2ND HIMACHAL PRADESH NATIONAL LAW UNIVERSITY MOOT COURT

COMPETITION, 2021 TC- H 34

2ND HIMACHAL PRADESH NATIONAL LAW UNIVESITY MOOT COURT
COMPETITION

BEFORE THE HON’BLE SUPREME COURT OF AZEROTH

WRIT PETITION NO. 234 OF 2021 (UNDER ARTICLE 32 OF THE CONSTITUTION OF AEROTH)
JON SNOW & OTHERS……………………………..…………….………….……PETITIONER
v.
REPUBLIC OF AZEROTH ………………………………………………….….…..RESPONDENT
CLUBBED WITH
MISCELLANEOUS APPLICATION NO. 34814 OF 2021

JON SNOW & OTHERS …………………………………..…………….……….…PETITIONER

v.
REPUBLIC OF AZEROTH …………………………………………………....…….RESPONDENT
CLUBBED WITH
INTERVENTION APPLICATION NO. 34815 OF 2021
DESH KI MITTI …………………………..………………..……………….……..PETITIONER
v.
JON SNOW & OTHERS ……………………………………………………………RESPONDENT
CLUBBED WITH
ORIGINAL SUIT NO. 1 OF 2021 (UNDER ARTICLE 131(a) OF THE CONSTITUTION OF AZEROTH)
REPUBLIC OF AZEROTH …………………..………………..…………..………..PETITIONER
v.
STATE OF RIVERDALE …………………...………………………………………RESPONDENT

HON’BLE SUPREME COURT UNDER THE INHERENT POWER HEARING THE

PETITIONS TOGETHER UNDER ORDER “XXXVIII” RULE 12, RULE 13 AND
ORDER “LV” RULE 6 OF THE SUPREME COURT RULES 2013.

WRITTEN SUBMISSION ON THE BEHALF OF THE PETITIONER(S)

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TABLE OF CONTENT

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

TABLE OF ABBREVIATION ………………………………………………………………..7

STATEMENT OF JURISDICTION ……………………………………………………………8

STATEMENT OF FACTS ……………………………………………………………………9

STATEMENT OF ISSUES …………………………………………………………………..11

SUMMARY OF ARGUMENTS……………………………………………………………...12

ARGUMENT ADVANCE…………………………………………………………………...14

1. WHETHER THE PRESENT PETITION FILED IS MAINTAINABLE OR NOT? ………….....14

1.1 THAT THE PETITION FILED BY J ON SNOW AND OTHERS IS MAINTAINABLE………14

1.2 THAT THE PETITIONER (S) HAVE ADEQUATE LOCUS STANDI………………………15

1.3 THAT THE SUIT FILED BY REPUBLIC OF AZEROTH IS MAINTAINABLE……………16

2. WHETHER THE USE O F KIMESTU SOFTWARE B Y THE S TATE AMOUNTS TO VIOLATION OF

FREEDOM OF SPEECH A ND EXPRESSION AND RIGHT TO PRIVACY OF A PERSON………17

2.1 THAT THE USE OF KIMESTU SOFTWARE AMOUNTS TO VIOLATION OF RIGHT TO

PRIVACY…………………………………………………………………………………..17

2.2 THAT THE SURVEILLANCE BY THE STATE AMOUNTS TO VIOLATION OF FREEDOM

OF SPEECH AND EXPRESSION…………………………………………………………….19

2.3 A SUPREME COURT MONITORED SPECIAL INVESTIGATION TEAM SHOULD BE

APPOINTED TO INVESTIGATE THE CURRENT SITUATION IN R ESPECT OF KIMESTU……...21

3. SHOULD THE RESPONDENT FURNISH THE AFFIDAVIT STATING THE USE/NON-USE OF THE
SOFTWARE…………………………………………………………………………………22

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3.1 STATE SHOULD FURNISH AN AFFIDAVIT STATING THE USE/NON-USE OF THE

SOFTWARE…………………………………………………………………………………23

4. SHOULD NATIONALISM BE INCLUDED IN THE BASIC STRUCTURE OF THE CONSTITUTION

AND FUNDAMENTAL DUTIES B E MADE ENFORCEABLE…………………………………...25

4.1 NATIONALISM SHOULD BE INCLUDED IN BASIC STRUCTURE OF THE

CONSTITUTION ……………………………………………………………………………..25

4.2 FUNDAMENTAL DUTIES SHOULD BE M ADE ENFORCEABLE ON THE GROUNDS OF

PATRIOTISM AND NATIONALISM…………………………………………………………..27

5. WHETHER THE STATE OF RIVERDALE HAS THE AUTHORITY TO SET-UP COMMISSION OF

INQUIRY……………………………………………………………………………………29

5.1 THAT THE STATE OF R IVERDALE DOESN’T HAVE THE AUTHORITY TO SET-UP
COMMISSION OF INQUIRY………………………………………………………………….30

5.2 THAT THE REPORT OF THE COMMISSION WILL INTERVENE WITH THE PROCEEDING
OF THE COURT……………………………………………………………………………..31

PRAYER…………………………………………………………………………………….33

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INDEX OF AUTHORITIES

Cases:
AIIMS Students' Union v. AIIMS, (2002) 1 SCC 428: 2001 SCC OnLine SC 1002 ............. 27
Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349 ........................................ 15
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 ............................................... 15
Bharati Tamang v. Union of India, (2013) 15 SCC 578: (2014) 6 SCC (Cri) 566 .................. 21
Brij Bhushan v. State of Delhi ,1950 SCR 605 : AIR 1950 SC 129 : (1950) 51 Cri LJ 1525. 20
Brij Bhushan v. State of Delhi, 1950 SCR 605 : AIR 1950 SC 129 : (1950) 51 Cri LJ 1525 .20
Chandra Bhavan Boarding and Lodging Bangalore v. State of Mysore & others, 1970 AIR
2042...................................................................................................................................... 27
Chennakesava Swamy Temple v. I. Sreeramulu, LNIND 1984 AP 324. ................................ 27
D.A.V College v. State of Punjab AIR 1971 SC 1731 ............................................................ 14
Express Newspapers v Union of India (1985) 2 SCR 287....................................................... 23
Fertilizer Corp. Kamgar v. Union of India, (1981) 1 SCC 568: A.I.R. 1981 S.C. 844 ........... 15
Foreward Constr. Co. v. Prabhat Mandal, (1986) 1 SCC 100 ................................................. 15
Ghanshyam Upadhyay v. State of U.P., (2020) 16 SCC 811: (2020) 4 SCC (Cri) 10 : 2020
SCC OnLine SC 658 ............................................................................................................ 30
Hindi Hitrakshak Samiti v. Union of India, (1990) 2 SCC 352 : AIR 1990 SC 851 ............... 14
Hukum Chand Shyam v. UOI ,1976 AIR 789 ......................................................................... 18
J. Anbazhagan v. Union of Indian & Others, (2018) SCC OnLine Mad 1231: (2018) 4 Mad
LJ 129................................................................................................................................... 22
Janata Dal v. H.S. Chaudhary, 1993 AIR 829 64 .................................................................... 15
Janta Dal v. H.S. Chowdhary, (1992) 4 SCC 305.................................................................... 15
Jitendra Nath v. State of West Bengal Board of Examination, A.I.R. 1983 Cal. 275 ............. 15
K.S. Puttaswamy v. UOI; AIR 2017 SC 4161 ......................................................................... 17
Kushum Lata v. Union of India, (2006) 6 SCC 180. ............................................................... 30
L.K. Koolwal v. State of Rajasthan, AIR 1988 Raj 2. ............................................................. 27
Maganbhai v. Union of India AIR 1969 SC 783 ..................................................................... 14
Nepal Sarkar v. State of West Bengal, 1993 SCC OnLine Cal 84 .......................................... 15
NHRC v. State of Gujrat, (2009) 6 SCC 342........................................................................... 21
P.V. Jagannath Rao v. State of Orissa, AIR 1969 215............................................................. 31

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People’s Union for Civil Liberties v. UOI, (1997) 1 SCC 301................................................ 17

