetsu is a military-grade software. It has been revealed that the
phones of more than 300 citizens of Azeroth, including journalists, opposition party
members and some union ministers are under the surveillance.8 Although the Government
has not explicitly accepted its usage to target these people,9 it is suspected that it is using it
as the Palpanese firm NSO group has stated that it gives the software only to vetted
governments.10 Moreover, the Government has said that any sort of surveillance and
interception is not unauthorized. However, the counsel humbly submits that its usage is

5
State of Bombay v. United motors Ltd., AIR 1953 SC 252.
6
K.K. Kouchunni v. State of Madras, AIR 1959 SC 725.
7
HarbansalSahnia v. Indian Oil Corporation Ltd., AIR 2003 SC 2120.
8
Moot Proposition ¶5&10.
9
Moot Proposition ¶13.
10
Moot Proposition ¶9.

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illegal and is not in conformity with the provisions of Indian Telegraph Act, Official Secrets
Act and the IT Act, 2000.

2.1 Ultra Vires of the Indian Telegraph Act, 1885

9) The usage of Kimetsu by the Government of Azeroth is not in accordance to Section 5(2)
of the Indian Telegraph Act, 1885. There are certain pre-requisites only after which the
Central Government can take possession of telegraphs and order interception of messages.
However, these requisites are not being fulfilled in the present case.

2.1.1 Public emergency or in interest of public safety

10) The Section prescribes the such possession and interception can only be done on the
occurrence of any ‘public emergency’, or ‘in the interest of public safety’.11 ‘Public
emergency’ is the sine qua non for the exercise of power under this Section.12 The
emergency must be ‘public emergency’ and not any other kind of emergency. The Apex
Court, in the case of Hukam Chand v. UOI13 stated that ‘occurrence of public emergency’
and ‘interest of the public safety’ occur in association with each other, i.e., it must ‘take
colour from each other’. The Court defined ‘public emergency’ withing the contemplation
of this Section as the one which raises problems concerning the interest of the public safety,
the sovereignty and integrity of India, the security of the State, friendly relations with
foreign States or public order or the prevention of incitement to the commission of an
offence. It is in the context of these matters that the appropriate authority has to form an
opinion with regard to the occurrence of a 'public emergency' with a view to taking further
action under this section.14
11) Surveillance/interception is justified only in cases of public emergency or in the interests
of public safety, and the existence of such conditions must be inferred reasonably and
cannot be determined solely on the assessment of the government.15 However, in the
absence of risk to people or interest of public safety, such orders for tapping and

11
Indian Telegraph Act, 1885, § 5(2), No. 13, Acts of Parliament, 1885 (India).
12
Hukam Chand Shyam Lal v. UOI, (1976) 2 SCC 128.
13
Id.
14
Id.
15
PUCL v. UOI, AIR 1997 SC 568.

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intercepting of phone calls would not be justified and would in no manner pass the test of
principles of proportionality and legitimacy.16

2.1.1.1 Problematic definition of ‘Public Emergency’

12) The definition of ‘public emergency’ has still not been defined objectively by the legislature
or by the courts. It thus vests arbitrary powers in a delegated official to order the
interception of communication violating one’s fundamental rights. A term which has not
been defined in the Constitution cannot serve as a reasonable ground for suspension of
Fundamental Rights. Moreover, it has been urged that a state of public emergency public
emergency must be of such a nature that it is not secretive and is apparent to a reasonable
man.
13) Lord Atkin in his dissenting opinion in the case of Liversidge v. Anderson17, opined that
when a conditional authority is vested in an administrative official but there aren’t any
prescriptive guidelines for the determination of the preconditions, then the statute has the
effect of vesting an absolute power in a delegated official. This view was also upheld by
the Supreme Court in State of Madhya Pradesh v. Baldeo Prasad. The court was of the
opinion that a statute must not only provide adequate safeguards for the protection of
innocent citizens but also require the administrative authority to be satisfied as to the
existence of the condition precedent laid down in the statute before making an order. If the
statute failed to do so in respect of any conditions precedent then the law suffered from an
infirmity.18

2.1.2 Declaration of Public emergency

14) Section 5(2) prescribes that any such message or class of messages to or from any person
or class of persons, or relating to any particular subject, brought for transmission by or
transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or
detained, or shall be disclosed to the Government making the order or an officer thereof
mentioned in the order.

16
Vinit Kumar v. CBI, W.P. No. 2367 of 19(J).
17
Liversidge v. Anderson, (1942) AC 206.
18
The State of MP v. Baldeo Prasad, 1961 SCR (1) 970.

