MEMORIAL ON BEHALF OF PETITIONER

PARTICIPATION CODE – C-74

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW.

CONCOURS,2022

BEFORE,

THE HON’BLE SUPREME COURT OF SATYADESH

WRIT PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION

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

v.

UNION OF SATYADESH……………………………………… RESPONDENT NO. 1

DOGE GROUP…………………………………………………… RESPONDENT NO.2

CLUBBED WITH

SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE CONSTITUTION

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

v.

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

MEMORIAL FILED ON BEHALF OF PETITIONER

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MEMORIAL ON BEHALF OF PETITIONER

TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………3

LIST OF ABBREVIATIONS ………………………………………….4

STATEMENT OF JURISDICTION……………………………………5

STATEMENT OF FACTS……………………………………………. 6

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

SUMMARY OF ARGUMENTS………………………………………9

ARGUMENTS ADVANCE……………………………………………10

1)THAT THE SURVEILLANCE ACTIVITIES THAT ARE CARRIED OUT BY THE

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

2) THAT THE PETITIONER CAN PROCEED AGAINST THE DOGE GROUP FOR
THE INFRINGEMENT OF RIGHT TO PRIVACY UNDER ARTICLE 21 OF THE
SATYADESH CONSTITUTION.

3)THAT THE EVIDENCE GATHERED AGAINST BABURAO GANPATRAO APTE

THROUGH SURVEILLANCE IS NOT ADMISSIBLE UNDER THE LAW.

PRAYER……………………………………………………………….16

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MEMORIAL ON BEHALF OF PETITIONER

INDEX OF AUTHORITIES

CONSTITUTIONAL PROVISIONS-

Article 21 of the Indian Constitution.

Article 12 of the Indian Constitution.

STATUTES-

Indian Telegraph Rules, 1951.

Information Technology (Procedure and Safeguards for Interception, Monitoring and

Decryption of Information) Rules, 2009.

CASES-

People’s Union for Civil Liberties (PUCL) vs Union of India case (AIR 1997 SC 568)

Jatinder Pal Singh vs CBI (Case No.: CRL MC 3118 of 2021)

Justice K.S. Puttaswamy vs. Union of India (AIR 2017 SC 4161)

M.C. Mehta v. Union of India (AIR 1987 965)

State of Punjab v. Baldev Singh ((1999) 6 SCC 172)

State of Maharashtra v. Natwarlal Damodardas Soni, ((1980) 4 SCC 669)

R.M. Malkani v. State of Maharashtra (AIR 1973 SC 157)

Katz v. U.S. (389 U.S. 347 (1967))

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MEMORIAL ON BEHALF OF PETITIONER

LIST OF ABBREVIATIONS

ABBREVIATION MEANING

Hon’ble Honourable

v. Versus

PUCL People’s Union for Civil Liberties

AIR All India Reporter

SCC Supreme Court Cases

SC Supreme Court

CBI Central Bureau of Investigation

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MEMORIAL ON BEHALF OF PETITIONER

STATEMENT OF JURISDICTION

The Petitioner humbly submits this memorandum in response to the petition filed
before the Honourable Supreme Court under Article 32, and Special Leave Petition
under article 136. The present memorandum sets forth the facts, contentions and
arguments in the present case.

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MEMORIAL ON BEHALF OF PETITIONER

STATEMENT OF FACTS

1) According to leading technology experts, Omegasus is a spyware (Trojan/Script) that

can be installed remotely on devices running on Apple’s iOS & Google’s Android
operating systems. It is developed and marketed by a private technology firm “Doge
Group”, which is based out of Transport Nagar, a country in the Middle-East. The
policy document released by the Doge Group in late 2020, claimed that the Group
sells Omegasus to “vetted governments” for “lawful interception”, which is
understood to mean combating terrorism and organized crime, as the firm claims, but
suspicions exist that it is availed for other purposes.

On July 18th, 2021, seventeen media organizations from across the globe, including
one from Satyadesh, produced a report stating that the Omegasus software had been
used to spy on various persons in 2019 and 2020. Doge Group clients were reportedly
using the Omegasus software to spy on around 50,000 leaked phone numbers. Almost
300 of these numbers belonged to Satyadeshians, many of whom are prominent
journalists, activists, as well as members of the judiciary. The same report also
revealed that Omegasus had been used to infiltrate the mobile devices of Raʼs al
Ghul(opposition party leader), Chand Nawab( journalist who usually criticises
government and Baburao Apte. [Annexure-B]. The report triggered a huge outrage in
the country, prominently led by the opposition party leaders, activists and media
persons.

2) The Government of Satyadesh issued a public response to the controversy. The said
response did not clarify as to whether the Government had used the Omegasus
Spyware. Instead, it only mentioned that the Government was committed to ensuring
free speech for the citizens, and under the provisions of Section 5(2) of Satyadesh
Telegraph Act, 1885 and Section 69 of the Satyadesh Information Technology Act,
2000, there is a well-established procedure through which lawful interception of
electronic communication is carried out in order for the purpose of national security,
by agencies at the Centre and States.

