IN THE HON’BLE SUPREME COURT OF ANTOPIA

W.P. No. of 2020

I.A. No.

(Under Article 32 of the Constitution of Antopia,

1950)

IN THE MATTER OF:

Petitioners

v.

Defendant

AND IN THE MATTER OF:

Intervenor/Applicant

L FILED AND APPEARING ON BEHALF OF DEFENDANTS

 TABLE OF CONTENTS

INDEX OF AUTHORITIES .............................................................................................................. 2

LIST OF ABBREVIATIONS ............................................................................................................ 5

STATEMENT OF JURISDICTION ................................................................................................... 6

ISSUES RAISED .......................................................................................................................... 7

STATEMENT OF FACTS ............................................................................................................... 8

SUMMARY OF ARGUMENTS ..................................................................................................... 10

WRITTEN SUBMISSIONS .......................................................................................................... 12

THAT THE JUDICIAL ORDER PASSED BY THE HIGH COURTS IS AMENABLE TO BE

CORRECTED BY A WRIT OF CERTIORARI ................................................................................ 12

THAT THERE DOES NOT EXIST A RIGHT TO PRIVACY UNDER THE CONSTITUTIONAL

SCHEME .............................................................................................................................. 15

THAT THE STATE HAS THE POWER TO ENFORCE LINKING OF ICARDS WITH SOCIAL

MEDIA ................................................................................................................................. 18

PRAYER ................................................................................................................................... 22

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 INDEX OF AUTHORITIES

Statutes

Article 12, Constitution of Antopia .................................................................................... 12

Article 136, Constitution of Antopia .................................................................................. 14
Article 19, Constitution of Antopia .................................................................................... 12
Article 215, Constitution of Antopia .................................................................................. 15
Article 32, Constitution of Antopia .................................................................................... 12
List I, Entry 31, Sch VII, Constitution of Antopia .............................................................. 19
List II, Entry 1, Sch VII, Constitution of Antopia ............................................................... 19

Other Authorities

Constituent Assembly debates, (Vol. 7), 607-8, (Lok Sabha Secretariat 1986) ...... 16
Constituent Assembly debates, (Vol. 7), 615-16, (Lok Sabha Secretariat 1986) 16, 18
Constituent Assembly Debates, (Vol. 7), 640, (Lok Sabha Secretariat 1986) .......... 16
Constituent Assembly Debates, (Vol. 7), 652, (Lok Sabha Secretariat 1986) .......... 16
European Union General Data Protection Regulations (EU) 2016/679 of the
European Parliament and of the Council of 27 April 2016
............................................................................................................................................ 2
0
, 4th edn 2005 ....................................................................... 18

Books

, Principles of Administrative Law, 144 (5TH ED., 1973) ............... 13

Foreign Cases

Kemp v Balne, (1844) 1 Dow. & L. 885 ........................................................................... 13

Rex v Chancellor of St. Edmundabury (1948) 1 K.B. 195 ............................................. 14
Snowden v Hughes, (1944) 321 U.S. 1 ............................................................................ 13

Books

Woolf and Jowell on Judicial Review of Administrative Action (5TH ED.,

1995), Sweet and Maxwell at pp. 595-96 .................................................................. 19

