KERALA LAW ACADEMY LAW COLLEGE

31st ALL INDIA MOOT COURT COMPETITION 2022 TEAM CODE- V

Before

THE HONOURABLE SUPREME COURT OF INDIA

WRIT PETITION NO---/2021 & ---/2021

IN THE MATTER OF

Mr. Sahu Pal & Others ...Petitioner

V.

STATE OF DHARMASTHAN …Respondent

1
 TABLE OF CONTENTS

TABLE OF CONTENTS 2

LIST OF ABBREVIATIONS 3

INDEX OF AUTORITIES 4-5

STATEMENT OF JURISDICTION 6

SYNPOSIS OF FACTS 7-9

ISSUES RAISED 10

11- 15
SUMMARY OF ARGUMENTS

ARGUMENTS ADVANCED 16- 38

39
PRAYER

2
LIST OF ABBREVIATIONS

& And
AIR All India Reporter
Art Article
Anr Another
IE Act Indian Evidence Act
Mad LJ Madras Law Journal
NALSA National Legal Services Authority
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
UOI Union of India

3
 INDEX OF AUTHORITIES

CONSTITUTIONS OF INDIA
CASES

1. JUSTICE K.S. PUTTASWAMY AND ORS. VS. UNION OF INDIA (UOI)

AND ORS
2. S.P. Gupta v. Union of India AIR 1982 SC 149
3. State of Punjab v. S.S. Singh 1961 AIR 493
4. Amar Chand Butail v. Union of India AIR 1964 Sc 1658
5. State of U.P. v. Raj Narain 1975 AIR 865
6. Maneka Gandhi v. Union of India AIR 1978 SC 597
7. State of W.B. v. Anwar Ali Sarkar AIR 1952 SC 75
8. S.G. Jaisinghani v. Union of India AIR 1967 SC 1427
9. E.P. Royappa v. State of T.N AIR 1970 SC 555
10.Shayaro Bano v. Union of India
11.State of A.P. vs McDowell & Co 3 SCC 709
12.Yashwant Sinha v. Central Bureau of Investigation
13.R.K. Jain v. Union of India 1993 4 SCC 119
14.Manoharlal Sharma v. Union of India No. 314 of 2021
15.Anuradha Bhasin V. Union of India WP (Crl.) no. 225 of 2019
16.Ram Jethmalani v. Union of India 2011 8 SCC 1
17.Central Public Information Officer v. Subhash Chandra Agarwal 2019 SCC
Online SC 149
18.Sankey v. Whitman [1978] HCA 43

4
 STATUTES

 The Constitution Of India

 The Right To Information Act, 2005
 The Information Technology Act, 2000
 The Delhi Special Police Establishment Act, 1946
 The Indian Telegraph Act, 1885
 Indian Evidence Act, 1872

BOOKS

 Ratanlal & Dhirajlal, The Law of Evidence (25th Edition)

 Black' Law library
 Universal Declaration Of Human Rights
 International Convenent of Civil and Political Rights
 MP JAIN, Indian Constitutional Law, Wadhwa and Company (Nagpur, 5th
ed., Vol.1, 2003).
 MP SINGH, V.N. Shukla’s Constitution of India, Eastern Book Company
(Lucknow, 9th ed., 1998)

5
 STATEMENT OF JURISDICTION

THE HON’BLE SUPREME COURT OF INDIA HAS THE INHERENT

JURISDICTION TO TRY, ENTERTAIN AND DISPOSE OFF THE
PRESENT WRIT PETITIONS CLUBBED TOGETHER BY VIRTUE OF
ARTICLE 32 OF THE CONSTITUTION OF INDIA. THE PETITIONERS
RESPECTFULLY SUBMIT THIS MEMORANDUM.

6
SYNOPSIS OF FACTS

Dharmasthan is a State in the Indian Union. Centre for Digital Technology

(hereinafter “CDT”) is an institution registered under The Indian Societies
Registration Act of 1860. (Vision, Mission and Governing body).

Sequences of events

1. Dharmasthan Times on 20/07/2021

 CDT has developed a spy software called NOSOSIS in
collaboration with an IT firm SHAMGULAR which is
registered in Saint Kitts Island.
 It is sold to solely to law enforcement and intelligence agencies
of governments and private firms.
 It gains access to a cell phone without consent and gather
personal and sensitive information and deliver it to the user.
 It uses various methods to gain access by SMS and Zero clicks
exploits which is similar to Pegasus spyware software. (The
working mechanism is written from page 3 to 5)

2. Dharmasthan Voice on 28/07/2021

 Basically a statement by Shamgular was published in light of
recent allegations of spyware software.

3. Dharmasthan Reporter on 29/07/2021

 42 journalists were attacked by spyware Nososis.
 forensic tests have confirmed the presence of the military-grade
spyware on some devices.(This may mean that Nososis presence
was not found rather any other military grade software could be
there )

4. Dharmasthan Voice on 30/07/2021

 The mechanism of spyware

7
5. CDT issused a statement that the allegations made in Forbidden stories are
wrong assumptions and uncorroborated theories.

6. During 03/08/2021 to 04/08/2021, a ruckus took place between politicians.

Events in Judiciary

1. On 10th , Mr Sahu filed a writ for:-

 The Court may direct the CBI investigation to prosecute all
persons, who committed offences by way of using ‘Nososis’.
 Government may be directed to produce all documents
related to ‘Nososis’ before the High Court.
 An amount of Rs 50 lacks may be awarded as compensation
for violation of his privacy.

2. Several other writ were also filed against spyware.

3. On 06/09/2021, filed a counter affidavit neither confirmed nor denied the

use of the spyware to hack phones of others and offered to set up an
expert committee to enquire into all issues.

