MEMORIAL ON BEHALF OF THE PETITIONERS

TC- H 32

2ND HPNLU NATIONAL MOOT COURT COMPETITION, 2021

BEFORE,

THE HON’BLE SUPREME COURT OF AZEROTH

WRIT PETITION NO. 234 OF 2021

JON SNOW AND ORS ………………………….……………………………PETITIONER

REPUBLIC OF AZEROTH AND ORS ……………………………………RESPONDENT

UPON SUBMISSION TO THE HON’BLE SUPREME COURT OF AZEROTH

MEMORIAL FILED ON BEHALF OF THE PETITIONERS

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ..................................................................................................IV

INDEX OF AUTHORITIES..................................................................................................... V

STATEMENT OF JURISDICTION..................................................................................... VIII

STATEMENT OF FACTS ......................................................................................................IX

ISSUES RAISED .....................................................................................................................XI

SUMMARY OF ARGUMENTS ........................................................................................... XII

ARGUMENTS ADVANCED ................................................................................................... 1

1. THAT THE WRIT PETITION FILED BY THE PLINTIFF IS MAINTAINABLE. .... 1

1.1 THAT THE PETITIONER HAS THE REQUISITE LOCUS STANDI TO

APPROACH THE COURT AS IT IS A MATTER OF PUBLIC INTERST. ................... 1

1.2 THAT THERE HAS BEEN VIOLATION OF FUNDAMENTAL RIGHTS. ............ 2

1.3 THAT THERE IS NO EFFECTIVE ALTERNATIVE REMEDY THAT COULD

HAVE BEEN AVAILED. .................................................................................................. 3

2. THAT THERE HAS BEEN AN UNAUTHORISED SURVEILLANCE........................ 4

2.1 SURVEILLANCE BY THE STATE IS VIOLATION OF ARTICLE 21 OF THE

CONSTITUTION OF AZEROTH. .................................................................................... 4

2.2 VIOLATION OF THE FUNDAMENTAL RIGHT TO FREE SPEECH AND

EXPRESSION UNDER ARTICLE 19(1)(A). ....................................................................... 6

2.3 THE LEGAL REGIME FOR SURVEILLANCE UNDER SECTION 5(2) OF THE
TELEGRAPH ACT HAS BEEN COMPLETELY BYPASSED....................................... 7

3. THAT THE RESPONDENT BE DIRECTED TO FURNISH AN AFFIDAVIT

STATING TH USE/NON- USE OF THE KIMETSU SOFTWARE. ................................... 8

3.1 WITHHOLDING OF INFORMATION IN THE CONTEXT OF JUDICIAL

PROCEEDINGS IS DESTRUCTIVE TO THE GUARANTEE IN ARTICLE 32 OF
THE CONSTITUTION. ..................................................................................................... 9

3.2 SILENCE AMOUNTS TO ACCEPTANCE. ............................................................ 10

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3.3 IF KIMETSU SPYWARE IS USED, IT IS IN SERIOUS VIOLATION OF THE

EXISTING LAWS. .......................................................................................................... 11

4. THAT FUNDAMENTAL DUTIES SHOULD NOT BE MADE ENFORCEABLE

AND NATIONALISM NOT BE DECLARED AS A PART OF BASIC STRUCTURE OF
THE CONSTITUTION. ....................................................................................................... 12

4.1 LEGAL ENFORCEMENT WITHOUT WILL AND ASPIRATIONS OF CITIZENS

IS FUTILE. ....................................................................................................................... 12

4.2 REDUNDANT WHEN SUITABLE LEGISLATIVE ACTIONS ARE

AVAILABLE. .................................................................................................................. 13

4.3 NATIONALISM SHOULD NOT BE DECLARED AS THE PART OF BASIC

STRUCTURE OF THE CONSTITUTION. ..................................................................... 14

5. THAT THE STATE OF RIVERDALE HAD THE RIGHT TO APPOINT A

COMMISSION OF INQUIRY WHEN THE MATTER IS OF NATIONAL
IMPORTANCE INVOLVING TWO OR MORE STATES................................................ 17

5.1 APPOINTMENT OF COMMISSION OF INQUIRY FALLS WITHIN THE AMBIT

OF STATE GOVT. UNDER COMMISSION OF INQUIRY ACT, 1952. ..................... 17

5.2 MATTER IS OF PUBLIC IMPORTANCE AND COVERED UNDER PUBLIC

ORDER OR INQUIRY INTO DEFINITE MATTERS OF PUBLIC IMPORTANCE. .. 18

5.3 INACTION BY THE CENTRAL GOVT. VIOLATES FUNDAMENTAL RIGHTS.

.......................................................................................................................................... 19

5.4 IN ARGUENDO, COMMISSION OF INQUIRY DOESN’T LEAD TO PARALLEL

INVESTIGATION. .......................................................................................................... 19

PRAYER ................................................................................................................................ XV

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LIST OF ABBREVIATIONS

¶ Paragraph

s Section

& And

SC Supreme Court

AIR All India Reporter

Anr Another

Art Article

ed. Edition

Govt. Govt.

HC High Court

Hon’ble Honourable

Ltd. Limited

Ld. Learned

NGO Non-Govt.al Organization

Ors Others

PIL Public Interest Litigation

Pvt Private

SCC Supreme Court Cases

SCR Supreme Court Reporter

Supp Supplementary

u/s Under Section

U.O.I Union of India

U.P. Uttar Pradesh

v Versus

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INDEX OF AUTHORITIES

CASES

Amanullah & Anr. v. State of Bihar & Ors., (2016) 6 SCC 699. .............................................. 1
Aravali Golf Club & Anr. v. Chander Hass & Anr., 2008 (3) 3JT 221. .................................. 15
Arun Ghosh v. State of West Bengal, (1970) 1 SCC 98. ......................................................... 18
Attorney-General v. Times Newspapers Ltd., 1974 AC 273. .................................................... 7
Bijoe Emmanual v. State of Kerala, AIR 1987 SC 748. .......................................................... 13
Chiranjit Lal Chowdhury v. Union of India, AIR 1951 SC 41. ............................................. 2, 3
Daryao v. State of Uttar Pradesh, AIR 1861 SC 1457. .............................................................. 3
Death of 25 inmates in asylum fire in TN v. UOI, (2002) 3 SCC 31. ....................................... 9
Dinesh Trivedi v. U.O.I, (1997) 4 SCC 306 .............................................................................. 7
Earl Fitzwilliam's Wentworth Estate Co. Ltd. v. Minister of Town & Country Planning,
(1951) 2 K.B. 284 ................................................................................................................. 20
Employees Welfare Association v. U.O.I, (1989) 4 SCC 187. ................................................ 16
Essar Oil Ltd v. Halar Utkarsh Samiti, AIR 2004 SC 1834. ................................................... 10
Exploitation of Children in Orphanages v. U.O.I, (2014) 2 SCC 193. .................................... 10
Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 844. ........................... 1
Hindi HitrakshakSamiti & Ors v. U.O.I & Ors, 1990 AIR 851. .............................................. 16
Hindi HitrakshakSamiti and Ors. v. U.O.I & Ors., 1990 AIR 851 .......................................... 15
Indian Express Newspapers (Bombay) (P) Ltd. v. U.O.I, (1985) 1 SCC 641. .......................... 6
J.P.Bansal v. State of Rajasthan,(2003) 5 SCC 134................................................................. 15
Jafar Khan v. Distt. Audit Officer, 2019 SCC OnLine HP 1269. ............................................ 10
Janata Dal v. H.S. Chaudhary, AIR 1993 SC 892. .................................................................... 1
K.K. Kochunni v. State of Madras, AIR 1959 SC 725. ............................................................. 3
K.K. Saravana Babu v. State of Tamil Nadu & Anr., (2008) 9 SCC 89. ................................. 18
Kathi Ranning Rawat v. State of Saurashtra, AIR 1952 SC 123. ............................................ 15
Kaushal P.N. v. U.O.I, AIR 1978 SC 1457 ............................................................................. 15
Kharak Singh v. State of U.P. & Ors., AIR 1963 SC 1295 ....................................................... 4
KS Puttaswamy v. Union of India, (2017) 10 SCC 1. ....................................................... 2, 4, 5
M.S. Jayaraj v. Commr. Of Excise, (2000) 7 SCC 552. ............................................................ 1
Nagar Rice and Flour Mills & Ors. v. N. Teekappa Gowda & Bros and Ors., 1971 AIR 246. . 1
P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578. ............................................. 15

