3rdADAMAS UNIVERSITY NATIONAL MOOT COURT COMPETITION, 2023

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TEAM CODE: AU – NMCC 34

3rdADAMAS UNIVERSITY NATIONAL MOOT COURT COMPETITION, 2023

BEFORE

THE HON’BLE SUPREME COURT OF INDIANA

IN THE MATTER OF

ARVIND THAKUR & ORS. …………….…………………………..PETITIONER

Versus

UNION OF INDIANA………………………………………………RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

TABLE OF CONTENT…………………………………………………………………2

INDEX OF ABBREVIATIONS………………………………………………...….…..3

INDEX OF AUTHORITIES…………………..………………………………………..4

• CASES CITED……………………………………………………....………….4

• BOOKS REFERRED………………………………………………...…………5

• STATUTES AND RULES………………………………………...……………5

• ARTICLES AND LEGAL JOURNALS…………………………..……………5

• TREATIES AND CONVENTIONS……………………………..……………..5

• LEGAL DATABASE…………………………………………….……………..5

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

STATEMENT OF FACTS………………………………………………………………7

STATEMENT OF ISSUES……………………………………….……………………...9

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

ARGUMENTS ADVANCED…………………………..…………………………..…..11

PRAYER………………………………………………………..…………………….....19

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LIST OF ABBREVIATIONS

➢ & And

➢ Amend. Amendment

➢ Const. Constitution

➢ IT Information Technology

➢ Govt. Government

➢ HC High Court

➢ Hon’ble Honourable

➢ i.e. That is

➢ J Justice

➢ Pvt. Private

➢ Sec. Section no.

➢ SC Supreme Court

➢ U/S Under Section

➢ UOI Union of Indiana

➢ V. Versus

➢ Anr Another

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INDEX OF AUTHORITIES

CASES REFFERED:

• Rohit pandey v.Union of India, (2005) 13 SCC 702.

• K.S. Puttaswamy and Anr. v. Union of India (2017) 10 SCC 1.

• Laxmi Raj Shetty and Anr. v. State of Tamil Nadu, AIR 1988 HC 1274.

• Ramesh Rajagopal vs. Devi Polymers Pvt. Ltd,AIR 2016 6 SCC 310

• Ajay Murlidhar Bathija vs. State of AP, jud-apl-1217-2018

• Gagan Harsh Sharma & Anr. Vs. The State of Maharashtra, 2019 Cri LJ 1398

• Academy of Nutrition Improvement vs. Union of India, AIR 1998 4 SCC 409

• Manish Goel vs. Rohini Goel, Special Leave Petition (C) No. 2954 of 2010

• Delhi Judicial Services Association, Tis Hazari Court, Delhi vs. State of Gujarat, AIR
1991 SC 2176, (1991) 4 SCC 406.

• Re: Vinay Chandra Mishra, AIR 1995 SC 2348, 1995

• Anuradha Bhasin v. Union of India,AIR 2020 3 SCC 637

• Riley v. California,573 U.S. 373 (2014)

• Justice K.S.Puttaswamy (Retired). vs Union of India And Ors.AIR 2017 10 SCC 1

• Kharak Singh v the State of U. P,AIR 1963 1295, 1964 SCR (1) 332

• Amar Singh v. Union of India,AIR (2011) 4 AWC 3726 SC

• Shreya Singhal v. Union of India, AIR 2015 SC 1523

• M/s Gujarat Petrosynthese Ltd &Anr.v. Union of India,AIR 2014 (1) Kar L J 121

• Govind vs. State of M.P, AIR 1975 (2) SCC 148

• R. Rajgopal vs. State of Tamil Nadu, AIR 1994 (6) SCC 632

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STATUTES AND RULES:-

✓ Information and Technology Act,2000

✓ The Constitution of India, 1950.

