Memorial On Behalf of The Petitioner Kle Law College

K
13 1 | Page
BEFORE
THE FEDERAL COURT OF NEVERLAND
UNDER ARTICLE 32
OF
THE CONSTITUTION OF NEVERLAND
[PUBLIC INTEREST LITIGATION
UNDER ARTICLE 32 OF THE CONSTITUION OF NEVERLAND
CASE CONCERNING VIOLATION OF RIGHT OF PRIVACY]
IN THE MATTER OF
MR. TARISH SOOR (PETITIONER)
Vs.
REPUBLIC OF NEVERLAND (RESPONDENT)
MOST RESPECTFULLY SUBMITTED BY
COUNSEL APPEARING ON BEHALF OF THE PETITIONER
MEMORIAL ON BEHALF OF PETITIONERS

2 | Page
TABLE OF CONTENTS
1 LIST OF ABBREVIATIONS 3
2 INDEX OF AUTHORITIES 4
3 STATEMENT OF JURISDICTION 6
4 STATEMENT OF FACTS 7
5 STATEMENT OF ISSUES 8
6 SUMMARY OF ARGUMENTS 9
7 ARGUMENTS ADVANCED 10
ISSUE 1: WHETHER THE PIL IS MAINTAINABLE BEFORE THE

FEDERAL COURT OF NEVERLAND OR NOT?
11
ISSUE 2: WHETHER THE GOVERNMENTAL ORDER

AUTHORISING THE GOVERNMENTAL AGENCIES TO
12
MONITOR, INTERCEPT AND DECRYPT INFORMATION IS
UNCONSTITUTIONAL OR NOT?
ISSUE 3: WHETHER THE GOVERNMENT ORDER IS

21
VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION OF
NEVERLAND?
8 PRAYER 25

3 | Page
LIST OF ABBREVIATIONS
vs........................................................................................................................................versus
ORS...................................................................................................................................Others
Art. ...................................................................................................................................Article
AIR..................................................................................................................All India Reporter
u/A..........................................................................................................................Under Article
Lj..............................................................................................................................Law Journal
SCC............................................................................................................Supreme Court Cases
SC.........................................................................................................................Supreme Court
Supp.....................................................................................................................Supplementary
Oct...................................................................................................................................October
COI..............................................................................................................Constitution of India
PIL....................................................................................................... Public Interest Litigation

4 | Page
INDEX OF AUTHORITIES
STATUTES
1. The Constitution of Neverland (The Constitution of Neverland pari materia to the
Constitution of India.)
2. The Information Technology Act, 2000
3. The Telegraph Act, 1885
CASES
1 Bodhisattwa Gautam v. Subbra Chakraborty
2 S.P Gupta vs UOI
3 Kharak Singh v Union of India
4 People’s Union for Civil Liberties v. Union of India
5 R.Rajagopal v. Union of India (1994)1
6 Govind v. State of M.P (1975)
7 Renu v. District and Session
8 Deep Chand v. State of U.P
9 Md. Ishaq v. State
10 Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors
11 Unni Krishnan v. State of A.P.
12 Mr. X v. Hospital Z
13 Sharda v. Dharmpal
14 Kyllo v. United State
15 National Media Ltd v Jooste

1
1995 AIR 264, 1994 SCC (6) 632

5 | Page
16 Bachan Singh v. State of Punjab
17 Vishaka v State of Rajasthan
18 Big Brother Watch and Others v. the United Kingdom
19 R v The Commissioner of Police of the Metropolis (2011)
20 Maneka Gandhi v. Union of India,
21 Bijoe Emmanuel v. State of Kerala
22 A.K. Gopalan v. State of Madras
23 State (NCT of Delhi) v. Navjot Sandhu
24 Francis Coralie v. Union Territory of Delhi
25 Kesavananda Bharti v. State of Kerala
26 Haji Abdool Shakoor & Co. v. Union of India
27 Sheo Nandan Paswan v. State of Bihar,
28 Naraindas v. State of Madhya Pradesh
29 District Registrar and Collector v. Canara Bank
30 Kishan Chand v. Commr. Of Police,
31 Mohinder Singh Gill v. Chief Election Commr
32 Budhan Chaudhary v. State of Bihar
33 E.P. Royappa v. State of Tamil Nadu
34 Shrinivasa Rao v. J. Veeraiah
BOOKS
M P Jain, Indian Constitutional Law, 917 (7th ed., Lexis-Nexis Butterworth Wadhwa
Publications, Nagpur, 2016)

6 | Page
Immanuel Kant, The Moral Law: Groundwork of the Metaphysic of Morals, 42 (Herbert
James Paton eds., Psychology Press, London, UK, 2005)
D D Basu, Shorter Constitution of India, (14th ed., Volume 1 Articles 1 to 151, Lexis-Nexis)
INTERNATIONAL INSTRUMENTS
1. Art. 12, Universal Declaration of Human Rights, 1947
2. Section 2(1)(d), Protection of Human Rights Act, 1993
3. Art. 9, International Convention on Civil and Political Rights
WEBSITES
www.manupatra.com
www.supremecourtofindia.nic.in
www.casemine.com
www.indiankanoon.org

7 | Page
STATEMENT OF JURISDICTION
The Federal Court of Neverland has the jurisdiction in this matter under Article 32 of the
Constitution of Neverland, 1950.
Article 32 - Remedies for enforcement of rights conferred by this part.
1. The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo 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.
If the Court deems it appropriate to proceed in this matter, we humbly accept your
jurisdiction.