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P.S. Saravanabhavanandam & Anr. v. S. Murugaiyyan & Anr., 1986 SCC OnLine Mad 51. .. 1
P.V. Jagannath Rao & Ors. v. State of Orissa & Ors., 1968 SCR (3) 789. ............................. 20
PUCL v. U.O.I, (1997) 1 SCC 301. ........................................................................................... 7
PUCL v. Union of India, (1997) 1 SCC 301................................................................ 3, 5, 8, 10
Ram Bachan Lal v. State of Bihar, AIR 1967 SC 1404. .......................................................... 15
Ram Jethmalani v. U.O.I, (2011) 8 SCC 1. ......................................................................... 9, 19
Ram Jethmalani v. Union of India, (2011) 8 SCC 1. ................................................................. 4
Ram Prasad v. State of Uttar Pradesh, AIR 1988 All 309. ...................................................... 12
Resurgence India v. Election Commission of India & Anr., (2014) 14 SCC 189. .................... 7
RR Gopal v. State of Tamil Nadu, (1994) 6 SCC 632. .............................................................. 4
S.P. Gupta v. U.O.I, AIR 1982 SC 149. ................................................................................... 11
Shyam Narayan Chouksey v. U.O.I, AIR 2018 SC 357 .......................................................... 13
SP Gupta v. Union of India, AIR 1982 SC 149. ......................................................................... 1
State (Govt of NCT of Delhi) v. Prem Raj, (2003) 7 SCC 121. .............................................. 15
Tehseen Poonawala v. U.O.I, (2018) 9 SCC 501 ...................................................................... 6
Tika Ramji Ch. v. State of Uttar Pradesh., AIR 1956 SC 676. ................................................ 15
U.O.I & Anr. v. Deoki Nandan Aggarwal, 1992 Supp. (1) SCC 323. ..................................... 16
Vinit Kumar v. Central Bureau of Investigation & Ors., 2019 SCC Online Bom 3155............ 4

STATUTES

India Const. art. 19(1)(a)............................................................................................................ 6

India Const. art. 19(1). ............................................................................................................. 13
India Const. art. 21(a). ............................................................................................................. 14
India Const. art. 21. .................................................................................................................... 5
India Const. art. 266(3). ........................................................................................................... 11
India Const. art. 267(2). ........................................................................................................... 11
India Const. art. 283(2). ........................................................................................................... 11
India Const. art. 32. .............................................................................................................. 9, 19
India Const. art. 51A. ............................................................................................................... 12
The commission of Inquiry Act, 1952, s. 2(a). ........................................................................ 17
The commission of Inquiry Act, 1952, s. 3(1)(a). ................................................................... 17
The commission of Inquiry Act, 1952, s. 3.............................................................................. 17
The Environmental Protection Act, 1986. ............................................................................... 14
The Forest (Conservation) Act, 1980....................................................................................... 14
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The International Covenant on Civil and Political Rights, art 17. ............................................. 4
The Prevention of Insults to National Honour Act, 1971, s. 2................................................. 14
The Protection of Civil Rights Act, 1955. ............................................................................... 14
The Representation of People’s Act, 1951. ............................................................................. 14
The telegraph act, 1885, s 5(2)................................................................................................... 7
The Unlawful Activities (Prevention) Act, 1967. .................................................................... 14
The Wildlife (Protection) Act, 1972. ....................................................................................... 14

OTHER AUTHORITIES

D.D. Basu, Commentary on The Constitution of India 3789 (8th ed. Wadhwa and Company
Law Publisher 2007). ............................................................................................................. 3
Nitin Pai, Patriotism without nationalism, The Hindu, February 23, 2016. ............................ 15
Paliwala M, ‘Fundamental Duties: Article 51-A Under Indian Constitution’ ......................... 13

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STATEMENT OF JURISDICTION

Pursuant to Article 32 of the Constitution of Azeroth the present writ petition has been preferred
in the matter of Jon Snow & others v. Republic of Azeroth & Anr. The relevant provision has
been produced hereinbelow:
Article 32 of the Constitution –
Remedies for enforcement of rights conferred by this Part
(1) The right to move the SC by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed
(2) The SC 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
(3) Without prejudice to the powers conferred on the SC by clause (1) and (2), Parliament may
by law empower any other court to exercise within the local limits of its jurisdiction all or any
of the powers exercisable by the SC under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution

THE PETITIONERS HUMBLY SUBMIT TO THE JURISDICTION OF THIS

HON'BLE COURT.

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STATEMENT OF FACTS

THE PARTIES

A group of journalists led by the Azeroth Times editor Mr. Jon Snow along with the State of
Riverdale, a state govt. within the Azeroth are the petitioners in the present case. The Republic
of Azeroth along with NGO Desh Ki Mitti are the respondents.

BACKGROUND
The Country of Azeroth is a Sovereign, Democratic, Secular, Republic and Socialist country
in the South-Asian Region. The Constitution of Azeroth guarantees freedom of speech and
expression. Azeroth is a multi-religious country with a dominant Hindu population. The
‘Nationalist Party of Azeroth’(NPA) and the ‘Socialist Party of Azeroth’(SPA) are the two
political parties in the Nation. In 2014, the NPA defeated the SPA, which had been in power
for several years. In the year 2019, NPA won the election with an even bigger majority.

FACTS CONCERNING KIMETSU

A disgruntled NPA member filed a PIL before the Hon'ble SC of Azeroth in 2019, alleging that
the Govt. is using Kimetsu (a spyware software developed by NSO, a Palpan Company) to
invade the privacy of its citizens and is violating Article 21 of the Azeroth Constitution. The
same was withdrawn to pursue alternative remedies.
On June 18, 2021, The Rope, an online news agency reported that an unidentified agency has
hacked over 40 Azeroth journalists using spyware Kimetsu. The report said several devices
had military-grade spyware. Most journalists were targeted prior to the Lok Sabha elections.
The Govt. claims no unlawful interception had occurred. It called the report a fishing
expedition and denied any violation of citizens' privacy. NSO Group denied all charges, stating
it only gives software to vetted govt.s. The software has been used to spy on over 300 people,
including opposition politicians and union ministers.
W.P. NO. 234 OF 2021
A group of journalists led by Mr. Jon Snow approached the Hon'ble SC of Azeroth seeking
following reliefs: a) To appoint a SC monitored Special Investigation Team (SIT) to investigate
the current situation in respect of Kimetsu. b) To declare that surveillance by the state is an
invasion of privacy of the citizens of the country.
The Republic of Azeroth without admitting or denying the use of Kimetsu software, stated that
the present PIL is not maintainable as the petitioners do not have any locus standi as the matter

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pertains to National Security & there has been no unauthorized surveillance. They further stated
that the Article 21 is subject to the procedure established by law and Article 19(1)(a) is subject
to reasonable restrictions under Article 19(2) of the Constitution.

M.A. NO. 34814 OF 2021

The petitioner in this matter has also filed a Miscellaneous Application asking the respondent
to provide an affidavit declaring whether or not they used the Kimetsu Software. The Republic
of Azeroth has filed a reply stating therein that such an affidavit cannot be filed in order to
maintain confidentiality as the matter pertains to national Security.

I.A. NO. 34815 OF 2021

Another Miscellaneous Application was filed on behalf of ‘Desh ki Mitti’ NGO stating that the
NPA govt. is instilling a feeling of Nationalism in the citizens which were long lost. They
prayed that 'Nationalism' be declared as a part of the Basic Structure of the Constitution of
Azeroth. They further prayed that the Fundamental Duties be made enforceable as the terms
Patriotism and Nationalism have lost all meaning. The Hon’ble SC allowed the Intervention
Application and had impleaded Desh Ki Mitti (NGO) as a party in the present case.

O.S. NO. 1 OF 2021

The State of Riverdale claims the Central Govt. targets its ministers. Due to recent events, State
of Riverdale appointed the Kimetsu Inquiry Commission, comprising of a former SC Judge
and a former Chief Justice of the State High Court to investigate the alleged
invasion of privacy of several journalists, activists, police officials, politicians etc. Pursuant to
this, the Union Govt. moved the Hon’ble SC against the State of Riverdale thereby seeking that
the State has no power to appoint a commission of inquiry when the topic is of national
importance involving two or more states.

PROCEEDINGS BEFORE THE HON’BLE SC

The Hon’ble SC has graciously agreed to allow this petition and hear it with the pending PIL
and has referred the matter to a larger bench of 11 judges as the matter involves questions of
Constitutional Importance.