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 Supreme Court
Cases
Alak Alok Srivastava v Union of India (2018) 5 SCC 651 ............................................. 18
Amirabbas v State of Madhya Bharat, (1960) 3 SCR 138 ............................................ 13
Aniyoth Kunhamina Umma v Ministry of Rehabilitation and Others, (1962) 1 SCR 505 14
Babul Parate v State of Maharashtra, AIR 1961 SC 884 ............................................... 21
Behram Khurshed Pesikaka v The State of Bombay, (1955) 1 SCR 613 .................. 17
Budhan Choudhry v The State of Bihar, (1955) Cri LJ 374 .......................................... 13
Collector of Customs v Sampathu Chetty, AIR 1963 SC 316 ...................................... 21
Express Newspapers v Union of India, AIR 1958 SC 578 ............................................ 12
Gobind v State of Madhya Pradesh, (1975) 2 SCC 148 ............................................... 17
Hamdard Dawakhana v Union of India, AIR 1960 SC 554 .......................................... 12
Harakchand v Union of India, AIR 1970 SC 1453 ........................................................... 12
His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v State of Kerala and
Anr, (1973) 4 SCC 225 .................................................................................................... 16
Ishwari Khetan Sugar Mills v State of Uttar Pradesh, AIR 200 SC 2096 .................... 20
Justice K.S. Puttaswamy v Union of India, (2017) 10 SCC 1 ....................................... 17
Keshav Singh v Union of India, AIR 1965 SC 745 .......................................................... 15
Kharak Singh v State of Uttar Pradesh, AIR 1963 SC 1295 .......................................... 17
Maneka Gandhi v Union of India (1978) 2 SCR 621 ..................................................... 19
Modern Dental College and Research Centre and Ors. v State of Madhya Pradesh,
AIR 2016 SC 2601
............................................................................................................................................ 2
0
MP Sharma v Satish Chandra, (1954) SCR 1077 ........................................................... 16
Naresh Mirajkar v State of Maharashtra, (1966) 3 SCR 744 ........................................ 13
Om Kumar v Union of India, (2001) 2 SCC 386 ............................................................. 19
Parbhani Transport Cooperative Society Ltd. v The Regional Transport
Authority Aurangabad, (1960) 3 SCR 177. .................................................................. 13
Pradeep Kumar Biswas v Indian Institute of Chemical Biology, (2002) 5 SCC 111 . 13
, (2005) 12 SCC 136 ............................................................... 18
R M Malkani v State of Maharashtra, (1973) 1 SCC 471 ............................................... 17
Radhey Shyam & Anr v Chhabi Nath & Ors, (2015) 5 SCC 423 .................................. 13
Ranjit Udeshi v State of Maharashtra, AIR 1976 SC 881 .............................................. 21

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Rex v Basudev, AIR 1950 SC 67 ....................................................................................... 21
S.R. Bommai v Union of India, AIR 1994 SC 1918 ......................................................... 19

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Shayara Bano v Union of India, (2017) 9 SCC 1 ............................................................ 20
State of A.P. & Ors. v Mcdowell & Co. & Ors, (1996) 3 SCC 790 ............................... 19
Surya Dev Rai v Ram Chander Rai & Ors, (2003) 6 SCC 675 ..................................... 15
T. C. Basappa v T. Nagappa, (1955) 1 SCR 250 ........................................................... 14
Tehseen S. Poonawalla v Union of India (2019) 15 SCC 649 ..................................... 18
U.P.S.R.T.C. v Hoti Lal, (2003) 3 SCC 605 ..................................................................... 19
Ujjam Bai v State of Uttar Pradesh & Anr., AIR 1962 SC 1621 ..................................... 13
Virendra v State of Punjab, AIR 1957 SC 896 ................................................................. 21

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 LIST OF ABBREVIATIONS

Abbreviations Full Forms

ART Article

§ Section

Pith. Doctrine of Pith and Substance

Const. Constitution of Antopia, 1950

CAD Constituent Assembly Debate

HCJ High Court of Jorhan

HCER High Court of East Rajlok

HCT High Court of Tricity

SCA Supreme Court of Antopia

Crim. Crime

Priv. Right to Privacy

ICCPR International Covenant on Civil and Political

Rights
UDHR United Nations Declaration on Human Rights

Nex. Doctrine of reasonable nexus

Leg. Doctrine of Legitimate Aim

Col. Doctrine of Colourable Legislation

Hals. Halsbury’s Laws of England

Q.B. Queen’s Bench Division

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 STATEMENT OF JURISDICTION

The Defendants have approached the Hon’ble Court Supreme Court of Antopia
under Article 32 of the Constitution;

Remedies for enforcement of rights conferred by this Part

Counsel on Behalf of Defendants

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 ISSUES RAISED

I.

WHETHER THE JUDICIAL ORDER PASSED BY THE HIGH COURTS IS AMENABLE TO BE

CORRECTED BY A WRIT OF CERTIORARI?

II.

WHETHER THERE IS ANY RIGHT TO PRIVACY UNDER THE CONSTITUTION?

III.

WHETHER STATE HAS THE POWER TO ENFORCE LINKING ICARDS WITH SOCIAL MEDIA?

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 STATEMENT OF FACTS

BACKGROUND

The Republic of Antopia, is a country in the centre of South Asia. It has one of the
largest populations in the region. Due to its size, the Republic of Antopia has a wide
variety of local languages and cultures practiced by its citizens. It was declared
independent from the British Empire in 1960 and quickly developed both
economically and politically, soon becoming an important international trading hub
and regional power. Despite the same Antopia has huge economic inequality
prevalent.