ARTICLES AND LEGAL JOURNALS:-

✓ Kamshad Mohsin, “Right to Privacy in Digital Era”2019

✓ Prof Dr. Bart Custers, “New Digital Rights: Imagining Additional Fundamental Rights for
Digital India” 2021

✓ Harnirmal Singh, “Different Facets of Analysis of Article 21’s Right to Privacy in Digital
Era Volume 3 Issue 5,International Journal of Legal Developments and Allied Issues”,
2022

BOOKS REFERRED:-

✓ DD Basu, Commentary on the Constitution of India (Lexis Nexis, 9th edition, 2021)

✓ Subhash C Kashyap, Constitutional Law of India(2008)

✓ Dr.L.M. Singhvi,Constitution of India(2nd ed.) Vol I

✓ H.M. Seervai,Constitutional Law of India(4th ed.,1994)

✓ Talat Fatima,Cyber Law in India(2017)

✓ Vakul Sharma & Seema Sharma, Information Technology Law, and Practices(6th ed.,
2017)

LEGAL DATABASE:-

✓ Manupatra

✓ SCC Online

✓ Indian Kanoon

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STATEMENT OF JURISDICTION

The Respondent humbly and respectfully submits to the jurisdiction of this Hon’ble court. In the
present case, this memorandum has been filed in response to the petitions filed by the Appellants.

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SUMMARY OF FACTS

(1) The Union of Indiana is a sovereign and socialist republic. The government has been working
relentlessly to enhance Indiana's digital resources and capabilities in digital technology. The Technology
Act, 2000 is in effect in the Union of Indiana to address technological advancements in the nation and
various cyber space issues.

(2) In September 2018, the "Lab of Citizens" at the University of Tormento, Candida, published a
report on MNO group's "spyware suite" Peganorm. According to the report, 45 countries were affected
by the same spyware suite. The Peganorm suite of spywares can be used to tamper with anyone's digital
devices through zero-click vulnerabilities. Peganorm can access an infected device's emails, texts, phone
calls, camera, and sound recording capabilities. Peganormuser takes control of the device after
infiltration and can remotely control all its functions and features.

(3) Peganorm software is sold by the MNO group to undisclosed governments, whose end users are
mostly government intelligence and law enforcement agencies.

(4) In 2019, WeChat Inc. discovered a software vulnerability that allowed Peganorm spyware to
infiltrate its users' devices. Following this news, some Union of Indiana citizens' devices were also
infiltrated. In June 2020, the Lab of Citizens, and the international human rights organization Arnest
International discovered another spyware campaign targeting nine Indiana residents, some of whom

were also suspected targets of the first spyware attack.

(5) A consortium of seventeen journalistic organisations, including one from Indiana led by Mr.
Banwari Lal, published an investigative report in July 2021 claiming that Peganorm software was used
on many private individuals. The investigative report was based on 40,467 leaked numbers that MNO
clients were monitoring with Peganorm software. It was estimated that 300 of these numbers belonged
to Indiana residents. The leaked numbers were mostly from senior doctors, journalists, politically
influential people, and Court staff. Ten citizens had Peganorm-infected devices that were forensically

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examined. This led to the initiations of actions on a large scale across the globe.

(6) When asked about the cyberattack and spyware use, Indiana's Minister of Electronics and
Technology denied the reports in Parliament. The Minister also noted that Arnest's report stated that
mentioning a number in the list does not confirm Peganorm virus. The Minister also stated that MNO's
claims in Arnest's report were factually contradicted. He concluded that Indiana's surveillance and
interception of communication and digital devices laws were strict and that no illegal surveillance had
occurred.

(7) Arvind Thakur, a famous SDTV India journalist, filed a writ petition with the Supreme Court of
Indiana after his device was infected by Peganorm malware. The Supreme Court of Indiana received
many writ petitions from Peganorm malware victims and public interest litigations. Some petitioners
also claimed that the MNO group disclosed that the Peganorm software was sold only to vetted
governments and that either a foreign government or some Union of Indiana agencies used the software
on Indiana citizens without following the law.

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STATEMENT OF ISSUES

1. WHETHER THE PIL OR WRIT PETITION UNDER ARTICLE 32 OF THE

CONSTITUTION IS MAINTAINABLE OR NOT?

