TEAM

TEAM CODE:
CODE: GG

11th ALL INDIA MOOT COURT

COMPETITION, 2019
Justice T. Ramachandran Memorial
Ever Rolling Trophy 2019

9
BEFORE THE SUPREME COURT OF INDIA

WRIT PETITION No. / 2018

(UNDER ART. 32 OF THE CONSTITUTION OF INDIA, 1950)

DHORMIR DOST……………………………………………………….……PETITIONER

V.

UNION OF INDIA……………………………………………………..……RESPONDENT

CLUBBED WITH

WRIT PETITION NO. / 2019

(UNDER ART. 32 OF THE CONSTITUTION OF INDIA, 1950)

DHORMIR DOST…………………………………………………….………PETITIONER

V.

UNION OF INDIA…………………………………………………………RESPONDENT

MEMORANDUM ON BEHALF OF PETITIONER

-Petitioner- -Table of Contents-

TABLE OF CONTENTS

1. TABLE OF ABBREVIATIONS ......................................................................................... III

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

3. STATEMENT OF JURISDICTION .................................................................................... X

4. SUMMARY OF FACTS.....................................................................................................XI

5. ISSUES RAISED .................................................................................................................. 1

6. SUMMARY OF ARGUMENTS .......................................................................................... 2

7. ARGUMENTS ADVANCED .............................................................................................. 3

[1.] THE PRESENT PETITIONS FILED BY THE PETITIONER ARE

MAINTAINABLE UNDER ARTICLE 32 OF THE INDIAN CONSTITUTION. .............. 3

1.1 The PIL Filed Against The Police Authorities Is Maintainable. ........................................ 3

1.2 The Writ Petition Filed By The Petitioner Against IT Authorities Is Maintainable. ....... 4

[2.] THE SEARCH CONDUCTED BY THE POLICE AUTHORITIES VIOLATED THE

FUNDAMNETAL RIGHTS OF THE MEMBERS OF LGBTQ COMMUNTY. ................. 5

2.1 The Search Conducted By Police Authorities Was Not In Accordance With The
PROCEDURE. ................................................................................................................................ 6

2.2 FUNDAMENTAL Rights Of Members Of LGBTQ Community Were Violated. ....... 10

[3] § 69 (1) OF ITA R/W RULE 4 OF ITR AND THE SUBSEQUENT NOTIFICATION
S.O.6227 (E) OF MHA SHOULD BE STRUCK DOWN. ..................................................... 14

3.1 There Is A Violation Of Fundamental RightsBy Virtue of §69 (1), Rule 4 ITR 2009 &
Notification. ................................................................................................................................... 14

3.2 THERE Is An Absence Of Judicial Oversight. .................................................................. 18

[4.] THE ACTION OF INCOME TAX OFFICERS AGAINST THE PETITIONER WAS
MALA FIDE. .................................................................................................................................. 22

4.1 There Is A Presence Of Reasonable Suspicion Of Mala Fide Intention. ........................ 22

4.2 There Is An Element Of Turpitude On Part Of The IT Commissioner. .......................... 23

PRAYER .................................................................................................................................. 25

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MEMOANDUM ON BEHALF OF PETITIONER
-Petitioner- -Index of Authorities-

TABLE OF ABBREVIATIONS

1. § Section
2. ¶ Paragraph
3. & And
4. i.e. That is
5. AIR All India Reporter
6. All Allahabad
7. All ER All England Reporter
8. Anr. Another
9. AP Andhra Pradesh
10. App. Appellate
11. Art. Article
12. BOMLR Bombay Law Review
13. Cal Calcutta
14. Cir. Circuit
15. cl. Clause
16. Comr. Commissioner
17. CONST. Constitution
18. Cr LJ Criminal Law Journal
19. CrPC Code of Criminal Procedure,1973
20. Et.al. and others
21. EWHC High Court of England and Wales
22. F. Supp. Federal Supplement
23. G.A. General Assembly
24. Guj. Gujarat
25. Hon’ble Honourable
26. ICCPR International Covenant on Civil and Political
Rights,1966
27. ICESCR International Covenant on Economic, Social and
Cultural Rights,1966
28. ITA Information Technology Act,2000

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-Petitioner- -Index of Authorities-

29. ITR Information Technology (Procedure and

Safeguard for Interception, Monitoring and
Decryption of Information) Rules, 2009.
30. ITO Income Tax Officer
31. Kant. Karnataka
32. LGBTQ Lesbian Gay Bisexual Transgender Queer
33. Ltd. Limited
34. MeitY Ministry of Electronics & Information Technology
35. MHA Ministry of Home Affairs
36. MP Madhya Pradesh
37. NDPS Narcotic Drugs and Psychotropic Substances
38. No. Number
39. Ors Others
40. P&H Punjab and Harayana
41. PIL Public Interest Litigation
42. r/w Read with
43. Raj Rajasthan
44. Res. Resolution
45. SC Supreme Court
46. SCC Supreme Court Cases
47. SCJ Supreme Court Journal
48. SCR Supreme Court Reports
49. Tex. Texas
50. u/s Under section
51. U.N. United Nations
52. U.S. United States
53. U.N.T.S. United Nations Treaty Series
54. UDHR Universal Declaration of Human Rights, 1948
55. UOI Union of India
56. UP Uttar Pradesh
57. V. Versus

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MEMOANDUM ON BEHALF OF PETITIONER
-Petitioner- -Index of Authorities-

INDEX OF AUTHORITIES

BOOKS REFERRED:

1. Chaturvedi & Pithisaria, Income Tax Law (5th ed. 2007).

2. Girish Ahuja & Ravi Gupta, Direct Taxes (9th ed. 2017).
3. Iyer, The Narcotic Drugs and Psychotropic Substances Act,1985 (4th ed. 2018).
4. Leslie P. Francis & John G. Francis, Privacy : What Everyone needs to know, (2018).
5. M.P. Jain & S.N. Jain, Principles of Administrative Law (7th ed. 2013).
6. M.P. Jain, Indian Constitutional Law (6th ed. 2010).
7. Russell A. Miller, Privacy & Power: A Transatlantic Dialogue in the Shadow of NSA-
Affair, (2018).
8. Rahul Matthan, Privacy 3.0, (2018).
9. Ratanlal & Dhirajlal, The Code of Criminal Procedure(V R Manohar eds., 19th ed. 2014).
10. Rishika Taneja & Sidhant Kumar, Privacy Law Principles, Injunction and Compensation
(2014).
11. S C Sarkar, The Code of Criminal Procedure (11th ed. 2015).
12. Sohoni, Code of Criminal Procedure (21st ed. 2015).

ARTICLES REFERRED

1. Saptarshi Mandal, Right to Privacy in Naz Foundation: A Counter-Heteronormative

Critique, 2 NUJS L. Rev. 525, 540 (2009) ………………………………………….…….8
2. Warren and Brandeis, “The Right to Privacy”, Vol.4 (5), Harvard Law Review,
195196(1890)02……………….………………………………………...……………….12
3. Subhajit Basu, Policy-Making, Technology and Privacy in India, 6 Indian J. L. & Tech.
65, 88 (2010). 02……………………………………………….……………...………….15
4. Anna Jonsson Cornell, “Right to Privacy”, Max Planck Encyclopaedia of Comparative
Constitutional Law (2015) ……………………………………………………….……...20
5. Ari Ezra Waldman, “Privacy as a Freedom Form”, Privacy as a Trust, Cambridge
University Press, (2018)………...……………………………………………………….21

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MEMOANDUM ON BEHALF OF PETITIONER
-Petitioner- -Index of Authorities-

STATUTORY AUTHORITIES:

1. Information Technology (Procedure and Safeguard for Interception, Monitoring and

Decryption of Information) Rules, 2009.
2. Order S.O. 6227(E) of Cyber and Information Division of Ministry of Home affairs dated
20-12-2018.
3. The Code of Criminal Procedure, 1973.
4. The Constitution of India, 1950.
5. The Income Tax Act, 1961.
6. The Information Technology Act, 2000.
7. The Narcotic Drugs & Psychotropic Substances Act, 1985.
8. The Indian Telegraph Rules, 1951.
9. Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act,
2016.

INTERNATIONALAUTHORITIES:

1. European Convention for Protection of Human Rights & Fundamental Freedoms, 1950.
2. International Covenant on Civil and Political Rights, 1966.
3. International Covenant on Economic, Social and Cultural Rights, 1966.
4. Universal Declaration of Human Rights, 1948.