RULING ON CONSTITUTIONALITY OF ICARDS

In the year 2016, the iCard (Targeted Delivery of Financial and other Subsidies,
Benefits and Services) Act, 2016, was introduced by the Antopian People’s Party
which was passed and enacted by the legislature. The Act called for a single
identity card to be created which contained the biometric data of all its citizens for
easy tracking and identification of individuals. The APP Government wanted the
iCard to be enforced and linked to all aspects of its citizen's lives allowing for a
database of the citizens financial, medical, and personal information, for the
purposes of granting or transferring different benefits, whenever required. Multiple
civil society organizations, however, opposed this move and challenged its validity
on the basis that it infringes the right to privacy of the citizens of Antopia. While the
Supreme Court of Antopia (SCA) ultimately upheld the iCard Act of 2016 as
constitutional, it also upheld the Right to Privacy of the citizens and directed that the
iCard could not be forcefully linked to any private information or used for any case
apart from delivery of Government subsidies.

SPREAD OF FAKE NEWS AND RISE IN CRIME

The advent of free high-speed internet service allowed more and more people to
access the internet and online communication and networking services including
EyeFace, MemoGram, TwitPeep and TextUp. However, as access to internet
became more common, the police in different states of the Republic of Antopia
started coming across numerous cases of people being lynched or assaulted due
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to misinformation being spread via social media or communication platforms.

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 PROCEEDINGS BEFORE DIFFERENT HIGH COURTS

Due to widespread rise in the crime rate the civil society group called Rights &
Justice filed a case before the High Court of Tricity, the largest state of Antopia,
demanding that all social media and instant communication platforms, including
but not limited to EyeFace, TwitPeep, and TextUp be tracked and monitored.
Furthermore, an NGO, Save Children filed another case before the High Court of
Joran and contended that both EyeFace and TextUp are heavily used for child
pornography and sex trafficking, and urged that a direction may be given to the
State to trace and monitor all internet platforms and a stringent action be taken
against the violators. An individual Mr. Chaurasia also filed a case before the High
Court of East Rajlok and requested for a writ of Mandamus to be issued to direct
the State Government to order all citizens to link their social media accounts to
iCards.

HIGH COURT’S ORDER AND DIRECTIONS

The High Courts issued, preliminary directions to the State and Central Government
to regulate and monitor the social media channels and also to EyeFace, TextUp,
and TwitPeep to immediately delete the accounts of the individuals involved in
such acts.

INCEPTION OF MATTER BEFORE THE SUPREME COURT

Against the order, the EyeFace, TextUp, and TwitPeep along with some other social
media companies approached the Supreme Court to question the legality of the
order on the premises of guarantee of freedom of expression and contended that
writ of certiorari may be issued by the Supreme Court against the order of the High
Courts. Furthermore, fearing that the High Courts may direct the state and central
government to take necessary steps to link iCards with social media accounts, an
NGO who had earlier opposed the forceful imposition of iCards on the citizens,
intervened and opposed what it claimed was a veiled attack on the privacy of
individuals on social media.

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 SUMMARY OF ARGUMENTS

I. THAT THE JUDICIAL ORDER PASSED BY THE HIGH COURT IS NOT AMENABLE TO BE

CORRECTED BY A WRIT OF CERTIORARI

It is submitted that the judicial order, passed by the High courts does not suffer
from any infirmity that resulted in a breach of the guarantees enshrined under Part
III of the Constitution. It is further contended, in light of the established precedents,
arguendo an incidental violation had occurred, the petitioners cannot take recourse
to Art 32 since fundamental rights cannot be enforced against judiciary as it does
not fall under the definition of “State” in Art 12. The arguments concerning this issue
shall be multi-pronged, that there has been no violation of fundamental right
guaranteed under Art 19 and the preliminary directions fall within the reasonable
restrictions applicable to Art 19 (1). that the Judicature does not fall within
the definition of State under Art. 12. that the pre- requisites to issue a writ of
certiorari do not exist.

II. THAT THERE DOES NOT EXIST A RIGHT TO PRIVACY UNDER THE CONSTITUTION

It is submitted that the constitutional scheme does not provide for a right to privacy,
and reading the right into one of the other fundamental rights would essentially
entail encroaching upon the power and domain of the legislature which is forbidden
under the constitutional scheme. The arguments surrounding this issue shall be
multi-pronged, that there exists no constitutional backing for privacy to be
present in the constitution, that the scope and concept of privacy does
not have any specific definition and the expression is inchoate, that the
effect of reading privacy as a part of fundamental right would essentially pave the
way for its non-waiver in which case the balance between compelling state interest
and privacy cannot be maintained.

