MEMORIAL ON BEHALF OF THE PETITIONER

Participant Code- C-86

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

CONCOURS, 2022

Before,

THE HON’BLE SUPREME COURT OF SATYADESH

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF

SATYADESH

CHAND NAWAB…........................................................................................PETITIONER

v.

UNION OF SATYADESH.........................................................................RESPONDENT 1

DOGE GROUP..........................................................................................RESPONDENT 2

CLUBBED WITH

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF

SATYADESH

BABURAO GANPATRAO APTE ...............................................................PETITIONER

v.

STATE OF RIVER FRONT…....................................................................RESPONDENT

ON SUBMISSION TO THE SUPREME COURT OF SATYADESH

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

GOVERNMENT OF SATYADESH

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MEMORIAL ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................ 2

INDEX OF AUTHORITIES ................................................................................................... 4

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

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

STATEMENT OF FACTS ...................................................................................................... 7

ISSUES RAISED...................................................................................................................... 8

SUMMARY OF THE ARGUMENTS ................................................................................... 9

ARGUMENTS ADVANCED ................................................................................................ 11

I. WHETHER THE SURVEILLANCE ACTIVITIES THAT ARE CARRIED OUT

BY THE GOVERNMENT OF SATYADESH UNDER SECTION 5(2) OF
SATYADESH TELEGRAPH ACT, 1885 AND SECTION 69 OF THE SATYADESH
INFORMATION TECHNOLOGY ACT, 2000 ARE CONSTITUTIONAL? ............. 11

[1.1] THE SURVEILLANCE ACTIVITIES CARRIED OUT BY THE GOVERNMENT

OF SATYADESH UNDER SECTION 5(2) OF SATYADESH TELEGRAPH ACT, 1885
ARE UNCONSTITUTIONAL. ....................................................................................... 11

[1.2] SURVEILLANCE WAS VIOLATIVE OF FUNDAMENTAL RIGHTS. ............ 13

[1.3] THE SURVEILLANCE ACTIVITIES CARRIED OUT BY THE GOVERNMENT

OF SATYADESH UNDER SECTION 69 OF SATYADESH INFORMATION
TECHNOLOGY ACT, 2000 ARE UNCONSTITUTIONAL. ........................................ 14

II. WHETHER THE PETITIONER CAN PROCEED AGAINST THE DOGE

GROUP FOR THE INFRINGEMENT OF RIGHT TO PRIVACY UNDER ARTICLE
21 OF THE SATYADESH CONSTITUTION? .............................................................. 16

[2.1] DOGE GROUP IS EXECUTING THE SOVEREIGN FUNCTIONS UNDER THE

SATYADESH GOVERNMENT. .................................................................................... 16

[2.2] DOGE GROUP INFRINGED THE RIGHT TO PRIVACY UNDER ARTICLE 21

OF THE SATYADESH CONSTITUTION..................................................................... 17
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MEMORIAL ON BEHALF OF THE PETITIONER

III. WHETHER THE EVIDENCE GATHERED AGAINST BABURAO

GANPATRAO APTE THROUGH SURVEILLANCE IS ADMISSIBLE UNDER THE
LAW? .................................................................................................................................. 19

[3.1] EVIDENCE GATHERED AGAINST BABYRAO GANPATRAO APTE

THROUGH SURVEILLANCE IS NOT ADMISSIBLE UNDER THE LAW BECAUSE
IT IS VIOLATING FUNDAMENTAL RIGHTS UNDER ARTICLE 21. ..................... 19

PRAYER ................................................................................................................................. 21

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MEMORIAL ON BEHALF OF THE PETITIONER

INDEX OF AUTHORITIES

CASES:

Anuradha Bhasin v Union of India 2020 SCC Online SC 25 .................................................. 13

