TEAM CODE - AMBEDKAR

IN THE 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 PETITIONERS

1
 TABLE OF CONTENTS

TABLE OF CONTENTS

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

LIST OF ABRREVIATIONS .......................................................................................................... 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 EXISTS A RIGHT TO PRIVACY UNDER THE CONSTITUTION ....................... 15

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

SOCIAL MEDIA ACCOUNTS ..................................................................................................... 17

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

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̴ Memorandum on Behalf of Petitioners ̴
 INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

Statutes

Art. 12, Constitution of Antopia -----------------------------------------------------------------------13

Art. 19(1), Constitution of Antopia --------------------------------------------------------------------12
Art. 32, Constitution of Antopia -----------------------------------------------------------------------12
Art. 51, Constitution of Antopia -----------------------------------------------------------------------16
Section 419(A), Indian Telegraph Act, 1888 ---------------------------------------------------------21
Section 69, Information and Technology Act, 2008 ------------------------------------------------21
Section 91, Criminal Procedure Code, 1973 ---------------------------------------------------------21

Other Authorities

American Declaration of Independence (1776) ------------------------------------------------------15

Article 12, Universal declaration of Human Rights. ------------------------------------------------16
Article 17, International Covenant on civil and political rights -----------------------------------16
Constituent Assembly Debate, (Vol. 7), 607-8, (Lok Sabha Secretariat 1986) -----------------13
Halsbury, 3RD EDN., Vol XI, page 53, para 109 ---------------------------------------------------14

Journals and Articles

Dignity, Not Mere Roti, Economic & Political Weekly (10 August, 2013), Vol. 48 -----------21
Shankkar Aiyar, Aadhaar: A Biometric History of India’s 12-Digit Revolution, Westland
(2017), at page 226 ------------------------------------------------------------------------------------19
Shweta Agrawal, Subhashis Banerjee, and Subodh Sharma, Privacy and Security of Aadhaar:
A Computer --------------------------------------------------------------------------------------------19

Books

Durga Das Basu, Comparative Constitutional law, 80 (3RD ED., Lexis Nexis, 2014) -------13
Durga Das Basu, Shorter Constitution of India 532 (Lexis NexisButterworths, 2001) -------18
Edwin W. Patterson, A Pragmatist Looks at Natural Law and Natural Rights, in Arthur L.
Harding EDN., Natural Law and Natural Rights (1955), at pages 62-63 --------------------16
H.M. Seervai, Constitutional Law of India 406 (4TH ED., 2004) --------------------------------13
John Locke, Second treatise on Government (1690) ------------------------------------------------16

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 INDEX OF AUTHORITIES

Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics,
Routledge (2013) --------------------------------------------------------------------------------------19
Ronald Dworkin, Taking Rights Seriously, (Duckworth, 1977) ----------------------------------16
V.N. Shukla, Constitution of India, 378 (11TH ED., Eastern Book Company, 2010) ----------13

Foreign Cases

Beck v Washington, (1962) 8 L Edn ------------------------------------------------------------------13

Rex. v. Chancellor of St. Edmunsbury and Ipswich Diocese, (1948) 1 K.B. 195 --------------14

Supreme Court Cases

AK Gopalan v The State of Madras, AIR 1950 SC 27 ---------------------------------------------16

