TEAM CODE - AMBEDKAR

IN THE HON’BLE SUPREME COURT OF ANTOPIA

W.P. No. __ of 2020

I.A. No. _________

(Under Article 32 of the Constitution of Antopia, 1950)

IN THE MATTER OF:

TwitPeep

TextUp

EyeFace ...Petitioners

v.

Union of Antopia ...Defendant

AND IN THE MATTER OF:

Non-governmental Organisation …Intervenor/Applicant.

MEMORIAL SUBMITTED TO SHARDA UNIVERSITY SCHOOL OF LAW

MEMORIAL FILED AND APPEARING ON BEHALF OF DEFENDANTS

1
 TABLE OF CONTENTS

TABLE OF CONTENTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

Statutes

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

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

Other Authorities

Constituent Assembly debates, (Vol. 7), 607-8, (Lok Sabha Secretariat 1986) ...................... 16
Constituent Assembly debates, (Vol. 7), 615-16, (Lok Sabha Secretariat 1986) .............. 16, 18
Constituent Assembly Debates, (Vol. 7), 640, (Lok Sabha Secretariat 1986)......................... 16
Constituent Assembly Debates, (Vol. 7), 652, (Lok Sabha Secretariat 1986)......................... 16
European Union General Data Protection Regulations (EU) 2016/679 of the European
Parliament and of the Council of 27 April 2016 .................................................................. 20
Strouds Judicial Dictionary, 4th edn 2005 ............................................................................... 18

Books

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

Foreign Cases

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

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

Books

De Smith, Woolf and Jowell on Judicial Review of Administrative Action (5TH ED., 1995),
Sweet and Maxwell at pp. 595-96........................................................................................ 19

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 INDEX OF AUTHORITIES

Supreme Court Cases

Alak Alok Srivastava v Union of India (2018) 5 SCC 651 ..................................................... 18

Amirabbas v State of Madhya Bharat, (1960) 3 SCR 138 ....................................................... 13
Aniyoth Kunhamina Umma v Ministry of Rehabilitation and Others, (1962) 1 SCR 505 ..... 14
Babul Parate v State of Maharashtra, AIR 1961 SC 884 ......................................................... 21
Behram Khurshed Pesikaka v The State of Bombay, (1955) 1 SCR 613 ................................ 17
Budhan Choudhry v The State of Bihar, (1955) Cri LJ 374 .................................................... 13
Collector of Customs v Sampathu Chetty, AIR 1963 SC 316 ................................................. 21
Express Newspapers v Union of India, AIR 1958 SC 578 ...................................................... 12
Gobind v State of Madhya Pradesh, (1975) 2 SCC 148 .......................................................... 17
Hamdard Dawakhana v Union of India, AIR 1960 SC 554 .................................................... 12
Harakchand v Union of India, AIR 1970 SC 1453 .................................................................. 12
His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v State of Kerala and Anr, (1973)
4 SCC 225 ............................................................................................................................ 16
Ishwari Khetan Sugar Mills v State of Uttar Pradesh, AIR 200 SC 2096 ............................... 20
Justice K.S. Puttaswamy v Union of India, (2017) 10 SCC 1 ................................................. 17
Keshav Singh v Union of India, AIR 1965 SC 745 ................................................................. 15
Kharak Singh v State of Uttar Pradesh, AIR 1963 SC 1295 ................................................... 17
Maneka Gandhi v Union of India (1978) 2 SCR 621 .............................................................. 19
Modern Dental College and Research Centre and Ors. v State of Madhya Pradesh, AIR 2016
SC 2601................................................................................................................................ 20
MP Sharma v Satish Chandra, (1954) SCR 1077 .................................................................... 16
Naresh Mirajkar v State of Maharashtra, (1966) 3 SCR 744................................................... 13
Om Kumar v Union of India, (2001) 2 SCC 386 ..................................................................... 19
Parbhani Transport Cooperative Society Ltd. v The Regional Transport Authority
Aurangabad, (1960) 3 SCR 177. .......................................................................................... 13
Pradeep Kumar Biswas v Indian Institute of Chemical Biology, (2002) 5 SCC 111 .............. 13
Prajwala v Union of India, (2005) 12 SCC 136 ...................................................................... 18
R M Malkani v State of Maharashtra, (1973) 1 SCC 471 ....................................................... 17
Radhey Shyam & Anr v Chhabi Nath & Ors, (2015) 5 SCC 423 ........................................... 13
Ranjit Udeshi v State of Maharashtra, AIR 1976 SC 881 ....................................................... 21
Rex v Basudev, AIR 1950 SC 67............................................................................................. 21
S.R. Bommai v Union of India, AIR 1994 SC 1918................................................................ 19