Brandenburg v Ohio 395 UD 444 ............................................................................................ 13
Govind v State of Madhya Pradesh 1975 AIR 1378................................................................ 17
Hukam Chand Shyam Lal v Union of India 1976 AIR 789 ..................................................... 11
Jatinder Pal Singh v CBI 2022 LiveLaw (Del) 23 .................................................................. 19
KS Puttaswamy v Union of India (2017) SSC OnLine SC 996 ............................................... 14
Maneka Gandhi v Union of India 1978 AIR 597 .................................................................... 17
Manohar Lal Sharma v Union of India AIR 2021 SC 5396 .................................................... 18
Mapp v Ohio 367 US 643 ........................................................................................................ 20
Nardone v US 308 US 338 (1939) ........................................................................................... 20
People’s Union for Civil Liberties v Union of India (1997) 1 SCC 301 ................................. 11
R. Rajgopal v State of Tamil Nadu 1995 AIR 264 ................................................................... 17
Ram Jethmalani and Ors v Union of India (UOI) and Ors (2011) 8 SCC 1 ........................... 18
Romana Dayaram Shetti v The International Airport Authorities of India 1979 AIR 1628 ... 16
Romesh Thappar v State of Madras 1950 AIR 124 ................................................................. 12
Sakal Papers (P) Ltd & Ors v Union of India 1962 AIR 305.................................................. 12
Selvi and Ors v State of Karnataka MANU/SC/0325/2010..................................................... 13
Shreya Singhal v UOI (2015) 5 SCC 1 .................................................................................... 14
University of Madras v Santa Bai AIR 1954 Mad 67 .............................................................. 16
Vinit Kumar v Central Bureau of Investigation (2020) 1 AIR Bom R (Cri) 1 ........................ 11
Weeks v US 232 US 383 (1914) .............................................................................................. 20

STATUTES :

Article 12 of the Satyadesh Constitution ................................................................................. 16

Article 19(1)(a) of the Satyadesh Constitution ........................................................................ 13
Article 19(2) of the Satyadesh Constitution............................................................................. 14
Article 21 of the Satyadesh Constitution ................................................................................. 13
Section 5(2) of the Satyadesh Telegraph Act, 1885 ................................................................ 11
Section 69 of the Information Technology Act, 2000 ............................................................. 14

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MEMORIAL ON BEHALF OF THE PETITIONER

LIST OF ABBREVIATIONS

AIR ALL INDIA REPORTER

SCC SUPREME COURT CASES

UOI UNION OF INDIA

SC SUPREME COURT

ART. ARTICLE

SEC. SECTION

SCR SUPREME COURT REPORTER

LTD LIMITED

ORS OTHERS

ANR ANOTHER

PUCL PEOPLE’S UNION FOR CIVIL

LIBERTIES

IT INFORMATION TECHNOLOGY

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MEMORIAL ON BEHALF OF THE PETITIONER

STATEMENT OF JURISDICTION

I. Writ petition No._____ of 2021

The appellants filed a Writ Petition before the Supreme Court of Satyadesh under Article 32 of
the Constitution, challenging the constitutionality of surveillance activities that are carried out
by the Government under Section 5(2) of Satyadesh Telegraph Act, 1885 and Section 69 of the
Information Technology Act, 2000.

II. Special Leave Petition_____ of 2021

The appellant filed a Special Leave Petition (under Article 136 of the Constitution) before the
Supreme Court of Satyadesh against the order passed by the High Court of River Front.

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MEMORIAL ON BEHALF OF THE PETITIONER

STATEMENT OF FACTS

Allegations of invasion of privacy and constant state surveillance are bolstered by the fact that
Satyadesh does not have a specific Data Protection legislation, and the data protection regime
is currently governed by the Information Technology (Reasonable Security Practices and
Procedures and Sensitive Personal Data or Information) Rules, 2011, which are framed under
the Satyadesh Information Technology Act.

In late 2019, it was revealed that the popular messaging service HowsApp had been
compromised in order to hack a number of Satyadeshian activists, journalists, and bureaucrats,
prompting claims that the Satyadeshian government was involved. Maskbook, HowsApp's
parent business, stated on October 30, 2019, that a malware called "Omegasus" was used to
target Satyadeshian journalists, activists, attorneys, and high government officials. The
journalists and activists were thought to have been under surveillance for two weeks before the
Lok Sabha elections. Omegasus, is a spyware (Trojan/Script) that can be remotely deployed on
devices. It is created and promoted by the "Doge Group," a private technology corporation
situated in Transport Nagar. The Doge Group very well understands and recognizes that the
Omegasus Software can be misused by sovereign states. The government’s response did not
clarify as to whether the Government had used the Omegasus Spyware.