Printers (Mysore) Limited v. Assistant Commercial Tax Officer, 1994 SCR (1) 682, 1994
SCC (2)434. ......................................................................................................................... 19
R. Lakshmipati v. S. Ramalingam, 1998 SCC OnLine Mad 427 ............................................ 15
Ram Jethmalani v. Union of India, (2011) 8 SCC 1: (2011) 4 UJ 2237 .................................. 21
Ramanlal Lalbhai Desai v. Central Board of Film Certification, Bombay, 1988 SCC OnLine
Bom 23: AIR 1988 Bom 278: (1988) 3 Bom CR. ............................................................... 27
Raunaq Int'l Ltd. v. I.V.R. Constr. Ltd., (1999) 1 SCC 492 .................................................... 15
Rayala.M. Bhuneshwari v. Nagaphanendra Rayala AIR 2008 AP 98..................................... 18
Romila Thapar v. Union of India, (2018) 10 SCC 753: (2019) 1 SCC (Cri) 638.................... 21
Roop Chand v. State of Punjab, AIR 1963 SC 1503 ............................................................... 14
S. P Gutpa v. Union of India, 1981 Supp SCC 87: AIR 1982 SC 149 .................................... 15
S. R. Bommai v. Union of India, AIR 1994 SC 1918.............................................................. 26
S.M. Krishnan v. State of Tamil Nadu, (1982) 95 LW (JS) 61 ............................................... 29
Shahid Balwa v. Union of India, (2014) 2 SCC 687: (2014) 4 SCC (Cri) 585 ....................... 21
State of Bihar v. Union of India, (1970) 1 SCC 67.................................................................. 16
State of Karnataka v. State of T.N., (2017) 3 SCC 362 : 2016 SCC OnLine SC 1450 ........... 14
State of Karnataka v. Union of India, (1977) 4 SCC 608 ........................................................ 16
State of Uttar Pradesh v. Raj Narain 1975 AIR 865: 1975 SCR (3) 333 ................................. 20
State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402 ........................................ 15
Subhash Kumar v. State of Bihar, (1991) 1 SCC 598 ............................................................. 15
Union of India v. Naveen Jindal, (2004) 2 SCC 510. .............................................................. 28
Vineet Narain v. Union of India, (1996) 2 SCC 199: 1996 SCC (Cri) 264 ............................. 22

Journals:
Filzah Belal, Role of Public Interest Litigation in Advancing Fundamental Rights of Have-Nots
in India, (2018) 8 GJLDP (April) 118 ................................................................................. 14
Sidharth Luthra and Nivedita Mukhija, Nationalism Debate, Concerns, and Constitutional
Response, 30 NLSI Rev 1 (2018). ....................................................................................... 27

Books:
Alfred A. Knopf, Notes on Nationalism, ................................................................................. 28
5 P. Ramanatha Aiyar, The Major Law Lexicon 4041 (LexisNexis, 2010). ........................... 15
7 Durga Das Basu, Commentary on the Constitution of India (LexisNexis, 2008) ................ 15

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A. G. Noorani, Constitutional Questions & Citiizens’ Rights 45(Oxford Scholarship Online,

2012) .................................................................................................................................... 25
Ernest Gellner, Nations and Nationalism 25 (Cornell University Press, 1983)....................... 25
Harvey Chisick , Historical Dictionary of the Enlightenment 56 (Scarecrow Press, 2005). ... 28
M.P Jain, Indian Constitutional Law 1506 (7th ed. ,2014). ...................................................... 26
Smith & Anthony, Nationalism: Theory, Ideology, History, (Sage Publication, 2010). ......... 25

Foreign Cases:
Bugdaycay v. Home Secretary (1987) AC 514. ...................................................................... 14

Dictionary:
Black’s Law Dictionary 1084 (10th ed., 2015)........................................................................ 15
Cambridge Dictionary (4th ed., 2014) ........................................................................................ 25

Statutory Provision:

Commission of Inquiry Act, 1952

Constitution of India, 1950
Indian Telegraph (Amendment) Rules, 2007
Indian Telegraph Act, 1885
Information Technology (Procedure and Safeguard for Interception, Monitoring and
Decryption of Information) Rules, 2009
Information Technology Act, 2000
International Covenant on Civil and Political Right, 1966
Supreme Court Rules, 2013
Universal Declaration of Human Right, 1948

Online Resources:

All India Reporters www.aironline.in

JStore www.jstor.org
LexisNexis www.lexisnexis.com
Manuparta www.manupatrafast.com
SCC Online www.scconline.com

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TABLE OF ABBREVIATION

& And
Acc. According
AIR All India Reporters
Anr. Another
Art. Article
Ed. Edition
Gov. Government
Hon’ble Honourable
MANU Manuparta
MPs Members of Parliament
NGO Non- Government Organization
No. Number
NPA Nationalist Party of Azeroth
Ors. Others
Para Paragraph
PIL Public Interest Litigation
S./Sec. Section
SC Supreme Court
SCC Supreme Court Cases
Sec. Section
SPA Socialist Party of Azeroth
St. State
UOI Union of India
v. Verses

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STATEMENT OF JURISDICTION

The Petitioner, most humbly and respectfully submits that this Hon’ble Supreme Court of
Azeroth has the requisite jurisdiction to entertain the petitions filed under Art. 32 and 131(a)
of the Constitution of Azeroth, 1950.
Art. 32 of the Constitution of Azeroth reads as:
Remedies for enforcement of rights conferred by this Part-
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.

Art. 131 of the Constitution of Azeroth reads as:

Original jurisdiction of the Supreme Court-
Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any
other court, have original jurisdiction in any dispute
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more other
States on the other; or
(c) between two or more States,

The present memorandum sets forth the facts, contention and arguments in the present case.

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STATEMENT OF FACT

1. The country of Azeroth is situated in the South-Asian region and is a Sovereign, Democratic,
Republic, and Socialist country. It has a history of long battles for freedom as it was a colony
of Britain. The Constitution of Azeroth has a set of fundamental rights which includes
freedom of speech and expression.
2. Azeroth is a multi-religious country with a majority of Hindus. Two political parties in the
nation are the Nationalist Party of Azeroth (NPA) and the Socialist Party of Azeroth (SPA)
where the members of the NPA are mostly Hindus and influenced by the idea of core values
of nationalism and traditions. The other party, i.e., Socialist Party of Azeroth is considered
as a liberal government and a government not being able to provide protection and security
of the country. Azeroth is surrounded by five enemy states, but in 2014 when the Nationalist
Party of Azeroth came into power there was a slump in the number of attacks. In 2019, the
Nationalist Party of Azeroth won the election with an even larger majority than before.
3. In 2019, a public interest litigation was filed in the Supreme Court of Azeroth by a member
of NPA that a spyware named Kimetsu is being used by the government which is developed
by the NSO, a Palpanese firm. It is asserted that the government is invading the privacy of
the citizens as continuous surveillance techniques are facilitated by Kimetsu which itself is a
violation of the fundamental right to privacy.
4. On June 18, 2021 ‘The Rope’(an online news agency), published a report which stated certain
things such as the military-grade spyware was confirmed on some devices and the phone of
40 journalists was on the hacking list, although the company refused to disclose the names
of customers. The report was published in collaboration with 16 other international
publications. Socialist Party of Azeroth demanded that this matter should be examined by an
independent body, the role of high-ranking officials should be ascertained, and all ministers
should give their resignation.
5. Mr. John Snow, who is an editor of ‘The Azeroth Times’ which is a leading newspaper in the
country, led a group of journalists and approached the Supreme Court of Azeroth to seek
some remedies.
6. The Republic of Azeroth replied without contradicting the use of Kimetsu software that the
present PIL is not maintainable as there has been no authorized surveillance on any person
under any law and no fundamental right is infringed.

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7. A miscellaneous application was filed by the petitioner seeking the relief that the respondent
should be directed to furnish an affidavit stating the use/non-use of the software. The
Republic of Azeroth has filed a reply stating that an affidavit cannot be filed as the matter is
of national security and confidentiality needs to be maintained.
8. Another miscellaneous application was filed on behalf of the NGO, ‘Desh ki Mitti’ seeking
the relief of intervention stated that the Nationalist Party of Azeroth is fostering a feeling of
Nationalism in the citizens and is working strenuously towards national security. According
to the NGO, the government is doing work expeditiously and the present petition is nothing
but an attempt to traduce and overthrow the government. Subsequently, the NGO supplicated
that Nationalism ought to be announced as the basic structure of the Constitution and
Fundamental Duties ought to be made enforceable on the grounds of Nationalism and
Patriotism.
9. Petitioner has filed a reply to this miscellaneous application stating that the application should
be dismissed. Further, the Republic of Azeroth has not given any antithetical opinion on the
Intervention Application and has supported the relief sought by the party.
10. Some states have alleged disagreement with the modus operandi of the Nationalist Party of
Azeroth. The State of Riverdale appointed a commission of inquiry. The Union government
approached the Supreme Court that no state can appoint a commission on itself on a matter
of national importance.
11. The Supreme Court of Azeroth has allowed this petition and a bench of eleven judges will be
hearing this matter of national and constitutional importance.

