6th national moot court competition,2023

6th national moot court competition,2023

Before the hon’ble supreme court of meluha

Writ petition no: _____/2023

(filed under article 32 of constitution of meluha)

-- In the matter of --

Hercules digital rights & ors …..petitioners

versus

Union of meluha …..respondent

Memorandum on the side of petitioner

Drawn and filed by the counsel for the petitioners

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Table of contents

Table of contents…………………………………………. 2

List of abbreviations……………………………………

Index of authority………………………………………

Statement of jurisdiction……………………………….

Statement of facts………………………………………

Issues presented………………………………………….

Summary of arguments………………………………….

Arguments advanced………………………………………

1) Whether the petitioners Hercules digital rights & ors can approach this hon’ble court under
art.32 of the constitution

1.1 public interest litigation can be filed against the union……….

1.2 breach of fundamental right…………
1.3 derivative of fundamental right……….
2)Whether the government of meluha breached the fundamental rights of privacy, freedom
of press guaranteed to citizens under the constitution.
2.1 meaning of right to privacy……………..
2.2 implication of right to privacy under article 21………
2.3 poseidon software is a threat to privacy………..
2.4 violation of basic structure…………
2.5 violation of freedom of press……….
Issue 3
3.1…………………….

Prayer…………………………………………………….

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List of abbreviations

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Index of authority
Case laws cited
S no Case title
1 Pucl & ors v. uoi & ors
2 Gideon v. Wain Wright

3 janata Dal v. H.S.Chowdry

4 bandhana Mukti Morchan v. UOI

5 M.C.Metha &Another v. UOI

6 Vineet Narain V. UOI

7 M.C. mehta & anr v. UOI

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Books,treatises & digest

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Statutes,legislations & international conventions

Essays,articles and reports

Constitutional provisions

Dictionaries referred

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Statement of jurisdiction

Before the hon’ble supreme court of judicature

New delhi

The hon’ble supreme court of justice has the jurisdiction to try, entertain and dispose of the
present case by virtue of article 321 under the constitution of meluha by filing a public
interest litigation.

The petitioner most humbly and respectfully submits before the jurisdiction of the present
case and accepts that it has the power and authority to preside over the present case

1
Article 32 in the constitution of meluha,1950

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

(1) The right to move the supreme court by appropriate proceedings for the enforcement of the rights
conferred by this part is guaranteed

(2) The supreme court shall have power to issue directions or orders or writs,including writs in the nature
of habeas corpus, mandamus , prohibition, quo warranto and certiorari, whichever may be
appropriate,for the enforcement of any of the rights conferred by this part

(3) Without prejudice to the powers conferred on the supreme court by clause (1)and (2), parliament may
by law empower any other court to exercise within the local limits of its jurisdiction all or any of the
powers excercisable by the supreme court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwiseprovided by this
constitution.

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Statement of facts

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

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9. Poseidon perhaps the most powerful piece of spyware ever developed, by a private
company. Once it infiltrates a mobile it can turn into a 24 hours surveillance device without
the knowledge of its user. It can copy, manipulate messages, send, receive or harvest photos
and record calls. Besides it can secretly have access to the mobile’s camera, activate the
microphones to record conversations as well as can potentially pin point the user’s current as
well as past GPS location.
10. Poseidon infections can be achieved through a technique known as zero click attacks
which does not require any interaction from the mobile’s owner in order to succeed. Its
presence in the mobile device is very difficult to ascertain. Poseidon uses some bypassing
techniques in order to decrypt messages on end-to-end encrypted messaging apps. Even a
missed call through such vulnerable apps is enough to break into one’s mobile.
11. Poseidon is a hacking software that is developed, marketed and licenced to the
governments around the world by a Zodiac private company, MXO Groups. The MXO
Groups proclaims to create such intrusive surveillance software, to combat a wide range of
local and global threats. It has the capability to affect billions of mobiles running either by
IOS or Android operating system, using a technical loophole known as Zero Day
Vulnerability. Bugs or technical defects in the system are not reported to the service
providers, but instead abused by MXO Groups to create a silent backdoor entry unnotified.
12. MXO Groups is engaged in the business of building and selling surveillance software.
The company has consistently maintained that it only sells spyware to the governments and
does not retain any data with itself. Poseidon software and other similar spywares require an
export licence to be obtained from the Zodiac Ministry of Defence, but since it is the matter
of extreme secrecy, it is difficult to find out whether or not all the necessary protocols have
been followed by both MXO Groups and the Union of Meluha in the process of seeking the
said approval.
13. Few countries with questionable Human Rights record have openly stated the usage of
Poseidon namely Hengania, Gemania, Tungray, Crance for the security of the nation, counter
terrorism, prevention of kidnapping of children and trafficking of children and women,
busting drug cartels and counter secret plans within the nation.
14. In Meluha it is alleged that almost 50 noteworthy personalities whose mobiles were been
hacked by using this software includes, the leader of opposition party, Journalists, Judges,
Doctors, Court officials, Bureaucrats, Human rights Activists, Scholars, Administrative
officials etc.
15. On 20th December 2021 Poseidon issue was raised in the Parliament. The Minister of
Communications, Electronic and Information Technology Mrs.AlkaRoy defended that,“these
are attempts to malign the Government of Meluha”. The Government has never breached the
fundamental rights of the citizen including the right to privacy”. She further stated that “in
Meluha there is a well-established procedure through which a lawful interception of
electronic communication is carried out for the purpose of national security particularly in the
occurrence of any public emergency in the interest of public safety by the agency of the
Centre and the State”.

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

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

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Issues presented

The counsels on behalf of the petitioners wants to raise these issues in front of hon’ble
supreme court of meluha.

1) Whether the petitioners Hercules digital rights & ors can approach this hon’ble court
under art.32 of the constitution.

2)Whether the right to privacy,freedom of speech is violated

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

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Summary of arguments

Issue 1

1) Whether the petitioners Hercules digital rights & ors can approach this hon’ble court
under art.32 of the constitution.
It is humbly submitted before the hon’ble supreme court that the writ petition filed under the
provisions of meluha is maintainable on the ground that there is grave substantial question of
law as it deals with the infringement of privacy of citizens, breach freedom of press which
comes under art 21, right to life and personal liberty. Hence the petition should be
maintainable under art.32 and art.139(1) of constitution of meluha.

Issue 2
2)Whether the government of meluha breached the fundamental rights of privacy & freedom
of press guaranteed to citizens under the constitution.
It is most humble submitted before the hon’ble supreme court that that right to privacy is a
fundamental right as evolved by the court in its various pronouncement and by the
international treatise of which mehula is a signatory and the use Poseidon software is in
violation of the fundamental right to privacy provided to the people under the ambit of art 21
of constitution of mehula. It is humbly submitted before the hon’ble court that every citizen
enjoy freedom of free speeh and privacy by art 14 and 19. the government of meluha cannot
infringe those rights and decrypt personal conversations of citizens.The decryption of
messages violates citizens right to privacy.
Furthermore every citizens enjoy freedom of speech and expression by art 19(1)(a). the
government imposing restriction on news agency is a umreasonable restriction.
Furthermore, it curtails the right of free speech of the media. The order also unfairly curtails
the public’s right to know under art 19(1)(a)

Issue 3
3) whether the 2020 election is constitutionaly valid?