On February 14th, 2021, based on evidence filed by the investigating agencies, which included
messages and telephonic communications between Baburao and members of Kabira Gang, a
banned organisation known for launching violent attacks against Satyadesh. People criticized
the Sessions Court for convicting Baburao based on evidence collected unlawfully, i.e., through
surveillance. Chand Nawab filed a Writ Petition before the Supreme Court of Satyadesh under
Article 32 of the Constitution, challenging the constitutionality of the Government's
surveillance activities under Section 5(2) of the Satyadeshian Telegraph Act, 1885 and Section
69 of the Information Technology Act, 2000. Surprisingly, the Petition filed by Chand Nawab
also included Doge Group as a Respondent No. 2. According to the Petition, Doge Group, by
actively participating in the State's surveillance operations, is performing a function that might
plausibly be labelled a State function, and is thus culpable for the violation of people' basic
right to privacy. Baburao filed a Special Leave Petition (under Article 136 of the Constitution)
against the High Court of River Front's ruling before the Supreme Court of Satyadesh.

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MEMORIAL ON BEHALF OF THE PETITIONER

ISSUES RAISED

I. WHETHER THE SURVEILLANCE ACTIVITIES THAT ARE CARRIED OUT BY

THE GOVERNMENT OF SATYADESH UNDER SECTION 5(2) OF SATYADESH
TELEGRAPH ACT, 1885 AND SECTION 69 OF THE SATYADESH INFORMATION
TECHNOLOGY ACT, 2000 ARE CONSTITUTIONAL?

II. WHETHER THE PETITIONER CAN PROCEED AGAINST THE DOGE GROUP
FOR THE INFRINGEMENT OF RIGHT TO PRIVACY UNDER ARTICLE 21 OF
THE SATYADESH CONSTITUTION?

III. WHETHER THE EVIDENCE GATHERED AGAINST BABURAO GANPATRAO

APTE THROUGH SURVEILLANCE IS ADMISSIBLE UNDER THE LAW?

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MEMORIAL ON BEHALF OF THE PETITIONER

SUMMARY OF THE ARGUMENTS

I. WHETHER THE SURVEILLANCE ACTIVITIES THAT ARE CARRIED OUT BY

THE GOVERNMENT OF SATYADESH UNDER SECTION 5(2) OF SATYADESH
TELEGRAPH ACT, 1885 AND SECTION 69 OF THE SATYADESH INFORMATION
TECHNOLOGY ACT, 2000 ARE CONSTITUTIONAL?

Surveillance activities carried out by the government of Satyadesh under section 5(2) of
Satyadesh Telegraph Act, 1885 and section 69 of the Satyadesh Information Technology, 2000
are unconstitutional as there was no ‘public emergency’ or ‘public safety’. Powers
under Section 5(2) could be invoked only on the occurrence of any 'public emergency' or in the
interest of 'public safety'. There was no 'public emergency' nor was there any issue of 'public
safety' in the present case. Lawful interception cannot be done on journalists. Section 5(2) was
violative of the fundamental rights guaranteed under Articles 14, 19(1)(a) and 21 of the
Constitution of India. There was no legitimate aim of the government to carry out surveillance.
There should be some reasonable basis or some tangible evidence to initiate or seek approval for
interception by State authorities.

II. WHETHER THE PETITIONER CAN PROCEED AGAINST THE DOGE GROUP
FOR THE INFRINGEMENT OF RIGHT TO PRIVACY UNDER ARTICLE 21 OF
THE SATYADESH CONSTITUTION?

The Doge Group has violated Right to Privacy under Article 21 of the Satyadesh Constitution.
Art. 12 mentions that state can be ‘Any other organization which exercises sovereign
functions.’ Doge group is excersing the sovereign functions under the govt. Article 12 defines
State - The Government and the Legislature of each State and Local Authorities and Other
Authorities. The right to privacy "is a part of the right to 'life' and 'personal liberty' enshrined
under Art. 21 of the Constitution". Tapping is a serious invasion of an individual’s privacy.
Phone tapping not only infringes Art. 21 but also contravenes Art. 19 freedoms. Such a law
would have to be justifiable under one of the permissible restrictions in Article 19(2), in
addition to being "fair, just and reasonable" as required by Article 21.