2. WHETHER UNION OF INDIANA CAN BREACH THE RIGHT TO PRIVACY OF

THE CITIZENS UNDER ARTICLE 21 OF THE CONSTITUTION?

3. WHETHER THE PENALTIES CAN BE LEVIED ON UNION OF INDIANA FOR

TEMPERING OF DIGITAL DEVICES OF CITIZENS?

4. WHETHER THE DEMAND FOR INDEPENDENT INVESTIGATION CAN BE

GRANTED OR NOT?

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SUMMARY OF ARGUMENTS

1. Whether the PIL or Writ petition under Article 32 of the Constitution is maintainable or not?
It is most respectfully submitted that in the facts of the case, there is no authentic data and report also
does not mention that the Union of Indiana is the client of MNO group and individuals, affected by
Peganorm, are from the citizens of Indiana. And credibility of the reports has been clarified on the floor
of the Parliament by the Hon’ble Minister of Communications and Electronics & Information
Technology of Indiana, He claimed that the reports disclosed earlier had no factual basis and Arnest's
report itself said that only merely mentioning a particular number in the list will not confirm whether
the same was infected by Peganorm or not. Furthermore, MNO had also factually contradicted many
of its claims in Arnests's report.
2. Whether Union of Indiana can breach the right to privacy of the citizens under Article 21 of
the Constitution?
It is most respectfully submitted that in this case Peganorm spyware can be a legitimate mean if it is
used for the security of national interest and legal surveillance can be applied by the government. And
The law allows the state, under certain circumstances, to keep an eye on our devices. And privacy of
citizens can be violated under some circumstances according to test of proportionality given in K S
Puttaswamy case.
3. Whether the penalties can be levied on Union of Indiana for tempering the digital devices of
the citizens of Indiana or not?
It is most respectfully submitted before this Hon’ble court that penalties can be levied only when Union
of Indiana held liable for use of Peganorm and when there is any evidence that shows the use of spyware
Peganorm by the government on its citizens. However, there is not a single report which clarifies and
proves that Peganorm is used by government. It is only some newspaper reports that are spreading the
fake news about government and the court cannot rely on these unauthentic reports.
4. Whether the demand for independent investigation can be granted or not?
It is most respectfully submitted before this Hon’ble court that Union of Indiana did not violate any
privacy of citizen and did not use Peganorm spyware on citizens of this country. However, it was an

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announcement that privacy of citizens has been violated and Infiltration is being done with the devices
of citizens and it may be that any foreign agency would have done this to harm the sovereignty of state.
it can be a cyber-threat for state and it is a state concern. So government is ready to make an investigation
committee to investigate this matter.

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ADVANCED ARGUMENTS

1. Whether the PIL or Writ petition under Article 32 of the Constitution is maintainable or not?

¶ (1). It is most respectfully submitted before this Hon’ble court that A bare perusal of the captioned
Petition and other connected petitions makes it clear that the same are based on conjectures and
surmises or on other unsubstantiated media Reports or incomplete or uncorroborated material. It is
submitted that the same cannot be the basis for invoking the writ jurisdiction of this Hon’ble Court.
Writ petitions and particularly public interest litigations, which are based entirely on newspaper reports
without any additional steps taken by the petitioner. In this respect, it may be relevant to quotes the
observations of this court in the case of Rohit Pandey v. Union of India1, which are as follows:
“1. The only basis for the petitioner coming to this Court are two newspaper reports dated
25-1-2004, and the other dated 12-2-2004. This petition was immediately filed on 16-2-
2004 after the aforesaid second newspaper report appeared.
2.We expect that when such a petition is filed in public interest and particularly by a
member of the legal profession, it would be filed with all seriousness and after doing the
necessary homework and enquiry. If the petitioner is so public-spirited at such a young age
as is so professed, the least one would expect is that an enquiry would be made from the
authorities concerned as to the nature of investigation which may be going on before filing
a petition that the investigation be conducted by the Central Bureau of Investigation.
Admittedly, no such measures were taken by the petitioner. There is nothing in the petition
as to what, in fact, prompted the petitioner to approach this Court within two-three days
of the second publication dated 12-2-2004, in the newspaper Amar Ujala. Further, the
State of Uttar Pradesh had filed its affidavit a year earlier i.e on 7-10-2004, placing on
record the steps taken against the accused persons, including the submission of the charge-
sheet before the appropriate court. Despite one year having elapsed after the filing of the
affidavit by the Special Secretary to the Home Department of the Government of Uttar
Pradesh, nothing seems to have been done by the petitioner. The petitioner has not even
controverted what is stated in the affidavit. Ordinarily, we would have dismissed such a
misconceived petition with exemplary costs but considering that the petitioner is a young
advocate, we feel that the ends of justice would be met and the necessary message conveyed
if a token cost of rupees one thousand is imposed on the petitioner.
3. In this view, the writ petition is dismissed with costs of rupees one thousand.”

