TEAM CODE- SLCU 43

IN THE HON’BLE SUPREME COURT OF VIKAS

WRIT PETITION NO. _____ OF 2019

SPECTRE DONNA ORAGANISATION PETITIONER

V.
REPUBLIC OF VIKAS RESPONDENT

Along with
WRIT PETITION NO._____ OF 2019

MR. CHIDDU AND ANR. PETITIONERS

v.
REPUBLIC OF VIKAS RESPONDENT

‘MEMORANDUM ON BEHALF OF RESPONDENTS’

AS SUBMITTED TO THE HON’BLE JUDGES OF THE SUPREME COURT OF VIKAS

10TH NATIONAL MOOT COURT COMPETITION, 2019

-MEMORIAL ON BEHALF OF THE RESPONDENT-

~TABLE OF CONTENTS~ ~PAGE I OF XII~

TABLE OF CONTENTS

TABLE OF CONTENTS.........................................................................................................I
INDEX OF AUTHORITIES..................................................................................................III
STATEMENT OF JURISDICTION.....................................................................................VI
SUMMARY OF FACTS......................................................................................................VII
ISSUES RAISED...................................................................................................................XI
[1] WHETHER THE AMENDMENTS TO THE UNLAWFUL ACTIVITIES
(PREVENTION) ACT, 1967, VIDE THE UNLAWFUL ACTIVITIES (PREVENTION)
AMENDMENT ACT, 2019 VIOLATES ARTICLE 14 AND 21 OF THE
CONSTITUTION OF VIKAS?...........................................................................................1
[2] WHETHER THE EXCESSIVE POWERS GRANTED TO NATIONAL
INVESTIGATION AGENCY, VIDE THE UNLAWFUL ACTIVITIES (PREVENTION)
AMENDMENT ACT, 2019, VIOLATES THE QUASI-FEDERAL NATURE OF
VIKAS ENSHRINED UNDER THE BASIC STRUCTURE OF THE CONSTITUTION
OF VIKAS?..........................................................................................................................1
[3] WHETHER THE SECTION 69 OF THE INFORMATION TECHNOLOGY ACT
2000, THE INFORMATION TECHNOLOGY (PROCEDURES AND SAFEGUARDS
FOR INTERCEPTION, MONITORING AND DECRYPTION OF INFORMATION)
RULES, 2009 AND THE IMPUGNED NOTIFICATION ISSUED BY THE CENTRAL
GOVERNMENT UNDER THE AFORESAID LAWS VIOLATES ARTICLE 14, 21
AND 19 OF THE CONSTITUTION?.................................................................................1
[4] REASONABLE RESTRICTIONS APPLICABLE TO RIGHT OF PRIVACY MUST
BE BALANCED AGAINST THE NEEDS OF GOVERNANCE OF THE STATE?........1
SUMMARY OF ARGUMENTS.............................................................................................1
ARGUMENTS ADVANCED.................................................................................................1
[1] WHETHER THE AMENDMENTS TO THE UNLAWFUL ACTIVITIES
(PREVENTION) ACT, 1967, VIDE THE UNLAWFUL ACTIVITIES (PREVENTION)
AMENDMENT ACT, 2019 VIOLATES ARTICLE 14 AND 21 OF THE
CONSTITUTION OF VIKAS?...........................................................................................1
[1.1] That the amendment does not violate Article 14.....................................................1
[1.2] The amendment does not violates Article 21..........................................................5
[2.1] Legislative Competence..........................................................................................8

-MEMORIAL ON BEHALF OF THE RESPONDENT-

~TABLE OF CONTENTS~ ~PAGE II OF XII~

[2.2] Seizure of property vis a vis Terrorism Investigation.............................................9

[2.3] Parliamentary Debates/discussions on State’s approval clause............................11
[3] WHETHER THE SECTION 69 OF THE INFORMATION TECHNOLOGY ACT
2000, THE INFORMATION TECHNOLOGY (PROCEDURES AND SAFEGUARDS
FOR INTERCEPTION, MONITORING AND DECRYPTION OF INFORMATION)
RULES, 2009 AND THE IMPUGNED NOTIFICATION ISSUED BY THE CENTRAL
GOVERNMENT UNDER THE AFORESAID LAWS VIOLATES ARTICLE 14, 21
AND 19 OF THE CONSTITUTION?...............................................................................14
[3.1] The Aforementioned Act, Rules And Notification Do Not Violate Article 14.....15
[3.2] The Aforementioned Act, Rules And Notification Do Not Violate Article 21.....16
[3.3] The Aforementioned Act, Rules And Notification Do Not Violate Article 19.....17
[4] THE REASONABLE RESTRICTIONS AVAILABLE FOR OTHER RIGHTS ALSO
NEED TO BE READ WITH ARTICLE 21?.....................................................................18
[4.1] There Are Existing Limitations To Right to Privacy............................................18
[4.2] Limitations Have Been Read In by The Court In Similar Statutes.......................19
PRAYER..............................................................................................................................XII

-MEMORIAL ON BEHALF OF THE RESPONDENT-

~INDEX OF AUTHORITIES~ ~PAGE IIIOF XII~

INDEX OF AUTHORITIES

Cases
A.C. Sharma v. Delhi Administration AIR 1973 S.C. 913(India);........................................13
Ashok Kumar Todi v/s. Kishwar Jahan, AIR 2011 S.C. 1254(India)....................................10
Babita Prasad v. State of Bihar, 1993 Supp (3) S.C.C. 268(India)........................................15
Bachan Singh v. State Of Punjab, A.I.R. 1980 S.C. 898(India)............................................17
Budhan Choudhury v. State of Bihar, AIR 1955 S.C 191(India)..........................................15
Charan Lal Sahu vs. Union of India & Ors AIR 1990 S.C. 1480 (India)................................4
De Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing,
(1999) 1 A.C. 69, (India)....................................................................................................17
Gopal Krishna Patar vs. The State of Jharkhand and Ors W.P. (Cr.) No. 458 of 2017...........9
H.N. Rishbud & Anr. v. State of Delhi, AIR 1955 S.C. 196(India)......................................10
Hari Krishna Bargav v. Union of India, AIR 1966 S.C. 619(India)........................................9
Hukam Chand Shyam Lal v. Union of India, AIR 1976 S.C.789(India)...............................16
J.K.Industries Ltd. v. Chief Inspector of Factories & Boilers, (1996) 6 S.C.C 665(India). . .15
Justice K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1(India)................................19
K. Veeraswami vs Union Of India, 1991 S.C.C. (3) 655(India)..............................................6
Kartar Singh v. State of Punjab, 1994 (3) S.C.C. 569(India....................................................9
Kedar Singh v. Union of India.  (1957) S. C. R. 930 (India)...................................................1
Lachhman Das v. State of Punjab, AIR 1963 S.C. 222(India)..............................................15
M.K. Ranganathan and another v. Government of Madras and others AIR 1955 S.C.
604(India);..........................................................................................................................12
M.P. Sharma and others v. Satish Chandra, District Magistrate, Delhi & others AIR 1954
S.C. 300(India)...................................................................................................................10
Maneka Gandhi v. Union of India, 1978 S.C.R. (2) 621 (India.............................................16
Mohinder Singh Gill v. Chief Election Commr. (1978) 1 S.C.C. 405(India)..........................5
Naga People’s Movement of Human Rights v Union of India, (1998) 2 S.C.C. 109 (India).
............................................................................................................................................11
Naga People's Movement of Human Rights v. Union of India, (1998) 2 S.C.C. 109(India)...4
Navinchandra N. Majithia v. State of Meghalaya and Ors, AIR 2000 S.C. 3275(India)......10
O.K. Gosh v. Joseph E.X., A.I.R. 1963 S.C. 812 (India).......................................................18
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~INDEX OF AUTHORITIES~ ~PAGE IIIOF XII~

Om kumar v. Union of India, AIR 2000 S.C. 3689, 3702(India)..........................................17