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MEMORIAL ON BEHALF OF PETITIONER

3) Agitated by the said response, Chand Nawab, on 1st November 2021, filed a Writ
Petition before the Supreme Court of Satyadesh under Article 32 of the Constitution,
challenging the constitutionality of surveillance activities that are carried out by the
Government under Section 5(2) of Satyadeshian Telegraph Act, 1885 and Section 69
of the Information Technology Act, 2000. The said petition, which was admitted by
the Supreme Court, stated that the above provisions are overbroad, unconstitutionally
vague and provide for no judicial oversight.

4) On May 10, 2020, the Delhi Police raided the residence of a student leader and
activist, Baburao Ganpatrao Apte and arrested him under various charges of sedition,
criminal conspiracy and instigating communal violence in relation to riots erupted in
February 2020 in River Front, the capital of Satyadesh. Baburao is a known critic of
the Virat Mogi Government, and was charged with sedition and arrested in February
2016 too, for having connections with some banned organizations. On February 14th,
2021, the Sessions Court of Parag (a district within the State of River Front) convicted
Baburao for the aforementioned offences based on the evidence filed by the
investigating agencies, included communication between Baburao and Kabira gang.

5) During the same time period, Baburao filed a criminal appeal before the High Court
of River Front against the order dated February 14th 2021, passed by the Sessions
Court of Parag, on the ground that the evidence filed by the investigative agencies
was inadmissible, having been obtained illegally and unconstitutionally, via
surveillance. The High Court dismissed the appeal filed by Baburao and affirmed the
order of the Sessions Court. As a result, Baburao filed a Special Leave Petition (under
Article 136 of the Constitution) before the Supreme Court of Satyadesh against the
order passed by the High Court of River Front.

6) The SLP was admitted, and the State of River Front in its response before the
Supreme Court stated that the State is empowered to carry out surveillance in the
interest of “public safety” and even if there had been illegality in the collection of the
evidence

7) Considering the commonality of facts and circumstances, the Supreme Court has
agreed to club the two petitions and hear them together. The matter has been listed for
hearing before a constitutional bench on January 29th, 2022.

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MEMORIAL ON BEHALF OF PETITIONER

ISSUES RAISED

ISSUE 1

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

ISSUE 2

Whether the petitioner can proceed against the Doge Group for the infringement of right to
privacy under Article 21 of the Satyadesh Constitution?

ISSUE 3

Whether the evidence gathered against Baburao Ganpatrao Apte through surveillance is
admissible under the law?

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MEMORIAL ON BEHALF OF PETITIONER

SUMMARY OF ARGUMENTS

1)THAT THE SURVEILLANCE ACTIVITIES THAT ARE CARRIED OUT BY THE

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

The use of someone's mobile phone's microphone or camera to record her actions or
conversations which take place in their daily lives, and not over their electronic device, is not
authorised by either Section 5(2) of The Telegraph Act or Section 69 of the Information
Technology Act.

2) THAT THE PETITIONER CAN PROCEED AGAINST THE DOGE GROUP FOR THE
INFRINGEMENT OF RIGHT TO PRIVACY UNDER ARTICLE 21 OF THE
SATYADESH CONSTITUTION.

Doge group should be held liable for the infringement of right to privacy under article 21 of
the Satyadesh constitution. But the Doge Group despite of knowing the situation, it did not
take any actions mentioned in its policy document, when a customer engages in illegal
activities. Therefore, the Doge Group should be held liable for infringing the Right to Privacy
which comes under Article 21.

3)THAT THE EVIDENCE GATHERED AGAINST BABURAO GANPATRAO APTE

THROUGH SURVEILLANCE IS NOT ADMISSIBLE UNDER THE LAW.

The evidence gathered against Baburao Ganpatrao Apte through surveillance is not
admissible under the law. Baburao should not be convicted solely on the basis of evidence
which had been obtained illegally, i.e., via surveillance as held in the Baldev Singh Case that
illegal evidence is not admissible. Evidence filed by the investigative agencies was
inadmissible, having been obtained illegally and unconstitutionally, via surveillance. A solid
evidence should be provided to prove his involvement in the riots erupted in February 2020
in River Front.

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MEMORIAL ON BEHALF OF PETITIONER

ARGUMENTS ADVANCED

1) THAT THE SURVEILLANCE ACTIVITIES THAT ARE CARRIED OUT BY THE

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

It is humbly submitted before the hon’ble Supreme Court of Satyadesh that the surveillance
activities that are carried out by the government of Satyadesh under section 5(2) of Satyadesh
Telegraph Act, 1885 and section 69 of the Satyadesh Information Technology Act, 2000 are
unconstitutional.