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Arguments advanced
On behalf of petitioner

1) Whether the petitioners Hercules digital rights & ors can approach this hon’ble court
under art.32 of the constitution.
It is humbly submitted and requested before the hon’ble court that petition shall be allowed as
substantial question of law of infringement of privacy and general public importance is
involved in this case, which needs to be finally laid at rest by it for the entire country.
1.1 public interest litigation can be filed against the union
black’s law dictionary defines public interest as: “something in which the public, the
community at large, has peculiar interest, or some interest by which their legal rights or
liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the
interest of the particular localities, which may be affected by the matters in question”.2 The
word ‘litigation’ means a legal action, including all legal proceedings initiated in a court of
law with the purpose of enforcing a right or seeking a remedy.3
In people’s union for democratic rights & ors v. union of india & others,4 the hon’ble
supreme court defined public interest litigation and observed that “public interest litigation is
a cooperative or collaborative effort by the petitioner, the state of public authority and the
judiciary to secure observance of constitutional or basis human rights, benefits and privileges
upon poor, downtrodden and vulnerable sections of society.”
The concept of Public Interest Litigation originated in USA in the case of 5Gideon v. Wain
Wright . This was adopted by the Indian Judiciary in the case of 6Mumbai Kamgar Sabha
Abdul Bhai. Even though the word public interest litigation was not expressly used , Honble
Mr.Justice Krishna Iyer held:
“Public interest is promoted by a spacious construction of locus standi in our socio economic
circumstances and conceptual latitudinarianism permits taking liberties with individualisation
of the right to invoke the higher courts where the remedy is shared by a considerable number
, particularly when they are weaker.”
In the case of 7janata Dal v. H.S.Chowdry .it was held :
“Therefore , lexically the expression ‘PIL’ means a legal action initiation in a Court Of Law
for the enforcement of public interest or general interest in which the public or class of the
community have pecuniary interest or some interest or some interest by which their legal
rights or liabilities or liabilities are affected.”Further , it was held:“In the defining the rule of

2
Garner, B. A., Black’s Law Dictionary,(9th Edition.,2009).
3
www.jurisdictionary.com(last edited on 19th October 2014).
4
AIR 1982 SC 1473
5
372 U.S. 335 (1963)
6
1976 AIR 1455

7
AIR 1993 SC 892

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locus standi applicable to private litigation is relaxed and a broad rule is evolved which gives
the right of locus standi to any member of the public acting bonafide.”
In 8bandhana Mukti Morchan v. Union of India & Ors, “Public interest litigation is not in the
nature of the adversary litigation but it is a challenge and opportunity to the government and
its officers to make basic human rights meaningful.The government and its officers must
welcome public interest litigation “ In M.C.Metha &Another v. Union of India & Others, this
Honble asserted that it has all incidental and incillary powers including the power to forge
new remedies and fashion new strategies designed to enforce the fundamental rights.”
In 9 Vineet Narain V. UOI , the Honble Court while dealing with writ petitions under Article
32 of the Constitution of India held :
“ There are ample powers conferred by Article 32 read with Article 142 to make orders which
have the effect law by virtue of Article 144 of the Constitution . In a catena of decisions of
this court , this power has been recognized and exercised.”
1.2 breach of fundamental right
Art. 32 of the Constitution can be invoked even when there is a threat of violation or FR and
the petitioner need not wait till the actual violation takes place." The FR should either be
violated or imminently threatened; the violation can be actual or potential and this may arise
in a variety of ways and it is not possible to give an exhaustive classification.
In 10M.C. mehta & anr v. union of india & ors, this hon’ble court asserted that it has all
incidental and ancillary powers including the power to forge new remedies and fashion new
strategies designed to enforce the fundamental rights”.
11
UOI v. Association for Democratic Reforms held that “ even a declaration of fundamental
rights on the basis of the judgement rendered by the court would qualify for a fr included in
chapter III. It is established that fr themselves have no fixed content, most of them are empty
vessels into which each generation must pour its content in the light of its experience. The
attempt of the court should be to expand the reach and ambit of the fr by process of judicial
interpretations. During the last more than 18 half a decade, it has been so done by this court
consistently. There cannot be any distinction between the fr mentioned in chapter III of the
constitution and the declaration of such rights on he basis of the judgements rendered by this
court”
1.3 derivative of fundamental right
From time to time, the SC has filled in the skeleton of Part III with soul and blood and made
it vibrant. In the last 50 years, this Court has interpreted Articles 14, 19 and 21 to ensure that
the citizens live in a truly Republican Democratic society. These fundamental principles and
societal structure cannot be undone by legalization of Poseidon software.

8
1996 SCC (2) 199,
9
1996 SCC (2) 199,
10
1987 AIR 1086, 1987 SCR (1) 819
11
(2002) 3 S.C.R. 294

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In 12Romesh Thappar v. State of Madras the SC held "The public interest in freedom of
discussion (of which the freedom of the press is one aspect, stems from the requirement that
members of a democratic society should be sufficiently informed that they may influence
intelligently the decisions which may affect themselves."
13
"Freedom of speech and expression includes the right to know every public act, everything
that is done in a public way, by their public functionaries.”
14
“Freedom of speech and expression includes right to the citizens to known about the affairs
of the Government.”

The right to privacy is directly infringed when there is surveillance or spying done on an
individual, either by the State or by any external agency. Ellen Alderman and Caroline
Kennedy, in ‘Right to Privacy’,Foresaw this threat to privacy in 1995, while referring to
governmental eavesdropping in the United States of America, in the following words: “Perhaps
the scariest threat to privacy comes in the area known as “informational privacy”. Information
about all of us is now collected not only by the old standbys, the IRS and FBI, but also by the
MTB, MIB, NCOA, and NCIC, as well as credit bureaus, credit unions, and credit card
companies. We now have cellular phones, which are different from cordless phones, which are
different from what we used to think of as phones. We worry about e-mail, voice mail, and
junk mail. And something with the perky name Clipper Chip - developed specifically to allow
governmental eavesdropping on coded electronic communications - is apparently the biggest
threat of all.” this trade-off between the right to privacy of an individual and the security
interests of the State, has been recognized world over with the renowned scholar Daniel
Solove commenting on the same as follows:
“The debate between privacy and security has been framed incorrectly, with the trade-
off between these values understood as an all-or-nothing proposition. But protecting
privacy need not be fatal to security measures; it merely demands oversight and regulation.
We can't progress in the debate between privacy and security because the debate itself is
flawed.The law suffers from related problems. It seeks to balance privacy and security, but
systematic problems plague the way the balancing takes place….Privacy often can be
protected without undue cost to security. In instances when adequate compromises can't be
achieved, the trade-off can be made in a manner that is fair to both sides. We can reach a
better balance between privacy and security. We must. There is too much at stake to fail.”