Pragyasingh Chandrapalsingh Thakur and Ors. v. State of Maharashtra and Ors. 2014(1)
Bom CR(Cri)135................................................................................................................14
PUCL v. Union of India, AIR 1997 S.C. 568(India).............................................................14
R.Y. Prabhoo (Dr.) v. P.K. Kunte, (1995) 7 SCALE 1(India);................................................1
Ram Krishna Dalmia v. S.R. Tendolkar 1959 S.C.R. 279 (India)...........................................4
Ramkrishna Dalmia v. Tendolkar Justice S.R., AIR 1958 S.C. 538(India)...........................15
Sher Singh @ Partapa v. State of Haryana Criminal Appeal No. 1592 of 2011.....................7
State of M.P. v. Mubarak Ali, AIR 1959 S.C. 707(India);....................................................10
State of Nagaland v. Ratan Singh, etc., 1966(3) S.C.R. 830(India).......................................10
Subhash Ramkumar Bind @ Vakil and another v. State of Maharashtra, AIR 2003 S.C.
269(India)...........................................................................................................................12
Subramanian Swamy v. Union of India, (2016) 7 S.C.C 221(India).......................................5
Suraj Mall v. Biswanath, AIR 1953 S.C. 545 (India)............................................................15
Swadeshi Cotton Mills v. Union of India (1981) 1 S.C.C. 664(India)....................................5
Union of India v. H.S. Dhillon, 1972 (2) S.C.R. 33 (India).;...................................................9
Union of India v. Harbhajan Singh Dhillon, AIR 1972 S.C. 1061(India)...............................9
Union of India vs. J. N. Sinha AIR 1971 S.C. 40 (India)........................................................4

Statutes
Arms Act 1959, No.54 of Acts of Parliament 1959...............................................................11
Cantonment Board Act, 2006, No.41 of Acts of Parliament 2006........................................11
Central Excise Act, 1944, No.1 of Acts of Parliament 194...................................................11
Delhi Special Police Establishment Act, 1946, No. 25 Acts of Parliament 1946 (India)......13
Foreign Exchange Management Act, 1999. No.42 of Acts of Parliament 1999....................11
Income Tax Act 1961, No.43 of Acts of Parliament 1961....................................................11
K. Veeraswami vs Union Of India, 1991 S.C.C. (3) 655(India)..............................................6
National Investigation Agency Act, 2008, No.8 of Acts of Parliament 2008........................13
Police Act 1861, No.5 of Acts of Parliament 1861................................................................10
Prevention of Money-Laundering Act, 2002, No.15 of Acts of Parliament 2002.................11
Telegraph Act, 1885,No.13 of Acts of Parliament,1885.......................................................16
The Atomic Energy Act, 1962...............................................................................................14
The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful
Activities) Act, 2005..........................................................................................................14

-MEMORIAL ON BEHALF OF THE RESPONDENT-

~INDEX OF AUTHORITIES~ ~PAGE IIIOF XII~

Unlawful Activities Prevention Act, 1967, No. 37 of Acts of Parliament ,1967................4, 6

Other Authorities
) Anti-Terrorism Act 1997(Pakistan).......................................................................................3
154th Report on the Border Security Force (Amendment) Bill (2011).................................11
Anti-Terror Law 2016.(Israel...................................................................................................2
Anti-terrorism Act 2009(Bangladesh).....................................................................................2
Chinese Anti-terrorism Act 2016(China).................................................................................3
EU Council Common Position Resolution No. 2001/931/CFSP of 27th December
2001(European Union..........................................................................................................3
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010)................................................5
Manual of Parliamentary Procedure, Ministry of Parliamentary Affairs, 4th Report of the
Committee on Subordinate Legislation (LS).......................................................................4
Naga People's Movement of Human Rights v. Union of India, (1998) 2 S.C.C. 109(India);. 4
Prevention of Terrorism Act 2015.(Malaysia..........................................................................2
Re Kerala Education Bill 1957 AIR 1958 SC 956...................................................................4
U.S. Presidential Executive Order No. 13324.(USA)..............................................................3
UN Security Council Resolution No. 1267 & 1331.................................................................3

Rules
Ministry of Home Affairs, Government of India (Allocation of Business) Rules, 1961.......17
Qualifications for the members of the Review Committee Rules, 2004...............................17

Treatises
‘United Nations International Convention for the Suppression of the Financing of Terrorism
1999’..................................................................................................................................11
United Nations Security Council Resolution No.1373..........................................................11

Books
4, John Adler, General Principles of Constitutional and Administrative Law, 385 (4th ed.,
Palgrave Macmillan, Basingstoke, United Kingdom, 2002).............................................27

-MEMORIAL ON BEHALF OF THE RESPONDENT-

~STATEMENT OF JURISDICTION~ ~PAGE VI OF XII~

STATEMENT OF JURISDICTION

This memorandum is submitted before the Hon’ble Supreme Court of Vikas which has
clubbed PIL submitted by Spectre Donna Organisation (under Article 32) with petition filed
by Mr. Chiddu and Mr. Nesamani in High Court of Dhanjan.

ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950

REMEDIES FOR ENFORCEMENT OF RIGHTS CONFERRED BY THIS PART
“(1) The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.
ARTICLE 139A OF THE CONSTITUTION OF INDIA, 1950
TRANSFER OF CERTAIN CASES
“Where cases involving the same or substantially the same questions of law are pending
before the Supreme Court and one or more High Courts or before two or more High Courts
and the Supreme Court is satisfied on its own motion or on an application made by the
Attorney- General of India or by a party to any such case that such questions are substantial
questions of general importance, the Supreme Court may withdraw the case or cases
pending before the High Court or the High Courts and dispose of all the cases itself:
Provided that the Supreme Court may after determining the said questions of law return any
case so withdrawn together with a copy of its judgment on such questions to the High Court
from which the case has been withdrawn, and the High Court shall on receipt.”

THE RESPONDENT HUMBLY SUBMITS TO THE JURISDICTION OF THE COURT.

-MEMORIAL ON BEHALF OF THE RESPONDENT-

~SUMMARY OF FACTS~ ~PAGE VII OF XII~

SUMMARY OF FACTS

1. The Republic of Vikas is seventh largest country in the world. The constitution of Vikas
is supreme law of the land. In November 2008 a series of bloodshed terrorist incidents
took place in the country, leading to around 200 deaths. However, they brought into
clear focus the inability of Vikanian security apparatus to anticipate and appropriately
respond to major terrorist related intelligence and a need for enhancement in domestic
counter terrorism infrastructure.
2. In 2014 the anti-terror policies of government saw a steep reduction in terror activities.
However, in 2018, two attacks on the military jawans of Vikas by the militants resulted
in the deadly retaliation across the international borders, in form of surgical and air
strikes by Armed Forces.
3. The current scheme of law proved to be inefficient since only “organizations” could be
designated as terrorists. Similarly, several authorizations from the respective State
police were mandated by the Unlawful Activities (Prevention) Act, 1967 so as to attach
and seize the properties of such terrorists for investigation purposes which were
considered to be the main cause of delay and inefficiency of the law and considering
these issues Ministry of Home Affairs amended the Unlawful Activities (Prevention)
Act, 1967 (A) to empower the Central Government to designate individuals as
terrorists, similar to the procedure in force for terrorist organizations, if the person
commits or participates in acts of terrorism, cyber terrorism, prepares for terrorism,
promotes terrorism or is otherwise involved in terrorism, and (B) providing the National
Investigation Agency power to investigate and seize property with mere permission
from Director General of National Investigation Agency, vide the Unlawful Activities
(Prevention) Amendment Act, 2019.
4. The Minister of Home Affairs advocated the same saying “this Amendment is to
facilitate speedy investigation and prosecution of terror offences and designating an
individual as terrorist in line with the international practices. However,the meeting of
the NPC scheduled, where the key agenda was discussion on the newly amended
Unlawful Activities (Prevention) Amendment Act, 2019, inter alia, was called off by
the 7 Chief Ministers, branding it to be fruitless and useless as the Centre fixed policies
without consulting States.