4. CJ asked to file another affidavit regarding the infringement of privacy

of anybody or not but on next day AG said that govt. is open to form a
committee and then submit its report before the court. AG added that the
use of a particular software “cannot be made a part of the public discourse
in the larger interest of the State and in the interest of the security of the
State" Then the learned court said to clarify whether there was lawful
interception or unlawful interception. In which the AG said the
information sought is “sensitive” in nature and concerned “security of the
state. On 10/09/202, AG claimed protection under Sec 123 and 124 of IE
Act.

8
 5. On 20/09/2021, Mr. Sahu challenging the constitutional validity of
Sections 123 and 124 of IE Act.

Writs were also filed before the apex court and different High Court regarding the
same matter. Due to this and pendency of similar cases, the apex court decided to
transfer all the cases from different High Courts to here and make it batch case with
lead case of Mr. Sahu.

9
 ISSUES RAISED

1. Whether there has been any violation of right to privacy by the state as the
reports on Nososis spyware suggests?

2. Whether Section 123 & 124 of IE Act are in violation of the fundamental
rights guaranteed in Part III of the Constitution?

10
SUMMARY OF ARGUMENTS

1. There has been no violation of right to privacy by the state as the

reports on Nososis spyware suggests
 It is humbly submitted before the Supreme Court of India that right to
privacy which is a constitutionally protected fundamental right of
every citizen has been infringed by way of unlawful surveillance done
on its citizen using military grade spyware Nososis on the behest of the
state govt. The contentions for the same have been submitted in the
following line of arguments.The right to privacy is a constitutionally
guaranteed fundamental right with every person which very much
includes right to informational privacy and since there is enough
evidence to proof that there has been breach of such privacy by way of
surveillance using Nososis possibly by the state or on its behest
therefore it is in violation of right to privacy under Art. We in regards
to these authoritative definitions we can establish that privacy is a right
that empowers an individual to be left alone and to have protection
from any unlawful intrusion.
 In 2017, Supreme Court in the case of K S Puttaswamy & Anr. v.
Union of India & Ors. Analyses the discussion on privacy with regards
to a worldwide, data based society. While following the meaning of
privacy given by different philosophers, the judges draw a relationship
with the present situations and the essential need of each person to live
with respect. It is crucial for defend protection freedoms given the
quick speed of development and technological change, which has made
the public more vulnerable to personal data abuse. The apprehension
that as our world with ever growing pace moves towards a data-driven
society and that these developments may in more than one and
certainly in unimaginable ways has the potential to encroach upon the
liberties and freedoms of the citizens has been enumerated more than
once in multiple cases.
 The works changes and brings into existence new conditions». Subtler
and far reaching means of invading privacy will make it possible to be

11
 heard the street what is whispered in the closet.«Such apprehensions
were furthered by the court in the Supreme Court in the case of K S
Puttaswamy & Anr. v. Union of India & Ors. Whereby J. Kaul
stated.»585. The growth and development of technology has created
new instruments for the possible invasion of privacy by the state,
including through surveillance, profiling and data collection and
processing. Surveillance is not new but but technology has permitted
surveillance in ways that are unimaginable.«To emphasize on his
concerns over unlawful surveillance by state J. Kaul referred to the
famous dystopian fiction Nineteen Eighty Four by George Orwell and
said that »Technological development can now not only enable State
but also Big Corporations to be the «Big Brother». Taking in
cognizance of such rightful worries, it was the farsighted judgement of
J. Nariman who in K S Puttaswamy & Anr. v. Union of India & Ors.
went on to categorically state
 The present matter seems to be a reenactment from the dystopian world
of George Orwell as so has been the unfortunate state of affairs that
today we find, there has been a deliberate attempt and success in
snooping into the phones and personal lives of prominent figures of
our society. Reports that includes forensic tests suggests over 42
journalists were on a hacking list of an unidentified agency using the
spyware ‘Nososis’, the actual no is although still unknown and it might
be just the tip of the ice burg as the government is hiding behind the
drapes of «National security» and is deliberately obstructing
investigation and is hiding the information it has. Forensic tests have
confirmed the presence of the military-grade spyware on some devices.
The analysis of the data showed that most of the journalists were
targeted between 2018 and 2019. The lead petitioner is one such
journalist whose phone upon forensic test have shown presence of
Nososis.
 The security of one's privacy against arbitrary intrusion by the the
police is basic to a free society

12
 Upholding these observations on arbitrary intrusion into ones privacy
by state and its law enforcement agencies the Supreme Court in its
landmark case K S Puttaswamy & Anr. v. Union of India & Ors. held
that Privacy lies across the spectrum of protected freedoms. The
guarantee of equality is a guarantee against arbitrary State action. It
prevents the state from discriminating between individuals. The
destruction by state of a sanctified personal space whether of the body
or of the mind is violative of the guarantee against arbitrary State
action. The Supreme Court further went on to explain how a balance
can be struck between legitimate state interests and fundamental rights,
the court stated. With regard to tapping of phones as a way of
surveillance the Supreme court in the cases of R.M. Further reiterating
its position in Pucl case where constitutionality of phone tapping for
surveillance was judged the court held

 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. 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. Telephone-tapping would, thus, infringe Art.
21 of the Constitution of India unless it is permitted under the
procedure established by law»

 In the PUCL case the court dictated over a guideline for the agencies
to abide by before commiting any acts of surveillance, the question of
whether those guidelines being followed in the present case is also a
major concern as failure to do so will render and surveillance as
unlawful.