12
1950 AIR 124, 1950 SCR 594
13
State Of Uttar Pradesh vs Maharaj Narain 1968 AIR 960, 1968 SCR (2) 842
14
Shri Dinesh Trivedi, M.P. & Ors vs Union Of India & Ors

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2)Whether the government of meluha breached the fundamental rights of privacy, freedom
of press guaranteed to citizens under the constitution.
It is humbly submitted before this hon’ble supreme court that right to privacy and freedom of
press violated. Right to privacy is a fundamental right, incorporated in the constitution under
the aegis of art 21. The right has been implicitly provided to the people by way of various
pronouncement and interpretation of art 21. it is a matter of serious concern.
Meluha is the largest democracy in the world.15meluha is also a signatory of many
international covenants, which enumerates the protection of various human rights. 16The
Government of Meluha is obliged to guarantee freedoms and rights such as Right to Life,
Privacy, Freedom of Press etc. In line with the same The Constitution of Meluha recognises
the right to privacy as a fundamental right under Article 21.17 All the legislations which are
enacted in Meluha are based upon the Constitution of Meluha and any law which contravenes
the constitution of Meluha shall deemed to be unconstitutional. the government is endorsing
the Poseidon spyware for the cyber-attack on Indian citizens that has directly violated the
right to privacy and the government of meluha warning the press regarding the publication of
news against the ruling government also violates the rights conferred under the conxtitution
of meluha.
2.1 meaning of right to privacy
Right to privacy is vested within right to life and personal liberty under art.21. the definition
of the phrase “personal liberty” given by prof. Dicey , according to whom personal liberty
means freedom from physical restraint and coercion which is not authorized by law. An
unauthorized intrusion into a person’s home and the disturbances caused to him is the
violation of personal liberty of individual. Therefore right to life enshrined in art.21 has been
liberally interpreted so as to mean something more than mere survival and mere exixtence or
animal exixtence. The right to privacy is not just a common law right, not just a legal right,
not just a fundamental right under the constitution. It is a natural light inherent in every
individual.18 The Constitution of Meluha recognises the right to privacy as a fundamental
right under Article 21.
2.2 implication of right to privacy under article 21
M.P. Sharma v. Satish Chandra19 was the first case where the Supreme Court threw light on
the right to privacy.The question in issue was whether the Right to Property under 19(1)(f) of
the Constitution is violated by the search and seizure conducted by the state agencies. The
courts uphold the ‘search and seizure’ as the state holds overriding power for the protection of
social security and it is regulated by the law.
In the case of Kharak Singh v. State of U.P.3020, privacy was though denied the status of a
fundamental right, but it was affirmed by the bench that it is indeed is a human right under

15
Moot proposition para 1 page no 4
16
Moot proposition para 7 page no 4
17
Moot proposition para 2 page no 4
18
Kharak Singh vs The State Of Punjab AIR 1977 P H 335
19
M. P. Sharma And Others vs Satish Chandra AIR 300, 1954 SCR 1077
20
AIR 1977 P H 335

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common law, while construting the meaning of personalliberty. The dissenting opinion of
Subbarao j, did impute the right to privacy as a fundamental right under the ambit of personal
liberty ut the same was not reckoned by the majority.
In gobind singh v. state of m.p,21 the supreme court through a three bench judge stated that
privacy is a concern for an individual and is a part of the concept of liberty. In the case of
R.rajgopal v state of T.N22, more popular as the auto shankar case, the scope of right to be
left alone was widened.the supreme court also gave a constitutional status to right to privacy
stating that it is “implicit in the right to life and personal liberty”.
In the evolution of law over right to privacy, in this case of people’s union for civil liberties v.
union of india23, it was admitted by the bench that right to privacy is a part of the right to life
and personal liberty. Although the bench refused to define privacy, it did reckon that the
infringement of the privacy would depend upon the basis of the facts of the various cases,
considering the concept to be too broad and moralise in order to define it in a judicial manner.
In the landmark case of Vishaka v state of rajasthan24 it was propounded by the bench that if
a fundamental right is infringed and there is not any domestic legislation to deal with it then
the subject must be construted in line with the provisions in the international treaties and
conventions to which yje country is a party.
In the case of R.M. MLAKANIV VS STATE OF MAHARASTRA25 also the courts at time
have refused to admit the evidences based on such intrusion to privacy of individuals.
It is pertinent to not that the jurisprudence in the country has bot developed much in this
direction unlike the case in Europe and America, and due to such situations the supreme court
has at numerous occasions considered the jurisprudence of these places as was done in the
case of SHREYA SINGHAL V. UNION OF INDIA26 . the case of GRISWOLD V.
CONNECTICUT27 and ROE V. WADW28 which was dealt in the us supreme court was used
by the apex court of meluha in the auto shankar case to highlight the invasion of government
bodies into individual’s privacy and violation of art 21 .
In the suto shankar case, the supreme court said that right to be left alone which is a corollary
of right to privacy incorporates the principle of consent.
Right to privacy of citizen of meluha got more teeth against the arbitrary action for the state.
The supreme court’s ruling that the “RIGHT TO PRIVACY”is an integral part of right to life
and personal liberty guaranteed under art 21 of the constitution will be seen in the light of its
immediate contxt – the Poseidon software.
2.3 poseidon software is a threat to privacy

21
Gobind vs State Of Madhya Pradesh AIR 1975 SC 1378, 1975
22
R. Rajagopal vs State Of T.N 1995 AIR 264, 1994 SCC (6) 632
23
People'S Union Of Civil Liberties ... vs Union Of India AIR 1997 SC 568, JT 1997 (1) SC 288, 1996
24
Vishaka & Ors vs State Of Rajasthan & Ors ((1997 )6scc 241)
25
R. M. Malkani vs State Of Maharashtra 1973 AIR 157, 1973 SCR (2) 417
26
Shreya Singhal vs U.O.I AIR 2015 SCC 1523
27
Griswold v. Connecticut, 381 U.S. 479 (1965)
28
ROE V. WADE, 410 U.S. 113 (1973)