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MEMORIAL ON BEHALF OF THE PETITIONER

III. WHETHER THE EVIDENCE GATHERED AGAINST BABURAO GANPATRAO

APTE THROUGH SURVEILLANCE IS ADMISSIBLE UNDER THE LAW?

The evidence gathered against Baburao Ganpatrao Apte through surveillance is not admissible
under the law. The evidence collected by the investigating agencies through surveillance is not
admissible under the law because evidence is tampered by Omegasus spyware. Surveillance is
violating Fundamental Right to Privacy under Art. 21 of the Constitution. Phone tapping not
only infringes Art. 21 but also contravenes Art. 19 freedoms. The guidelines held in the case
of PUCL v Union of India, the Court held that this act had infringed Article 21 of the
Constitution of India and the source of telephonic conversation was not verified by any forensic
expert thus the evidence cannot be held admissible under Section 65-B of Indian Evidence Act,
1872.

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MEMORIAL ON BEHALF OF THE PETITIONER

ARGUMENTS ADVANCED

I. WHETHER THE SURVEILLANCE ACTIVITIES THAT ARE CARRIED OUT BY

THE GOVERNMENT OF SATYADESH UNDER SECTION 5(2) OF SATYADESH
TELEGRAPH ACT, 1885 AND SECTION 69 OF THE SATYADESH INFORMATION
TECHNOLOGY ACT, 2000 ARE CONSTITUTIONAL?
It is humbly submitted before the hon’ble supreme court that the surveillance activities carried
out by the government of Satyadesh under section 5(2) of Satyadesh Telegraph Act, 1885 are
unconstitutional as there was no ‘public emergency’ or ‘public safety’.

[1.1] THE SURVEILLANCE ACTIVITIES CARRIED OUT BY THE GOVERNMENT

OF SATYADESH UNDER SECTION 5(2) OF SATYADESH TELEGRAPH ACT, 1885
ARE UNCONSTITUTIONAL.
The surveillance activity was unconstitutional because it does not full the required conditions
provided under the section 5(2)1 of the Satyadesh Telegraph Act, 1885. On the occurrence of
any public emergency, or in the interest of the public safety, the Central Government or a State
Government or any officer specially authorised in this behalf by the Central Government or a
State Government may, if satisfied that it is necessary or expedient so to do in the interests of
the sovereignty and integrity of India, the security of the State, friendly relations with foreign
states or public order or for preventing incitement to the commission of an offence, for reasons
to be recorded in writing, by order, direct that any message or class of messages to or from any
person or class of persons, or relating to any particular subject, brought for transmission by or
transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or
detained, or shall be disclosed to the Government making the order or an officer thereof
mentioned in the order: Provided that the press messages intended to be published in India of
correspondents accredited to the Central Government or a State Government shall not be
intercepted or detained, unless their transmission has been prohibited under this sub-section.

Powers under Section 5(2) could be invoked only on the occurrence of any 'public emergency'
or in the interest of 'public safety'. There was no 'public emergency' nor was there any issue of
'public safety' in the present case. He further contended that Section 5(2) also relates to 'such
occurrence of any public emergency' and also to a situation involving 'public safety'. Therefore,

1
Section 5(2) of the Satyadesh Telegraph Act, 1885.
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MEMORIAL ON BEHALF OF THE PETITIONER

interception of messages transmitted or received by any telegraph could be ordered

under Section 5(2) only if there existed a situation of 'public emergency' or it was in the interest
of 'public safety'. Lawful interception cannot be done on journalists, in the present case
surveillance was done on journalists which violated the Freedom of Press.

The Supreme Court in People’s Union for Civil Liberties v Union of India2 thus categorically
held and directed that :-"Occurrence of public emergency" or "in the interest of public safety"
are the "sine qua non" for the application of the provisions of Section 5(2) of the 1885 Act, and
without them, the authorities have no jurisdiction to exercise the powers under the said Section
to take resort to telephone tapping even though there is satisfaction that it is necessary or
expedient so to do in the interest of sovereignty and integrity of India etc.