Amirabbas v State of Madhya Bharat, (1960) 3 SCR 138------------------------------------------13
Anuradha Bhasin v Union of India 2020 SCC OnLine SC 25 -------------------------------------19
Chintamani Rao v State of M.P., AIR 1951 SC 118 ------------------------------------------------20
D.S. Nakara v Union of India, AIR 1983 SC 130 ---------------------------------------------------21
Director General, Directorate of Doordarshan v Anand Patwardhan, (2006) 8 SCC 433 -----12
District Registrar and Collector, Hyderabad v Canara Bank, (2005) 1 SCC 496 ---------------16
Express Newspapers v Union of India, AIR 1958 SC 578 -----------------------------------------20
Gobind v State of Madhya Pradesh, (1975) 2 SCC 148 --------------------------------------------16
Harakchand v Union of India, AIR 1970 SC 1453 --------------------------------------------------20
I.C. Golak Nath v State of Punjab, AIR 1967 SC 1643 ---------------------------------------------20
Internet Mobile Association of India v Reserve Bank of India, 2020 SCC Online SC 275 ---19
Justice K.S. Puttaswamy (Retd) v Union of India, (2017) 10 SCC 1 -----------------------------15
Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461 --------------------------------------14
Kharak Singh v State of Uttar Pradesh, (1964) 1 SCR 332 ----------------------------------------15
M Nagraj & ors v Union of India, (2006) 8 SCC 212-----------------------------------------------17
Maneka Gandhi v Union of India (1978) 2 SCR 621 -----------------------------------------------16
Modern Dental College and Research Centre v State of Madhya Pradesh and Ors., AIR 2016
SC 2601 -------------------------------------------------------------------------------------------------19
MP Sharma v Satish Chandra, (1954) SCR 1077----------------------------------------------------16
Mr X v Hospital Z, (1998) 8 SCC 296 ----------------------------------------------------------------17
Naresh Mirajkar v State of Maharashtra, (1966) 3 SCR 744 --------------------------------------13
People’s Union for Civil Liberties v Union of India, (1997) 1 SCC 301 ------------------------15

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̴ Memorandum on Behalf of Petitioners ̴
 INDEX OF AUTHORITIES

People’s Union for Civil Liberties v Union of India, AIR 1997 SC 568 -------------------------12
Prem Shankar Shukla v Delhi Administration, (1980) 3 SCC 526--------------------------------15
Rajagopal v State of T.N., (1994) 6 SCC 632 --------------------------------------------------------15
Ram Jethmalani v Union of India, (2011) 8 SCC 1 -------------------------------------------------17
Ramana Dayaram Shetty v The International Airports Authority, (1999) 3 SCC 489 ---------21
Ramesh v Union of India, (1988) 1 SCC 668 --------------------------------------------------------12
Ramji Lal Modi v State of U.P., AIR 1957 SC 620 -------------------------------------------------21
Riju Prasad Sarmah v State of Assam, 2015 (7) SCALE 602 -------------------------------------13
Romesh Thappar v. State of Madras, AIR 1950 SC 124 -------------------------------------------20
Rustom Cavasjee Cooper v Union of India, AIR 1970 SC 564 -----------------------------------16
State of Karnataka v Krishnappa, (2000) 4 SCC 75 -------------------------------------------------15
State of Karnataka v. Krishnappa (2000) 4 SCC 75 -------------------------------------------------17
T. C. Basappa v T. Nagappa, (1955) 1 SCR 250 ----------------------------------------------------14

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 LIST OF ABBREVIATIONS

LIST OF ABRREVIATIONS

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

International Covenant on Civil and Political

ICCPR
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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̴ Memorandum on Behalf of Petitioners ̴
 STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The Petitioners 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 Petitioners

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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 Court suffers from palpable
infirmities and perversities in as much as it violates the fundamental right guaranteed under
Art. 19(1). It is further argued that the impugned order is amenable to be corrected by a writ
of certiorari issued to the High courts. The arguments shall be two pronged, firstly, that the
preliminary directions issued by the high courts are inconsistent and in derogation of the
fundamental right, accordingly the petitioners have the right to move this court under Art. 32
and secondly, that the pre-requisite conditions for issuance of a writ of certiorari are satisfied.

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

It is submitted that there exists a right to privacy under the constitution independent of any
recognition that may be accorded to it. The right to privacy is found in different forms under
various fundamental rights more specifically it constitutes part of the inalienable right to life
and personal liberty guaranteed under Art. 21 of the Constitution. It is further argued that the
right to privacy goes to the heart of Art 21 as it ensures not mere existence but to lead a life
with dignity. The arguments concerning this issue shall be two pronged, firstly, that the right
to privacy forms part of the natural rights and has been in existence even in absence of any
constitutional guarantee, secondly, that the relationship between right to privacy and human
dignity is inseparable as the right to privacy is an element of human dignity and thus forms
the heart and soul of the Constitution

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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 Legislature does not have the power to forcibly link its citizens social
media account with their iCards. Firstly, because such an arbitrary state action is violative of
the Right to Privacy and Art21 of the Constitution. Secondly, it imposes an unreasonable
restriction on the citizens, hence a violation of Art 19. Thirdly, it confers arbitrary powers on
the State based on an unreasonable classification, hence violative of Art 14. Fourthly, such
an action abridges the rights guaranteed under Part III and therefore, violative of Art 13(2) of
the Constitution.