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III. THAT THE STATE DOES NOT HAVE THE POWER TO ENFORCE LINKING OF ICARDS WITH

SOCIAL MEDIA ACCOUNTS

It is submitted, that the State has the power to enforce linking of iCards with social
media accounts. because as per Schedule VII of the Constitution, the power
to regulate all forms of wireless communication and maintenance of “Public Order”
has been bestowed upon the Union and State Legislatures respectively.
there are existing surveillance laws that empowers the State to monitor phone calls
and internet. neither Right to Privacy nor Right to Freedom of Speech and
Expression are absolute rights and can be subjected to reasonable restrictions via
procedure established by law. there exists a legitimate aim to secure
public interest through Aadhar-Social Media linkage. the means which are
adopted by the legislature are proportional to the object sought to be fulfilled by the
law.

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 WRITTEN SUBMISSIONS

I. THAT THE JUDICIAL ORDER PASSED BY THE HIGH COURTS IS AMENABLE TO BE

CORRECTED BY A WRIT OF CERTIORARI

¶1. It is humbly submitted that the judicial order, passed by the High courts does
not suffer from any infirmity that resulted in a breach of the guarantees enshrined
under Part III of the Constitution. It is further contended, in light of the established
precedents, arguendo an incidental violation had occurred, the petitioners cannot
take recourse to Art 321 since fundamental rights cannot be enforced against
judiciary as it does not fall under the definition of “State” in Art 12.2 The arguments
concerning this issue shall be multi-pronged, that there has been no violation
of fundamental right guaranteed under Art 193 and the preliminary directions fall
within the reasonable restrictions applicable to Art 19 (1). that the
Judicature does not fall within the definition of State under Art. 12. that the
pre-requisites to issue a writ of certiorari do not exist.

[A]. THAT THE PRELIMINARY DIRECTIONS DO NOT VIOLATE THE FREEDOM TO SPEECH AND

EXPRESSION GUARANTEED UNDER ART 19(1)(A)

¶2. It is submitted that the test for ascertaining the reasonableness of the restriction
of the rights in Art 19 is of great importance.4 No abstract standard reasonableness
can be laid down as applicable to all cases.5 The nature of the right alleged to have
been infringed, the underlying purpose of the restrictions imposed, the extent and
the urgency of the evil sought to be remedied thereby, the disproportion of the
imposition and the prevailing conditions at the time, should all enter into the judicial
verdict.6 In the present case, the consistently rising problems of mob lynching and
cyber-crimes through the unregulated spread of fake news on social media forms
an integral part of ‘public interest.’ And as clearly mentioned under Art 19(2),
maintenance of public order is a well enough reasonable ground to impose
restrictions on Freedom of Speech and Expression enshrined in Art 19. Hence, it is
humbly submitted that the preliminary directions issued by the High Courts are not
violative of Art 19.

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1 Article 32, Constitution of Antopia.
2 Article 12, Constitution of Antopia.
3 Article 19, Constitution of Antopia.
4 Hamdard Dawakhana v Union of India, AIR 1960 SC

554. 5 Express Newspapers v Union of India, AIR

1958 SC 578. 6 Harakchand v Union of India, AIR
1970 SC 1453.

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[B]. THAT THE JUDICIARY IS EXEMPTED FROM THE SCOPE OF ART 12 AND PROVISIONS UNDER
PART III CANNOT BE ENFORCED AGAINST IT

¶3. It is submitted that under Art. 12, the “state” does not include the contention is
fortified by observing the specific reference to the Government and Parliament of
Antopia and the Government and the Legislature of each of the States which in turn
proves the fact that the judicature is intended to be excluded from the said
definition.7 It is further argued it is inappropriate to assume that a judicial decision
pronounced by a judge of competent jurisdiction in or in relation to a matter
brought before him for adjudication can affect the fundamental rights of the
citizens.8 Thus, the discretion exercised by judicial officers cannot be held to be
arbitrary.9

¶4. It is noteworthy to mention that the Hon’ble Supreme Court in a critical decision
in the case of speaking through Shah J held that, “…

.
Furthermore, in cases like and
this court has time and again reaffirmed the view and held that

¶5. The contention raised by the defendants also find firm support in the form of
precedents14 established by the Hon’ble Court. It is important to mention two
important cases in the form of and
wherein it was categorically held that the proper
remedy to challenge a judicial order would be an appeal or revision as maybe
provided by law.

7 Naresh Mirajkar v State of Maharashtra, (1966) 3 SCR 744.

8 Kemp v Balne, (1844) 1 Dow. & L. 885.
9 Snowden v Hughes, (1944) 321 U.S. 1.
10 Amirabbas v State of Madhya Bharat, (1960) 3 SCR 138.
11 Ujjam Bai v State of Uttar Pradesh & Anr., AIR 1962 SC 1621.