8 | Page
STATEMENT OF FACTS
Government Policies:
The government of REPUBLIC OF NEVERLAND formulated a policy for
profiling of its citizens and to provide them a ID card which were based on bio-
metric details. The ID card was meant to identify citizens for various benefits
Eleven judges bench of the Federal Court of Neverland in 2017 ruled that the ID
card which collects the biometric details are violative of right to privacy
Government Order:
In April 2017, The union Government promulgated an order under Section 69 of
The Information Technology Act, 2000 authorizing few governmental agencies
to monitor, intercept and decrypt information which is transmitted, generated,
stored in or received by any computer
Reason for writ Petition
Under the order, an individual who fails to assist these government agencies with
technical assistance or extend all facilities can face upto seven years of
imprisonment or be liable to be fined.
Mr Tarish Soor, a citizen of the country, fearing that the governmental agencies may intercept
his data filed a PIL before the Federal Court challenging the notification and seeking an order
for ensuring that none of his information which is transmitted, generated, stored in or
received by any of the agencies mentioned in the governmental notifications would be
intercepted.

9 | Page
STATEMENT OF ISSUES
-I-
WHETHER THE PIL IS MAINTAINABLE BEFORE THE FEDERAL COURT OF
NEVERLAND OR NOT?
-II-
WHETHER THE GOVERNMENTAL ORDER AUTHORISING THE GOVERNMENTAL
AGENCIES TO MONITOR, INTERCEPT AND DECRYPT INFORMATION IS
UNCONSTITUTIONAL OR NOT?
-III-
WHETHER THE GOVERNMENT ORDER IS VIOLATIVE OF ARTICLE 14 OF THE
CONSTITUTION OF NEVERLAND?

10 | Page
SUMMARY OF ARGUMENTS
ISSUE 1: WHETHER THE PIL IS MAINTAINABLE BEFORE THE FEDERAL

COURT OF NEVERLAND OR NOT?
It is humbly submitted before the Hon’ble Court that present PIL is maintainable against
Republic of Neverland since it is a state u/a 12 of the Constitution. It is further submitted that
since there has been gross violation of Article 14, 19 and 21 of the Constitution, the PIL is
maintainable, and on account of the same relief is sought.
1.1. The petitioners have a locus standi
1.2. The fundamental rights of the citizens have been violated
ISSUE 2: WHETHER THE GOVERNMENTAL ORDER AUTHORISING THE

GOVERNMENTAL AGENCIES TO MONITOR, INTERCEPT AND DECRYPT
INFORMATION IS VIOLATIVE OF RIGHT TO PRIVACY OR NOT?
• It is humbly submitted before the Hon’ble Court that the impuged order authorising
the governmental agencies to monitor information brought by the government of
Neverland is unconstitutional as they are in violation of fundamental rights
guaranteed under Part III of the Constitution of Neverland .
• It is humbly submitted by the Appellant that Right to Privacy has been accepted by
the SC in the case of K.S. Puttaswamy, as a constitutionally protected fundamental
right. It is an integral part of Right to life and Personal liberty, and any restriction
imposed on it should be in accordance with procedure established by law, i.e., it must
satisfy the requirements of Art. 14 and 19. As per the facts and circumstances of the
case, the information sought from the people, severely violates the bodily and mental
integrity of the people, in addition to having no relation to the objective of the Act.
ISSUE 3: WHETHER THE GOVERNMENT ORDER IS VIOLATIVE OF ARTICLE

14 OF THE CONSTITUTION OF NEVERLAND?
It is humbly submitted that Art. 14 provides for equality before the laws and equal protection
of the laws. Two tests have been provided by the SC overtime, re not satisfied, in order to
fulfil the requirements of Art. 14 of the Constitution.

11 | Page
ARGUMENTS ADVANCED
ISSUE 1:
WHETHER THE PIL IS MAINTAINABLE BEFORE THE FEDERAL COURT OF

NEVERLAND OR NOT?
The petitioners humbly submit that the instant PIL is maintainable under Article 32 of the
Indian Constitution. This argument is twofold. Firstly the petitioners have a bona fide interest
and hence they have locus standi [1.1]. Secondly, the fundamental rights of the citizens have
been violated [1.2].
1.1 The petitioners have a locus standi

“Locus Standi” is the right of the party to appear and be heard on the question before any
tribunal. 2It means the legal capacity to invoke the jurisdiction of the court. The Federal
Court has ruled that to exercise its jurisdiction under Article 32, it is not necessary that the
affected person should personally approach the court. The court can itself take cognizance of
the matter and proceed suo moto or on a petition of any public spirited individual or body3
In S.P Gupta vs UOI4 the court observed that, “any member of the public having sufficient
interest can maintain an action for judicial redress from violations of the provisions of the
constitution or the law and seek enforcement of such provision or legal duty.
Therefore, locus standi of the petitioners should not be in question.
1.2 The fundamental rights of the citizens have been violated

First and foremost, the very act of surveillance – taken on its own– infringes fundamental
rights under Articles 19(1)(a) and 21. The Petitioners respectfully submit that the very
existence of a surveillance system impacts the right to privacy and chills the exercise of
liberties under Articles 19 and 21. This was explained by Justice Subba Rao in his dissenting

