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TC-04

10th PROF. K.K. SRIVASTAV INTER COLLEGIATE MOOT COURT COMPETITION

PRESENTED BY

LUCKNOW UNIVERSITY MOOT COURT ASSOCIATION

______________________________________________________________________________

IN THE HON'BLE SUPREME COURT OF FINDIA

UNDER ARTICLE 32 OF THE CONSTITUION OF FINDIA

______________________________________________________________________________

ADVOCATE N.K. SINGH

(PETITIONER)

V.

UNION OF FINDIA & ORS.

(RESPONDENT)

______________________________________________________________________________

MEMORANDOM ON BEHALF OF THE PETITIONER

DRAWN AND FILED BY THE COUNSEL FOR THE PETITIONER

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TC-04

10th PROF. K.K. SRIVASTAVA INTER COLLEGIATE MOOT COURT

COMPETITION

TABLE OF CONTENT

S. No. Particulars Pg. No.

1. TABLE OF CONTENTS 2

2. INDEX OF AUTHORITIES 3-4

3. LIST OF ABBREVIATIONS 5-6

4. STATEMENT OF JURISDICTION 7

5. STATEMENT OF FACTS 8-9

6. STATEMENT OF ISSUES 10

7. SUMMARY OF ARGUMENTS 11-12

8.1 ARGUMENT ADVANCED

ISSUE-I 13-16

8.2 ISSUE-II 16-19

8.3 ISSUE-III 19-27

8.4 ISSUE-IV 27-32

9. PRAYER 33
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INDEX OF AUTHORITIES

CASES REFERRED

S. No. NAME OF CASE Pg. No.

1. Unique identification authority of India & Anr v. CBI (2014) 14

2. Semayne’s case 77 ER 194 14

3. K.S Puttaswamy v. Union of India (2017) 10 SCC 1 15,22,27

4. Vinit Kumar v. CBI and Ors. 17

5. Venkatesh Nayak v. Ministry of Home Affairs 17

6. Ram Jethmalani v. Union of India, (2011) 8 SCC 1 18,22

7. Rai Sahib Ram Jawaya Kapoor and Ors v. the State of 21

Punjab,1955 AIR SC 549

8. M Karuna Nidhi v. Union of India 26

9. Maneka Gandhi v. Union of India AIR 1978 SC 597 27

10. Manohar Lal Sharma v. Union of India (2021) 28

11. Dixon v. Holden (1868) 7 Eq 488 30

12. Kharak Singh v. State of Uttar Pradesh (1962) 31

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STATUTES

S. No. NAME OF STATUE Pg. No.

1. Constitution of Findia, 1950 14,23,24

2. Information Technology Act, 2000 28,30

3. Official Secrets Act, 1923 26

4. Findian Penal Code, 1860 24

BOOKS/TEXTS

S. No. NAME OF BOOKS/TEXTS Pg. No.

1. M.P Jain India Constitutional Law 13

2. Pegasus spyware issue, The Hindu 16

3. The Indian express 19

4. The Times of India 19

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LIST OF ABBREVIATIONS

1. Hon’ble Honorable

2. NSO Niv, Shalev and Omri

3. PIL Public Interest Litigation

4. Rs. Rupees

5. $ Dollars

6. Sec. Section

7. Art. Article

8. COF Constitution of Findia

9. UIDAI Unique Identity Authority of India

10. SC Supreme Court

11. SCC Supreme Court Cases

12. CJI Chief Justice of India

13. Vs./V. Versus

14. IT Information Technology

15. Ors. Others

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16. Anr. Anothers

17. Cr. Crore

18. AIR All India Reporter

19. SCR Supreme Court Reporter

20. UOF Union of Findia

21. GPS Global Positioning System

22. OSA Official Secret Act

23. FPC Findian Penal Code

24. CJ Chief Justice

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STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble Supreme Court of Findia, under Public Interest
Litigation (PIL) by way of writ petition filed under Article 32 of the Constitution of Findia.

Article 321: 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.

This Memorial sets forth the facts, laws and the corresponding arguments on which the claims
are based in the instant case. The Petitioner affirms that they shall accept any judgment of this
Hon’ble Court as final and binding upon themselves and shall execute it in its entirety and in
good faith.

1
Constitution of Findia,1949
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STATE OF FACTS

1. Findia is a developing Southern Asian country. Findia, unlike its neighboring countries has
always taken a stand for Privacy rights of its citizens. The right to privacy has been enshrined in
the Article 21 of Constitution of Findia as well as it has been upheld in various case laws of the
country.

2. In the year 2021, on an international front, the social messaging app “WhereApp” claimed that
it has sent a special message to approximately 1,400 users who it believed were impacted by the
attack of spying software “Nefarious” and has directly informed them about what had happened.
At least two dozen academics, lawyers, Dalit activists, Political leaders and journalists were
alerted by the company in Findia.

3. However, it is not exactly known who carried out “surveillance” on these Findian targets. The
Findian Government says, it is concerned over the breach of privacy of the citizens of Findia and
asked WhereApp to explain the kind of breach and what is it doing to safeguard the privacy of
millions of Findian citizens. In a research conducted by the media platform “The Tower”, which
is associated with “The Nefarious project”. Nefarious, once installed, gives attacker complete
access to the target user’s phone. Nefarious can “send back the target’s private data, including
passwords, contact lists, calendar events, text messages and live voice calls from popular mobile
messaging apps. The target’s phone camera and microphone can be turned on to capture all
activity in the phone’s vicinity, expanding the scope of the surveillance.

