Memorial On Behalf of Petitioner Page 1 of 24

6th national moot court competition,2023
Before the hon’ble supreme court of meluha
Writ petition no: _____/2023
(filed under article 32 of constitution of meluha)
-- In the matter of --
Hercules digital rights & ors …..petitioners
versus
Union of meluha …..respondent
Memorandum on the side of petitioner
Drawn and filed by the counsel for the petitioners
Memorial on behalf of petitioner Page 1 of 24

Table of contents
Table of contents…………………………………………. 2
List of abbreviations……………………………………
Index of authority………………………………………
Statement of jurisdiction……………………………….
Statement of facts………………………………………
Issues presented………………………………………….
Summary of arguments………………………………….
Arguments advanced………………………………………
1. Issue 1
1.1…………………………………
1.2 …………………………
1.3…………………………………
2. issue 2
2.1…………………………………
2.2……………………………………
2.3…………………………………….
3. issue 3
3.1………………

3.2………….
3.3……………………
4. Issue 4
4.1……………..
4.2……………..
4.3………………
Prayer…………………………………………………….

List of abbreviations

Index of authority
Case laws cited
Indian cases

Foreign cases
Books,treatises & digest

Statutes,legislations & international conventions
Essays,articles and reports
Constitutional provisions
Dictionaries referred

Statement of jurisdiction
Before the hon’ble supreme court of judicature

New delhi
The hon’ble supreme court of justice has the jurisdiction to try, entertain and dispose of the
present case by virtue of article 321 under the constitution of meluha by filing a public
interest litigation.
The petitioner most humbly and respectfully submits before the jurisdiction of the present
case and accepts that it has the power and authority to preside over the present case
1
Article 32 in the constitution of meluha,1950
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 excercisable by the supreme court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwiseprovided by this
constitution.

Statement of facts
1. Meluha is a sovereign republic. Meluha is geographically the seventh largest country in the
world, consisting of 1/3rd of the world’s population. Around 29 federal states together form
the Union of Meluha. The country is largely agrarian in nature. Meluha is the largest
democracy in the world which has developed in all sectors to a large extent in the recent
years.
2. The Constitution of Meluha is an absorption of many features borrowed from various
Constitutions around the world. This Constitution is the longest written Constitution in the
world. All the legislations which are enacted in Meluha are based upon the Constitution of
Meluha and any law which contravenes the constitution of Meluha shall deemed to be
unconstitutional.
3. The democracy of Meluha has a multiparty system where in 2015, the Meluha Socialist
Party (herein after called as MSP) won by an absolute majority. This ruling party promoted
privatization in most of the sectors and even went a step ahead to sell major public sector
undertakings to private entities. There are allegations by the opposition, the press and other
civic bodies against the MSP for supporting big business tycoons. And it is further alleged
that this party does not work for the benefit of the nation and has become the puppets of the
corporate. The report published by RBM in 2017 it stated that fugitive economic offenders
have increased by over 28%, which amounts to over 1.85 lakh crores. Majority of the frauds
are made by big corporates.
4. The Prime Minister of Meluha has very cordial relations with most of the foreign nations
as he travels around the globe on bilateral as well as multilateral transactions, claiming it
strengthens foreign policy.
5. Zodiac is a West Asian Country with a unitary form of parliament located along the
Mediterranean Sea. This country is known for its advanced defence system.
6. In 2019 the Prime Minister of Meluha visited Zodiac and signed a defence deal for
procurement of various weapons and security system. The Government of Meluha purchased
missiles and sophisticated strategic gear worth roughly one billion dollars under this deal.
7. Meluha is a signatory of many international covenants including UDHR, ICESCR, ICCPR,
which enumerates the protection of various human rights. The Government of Meluha is
obliged to guarantee freedoms and rights such as Right to Life, Privacy, Freedom of Press etc.
In line with the same The Constitution of Meluha recognises the right to privacy as a
fundamental right under Article 21.
8. In 2021, the Chief editor of an online news agency called Fil News found out that there
was a malfunction in his mobile, upon which he gave it for forensic research and it was found
out that his mobile had been infected by a spyware called Poseidon. In 2021, the
Government of Meluha warned all the social media platforms that nothing should be
published, circulated or posted against the ruling government failing to adhere upon which
they would face serious consequences.