1
Rohit Pandey v.Union of India, (2005) 13 SCC 702.

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¶ (2). It is submitted that in the facts of the case also, there is noauthentic data and report also does not
mention that the Union of Indiana is the client of MNO group and individuals, affected by Peganorm,
are from the citizens of Indiana.And credibility of the reports has been clarified on the floor of the
Parliament by the Hon’ble Minister of Communications and Electronics & Information Technology of
Indiana,He claimed that the reports disclosed earlier had no factual basis and Arnest's report itself said
that only merely mentioning a particular number in the list will not confirm whether the same was
infected by Peganorm not. Furthermore, MNO had also factually contradicted many of its claims in
Arnests's report. A copy of the statement of the Hon’ble Minister is attached herewith and Marked as
Annexure R – 1.

¶ (3). It is submitted that the persons who are claiming as direct victims of Peganorm spyware i.e.
Journalist Arvind Thakur. They did not support their claim with any evidence. Their devices are not
Forensically examined by any agency or cyber expert nor they filed any complaint in any cyber cell
and no crime is happened against them. and none of them is IT expert or any engineer so the question
arises how they found the Peganorm spyware in their devices and how they know their devices are
affected by Peganorm spyware.
Therefore, it is submitted their claim as being direct victims is not admissible before the Hon'ble
court and Writ petition is not maintainable in this Hon'ble court.

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2. Whether Union of Indiana can breach the right to privacy of the citizens under Article 21 of
the Constitution?

¶ (4). It is most respectfully submitted Before this Hon’ble Court that although the right to privacy is a
fundamental right under article 21 that is right to life and liberty 2 and it is declared to be inalienable,
the right to privacy of course cannot be set to be an absolute right as the Indian constitution does not
provide for such a right without reasonable restrictions as with all the other fundamental rights, this
court therefore must recognise that certain limitations exist when it comes to the right to privacy as
well. However, any restrictions imposed must necessarily pass constitutional scrutiny.

¶ (5). In K. S Puttaswami case,3 the Hon’ble Supreme Court considered the need to protect legitimate
state interests along with the protection of privacy interests of individuals. This court therefore directed
the state to embark upon the exercise of balancing of competing interests. This court observed that
Right to privacy cannot be impinged without a just, fair and reasonable law: It has to fulfil the test of
proportionality i.e. (i) existence of a law; (ii) must serve a legitimate State aim; and (iii) proportionality
- The means which are adopted by the legislature are Proportional to the object and needs sought to be
fulfilled by the law.

¶ (6). And in this case also the question arises that whether Simply put, spyware like Peganorm can be
lawfully used in India and can violate the privacy of individuals by government?
To answer this question and to fulfil the 1strequirement of test of proportionality i.e. existence of a
law, some provisions are being referred here. Section 5(2) of the Telegraph Act of 18854 provides the
basis for interception of telephone calls, or phone-tapping as it is colloquially called. The
constitutionality of this was challenged in the Supreme Court by the People’s Union for Civil Liberties,
and in a judgment dated December 18, 1996, the Supreme Court upheld the constitutionality of the said

2
INDIA CONST. art. 21.
3K.S. Puttaswamy and Anr. v. Union of India (2017) 10 SCC 1.
4 Indian Telegraph Act, § 5(2), No.13, Acts of Parliament, 1885 (in).