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ISSUES RAISED

ISSUE 1:

WHETHER THE PRESENT FILED PETITIONS ARE MAINTAINABLE OR NOT ?

ISSUE 2:

WHETHER THE USE OF KIMESTU SOFTWARE BY THE STATES AMOUNTS TO VIOLATION OF

FREEDOM OF SPEECH AND EXPRESSION AND RIGHT TO PRIVACY OF A PERSON ?

ISSUE 3:

SHOULD THE STATE FURNISH AN AFFIDAVIT STATING THE USE OR NON -USE OF KIMESTU
SOFTWARE?

ISSUE 4:

SHOULD NATIONALISM BE INCLUDED IN THE BASIC STRUCTURE OF THE CONSTITUTION AND

FUNDAMENTAL DUTIES SHOULD BE MADE ENFORCEABLE ?

ISSUE 5:

WHETHER THE STATE OF RIVERDALE HAS THE RIGHT TO APPOINT A COMMISSION OF

INQUIRY ?

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SUMMARY OF ARGUMENTS

1. WHETHER THE PETITIONS ARE MAINTAINABLE?

It is humbly submitted before the Hon’ble Court that the present petition and suit filed before
the court is maintainable. As the court has the power under Art 32 and 131(a) to hear the present
matter. Moreover, there has been violation Freedom of Speech and Expression enshrined under
Art 19(1)(a) and Right to Privacy of person enshrined under Art 21. Furthermore, the suit filed
is also maintainable as the present matter involves a centre and state dispute.
2. WHETHER THE USE OF KIMESTU SOFTWARE AMOUNTS TO THE VIOLATION
OF ARTICLE 21 AND ARTICLE 19(1)(A)?
It is humbly submitted before the Hon’ble Court that the use Kimestu software amounts to the
violation of Right to Privacy under Article 21 and Freedom of Speech and Expression under
Article 19 (1)(a) of Constitution of Azeroth. Both the rights are intrinsic part of our life. The
Republic of Azeroth by not providing any clarity over the use of the spyware clearly infringes
with individual’s fundamental rights.
3. SHOULD THE RESPONDENT FURNISH THE AFFIDAVIT STATING THE USE/ NON-
USE OF THE SOFTWARE?
It is most humbly submitted before this Hon’ble Court that Miscellaneous Application filed by
the petitioner, in this case, seeking the relief that the respondent should be directed to furnish
an affidavit stating the use/non-use of the Kimetsu Software should be entertained as various
in international publications have alleged the use of Kimetsu spyware by the government and
forensic tests also confirmed for the same. The Govt. taking the defence of national security
isn’t justified as individual’s fundamental rights are being curtailed without following the
procedure established by law.
4. SHOULD NATIONALISM BE INCLUDED IN THE BASIC STRUCTURE OF THE
CONSTITUTION AND FUNDAMENTAL DUTIES ME MADE ENFORCEABLE?
It is humbly submitted before the Court that the Nationalism being prime importance for the
country and keeping in the mind what the framers of our Constitution thought. It should be
declared as the part of the Basic Structure of our Constitution. Furthermore, Fundamental
Duties showcasing the spirit of Patriotism and Nationalism should be made enforceable on the
said grounds.

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5. WHETHER THE STATE OF RIVERDALE HAS THE RIGHT TO SET UP A

COMMISSION?
It is humbly submitted before this Hon’ble Court that the respondent doesn’t not have any
power to set-up the current commission as the matter in the question involves national
importance. Furthermore, the finding of the commission will intervene with judgment of this
court.

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ARGUMENTS ADVANCED

1. WHETHER THE PRESENT PETITION FILED IS MAINTAINABLE OR NOT?

It is humbly submitted before the Hon’ble Court that the present petition and suit filed before
the court is maintainable. As the court has the power under Art 32 and 131(a) to hear the present
matter. Moreover, there has been violation Freedom of Speech and Expression enshrined under
Art 19(1)(a) and Right to Privacy of person enshrined under Art 21. Furthermore, the suit filed
is also maintainable as the present matter involves a centre and state dispute. Herein the
arguments have been dealt in a threefold manner i.e. [1.1] that the petition filed by Jon Snow
and others is maintainable; [1.2] that the petitioner(s) have the adequate locus standi; [1.3] that
the suit filed is maintainable.
1.1 THAT THE PETITION FILED BY JON SNOW AND OTHERS IS MAINTAINABLE
1.1.1 Article 32 of the Constitution, which occurs in Part. III, deals with fundamental rights. It
provides for remedies for enforcement of the rights conferred by the said part of the
Constitution.1 Article 32 can be invoked only when there is infringement of Fundamental
Rights of the citizen.2 It bestows upon the citizens of the country, a tool that symbolizes the
power in the hands of the people - PIL. A Public Interest Litigation gives the citizens of the
country a special right, that is to approach the Court in case any of their fundamental rights are
violated.3 The scope of filing a PIL has been increased and is very flexible today. It isn't
necessary for the affected person to personally approach the Court. Any member of the public
having ‘sufficient interest’ can approach the Court for enforcing the legal or constitutional
rights of other persons and seek redressal of a common grievance. 4 In the case of Bandhua
Mukti Morcha v. Union of India5 it has been held that the provisions of Article 32 do not
specifically indicate who can move the Court. In the absence of a confining provision in that
respect, it is plain that a petitioner may be anyone in whom the law recognises a standing to
maintain an action of such nature.

1
State of Karnataka v. State of T.N., (2017) 3 SCC 362 : 2016 SCC OnLine SC 1450.
2
Hindi Hitrakshak Samiti v. Union of India, (1990) 2 SCC 352 : AIR 1990 SC 851.
3
Filzah Belal, Role of Public Interest Litigation in Advancing Fundamental Rights of Have-Nots in India, (2018)
8 GJLDP (April) 118.
4
Ibid.
5
Bandhua Mukti Morch v. Union of India (1984) 3 SCC 161 : 1984 SCC (L&S) 389.

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1.1.2 To invoke the writ jurisdiction of this Hon’ble Court is not necessary that the fundamental
right must have been actually infringed- a threat to the same would be sufficient6. Applying the
doctrine of ‘reasonable apprehension’, this Hon’ble Court may interfere directly in the said
case. The most fundamental right of an individual is his right to life; if an administrative
decision may put his life at risk, the basis for the decision surely calls for the most anxious
scrutiny according to the principle of ‘anxious scrutiny’.7
1.1.3 The PIL filed before the Court should stand maintainable on all sustainable grounds as
the petitioners in the instant case possess an adequate ‘sufficient interest’ in filing this litigation.
Furthermore, any member having an adequate ‘sufficient interest’ can maintain an action for
judicial redress for public inquiry arising from the breach of public duty. It the instant case, the
petitioners seek the intervention of the Court in present situation of use Kimestu software by
the State.
1.2 THAT THE PETITIONER(s) HAVE AN ADEQUATE LOCUS STANDI
1.2.1 The term ‘locus standi’ connotes the right to bring an action8 and to be heard.9 Any
member of public or any public-spirited organization10 having a bona fide11 and sufficient
public interest12 will have locus standi to maintain an action for writ petition under Art. 32.13
As held by this apex Court in case of S.P Gupta v. Union14, while relaxing the terms of locus
standi, that if a legal wrong or legal injury is caused to a person or any class of person can
approach the Court through an order or writ in the High Court under Art. 226 or to the Supreme
Court under Art 32.
1.2.2 It was made clear in Janata Dal v. H.S. Chaudhary15 that only a person ‘acting bona fide
and having sufficient public interest in the proceeding of public interest litigation will have
alone the locus standi but not a person for personal gain or political motive or any oblique
consideration. The said person or the group of the person can approach the Court to wipe out
violation of fundamental rights and genuine infraction of statutory provision.

