Team Code:

INTRA MOOT COURT COMPETITION, 2023

IN THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950

IN THE MATTERS OF:

Mr. Ravi Sing ...PETITIONER

V.

Union of India …RESPONDENT

UPON SUBMISSION TO THE HON’BLE SUPREME COURT JUDGE

MEMORIAL FOR RESPONDENT

MEMORANDUM FOR THE RESPONDENT

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 TABLE OF CONTENTS

LIST OF ABBREVIATIONS..........................................................................................................3

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

CASES REFERRED............................................................................................................4
STATUTES REFFERED.....................................................................................................4
BOOKS AND ARTICLES .................................................................................................. 4

STATEMENT OF JURISDICTION ................................................................................................ 5

SUMMARY OF FACTS ................................................................................................................. 6

ISSUES RAISED ............................................................................................................................7

SUMMARY OF ARGUMENTS .................................................................................................... 8

ARGUMENTS ADVANCED ....................................................................................................... 10

Constitutionality of the NSAA under Articles 19 and 21 .................................................... 10

Reasonableness of Restrictions on Free Speech and Personal Liberty ................................ 11
Justification of Powers Granted under the NSAA as Non-Arbitrary and Proportionate ....... 12
Constitutionality of Limiting Judicial Review under Section 15 ......................................... 13

PRAYER FOR RELIEF ................................................................................................................ 15

MEMORANDUM FOR THE RESPONDENT

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1. INDEX OF AUTHORITIES

Statutes and Constitutional Provisions

• Constitution of India
o Article 14: Equality before the law; ensures that every
individual is treated equally and guarantees fairness, a
cornerstone of democratic justice. It underpins the
legitimacy of any restrictive law that seeks to balance
rights against larger public interests, such as national
security.
o Article 19(1)(a): Right to freedom of speech and
expression; guarantees citizens the liberty to express
themselves freely, a crucial pillar of a democratic society.
However, the scope of this right is not absolute and may
be subject to reasonable restrictions as laid out under
Article 19(2).
o Article 19(2): Reasonable restrictions on freedom of
speech; allows the government to impose limitations on
free speech in certain instances, such as for the
protection of national security or public order.
o Article 21: Right to life and personal liberty; protects
individuals' personal freedom, including their right to not
be deprived of life or liberty except according to
procedure established by law. This includes protections
against arbitrary detention and surveillance.
o Article 32: Right to constitutional remedies; grants
individuals the ability to directly approach the Supreme
Court for enforcement of their fundamental rights.
 • National Security (Amendment) Act, 2024 (NSAA)
o Section 4A: Expands the definition of acts undermining
national security to incorporate modern threats such as
cyber-attacks and economic sabotage, recognizing the
evolving nature of security challenges in the digital age.
o Section 6B: Authorizes preventive detention for up to 18
months, which is deemed necessary to avert impending
threats to national security. Preventive detention is
allowed under the Constitution in specific, well-defined
circumstances.
o Section 10: Grants the government the authority to
intercept communications and carry out surveillance
without a warrant in cases of immediate national security
risks, addressing the urgency of protecting national
security from rapidly evolving threats.
o Section 15: Restricts judicial review to the Supreme
Court for cases involving the NSAA, ensuring that cases
are resolved quickly and uniformly, preventing delays that
may jeopardize national security.

Judicial Precedents

• A.K. Gopalan v. State of Madras, AIR 1950 SC 27: A landmark

case where the Supreme Court interpreted the scope of
preventive detention, underscoring that the state has authority
to detain individuals to protect national security under defined
conditions.
 • ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521:
Addressed the issue of the suspension of fundamental rights
during emergencies, confirming that the state may take
extreme measures to protect national security during
extraordinary circumstances.
• Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625:
Established the principle of the basic structure doctrine, which
protects certain fundamental features of the Constitution from
being amended, ensuring that the integrity of core principles
such as justice and equality is upheld.
• Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10
SCC 1: This judgment affirmed the right to privacy as a
fundamental right, recognizing that it is subject to limitations
under the law in the interests of national security and public
safety.
• Shreya Singhal v. Union of India, (2015) 5 SCC 1: Struck down
a provision that prohibited online content, reinforcing that free
speech cannot be curtailed arbitrarily and must be subjected
to proportionality tests for justifiable restrictions.