(1.1) THAT THE SURVEILLANCE ACTIVITIES THAT ARE CARRIED OUT BY THE
GOVERNMENT OF SATYADESH UNDER SECTION 5(2) OF SATYADESH
TELEGRAPH ACT, 1885 ARE UNCONSTITUTIONAL.

Section 5(2) can be resorted to in order to authorise interception of messages including

multimedia messages sent (or received) by a device to (or from) another device. It does not
envisage constant surveillance by the electronic device including of all multimedia files
which were created in the device and not sent by telegraph to anyone else, nor does it
envisage recording people's real-life interactions that take place in the vicinity of their device
but not through it.

In the case of People’s Union for Civil Liberties (PUCL) vs Union of India (1997), the
Supreme Court held that Section 5(2) of the Telegraph Act, an order for interception can only
be issued either on the occurrence of any public emergency or in the interest of public safety.

1
People’s Union for Civil Liberties (PUCL) vs Union of India case (AIR 1997 SC 568)

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MEMORIAL ON BEHALF OF PETITIONER

The Delhi High Court in the case of Jatinder Pal Singh vs CBI held that permitting illegally
intercepted messages and audio conversations as evidence would lead to manifest
arbitrariness and promote violation of the fundamental rights of citizens. Justice Chandra
Dhari Singh held that as per Section 5(2) of the Telegraph Act, an order for interception can
only be issued either on the occurrence of any public emergency or in the interest of public
safety, as per the law laid down by the Supreme Court in PUCL.

(1.2) THAT THE SURVEILLANCE ACTIVITIES THAT ARE CARRIED OUT BY THE
GOVERNMENT OF SATYADESH UNDER SECTION 69 OF THE SATYADESH
INFORMATION TECHNOLOGY ACT, 2000 ARE UNCONSTITUTIONAL.

Rule 2(f) of the Information Technology (Procedure for Safeguards for Interception,
Monitoring and Decryption of Information) Rules, 2009, which were passed in furtherance of
Section 69 of the IT Act which provides power to issue directions for interception, decryption
or monitoring of information.
Interception is defined to mean the acquisition of the contents of any information so as to
make the contents of the information available to any person other than the sender, recipient
or intended recipient of the communication. Thus, it is amply clear that 'interception' can only
be done of the contents of information that forms part of some 'communication' through a
computer resource, and not of actions and conversations that simply happen to be near a
computer resource.

Intercepting messages does not mean turning phones into spy-cams. In effect, interception of
messages and information under the Telegraph Act and the IT Act only applies to
'communication' made through telegraph or computer resources, which is very different from
the wide arsenal of surveillance that is offered by Omegasus once it infects a phone.

2
Jatinder Pal Singh vs CBI (Case No.: CRL MC 3118 of 2021)

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MEMORIAL ON BEHALF OF PETITIONER

The journalists and activists were believed to have been targets of surveillance for a two-
week period prior to the Lok Sabha elections. The use of someone's mobile phone's
microphone or camera to record her actions or conversations which take place in their daily
lives, and not over their electronic device, is thus, not authorised by either Section 5(2) of
The Telegraph Act or Section 69 of the Information Technology Act and is also a violation of
the Right to Privacy of citizens, according to the Puttaswamy judgement and therefore
unconstitutional.

2) THAT THE PETITIONER CAN PROCEED AGAINST THE DOGE GROUP FOR THE
INFRINGEMENT OF RIGHT TO PRIVACY UNDER ARTICLE 21 OF THE
SATYADESH CONSTITUTION.

It is humbly submitted before the hon’ble Supreme Court of Satyadesh that the Doge group
should be held liable for the infringement of Right to Privacy under article 21 of the
Satyadesh constitution.

According to the policy document by the Doge Group the action taken in case of misuse
should be that The Review Committee of the Doge Group undertakes a thorough
investigation into cases where it is suspected that their technology has been misused by the
sovereign state. Investigations may include review of data, interviews, meetings, and
evaluation of objective risk factors, including an analysis of whether the customer has
engaged in previous human rights abuses. As a result of the findings, the customer may be
subject to corrective action ranging from retraining to termination of the relationship.

But the Doge Group despite of knowing the situation, it did not take any actions mentioned in
it’s policy document like review of data, interviews, meetings, and evaluation of objective
risk factors, including an analysis of whether the customer has engaged in previous human
rights abuses and if found that the customer (in this case, the government of Satyadesh is the
customer of Doge Group) is engaging in illegal activities corrective action ranging from
retraining to termination of the relationship.

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MEMORIAL ON BEHALF OF PETITIONER

In M.C. Mehta v. Union of India (oleum gas leak case), Supreme Court granted relief to the
petitioner against the violation of Article 21(Right to claim pollution-free air, water and
environment) by a Company. Therefore, the Doge Group should be held liable for infringing
the Right to Privacy (Article 21).