-MEMORIAL ON BEHALF OF THE RESPONDENT-

~SUMMARY OF FACTS~ ~PAGE VIII OF XII~

5. Meanwhile in media reports there was news regarding sever intrusions in data centres
of Reserve Bank of Vikas, reports also suggested there could be the involvement of
renowned terrorist organization in conspiracy with an individual in the breach. Thereby
the Government of Vikas sensed that cyber terrorism as a tool could be utilized to
conduct unlawful attacks and threats of attacks against computers, networks, and
information stored therein to intimidate or coerce the government or its people for
propagating hidden political or unlawful social and religious agendas.It is also a noted
fact that Terrorists tend to use Internet to prepare the schemes, recruit potential
terrorists, raise funds and spread cyber terrorism.
6. Thus, to counter cyber terrorism, issued a notification under Section 69 of the
Information Technology Act, 2000 that empowers investigation agencies to intercept,
monitor and decrypt any information which is generated, transmitted, received or stored
in any computer source. Owing to the heightened attention garnered by issues on the
right to privacy and personal liberty, an NGO, named Specter Donna Organization,
filed a PIL challenging the impugned notification within 4 days of its publication in the
Official Gazette of Government of Vikas, before the Supreme Court of Vikas.
7. The Customs Department of Vikas received information about smuggling of
counterfeit currencies worth VNR 10 lakhs by passenger named Mr. Nesamani from El
Dorado, through the Mahindra Jhangir Airport, Dhanjan. Upon receipt of same, the
officials initiated action, by tapping his mobile phone and tracking it under surveillance.
The officials arrested the passenger and took him into custody for questioning. During
investigation Mr Nesamani admitted (a) possession of counterfeit currency worth 10
lakh, (b) that he was working for Mr.Chiddu who is member of Mr. Rocky Bhai’s
organized crime syndicate and most wanted criminal by Interpol and funds terror
activities from El Dorado and Imaginistan. (c)The currency notes were counterfeited in
Imaginistan and transported to El Dorado to facilitate easy access into Vikas by virtue
of holding UEA Passport, in order to destabilize the economic conditions and security
of Vikas; (d) That, the smuggled currency was to fund sleeper-cells active in Vikas to
perform terror activities as guided by heads of radical nature from Imaginistan. Based
on the above information from the Customs Department a FIR was registered.
8. The Central Government referred the case to the NIA for investigation vide notification
dated 10th July 2019. The NIA registered a case against him under Sections 489B,
489C of the Vikanian Penal Code, 1860 and Sections 16 and 18 of the Unlawful
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~SUMMARY OF FACTS~ ~PAGE IX OF XII~

9. Activities (Prevention) Act, 1967. The NIA officials produced Mr. Nesamani before the
Special Judge to try NIA cases for recording of confessions made.
10. NIA Cyber Cell sought permission from the competent authority to proceed in
furtherance of the information provided by Mr. Nesamani. Upon approval vide Order
by the Secretary to the Ministry of Home Affairs, Union Government, under Rules
prescribed, the NIA Cyber Cell began to intercept, monitor and decrypt relevant
information from the target computer source, through its high standard monitoring
device and gathered various information.
11. On obtaining the aforementioned incriminatory evidence, the NIA initiated action
against Mr. Chiddu and arrested him at his residence in Dhanjan. Further, the NIA
officials filed the chargesheet against Mr. Nesamani and Mr. Chiddu before the Special
NIA Court. The Special Court, was hearing the matter on a fastrack basis and the matter
is still pending.
12. The accused challenged the constitutionality of the Unlawful Activities (Prevention)
Amendment Act, 2019 and the impugned notification designating him as a ‘terrorist’
before the Hon’ble High Court of Dhanjan. The Division Bench heard the learned
advocates on behalf of the accused and the Learned Additional Solicitor General of
Vikas. On application by Learned Additional Solicitor General this petition is clubbed
with PIL filed Spectre Donna Organisation under Article 139A.

-MEMORIAL ON BEHALF OF THE RESPONDENT-

~ISSUES RAISED~ ~PAGE X OF XII~

ISSUES RAISED

[1] WHETHER THE AMENDMENTS TO THE UNLAWFUL ACTIVITIES

(PREVENTION) ACT, 1967, VIDE THE UNLAWFUL ACTIVITIES
(PREVENTION) AMENDMENT ACT, 2019 VIOLATES ARTICLE 14 AND 21 OF
THE CONSTITUTION OF VIKAS?

[2] WHETHER THE EXCESSIVE POWERS GRANTED TO NATIONAL

INVESTIGATION AGENCY, VIDE THE UNLAWFUL ACTIVITIES
(PREVENTION) AMENDMENT ACT, 2019, VIOLATES THE QUASI-FEDERAL
NATURE OF VIKAS ENSHRINED UNDER THE BASIC STRUCTURE OF THE
CONSTITUTION OF VIKAS?

[3] WHETHER THE SECTION 69 OF THE INFORMATION TECHNOLOGY ACT

2000, THE INFORMATION TECHNOLOGY (PROCEDURES AND SAFEGUARDS
FOR INTERCEPTION, MONITORING AND DECRYPTION OF INFORMATION)
RULES, 2009 AND THE IMPUGNED NOTIFICATION ISSUED BY THE
CENTRAL GOVERNMENT UNDER THE AFORESAID LAWS VIOLATES
ARTICLE 14, 21 AND 19 OF THE CONSTITUTION?

[4] REASONABLE RESTRICTIONS APPLICABLE TO RIGHT OF PRIVACY

MUST BE BALANCED AGAINST THE NEEDS OF GOVERNANCE OF THE
STATE?

-MEMORIAL ON BEHALF OF THE RESPONDENT-

~SUMMARY OF ARGUMENTS~ ~PAGE XI OF XII~

SUMMARY OF ARGUMENTS

ISSUE 1: It is submitted that the amendment to the UAPA, 1967 does not violates Articles
14 and 21 of the Constitution. The impugned legislation passes the Test of Intelligible
Differentia. Furthermore, the impugned legislation lacks arbitrariness. Again, the rule of
audi alteram partem is not absolute and is subject to modification. Also, right to reputation
is not an absolute right under Article 21.

ISSUE 2: It is submitted that the powers given to the NIA vide the 2019 Amendment does
not violate the quasi-federal structure of the Constitution. Section 25 of 1967 Act doesn’t
fall under any of the entries under State List II. Moreover, lawmakers wilfully excluded the
“consent/approval of state government” clause. The balance of powers between State &
Union to investigate is still maintained. Finally, in Defence & National Security related
issues, state government has no role.

ISSUE 3: It is submitted that the impugned legislation, rules and the notification are not
violative of Article 14, 19 and 21. There is a reasonable classification based on intelligible
differentia and that there is rational nexus with the object sought to be achieved. Moreover,
the legislations are well within the limitations laid down by Article 19. The procedure
established is just, fair and reasonable.

ISSUE 4: The reasonable restrictions available for other rights also need to be read with
Article 21. There are limitations already available to Article 21 to the Constitution.
Moreover, limitations ingrained in other articles must also be read along with Article 21.
This has been done by this hon’ble Court in other legislation.

-MEMORIAL ON BEHALF OF THE RESPONDENT-

~ARGUMENTS ADVANCED~ Page |1

ARGUMENTS ADVANCED

[1] WHETHER THE AMENDMENTS TO THE UNLAWFUL ACTIVITIES

(PREVENTION) ACT, 1967, VIDE THE UNLAWFUL ACTIVITIES
(PREVENTION) AMENDMENT ACT, 2019 VIOLATES ARTICLE 14 AND 21 OF
THE CONSTITUTION OF VIKAS?

[1.1] THAT THE AMENDMENT DOES NOT VIOLATE ARTICLE 14.