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 INDEX OF AUTHORITIES

Shayara Bano v Union of India, (2017) 9 SCC 1 .................................................................... 20

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

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 LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS

Abbreviations Full Forms

ART Article

§ Section

Pith. Doctrine of Pith and Substance

Const. Constitution of Antopia, 1950

CAD Constituent Assembly Debate

HCJ High Court of Jorhan

HCER High Court of East Rajlok

HCT High Court of Tricity

SCA Supreme Court of Antopia

Crim. Crime

Priv. Right to Privacy

ICCPR International Covenant on Civil and Political Rights

UDHR United Nations Declaration on Human Rights

Nex. Doctrine of reasonable nexus

Leg. Doctrine of Legitimate Aim

Col. Doctrine of Colourable Legislation

Hals. Halsbury’s Laws of England

Q.B. Queen’s Bench Division

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 STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

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

“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 warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this part.

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)

(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.”

Counsel on Behalf of Defendants

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 ISSUES RAISED

ISSUES RAISED

I.

WHETHER THE JUDICIAL ORDER PASSED BY THE HIGH COURTS IS AMENABLE TO BE CORRECTED
BY A WRIT OF CERTIORARI?

II.

WHETHER THERE IS ANY RIGHT TO PRIVACY UNDER THE CONSTITUTION?

III.

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

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 STATEMENT OF FACTS

STATEMENT OF FACTS

BACKGROUND

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

RULING ON CONSTITUTIONALITY OF ICARDS

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

SPREAD OF FAKE NEWS AND RISE IN CRIME

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

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 STATEMENT OF FACTS

PROCEEDINGS BEFORE DIFFERENT HIGH COURTS

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

HIGH COURT’S ORDER AND DIRECTIONS

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

INCEPTION OF MATTER BEFORE THE SUPREME COURT

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

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 SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

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

CORRECTED BY A WRIT OF CERTIORARI

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

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

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

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 SUMMARY OF ARGUMENTS

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

SOCIAL MEDIA ACCOUNTS

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

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 WRITTEN SUBMISSIONS

WRITTEN SUBMISSIONS

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

CORRECTED BY A WRIT OF CERTIORARI

¶1. It is humbly submitted that the judicial order, passed by the High courts does not suffer
from any infirmity that resulted in a breach of the guarantees enshrined under Part III of the
Constitution. It is further contended, in light of the established precedents, arguendo an
incidental violation had occurred, the petitioners cannot take recourse to Art 32 1 since
fundamental rights cannot be enforced against judiciary as it does not fall under the definition
of “State” in Art 12.2 The arguments concerning this issue shall be multi-pronged, firstly, that
there has been no violation of fundamental right guaranteed under Art 19 3 and the
preliminary directions fall within the reasonable restrictions applicable to Art 19 (1).
Secondly, that the Judicature does not fall within the definition of State under Art. 12.
Thirdly, that the pre-requisites to issue a writ of certiorari do not exist.