2
Wharton’s Law Lexicon, 15th edition 2009, p.1019.
3
Bodhisattwa Gautam v. Subbra Chakraborty, AIR 722, (SC 1996).
4
AIR 149, (SC 1982)

12 | Page
opinion in Kharak Singh v Union of India5, and has, most recently, been upheld by this
Hon’ble Court in Puttaswamy (Privacy).
The very existence of such disproportionate power vesting with one wing of government
would violate not only Part III of the Constitution, which impacts the vertical relationship
between the citizen and the State; but would also impact the horizontal separation of power
between the executive, legislature and judiciary.
The fact that surveillance, particularly a structure such as the one erected by the Impugned
Provisions and the Impugned Notification, seriously impacts the right to privacy is a
proposition that is no longer res integra. This Court has taken this view in People’s Union
for Civil Liberties v. Union of India 6 (the “Wiretapping Judgment”), and this view has
subsequently been upheld in Puttaswamy (Privacy) and Puttaswamy (Aadhaar).
It is the Petitioners case that, in light of the law laid down in Puttaswamy (Privacy) and
Puttaswamy (Aadhaar), the lack of any oversight, in itself, warrants a finding that the
Impugned Provisions and the Impugned Notification are unconstitutional for the following
reasons:
By design, surveillance - which operates in secret - curtails the operation of Articles 32 and
226 of the Constitution, as a person who suspects that she is under surveillance, in many
cases will have no way of proving it, and cannot therefore establish a breach in accordance
with Articles 32 and 226, until that information is revealed.
The “necessary or expedient” standard adopted under sub-clause (1) of Section 69 to

authorize electronic surveillance woefully falls short of “the test of proportionality” - a sine-
qua-non to curtail fundamental rights under Articles 19(1)(a) and 21.
In the case of R.Rajagopal v. Union of India (1994)7
Privacy relates to ability to control the dissemination and use of one’s

personal information. The personal liberty in Article 21 is of the widest
amplitude and it covers a variety of rights which constitute the personal
liberty, secrecy, autonomy, human dignity, human right, self-evaluation,
limited and protected communication.

5 [1964] 1 SCR 332
6 (1997) 1 SCC 301
7 1995 AIR 264, 1994 SCC (6) 632

13 | Page
The fundamental right to privacy enshrined under Art. 21 of the Constitution have been
violated because of the impugned order.
In the case of Govind v. State of M.P (1975):8 The Supreme Court established that the right
to privacy is a fundamental right. It derived the right to privacy from both the right to life and
personal liberty as well as freedom of speech and movement.
It is humbly submitted that the present PIL is maintainable against Republic of Neverland.
ISSUE 2:
WHETHER THE GOVERNMENTAL ORDER AUTHORISING THE

GOVERNMENTAL AGENCIES TO MONITOR, INTERCEPT AND DECRYPT
INFORMATION IS UNCONSTITUTIONAL OR NOT?
Any meaningful human existence requires independence in thought and action

which is protected by privacy.
The legal definition of privacy has evolved over a period of time. In an 1890
article by Samuel Warren and Louis Brandeis 9 who were concerned about the
invasion of privacy by the photographic images, argued for the creation of a general
right of privacy that would give an individual a right to prevent the unauthorized
use of private matters by the press. The authors foresaw that new technologies,
such as the telephone and photographs, would lead to violation of the right to be let
alone, and they concluded that privacy protection required better legal protection.
In 1967, a more modern definition of the Right to Privacy10 was propounded by Alan
Westin, which has also been accepted by the US Supreme Court. According to
this definition, the Right to Privacy is the “claim of individual, groups and
institutions to determine for themselves when, how and to what extent
information about them is communicated to others”. Although privacy may be a

8
1975 SCC (2) 148
9
The Right to Privacy, Samuel D. Warren; Louis D. Brandeis Harvard Law Review, Vol. 4, No. 5. (Dec. 15,
1890), pp. 193-220
10
Alan F. Westin, Privacy and Freedom, 25 Wash. & Lee L. Rev. 166 (1968)

14 | Page
value common to most societies, its recognition as an enforceable right in various

legal systems has been relatively recent.
It is humbly submitted before the Hon’ble Court that the order authorising the governmental
agencies to monitor, intercept and decrypt information brought by the government of
Neverland is unconstitutional as though the order has been promulgated by the state, they are
in violation of Part III of the Constitution of India, which guarantees the people certain
fundamental rights and therefore, they are void, being in contravention with Art. 13(2) of the
Constitution of Neverland.
1. The main objective of Art. 13 is to secure the paramountcy of the constitution

especially with regards to fundamental rights.11 The state is prohibited from making
any law which takes away or abridges rights conferred by Part III of the
Constitution.12 If the state makes such a law then, it would be ‘still born law’ and void
to the extent of such contravention.13
2. Though post-constitutional laws inconsistent with fundamental rights are void from
their very inception yet a declaration by the court of their validity will be
necessary.14Therefore, the order promulgated by the government of Neverland is void,
and a declaration of the same by the SC is necessary.
3. It is humbly submitted before this Hon’ble Court that the Right to Privacy has been
recognized as a fundamental right and the order brought by the respondent is in
violation of Arts. 14, 19 and 21 of the Constitution of Neverland.
4. It is humbly submitted before the Hon’ble Court that Right to Privacy is the basic
inalienable right of an individual15, Concomitant of his right to exercise control
over his personality and is essential for his development as a human being. The liberty
of an individual is a matter of fundamental natural law, a private preserve and must be
safeguarded from unnecessary interference.16
5. Right to privacy has been held to be constitutionally protected fundamental
right.17 Right to privacy is vested within right to life and personal liberty under Art.