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ISSUES RAISED

-ISSUE 1-

WHETHER THE PRESENT PIL IS MAINTAINABLE AS THE PETITIONER DO NOT HAVE ANY LOCUS
STANDI?

-ISSUE 2-

WHETHER THERE HAS BEEN AN UNAUTHORISED SURVEILLANCE ON THE CITIZENS OF

AZEROTH?

-ISSUE 3-

WHETHER THE RESPONDENTS SHOULD BE DIRECTED TO FURNISH AN AFFIDAVIT STATING THE

USE/NON-USE OF KIMETSU SOFTWARE?

-ISSUE 4-

WHETHER FUNDAMENTAL DUTIES BE MADE ENFORCEABLE AND NATIONALISM BE DECLARED

AS A PART OF BASIC STRUCTURE OF THE CONSTITUTION?

-ISSUE 5-

WHETHER THE STATE OF RIVERDALE HAD THE RIGHT TO APPOINT A COMMISSION OF INQUIRY
WHEN THE MATTER IS OF NATIONAL IMPORTANCE INVOLVING TWO OR MORE STATES?

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SUMMARY OF ARGUMENTS

1. THAT THE WRIT PETITION FILED BY THE PLAINTIFF IS MAINTAINABLE

It is most humbly submitted before this Hon’ble court that the present writ petition filed by the
plaintiff is maintainable under Article 32 of the Constitution of Azeroth and is covered under
the writ of mandamus. [1.1] The petitioner has the requisite locus standi to approach the court
as it is a matter of public interest. Further, [1.2] there has been violation of fundamental rights
and [1.3] that there is no effective alternative remedy that could have been availed.

2. THAT THERE HAS BEEN AN UNAUTHORISED SURVEILLANCE

It is most humbly submitted before this Hon’ble court that there has been an unauthorised
surveillance on the citizens of Azeroth and [2.1] the same is in violation of article 21 and [2.2]
article 19(1)(a) of the Constitution of Azeroth. Further, [2.3] the legal regime for surveillance
under section 5(2) of the telegraph act has been completely bypassed.

3. THAT THE RESPONDENT BE DIRECTED TO FURNISH AN AFFIDAVIT

STATING THE USE OR NON-USE OF THE KIMETSU SOFTWARE

It is most humbly submitted to this Hon’ble court that the respondent should be directed to
furnish an affidavit stating the use of the Kimetsu software because [3.1] withholding of
information in the context of judicial proceedings is destructive to the guarantee under article
32 of the constitution of Azeroth and [3.2] further the impugned purchase of kimetsu software
and its use is clear violation of Article 21 of the Constitution of Azeroth.

4. THAT FUNDAMENTAL DUTIES SHOULD NOT BE MADE ENFORCEABLE

AND NATIONALISM NOT BE DECLARED AS A PART OF BASIC STRUCTURE
OF THE CONSTITUTION

It is humbly submitted before the Hon’ble Court that the fundamental duties should not be
made enforceable as [4.1] legal enforcement without will and aspirations of citizens is futile.
[4.2] redundant when suitable legislative actions are available. Further, nationalism should not
be declared as part of the basic structure of the Constitution of Azeroth as [4.3] judiciary has
no say in policy decisions of the legislative authority and [4.3.2] judiciary has protected by
interpreting constitutional provisions in a way that is true the constitutional brand of
nationalism.

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5. THAT THE STATE OF RIVERDALE HAD THE RIGHT TO APPOINT A

COMMISSION OF INQUIRY WHEN THE MATTER IS OF NATIONAL
IMPORTANCE INVOLVING TWO OR MORE STATES

It is most humbly submitted before this Hon’ble court that the state of riverdale had the right
to appoint a commission of inquiry when the matter is of national importance involving two or
more states as [5.1] appointment of commission of inquiry falls within the ambit of state govt.
under commission of inquiry act, 1952. Further, [5.2] the matter is of public importance and
covered under public order or Inquiry into definite matters of public importance and also [5.2.1]
inaction by the central govt. violates fundamental rights. [5.3] A commission of an inquiry
doesn’t lead to parallel investigation.

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ARGUMENTS ADVANCED

1. THAT THE WRIT PETITION FILED BY THE PLINTIFF IS MAINTAINABLE.

¶ 1. Writ Petition filed by the plaintiff is maintainable under Article 32 of the Constitution
of Azeroth and is covered under the writ of mandamus as, [1.1] The petitioner has the
requisite locus standi to approach the court as it is a matter of public interest. Further,
[1.2] there has been a violation of fundamental rights and [1.3] that there is no effective
alternative remedy that could have been availed.

1.1 THAT THE PETITIONER HAS THE REQUISITE LOCUS STANDI TO

APPROACH THE COURT AS IT IS A MATTER OF PUBLIC INTERST.

¶ 2. It is humbly submitted that, the complainant in the impugned case has the locus to file
the present appeal before this Hon’ble Court as it is a matter of public interest and there
is no strait jacket formula for the locus.1 Furthermore, the Supreme Court has shifted
from the earliest writ interpretation of locus standi adopted in Nagar Rice and Flour
Mills & Ors. v. N Teekappa Gowda and Bros & Ors2 and a much wider canvass has
been adopted in the later years regarding a person’s entitlement to move to the court
involving writ jurisdiction.3
¶ 3. The Hon’ble SC in SP Gupta v. U.O.I4, articulated the concept of PIL as follow: Any
member of the public can maintain an application for an appropriate direction, order,
or writ in the High Court under Article 226 and, in case of any breach of fundamental
rights of such persons or determinate class of persons, in this court under Article 32
seeking judicial redress for the legal wrong or legal injury caused to such person or
determinate class of persons.
¶ 4. While relying on the justice-oriented approach, the SC in the case of Amanullah v. State
of Bihar5, held that, it is clear from the aforementioned case law that the Court should
be liberal in allowing any third party, having a bona fide connection with the matter, to
maintain the appeal with a view to advance substantial justice. Further, it was made

1
P.S. Saravanabhavanandam & Anr. v. S. Murugaiyyan & Anr., 1986 SCC OnLine Mad 51.
2
Nagar Rice and Flour Mills & Ors. v. N. Teekappa Gowda & Bros and Ors., 1971 AIR 246.
3
M.S. Jayaraj v. Commr. Of Excise, (2000) 7 SCC 552.
4
SP Gupta v. U.O.I, AIR 1982 SC 149.
5
Amanullah & Anr. v. State of Bihar & Ors., (2016) 6 SCC 699.
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clear in the case of Janata Dal v H.S. Chaudhary6 that only a person ‘acting bona fide7’
and ‘having sufficient public interest’ in the proceeding of public interest litigation will
have the locus standi, but not a person for personal gain or political motive or any
oblique consideration.
¶ 5. In the present case, petitioner Jon Snow is the editor of a leading newspaper that works
actively to keep the general public informed and aware of global events. Additionally,
because the media serves as a third eye for the govt., the petitioner is capable of acting
in good faith.

1.2 THAT THERE HAS BEEN VIOLATION OF FUNDAMENTAL RIGHTS.

¶ 6. The Writ Jurisdiction of the SC can be invoked under Article 32 of the Constitution for
the violation of fundamental rights guaranteed under Part – III of the Constitution. It is
submitted that the sole objective of Art. 32 is the enforcement of the fundamental rights
guaranteed by the Constitution of India. The original jurisdiction of the Supreme Court
can be invoked in any case of violation of a fundamental right guaranteed by part III of
the Constitution of India, as has been observed in the case of Chiranjit Lal Chowdhury
v. U.O.I8 amongst many others. The constitution makers conferred on the Supreme
Court the power to issue writs for the speedy enforcement of fundamental rights and
made the right to approach the Supreme Court for such enforcement itself a
fundamental right.
¶ 7. In the present case, the petitioner has filed a Public Interest Litigation for protection
and enforcement of the rights of the public at large and seeks a remedy for the
fundamental right that has been deprived of them by using the spyware software
Kimetsu and invading their privacy. In the case at hand, there has been a violation of
their fundamental right under Article 19(1)(a) and Article 21 of the constitution. The
Fundamental Rights provided in the Indian Constitution are guaranteed against any
executive and legislative actions. Any executive or legislative action, which infringes
upon the fundamental rights of any person or any group of persons, can be declared as
void by the courts under Article 14 of the Constitution.
¶ 8. In the present case, the interception of phones of activists and journalists without
following any procedures, caused agony among a large section of people of India, as

6
Janata Dal v. H.S. Chaudhary, AIR 1993 SC 892.
7
Fertilizer Corporation Kamgar Union v. U.O.I, AIR 1981 SC 844.
8
Chiranjit Lal Chowdhury v. U.O.I, AIR 1951 SC 41.
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their right to privacy, guaranteed under Art. 21 of the Constitution of India and declared
& upheld sonorously by this Hon’ble Court in the Puttaswamy case9 is infringed and
violated. It is also a concern that the freedom of speech and expression guaranteed under
Article-19 (1)(a) is also infracted as snooping has an impact on the actions of the
individual resulting in a chilling effect on free speech and expression.