(A) THAT THE IMPUGNED LEGISLATION PASSES THE TEST OF INTELLIGIBLE
DIFFERENTIA
1. In his speech in parliament, Hon’ble Home Minister of Vikas Mr. Manju stated that
his government follows zero toleration against terrorism policy and also stated that
‘designating an individual as terrorist in line with the international practices’.1
The speeches made by the mover of the Bill or Minister may be referred to for the
purpose of finding out the object intended to be achieved by the Bill. 2 Further, in
order to ascertain the intelligible differentia of the impugned enactments, Statement
of Objects and Reasons, the legal significance and the intendment of the provisions
of these Acts must be objectively examined. 3 It is humbly submitted that, the
Statement of Objects and Reasons of this impugned act states that:4
“With a view to overcome the difficulties being faced by the NIAin the
investigation and prosecution of terrorism related cases due to certain
legal infirmities and also to align the domestic law with the
international obligations …the Government proposes to amend the said
Act”
2. Therefore this impugned amendment addresses the legal loopholes (as it then was)
and serves the Object of strengthening the Anti-Terror law.5 This is because:

1
Moot Proposition pg. 17, para 8.
2
R.Y. Prabhoo (Dr.) v. P.K. Kunte, (1995) 7 SCALE 1(India); P.V. Narsimha Rao v State,
AIR 1998 SC 2120(India)
3
Kedar Singh v. Union of India.  (1957) S. C. R. 930 (India).
4
Statement of Objects and Reasons of UAPA(amendment) Act 2019.
5
Moot Proposition pg. 16, para 3,4 and Infra note 5.
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ Page |2

(a) Before the enactment of this amendment, the state of Vikas needs to plead or
rather beg to the world powers to favour Vikas in United Nations Security
Council in order to designate those terrorist who has attacked the land of Vikas.
But, many a times, these veto power holding countries reply that ‘why do you
not label them on your own?’ Since, there was no provision under UAPA or
under any other law of Indian Parliament that they can declare an individual also
as a terrorist and hence it was the need of an hour to address this legal loophole
therefore this amendment has served the purpose
(b) Individuals floating new organizations: Initially, it was found that when
government was banning an organization but were not banning an individual of
these organizations,6 the result was that these individuals of a banned
organisations will start to float to another organization with another name and
this vicious cycle continues that is why the only solution to deal with such a
problem was that the law should also designate an individual as a terrorist and
not only an organisation.
(c) Loan Wolf: there are instances, as in the present matter with Mr. Nesamani,
where there may be an individual him/herself who may be acting and committing
terrorist act without necessarily being affiliated to any of the terror organization. 7
Therefore in order to tackle these lone wolves as well, State of Vikas warranted a
new law, which can also designate an individual also as a terrorist.
(d) International obligations and other countries: This country of Vikas is a a
world’s most consistent target of radical militants and bloodshed terrorist
attacks.8 And therefore, it is alarming for the government to perform it utmost
sovereign function i.e. ‘Security of State’. Designating one as terrorist is not an
unique feature of Vikas, this law is present in the law books of Bangladesh 9,

6
Moot Proposition pg. 17, para 6.
7
Moot Proposition pg. 18, para 10 and 12.
8
Moot Proposition pg. 16, para 3.
9
Section 18 of Anti-terrorism Act 2009(Bangladesh)
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ Page |3

Malaysia10, Israel11, USA12, China13, Pakistan14, European Union15 and United

Nation16.
(B) THAT THE IMPUGNED LEGISLATION LACKS ARBITRARINESS
3. The allegation of petitioners stating that there are various scopes left for
government to exercise arbitrariness is ill-founded. This is because the government
undertakes due care and precaution and follows every possible due process of law
with material support in hand, before designating one as a ‘terrorist’.17
4. The justification for the aforesaid submission can also be traced in the instant
matter. Here also, the designation of Chiddu and Nesamani were made as
‘terrorist’,18 only after when a series of serious incriminatory circumstances took
place. Because, NIA had actually caught Mr. Nesamani red-handed for smuggling
counterfeit currencies19 from Imaginistan to Vikas20to perform terror activities.21
Thereafter, the NIA officials further lodged an FIR22 under relevant provisions of
law followed by his presence before Trial Judge.23 Thus, it is only after passing a
due process of criminal law i.e. after retrieving sufficient incriminatory materials 24
and after tracing a nexus of Mr. Neswamani with a global terrorist Mr. Chiddu 25,
10
Section 3 of Prevention of Terrorism Act 2015.(Malaysia)
11
Anti-Terror Law 2016.(Israel)
12
Section 1(d) of U.S. Presidential Executive Order No. 13324.(USA)
13
Chinese Anti-terrorism Act 2016(China).
14
Section 2(g) r/w 2(o) Anti-Terrorism Act 1997(Pakistan)
15
Section 1(2) EU Council Common Position Resolution No. 2001/931/CFSP of 27 th
December 2001(European Union)
16
UN Security Council Resolution No. 1267 & 1331.
17
Notification No. 11034/10/2019-CT-I released by MHA, Government of India, dated 4th
September, 2019.
18
Moot Proposition pg. 20, para 16.
19
Moot Proposition pg. 18, para 12.
20
Moot Proposition pg. 19, para 12, sub-para C.
21
Moot Proposition pg. 19, para 12, sub-para D.
22
FIR No. RC/07/2019/DNG/MR dated 10th July 2019.
23
Moot Proposition pg. 19, para 13.
24
Moot Proposition pg. 19, para 14 and pg. 20, para 16.
25
Moot Proposition pg. 19, para 12, sub-para B.
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ Page |4

that they were designated as terrorist. Thus, the arbitrariness and vagueness related
imputations of petitioner do not survive at all.
5. The validity of law cannot be contested because of future apprehensions. 26 Merely
the central government will have the discretion to label one as “Terrorist” will not
fall short of validation. This is because, this Hon’ble court in AFSPA judgment 27,
held that  “It has to be borne in mind that a discretionary power is not necessarily
a discriminatory power and that abuse of power is not to be easily assumed where
discretion is vested in the government and not in a minor official”
6. A proper set of Rules for this amendment of 2019 is yet to be made by the Central
government and it requires at least 6 months of time period since the enactment of
legislation.28 However, Petitioner’s submission that there is no legal consequences
of labelling are attached except social consequences is a flawed assumption, as the
act itself prescribes some sanctions for these labelled persons.29
(C) THAT THE RULE OF AUDI ALTERAM PARTEM IS NOT ABSOLUTE AND IS
SUBJECT TO MODIFICATION

7. Principles of natural justice do not operate in areas where they are statutorily
excluded, whether expressly or by necessary implication. 30 For legislation by
Parliament, no principle of natural justice is attracted provided such legislation is
within the competence of the legislature.31
8. It is submitted that the fact that before notifying an individual in Schedule IV, no
provision for pre-decisional hearing is provided, cannot be considered as a
violation of audi alteram partem principle, which itself is not absolute because of

26
Re Kerala Education Bill 1957 AIR 1958 SC 956.
27
Naga People's Movement of Human Rights v. Union of India, (1998) 2 S.C.C. 109(India);
See also Ram Krishna Dalmia v. S.R. Tendolkar 1959 S.C.R. 279 (India); PUCL v. Union
of India, 6 (Supp.) S.C.R. 860, 880 (2004) (India).
28
Chapter 11, Manual of Parliamentary Procedure, Ministry of Parliamentary Affairs, 4th
Report of the Committee on Subordinate Legislation (LS), December 18, 1985.
29
Section 51A of Unlawful Activities Prevention Act, 1967, No. 37 of Acts of
Parliament ,1967.
30
Union of India vs. J. N. Sinha AIR 1971 S.C. 40 (India).
31
CharanLalSahu vs. Union of India & Ors AIR 1990 S.C. 1480 (India).
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ Page |5

the peculiar background of terrorism.32 Therefore, the absence of pre-decisional

hearing cannot be treated as a ground for declaring legislation null and void.33
9. In the matters of national security, anti-smuggling, public order, terrorism etc.,
failure to give notice or to grant a hearing before passing the order would not
amount to failure of natural justice, such requirement would stand excluded by
implication.34 Four-level post-decisional hearing remedy provided under Section 36
and since the aggrieved persons could approach the Review Committee u/s 37 of
the Act and even the constitutional remedy under Articles 226 and 227 is also
available.35 Therefore, having regard to the nature of the legislation and the
magnitude and prevalence of the evil of terrorism36, this legislation is not devoid of
natural justice principle.
10. In PUCL case, the validity of Sections 18 and 19 of POTA which are presently
akin to section 35 and 36 of UAPA, was upheld by this apex court. Similarly, the
U.S. Supreme Court while dealing with similar facets of laws in Holder v.
Humanitarian Law Project37 upheld the constitutional validity of FTO designation
by Executive Order 13324.