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what is Poseidon software

29
Poseidon is a hacking software developed by an zodiac private company named
mxo groups. It is a kind of malicious software.it infiltrates users mobile and can turn into 24
hours surveillance decive without user’s knowledge. It enters the phone and gets secrets
access to activity of users phone including contacts list, gallery, microphone, camera, gps
location, records conversations. It gets activated by technique “zero click” which requires no
interaction of the user. The said software can also strike on encrypted chat,audio etc..
The Poseidon spyware has affected number of mobiles in india,30 which amounts to direct
violation of privacy conferred by the constitution and other laws.
Individuals can seek constitutional remedies under Article 32 and Article 226 of the
Constitution of India. It allows individuals to approach the Supreme Court and High Courts,
respectively, for the enforcement of their fundamental rights, including the right to privacy.
The Constitution of Meluha guarantees certain rights and freedoms, including the right to
privacy and the freedom of speech and expression. The courts can interpret and apply these
constitutional provisions to protect the citizens' rights and hold the government accountable.
The Indian Supreme Court's judgments, such as Maneka Gandhi v. Union of India (1978) and
K.S. Puttaswamy (Retd.) v. Union of India (2017), provide a robust framework for
constitutional interpretation and safeguarding fundamental rights.
31
The Information Technology Act 2000 The IT Act of 2000 recognizes the importance of
protecting the privacy of individuals in the digital space. It provides measures to safeguard
personal information from unauthorized access or disclosure.
32
Information Technology (Reasonable Security Practices and Procedures and Sensitive
Personal Data or Information) Rules, 2011, The Information Technology (Reasonable
Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011
were introduced by the Government of meluha under Section 43A and Section 79 of the
Information Technology Act, 2000. These rules aim to protect the privacy of individuals with
regard to their personal data and information.
Indian Penal Code (IPC): The IPC is the primary criminal code of India. It contains
provisions related to offenses against the state, public tranquility, and individuals. Relevant
sections may include those related to unauthorized access to computer systems, hacking, and
privacy-related offenses.
Telegraph Act, 1885: The Telegraph Act provides the legal framework for regulating
telegraphic communications in India. It includes provisions related to interception,
monitoring, and surveillance of telegraphic messages.
Personal Data Protection Bill: Although not enacted as of my knowledge cutoff in September
2021, India has been considering a comprehensive data protection law. The bill, when

29
Moot proposition para 9 page no 5
30
Moot proposition ara 16 page no 6
31
Section 43A The Information Technology Act 2000
32
Section 43A and Section 79 of the Information Technology Act, 2000.

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enacted, is expected to provide a legal framework for the protection of personal data and
privacy rights.
It is important to note that the scenario you presented is fictional, and the specific legal
provisions and their applicability may vary based on the actual circumstances and
jurisdiction. Additionally, it is always advisable to consult with legal professionals or refer to
the actual laws in force for accurate and up-to-date information.
Right to Privacy: The right to privacy is protected as a fundamental right under Article 21 of
the Constitution of India. This provision guarantees the right to life and personal liberty,
which encompasses the right to privacy.
Information Technology Act, 2000: This Act deals with various aspects of electronic
governance, e-commerce, and digital transactions. Some relevant provisions include:
a. Section 43: Protects against unauthorized access to computer systems and data.
b. Section 66: Criminalizes computer-related offenses such as hacking, identity theft, and
cyber stalking.
c. Section 72: Protects the privacy and confidentiality of electronic records and
communications.
d. Section 72A: Prohibits disclosure of sensitive personal information without consent.
e. Section 79: Provides safe harbor protection for intermediaries (online platforms) from
liability for user-generated content.
Indian Penal Code (IPC): The IPC contains provisions related to offenses against the state,
public tranquility, and individuals. Some relevant sections include:
a. Section 354D: Criminalizes stalking, which could be applicable if the spyware is used to
monitor individuals without their consent.
b. Section 463: Pertains to forgery, which could be relevant if any falsified documents or
identities were used in connection with the spyware.
c. Section 499: Deals with defamation, which could be relevant if false information or
allegations are published against individuals.

d. Section 500: Criminalizes defamation and provides punishment for defamatory statements.
The Personal Data Protection Bill, 2019 is a proposed legislation. It aims to regulate the
processing of personal data in meluha. One of the key aspects of the bill is the recognition of
the right to privacy as a fundamental right, which was affirmed by the Supreme Court of
meluha in 2017.
The Right to Privacy Bill, of 2011 is a proposed legislation. It aims to provide individuals in
India with a legal framework for the protection of their privacy rights. The bill recognizes
that privacy is a fundamental right, which is necessary for the exercise of other rights.

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33
Right to Information Act, 2005: The Right to Information Act, of 2005, allows individuals
to access information held by public authorities. This law also includes provisions to protect
personal information from disclosure that could violate an individual’s right to privacy.
Individuals can also seek remedies under consumer protection laws such as the Consumer
Protection Act, of 2019. This law provides for the protection of consumer rights, including
the right to privacy, and allows individuals to file complaints against businesses and service
providers who violate their privacy rights.
Section 66E in The Information Technology Act, 2000
76 [ 66E Punishment for violation of privacy. -Whoever, intentionally or knowingly captures,
publishes or transmits the image of a private area of any person without his or her consent,
under circumstances violating the privacy of that person, shall be punished with
imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or
with both. Explanation. -For the purposes of this section-
(a) "transmit" means to electronically send a visual image with the intent that it be viewed by
a person or persons;
(b) "capture", with respect to an image, means to videotape, photograph, film or record by
any means;
(c) "private area" means the naked or undergarment clad genitals, pubic area, buttocks or
female breast;
(d) "publishes" means reproduction in the printed or electronic form and making it available
for public; e) "under circumstances violating privacy" means circumstances in which a person
can have a reasonable expectation that;-
(i) he or she could disrobe in privacy, without being concerned that an image of his private
area was being captured; or
(ii) any part of his or her private area would not be visible to the public, regardless of whether
that person is in a public or private place.
The petitioner contends that the usage of the Poseidon spyware by the Government of Meluha
violates the fundamental right to privacy guaranteed under Article 21 of the Constitution of
Meluha. The spyware allows for unauthorized surveillance, recording of conversations, and
access to personal information, thereby infringing upon the privacy of individuals.

The Poseidon spyware infiltrates and attacks the privacy of individuals.

There are certain things which the state simply cannot do, because the action fundamentally
alters the relationship between the citizens and the state. Further the state cannot put itself in
a position where it can track an individual and engage in surveillance. The state cannot
deprive or without the enjoyment of rights and entitlements by an individual.