11
Renu v. District and Session Judge, Tis Hazari, AIR 2014 SC 2175
12
Art. 13(2), The Constitution of Neverland, 1950
13
Deep Chand v. State of U.P., AIR 1959 SC 648.
14
Md. Ishaq v. State, AIR 1961 All 532.
15
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors., AIR 2015 SC 3081
16
Gobind v. State of Madhya Pradesh and Ors., (1975) 2 SCC 148
17
Gobind v. State of Madhya Pradesh and Ors., (1975) 2 SCC 148

15 | Page
21 of Constitution of Neverland.18 A citizen under this right has the right to protect
and safeguard the liberty of his own, his family, marriage, procreation, motherhood,
childbearing and education among other matters.19
6. According to Black’s Law Dictionary, Privacy has been defined as, “right to be left
alone20”.Right of a person to be free from any unwarranted publicity; right to live
freely from any unwarranted interference by the public in matter with which public is
not necessarily concerned”. It is on the desire of people to choose freely under what
circumstances and to what extent they will expose themselves, their attitude and their
behaviour to others.21
7. The scope of Art. 21 is very broad and it covers every aspect of life which is required
for an individual to live a healthy and secured life. Art. 21 takes all those aspects of
life which go to make a person's life meaningful and even State can’t violate it.22
8. Art. 21 protects the dignity of human life, one's personal autonomy, one’s right to
privacy, etc. Right to dignity has been recognised to be an essential part of the right to
life and accrues to all persons on account of being humans. If we talk of right to
privacy then it also contains a broad scope in it like tapping of telephonic
conversation, disclosure of dreadful disease23 subjecting to medical tests.24
9. Here in the present case, the information sought under the order is very intimate and
integral to one’s personality and hence making it mandatory to provide basic and
intimate information is unconstitutional and violative of Fundamental Right to
privacy.
PRIVACY BY FOREIGN COURTS AND CONSTITUTIONS:

“The harms of important personal data leaking are far greater than having a digital
identity," said co-founder of the Internet Freedom Foundation, Pahwa, referring to reported
leaks of people's biometric data.

18
Kharak Singh v. State of UP, AIR 1963 SC 1295
19
Unni Krishnan v. State of A.P. (1964) 1 SCR 332
20
Rajgopal v. State of Tamil Nadu, 1994 6 SCC 632
21
Alan Westin, Privacy and Freedom (1967) in Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and
Ors., AIR 2015 SC 3081
22
23
Mr. X v. Hospital Z, AIR (1995) SC 95
24
Sharda v. Dharmpal, AIR (2003) SC 3450

16 | Page
In an English case of Douglas v Hello Ltd25, it was held that:
“What the House [in Campbell] agreed upon was that the knowledge, actual or imputed, that
information is private will normally impose on anyone publishing that information the duty
to justify what, in the absence of justification, will be a wrongful invasion of
privacy.”
It was further argued that reliance must be placed upon the judgment of Sedley
26
LJ in Douglas case, where it was said that:
"What a concept of privacy does, however, is accord recognition to the fact that the
law has to protect not only those people whose trust has been abused but those who
simply find themselves subjected to an unwanted intrusion into their personal lives.
The law no longer needs to construct an artificial relationship of confidentiality
between intruder and victim: it can recognise privacy itself as a legal
principle drawn from the fundamental value of personal autonomy."
In United States, in Kyllo v. United States27, the U.S. Supreme Court found that the
use of a thermal imaging device, aimed at a private home from a public street,
to detect relative amounts of heat within the private home would be an
invasion of the privacy of the individual.
In South African case of National Media Ltd v Jooste28, Justice Harms defined privacy
in the following terms:
“Privacy is an individual condition of life characterized by exclusion from the

public and publicity. The condition embraces all those personal facts which a
person concerned has determined him to be excluded from the knowledge of
outsiders and in respect of which he has the will that they be kept private”
NEVERLAND’S COMMITMENT UNDER INTERNATIONAL LAW

1. The recognition of privacy as a fundamental constitutional value is a part of
Neverland’s commitment to a global human rights regime. The state is required to

25
Douglas v Hello Ltd [2001] QB 967
26
Ibid.
27
Kyllo v. United States 533 US 27 (2001)
28
National Media Ltd v Jooste, 1996 (3) SA 262 (A)

