Team Code: IDMC15

BEFORE THE HON’BLE SUPREME COURT OF INDIA

Special Leave Petition

Under Article 136 of The Constitution of India

Mr. NB SAITU
(Appellants)
V.
Union Of India
(Respondents)

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE

CONSTITUTION OF INDIA CHALLANGING THE DISMISSAL
OF THE MATTER BY THE HON’BLE HIGH COURT

Memorial for Appellant

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 TABLE OF CONTENTS

LIST OF ABBREVIATION ……………………………………………………………………………………………………4

INDEX OF AUTHORITIES……………………………………………………………………………………………….....5
STATEMENT OF JURISDICTION…………………………………………………………………………………………7
STATEMENT OF FACT…………………………………………………………………………………………………….…7
ISSUES RAISED…………………………………………………………………………………………………………………8
SUMMARY OF ARGUMENTS……………………………………………………………………………………………11
ARGUMENTS ADVANCED………………………………………………………………………………………………..12
1.WHETHER THE HON’BLE SUPREME COURT OF INDISTAN HAS THE…….12
JURISDICTION TO ENTERTAIN THE PRESENT PETITION?
1.1 The appellant has Locus Standi to approach this Hon’ble court…………………..12
1.2 Scope of powers of this Hon’ble court under Article 136 of the Constitution of
Indistan……………………………………………………………………………12
1.3 This petition satisfies all grounds for an appeal under Art. 136…………………….12
1.4 No Ground for rejection…………………………………………………………….13
2.WHETHER SURVEILLANCE AND TAKING DOWN THE POST OF MR. NB SAITU FROM Y,
AMOUNTS TO VOILATION OF ART. 19(1)(A) AND ARTICLE 21 OF THE CONSTITUTION OF
INDISTAN…………………………………………………………………………………………………………………………..14
2.1 It violate the Right to Privacy of Mr. NB Saitu……………………………………………………….14
2.2 violation of freedom of speech and expression……………………………………………………15
2.3 Freedom of speech and expression………………………………………………………………………15
3. WHETHER THE SURVEILLANCE OF THE ACCOUNT OF MR, NB SAITU AND
TAKING DOWN THE POST WAS VALID AS PER SEC 69 AND 69A RESPECTIVELY
OF THE IT
ACT?..........................................................................................................................16
3.1 Surveillance of account of Mr. NB Saitu and taking down the post was invalid as per
sec 69 and 69A of the IT Act 2000……………………………………………………………
16
3.2 Surveillance was Violative of Fundamental Right ……………………………………
17

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 3.3 Surveillance Activities carried out by Government was Unconstitutional…………..17
3.4 Clash with Privacy………………………………………………………………………………………………….17
MEMORIAL FOR APPELLANT

4. WHETHER THE SECTION 17 OF THE DIGITAL PERSONAL DATA

PROTECTION ACT, 2023 IS CONSTITUTIONALLY VALID?..........................................18
4.1 Government has power to exempt any of its agencies…………………………….18
4.2 Exemption from processing data shared by exempted agencies ………………….19
4.3 Exemption to certain provisions for the law enforcement purpose…………………19
4.4 Power to retain data for an unlimited period of time….……………………………19

5. PRAYER……………………………………………………………………………………………………………………………20

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 LIST OF ABBREVIATIONS

1.&: And

2.AIR: All India Report

3.Art.: Article

4.Co: Company

5.Corp: Corporation

6.Hon’ble: honourable

7.H.C: High court

8.Ltd: Limited

9.Ors: Others

10.Pvt: Private

11.SC: Supreme Court

12.SCC: Supreme Court Cases

13.Sec: Section

14.V: Versus

MEMORIAL FOR APPELLANT

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 INDEX OF AUTHORITIES

I.STATUTES REFERRED
1. Constitution of India
2. Digital personal data protection act, 2023
3.Infomation Technology Act ,2000
4. RTI ACT, 2005

