MEMORIAL ON BEHALF OF RESPONDENT

PARTICIPATION CODE- C-74

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY , LUCKNOW.

CONCOURS,2022

BEFORE,

THE HON’BLE SUPREME COURT OF SATYADESH

WRIT PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION

CHAND NAWAB………………………………………………………… PETITIONER

v.

GOVERNMENT OF SATYADESH……………………………… RESPONDENT NO. 1

DOGE GROUP…………………………………………………… RESPONDENT NO.2

CLUBBED WITH

SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF THE CONSTITUTION

BABURAO GANPATRAO APTE…………………………….. PETITIONER

v.

STATE OF RIVER FRONT……………………………………. RESPONDENT

MEMORIAL FILED ON BEHALF OF RESPONDENT

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MEMORIAL ON BEHALF OF RESPONDENT

TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………3

LIST OF ABBREVIATIONS ………………………………………….4

STATEMENT OF JURISDICTION……………………………………5

STATEMENT OF FACTS……………………………………………. 6

ISSUES RAISED…………………………………………………...….8

SUMMARY OF ARGUMENTS………………………………………9

ARGUMENTS ADVANCE……………………………………………10

1) THAT THE SURVEILLANCE ACTIVITIES THAT ARE CARRIED OUT BY THE

GOVERNMENT OF SATYADESH UNDER SECTION 5(2) OF SATYADESH
TELEGRAPH ACT, 1885 AND SECTION 69 OF THE SATYADESH
INFORMATION TECHNOLOGY ACT, 2000 ARE CONSTITUTIONAL.

2) THAT THE PETITIONER CANNOT PROCEED AGAINST THE DOGE GROUP

FOR THE INFRINGEMENT OF RIGHT TO PRIVACY UNDER ARTICLE 21 OF
THE SATYADESH CONSTITUTION.

3) THAT THE EVIDENCE GATHERED AGAINST BABURAO GANPATRAO APTE

THROUGH SURVEILLANCE IS ADMISSIBLE UNDER THE LAW.

PRAYER……………………………………………………………….14

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MEMORIAL ON BEHALF OF RESPONDENT

INDEX OF AUTHORITIES

CONSTITUTIONAL PROVISIONS -
Article 21 of the Indian Constitution.
Article 12 of the Indian Constitution.

STATUTES-
Indian Telegraph Rules, 1951.
Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption of Information) Rules, 2009.

CASES-
Ritesh Sinha v. the State of Uttar Pradesh and Anr. (AIR 1961 SC 1808)
S.K. Mukherjee v. Chemical Allied Products (AIR 1962 Cal 10)
State of Maharashtra v. Natwarlal Damodardas Soni, ((1980) 4 SCC 669)
R.M. Malkani v. State of Maharashtra, (AIR 1973 SC 157)
Yashwant Sinha and Ors. v. Central Bureau of Investigation ((2020) 2 SCC 338),
Kuruma v. the Queens ((1955) AC 197 (U.K.))

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MEMORIAL ON BEHALF OF RESPONDENT

LIST OF ABBREVIATIONS

ABBREVIATION MEANING

Hon’ble Honourable

v. Versus

AIR All India Reporter

SCC Supreme Court Cases

ANR Another

SC Supreme Court

Ors. Others

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MEMORIAL ON BEHALF OF RESPONDENT

STATEMENT OF JURISDICTION
The Respondent humbly submits this memorandum in response to the petition filed
before the Honourable Supreme Court under Article 32, and under Article 136. The
present memorandum sets forth the facts, contentions and arguments in the present
case.