17 | Page
endeavour to “foster respect for international law and treaty obligations in the
dealings of organized peoples with one another”.29
2. The Universal Declaration of Human Rights of which Neverland is a party
recognises that everyone has the protection of law against interference with his
privacy, family, home or correspondence, or attack upon his honour and reputation.30
Similarly, the International Covenant on Civil and Political Rights casts an obligation
on states to respect, protect and fulfil its norms. Art. 17 of the ICCPR casts a duty
upon the states to adopt and enact measures to prohibit undue interferences with the
exercise of right to privacy of people. The government in order to give effect to these
provisions of ICCPR has enacted the Protection of Human Right Act, 1993 which
includes liberty as the basic human rights guaranteed to the people.31
3. The obligations assumed by India in International Conventions and Treaties, must
reflect in the legislations enacted by the government.32 Also, in absence of any
provision of domestic law, the provisions of the Conventions of which the country is a
party shall be applicable.33
4. Where there is a contradiction between international law and a domestic statute, the
Court would give effect to the latter.34 In the present case, there is no contradiction
between the international obligations which have been assumed by Neverland and the
Constitution. The Court should not readily presume any inconsistency. Neverland
being a responsible member of the international community, the Court must adopt an
interpretation which abides by the international commitments made by the country
and recognise right to privacy as fundamental right.
5. In the celebrated international judgment Big Brother Watch and Others v. the
United Kingdom35 the European court of Human rights (EcHCR) held that the
bulk interception regime violated Article 8 (right to respect for private and family life)
of the Convention as there was insufficient oversight both of the selection of Internet
bearers for interception and the filtering, search and selection of intercepted
communications for examination, and the safeguards governing the selection of
“related communications data” for examination were inadequate. The Court also held

29
Art. 51(C), The Constitution of Neverland, 1950
30
Art. 12, Universal Declaration of Human Rights, 1947 (Adopted on December 10, 1948)
31
Section 2(1)(d), Protection of Human Rights Act, 1993.
32
Bachan Singh v. State of Punjab, (1980) 2 SCC 684
33
Vishaka v State of Rajasthan, (1997) 6 SCC 241
34
35
nos. 58170/13, 62322/14 and 24960/15) 13 September 2018

18 | Page
that the regime for obtaining communications data from communications service
providers violated Article 8 as it was not in accordance with the law; and that both the
bulk interception regime and the regime for obtaining communications data from
communications service providers violated Article 10 (freedom of expression) of the
Convention
6. Justice Chandrachud cites the decision of the UK Supreme Court in R v The
Commissioner of Police of the Metropolis (2011) wherein it was held that the police
force's policy of retaining DNA evidence in the absence of 'exceptional
circumstances' was unlawful and a violation of Article 8 of the European Convention
on Human Rights. The court held that the seizing of blood taken for medical purposes
was a violation of law and observed that “the restraints imposed on government to pry
into the lives of the citizen go to the essence of a democratic state.”
It is from this menu that a standard of review for limiting the right of privacy needs to be
chosen.
ORDER AUTHORIZED BY THE GOVERNMENT IS NOT IN ACCORDANCE

WITH THE PROCEDURE ESTABLISHED BY LAW AS PER ART. 21 OF THE
CONSTITUTION
1. Right to Privacy has been culled from Art. 21 of the Constitution of India, as the
concept of privacy overlaps with that of liberty. Right to Privacy is an integral part
of Right to life and Personal Liberty, and it can be curtailed only in accordance
with the “Procedure established by Law”, as provided under Art. 21 of the
Constitution of India.36
2. International Convention on Civil and Political Rights of which India is a
signatory also provides that it is duty of the state to protect the liberty of the
people and it can be restricted, only in accordance with such procedure as are
established by law.37
3. The SC in Maneka Gandhi, has laid down a triple test for any law to be
considered to be in accordance with the ‘Procedure established by law’: (1) The

36
People’s Union for Civil Liberties v. Union of India, AIR 1991 SC 207
37
Art. 9, International Convention on Civil and Political Rights (Adopted by United Nations General Assembly
on December 16, 1966)

19 | Page
law must prescribe a procedure (2) the procedure must satisfy the requirements of
Arts. 14 and 19 (3) and, it should be just, fair and reasonable.38
4. Order authorized by the government is not in accordance with procedure
established by law, i.e., it is neither just, fair and reasonable nor does it satisfy the
requirements of Art. 14, 19 and 21 of the Constitution and therefore it is arbitrary
and unreasonable amounting to infringement of right to privacy as no such
circumstances exist that justify the restrictions imposed by the government on the
exercise of right to privacy of people.
ORDER AUTHORIZED BY THE GOVERNMENT IS IN VIOLATION OF ART. 19

OF THE CONSTITUTION
1. It is humbly submitted before the Hon’ble Court that the order violates the Right to
remain silent enunciated under Art. 19(1) (a) of the Constitution. The ambit of
freedom of speech and expression provided under Art. 19(1) (a) of the Constitution is
very wide. Right to remain silent is included within the definition of freedom of
speech and expression as has been recognized by the SC in the case of Bijoe
Emmanuel v. State of Kerala.39 The right includes by necessary implication,
freedom not to listen and/or to remain silent. Silence postulates a realm of privacy.
The privacy of the individual recognises an inviolable right to determine how freedom
shall be exercised. An individual may perceive that the best form of expression is to
remain silent. An important manifestation of the principle of free speech is that one
who chooses to speak may also decide what not to say. The right of freedom of
thought as guaranteed by the Constitution against state action includes both right to
speak freely and the right to refrain from speaking at all. As such every citizen is
entitled to exercise the right except when restrictions are imposed on its exercise in
accordance with Art. 19(2) of the Constitution.40
2. The state by authorizing this order mandatory for has compelled the citizens to part
with their demographic and biometric information in clear violation of their right to
remain silent. Further, there exists no reasonable ground to restrict the right to remain
silent of the people.