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provision. Section 5 (2) of Indian telegraph rules 1951 states: Power for Government to take
possession of licensed telegraphs and to order interception of messages.
5(2).On the occurrence of any public emergency, or in the interest of the public safety, the
Central Government or a State Government or any officer specially authorised in this behalf
by the Central Government or a State Government may, if satisfied that it is necessary or
expedient so to do in the interests of the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States or public order or for preventing incitement to
the commission of an offence, for reasons to be recorded in writing, by order, direct that any
message or class of messages to or from any person or class of persons, or relating to any
particular subject, brought for transmission by or transmitted or received by any telegraph,
shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the
Government making the order or an officer thereof mentioned in the order

And there is another provision that is Section 69 of IT act, 20005it states that:
69. Power to issue directions for interception or monitoring or decryption of any information
through any computer resource.—(1) Where the Central Government or a State Government
or any of its officers specially authorised by the Central Government or the State
Government, as the case may be, in this behalf may, if satisfied that it is necessary or
expedient so to do, in the interest of the sovereignty or integrity of India, defence of India,
security of the State, friendly relations with foreign States or public order or for preventing
incitement to the commission of any cognizable offence relating to above or for investigation
of any offence, it may subject to the provisions of sub-section (2), for reasons to be recorded
in writing, by order, direct any agency of the appropriate Government to intercept, monitor
or decrypt or cause to be intercepted or monitored or decrypted any information generated,
transmitted, received or stored in any computer resource.
(2) The procedure and safeguards subject to which such interception or monitoring or
decryption may be carried out, shall be such as may be prescribed.
(3) The subscriber or intermediary or any person in-charge of the computer resource shall,
when called upon by any agency referred to in sub-section (1), extend all facilities and
technical assistance to—
(a) provide access to or secure access to the computer resource generating, transmitting,
receiving or storing such information; or
(b) intercept, monitor, or decrypt the information, as the case may be; or
(c) provide information stored in computer resource.
(4) The subscriber or intermediary or any person who fails to assist the agency referred to
in sub-section (3) shall be punished with imprisonment for a term which may extend to seven
years and shall also be liable to fine.

5
The Information Technology Act, § 69, No. 21, Acts of parliament, 2000 (in).

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¶ (7). Now, come to the 2nd test of Proportionalityi.e. it must serve a legitimate state aimand state
always intercepts with the privacy of individuals for the purpose of national security or national interest
which is bigger than the individual interest.

¶ (8). And the last and 3rd test of proportionality i.e. the means which are adopted by the legislature
are Proportional to the object and needs sought to be fulfilled by the law. And in this case also Peganorm
spyware can be a legitimate mean if it is used for the security of national interest and legal
surveillancecan be applied by the government. And The law allows the state, under certain
circumstances, to keep an eye on our devices.

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3. Whether the penalties can be levied on Union of Indiana for tempering the digital devices of the
citizens of Indiana or not?

¶ (9). It is most respectfully submitted before this Hon’ble court that penalties can be levied only when
Union of Indiana held liable for use of Peganorm spyware and when there is any evidence that shows
the use of Peganorm spyware by the government on its citizens. However, there is not a single report
which clarifies and proves that Peganorm spyware is used by government. It is only some newspaper
reports that are spreading the fake news about government and the court cannot rely on these
unauthentic reports.