33
Section 2 (j), Right to Information Act, 2005

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In 34NATIONAL LEGAL SERVICES AUTHORITY V. UNION OF INDIA & ORS . art 21,
guarantees the protection of “personal autonomy” of an individual.
In the case of 35Justice K.S. Puttaswamy v. Union of India, The Court found that the right to
privacy is an inalienable and natural right and it is related to human dignity. The said right is
not independent of other freedoms guaranteed by the constitution under Part III.. The court
in this case held that ‘the right to privacy as an intrinsic part of Article 21 can be denied only
through “procedure established by law” which must be ‘just, fair and reasonable. The court
provided a threefold test that is required to be withstanding by the State in case of a right to
encroachment. threefold tests which are
• Legality - the action must be sanctioned by law;
• Necessity - there must be a need for that action for the legitimate aim;
• Proportionality - there must be proportionate action that ensures rational nexus between the
objects and means adopted to achieve them.
This ruling can serve as a precedent to argue that the government's use of spyware violates
the citizens' right to privacy in Meluha as well.
Therefore, it must be ensured by the state while curtailing the right to privacy that is
according to the constitutional need and three-fold tests. When the state's action is
disproportionate without legitimate aim, it shall be invalid and unconstitutional.
36
The Poseidon software has affected number of mobiles in meluha. 37The right to privacy is
a fundamental right and it is a part of Article 21. The Supreme Court observed that the
information gathered by surveillance through the intelligence agency must be for a reasonable
purpose.Toaccess the informationofan individual, there must be the necessary information for
combating crime or terror in the national interest. The Court has directed to appoint of three
members expert committee that will look into the Pegasus spyware Case and they will reveal
the truth regarding the large scale violation of fundamental rights.
After the SC decision in the 38PUCL telephone tapping case (1997) there has been a sea
change in communication technology with modern communication systems based on
wireless, digital electronic technology transforming the very face of the communications
world. This has raised new concerns about the power of states and others to engage in
arbitrary and surreptitious electronic surveillance of citizens.Global discussions on the rights
of privacy in the context of digital technology led to the United Nations General Assembly
Resolution on ‘Privacy in the Digital Age. as well as the UN Human Rights Council’s
International Principles on the Application of Human Rights to Communication Surveillance.
The UN Principles now recognize the need to ensure greater accountability in surveillance
and checks by independent authorities. This is also recognized by judgments of the European
Court of Human Rights.

34
2014 5 scc 438
35
AIR 2017 SC 4161
36
Moot propositio para 16 page no 6
37
Justice K. S. Puttaswamy (Retd.) & Anr. vs. Union Of India & Ors. (2017) 10 SCC 1
38
AIR 1997 SC 568, JT 1997 (1) SC 288, 1996

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In the case of 39People's Union for Civil Liberties (PUCL) v. Union of India 40The telephone
tapping was held to be a violation of the right to privacy. However, the court applied narrow
tailoring of the provision instead of declaring it unconstitutional. The court in this case
interpreted the phrases ‘public safety and ‘public emergency’. The Court held that the two
phrases ‘take their color off each other’. It defined public safety as a state of safety or
freedom from danger to the public at large and argued that neither a public safety nor public
emergency can be secretive, nor must be evident to the reasonable person. The court said that
two conditions (public safety and public emergency) are prerequisites for exercising the
power to intercept and provided guidelines in form of safeguards to check the arbitrariness in
terms of issuing surveillance orders. These guidelines were later codified under Rule 419A of
the Telegraph Rules, 1951. So, the PUCL case became a landmark case where the court had
evolved the jurisprudence of ‘public safety and public emergency’ as a prerequisite for
interception by state agencies. The key takeaway from PUCL is as-
The Telegraph Act specifically intends to provide targeted surveillance. Neither the court nor
the act contemplates bulk surveillance.
• The Court denied judicial review in targeted surveillance. It doesn't mean that it is not even
required in bulk surveillance like Pegasus.
• PUCL guidelines were required to be followed in targeted surveillance which was later
codified into Rule 419A of the Telegraph Rules, 1951.
• The Privacy restrictions must be narrowly tailored (if they are constitutional) and target is
specific suspicion on identifiable individuals and are only meant to fulfill the public safety
and crime prevention goal of an Individual.
The Constitution of meluha doesn't just provide the fundamental right to an individual but it
also protects and guarantees the same. It ensures that the state cannot take away any
individual's right without proper reason and fair manners. Therefore, if the state encroaches
on those fundamental rights (i.e. the right to privacy) then it must be ensured that the same
is done by the legitimate law with the legitimate aim in a proportional manner for the public
interest otherwise that kind action must be invalidated by the constitutional court. It is the
constitutional duty of the state to protect the citizen's fundamental rights. For that purpose,
the government must enact the law on data privacy and its protection very soon so that this
unfettered action of government can be checked with effective and clear law. We hope that
this time the court shall apply a new approach and protect the privacy the citizens “Privacy is
a constitutionally protected right which emerges primarily from the guarantee of life and
personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying
contexts from the other facets of freedom and dignity recognised and guaranteed by the
fundamental rights contained in Part III.”

39
AIR 1997 SC 568, JT 1997 (1) SC 288, 1996
40
Section5(2)of the Telegraph Act, 1885

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In 41Manohar Lal Sharma v. Union of India, most commonly known as Pegasus Spyware
Probe, the Supreme Court has rightly pointed out that there must be a balance between the
fundamental rights of an individual and national security. The state cannot take away the
fundamental right of an individual by merely citing the cause of national interest. The State
has to pass three-fold tests of proportionality which have been laid down in the Puttaswamy I
case. If the state is encroaching on the right to privacy of individuals by snooping or
surveillance then it must be in accordance with legitimate law for the reasonable purpose in
the national interest.
Poseidon a largescale cyberattack and
threat had been made public and brought to the knowledge of the union of melua, it was the state’s
responsibility to take necessary action to protrct the interests and fundamental rights of the citizens,
particularly when there exixted the risk that such an attack was made by a foreign entity.

In 42Anuradha Bhasin v. Union of India, Anthe validity of the shutdown of Internet and
movement restrictions was challenged in this case, while deciding the case the Supreme
Court held that the competent authority must take the doctrine of proportionality into
consideration during the time of imposing restrictions on fundamental rights
However, unlike the ‘property centric’ origin of privacy rights in England and under the
Fourth Amendment in the Constitution of the United States of America, in India, privacy
rights may be traced to the ‘right to life’ enshrined under Article 21 of the Constitution. When
this Court expounded on the meaning of “life” under Article 21, it did not restrict the same in
a pedantic manner. An expanded meaning has been given to the right 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 reasonable expectation of privacy. Privacy
is not the singular concern of journalists or social activists. Every citizen of meluha ought to
be protected against violations of privacy. It is this expectation which enables us to exercise
our choices, liberties, and freedom. the right to privacy is as sacrosanct as human existence
and is inalienable to human dignity and autonomy.43
the bulk surveillance which are violating the right to privacy of citizenry would put pressure
on the State to demonstrate how the collection of every data is necessary for public security.
2.4 violation of basic structure
The use of spyware to hack mobile devices, particularly those belonging to opposition
leaders, journalists, judges, and human rights activists, raises concerns about unlawful
surveillance and interference with their privacy. The Indian Supreme Court, in the case of
People's Union for Civil Liberties v. Union of India (1996), emphasized that surveillance
should be conducted strictly in accordance with the law, and any intrusion upon privacy must
be justified by legitimate state interests.