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15) Therefore, as a preliminary step to the exercise of further jurisdiction under this section,
the Government or the authority concerned must record its satisfaction as to the existence
of such an emergency.19
16) Even the Second Press Commission, while dealing with Section 5(2) of the Act expressed
that the public emergency mentioned in the sub-section is not an objective fact.
Some public functionary must determine its existence and it is on the basis of the existence
of a public emergency that an authorised official should exercise the power of withholding
transmission of telegrams. The appropriate government should declare the existence of
the public emergency by a notification warranting the exercise of this power and it is only
after the issue of such a notification that the power of withholding telegraphic messages
should be exercised by the delegated authority.20
17) However, in the present case, the Government did not notify the concerned persons or the
public about the existence of public emergency and around 300 citizens of Azeroth had
been under surveillance by the use of the said software.

2.1.3 Legitimate surveillance under the provision

18) Irrespective of lack of objectivity in the definition of ‘public emergency’, the Apex Court
has held the such surveillance to be constitutional as Section 5(2) of the said Act only
envisages specific and targeted surveillance. This means that surveillance is targeted and
aimed at individuals against whom there are more than reasonable grounds of suspicion.21
The Court in the case of R. M. Malkani v. State of Maharashtra, opined that the telephonic
conversation of an innocent citizen will be protected by Courts against wrongful or high-
handed interference by tapping the conversations.22 The Apex Court in certain cases also
insisted that the surveillance be targeted and limited to fulfilling the government's crime-
prevention objectives, and be limited to not even to suspected criminals, but the repeat
offenders or serious criminals.23 However, even if an accused or guilty person is to be put
under surveillance, unlawful and irregular methods should not be used by the authorities.24
There should be no illegal interference in the guise of surveillance. Surveillance, therefore,
has to be unobtrusive and within bounds.25

19
Hakum Chand Shyam Lal v. UOI, (1976) 2 SCC 128.
20
Central Secretariat Library, Report Second Press Commission, Vol II, paras 164, 165 & 166.
21
Gobind v. State of MP, AIR 1975 SC 1378.
22
R M Malkani v. State of Maharashtra, 1973 SCR (2) 417.
23
Kharak Singh v. State of UP, 1964 SCR (1) 332, Gobind v. State of MP, AIR 1975 SC 1378.
24
R M Malkani v. State of Maharashtra, 1973 SCR (2) 417.
25
Malak Singh v. State of P&H, 1981 AIR 760.

5
 2 n d HPNLU National Moot Court Competition , 2021

19) Nonetheless, in the present case, the Central Government has resorted to the use of
Kimetsu, a spyware to tap the phones of around 300 citizens including journalists, members
of opposition party and union ministers. No reasonable nexus can be drawn from such an
arbitrary action of the Government as it cannot be proven how these people are threat to
security of State. Rather, from the facts of the case, it can be inferred that the NPA does not
welcome dissent and critique constructively.26

2.2 Non-conformity with Section 69 of the IT Act, 2000

20) Section 69 of the Information Technology Act, 2000 (IT Act) authorizes the Central
government to conduct surveillance through interception, monitoring, decryption of any
information generated, transmitted, received or stored in any computer resource, if it is
satisfied that it is necessary or expedient so to do, in the interest of the sovereignty or
integrity of Azeroth, defence of Azeroth, security of the State, friendly relations with
foreign States, and so on.27
21) The people who are being affected by Kimetsu are journalists, members of opposition party
and some union ministers. The Government cannot prove in this case that how such a
practice of surveillance is fruitful or works in the interest of the sovereignty or integrity of
Azeroth, defence of Azeroth, security of the State, and is not being done for political gains.

2.2.1 Meaning of interception

22) The definition of ‘interception’ is provided in the Information Technology (Procedure for
Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.
Interception is defined to mean the acquisition of the contents of any information so as to
make the contents of the information available to any person other than the sender, recipient
or intended recipient of the communication.28 Thus, it is amply clear that ‘interception’ can
only be done of the contents of information that forms part of some ‘communication’
through a computer resource, and not of actions and conversations that simply happen to
be near a computer resource. Henceforth, interception of information under the IT Act only
applies to the ’communication’ made through computer resource, which is very different

26
Moot Proposition ¶3.
27
The Information Technology Act, 2000, § 69(1), No. 21, Acts of Parliament, 2000 (India).
28
IT (Procedure & Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, Rule
2(l).

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from the wide arsenal of surveillance that is offered by Kimetsu once it infects a phone and
spies on every possible move a person makes. This implies that lawful interception allows
the government to have eyes and ears on messages and media shared through electronic
devices, but it cannot weaponize the device itself to be an eye and an ear to what happens
around it as opposed to in it.
23) Government cannot act beyond the scope of a law given by legislature.29 Thus, the use of
someone’s mobile phone’s microphone or camera to record her actions or conversations
which take place in their daily lives, and not over their electronic device, is thus not
authorised by Section 69 of the IT Act.
24) More so, such interception cannot be permitted except by an order issued by the competent
authority. However, in the present case no such order was issued and the government
allegedly used the spyware against innocent individuals.