¶ (10). It is submitted that the facts of the case are as follows:

• In September 2018, the report published by the lab of citizens gave a detailed account of the
software capabilities of “spyware suite” called Peganorm. The report mentioned that individuals
from around 45 countries around the globe were affected by the same spyware suite. However,
there is nowhere mentioned the name of Union of Indiana.
• The MNO group reportedly sells the Peganorm software to Government with undisclosed
identities where the end users are mostly government intelligence and their respective law
enforcement agencies. However, there is also nowhere mentioned that MNO group sold Peganorn
to Union of Indiana.
• Furthermore, after identified Peganorm spyware in the devices of WeChat's users by WeChat Inc.,
there was an announcement made that the devices of some citizens from the Union of Indiana
were also affected by the infiltration. And there is also nowhere mentioned that the infiltration
was done through Peganorn. Infiltration can be happened by other means also. And it was just an
announcement or can be hearsay and cannot be authentic news.

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• In June 2020, the lab of citizens along with Arnest International uncovered another spyware
campaign that purportedly targeted nine individuals from Indiana. Herein Purportedly word is
added according to Cambridge Dictionary it means “that has been stated to be true or to have
happened, although this may not be the case”. So this report is also not clear about the data.
• Furthermore, in July 2022, a consortium of seventeen journalistic organizations published a long
investigative report and the report was prepared on the basis of around 40,467 leaked numbers
which were under the surveillance by the clients of the MNO group through the Peganorm
spyware. Herein also nowhere mentioned that Union of Indiana is the client of MNO group.
• Furthermore, some of the petitioners also claimed that the MNO group disclosed that the
Peganorm software was sold only to vetted governments and hence either a foreign government
or some agencies of the Union of Indiana have used the software on the citizens of Indiana. Herein
also the petitioners are saying that MNO group sold Peganorm either a foreign government or
some agencies of Union of Indiana. They themselves are confused.

¶ (11). It is submitted that the fact of the case nowhere mentions that Peganorm is used by Union of
Indiana on its citizens. And there are only news reports on which petitions are relied. Petitioners had
not provided any other documentaryevidence. And in the case of Laxmi Raj Shetty and Anr vs State
of Tamil Nadu,6 it was stated that:the report in the newspapers is only hearsay evidence. A newspaper
is not one of the documents referred to in s. 78(2) of the Evidence Act, 1872 by which an allegation of
fact can be proved. The presumption of genuineness attached under s. 81 of the Evidence Act to a
newspapers report cannot be treated as proved of the facts reported therein.

Therefore, it is submitted that the penalties cannot be levied on Government for tempering the
digital devices.

6
Laxmi Raj Shetty and Anr. v. State of Tamil Nadu, AIR 1988 HC 1274.

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4. Whether the demand for independent investigation can be granted or not?

¶ (12). It is most respectfully submitted before this Hon’ble court that Union of Indiana did not violate
any privacy of citizen and did not use Peganorm spyware on citizens of this country. However, it was
an announcement that privacy of citizens has been violated and Infiltration is being done with the
devices of citizens and it may be that any foreign agency would have done this to harm the sovereignty
of state. it can be a cyber-threat for state and it is a state concern. Furthermore, this is the duty of the
state to protect the privacy of individuals which is the fundamental right of the citizens.

Therefore, the government is ready to investigate this matter by making an independent

committee which consists of cyber experts and forensic experts.

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PRAYER

That the PIL/Writ WHEREFORE IN THE LIGHT OF FACTS OF THE CASE, ISSUES RAISED,
ARGUMENTS ADVANCED AND AUTHORITIES CITED, THIS HON’BLE COURTMAY BE
PLEASED TO DECLARE:
❖ petition is not maintainable in this Hon’ble court; and
❖ That the Union of Indiana did not violate the right to privacy of citizens under Article 21
of the constitution of Indiana; and
❖ That the penalties cannot be levied on Union of Indiana for tempering the digital devices of
the citizens of Indiana; and
❖ Order/writ of mandamus to make an investigation committee to investigate in this matter; or
❖ Pass any other order/direction that it deems fit/appropriate in the interest of justice

AND FOR THIS ACT OF KINDNESS, THE RESPONDANT AS IN DUTY BOUND SHALL EVER
PRAY.

Place:_________
Date: _________

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MOST RESPECTFULLY SUBMITTED BY

COUNSEL FOR THE RESPONDENT

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