1.3 THAT THERE IS NO EFFECTIVE ALTERNATIVE REMEDY THAT COULD

HAVE BEEN AVAILED.

¶ 9. The petitioners have no alternative or efficacious remedy except to file the present Writ
Petition under Order XXXVIII Rule 12 of ‘The Supreme Court Rules, 2013, before this
Hon’ble Court, by invoking Article 32 of the Constitution of India.
¶ 10. Article 32 is itself a fundamental right, and therefore, the existence of an alternative
remedy is no bar to the Supreme Court entertaining a petition under article 32. Once
the court is satisfied that the petitioner’s fundamental right has been infringed, it is not
only its right but also its duty to afford relief to the petitioner10 & he need not establish
either that he has no adequate remedy, or that he has exhausted all remedies provided
by law, but has not obtained proper address. When the petitioner establishes
infringement of his fundamental right, the court has no discretion but to issue an
appropriate writ in his favour.11
¶ 11. Under Article 32, the Supreme Court enjoys a broad discretion in the matter of framing
writs to suit the exigencies of the particular case & it would not throw out the
application of the petitioner simply on the ground that the proper writ has not been
prayed for, as seen in Chiranjitlal v. U.O.I.12 The court’s power is not confined to
issuing writs only: it can make any order, including even a declaratory order, or give
any direction, as may appear to it to be necessary to give proper relief to the petitioner 13.
¶ 12. Arguendo, the issue in hand is of fundamental importance14 for the people of the whole
country as this act operates in the full territory. So, it would not be appropriate for the

9
KS Puttaswamy v. U.O.I, (2017) 10 SCC 1.
10
D.D. Basu, Commentary on The Constitution of India 3789 (8th ed. Wadhwa and Company Law Publisher
2007).
11
Daryao v. State of Uttar Pradesh, AIR 1861 SC 1457.
12
Chiranjit Lal Chowdhury v. U.O.I, AIR 1951 SC 41.
13
K.K. Kochunni v. State of Madras, AIR 1959 SC 725.
14
PUCL v. U.O.I, (1997) 1 SCC 301.
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petitioner to go to each and every High Court and seek relief.15 Therefore, it is humbly
submitted that there is no appropriate alternative remedy available.

2. THAT THERE HAS BEEN AN UNAUTHORISED SURVEILLANCE.

¶ 13. It is most humbly submitted before this hon’ble court that there has been an
unauthorised surveillance on the citizens of Azeroth and [2.1] the same is in violation
of article 21 and [2.2] article 19(1)(a) of the Constitution of Azeroth. Further, [2.3] the
legal regime for surveillance under section 5(2) of the telegraph act has been completely
bypassed.

2.1 SURVEILLANCE BY THE STATE IS VIOLATION OF ARTICLE 21 OF THE

CONSTITUTION OF AZEROTH.

¶ 14. Privacy is a fundamental human right, enshrined in numerous international human

rights instruments. It is central to the protection of human dignity and forms the basis
of any democratic society. Surveillance by the state is an unacceptable violation of the
right to privacy which has been held to be a fundamental right under articles 14, 19 and
21 by the hon’ble court in the case of KS Puttaswamy v. U.O.I16.
¶ 15. Privacy is also enshrined in the International Covenant on Civil and Political Rights
(ICCPR) to which India is a party. Article-1717 of ICCPR states, ‘no one shall be
subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honor and reputation.’ Kimetsu
snoopware violates this international covenant also. It was observed in the case of Vinit
Kumar18 that there was necessity of fulfilling the threshold of public emergency and
interest of public safety for interception under section 5(2) of IT Act and ruled that any
evidence procured in violation of law will not be admissible in court.
¶ 16. The concept of privacy as a fundamental right, integral to the Right of life first surfaced
in 7 judge bench decision of supreme court in Kharak Singh19. Further, in the case of
Ram Jethmalani and Ors. v. U.O.I20 the supreme court held that, right to privacy is an
integral part of right to life, a cherished constitutional value and it is important that

15
Ibid.
16
KS Puttaswamy v. U.O.I, (2017) 10 SCC 1.
17
The International Covenant on Civil and Political Rights, art 17.
18
Vinit Kumar v. Central Bureau of Investigation & Ors., 2019 SCC Online Bom 3155.
19
Kharak Singh v. State of U.P. & Ors., AIR 1963 SC 1295.
20
Ram Jethmalani v. U.O.I, (2011) 8 SCC 1.
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human beings be allowed domains of freedom that are free of public scrutiny unless
they act in an unlawful manner. Similarly, in the case of RR Gopal v. State of Tamil
Nadu21, the supreme court held that right to privacy is implicit in the right to life and
liberty guaranteed to the citizens of the country by article 21. A citizen has a right to
safeguard the privacy of his own, his family, marriage, procreation, motherhood,
childbearing, and education among other matters.
¶ 17. The Kimetsu hack is a direct attack on communicational, intellectual, and informational
privacy, and critically endangers the meaningful exercise of privacy in these contexts.
The right to privacy extends to use and control over one’s mobile phone/electronic
device and any interception by means of hacking/tapping is an infraction of Article 21 22
as observed through PUCL v. U.O.I23. Further, the use of the Kimetsu spyware to
conduct surveillance represents a grossly disproportionate invasion of the right to
privacy.
¶ 18. That the nature of surveillance occasioned by the Pegasus spyware completely fails the
test of proportionality, rendering the restraints it places on the right to privacy
24
completely unjustifiable . It is settled law that for any invasion of privacy to be
justifiable, the following conditions must be satisfied: (i) A legitimate State aim, (ii) A
rational nexus between the aim and the infringement of the right (the rationality prong),
(iii) The infringement must be the least restrictive measure available (i.e., alternatives
must be unquestionably foreclosed) (the necessity prong), (iv) There must be a balance
between the extent of the restrictions and the benefit the State hopes to achieve.
¶ 19. That not a single prong of the four-step proportionality test has been met in the present
case. No legitimate State aim can be inferred from the mass surveillance of inter alia
journalists, doctors, lawyers, civil society activists, govt. ministers and opposition
politicians. In the absence of such an aim, there cannot exist any rational nexus between
it and the invasion of privacy occasioned by the software in the present case. Snooping
using a weapons grade software sold by an Israeli cyber-arms firm can by no means be
considered the least restrictive measure available. Lastly, not only can legitimate benefit
be inferred from such mass surveillance, but the same causes active harm to a
democratic polity.

21
RR Gopal v. State of Tamil Nadu, (1994) 6 SCC 632.
22
India Const. art. 21.
23
PUCL v. U.O.I, (1997) 1 SCC 301.
24
KS Puttaswamy v. U.O.I, (2017) 10 SCC 1.
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2.2 VIOLATION OF THE FUNDAMENTAL RIGHT TO FREE SPEECH AND

EXPRESSION UNDER ARTICLE 19(1)(A).