International Legal Instruments

• Universal Declaration of Human Rights (UDHR), Article 19:

States that everyone has the right to freedom of opinion and
expression, but also recognizes that restrictions may be
imposed for the protection of national security.
• International Covenant on Civil and Political Rights
(ICCPR), Article 19: Similar to the UDHR, this article
acknowledges that free speech may be restricted in the
 interest of national security and public order, providing a
global standard for balancing rights and security.
• Johannesburg Principles on National Security, Freedom of
Expression, and Access to Information (1995): These
principles offer guidelines on restricting freedom of expression
for national security purposes, emphasizing that restrictions
must be narrowly tailored and the least intrusive possible.

2. STATEMENT OF JURISDICTION

The Respondent submits to the jurisdiction of this Hon’ble Supreme

Court under Article 32 of the Constitution of India. This Article
empowers individuals to approach the Supreme Court directly for
the enforcement of their fundamental rights, in this case, to contest
the claims made by the Petitioner regarding the constitutional
validity of the National Security (Amendment) Act, 2024 (NSAA). The
Petitioner argues that the NSAA violates fundamental rights
enshrined in the Constitution and undermines its basic structure.
This Court has the authority to adjudicate these matters and to
determine whether the NSAA aligns with constitutional principles
and India’s international obligations.

3. STATEMENT OF FACTS

Background of the NSAA:

 The National Security (Amendment) Act, 2024 (NSAA), was enacted
by the Union of India in response to the increasing threats to
national security posed by cyber terrorism, economic espionage,
and organized crime. In light of these evolving challenges, the Act
introduces measures to protect national security and public order,
focusing on preventive detention, surveillance, and judicial review
mechanisms.

Key Features of the NSAA:

• Section 4A: Expands the definition of actions detrimental to

national security to include modern threats such as cyber-
attacks, economic espionage, and the sabotage of critical
infrastructure, ensuring that the law addresses the full
spectrum of contemporary security risks.
• Section 6B: Authorizes preventive detention for up to 18
months without trial to prevent threats to national security,
with periodic reviews to ensure that it does not become
arbitrary or excessive.
• Section 10: Grants authorities the power to conduct
surveillance and intercept communications without a warrant
in cases where there is an imminent threat to national security,
allowing for swift, proactive measures.
• Section 15: Restricts judicial review of the NSAA to the
Supreme Court, ensuring that cases related to national
security are handled with the requisite speed and uniformity,
avoiding delays that could compromise security efforts.
Government’s Position:

The Union of India defends the NSAA as a necessary and

proportionate response to the increasing and evolving threats to
national security. The government emphasizes that the Act includes
adequate safeguards to prevent misuse, such as periodic reviews of
preventive detention, oversight of surveillance measures, and strict
limits on judicial review to expedite security-related cases. The
government asserts that the Act aims to balance national security
needs with the protection of fundamental rights, ensuring that
individual liberties are not unduly infringed upon.

4. ISSUES RAISED

1. Constitutional Validity of NSAA under Articles 19(2) and 21:

Whether the provisions of the NSAA, which impose restrictions
on fundamental rights, are constitutionally valid under Articles
19(2) and 21.
2. Proportionality and Necessity of NSAA Provisions: Whether
the measures introduced by the NSAA, such as preventive
detention and warrantless surveillance, are proportionate and
necessary to address contemporary security challenges.
3. Basic Structure Doctrine and Judicial Review: Whether the
centralization of judicial review in Section 15 of the NSAA
violates the basic structure doctrine by concentrating power in
a manner that undermines the independence of the judiciary.
 4. Compliance with International Norms: Whether the NSAA
aligns with international obligations under instruments like the
ICCPR, ensuring that restrictions on rights are narrowly
tailored and proportionate to legitimate national security
concerns.