In Hukam Chand Shyam Lal v Union of India3, 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 the only criteria that permitted telephone monitoring.

In a recent case of Vinit Kumar v Central Bureau of Investigation4 it was held by the Bombay
High Court that the phone tapping was only allowed only when there is a case of public
emergency or public safety other than that it will lead to infringement of the fundamental right
to privacy. An order of interception under section 5(2) of the IT Act can only be given in
situations of 'public emergency' or 'public safety'. If interception has been undertaken in
contravention of Section 5(2) of the IT Act, it is mandatory for the said intercepted messages
to be destroyed. Evidence procured in violation of Section 5(2) and the rules made thereunder,
is not admissible in court.

The Supreme Court’s guidelines formed the basis of introducing Rule 419A in the Telegraph
Rules in 2007 and later in the rules prescribed under the IT Act in 2009. Rule 419A states that
a Secretary to the Government of India in the Ministry of Home Affairs can pass orders of
interception in the case of Centre, and a secretary-level officer who is in-charge of the Home
Department can issue such directives in the case of a state government. In unavoidable
circumstances, Rule 419A adds, such orders may be made by an officer, not below the rank of

2
People’s Union for Civil Liberties v Union of India (1997) 1 SCC 301.
3
Hukam Chand Shyam Lal v Union of India 1976 AIR 789.
4
Vinit Kumar v Central Bureau of Investigation (2020) 1 AIR Bom R (Cri) 1.
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MEMORIAL ON BEHALF OF THE PETITIONER

a Joint Secretary to the Government of India, who has been duly authorised by the Union Home
Secretary or the state Home Secretary. No order was issued by a Secretary to the Government
of India in the Ministry of Home Affairs nor a secretary-level officer who is in-charge of the
Home Department.

Similarly, there was no public emergency or public safety concern that needed surveillance in
the immediate instance, and surveillance breached section 5(2) of the Telegraph Act, 1885 by
conducting surveillance on journalists, making this surveillance activity unlawful in the present
case as well.

[1.2] SURVEILLANCE WAS VIOLATIVE OF FUNDAMENTAL RIGHTS.

It is respectfully submitted that surveillance activity violated the fundamental rights. Section
5(2) was violative of the fundamental rights guaranteed under Articles 14, 19(1)(a) and 21 of
the Constitution of India. Romesh Thappar v State of Madras5 the Court stated that freedom
of speech lay at the foundation of all democratic organizations.

In Sakal Papers (P) Ltd. & Ors. v Union of India6, the court said-Freedom of speech can be
restricted only in the interests of the security of the State, friendly relations with foreign State,
public order, decency or morality or in relation to contempt of court, defamation or incitement
to an offence. There was no state of emergency, and journalists were subjected to monitoring
and surveillance, which violated their right to free speech and expression.

In Selvi and Ors. v State of Karnataka7, no individual should be forcibly subjected to any of
the techniques in question, whether in the context of an investigation in criminal cases or
otherwise. Doing so would amount to an unwarranted intrusion into personal liberty Forcing
an individual to undergo any of the impugned techniques violates the standard of ‘substantive
due process’ which is required for restraining personal liberty. Privacy also includes mental
privacy, the right to choose, a person’s right to remain silent and to choose what to speak.

In the People’s Union for Civil Liberties v Union Of India, the Supreme Court stated that
‘Tapping is a serious invasion of an individual’s privacy.’ It is violative of fundamental right
guaranteed under Article 218 of the Constitution. The very same decision of the Supreme Court

5
Romesh Thappar v State of Madras 1950 AIR 124
6
Sakal Papers (P) Ltd & Ors v Union of India 1962 AIR 305
7
Selvi and Ors v State of Karnataka MANU/SC/0325/2010.
8
Article 21 of the Satyadesh Constitution.
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MEMORIAL ON BEHALF OF THE PETITIONER

also recognized the fact that telephone tapping amounted to an infraction of Article 19(1)(a)9 of
the Constitution unless it was saved by Article 19(2)10. The court in Anuradha Bhasin v Union
of India11, held that freedom of expression through 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 internet access have to be reasonable and within the boundaries laid down by
Art. 19(2) and 19(6) of the Constitution.