13
2. Section 123 & 124 of IE Act are in violation of the fundamental rights
guaranteed in Part III of the Constitution
 That the Sections 123 and 124 of the Indian Evidence Act, 1872 are
unconstitutional as it is in derogation with Part III of the Constitution
of India on the grounds that the aforementioned sections:Are manifestly
arbitrary and violative of Right to Equality guaranteed by Article 14 of
the Constitution. They infringe upon the Right to know of the citizens
guaranteed under Article 19 enshrined in Part III of the Constitution.
As per Article 13 the basis of differentiation must have a rational
relation to the object sought to be achieved the concerned statute.
Statute is said to be unreasonable, as held in the case of Kruse v
Johnson, if the statute is partial or unequal in its operation, to certain
classes of society, if it is manifestly unjust or has no bona fide
intensions or involves in oppressive or gratuitous relations with the
rights of the subjects. Privilege of the Government regarding the
nondisclosure of documents relating to «affairs of state» is created on
the grounds of consideration of public policy. It must be clarified that
«public policy» can in no way mean merely political considerations and
must be of paramount importance. The context under which sections
123 and 124 are used in the present times, however, defeats the purpose
and as such are unreasonable and arbitrary. In S.G. Jaisinghani v. is
humbly submitted before the Hon’ble Court that Governmental
privilege regarding the non-disclosure of documents is a violation of
the citizens’ Right to Know guaranteed under Article 19 of the
Constitution of India and essential to the functioning of a democratic
government which was laid down as part of the basic structure of the
Constitution, «the evidence mostly signifies anything which
demonstrates, increases the transparency and ascertains the truth of the
facts or pints in issue either on one side or the other side.» According
to the preamble of the Indian Evidence Act, 1872, the Act is made to
«consolidate, define and amend the law of Evidence». The main
objective of this Act is that for the court to find out the truth on the basis
of the facts brought before it by the parties to meet the ends of justice
as expeditiously as possible. Conferring upon one of the parties of a
judicial proceeding the privilege of not disclosing Evidence will be
14
 detrimental to the proper administration of justice. Suppression of
probative evidence in a court of law increases the chances of misguided
judicial decisions based on incomplete and inaccurate findings without
the benefit of evidence claim for privilege, regarding a class of
documents, is based on the principles of «candor» which enables
officers and heads of States to express their views freely without fear.
It is not intended to protect them from criticism, however ill-founded.
The recent judicial trends, especially after the enactment of the Right
to Information Act, hints that a claim for privilege come in the way of
citizens’ legitimate effort to gather evidence in a judicial proceeding
against government wrong doing. Joseph, J. concurring with Ranjan,
C.J. and Kaul, J. in the case of Yashwant Sinha v. Central Bureau of
Investigation, also known as the «Rafale case».

 Bhagwati J. in the landmark decision of S.P. Gupta v Union of India

while discussing Section 123 gave his view that the meaning and scope
of the section can’t remain static and must be interpreted keeping given
the new democratic principles, part of the basic values enshrined in the
Constitution. The concept of an open government is the logical
corollary from the Right to Know which is implicitly provided in the
Right to Free Speech and Expression. According to Bhagwati J.
«disclosure of information regarding the functioning of Government
must be the rule and secrecy an exception». The claim for privilege,
which has public interest as its foundation, comes into direct conflict
with the public interest in fair administration of justice. In the case of
Manoharlal Sharma v. Union of India, the Supreme Court upheld the
necessity of free flow of information and said that it is an important step
towards Governmental transparency and openness which are celebrated
virtues of the Constitution. The court relied on the judgements made by
it previously in the cases of Anuradha Bhasin and Ram Jethmalani v.
Union of India adding emphasis on the principles of fair administration
of justice and protection of fundamental rights by the State.

15
 ARGUMENTS ADVANCED

1: BREACH OF RIGHT TO PRIVACY DUE TO SURVEILLANCE

It is humbly submitted before the Supreme Court of India that right to privacy which
is a constitutionally protected fundamental right of every citizen has been infringed
by way of unlawful surveillance done on its citizen using military grade spyware
Nososis on the behest of the state govt. The contentions for the same have been
submitted in the following line of arguments.

1. The right to privacy is a constitutionally guaranteed fundamental right with

every person which very much includes right to informational privacy and since
there is enough evidence to proof that there has been breach of such privacy by
way of surveillance using Nososis possibly by the state or on its behest therefore
it is in violation of right to privacy under Art. 21
i. In Indian Constitutional Jurisprudence the multi-dimensional aspect given to
Art. 21 by the Supreme Court has ended up making Art 21 a liberally
interpreted article. The components of Art.21 has been made conceivable by
giving a drawn out importance to the word 'life' and 'freedom' in Article 21 It
therefore includes all those aspects of life which makes a man’s life more
meaningful, complete and worth living so as to mean something more than
mere survival and mere existence or animal existence. Right to Privacy is one
such right which has come to its presence subsequent to enlarging up the
components of Art. 21.
ii. Now Before diving into the intricacies of the concerned issue it is important
to understand the meaning of the word privacy to get a clearer perspective.
According to Black’s Law Dictionary “right to be let alone; the right of a

16
 person to be free from any unwarranted publicity; the right to live without any
unwarranted interference by the public in matters with which the public is not
necessarily concerned”. In the context of the present issue before the
honourable it becomes necessary to focus over the words “the right to live
without any unwarranted interference by the public in matters with which the
public is not necessarily concerned”. Right to privacy is one such right it in
conformity with definition given in international conventions and charters
which has been multiple times quoted in the land mark judgement of KS
puttaswamy regarding right to privacy of an individual.

Article 12 of Universal Declaration of Human Rights (1948) states that

“No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence nor to attack upon his honour and
reputation. Everyone has the right to protection of the law against such
interference or attacks.”