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MEMORIAL ON BEHALF OF RESPONDENT

STATEMENT OF FACTS

1) According to leading technology experts, Omegasus is a spyware (Trojan/Script) that

can be installed remotely on devices running on Apple’s iOS & Google’s Android
operating systems. It is developed and marketed by a private technology firm “Doge
Group”, which is based out of Transport Nagar, a country in the Middle-East. The
policy document released by the Doge Group in late 2020, claimed that the Group
sells Omegasus to “vetted governments” for “lawful interception”, which is
understood to mean combating terrorism and organized crime, as the firm claims, but
suspicions exist that it is availed for other purposes.
On July 18th, 2021, seventeen media organizations from across the globe, including
one from Satyadesh, produced a report stating that the Omegasus software had been
used to spy on various persons in 2019 and 2020. Doge Group clients were reportedly
using the Omegasus software to spy on around 50,000 leaked phone numbers. Almost
300 of these numbers belonged to Satyadeshians, many of whom are prominent
journalists, activists, as well as members of the judiciary. The same report also
revealed that Omegasus had been used to infiltrate the mobile devices of Raʼs al Ghul
(opposition party leader), Chand Nawab (journalist who usually criticises government
and Baburao Apte. The report triggered a huge outrage in the country, prominently
led by the opposition party leaders, activists and media persons.
2) The Government of Satyadesh issued a public response to the controversy. The said
response did not clarify as to whether the Government had used the Omegasus
Spyware. Instead, it only mentioned that the Government was committed to ensuring
free speech for the citizens, and under the provisions of Section 5(2) of Satyadesh
Telegraph Act, 1885 and Section 69 of the Satyadesh Information Technology Act,
2000, there is a well-established procedure through which lawful interception of
electronic communication is carried out in order for the purpose of national security,
by agencies at the Centre and States.
3) Agitated by the said response, Chand Nawab, on 1st November 2021, filed a Writ
Petition before the Supreme Court of Satyadesh under Article 32 of the Constitution,
challenging the constitutionality of surveillance activities that are carried out by the
Government under Section 5(2) of Satyadeshian Telegraph Act, 1885 and Section 69

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MEMORIAL ON BEHALF OF RESPONDENT

of the Information Technology Act, 2000. The said petition, which was admitted by
the Supreme Court, stated that the above provisions are overbroad, unconstitutionally
vague and provide for no judicial oversight.
4) On May 10, 2020, the Delhi Police raided the residence of a student leader and
activist, Baburao Ganpatrao Apte and arrested him under various charges of sedition,
criminal conspiracy and instigating communal violence in relation to riots erupted in
February 2020 in River Front, the capital of Satyadesh. Baburao is a known critic of
the Virat Mogi Government, and was charged with sedition and arrested in February
2016 too, for having connections with some banned organizations. On February 14th,
2021, the Sessions Court of Parag (a district within the State of River Front) convicted
Baburao for the aforementioned offences based on the evidence filed by the
investigating agencies, included communication between Baburao and Kabira gang.

5) During the same time period, Baburao filed a criminal appeal before the High Court
of River Front against the order dated February 14th 2021, passed by the Sessions
Court of Parag, on the ground that the evidence filed by the investigative agencies
was inadmissible, having been obtained illegally and unconstitutionally, via
surveillance. The High Court dismissed the appeal filed by Baburao and affirmed the
order of the Sessions Court. As a result, Baburao filed a Special Leave Petition (under
Article 136 of the Constitution) before the Supreme Court of Satyadesh against the
order passed by the High Court of River Front.

6) The SLP was admitted, and the State of River Front in its response before the
Supreme Court stated that the State is empowered to carry out surveillance in the
interest of “public safety” and even if there had been illegality in the collection of the
evidence
7) Considering the commonality of facts and circumstances, the Supreme Court has
agreed to club the two petitions and hear them together. The matter has been listed for
hearing before a constitutional bench on January 29th, 2022.

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MEMORIAL ON BEHALF OF RESPONDENT

ISSUES RAISED

ISSUE 1

Whether the surveillance activities that are carried out by the Government of Satyadesh under
Section 5(2) of Satyadesh Telegraph Act, 1885 and Section 69 of the Satyadesh Information
Technology Act, 2000 are constitutional?

ISSUE 2

Whether the petitioner can proceed against the Doge Group for the infringement of right to
privacy under Article 21 of the Satyadesh Constitution?

ISSUE 3

Whether the evidence gathered against Baburao Ganpatrao Apte through surveillance is
admissible under the law?

