MOOT MEMORIAL ON BEHALF OF RESPONDENT

SYMBIOSIS LAW SCHOOL, PUNE

MOOT COURT – 03

IN THE HON’BLE SUPREME COURT OF INDIANA

UNDER ARTICLE 32 OF THE CONSTITUTION OF YOPRADESH
PUBLIC INTEREST LITIGATION
W.P.(C) No. ____/2023

IN THE MATTER OF
IQBAL KAZMI .... (PETITIONER)
VERSUS

UNION OF YOPRADESH AND THE MITTAL GROUP … (RESPONDENT)

WITH
SLP (CRI.) No._____/2023
(Arising from the final order dated xx.xx.2022 passed by the High Court of
Riverdale in Cr. Appl.xxx)
DEVI PRASAD .... (PETITIONER)
VERSUS

THE STATE OF RIVERDALE … (RESPONDENT)

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUDGES OF THE HON’BLE SUPREME COURT OF
YOPRADESH

MEMORIAL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

Index of authorities ……………………………………………………………………….3

Index of Abbreviations ……………………………………………………………………. 4

Statement of Jurisdiction……………………………………………………………………5

Statement of Facts……………………………………………………………………………...6

Issues Presented………………………………………………………………………………7

Arguments Advanced ………………………………………………………………………..8

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INDEX OF AUTHORITIES

Cases

A.K. Gopalan v. State of Madras AIR (1950)SC 27. _______________________________ 10

K.S Puttuswamy v. Union Of India (2019) 1 SCC 1. _______________________________ 11

Kedarnath Singh v. State of Bihar AIR (1962) SC 955 _____________________________ 10

Maharashtra v. Jaysingh Wadhu Singh (1976) 3 SCC ______________________________ 18

N Sri Rama Reddy etc v. Shri W Giri (1970) 2 SCC 340 ___________________________ 16

Pathumma v. State of Kerala (1978) INSC 7. _____________________________________ 10

RM Malkani v. State of Maharashtra, (1973) 1 SCC 47 _____________________________ 15

Romesh Thappar vs The State Of Madras AIR (1950) SC 124. ________________________ 9

S. Pratap Singh v. The State of Punjab (1970) 2 SCC 340 ___________________________ 16

State v. Mohd Afzal 2003 (3) JCC 1669. ________________________________________ 18

Sukhdev v. Bhagatram AIR (1975) SC 1331 _____________________________________ 13

University of Madras v. Shantabai AIR (1954) Mad 6 ______________________________ 12

Statutes

Yopradesh Evidence Act 1872. ________________________________________________ 16

Yopradesh Constitution, 1950 _________________________________________________ 12

Yopradesh Information Technology Act __________________________________________ 9

Yopradesh Telegraph Act, 1885. ________________________________________________ 8

Books Referred

Khosla, M., 2012. The Indian Constitution. Oxford University Press

Choudhry, S., Khosla, M. and Mehta, P.B. eds., 2016. The Oxford handbook of the Indian
constitution. Oxford University Press

Bhargava, R., 2009. Politics and ethics of the Indian constitution.

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INDEX OF ABBREVIATIONS

ABBREVIATION FULL FORM

& And

AIR All India Reporter

ANR Another

Hon’ble Honourable

SC Supreme Court

SCC Supreme Court Cases

UOI Union Of Indiana

v. Versus

Supp. Supplementary

S.C.R. Supreme Court Reports

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Indiana has been approached to hear the present matter under

Article 32 of the Indiana Constitution.

“Article 32 - Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the

enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs,

including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant

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 Supreme Court by clauses (1) and

(2), Parliament may by law empower any other court to exercise within the local limits

of its jurisdiction ill or any of the powers exercisable by the Supreme Court under

clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise

provided for by this Constitution.”

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STATEMENT OF FACTS

Yopradesh, a federal republic, upholds democratic principles and fundamental rights, including
the right to privacy. However, allegations of privacy breaches and surveillance have arisen due
to the government's adoption of advanced technology in governance. Prime Minister Samrat
Moni's government has aimed to digitize government processes and partner with tech giants
like Google and IBM, but concerns over privacy violations and accusations of suppressing
dissent persist, with critics claiming the government diverts attention by labelling dissent as
threats to national security.