[1.2] THE AMENDMENT DOES NOT VIOLATES ARTICLE 21

(A) THAT RIGHT TO REPUTATION IS NOT AN ABSOLUTE RIGHT
11. Reputation is not an absolute right. It is a social construct based on shared
perceptions. Since, Right to reputation is also embodied in Article 19(1) in addition
to Article 21 therefore it is also built in as a restriction placed in Article 19(2) 38 and
the restrictions already installed under article 21 i.e ‘procedure established by law’,
which is being complied with by the impugned legislation.
12. If a person’s state of affairs or commission or omission contradict the provisons of
law and especially some serious laws like terrorism, then out of the galaxies of
32
PUCL v. Union of India, (2004) 9 S.C.C. 580(India).
33
Mohinder Singh Gill v. Chief Election Commr. (1978) 1 S.C.C. 405(India); Swadeshi
Cotton Mills v. Union of India (1981) 1 S.C.C. 664(India).
34
Menaka Gandhi v. Union of India AIR 1978 S.C. 597(India)
35
PUCL v. Union of India, (2004) 9 S.C.C. 580(India).
36
Moot Proposition pg. 16, para 3.
37
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010).
38
Subramanian Swamy v. Union of India, (2016) 7 S.C.C 221(India).
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ Page |6

rights an individual possess, s/he gives up the protection of article 19 and 21 and
then the whips of law can not only take away their reputation but even also his/her
life.
(B) THAT THE PRESUMPTION OF INNOCENT IS NOT A UNIVERSAL PRINCIPLE TO
BE NECESSARY FOLLOWED

13. An individual's proscription as terrorist will happen only after the approval of the
Union Home Ministry.39 Individual designated as a terrorist can appeal to the Union
Home Secretary who will have to dispose of the appeal within 45 days. In addition,
a review committee headed by a sitting or retired judge with at least two retired
secretaries of the government of India having at least one year experience in legal
affairs administration of criminal justice as members 40 can be approached against
the decision of declaration of an individual as a terrorist.41The mere presence of
non-judicial members by itself cannot be treated as a ground to invalidate.42
14. In Veeraswamy Case43the constitution bench held that statue placing burden on the
suspect cannot be regarded as unjust and contrary to article 21 of the constitution.
This principle is applied only in the absence of statutory provision to the contrary,
however, in the instant matter it is prescribed in the legislation. This concept of
reverse burden has already been inserted in various other legislations.44
15. The Central Government has discharged the initial burden to prove the ingredients
of section 35 of UAPA by preponderance of probabilities and once the
concomitants are shown by central agency in the notification as is done in the
instant matter,45 the initial presumption of innocence is replaced by an assumption
39
Rule 2 of Ministry of Home Affairs, Government of India (Allocation of Business) Rules,
1961.
40
Section 3 of Qualifications for the members of the Review Committee Rules, 2004.
41
Section 37(1) and 37(2) of Unlawful Activities Prevention Act, 1967, No. 37 of Acts of
Parliament ,1967.
42
Kartar Singh v. Union of India (1994) 3 S.C.C. 569(India).; PUCL v. Union of India,
(2004) 9 S.C.C. 580(India)..
43
K. Veeraswamivs Union Of India, 1991 S.C.C. (3) 655(India).
44
Section 30 of POCSO Act; Section 138A of Customs Act; Section 278E of Income Tax;
Sec 35 of NDPS Act; Section 113A(for S.306 IPC) and Section 113B(for 304B IPC) of
Indian Evidence Act; Negotiable of Instrument Act; Prevention of Corruption Act.
45
Id. 18.
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ Page |7

of suspicion and thereupon transferring the burden on suspect to produce the

evidence dislodging the suspicion over him.46

[2] WHETHER THE EXCESSIVE POWERS GRANTED TO NATIONAL

INVESTIGATION AGENCY, VIDE THE UNLAWFUL ACTIVITIES (PREVENTION)
AMENDMENT ACT, 2019, VIOLATES THE QUASI-FEDERAL NATURE OF VIKAS
ENSHRINED UNDER THE BASIC STRUCTURE OF THE CONSTITUTION OF

VIKAS?
1. An another issue petitioner has raised at the threshold under Unlawful Activities
(Prevention) Amendment Act, 201947 is about the violation of quasi-federal nature
of Constitution of Vikas by amending section 25 of the Unlawful Activities
(Prevention) Act, 196748, via section 3 of 2019 Act, is wholly incorrect and it does
not, in any manner, undermine the federal structure that is guaranteed under the
Constitution.
2. The contention of the petitioner essentially states that the Parliament of Vikas is
encroaching upon the legislative fields of state which is List II of Schedule VII and
thus violates quasi-federal feature of the constitution of Vikas. It is submitted that
such contention of petitioner is untenable and does not hold good in law. This is
because [A]THAT SECTION 25 OF 1967 ACT DOESN’T FALL UNDER ANY OF THE

ENTRIES UNDER STATE LIST II; [B]THAT SINCE THE MATTER DOES NOT FALL UNDER
STATE LIST, IT MAY BE TRACED EITHER IN “DEFENCE OF INDIA” OF LIST I OR IN

“CRIMINAL PROCEDURE” OF LIST III INTER ALIA; [C]THAT “CONSENT/APPROVAL

OF STATE GOVERNMENT” CLAUSE WAS WILFULLY EXCLUDED BY LAWMAKERS IN

NIA ACT; [D] THAT IN MATTERS OF DEFENCE, SECURITY, SOVEREIGNTY AND

INTEGRITY OF THE NATION, PERMISSION OF STATE GOVERNMENT IS NOT

WARRANTED.

[2.1] LEGISLATIVE COMPETENCE

46
Sher Singh @ Partapa v. State of Haryana Criminal Appeal No. 1592 of 2011, Decided
On, 09 January 2015.
47
Hereinafter referred as “2019 Act”.
48
Hereinafter referred as “1967 Act”.
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ Page |8

(A) THAT SECTION 25 OF 1967 ACT DOESN’T FALL UNDER ANY OF THE ENTRIES
UNDER STATE LIST II
3. The contention of the petitioner that “investigation by NIA” falls under the
legislative fields of State enlisted under List II of Schedule VII, is a perfect
description of an erroneous interpretation. Slew of cases have, time and again held
that, even under the principle of Pith & Substance, the investigation conduct by
NIA officials does not neither relate to “Public Order” falling under Entry 1 of the
State List or to “Police” under Entry 2 of the State List and thus NIA functioning
does not fall under any other Entry in the State List. 49 The argument that NIA is an
establishment of Federal police force is also baseless.50
4. It is to be considered that the legislative power of the State Legislature, 51 with
respect to "public order" under Entry 1 in the State List has to be confined to
disorders of lesser gravity than those affecting “security of State”. 52 Whereas in
Kartar Singh case, this honourable court has held that:-
“Activities of a more serious nature which threaten the security and
integrity of the country as a whole (terrorism, infiltration, for
instances) would not be within the legislative field assigned to the
States under Entry 1 of the State List but would fall within the ambit
of Entry 1 of the Union List relating to defence of India and in any
event under the residuary power conferred on Parliament under
Article 248 read with Entry 97 of the Union List.”
5. It is an established principle of law appreciated by this Hon’ble court that, while
examining the legislative competence of parliament to make a law what is required
to be seen is just one question i.e. whether or not the subject matter falls in the
State List which Parliament cannot enter. If the law does not fall in the State List,
Parliament would have legislative competence to pass the law by virtue of List 1 or
by the residuary powers under Article 248 read with Entry 97 of the Union List and