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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 Court suffers from
palpable infirmities and perversities in as much as it violates the fundamental right
guaranteed under Art. 19(1)1. It is further argued that the impugned order is amenable to be
corrected by a writ of certiorari issued to the High courts. The arguments shall be two
pronged, firstly, that the preliminary directions issued by the High Courts are inconsistent and
in derogation of the fundamental right, accordingly the petitioners have the right to move this
court under Art. 322 and secondly, that the pre-requisite conditions for issuance of a writ of
certiorari are satisfied.

[A]. THAT THE PRELIMINARY DIRECTIONS PASSED BY VARIOUS HIGH COURTS VIOLATES THE

FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

¶2. It is contended that the right to freedom of speech is not absolute and can be curtailed in
regards to maintenance of public order,3 however, to impose a blanket ban depriving a person
of his right to speech and express is a clear abuse of the powers of restrictions enumerated
under Art 19 and also highly unreasonable. The Hon’ble Supreme Court in the landmark
decision of Anand Patwardhan4 held that any law which seeks to put a blanket ban on a
citizen’s right to express his views, is violative of Art 19(2). A law that seeks to stifle the
basic fundamental right of individualistic expression casting a blanket ban on speech can
never be good in law.5 In the case at hand, the High Court’s order demands that the social
media companies delete the account of persons involved, such an order clearly infringes Art
19 as it compulsorily imposes a blanket ban on citizens from using social media in order to
express their thoughts.

¶3. It cannot be the argument of the defendants that the fundamental rights given under Part
III of the Constitution cannot be enforced against the judiciary. On a mere perusal of the

1
Art. 19(1), Constitution of Antopia.
2
Art. 32, Constitution of Antopia.
3
People’s Union for Civil Liberties v Union of India, AIR 1997 SC 568.
4
Director General, Directorate of Doordarshan v Anand Patwardhan, (2006) 8 SCC 433.
5
Ramesh v Union of India, (1988) 1 SCC 668.
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 WRITTEN SUBMISSIONS

content of Art. 126 it can be observed that it does not expressly exclude the judiciary from its
wide scope and import.7 Moreover the meaning of the term ‘other authorities’ has been left
ambiguous purposively in order to enforce the sacrosanct fundamental rights against state and
its instrumentalities.8 Therefore, it is inclusive and not exhaustive.9

¶4. The contention of the petitioners finds firm backing even in the proceedings of
Constituent Assembly wherein several members including Dr. Ambedkar insisted on
retaining the omnibus clause of ‘other authorities’ so that the fundamental rights could be
claimed against anybody or authority exercising power over people.10 At this juncture it is
pertinent to note that if Art.12 could not bring within its sweep all the organs of the state
including judiciary, the object behind guaranteeing fundamental rights would be defeated11 as
some of the fundamental rights including Art 20, Art 21 and Art 22 expressly guard against
judicial arbitrariness.12

¶5. The petitioners with immense respect contend that the proposition laid down by the
majority in Amirabass13 and Naresh Mirajkar14 needs re-consideration. While in Amirabass,
Shah J speaking for the court asserted that Art. 14, which talks about equality before the law
and equal protection of laws, can only be claimed against executive or legislature but not
judiciary; it is submitted that such a view runs counter to the basic principles of constitutional
jurisprudence.15 The majority in Naresh Mirajkar held that it is inappropriate to assume that a
decision pronounced in judicial capacity can affect the fundamental rights of citizens of under
Art. 19; it is submitted that such an assumption leaves the administrative orders of a judicial
officer open to challenge as violative of fundamental rights.