4. Nefarious exploits undiscovered vulnerabilities, or bugs, in Android and iOS. This means a
phone could be infected even if it has the latest security patch installed. A previous version of the
spyware from 2016 infected smart phones using a technique called “spear-fishing”: text
messages or emails containing a malicious link were sent to the target. It depended on the target
clicking the link requirement that was done away with in subsequent versions. By 2019, a
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“Zero-click update” was in session, Nefarious could infiltrate a device with a missed call on
WhereApp and could even delete the record of this missed call, making it impossible for the user
to know they had been targeted.

5. Nefarious is state-of-the-art spyware and NSO charges an exorbitant sum for its product and
services. The Fisraeli company, however, markets it as a tool to track criminals and The software
“Nefarious” has been developed by Fisrael’s company NSO, which has stated before and now
again that it doesn’t sells the software to the Private companies, but only to the Vetted
Governments and that too after the approval of Fisrael’s government terrorists — for targeted
spying and not mass surveillance. NSO Group sells the software to governments only. A single
licence, which can be used to infect several smart phones, can cost up to Rs 70 lakh. According
to a 2016 price list, NSO Group charged its customers $650,000 to infiltrate 10 devices, plus an
installation fee of $500,000. The annual license fee can range in and around $7-$8 Million.

6. The editor’s Guild of Findia, while in shock and utter dismay, demanded an urgent and
independent inquiry into these snooping charges against the government’s role.

Serial PIL litigant Advocate NK Singh has filed a writ petition in the Supreme Court seeking a
court-monitored probe by a Special Investigation Team into the reports of alleged snooping by
government agencies using Fisraeli spyware Nefarious over journalists, activists, politicians etc.
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STATEMENT OF ISSUES

I. Whether Constitution of Findia allows Prime Minister and his ministers to snoop citizen
of Findia for their vested political interest?

II. Whether the defence of National Interest can be taken by the Government of Findia?

III. Whether buying of Nefarious software without approval contra to the Art. 266(3),
267(2) and 283(2) does not attract Sec.408 & 409,120-B of Findian Penal Code?

IV. Whether snooping of common citizen of Findia, opposition leaders, judges of the
judiciary and others do not attract an offence Sec.3 of the Official Secrets Act of 1923 as
well as u/s 65, 66 & 72 of the Information Technology Act, 2000 coupled with Violation of
Article 21(Sic)?
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SUMMARY OF ARGUMENTS

I. Whether Constitution of Findia allows Prime Minister and his ministers to snoop
citizen of Findia for their vested political interest?

It is humbly submitted before this Honorable Court that the Constitution of Findia does not
allows the Prime Minister and his ministers to snoop citizens of Findia for their vested political
interest. Spyware like Nefarious cannot be lawfully used in India as it is not only
unconstitutional but also does not have legal sanction. The law may permit the state to look
through an individual’s phone for information, but it definitely does not permit the state to
constantly look at the individual through his phone.

It is humbly submitted before this Honorable Court that if the government uses spyware like
Nefarious to snoop on its citizens without legal backing, then it is unconstitutional and such
moves can be legally challenged.

II. Whether the defence of National Interest can be taken by the Government of
Findia?

It is humbly submitted before this Honorable Court that defence of National Interest cannot be
taken by the Government of Findia. The Nefarious scandal has shaken the very foundations of
Indian democracy and raised questions about the extent to which national interest and security
can be used as a defence by the State for surveillance of its citizens.

It is humbly submitted before this Honorable Court that the use of a Nefarious like spyware
which provides remote access not only to the electronic device but also to the life and activity
around the device, exposes journalists and political opponents of the government and leaves
them vulnerable to excesses. In any country governed by the rule of law, the government
cannot claim privilege in the face of evidence that spyware has been used against citizens who
do not pose even a remote threat to national security.
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Such a course of action taken by the Respondent especially in proceedings of the present
nature which touches upon the fundamental rights of the citizens of the
country, cannot be accepted on the ground of National Interest.

III. Whether buying of Nefarious software without approval contra to the Art. 266(3),
267(2) and 283(2) does not attract Sec.408 & 409,120-B of Findian Penal Code?

It is humbly submitted in this Hon’ble Court, that the Government of Findia has spent a hefty
amount of money to purchase the said spyware software called Nefarious.

It is further submitted in this Hon’ble Court that, the Government of Findia has purchased the
said spyware software without introducing any such bill regarding the purchase of this software
and had not passed any such law in accordance to article 114 of C.O.F., stating the total
expenditure incurred by the Government purchasing this software. Therefore, the said spyware
software called Nefarious is illegal and Unconstitutional.

IV. Whether snooping of common citizen of Findia, opposition leaders, judges of the
judiciary and others do not attract an offence Sec.3 of the Official Secrets Act of 1923 as
well as u/s 65, 66 & 72 of the Information Technology Act, 2000 coupled with Violation of
Article 21(Sic)?