Article 17 of International Covenant of Civil and Political Rights (to

which India is a party) states “No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home and correspondence,
nor to unlawful attacks on his honour and reputation”
We in regards to these authoritative definitions we can establish that privacy
is a right that empowers an individual to be left alone and to have protection
from any unlawful intrusion.
iii. In 2017, Supreme Court in the case of K S Puttaswamy & Anr. v. Union of
India & Ors.1 Analyses the discussion on privacy with regards to a

1
(2017) 10 SSC 1

17
 worldwide, data based society. While following the meaning of privacy given
by different philosophers, the judges draw a relationship with the present
situations and the essential need of each person to live with respect. It is
crucial for defend protection freedoms given the quick speed of development
and technological change, which has made the public more vulnerable to
personal data abuse.
iv. The apprehension that as our world with ever growing pace moves towards a
data-driven society and that these developments may in more than one and
certainly in unimaginable ways has the potential to encroach upon the liberties
and freedoms of the citizens has been enumerated more than once in multiple
cases. In the Gobind v. State of Madhya Pradesh & Anr 2the court while
deciding upon a case of arbitrary intrusion into ones life by police stated
"23. The works changes and brings into existence new conditions”.
Subtler and far reaching means of invading privacy will make it
possible to be heard the street what is whispered in the closet.”
Such apprehensions were furthered by the court in the Supreme Court in
the case of K S Puttaswamy & Anr. v. Union of India & Ors. Whereby
J. Kaul stated.
“585. The growth and development of technology has created new
instruments for the possible invasion of privacy by the state,
including through surveillance, profiling and data collection and
processing. Surveillance is not new but but technology has permitted
surveillance in ways that are unimaginable.”
To emphasize on his concerns over unlawful surveillance by state J. Kaul
referred to the famous dystopian fiction Nineteen Eighty Four by George

2
(1975) 2 SCC 148

18
 Orwell and said that “Technological development can now not only enable
State but also Big Corporations to be the “Big Brother”. Taking in
cognizance of such rightful worries, it was the farsighted judgement of J.
Nariman who in K S Puttaswamy & Anr. v. Union of India & Ors. went
on to categorically state
“521. In the Indian context, a fundamental right to privacy would cover
at least the three aspects, one of which is Informational privacy, which
does not deal with a person's body but deals with a person's mind and
therefore recognizes that an individual may have control over
dissemination of material personal to him. Unauthorized use of such
information may therefore lead to infringement of this right.”
v. The present matter seems to be a reenactment from the dystopian world of
George Orwell as so has been the unfortunate state of affairs that today we
find, there has been a deliberate attempt and success in snooping into the
phones and personal lives of prominent figures of our society. Reports that
includes forensic tests suggests over 42 journalists were on a hacking list of
an unidentified agency using the spyware ‘Nososis’, the actual no is although
still unknown and it might be just the tip of the ice burg as the government is
hiding behind the drapes of “National security” and is deliberately obstructing
investigation and is hiding the information it has. Forensic tests have
confirmed the presence of the military-grade spyware on some devices. The
analysis of the data showed that most of the journalists were targeted between
2018 and 2019. The lead petitioner is one such journalist whose phone upon
forensic test have shown presence of Nososis. There are further reports I
regard to this spyware which claim that it was jointly developed by a
government institution, Centre for Digital Technology (hereinafter “CDT”) in
a secret collaboration with an IT firm ‘Shamgular’ registered in Saint Kitts
19
 Island. ‘Shamgular’ is a firm known to build sophisticated software and
technology for selling solely to law enforcement and intelligence agencies of
governments and private firms therefore giving strong reasons to belief that
this spyware were was used to spy upon the aggrieved by the law enforcement
agencies of Dharmasthan state. Another critical discovery which has been
made regarding the institution CDT is that the Hon'ble Chief Minister of
Dharmasthan, Nalkir Yashi and the top brass of the state bureaucracy
including the Principal Secretary, Finance Department, Government of
Dharmasthan. Secretary, Science & Technology Department, Government of
Dharmasthan and many others were members of the governing body of CDT.
Although registered under The Indian Societies Registration Act of 1860 the
presence of so many members of the government in the governing body of the
organization clearly indicates deep and pervasive state control would be
3
termed as State as held in Ajay Hasia v. Khalid Mujib therefore there
should not be any second thought in regarding CDT as State All these reports
are very worry some and certainly suggests a connection and probably a nexus
between the state government and the actors used spy by way of hacking into
the phones of the said journalists. The reports regarding the extent to which
the spyware can be used is further spine chilling. According to reports through
this spyware, contacts and browser history can be collected. In addition, a
hacker can hijack the phone's microphone and camera, turning it into a real-
time surveillance device. One of the prominent features of ‘Nososis’ is the
“Zero Click attacks”. The Zero-Click infection means that the individual is
not even required to open a link for them to be attacked with the malware. It
gets installed by missed call or a message. As soon as the spyware is installed

3
(1981) 1 SSC 722

20
 on a mobile device, it starts getting in touch with the “command and control
servers” of the operator. It can then follow instructions and send private data
available on the mobile device which include text messages, event schedules,
contacts, passwords, voice calls on messaging apps, location data etc. The
reports and the logical deduction of the facts from this whole fiasco suggesting
the use of such spyware by the state or on the behest of state with the intention
of serving their political motives and curbing any voices of criticism, it not
only infringes the right to privacy of its citizen but also possesses great danger
to the democratic ethos and constitutional safeguards provided to every citizen
of the country as the fourth pillar of democracy the media is directly under
siege because of Nososis.
vi. As with the regard to the first contention it has been established without an
iota of doubt that the constitution of India protects every man’s right to privacy
and as has been observed in the K S Puttaswamy & Anr. v. Union of India
& Ors4 the ambit of right to privacy is multi-dimensional and within it right to
privacy encloses within itself not just the right to privacy from unauthorized
and arbitrary intrusion but also has the right to informational privacy by way
of which ones private data is protected from any form of unauthorized or
arbitrarily authorized usage. There is a popular English common law jargon
coined by eminent jurist Sir Edward Coke in the land mark Semayen’s case
“Every man’s house is his own castle”, in essence defining what is private
space where a person can avail their right to privacy. In present day scenario
where phones and other electronic devices has become an essential parts of life
as to being a storage of our personal lives and the data generated by us is more
than often ‘what best kept in our closet’. Using the same reasoning reasoning