41
Writ Petition No. 314 OF 2021
42
2019 SCC OnLine SC 1725
43
Justice K. S. Puttaswamy (Retd.) & Anr. vs. Union Of India & Ors. (2017) 10 SCC 1

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44
meluha is a democratic country, which is 45obliged to guarantee freedom and rights such as
right to life, privacy, freedom of press etc… In this particular case there is violation of
fundamental rights, which is against the basic structure of a democratic constitution.
In 46p.v, Narasimha rao v. state the sc held that “parliamentary democracy is part of the basic
structure of the constitution. It is settled law that in interpreting the constitutional provisions
the court court should adopt a construction which strengthens the foundational features and
basic structure of constitution.”
It was first affirmed in the case of 47sub-committee on judicial accountability v. union of
india, In 48Minerva mills case, the sc held that by an amendment, the parliament cannot
damage the democratic republican character as has been conceived in the constitution.
The Poseidon spyware violates the basic feature of the constitution, namely rule of law,
principles of democracy and good governance.
the Constitution of India doesn't just provide the fundamental right to an individual but it also
protects and guarantees the same. It ensures that the state cannot take away an individual's
right without proper reason and fair manners. Therefore, if the state encroaches on those
fundamental rights (i.e. the right to privacy) then it must be ensured that the same is done by
the legitimate law with the legitimate aim in a proportional manner for the public interest
otherwise that kind of action must be invalidated by the constitutional court. It is the
constitutional duty of the state to protect the citizen's fundamental rights. For that purpose,
the government must enact the law on data privacy and its protection very soon so that this
kind of unfettered action of government can be checked with effective and clear law. We hope
that this time the court shall apply a new approach and protect the privacy of the citizenry.
Transparency and Accountability
The lack of transparency and accountability in the process of obtaining export licenses for the
spyware raises concerns about the government's adherence to due process. The Supreme
Court of India, in the case of Sunil Batra v. Delhi Administration (1978), emphasized the
importance of fairness, reasonableness, and adherence to proper procedures in matters
concerning personal liberty and privacy.
49
It is obvious from the constitution we have adopted a democratic form of government.
Where a society has chosen to accept democracy as its credal faith, it is elementary that the
citizens ought to know what their government is doing.the citizens have the right to decide by
whom and by what rules they shall be governed. They are entitled to call on those who
govern on their behalf to account for their conduct. No democratic government can survive
without accountability and the basic postulate of accountability is that the people should have
information about the functioning of government.

44
Moot proposition para 1 page no 4
45
Moot ptopositio para 7 page no 4
46
AIR 1998 SC 2120
47
AIR 1598 1991 SCR (2) 741 1991
48
AIR 1980 SC 1789
49
S.p. gupta v. uoi AIR 1982 SC 149 SUPP SCC 87

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Vijaya Prakash v. uoi

The right to public information is an accountability measure for citizens state actors. The
transparency value, also has to be reconciled with the legal interest protected by law such as
the fr to privacy.

2.5 violation of freedom of press

The Editor in Chief of Fil News filed a suit alleging a breach of freedom of the press
guaranteed under Article 19(1)(a) of the Constitution of Meluha. This argument can be
strengthened by referring to the Indian Supreme Court's decision in Romesh Thappar v. State
of Madras (1950), where it was held that freedom of the press is an essential part of the right
to freedom of speech and expression. Furthermore, the petitioner invokes Article 19(1)(a) of
the Constitution of Meluha, which guarantees the freedom of speech and expression,
including the freedom of the press. The usage of spyware to infiltrate mobile devices of
journalists and media personnel interferes with their ability to exercise these fundamental
rights and undermines the functioning of a democratic society.
The petitioner relies on the case law of R. Rajagopal v. State of Meluha, where the Hon'ble
Supreme Court of Meluha recognized the right to privacy as an essential facet of the right to
freedom of speech and expression. The court held that an individual's right to privacy must be
protected, particularly in matters involving media reporting and public interest.

Article 19(1) (a) says that all citizens shall have the right to freedom of speech and
expression.
Freedom of speech and expression means the right to express one’s
conviction and opinions freely by words of mouth, writing, printing orany other mode.It i
includes the expression of one’s ideas through any communicable
medium or visible representation.
50
The government of meluha warned all the social media platforms that it would face serious
consequences if it publishes news against the ruling government which is violative of
freedom of speech and expression guaranteed under the constitution.

In the case of 51Indian Express Newspapers (Bombay) Private Limited v. Union of

India, “The expression freedom of the press has not been used in Article 19 but it is
comprehended within Article 19(1)(a). The expression means freedom from any sort of
interference from a public authority which would result in interference with the content and
circulation of newspapers. There would be no interference with freedom in the name of public
interest. The objective of the press is to promote the public interest by publishing facts and
opinions without which the democracy unable to make fair and responsible judgments.
It is undeniable that surveillance and the knowledge thatone is under the threat of being spied
on can affect the way anindividual decides to exercise his or her rights. Such a scenario

50
Moot proposition para 8 page no 5
51
(1985) 1 SCC 641

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might result in self censorship. This is of particular concern

when it relates to the freedom of the press, which is an importantpillar of democracy. Such
chilling effect on the freedom of speech is an assault on the vital public-
watchdog role of the press, which may undermine the ability of the press to provide accurate
and reliable information. 52the Court is required to see whether the impugned
restrictions, due to their broadbased nature, have
had a restrictive effect on similarly placed individuals during the period.
In 53Printers (Mysore) Ltd. v. CTO12 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. Freedom of the press has always been a cherished right in all democratic
countries and the press has rightly been described as the fourth chamber of democracy. The
fundamental principle which was involved in freedom of press is the “people's right to know”.
It therefore received a generous support from all those who believe in the free flow of the
information and participation of the people in the administration; it is the primary duty of all
national courts to uphold this freedom and invalidate all laws or administrative actions which
interfere with this freedom, are contrary to the constitutional mandate.13 In R. Rajagopal v.
State of T.N.14 the Supreme Court of India has held that freedom of the press extends to
engaging in uninhabited debate about the involvement of public figures in public issues and
events. But, as regards their private life, a proper balancing of freedom of the press as well as
the right of privacy and maintained defamation has to be performed in terms of the democratic
way of life laid down in the Constitution. Therefore, in view of the observations made by the
Hon'ble Supreme Court in various judgments and the views expressed by various jurists, it is
crystal clear that the freedom of the press flows from the freedom of expression which is
guaranteed to “all citizens” by Article 19(1)(a). Press stands on no higher footing than any
other citizen and cannot claim any privilege (unless conferred specifically by law), as such, as
distinct from those of any other citizen. The press cannot be subjected to any special restrictions
Privacy and the right to free speech
The right to freedom of speech and expression and the right to privacy are two sides of the
same coin. One person's right to know and be informed may violate another's right to be left
alone. Just as the freedom of speech and expression is vital for the dissemination of information
on matters of public interest, it is equally important to safeguard the private life of an individual
to the extent that it is unrelated to public duties or matters of public interest. The law of privacy
endeavours to balance these competing freedoms.
ROLE OF MEDIA AND PRESS IN DEMOCRACY “One of the objects of a newspaper is to
understand the popular feelings and give expression to it, another is to arouse among the people
certain desirable sentiments, and the third is the fearlessness to expose popular defects.” the
country.