¶ 20. The targeted hacking/interception of inter alia journalists, doctors, lawyers, civil society
activists, govt. ministers and opposition politicians seriously compromise the effective
exercise of the fundamental right to free speech and expression under Article 19(1)(a)25.
That the mere fact that such a software has been used on so many mobile
phones/electronic devices of politically engaged persons is likely to create a perception
that those who “speak out” are at risk of being placed under surveillance using weapons
grade spyware. This threatens dissenters against exercising their right to free speech
and expression by means of an imminent extra-legal threat of surveillance into the most
core and private aspects of their person. This has a definite “chilling effect” on freedom
of speech and expression, and silences legitimate dissent.
¶ 21. It has an obvious chilling effect on expression by threatening invasion into the most
core and private aspects of a person’s life as observed through the case of (¶ 21) Tehseen
Poonawala v U.O.I26. That the targeted surveillance and harvesting of personal data of
several prominent journalists represents an attack on the press, which is the fourth pillar
of democracy and plays a vital role as an accountability mechanism in a democratic set-
up. The hacks/surveillance occasioned by Pegasus pose a real risk of compromising the
ability of the press to function freely. It is a settled position of law that the right to free
speech and expression includes freedom of the press within its ambit, and any
interference with the same is contrary to the constitutional mandate. The specific
targeting of scores of journalists is an attack on the freedom of the press, and seriously
abridges the right to know, which is an essential component of the right to free speech
and expression as observed in the case of (¶ 32, 68) Indian Express Newspapers
(Bombay) (P) Ltd v U.O.I27.
¶ 22. That the targeted surveillance of journalists has a direct and demonstrable impact on
the “right to know” of the citizen public. The press plays a vital role in keeping citizens
informed and is critical to enabling public participation in administration and
governance and surveillance of this nature severely retards the quality and content of
journalism. It is a settled constitutional position that the right to know is an extension

25
India Const. art. 19(1)(a).
26
Tehseen Poonawala v. U.O.I, (2018) 9 SCC 501.
27
Indian Express Newspapers (Bombay) (P) Ltd. v. U.O.I, (1985) 1 SCC 641.
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of the right to free speech and expression under Article 19(1)(a) (¶ 16, Dinesh Trivedi
v U.O.I28; ¶ 29.1- ¶ 29.2, Resurgence India v. Election Commission of India & Anr29).
¶ 23. “The public interest in freedom of discussion (of which the freedom of the press is one
aspect) stems from the requirement that members of a democratic society should be
sufficiently informed that they may influence intelligently the decisions which may
affect themselves.” (Per Lord Simon of Glaisdale in Attorney-General v. Times
Newspapers Ltd30.
¶ 24. All members of society should be able to form their own beliefs and communicate them
freely to others. In sum, the fundamental principle involved here is the people's right to
know. Freedom of speech and expression should, therefore, receive a generous support
from all those who believe in the participation of people in the administration. Thus, in
the present matter at hand the targeted surveillance on the citizens of Azeroth including
doctors, journalists etc is in gross violation of the freedom of speech and expression
under article 19(1)(a) of the constitution of Azeroth.

2.3 THE LEGAL REGIME FOR SURVEILLANCE UNDER SECTION 5(2) OF THE
TELEGRAPH ACT HAS BEEN COMPLETELY BYPASSED.

¶ 25. That the legal regime for surveillance under Section 5(2) of the Telegraph Act has been
completely bypassed in the present case. Surveillance/interception is justified only in
cases of public emergency or in the interests of public safety, and the existence of such
conditions must be inferred reasonably and cannot be determined solely on the
assessment of the govt. (¶ 28, PUCL v U.O.I31). Neither of these mandatory conditions
have been met in the present case, rendering the surveillance wholly illegal.
¶ 26. That section 5(2) of the Telegraph Act32 states that “On the occurrence of any public
emergency, or in the interest of the public safety, the Central Govt. or a State Govt. or
any officer specially authorised in this behalf by the Central Govt. or a State Govt. may,
if satisfied that it is necessary or expedient so to do in the interests of the sovereignty
and integrity of India, the security of the State, friendly relations with foreign States or
public order or for preventing incitement to the commission of an offence, for reasons
to be recorded in writing, by order, direct that any message or class of messages to or

28
Dinesh Trivedi v. U.O.I, (1997) 4 SCC 306.
29
Resurgence India v. Election Commission of India & Anr., (2014) 14 SCC 189.
30
Attorney-General v. Times Newspapers Ltd., 1974 AC 273.
31
PUCL v. U.O.I, (1997) 1 SCC 301.
32
The Telegraph Act, 1885, s 5(2).
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from any person or class of persons, or relating to any particular subject, brought for
transmission by or transmitted or received by any telegraph, shall not be transmitted, or
shall be intercepted or detained, or shall be disclosed to the Govt. making the order or
an officer thereof mentioned in the order: Provided that press messages intended to be
published in India of correspondents accredited to the Central Govt. or a State Govt.
shall not be intercepted or detained, unless their transmission has been prohibited under
this sub-section.”
¶ 27. That in PUCL v. U.O.I33, this Hon’ble Court held that there is no jurisdiction to exercise
powers under Section 5(2) of the Telegraph if a public emergency has not occurred or
the interests of public safety do not demand it. The existence of a public emergency or
public safety considerations do not depend on the assessment of the govt. alone and
must be reasonably inferable.
¶ 28. That none of the above necessary conditions for resorting to interception have been met
in the present case. The targets of interception here are reputed journalists, doctors,
lawyers, civil society activists, govt. ministers and opposition politicians. There is
evidently no threat posed by them to the sovereignty or integrity of India, the security
of the state, friendly relations with foreign states, public order, or incitement to an
offence. Neither is there any public emergency or issue of public safety involved. None
of the mandatory conditions that need to exist prior to authorisation of
interception/surveillance are present here. The surveillance is thus obviously illegal.

3. THAT THE RESPONDENT BE DIRECTED TO FURNISH AN AFFIDAVIT

STATING TH USE/NON- USE OF THE KIMETSU SOFTWARE.

¶ 29. It is most humbly submitted to this hon’ble court that the respondent should be directed
to furnish an affidavit stating the use of the Kimetsu software because [3.1] withholding
of information in the context of judicial proceedings is destructive to the guarantee
under article 32 of the constitution of Azeroth and [3.2], [3.3] further the impugned
purchase of Kimetsu software and its use is clear violation of Article 21 of the
Constitution of Azeroth.

33
PUCL v. UOI, (1997) 1 SCC 301.
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3.1 WITHHOLDING OF INFORMATION IN THE CONTEXT OF JUDICIAL

PROCEEDINGS IS DESTRUCTIVE TO THE GUARANTEE IN ARTICLE 32 OF
THE CONSTITUTION.

¶ 30. It was observed in the case of Ram Jethmalani v U.O.I34 that the burden of protection
of fundamental rights is primarily the duty of the state, and hence, withholding of
information from the petitioners, or seeking to cast the relevant events and facts in a
light favourable to the state in the context of judicial proceedings, would be destructive
to the guarantee in article 3235, and the state has the duty to reveal all the facts and
information and its position to the court and also provide the same to the petitioners.
¶ 31. The basic structure of the Constitution cannot be amended even by the amending power
of the legislature. Our Constitution guarantees the right, pursuant to Clause (1)
of Article 32, to petition this Court on the ground that the rights guaranteed under Part
III of the Constitution have been violated. In order that the right guaranteed by Clause
(1) of Article 32 be meaningful, and particularly because such petitions seek the
protection of fundamental rights, it is imperative that in such proceedings the petitioners
are not denied the information necessary for them to properly articulate the case and be
heard, especially where such information is in the possession of the State. To deny
access to such information, without citing any constitutional principle or enumerated
grounds of constitutional prohibition, would be to thwart the right granted by Clause
(1) of Article 32.
¶ 32. In the task of upholding of fundamental rights, the State cannot be an adversary. In
proceedings such as those under Article 32, both the petitioner and the State, have to
necessarily be the eyes and ears of the Court. Blinding the petitioner would substantially
detract from the integrity of the process of judicial decision making in Article
32 proceedings, especially where the issue is of upholding of fundamental rights.
¶ 33. In the case of Death of 25 inmates in asylum fire in TN v. U.O.I36 the court held that the
state govt. as well as central govt. shall affidavits in the matter concerned. A gruesome
tragedy in which more than 25 mentally challenged patients housed in a mental asylum
at Ervadi in Ramanathpuram district were charred to death, the patients could not

34
Ram Jethmalani v. U.O.I, (2011) 8 SCC 1.
35
India Const. art. 32.
36
Death of 25 inmates in asylum fire in TN v. UOI, (2002) 3 SCC 31.
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escape the blaze as they had not been chained to poles or beds and herein the court took
suo moto action.
¶ 34. Further, in the case of Exploitation of Children in Orphanages v. U.O.I37, the court held
that each state has to conduct a detailed survey and file status report with regard to
Govt./NGO/privately run and controlled children institutions/special homes working in
their respective States, whether registration under various provisions of Juvenile Justice
(Care and Protection of Children) Act, 2000 carried out and whether any of such
institutions are unregistered indicating what protective measures have been taken by
State Govt. or local authority to prevent any abuse of inmates of these institutions.
Affidavits to be filed within 4 weeks and listed after 6 weeks.
¶ 35. In the present case at hand, if the respondent does not furnish an affidavit stating the
use or non-use of kimetsu software it would amount to withholding of information in
the context of judicial proceedings and thus would be violative of article 32 of the
constitution of Azeroth.