II. TABLE OF CASES

1. A.V Papayya Sastry v. Government of Andhra Pradesh AIR 2007 SC 1546
2. Anuradha Bhasin v. Union of India
3. Bennett Coleman & co. v. Union of India AIR 1973 SC 106
4. Chief Administration cum jt. Secretary, government of India v. D.C Dass,
AIR 1999 SC 186
5. Clerks of Calcutta tramways v. Calcutta tramways co. Ltd AIR (2000) 6
SCC 78
6. City corner v. P.A. to the collector, AIR 1976 SC 143
7. City of Lovell Griffin (1937) 303 U.S 404
8. Durga Shankar v. Raghu Raj AIR 1954 SC 520
9. Ganga Kumar v. state of Bihar, AIR 2005 SC 3120
10. Hukum Chand Shyam Lal v. Union of India AIR(1977) 2 SCC 128
11. Internet foundation& another v. union of India AIR 2019
12. KS Puttaswamy v. union of India 2017 SCC 996
13. Kharak Singh v. State of Uttar Pradesh AIR 1963
14. Kunhayammed and Others v. State of Kerela and Another, AIR (2000) 6
SCC 359
15. Maneka Gandhi v. Union of India AIR 1978 597

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 MEMORIAL FOR APPELLANT
16. Manohar Lal Sharma v. Union of India AIR 2021
17. N. Suriyakala v. A Mohandas, (2007) 9 SCC 196
18. People’s union for civil liberties v. union of India AIR 1997
19. Rajgopal v. State of Tamil Nadu 1995 AIR 264
20. Ram Jethmalani and Ors. V. Union of India, 2011, 8 SCC 1
21. Romesh Thappar v. State of Madras AIR 1950 C 124
22. Siemens Eng & Mfg. Co. v. Union of India AIR 1976 SC 1785
23. Sakal Papers Ltd& Ors v. Union of India AIR 1962 305
24. Shreya Singhal v. Union of India AIR (2015) 5 SCC 1
25. Zahira Habibullah Sheikh v. State of Gujrat AIR (2004) 4 SCC 158

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 MEMORIAL FOR APPELLANT

STATEMENT OF JURISDICTION

THE COUNSEL FOR THE APPELLANT, MR. NB SAITU, HEREBY HUMBLY SUBMIT TO THIS
HON’BLE COURT’S JURISDICTION UNDER ARTICLE 136 OF THE CONSTITUTON OF UNION OF
INDISTAN.

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 MEMORIAL FOR APPELLANT

STATEMENT OF FACTS

 Indistan is a sovereign, socialist, secular, democratic republic with a written

constitution and a parliamentary form of government.
 The Country comprises of three major communities, out of which Saitu is the on with
4% of its total population.
 A Section of Saitu community demand for the separate State on the line of their
religion saituism, and for which there is a movement called saitustan.
 Canava is a county situated in southern continent of the world, which boasts of its
migration police by welcoming and hosting a large population from all around the
world including a big representation from Indistan.
 A section of Saitu community demands separate state and for which there is
movement saitustan.
 Canava hosts a large population of Saitu comprising of 4% of its total population.
 Brady a canava citizen by Saitu religion was designated as terrorist by Indistan four
year before.
 Brady was gunned down by unknown assailant on 1st September 2023.
 The incident led to a standoff between Indistan and canava, where from official stage
Indistan was accused of carrying out the killing of its one of the most wanted
terrorist Brady through its agents.
 After all this debacle between two countries, which felt internationally.
 Meanwhile The Supreme court of Indistan the lower house of the legislature of
Indistan introduces digital personal data protection Bill ,2023.
 Nona bora Saitu belonging to Saitu community is an activist for the upliftment of his
community.
 Mr NB Saitu is closely examining the Indistan and canava stand, following the murder
of saitustan activist Brady.
 He posted a call to assemble before the Canavan embassy situated in nagor on the Y
platform in order to put pressure on Canavan govt to take action against the murder
of Brady.
 The content of post was that ‘’ It’s high time we, the Saitu brothers, must assemble
outside the embassy of Canava in order to protest against the injustice that has been
done to our beloved brother on September 1, 2023. This time we can’t sit silently; we
have to come out of our houses and march towards the Canavan Embassy. We want
justice for our martyred brother, killed by the hooligans.”
 The Central govt received complaints regarding the post, saying that it may lead the
violence and disruption of public order of the country.
 Central govt directed the Y platform to take down the post of Mr NB Saitu.
 Y platform complying with the direction of ministry took down the post.