38
Maneka Gandhi v. Union of India, AIR 1978 SC 597
39
Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748
40
A.K. Gopalan v. State of Madras, AIR 1950 SC 27

20 | Page
3. The overbroad and vague nature of Section 69; the lack of any adequate safeguards;
the impossibility of ensuring substantive due process, while deciding whether the
decision to intercept, monitor, or decrypt was compliant with the Act and Rules; the
absence of any ex ante or ex post parliamentary or judicial oversight; and the failure
of the government to enact a privacy/data protection law – results in a chilling effect
on the freedom of speech and movement under Article 19(1)(a) and Article 19(1)(d)
of the Constitution.
ORDER AUTHORIZED BY THE GOVERNMENT OF NEVERLAND IS NOT JUST,

FAIR AND REASONABLE
1. The SC has held in Maneka Gandhi’s Case,41 that for any law to be valid, it must be
in accordance with the procedure established by law, i.e., the law in addition to
satisfying the requirements of Arts. 14 and 19, must also be in conformity with the
principles of Natural Justice which includes, that it must be just, fair and reasonable.
Whether a law is just, fair, and reasonable is to be determined by the facts and
circumstances of the case.
2. In the present case, according to the respondent it is necessary to implement the order
mandatorily for the people in the country to implement welfare schemes successfully,
to reduce corruption and to strengthen the security of Neverland, but the same could
be done so, with other methods that do not restrict the fundamental right to privacy of
the people to such extent. The laws brought by the government grossly violate the
dignity of the people42 by depriving them of their choice and keeping them under
constant surveillance.
3. There is no scope for an individual subjected to surveillance to approach a court of
law, either prior to, or during or subsequent to, acts of surveillance, since the system
itself is covert, especially where it relates to electronic surveillance based on the
grounds specified in section 69(1) of the Information Technology Act 2000. There
would be little scope for redress since even if such action is illegal, the evidence
gathered would remain admissible given extant principles laid down by this Hon’ble
Court43

41
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
42
Art. 21, The Constitution of India, 1950
43
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600

21 | Page
ORDER AUTHORIZED BY THE GOVERNMENT VIOLATES THE DIGNITY

OF THE PEOPLE OF NEVERLAND
1. Dignity is an integral part of the Constitution.44 Reflections of dignity are
found in the guarantee against arbitrariness,45 the lamps of freedom46 and in
the right to life and personal liberty47. The right to privacy is an element of
human dignity.48 Privacy ensures that a human being can lead a life of dignity by
securing the inner recesses of the human personality from unwanted intrusion.49
The term, ‘life’ in Art. 21 does not mean ‘mere animal existence’, rather right to
live with dignity.50 Therefore, any violation of dignity of an individual is
violation of right to life of the individual.
2. In the present case, the respondent requires various demographic and biometric
information which are intimate to one’s personality, to be disclosed by the people.
Requirement to part with biometric information is a violation of the privacy of the
body of an individual, which is a part of the integrity of an individual, enabling
him to realize his freedom of thought, belief and self- determination, which are
essential components of the dignity of an individual, as has been observed by the
SC in K.S. Puttaswamy.51
CONSTANT STATE SURVEILLENCE

Liberty is among the core values of the Constitution of Neverland. Right to privacy which is
an integral part of Right to life ensures freedom from unwarranted state intervention. The
order promulgated by the government, which aims to be used as a multipurpose identification
system, all the data pertaining to an individual could be accessed at one time. This situation
severely compromises with the individual’s autonomy, which is a well enshrined concept in
human rights philosophy by the great philosophers such as Emanuel Kant52. In other words,
every decision made by a person in Neverland could be under state surveillance. This could

44
Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 1746
45
46
47
48
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461
49
50
Kharak Singh v. State of U.P. and Ors., AIR 1963 SC 1295
51
52
Immanuel Kant, The Moral Law: Groundwork of the Metaphysic of Morals, 42 (Herbert James Paton eds.,
Psychology Press, London, UK, 2005)

22 | Page
potentially lead to the denial of, and access to, many important social opportunities and other
facilities for a particular section of people, who could be discriminated against by the state,
using the information by the authorities implementing this order.
1. Such action is only justified in case where the person is accused of some offence,
otherwise regular surveillance of day to day transaction by government of general
public is not just and fair in any manner and constitutes a violation of right to life of
the people. With regard to telephone tapping, the SC observed in Kharak Singh53,
that, while telephone interception of guilty person by the police through lawful means
is justified in larger public interest, the same is not justified when an innocent citizen
is involved and will amount to violation of right to privacy, of the person.
2. Further, the government has also provided that, if someone fails to assist the
government agencies with technical assistance can face up to 7 years of prison, which
is not only unjust and unreasonable, but also limits severely the autonomy of the
individual, who is left with no choice but to comply.
ISSUE 3:
WHETHER THE GOVERNMENT ORDER IS VIOLATIVE OF ARTICLE 14 OF