3.2 SILENCE AMOUNTS TO ACCEPTANCE.

¶ 36. Denial to reply a serious question is admitted of question as per evidence Act.
Therefore, denial to reply of a serious fact which hits national security, institutional
safety and security citizen of India is amount of admission under the law. It was
observed in the case of Jafar Khan v. Distt Audit Officer38 that silence amounts to
acceptance. Long period of silence and inaction on the part of the petitioner amounts to
acceptance, more particularly when there is no explanation for his long silence.
¶ 37. The expression “freedom of speech and expression” in Article 19 (1) (a) of the
Constitution has been held to include the right to acquire information and disseminate
the same as observed in the case of PUCL v. U.O.I39. In Essar Oil Ltd v Halar Utkarsh
Samiti40, the Court held that there is strong link between Article 21 and the right to
know particularly when secret Govt. decision may affect health, life, and livelihood.
¶ 38. Democratic form of Govt. necessarily requires accountability which is possible only
when there is openness, transparency, and knowledge. Transparency is a powerful
safeguard against political and administrative aberrations and antithesis of inefficiency

37
Exploitation of Children in Orphanages v. U.O.I, (2014) 2 SCC 193.
38
Jafar Khan v. Distt. Audit Officer, 2019 SCC OnLine HP 1269.
39
PUCL v. UOI, (1997) 1 SCC 301.
40
Essar Oil Ltd v. Halar Utkarsh Samiti, AIR 2004 SC 1834.
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resulting from a totalitarian govt. which maintains secrecy and denies information as
observed in the case of S.P. Gupta and Ors v. President of India and Ors41.
¶ 39. It is the respondent’s duty to furnish an affidavit stating the use/ non- use of the Kimetsu
software. The respondents cannot stay silent on the present matter, all we want to know
is whether they used Kimetsu, that is all. That does not reveal any secrets of the state
and does not impact national security. It is in due process of justice, and they have to
protect our fundamental rights.

3.3 IF KIMETSU SPYWARE IS USED, IT IS IN SERIOUS VIOLATION OF THE

EXISTING LAWS.

¶ 40. The govt. has chosen to stay silent on the use/ non-use of the spyware and since there
is no denial, it means they have used it, which is in clear violation of the existing laws.
The impugned purchase of Pegasus software and its payment is clear violation of
Articles 266(3)42, 267(2)43 and 283(2)44 of the Constitution by which no authority may
incur any expenditure or enter into any liability involving expenditure or transfer of
money for investment or deposit from Govt. account unless such expenditure or
transfer, as the case may be, has been sanctioned by general or special orders of Govt.
or by any authority to which power has been duly delegated in this behalf. It’s a
financial offense and respondent are severally and jointly liable for prosecution for it.
¶ 41. Further, the govt. is insinuating a conspiracy in these revelations. There is much we
don’t know. For example, we don’t know who revealed the NSO lists and why. Maybe
the intent behind the whistleblowing was not benign. That should be looked into. But it
is also beside the point. Indian citizens are asking the govt. to come clean on its own
use of NSO, or its knowledge of how Pegasus got onto the phones of prominent Indians.
To use its own argument, if it has nothing to hide, why fear a little probing? The deeper
danger here is not the motives of the whistle blowers. It is that by not having a credible,
trustworthy, accountable institutional process, we have left ourselves vulnerable to the
violation of our rights, and the diminishing of our security.
¶ 42. The govt. declined to reply the serious question about purchase of said Kimetsu systems
and its uses either for any purposes, it means it has been purchased and being used

41
S.P. Gupta v. U.O.I, AIR 1982 SC 149.
42
India Const. art. 266(3).
43
India Const. art. 267(2).
44
India Const. art. 283(2).
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against the citizen of India, Opposition leaders, individuals during the Lok Sabha
election 2019 to won it which is unconstitutional and a serious offence of snooping.
¶ 43. The Kimetsu software is a malware that is illegal per se. The fact that the respondents
have not denied it means they have used it. So, if they don’t file an affidavit, the court
must accept because these are the allegations which have been made that the Kimetsu
was used, and if Kimetsu was used in the targeting of ordinary citizens, it is illegal per
se, it has no legal basis and cannot be used.

4. THAT FUNDAMENTAL DUTIES SHOULD NOT BE MADE ENFORCEABLE

AND NATIONALISM NOT BE DECLARED AS A PART OF BASIC STRUCTURE OF
THE CONSTITUTION.

¶ 44. Fundamental duties should not be made enforceable as [4.1] legal enforcement without
will and aspirations of citizens is futile. [4.2] redundant when suitable legislative
actions are available. Further, [4.3] nationalism should not be declared as part of the
basic structure of the Constitution of Azeroth as [4.4] judiciary has no say in policy
decisions of the legislative authority and [4.5] judiciary has protected by interpreting
constitutional provisions in a way that is true the constitutional brand of nationalism.

4.1 LEGAL ENFORCEMENT WITHOUT WILL AND ASPIRATIONS OF CITIZENS

IS FUTILE.

¶ 45. It is humbly submitted that Article 51A45 of the Azeroth Constitution under PART – IV
A deals with the fundamental duties. These duties are inserted by the 42 nd and 86th
amendment act of the constitution. The phrase mentioned in article 51A itself indicates
that the duties are obligatory since it says that ‘It shall be the duty of every citizen of
India’. It does not impose any command to follow the duty. It uses the word 'shall' and
not must.
¶ 46. In the case of Ram Prasad46, the Court held that Constitutional lawgiver have provided
that the citizens of this great nation shall perform their duties in an excellent way then
performing it half-heartedly. Further in the case of Shyam Narayan Chouksey v.
U.O.I47, the Supreme Court passed an interim order that mandated the playing of the
National Anthem at the start of every film in cinema theatres and compelled all viewers

45
India Const. art. 51A.
46
Ram Prasad v. State of Uttar Pradesh, AIR 1988 All 309.
47
Shyam Narayan Chouksey v. U.O.I, AIR 2018 SC 357.
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to stand during the National Anthem to convey respect. This controversial decision was
later struck down, as it was believed to be violating Article 19(1)48 of the Constitution.
¶ 47. It is submitted that there is no legally binding obligation associated with fundamental
duties similar to the Directive Principles of State Policy, they are prescriptive and
suggestive as opposed to mandatory. Upon the non-observance or even violation of a
Fundamental Duty, one will not face any penalty or punishment. They simply appeal to
the goodwill of citizens.49 Voluntary obedience is more suitable as making
fundamental duties enforceable may facilitate compulsory allegiance of citizenry
obligations which is not democratic.
¶ 48. In the case of Bijoe Emmanuel v. State of Kerala50 which is popularly known as the
National Anthem Case, on refusing to sing the National Anthem in the school, three
children of the Jehovah’s Witnesses were expelled from the school as they did not join
the singing of the National Anthem, but they stood up out of respect. They didn’t sing
the National Anthem because their religious faith didn’t permit it and it was against
their religious faith. They were expelled on the ground that they violated their
fundamental duties. The court cleared that there is no violation of Article 51A (a) when
a person shows no disrespect to the National Anthem if he/she stands up respectfully
when the National Anthem is sung but does not join the singing.
¶ 49. It is submitted that it is not practicable to enforce the Fundamental Duties and they must
be left to the will and aspiration of the citizens. That when an individual, as a
fundamental unit of society, is driven and motivated to truly contribute and make a
difference in society, there is no pressing need for fundamental duties to be made
enforceable.