¶6. It is contended that the definition of ‘state’ accepted by the Hon’ble court in a catena of
dictums concerning Part III runs contrary to the definition propounded in judgements
concerning Part IV. In the landmark judgement of N.M Thomas16 the majority emphatically
held that the court also is ‘state’ within the meaning of Art. 12 and Part IV goals must

6
Art. 12, Constitution of Antopia.
7
H.M. Seervai, Constitutional Law of India 406 (4TH ED., 2004).
8
Durga Das Basu, Comparative Constitutional law, 80 (3RD ED., Lexis Nexis, 2014).
9
V.N. Shukla, Constitution of India, 378 (11TH ED., Eastern Book Company, 2010).
10
Constituent Assembly Debate, (Vol. 7), 607-8, (Lok Sabha Secretariat 1986).
11
Beck v Washington, (1962) 8 L Edn.
12
Ibid at 7.
13
Amirabbas v State of Madhya Bharat, (1960) 3 SCR 138.
14
Naresh Mirajkar v State of Maharashtra, (1966) 3 SCR 744.
15
Ibid at 8.
16
Riju Prasad Sarmah v State of Assam, 2015 (7) SCALE 602.
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 WRITTEN SUBMISSIONS

“inform and illuminate” the approach of the Court when it makes a decision. It is pertinent to
note that the earliest mention of judicial process as ‘state action’ can be found in the much-
celebrated judgement of Kesavananda Bharati17 where Mathew J held a firm view that the
enforcement of Part IV provisions is as much a judicial function18 as it is incumbent upon the
other two organs of the state.

[B]. THE ESSENTIAL CONDITIONS FOR ISSUANCE OF A WRIT OF CERTIORARI ARE FULFILLED

¶7. It is the submission of the petitioners that in view of the violation of fundamental right
enshrined under Art. 19, they have a right to approach this Hon’ble court by means of Art. 32
and this Hon’ble court is empowered to issue a writ of certiorari to quash the impugned order
in order to correct the travesty of justice caused to the petitioners. It is pertinent to note that
the writ of certiorari is exercised through two points, firstly, the area of inferior jurisdiction
and the qualifications and conditions of its exercise; secondly, the observance of law in the
course of its exercise.19

¶8. It is important to have a historical understanding of the writ of certiorari to comprehend

the full import of it. Certiorari in English Common law system was used as a means of
controlling inferior courts and those who have legal authority to determine questions
affecting the rights of subjects and having to act judicially.20 The landmark judgement in the
case of Rex21 throws light on the essential distinction between superior and inferior courts;
while no matter is deemed to be beyond the jurisdiction of the superior court unless shown on
the face of the record however in the case of an inferior court it has to appear in the
proceedings or in its judgement that the matter is beyond its jurisdiction. Another test is
whether proceedings in the court can be stopped by a writ of prohibition issuing from the
Queen's Bench.

¶9. The entire argument against issuance of the writ of certiorari to the High court is pegged
on the premise that the Ecclesiastical Courts and even the Judicial Committee hearing appeals
in ecclesiastical matters and the Admiralty Courts are superior courts because they are a court
of record and can decide on their own jurisdiction, however the entire analogy of superior and
inferior court falls flat on its face when we consider the Ecclesiastical Courts and the Privy

17
Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461.
18
Harjinder Singh v Punjab Warehousing Corporation, AIR 2010 SC 1116.
19
T. C. Basappa v T. Nagappa, (1955) 1 SCR 250.
20
Halsbury, 3RD EDN., Vol XI, page 53, para 109.
21
Rex. v. Chancellor of St. Edmunsbury and Ipswich Diocese, (1948) 1 K.B. 195.
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 WRITTEN SUBMISSIONS

Council hearing appeals in ecclesiastical matters. They are superior courts but prohibition
issues to them. It cannot be the argument of the defendants that the High courts should be
construed as a superior court because it is a court of record, because prerogative writs
including the writ of certiorari do issue to several courts of record in England.

¶10. It is the submission of the petitioners that Art. 32(2), which empowers this Hon’ble
Court to issue the writ of certiorari, makes no exception in favour of the High Court thus
there ought to be a presumption that the High Court may not be excluded from the wide
scope of Art. 32.

¶15. In the present factual matrix, the preliminary order of the High Court, directing EyeFace,
TextUp and TwitPeep to immediately delete the accounts of the some of its users involved in
certain acts, involves breach of the freedom of speech and expression. Juxtaposition of the
enunciated law on the facts at hand reveal that the only effective remedy against such
violation is issuance of a writ of certiorari and the Hon’ble Court is well within its right to
issue the same to the various High Courts to uphold the sanctity of Fundamental Rights.