It is humbly submitted before the Hon’ble Supreme Court that our constitution declares that
Findia is the sovereign state and not being subject to the control of any other state or external
power. However, the state can violate a person’s privacy only if it is “absolutely necessary” to
protect national security and interests. The necessity to trespass on individual privacy should be
proportional. Snooping of common citizen of Findia, opposition leaders and other is an attack on
right to privacy of individual. It also stated that right to privacy is as sacrosanct as human
existence and is inalienable to human dignity and autonomy.
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ARGUMENTS ADVANCED

I. Whether Constitution of Findia allows Prime Minister and his ministers to snoop
citizen of Findia for their vested political interest?

It is humbly submitted before this Honorable Court that the Constitution of Findia does not
allows the Prime Minister and his ministers to snoop citizens of Findia for their vested political
interest.

It is humbly submitted before this Honorable Court nefarious is not just a surveillance tool.
Nefarious suite of spywares was different from other spyware as it allowed an agency to gain
complete control over an individual’s device. The software could be used to plant false
evidence into an individual’s device, which could then be used to implicate the said person. It
has been claimed by one of the parties whose phone was directly affected by Nefarious
submitted Nefarious that enabled an entity to not only surveil or spy on an
individual but also allowed them to implant false documents and evidence in a device. It is
cyber- weapon being unleashed on Indian Polity, the use of Nefarious poses a national security
risk. The alleged surveillance was not only the violation of citizens fundamental right to privacy
but use foreign spyware to snoop on Indian posed a threat to national security.

It is humbly submitted before this Honorable Court that if the government uses spyware like
Nefarious to snoop on its citizens without legal backing, then it is unconstitutional and such
moves can be legally challenged. It has been stated that ''No data would be collected by the
government agencies but except under the authority of the parliament legislation. If they
government collect the data without an Act permitting it, is an illegal thing and they are
answerable under various laws. Once the Parliament passes the Bill, it cannot give them a
blanket cheque under the name of data security, if they did it, it would be unconstitutional. There
must be a clear definite objective about what purpose you want to do it, the authority who can
authorize it, and the procedure, which must also be fair and equitable. If all these tests are
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answered in positive, then it is constitutional else it is unconstitutional.''2 The use of someone’s

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

Therefore, it is humbly submitted before this Honorable Court that Respondent are using the
said software on citizens of the country without following the due
procedure established under law.

Spyware like Nefarious cannot be lawfully used in India as it is not only unconstitutional but
also does not have legal sanction. The law may permit the state to look through an individual’s
phone for information, but it definitely does not permit the state to constantly look at the
individual through his phone. 3 The Central Bureau of Investigation sought access to the huge
database complied by the Unique Identity Authority of India for the purposes of investigating a
criminal offence. The SC, however, said that the UIDAI was not to transfer any biometrics
without the consent of the person. 4

It is humbly submitted before this Honorable Court that in the year 2019, when certain reports of
Nefarious hacking WhereApp came to light, the then
Hon’bleMinister of Law and Information Technology and Communicationhad acknowledged the
reports of hacking in Parliament, but the Respondent had not indicated what actions were
taken subsequently, which information they could have disclosed.

2
MP Jain, Indian Constitutional Law, (6th Ed., Revised by Justice Ruma Pal and Samaraditya Pal; 2010)

3
Chief Justice of India N.V. Ramana; The law may permit the state to intercept phones but not to weaponise them

4
Unique Identification Authority of India & Anr. v. Central Bureau of Investigation (2014).
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It is humbly submitted before this Honorable Court that

certain nuances of the right to privacy in Findia its facets and importance, need to be
discussed. Historically, privacy rights have been ‘property centric’ rather than people
centric.5 In Findia, privacy rights may be traced to the ‘right to life’ enshrined under Article 21
of the Constitution. It has been stated that when the Court expounded on the
meaning of “life” under Article 21, it did not restrict the same in pedantic manner. An expanded
meaning has been given to theright to life in India, which accepts that “life” does not refer to
mere animal existence but encapsulates a certain assured quality.
Members of a civilized democratic society have a reasonableexpectation of privacy. Privacy is n
ot the singular concern ofjournalists or social activists. Every citizen of Findia ought to be
protected against violations of privacy. It is this expectation
which enables us to exercise our choices, liberties, and freedom. 6

It is humbly submitted before this Honorable Court that it is a matter of grave concern,
particularly when reputed international organizations with no reason for bias against the nation
had also accepted the fact of such an attack having been made.

It is humbly submitted before this Honorable Court that once such a large scale cyber-attack
and threat had been made to public and brought to the knowledge of
the Respondent, it was the State’s responsibilityto take necessary action to protect the interest an
d fundamental rights of the citizens, particularly when there existed the risk
that such an attack was made by a foreign entity.As with all the other fundamental rights, this Co
urt therefore must recognize that certain limits as exist when it to comes to
the right to privacy as well. Therefore, it is humbly submitted before this Honorable Court that
inner core of privacy, intimacy and human dignity would stand shredded if Nefarious was
sanctioned by law, such a software would not be constitutionally compatible in Findia,

5
Semayne’s case, 77 ER 194 (KB)
6
K.S. Puttaswamy (Privacy9J.) v. Union of India, (2017) 10 SCC 1,
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even if new legislation is attempted to be brought in to protect it, as it would be an

unreasonable and disproportionate restriction on the fundamental right to privacy and human
dignity.