The use of the Citadel spyware, allegedly by the Yopradeshian government, to target
journalists, activists, and government officials, has sparked controversy. A Right to Information
(RTI) application filed by journalist Iqbal Kazmi to inquire about the government's
involvement in the spyware was met with a denial from the Ministry of Home Affairs.

Activist Devi Prasad faced arrest and subsequent conviction on charges of sedition and
instigating communal violence, with his supporters criticizing the use of surveillance-obtained
evidence in his case.

A global report in August 2022 revealed that Citadel had been used to spy on numerous
individuals, including prominent journalists and activists in Yopradesh, leading to public
outrage.

In response to these developments, journalist Iqbal Kazmi filed a writ petition before the
Supreme Court of Yopradesh challenging the constitutionality of surveillance activities
conducted under existing laws. The petition argued that these laws lacked judicial oversight
and were overly broad. Mittal Group was also made a party to the case, accused of being
complicit in violating citizens' privacy.

Mittal Group defended itself, stating that it could neither confirm nor deny providing the
Citadel spyware to the Yopradesh government. It emphasized that it merely licensed the
software to government agencies.

Meanwhile, Devi Prasad filed a criminal appeal against his conviction, alleging that the
evidence obtained through surveillance was unconstitutional. The High Court of Riverdale
upheld the conviction, leading to a Special Leave Petition filed by Devi Prasad before the
Supreme Court.

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The Supreme Court decided to hear both petitions together, considering their shared factual
context. The State of Riverdale argued that even if evidence was collected illegally, it should
be admissible if relevant to criminal prosecutions, citing the importance of "public safety."

ISSUES PRESENTED

ISSUE 1: WHETHER THE SURVEILLANCE ACTIVITIES THAT ARE CARRIED OUT BY THE

GOVERNMENT OF YOPRADESH UNDER SECTION 5(2) OF THE YOPRADESH TELEGRAPH ACT,

1885, THE TELEGRAPH RULES AND SECTION 69 OF THE YOPRADESH INFORMATION
TECHNOLOGY (AMENDMENT) ACT, 2001 ARE CONSTITUTIONAL?

ISSUE 2: WHETHER THE PETITIONER CAN PROCEED AGAINST THE MITTAL GROUP FOR THE
INFRINGEMENT OF THE RIGHT TO PRIVACY UNDER ARTICLE 21 OF THE YOPRADESH
CONSTITUTION

ISSUE 3: WHETHER THE EVIDENCE GATHERED AGAINST DEVI PRASAD THROUGH

SURVEILLANCE IS ADMISSIBLE UNDER THE LAW?

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ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE SURVEILLANCE ACTIVITIES THAT ARE CARRIED OUT BY THE

GOVERNMENT OF YOPRADESH UNDER SECTION 5(2) OF THE YOPRADESH TELEGRAPH ACT,

1885, THE TELEGRAPH RULES AND SECTION 69 OF THE YOPRADESH INFORMATION
TECHNOLOGY (AMENDMENT) ACT, 2001 ARE CONSTITUTIONAL

It is the contention of the respondent’s surveillance activities that are carried out by the Government of

Yopradesh under Section 5(2) of the Yopradesh Telegraph Act, 1885, the Telegraph rules and Section

69 of the Yopradesh Information Technology (Amendment) Act, 2001 are constitutional.

The legislation through, Section 5(2) of the Yopradesh Telegraph Act1, 1885 and Section 69 of the

YTI Act (2001), grants the Central Government the exclusive power to “intercept, monitor or decrypt

information on any computer resource- “if satisfied that it is necessary or expedient so to do, in the

interest of the sovereignty or integrity of India, defence of India, security of the State, friendly

relations with foreign States or public order or for preventing incitement to the commission of any

cognizable offence relating to above or for investigation of any offence2”

The legislative intent behind enacting these provisions was to provide a free hand to the Central

Government for intervening in interest of public safety, security or for reasons the State is satisfied to

do so. In the present case, Mr. Devi Prasad was arrested on 10th of September of 2021 after the Riverdale

Police raided his residence. The charges levied against him were that of sedition, criminal conspiracy

and instigating communal violence.