FOREIGN STATUTES:

1. Canadian Charter of Rights and Freedoms, 1982.

2. Customs and Excise Management Act, 1979.

DYNAMIC LINKS:

1. www.scconline.com
2. www.taxman.com
3. www.cityofmadison.com

LEGAL LEXICONS:

1. Black’s Law Dictionary, 10th Edition, Bryan A. Garner, 2014.

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MEMOANDUM ON BEHALF OF PETITIONER
 -Petitioner- -Index of Authorities-

CASES REFERRED:

1. Ahmad v. State of Gujarat, AIR 2000 SC 2700. ................................................................... 6

2. AK Roy v. Union of India, (1982) 1 SCC 271.................................................................... 16
3. Amina Abdul Shaikh v. States of Maharashtra, (1993) 95 BOMLR 829. ............................ 5
4. Arunachala Nadar v. State of Madras, AIR 1959 SC 300. ................................................. 13
5. Assistant Commissioner of Income Tax v. Jayanthi Patel, [1998] 99 Taxman 443 (RAJ). 22
6. Association for Lawyers of Calcutta High Court v. State of WB, 2007 (4) Cal 842. ........... 2
7. Bachan Singh v. State of Punjab, AIR 1982 SC 1325 .......................................................... 9
8. Binny Ltd. & Anr v. Sadasivan & Ors, AIR 2005 SC 320. .................................................. 1
9. Board of Trustees v. Dilip, AIR 1983 SC 109 ...................................................................... 9
10. Board of Trustees, port of Bombay v. Dilip Kumar, AIR 1989 SC 549. .............................. 9
11. Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922 ....................................... 10
12. Brij Mohan Lal v. Union of India, (2012) 6 SCC 502 .................................................. 10, 13
13. Brij Mohan Lal v.Union of India, (2012) 6 SCC 571 ........................................................... 3
14. CBI v. Shri Ravi Shankar Srivastava .................................................................................... 8
15. Charan Lal Sahu v. Union of India, AIR 1990 SC 1480....................................................... 1
16. Coimbatore District Central Co-Operative Bank v. Coimbatore District Central Co-
Operative Bank Employee Association, (2004) 4 SCC 669 ......................................... 14, 20
17. Common Cause v. Union of India, AIR 1999 SC 922. ...................................................... 16
18. Corlie Mullin v. Adminstrator and Union Territory of Delhi, 1981 SCR (2) 516. ............... 9
19. D.B.Thakur v. State of Gujarat, 1995 Cri LJ 375 (Guj)........................................................ 6
20. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 ...................................................... 10
21. Darshan Lal v. State of Haryana, 1997 Cri LJ 2137 ............................................................. 5
22. Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457 ................................................... 2
23. Dattaraj Nathuji Thaware v. State of Maharashtra, AIR 2005 SC 540 ................................. 2
24. District Registrar and Collector v. Canara Bank,AIR 2005 SC 186 ............................. 20, 21
25. Dolly Chandra v. Chairman Jee, (2005) 9 SCC 779 ............................................................. 9
26. E Royappa v. State of Tamil Nadu, AIR 1974 SC 555 ....................................................... 13
27. Express Newspaper ltd v. Union of India, AIR 1986 SC 872............................................. 19
28. Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844. ........................................ 9
29. Govind v. State of M.P., 1975 (2) SCC 148. ........................................................................ 7
30. Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514 ................................ 9

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 -Petitioner- -Index of Authorities-

31. ITO v. Seth Brothers, AIR 1970 SC 292 ...................................................................... 21, 22

32. Janta Dal v. H. S. Chowdhary, AIR 1993 SC 892. ............................................................... 2
33. Jayanthi Lal Patel v. Assistant Commissioner of Income Tax, (1998) 99 Taxman 417
(RAJ). .................................................................................................................................. 22
34. K S Puttaswamy v. Union of India, 2018 (9) SCJ 224. ...................................................... 14
35. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 ................................................ passim
36. K.T Plantation Ltd. v. State of Karnataka, (2011) 9 SCC 1. ............................................... 14
37. Kharak Singh v. State of U.P., 1964 SCR (1) 332. ............................................................. 14
38. Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295 ............................................ 2, 5
39. Kochhuni v. State of Maharashtra, AIR 1959 SC 725. ......................................................... 1
40. Kulwant Singh v. State of Punjab, 1998 Cri LJ 4117 ........................................................... 5
41. Malak Singh v. State of Punjab, AIR 1981 SC 760 ............................................................ 14
42. Manak Lal v. Prem Chand, AIR 1957 SC 425 .................................................................... 20
43. Maneka Gandhi v. Union of India, AIR 1978 SC 597. ................................................... 9, 12
44. Manohar Lal Sharma v. Principal Secretary, (2014) 2 SCC 532 ........................................ 16
45. Mohd. Abdul Kadir v. Director General of Police, Assam, (2009) 6 SCC 611 .................. 17
46. MRF Ltd v. Inspector Kerala Government, AIR 1999 SC 188. ......................................... 12
47. Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1. .............................. 3, 10
48. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960 ...................................................... 10
49. O.K. Ghosh v. EX Joseph, AIR 1962 SC 814..................................................................... 15
50. Om Kumar v. Union of India, AIR 2000 SC 3689 ............................................................... 9
51. Parmanand Katara v. Union of India, 1989 SCR (3) 997 ..................................................... 2
52. People Union for Civil Liberties v. Union of India, (1997) 3 SCC 433 ....................... 10, 18
53. Pratap Singh v. State of Punjab, AIR 1964SC 72. ........................................................ 21, 22
54. Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996 ........................................... 2
55. PUCL v. UOI, (2005) 2 SCC 436 ....................................................................................... 11
56. Rakesh Vij v. Raminder Pal Singh Sethi, AIR 2005 SC 3593 ............................................ 12
57. Ramesh v. Karnataka, AIR 1978 Kant.459. ........................................................................ 20
58. Ramlila Maidan Incident v Home Secretary, (2012) 5 SCC 1 ............................................ 21
59. Ravananma v. State, 1998 Cri LJ 1660 (Cal)........................................................................ 6
60. Rem Chand Garg v. Excise Commissioner, AIR 1963 SC 996. ........................................... 2
61. Renu v. District and Sessions Judge, AIR 2014 SC 2175. .................................................. 21
62. Romesh Thappar v. The State of Madras, AIR 1950 SC 124. .............................................. 2

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-Petitioner- -Index of Authorities-

63. Ronny v. State of Maharashtra, AIR 1998 SC 1251. ........................................................... 6

64. Rudul Shah v. Union of India, AIR 1983 SC 1086 ........................................................... 10
65. Saheli v. Commissioner of Police, Delhi, AIR 1990 SC 513 ............................................ 10
66. Sahibzada Sa biyed Muhammed Amirabbas Abbasi v. The State of Madhya Bharat, AIR
1960 SC 768......................................................................................................................... 3
67. Secretary ONGC Ltd v. VU Warrier, AIR 2005 SC 3039................................................. 16
68. Shreya Singhal v. Union of India, (2015) 5 SCC 1 ........................................................... 16
69. State of Andhra Pradesh v. Golconda Linga Swamy, AIR 2004 SC 3967 .......................... 8
70. State of Gujarat Steel Tubes v. Its Mazdoor Shabha, AIR 1980 SC 1896 ....................... 17
71. State of Madras v. VG Row, AIR 1952 SC 196. ............................................................... 12
72. State of MP v. Thakur Bharat Singh, AIR 1967 SC 1170 ................................................. 17
73. State of Punjab v. Gurdail Singh, AIR 1964 SC 962 ........................................................ 19
74. State of Punjab v. Balbir Singh, AIR 1994 SC 1872. .......................................................... 4
75. Sukhdev & Ors v. Bhagat Ram & Ors, AIR 1975 SC 1331. ............................................... 1
76. Supridt. Central Police v. Ram Manohar Lohiya, 1960 SCR (2) 821 ............................... 15
77. Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021 ................................................. 9
78. Suresh v. State of M.P., 1997 Cri LJ 4210 (MP). ................................................................ 5
79. Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898. ............................................... 2
80. Union of India v. G. Ganayutham, (1997) 7 SCC 463. ................................................. 9, 14
81. Vishakha v. State of Rajasthan, AIR 1997 SC 3011...................................................... 2, 10
82. VK Javali v. State of Mysore, AIR 1966 SC 1387 ............................................................ 15
FOREIGNCASES:

1. Assosiated Provincial Pictures Houses Ltd. v. Wednesbury Corporation, (1947) 2 All ER

680 ......................................................................................................................................... 9
2. JeoffreyCalhoun, Et al v. Richard Pennington, Et al, 10 U.S. 2142 (2010)........................ 11
3. Martin v. Halliburton, 2010 U.S. App. 18698 (5th Cir. Tex. 2010). ..................................... 1
4. Mohidin v. Comr of Police the Metropolis, [2015] EWHC 2740 (QB ................................. 7
5. President of Republic of South Africa v. South African Rugby Football Union, 2000 QB
451 ....................................................................................................................................... 21
6. Vancouver v. Ward, [2002] 2 SCR 28 ................................................................................. 7
7. Warmington v. Home Office, [2004] 2 AC 406 ................................................................... 7

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MEMOANDUM ON BEHALF OF PETITIONER
-Petitioner- - Statement of Jurisdiction-

STATEMENT OF JURISDICTION

WRIT PETITION No. / 2018

The Hon’ble Supreme Court of India has the jurisdiction to try, entertain and dispose off the
present Public Interest Litigation by virtue of Article 32 of The Constitution of India, 1950.

WRIT PETITION No. / 2019

The Hon’ble Supreme Court of India has the jurisdiction to try, entertain and dispose off the
present writ petition by virtue of Article 32 of The Constitution of India, 1950.