THE CONSTITUTION OF NEVERLAND?
As has been explained by BHAGWATI J. in Bachan Singh v. State of Punjab 54 Rule of law
which permeates the entire fabric of Indian Constitution excludes arbitrariness. “Every state
action must be non-arbitrary and unreasonable. Otherwise the court would strike it down as
invalid.” If a law is arbitrary or irrational it would fall foul of Art. 14.
Maneka Gandhi is an authority for the proposition that the principles of natural justice
are an integral part of the guarantee of equality assured by Art. 14.55 An order depriving
a person of his civil right passed without affording him an opportunity of being heard sufffers
from the vice of violation of natural justice and is thus an arbitrary order. 56
As an example, it has been held that any penalty disproportionate to the gravity of the
misconduct would be violative of Art. 14. The law always frowns on unanlyzed and
unfettered discretion conferred on any instrumentality of the state 57

53
Kharak Singh v. State of U.P. and Ors., AIR 1963 SC 1295.
54
AIR 1982 SC 1336
55
Maneka Gandhi v. Union of India, AIR 1978 SC 597
56
Haji Abdool Shakoor & Co. v. Union of India, JT 2001 (10) SC 438
57
Sheo Nandan Paswan v. State of Bihar, AIR 1987 SC 877

23 | Page
The Court can veto any conferment of discretionary power on an authority if it is too broad,
sweeping or uncanlised. The SC has laid down the applicable principle in the follwing words
in Naraindas 58:
“Article 14 ensures equality before law and strikes at arbitrary and discriminatory state
action....... If power conferred by statute on any authority of the State is vagrant and
unconfined and no standards or principles are laid down by the statute to guide and control
the exercise of such power, the statute would be violative of the equality clause, because it
would permit arbitrary and capricious exercise of power, which is the antithesis of equality
before law.”
Under the garb of the power conferred by Section 69 the person authorized may go on
rampage searching every person for custody of information. A reasonable nexus between
stringency of the provision and the purpose sought to be achieved must exist 59
Every person, high or low, is susceptible to misusing power in the absence of proper controls.
The status of an officer is no guarantee that he will not misuse his powers. 60. In fact the SC
itself has warned that “wide discretion is fraught with tyrannical potential even in high
personages, absent legal norms and institutional checks”.61
A powerful reiteration of the principle that uncontrolled and unguided discretionary power is
incompatible with Art. 14 comes from the SC in Suman Gupta v. State of Jammu & Kashmir.
62
Two tests have been provided by the SC overtime, which any law passed by the government
is required to satisfy, in order to fulfil the requirements of Art. 14 of the Constitution and the
order are unable to satisfy the requirements so laid down.
1. TEST OF REASONABLE CLASSIFICATION

While Art. 14 allows reasonable classification for the purposes of legislation it forbids
any sort of class legislation. The test of reasonable classification was laid down by SC
in Budhan Chaudhary v. State of Bihar63, which provides that:

58
Naraindas v. State of Madhya Pradesh, AIR 1974 SC 1232
59
District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496
60
Kishan Chand v. Commr. Of Police, AIR 1961 SC 705, 715
61
Mohinder Singh Gill v. Chief Election Commr., AIR 1978 SC 851
62
AIR 1983 SC 1235
63
Budhan Chaudhary v. State of Bihar, AIR 1955 SC 191

24 | Page
(1) The classification proposed in the legislation must be founded on intelligible

differentia and that,
(2) There must be close nexus between the classification and the object of the Act.
Principle of Intelligible Differentia
The expression intelligible differentia means difference capable of being understood and
should be reasonable and not arbitrary.
There should be Rational Nexus between Classification and Objective Sought
It is contended that the law can only make and set apart the classes according to the needs and
exigencies of the society. The legislative policy should be clear and definite and an effective
method of carrying out that policy should be vested by the statute upon a body of
administrators or officers to make selective application of the law to certain classes or groups
of persons.64
In the present case, any of the details sought by the government like, number of spouses and
children, laws under which marriage was solemnized, educational qualification, disorders like
permanent infertility, religion to which both the spouses belong, are not only intimate to
one’s person, but also cannot be treated as a class of their own as these do not adequately
differentiate between the so called class of people and the rest. And, the classification so done
has no relation with the objective of this order. The order has been brought by the
government to reduce corruption, strengthen the security of the state and to ensure successful
implementation of welfare schemes. There is no nexus between the classification and the
objectives of the Act; therefore, it fails the test of reasonable classification.
2. TEST OF ARBITRARINESS
The order promulgated the government is arbitrary and unreasonable as there is no
reasonable classification in place and the classification howsoever done has no nexus
with the objectives of the law brought by the government of Neverland. The government
asking for religion of the people for the purpose of gaining biometric details is not only
unreasonable but also in violation of Art. 25 of the Constitution of India.

64
M P Jain, Indian Constitutional Law, 917 (7th ed., Lexis-Nexis Butterworth Wadhwa Publications, Nagpur,
2016)

25 | Page
Further, no proper guidelines have been laid in the Act for its implementation by the
executive rendering it arbitrary which is the antithesis of right to equality guaranteed to
the people by the Constitution.65
ADMINISTRATIVE DISCRETION AND ARTICLE 14