9. Poseidon perhaps the most powerful piece of spyware ever developed, by a private
company. Once it infiltrates a mobile it can turn into a 24 hours surveillance device without
the knowledge of its user. It can copy, manipulate messages, send, receive or harvest photos
and record calls. Besides it can secretly have access to the mobile’s camera, activate the
microphones to record conversations as well as can potentially pin point the user’s current as
well as past GPS location.
10. Poseidon infections can be achieved through a technique known as zero click attacks
which does not require any interaction from the mobile’s owner in order to succeed. Its
presence in the mobile device is very difficult to ascertain. Poseidon uses some bypassing
techniques in order to decrypt messages on end-to-end encrypted messaging apps. Even a
missed call through such vulnerable apps is enough to break into one’s mobile.
11. Poseidonisahackingsoftwarethatisdeveloped,marketedandlicencedtothegovernments
around the world by a Zodiac private company, MXO Groups. The MXO Groups proclaims
to create such intrusive surveillance software, to combat a wide range of local and global
threats. It has the capability to affect billions of mobiles running either by IOS or Android
operating system, using a technical loophole known as Zero Day Vulnerability. Bugs or
technical defects in the system are not reported to the service providers, but instead abused by
MXO Groups to create a silent backdoor entry unnotified.
12. MXO Groups is engaged in the business of building and selling surveillance software.
The company has consistently maintained that it only sells spyware to the governments and
does not retain any data with itself. Poseidon software and other similar spywares require an
export licence to be obtained from the Zodiac Ministry of Defence, but since it is the matter
of extreme secrecy, it is difficult to find out whether or not all the necessary protocols have
been followed by both MXO Groups and the Union of Meluha in the process of seeking the
said approval.
13. Few countries with questionable Human Rights record have openly stated the usage of
Poseidon namely Hengania, Gemania, Tungray, Crance for the security of the nation, counter
terrorism, prevention of kidnapping of children and trafficking of children and women,
busting drug cartels and counter secret plans within the nation.
14. InMeluhaitisallegedthatalmost50noteworthypersonalitieswhosemobileswerebeenhacked
by using this software includes, the leader of opposition party, Journalists, Judges, Doctors,
Court officials, Bureaucrats, Human rights Activists, Scholars, Administrative officials etc.
15. On 20th December 2021 Poseidon issue was raised in the Parliament. The Minister of
Communications,ElectronicandInformationTechnologyMrs.AlkaRoydefendedthat,“these are
attempts to malign the Government of Meluha”. The Government has never breached the
fundamental rights of the citizen including the right to privacy”. She further stated that “in
Meluha there is a well-established procedure through which a lawful interception of
electronic communication is carried out for the purpose of national security particularly in the
occurrence of any public emergency in the interest of public safety by the agency of the
Centre and the State”.
16. The Fil News published a report on 21st May 2022, stating that Poseidon spyware has
affected a number of mobiles in Meluha. The report claims that Meluha has purchased this

malware along with missiles as it has cordial relations with Zodiac. Most of the transactions
of these two nations remain undisclosed in the public domain under the ambit of national
security.
17. On June 5th 2022, the Defence Minister of Meluha released an official statement through
the media stating “the newspaper records published in FIL News were completely fake and
misleading. The report was based on wrong assumptions. It seems that they have got
information from an unidentified source which lacks factual basis and is far from reality”.
18. Hercules Digital Rights (hereinafter called as HDR) an NGO situated in Kollu. It has
been a champion in protecting Human rights and they fight against abuse of human rights,
securing justice for those whose human rights has been violated. Further based on the reports
published by Fil News HDR filed a PIL before the Hon’ble Supreme Court of Meluha.
19. The Editor in Chief, of Fil News Mr. Bala filed a suit in the High court of Karunadu under
Article 226 of the Constitution of Meluha that it has breached the freedom of press,
guaranteed under Article 19 (1) (a) of the Constitution of Meluha.
20. The CEO of Chatapp a social networking platform has filed a suit against the Government
of Meluha before the Hon’ble Supreme court of Meluha stating that decryption of messages
goes against his company’s policies and the customers will lose faith in this company because
the government has allegedly used such a software which can decrypt the personal
conversations of the customers. Such malware infiltrates under their noses and attacks on the
privacy of individuals.
21. Mrs. Umme Kulsum, the leader of opposition, has filed petition before the Hon’ble High
Court of Delict under Article 226 of Constitution of Meluha, a case accusing that her mobile
was hacked to know the political strategies built by her party, and the Government has used
this to win the elections in a very unethical way and she further accused that only using this
software that they have won the election in 2020 despite a lot of short coming in their
governance.
22. The Hon’ble Supreme Court of Meluha has clubbed all the petitions which are connected
to Poseidon spyware.
*The Laws of Government of Meluha is parametria to the Laws of Union of

Issues presented
The counsels on behalf of the petitioners wants to raise these issues in front of hon’ble
supreme court of meluha.
1)
2) whether the freedom of press conferred by art 19(1)(a) is breached by government of

meluha.
3) whether the use of Poseidon software by the government violates the privacy of
individuals given under art 14,19,21 of constitution of meluha.
4) whether the ruling party won the 2020 elections using the Poseidon software.