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MEMORIAL ON BEHALF OF RESPONDENT

SUMMARY OF ARGUMENTS

1) THAT THE SURVEILLANCE ACTIVITIES THAT ARE CARRIED OUT BY THE

GOVERNMENT OF SATYADESH UNDER SECTION 5(2) OF SATYADESH
TELEGRAPH ACT, 1885 AND SECTION 69 OF THE SATYADESH INFORMATION
TECHNOLOGY ACT, 2000 ARE CONSTITUTIONAL.

There are enough safeguards within the scheme of these provisions to ensure that there is no
misuse of the surveillance powers that have granted by the law to the Government. These
safeguards include an established oversight mechanism in the form of a review committee
headed by a high-ranking government official. The government of Satyadesh should not be
held liable for the surveillance activities that are carried out by it under Section 5(2) of
Satyadesh Telegraph Act, 1885 and Section 69 of the Satyadesh Information Technology Act,
2000.

2) THAT THE PETITIONER CANNOT PROCEED AGAINST THE DOGE GROUP FOR
THE INFRINGEMENT OF RIGHT TO PRIVACY UNDER ARTICLE 21 OF THE
SATYADESH CONSTITUTION.

Doge Group does not fall under the category of ‘State’ according to Article 12 of the
constitution. Therefore, Doge Group cannot be held liable for violation of privacy rights of
the citizens.

3) THAT THE EVIDENCE GATHERED AGAINST BABURAO GANPATRAO APTE

THROUGH SURVEILLANCE IS ADMISSIBLE UNDER THE LAW.

Judiciary in the case of Natwarlal Damodardas Soni , and R.M. Malkani, held that any
illegally obtained evidence is admissible in the Court of Law if it is relevant to the matter

The evidence gathered against Baburao Ganpatrao Apte through surveillance is therefore
admissible under the law.

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MEMORIAL ON BEHALF OF RESPONDENT

ARGUMENTS ADVANCED

1) THAT THE SURVEILLANCE ACTIVITIES THAT ARE CARRIED OUT BY THE

GOVERNMENT OF SATYADESH UNDER SECTION 5(2) OF SATYADESH
TELEGRAPH ACT, 1885 AND SECTION 69 OF THE SATYADESH INFORMATION
TECHNOLOGY ACT, 2000 ARE CONSTITUTIONAL.

It is humbly submitted before the Hon’ble Supreme Court of Satyadesh that the surveillance
activities that are carried out by the Government of Satyadesh under Section 5(2) of
Satyadesh Telegraph Act, 1885 and Section 69 of the Satyadesh Information Technology Act,
2000 are constitutional.

Government agencies of Satyadesh have a well-established protocol for interception, which

includes sanction and supervision from highly ranked officials in central & state
governments, for clear stated reasons only in national interest.

The requests for these lawful interceptions of electronic communication are made as per
relevant rules under the provisions of Section 5(2) of Satyadesh Telegraph Act, 1885 and
Section 69 of the Information Technology Act, 2000. There are enough safeguards within the
scheme of these provisions to ensure that there is no misuse of the surveillance powers that
have granted by the law to the Government. These safeguards include an established
oversight mechanism in the form of a review committee headed by a high-ranking
government official.

In 2019, the hon’ble apex court in the judgment of Ritesh Sinha v. the State of Uttar Pradesh
and Anr., it was held that though the right to privacy is a fundamental right it is not an
absolute one. Just like other fundamental rights, it is subject to restrictions. Thus, this
judgment upheld the previous Puttaswamy judgment.

1
Ritesh Sinha v. the State of Uttar Pradesh and Anr. (AIR 1961 SC 1808)

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MEMORIAL ON BEHALF OF RESPONDENT

Therefore, the government of Satyadesh should not be held liable for the surveillance
activities that are carried out by it under Section 5(2) of Satyadesh Telegraph Act, 1885 and
Section 69 of the Satyadesh Information Technology Act, 2000.

2) THAT THE PETITIONER CANNOT PROCEED AGAINST THE DOGE GROUP FOR
THE INFRINGEMENT OF RIGHT TO PRIVACY UNDER ARTICLE 21 OF THE
SATYADESH CONSTITUTION.