In the case of Justice K.S. Puttaswamy vs. Union of India, 2017 regarding Surveillance, the
Supreme Court made it clear that any invasion of privacy could only be justified if it satisfied
three tests:

a. The restriction must be by law

b. It must be necessary (only if other means are not available) and proportionate (only as
much as needed)

c. It must promote a legitimate state interest (e.g., national security)

The court stated that Right to Privacy is an inherent and integral part of Part III of the
Constitution that guarantees fundamental rights.

Doge Group can come under ‘other authorities’ definition of state under article 12 since it
had an active participation in the State's surveillance operations that could be deemed a State
function. Like in the case of

Doge Group can be held liable since it performed a state function by playing an active role in
the surveillance activities carried out by the State that could fairly be called a State function,
and is therefore liable for the breach of the fundamental right to privacy of citizens.

3
Justice K.S. Puttaswamy vs. Union of India (AIR 2017 SC 4161)

4
M.C. Mehta v. Union of India (AIR 1987 965)

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MEMORIAL ON BEHALF OF PETITIONER

3)THAT THE EVIDENCE GATHERED AGAINST BABURAO GANPATRAO APTE

THROUGH SURVEILLANCE IS NOT ADMISSIBLE UNDER THE LAW.

It is humbly submitted before the hon’ble Supreme Court of Satyadesh that the evidence
gathered against Baburao Ganpatrao Apte through surveillance is not admissible under the
law.

The statement by the government of Satyadesh is that State is empowered to carry out
surveillance in the interest of “public safety” and even if there had been illegality in the
collection of the evidence, they should be entitled to use it in the course of the criminal
prosecution, as long as the evidence was relevant. But in the case of State of Punjab v. Baldev
Singh, Supreme Court held that illegally obtained evidence is not admissible in the Court of
Law if it is obtained in violation of Section 50 of the NDPS Act, as this provision confers
procedural rights to the accused which are statutorily mandated thus are deemed to be
followed. This standing of law to exclude the illegally obtained evidence is only confined to
the provisions of the NDPS Act and does not apply to other situations.

Judiciary in the case of State of Maharashtra v. Natwarlal Damodardas Soni, and R.M.
Malkani v. State of Maharashtra, held that any illegally obtained evidence is admissible in the
Court of Law if it is relevant to the matter, but the value of such evidence is to be dealt with
care and caution by the Courts.

According to the “Disciplinary Principle” which states that Judiciary should discourage the
improper manners used for obtaining evidence. This will deter the prosecution or defendant
from resorting to such manners for getting pieces of evidence.

5
State of Punjab v. Baldev Singh ((1999) 6 SCC 172)

6
State of Maharashtra v. Natwarlal Damodardas Soni ((1980) 4 SCC 669)

7
R.M. Malkani v. State of Maharashtra (AIR 1973 SC 157)

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MEMORIAL ON BEHALF OF PETITIONER

In the United States, illegally obtained evidence is inadmissible due to the application of the
exclusionary principle and the doctrine of ‘Fruits of Poisonous Tree’. While the former rule
suggests that illegally obtained evidence cannot be made admissible in a criminal trial, the
latter doctrine suggests that even the evidence obtained from primary illegality in the
procedures which includes both physical evidences and live testimonies are inadmissible as
the evidence evolves from the poisonous tree, that is, the illegal procedure . Both these
doctrines were formulated to support the Fourth Amendment Rights to the U.S. Constitution
which warrant the right of citizens against any unwarranted search and seizures in their
persons, houses, or papers. The scope of the exclusionary rule was also expanded by US
Supreme Court in the case of Katz v. U.S., when it was held that eavesdropping and recording
of private conversions of accused also amount to ‘unreasonable search and seizure’ and is
violative of Fourth Amendment Rights.

Baburao should not be convicted solely on the basis of evidence which had been obtained
illegally, i.e., via surveillance. Evidence filed by the investigative agencies was inadmissible,
having been obtained illegally and unconstitutionally, via surveillance. A solid evidence
should be provided to prove his involvement in the riots erupted in February 2020 in River
Front.

8
Katz v. U.S. (389 U.S. 347 (1967))

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MEMORIAL ON BEHALF OF PETITIONER

PRAYER

Therefore, in the light of the facts of the case, issues raised, arguments advanced and
authorities cited this Hon’ble court may be pleased to adjudge and declare that:

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

2) That the petitioner can proceed against the Doge Group for the infringement of right to
privacy under Article 21 of the Satyadesh Constitution.

3) That the evidence gathered against Baburao Ganpatrao Apte through surveillance is
admissible under the law.

And /Or

may pass any other order in favour of the petitioner that it may deem fit in the interest of
justice, equity and good conscience.

SD/-

Counsel for petitioner.

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