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MEMOANDUM ON BEHALF OF PETITIONER
-Petitioner- -Summary of Facts-

SUMMARY OF FACTS

BACKGROUND

In the Union Territory of Karmasthan, Dhormir Dost City News (DCN) is a newspaper
published from the capital city of Dhormir. Dhormir Dost is a well-known NGO.
3rd January, 2018 - Sham Kiran assumed the charge of City Commissioner of Police of
Dhormir.

NEWS REPORT PUBLISHED BY DCN ON 12TH MAY, 2018

A pride party was organized by Dhormir Dost in Hotel Jeena Plaza which was attended by
several LGBTQ members. Around midnight, police officers led by Sham Kiran unexpectedly
arrived at the scene for a drug raid. During the raid, they allegedly abused, threatened and
humiliated the attendees. The search continued till 4 am. Police left after procuring personal
information such as names, numbers and addresses of all attendees.

COMMENTS IN THE NEWS REPORT

1.Jaya Bhai (LGBTQ Activist) - 20-25 police barged into the bar without warrant, stating it
was a drug raid based on a tip- off and made everyone strip in groups, in public view and
were abusive towards them. They found 25 grams of dry alcohol and used it as a pretext to
search everyone. Five people were made to strip in smoking zone. Everyone was directed to
strip in groups.

2. Prasanna Pran (Organiser of Event) - Specific questions were asked to members who
have not yet got their sex reassignment surgery and their chests was grouped and perverted
questions were posed. Closet members were threatened to be exposed to the public who were
afraid of losing their jobs.

3. Tharun Kumar (Advocate) - The officers did not identify themselves, their department or
produce a search warrant before the raid and claimed to be from the Narcotics Department. It
was found that they were from Ram Nagar and Sanrdin Police Stations.

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-Petitioner- -Summary of Facts-

4. Anonymous (Senior Officer of Narcotics Control Bureau, Dhormir) – No raids were

carried out on the said date in Jeena Plaza Hotel by the department in May. Enquiry will be
done once a complaint is received on the issue.

INCOME TAX RAID

26th December, 2018 - Income Tax (IT) officers conducted raid in the office of Dhormir Dost
and seized seven computers kept in the office.

LITIGATION
th
16 August, 2018 - Dhormir Dost filed a petition seeking the compensation for the violation
of the Fundamental Rights of the victims of the incident happened on 12th May, 2018.

3rd January, 2019 - Dhormir Dost filed a petition under Art.32 of the Constitution
challenging the validity of the action of IT Department stating the action was mala fide as
Commissioner of IT is the brother of Sham Kiranand challenging the constitutional validity
of Order S.O. 6227(E) of Cyber and Information Division of Ministry of Home Affairs, Rule
4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption of Information ) Rules 2009 and Section 69(1) of Information Technology Act
2000 for being violative of Fundamental Rights.

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MEMOANDUM ON BEHALF OF PETITIONER
-Petitioner- -Issues Raised-

ISSUES RAISED

1. WHETHER THE PRESENT PETITIONS FILED BY THE PETITIONER IS

MAINTAINABLE UNDER ARTICLE 32 OF THE INDIAN CONSTITUTION,
1950.

2. WHETHER THE SEARCH CONDUCTED BY THE POLICE AUTHORITIES

VIOLATED THE FUNDAMENTAL RIGHTS OF THE MEMBERS OF LGBTQ
COMMUNITY.

3. WHETHER §69(1) OF ITA, 2000 R/W RULE (4) OF ITR, 2009 AND THE
SUBSEQUENT NOTIFICATION S.O.6227 (E) OF MHA SHOULD BE STRUCK
DOWN.

4. WHETHER THE ACTION OF INCOME TAX OFFICERS AGAINST THE

PETITIONER WAS MALA FIDE.

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MEMOANDUM ON BEHALF OF PETITIONER
-Petitioner- - Summary of Arguments-

SUMMARY OF ARGUMENTS

1. THE PRESENT PETITIONS FILED BY THE PETITIONERS ARE

MAINTAINABLE UNDER ARTICLE 32 OF THE INDIAN CONSTITUTION, 1950.

The Public Interest Litigation (hereinafter PIL) filed before this Hon’ble Court under Art. 32
of the Indian Constitution, 1950 is maintainable as the Fundamental Rights of the members of
the LGBTQ community are violated due to non-compliance of the procedure .The Writ
Petition has been filed before this Hon’ble Court as the action of Income Tax Authorities is in
contravention with the Fundamental Rights guaranteed to the petitioner.

2. THE SEARCH CONDUCTED BY THE POLICE AUTHORITIES VIOLATED

THE FUNDAMENTAL RIGHTS OF THE MEMBERS OF LGBTQ COMMUNITY.

The members of the LGBTQ community are subjected to procedural lapse. There is an abuse
of power by the Police Authorities while conducting search. This error on part of the Police
Authorities has led to gross violation for the Fundamental Rights.

3. § 69 (1) OF IT ACT R/W IT RULES 2009 AND THE SUBSEQUENT

NOTIFICATION S.O.6227 (E) OF MHA SHOULD BE STRUCK DOWN.

§ 69 (1) of ITA r/w Rule 4 of ITR 2009 and the subsequent notification are liable to be struck
down as they are in contravention with the Fundamental Rights guaranteed under the
Constitution. These provisions and the subsequent notification fail the test of proportionality,
are open ended and vague. The executive power is unfretted and lacks judicial scrutiny.
Additionally, there is also absence of sufficient safeguards against unwarranted state
surveillance.

4. THE ACTION OF INCOME TAX OFFICERS AGAINST THE PETITIONER WAS

MALA FIDE.

It is an established fact that the Income Tax Commissioner and the City Police Commissioner
are relatives. There is nexus between the petition filed against the illegal search led by the
City Commissioner of police and the subsequent search and seizure at the office of petitioner.
This creates a reasonable doubt of mala fide intention on part of Income Tax Authorities.

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MEMOANDUM ON BEHALF OF PETITIONER
-Petitioner- -Arguments Advanced-

ARGUMENTS ADVANCED

[1.] THE PRESENT PETITIONS FILED BY THE PETITIONER ARE

MAINTAINABLE UNDER ARTICLE 32 OF THE INDIAN CONSTITUTION.

1. The Counsel on behalf of petitioner humbly submits that the present Petitions filed
under Art. 32 of the Constitution1 are valid as firstly the present PIL is filed by the petitioner
on the behalf of the members of LGBTQ community against the wrongful action of police
[1.1] and secondly the writ petition filed by the petitioner is against the action of Income Tax
Authorities challenging the said action. [1.2]

2. This Hon’ble Court has clubbed both the petitions. However, certain issues regarding
maintainability of the case must be highlighted before this Court to prevent any miscarriage
of justice.

[1.1] THE PIL FILED AGAINST THE POLICE AUTHORITIES IS MAINTAINABLE.

3. When there is a violation of Fundamental Rights2 by State3, a PIL can be filed under
Art. 324. The Police Authorities of a Union Territory are the part of State.5 In the instant case,
Karmasthan is a Union Territory directly under the control of Government.6 Therefore, the
present petition is maintainable.

4. It is a well defined law that police authorities maintain the law and order in a state and
therefore are required to discharge both Public Function7 and Governmental function8. Under
the well-established Doctrine of Parens Patriae, it is the obligation of the State to protect and
take into custody the rights and the privileges of its citizens for discharging its obligations.9

5. The right to approach this Hon’ble Court in case of violation or threat to Fundamental
Rights is in itself a Fundamental Right enshrined under Art. 32.10 It is an absolute right.11 A

1
INDIA CONST. art. 32.
2
Sukhdev & Ors v. Bhagat Ram & Ors, AIR 1975 SC 1331.
3
INDIA CONST. art. 12.
4
INDIA CONST. pt. II.
5
INDIA CONST. art. 12.
6
Page 1, Moot Proposition, 11th All India Moot Court Competition, 2019.
7
Binny Ltd. & Anr v. Sadasivan & Ors, AIR 2005 SC 320.
8
Martin v. Halliburton, 2010 U.S. App. 18698 (5th Cir. Tex. 2010).
9
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.
10
Kochhuni v. State of Maharashtra, AIR 1959 SC 725.
11
Rem Chand Garg v. Excise Commissioner, AIR 1963 SC 996.

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MEMORANDUM ON BEHALF OF PETITIONER
-Petitioner- -Arguments Advanced-

person acting with bona fide intention and having sufficient interest in maintaining action for
judicial redress for public injury to put the judicial machinery in motion 12 and such a person
will have locus standi.13 Dhormir Dost, a renowned NGO filed the instant PIL seeking the
compensation for the violation of Fundamental Rights of the victims of the incident happened
on 12th May, 2018.14

6. The PIL has been filed along with copy of the newspaper report of DCN. 15
Admittedly, the admissibility of a newspaper report u/s 8116 is that of a hearsay evidence,
there are instances where this Hon’ble Court has admitted the petitions based on a newspaper
report.17 Various NGOs have approached this Hon’ble Court in cases of gross violation of
Fundamental Rights.18

[1.2] THE WRIT PETITION FILED BY THE PETITIONER AGAINST IT AUTHORITIES IS

MAINTAINABLE.