Summary of arguments
Issue 1
Issue 2

meluha.
It is most humble submitted before the hon’ble supreme court that every citizens
enjoy freedom of speech and expression by art 19(1)(a). the government imposing restriction
on news agency is a umreasonable restriction.
Furthermore, it curtails the right of free speech of the media. The order also unfairly curtails
the public’s right to know under art 19(1)(a)
Issue 3
It is humbly submitted before the hon’ble supreme court that right to privacy is a
fundamental right as evolved by the court in its various pronouncement and by the
international treatise of which mehula is a signatory and the use Poseidon software is in
violation of the fundamental right to privacy provided to the people under the ambit of art 21
of constitution of mehula. It is humbly submitted before the hon’ble court that every citizen
enjoy freedom of free speeh and privacy by art 14 and 19. the government of meluha cannot
infringe those rights and decrypt personal conversations of citizens.The decryption of
messages violates citizens right to privacy.

Issue 4
4) whether the ruling party won the 2020 elections using the Poseidon software.

Arguments advanced
On behalf of petitioner
1)



meluha

It is humbly submitted before this hon’ble supreme court that right to privacy is a
fundamental right, incorporated in the constitution under the aegis of art 21. The right has
been implicitly provided to the people by way of various pronouncement and interpretation of
art 21.
3.1 meaning of right to privacy
2
Right to privacy is vested within right to life and personal liberty under art.21. the definition
of the phrase “personal liberty” given by prof. Dicey , according to whom personal liberty
means freedom from physical restraint and coercion which is not authorized by law. An
unauthorized intrusion into a person’s home and the disturbances caused to him is the
violation of personal liberty of individual. Therefore right to life enshrined in art.21 has been
liberally interpreted so as to mean something more than mere survival and mere exixtence or
animal exixtence. The right to privacy is not just a common law right, not just a legal right,
not just a fundamental right under the constitution. It is a natural light inherent in every
individual.
3.2 implication of right to privacy under article 21
M.P. Sharma v. Satish Chandra29 was the first case where the Supreme Court threw light on
the right to . The question in issue was whether the Right to Property under 19(1)(f) of the
Constitution is violated by the search and seizure conducted by the state agencies. The courts
uphold the ‘search and seizure’ as the state holds overriding power for the protection of social
security and it is regulated by the law.
In the case of Kharak Singh v. State of U.P.30. , privacy wa though denied the status of a
fundamental right, but it was affirmed by the bench that it is indeed is a human right under
common law, while construting the meaning of personalliberty. The dissenting opinion of
Subbarao j, did impute the right to privacy as a fundamental right under the ambit of personal
liberty ut the same was not reckoned by the majority.
In gobind singh v. state of m.p, the supreme court through a three bench judge stated that
privacy is a concern for an individual and is a part of the concept of liberty. In the case of
R.rajgopal v state of T.N, more popular as the auto shankar case, the scope of right to be left
alone was widened.the supreme court also gave a constitutional status to right to privacy
stating that it is “implicit in the right to life and personal liberty”.
In the evolution of law over right to privacy, in this case of people’s union for civil liberties v.
union of india , it was admitted by the bench that right to privacy is a part of the right to life
and personal liberty. Although the bench refused to define privacy, it did reckon that the
infringement of the privacy would depend upon the basis of the facts of the various cases,
considering the concept to be too broad and moralise in order to define it in a judicial manner.
2
Kharak singh v. state of u.p. AIR 1963 SC 1295