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

EXPRESSION GUARANTEED UNDER ART 19(1)(A)

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

1
Article 32, Constitution of Antopia.
2
Article 12, Constitution of Antopia.
3
Article 19, Constitution of Antopia.
4
Hamdard Dawakhana v Union of India, AIR 1960 SC 554.
5
Express Newspapers v Union of India, AIR 1958 SC 578.
6
Harakchand v Union of India, AIR 1970 SC 1453.
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 WRITTEN SUBMISSIONS

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

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

¶4. It is noteworthy to mention that the Hon’ble Supreme Court in a critical decision in the
case of Amirabass10 speaking through Shah J held that, “…denial of equality before the law
or the equal protection of the laws can be claimed against executive or legislative process,
but not against the decision of a competent tribunal”. Furthermore, in cases like Ujjam Bai11,
Riju Sarmah and Pradeep Kumar Biswas12 this court has time and again reaffirmed the view
and held that “......judgments of High Courts and Supreme Court cannot be subjected to writ
jurisdiction, and for want of requisite governmental control13, Judiciary cannot be a State
under Art.12, we also hold that while acting on the judicial side the courts are not included in
the definition of the State.

¶5. The contention raised by the defendants also find firm support in the form of precedents14
established by the Hon’ble Court. It is important to mention two important cases in the form
of Budhan Choudhary15 and Parbhani Transport Co-operative Society Ltd.16 wherein it was
categorically held that the proper remedy to challenge a judicial order would be an appeal or
revision as maybe provided by law.

7
Naresh Mirajkar v State of Maharashtra, (1966) 3 SCR 744.
8
Kemp v Balne, (1844) 1 Dow. & L. 885.
9
Snowden v Hughes, (1944) 321 U.S. 1.
10
Amirabbas v State of Madhya Bharat, (1960) 3 SCR 138.
11
Ujjam Bai v State of Uttar Pradesh & Anr., AIR 1962 SC 1621.
12
Pradeep Kumar Biswas v Indian Institute of Chemical Biology, (2002) 5 SCC 111.
13
Griffith and street, Principles of Administrative Law, 144 (5TH ED., 1973).
14
Radhey Shyam & Anr v Chhabi Nath & Ors, (2015) 5 SCC 423.
15
Budhan Choudhry v The State of Bihar, (1955) Cri LJ 374.
16
Parbhani Transport Cooperative Society Ltd. v The Regional Transport Authority Aurangabad, (1960) 3 SCR
177.
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 WRITTEN SUBMISSIONS

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

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

CERTIORARI

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

¶8. It must be noted that the Constitution does not define the writ of Certiorari and thus there
exists a need to look at the origination of the word “Certiorari” which is embedded in the
English Common law system. One of the fundamental principles concerning the issue of writ
is that it issues to an inferior court. In the celebrated judgement of Rex21 the contours of an
inferior court vis a vis a writ of certiorari was discussed at great length; the reason for

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

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

¶9. It is contended that the High Court cannot be construed as an inferior court in order for a
writ of certiorari to lie. The argument which cannot be accepted and falls flat on its face is
with respect to the supervisory jurisdiction of this Hon’ble Court; it is submitted that this
Hon’ble Court does not have any supervisory jurisdiction over any court and this position
does not seem viable even in the context of Antopian Constitutional scheme where the
Supreme Court and High Courts are granted with co-ordinate jurisdiction in matters of writ.22
It is submitted that the High Court is indeed a superior Court of Record as enunciated under
Art 21523 of the Constitution and is entitled to consider any questions of their jurisdiction
raised before them. In the case of Keshav Singh24 the Hon’ble court affirmed the above raised
contention and held, “….in the case of a superior court, it is for the court to consider whether
any matter falls within its jurisdiction or not.” Thus, it is submitted that the order of the High
Courts is not amenable to be corrected by a writ of Certiorari and the appropriate remedy lies
in the form of Art 136.