A common tendency of modern democracies is to confer discretionery powers on the
government or administrative officers. The power is couhced in usually very broad
phraseology and gives a large are of choice to the administrator concerned to apply the law to
actual factual situations.
In order to ensure that discretion is properly exercised, it necessary that the statute in question
lays down some norms or priniciples according to which the administrator has to exercise the
discretion. Many a time the statutes do not do this and leave the administator free the power
according to his judgement. This creates the danger of official arbitrariness which is contrary
to the doctrine of equality. Article 14 has evolved into a very meaningful gurantee against
any action of the Administration which may be arbitrray, discriminatory or unequal. 66
This principle manifests itself in the form of the following propositions:
1) A law confering unguided and unrestricted power on an authority is discriminatory
2) Article 14 illegalizes discrimination in the actual exercise of any discretionary power
3) Article 14 strikes at arbitrariness in administrative action and ensures equality of
treatment.
The government order thus “fails the test of section 69(1) of the Information
Technology Act at the threshold.” The order merely empowers the concerned agencies
to intercept, monitor and decrypt information but does not provide any reasons for
exercising this draconian power. So not only is it ultra vires the Act, it is also
unconstitutional, because it violates our right to privacy, which is a fundamental right,
which can be taken away only by due process of law.
As the order doesn’t comply with due process as provided under section 69(1) it is in
violation of the fundamental right to privacy,”

65
E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555
66
Shrinivasa Rao v. J. Veeraiah, AIR 1993 SC 929; R.L. Bansal v. Union of India, AIR 1993 SC 978

26 | Page
PRAYER
Wherefore it is prayed, in light of the issues raised, arguments advanced, and authorities
cited, that this Honourable Court may be pleased to adjudge and declare that:
1. The PIL is maintainable.
2. The order brought by the government of Neverland is unconstitutional and
violates fundamental rights of the people of Neverland.
3. Issue a writ of Mandamus or any other appropriate writ, declaration, or order to
declare Section 69 of the Information Technology Act, 2000 as ultra vires
Articles 14, 19(1)(a), 19(1)(d), and 21 of the Constitution of Neverland;
AND/OR
And pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience
For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.
Sd/-
Counsel for the Petitioner

Memorial On Behalf of The Petitioner Kle Law College

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Memorial On Behalf of The Petitioner Kle Law College

Transféré par

Droits d'auteur :

Formats disponibles

K

THE FEDERAL COURT OF NEVERLAND

THE CONSTITUTION OF NEVERLAND

[PUBLIC INTEREST LITIGATION

UNDER ARTICLE 32 OF THE CONSTITUION OF NEVERLAND

CASE CONCERNING VIOLATION OF RIGHT OF PRIVACY]

MR. TARISH SOOR (PETITIONER)

REPUBLIC OF NEVERLAND (RESPONDENT)

MOST RESPECTFULLY SUBMITTED BY

COUNSEL APPEARING ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF PETITIONERS

ISSUE 1: WHETHER THE PIL IS MAINTAINABLE BEFORE THE

ISSUE 2: WHETHER THE GOVERNMENTAL ORDER

ISSUE 3: WHETHER THE GOVERNMENT ORDER IS

MEMORIAL ON BEHALF OF PETITIONERS

AIR..................................................................................................................All India Reporter

SCC............................................................................................................Supreme Court Cases

PIL....................................................................................................... Public Interest Litigation

MEMORIAL ON BEHALF OF PETITIONERS

1. The Constitution of Neverland (The Constitution of Neverland pari materia to the

2. The Information Technology Act, 2000

3. The Telegraph Act, 1885

1 Bodhisattwa Gautam v. Subbra Chakraborty

2 S.P Gupta vs UOI

3 Kharak Singh v Union of India

4 People’s Union for Civil Liberties v. Union of India

5 R.Rajagopal v. Union of India (1994)1

6 Govind v. State of M.P (1975)

7 Renu v. District and Session

8 Deep Chand v. State of U.P

9 Md. Ishaq v. State

11 Unni Krishnan v. State of A.P.

14 Kyllo v. United State

15 National Media Ltd v Jooste

MEMORIAL ON BEHALF OF PETITIONERS

16 Bachan Singh v. State of Punjab

17 Vishaka v State of Rajasthan

18 Big Brother Watch and Others v. the United Kingdom

19 R v The Commissioner of Police of the Metropolis (2011)

20 Maneka Gandhi v. Union of India,

21 Bijoe Emmanuel v. State of Kerala

22 A.K. Gopalan v. State of Madras

23 State (NCT of Delhi) v. Navjot Sandhu

24 Francis Coralie v. Union Territory of Delhi

25 Kesavananda Bharti v. State of Kerala

26 Haji Abdool Shakoor & Co. v. Union of India

27 Sheo Nandan Paswan v. State of Bihar,

28 Naraindas v. State of Madhya Pradesh

29 District Registrar and Collector v. Canara Bank

30 Kishan Chand v. Commr. Of Police,

31 Mohinder Singh Gill v. Chief Election Commr

32 Budhan Chaudhary v. State of Bihar

33 E.P. Royappa v. State of Tamil Nadu

34 Shrinivasa Rao v. J. Veeraiah

Publications, Nagpur, 2016)

MEMORIAL ON BEHALF OF PETITIONERS

James Paton eds., Psychology Press, London, UK, 2005)

1. Art. 12, Universal Declaration of Human Rights, 1947

2. Section 2(1)(d), Protection of Human Rights Act, 1993

3. Art. 9, International Convention on Civil and Political Rights

MEMORIAL ON BEHALF OF PETITIONERS

Constitution of Neverland, 1950.

Article 32 - Remedies for enforcement of rights conferred by this part.