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 MEMORIAL FOR APPELLANT

 Government of Indistan received information from intelligence that NB Saitu was

planning something bigger, government of Indistan processed the digital data of Mr
NB Saitu available on Y platform and intercepted his account on Y platform to
monitor his activities through that platform.
 Police arrested him next day on charges of disrupting public order through his post
from the Y platform.
 He was produced before the hon’ble Trial Court and he was convicted.
 Trial court found his post outrageous that may lead to violence and disruption of
public order.
 The hon’ble Trial court held that government has not violated any fundamental rights
of Mr NB Saitu in ordering for taking down his post ‘processing his digital personal
data and intercepting his account on Y platform.
 Mr. NB Saitu filed a petition in the Hon’ble Supreme Court of Indistan challenging his
conviction and the decision of the Hon’ble High Court.
 Mr. NB Saitu alleged in the petition that the Central Government has committed personal
data breach of his digital data available on Y platform.
 Mr. NB Saitu challenged the constitutionality of the provision(s) of Sec. 17 of DPDP by
contending that the exemption granted to Central Government gives rise to unfettered
government surveillance of citizen, thereby violating fundamental right(s) of citizens.

MEMORIAL FOR APPELLANT

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 ISSUES RAISED

• Whether the Hon’ble Supreme Court of Indistan has the jurisdiction to

entertain the present petition?

• Whether surveillance and taking down the post of Mr. NB Saitu from Y,
amounts to violation of Art. 19(1)(a) and Article 21 of the Constitution of
Indistan?

• Whether the surveillance of the account of Mr. NB Saitu and taking down
the post was valid as per section 69 and 69A respectively of the IT Act 2000?

• Whether the section 17 of the Digital Personal Data Protection Act, 2023 is
constitutionally valid?

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 MEMORIAL FOR APPELLANT

SUMMARY OF ARGUMENTS

1.Whether the Hon’ble Supreme Court of Indistan has the jurisdiction to entertain the
present petition?
It is humbly submitted to this hon’ble court that under Article 136 of the constitution of
Indistan, any person aggrieved by any order or decision of any court in Indistan can approach
the supreme court through a petition for special leave. The appellant humbly submit that all
ground required for the grant of a special leave for appeal are satisfied and hence, this
hon’ble court adjudicate same.
2.Whether surveillance and taking down the post of Mr. NB Saitu from Y, amounts to
violation of Art. 19(1)(a) and Article 21 of the Constitution of Indistan.
It is humbly submitted to this hon’ble court that surveillance and taking down of the post of
Mr. NB Saitu from Y amounts to violation of Art.19(1)(a) and Art. 21 of the constitution of
Indistan, because it violates the fundamental right of the Mr. NB Saitu, by taking down of
post violate his freedom of speech and expression. Right to privacy is a part of the right to
life and personal liberty enshrined under Art. 21 of the constitution. Surveillance is serious
invasion of a individual privacy There was no legitimate aim of the government to carry out
surveillance.
3.Whether the surveillance of the account of Mr. NB Saitu and taking down the post
was valid as per section 69 and 69A respectively of the IT Act 2000?
The surveillance of the account of Mr. NB Saitu and taking down the post was invalid as per
section 69 and 69A of IT Act. taking down the post was unconstitutional as there was no
public emergency or public safety. There was no legitimate aim of government to carry out
the surveillance. There should be some reasonable basis or some tangible evidence to initiate
or seek approval for interception by state authorities.
4. Whether the section 17 of the Digital Personal Data Protection Act, 2023 is
constitutionally valid?
Section 17 of the digital data protection Act, 2023 is constitutionally invalid. This bill has
failed to make any provision that bring about the surveillance reform that is urgently needed,
it creates an enabling framework for surveillance of citizens including journalist and their
sources. Sec 17 (4) makes exemption for the union of government to retain personal data for