49
PragyasinghChandrapalsingh Thakur and Ors. v. State of Maharashtra and Ors 2014(1)
BomCR (Cri)135.
50
Id.
51
Article 245(1) of Constitution of India.
52
Ram ManoharLohia v. State of Bihar 1960 S.C.R. (2) 821 (India).
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ Page |9

it would not be necessary to go into the question whether it falls under any entry in
the Union List or the Concurrent List.53
6. The similar predecessors of UAPA, i.e. TADA & POTA were during their
respective judicial reviews held as an legislations which does not fall any of the
entries of List II, and therefore, falls within the legislative competence of
Parliament under the head of “Defence of India” Entry within List 1 of Schedule
VII.54 Moreover, The NIA Act when was challenged in Bombay High court, were
found established within various heads of List I and List III at a time, but since it
was a procedural law for investigation and prosecution of already created
scheduled offences,55 and thus founded within “Criminal Procedure” Entry under
List III of Schedule VII.56 And, it is also well settled that there is no prohibition
against the Legislature enacting a single statute in exercise of powers conferred by
several entries in the list which is within its competence.57

[2.2] SEIZURE OF PROPERTY VIS A VIS TERRORISM INVESTIGATION

7. It is submitted that the subject-matter of the newly amended section 25 of 1967 Act
is “Seizure of Property”. The NIA under UAPA is meant for investigation and it is
not disputed to say that “Search and seizure of property” is an essential facet of
investigation.58 An investigative agency cannot function independently until all the
pre-requisite powers of investigation are at free hand of an investigative officer. 59
53
Union of India v. H.S. Dhillon, 1972 (2) S.C.R. 33 (India).; S.P. Mittal v. Union of India,
1983 (1) S.C.R.729(India); Kartar Singh v. State of Punjab, 1994 (3) S.C.C. 569(India).
54
Kartar Singh v. State of Punjab, 1994 (3) S.C.C. 569(India).
55
Gopal Krishna Patar vs. The State of Jharkhand and Ors W.P. (Cr.) No. 458 of 2017,
decided on: 25.08.2018.
56
PragyasinghChandrapalsingh Thakur and Ors. v. State of Maharashtra and Ors 2014(1)
BomCR (Cri)135.
57
Hari Krishna Bargav v. Union of India, AIR 1966 S.C. 619(India); Union of India v.
Harbhajan Singh Dhillon, AIR 1972 S.C. 1061(India).
58
Section 2(h) of The Code Of Criminal Procedure, 1973.
59
Ashok Kumar Todi v/s. KishwarJahan, AIR 2011 S.C. 1254(India); H.N. Rishbud&Anr.
v. State of Delhi, AIR 1955 S.C. 196(India); State of M.P. v. Mubarak Ali, AIR 1959 S.C.
707(India);Navinchandra N. Majithia v. State of Meghalaya and Ors, AIR 2000 S.C.
3275(India).
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ P a g e | 10

The powers of search and seizure are conferred on a police officer,60 and61 NIA’s
officer have all the powers, duties, privileges and liabilities which police officers
have in connection with the investigation of offences committed therein. 62 Also,
since Section 3 of NIA Act is a non-obstante clause, it excludes any provision in
the Police Act, 1861, thus making way for a special agency for the investigation.
Wherever there are possibilities of an overlap with the Cr.P.C or the Police Act 63,
the Act lays down the provisions which either overrule the overlapping/conflicting
provisions if any, or adopts the provisions of the Code to that limited extent alone.64
8. A search and seizure is, therefore, only a temporary interference with the right to
hold the premises searched and the articles seized and thus cannot per se be
considered to be unconstitutional.65 Funding and financing play a vital role in
fostering and promoting terrorism and it is only with such funds terrorists are able
to recruit persons for their activities and make payments to them and their family to
obtain arms and ammunition for furthering terrorist activities and to sustain the
campaign of terrorism.66Therefore, seizure, forfeiture and attachment of
properties are essential in order to contain terrorism and are not unrelated to the
same.67
9. ‘Search and seizure’ is not a police function restricted to state police officials under
Entry 2 of List II of Schedule VII, rather it is an investigation power given to other
non-police agencies also like ITBP, SSB, AFSPA68 which does not require any

60
Section 47 of The Code Of Criminal Procedure, 1973.
61
State of Nagaland v. Ratan Singh, etc., 1966(3) S.C.R. 830(India).
62
Section 3(2) and 3(3) of National Investigation Agency Act, 2008, No.8 of Acts of
Parliament 2008.
63
Police Act 1861, No.5 of Acts of Parliament 1861.
64
PragyasinghChandrapalsingh Thakur and Ors. v. State of Maharashtra and Ors 2014(1)
BomCR (Cri)135.
65
M.P. Sharma and others v. Satish Chandra, District Magistrate, Delhi & others AIR 1954
S.C. 300(India)
66
PUCL v. Union of India AIR 1997 S.C. 568(India).
67
Article 8 of ‘United Nations International Convention for the Suppression of the
Financing of Terrorism 1999’; United Nations Security Council Resolution No.1373 dated
28.9.2001.
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ P a g e | 11

state’s approval.69 Legislations like, Cantonment Board Act70, Income Tax Act71,
FEMA72, PMLA73, Customs Act74, Arms Act75 also grants similar powers to
national agencies. Other countries like US, UK also does not seek any state’s
approval before search and seizure in crime related to terrorism. It is therefore,
submitted that since the matter does not fall under state list, it may be traced either
in “Defence of India” of List I or in “Criminal Procedure” of List III inter alia.

(B) THAT “CONSENT/APPROVAL OF STATE GOVERNMENT” CLAUSE WAS

WILFULLY EXCLUDED BY LAWMAKERS

[2.3] PARLIAMENTARY DEBATES/DISCUSSIONS ON STATE’S APPROVAL CLAUSE

10. It is submitted that, Parliamentary Discussions and statement of objects of any Bill,
can be referred by courts for ascertaining the conditions prevailing at the time
which actuated the sponsor of the Bill to introduce the same and the extent and
urgency of the evil which he sought to remedy.76As per the previous law, in order
to attach and seize the properties of terrorists scattered across multiple states,
securing permissions from multiple DGPs takes too much time and therefore were
considered to be the main cause of delay and inefficiency of the law which enable
the accused to transfer the properties.77 To facilitate speedy investigation and
68
Naga People’s Movement of Human Rights v Union of India, (1998) 2 S.C.C. 109 (India).
69
Para 1.1.1, 154th Report on the Border Security Force (Amendment) Bill (2011), Nov
2011, Parliamentary Standing Committee on Home Affairs, RajyaSabha, Parliament of
India.
70
Section 4 of Cantonment Board Act, 2006, No.41 of Acts of Parliament 2006.
71
Article 131 of Income Tax Act 1961, No.43 of Acts of Parliament 1961.
72
Section 37 of Foreign Exchange Management Act, 1999.No.42 of Acts of Parliament
1999.
73
Section 17 ofPrevention of Money-Laundering Act, 2002, No.15 of Acts of Parliament
2002
74
Section 22 of Central Excise Act, 1944, No.1 of Acts of Parliament 1944
75
Section 24 of Arms Act 1959, No.54 of Acts of Parliament 1959.
76
M.K. Ranganathan and another v. Government of Madras and others AIR 1955 S.C.
604(India);SubhashRamkumar Bind @ Vakil and another v. State of Maharashtra, AIR
2003 S.C. 269(India).
77
Moot Proposition pg. 17 para 6.
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ P a g e | 12