4.2 REDUNDANT WHEN SUITABLE LEGISLATIVE ACTIONS ARE AVAILABLE.

¶ 50. It is humbly submitted before this Hon’ble court that fundamental duties cannot be
enforced as there are various corresponding legislative remedies available, and the
existence of such alternative laws renders the enforceability of fundamental duties
obsolete. The fundamental duty in Article 51-A (a) to respect the National Flag and
National Anthem corresponds with Sections 2 and 3 of The Prevention of Insults to

48
India Const. art. 19(1).
49
Paliwala M, ‘Fundamental Duties: Article 51-A Under Indian Constitution’
50
Bijoe Emmanual v. State of Kerala, AIR 1987 SC 748.
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National Honour Act, 197151 respectively. This Act provides a punishment of

imprisonment up to three years and/or fine, if one burns, defaces or in any manner
disrespects the National Flag. The same punishment is applicable on those who
intentionally prevent the singing of the National Anthem or cause a disruption in the
assembly that is singing it.
¶ 51. Furthermore, if one discriminates against another on the basis of caste or religion, they
will face punishment as per The Protection of Civil Rights Act 195552. This is in favour
of ensuring Article 51-A (e) which aims to promote brotherhood. Similarly,
the Unlawful Activities (Prevention) Act, 196753 has been drafted to prevent citizens’
indulgence in unlawful activities that may incite communal violence. Similarly, in (g)
of Article 51-A, the duties intend to protect the environment and extend consideration
for animals and the planet as a whole. This is guaranteed through the Environmental
Protection Act, 198654, the Wildlife (Protection) Act 197255 and the Forest
(Conservation) Act 1980.56 Therefore, whenever govt. feels like a fundamental duty
needs a legal sanction then it can pass a bill in the parliament to give effect to
fundamental duty.

4.3 NATIONALISM SHOULD NOT BE DECLARED AS THE PART OF BASIC

STRUCTURE OF THE CONSTITUTION.
¶ 52. In its extreme form, history has shown that nationalism has led to colonial imperialism
and fascism, and many wars have been fought in its name.57 Tagore, noting the dangers
of nationalism, warned against the excessive fetishization of the nation,58 where any
insults against the nation threaten our sentiments, if not our security, and are thus met
with outrage. Such a reaction often occurs when nationalism is divorced from the
necessary social and economic reform required to ensure its vitality, and consequently
it often assumes a more revolutionary, undesirable colour.

4.3.1 JUDICIARY HAS NO SAY IN POLICY DECISIONS OF THE LEGISLATIVE

AUTHORITY.

51
The Prevention of Insults to National Honour Act, 1971, s. 2.
52
The Protection of Civil Rights Act, 1955.
53
The Unlawful Activities (Prevention) Act, 1967.
54
The Environmental Protection Act, 1986.
55
The Wildlife (Protection) Act, 1972.
56
The Forest (Conservation) Act, 1980.
57
Narayanan, supra note 1, at 633.
58
Nitin Pai, Patriotism without nationalism, The Hindu, February 23, 2016.
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¶ 53. In such a petition, the Court cannot interfere in matters of legislative policy. 59 The Court
must maintain judicial restraint in matters relating to the legislative or executive
domain.60 The policy of a law may be gathered from the Preamble,61read in the light of
the circumstances in which it was passed, 62 or its object,63 with its provisions read
together.64 In the case of State (Govt of NCT of Delhi) v. Prem Raj65, the Court held that
“Where the words are clear, there is no obscurity, there is no ambiguity and the intention
of the legislature is clearly conveyed, there is no scope for the court to innovate or to
take upon itself the task of amending or altering the statutory provisions. In that
situation the judge should not proclaim that they are playing the role of lawmaker
merely for an exhibition of judicial valour. They have to remember that there is a line,
though thin, which separates adjudication from legislation. That line should not be
crossed or erased.”66
¶ 54. Mr. A.S. Chandhiok, learned Additional Solicitor General, submitted that under the
Constitution it is only the Legislature which has the power to make law and amend the
law and the Court cannot in exercise of its judicial power encroach into the field of
legislation. In support of this submission, he relied on the decision of a seven-Judge
Bench of this Court in P. Ramachandra Rao v. State of Karnataka67 in which this Court
has recognized the limits of judicial power in a constitutional democracy. “Courts can
declare the law, they can interpret the law, they can remove obvious lacunae and fill
the gaps, but they cannot entrench upon in the field of legislation properly meant for
the legislature.” He also cited the decision in U.O.I and Anr v. Deoki Nandan
Aggarwal68 for the proposition that courts cannot rewrite, recast, or reframe the
legislation for the very good reason that it has no power to legislate.
¶ 55. Further, it was held in SC Employees Welfare Association v. U.O.I69 that the court
cannot direct the legislature and delegated authority to make any particular law. But it
is equally true that citizens of India are not to be governed by the Judges or judiciary,

59
Hindi HitrakshakSamiti and Ors. v. U.O.I & Ors., 1990 AIR 851.
60
Aravali Golf Club & Anr. v. Chander Hass & Anr., 2008 (3) 3JT 221.
61
Kaushal P.N. v. U.O.I, AIR 1978 SC 1457.
62
Kathi Ranning Rawat v. State of Saurashtra, AIR 1952 SC 123.
63
Tika Ramji Ch. v. State of Uttar Pradesh., AIR 1956 SC 676.
64
Ram Bachan Lal v. State of Bihar, AIR 1967 SC 1404.
65
State (Govt of NCT of Delhi) v. Prem Raj, (2003) 7 SCC 121.
66
J.P.Bansal v. State of Rajasthan,(2003) 5 SCC 134.
67
P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578.
68
U.O.I & Anr. v. Deoki Nandan Aggarwal, 1992 Supp. (1) SCC 323.
69
Employees Welfare Association v. U.O.I, (1989) 4 SCC 187.
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it has to be a policy decision by the Govt. or the authority and thereafter enforcement
of that policy, the Court should not be, and we hope would not be an appropriate forum
for decision.70

4.3.2 JUDICIARY HAS PROTECTED BY INTERPRETING CONSTITUTIONAL

PROVISIONS IN A WAY THAT IS TRUE TO THIS CONSTITUTIONAL BRAND OF
NATIONALISM.
¶ 56. Fundamental Duties indicate the desire of the Parliament to inculcate the spirit of
nationalism amongst its citizens, a nationalism that draws its contours from the
Constitution alone. Article 51A (introduced in 1977) enjoins the citizens to uphold
duties which can be termed as elements of nationalism and consciously abjures
reference to the culture of any individual community or its history, and instead focuses
on the rich heritage of our composite culture. Therefore, sense of nationalism is already
there in the constitution.
¶ 57. Thus, Constitutional nationalism is distinct as it demands a citizen’s allegiance not to
any religion or school of thought, but only to the constitutional ethos. There are several
acts which safeguards the nationalism and maintains the spirit of nationalism in people.
It is in this context that there is no need to add nationalism. The addition would only
increase pressure on judiciary and nothing else. Also, fundamental rights and
fundamental freedoms guaranteed to the citizens act as a useful weapon for availability,
availment and enjoyment of equality, liberty, and fundamental freedoms and to help to
create a healthy nationalism.
¶ 58. Furthermore, today the political parties use nationalism as a tool to defend themselves
in the name of nation and use it adversely. The application should be dismissed being
devoid of any merits and being politically motivated. Further the head of the NGO, i.e.,
Mr. Malcolm David, was a former Union Minister of Culture and Tourism during 2014-
2019. Also, the govt. is violating the privacy of its citizens under the garb of nationalism
and national security.

70
Hindi HitrakshakSamiti & Ors v. U.O.I & Ors, 1990 AIR 851.
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 MEMORIAL ON BEHALF OF THE PETITIONERS

5. THAT THE STATE OF RIVERDALE HAD THE RIGHT TO APPOINT A

COMMISSION OF INQUIRY WHEN THE MATTER IS OF NATIONAL
IMPORTANCE INVOLVING TWO OR MORE STATES.

¶ 59. That the State of Riverdale had the right to appoint a commission of inquiry when the
matter is of national importance involving two or more states as [5.1] appointment of
commission of inquiry falls within the ambit of state govt. under commission of inquiry
act, 1952. Further, [5.2] the matter is of public importance and covered under public
order or Inquiry into definite matters of public importance and also [5.3] inaction by
the central govt. violates fundamental rights. [5.4] A commission of an inquiry doesn’t
lead to parallel investigation.

5.1 APPOINTMENT OF COMMISSION OF INQUIRY FALLS WITHIN THE AMBIT

OF STATE GOVT. UNDER COMMISSION OF INQUIRY ACT, 1952.