11
longer period of time, even when individual has withdrawn their consent or demands to erase
their data.
MEMORIAL FOR APPELLNT

ARGUMENT ADVANCED

1.THE PETITION IS MAINTANABLE BEFORE THIS HON’BLE COUT

1.1The appellant has Locus Standi to approach this Hon’ble court

1.1.1Article 136 empower the supreme court to grant in discretion special leave to appeal
from any judgment, decree, determination, sentence or order in any cause or matter passed
by any court or tribunal in the territory of Indistan. It is humbly submitted that powers under
article 136 can be exercised against any kind of judgement and decree which is causing
injustice to any party, and to serve the need, the power under article 136 is unfettered1.
1.1.2 It is humbly submitted to this hon’ble court that there has been a serious infringement
of the right of an individual. The counsel for the appellant would humbly request this
Hon’ble court to hear this matter.
1.2 Scope of powers of this Hon’ble court under Article 136 of the Constitution of
Indistan
1.2.1 The power has been held to be plenary, limitless 2, adjunctive and unassailable3 The
Supreme Court can use powers under Article 136 to impart justice and remedy any injustice 4.
The Supreme court with regard to scope of Art. 136 held that it is residual power which
enables the supreme court to interfere with the judgement or order of any court or tribunal in
Indistan in its discretion.
1.2.2 In Ganga Kumar v. State of Bihar 5,the supreme court has held that it is open to the
supreme court to interfere with the
finding’s fact by the hight court if High court has acted perversely or improperly.
1.2.3 It is humbly submitted to this hon’ble court to hear this instant matter.

1
Durga Shankar v. Raghu Raj AIR 1954 SC 520
2
A.V. Papayya Sastry v. Government of Andhra Pradesh AIR 2007 SC 1546
3
Zahira Habibullah Sheikh v. State of Gujrat AIR (2004) 4 SCC 158
4
N. Suriyakala v. A. Mohandas, (2007) 9 SCC 196
5
Ganga Kumar v. State of Bihar, AIR 2005 SC 3120

MEMORIAL FOR APPELLANT

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1.3 This petition satisfies all grounds for an appeal under Art. 136
1.3.1 The supreme court has exercised its jurisdiction under Article 136 under following
circumstances-

(i)when the tribunal ostensibly fails to exercise its patent jurisdiction.1

(ii) When there is an apparent error on the face of the decision.2
(iii) The tribunal has erroneously applied well-accepted principles of jurisprudence.3
(iv) The tribunal acts against the principles of natural justice, or has approached the question
in a manner likely to cause injustice4.
1.4 No Ground for rejection
1.4.1 Supreme Court has laid down limitation on the exercise of the discretionary power
under Article 136. In Kunhayammed and Others v. State of Kerela and Another,5 it was held
that a petition seeking grant of special leave to appeal may be rejected for several reason,
some of which are as follows:
(i) If the petition is barred by time
(ii) If the petition is presented in a defective manner
(iii) The petition has no locus standi to file the petition
(iv) The conduct of the petitioner disentitling him to any indulgence by the court
(v) The question raised by the petitioner for the consideration by this court being
Not fit for consideration or deserving being dealt with by the Apex court.
1.4.2 In this case it is obvious on a prima-facie level that the appellant has no ground on
which this petition for special leave could be rejected. The question raised by the appellant
involve substantial question of law, and same requires to be adjudicated by this hon’ble
court.
1.4.3 In the case of Ramallah v. State of Haryana6, question arise whether a government
authority can investigate without following the principles of natural justice. The Supreme