2.2.2 State action does not pass the test of proportionality

25) Although the government has the discretionary power to conduct such surveillance, it
cannot do so arbitrarily. Every state action interfering with the privacy of an individual
must satisfy the test of proportionality.30 The test of proportionality includes that action
must be sanctioned by law, such an action must be necessary for a legitimate aim and must
be proportionate to the need for such interference. It also entails the fulfilment of the
principle of non-arbitrariness, narrow tailoring of law, and a regime of adequate
safeguards.31 Security of privacy is fundamental to a free, democratic society, and every
individual has the right to protection against arbitrary State intrusion into his or her privacy.
Narrow tailoring means that restrictions imposed by the State must be tailored and
exercised in a manner that infringes the right in the narrowest possible method to achieve
its goals. However, in the present case, the Government is acting beyond the limits of the
law and spying on every action of some of its citizens without any legitimate reasoning.
26) Section 69 of the Act violates the right to be heard, which is one of the principles of natural
justice. Since the activities of the Government in the present case are clandestine in nature,
there is absence of adequate information on the surveillance conducted. The entire
surveillance design operates covertly, and thus, individuals do not know whether they are

29
Lachmi Narain v. Union of India & Ors., 1976 (2) SCC 953.
30
Justice K. S. Puttaswamy v. UOI, AIR 2017 SC 4161.
31
Id.

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being subject to surveillance. There is no scope for an individual, victim to Sec. 69, to
approach the Court either ex-ante, during or ex-post facto surveillance.
27) Moreover, the method of surveillance is unlawful and irregular in nature as there is use of
a spyware not to intercept, but to hack into the mobile devices of the citizen. This clearly
defeats the concept of narrow tailoring and proves to be excessive in nature.
28) Although the Apex court has stated that surveillance must be targeted and aimed at
individuals against whom there are more than reasonable grounds of suspicion,32 in the
present case, reasonable grounds of suspicion cannot be proved i.e., how can journalists,
opposition party members, and union ministers be a threat to the national security. Also,
the status quo in the country was that the number of insurgency and terrorist attacks had
been reduced considerably between 2014-19 and there was no such urgent need to resort of
spying.

2.3 Violates the Official Secrets Act, 1923

29) As mentioned previously, Indian Telegraph Act and Information Technology Act
prescribes for surveillance in the form of interception of messages and information which
is communicated. This means that interception of only communication can be done when
the Government is satisfied that it is necessary for the security of the State. The reasons and
means of such interception must be reasonable and non-arbitrary in the eyes of law.
30) However, such interception does not include using spyware to hack into the devices of the
people to keep a track of every move they make even in their personal space. No law in the
country legalizes the use of spyware even for the security of State. Furthermore, Section 3
of the Official Secrets Act provides that spying is illegal and a punishable offence.33

32
Gobind v. State of MP, AIR 1975 SC 1378.
33
The Official Secrets Act, 1923, §3, No. 19, Acts of Parliament, 1923 (India).

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3. THE SURVEILLANCE BY THE STATE IS AN INVASION OF PRIVACY OF THE CITIZENS OF

THE COUNTRY UNDER ARTICLE 21 OF THE CONSTITUTION AND ALSO DETERS FREE

SPEECH AND EXPRESSION WHICH IS A FUNDAMENTAL RIGHT ENSHRINED UNDER

ARTICLE 19(1)(A) OF THE CONSTITUTION.

31) The counsel submits that the use of spyware on journalists, members of opposition party
and union ministers is illegal and unconstitutional and grossly violates Articles 19(1)(a)
and 21 of the Constitution and should not be continued under the garb of ‘security of state’.

3.1 Violation of Right to Privacy

32) Article 21 of the Constitution provides for right to life and personal liberty.34 The Supreme
Court has interpreted it to also include right to privacy under its purview.35 It is a right
which protects the inner sphere of the individual from interference from both State, and
non-State actors and allows the individuals to make autonomous life choices.36
33) The Apex Court in the case of PUCL v. UOI, held that telephone conversation is an
important facet of a man's private life. Right to privacy would certainly include telephone-
conversation in the privacy of one's home or office.37 Telephone-tapping would, thus,
infract Article 21 of the Constitution of India unless it is permitted under the procedure
established by law. The courts have also now legitimised surveillance by the state as long
as such surveillance is not illegal or unobtrusive and is within bounds 38 and works for the
interest of the public.39 To determine this, there has to be careful examination of the facts
of a certain case.
34) Article 21 contemplates procedure established by law with regard to deprivation of life or
personal liberty. The telephonic conversation of an innocent citizen will be protected by
Courts against wrongful or high-handed interference by tapping the conversations.40 Since
in the present case phones of journalists, opposition party members and Union Ministers
were being tapped without any legitimate reasoning, it must be held violative of Article 21.