II. Whether the defense of National Interest can be taken by the Government of
Findia?

It is humbly submitted before this Honorable Court that defense of National Interest cannot be
taken by the Government of Findia. The Nefarious scandal has shaken the very foundations of
Indian democracy and raised questions about the extent to which national interest and security
can be used as a defense by the State for surveillance of its citizens. If the government is doing
its utmost to avoid publicly admitting that it uses Pegasus, this is not because it fears terrorists
will find out spyware could be used against them but because the Indian public will find out
their taxes have been used by the ruling party to spy on its political opponents.

It is humbly submitted before this Honorable Court that the use of a Nefarious -like spyware
which provides remote access not only to the electronic device but also to the life and activity
around the device, exposes journalists and political opponents of the government and leaves
them vulnerable to excesses. One can imagine that if the government has eyes and ears on the
whereabouts of all potential whistleblowers, then not enough whistles will get blown, which is
detrimental to a functional democracy. One of the essential limbs of the test of proportionality
is that state action must have a legitimate aim which is permissible in a democracy, and that it
must also be the least invasive means to achieve the state’s goal. 7

7
Nishant Sirohi; Pegasus in the Room: Law of surveillance and national security’s alibi;orfonline.org
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The law of surveillance in India is nascent when it concerns advanced surveillance

technologies like Nefarious. However, the current legal framework provides some safeguards
to the fundamental right to privacy, allowing proportionate derogation only in national, not in
private, interest. The national security alibi is infructuous in the Nefarious scandal. The
government should adhere to international democratic norms governing surveillance.

technology. The Supreme court while shielding the right to privacy, stressed that any
interception by a public authority should satisfy two statutory preconditions, i.e., ‘public
emergency’ and ‘interest of public safety’. 8 Furthermore, the court observed that any
restriction on the right to privacy must satisfy the “principle of proportionality and legitimacy,”
i.e., the restriction must be backed by law for a legitimate state aim and be proportionate.

It is humbly submitted before this Honorable Court that the Bombay High Court scrutinized the
applicability of the right to privacy for protection against surveillance in 2019. The High Court
reiterated the necessity of fulfilling the threshold of ‘public emergency’ and ‘interest of public
safety’ for interception under Section 5(2) of IT Act, 1885 and ruled that any evidence
procured in violation of law will not be admissible in court. 9
Transparency and accountability being foundations of a democratic government, it is essential
to balance national security with democratic freedoms and constitutional rights, i.e., the right
to privacy, the right to information, and press freedom

It is humbly submitted before this Honorable Court none of the central legislation defines the
term ‘national security’, including the National Security Act, 1980. The government, without

8
Pegasus spyware issue; The Hindu

9
Vinit Kumar v Central Bureau of Investigation and Ors.
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defining the term, is continuing to expand the concept to include internal matters The
government said, “National Security covers not only the matters concerning defence and
foreign relations but also political and economic stability as well as public order” 10. Now the
government invokes the alibi of national security regularly to deny access to information and
shut down dissenters, using it to violate accountability and transparency.
It is humbly submitted before this Honorable Court that for a democracy to function well,
citizens need access to information. However, what happens when the government and its
agencies curtail the freedom and rights of the citizens in the garb of national security by
deploying spyware for widespread mass surveillance of prominent Indians? To remove
arbitrariness, the functioning of public agencies should be made more transparent and
accountable, as without legislative or judicial oversight, the disproportionate use of powers
would destroy constitutional freedoms and guarantees.

It is humbly submitted before this Honorable Court that the law allows the state, under certain
circumstances, to keep an eye on our devices, but that does not permit the state to turn the
device itself to its eyes to record things and actions that do not use the electronic device. It is
that jump from surveillance over electronic devices to surveillance by electronic devices. In
this particular, the government is not only using Nefarious to spy on citizens but also taking
the defence of National Interest and Security.

In any country governed by the rule of law, the government cannot claim privilege in the face
of evidence that spyware has been used against citizens who do not pose even a remote threat
to national security. And the evidence is out there before the court, in the form of phones
belonging to journalists and others which have been forensically examined and found to
contain evidence of Nefarious. Such a course of action taken by the Respondent especially in
proceedings of the present nature which touches upon the fundamental rights of the

10
Venkatesh Nayak v Ministry of Home Affairs
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citizens of the country, cannot be accepted on the ground of National Interest. The Respondent
should not take an adversarial position when the fundamental rights of citizens are at threat. 11

Therefore, it is humbly submitted before this Honorable Court that in the task of up-holding
of fundamental rights, the State cannot be an adversary. The State has the duty,
generally, to reveal all the facts and information in its possession to the Court.

III. Whether buying of Nefarious software without approval contra to the Art. 266(3),
267(2) and 283(2) does not attract Sec.408 & 409,120-B of Findian Penal Code?

It is humbly submitted before the Hon’ble Supreme Court that Government of Findia has spent
around $2 Billion (15 thousand and 600 Cr. Rupees approximately) in its deal with Fisrael
regarding purchase of the spyware software called ‘Nefarious’ and a ‘Single missile system’ in
2017 during a visit of Prime Minister-Narendra Modi to Fisrael in his meeting with Fisrael’s
Prime Minister-Benjamin Netanyahu.