The respondent contends that Mr. Devi Kumar is a repeating offender who was previously arrested for

committing sedition and for having connections with some banned organisations. Therefore, the State

had a legitimate interest in monitoring the online activities of Mr. Devi Prasad. Moreover, the power

under Section 69 of the IT Act 2001 in the interest of national security.

1
Section 5(2), Yopradesh Telegraph Act, 1885.
2
Section 69, Yopradesh Information Technology Act Act 2001.

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“Public safety” and “National Security” are two most crucial aspects to understand in this case. In

Romesh Thappar vs The State Of Madras the Hon’ble Supreme Court held that “…The meaning of the

expression “national security and public safety”3 must, however, vary according to the context.” The

context in this case being preventing a repeated offender from committing the offence of sedition and

harming the integrity of Yopradesh through his acts.

REASONABLE RESTRICTION- UNDER Article 19(2)

Our constitution bestows upon its citizen certain fundamental rights through Article 19. These

fundamental rights are not of absolute nature and are always subject to “reasonable restrictions”. The

term “reasonable" refers to something that aligns with logic and reason rather than being arbitrary. It

involves thoughtful and intelligent consideration guided by reason. When we mention a "reasonable

restriction," it means that any limitation placed on an individual's right should not be arbitrary or overly

excessive, but instead should be in line with what is necessary and justified.

In Pathumma v. State of Kerala (1978) it was held that the reasonableness of a restriction has to be

determined in an objective manner and the standpoint of the interest of the general public and not from

the point of view of the person upon whom the restrictions are imposed. In other words, a law cannot

be said to be unreasonable merely because, in a given case, it operates harshly, even of the persons

affected by petty traders. Therefore, any restriction or obstruction imposed on the citizens must be

viewed from objective lens, keeping in mind the “interest of general public4”

In A.K. Gopalan v. State of Madras, (1956), the Supreme Court has that the word, “general

public” refers to the rest of the citizens with reference to free citizen who claims the right in

question5. It does not refer to any group or class of people as distinguished from the people

generally. Considering the local impact of Mr. Devi Prasad and his involvement in the riots of

3
Romesh Thappar vs The State Of Madras AIR (1950) SC 124.
4
Pathumma v. State of Kerala (1978) INSC 7.
5
A.K. Gopalan v. State of Madras AIR (1950)SC 27.

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Riverdale, his online activities does have the capability of disrupting public safety and national

security.

Furthermore, in Kedarnath Singh v. State of Bihar6 the Hon’ble Supreme Court held that held

that a speech falling under sedition will disrupt and endangers the authority if the government

and resultantly affect the sovereignty of the country. It is therefore the duty of the government

to make sure that they are restricted so as to prevent a situation of anarchy.

Reasonable restriction to Right to Privacy under Article 21

The Constitution of India through Article 21 grants the right to life and personal liberty, which has now

been interpreted to mean and include Right to Privacy, after the landmark judgement of K.S Puttuswamy

v. Union Of India. The judgement, apart from upholding the right to privacy also noted that this right

is not absolute and that an invasion of privacy must satisfy the following conditions:-

• A valid law established by due procedure must exist that justifies an infringement on

privacy.

• A genuine need for the invasion of privacy must be present.

• A legitimate state aim must be there that falls within the ambit of reasonableness7

The action of interception of the State against Devi Prasad satisfies all three aforementioned prongs.

The interception is lawful as it derives its validity from Section 5(2) of the Yopradesh Telegraph Act,

1885 and Section 69 of the Yopradesh Information Technology 2001. The need for this interception

comes after the previous seditious activities of Mr. Devi Prasad and his involvement in the Riverdale

riots. In the light of the same, the aim of state was to ensure “public safety” in the interests of national

security.