In the landmark case of Vishaka v state of rajasthan it was propounded by the bench that if a
fundamental right is infringed and there is not any domestic legislation to deal with it then the
subject must be construted in line with the provisions in the international treaties and
conventions to which yje country is a party.
In the case of R.M. MLAKANIV VS STATE OF MAHARASTRA also the courts at time
have refused to admit the evidences based on such intrusion to privacy of individuals.
It is pertinent to not that the jurisprudence in the country has bot developed much in this
direction unlike the case in Europe and America, and due to such situations the supreme court
has at numerous occasions considered the jurisprudence of these places as was done in the
case of SHREYA SINGHAL V. UNION OF INDIA . the case of GRISWOLD V.
CONNECTICUT and ROE V. WADW which was dealt in the us supreme court was used by
the apex court of meluha in the auto shankar case to highlight the invasion of government
bodies into individual’s privacy and violation of art 21 .
In the case of SELVI V. STATE OF KARNATAKA the court held that if an individual is
being forced to give the consent for any purpose then that is a kind of intrusion into personal
liberty. Even in the suto shankar case, the supreme court said that right to be left alone which
is a corollary of right to privacy incorporates the principle of consent.
Right to privacy of citizen of meluha got more teeth against the arbitrary action for the state.
The supreme court’s ruling that the “RIGHT TO PRIVACY”is an integral part of right to life
and personal liberty guaranteed under art 21 of the constitution will be seen in the light of its
immediate contxt – the Poseidon software.
3.3 poseidon software is a threat to privacy

what is Poseidon software
Poseidon is a hacking software developed by an zodiac private company named
mxo groups. It is a kind of malicious software.it infiltrates users mobile and can turn into 24
hours surveillance decive without user’s knowledge. It enters the phone and gets secrets
access to activity of users phone including contacts list, gallery, microphone, camera, gps
location, records conversations. It gets activated by technique “zero click” which requires no
interaction of the user. The said software can also strike on encrypted chat,audio and vidios.
There are certain things which the state simply cannot do, because the action
fundamentallyalters the relationship between the citizens and the state. Further the state
cannot put itself in a position where it can track an individual and engage in surveillance. The
state cannot deprive or without the enjoyment of rights and entitlements by an individual.
In NATIONAL LEGAL SERVICES AUTHORITY V. UNION OF INDIA & ORS . art 21,
guarantees the protection pf “personal autonomy” of an individual.
in the case of Justice K.S. Puttaswamy v. Union of India, where the Supreme Court was
revisiting the issue that whether ‘right to ‘privacy’ is an integral component of fundamental
rights under Part III of the constitution ? The Court found that the right to privacy is an
inalienable and natural right and it is related to human dignity. The said right is not

independent of other freedoms guaranteed by the constitution under Part III. However, this
right is not an absolute one and can be encroached on by competing for state and individual
interests. The court in this case held that ‘the right to privacy as an intrinsic part of Article 21
can be denied only through “procedure established by law” which must be ‘just, fair and
reasonable. The court provided a threefold test that is required to be withstanding by the State
in case of a right to encroachment.
threefold tests which are
• Legality - the action must be sanctioned by law;
• Necessity - there must be a need for that action for the legitimate aim;
• Proportionality - there must be proportionate action that ensures rational nexus between the
objects and means adopted to achieve them.
Therefore, it must be ensured by the state while curtailing the right to privacy that is
according to the constitutional need and three-fold tests. When the state's action is
disproportionate without legitimate aim, it shall be invalid and unconstitutional. In Anuradha
Bhasin v. Union of India18, the validity of the shutdown of Internet and movement
restrictions was challenged in this case, while deciding the case the Supreme Court held that
the competent authority must take the doctrine of proportionality into consideration during
the time of imposing restrictions on fundamental rights.
The year 1997 turned out to be an important one in the era of the ‘right to privacy . In the
case of People's Union for Civil Liberties (PUCL) v. Union of India where Section5(2)of the
Telegraph Act, 1885 was challenged during the inquiry of the telephone tapping. The
telephone tapping was held to be a violation of the right to privacy. However, the court
applied narrow tailoring of the provision instead of declaring it unconstitutional. The court in
this case interpreted the phrases ‘public safety and ‘public emergency’. The Court held that
the two phrases ‘take their color off each other’. It defined public safety as a state of safety or
freedom from danger to the public at large and argued that neither a public safety nor public
emergency can be secretive, nor must be evident to the reasonable person. The court said that
two conditions (public safety and public emergency) are prerequisites for exercising the
power to intercept and provided guidelines in form of safeguards to check the arbitrariness in
terms of issuing surveillance orders. These guidelines were later codified under Rule 419A of
the Telegraph Rules, 1951. So, the PUCL case became a landmark case where the court had
evolved the jurisprudence of ‘public safety and public emergency’ as a prerequisite for
interception by state agencies. The key takeaway from PUCL is as-
The Telegraph Act specifically intends to provide targeted surveillance. Neither the court nor
the act contemplates bulk surveillance as what happened in the Pegasus case.
• The Court denied judicial review in targeted surveillance. It doesn't mean that it is not even
required in bulk surveillance like Pegasus.
• PUCL guidelines were required to be followed in targeted surveillance which was later
codified into Rule 419A of the Telegraph Rules, 1951.