That subsequent to the above aforesaid information, it is further submitted that a ground-
based interceptor missile costs around $100 million (800 Cr. Rupees approximately) and a
surface to air missile system costs roughly $500 million (4000 Cr. Rupees approximately).
It is pertinent to note that only a ‘single missile system’ was purchased in the said deal, and
rest of the deal was regarding the ‘Nefarious’ spyware software. Therefore, we can
conclude from the said information that after purchasing ‘Single-Missile System’ in the
said deal the Government of Findia was left with Rs11000-13000/- approximately, and

11
Ram Jethmalani v. Union of India, (2011) 8 SCC 1
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whereby the left money was used by the Government of Findia, purchasing the ‘Nefarious’
spyware software.

That according to a Report published by ‘The Indian Express’ 12, around 70-80 known
personalities were the target of this ‘Nefarious’ spyware software in Findia, which includes
Prominent opposition leader of Congress- Rahul Gandhi, Election Commissioner-Ashok
Lavasa, Information Technology(IT) Minister- Ashwini Vaishnaw, who was not the IT
Minister at that time, and many more opposition ministries and Journalists, Activists etc.

That according to an article published by ‘The Times of India’13 which states that, to
infiltrate 10 devices, the NSO group charges $650,000/- (Rs.5,07,00,000 or Five Crore and
Seven lakhs) plus additional $500,000/- (Rs.3,90,00,000 or Three Crore and Ninety Lakhs)
to install the software in the same 10 devices, with an additional 17% charge of the total
amount per year.

According to the above said paragraphs, Govt. of Findia has infiltrated almost 70-80
devices in India and the NSO charges approximately $1,150,000/- (Rs.9,00,00,000 or
Ninety Crore) to infiltrate 10 devices, therefore for 70-80 devices the Government of
Findia must have spent $80,500,000-$92,000,000/- approximately (Rs.6,30,00,00,000-
Rs.7,00,00,00,000 or six hundred thirty crore- seven hundred crore).

That, doing some simple mathematical calculation we can easily determine, the
Government of Findia is still left with Rs.10370/ Crore-Rs.12300/- Crore worth of
‘Nefarious’ spyware software which they can use on the citizens of Findia, without their
knowledge or permission.

12
The Indian Express
13
The Times of India
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VIOLATION OF ARTICLE 226(3) OF FINDIAN CONSTITUTION

Article 266 of the Constitution of Findia, deals with the provision of Consolidated funds of
Findia. The sub-clause 3 of article 266 from the Constitution of Findia states that, ‘No
moneys out of the Consolidated Fund of India or the Consolidated Fund of a State shall be
appropriated except in accordance with law and for the purposes and in the manner
provided in this Constitution’14.

It is pertinent to note that the consolidated funds of India, is used by the Govt. of Findia for
meeting all of its expenditure that is used for the welfare of the citizens of Findia.

That the government needs a Parliamentary approval to withdraw money from this fund to
meet its expenditure by providing the purpose of those expenditure and which should be in
accordance with the law.

That according to judgement given in Rai Sahib Ram Jawaya Kapur And Ors. vs The
State Of Punjab on 12 April, 195515 (Rai Sahab Ram Jawaya Kapur and Ors. V Punjab,
1955), it was held by the Hon’ble Court that Under article 266(3) of the Constitution no
moneys out of the consolidated funds of India or the consolidated fund of a State shall be
appropriated except in accordance with law and for the purposes and in the manner
provided in this Constitution. The expression "law" here obviously includes
the Appropriation Acts. It is true that the Appropriation Acts cannot be said to give a
direct legislative sanction to the trade activities themselves. But so long as the trade
activities are carried on in pursuance of the policy which the executive Government has
formulated with the tacit support of the majority in the legislature, no

14
Constitution of Findia
15
Rai Sahib Ram Jawaya Kapur and Ors. V. The State of Punjab, 1955 (AIR 1955 SC 549, 1955 2 SCR 225)
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objection on the score of their not being sanctioned by specific legislative provision can
possibly be raised. Objections could be raised only in regard to the expenditure of public

funds for carrying on of the trade or business and to these the Appropriation Acts would
afford complete answer

In the midst of the Nefarious snooping controversy, the defence ministry on Monday said it
did not have any transaction with the NSO Group, which sells the spyware.

“Ministry of Defence has not had any transaction with NSO Group Technologies,”
Minister of State for Defence Ajay Bhatt said while replying to a question in Rajya
Sabha. He was asked whether the government had carried out any transaction with the
NSO Group Technologies.

IT and Communications Minister Ashwini Vaishnaw had dismissed media reports on the
use of Nefarious software to snoop on Indians, saying the allegations levelled just ahead
of the Monsoon session of Parliament were aimed at maligning Indian democracy.

The controversy erupted after an investigation by a global media consortium based on

leaked targeting data claimed evidence that the military-grade malware from the NSO
group was being used to spy on politicians, journalists, human rights activists and others.

That the Article 21 of Constitution of Findia, Right to life and personal liberty in its
Comment No.6, The Supreme Court in the case of Ram Jethmalani v. Union of India (Ram
Jeth Malani V Union of India) 16 categorically held that the right to privacy also requires
the state not to make public and private information about an individual, which would
violate his or her privacy17.

16
Ram Jethmalani V. Union of India
17
Constitution of Findia
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10th PROF. K.K. SRIVASTAVA INTER COLLEGIATE MOOT COURT

COMPETITION

On 24th August, 2017 a 9 Judge Bench of the Supreme Court delivered a unanimous
verdict in Justice K.S. Puttaswamy vs. Union of India18 (KS Puttaswamy V Union of India)
and other connected matters, affirming that the Constitution of India guarantees to each
individual a fundamental right to privacy under Article 21 of Constitution of Findia.