In the case of Brandenburg v Ohio12, the court held that the state cannot punish advocacy of
any unlawful conduct unless here it is intended or likely to incite ‘imminent lawless action’.

[1.3] THE SURVEILLANCE ACTIVITIES CARRIED OUT BY THE GOVERNMENT

OF SATYADESH UNDER SECTION 69 OF SATYADESH INFORMATION
TECHNOLOGY ACT, 2000 ARE UNCONSTITUTIONAL.
It is humbly submitted before the hon’ble supreme court that the surveillance activities carried
out by the government of Satyadesh under section 69 of Information Technology Act, 2000 are
unconstitutional.

Section 6913 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 the
government to carry out 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 courts as arbitrary, or invasive of one’s right to privacy.
The 'proportionality and legitimacy' test was also established in the KS Puttaswamy v Union of
India14 that needs to be fulfilled before state intervention in the right to privacy. The state action
must be sanctioned by law. In a democratic society there must be a legitimate aim for 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.

9
Article 19(1)(a) of the Satyadesh Constitution.
10
Article 19(2) of the Satyadesh Constitution.
11
Anuradha Bhasin v Union of India 2020 SCC Online SC 25.
12
Brandenburg v Ohio 395 UD 444.
13
Section 69 of the Information Technology Act, 2000.
14
KS Puttaswamy v Union of India (2017) SSC OnLine SC 996.
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MEMORIAL ON BEHALF OF THE PETITIONER

The Supreme court in case Shreya Singhal v UOI15 declared that any order to ban or limit any
site must be in writing and endorsed by a committee that includes officials of the Ministries of
Law and Justice and Home Affairs.

Hence, in the present situation, the instruction to touch the phone was not issued in writing.
There was no legitimate aim of the government to carry out surveillance.

15
Shreya Singhal v UOI (2015) 5 SCC 1.
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MEMORIAL ON BEHALF OF THE PETITIONER

II. WHETHER THE PETITIONER CAN PROCEED AGAINST THE DOGE GROUP
FOR THE INFRINGEMENT OF RIGHT TO PRIVACY UNDER ARTICLE 21 OF
THE SATYADESH CONSTITUTION?
It is humbly submitted before the hon’ble supreme court that the Doge Group is the performing
sovereign functions under the government of Satyadesh. The Doge Group has breached the
Right to Privacy enshrined in Article 21 of the Satyadesh Constitution.

[2.1] DOGE GROUP IS EXECUTING THE SOVEREIGN FUNCTIONS UNDER THE

SATYADESH GOVERNMENT.
According to Article 1216 of the Constitution of India, the term ‘State’ denotes the union and
state governments, the Parliament and state legislatures, and all local or other authorities within
the territory of India or under the control of the Indian government. Article 12 defines State by
consisting of the following parts of the Constitution-The Government and the Parliament of
India, The Government and the Legislature of each State and Local Authorities and Other
Authorities. Art. 12 mentions that state can be ‘Any other organization which exercises
sovereign functions.’ Doge group is excersing the sovereign functions under the govt.

In the case of the University of Madras v Santa Bai17, the madras High Court evolved the
principle of Ejusdim generis i.e., of the like nature. It means that the authorities are covered
under the expression ‘other authorities which perform governmental and sovereign functions.

The court in Romana Dayaram Shetti v The International Airport Authorities of India18, the
tests were laid down by P.N. Bhagwati, J. for determining whether a body is an agency of
instrumentality of government – Financial resources of the state is the chief funding source that
is if the entire share capital of the corporation is held by the government. Existence of deep and
pervasive state control. Functional character being governmental in essence. And if a
department of government is transferred to a corporation.

According to the tests outlined, the government controls the Doge group, and the organization's
duties are governmental in character. The government provided a public reaction to the matter,

16
Article 12 of the Satyadesh Constitution.
17
University of Madras v Santa Bai AIR 1954 Mad 67
18
Romana Dayaram Shetti v The International Airport Authorities of India 1979 AIR 1628.