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12 Pradeep Kumar Biswas v Indian Institute of Chemical Biology, (2002) 5 SCC 111.
13 , Principles of Administrative Law, 144 (5TH ED., 1973).
14 Radhey Shyam & Anr v Chhabi Nath & Ors, (2015) 5 SCC 423.
15 Budhan Choudhry v The State of Bihar, (1955) Cri LJ 374.
16 Parbhani Transport Cooperative Society Ltd. v The Regional Transport Authority Aurangabad, (1960)

3 SCR 177.

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¶6. In the instant case, the preliminary directions issued by the High Courts were
intended to stop the abuse of social media for a greater public good and to
prevent other social evils.17 Juxtaposition of the law laid down by the Hon’ble Court
on the factual matrix of the present case clearly reveals that the petitioners
cannot take recourse of Art 32 in order to allege violation of Art 19(1)(a) for two
primary reasons, that the fundamental rights cannot be enforced against the
judiciary because it does not fall within the ambit of “state” under Art 12 and
that there exits proper remedy, in the form of Art 13618 (Special leave
petition) and appeal, in order to challenge the validity of directions. Moreover, there
exists no precedent which would suggest that a judicial order of the kind with which
this Hon’ble court is concerned in the present proceedings has ever been
attempted to be challenged or has been set aside under Art 32 of the Constitution.

[C]. THAT THERE DOES NOT EXIST CIRCUMSTANCES WHICH MERIT ISSUANCE OF A WRIT OF

CERTIORARI

¶7. It is submitted that the writ of certiorari may only be issued by a superior court
to an inferior court in the event of existence of two essential conditions, that the
court has acted without or in excess of the jurisdiction. that the court has
not observed law in the course of its exercise.19 For the first time, in the case of
it was held that where a judicial authority which makes an order in
exercise of its proper jurisdiction in pursuance of a provision of law, an error
committed by that authority can only be impeached in an appeal against such
order20. It is contended that the present case is squarely covered by a 9-judge
bench decision in where similar petition was filed the court held that if the
judicial order binds strangers, the strangers may challenge the order by taking
appropriate proceedings in appeal under Art. 136.

¶8. It must be noted that the Constitution does not define the writ of Certiorari and
thus there exists a need to look at the origination of the word “Certiorari” which is
embedded in the English Common law system. One of the fundamental principles
concerning the issue of writ is that it issues to an inferior court. In the celebrated
judgement of the contours of an inferior court vis a vis a writ of certiorari
was discussed at great length; the reason for

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17 ¶4, Moot Proposition.
18 Article 136, Constitution of Antopia.
19 T. C. Basappa v T. Nagappa, (1955) 1 SCR 250.
20 Aniyoth Kunhamina Umma v Ministry of Rehabilitation and Others, (1962) 1 SCR 505.
21 Rex v Chancellor of St. Edmundabury (1948) 1 K.B. 195.

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inception of writ of certiorari was to enable the King who was the court of universal
jurisdiction to keep a check on the jurisdiction exercised by the courts set up by him
as these courts always defined their own jurisdiction. Juxtaposition of the law laid
down above on the constitutional scheme of Antopia reveals that in Antopia there is
no court of universal jurisdiction as the limits of jurisdiction of both the Supreme
Court and the High court are prescribed under the constitution.

¶9. It is contended that the High Court cannot be construed as an inferior court in
order for a writ of certiorari to lie. The argument which cannot be accepted and falls
flat on its face is with respect to the supervisory jurisdiction of this Hon’ble Court; it
is submitted that this Hon’ble Court does not have any supervisory jurisdiction over
any court and this position does not seem viable even in the context of Antopian
Constitutional scheme where the Supreme Court and High Courts are granted with
co-ordinate jurisdiction in matters of writ.22 It is submitted that the High Court is
indeed a superior Court of Record as enunciated under Art 21523 of the Constitution
and is entitled to consider any questions of their jurisdiction raised before them. In
the case of the Hon’ble court affirmed the above raised contention
and held,
Thus, it is submitted that the order of
the High Courts is not amenable to be corrected by a writ of Certiorari and the
appropriate remedy lies in the form of Art 136.