6
Kedarnath Singh v. State of Bihar AIR (1962) SC 955.
7
K.S Puttuswamy v. Union Of India (2019) 1 SCC 1.

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Thus, on the basis of the arguments made, authorities and judgements cited, the respondents humbly

submits before the Hon’ble Court that the activities of surveillance performed by The Central

Government under Yopradesh under Section 5(2) of the Yopradesh Telegraph Act, 1885, The Telegraph

Rules and Section 69 of the Yopradesh Information Technology (Amendment) Act, 2001 are

constitutional.

ISSUE 2: WHETHER THE PETITIONER CAN PROCEED AGAINST THE MITTAL GROUP FOR THE
INFRINGEMENT OF THE RIGHT TO PRIVACY UNDER ARTICLE 21 OF THE YOPRADESH
CONSTITUTION

It is the contention of the petitioner that the Mittal Group cannot be implicated in the present

case. It is a well settled law that Article 218 can be enforced only against “State” and not

private actors.

According to Section 129 of the Yopradesh Constitution:

In this part, unless the context otherwise requires, the State includes the Government and

Parliament of India and the Government and the Legislature of each of the States and all local

or other authorities within the territory of Yopradesh or under the control of the Government

of Yopradesh.10

This definition has two primary aspects:

1. Within the Territory of Yopradesh

The respondent contents that in the present case, Mittal Group is based out of Middle

East outside the sovereign land of Yopradesh, in Transport Sakore Nagar

8
Article 21, Yopradesh Constitution, 1950.
9
Section 12, Yopradesh Constitution, 1950.
10
Article 12, Yopradesh Constitution, 1950.

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2. Under Control of the Government of Yopradesh

The respondent further contends that Mittal Group is not under control of the

government of Yopradesh either functionally or structurally.

If we go by the aforementioned definition mentioned in Article 12 of the Indian Constitution,

Mittal Group is clearly a private entity that cannot be encompassed in this definition as it isn’t

under control of the Government of India.

In University of Madras v. Shantabai11, the Madras High Court evolved the principle of

“ejusdem generis” which meant that only the authorities that perform governmental or

sovereign functions can be included under Article 12.

The word “State” has had various connotations owing to the many judicial interpretations

through various judgements. One of the connotations of the word “State” as enshrined under

Article 12 of Yopradesh constitution, applies to the entities acting in control or through the

Government. However, in this case there is no direct link to establish that Mittal Group was

acting in control of the government.

Even if for assumptions sake we consider that Mittal Group supplied the software Citadel to

the government, it would, under this hypothesis be acting as an independent contractor, as they

lease their technology to many countries based on individual independent trade agreements.

Article 12 of the constitution12 does not provide a specific definition for the term

'instrumentality or agency,' leaving it open to continuous interpretation by the courts. There are

specific criteria that must be met to qualify as an instrument of the state.

Determination of Instrumentality of State

11
University of Madras v. Shantabai AIR (1954) Mad 67
12
Article 12, Yopradesh Constitution, 1950.

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This the view of the Hon’ble Supreme Cour in Sukhdev v. Bhagatram13. The judgement gave

further determining factors-

• Determine if the state exercises financial and administrative authority over a vital

public function.

In the present judgement, it is evident that Mittal Group is a n Independent Company

based outside the territory of Yopradesh, in Transport Sakore Nagar, which is a country

based in the Middle East. Hence, the respondents argue that the state exercises no

financial or administrative authority.

• Assess whether the entity, instrumentality, or agency is engaged in a critical public

function.

Mittal group merely supplies the software Citadel based on independent contracts,

however, the agency and will to use that software to snoop on citizens that the

government sees as potential security threats is purely executed by the agency and

volition of the government. Hence, even if we take the allegations of the petitioner into

consideration, the inclusion of Mittal Group as a party to the suit for providing security

tools is beyond the scope of this suit as the suit is about potential misuse of security

devices by the state and not the procurement of security devices by the state from

Independent Contractors.

• Evaluate whether the agency or entity is conducting business for the welfare of the

public or not

Since Mittal Group is not an agency to the state and is based in a foreign land, there lies

no question about public welfare for the citizens of Yopradesh.