1
Chief administration cum Jt. Secretary, government of India v. D.C. Dass, AIR 1999 SC 186
2
Siemens Eng & Mfg. Co. v. Union of India, AIR 1976 SC 1785
3
Clerks of Calcutta tramways v Calcutta tramways Co. Ltd AIR 1957 SC 78
4
City Corner v. P.A. to the Collector, AIR 1976 SC 143
5
Kunhayammed and Others v. State of Kerela and Another, AIR (2000) 6 SCC 359
6
Anju S Nair ,2023, Landmark case on special leave petition, Corpbiz

MEMORIAL FOR APPELLANT

13
court held that an investigation by a government agency must follow the principle of natural
justice.
1.4.4 The special leave petition is an essential aspect of Indian jurisprudence and play a
major role in protecting the fundamental rights of citizens. They provide a means for
challenging the decision of lower courts and lead to the setting aside erroneous orders.
Special leave petition kept the government and the courts accountable for their action and
safeguard the serration of powers in India.
1.4.5 It is humbly submitted before this hon’ble court to hear this appeal.
2.Whether surveillance and taking down the post of Mr. NB Saitu from Y, amounts to
violation of Art. 19(1)(a) and Article 21 of the Constitution of Indistan?

2.1 It violate the Right to Privacy of Mr. NB Saitu.

2.1.1 It is humbly submitted to hon’ble court that surveillance and taking down the post of,
Mr. NB Saitu are not reasonable because it violates the Right to privacy under Art.21 of the
constitution.
2.1.2 In the case of people ‘s union for civil liberties v. union of India 1,the Supreme Court.
held that, the right to privacy is a part of the right to life and personal liberty enshrined
under Art.21 of the constitution. Surveillance is a serious offence and invasion in the privacy
of a individual. Any right enshrined under Art 21 cannot be curtailed except according to the
procedure established by law, which has to be just, fair and reasonable.
2.2.3 The Supreme court in KS Puttaswamy v. union of India 2, held that the right to privacy
is protected under an intrinsic part of the right to life and personal liberty under Art.21 and as
a part of the freedoms guaranteed by part III of the constitution. The supreme court in R.
Rajgopal v. State of Tamil Nadu 3noted that tort of right to privacy which protect, ‘the
general law of privacy which affords a tort action for damages resulting from an unlawful
invasion of privacy and the constitutional recognition given to privacy which protects
personal property against unlawful government invasion.
2.2.4 The supreme court in Maneka Gandhi v. union of India,4held that though Article 21
mention the ‘procedure established by law ‘it has to be fair just and reasonable, not
oppressive or arbitrary. The court held that expression personal liberty in Article 21 is of the
widest amplitude and cover many rights which go to constitute the personal liberty of a man
and some of them have been raised to the status of distinct fundamental rights and given
additional protect under Article 19(1). The court held that there is a unique relation between
the provision of Article 14, Article 19 and Article 21. Therefore, a law depriving a person’s
personal liberty has not only stand the test of Article 21, but it must also stand the rest Article
19 and Article 21 of the constitution.

1
people ‘s union for civil liberties v. union of India AIR 1997
2
KS Puttaswamy v. union of India AIR (2017) 10 SCC 1
3
Rajgopal v. State of Tamil Nadu 1995 AIR 264
4
Maneka Gandhi v. union of India 1978 AIR 597