II. THAT THERE DOES NOT EXIST A RIGHT TO PRIVACY UNDER THE CONSTITUTIONAL
SCHEME

¶10. It is humbly submitted that the constitutional scheme does not provide for a
right to privacy, and reading the right into one of the other fundamental rights would
essentially entail encroaching upon the power and domain of the legislature which
is forbidden under the constitutional scheme. The arguments surrounding this issue
shall be multi-pronged, that there exists no constitutional backing for privacy
to be present in the constitution, that the scope and concept of privacy
does not have any specific definition and the expression is inchoate, that the
effect of reading privacy as a part of fundamental right would essentially pave the
way for its non-waiver in which case the balance between compelling state interest
and privacy cannot be maintained.

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22 Surya Dev Rai v Ram Chander Rai & Ors, (2003) 6 SCC 675.
23 Article 215, Constitution of Antopia.
24 Keshav Singh v Union of India, AIR 1965 SC 745.

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[A]. THAT THE RIGHT TO PRIVACY DOES NOT EXIST IN THE CONSTITUTION

¶11. It is submitted that the term “privacy” finds no mention in the entire
constitutional framework and thus cannot be held to be a part of the constitution.
There exists a firm reasoning for such an omission in the form of Constituent
Assembly debates, where in the constitutional forefathers, after lengthy debates
and discussions, explicitly rejected the notion of privacy being a fundamental
right.25 It must be noted that K M Munshi and Dr. Ambedkar’s drafts on the
fundamental rights and duties of citizens included a provision for secrecy of
correspondence26, after much deliberation and staunch opposition from Sir Alladi
Krishnaswamy Iyer and B N Rau the provision was not included in the final draft on
the ground that such a provision may lead to every private correspondence
becoming a state paper.27 Furthermore, it was also observed that such a right
would essentially abrogate some of the provisions of Code of Criminal Procedure
Code.28

¶12. It is submitted that the majority in the case of affirming the same
contention held that, …

¶13. It is contended that the endeavour of the judiciary to read privacy into Part III of
the constitution would essentially result in judicial discharge of law-making
functions, which are squarely reserved for the legislature. Furthermore, such judicial
adventurism is bound to fiddle with the basic structure of the constitution30 as the
concept of separation of powers has been included in the basic structure and
marks the core value of the Antopian polity.

[B]. THAT THE SCOPE OF PRIVACY IS VAGUE AND CANNOT BE CAPTURED IN TOTALITY

¶14. It is submitted that the privacy is inherently vague and subjective concept, the
contours of which cannot therefore be accorded the status of a fundamental
right. Furthermore, it is

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25 Constituent Assembly debates, (Vol. 7), 607-8, (Lok Sabha Secretariat 1986).
26 Constituent Assembly debates, (Vol. 7), 615-16, (Lok Sabha Secretariat 1986).
27 Constituent Assembly Debates, (Vol. 7), 640, (Lok Sabha Secretariat 1986).
28 Constituent Assembly Debates, (Vol. 7), 652, (Lok Sabha Secretariat 1986).
29 MP Sharma v Satish Chandra, (1954) SCR 1077.
30 His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v State of Kerala and Anr, (1973) 4 SCC 225.

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contended that this Hon’ble court cannot recognise a juristic concept which is so
nebulous and uncertain that it fails to withstand constitutional scrutiny.31

¶15. The issue before this Hon’ble court has been previously dealt on a number of
occasions in cases like and wherein it was held that
the privacy is not guaranteed under the constitution and therefore in an occasion
where it is invaded there can be no infringement of a fundamental right. In another
landmark judgement the court held that,

[C]. THAT RECOGNISING PRIVACY AS A FUNDAMENTAL RIGHT WOULD HINDER IN EFFICIENT

DISCHARGE OF EXECUTIVE FUNCTIONS

¶16. It is submitted that privacy cannot be held to be a part of fundamental rights

because they are immune from any waivers, consequently this would lead to a
scenario where there exist several complications with regard to the functioning of
the state. Furthermore, the state would be virtually barred even from contractually
collecting any information from individuals in India and this would hamper the
functioning of the state as it is required to collect certain information of citizens
while exercising its required functions. It is also argued that reading privacy to be a
part of Part III would necessarily put it at logger heads with statues and executive
functions like (a) Taxation laws requiring the furnishing of information;
(b) In relation to a census; (c) Details and documents required to be furnished for
the purpose of obtaining a passport etc.

¶17. The said contention also finds strong support in the landmark judgement of
wherein it was held that Part III of the Constitution is a
part of the wider notion of securing the vision of justice of and, as a matter of
doctrine, the rights as a matter of guarantee cannot be waived.