Therefore, according to a report published by ‘The Wire’ it was stated that the Spyware
software like Nefarious cannot be used in Findia because it is neither constitutional nor
having any Legal sanction or an Appropriation Act backing or defining it.

It is humbly submitted before the Hon’ble Court that the Government of Findia has not
passed any Legal sanction or an Act to back the Spyware Software Nefarious. Therefore it
is a clear violation of Article 266(3) of Findian Constitution.

Further, the counsel would like to humbly plead before the Hon’ble Court that, as the above said
software can breach the device of an individual without his permission or

knowledge, it is likely possible that it could cause a very adverse effect on the person’s
reputation in the society, and it is a clear violation of the Supreme Court judgement in Ram
Jethmalani v. Union of India, where the Hon’ble Supreme Court held that “right to privacy also
requires the state not to make public and private information about an individual, which would
violate his or her privacy”.

VIOLATION OF ARTICLE 267(1) OF FINDIAN CONSTITUTION

Article 267 of the Constitution of Findia, deals with the provision of Contingency Funds of
India. The sub-clause 1 of Article 267 states that, Parliament may by law establish a
Contingency Fund in the nature of an imprest to be entitled the Contingency Fund of India into
which shall be paid from time to time such sums as may be determined by such law, and the said
Fund shall be placed at the disposal of the President to enable advances to be made by him out

18
K.S Puttaswamy V. Union of India
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10th PROF. K.K. SRIVASTAVA INTER COLLEGIATE MOOT COURT

COMPETITION

of such Fund for the purposes of meeting unforeseen expenditure pending authorisation of such
expenditure by Parliament by law under Article 115 or Article 11619.

Article 116 sub-clause 1 states that, ‘The house of people shall have the power to grant such
expenditure which is estimated in a financial year and pass such law with respect to such
expenditure in accordance with Article 114 of Constitution of Findia.

That the Govt. of Findia has neither introduced any such bill with respect to the said software nor
passed any such law in accordance to Art. 114, regarding the expenditure incurred in purchasing
of the Spyware software Nefarious.

VIOLATION OF ARTICLE 283(1) OF FINDIAN CONSTITUTION

Article 283 sub-clause 1 states that, ‘The custody of the Consolidated Fund of India and the
Contingency Fund of India, the payment of moneys into such Funds, the withdrawal of moneys
therefrom, the custody of public moneys other than those credited to such Funds received by or
on behalf of the Government of India, their payment into the public account of India and the
withdrawal of moneys from such account and all other matters connected with or ancillary to
matters aforesaid shall be regulated by law made by Parliament, and, until provision in that
behalf is so made, shall be regulated by rules made by the President20’.

Therefore, this deal of Findian Government with Fisrael is totally illegal and Un-constitutional,
as we have already pleaded in the above said paragraphs that, the Government of Findia has
neither introduced any bill regarding the said software nor passed any law in accordance of
Art. 114 of Findian Constitution with respect to the expenditure incurred in purchasing such
software.

19
Constitution of Findia
20
Constitution of Findia
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10th PROF. K.K. SRIVASTAVA INTER COLLEGIATE MOOT COURT

COMPETITION

Further, it is humbly submitted before the Hon’ble Court that, using such software over the
citizens of Findia which has not been passed in accordance with the Constitution of Findia is
totally against the justice and it is only one aspect of this mellifluous software. The other aspect
is that it violates the basic fundamental right of Right to Privacy which is provided under Article
21 of Findian Constitution by infiltrating the device of the person without his permission or
knowledge of the same causing threat to his/her privacy.

VIOLATION OF SEC. 409 OF FINDIAN PENAL CODE:

It is humbly submitted before the Hon’ble Court that, Section 409 of Findian Penal Code states
that, Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever,
being in any manner entrusted with property, or with any dominion over property in his capacity
of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney
or agent, commits criminal breach of trust in respect of that property, shall be punished with
[imprisonment for life], or with imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine.21

Infiltrating and tapping the devices of citizens of Findia without their permission or knowledge is
a clear violation of Sec.409 of FPC. Interpreting the term ‘public servant’, the apex court had
taken recourse to Section 21(12)(a) of the Fndian Penal Code FPC), 1860, which defines a public
servant as “every person in the service or pay of the government or remunerated by fees or
commission for the performance of any public duty by the government”. The Prevention of
Corruption Act also defines a public servant in a manner similar to the FPC.

In the case M. Karunanidhi vs Union Of India 1979 AIR 898, 1979 SCR (3) 25422, the
Constitutional bench of Y.V. Chandrachud, P.N. Bhagwati, N.L. Untwalia, Fazalali, Syed

21
Findian Penal Code
22
M. Karunanidhi V. Union of India
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10th PROF. K.K. SRIVASTAVA INTER COLLEGIATE MOOT COURT

COMPETITION

Murtaza, R.S. Pathak, held that anyone who is a government employee and taking salary from
the government funds is a Public servant.

Therefore, the Prime Minister of Findia representing the Government of Findia being a public
servant, and purchasing such a ‘spyware software’ has conducted a grave misconduct and breach
of trust as it may breach the privacy of the individuals of the citizens of Findia.