7. In case of violation of Fundamental Rights, the aggrieved party has a right to

approach this Hon’ble Court.19 This right is absolute and may not be impaired on any
ground.20 Unlike under Art. 22621, the remedy provided by Art. 32 is a Fundamental right
and not merely a discretionary power of the Court.22 Moreover, this Hon’ble Court has on
multiple occasions expressly rejected an argument that called for exhaustion of local
remedies.23 Therefore, it would be unjust on part of Court to carve out exceptions when there
are none in the text.

8. It is submitted before the Hon’ble Court that the Writ Petition challenging the
Constitutional validity of the § 69 (1) of the ITA along with Rule 4 of ITA and the

12
Janta Dal v. H. S. Chowdhary, AIR 1993 SC 892.
13
Dattaraj Nathuji Thaware v. State of Maharashtra, AIR 2005 SC 540.
14
Page 2, Moot Proposition, 11th All India Moot Court Competition, 2019.
15
Page 2, Moot Proposition, 11th All India Moot Court Competition, 2019.
16
The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.
17
Parmanand Katara v. Union of India, 1989 SCR (3) 997; Association for Lawyers of Calcutta High Court v.
State of WB, 2007 (4) Cal 842.
18
Vishakha v. State of Rajasthan, AIR 1997 SC 3011.
19
INDIA CONST. art. 32.
20
Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996.
21
INDIA CONST. art. 226.
22
Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457; Tilokchand Motichand v. H.B. Munshi, AIR 1970
SC 898.
23
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295; Romesh Thappar v. The State of Madras, AIR
1950 SC 124.

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subsequent notification24is maintainable before the Court. The petitioner has approached the
Supreme Court under Art. 32. The power of the legislature is limited by Fundamental Rights
of the citizens.25

9. Moreover, the onus of exhaustion of all other remedies does not lie on the petitioner
as Art. 32 is a Fundamental Right in itself. Existence of an alternative remedy is no bar to the
Supreme Court entertaining a petition under it.26Art. 32 r/w Art. 13(2) in a case where the
said Section, Rules and the subsequent notification are in contravention of Fundamental
Rights27 and basic feature of the Constitution makes the case maintainable.

10. Furthermore, judicial orders are not amenable to writ jurisdiction under Art. 32.28
Consequently, on the Court’s rejection of the instant petition under Art. 32, the petitioners
will have absolutely no remedy for such violation of their fundamental right. Hence, the
Petitioner submits that a liberal approach should be adopted, erring on the side of caution, in
cases where the Court rejects a petition under Art. 32.

11. Therefore, the petitioner humbly submits that the said petitions shall be entertained on
the grounds that there has been gross violation of the Fundamental Rights of both the
petitioners and the LGBTQ community at large.

[2.] THE SEARCH CONDUCTED BY THE POLICE AUTHORITIES VIOLATED

THE FUNDAMNETAL RIGHTS OF THE MEMBERS OF LGBTQ COMMUNTY.

12. The Counsel on behalf of petitioner humbly submits that the search conducted by the
police authorities is invalid and illegal as firstly it is not in accordance with the Procedure,
1985, and [2.1] and secondly it violated the fundamental rights of the members of LGBTQ
community [2.2].

24
Page 2,Moot Proposition, 11th All India Moot Court Competition, 2019.
25
Brij Mohan Lal v.Union of India, (2012) 6 SCC 571.
26
Daryao v. State of Uttar Pradesh, 1962 SCR (1) 574.
27
INDIA CONST. art. 19, cl. 1(a).
28
Sahibzada Sa biyed Muhammed Amirabbas Abbasi v. The State of Madhya Bharat, AIR 1960 SC 768; Naresh
Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.

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[2.1] THE SEARCH CONDUCTED BY POLICE AUTHORITIES WAS NOT IN ACCORDANCE

WITH THE PROCEDURE.

13. The search conducted by the police authorities was not in compliance with the
provisions of the procedure, 1985 as firstly There is non – compliance of the procedure under
the NDPS and CrPC [2.1.1] and secondly there is an abuse of power by the police authorities
[2.1.2].

[2.1.1]THERE IS NON-COMPLIANCE OF THE PROCEDURE UNDER THE NDPS AND CRPC.

14. Black’s Law Dictionary explains a search as an examination of a person’s body,

property, or other area that the person would reasonably be expected to consider as
private.29

15. The NDPS Act provide for the application of CrPC in so far as they are not
inconsistent with the provisions of the NDPS Act, to all warrants issued and arrest, search
and seizure conducted under this Act.30 § 42 of NDPS Act is r/w § 100 of CrPC and if an
empowered officer or an authorized officer under § 41 (2) of the Act carries out a search, he
would be doing so under the provisions of Cr PC. namely § 100 & § 165, CrPC.31

16. The pre-requisites under the provisions of both CrPC and NDPS is that a search
warrant must be produced. In the instant case the premises of the party were searched without
a search warrant. U/s 42 (2)32, a search warrant may not be produced when the officer has a
reason to believe that there is a chance of concealment of evidence if the warrant is to be
taken.

17. A person is said to have “reason to believe” a thing, if he has sufficient cause to
believe that thing but not otherwise.33 In the instant case, the party was taking place in a 4 star
hotel, Hotel Jeena Plaza and was organized by a renowned NGO.34 There is nothing
suspicious about the party and therefore, and thus, no reasonable “reason to believe” can be
seen on part of Authorities.

29
Black’s Law Dictionary (10th ed. 2014).
30
Narcotic Drugs and Psychotropic Substances Act, 1985, No. 61, Acts of Parliament, 1985 § 57.
31
State of Punjab v. Balbir Singh, AIR 1994 SC 1872.
32
Narcotic Drugs and Psychotropic Substances Act, 1985, No. 61, Acts of Parliament, 1985 § 42.
33
PEN. CODE § 26.
34
Page 1, Moot Proposition, 11th All India Moot Court Competition, 2019.

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18. It is arguable point that the reason to believe, confers an unguided and arbitrary power
upon an officer to issue authorization or make a search, the only condition being that he has
reason to believe in the existence of the facts mentioned therein; the said belief is practically
a subjective satisfaction and can be abused and that is the case in the instant petition.

19. Any Officer who is authorized to search u/s 41, 42 and 43 shall without any delay
take such person to the nearest magistrate or nearest Gazetted officer of any central or state
department.35 Such searches shall be conducted in the presence of either a Gazetted officer or
a Magistrate, but in the cases of urgency, the same can be done in front of independent
witnesses also.36

20. The object of making it pre-emptory on the part of the officer to take person, if so
requires, before a specified Gazetted officer or a nearest Magistrate is to ensure that the
officers who are charged with the duty of conducting searches, conduct them properly and do
not harm or wrong, such as planting of offending drugs by any interested parties and prevent
fabrication of any false evidence.37

21. In the presence of the Gazetted officer at the time of search and seizure and search
conducted on his directions were not enough to meet the requirements of § 50 (1).38

22. The procedures that are to be followed as a mandate. When any violation of law is
done by administration is should be subjected to the scrutiny of law as no one is above it. It
can be observed that if the Gazetted officer is a raiding party even then a person has to be
informed about his rights u/s 50.39

23. If the accused was not informed of his right to be searched, either before a Magistrate
or before a Gazetted officer and at the time of search the (Gazetted officer) disclosed his
identity, the Court said that it was not enough to say that the provisions of § 50 of the Act had
been complied with.40

24. For the sanctity of the search itself, the person to be searched has been afforded the
minimum right to be searched before another Gazetted officer or a Magistrate and that the

35
Narcotic Drugs and Psychotropic Substances Act, 1985, No. 61, Acts of Parliament, 1985 § 50 cl. 3.
36
Suresh v. State of M.P., 1997 Cri LJ 4210 (MP).
37
Amina Abdul Shaikh v. States of Maharashtra, (1993) 95 BOMLR 829.
38
Darshan Lal v. State of Haryana, 1997 Cri LJ 2137.
39
State of Rajasthan v. Ram Chandra, AIR 2005 SC 2221.
40
Kulwant Singh v. State of Punjab, 1998 Cri LJ 4117.

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right cannot be taken away merely because the officer going to search happens to be a
Gazetted officer, who has been empowered either by the Central Government or by the State
Government by a general or special order.41

25. The witnesses are to be produced by the officer conducting search.42 When Narcotic
substances are not recovered by the person, the search was conducted invalid because there
were no independent witnesses to the search.43 In the instant case, the search of the persons of
LGBTQ community and the premises were not done in the presence of any Gazetted officer
apart from the raiding party himself, nor there were any independent witnesses to this
incident.

26. It is therefore submitted before this Hon’ble Court that in the instant case, the search
conducted by the police authorities was not in accordance with the mandates of NDPS Act
and CrPC and therefore the said search of police officers is invalid and illegal.

[2.1.2] THERE IS AN ABUSE OF POWER BY POLICE AUTHORITIES.

27. The police while conducting search and seizure have abused the power which is
conferred upon them by the law and have also violated basic human rights of the attendees of
the party. It is because of such gross violation of justice that the petitioner has approached
this honourable Court.