34
INDIA CONST. art. 21.
35
Justice K. S. Puttaswamy v. UOI, AIR 2017 SC 4161.
36
Id.
37
PUCL v. UOI, AIR 1997 SC 568.
38
Malak Singh v. State of P&H, AIR 1981 SC 760, Thumkunta Madhava Reddy v. The State of Telangana,
W.P. No. 18726 of 2020.
39
PUCL v. UOI, AIR 1997 SC 568.
40
R. M. Malkani v. State of Maharashtra, 1973 SCR (2) 417.

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3.1.1 Procedure established by law was not followed

35) Although right under Article 21 is subjected to the ‘procedure established by law’, it
becomes imperative to understand its meaning. The procedure established under such laws
must be ‘right and just and fair’ and ‘not arbitrary, fanciful or oppressive’. Otherwise, it
would be no procedure at all and the requirement of Article 21 would not be satisfied. 41
However, if the procedure is right and just, the court then looks at whether the executive
follows procedure established by the law or not.42 The executive cannot act beyond the
scope of what is given in the law as per its own whims and fancies. It must derive its
authority from the law enacted by the legislature.
36) The Republic of Azeroth claims that there was no unauthorized surveillance on any person
and whatever has been done, is within the contours of Indian Telegraph Act, Official
Secrets Act and IT Act. However, as previously stated above, these legislations do not give
sanction for using a spyware for the purpose of surveillance, hacking and tapping of calls
and messages. Moreover, any surveillance conducted under these laws must be reasonable
and proportionate, which is clearly not being done in the present case.
37) The Apex Court in the case of D. Bhuvan Mohan Patnaik v. State of A.P.43 held that if the
petitioner succeeds in establishing that measures taken by the executive authorities violate
any of the fundamental rights, the justification of the measure must be sought in some ‘law’,
within the meaning of Article13(3)(a) of the Constitution. The State also needs to justify
the action to be in accordance to the ‘procedure established by law’. However, if the
petitioners are right in their contention that the mechanism constitutes an infringement of
any of the fundamental rights available to them, they would be entitled to the relief sought
by them.
38) In the present case, the Republic of Azeroth is acting outside the ambit of the above-
mentioned legislations and there is no other law which legalizes spying on innocent
citizens. Therefore, its executive action regarding the arbitrary use of spyware against the
citizens of the country does not have any sanction of ‘law’ or does not come under the
purview of ‘procedure established by law’. Ergo, they neither come within the meaning of
Article 13(3)(a) of the Constitution nor could these instructions fall within the expression

41
Maneka Gandhi v. UOI, AIR 1978 SC 597.
42
A K. Gopalan v. State of Madras, AIR 1950 SC 27.
43
D. Bhuvan Mohan Patnaik & Ors v. State of AP, 1974 AIR 2092.

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‘procedure established by law', as envisaged by Article 21 of the Constitution of India.

Thus, such an executive action of the Republic of Azeroth violates right to privacy under
Article 21.

3.2 Fails the Test of Reasonableness of Restrictions under Article 19

39) Article 19(1)(a) prescribes for right to freedom of speech and expression. It also includes
telephone conversation within its purview as it allows an individual to express his/her
convictions and opinions freely by word of mouth.44 However, rights are not absolute in
nature and are subjected to permissible/reasonable restrictions.45 Article 19(2) provides for
such restrictions. The expression "reasonable restriction" signifies that the limitation
imposed on a person in enjoyment of the right should not be arbitrary or of an excessive
nature, beyond what is required in the interests of the public.46 The Apex Court in the case
of State of Madras v. V. G. Row47 has established the importance of test of reasonableness
to determine the validity of restrictions as the limitation/restriction imposed should not be
arbitrary or excessive, or beyond what is required in the situation in the interests of the
public.48
40) In such instance, the counsel submits that the defence of the State that such restrictions on
the right to free speech and expression is valid on the ground of security of State, is not
reasonable. There are several grounds for adjudging the reasonableness of a restriction.