4
Supra note 1

21
 in the Katz v United States5, it was observed that even an enclosed telephone
booth is an area where, like a home a person has a constitutionally protected
reasonable expectation of privacy; and that any electronic, as well as physical,
intrusion into a place that is in this sense private may constitute a violation of
privacy. In this landmark case the meaning of ‘person’ and what is private was
expanded to the extent of public phone booth as well. Both these observations
have been quoted in K S Puttaswamy & Anr. v. Union of India & Ors6.
Therefore it won’t be unjust to say that in essence our phones and any other
electronic device that stores, transits or generates data are integrated in
‘person’ with us, which is protected from any form of unlawful and arbitrary
intrusion. In connection with the present case there is reasonable apprehension
to say that the lead petitioner was certainly snooped upon using the spyware
Nososis which as the reports suggests was developed by a government
institution in collaboration with a foreign company having expertise in
developing spyware. The forensic reports suggests that there was a breach in
the security system of the phones and possibly an encroachment of personal
data which infringes the right to privacy of the lead petitioner and others. Such
violation of right to privacy entitles the petitioner for a compensation under
Art. 32 as held in the case of Radul Sah v. State of Bihar7
2. Government’s hesitancy and deliberate attempt to not disclose any information
regarding the spyware which is possibly developed and used by the government
raises serious apprehension that the usage of the spyware was unauthorized and
arbitrary and if so any such unauthorized and arbitrary intrusion into ones private
life is in violation of right to privacy.

5
389 US 347 (1967)
6
Supra note 1
7
(1983) 4 SCC 141

22
i. The second contention to the issue stems down from the facts of the case,
whereby first after the release of some news paper reports suggesting that the
government institution CDT in collaboration with collaboration with an IT
firm ‘Shamgular’ has developed a highly sophisticated military grade
software, it released a very vague press reply without backing it up by any
form of proof. This has been so in the case of the affidavit filed by the the
government, the response was vague, it neither confirmed nor denied the use
of the spyware. Further when pressured by the high court the AG filled an
affidavit claiming protection under Sec. 123 & 124 of IE Act. Similarly in the
political corridors of the state when the issue was raised in the state assembly
by the leader of opposition and demanded a CBI inquiry for a free and fair
investigation on the issue the government first denied the allegations and later
when the LoP with his demands went to the governor the government in
shocking move withdrew the general consent given to the CBI for enquiry in
the State, through the notifications of the Government of Dharmasthan under
Section 6 of the Delhi Special Police Establishment Act 1946. Such acts of
deliberate obstruction of justice by way of not letting an independent
investigating agency enquire, by nondisclosure of certain information that
even the High court deemed necessary to meet the ends of justice has raised
serious concerns. There are concerns that as the reports suggests Nososis the
spyware was developed by CDT and ‘Shamgular’ and was used to snoop upon
people and particularly journalists. This surveillance by the state was in all
probability unauthorized and arbitrary and therefore the government is so
adamant for nondisclosure of facts as such unauthorized and arbitrary acts of
surveillance would amount to violation of right to privacy.

23
 ii. If we go back to the various definitions of right to privacy given in
authoritative books charters and by jurists from all around the world the
commonality one will find is with regards to Arbitrary unlawful in all these
definition the commonality one will find is with regards to Arbitrary unlawful
interference vis-a-vis ones private life by state or others, and that has been the
case in the present issue as well. With regard to the same, the Supreme Court
has clearly stated any unauthorized unlawful and arbitrary intrusion in one’s
private life will be violation of Art.21. The Supreme Court in Gobind v. State
of Madhya Pradesh & Anr 8stated that :-
31 “what is guaranteed under the article is that no person shall be
deprived of his life or personal liberty except by procedure established
by law.”
Further in the case of Kharak Singh the court held that
"17 The security of one's privacy against arbitrary intrusion by the the
police is basic to a free society”
Upholding these observations on arbitrary intrusion into ones privacy by state
and its law enforcement agencies the Supreme Court in its landmark case K S
Puttaswamy & Anr. v. Union of India & Ors held that

“Privacy lies across the spectrum of protected freedoms. The guarantee of

equality is a guarantee against arbitrary State action. It prevents the state
from discriminating between individuals. The destruction by state of a
sanctified personal space whether of the body or of the mind is violative of
the guarantee against arbitrary State action.”

8
Supra note 1

24
 The Supreme Court further went on to explain how a balance can be struck
between legitimate state interests and fundamental rights, the court stated.
“310. while it (Surveillance) intervenes to protect legitimate state interests,
the State must nevertheless put into place a robust regime that ensures the
fulfillment of a threefold requirement. These three requirements apply to all
restraints on privacy (not just informational privacy). They emanate from the,
procedural and content-based mandate of Article 21. The first requirement
that there must be a law in existence to justify an encroachment on privacy is
essential requirement of Article 21. For, no person can be denied of his life
or personal liberty except in accordance with the procedure established by
law The existence of law is an essential requirement, Second, the requirement
of a need, in terms of a legitimate State aim, ensures that the nature and
content of the law which imposes the restrictions falls within the zone of
reasonableness mandated by Article 14, which is a guarantee against
arbitrary State action. The third requirement ensures that the means which
are adopted by the legislature are proportional to the object needs sought to
be fulfilled by the law. Proportionality is an essential facet of the guarantee
against arbitrary State action because it ensures that the nature and quality
of encroachment on the right is not disproportionate to the purpose of law.”
iii. As has been said in the judgement “the State must nevertheless put into place a
robust regime that ensures the fulfilment of a threefold requirement”. The
questions that the petitioner is asking and is keen in knowing is whether these
requirements were fulfilled? Were the surveillance done by the state? If no then
since there are reports that such spyware were found on the device of the petition
the government still has a stake in protecting the right to privacy of the people as