13
Sukhdev v. Bhagatram AIR (1975) SC 1331

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Structuralsim & Functionalism

Structuralism, as a method of constitutional interpretation, attempts to derive constitutional

rules from the relationships and interactions between various constitutional structures or

institutions.

The main focus of structuralism in the present scenario with respect to individual rights is on

the structure of the government and its relationship with the individuals who are governed by

this government.

To qualify for being an instrument under Article 12, both financial and functional aspects

must be taken into consideration. In the present case, Mittal Group is neither financially nor

functionally within the ambit of the Government or its wings as it is neither funded by

Government nor is a participant in executing state duties in any capacity. Even if petitioner’s

allegation is taken into consideration, it was a mere international supplier, of a cybernetic

technology. It’s usage and on who to use it was dictated by state.

Functionalism, on the other hand, works on inductive method, developing the constitution and

the policies related to it through “case by case application of the independent normative values

that the law ought to promote.”

Mittal group is a mere developer and supplier of the software to governments and organisations

around the world. Hence, it cannot be held answerable to the way these governments decide to

use the software at their own violation. This invalidates any Functional link between the state

and the Mittal Group and hence it cannot be called an Instrument of State.

On basis of aforementioned arguments, legal precedents and authorities citied the respondent

submits that Even if the petitioner, without any conclusive proof claims that the Mittal Group

supplied, that cannot be made a party to this suit as it is a foreign company that is a mere

supplier of cybernetic technology is not an instrument and Article 21 can be enforced only

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against “State” and not private actors. Therefore, Mittal Group cannot be implicated in this

suit.

ISSUE 3: WHETHER THE EVIDENCE GATHERED AGAINST DEVI PRASAD THROUGH

SURVEILLANCE IS ADMISSIBLE UNDER THE LAW?

law?

The respondent humbly contends that, interception of telephonic communication is an

important tool for the law enforcement and intelligence agencies for obtaining conviction of

the accused from the Courts. It is within the court of law that the evidentiary value of the taped

conversation has come under scrutiny in several cases.

One of the most noteworthy of such cases is the RM Malkani v. State of

Maharashtra,14(Malkani case). This case revolved around the question of admissibility of taped

telephonic conversation for the purpose of conviction of the accused. The Hon’ble Court Court

in this case held that such evidence was admissible as evidence. The Supreme Court in the

Malkani case pointed out that in several cases such as N Sri Rama Reddy etc v. Shri W Giri15,

and S. Pratap Singh v. The State of Punjab16, the conversation or dialogue recorded on a tape-

recording machine had been accepted as admissible evidence. The Hon’ble Court also held

that such taped conversation would not amount self-incrimination and therefore, did not violate

Article 20(3) of the Constitution.

The Malkani case, laid down the principle, that just as a photograph taken without the

knowledge of the person photographed could become relevant and admissible, so does a tape

record of a conversation unnoticed by the talkers. The Hon’ble Court Court further held that:

14
RM Malkani v. State of Maharashtra, (1973) 1 SCC 471
15
N Sri Rama Reddy etc v. Shri W Giri (1970) 2 SCC 340
16
S. Pratap Singh v. The State of Punjab (1970) 2 SCC 340

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‘A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible

under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of

the incident. The tape-recorded conversation is therefore a relevant fact and is admissible under

Section 7 of the Evidence Act.’

At this juncture, while dwelling on the point of relevancy and admissibility, it will be useful to

have a look at section 29 of the Indian Evidence Act, 1872 which states that:

‘If such a confession is otherwise relevant it does not become irrelevant merely because it

was made under a promise of secrecy, or in consequence of a deception practised on the

accused person for the purpose of obtaining it, or when he was drunk, or because it was

made in answer to questions which he need not have answered, whatever may have been the

form of questions, or because he was not warned that he was not bound to make such

confession, and that evidence of it might be given against him’17

It thus follows that a confession made during a telephonic conversation, which is intercepted,

can be adduced as admissible evidence.