31 Justice K.S. Puttaswamy v Union of India, (2017) 10

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SCC 1. 32 Kharak Singh v State of Uttar Pradesh, AIR
1963 SC 1295. 33 R M Malkani v State of Maharashtra,
(1973) 1 SCC 471.
34 Gobind v State of Madhya Pradesh, (1975) 2 SCC 148.
35 Behram Khurshed Pesikaka v The State of Bombay, (1955) 1 SCR 613.

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 III. THAT THE STATE HAS THE POWER TO ENFORCE LINKING OF ICARDS WITH

SOCIAL MEDIA

It is submitted that the State has the power to enforce linking of iCards with social
media accounts. because Schedule VII of the Constitution grants the Union
and the State, the power to regulate all forms of wireless communication and
maintenance of “Public Order”. neither Right to Privacy nor Right to
Freedom of Speech and Expression are absolute rights and can be subjected to
reasonable restrictions. there exists a legitimate state aim to secure public
interest through Aadhar-Social Media linkage. the means which are adopted
by the legislature are proportional to the object sought to be fulfilled by the law.

[A]. SCHEDULE VII GRANTS THE POWER TO SAFEGUARD PUBLIC INTERESTS, REGULATE

WIRELESS COMMUNICATIONS AND ACTIVITIES TO THE LEGISLATURE

defines ‘public interest’ as, “Public Interest something in

which the public, or some interest by which their legal rights or liabilities are
affected.” It does not mean anything the particular localities, but the interest shared
by the nation.37 It is submitted that the Hon’ble court in the case of while
dealing with issues of sexual violence and child pornography, held them an integral
part of overrising public interest and issued special directions to the state
government to tackle the issue. Further, similar guidelines have also been recently
issued by the court in cases of mob lynching39 and fake news40

In the case at hand, the High courts have taken serious cognizance of frequent
incidents of heinous crimes by the help of social media apps and accordingly,
have asked the State to monitor all the social media accounts.41 It is humbly
submitted that in order to obey the High Court’s guidelines and to fulfil its
fundamental duty, State’s action to link the users iCards with the social media
account is strictly within the confines of permissible legislative limits of the State.

It is submitted that as per the provisions of Schedule VII of the Constitution, the
Union Legislature is endowed with the power to regulate the laws on subjects
pertaining to wireless,

36
37 , 4th edn 2005.
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38 , (2005) 12 SCC 136.
39 Tehseen S. Poonawalla v Union of India (2019) 15 SCC 649.
40 Alak Alok Srivastava v Union of India (2018) 5 SCC 651.
41 ¶4, Moot Proposition.

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broadcasting and other similar forms of communications.42 On the other hand,
State Legislature has been endowed with a similar power in regards to
safeguarding public order.43 In the landmark judgment of
the Hon’ble court firmly observed that the powers of Union and State with regards
to the matters mentioned in their respective lists, is presumed to be inviolable.
Moreover, the Central Government has issued several rules and regulations
regarding the safe usage of social media.45

[B]. STATE ACTION TO LINK ICARD-S OCIAL MEDIA DOES NOT VIOLATE THE RIGHT TO PRIVACY

UNDER ART. 21

It is submitted that the Hon’ble Supreme Court in

though upheld right to privacy as a fundamental right but also observed
that it cannot be construed as an absolute right and must bow down to compelling
public interest. Having established that repeated incidents of mob lynching, fake
news and child pornography constitute overrising public interest, it is our
submission that the linkage does not violate Art
21 and clearly satisfies the proportionality test proposed in

It is submitted that while the fundamental rights guaranteed to the citizens under
Part III are inviolable, there still are reasonable restrictions that the State may
exercise in order to balance them with the national public interest.48 For any
restriction imposed on Article 21, the test of proportionality is a must.49 The
principle of proportionality evaluates two aspects of a decision. whether the
relative merits of differing objectives or interests were appropriately weighed or
"fairly balanced"?50 whether the measure in question was in furtherance
of larger public interest.51
In the present case, the state action to link iCard and social media comes as a
solution to curb rising violent issues of national interest and public order. It is
submitted that the linkage satisfies the proportionality test on the following grounds:

42 List I, Entry 31, Sch VII, Constitution of Antopia.

43 List II, Entry 1, Sch VII, Constitution of Antopia.
44 State of A.P. & Ors. v Mcdowell & Co. & Ors, (1996) 3 SCC 790.
45 Accessed 19th May, 2020,

%20_2_.pdf.
46 Justice K.S. Puttaswamy v Union of India, (2017) 10 SCC 1.