28. Strip searches according to the Madison Police Department, strip search is defined as
any search in which a person’s genitals, pubic area, buttock or anus, or an arrested female’s
breast, is uncovered and either is exposed to view or is touched by a person conducting the
search.44

29. In India, Personal search connotes and means a search which is required to be done
by touching any part of the body and/or limb wherein therein there is possibility of keeping
the contraband articles hidden.45

30. The instances of strip search have not been new in the matters of drug related
offenses. According to Art. 846 a strip search in violation of right to privacy is held invalid.47

41
Ahmad v. State of Gujarat, AIR 2000 SC 2700.
42
Ronny v. State of Maharashtra, AIR 1998 SC 1251.
43
D.B.Thakur v. State of Gujarat, 1995 Cri LJ 375(Guj).
44
Searches, City of Madison Police Department Standard Operating Procedure,
1(2018).https://www.cityofmadison.com/police/documents/sop/searches.pdf (last visited February 22, 2018).
45
Ravananma v. State, 1998 Cri LJ 1660 (Cal).

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Everyone has the right to be secure against unreasonable search or seizure48 and in case of
such violations, the Courts have time and against stated that searches in public view where
they are exposed which is considered as private is violative of Art. 8.49 The Courts have also
rewarded compensation for strip searching falsely accused persons.50 The searching of
persons must be prescribed by law and clearly specify the circumstances in which such
measures may be used and specify the conditions that must be obeyed by those applying the
procedure which states that in the performance of their duty, law enforcement officials shall
respect and protect human dignity and maintain and uphold the human rights of all
persons.51

31. The police authorities have not only offended the law by unauthorized search but have
also contravened the basic human rights provided to every individual by posing indecent
questions and groping the chests of the members of LGBTQ community.

32. The Courts in many instances have stated that domiciliary visits and picketing by the
police should be reduced to the clearest cases of danger to community security. 52Wherein,
strip-search was done to mother-son in public view was held to be violation privacy under
Art. 8 of European Convention for the Protection of Human Rights.53Under the law of United
Kingdom, the search of person is has to be made before a justice of the peace or a superior
officer concerned.54 In a case where the wrongful arrest and unjustified strip search was done
to the persons, the Court held it to violative of the privacy of individuals.55

33. In the instant case, the violation of privacy of the individuals by the actions of state is
indeed, one of the most evident examples that such people are still not accepted by the
society and are harassed on the basis of Profiling.

46
European Convention for Protection of Human Rights & Fundamental Freedoms ETS (Nov. 4,1950).
47
Warmington v. Home Office, [2004] 2 AC 406.
48
Canadian Charter of Rights and Freedoms art. 8 (1982).
49
id.
50
Vancouver v. Ward, [2002] 2 SCR 28.
51
G. A. Res 34/169, Code of Conduct for Law Enforcement Officialsart. 2 (Feb. 5, 1980).
52
Govind v. State of M.P., 1975 (2) SCC 148.
53
Wainwright v. Home Office, [2004] 2 AC 406.
54
Customs and Excise Management Act 1979, §164.
55
Mohidin v. Comr of Police the Metropolis, [2015] EWHC 2740.

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34. Profiling is defined as the systematic association of sets of physical, behavioural or

psychological characteristics with particular offences and their use as a basis for making
law-enforcement decisions.56

35. If based on “profiling”, measures related to the stopping and searching of persons in
the context of law enforcement activities, may violate the right to equality and non-
discrimination, the right to the presumption of innocence.57

36. Searches, whenever necessary, must be conducted with the least intrusive means
possible and fully conform with the prohibition of cruel, inhuman or degrading treatment.All
requests made by law enforcement officials while conducting a personal or strip search must
meet the standards of necessity and proportionality under the specific circumstances.

37. In the instant case, the act of conducting strip search is not valid as there is no
reasonable suspicion on which they have conducted such search. The police authorities have
acted in ultra vires of the powers provided to them under the law. In exercise of the powers,
Court would be justified to quash any proceeding if it finds that initiation/continuance of it
amounts to abuse of the process of Court or quashing of these proceedings would otherwise
serve the ends of justice.58

[ 2.2] FUNDAMENTAL RIGHTS OF MEMBERS OF LGBTQ COMMUNITY WERE

VIOLATED.

38. The members of the LGBTQ Community who attended the party were harassed by
the police authorities under the garb of conducting a raid which was prima facie illegal on the
grounds of firstly, Violation of Article 21 of the Constitution of India [2.2.1] secondly
compensation should be granted to the affected people [2.2.2].

56
Human Rights Council Res. 4/26, U. N. Doc. No. A/60/251, ¶ 33 (Jan. 29, 2007).
57
International Covenant on Civil Political Rights art. 14 cl. 2,Dec. 16,1966, 999 U.N.T.S. 171.
58
CBI v. Shri Ravi Shankar Srivastava, AIR 2006 SC 2872; State of Andhra Pradesh v. Golconda Linga Swamy,
AIR 2004 SC 3967.

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[2.2.1] VIOLATION OF ARTICLE 21 OF THE CONSTITUTION OF INDIA.

39. The word “Life” under Article 2159 means quality of life60, and also includes right to
live with human dignity61. Also ICCPR62, UDHR63 and ICESCR64 recognizes right to life and
adequate standard of living.

40. The term ‘Life’ mean something more than mere animal existence.65 Right to life
includes right to live with reputation66 which is a very important aspect of one’s life as a
person lives in a society and once the reputation of a person is lost, it is very difficult for the
individual to survive in a society. In the instant case, few of the closet members were
threatened to be exposed to the public which could have caused a substantial loss in their
reputation as it happened prior to Section 37767 being decriminalised68

41. Further in order to establish violation of Art. 2169, the act should be subjected to the
equality test of Art. 14 and test of reasonableness under Art. 19.70 Art. 1471 strikes at
arbitrariness because it negates equality72 and permeates the entire fabric of Rule of Law73.

42. The Indian Constitution prohibits discrimination on the basis of case, religion, race,
caste, sex, place of birth.74 Therefore, every action of the State must be guided by reason for
public good and not by whim, caprice, and abuse of power.75 Art. 19 provides that a
restriction can be characterized to be reasonable if it strikes a balance between the
Fundamental Rights and restriction imposed thereon.76

59
INDIA CONST. art. 21.
60
Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844.
61
Corlie Mullin v. Administrator and Union Territory of Delhi, 1981 SCR (2) 516.
62
International Covenant on Civil Political Rights art. 6,Dec. 16,1966, 999 U.N.T.S. 171.
63
Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc A/RES/217 art. 3 (Dec.10, 1948).
64
International Covenant on Economic, Social and Cultural Rights art. 11, Dec. 16, 1966, 993 U.N.T.S. 3.
65
Board of Trustees v. Dilip, AIR 1983 SC 109.
66
Board of Trustees, port of Bombay v. Dilip Kumar, AIR 1989 SC 549.
67
PEN. CODE § 377.
68
Page 1,Moot Proposition, 11th All India Moot Court Competition, 2019.
69
INDIACONST. art.21.
70
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
71
INDIA CONST. art. 14.
72
Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021.
73
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
74
INDIA CONST. art. 15.
75
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v. Chairman Jee, (2005)
9 SCC 779.
76
Om Kumar v. Union of India, AIR 2000 SC 3689.

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43. The principle of proportionality77 which is derived from the Wednesbury Test78 is two
dimensional, i.e. the balancing test and the necessity test. The balancing test means scrutiny
of excessive onerous penalties or infringement of right or interest and a manifest balance of
relevant consideration. The latter requires the least restrictive alternative79

44. In the instant case, the action of the police authorities fails the test of reasonableness
because it defied the basic principles of search and have acted in an arbitrary manner thus
impeding to cause justice to the citizens. Also, it is not clearly in public interest or in
pursuance of the object of the NDPS it is merely based on the whim and caprice of the
authorities.

45. The said authorities have also failed the test of proportionality under the procedure
prescribed by law as the actions have neither been in balance to the power prescribed under
the act, nor the police took any rights of the members of the LGBTQ community.

46. Due to § 377 of the Indian Penal Code, the LGBTQ members were forced to live in
hiding and they were denied the of right to sexual orientation was akin to denial of right to
privacy and the society cannot dictate sexual relationship between consenting adults as it was
a private affair.80In the present situation, the police authorities have taken the advantage of
the situation by conducting such illegal search and violating the right to privacy of the
members of the LGBTQ community.

47. Therefore, the petitioner humbly submits that the action of the police authorities was
beyond the procedure prescribed by law which has grossly violated the Fundamental Rights
of the members of the LGBTQ community.

[2.2.2]COMPENSATION SHOULD BE GRANTED TO THE AFFECTED PEOPLE.

48. According to Black’s Law Dictionary81, Compensation is payment of damages;

making amends; that is necessary to restore an injured party to his former position.

77
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
78
Assosiated Provincial Pictures Houses Ltd. v. Wednesbury Corporation, (1947) 2 All ER 680.
79
Union of India v. G. Ganayutham, (1997) 7 SCC 463.
80
Navtez Singh Johar&Ors v. Union of India, (2018) 10 SCC 1.
81
Black’s Law Dictionary (10th ed. 2014).