¶ 60. It is humbly submitted that, Section 3 of the Commission of Inquiry Act, 1952 71 simply
says, “The appropriate govt. may, if it is of opinion that it is necessary so to do can
appoint commission of inquiry.” Section 2(a)72 says “appropriate govt.” means- (i) the
Central Govt., in relation to a Commission appointed by it to make an inquiry into any
matter relatable to any of the entries enumerated in List I or II or III in theVII Schedule
to the Constitution; and (ii) the State Govt., in relation to a Commission appointed by
it to make an inquiry into any matter relatable to any of the entries enumerated in List
II or List III in the Seventh Schedule of the Constitution.
¶ 61. Under the Commissions of Inquiry Act, both the Centre and states can institute a probe.
Under Section 3(1)(a) of the Act73, once the Centre has appointed a commission, a state
cannot, “except with the approval of the Central Govt., appoint another Commission to
inquire into the same matter for so long as the Commission appointed by the Central
Govt. is functioning”.
¶ 62. In the case at hand, central govt. had taken no initiative to appoint commission of
inquiry in such a serious issue. Therefore, the state govt. within its power has appointed
commission of inquiry. Commission will “enquire into and report on inter alia the
reported Interception and the possession, storage and use of such information collected

71
The commission of Inquiry Act, 1952, s. 3.
72
The commission of Inquiry Act, 1952, s. 2(a).
73
The commission of Inquiry Act, 1952, s. 3(1)(a).
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 MEMORIAL ON BEHALF OF THE PETITIONERS

through such Interception, in the hands of State actors and non-State actors. Had the
Central Govt. shown greater urgency and sensitivity to take immediate steps for
appointing the Commission of Inquiry, the escalation of the crisis could have been
avoided and a better climate for a negotiated settlement would have been created. This
confusion was created by the delay in appointing a Commission of Inquiry Further, the
notification said reports that are part of a global investigation by 17 media organisations
drawing on data accessed by Paris-based Forbidden Stories are a “definite matter of
public importance”. As the central govt. failed to do so, state of Riverdale appointed
commission.

5.2 MATTER IS OF PUBLIC IMPORTANCE AND COVERED UNDER PUBLIC

ORDER OR INQUIRY INTO DEFINITE MATTERS OF PUBLIC IMPORTANCE.

¶ 63. The petitioner humbly submits that the subject matter of the inquiry essentially falls
under the State List as matter concerns public order which is part of state list under List
II in the Seventh Schedule of the Constitution. Further, Kimetsu controversy is indeed
a matter of public importance affecting public order and therefore, the state govt. had
the jurisdiction to constitute the commission to restore public confidence in the people
of Riverdale and to ensure that no unauthorised interception through a rogue foreign
spyware can occur in the state. Kimetsu snooping is very much covered under “public
order” as the term has wider connotation. Indeed, the case requires suo motu cognizance
and an investigation, as the court itself proclaimed the right to privacy a fundamental
right.
¶ 64. It is pertinent to note that in Arun Ghosh v. State of West Bengal74 (1970) 1 SCC 98,
Hidayatullah, J. had an occasion to deal with the question of "public order" and
"law and order" and said that public order is said to embrace more of the community
than law and order. Public order is the even tempo of the life of the community taking
the country as a whole or even a specified locality. Court was of the same view in K.K.
Saravana Babu v. State of Tamil Nadu & Anr75 on 22 August 2008 and said that the
contravention of law always affects order but before it can be said to
affect public order, it must affect the community or the public at large. By the virtue of
this the present allegations are liable to be rejected as the interception by a foreign

74
Arun Ghosh v. State of West Bengal, (1970) 1 SCC 98.
75
K.K. Saravana Babu v. State of Tamil Nadu & Anr., (2008) 9 SCC 89.
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 MEMORIAL ON BEHALF OF THE PETITIONERS

spyware into the phones of public at large is breach of the very basis of the constitution
and violation of right to privacy which is affecting the nation.

5.3 INACTION BY THE CENTRAL GOVT. VIOLATES FUNDAMENTAL RIGHTS.

¶ 65. Security of the State is as important to as to the Govt.. The intention of the state govt.
is to not have security details but a reply whether Kimetsu as a technology was used or
not. Snooping on eminent personalities involved “a potential threat to breach of state
secrets, jeopardising law and order situation in the state and breach of privacy of the
above class of citizens. The state of Riverdale launched the inquiry to inquire into the
definite matter of public importance. Mere silence on the fact of use of the software
results in acceptance of the fact that the software was used.
¶ 66. It was observed in the case of Ram Jethmalani v. U.O.I76 that the burden of protection
of fundamental rights is primarily the duty of the state, and hence, withholding of
information from the petitioners, or seeking to cast the relevant events and facts in a
light favourable to the state in the context of judicial proceedings, would be destructive
to the guarantee in article 3277. In a matter relating to violation of fundamental rights,
the state cannot act like an adversary, withholding of information by the state is a
violation of the freedom of speech and expression of citizens. As inaction of U.O.I
violates fundamental rights - to proper governance, as per Article 14 provides for
equality before law and equal protection of law, and Article 21 promises dignity of life
to all citizens. Having regard to the inaction of govt., its slow pace, and non-seriousness
on part of Respondents, there is a need to constitute inquiry commission by the state of
Riverdale to investigate the unauthorized surveillance on any person within or outside
Republic of Azeroth.

5.4 IN ARGUENDO, COMMISSION OF INQUIRY DOESN’T LEAD TO PARALLEL

INVESTIGATION.

¶ 67. Petitioners humbly submit that, the commission of inquiry in the case had nothing to
impede or interfere with the powers of the court by acting in good faith and ejecting
statutory functions under the Commission of Inquiry Act. The commission of inquiry
is also not competent enough to penalize anyone for the distaste of his proceedings or

76
Ram Jethmalani v. U.O.I, (2011) 8 SCC 1.
77
India Const. art. 32.
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 MEMORIAL ON BEHALF OF THE PETITIONERS

for infringing its orders. The commissions are for an interim time period and also their
sittings are not even on a regular basis. There was a famous case of Biju Patnaik (P.V.
Jagannath Rao & Ors v. State of Orissa & Ors.78) which clearly stated the fact that a
court of inquiry can be set up even if certain matters were pending in the courts.
¶ 68. Further, Earl Fitzwilliam's Wentworth Estate Co. Ltd. v. Minister of Town and Country
Planning79, the scope of the trial by courts of law and the scope of an inquiry by the
Commission are altogether different, and therefore, the inquiry by the Commission
would not amount to an usurpation of the function of courts of law. In any case, it
cannot be said that Commission would be liable for, contempt of court, if it proceeded
to inquire into matters referred to it by the Govt. notification, because, in appointing
the Commission the State Govt. was exercising a statutory power and in making the
inquiry the Commission would be performing a statutory duty. The respondents in this
case have done nothing to obstruct or interfere with the lawful powers of the court by
acting bonafide and by discharging statutory functions under the Act.
¶ 69. It is pertinent to note that, the two Judge Bench of this Court in Dr. Baliram Waman
Hiray was concerned with a question whether a Commission of Inquiry constituted
under Section 3 of the 1952 Act is a Court and stated that the mere fact that the
procedure adopted by it is of a legal character and it has the power to administer an oath
will not impart to it the status of a court.
¶ 70. In appointing a Commission of Inquiry under s 3 of the Act the Govt. of Riverdale is
exercising a statutory power and in making the inquiry contemplated by the notification,
the Commission is performing its statutory duty. We have already held that in the
appointment of the Commission of Inquiry the Govt. was acting bona fide. To constitute
contempt of court, there must be involved some "act done or writing published
calculated to bring a court or a judge of the court into contempt or to lower his authority"
or something "calculated to obstruct or interfere with the due course of justice or the
lawful process of flip, which in this case had not been done. Therefore, the institution
of Commission of Inquiry by the state of Riverdale for the purpose of investigation in
no way hinders the court’s proceedings.

78
P.V. Jagannath Rao & Ors. v. State of Orissa & Ors., 1968 SCR (3) 789.
79
Earl Fitzwilliam's Wentworth Estate Co. Ltd. v. Minister of Town & Country Planning, (1951) 2 K.B. 284.
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 MEMORIAL ON BEHALF OF THE PETITIONERS

PRAYER

Wherefore in the light of the facts of the case, issues raised, arguments advanced and authorities
cited, may the Hon’ble Court be pleased to hold, adjudge, and declare that:

❖ That the Writ Petition filed by the plaintiff is maintainable.

❖ That there has been an unauthorised surveillance.
❖ That the respondent be directed to furnish an affidavit stating the use or non-use of the
Kimetsu software.
❖ That fundamental duties should not be made enforceable, and nationalism should not
be declared as a part of basic structure of the constitution.
❖ That the state of Riverdale had the right to appoint a commission of inquiry when the
matter is of national importance involving two or more states.

All of which is most respectfully submitted

Counsel on the behalf of Petitioners

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