II. THAT THERE EXISTS A RIGHT TO PRIVACY UNDER THE CONSTITUTION

¶16. It is humbly submitted that there exists a right to privacy under the constitution
independent of any recognition that may be accorded to it. The right to privacy is found in
different forms under various fundamental rights more specifically it constitutes part of the
inalienable right to life and personal liberty guaranteed under Art. 21 of the Constitution22. It
is further argued that the right to privacy goes to the heart of Art 21 23 as it ensures not mere
existence24 but to lead a life with dignity25. The arguments concerning this issue shall be two
pronged, firstly, that the right to privacy forms part of the natural rights26 and has been in
existence even in absence of any constitutional guarantee, secondly, that the relationship
between right to privacy and human dignity is inseparable27 as the right to privacy is an
element of human dignity and thus forms the heart and soul of the Constitution28

[A]. THE RIGHT TO PRIVACY AS A NATURAL AND INALIENABLE RIGHT

22
Rajagopal v State of T.N., (1994) 6 SCC 632.
23
People’s Union for Civil Liberties v Union of India, (1997) 1 SCC 301.
24
Kharak Singh v State of Uttar Pradesh, (1964) 1 SCR 332.
25
Prem Shankar Shukla v Delhi Administration, (1980) 3 SCC 526.
26
American Declaration of Independence (1776).
27
State of Karnataka v Krishnappa, (2000) 4 SCC 75.
28
Justice K.S. Puttaswamy (Retd) v Union of India, (2017) 10 SCC 1.
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 WRITTEN SUBMISSIONS

¶17. It is contended that the right to privacy forms the basic rights guaranteed under the
constitution and exists as a natural and primordial right which is inalienable. The very nature
of inalienable rights is that they are not bestowed by the state29; they exist equally in the
individual30 and are inseparable from human personality. 31

¶18. The earliest mentions of right to privacy being a natural and inalienable right can be
found in the opinion of, Mathew J in the landmark judgement of Gobind32and Ayyangar J in
the case of Kharak Singh, where both of them regarded right to privacy to be implicit in the
concept of ordered liberty. The opinions rendered by the learned lordships paved the way for
further recognition of right to privacy under the constitutional scheme in cases like Canara
Bank33 where the lordships being mindful of the fact that there is no express mention of right
to privacy, held that there was “a reasonable expectation of privacy”. The significance of the
dictum in Canara Bank lies in its affirmation of the right to privacy as emanating from the
liberties guaranteed by Art. 19 & Art. 21 and upholds that fundamental rights are no longer
regarded as isolated silos34 or water-tight compartments, rather there is interdependency
among them. Furthermore, it is also contended that the defendants cannot take the support of
ratios laid down in M P Sharma35 and Kharak Singh as the bed rock of these dictums in the
form of AK Gopalan has already been overruled by express majority in the landmark
judgements of RC Cooper36 and Maneka Gandhi.37

¶19 It is argued that International covenants and treaties forming part of the global human
rights regime also recognise privacy as a fundamental constitutional value; Art 1238 of UDHR
and Art 1739 of ICCPR in clear terms recognise the right to privacy. Furthermore, in view of
Art 51 of the Constitution it is an obligation on the part of the state to respect and adopt the
international law framework40 including the basic human rights regime.

29
Edwin W. Patterson, A Pragmatist Looks at Natural Law and Natural Rights, in Arthur L. Harding EDN.,
Natural Law and Natural Rights (1955), at pages 62-63.
30
Ronald Dworkin, Taking Rights Seriously, (Duckworth, 1977).
31
John Locke, Second treatise on Government (1690).
32
Gobind v State of Madhya Pradesh, (1975) 2 SCC 148.
33
District Registrar and Collector, Hyderabad v Canara Bank, (2005) 1 SCC 496.
34
AK Gopalan v The State of Madras, AIR 1950 SC 27.
35
MP Sharma v Satish Chandra, (1954) SCR 1077.
36
Rustom Cavasjee Cooper v Union of India, AIR 1970 SC 564.
37
Maneka Gandhi v Union of India (1978) 2 SCR 621.
38
Art. 12, Universal declaration of Human Rights.
39
Art. 17, International Covenant on civil and political rights.
40
Art. 51, Constitution of Antopia.
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 WRITTEN SUBMISSIONS

[B]. THE RIGHT TO PRIVACY IS PART OF HUMAN DIGNITY AND CONSTITUTES THE HEART AND

SOUL OF THE CONSTITUTION

¶20. It is submitted that privacy is an essential element enabling human existence with
dignity; privacy ensures that a human being can lead a life of dignity by guarding the human
personality against unwanted intrusion.