52
Anuradha Bhasin v. Union of India, (2020) 3 SCC 637
53
1994 SCR (1) 682, 1994 SCC (2) 434

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In a democracy, the media and press play a very positive role, if there is an enabling
environment. In the 21st century, a new democracy requires in-depth reporting, this means
media and press have the requisite skill or ability to make and break the views opinion of the
people. It is an extremely powerful tool that acts as a bridge between the government and
individuals. It is the duty of the media and press to treat everyone on an equal footing, they
should play a very neutral role in releasing their duty without being based by any individual or
political party. If the media failed to perform its duty independently it would result in a
dictatorship or even worse than them. Media constituted as the fourth pillory of Democracy.
So it should be responsible and make the people aware about day to day activities In India
along with the whole world. Media managers debate on current affairs and new enact policies.
According to the First Press Commission in India, the term “freedom of the Press” means that
Press holds views, receives information through the printed word which would be without
interference from any public authority. Pandit Jawaharlal Nehru called the media as “the
watchdog of our democracy.” This statement handed an extreme responsibility to media in the
functioning of society. The media and press, their adequate roles, contents, and channel, are
regarded to be the most influential weapon to make this achievement a reality.
The Indian Press Commission has expressed its view. It says that “Democracy can thrive not
only under the vigilant eye of its Legislature but also under the care and guidance of public
opinion and therefore the press is par excellence, the vehicle through which opinion can
become articulate
Freedom of the press is the heart of social and political intercourse. It is the fundamental duty
of the court to maintain the freedom of the press and invalidate all laws or administrative
actions which interfere with it contrary to the constitutional mandate.10 In the case, Romesh
Thappar v. State of Madras, the Supreme Court held that entry and distribution of “Red Cross”,
an English Journal, printed and published in Bombay, was banned by the Madras Government.
It turns into the violation of the Freedom of Speech as “without freedom of distribution,
publication would be of little value”
New Media Policy is being criticized as it limits the freedom of speech even on matters of
immense concern. It also not imposes direct restrictions on the press, giving legal power to the
government to penalize anyone for their actions. In this way, an IAS or KAS (Kashmir
Administrative Service) officer could decision for the job of journalist indirectly and also
empowered to select what would be the news. The objective behind that is to end the local
media and shows the news content which portrays government good in the eyes of the people.
They try to convert it into public relations, not journalism.
In democracy, the Government cannot function unless the people are well informed and free to
participate in public issues by having the widest choice of alternative solutions of the problems
that arise. Articles and news are published in the press from time to time to expose the
weaknesses of the governments. The daily newspaper and the daily news on electronic media
are practically the only material which most people read and watch. The people can, therefore,
be given the full scope for thought and discussion on public matter, if only the newspapers and

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electronic media are freely allowed to represent different points of views, including those of
the opposition, without any control from the Government.

R. Rajagopal v. State of T.N.32 is a watershed in the development of the Indian law of privacy.
For the first time, the Supreme Court discussed the right to privacy in the context of the freedom
of the press. The case concerned the right of the publisher of a magazine to publish the
autobiography of the condemned prisoner, “Auto Shankar”. The respondents contended that
the intended publication (which was to expose some sensational links between the police
authorities and the criminal) was likely to be defamatory and therefore required to be restrained.
The issue of the right to privacy came up in this context. The Supreme Court held that the press
had the right to publish what they claimed was the autobiography of Auto Shankar insofar as
it appeared from the public records, even without his consent or authorisation. However, if the
press items went beyond the public record and published his life story, that might amount to an
invasion of his right to privacy. Similarly, the government and prison officials who sought
tprotect themselves against possible defamation (by ostensibly seeking to protect the privacy
of the incarcerated prisoner), did not have the right to impose a prior restraint on the publication
of the autobiography; their remedy, if at all, could arise only after the publication.
Brij Bhushan v. State of Delhi18 In this case, the Supreme Court held that the freedom of
expression mentioned under Article 19(1)(a) of the Constitution is a fundamental right and it
cannot be snatched from journalists and media houses.
Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal19 In
this case, the court held that the freedom of speech and expression mentioned under Article
19(1)(a) of the Constitution involves the right to obtain information and distribute it.
Democracy in a minute could change into autocracy if the powers granted to the government
are not utilized efficiently. So the restrictions put forth by the journalist must be reasonable,
not just an instrument for the government to cloak their shortcomings.
RIGHT TO PRIVACY AND RIGHT TO INFORMATION
RESEARCH FOUNDATION FOR SCIENCE TECHNOLOGY AND NATURAL
RESOURCES POLICY V UOI
The provisions of a covenant which elucidate and go to effectuate the fundamental rights
guaranteed in the constitution, can be relied upon by the courts as facets of those fr and hence
enforceable as such.
C.P.O.I., SUPREME COURT OF INDIA V. SUBHASH CHANDRA AGARWAL
The privacy rights, by virtue of sec 8(1)(j) of RTI act whenever asserted would prevail.
However, that is not always the case, since the public interest element seeps through that
provision.
Information Technology Act, 2000

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Section 43A - Compensation for failure to protect data: the government's failure to protect the
personal data of individuals whose mobile devices were infected by the Poseidon spyware
constitutes a breach
of their right to privacy. Section 43A provides for compensation to be paid by a body
corporate for negligence in implementing and maintaining reasonable security practices.
Section 66B - Punishment for dishonestly receiving stolen computer resource or
communication device: the use of the Poseidon spyware amounts to dishonestly receiving
stolen computer resources or communication devices, as it allows unauthorized access to and
interception of private communications. The individuals responsible for using or
implementing the spyware can be held liable under this provision.
Section 72 - Breach of confidentiality and privacy: the government's use of the spyware
breaches the confidentiality and privacy of individuals' electronic communications. Section
72 provides for punishment for such breaches of confidentiality and privacy.
Section 79 - Exemption from liability of intermediaries: The CEO of Chatapp can argue that
the government's use of the spyware contradicts the policies of their social networking
platform and undermines user trust. They can claim that the government's actions place an
undue burden on intermediaries like Chatapp. Section 79 provides exemptions from liability
for intermediaries in certain cases, and the CEO can argue that the government's actions go
against the spirit of this provision.

Human rights and international convenants

the constitutional responsibility of the Indian Courts with respect to the application of norms
of international law that have emerged subsequent to the commencement of the Constitution
emanate from Article 51. This Article is a Directive Principle of State Policy which mandates
the state to endeavor to, inter alia, “foster respect for international law and treaty obligations
in dealings of organized peoples with one another”.23 Since India is party to the Statute of
the International Court of Justice, it is necessary to interpret the term ‘international law’ in
accordance with Article 38(1) of the Statute.

the right to privacy has long held a place in international documents on human rights such as
Article 12 of the Universal Declaration of Human Rights,
1948. Article 17 of the International Covenant on Civil and Political Rights, 1966 to which
India is a signatory, reads as follows: 1. No one shall be subject to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to lawful attacks on his
honour and reputation. 2. Everyone has the right to the protection of the law against such
interference or attacks. Article 8 of the European Convention on Human Rights reads as
follows: (1) Everyone has the right to respect for his private and family life, his home and his
correspondence. (2) There shall be no interference by a public authority with the exercise of
this right, except such as is in accordance with law and is necessary in a democratic society in
the interests of national security, public safety, for the prevention of disorder and crime or for
the protection of health or morals.