14
2.2.5 In the case of Ram Jethmalani and Ors. V union of India1, supreme court held that
right to privacy is an integral part of right to life. state cannot compel citizens to reveal, or
itself reveal the details f bank accounts to the public at large, either to receive benefit from
the state or to facilitate investigation, and prosecution of such individual, unless the state
itself has, through properly conducted investigation, within the four corners of constitutional
permissibility.
2.2 violation of freedom of speech and expression
2.2.1 Article 19 (1) of the constitution guarantees certain fundamental rights subject to the
power of state to impose restriction on the exercise of those rights. The article was intended
to protect this right against state action other than the legitimate exercise of its power to
regulate private rights in the public interest.
2.3 Freedom of speech and expression
2.3.1 Expression is a matter of liberty and right. The liberty of thought and right to known
are the sources of Expression. Free speech is a live wire of the democracy, Freedom of
expression is integral to the expansion and fulfilment of individual personality. Freedom of
expression is more essential in a democratic setup.
2.3.2 According to justice Krishna Iyer. “This freedom is essential because the censorial
power lies in the people over and against the government and not in the government over
and against the people.”
The freedom of speech and expression required to fulfil the following objectives:
(i) To discover truth
(ii) Non-self-fulfilment
(iii) Democratic value
(iv) To ensure pluralism
2.3.3 Supreme Court in Bennett Coleman & co. v. Union of India2, held that newspaper
should be left free to determine their pages and their circulation. This case arose out of a
constitutional challenge to the validity of the newspaper (price & page) Act 1956 which
empowered the government to regulate the allocation of space for advertisements matter.
The court held that the curtailment of advertisement would fall foul of article 19(1)(a).
In Secretary, Ministry of Information and broadcasting v. Cricket Association, Bengal 3, the
Supreme Court held that broadcasting is a means of communication and a medium of
speech and expression within the framework of Article19 (1)(a). It was held that right to
entertain and to be entertained, through broadcasting media are an integral part of the
freedom under Article 19 (1)(a).

1
Ram Jethmalani and Ors. V union of India, 2011 8 SCC 1

MEMORIAL FOR APPELLANT

2
Bennett Coleman & co. v. Union of India AIR 1973 SC 106
3
Secretary, Ministry of Information and broadcasting v. Cricket Association, Bengal AIR 1995(2) SCC 161

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2.3.4 In Romesh Thappar v. State of madras 1 while quoting U.S Supreme court view in v.
City of Lovell Griffin 2 the apex court held the freedom of speech and expression,
guaranteed under Article 19 (1)(a), means right to speak and to express one’s opinions by
word of mouth, writing, printing, pictures, or in any other manner. This freedom is essential
for the proper functioning of the democratic process.
2.3.5 In TATA PRESS V. MTNL 3the supreme court declared that the right to commercial
speech or advertisement is part of fundamental right to freedom of speech and expression
guaranteed by Article 19 (1)(a). The court in Anuradha Bhasin v union of India 4, held that
freedom of expression though the internet is one of the integral parts of Article 19(1)(a). The
right to freedom of speech and expression under Article 19(1)(a), using the medium of
internet is constitutionally protected. This proclamation would entail that any curtailment of
interest access have to be reasonable and within the boundaries laid down by Art. 19 (1)(a) of
the constitution.
3.Whether the surveillance of the account of Mr. NB Saitu and taking down the post
was valid as per section 69 and 69A respectively of the IT Act 2000?

3.1 Surveillance of account of Mr. NB Saitu and taking down the post was invalid as per
sec 69 and 69A of the IT Act 2000.
3.1.1 The surveillance activity was unconstitutional because it does not fulfil the required
condition. In Hukam Chand Shyam Lal v. Union of India 5, the court observed that the
power to intercept could not be unguided and unbridled and said that only public emergency
permitted the exercise of such authority. The court declared that public emergency and the
interest of public safety were only criteria that permitted telephone monitoring.
3.2 Surveillance was Violative of Fundamental Right
3.2.1 It is humbly submitted before this hon’ble court that surveillance activity violated the
fundamental rights. Fundamental Right guaranteed under Article 14 ,19(1)(a) and 21of the
constitution of India. Romesh Thappar v. state of Madras 6, the court stated that freedom of
speech lay at the foundation of all democratic organisation.