6
Roop Chand v. State of Punjab, AIR 1963 SC 1503; Maganbhai v. Union of India AIR 1969 SC 783; D.A.V
College v. State of Punjab AIR 1971 SC 1731.
7
Bugdaycay v. Home Secretary (1987) AC 514.
8
5 P. Ramanatha Aiyar, The Major Law Lexicon 4041 (LexisNexis, 2010).
9
Black’s Law Dictionary 1084 (10th ed., 2015).
10
Janta Dal v. H.S. Chowdhary, (1992) 4 SCC 305; Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.
11
Fertilizer Corp. Kamgar v. Union of India, (1981) 1 SCC 568: A.I.R. 1981 S.C. 844; Foreward Constr.
Co. v. Prabhat Mandal, (1986) 1 SCC 100; Raunaq Int'l Ltd. v. I.V.R. Constr. Ltd., (1999) 1 SCC 492.
12
Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349; Nepal Sarkar v. State of West Bengal, 1993
SCC OnLine Cal 84; R. Lakshmipati v. S. Ramalingam, 1998 SCC OnLine Mad 427.
13
Subhash Kumar v. State of Bihar, (1991) 1 SCC 598; State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3
SCC 402; Jitendra Nath v. State of West Bengal Board of Examination, A.I.R. 1983 Cal. 275.
14
S. P Gutpa v. Union of India, 1981 Supp SCC 87: AIR 1982 SC 149.
15
Janata Dal v. H.S. Chaudhary, 1993 AIR 829 64.

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The petitioners being the responsible citizen of Republic of Azeroth approaches this Hon’ble
Apex Court to redress their invasion of the Right to Privacy by the government and to seek
answers form the State for use of Kimestu software which makes the present matter of public
importance.
1.3 THAT THE SUIT FILED BY REPUBLIC OF AZEROTH IS MAINTAINABLE
1.3.1 The Constitution aims at maintaining a fair balance only between the three organs of
power, the legislature, the executive and the judiciary, but it is designed to secure a similar
balance between the powers of the Central Government and those of the State Govt. The object
of Article 131 is to provide a high-powered machinery for ensuring that the Central
Government and the State Government act within the respective spheres of their authority and
do not trespass upon each other’s constitutional function or power.16 Art. 131 confers original
jurisdiction to Supreme Court to resolve disputes between two or more governments. In a
federation governed by a written Constitution with division of powers between the federation
and the federation units, there has to be a forum for resolving disputes involving question of
law or fact relating to the legal rights of the federal government vis-à-vis the Government of
the federation units or States and between the State Governments themselves.17 Article does
not define the scope of the disputes which this Court may call upon. However, there can be no
doubt that so far as the parties to the dispute are concerned, the framers of the Constitution did
intend that they could only be the constituent units of the Union of Azeroth and the Government
of Azeroth itself arrayed on one side or the other either individually or jointly with another unit
or the Government of Azeroth.18
1.3.2 The requirement of Article 131 is that the dispute must involve a question whether of law
or fact on which the existence or extent of a legal right depends. It is this qualification which
provides the true guide for determining whether a particular dispute falls within the purview of
Article 131.19 In State of Karnataka v. Union of India20 it was observed: “The only requirement
necessary for attracting the applicability of Article 131 is that the dispute must be one involving
any question on which the existence or extent of a legal right depends, irrespective of the fact
whether the legal right is claimed by one party or the other and it is not necessary that some
legal right of plaintiff should be infringed before a suit can be brought under this Article”. It
was further observed: “What has, therefore, to be seen in order to determine the applicability

16
7 Durga Das Basu, Commentary on the Constitution of India 3504 (LexisNexis, 2008)
17
Ibid.
18
State of Bihar v. Union of India, (1970) 1 SCC 67.
19
Durga Das Basu, supra note 1 at 3507.
20
State of Karnataka v. Union of India, (1977) 4 SCC 608.

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of Article 131 is whether there is any relational legal matter involving a right, liberty, power
or immunity qua the parties to the dispute. If there is, the suint would be maintainable, but not
otherwise.”
1.3.3 The challenge by the Central Government to appoint a Commission of Inquiry by the
State Government clearly involves a question on which the existence of extent of legal right of
the Central Government depends and that is enough to sustain the proceedings brought by the
Union under Article 131 of the Constitution.
2. WHETHER THE USE OF KIMESTU SOFTWARE BY THE STATE AMOUNTS
TO VIOLATION OF FREEDOM OF SPEECH AND EXPRESSION AND RIGHT TO
PRIVACY OF A PERSON?
It is humbly submitted before the Hon’ble Court that the use Kimestu software amounts to the
violation of Right to Privacy under Article 21 and Freedom of Speech and Expression under
Article 19 (1)(a) of Constitution of Azeroth. Both the rights are intrinsic part of our life. The
Republic of Azeroth by not providing any clarity over the use of the spyware clearly infringes
with individual’s fundamental rights. Herein the arguments have been delt in threefold manner
i.e. [2.1] the use of Kimestu software amounts to violation of right of privacy; [2.2] the
surveillance by the state amounts to violation of freedom of speech and expression; [2.3]
Supreme Court monitored SIT should be appointed.
2.1 THAT THE USE OF KIMESTU SOFTWARE AMOUNTS TO VIOLATION OF RIGHT
TO PRIVACY
2.1.1 The use of Kimetsu software by the govt. of Azeroth directly infringed individuals right
to privacy as held by the Hon’ble Supreme Court in the case of K.S. Puttaswamy v. UOI 21

where the Hon’ble court held right to privacy is an intrinsic part of the right to life and personal
liberty under Article 21. If any third party who is not involved in electronic conversation
intercepts or records such conversation without the consent of that person, then such act is
unlawful and breaches right to privacy.
2.1.2 One of the own MPs of NPA filed a PIL stating that the Government is using Kimetsu
software and is invading the privacy of the citizens of the country by using continuous
surveillance technique facilitated by the said software.22 The said petition raises a very big
question on the part of the govt. as the said PIL was withdrawn on the grounds of alternative
remedies but no relief was provided for the same. The govt. taking defence of statutory

21
K.S. Puttaswamy v. UOI; AIR 2017 SC 4161.
22
Moot Proposition, Para 4.

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provisions and national security without providing any reasonable ground isn’t justified as
surveillance could only be done in cases involving occurrence of public emergency or public
safety and it is considered necessary and expedient to do so. Also, right to privacy include the
implicit right to be let alone. Thus, the use of Kimestu spyware amounts to violation of this
basic principle.
2.1.3 The government has claimed there has been no unauthorized surveillance on any person
within or outside India and whatever has been done, is within the contours of the Indian
Telegraph Act and Information Technology Act.23 However, acc. to rule 419A of the Indian
Telegraph Rules, incorporated in 2007 and last amended in 2014, an order for the inception
can be issued by the Secretary of the Ministry of Home Affairs but in the current case no such
order was issued. Also, in the case of People’s Union for Civil Liberties v. UOI 24the Hon’ble
Supreme Court upheld that telephone tapping violates the Fundamental right to privacy. In this
judgement court observed;
“We have, therefore, no hesitation in holding that right to privacy is a part of the right to
“life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in
a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be
curtailed “except according to procedure established by law”.
2.1.4 In the case of Hukum Chand Shyam v. UOI25, Hon’ble Supreme court held according to
Sec. 5(2) of the Telegraph Act, 1885, telephone tapping is permissible in India but there must
be reasonable grounds for doing that it should be in interest of –sovereignty and integrity of
Azeroth; the security of the state; friendly relations with foreign States; public order; or for
preventing incitement to the commission of an offence. The court also laid down inter alia that
telephone tapping shall not be made under section 5(2) except by the Home Secretary, Govt.
of Azeroth and the Home Secretaries of state Govt. but in the current situation whether such
permission was taken from the requisite authority no data is being provided for the same. The
Govt. of Republic of Azeroth just claims whatever is done is within the ambit of central govt.
and interest of national security but refuses to comment on the use of the Kimestu Spyware.
Thus, violating the constitutional rights of the people of Azeroth.
2.1.5 There are various international charters which have given recognition to the principle of
privacy, the Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of
the International Covenant on Civil and Political Rights, 1966. “These Articles legally protect

23
Moot Proposition, Para 13.
24
People’s Union for Civil Liberties v. UOI, (1997) 1 SCC 301.
25
Hukum Chand Shyam v. UOI ,1976 AIR 789.