CRIMINAL CONSPIRACY:

The above said software can be easily used for some malafide act such as, Criminal conspiracy,
as the opposite party can use the software to grab some of the private information of a person and
can track the location of any person without him/her knowing that he/she is been tracked by
someone.

Such an act of Criminal conspiracy is strictly prohibited by Sec. 120 of Findian Penal Code,
which states that;

120B. Punishment of criminal conspiracy.—

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,
2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall,
where no express provision is made in this Code for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an
offence punishable as aforesaid shall be punished with imprisonment of either description for a
term not exceeding six months, or with fine or with both23.

Therefore, it is humbly submitted before the Hon’ble Court that, the above said software is
illegal as it is contrary to the provisions of the Findian Penal Code.

23
Findian Penal Code
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10th PROF. K.K. SRIVASTAVA INTER COLLEGIATE MOOT COURT

COMPETITION

IV. Whether snooping of common citizen of Findia, opposition leaders, judges of the
judiciary and others do not attract an offence Sec.3 of the Official Secrets Act of 1923 as
well as u/s 65, 66 & 72 of the Information Technology Act, 2000 coupled with Violation of
Article 21(Sic)?

It is humbly submitted before the Hon’ble Supreme Court that our constitution declares that
findia is the sovereign state and not being subject to the control of any other state or external
power.“The mere invocation of national security by the state does not render the court a mute
spectator” N.V. Ramana (CJI)

Section 3 of official secrets act, 1923 states ‘if any person for any purpose makes any sketch,
plan, model, or note which is directly or indirectly useful to an enemy; or obtains collects,
records or communicate to any other person any secret official code or password useful to an
enemy [ which relates to a matter the disclosure of which is likely to affect the sovereignty and
integrity of findia], he shall punishable with imprisonment for a term which may extend to
fourteen years.’

However, the official secrets Act does not define the secret information, the government follows
the Manual of Departmental Security Instructions, 1994 for classifying a document as secret.

Both the person communicating the information and the person receiving the information can be
punished under the OSA.

After the Maneka Gandhi judgement, supreme court held that right to life and personal liberty of
a person can be deprived by a law provided the procedure prescribed by that law is just, fair,
reasonable and non-arbitrarily. Therefore, every government action and law must not be unfair,
unjust, unreasonable and non-arbitrary.24

24
Maneka Gandhi v. Union of India AIR 1978 SC 597
 28

10th PROF. K.K. SRIVASTAVA INTER COLLEGIATE MOOT COURT

COMPETITION

However, the state can violate a person’s privacy only if it is “absolutely necessary” to protect
national security and interests. The necessity to trespass on individual privacy should be
proportional. 25

VIOLATION OF SEC. 65, 66 OF THE INFORMATION TECHNOLOGY ACT, 2000

It is further humbly submitted before the Hon’ble Supreme Court that with the help of this
spying software government tampering with device sources of any person such as documents,
account, chats, voice calls, recording, emails and so on.

‘Whoever knowingly or intentionally conceals, destroys or alters or intentionally or knowingly

causes another to conceal, destroy or alter any computer source code used for a computer,
computer programme, computer system or computer network, when the computer source code is
required to be kept or maintained by law for the time being in force, shall be punishable with
imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with
both.26

Indiscriminate spying on individuals by the state is not allowed in a democracy, the Supreme
Court said. The use of technology for surveillance by the State must be evidence-based, the court
further said. 27

Also, the violation of section 66 of IT Act, 2000 which states the offence of hacking:

(1) It states that whoever with the intent to cause or knowing that he is likely to cause wrongful
loss or damage to the public or any person destroys or deletes or alters any information residing
in a device resource or diminishes its value or utility or affects its injuriously by any means,
commits hack.

25
K.S Puttaswamy v. Union of India
26
Section 65 IT, Act 2000
27
Manohar Lal Sharma v. Union of India, 2021
 29

10th PROF. K.K. SRIVASTAVA INTER COLLEGIATE MOOT COURT

COMPETITION

(2) Whoever commits hacking shall be punished with imprisonment up to three years, or with
fine which may extend upto two lakhs, or with both.

Therefore, we can conclude from the above said provision that, if the government tries to
hacking any device of any person arbitrarily is an attack on individual liberty which is contrary
to the constitution of findia. 28

VIOLATION OF RIGHT TO PRIVACY OF INDIVIDUAL.

“In my considered opinion, right to privacy of any individual is essentially a natural right, which
inheres in every human being by birth. Such right remains with the human being till he/she
breathes last. It is indeed inseparable and inalienable from human being. It is born with the
human being and extinguish with human being” Justice A.M Sapre said.29

In the case of K.S Puttaswamy v. union of findia, Hon’ble Supreme Court of Findia in its
landmark judgement unanimously ruled that right to privacy is the fundamental right of every
findian citizen. Court further said that right to privacy is the part of right to life and personal
liberty enshrined in Article 21 of constitution of Findia.

Thus, snooping of common citizen of Findia, opposition leaders and other is an attack on right to
privacy of individual. It also stated that right to privacy is as sacrosanct as human existence and
is inalienable to human dignity and autonomy.