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

SCHEME

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

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

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

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

¶12. It is submitted that the majority in the case of M P Sharma29 affirming the same
contention held that, … When the Constitution makers have thought fit not to subject such
regulation to constitutional limitations by recognition of a fundamental right to privacy,
analogous to the Fourth Amendment, we have no justification to import it, into a totally
different fundamental right”

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

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

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

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

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

¶15. The issue before this Hon’ble court has been previously dealt on a number of occasions
in cases like Kharak Singh32 and R M Malkani33 wherein it was held that the privacy is not
guaranteed under the constitution and therefore in an occasion where it is invaded there can
be no infringement of a fundamental right. In another landmark judgement the court held that,
“… too broad a definition of privacy raises serious questions about the propriety of judicial
reliance on a right that is not explicit in the Constitution”34

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

DISCHARGE OF EXECUTIVE FUNCTIONS

¶16. It is submitted that privacy cannot be held to be a part of fundamental rights because
they are immune from any waivers, consequently this would lead to a scenario where there
exist several complications with regard to the functioning of the state. Furthermore, the state
would be virtually barred even from contractually collecting any information from
individuals in India and this would hamper the functioning of the state as it is required to
collect certain information of citizens while exercising its required functions. It is also argued
that reading privacy to be a part of Part III would necessarily put it at logger heads with
statues and executive functions like (a) Taxation laws requiring the furnishing of information;
(b) In relation to a census; (c) Details and documents required to be furnished for the purpose
of obtaining a passport etc.

¶17. The said contention also finds strong support in the landmark judgement of Behram
Khurshed Pesikaka35 wherein it was held that Part III of the Constitution is a part of the wider
notion of securing the vision of justice of and, as a matter of doctrine, the rights as a matter of
guarantee cannot be waived.

31
Justice K.S. Puttaswamy v Union of India, (2017) 10 SCC 1.
32
Kharak Singh v State of Uttar Pradesh, AIR 1963 SC 1295.
33
R M Malkani v State of Maharashtra, (1973) 1 SCC 471.
34
Gobind v State of Madhya Pradesh, (1975) 2 SCC 148.
35
Behram Khurshed Pesikaka v The State of Bombay, (1955) 1 SCR 613.
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 WRITTEN SUBMISSIONS

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

MEDIA

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

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

WIRELESS COMMUNICATIONS AND ACTIVITIES TO THE LEGISLATURE

Black’s Law Dictionary36 defines ‘public interest’ as, “Public Interest something in which
the public, or some interest by which their legal rights or liabilities are affected.” It does not
mean anything the particular localities, but the interest shared by the nation.37 It is submitted
that the Hon’ble court in the case of Prajwala38 while dealing with issues of sexual violence
and child pornography, held them an integral part of overrising public interest and issued
special directions to the state government to tackle the issue. Further, similar guidelines have
also been recently issued by the court in cases of mob lynching39 and fake news40

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

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

36
Black’s Law Dictionary, 6th edn 2009.
37
Strouds Judicial Dictionary, 4th edn 2005.
38
Prajwala v Union of India, (2005) 12 SCC 136.
39
Tehseen S. Poonawalla v Union of India (2019) 15 SCC 649.
40
Alak Alok Srivastava v Union of India (2018) 5 SCC 651.
41
¶4, Moot Proposition.
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 WRITTEN SUBMISSIONS

broadcasting and other similar forms of communications.42 On the other hand, State
Legislature has been endowed with a similar power in regards to safeguarding public order.43
In the landmark judgment of Mcdowell & Co. & Ors44 the Hon’ble court firmly observed that
the powers of Union and State with regards to the matters mentioned in their respective lists,
is presumed to be inviolable. Moreover, the Central Government has issued several rules and
regulations regarding the safe usage of social media.45

[B]. STATE ACTION TO LINK ICARD-SOCIAL MEDIA DOES NOT VIOLATE THE RIGHT TO PRIVACY
UNDER ART. 21

It is submitted that the Hon’ble Supreme Court in Justice K.S. Puttaswamy v Union of India46
though upheld right to privacy as a fundamental right but also observed that it cannot be
construed as an absolute right and must bow down to compelling public interest. Having
established that repeated incidents of mob lynching, fake news and child pornography
constitute overrising public interest, it is our submission that the linkage does not violate Art
21 and clearly satisfies the proportionality test proposed in Maneka Gandhi47 and
Puttaswamy.