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persons against “arbitrary interference” with one’s privacy, family, home, correspondence,
honor and reputation.” Privacy can mean range of things; the right to be left alone, freedom to
dissent or protection from state surveillance. Moreover, In Rayala. M. Bhuneshwari v.
Nagaphanendra Rayala,26 has emphasized on the significance of the Right to privacy in this
case Hon’ble high court of Andhra Pradesh held;
“Disclosure of even true private facts has the tendency to disturb a person’s tranquility. It may
generate many complexes in him and may even lead to psychological problems. He may,
thereafter, have a disturbed life all through. In the face of these potentialities, and as already
held by this Court in its various decisions referred to above, the Right of Privacy is an essential
component of right to life envisaged by Article 21. The right however, is not absolute and may
be lawfully restricted for the prevention of crime, disorder or protection of health or morals or
protection of rights and freedom of others”
2.1.6 It is humbly submitted before the court that Republic Azeroth should be held liable on
the account of breach of privacy which is a fundamental right by using a spyware named
Kimestu. The claim of the government that whatever is done is within the ambit of statutory
provisions is quite ambiguous as republic of Azeroth fails to provide any conclusive proof for
the same.
2.2 THE SURVEILLANCE BY THE STATE AMOUNTS TO VIOLATION OF FREEDOM
OF SPEECH AND EXPRESSION.
2.2.1 It is most humbly submitted before this Hon’ble Court that surveillance by the state of
Azeroth amounts to violation of Article 19(1)(a) of Constitution of Azeroth which states that
“all citizens shall have the right to freedom of speech and expression” Moreover, in the case
of Maneka Gandhi v. UOI,27 Bhagwati J, has emphasized on the significance of the freedom
of speech and expression in these words:
“Democracy is based essentially on free debate and open discussion, for that is the only
corrective of government action in a democratic set up. If democracy means government of the
people by the people, it is obvious that every citizen must be entitled to participate in the
democratic process and in order to enable him to intelligently exercise his right of making a
choice, free and general discussion of public matters is absolutely essential.”
2.2.2 A report was published by The Rope in collaboration with 16 other international
publications including the world-known media agencies to an investigation conducted by Paris-

26
Rayala.M. Bhuneshwari v. Nagaphanendra Rayala AIR 2008 AP 98.
27
Maneka Gandhi v. UOI, AIR 1978 SC 597: (1978) SCR (2) 621.

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based media non-profit organization Prohibited Stories and rights group People Rights
International28 which claimed that phones of more than 300 citizens had been under
surveillance by the use of the said software including members of the opposition party. In these
reports it is being claimed that the phone hackings were done during the 2019 elections in order
to indirectly manipulate the mandate of the people this clearly shows the malice intent of
Nationals Peoples party in order to win the parliamentary elections. Furthermore, the presence
of the said software has also been confirmed by forensic tests.29 By hacking the phone, the
Govt. of Azeroth has not only breached individuals right to privacy but also their freedom of
speech and expression enshrined under article 19 (1) (a).
2.2.3 In Printers (Mysore) Limited v. Assistant Commercial Tax Officer 30, the supreme court
has reiterated that though freedom of the press is not expressly guaranteed as a fundamental
right, it is implicit in the freedom of speech and expression. Moreover, in Brij Bhushan vs State
of Delhi31 ,the Supreme Court has held the fact that the freedom of the press was an essential
part of the Right to Freedom of Speech and Expression. The Freedom of Press has always been
a cherished right in all democratic countries and the press has rightly been described as the
fourth pillar of the democracy. But in the parliamentary elections of 2019 the mobile phones
of more than 40 journalists were hacked32 which is a direct attack on the principle of freedom
of press and violating the essential part of freedom of speech and expression.
2.2.4 The Republic of Azeroth being a Sovereign, Democratic, Secular, Republic and Socialist
country33, Freedom of Speech and Expression is an important pillar of fundamental rights. The
Article 19 (1) (a) not only include freedom of speech and expression but even include right to
acquire information and disseminate the same. But the republic of Azeroth by not providing
proper information its even restricting individuals from their right to acquire and disseminate
information. Also, in State of Uttar Pradesh v. Raj Narain34, the Supreme Court has held that
Article 19(1)(a) not only guarantees Freedom of Speech and Expression, it also ensures and
comprehend the rights of the citizens to know, the right to receive information regarding
matters of public concern. The Supreme court has underlined the significance by stating;

28
Moot Proposition, Para 7.
29
Moot Proposition, Para 5.
30
Printers (Mysore) Limited v. Assistant Commercial Tax Officer, 1994 SCR (1) 682, 1994 SCC (2)434.
31
Brij Bhushan v. State of Delhi ,1950 SCR 605 : AIR 1950 SC 129 : (1950) 51 Cri LJ 1525.
32
Moot Proposition, Para 6.
33
Moot Proposition, Para 1.
34
State of Uttar Pradesh v. Raj Narain 1975 AIR 865: 1975 SCR (3) 333.

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“In a government of responsibility like ours, where all the agents of the public must be
responsible for their conduct there can be but few secrets. The people of this country have a
right to know every public act, everything that is done in a public way, by their public
functionaries. They are entitled to know the particulars of every public transaction in all its
bearings. The right to know, which is derived from the concept of freedom of speech.”
2.2.5 Therefore, use of Kimestu spyware by the govt. of Azeroth directly and indirectly
infringed individuals’ Freedom of Speech and Expression. The use of this spyware by the state
without providing proper authentic data is against the constitutional principle and the state
should be held liable for violating the fundamental principles.
2.3 A SUPREME COURT MONITORED SPECIAL INVESTIGATION TEAM (SIT)
SHOULD BE APPOINTED TO INVESTIGATE THE CURRENT SITUATION IN
RESPECT OF KIMETSU
2.3.1 In the light of above argument stated, we can see that the continuous use of Kimetsu
software by the respondent is in clear violation of fundamental right of an individual. Justice
would not be served if a proper investigation is not done in current matter. In the interest of
justice when there are serious doubts regarding the investigation being carried out, it is not only
permissible, but our constitutional duty to ensure that the investigation is being carried out by
a special investigation team or a special investigative agency so that justice is not
compromised.35Respondent by repetitively taking defence of National Security36 are
showcasing that there exists a deficiency in the present matter and if it is visible or can be
perceived by lifting the veil which try to hide the realities or covering the obvious deficiency,
then the courts will have to deal with the same with an iron hand appropriately within the
framework of law.37
2.3.2 Article 32 read with Article 142 of the Constitution of Azeroth enables this Court to pass
such orders, which are necessary for doing complete justice in any cause or matter pending
before it and, any order so made, shall be enforceable throughout the territory of Azeroth.38 At
many instances where the relevant facts of the case were not known, this hon’ble Apex Court
and many High Courts have ordered for the formation of a special investigation team, to look
into the same. As in the case of NHRC v. State of Gujarat39 where this hon’ble court in order
to ensure the faith of people in general in the justice system ordered the constitution of a Special

35
Romila Thapar v. Union of India, (2018) 10 SCC 753: (2019) 1 SCC (Cri) 638.
36
Moot Proposition, Para 13 and 14.
37
Bharati Tamang v. Union of India, (2013) 15 SCC 578: (2014) 6 SCC (Cri) 566.
38
Shahid Balwa v. Union of India, (2014) 2 SCC 687: (2014) 4 SCC (Cri) 585.
39
NHRC v. State of Gujrat, (2009) 6 SCC 342.