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MEMORIAL ON BEHALF OF THE PETITIONER

although it did not specify whether or not the government deployed Omegasus malware. In this
circumstance, the Satyadesh government's position is ambiguous.

[2.2] DOGE GROUP INFRINGED THE RIGHT TO PRIVACY UNDER ARTICLE 21

OF THE SATYADESH CONSTITUTION.
It is humbly submitted before the hon’ble Supreme Court that the surveillance activities are not
reasonable because it violative of right to privacy under Article 21 of the constitution.

As held in the Supreme Court in People’s Union for Civil Liberties v Union of India, the right
to privacy "is a part of the right to 'life' and 'personal liberty' enshrined under Art. 21 of the
Constitution". Tapping is a serious invasion of an individual’s privacy. The right to hold a
telephone conversation in the privacy of one's home or office without interference can certainly
be claimed as "right to privacy" since telephonic conversations are often of an intimate and
confidential nature. 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, the Supreme Court
went on to issue guidelines to curb administrative overreach.

The Supreme Court in the KS Puttaswamy v Union of India, held that the right to privacy is
protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a
part of the freedoms guaranteed by Part III of the Constitution. Phone tapping violates not just
Art. 21 but also Art. 19 liberties.

In Govind v State of Madhya Pradesh19, the Supreme Court held that presuming that the right
to privacy is enshrined in suming that the right to privacy was enshrined in Article 21, it could
only be restricted by a procedure established by ‘law’. For this, the Court also relied on the
example of Article 8 of the European Convention on Human Rights, which recognized the right
to privacy but also allowed for reasonable restrictions on its enjoyment.

The Supreme Court in R. Rajgopal v State of Tamil Nadu20 noted the tort of right to privacy
which protects, “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 the right to
privacy which protects personal property against unlawful governmental invasion.” The Court
recognized this as a fundamental right, but noted it was not absolute.

19
Govind v State of Madhya Pradesh 1975 AIR 1378.
20
R. Rajgopal v State of Tamil Nadu 1995 AIR 264.
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MEMORIAL ON BEHALF OF THE PETITIONER

The Supreme Court in Maneka Gandhi v Union of India21, held that though Article 21 mentions
the ‘procedure established by law’, it has to fair, just and reasonable, not oppressive or
arbitrary. The court held that ‘the expression “personal liberty” in Article 21 is of the widest
amplitude and covers a variety of rights which go to constitute the personal liberty of man and
some of them have been raised to the status of distinct fundamental rights and given additional
protection under Article 19(1).’ The court held that there is a unique relationship between the
provisions of Article 14, Article 19 and Article 21. Therefore, a law depriving a person of
‘personal liberty’ has not only to stand the test of Article 21, but it must also stand the test of
Article 19 and Article 14 of the Constitution.

The Supreme Court in Ram Jethmalani and Ors. v Union of India (UOI) and Ors22 held that
"Right to privacy is an integral part of right to life, a cherished constitutional value and it is
important that human beings be allowed domains of freedom that are free of public scrutiny
unless they act in an unlawful manner." "Revelation of bank account details of individuals,
without establishment of prima facie grounds to accuse them of wrong doing, would be a
violation of their rights to privacy." "State cannot compel citizens to reveal, or itself reveal
details of their bank accounts to the public at large, either to receive benefits from the State or
to facilitate investigations, and prosecutions of such individuals, unless the State itself has,
through properly conducted investigations, within the four corners of constitutional
permissibility.”

Therefore in the present case, Doge group is violating Right to Privacy under Article 21 of the
Constitution. The apprehension of the Respondent is that any inquiry in this behalf should not
jeopardize national security and the steps taken by it to protect national security. There is thus
a broad consensus that unauthorized surveillance/accessing of stored data from the phones and
other devices of citizens for reasons other than nation’s security would be illegal, objectionable
and a matter of concern.23

21
Maneka Gandhi v Union of India 1978 AIR 597.
22
Ram Jethmalani and Ors v Union of India (UOI) and Ors (2011) 8 SCC 1.
23
Manohar Lal Sharma v Union of India AIR 2021 SC 5396.
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MEMORIAL ON BEHALF OF THE PETITIONER

III. WHETHER THE EVIDENCE GATHERED AGAINST BABURAO GANPATRAO

APTE THROUGH SURVEILLANCE IS ADMISSIBLE UNDER THE LAW?
It is humbly submitted before the hon’ble supreme court that the evidence gathered against
Baburao Ganpatrao Apte through surveillance is not admissible under the law. The evidence
collected by the investigating agencies through surveillance is not admissible under the law
because evidence is tampered by Omegasus spyware.