prosecution of terror offences78. An immediate seizure of properties can

immediately stops an individual from attracting other individuals into terrorism by
providing ideological and financial support.79
11. Furthermore, nowadays, terror-related funds are lying in shares or gold schemes on
DMAT or digital forms, where they can be transferred out in seconds, therefore
the DG of NIA is empowered to approve confiscation of terrorist’s property
immediately. Properties like Satellite Phone, Router, and computer hard drives
which contain potentially incriminatory material/information/search history can be
manipulated or deleted by perpetrators, if not seized immediately at first sight. 80
This can be witnessed in the instant factual matrix where incriminatory E-mail
conversations, audio-video files in computer, Stalkbook and TapApp Bomb
planting devices and equipment were retrieved/seized by NIA from Mr. Chiddu’s
residence.81
12. It is to borne in mind that, while introducing NIA Bill in year 2008 the government
also came up with UAPA amendment bill of 2008 and the debates for both the bill
was taken place on the same day and the then Home Minister P. Chidambaram and
the Member of Parliament who introduced the bill Mr. A. Krishnaswamy, has
willfully drafted Section 6(5) of NIA Bill which provides for suomotu takeover of
investigation of the offences enumerated in the Schedule without inviting any
hurdles from state’s approval unlike that of other82 investigation agency.83

(C) THAT BALANCE OF POWERS BETWEEN STATE & UNION TO INVESTIGATE IS

STILL MAINTAINED

13. It is pertinent to note down that, various provisions of NIA and UAPA Acts
already includes comity clauses which depicts a balanced powers entrusted
between state and Centre governments. Section 43B(2) of UAPA 1967 Act, which
78
Moot Proposition pg. 17 para 8.
79
Ibid.
80
Moot Proposition pg. 20 para 15.
81
Moot Proposition pg. 19 para 14.
82
Section 6 of Delhi Special Police Establishment Act, 1946, No. 25 Acts of Parliament
1946 (India).
83
Combined discussion on the motion for consideration of NIA Bill, 2008 and the UAP
Amendment Bill, 2008.
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ P a g e | 13

mandates I.O. to forward the information related to arrest or seizure of property to

the SHO of the nearest police station, to show that ultimately jurisdiction will be
returned to the state police. Bombay HC has held that there is a balance between
the right of the State and duties of the Central Government to investigate the
scheduled offences and the scheme of NIA agency does nowhere, in any manner, is
an unconstitutional legislation.84
14. Rather, not displacing the State Government altogether, but enabling the Central
Government to associate with the State Government or transfer the case to the State
Government for investigation and trial of the scheduled offences as well, so also,
otherwise keeping the State Government's power to investigate and prosecute any
scheduled offence intact85, the Parliament has not, in any manner, usurped the
powers of the State or displaced it altogether.86
(D) THAT IN DEFENCE & NATIONAL SECURITY RELATED ISSUES, STATE
GOVERNMENT HAS NO ROLE

15. It is submitted that, the Constitution of Vikas is quasi-federal nature, within which
Central government is duty-bound to protect internal security. 87 And, thus it is
undoubtedly submitted that the State Government is mandated to extend all
assistance and co-operation to the National Investigation Agency for investigation
of the Scheduled Offences, which pertains to the very existence of a country such
as Atomic Energy88, Weapons of Mass Destruction89 Suppression of Terrorism
etc.90 The NIA Act and the second half part of UAPA Act were enacted for a

84
PragyasinghChandrapalsingh Thakur and Ors. v. State of Maharashtra and Ors 2014(1)
BomCR (Cri)135.
85
Section 6(7) of the National Investigation Agency Act, 2008, No.8 of Acts of Parliament
2008.
86
A.C. Sharma v. Delhi Administration AIR 1973 S.C.
913(India);PragyasinghChandrapalsingh Thakur and Ors. v. State of Maharashtra and Ors.
2014(1) BomCR (Cri)135.
87
Article 355 of Constitution of India.
88
The Atomic Energy Act, 1962.
89
The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful
Activities) Act, 2005.
90
Section 9 of NIA Act 2008, No.8 of Acts of Parliament 2008.
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ P a g e | 14

specific purpose, a purpose which the lawmakers and the Government owe to its
people and that is of National Security.91
16. It is further submitted that, a country is competent to legislate in the arena of
“Defence, Communication and Foreign Affairs” is a widely recognised grundnorm
of any democratic country. The legislative competence of a State to enact laws for
its security cannot denude Parliament of its competence under List I to enact laws to
safeguard national security and sovereignty of India by preventing and punishing
acts of terrorism92. Thus, since the body was established in a concurrent jurisdiction
framework, there is no question of violation of federal spirit. In the constitutional
scheme of things, it is very clear that the sovereign function of maintenance of
national security is squarely vested with the Union.93

[3] WHETHER THE SECTION 69 OF THE INFORMATION TECHNOLOGY ACT

2000, THE INFORMATION TECHNOLOGY (PROCEDURES AND SAFEGUARDS
FOR INTERCEPTION, MONITORING AND DECRYPTION OF INFORMATION)
RULES, 2009 AND THE IMPUGNED NOTIFICATION ISSUED BY THE
CENTRAL GOVERNMENT UNDER THE AFORESAID LAWS VIOLATES
ARTICLE 14, 21 AND 19 OF THE CONSTITUTION?

[3.1] THE AFOREMENTIONED ACT, RULES AND NOTIFICATION DO NOT VIOLATE

ARTICLE 14.

1. It is humbly submitted that the reasonableness of a provision depends upon the

circumstances obtaining at a particular time and the urgency of the evil sought to be
controlled. The possibility of the power being abused is no ground for declaring a
provision violative of Article 14.94

91
PragyasinghChandrapalsingh Thakur and Ors. v. State of Maharashtra and Ors 2014(1)
BomCR (Cri)135.
92
PUCL v. Union of India, AIR 1997 S.C. 568(India).
93
PragyasinghChandrapalsingh Thakur and Ors. v. State of Maharashtra and Ors. 2014(1)
BomCR(Cri)135.
94
J.K.Industries Ltd. v. Chief Inspector of Factories & Boilers, (1996) 6 S.C.C 665(India).
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ P a g e | 15

2. While Article 14 of the Constitution forbids class legislation; it does not forbid
reasonable classification for the purpose of legislation. In order, however to pass
test of permissible classification two conditions must be fulfilled, namely that the
classification must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the Group that
the classification must have a rational relation to the object sought to be achieved.95
3. Moreover, Article 14 does not forbid reasonable classification and for that purpose
even one person or group of persons can be regarded as a class. 96Mere
Differentiation or inequality or inequality of treatment or inequality of burden 97
does not per se amount to discrimination within the inhibition of the equal
protection clause. To attract the operation of the clause it is necessary to show that
the selection or differentiation is unreasonable or arbitrary; that it does not rest on
any rational basis having regard to the object, which the legislature has in view.98
4. Reasonable classification according to some principles to recognise intelligible
inequities or to avoid or correct inequality is permissible.99
5. In the present case, the impugned provision creates a classification between the
offences that need to be investigated in a particular way. Furthermore, the reason
for which such a classification created by the enactment is directly connected to the
object of the legislation.
6. Also, the benefit of presence of such a provision is clearly visible in the light of the
facts of the case at hand. The Republic of Vikas is suffering from terrorism issues
and thus needs to enhance its counter terrorism efforts.100
7. Furthermore, the information received by NIA was crucial in getting hold of
persons who had an ill intention towards the nation. 101 Thus, the impugned
provision is not violative of Article 14.