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Investigation Team; in the case of Ram Jethmalani v. Union of India40 this hon’ble court
appointed a Special Investigation Team consisting of retired Supreme Court Judges to look into
the issue of black money and undisclosed foreign accounts.
2.3.3 In the case of Bharati Tamang v. Union of India41 this Hon’ble Court held that the court
can even constitute Special Investigation Team and also give appropriate directions to the
Central and State Governments and other authorities to give all required assistance to such
specially constituted investigating team in order to book the real culprits and for effective
conduct of the prosecution.
2.3.4 There is no cast iron formula for directing an investigation by a SIT. The Court would
have to take a decision taking into account the facts and circumstances of the case. Prima facie
materials of the commission of an offence, the gravity of the offence, the effect of the offence
on the people in general would be relevant factors for deciding whether investigation should
be ordered.42 The facts and circumstances of the present case do indicate that it is of utmost
public importance that this matter should be examined thoroughly by this Court to ensure that
all government agencies, entrusted with the duty to discharge their functions and obligations
in accordance with law, do so, bearing in mind constantly the concept of equality enshrined in
the Constitution and the basic tenet of rule of law: “Be you ever so high, the law is above you.”
Investigation into every accusation made against each and every person on a reasonable basis,
irrespective of the position and status of that person, must be conducted and completed
expeditiously.43
2.3.5 It is humbly submitted before this Hon’ble Court that a court monitored Special
Investigating Team should be constituted to investigate the current situation of Kimestu
spyware in the state and bring all the relevant facts of the case to this Hon’ble Court.
3. SHOULD THE RESPONDENT FURNISH THE AFFIDAVIT STATING THE USE/
NON- USE OF THE SOFTWARE?
It is most humbly submitted before this Hon’ble Court that Miscellaneous Application filed by
the petitioner, in this case, seeking the relief that the respondent should be directed to furnish
an affidavit stating the use/non-use of the Kimetsu Software should be entertained as various
in international publications have alleged the use of Kimetsu spyware by the government and
forensic tests also confirmed for the same. The Govt. taking the defence of national security

40
Ram Jethmalani v. Union of India, (2011) 8 SCC 1: (2011) 4 UJ 2237.
41
Filzah Belal, supra note 2.
42
J. Anbazhagan v. Union of Indian & Others, (2018) SCC OnLine Mad 1231: (2018) 4 Mad LJ 129.
43
Vineet Narain v. Union of India, (1996) 2 SCC 199: 1996 SCC (Cri) 264.

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isn’t justified as individual’s fundamental rights are being curtailed without following the
procedure established by law.
3.1 STATE SHOULD FURNISH AN AFFIDAVIT STATING THE USE/ NON-USE OF THE
SOFTWARE.
3.1.1 It is most humbly submitted before this Hon’ble apex court of Republic of Azeroth that
Miscellaneous Application filed by the petitioner, in this case, seeking the relief that the
respondent should be directed to furnish an affidavit stating the use/non-use of the Kimetsu
Software should not be entertained. The application cannot be filed in the said matter in order
to maintain confidentiality as the matter pertains to National Security. The govt. keeps its stand
clear that no unauthorized surveillance on any person within or outside India and whatever has
been done, is within the contours of the Indian Telegraph Act and Information Technology Act.
The petitioners in the present matter have approached the Apex Court on mere apprehension
and on the basis of news reports without providing any conclusive proof of the same. The news
reports state about phone number of 40 journalist44 and about 300 citizens had been under
surveillance by the use of the said software including members of the opposition party and
some union ministers amongst others.45 But fails to provide any authentic data for the same
Moreover, mentioning of the fact that the govt. conducting surveillance on its own ministers46
makes the credibility of the reports futile.
3.1.2 The reports claiming fundamental rights the individuals being violated is not absolute and
is subjected to procedure established by law and reasonable restrictions. The steps taken by the
govt. are in the interest of Sovereignty and Integrity of this nation and within the scope of
constitutional and statutory provisions. In Express Newspapers v Union of India47, it was held
by the Supreme Court that there ought to be a reasonable balance between the freedoms
enshrined under Article 19(1) and the social control permitted by clauses (2) to (6). In addition
to this, the restriction imposed shall have a direct or proximate nexus with the object sought to
be achieved by the law. In the present matter the steps taken by the govt. was within the ambit
of Sec. 5(2) Indian Telegraph Act and Sec. 69 of IT Act keeping a balance between individuals
rights and security of the state. The Republic of Azeroth condemn the use of Kimestu Spyware
as it would directly amounts to violation of fundamental rights.

44
Moot Proposition, Para 5.
45
Moot Proposition, Para 10.
46
Ibid.
47
Express Newspapers v Union of India (1985) 2 SCR 287.

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3.1.3 It is the duty of the state to upheld the security of the nation. the Article 19(2) states that
the government may impose reasonable restrictions upon the freedom of speech and expression
in the interest of the following factors; Sovereignty and Integrity of India; the Security of the
State; friendly relations with Foreign States; public order; decency or morality or in relation to
Contempt of Court; defamation; incitement to an offence. Hence the reasonable steps taken by
the govt. is justified in the interest of security of the nation. Also, fundamental duties added by
the Forty-Second Amendment Act, 1976 in the constitution of India in part IVA, under article
51A upholds that its duty of every citizen to protect sovereignty, unity and integrity of the
nation. Thus, the petition filed demanding affidavit should be withdrawn and priority should
be given to the interest of the nation over individuals interest.
3.1.4 Furthermore acc. to rule 419A of the Indian Telegraph Rules of 2007, an order for the
inception can be issued by the Secretary of the Ministry of Home Affair or any other officer
not lower than the officer holding post of joint secretary in case of emergency. However, in the
present situation there existed no fact supporting the case for the emergency and even if the
emergency existed then according to the said provision Secretary of the Home Affair must have
the knowledge of any surveillance being conducted. Therefore, the petitioners here through the
Court asks for the affidavit of the Secretary of Home Affairs telling whether they have used
the said software or not.
3.1.5 Furthermore, Republic of Azeroth is surrounded by five enemy states and as such is
subject to Guerilla warfare, insurgency and terrorist attacks quite frequently. There were total
of five insurgency attacks and one terrorist attack during 2014-2019 and thus the security of
the state shouldn’t be compromised.48 Before 2014 the Republic of Azeroth was subjected to
constant insurgencies and terrorist attacks and stringent steps were taken to prioritize the
interest of the nation.
3.1.6 Therefore, in the light of above arguments the reasonable restrictions imposed by the
govt. of Azeroth is completely justified. The use of Kimestu spyware was never done and
whatever is done is within the scope of Constitution of Azeroth. The affidavit couldn’t be
furnished in the present case as it’s a matter of security of the state and it’s the topmost priority
of the state to protect the nation from any kind of insurgencies.

48
Moot Proposition, Para 3.

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4. SHOULD NATIONALISM BE INCLUDED IN THE BASIC STRUCTURE OF THE

CONSTITUTION AND FUNDAMENTAL DUTIES BE MADE ENFORCEABLE?
It is humbly submitted before the Court that the Nationalism being prime importance for the
country and keeping in the mind what the framers of our Constitution thought. It should be
declared as the part of the Basic Structure of our Constitution. Furthermore, Fundamental
Duties showcasing the spirit of Patriotism and Nationalism should be made enforceable on the
said grounds. Herein the arguments have been delt in twofold manner i.e. [4.1] Nationalism
should be included in basic structure of the Constitution and [4.2] Fundamental Duties should
be made enforceable on the grounds of Patriotism and Nationalism.
4.1 NATIONALISM SHOULD BE INCLUDED IN BASIC STRUCTURE OF THE
CONSTITUTION

4.1.1 It is humbly submitted before the Hon’ble Court that Nationalism should be included in
the basic structure of the Constitution as it will instil the feeling of nationalism in the citizens
and would strengthen the sovereignty and integrity towards the nation. The Republic of
Azeroth being a nation surrounded by five enemy states and subjected to insurgencies and
terrorist attacks49 demanding to include nationalism in the basic structure is completely
justified.
4.1.2 Furthermore, the framers of our Constitution were of the opinion of that nationalism is
an important part of our Constitution, Shri Brajeshwar Prasad said, “Nationalism is dearer to
me than Democracy”50 adding Nationalism to the basic structure can preserve and foster a
nation’s traditional cultures, and culture revivals have been associated with nationalist
movements. It also encourages pride in national achievements. Nationalism has been a feature
of movements for freedom and justice, and inspired sacrifices for the public good.
4.1.3 The term Nationalism means the feelings of affection and pride that people have
for their country51 or Nationalism is an idea and movement that holds that the nation should be
congruent with the state.52 As a movement, nationalism tends to promote the interests of a
particular nation, especially with the aim of gaining and maintaining the nation’s sovereignty.53
By the meaning of basic structure, it is clear that every virtue which is essential to our
Constitution and country can become the part of basic structure like secularism, sovereignty
etc. Similarly in a very liberal sense, the basic structure is a common law legal doctrine that

49
Moot Proposition, Para 3.
50
Constituent Assembly of India Debates (Proceedings) Vol. II, 20 th January, 1947.
51
Cambridge Dictionary 478 (4th ed., 2014).
52
Ernest Gellner, Nations and Nationalism 25 (Cornell University Press, 1983).
53
Smith & Anthony, Nationalism: Theory, Ideology, History 76 (Sage Publication, 2010).