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49. In the exercise of jurisdiction under Article 32, payment of money in the nature of
compensation is consequential upon the deprivation of a Fundamental Right to life and
liberty of a person.82

50. Wherein the attendees of party were harassed by police authorities as the police
authorities conducted an illegal search and harassed the members of LGBTQ community is
held to be violative of their basic human rights and compensation in such cases shall be given
to the affected party.83

51. Under Art. 3284, the right to life and personal liberty of a person is too precious and
no one can be permitted to interfere with it except under procedure established by law. 85 In
the present case, the rights of the attendees of the parties were affected by the invalid and
illegal action of the state which have resulted in excessive violation of Fundamental rights of
the individuals and thus, it is the prerogative of the Court to provide compensation to the
affected parties .

52. The 154th Law Commission report on CrPC86 have also recommended that it was
necessary to incorporate a provision in the Code which provided for a comprehensive scheme
of payment of compensation for all victims. § 357A of the CrPC87 discusses the preparation
of a scheme to provide funds for the compensation of victims or his dependents who have
suffered loss or injury as a result of a crime and who require rehabilitation.

53. The right to compensation is some palliative for the unlawful acts of the State
instrumentalities which act in the name of public interest and presents for their protection the
power of the State as a shield. Respect for the rights of individuals is the true bastion of
democracy. Therefore, the State must repair the damage done by its officers to the
petitioner’s right. It may have recourse against those officers.

82
Rudul Shah v. Union of India, AIR 1983 SC 1086; Saheli v. Commissioner of Police, Delhi, AIR 1990 SC
513; People Union for Civil Liberties v. Union of India, (1997) 3 SCC 433; Vishaka v. State of Rajasthan,
(1997) 6 SCC 241; Nilabati Behera v. State of Orissa, AIR 1993 SC 1960; D.K. Basu v. State of West Bengal,
(1997) 1 SCC 416; Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922; Chairman, Railway Board
v. Chandrima Dass, (2000) 2 SCC 465.
83
JeoffreyCalhoun, Et al v. Richard Pennington, Et al, 10 U.S. 2142 (2010).
84
INDIA CONST.art. 32.
85
Dhaman Joy Sharma v. State of Haryana, AIR1995 SC 1795.
86
Code of Criminal Procedure, 1973, Law Commission of India (Aug 22., 1996).
87
CODE CRIM. PROC. § 357A.

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54. Therefore, the petitioner humbly submits that fundamental rights of attendees of the
parties were infringed in the light of the actions of the police authorities for which
compensation shall be duly granted to the people.

[3] § 69 (1) OF ITA R/W RULE 4 OF ITR AND THE SUBSEQUENT NOTIFICATION
S.O.6227 (E) OF MHA SHOULD BE STRUCK DOWN.

55. The Counsel on the behalf of the Petitioner humbly submits object of Fundamental
Rights is to place citizens at a centre stage and make sate accountable. 88 The attempt of Court
should be to expand the reach and ambit of these Fundamental Rights rather than to attenuate
the meaning and content by a process of judicial construction.89 § 69 (1) of Information
Technology Act, 2000 (hereinafter ITA), the Rule 4 of IT (Procedure for Safeguards for
Interception, Monitoring and Decryption of Information) Rules, 2009 (hereinafter ITR
2009)enacted pursuant to § 69 (2) r/w § 87 (2)(y) of the ITA and subsequent Notification of
Ministry of Home Affairs (hereinafter MHA) S.O.6227(E)(hereinafter Notification) are
unconstitutional and hence should be struck down because firstly There is violation of
Fundamental Rights by virtue of §69 (1), Rule 4 ITR 2009 and Notification [3.1]and secondly
here is an absence of adequate judicial oversight [3.2].

[3.1] THERE IS A VIOLATION OF FUNDAMENTAL RIGHTSBY VIRTUE OF §69 (1), RULE 4

ITR 2009 & NOTIFICATION.

56. Any law made in contravention of Part III is dead from the very beginning and cannot
at all be taken notice of or read for any purpose whatsoever.90 Admittedly, there are
restrictions applied on these rights afforded by the Constitution, which should be reasonable
in nature. It is important to adjudicate the reasonableness of each and every statute impugned
and no abstract standard or general pattern can be laid down.91

57. In the instant case, the public at large is subjected to the provisions of ITA r/w Rule 4
of ITR 2009 and the subsequent notification92 which are obstructive in enjoyment of
Fundamental Right to Privacy93 and Right to freedom of expression and speech94.The

88
PUCL v. UOI, (2005) 2 SCC 436.
89
Maneka Gandhi v. UOI, AIR 1978 SC 597.
90
Rakesh Vij v. Raminder Pal Singh Sethi, AIR 2005 SC 3593.
91
State of Madras v. VG Row, AIR 1952 SC 196.
92
Page 2,Moot Proposition, 11th All India Moot Court Competition, 2019.
93
INDIA CONST. art. 21.

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limitation imposed on the public should not be arbitrary or excessive or beyond what is
required in the situation in the interest of public.95

58. Surveillance is close observation or listening of a person or place in the hope of

gathering evidence.96 The ITR 2009 allows the Government to intercept97, decrypt98 and
monitor99 any information generated, received or stored in any computer resource under IT
Act.100
59. The Court reflected on the existence of right to privacy to some extend and laid down
detailed guidelines against rampant telephone tapping101 which were eventually modified in
the form of Rule 419-A of Indian Telegraph Rules, 1951. This provision on perusal
recognises that such interception of information is an emergency power.102 In the instant case,
the clause of emergency is absent from these provisions subjecting people to surveillance at
the will of the executive.
60. The justification for this intrusion is interest of sovereignty and integrity, security of
state, friendly relations with other nations, public order, incitement of offences related to
above and any other offences.103 These restrictions have a wide and unreasonable ambit. A
restriction to be valid must have direct and proximate nexus or a rational relation with the
object which the legislature seeks to achieve and must not be in excess of the object.104The
power of legislature is limited by fundamental restriction prescribing that it cannot enact laws
inconsistent with Fundamental Rights of citizens.105

61. In the present case, the said provisions do not hold the constitutional muster as firstly,
§ 69 (1) of ITA, rule 4 of ITR and the subsequent notification fails the test of proportionality
[3.1.1]and secondly,the reasons envisaged in § 69 (1) are open-ended and vague[3.1.2].

94
INDIA CONST. art. 19(1)(a).
95
MRF Ltd v. Inspector Kerala Government, AIR 1999 SC 188.
96
Black’s Law Dictionary (10th ed. 2014).
97
Information Technology (Procedure and Safeguard for Interception, Monitoring and Decryption of
Information) Rules, 2009, Gazette of India, Rule 2 cl. 1 (Oct. 27, 2009).
98
id. Rule 2(f).
99
id.Rule 2(o).
100
id. Rule 4.
101
PUCL v. UOI,(2005) 2 SCC 436.
102
Indian Telegraph Rules, 1951, Gazette of India, Rule 419-A cl. 1 (1951).
103
Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 § 69 cl.1.
104
Arunachala Nadar v. State of Madras, AIR 1959 SC 300.
105
Brij Mohan Lal v. Union of India, (2012) 6 SCC 502.

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[3.1.1.] § 69 (1) OF ITA, RULE 4 OF ITR AND THE SUBSEQUENT NOTIFICATION FAILS THE TEST
OF PROPORTIONALITY.

62. The principle of proportionality is applied where arbitrariness is hit by Fundamental

Rights.106 Proportionality involves balancing test and necessity test. The former permits
scrutiny of excessive onerous penalties or infringement of rights and a manifest balance of
relevant considerations, the latter requires infringement of human rights to the least restrictive
alternatives.107

63. Proportionality can be ascertained on the basis of the extent of interference which
must be proportionate to the need for such interference and there must be procedural
guarantees against abuse of such interference.108Additionally, there must also be adequate
procedural safeguards in place for a measure to pass the muster.109Rights and freedoms of
citizens are set forth in the Constitution in order to guarantee that the individual, his
personality, and those things stamped with his personality shall be free from official
interference except where a reasonable basis for intrusion exists.110 The notification issued by
the Government under the authority of §69 (2) ITA r/w Rule 4 of ITR 2009111 invariably
infringes the fundamental right by going beyond the necessary limits and is infact, the not the
least intrusive manner of restriction.

64. The very existence of such surveillance impacts the right to privacy and chills the
exercise of liberties under Art.19112 and Art.21113, and prevents people from thinking about,
reading and exchanging unorthodox, controversial or provocative ideas. Regardless of
whether or not a citizen knows that her email is being read by the government, the perceived
danger, founded on reasonable suspicion that this may happen, impacts the citizen’s ability to
express, receive and discuss such ideas.114

106
E Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
107
Coimbatore District Central Co-Operative Bank v. Coimbatore District Central Co-Operative Bank Employee
Association, (2004) 4 SCC 669 ; UOI v. G Ganayutham,(1997) 7 SCC 463, Coal India Ltd. v. Mukul Kumar
Choudhary, (2009) 15 SCC 620; K.T Plantation Ltd. v. State of Karnataka, (2011) 9 SCC 1.
108
K S Puttaswamy v. Union of India, 2018 (9) SCJ 224.
109
K S Puttaswamy v. Union of India, (2017) 10 SCC 1.
110
K S Puttaswamy v. Union of India, (2017) 10 SCC 1.
111
Page 2,Moot Proposition, 11th All India Moot Court Competition, 2019.
112
INDIA CONST. pt. III.
113
id.
114
Kharak Singh v. State of U.P., 1964 SCR (1) 332.