95
Budhan Choudhury v. State of Bihar, AIR 1955 S.C 191(India).
96
Lachhman Das v. State of Punjab, AIR 1963 S.C. 222(India).
97
Ramkrishna Dalmia v. Tendolkar Justice S.R., AIR 1958 S.C. 538(India).
98
Suraj Mall v. Biswanath, AIR 1953 S.C. 545 (India).
99
Babita Prasad v. State of Bihar, 1993 Supp (3) S.C.C. 268(India).
100
Moot Proposition, para 4.
101
Moot Proposition, para 14.
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ P a g e | 16

[3.2] THE AFOREMENTIONED ACT, RULES AND NOTIFICATION DO NOT VIOLATE

ARTICLE 21.
8. Article 21 guarantees right to life and personal liberty to an individual. This life
and personal liberty so guaranteed can be taken away only by a ‘procedure
established by law.’
9. Right to privacy has been recognised as an inherent part of Article 21. 102 But, this
right is again subject to limitations. The interpretation of Article 21 after the
judgment of Maneka Gandhi v. Union of India103the right is subject to the
limitations available in Article 19.
10. The impugned provision brings down these grounds provided under the Article 19
to limit the rights to privacy and the curtailment of the right is only to the extent
required for the interest of the state.
11. It is further submitted that activities like telephone tapping and collection of data
under the Telegraph Act, 1885104 has been held to be constitutionally valid105 on the
grounds mentioned in Article 19.
12. It has also been laid down106 tha.t such an infringement is allowed on the basis of a
valid law which established a just, fair and reasonable procedure and the
permission of such acquisition of data if given by the Home Secretary to the Union
Government is treated as just procedure.
13. In the present case, the Rules of the year 2009 lay down the procedure relating to
the activities sanctioned under Section 69 of the IT Act, 2000. The Rules have
adequate safeguards to check the excessive interference with the rights of the
individuals and thus the impugned provision is not contrary to Article 21.

[3.3] THE AFOREMENTIONED ACT, RULES AND NOTIFICATION DO NOT VIOLATE

ARTICLE 19.
1. It is submitted that Fundamental freedom under Article 19 is not absolute 107 and
similarly, Freedom of Speech and Expression is also subjected to some restrictions
102
Justice K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1(India).
103
Maneka Gandhi v. Union of India, 1978 S.C.R. (2) 621 (India).
104
Telegraph Act, 1885,No.13 of Acts of Parliament,1885. §5(2).
105
Hukam Chand ShyamLal v. Union of India, AIR 1976 S.C.789(India).
106
Id.32
107
Bachan Singh v. State Of Punjab, A.I.R. 1980 S.C. 898(India).
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ P a g e | 17

listed in Article -19(2). Section 69 of impugned Act comes within such restrictions
and henceforth does not violate Article 19.
2. Administrative action in India allegedly affecting fundamental freedoms has
always been tested on the anvil of proportionality. 108 Proportionality broadly
requires that government action must be no more intrusive than is necessary to
meet an important public purpose.109 A decision is proportionate if (a) the executive
objective is sufficiently important to justify limiting a fundamental right, (b) the
measures designed to meet the executive objective are rationally connected to it
and (c) the means used to impair the rights are no more than necessary to
accomplish the objective.110
3. In the present case purpose of section 69 is to intercept, monitor and decrypt data
and this power is conferred keeping in mind the growing cyber terrorism. Also, the
monitoring, decryption and interception would only be done in the interest of the
sovereignty or integrity of India, the security of the State, friendly relations with
foreign States or public order or for preventing incitement to the commission of
any cognizable offence. The objective is to maintain security and order of the
country of the public at large. The measures taken have the sole objective and the
only way to keep check on cyber terrorism. Hence section 69 does not violate
freedom of speech and expression.
4. The constitution envisages such restrictions on free speech that are in the interests
of public order,111 which are not excessive and arbitrary112.
5. It is settled that free speech is subordinate to the social interests and necessities of
preserving law and order.116 It is argued that section 69 of impugned Act can do
surveillance only if it falls in above mentioned conditions and not otherwise.
6. The conditions in which surveillance will be done are the ones which are explicitly
mentioned as restrictions under 19(2). Therefore, there does not stand any dispute
as to violation of Article 19.
108
Om kumar v. Union of India, AIR 2000 S.C. 3689, 3702(India).
109
4, John Adler, General Principles of Constitutional and Administrative Law, 385 (4th ed.,
Palgrave Macmillan, Basingstoke, United Kingdom, 2002).
110
De Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Land and
Housing, (1999) 1 A.C. 69, (India).
111
INDIA CONST. art.19(2).
112
O.K. Gosh v. Joseph E.X., A.I.R. 1963 S.C. 812 (India).
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ P a g e | 18

[4] THE REASONABLE RESTRICTIONS AVAILABLE FOR OTHER RIGHTS

ALSO NEED TO BE READ WITH ARTICLE 21?

[4.1] THERE ARE EXISTING LIMITATIONS TO RIGHT TO PRIVACY.

1. This Hon’ble court has recognised right to privacy as an integral part of Article
21.113 The Article is the supreme embodiment of right to life and personal liberty of
an individual. But, at the same time there might be restrictions on the right
depending upon the circumstances present around.
2. The present case brings out the presence of all the factors needed for limiting such
a right available to the citizens. The court while laying down the right granted some
limitations under which this right can be curtailed. Firstly, there must be a valid law
to do so. Secondly, there must be a need to do so, and the need must be defined in
terms of a legitimate state aim. Thirdly, there must be a proportional relation
between the object and the means adopted to achieve the object.114
3. It is submitted before the court that all the three requirements are met in the present
matter and the limitation of right of privacy is valid. Furthermore, these limitations
are not themselves sufficient. More limitations that have been explicitly provided in
the Constitution must be read along with article 21.

[4.2] LIMITATIONS HAVE BEEN READ IN BY THE COURT IN SIMILAR STATUTES.

1. In similar legislations, the limitations attached to Article 19 have been read in to
further the interest of State in a world of growing networking and internet access.
Similar provisions have been restricted for purposes of the security of state and
other such restrictions available in Article 19.
2. The courts have upheld the validity of such provisions and said that these
provisions are not overbroad. Further, the presence of rules to guide the work of the
government in these circumstances have justified the use of such provisions.
3. It is also submitted that Section 69 of the Information Technology Act, 2000
constitutes a valid reasonable restriction upon right to privacy in the light of the
facts of the case.
113
Supra, Note 102.
114
Justice K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1(India).
-MEMORIAL ON BEHALF OF THE RESPONDENT-
~ARGUMENTS ADVANCED~ P a g e | 19

-MEMORIAL ON BEHALF OF THE RESPONDENT-

~PRAYER~ ~PAGE XII OF XII~

PRAYER

WHEREFORE, IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED,

REASONS GIVEN AND AUTHORITIES CITED, THIS HON’BLE COURT MAY BE
PLEASED TO:

I. Hold that the amendments to the Unlawful Activities (Prevention) Act, 1967, vide the
Unlawful Activities (Prevention) Amendment Act, 2019 does not violates Article 14,
Article19 article 21 of the Constitution of Vikas

II. Hold that the excessive powers granted to National Investigation Agency, vide the
Unlawful Activities (Prevention) Amendment Act, 2019, does not violates the quasi-
Federal nature of Vikas enshrined under the basic structure of the Constitution of
Vikas.

III. Hold that the Section 69 of the Information Technology Act 2000, the Information
Technology (Procedure and Safeguards for Interception, Monitoring and Decryption
of Information) Rules, 2009 and the impugned notification issued by the Central
Government under the aforesaid law does not violates Article 14, Article19 and
Article 21 of the Constitution of Vikas.

IV. Hold that the limitations under Right to Privacy are required to have a broadened
interpretation.

AND ANY OTHER RELIEF THAT THIS HON’BLE COURT MAY BE PLEASED TO
GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE, ALL
OF WHICH IS RESPECTFULLY SUBMITTED.

Sd/-
COUNSELS FOR THE RESPONDENT

-MEMORIAL ON BEHALF OF THE RESPONDENT-