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the Constitution of a sovereign state has certain characteristics that cannot be erased by its
legislature. The theory of ‘implied limitations’ by Dietrich Conrad, author says nationalism is
a basic foundation of the constitution54 and our democracy is a part of basic structure as it is
dearer than democracy and it`s the same thing which our founding fathers conveyed. Therefore,
being a nation subjected to internal and external disturbances nationalism is one of the essential
doctrines that needs to be incorporated in the basic structure of the constitution.
4.1.4 Also Mr. H.V. Kamath one of the constitution framers said that the jumble of nationalism
should be interpreted according to the societal condition of the country.55 The same views were
quoted by Pandit Hirday Nath Kunzru who said do we want, in utter disregard of this history,
to pursue the dangerous path of fanatical nationalism.56 The need of the current situation
prevailing demands nationalism to be included.
4.1.5 Furthermore, adding the term nationalism in the basic structure won’t be the first instance,
the term socialist and secular were added to the basic structure by the 42 Constitutional
Amendment Act. The Supreme Court in S. R Bommai v. Union of India57 established the fact
that Azeroth being secular. Therefore, nationalism could also be added in the basic structure
following the proper procedure established by law.
4.1.6 The Republic of Azeroth being a multi-religious country58 including people from
different race, caste sex, creed inculcating nationalist feeling among the citizens and
incorporating the same in the basic structure should be utmost priority and it should be
nationalism not religion as the basis of modern life. While talking about the tribal people, Shri
Rohini Kumar Chaudhary said that we can put them into the main stream of our country and
you have now to convert those tribal people and educate them in the new nationalism of India.59
Nationalism unites people across different languages, gender, religion, cultures or ethnicity.
Nationalism further shields people from separatist tendencies-whether they are communal,
whether they are provincial or other: yet, because we have those tendencies, it might
necessarily follow that we should surrender to them all the time. Indian freedom movement
against the British Raj was fought because of strong nationalistic sentiments and the present
government of Azeroth is working for nationalism. Although, dissent and discussion are
necessary components of a functioning democracy but nationalism is beneficial to the country.

54
A. G. Noorani, Constitutional Questions & Citiizens’ Rights 45(Oxford Scholarship Online, 2012)
55
Constituent Assembly Debates (Proceedings)- Volume II 20th January, 1947.
56
Constituent Assembly Debates (Proceedings)- Volume VII, 8th December, 1948.
57
S. R. Bommai v. Union of India, AIR 1994 SC 1918.
58
Moot Proposition, Para 2.
59
Constituent Assembly Debates (Proceedings)- Volume IX 8th August 1949.

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4.1.7 Therefore, in the light of abovementioned facts nationalism needs to be included under
the garb of basic structure to upheld the sovereignty, integrity and security of the state of
Azeroth. Having nationalism in the basic structure would promote brotherhood, unity and
strengthen the country.

4.2 FUNDAMENTAL DUTIES SHOULD BE MADE ENFORCEABLE ON THE

GROUNDS OF PATRIOTISM AND NATIONALISM

4.2.1 The Constitution through Forty-Second Amendment Act, 1976, braked a new ground by
introducing the innovative concept of Fundamental Duties of the Azerothian citizens in
the Constitution.60 Fundamental rights are enforceable and enforceability of directive
principles is not visualised and fundamental duties have been enumerated without any
indication about enforceability. The structure of fundamental duties is in the nature of imposing
duties on the citizen designed to give a fillip to the public welfare and common good.
The fundamental duties are aimed at levelling up the efficiency and the national character. The
temper and pattern of clauses (b), (c). (d), (e), (f), (g) (h) and (j) strive to promote the aspirations
and inculcate the transcendental ideals to achieve material prosperity and harmony.61
4.2.2 The Constitution doesn’t specifically provide that the fundamental duties are not
enforceable, however these can be made enforceable by the judiciary. If a particular citizen
fails to perform any one of the duties it would result in violation of some rights which
correspond to those duties. It would be the duty of the judiciary to enforce those “implied right”
like other constitutional rights.62 Furthermore, Rajasthan High Court in case of L.K. Koolwal
v. State of Rajasthan63 it was held that Article 51A creates right in favour of the citizen to move
to the Court to see that the State performs its duties faithfully and the obligatory and primary
duties are performed in accordance with the law of land. Omissions or commissions are brought
to the notice of the Court by the citizen and thus, Article 51A gives a right to the citizen to
move the Court for the enforcement of the duty cast on State, instrumentalities, agencies,
departments, local bodies and statutory authorities created under the particular law of the State.
Fundamental duties in the abstract are not enforceable in law. Their inclusion in the basic
document is to remind the citizens, that apart from the fundamental freedoms they enjoy, there
are certain obligations which are expected to be fulfilled by them. Part IV-A does not prescribe

60
M.P Jain, Indian Constitutional Law 1506 (7th ed. ,2014).
61
Chennakesava Swamy Temple v. I. Sreeramulu, LNIND 1984 AP 324.
62
AIIMS Students' Union v. AIIMS, (2002) 1 SCC 428: 2001 SCC OnLine SC 1002.
63
L.K. Koolwal v. State of Rajasthan, AIR 1988 Raj 2.

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a duty enjoining the State to bear them in mind so as to compel citizens to perform the said
duties.64 Furthermore in the case of Chandra Bhavan Boarding and Lodging Bangalore v. State
of Mysore & others65 it was decided by the Supreme Court that it is neither feasible nor fair for
our constitution to ensure fundamental rights to citizens without expecting certain duties and
obligations in return.
4.2.3 These Fundamental Duties indicate the desire of the Parliament to inculcate the spirit of
nationalism amongst its citizens, a nationalism that draws its contours from the Constitution
alone. Article 51A enjoins the citizens to uphold duties which can be termed as elements of
nationalism and consciously abjures reference to the culture of any individual community or
its history, and instead focuses on the rich heritage of our composite culture.66 By way of broad
classification, it may be stated that the duties mentioned in clauses (a) and (b) of Article 51-A
of the Constitution have a nationalistic fervour. By asking all citizen to abide by the
Constitution, its ideals and institutions and the symbolic manifestation of those ideals is visual
imagery and audition and to cherish the ideas inspiring the struggle for freedom, they seek to
ensure that the spirit of nationalism is not forgotten on the heat of partisan or personal
controversies.
4.2.4 Patriotism or national pride is the feeling of love, devotion, and sense of attachment to a
homeland or the country and alliance with other citizens who share the same sentiment to create
a feeling of oneness among the people. This attachment can be a combination of many different
feelings, language relating to one's own homeland, including ethnic, cultural, political or
historical aspects.67 The beauty of the Azerothian Constitution is that the entire structure of the
country is based thereupon. It is the very pillar upon which the democracy of Azeroth stands.
The unity and integrity of Azeroth if to be perceived in diverse situations, the feeling of loyalty,
commitment and patriotism can be judged not only by giving effect to the constitutionalism
but also on their secular symbol unhidden as noticed hereinbefore.68
4.2.5 Both the term Patriotism & nationalism are essential for a democratic and co-operative
country. By using the word 'patriotism' devotion to a particular place and a particular way of
life, which one believes to be the best in the world but has no wish to force upon other people.

64
Ramanlal Lalbhai Desai v. Central Board of Film Certification, Bombay, 1988 SCC OnLine Bom 23: AIR
1988 Bom 278: (1988) 3 Bom CR.
65
Chandra Bhavan Boarding and Lodging Bangalore v. State of Mysore & others, 1970 AIR 2042.
66
Sidharth Luthra and Nivedita Mukhija, Nationalism Debate, Concerns, and Constitutional Response, 30 NLSI
Rev 1 (2018).
67
Harvey Chisick , Historical Dictionary of the Enlightenment 56 (Scarecrow Press, 2005).
68
Union of India v. Naveen Jindal, (2004) 2 SCC 510.