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65. In the instant case, an apprehension of interception is sufficient to curb the right to
freedom of speech and expression guaranteed by the Indian Constitution.115Surveillance has a
psychological impact on a person.116 The Court has raised concerns regarding the new
instruments created by technology and possible invasion of privacy by the State, including
through surveillance, profiling and data collection and processing.117
66. The Court recognized that surveillance is not new, but technology has permitted
surveillance in ways that are unimaginable.118 Surveillance is intrusive and an encroachment
upon the right to privacy.119 Such intrusion is neither necessary nor reasonable to be imposed
and therefore fall shorts on the requisites of the test of proportionality.

67. §69 of the ITA r/w Rule 4 ITR 2009 and the impugned notification enables the
Government agencies to create a state of surveillance. It gives overbroad, sweeping, and
arbitrary powers to the State to conduct covert electronic surveillance by intercepting,
monitoring, and decrypting digital communications. The very existence of such surveillance
apparatus and authority with the State, regardless of its actual use, infringes fundamental
right of privacy and falls foul on the test of probability.

[3.1.2]THE REASONS ENVISAGED IN § 69 (1) ARE OPEN-ENDED AND VAGUE.

68. If the nexus between restriction and objective is farfetched then the restriction cannot
be sustained as being in the interest of public.120 Existence of any remote or fanciful
connection in between the impugned law and interest of public is not sufficient to sustain the
validity of the law.121A restriction can be said to be valid only if there is a direct connection
which is proximate to the object sought to be achieved.122

69. The present legal framework governing electronic surveillance fails the test of
proportionality, inasmuch as the provisions are open-ended and vague, creating a detrimental
effect on free expression of citizens. Most of the grounds specified under § 69 (1) to carry out
electronic surveillance are a verbatim reproduction of restrictions contained in Art. 19 (2)123.

115
INDIA CONST. art.19 cl. 1(a).
116
Kharak Singh v. State of U.P., 1964 SCR (1) 332.
117
Malak Singh v. State of Punjab, AIR 1981 SC 760.
118
K S Puttaswamy v. Union of India, (2017) 10 SCC 1.
119
Malak Singh v.State of Punjab, AIR 1981 SC 760.
120
VK Javali v. State of Mysore, AIR 1966 SC 1387.
121
Supridt. Central Police v. Ram Manohar Lohiya, 1960 SCR (2) 821.
122
O.K. Ghosh v. EX Joseph, AIR 1962 SC 814.
123
INDIA CONST. pt. III.

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70. As a Consequence, the Executive has an unguided discretion to justify electronic

surveillance. Notably, the provision also encompasses circumstances relating to defence of
India although such an expression is neither defined under the ITA nor recognized under Art.
19 (2) of the Constitution of India,1950. The provision enables the State to conduct perpetual,
untargeted, and mass surveillance of her citizens, under a pretext for investigation of any
offence.

71. A similarly broad expression - supplies and services essential to the life of the
community - was struck down for over-breadth, in the absence of specific enumeration of the
good and supplies.124A vague law impermissibly delegates basic policy matters to other
authorities for resolution on ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application and should be held void. The void for vagueness
doctrine requires that regulated parties should know what is required of them, so that they
may act accordingly.125

[3.2] THERE IS AN ABSENCE OF JUDICIAL OVERSIGHT.

72. The requirement of judicial oversight goes beyond the issue of institutional
competence. Judicial oversight would be the minimum requirement for this system to pass
constitutional muster, as the judiciary alone is competent to decide whether specific instances
of surveillance are proportionate, especially to decide whether less onerous alternatives are
available and in balancing the importance of the government objective with the rights of the
individuals impacted.126 The Supreme Court and the High Courts are the sentinels of justice
and have been vested with the extraordinary power of judicial review to ensure that the rights
of citizens are duly protected.127 In the present case, the said provisions have a lack of judicial
oversight as firstly, There is a lack of counter-balances under Art.32 and Art.226 [3.2.1]and
secondly, There is an absence of sufficient safeguard against unwarranted surveillance
[3.2.2].

124
AK Roy v. Union of India, (1982) 1 SCC 271.
125
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
126
K S Puttaswamy v Union of India, (2017) 10 SCC 1.
127
Manohar Lal Sharma v. Principal Secretary, (2014) 2 SCC 532.

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[3.2.1]THERE IS A LACK OF COUNTER-BALANCES UNDER ART. 32 AND ART. 226.

73. Right to access Supreme Court under Art. 32 is a Fundamental Right.128 The power
and jurisdiction of Supreme Court cannot be curtailed by any law under Art.32. Power under
Art. 226 can be exercised by High Court to reach injustice wherever it is found.129In the
present case, when the fundamental rights of are infringed, there is no means to approach the
Constitutional Courts. No provision for the judicial scrutiny have been afforded thus, making
§69 ITA r/w Rule 4 of ITR and subsequent notification a draconian power.

74. Where an issue involving public interest has not engaged the attention of those
concerned with policy, or where there is failure to take a prompt decision on such issue which
is likely to be detrimental, Courts will be failing their duty if they did not draw the attention
of the authorities concerned to the issue involved in appropriate cases on the logic that the
Courts are not framers but they can act as catalyst when there is need for a policy or a change
in policy.130

75. Under Art. 226, the judicial tendency is to mould the relief according to the needs of
the situation and in this way, it has achieved a very positive and creative complexion.131By
design, surveillance - which operates in secret - curtails the operation of Art. 32 and Art. 226
of the Constitution, as a person who suspects that she is under surveillance, in many cases
will have no way of proving it, and cannot therefore establish a breach in accordance with
Art. 32 and Art. 226, until that information is revealed.

76. Also, once revealed, there can never be a remedy to rescind the damage. Effective
exclusion of Art. 32 and Art. 226 therefore entails that the decision of the Executive on
whether Fundamental Rights have been validly and reasonably infringed.

[3.2.2]THERE IS AN ABSENCE OF SUFFICIENT SAFEGUARDS AGAINST UNWARRANTED

SURVEILLANCE.

77. It is obvious that a Court, alone, is competent to decide the constitutionality of

individual instances of surveillance and test it on the proportionality standard. Critically, the

128
Common Cause v. Union of India, AIR 1999 SC 922.
129
Secretary ONGC Ltd v. VU Warrier, AIR 2005 SC 3039.
130
Mohd. Abdul Kadir v. Director General of Police, Assam, (2009) 6 SCC 611.
131
State of Gujarat Steel Tubes v. Its Mazdoor Shabha, AIR 1980 SC 1896.

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judges struck down § 33 (2)132, which allowed disclosure of Aadhaar data based on an order
of a Joint Secretary and called for mandating a judicial authorization.133 There is distribution
of powers between the three organs of the State-legislature, executive and judicial-each organ
having some check direct or indirect on the other.134

78. Secrecy may be an inherent trait, and even the paramount objective of carrying out
electronic surveillance, the ITA and ITR 2009 while excessively delegating to the Executive,
failed to instil adequate safeguards to prevent abusive, excessive and arbitrary exercise of its
power. The Wiretapping Judgment135dealt with § 5(2) of the Telegraph Act, which requires a
public emergency or an issue of public safety for the provision to even be triggered.

79. The fact that § 69 of the ITA can be deployed in the investigation of criminal offences
without any judicial oversight implies that the Impugned Provisions and the Impugned
Notification run contrary to the horizontal separation of powers established under the
Constitution of India.§ 69 r/w ITR 2009 lack any modicum of independence, impartiality, or
application of judicial mind, and thus fail to fulfill the requirement of adequate procedural
safeguards.

80. The absence of judicial mind, ex-ante or post facto, for carrying out electronic
surveillance has been universally deprecated across developed and developing
136
democracies. The International Principles on the Application of Human Rights to
Communication Surveillance, has pithily encapsulated the principle which was recognized by
the Apex Court137 stated that -
Principle 6: Competent judicial authority determinations related to Communications
Surveillance must be made by a competent judicial authority that is impartial and
independent.

81. The authority must be:(i) Separate and independent from the authorities conducting
Communications Surveillance;(ii) conversant in issues related to and competent to make
judicial decisions about the legality of Communications Surveillance, the technologies used

132
Aadhaar(Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, No. 18, Acts
of Parliament, 2016.
133
KS Puttaswamy v. Union of India, 2018 (9) SCJ 224.
134
State of MP v. Thakur Bharat Singh, AIR 1967 SC 1170.
135
People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.
136
B N Srikrishna, A free and Fair Digital Economy- Protecting Privacy, Empowering Indians (2017).
137
K S Puttaswamy v. Union of India, (2017) 10 SCC 1.

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and human rights; and(iii) have adequate resources in exercising the functions assigned to
them.