25
 stated in Manohar Lal Sharma v. Union of India9 while dealing with a similar
case.
“it was the State’s responsibility to take necessary action to protect the
interests and fundamental rights of the citizens, particularly when there
existed the risk that such an attack was made by a foreign entity”
And therefore the government should have allowed a high level independent
investigation and not bulldoze the efforts to investigate by withdrawing
consent for a CBI investigation.
If the state says that it did use Nososis to do surveillance the the state must
answer were all required procedures of the law followed? In what legitimate
state interest it was to spy on journalists? Was such high level surveillance
using military grade spyware within the zone of reasonableness and was it
proportional to the object needs sought to be fulfilled by the law?
iv. With regard to tapping of phones as a way of surveillance the Supreme court
in the cases of R.M. Malkani v. State of Maharashtra10 held that
"31. ...Art. 21, contemplates procedure established by law with regard
to deprivation of life or personal liberty The telephone conversation of
an innocent citizen will be protected by courts against wrongful or
high-handed interference by tapping conversation”
Further reiterating its position in Pucl case where constitutionality of phone
tapping for surveillance was judged the court held
“18. 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

9
No. 314 of 2021
10
(1973) 1 SSC 471 SCC

26
 curtailed except according to procedure established by law. 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. Telephone-tapping would, thus, infringe Art. 21
of the Constitution of India unless it is permitted under the procedure
established by law.”
v. In the People’s Union Of Civil Liberties ... vs Union Of India (UOI) And Anr
11
case the court dictated over a guideline for the agencies to abide by before
committing any acts of surveillance, the question of whether those guidelines
being followed in the present case is also a major concern as failure to do so will
render and surveillance as unlawful. The court further held that telephone tapping
infringes the guarantee of fee speech and expression under Art. 19 (1) A unless
authorized. Which seems to be also the case in the present issue as the ones spied
upon were mostly journalists.
vi. The silence of the Government and its attempt to obstruct investigation raises
serious questions. There are now serious apprehensions that such acts of
surveillance was done by the state and in an unauthorized and arbitrary manner
therefore violating the rights of the petitioner. In the present matter, as has have
indicated above, the petitioners has placed on record certain material that has
prima facie merits. There has been no specific denial of any of the facts averred
by the Petitioners by the Respondent. There has only been an omnibus and vague
response in the “limited affidavit” filed by the Respondent-Union of India. The
petitioner understands the “national security” concerns but this does not mean
that the State gets a free pass every time the spectre of “national security” is
raised. National security cannot be the bugbear, by virtue of its mere mentioning.

11
(1997) 1 SCC 301

27
 They must justify the stand that they take before a Court. “The mere invocation
of national security by the State does not render the Court a mute spectator.” As
it was held in the Manohar lal sharma v. Union of India12. Finally with regard
to the investigation of this matter, the petitioner has major apprehensions that any
investigation done by the the government would not be free from the whims and
fancies of the state and therefore to render complete justice in this case a free, fair
and independent investigating agency like CBI should be given this case to look
into.

II: Constitutional validity of Section 123 & 124 of IE Act

1. That the Sections 123 and 124 of the Indian Evidence Act, 1872 is
Unconstitutional.
It is most humbly submitted before this Hon’ble Court that Section 123 of
the Indian Evidence Act, 1872 (hereinafter called “the Act”) which states
that
“No one shall be permitted to give any evidence derived from
unpublished official records relating to any affairs of State, except with
the permission of the officer at the head of the department concerned,
who shall give of withhold such permission as he thinks fit.”
Section 124 of the IE Act which states that
“No public officer shall be compelled to disclose communications
made to him in official confidence, when he considers that the public
interests would suffer by the disclosure.”
are unconstitutional as it is in derogation with Part III of the Constitution of
India on the grounds that the aforementioned sections:

12
Supra note 9

28
 a. Are manifestly arbitrary and violative of Right to Equality guaranteed
by Article 14 of the Constitution.
b. They infringe upon the Right to know of the citizens guaranteed under
Article 19(1)(a) enshrined in Part III of the Constitution.
2. As per Article 13(1) “All laws in force in the territory of India immediately
before the commencement of this Constitution, in so far as they are
inconsistent with the provisions of this Part, shall, to the extent of such
inconsistency, be void.” Therefore, Section 123 and 124 of the Act are void
and liable to be struck down.
1.1 Violation of Right to Equality guaranteed under Article 14
1. It is contended by the counsel for the petitioners that Section 123 and
Section 124 of the Act are in violation of Article 14 of the Indian
Constitution on the humble grounds that the sections are manifestly
arbitrary, an essential of rule of law, hence effectively infringe upon the
Right to Equality enshrined in the Constitution.
2. In law “privilege” is an immunity or exemption conferred by special grant
to a certain class or individual in derogation of a common right13. In
Evidence Law, the term “privilege” denotes a freedom from the
compulsion to give evidence or to discover up material, or a right to
prevent or bar information from other sources during or in connection with
litigation, but on grounds extrinsic to the goals of litigation14. Usually
certain matters are privileged and cannot be inquired into in any way
because of public policy concerns regarding their disclosure, such as that
of “security of State” in case of Sections 123 and 124 of the Act. It goes

13
Sixty Ninth Law Commission Report
14
Eighty Eight Law Commission Report

29
 without saying that any matter which involves a privilege under law of
evidence must involve examination and balancing of competing rights.
3. The rationale behind Sections 123 & 124 of the Act is public policy, i.e.,
existence of a possible injury to public interest by the disclosure of the
unpublished official record concerning “affairs of the state” or any
communication made in “official confidence.” A claim for privilege
against the disclosure of an official document under section 123 raises two
questions, whether the documents relate to private affairs of State and
whether disclosing it will be injurious to public interest, in the particular
case before the court and a balance must be struck between the two
competing interests. In the case of S.P. Gupta v. Union of India15,
Venkataramiah, J. while discussing Section 123 observed that the
expression “affairs of state” should be interpreted in a very narrow sense,
any claim for a wider interpretation would lead to the section being
challenged as unconstitutional. Desai, J. in the same case rightly pointed
out “…a century old provision enacted to some extent keeping in view the
needs of Empire builders must change in the context of the Republican
government and the open society which we have set up.”
4. The hon’ble apex court while discussing State of Punjab v. S.S.
Singh16case and Amar Chand Butail 17cases in its Judgment State of U.P.
v. Raj Narain18 remarked on the power of inspection by the court of the
document. The court was of the view that to determine if the document is
a noxious document that should be excluded from evidence on the grounds
that the document relates to affairs of state, the court should have complete