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Patriotism is of its nature defensive, both militarily and culturally. Nationalism, on the other
hand, is inseparable from the desire for power. The abiding purpose of every nationalist is to
secure more power and more prestige, not for himself but for the nation or other unit in which
he has chosen to sink his own individuality.69
Citizens are the unit of the state who play an important role in springing the nation towards the
path of development. The spirit of nationalism lies in the soul of every person. Azeroth being
a secular nation70 inherited teaches about religious tolerance and equality. One must always
adhere to constitutional nationalism and perform their duties accordingly. The drafters of the
constitution have inserted the fundamental duties after observing the society for a long period.
They sought that compliance with such duties will maintain not only social harmony but also
bring unity in this society. However, most of the time it is seen that due to a lack of sentiment
of patriotism people are negligent about their duties. The Constitution of Azeroth also does not
provide provisions for the compliance of such duties. The state must strive towards the
compliance of such duties for the proper nurturing of nationalism.
4.2.6 Hence, for the sake of remembrance of those nationalist leaders whose sacrifice led India
to a sovereign nation, citizens must remember their obligations towards their nation. Such a
spirit will always remember them about their duties. Such obligations will always remind them
about their duties towards their Nation. The duties are not only limited to the fundamental
duties as given under part IV of the constitution but also extend ahead of it. Only one has to
keep in mind that his/her duties should not harm society and go against the interest of the
Nation. Henceforth, when the citizens will abide by their duties it will not only develop the
nation but also nurture nationalism.
5. WHETHER THE STATE OF RIVERDALE HAS THE AUTHORITY TO SET UP
COMMISSION OF INQUIRY?
It is humbly submitted before this Hon’ble Court that the respondent doesn’t not have any
power to set-up the current commission as the matter in the question involves national
importance. Furthermore, the finding of the commission will intervene with judgment of this
court. The arguments herein have been delt in twofold manner i.e. [5.1] that the state of
Riverdale doesn’t have the power to set up commission of inquiry; [5.2] that the report of the
commission will intervene with the judgment of the court.

69
Alfred A. Knopf, Notes on Nationalism, 74-75(2002).
70
Moot Proposition, Para 1.

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5.1 THAT THE STATE OF RIVERDALE DOESN’T HAS AUTHORITY TO SET UP

COMMISSION OF INQUIRY
5.1.1 Seventh schedule of the Constitution of the Azeroth provides three lists under which
various subjects are mentioned over which the Central and the State government can make
laws. It is thus clear that the subject-matter of the relevant entries in the three Lists will be
within the scope of the Central investigation, and the subject-matter of the Entries in Lists II
and III would be within the ambit of the State inquiry. There is also a specific Entry, viz., Entry
94 in List I relating to ‘inquiries, surveys and statistics for the purpose of any matters in this
List’. Entry 45 of List III, which is the concurrent List, relates to inquiries and statistics for the
purpose of any of the matters specified in List II or List III, In the light of the two Entries, viz.,
Entry 94 of List I and Entry 45 of List III, the amplitude of the power of the Centre to make an
inquiry covers all the Lists.71 Moreover Entry 31 of List I deals with “posts and telegraphs;
telephones, wireless, broadcasting and other like forms of communication”, which provides
power to the Centre to set-up commission under the said subject. The power of Parliament to
legislate on the matters in Union List is superior to its own power to legislate on the Concurrent
List as well as of the State to legislate on those matters notwithstanding anything in the matters
mentioned in the latter two lists. In other words, if a matter is found to be included both in the
Union as well as in the State or Concurrent List, it will be read only in the Union List and not
in the other two. On the other hand, powers of the State Legislature to legislate with respect to
matters in the State List is subject to the power of the Parliament to legislate with respect to
matters in the Union and Concurrent List, it will be read in the latter two and not in the State
list. Thus, the Union List has a superiority or precedence over the State and Concurrent Lists.
5.1.2 Furthermore, there exists no real basis for setting up a commission of inquiry as the mere
media reports can’t be considered as the substantial proof against the Central government for
the use of the spyware. There is no other material on record to confirm the truth or otherwise
of the statement made in the newspaper. This Court in a series of decisions has repeatedly held
that the newspaper item without any further proof is of no evidentiary value. The said principle
laid down has thereafter been taken note in several public interest litigations to reject the
allegations contained in the petition supported by newspaper report.72 It would be appropriate

71
S.M. Krishnan v. State of Tamil Nadu, (1982) 95 LW (JS) 61.
72
Ghanshyam Upadhyay v. State of U.P., (2020) 16 SCC 811: (2020) 4 SCC (Cri) 10 : 2020 SCC OnLine SC
658.

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to notice the decision in Kushum Lata v. Union of India73 wherein it is observed that the media
reports don’t constitute evidence.
5.1.3 Furthermore, the setting up the commission is purely politically motived as the present
government in the State of Riverdale has some alleged discontent and disagreement with the
modus operandi of the current Central Government.74 Thus, even if commission proceeded
with the inquiry there are high chances that the report will be of biased nature. This report if
published will create uproar among people against the central government. Moreover, the
contention made by the respondent that the petitioner is using the alleged software to target
their ministers lack the evidentiary value.75 It is clear that the respondents are clearly taking
undue advantage of official machinery to achieve political objects and to victimise the political
rivals.
5.1.4 It is humbly submitted before this Hon’ble Court that for the above reasons this Court
should declare that the current setting up of the commission by the respondent has no basis to
exists.
5.2 THAT THE REPORT OF THE COMMITTEE WILL INTERVENE WITH THE
PROCEEDING OF THE COURT
5.2.1 It is most humbly submitted before this Hon’ble Court that the report that is to be
submitted by the commission will intervene the proceeding and judgment of the Supreme
Court. It’s beyond the purview of the State to appoint a Commission involving the matter of
national importance. No parallel enquiry can be constituted on the matter already pending in
the Supreme Court unless the Supreme Court directs the judicial enquiry for the same. In P.V.
Jagannath Rao v. State of Orissa76, a question arose before the Supreme Court whether the
inquiry instituted by the government related to the same matter which was the subject of a civil
suit pending in the first appeal before the High Court, and whether it amounted to the usurpation
of the functions of courts of law. It was contended before the court that a commission of inquiry
could not, therefore, be appointed in these circumstances. The act of State of Riverdale by
appointing a Commission of Inquiry under a former Judge of the Hon’ble Supreme Court and
a former Chief Justice of the State High Court77 to enquire into and report on inter alia the
reported interception and the possession, storage and use of information collected through

73
Kushum Lata v. Union of India, (2006) 6 SCC 180.
74
Moot Proposition, Para 20.
75
Ibid.
76
P.V. Jagannath Rao v. State of Orissa, AIR 1969 215.
77
Moot Proposition, Para 20.

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interception should be held unconstitutional and as its report will affect the final decision of
the Hon’ble court.
5.2.2 Judiciary of the nation is supreme and its judgment is binding on all the subordinate
authorities. The steps taken by the govt. of Riverdale overrides the power of the Hon’ble
Supreme Court. The act of State of Riverdale by appointing a commission for enquiry in the
said matter of national security clearly disrespects the authority of the court as the matter is
already pending and it’s at the sole discretion of the judiciary whether it wants to appoint the
commission or not.
5.2.3 Furthermore, even if the Commission is allowed to inquire in the said matter and if it
publishes the report before the judgement of the court, then the credibility of the decision of
the Court will be under a great suspicion. And since the present government in State of
Riverdale is in disagreement with the Central Government78 there are high possibility that the
report published will be biased in nature and will be against the present Central Government
which would ultimately create a public uproar and law and order throughout the territory of
Azeroth will be disrupt. Thus, the parallel investigation and enquiries conducted by the state
of Riverdale would prima facie impede and derail the judgement of the court.

78
Ibid.

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PRAYER

WHEREFORE it is prayed, in the light of the issue raised, arguments advanced and authorities
cited, it is most humbly and respectfully prayed that this Hon’ble Apex Court may be pleased
to adjudge, hold and declare that:

1. The Petition(s) filed before the Court is maintainable.

2. The surveillance by the state is an invasion of privacy of the citizens and also in
violation of Freedom of Speech and Expression.
3. The Hon’ble Court may appoint monitored Special Investigation Team to investigate
the current situation in respect of Kimetsu spyware.
4. The State should furnish an affidavit stating the use/non-use of the software.
5. Fundamental Duties should be made enforceable on the grounds of Patriotism and
Nationalism; Nationalism be declared as the Basic Structure of the Constitution.
6. The State of Riverdale has no authority to appoint Commission of Inquiry.

AND/OR
Pass any other Order, Direction or Relief that it may deem fit in the best interests of
Justice, Fairness and Good Conscience. For this act of kindness, the Petitioner(s) shall
duty bound forever pray.

All of which has been respectfully submitted.

30-10-2021 Sd/-
(Counsel for Petitioner(s))

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