¶21. At this juncture, it is important to note that the reflections of dignity are found in the
guarantee against arbitrariness (Art 14), the lamps of freedom (Art 19) and in the right to life
and personal liberty (Art 21)41. Dignity as a constitutional value also finds expression in the
Preamble which speaks of fraternity to be promoted to assure dignity of an individual. It is
contended that the same view has been affirmed in the landmark decision of Kesavananda
Bharati where Sikri CJ speaking for the court remarked, “…the constitutional vision seeks
the realisation of fraternity, which assures a life of dignity to every individual.”

¶22. It is contended that the issue regarding existence of right to privacy in the constitution is
squarely covered by a variety of dictums, where the Hon’ble court has gone to the extent of
holding privacy to be intrinsically linked to dignity,42 and thus forming an integral part of
right to life.43 It is noteworthy to mention that the decision in NALSA expressly approves the
proposition that right to privacy does not necessarily have to fall within the ambit of any one
fundamental right, intersection of various rights recognise the right to privacy.

¶23. Juxtaposition of the law laid down by the Hon’ble Court on the facts at hand would
reasonably establish that there indeed exists a right to privacy under the constitution without
finding an express mention.

III. THAT THE STATE DOES NOT HAVE THE POWER TO ENFORCE LINKING ICARDS WITH
SOCIAL MEDIA ACCOUNTS

¶24. It is submitted that the legislature does not have the power to forcibly link its citizens
social media account with their iCards. Firstly, because such an arbitrary state action is
violative of the Right to Privacy and Art. 21 of the Constitution. Secondly, it imposes an
unreasonable restriction on the citizens, hence a violation of Art. 19. Thirdly, it confers

41
M Nagraj & ors v Union of India, (2006) 8 SCC 212.
42
Mr X v Hospital Z, (1998) 8 SCC 296; State of Karnataka v. Krishnappa (2000) 4 SCC 75.
43
Ram Jethmalani v Union of India, (2011) 8 SCC 1.
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arbitrary powers on the State based on an unreasonable classification, hence violative of Art.
14.

[A] Icard – Social media linkage violates right to informational privacy and Art. 21 of the
Constitution

¶25. It is submitted that linking of social media accounts to iCards is violative of Art. 21 as it
infringes the fundamental right to privacy enshrined therein. Although not specifically
referred in the Constitution, but because of the wide interpretation of Art. 21, Right to
Privacy has been declared as a fundamental right by the Judiciary.44 The expression "personal
liberty" in Art. 21 is of the widest amplitude and covers a variety of rights which constitute
the personal liberty of a man.45 Various facets of inheres in Part III of the Constitution and
Informational privacy, being one of them, is guaranteed as a fundamental right to the citizens
of India.46

¶26. In the present case, the high courts have passed preliminary orders asking the state to
strictly monitor the social media accounts of all its citizens.47 It is submitted that such state
action infringes Part III of the Constitution and is a flagrant violation of right to informational
privacy on two pertinent grounds.

¶27. It is humbly submitted that since privacy is always integrated with personal liberty48, the
constitutionality of the law which is alleged to have invaded into a rights bearer’s privacy
must be tested by the same standards by which a law which invades personal liberty under
Art. 21 is tested.49 Under Art. 21, the standard test at present is the rationality review
expressed in Maneka Gandhi’s case. This requires that any procedure by which the state
interferes with the right under Art. 21 to be “fair, just and reasonable, not fanciful,
oppressive or arbitrary”50

¶28. It is submitted that the decision to forcibly link the social media accounts of all the
citizens with iCard is highly unjust and unreasonable. Such an oppressive action would mean
that the government effectively controls “why” and “how” should a user use his social