̴
47 Maneka Gandhi v Union of India (1978) 2 SCR
621. 48 S.R. Bommai v Union of India, AIR 1994
SC 1918. 49 U.P.S.R.T.C. v Hoti Lal, (2003) 3 SCC
605.
50 Om Kumar v Union of India, (2001) 2 SCC 386.
51 Woolf and Jowell on Judicial Review of Administrative Action (5TH ED., 1995), Sweet
and Maxwell at pp. 595-96.

̴
 There exists a legitimate state aim to cater the issues of public order and
make the regulation of iCard-Social Media linkage a
. The creation of such a
regime requires a careful and sensitive balance between individual interests
and legitimate concerns of the state.
Formulating laws on national issues like cyber-crime and child
pornography are matters of policy to be considered by the Union
government while designing a carefully structured regime for the
protection of the data circulation of internet.52
The mandatory linking of social media with iCards is not disproportionate
because in order to regulate the incidents of the spread of fake news, mob
lynching and communal violence, it is pertinent to keep a constant
monitoring across the entire social media community. A comprehensive
framework focusing limitation of data retention pertaining to a particular
geographical zone and/or to a circle of particular persons likely to be
involved is not possible as the distinction between the civilians and
perpetrators on social media is negligible.53
Though informational privacy is an important facet of Art 21, it still faces a
reasonable restriction in matters of public order.54 The individual interest
gives way to a larger public interest and a statutory provision furthering state
interest will take precedence over fundamental rights.55The Court must not
interfere with the
Legislature’s wisdom unless the statutory measure is shockingly
disproportionate to the object sought to be achieved.56

[C]. STATE ACTION DOES NOT VIOLATE ART. 19(1)(A) OF THE CONSTITUTION

It is submitted that the state action to link iCards does not Art 19 for the following
prominent reasons. the right to freedom of freedom and expression under
Art 19 is not absolute and subject to reasonable restrictions. the state
action to monitor the issues of cyber-crime by linking iCards-Social Media clearly
satisfies the ‘test of reasonable restriction’

̴
52 , BN Saikrishna
Committee Report, 2018 available at
https://meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf.
53 European Union General Data Protection Regulations (EU) 2016/679 of the European Parliament

and of the Council of 27 April 2016.

54 Modern Dental College and Research Centre and Ors. v State of Madhya Pradesh, AIR 2016 SC 2601.
55 Shayara Bano v Union of India, (2017) 9 SCC 1.
56 Ishwari Khetan Sugar Mills v State of Uttar Pradesh, AIR 200 SC 2096.

̴
It is submitted that the fundamental rights guaranteed under Art 19(1) are not
absolute.57 They are subject to restrictions placed in the subsequent clauses of Art
19.58 The Hon’ble Supreme Court in the case of held that the
reasonableness of the restraint imposed on Art 19 would have to be judged by the
magnitude of the evil which it is the purpose of the restraint to curb or to eliminate.
In the case at hand, numerous incidents of mob lynching and child pornography
are being circulated on the social media which has suddenly given rise to the rate
of cyber-crimes and spread of fake news.60 Hence, the State is empowered under
Art 19(2) to impose reasonable restrictions to regulate the freedom of speech in
furtherance of public order.

It is submitted that the expression “in the interests of” in clauses (2) to (6) of Art 19
makes the ambit of state protection to maintain public order becomes very wide.61
A restriction can clearly be said to be in the interest of public order if the connection
between the restriction and the public order as direct and proximate.62 In the
present case, the state action satisfies the test of reasonability on the following
grounds:

The connection between the restriction caused by the state and public
order is direct and proximate. This becomes clear as to contain the rising
cases of crimes due to spread of fake news would only be possible if the
State is entitled to monitor the account of the citizens.
The linkage satisfies the as the least intrusive
way to curb the crimes is to monitor the social media for objectionable
content and hence, mandate the citizens to link their iCards to the accounts.
The linkage satisfies the as the government is
fully empowered to lay down procedures to maintain public order and is
even empowered to abridge the fundamental rights in furtherance of the
same.

̴
57 Rex v Basudev, AIR 1950 SC 67.
58 Babul Parate v State of Maharashtra, AIR 1961 SC 884.
59 Collector of Customs v Sampathu Chetty, AIR 1963 SC 316.
60 ¶2, Moot Proposition.
61 Virendra v State of Punjab, AIR 1957 SC 896.
62 Ranjit Udeshi v State of Maharashtra, AIR 1976 SC 881.

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 PRAYER

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

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

All of which is humbly

prayed, Counsel for the
Defendants.