15
AIR 1982 SC 149
16
1961AIR 493
17
AIR 1964 Sc 1658
18
1975 AIR 865

30
 access to it or else it will be difficult to determine the nature of it. Ray, C.J.
was of the opinion that “Courts should have the fullest possible access to
all relevant materials. This will be the inspection of the document by the
court.” The power to decide whether disclosure of an official document
might be injurious to public interest is vested upon the head of the State
and the public servant under section 123 and section 124 respectively and
not with the courts. Courts alone are equipped to deal with balancing two
conflicting public interests- security of state and production of factual
material which is vital for the proper administration of justice. The law
thus is inconsiderate to the true essence of privilege which is injury to
public interests and not protecting the secrecy of “affairs of State.”
5. According to Blacks’ Law Dictionary “Any act found on prejudice or
preference, rather than on reasons or facts, is arbitrary.” In the landmark
case of Maneka Gandhi v. Union of India19 , the Hon’ble apex court held
that the principles of natural justice and rational nexus is implied in every
statute. It must be right, just, fair and reasonable and not arbitrary. In State
of W.B. v. Anwar Ali Sarkar20, Das, J. laid down that for permissible
legislative classification two conditions must be fulfilled: 1) It must be
founded on an intelligible differentia which distinguishes persons or things
in groups from the ones that are left out of the group; and 2) The basis of
differentiation must have a rational relation to the object sought to be
achieved the concerned statute.
6. A statute is said to be unreasonable, as held in the case of Kruse v
Johnson21, if the statute is partial or unequal in its operation, to certain

19
AIR 1978 SC 597
20
AIR 1952 SC 75
21
(1898) 2 QB 91

31
 classes of society, if it is manifestly unjust or has no bona fide intensions
or involves in oppressive or gratuitous relations with the rights of the
subjects. Privilege of the Government regarding the nondisclosure of
documents relating to “affairs of state” is created on the grounds of
consideration of public policy. It must be clarified that “public policy” can
in no way mean merely political considerations and must be of paramount
importance. The context under which sections 123 and 124 are used in the
present times, however, defeats the purpose and as such are unreasonable
and arbitrary. In S.G. Jaisinghani v. Union of India22, the Supreme Court
observed that “absence of arbitrary power is the first essential of rule of
law”. E.P. Royappa v. State of T.N.23 is the leading case wherein
arbitrariness of law developed as a distinct doctrine on which an arbitrary
piece of legislation was ought to be struck down as violative of rule of law
contained in Article 14 of the Constitution of India. Here it becomes
important to highlight the oft quoted para by Bhagwati, J. in this regard,
where he held “equality is antithetical to arbitrariness…… Article 14
strikes at arbitrariness in State action and ensures fairness and equality of
treatment. The principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or non-arbitrariness
pervades Article 14 like a brooding omnipresence and the procedure
contemplated by Article 21 must answer the test of reasonableness in order
to be in conformity with Article 14. It 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.” In the case

22
AIR 1967 SC 1427
23
AIR 1970 SC 555

32
 of Shayaro Bano v. Union of India24 , popularly known as the “triple
talaq” case, Nariman, J. discussed the evolution of the doctrine of
arbitrariness in the context of Indian jurisprudence as held that
“Arbitrariness in legislation is very much a facet of unreasonableness in
Articles 19(2) to (6), as has been laid down in several judgments of this
Court,…….and, therefore, there is no reason why arbitrariness cannot be
used in the aforesaid sense to strike down legislation under Article 14 as
well.”
7. Though it is essential to point out that in the case of State of A.P. vs
McDowell & Co25. it was held that no enactment which came through a
parliamentary procedure can be struck down on the grounds of
arbitrariness alone. Some other constitutional infirmity must be found in
order to invalidate the enactment. As such the counsel for the petitioner
humbly makes the following contention.

1.2 Violation of Right to Know as guaranteed under Article 19(1)

1. It is humbly submitted before the Hon’ble Court that Governmental
privilege regarding the non-disclosure of documents is a violation of the
citizens’ Right to Know guaranteed under Article 19(1) of the Constitution
of India and essential to the functioning of a democratic government which
was laid down as part of the basic structure of the Constitution.
2. According to Blackstone, “the evidence mostly signifies anything which
demonstrates, increases the transparency and ascertains the truth of the
facts or pints in issue either on one side or the other side.” According to
the preamble of the Indian Evidence Act, 1872, the Act is made to

24
(2017) 9 SCC 1
25
Co 3 SCC 709

33
 “consolidate, define and amend the law of Evidence”. The main objective
of this Act is that for the court to find out the truth on the basis of the facts
brought before it by the parties to meet the ends of justice as expeditiously
as possible. Conferring upon one of the parties of a judicial proceeding the
privilege of not disclosing Evidence will be detrimental to the proper
administration of justice. Suppression of probative evidence in a court of
law increases the chances of misguided judicial decisions based on
incomplete and inaccurate findings without the benefit of evidence.
3. A claim for privilege, regarding a class of documents, is based on the
principles of “candor” which enables officers and heads of States to
express their views freely without fear. It is not intended to protect them
from criticism, however ill-founded. The recent judicial trends, especially
after the enactment of the Right to Information Act, hints that a claim for
privilege come in the way of citizens’ legitimate effort to gather evidence
in a judicial proceeding against government wrong doing. Joseph, J.
concurring with Ranjan, C.J. and Kaul, J. in the case of Yashwant Sinha
v. Central Bureau of Investigation, also known as the “Rafale case”, has
held that
“The most important aspect in a justice delivery system is the ability of
a party to successfully establish the case based on materials. Subject to
exceptions it is settled beyond doubt that any person can set the
criminal law into motion. It is equally indisputable however that among
the seemingly insuperable obstacles a litigant faces are the limitations
on the ability to prove the case with evidence and more importantly
relevant evidence. Ability to secure evidence thus forms the most
important aspect in ensuring the triumph of truth and justice.”