3.2.1 No reasonable nexus between the manner of restriction and objective and excessive
nature of restriction imposed

41) Restriction to be valid must have a direct and proximate nexus with the object which the
legislation seeks to achieve and the restriction must not be in excess of that object.49
42) In the case of Kharak Singh v. State of U.P., the Apex Court held the surveillance as
‘reasonable’ and in the interests of maintaining public order precisely because it was
directed only against those who were on proper grounds suspected to be of proved anti-

44
PUCL v. UOI, AIR 1997 SC 568.
45
INDIA CONST. art. 19(2).
46
Dr. Y.P. Singh v. State of U.P., AIR 1982 All 439.
47
State of Madras v. V.G. Row, 1952 AIR 196.
48
M.R.F. Ltd. v. Inspector Kerala Govt., AIR 1999 SC 188.
49
Arunachala Nadar v. State of Madras, AIR 1959 SC 300.

11
 2 n d HPNLU National Moot Court Competition , 2021

social habits and tendencies and on whom it was necessary to impose some restraints for
the protection of society.50 Even in the case of Gobind v. State of MP, the court insisted
that the surveillance be targeted, limited to fulfilling the government's crime-prevention
objectives, and be limited not even to suspected criminals, but to repeat offenders or serious
criminals.51 Spying or using surveillance on innocent citizen is wrongful in nature.52
Moreover, the law may permit the State to intercept phones, but not to weaponize them.
43) However, in the present case, as per the report of ‘The Rope’, phone numbers of over 40
journalists of Azeroth were on a hacking list of an unidentified agency using Palpanese
spyware Kimetsu, a military-grade spyware.53 Data showed that most of the journalists
were targeted between 2018 and 2019, in the run-up to the 2019 Lok Sabha elections.54
Since NSO has confirmed that it only gives the spyware to vetted governments55, it reflects
that the Government was trying to track down the ones who could impose threat to the
image of National Party of Azeroth, and not the security of State.

3.2.2 No legal sanction behind the use of a spyware for surveillance

44) A restriction under Article 19(2) should be in the form of an already existing law or a law
made by the State for the purpose of imposing a restriction i.e., restrictions can be imposed
only by or under the authority of a law. Such a ‘law’ shall fall within the definition of ‘law’
given under Article 13. No restriction can be imposed by executive action alone without
there being a law to back it up with.56
45) However, in the present case, as previously stated above, Republic of Azeroth acted beyond
the scope of the Indian Telegraph Act, IT Act and Official Secrets Act. The Acts provided
for legitimate and reasonable means for surveillance and not hacking or spying, which the
Government was doing by using Kimetsu. The Supreme Court has opined that discretion
vested in an administrative authority is also a relevant factor. If its exercise is properly
controlled and safeguarded, it is reasonable, otherwise it is not.57 In the present case, the
Government also did not even make any order or notification, which could be considered
as law under Article 13(3)(1), pertaining to such surveillance. Since these executive actions

50
Kharak Singh v. State of UP, 1964 SCR (1) 332.
51
Gobind v. State of MP, AIR 1975 SC 1378.
52
R. M. Malkani v. State of Maharashtra
53
Moot Proposition ¶5.
54
Moot Proposition ¶6.
55
Moot Proposition ¶9.
56
Re-Ramlila Maidan Incident v. Home Secretary and UOI, Re (2012) 5 SCC 1, Hindustan Times v. State of
U.P., (2003) 1 SCC 591.
57
Municipal Corp. v. Jan Mohd. Usmanbhai. (1986) 2 SCC 20.

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do not fall under the definition of law, there was no reasonable justification for the
imposition of such a restriction on Article 19(1)(a) of the citizens of India.

3.2.3 No urgency of evil sought to be remedied

46) In the case of Chintaman Rao v. State of Madhya Pradesh,58 the social settings, prevailing
circumstances and burning problems of the day should be also be considered to determine
the urgency of imposition of such restriction.
47) In the present case, restriction is being imposed on the ground of ‘security of state’.
However, it has been distinctively mentioned that since 2014, the frequency of attacks,
insurgency and guerrilla warfare has reduced significantly to a total of 6 during 2014-2019.
Despite of such a sharp decline, the government still feels the need to infringe the rights of
its citizens without any reasonable cause by spying on them. The ones under its radar are
not even offenders; they are merely journalists, members of opposition parties and union
ministers. In such a case, it is difficult to determine the urgency to impose such a restriction.

4. AN AFFIDAVIT BY THE GOVERNMENT PERTAINING TO THE USE/NON-USE OF THE

SPYWARE SHOULD BE FURNISHED.

48) A Miscellaneous Application has been filed by the petitioner in this case, seeking the relief
that the respondent is directed to furnish an affidavit stating the use/non-use of the Kimetsu
Software. The Republic of Azeroth has filed a reply stating therein that such an affidavit
cannot be filed in order to maintain confidentiality as the matter pertains to National
Security.
49) The counsel submits that the Government should furnish an affidavit which has been
requested by the petitioner as the affidavit is necessary for the case to move forward and
the affidavit will not harm the country’s national security and the case involves citizens as
well as eminent people of the country.