5. SUMMARY OF ARGUMENTS

• Reasonable Restrictions on Rights: The Respondent argues

that the provisions of the NSAA fall within the permissible
restrictions under Articles 19(2) and 21, aimed at maintaining
national security and public order. The restrictions are neither
arbitrary nor excessive and are necessary for safeguarding the
integrity of the nation.
• Proportionality and Necessity of Measures: The Respondent
asserts that the provisions of the NSAA are narrowly tailored to
address specific, modern security threats such as cyber-
terrorism and economic espionage, with sufficient safeguards
to prevent misuse, such as periodic reviews of preventive
detention.
• Judicial Review Mechanism: The Respondent defends the
centralization of judicial review in Section 15 as a mechanism
to ensure uniformity and speed in resolving national security
cases. It argues that this does not violate the basic structure
doctrine but rather enhances judicial efficiency.
• International Compliance: The Respondent argues that the
NSAA complies with India’s international obligations under the
ICCPR and other international human rights norms, which
 permit restrictions on rights for national security purposes,
provided they are narrowly defined and proportional.

6. ARGUMENTS ADVANCED

A. Validity of Restrictions under Articles 19(2) and 21

1. Preventive Detention (Section 6B):

a. In ADM Jabalpur v. Shivkant Shukla, the Court upheld
the notion that in extraordinary circumstances, such as
threats to national security, the state has the authority to
restrict individual liberties temporarily. Preventive
detention is therefore consistent with Article 22, which
allows such measures under defined conditions to
safeguard national security.
b. Section 6B’s preventive detention provision complies
with constitutional safeguards, such as periodic reviews,
ensuring that the detention is not indefinite or without
justification.
c. The A.K. Gopalan v. State of Madras case affirmed that
preventive detention, when executed in accordance with
the procedure prescribed by law, is within constitutional
limits. Section 6B's provision for preventive detention up
to 18 months, combined with periodic reviews, ensures
that it is not an arbitrary infringement on individual
liberty. This provision strikes a necessary balance
between protecting individual rights and addressing
urgent threats to national security.
 d. The preventive detention provision aligns with the
principle established in Minerva Mills Ltd. v. Union of
India, where the Court emphasized that individual
liberties may be restricted when required for the broader
public interest, as long as these restrictions do not
infringe upon the core values of the Constitution.

2. Warrantless Surveillance (Section 10):

a. In Justice K.S. Puttaswamy (Retd.) v. Union of India, the
Supreme Court recognized the right to privacy as a
fundamental right but clarified that privacy rights could
be subjected to reasonable restrictions when necessary
for national security.
b. Section 10, which authorizes warrantless surveillance in
cases of imminent national security threats, aligns with
this principle. It ensures that there are no procedural
delays in preventing or addressing threats that could
otherwise jeopardize public safety. While privacy is a
fundamental right, it is not absolute and can be curtailed
in the interests of national security, particularly when
there is an immediate and identifiable threat.
c. The Respondent submits that Section 10's provision for
warrantless surveillance is not an overreach but a
necessary step to mitigate the risks posed by fast-
evolving security threats, such as cyber-attacks and
terrorism, where delay in response can lead to
catastrophic consequences.
B. Proportionality and Necessity of NSAA Provisions

1. Expanded Definition (Section 4A):

a. Section 4A of the NSAA broadens the scope of threats to
national security to include modern dangers such as
cyber terrorism, economic sabotage, and the
compromise of critical infrastructure. This extension is
necessary to address the rapidly changing landscape of
security threats, which were not anticipated when earlier
national security laws were enacted.
b. The inclusion of economic espionage and cyber-attacks
is especially significant in the current age of globalization
and digital interconnectedness, where threats often
transcend national borders and can have far-reaching
consequences. By ensuring that these new forms of
threats are incorporated into the definition of national
security, Section 4A helps to safeguard the nation from
evolving global risks.
c. The Respondent asserts that this expanded definition is
not overly broad but specifically targets actions that have
a direct and detrimental impact on national security,
without extending to ordinary acts of dissent or protest.
2. Preventive Detention (Section 6B):
a. Preventive detention, when used in the context of
national security, serves as a critical tool to counter
imminent threats. The Respondent submits that the
NSAA's provisions are proportionate because the
detention period is limited to 18 months, which is within
 the bounds of reasonableness for addressing urgent and
dangerous situations.
b. The provision allows for regular reviews of the detainee’s
case, ensuring that the detention does not become
punitive or indefinite. This review mechanism prevents
the potential abuse of power and ensures that the
detention remains justifiable, with oversight at multiple
levels of government. In this regard, Section 6B ensures
that the state does not wield unchecked power, but
instead is held accountable for its actions.