34
 4. Chandrachud, J. in a recent event has remarked that “Justice seems to be
done only when judicial proceedings are opened for public viewership.
This not only provides legitimacy to the judicial institution buts also
furthers the democratic principles of accountability.” Right to know is a
Fundamental right guaranteed to the citizens by the Constitution of India
under Article 19(1). In a democratic country the citizens have a right to
know information regarding the operations of the Government. In the case
of R.K. Jain v. Union of India26, the Supreme Court, while examining
Section 123 of the Act, discussed at lengths, the Right to know of the
Citizens in a democratic country, concurring with the view of Fazal Ali, J.
in the S.P. Gupta vs UOI27 case also known as the first judge’s case, and
held that
“……in a democracy, citizens are to know what their Government is
doing. No democratic Government can survive without accountability
and the basic postulate of accountability is that the people should have
information about the functioning of the Government. It is only if the
people know how the Government is functioning that they can fulfil
their own democratic rights given to them and make the democracy a
really effective participatory democracy.
Disclosure of information in regard to the functioning of the
Government must be the rule and secrecy can be exceptionally justified
only where strict requirement of public information was assumed. The
approach of the court must be to alleviate the area of secrecy as much
as possible constantly with the requirement of public interest bearing

26
1993 4 SCC 119
27
Supra note 15

35
 in mind all the time that the disclosure also serves an important aspect
of public interest.”
5. The Hon’ble Supreme Court in the case of State of Punjab v. S.S. Singh28
considered the effect of claim of privilege by the Government under
Section 123 and laid down certain rules in this regard. Gajendragadkar J.
held that the Government simply cannot claim privilege on the
apprehension that disclosure of the documents may adversely the
government or may invoke public criticism. Bhagwati J. in the landmark
decision of S.P. Gupta v Union of India29 while discussing Section 123
gave his view that the meaning and scope of the section can’t remain static
and must be interpreted keeping in view of the new democratic principles,
part of the basic values enshrined in the Constitution. The concept of an
open government is the logical corollary from the Right to Know which is
implicitly provided in the Right to Free Speech and Expression. According
to Bhagwati J. “disclosure of information in regard to the functioning of
Government must be the rule and secrecy an exception”. The claim for
privilege, which has public interest as its foundation, comes into direct
conflict with the public interest in fair administration of justice. In the case
of Manohar Lal Sharma v. Union of India30, the Supreme Court upheld
the necessity of free flow of information and said that it is an important
step towards Governmental transparency and openness which are
celebrated virtues of the Constitution. The court relied on the judgements
31
made by it previously in the cases of Anuradha Bhasin vs UOI and

28
1961AIR 493
29
Supra note 9
30
No. 314 of 2021
31
WP (Crl.) no. 225 of 2019

36
 Ram Jethmalani v. Union of India32 adding emphasis on the principles
of fair administration of justice and protection of fundamental rights by the
State. It highlighted the previous decision of Ram Jethmalani v. Union of
India where it was held that,
“76. …...both parties bear the responsibility of placing all relevant
information, analyses, and facts before this Court as completely as
possible. In most situations, it is the state which may have more
comprehensive information. ……
77. ……. the burden of protection of fundamental rights is primarily
the duty of the State. Consequently, unless constitutional grounds exist,
the State may not act in a manner that hinders this Court from
rendering complete justice in such proceedings. ……
78. In the task of upholding of fundamental rights, the State cannot be
an adversary. The State has the duty, generally, to reveal all the facts
and information in its possession to the Court, and also provide the
same to the petitioners.”
6. Joseph, J. in the Rafale case33 also emphasized the need for public access
to information, without which there would be rampant human rights
violation and widespread corruption. One of the objects of democracy is to
bring accountability in the working of the Government and to contain
corruption by bringing transparency in the access of information which
was also upheld in the case of Central Public Information Officer v.
Subhash Chandra Agarwal34, Joseph, J. was of the view that, “…….
corruption and human rights violations are completely incompatible and

32
2011 8 SCC 1
33
34
2019 SCC Online SC 149

37
 hence anathema to the very basic principles of democracy, the rule of law
and constitutional morality. ………. The economic development of a
country is closely interconnected with the attainment of highest levels of
probity in public life. In some of the poorest countries in the world, poverty
is rightfully intricately associated with corruption. In fact, human rights
violations are very often the offspring of corruption.” A reference was
made to the case of Sankey v. Whitman35 of the High Court of Australia
which essentially held that it should be ensured that a claim of privilege
should in no way cause hindrance in the course of justice, where a case
against the wrong doing of a high-ranking official is dismissed due to the
want of evidence.
7. The Court in Ram Jethmalani v. Union of India36 held that the right of
Constitutional remedies guaranteed by the Constitution by Article 32 can
only be meaningful if the petitioner in a case is not denied information,
especially if the information is in possession of the State, particularly since
such petitions seek the protection of Fundamental Rights. Thus, denying
such information would infringe the right guaranteed under Article 32.

35
[1978] HCA 43
36
Supra note 32

38
 PRAYER

In light of the issues raised, arguments advanced and authorities cited, the Petitioners
respectfully requests this Hon’ble High Court to adjudge, hold and declare that:

1. The Court may direct the CBI investigation to prosecute all persons, who
committed offenses by way of using ‘Nososis’.
2. Government may be directed to produce all documents related to ‘Nososis’
before the High Court.
3. An amount of Rs. 50 lacks may be awarded as compensation for violation of
his privacy.

39