4.1 The Affidavit is necessary for the case to move forward

50) The counsel submits that the affidavit is necessary for the case to move forward, as the
affidavit will inform the court regarding the use of spyware by the government and whether

58
Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118.

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the privacy of citizens has been violated or not. If the government refuses to submit the
affidavit it will bring the case to a stalemate which is not beneficial for both the sides.
51) In the case of Manohar Lal Sharma v. Union of India59, where the government was stalling
submission of affidavit pleading that it will affect national security, the honorable Supreme
court said that keeping in mind the national security of the government, the court only wants
to know the stand of the government and when the affidavit is furnished, it will in no way
affect the national security and the court also observed that the affidavit becomes essential
for the case.

4.2 The affidavit will not harm the country’s national security and the case involves
citizens as well as eminent people of the country

52) The counsel submits that if the government files an affidavit, then it will not in any manner
harm the national security of the country as it is only asking that the spyware has been used
or not. It is in no manner going to bring any confidential information into the public domain.
Furthermore, the affidavit becomes important as the question is of several citizens of the
country which also includes 40 journalists. This makes it very important that the
government shows whether it has used the spyware.

5. ‘NATIONALISM’ SHOULD NOT BE MADE A PART OF THE BASIC STRUCTURE OF THE

CONSTITUTION AND THE FUNDAMENTAL DUTIES SHOULD NOT BECOME ENFORCEABLE.

53) A Intervention Application has been filed on behalf of ‘Desh ki Mitti’ NGO, seeking the
relief of intervention and impleading of the NGO in the present matter. They have prayed
that 'Nationalism' be declared as a part of the Basic Structure of the Constitution of Azeroth.
They have also prayed that the Fundamental Duties be made enforceable as the terms
Patriotism and Nationalism have lost all meaning.
54) The counsel submits that nationalism should not be made a part of the basic structure as it
is nowhere mentioned in Constitution of Azeroth. Nationalism is an abstract concept of the
constitution. Further, Fundamental Duties should not become enforceable as they are not
practicable. The part of Fundamental Duties which can be enforced is enforced through

59
Manohar Lal Sharma v. Union of India, W.P. (Crl) 314/2021.

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legislations. The scope of Fundamental Duties is not well defined, and thus enforcing them
will bring a kind of autocracy and the I.A. in the present case is politically motivated.

5.1 Nationalism is nowhere mentioned in the Constitution of Azeroth

55) The counsel submits that ‘Nationalism’ cannot be made a part of the Basic Structure as it
is nowhere mentioned in the Constitution, nor it is explained anywhere in there. The SC
has listed out the components of the basic structure of the Constitution in the cases of Indira
Nehru Gandhi v. Raj Naraian60 and also in the Minerva Mills case61. In that list too,
nationalism has not been included. The SC in Minerva Mills v. Union of India62 also held
that the amending power of the Parliament cannot be absolute. The Constitution was made
on nationalistic ideals which were propagated by national leaders at that time but adding
the word “Nationalism” serves no purpose.

5.2 Nationalism is an abstract concept

56) The counsel submits that ‘Nationalism’ is an abstract concept and it will serve no purpose
in the Constitution as it cannot be practiced in a physical manner. There are legislations
which are based on the concept of Nationalism but even if Nationalism is added to the basic
structure, how is it going to be practiced and how will it be implemented, cannot be
determined objectively.

5.3 Fundamental Duties are not practicable

57) The counsel submits that Fundamental Duties cannot be enforced as they are not
practicable. This is because of nature of the duties. In theory the duties can be categorized
as positive and negative in the Constitution of Azeroth. Five are positive and six are
negative but this is not what makes them non-enforceable but the fact that they are meant
to achieve a utopian goal. The duties can be compared to DPSPs and as the directive
principals are for the state, in the same manner fundamental duties are for the citizens.
Sardar Swarn Singh Committee recommended that a penalty should be imposed when
fundamental duties are not complied with.63 But this suggestion was not accepted by then
government also. Even in the case of Surya Narain v. Union of India64 the honorable court

60
Indira Nehru Gandhi v. Raj Naraian AIR 1975 SC 2299.
61
Minerva Mills v. Union of India AIR 1980 SC 1789.
62
Id.
63
Swaran Singh Committee Report, 1976 2 SCC 17-2.
64
Surya Narain v. UOI, AIR 1982 Raj 1.