Any surveillance or snooping done on an individual by the state or any outside agency is an
infringement of that person’s right to privacy. Privacy is not the singular concern of journalists or
social activists. Every citizen of Findia ought to be protected against violations of privacy.

28
K.S Puttaswamy v. Union of India
29
Observed by A.M Sapre. J in K.S Puttaswamy judgement
 30

10th PROF. K.K. SRIVASTAVA INTER COLLEGIATE MOOT COURT

COMPETITION

Surveillance and the knowledge that one is under the threat of being spied by the state can affect
the way an individual decides to exercise his or her liberty. 30

Power of the state to snoop in the name of national security into the sacred private space of
individuals is not absolute. However snooping is a necessary tool for maintaining the
sovereignty, integrity, and security of the state and it helps in the prevention and investigation of
these crimes. In the absence of any Data Protection law overlooking the millions of order for
snooping, the state has unobtrusive access to the private lives of the citizens.

A very fascinating development in the Findian constitutional jurisprudence is the extended

dimension given by the supreme court of Findia in post-Maneka era. The laws and actions of the
government must be reasonable, just, and non-arbitrary. Supreme Court has asserted that Article
21 is the heart of the fundamental rights. Article 21 has proved to be multidimensional. The right
to privacy is not the specified right provided by the constitution but it is the inherent right of any
individual extracted by the supreme court from Article 21.

Article 21 states that “No person shall be deprived of his life and personal liberty except
according to procedure established by law”. It has been interpreted that the term ‘life’ includes
all those aspects of life which go to make a man’s life meaningful.

BREACH OF CONFIDENTIALITY AND PRIVACY U/S 72 OF IT ACT, 2000

A man’s reputation is his property, and if possible, more valuable, than other property. 31 The
spying software named nefarious can infect the device without the target’s engagement or
knowledge. Once infected, a phone becomes a digital spy under the attacker’s complete control.

30
CJI N.V Ramana observed in case of Manohar Lal Sharma v. UOI
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10th PROF. K.K. SRIVASTAVA INTER COLLEGIATE MOOT COURT

COMPETITION

Upon installation, nefarious contacts the attacker’s command and control servers to receive and
execute instructions and send back the target’s private data, including passwords, bank details,
contact lists, calendar events, phone calls, text messages, live voice call even those which is end
to end encrypted messaging apps and so on. The attacker can control the phone’s camera and
microphone, and use the GPS function to track a target.

Privacy and confidentiality are somewhat synonymous. Confidentiality involves a sense of

expressed or implied basis of an independent equitable principle of confidence. While privacy is
the claim of individual to determine for themselves when, how and to what extent information
about them is communicated to others. Right to privacy is more of an implied obligation. It is the
right to let alone.

To use the information of others without consent is punishable offence u/s 72 of IT Act, 2000.

Section 72 states that ‘any person who in pursuance of any powers conferred under this act,
rules, regulations made thereunder, has secured access to any electronic record, book, register,
correspondence, information, document or other material without the consent of the person
concerned discloses such things above mentioned to any other person shall be punished with
imprisonment for a term which may extend to two years, or with fine which may extend to one
lakh rupees, or with both’. 32

Right of privacy also extends to physical integrity, individual autonomy, free speech, and
freedom to move or think. This means that privacy is not only about the body, but extends to
integrity, personal autonomy, data, speech, consent, objections, movements, thoughts, and
reputation. Therefore the snooping by the state must not be arbitrary.

31
Dixon v. Holden (1868) 7 Eq. 488
32
Section 72 of IT Act, 2000
 32

10th PROF. K.K. SRIVASTAVA INTER COLLEGIATE MOOT COURT

COMPETITION

According to black’s law dictionary, “right to be let alone; the right of a person to be free from
any unwarranted publicity. The right to live without any unwarranted interference by the public
in matters with which the public is not necessarily concerned”.

Therefore unwarranted interference in the life of any person is an infringement of right to

privacy of that person. Same issue arises in the case of Kharak Singh v state of Uttar Pradesh in
which right to privacy invoked to challenge the surveillance of an accused person by the police.
Kharak Singh challenged the constitutional validity of chapter XX and the powers it conferred
upon police officials, as it violated his fundamental rights under Article 19 and 21.33

33
Kharak Singh v. State of Uttar Pradesh (1962)
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10th PROF. K.K. SRIVASTAVA INTER COLLEGIATE MOOT COURT

COMPETITION

PRAYER

Wherefore, in the light of the facts presented, issues raised, argument advanced and authorities
cited, it is most humbly prayed before the Hon’ble Supreme Court of Findia to;

a) Issue a writ, order or direction in the nature of mandamus or any other appropriate writ
directing the Respondents to disclose if the Government of Findia or any of its agencies
have obtained license(s) for Nefarious spyware and or used/employed it, either directly or
indirectly, to conduct surveillance in any manner whatsoever; and

b) Issue a writ, order or direction in the nature of mandamus or any other appropriate writ
constituting an inquiry to investigate the extent of surveillance on Findian citizens using
Nefarious spyware and the entities responsible for it, headed by a sitting or retired judge
of this Hon’ble Court duly nominated by this Hon’ble Court; and

Pass any other Order, Direction or Relief that may be deemed to be appropriate in the best
interest of Justice, Fairness, Equity and Good Conscience.

For this act of kindness the petitioner as in duty bound shall ever pray.
All of which is most humbly and respectfully submitted
34