[3.1] EVIDENCE GATHERED AGAINST BABYRAO GANPATRAO APTE

THROUGH SURVEILLANCE IS NOT ADMISSIBLE UNDER THE LAW BECAUSE
IT IS VIOLATING FUNDAMENTAL RIGHTS UNDER ARTICLE 21.
Surveillance is violating Fundamental Right to Privacy under Art. 21 of the Constitution. In
the People’s Union for Civil Liberties vs Union of India, 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". Tapping is a serious invasion of an individual’s privacy.

In KS Puttaswamy v Union of India, Phone tapping not only infringes Art. 21 but also
contravenes Art. 19 freedoms. Puttaswamy Case gave legitimacy to the 'right to privacy' under
the Constitution of India.

The charges of sedition, criminal conspiracy and instigating communal violence against
Baburao were not proved. The guidelines held in the Court that this act had infringed Article
21 of the Constitution of India and the source of telephonic conversation was not verified by
any forensic expert thus the evidence cannot be held admissible under Section 65-B of Indian
Evidence Act, 1872.24

The Delhi High Court in Jatinder Pal Singh v CBI25 has held that permitting illegally
intercepted messages and audio conversations as evidence would lead to manifest arbitrariness
and promote violation of the fundamental rights of citizens. As per Section 5(2) of the
Telegraph Act, an order for interception can only be issued either on the occurrence of any
public emergency or in the interest of public safety, as per the law laid down by the Supreme
Court in PUCL. The Court has said that as per Rule 419A of the Rules framed under the
Telegraph Act, the order of the Home Secretary granting permission to intercept telephonic
conversations is to be forwarded to the review committee within seven days of passing the

24
People’s Union for Civil Liberties v Union of India (1997) 1 SCC 301.
25
Jatinder Pal Singh v CBI 2022 LiveLaw (Del) 23.
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MEMORIAL ON BEHALF OF THE PETITIONER

order. However, in this case there was no material on record to establish that any review of the
order of the Home Secretary was conducted. It was held that tape-records of the intercepted
calls are not admissible, since the due procedure for interception and the Rules framed under
the Telegraph Act were not followed by the authorities.

In Weeks v U.S.26the court propounded the ‘exclusionary rule’ ‘which states that pieces of
evidence obtained by an illegal search or by other illicit means are inadmissible in a court of
law. In the landmark judgment in Mapp v Ohio27 where police seized some seditious books
from Mapp’s residence in an illegal search, the court held that none of the evidence can be
permitted as the search was made in violation of his right to privacy. Evidence obtained in the
course of an illegal search or otherwise will also be inadmissible. Simply putting, this doctrine
means that if the source of evidence is corrupt, any product following it will be treated the
same.28

Therefore, the evidence gathered through surveillance is not admissible under the law.

26
Weeks v US 232 US 383 (1914).
27
Mapp v Ohio 367 US 643.
28
Nardone v US 308 US 338 (1939).
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MEMORIAL ON BEHALF OF THE PETITIONER

PRAYER

Therefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, the Hon’ble Supreme Court of Satyadesh in the present case be pleased to adjudge and
declare that:

-I-

The surveillance activities that are carried out by the Government of Satyadesh under Section
5(2) of Satyadesh Telegraph Act, 1885 and Section 69 of the Satyadesh Information
Technology Act, 2000 are unconstitutional.

-II-

Petitioner can proceed against the Doge Group for the infringement of right to privacy under
Article 21 of the Satyadesh Constitution.

-III-

The evidence gathered against Baburao Ganpatrao Apte through surveillance is admissible not
under the law.

AND/OR

Pass any order that it deems fit in the interest of justice, equity and good conscience.

SD/-

COUNSEL FOR PETITIONER

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