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said that “as regards enforceability of these duties, it has been held that these duties being
duties of individual citizens cannot be enforced through mandamus, as they cast no public
duties.” For the fulfilment of Fundamental Duties, they are read with Fundamental Rights
and DPSPs65 and this completes the objective of fundamental duties in a suitable manner.
In the case of N.K. Bajpai v. Union of India66, the Court spoke of a link that ties Part III,
IV and IV-A of the Constitution. These parts refer to Fundamental Rights, DPSPs and
Fundamental Duties, respectively. The court emphasized the value of studying all three
parts together to understand and interpret different provisions that may be ambiguous.

5.3.1 The part of Fundamental Duties which can be enforced is enforced through
Legislations

58) The counsel submits that the part of Fundamental Duties which can be enforced is enforced
through legislations [for instance, Prevention of Insults to National Honour Act, 1971,
Unlawful Activities (Prevention) Act, 1967, Environmental Protection Act, 1986, the
Wildlife (Protection) Act 1972 and the Forest (Conservation) Act 1980], which makes
enforcing the whole of fundamental duties futile. As fundamental duties are not practicable
in whole, there are several legislations which are brought by the Parliament so as to fulfill
the objective of the fundamental duties and this is done where it is necessary too. In
Mumbai Kamgar Sabha v. Abdulbhai67 too keeping in mind that fundamental duties cannot
be legally enforceable, the Supreme court held that the fundamental duties can be
encouraged through constitutional measures for the sake of public good. In the case of
Mohan Kumar Singhania v. Union of India68, the court stated that one could resort to Article
51- A in situations where the constitutionality of any legislation has been questioned and
needs to be determined.

5.3.2 The scope of Fundamental duties is not well defined

59) The counsel submits that the scope of fundamental duties is not well defined which makes
them almost impossible to follow in whole. For example, Fundamental Duty such as ‘to
value and preserve the rich heritage of our composite culture’ leaves the scope of such
duties open ended. Such ambiguity enables unscrupulous elements for moral policing. Such

65
Javed v. State of Haryana, AIR 2003 SC 3057.
66
N.K. Bajpai v. Union of India AIR 2012 INSC 179.
67
Mumbai Kamgar Sabha v. Abdulbhai, AIR 1976 SCR (3) 591.
68
Mohan Kumar Singhania v. Union of India, AIR 1991 SC 1150.

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open-ended duties cannot be followed by the citizens in day-to-day life. A prime example
of this may be the case of Shyam Narayan Chouksey v. Union of India69, the Supreme
Court passed an interim order that mandated the playing of the National Anthem at the start
of every film in cinema theatres and compelled all viewers to stand during the National
Anthem to convey respect. This controversial decision was later struck down, as it was
believed to be violating Article 19(1) of the Constitution.70

5.4 Enforcing Fundamental Duties will bring a kind of autocracy

60) The counsel submits that enforcing fundamental duties will bring a kind of autocracy which
is violative of the concept of democracy. The fundamental duties were inspired from
Section 29(1) of UDHR, 194871 which says that “Everyone has duties to the community in
which alone the free and full development of his personality is possible.”
61) The section also lays emphasis on free development of individuals, if fundamental duties
are enforced and a penalty is imposed on their non-compliance then it will cause damage
the country instead of improving it. Even the National Commission to Review the Working
of Constitution was posed with the question that whether Article 51-A served its purpose,
and if not, where have people precisely failed in implementing Article 51-A. It said that the
first and foremost step required by the Union and State Governments is to sensitize the
people and create a general awareness of the provisions of fundamental duties amongst the
citizens.72

5.5 The application is politically motivated

62) The counsel submits that the application filled by “Desh ki Mitti” NGO is politically
motivated. Desh ki Mitti NGO is headed by Mr. Malcom David, who has been a former
Union Minister of culture and tourism during 2014-2019 and hence due to these facts it can
clearly be observed that the application is politically motivated and is made to deviate from
the matter of invasion of privacy done by the government.

69
Shyam Narayan Chouksey v. Union of India, AIR 2003 MP 233.
70
INDIA CONST. art. 19(1).
71
Section 29(1) of UDHR, 1948.
72
Ministry of Law, Justice and Company Affairs, Department of Legal Affairs, The National Commission to
Review the Working of the Constitution, Vol. 1, Chapter 3, pg. 3.37; Ministry of HRD, Department of
Education, Fundamental Duties of Citizens, Vol 1, Chapter 6, pg. 24.

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6. THE STATE OF RIVERDALE IS COMPETENT TO APPOINT A COMMISSION OF ENQUIRY IN

THE PRESENT MATTER

63) The State of Riverdale has appointed a Commission of Inquiry (Kimetsu Inquiry
Commission) with a former Judge of the Hon’ble Supreme Court and a former Chief Justice
of the State High Court to look into the alleged invasion of privacy by the Republic of
Azeroth of several individuals, journalists, activists, business persons, police officials,
politicians, both in the government and the opposition. Pursuant to this, the Union
Government moved the Hon’ble Supreme Court against the State of Riverdale thereby
seeking that the State has no right to appoint a Commission of Inquiry.
64) The counsel submits that the state of Riverdale is competent to appoint a commission of
enquiry in a matter of national importance as the state is well within its powers to appoint
a commission. A commission can be appointed if the matter is pending in court and the
defense taken by the central government is not valid.