C. Judicial Review and Basic Structure Doctrine

1. Centralization under Section 15:

a. The Respondent submits that the concentration of
judicial review in the Supreme Court under Section 15 is
not only justified but necessary to ensure consistency
and efficiency in handling matters of national security.
b. National security cases often involve complex and urgent
matters that require swift resolution. By centralizing
judicial review, the NSAA ensures that security-related
cases are adjudicated uniformly across the country,
avoiding inconsistent rulings from lower courts that could
undermine national security objectives.
c. The exclusive jurisdiction of the Supreme Court also
promotes judicial expediency, preventing unnecessary
delays that could be detrimental in the context of time-
sensitive security threats. The Respondent argues that
this does not violate the basic structure doctrine, as it is a
 procedural safeguard that enhances the functioning of
the judiciary in cases related to national security. The
basic structure doctrine, as outlined in Minerva Mills
Ltd., preserves the Constitution’s core principles but
does not prohibit reasonable procedural changes that
improve efficiency without undermining democratic
values.
2. Impact on Judicial Independence:
a. The Respondent further argues that centralization of
judicial review does not undermine the independence of
the judiciary. The Supreme Court remains the ultimate
guardian of fundamental rights and constitutional
principles, and its jurisdiction in national security matters
is rooted in its role as the highest court of the land.
b. The establishment of exclusive jurisdiction for national
security-related matters is a measure intended to
safeguard national interests without compromising the
integrity or independence of the judiciary. The
Respondent submits that judicial review remains robust,
even within the exclusive framework established by
Section 15.

D. Alignment with International Norms

1. Proportional Restrictions on Free Expression (ICCPR and

UDHR):
a. The Respondent asserts that the NSAA is fully in line with
India’s international obligations under the International
Covenant on Civil and Political Rights (ICCPR), which
 permits restrictions on free expression for reasons of
national security, public order, or public health.
Specifically, ICCPR Article 19 allows for the restriction of
free speech where it is necessary for protecting national
security, a principle that resonates with the provisions of
the NSAA.
b. Furthermore, Article 19 of the Universal Declaration of
Human Rights (UDHR) also acknowledges that freedom
of speech can be curtailed in the interest of national
security. This international framework supports the view
that restrictions under the NSAA, including preventive
detention, surveillance, and expanded definitions of
threats, are consistent with global standards on
balancing rights and security needs.
c. The Johannesburg Principles further endorse the idea
that national security measures must meet a standard of
proportionality, ensuring that restrictions on freedoms
are narrowly tailored to address specific and direct
threats. The Respondent submits that the provisions of
the NSAA adhere to this standard, as they target actions
that pose a clear and present danger to national security,
while minimizing the impact on individual freedoms.
7. PRAYER

In light of the comprehensive submissions made above, the

Respondent respectfully prays that this Hon’ble Court:

1. Declare the National Security (Amendment) Act, 2024, as

constitutionally valid, recognizing the necessity of the
provisions contained within the Act to address contemporary
security challenges while respecting constitutional
safeguards.
2. Uphold the provisions of Sections 4A, 6B, 10, and 15 of the
NSAA as necessary and proportionate measures to safeguard
national security, ensuring that they comply with
constitutional principles, international norms, and the
overarching need to maintain public order.
3. Dismiss the Petitioner’s claims challenging the validity of the
NSAA, affirming that the Act appropriately balances individual
rights with the imperative of national security in a manner
consistent with constitutional principles and international
obligations.

Respectfully submitted,

Counsel for the Respondent