82. The present legal regime has vested the sole authority to authorise electronic
surveillance to the Executive. Moreover, the authority to review such directions is entirely
reserved in the hands of the Executive, without any parliamentary or judicial oversight.
Consequently, the violation of fundamental rights of citizens is unilateral, leaving no recourse
for aggrieved citizens to seek judicial review against arbitrary surveillance.

83. Surveillance should not be carried out without a degree of transparency that can pass
the muster of the test of necessity and proportionality. This can take various forms, including
information provided to the public, legislative oversight, executive and administrative
oversight and judicial oversight.138

84. This would ensure scrutiny over the working of such agencies and infuse public
accountability. Executive review alone is not in tandem with comparative models in
democratic nations which either provides for legislative oversight, judicial approval or
both.139

85. The principles of proportionality in the collection of personal data have been violated
by § 69 of the ITA r/w Rule 4 ITR 2009. Doctrine of Necessity is also violated and also the
PUCL Guidelines140 are not complied with which require that the use of intercepted material
shall be limited to the minimum that is necessary.

86. The ITA and ITR 2009 do not strictly lay down a rule of necessity with respect to
either use or collection of information. There are no restrictions on the interception,
decryption, monitoring or disclosure of information by executive officers, done without any
targeting. Thus, § 69 (1) of the ITA r/w Rule 4 ITR 2009, in general, lack any requirement for
transparency and accountability inasmuch as the persons affected by wrongful interception of
their private communications are never made aware of this which makes the whole regime
draconian and are liable to be struck down.

138
B N Srikrishna, A free and Fair Digital Economy- Protecting Privacy, Empowering Indians (2017).
139
id.
140
People’s Union for Civil Liberties v. Union of India,(1997) 1 SCC 301.

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[4.] THE ACTION OF INCOME TAX OFFICERS AGAINST THE PETITIONER

WAS MALA FIDE.

87. The Counsel on behalf of petitioner most humbly submits that bad faith invalidates
the exercise of power which is then called “colourable exercise” of powers and often overlaps
motives and satisfaction beyond the purpose of power141 .Where mala fides are alleged, it is
necessary that the person against whom such allegations are made should come forward and
refute them otherwise the Court is constrained to accept such unrebutted allegations on the
test of probability.142
88. The action of the Income Tax officers was propelled by the Commissioner due to
presence of mala fide intention because firstly, There is a presence reasonable suspicion of
mala fide intention [4.1] and secondly, There is an element of moral turpitude on part of the
IT Commissioner[4.2]

[4.1]THERE IS A PRESENCE OF REASONABLE SUSPICION OF MALA FIDE INTENTION.

89. If an action taken by any authority is contrary to the law, improper irrational or
otherwise unreasonable, a Court of law can interfere with such action by exercising power of
judicial review.143 Justice not only be done but also must appear to be done to the litigating
public.144

90. The limits of legitimate privacy intrusion and stated that legislative intrusions could
be tested using the doctrine of proportionality, administrative/executive intrusions had to be
reasonable, while judicial intrusions were permissible upon the issuance of a judicial warrant
on the premise of sufficient reason and necessity.145 Actual knowledge of facts is not the
determining factor but what a reasonable man apprehends by looking from outside is the
crux.146

91. In the present case, the threshold of reasonable suspicion to prove mala fide intention
is met when the action of IT Officer is preceded by the petition filed against the action of his

141
State of Punjab v. Gurdail Singh, AIR 1964 SC 962.
142
Express Newspaper ltd v. Union of India, AIR 1986 SC 872.
143
Coimbatore District Central Co-Operative Bank v. Coimbatore District Central Co-Operative Bank Employee
Association, (2004) 4 SCC 669.
144
Manak Lal v. Prem Chand, AIR 1957 SC 425.
145
District Registrar and Collector v. Canara Bank,AIR 2005 SC 186.
146
Ramesh v. Karnataka, AIR 1978 Kant.459.

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brother, the City Commissioner of Police. The action is premeditated and in reciprocation of
the abusive search of the City Police Commissioner.

92. The Court is concerned with the process, method or manner in which the decision
maker has ordered his priorities, reached a conclusion and arrived at a decision.147 The power
of search and seizure can be exercised on reasonable belief on the available information
which is reliable and not gossip which is unverified.148

93. The Court has specifically struck down provisions for search and seizure which confer
particularly wide and discretionary powers on the executive without judicial scrutiny, holding
that searches must be subject to the doctrine of proportionality, and that a provision probable
cause to affect any search.149

94. The aggrieved party may undoubtedly move a competent Court to pass an order
releasing the documents seized, the officer who had made the search will be called upon to
prove how the documents seized are likely to be useful for or relevant to a proceeding under
the Act. If he is unable to do so, the Court may order that those documents may be
released.150

95. No law can be enacted if it is contrary to the Fundamental Rights guaranteed under
the Constitution.151 The seizure of seven computers is bad in law as it is triggered by
malicious intention and further, the seizure for the purpose of interception, monitoring and
decryption becomes invalid because the legislation from which it has derived this power is
unconstitutional for being violative of Fundamental Rights guaranteed under the constitution.
Powers are to be exercised by authorities within the framework of Constitution.152

[4.2]THERE IS AN ELEMENT OF TURPITUDE ON PART OF THE IT COMMISSIONER.

96. A real danger may arise if there was personal friendship or animosity between the
authority and person involved in the case.153 If the assessee is able to establish that the officer

147
Coimbatore District Central Co-Operative Bank v. Coimbatore District Central Co-Operative Bank Employee
Association, (2004) 4 SCC 669.
148
Rishika Taneja & Sidhant Kumar, Privacy Law Principles, Injunction and Compensation 193 (2014).
149
District Registrar and Collector v. Canara Bank, AIR 2005 SC 186.
150
ITO v. Seth Brothers, AIR 1970 SC 292.
151
Ramlila Maidan Incident v Home Secretary, (2012) 5 SCC 1.
152
Renu v. District and Sessions Judge, AIR 2014 SC 2175.
153
President of Republic of South Africa v. South African Rugby Football Union, 2000 QB 451.

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was in fact having a mala fide intention in the sense that he was involved or interested in his
personal capacity in the procedure, it would be a good ground to set aside the order.154

97. The search and seizure procedure initiated by the Commissioner of IT was a
retaliatory measure as he is the brother of the City Commissioner of Police against whom a
petition of violation of Fundamental Rights is pending in this forum155. An action becomes
mala fide when it is initiated for satisfying the private or personal grudge of the authority.156

98. While the Commissioner of IT has complete authority to take such actions but the fact
that he is a close relative sufficiently implies that there is a reasonable nexus between two
events. If the action is maliciously taken or power under the section is exercised for a
collateral purpose, it is liable to be struck down by the Court.157

99. There have been concerns regarding the intention of the income tax officer if such
relationships exist and there is a shared history as of the Income Tax Commissioner, City
Police Commissioner and the Petitioner. When in the presence of rivalry between a
personand cousin of Deputy- Director of Investigation, Income Tax Officer who led the raid
and on failing of search operation filing FIR was found to be mala fide.158

100. Search at a person’s house and seizure of gold, cash and in failure of search, lodging
of complaint by the police officer, held acted with mala fide and strictures for the officer
conducting raid.159If the action of the officer issuing the authorization is challenged, the
officer concerned must satisfy the Court about the regularity of his action.160

101. Where the Court determines that according to the facts and circumstances of a case,
action initiated are not bona fide in ordinary course of official business for implementation of
law but were actuated with ulterior and extraneous purpose, the action was wholly mala
fide.161 Thus, the action of IT department is not valid and infringing the rights of the
petitioners.

154
UOI v. Vipin Kumar Jain, (2005) 9 SCC 579.
155
Page 2, Moot Proposition, 11th All India Moot Court Competition, 2019.
156
Pratap Singh v. State of Punjab, AIR 1964SC 72.
157
ITO v. Seth Brothers, AIR 1970 SC 292.
158
Assistant Commissioner of Income Tax v. Jayanthi Patel, (1998) 99 Taxman 443 (RAJ).
159
Jayanthi Lal Patel v. Assistant Commissioner of Income Tax, (1998) 99 Taxman 417 (RAJ).
160
ITO v. Seth Brothers, AIR 1970 SC 292.
161
Pratap Singh v. State of Punjab, AIR 1964 SC 72.

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-Petitioner- -Prayer-

PRAYER

Wherefore it is prayed, in the light of the issues raised, arguments advanced and authorities
cited, may this Hon’ble Court be pleased to hold that;

1. Police authorities liable for violation of Fundamental Rights of LGBTQ community

and grant compensation for the same.

2. § 69(1) of Information Technology Act 2000, Rule 4 of the Information Technology

(Procedure and Safeguards for Interception, Monitoring and Decryption of
Information) Rules 2009 and Order S.O. 6227(E) of Cyber and Information Division
of Ministry of Home Affairs dated 20-12-2018, unconstitutional.
3. Appropriate authorities should release the seized computers taken during the IT
search and seizure.

And Pass any other Order, Direction, Relief, that it may deem fit in the Best Interest of
Justice, Fairness, Equity and Good Conscience

And for this Act of Kindness, the Petitioner shall duty Bound Forever Pray.

SD/-

(COUNSEL FOR THE PETITIONER)

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