6.1 The state is competent to appoint a commission

65) The counsel submits that the state is well within its powers to appoint a commission as the
matter of public surveillance can be dealt in two aspects, one being the ‘information and
technology’ area which comes under the Union’s domain and the another one is ‘public
order’ which is provided in Entry 1 in List II of the Seventh Schedule,73. This gives power
to the state to take actions in matters like the one in hand as it clearly affects public order.
66) Under Section 3 of the Commission of Inquiry Act, 195274 it is stated, “The appropriate
government may, if it is of opinion that it is necessary so to do…”, it means that both
Central and state governments have power to set up a commission. Further, Section 2(a) of
the Act defines that what is meant by an appropriate government. It provides that the state
government can appoint a commission if the matter is relatable to any of the entries
enumerated in List II or List III in the Seventh Schedule to the Constitution75 and as shown
above the matter is of public order.
67) While discussing that when the need arises to appoint a commission in Ram Krishna
Dalmia v Justice Tendolkar76, the Supreme Court said that:

73
The Constitution of India, 1950, Schedule VII, List II, State List, Item 1 (Public Order).
74
Commission of Inquiry Act, 1952, § 3, No. 60, Acts of Parliament, 1952 (India).
75
Commission of Inquiry Act, 1952, § 2(a), No. 60, Acts of Parliament, 1952 (India).
76
Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 538.

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“We see no warrant for the proposition that a definite matter of public importance must
necessarily mean only some matter involving the public benefit or advantage in the
abstract e.g., public health, sanitation or the like. The conduct of an individual person or
company(s) may assume such a dangerous proportion and may so prejudicially effect or
threaten to affect the public well-being as to make such conduct a definite matter of
public importance urgently calling for a full inquiry.”

6.1.1 A commission can be appointed if the matter is pending in court

68) The appointment of a commission of enquiry is done so as to find the truth. They do not
have the authority to enforce any law. The commission only serves the administrative
function which is assigned to them. In such a case, even if a matter is pending before a
court and a commission is appointed in relation to it, the working of the commission will
in no manner affect the proceeding of the court. It was held in P. V. Jagannath Rao v. State
of Orissa77 that a court of inquiry can be set up even if certain matters were pending in the
courts. The commission of inquiry has nothing to impede or interfere with the powers of
the court and is just acting in good faith and ejecting statutory functions under the
Commission of Inquiry Act.

6.2 The defense taken by the central government is not valid

69) The counsel submits that the defense taken by the central government that the State has no
right to appoint a Commission of Inquiry when the matter is one of National Importance
involving two or more states, is not valid as according to the Act the state cannot appoint a
commission when the scope of inquiry is extending to two or more states but in the current
scenario through no data or report, we can be sure that the enquiry will extend to two or
more states till it is proven otherwise, the state has every right to appoint a commission.

77
P. V. Jagannath Rao & Ors v. State of Orissa & Ors, AIR 1969 215.

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PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

AND AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HON’BLE
SUPREME COURT OF AZEROTH MAY BE PLEASED,

1. DECLARE that the PIL filed by the journalists is maintainable under Article 32 of the
Constitution.

2. DECLARE that the use of spyware by the government does not come under the purview of
the IT Act, OS Act and ITA or any other law for the time being in force.

3. DECLARE that the surveillance by the State is an invasion of privacy of the citizens of the
country under Article 21 of the Constitution and also deters free speech and expression which
is a fundamental right enshrined under Article 19(1)(a) of the Constitution.

4. APPOINT a Supreme Court monitored Special Investigation Team (SIT) to investigate the
current situation in respect of Kimetsu.

5. HOLD that an affidavit should be furnished by the Government stating the use/non-use of
Kimetsu software.

6. DECLARE that ‘Nationalism’ should not be a part of the basic structure of the Constitution
and Fundamental Duties should not become enforceable.

7. HOLD that the State of Riverdale is competent to appoint a commission of enquiry in the
present matter.

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT THIS HON’BLE
COURT MAY DEEM FIT IN THE INTERESTS OF JUSTICE, EQUITY, AND GOOD
CONSCIENCE. FOR THIS ACT OF KINDNESS, THE APPLICANT DUTY BOUND
SHALL. ALL OF WHICH IS HUMBLY PRAYED AND SUBMITTED.

_______________
Respectfully submitted,
TC- H62
Counsels for the Petitioners

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