1
Romesh Thappar v. State of madras AIR 1950 SC 124
2
City of Lovell Griffin (1937 )303 U.S 404

MEMORIAL FOR APPELLANT

3
TATA PRESS V. MTNL 1955 5 SCC 139
4
Anuradha Bhasin v union of India AIR 2020 SC 17
5
Hukam Chand Shyam Lal v. Union of India AIR (1977) 2 SCC 128
6
Romesh Thappar v. State of Madras AIR 1950 SC 124

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In Sakal Papers Ltd & Ors v. union of India 1,the court said freedom of speech can be
restricted only in the interest of the security of the state, friendly relation with the foreign
state, public order, decency and morality or in relation to contempt of court, defamation and
incitement to an offence. There was no state of emergency, and journalists were subjected to
surveillance, which violated their right to free speech and expression.
3.3 Surveillance Activities carried out by Government was Unconstitutional
3.3.1 It is humbly submitted before this hon’ble court that Surveillance of the account of Mr.
NB Saitu and taking down the post was invalid and unconstitutional as per sec 69 and 69A of
the IT Act 2000.
Sec 69 of the Information Technology Act ,2000 allows the government to direct any agency
of the government to intercept, monitor or decrypt any information on the similar grounds in
the individual’s computer resource which includes mobile phones. There was no legitimate
aim of government to carry our surveillance. There should be some reasonable basis or some
tangible evidence to initiate or seek approval for interception by State Authorities. Any action
without such evidence or basis would be struck down by court as arbitrary or invasive of ones
right to privacy.
3.3.2 The proportionality and Legitimacy test was established in the KS Puttaswamy v.
union of India2 that needs to be fulfilled before state intervention in the right to privacy. The
state action must be sanctioned by law. In democratic society there must be a legitimate aim
for the action. Action must be proportionate to the need for such interference and it must be
subject to procedural guarantees against abuse of the power to interfere.
3.3.3 The Supreme Court in Shreya Singhal v. Union of India 3, declared that any order to
ban or limit any site must be in writing and endorsed by a committee that includes officials of
the ministers of law and Justice and Home Affairs. Here, in the present situation the
instruction of taking down the post of Mr. NB Saitu from Y account was unconstitutional.
There was no legitimate aim of government to carry the surveillance.
3.3.4 The Supreme Court has issued notice to the government in the Internet freedom
foundation &Another v. Union of India4 and others which challenges the constitutional
validity of section 69 of IT Act ,2000 ,the information technology rules ,2009 relating to
procedure and safeguard for interception ,monitoring and decryption of Information and
Order of government which empowered 10 investigating , security and intelligence agencies
to put surveillance on any computer resource in order to derive private information. It is
argued that these provisions, rules and order are ultra vires following Fundamental Rights.
3.4 Clash with privacy

1
Sakal Papers Ltd & Ors v. union of India AIR 1962 305

MEMORIAL FOR APPELLANT

2
KS Puttaswamy v. union of India 2017 SCC 996
3
Shreya Singhal v. union of India AIR (2015) 5 SCC 1
4
Internet foundation &another v. union of India AIR 2019

17
3.4.1 The first case was against the Surveillance practice of the state was people’s union for
civil liberties v. Union of India 1where the supreme court laid down a shadow over the
surveillance law in India and put certain guidelines as safeguard attacks by surveillance.
Individual privacy was considered as fundamental right under the ambit of Article 21 of
Indian constitution.
3.4.2 After Pegasus Spyware, which was sold to government of different countries, attacked
the privacy of targeted individual such as journalist, politician, opposition leaders, social
Activist etc. In Manohar Lal Sharma v. Union of India 2,Supreme court has directed to
constitute a committee of technological expert who shall recommend to amend the existing
surveillance regime in order to ensure individual privacy.
3.4.3 The condition upon which government can order the surveillance are mainly covered
under reasonable restrictions to free speech provided under Article 19(2). But the last one ‘for
investigation of any offence’’ is not an enumerated restriction and thus not justified and
violates a fundamental right. In the case of Kharak Singh v. State of Uttar Pradesh3,
Supreme court has explained the effect of surveillance is certainly deprived of this freedom.
He can move physically, but he cannot do so freely, for all his activities are watched and
noted.
3.4.4 It is concern to note that lack of judicial Action and government’s enthusiasm for
reducing basic right of privacy has also been expressed by “Shree Krishna Committee’’ which
was charged with monitoring data protection law in India. Countries like U.K, U.S.A, and
South Africa where privacy is a fundamental right and people are adequately protected
against government surveillance measures have been mentioned.
4. Whether the section 17 of the Digital Personal Data Protection Act, 2023 is
constitutionally valid?
The sec 17 of the digital personal data protection Act, 2023 is Constitutionally invalid.
4.1 Government has power to exempt any of its agencies
4.1.1 Any Exempts agency of the Government can collect and process the personal data of
citizens without following any of the safeguards prescribed in the Digital Personal Data
Protection Act, such as getting consent, securing data from breaches, maintaining accurate
and complete data. It is such a broad exemption that that can be misused for surveillance and
put the interests of the state ahead of the right to privacy of individuals. If this hon’ble court
allow them this exemption the they can misuse it for their own benefit.