In the case of N. Sri Rama Reddy v. VV Giri,18 the Supreme Court held that previous statements

made by a person and recorded on tape can be used not only to corroborate evidence given by

witness in Court but also to contradict evidence given before Court while testing veracity of

witness and to impeach his impartiality in accordance with provisions of the Indian Evidence

Act, 1872.

The Supreme Court further propounded the principle that taped conversation is admissible even

if the person against whom it is used has no intimation of the fact that the conversation is being

recorded. In doing so, the Supreme Court has adopted the common law principle of

17
Section 29, Yopradesh Evidence Act 1872.
18
(1970) 2 SCC 340

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admissibility of evidence that is ‘it matters not how you get it if you steal it even, it would be

admissible in evidence’.

However, at the same time, the Supreme Court also took a cautious view with regard to the

admissibility of such taped conversation. In its wisdom, the Hon’ble Court Court in the Malkani

case held that taped conversation would not be admissible as evidence in certain circumstances.

The Supreme Court observed that a relevant tape-recorded conversation is admissible provided,

three important conditions are satisfied:

• Firstly, the conversation should be relevant to the matters in issue;

• Secondly, there should be identification of the voice;

• Thirdly, the accuracy of the tape-recorded conversation has to be proved by eliminating the

possibility of erasing the tape record.

From the ratio that has been laid down in the Malkani case, it is evident that the authenticity

and accuracy of the taped conversation is a sine qua non for its admissibility before the court

of law.

In the case of State of Maharashtra v. Jaysingh Wadhu Singh, the Bombay High Court upheld

the acquittal of a dismissed Sessions Judge by the Special Maharashtra Control of Organised

Crime Act (MCOCA) Court the dismissed Sessions Judge named JW Singh, who was charged

with having links with the underworld. The prosecution relied on tapped telephonic

conversations that allegedly took place between the Sessions Judge and an underworld

operative19. The High Court approved of the findings of the Special MCOCA Court Judge that

the interception of telephone conversation was in contravention of the provisions of the Act.

19
Maharashtra v. Jaysingh Wadhu Singh (1976) 3 SCC

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Similarly in the case of State v. Mohd Afzal,20 (Parliament attack case), one of the accused was

acquitted on the ground that the telephonic conversation that the prosecution was relying on

was prima facie tampered with.

In view of these judgments, it has to be said that the Indian courts have adopted a pragmatic

and judicially sound approach towards telephone tapping. The Courts in India have not struck

down telephone tapping as unconstitutional, but at the same time have given directions, which

would prevent the state from misusing its powers. The judiciary has, thus, ensured that the

substantive law as laid down in section 5(2) of the Telegraph Act has procedural backing so

that the exercise of power was fair and reasonable.

Therefore, keeping in view the utmost importance of national security, the Respondent humbly

contends that the evidence collected through surveillance against Devi Prasad is admissible.

The contention is backed by the reason that the admissibility of the evidence must rest on the

satisfaction of the Court and no straight-jacket formulae.

20
State v. Mohd Afzal 2003 (3) JCC 1669.
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PRAYER

WHEREFORE IT IS PRAYED, IN THE LIGHT OF THE CASE, ISSUES RAISED,

ARGUMENTS ADVANCED, AND AUTHORITIES CITED THAT THIS HON’BLE

COURT MAY BE PLEASED TO:

1. Declare surveillance activities that are carried out by the Government of Yopradesh

under Section 5(2) of the Yopradesh Telegraph Act, 1885, The Telegraph Rules and

Section 69 of the Yopradesh Information Technology (Amendment) Act, 2001 are

constitutional

2. Disallow the claim of petitioners to proceed against the Mittal Group

3. Declare, the evidence gathered against Devi Prasad to be admissible.

And/or

Pass any other Order, Direction, Relief that it may deem fit in the Best Interests of Justice,

Fairness, Equity and Good Conscience.

For this Act of Kindness, the Respondent Shall Duty Bound Forever Pray.

ALL OF WHICH IS MOST RESPECTFULLY SUBMITTED

Counsel for the Respondent

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