• The Privacy restrictions must be narrowly tailored (if they are constitutional) and target is
specific suspicion on identifiable individuals and are only meant to fulfill the public safety
and crime prevention goal of an Individual.
In Manohar Lal Sharma v. Union of India, most commonly known as Pegasus Spyware
Probe, the Supreme Court has rightly pointed out that there must be a balance between the
fundamental rights of an individual and national security. The state cannot take away the
fundamental right of an individual by merely citing the cause of national interest. The State
has to pass three-fold tests of proportionality which have been laid down in the Puttaswamy I
case.34 Ifthestateisencroachingontherighttoprivacyofindividualsbysnoopingorsurveillance
then it must be in accordance with legitimate law for the reasonable purpose in the national
interest.
3.4 bulk surveillance of Poseidon software

The court in PUCL added a narrow tailoring test after a compelling state interest test given
in Govind for the infringement of privacy. Now, the common point in these cases was the
“target surveillance” of either specifically identifiable repeated offenders or an individual
whose privacy was breached due to phone tapping. The Court's approach in identifying the
right to privacy and balancing the surveillance powers of the state was in light of the
reasonable classification which separated ‘a specific class’ from a normal mass.
3.5poseidon software shifts the balance of power from individual to state

the Constitution of India doesn't just provide the fundamental right to an individual but it
also protects and guarantees the same. It ensures that the state cannot take away any
individual's right without proper reason and fair manners. Therefore, if the state encroaches
on those fundamental rights (i.e. the right to privacy) then it must be ensured that the same
is done by the legitimate law with the legitimate aim in a proportional manner for the public
interest otherwise that kind action must be invalidated by the constitutional court. It is the
constitutional duty of the state to protect the citizen's fundamental rights. For that purpose,
the government must enact the law on data privacy and its protection very soon so that this
unfettered action of government can be checked with effective and clear law. We hope that
this time the court shall apply a new approach and protect the privacy the citizens.




Memorial On Behalf of Petitioner Page 1 of 24

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Memorial On Behalf of Petitioner Page 1 of 24

Uploaded by

Copyright:

Available Formats

6th national moot court competition,2023

6th national moot court competition,2023

Before the hon’ble supreme court of meluha

Writ petition no: _____/2023

(filed under article 32 of constitution of meluha)

Hercules digital rights & ors …..petitioners

Union of meluha …..respondent

Memorandum on the side of petitioner

Drawn and filed by the counsel for the petitioners

Memorial on behalf of petitioner Page 1 of 24

Memorial on behalf of petitioner Page 2 of 24

Memorial on behalf of petitioner Page 3 of 24

Memorial on behalf of petitioner Page 4 of 24

Memorial on behalf of petitioner Page 5 of 24

Books,treatises & digest

Memorial on behalf of petitioner Page 6 of 24

Statutes,legislations & international conventions

Essays,articles and reports

Memorial on behalf of petitioner Page 7 of 24

Before the hon’ble supreme court of judicature

32.remedies for enforcement of rights conferred by this part –

Memorial on behalf of petitioner Page 8 of 24

Memorial on behalf of petitioner Page 9 of 24

Memorial on behalf of petitioner Page 10 of 24

*The Laws of Government of Meluha is parametria to the Laws of Union of

Memorial on behalf of petitioner Page 11 of 24

2) whether the freedom of press conferred by art 19(1)(a) is breached by government of

Memorial on behalf of petitioner Page 12 of 24

2) whether the freedom of press conferred by art 19(1)(a) is breached by government of

Memorial on behalf of petitioner Page 13 of 24

Memorial on behalf of petitioner Page 14 of 24

Memorial on behalf of petitioner Page 15 of 24

Memorial on behalf of petitioner Page 16 of 24

2) whether the freedom of press conferred by art 19(1)(a) is breached by government of

Memorial on behalf of petitioner Page 17 of 24

Memorial on behalf of petitioner Page 18 of 24

3.3 poseidon software is a threat to privacy

Memorial on behalf of petitioner Page 19 of 24

Memorial on behalf of petitioner Page 20 of 24

3.4 bulk surveillance of Poseidon software

3.5poseidon software shifts the balance of power from individual to state

Memorial on behalf of petitioner Page 21 of 24

Memorial on behalf of petitioner Page 22 of 24

Memorial on behalf of petitioner Page 23 of 24

Memorial on behalf of petitioner Page 24 of 24

You might also like