1
people’s union for civil liberties v. Union of India AIR 1997

MEMORIAL FOR APPELLANT

2
Manohar Lal Sharma v. Union of India AIR 2021
3
Kharak Singh v. State of Uttar Pradesh AIR 1963

MEMORIAL FOR APPELLANT

18
4.1.2 According to Section 17 (2)(a) of the act, the Central Government can issue a
notification exempting any “Instrumentality of the State” from the provision of this act in the
interest of the sovereignty and integrity of India, Security of the state. friendly relation with
foreign state, maintenance of public order or preventing incitement to any cognizable offence
relating to any of the above.
4.2 Exemption from processing data shared by exempted agencies
4.2.1The Central Government is also exempted from processing any personal data that an
exempted instrumentality may furnish to it. For instance, if the ministry of defence is an
exempted agency and shares some data collected by it with central government, the
processing of this data does not have to adhere to the provision of the act. This exemption can
be far-reaching because the central government officially consist of anyone in the that is
executive, legislature, and the judiciary.
4.3 Exemption to certain provisions for the law enforcement purpose
4.3.1 As per sec 17(1)(c), personal data that is processed by any entity in the interest of
prevention, detection, investigation or prosecution of any offence or contravention of any law
for the time being in force in India are exempt from the following provisions of the act:
(i) All Chapters 2 provisions (obligation of data fiduciaries) except sub-section 1 and
5 (provision related to securing data) of section 8
(ii) All Chapters 3 provisions (right and duties of data principals)
(iii) Section 16 (transfer of personal data outside India)
4.4 Power to retain data for an unlimited period of time
4.4.1 According to Section 17(4), the government and its instrumentalities can retain personal
data for an unlimited period of time regardless of whether the purpose for which data was
collected has been served or not and users don’t have the right to request erasure of their
personal data collected by government or its instrumentalities.
4.4.2 The central government has the power to issue notification to make rules to carry out
the purpose of the digital personal data protection act. Rules can be issued for all parts of the
act that have a provision saying as may prescribed.
4.4.3 Section of the DPDP Act, which permits processing in the interest of prevention,
detection, investigation, or prosecution of any law, would exempt processing for a specific
kind of journalism. However, the lack of a broad exemption that applies to all journalistic
activity and the absence of any clear guidance of this exemption severely hampers the ability
of journalist to investigate, report and publish any articles or reports of journalist Import.
4.4.4 DPDP Act curtail the right to access to information under the right to information Act.
section 8 of the RTI Act provides foe an exemption clause where personal information is
exempt from disclosure if it has no relation with the public activity. DPDP Act exempts all
personal information from disclosure. This goes to the strike at the very root of transparency
and accountability in the system.

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PRAYER

Wherefore, in the light of the facts of the case, issue raised, arguments advanced and
authorities cited, this hon’ble court may pleased to:
Find that:
1. There was violation of Art.19(1)(a) and Art.21 of the constitution of Indistan by
the respondent.
2. The surveillance activity done by government was invalid under Sec. 69 and
69a of the IT Act 2000.
3. Sec 17 of the digital personal data protection is not constitutionally valid.

And pass any order that it may deem fit in the ends of justice, equity, and good conscience.
All of which is respectfully submitted.

(Counsel on behalf of the appellant)

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MEMORIAL FOR APPELLANT

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