It is submitted that while the fundamental rights guaranteed to the citizens under Part III are
inviolable, there still are reasonable restrictions that the State may exercise in order to
balance them with the national public interest.48 For any restriction imposed on Article 21,
the test of proportionality is a must.49 The principle of proportionality evaluates two aspects
of a decision. Firstly, whether the relative merits of differing objectives or interests were
appropriately weighed or "fairly balanced"?50 Secondly, whether the measure in question was
in furtherance of larger public interest.51
In the present case, the state action to link iCard and social media comes as a solution to curb
rising violent issues of national interest and public order. It is submitted that the linkage
satisfies the proportionality test on the following grounds:
42
List I, Entry 31, Sch VII, Constitution of Antopia.
43
List II, Entry 1, Sch VII, Constitution of Antopia.
44
State of A.P. & Ors. v Mcdowell & Co. & Ors, (1996) 3 SCC 790.
45
Accessed 19th May, 2020,
https://meity.gov.in/writereaddata/files/Approved%20Social%20Media%20Framework%20and%20Guidelines
%20_2_.pdf.
46
Justice K.S. Puttaswamy v Union of India, (2017) 10 SCC 1.
47
Maneka Gandhi v Union of India (1978) 2 SCR 621.
48
S.R. Bommai v Union of India, AIR 1994 SC 1918.
49
U.P.S.R.T.C. v Hoti Lal, (2003) 3 SCC 605.
50
Om Kumar v Union of India, (2001) 2 SCC 386.
51
De Smith, Woolf and Jowell on Judicial Review of Administrative Action (5TH ED., 1995), Sweet and
Maxwell at pp. 595-96.
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 WRITTEN SUBMISSIONS

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

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

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

52
A Free and Fair Digital Economy Protecting Privacy, Empowering Indians, BN Saikrishna Committee
Report, 2018 available at https://meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf.
53
European Union General Data Protection Regulations (EU) 2016/679 of the European Parliament and of the
Council of 27 April 2016.
54
Modern Dental College and Research Centre and Ors. v State of Madhya Pradesh, AIR 2016 SC 2601.
55
Shayara Bano v Union of India, (2017) 9 SCC 1.
56
Ishwari Khetan Sugar Mills v State of Uttar Pradesh, AIR 200 SC 2096.
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 WRITTEN SUBMISSIONS

It is submitted that the fundamental rights guaranteed under Art 19(1) are not absolute.57
They are subject to restrictions placed in the subsequent clauses of Art 19.58 The Hon’ble
Supreme Court in the case of Sampathu Chetty59 held that the reasonableness of the restraint
imposed on Art 19 would have to be judged by the magnitude of the evil which it is the
purpose of the restraint to curb or to eliminate. In the case at hand, numerous incidents of
mob lynching and child pornography are being circulated on the social media which has
suddenly given rise to the rate of cyber-crimes and spread of fake news.60 Hence, the State is
empowered under Art 19(2) to impose reasonable restrictions to regulate the freedom of
speech in furtherance of public order.

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

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

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

PRAYER

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

I. The preliminary directions issued by the High Courts of Joran (HCJ) and East
Rajlok (HCER) are in the interest of public order and hence, not amenable to be
corrected by a writ of certiorari or any other directions.

II. That a fundamental right to privacy does not exist under the Constitution of
Antopia.

III. To link iCards with social media accounts in order to maintain public order and
tranquility is in the furtherance of national interest and is within the permissible
limits of legislation.

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

All of which is humbly prayed,

Counsel for the Defendants.

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