44
Durga Das Basu, Shorter Constitution of India 532 (Lexis NexisButterworths, 2001).
45
Maneka Gandhi v Union of India, AIR 1978 SC 597.
46
Justice K.S Puttaswamy v Union of India and Ors. (2017) 10 SCC 1.
47
¶ 4, Moot Proposition.
48
Ram Jethmalani and Ors v Union of India (2011) 8 SCC 1.
49
R.C. Cooper v Union of India AIR 1970 SC 564.
50
Maneka Gandhi v Union of India AIR 1978 SC 597.
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media.51 A compulsory linkage of social media with iCards exposes an undeniable risk to the
user’s personal data52 and hence, is an unjust invasion of his privacy and personal liberty.53

¶29. The Test of Proportionality requires that a limitation of the fundamental rights must
satisfy certain pre-conditions to be proportionate and valid in law54 such as, the measures
undertaken to effectuate the limitation are rationally connected to the fulfilment of the
purpose55, there are no alternative less invasive measures56 and there is a proper relation
between the importance of achieving the aim and the importance of limiting the right.57

¶30. In the case at hand, this arbitrary state action does not satisfy the proportionality test due
to the following reasons:

a). Absence of a legal framework focusing limitation of data retention pertaining to a

particular time period and/or a particular geographical zone and/or to a circle of particular
persons likely to be involved.
b). Requiring every user of social media to link the iCard number with their social media
accounts and to impose an authentication requirement, is excessive to the aim and object of
the state. There can be no presumption that all existing social media users as well as every
individual who seeks to open an account in future is a likely a perpetrator.
c). Other alternative remedies are available to cater to the problem of cyber-crime and mob
lynching and hence the state action is not the least intrusive means of achieving its aim.
d). Absence of rules to protect data retained against the risk of abuse and against any
unlawful access and use of that data.
¶31. It is humbly submitted that the Hon’ble Supreme Court in its landmark verdict of the
Aadhar Judgment58 while answering similar issues of forcible linking of private data like
bank account details, SIM Card and other details, absolutely negated these contentions and
even declared § 57 of the Aadhaar unconstitutional. Hence, it is humbly submitted that
though spread of fake news and consequent crimes are indeed a serious matter and the Union
is entitled to make laws on the same, but to impose a uniform requirement of linking iCard

51
Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics, Routledge (2013).
52
Shweta Agrawal, Subhashis Banerjee, and Subodh Sharma, Privacy and Security of Aadhaar: A Computer
Science Perspective, Economic & Political Weekly (16 September 2017), Vol. 52.
53
Shankkar Aiyar, Aadhaar: A Biometric History of India’s 12-Digit Revolution, Westland (2017), at page 226.
54
Modern Dental College and Research Centre v State of Madhya Pradesh and Ors., AIR 2016 SC 2601.
55
Anuradha Bhasin v Union of India 2020 SCC OnLine SC 25.
56
Internet Mobile Association of India v Reserve Bank of India, 2020 SCC Online SC 275.
57
Gobind v State of Madhya Pradesh, (1975) 2 SCC 148.
58
Justice K.S. Puttaswamy v Union of India and Ors., (2018) 1 SCC 809.
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with social media is clearly disproportionate and excessive. It fails to meet the proportionality
test and suffers from a manifest arbitrariness.

[B]. THE LINKAGE VIOLATES ART. 19(1)(A) OF THE CONSTITUTION

¶32. It is humbly submitted that the state action of linking iCard with Social Media is
violative of Art. 19 of the constitution as it imposes an unreasonable restriction on its citizens
right to use his/her social media account. The Hon’ble Supreme Court in the landmark
decision of Anuradha Bhasin59 had observed that the right to access internet is a Fundamental
Right and constitutionally protected under Art. 19. Hence, an arbitrary direction mandating
linking of iCard-Social Media infringes Art. 19.