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3) whether the 2020 election is constitutionaly valid?

The petitioner, Hercules Digital Rights (HDR), argues that the election conducted in
2020 should be deemed invalid due to the alleged unethical use of the Poseidon spyware
by the ruling party. They contend that the use of such invasive surveillance technology
undermines the democratic process and violates the rights of opposition parties and
citizens.

The petitioner relies on various provisions of the Constitution of Meluha, including the
right to privacy under Article 21, the freedom of speech and expression under Article
19(1)(a), and the right to free and fair elections.

Puttaswamy v. Union of Meluha (2017):

The petitioner cites the landmark judgment of Puttaswamy v. Union of Meluha, where the
Hon'ble Supreme Court of Meluha recognized the right to privacy as a fundamental right.
They argue that the use of the Poseidon spyware violates this fundamental right, as it allows
for unauthorized surveillance and intrusion into the private lives of individuals.
Validity of the Opposition Party's Petition under the Representation of the People Act:
The petitioner argues that the opposition party's petition filed under Article 226 of the
Constitution of Meluha is valid under the Representation of the People Act. They contend
that the opposition party has the right to challenge the election process and raise concerns
about the use of the Poseidon spyware.
The petitioner relies on the provisions of the Representation of the People Act that allow for
the filing of election petitions to challenge the validity of an election.
Unethical Election Practices using Poseidon Spyware:
The petitioner alleges that the ruling party used the Poseidon spyware to gain an unfair
advantage in the election, compromising the integrity of the electoral process. They argue that
the use of such sophisticated surveillance technology to manipulate political strategies and
obtain confidential information is a violation of democratic principles.
The petitioner highlights the right to free and fair elections as enshrined in the Constitution of
Meluha. They argue that the use of the Poseidon spyware undermines this fundamental right
and compromises the democratic ideals of the nation.
Mohinder Singh Gill v. Chief Election Commissioner (1978):
The petitioner may refer to the case of Mohinder Singh Gill v. Chief Election Commissioner,
where the Hon'ble Supreme Court of Meluha emphasized the importance of free and fair
elections and upheld the need to prevent any corrupt practices that could influence the
electoral process.
Election commission

The Election Commission is an autonomous body established by the Constitution to ensure

free, fair and impartial elections. According to art 341(1) of the Indian Constitution, the

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power of the Election Commision are of superintendence, direction, and control of the
elections to the Lok Sabha, Rajya Sabha, State Legislative assemblies and councils, and the
offices of the President and Vice President. It is not concerned with elections of panchayats
and municipalities in states as the administration of those elections is done by the State
Election Commission in each state.

Electoral malpractice are illegal/irresponsible acts performed by the electoral body, political
parties, candidates or the electorate which are capable of influencing the smooth conduct of
elections in a country.

These are some consequences of electoral malpractices

Wrong people in power: The most obvious consequence of electoral malpractices is that the
wrong people come into power. Thus, people who should not win any election, people without
good conduct and even those with questionable character, are sworn in to take charge of the
affairs of government. Political violence: Electoral malpractice may lead to political violence.
This may come in form of riots, demonstrations and even killing of political opponents. People
must react when their mandate is stolen and this can lead to a total breakdown of law and
order. Loss of confidence and trust: Electoral malpractices may lead to loss of confidence
and trust people have in government and democracy. The government that came to power by
fraud would not gain the support of the people and people would be looking for what to do to
frustrate such government out of power. Destruction of political participation: Electoral
malpractices destroy political participation as people would be discouraged from voting as they
feel that their votes do not count. Military intervention: It is not the duty of the military to
rule, but electoral malpractices can generate trouble that would make the country ungovernable,
which would call the attention of the soldiers to seize power in order to correct things.

Article 324 of the Constitution establishes the Election Commission of India as the country's
watchdog for free and fair elections.In this context, the Representation of the People Act
(RPA), 1950, and the Representation of the People Act, 1951, were enacted by Parliament.It
governs elections to the Houses of Parliament and the Houses of the State Legislature, as well
as the qualifications and disqualifications for membership in those Houses.It also governs the
conduct of such elections and the resolution of doubts and disputes.

81. Presentation of petitions.—(1) An election petition calling in question any election may
be presented on one or more of the grounds specified in 7 [sub-section (1)] of section 100 and
section 101 to the 8 [High Court] by any candidate at such election or any elector 9 [within
forty-five days from, but not earlier than the date of election of the returned candidate or if
there are more than one returned candidate at the election and dates of their election are
different, the later of those two dates].

84. Relief that may be claimed by the petitioner.—A petitioner may, in addition to claiming a
declaration that the election of all or any of the returned candidates is void, claim a further
declaration that he himself or any other candidate has been duly elected.

Section 100 in The Representation of the People Act, 1951

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100. Grounds for declaring election to be void.—1[

(1) Subject to the provisions of sub-section (2) if 2[the High Court] is of opinion—

(a) that on the date of his election a returned candidate was not qualified, or was disqualified,
to be chosen to fill the seat under the Constitution or this Act 3[*] 4[or the Government of
Union Territories Act, 1963 (20 of 1963)]; or

(b) that any corrupt practice has been committed by a returned candidate or his election agent
or by any other person with the consent of a returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a returned candidate, has been
materially affected—

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate 5[by an agent
other than his election agent], or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote
which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any
rules or orders made under this Act, 2[the High Court] shall declare the election of the
returned candidate to be void.] 6[(2)] If in the opinion of 2[the High Court], a returned
candidate has been guilty by an agent other than his election agent, of any corrupt practice
7[*] but 2[the High Court] is satisfied—

(a) that no such corrupt practice was committed at the election by the candidate or his
election agent, and every such corrupt practice was committed contrary to the orders, and
8[without the consent], of the candidate or his election agent; 9[*]

(c) that the candidate and his election agent took all reasonable means for preventing the
commission of corrupt 10[*] practices at the election; and

(d) that in all other respects the election was free from any corrupt 11[*] practice on the part
of the candidate or any of his agents, then 12[the High Court] may decide that the election of
the returned candidate is not void.

101. Grounds for which a candidate other than the returned candidate may be declared to
have been elected.—If any person who has lodged a petition has, in addition to calling in
question the election of the returned candidate, claimed a declaration that he himself or any
other candidate has been duly elected and 1[the High Court] is of opinion—

(a) that in fact the petitioner or such other condidate received a majority of the valid votes; or

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(b) that but for the votes obtained by the returned candidate by corrupt 2[*] practices the
petitioner or such other candidate would have obtained a majority of the valid votes, 1[the
High Court] shall, after declaring the election of the returned candidate to be void declare the
petitioner or such other candidate, as the case may be, to have been duly elected.

The leader of msp party has committed corrupt practices under section 123(7) of
representative of people’s act, 1951.

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