¶33. It is submitted that such a state action fails to satisfy the essential ‘test of reasonability’
and is hence, violative of Art. 19. The Hon’ble Supreme Court in the landmark decision of
Express Newspapers60 it was observed that whenever any impugned legislation is claimed to
be violative of Art. 19, it essentially needs to satisfy the ‘test of reasonableness’ in order to
retain its existence. To determine the reasonableness of the restriction, the Court should
carefully consider the nature of the restriction and procedure prescribed by the Statute for
enforcing the restriction on the individual freedom.61 Not only substantive, but ‘procedural
provisions of a statute also enter into the verdict of its reasonableness’.62

¶34. The current decision mandating linkage fails to fulfil the reasonability on two grounds-

(a). Substantive Reasonableness- Though the legislative aim behind such an action is
legitimate tracking of cyber offenders, it still does not justify the flagrant violation of a
person’s right to use his social media. The underlying purpose of the restrictions imposed, the
extent and the urgency of the evil of mob lynching and child pornography sought to be
remedied thereby63, the disproportion of the imposition and the prevailing conditions at the
time64, do not form any causal link between each other.
(b). Procedural Reasonableness- Constant monitoring of an individual’s private accounts by
the state is a direct invasion of his/her privacy.65 There exists no framework to explain the

59
Anuradha Bhasin v Union of India, 2020 SCC OnLine SC 25.
60
Express Newspapers v Union of India, AIR 1958 SC 578.
61
I.C. Golak Nath v State of Punjab, AIR 1967 SC 1643.
62
Chintamani Rao v State of M.P., AIR 1951 SC 118.
63
Romesh Thappar v State of Madras, AIR 1950 SC 124.
64
Harakchand v Union of India, AIR 1970 SC 1453.
65
Justice K.S. Puttaswamy v Union of India and Ors., (2018) 1 SCC 809.
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rationale for such invasion and how this shall curb the issue of cyber-crimes. Moreover, the
Hon’ble Supreme Court in the landmark decision of Ramji Lal Modi66 that the impugned
legislation under a reasonability test should be from the standpoint of the general public and
not from the view of a few persons. Hence, the state action fails the test of Procedural
Reasonableness.
[C]. THE LINKAGE VIOLATES ART. 14 OF THE CONSTITUTION

¶35. It is humbly submitted that the oppressive action of the State to mandate iCard-Social
Media linking is violative of Art. 14 because of two prominent reasons. Firstly, there is an
‘unreasonable classification’ created by the state. Secondly, there is no ‘rational nexus’
between the impugned state action and the object sought to be achieved by the same.

¶36. It is submitted that the Hon’ble Supreme Court in the landmark decision of D.S.
Nakara67 held that if a law fails to pass the test of ‘reasonable classification’, it is meant to be
violative of Art. 14 and hence, unconstitutional. In the case at hand, in order to catch the
perpetrators of heinous cyber-crimes, the government seeks to mandate constant monitoring
of the social media accounts of all its citizens. This classification serves no purpose towards
the object sought to be fulfilled and grants unfettered power on the state to curb its citizens
right of freedom and expression.68 Hence, it is submitted that the classification of such an
arbitrary state action is unreasonable.

¶37. The Hon’ble Supreme in its decision of Ramana Dayaram Shetty69 expounded the
theory of ‘rational nexus’ and observed that there needs to be a direct causal link between the
State Action and the object sought to be achieved by the action. In the present case, the state
action of forcibly linking iCards and the reduction of rampant cyber-crimes fail to form a
rational causal link.70 Moreover, it is contended that numerous other effective alternative
remedies exist in order to achieve the said objective.71

66
Ramji Lal Modi v State of U.P., AIR 1957 SC 620.
67
D.S. Nakara v Union of India, AIR 1983 SC 130.
68
Dignity, Not Mere Roti, Economic & Political Weekly (10 August, 2013), Vol. 48.
69
Ramana Dayaram Shetty v The International Airports Authority, (1999) 3 SCC 489.
70
¶4, Moot Proposition.
71
Section 91, Criminal Procedure Code, 1973; Section 69, Information and Technology Act, 2008; Section
419(A), Indian Telegraph Act, 1888.
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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) is amenable to be corrected by a direction or order or a writ of
certiorari under the provisions of Article 32 of the Constitution.

II. That a fundamental right to privacy inheres under Part III of the constitution and
is inextricably bound up with all exercises of human liberty.

III. To impose a uniform requirement of linking iCards with all social media accounts
is clearly disproportionate and violative of the provisions of Part III of the
Constitution

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 Petitioners.

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