It is humbly submitted before the Hon’ble Supreme Court that the petitioner cannot proceed
against the Doge Group for the infringement of Right to Privacy under Article 21 of the
Satyadesh Constitution.

Doge Group cannot be held liable since the Group sells Omegasus to “vetted governments”
for “lawful interception”, which is understood to mean combating terrorism and organized
crime as claimed by it in 2020.

According to it’s policy document, the role of the Doge Group is to merely license Omegasus
to sovereign states and state agencies, it does not operate Omegasus, has no visibility into its
usage, and does not collect information about customers. The action it takes in case of
misuse is that the Review Committee of the Doge Group undertakes a thorough investigation
into cases where it is suspected that our technology has been misused by the sovereign state.
Investigations may include review of data, interviews, meetings, and evaluation of objective
risk factors, including an analysis of whether the customer has engaged in previous human
rights abuses.

As a result of the findings, the customer may be subject to corrective action ranging from
retraining to termination of the relationship. Therefore, it can be said through all this that the
Doge Group does have a mechanism for improper use of it’s software.

Doge Group is also a non-state entity which cannot held liable for infringement of the Right
to Privacy under Article 21 of the Constitution. As claimed by the petition of Chand Nawab
that Doge Group is playing an active role in the surveillance activities carried out by the State
is performing a function that could fairly be called a State function, and is therefore liable for
the breach of the fundamental right to privacy of citizens is false.

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MEMORIAL ON BEHALF OF RESPONDENT

Doge Group does not fall under the category of ‘State’ according to Article 12 of the
constitution. Article 12 has been defined in the Constitution as:

In this part, unless the context otherwise requires, ‘the State’ includes:

1. The Government and the Parliament of Satyadesh;

2. The Government and the Legislature of each of States;

3. Local Authorities; or

4. Other Authorities;

Within the territory of Satyadesh or under the control of the Government of Satyadesh.

In S.K. Mukherjee v. Chemical Allied Products, the Supreme Court held that a
“COMPANY” is not a state and that’s why fundamental rights cannot be enforced against
that company. Therefore, Doge Group cannot be held liable for violation of privacy rights of
the citizens.

3) THAT THE EVIDENCE GATHERED AGAINST BABURAO GANPATRAO APTE

THROUGH SURVEILLANCE IS ADMISSIBLE UNDER THE LAW.

It is humbly submitted before the Hon’ble Supreme Court that the evidence gathered against
Baburao Ganpatrao Apte through surveillance is admissible under the law.

Judiciary in the case of State of Maharashtra v. Natwarlal Damodardas Soni , and R.M.
Malkani v. State of Maharashtra , held that any illegally obtained evidence is admissible in
the Court of Law if it is relevant to the matter, but the value of such evidence is to be dealt
with care and caution by the Courts.

2
S.K. Mukherjee v. Chemical Allied Products (AIR 1962 Cal 10)

3
State of Maharashtra v. Natwarlal Damodardas Soni ((1980) 4 SCC 669)

4
R.M. Malkani v. State of Maharashtra, (AIR 1973 SC 157)

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MEMORIAL ON BEHALF OF RESPONDENT

In the landmark case of Pooran Mal v. Director of Inspection of Income Tax, the Indian
Supreme Court held that no Constitutional or Statutory construction prescribes to exclude the
illegally obtained evidence thereby the only test of admissibility of evidence is the relevancy
of the evidence. In the recent Rafael Judgment of Yashwant Sinha and Ors. v. Central Bureau
of Investigation, the Supreme Court retaliated the Pooran Mal case and held the test of
admissibility of any evidence lies in its ‘relevancy’ unless it is expressly or impliedly barred
by the Constitutional provision or Statutory mandate.

Under the Queen’s rule in the United Kingdom, the evidence is made admissible even if it is
illegally obtained through the unlawful procedure. In the landmark case of Kuruma v. the
Queens, it was held an illegally obtained evidence is admissible if it is relevant to the case
and it is the discretion of the Court to exclude such illegally obtained evidence if it leads to
unfairness to the accused which was later known to be ‘Unfair Operation Rule.’

Therefore, the evidence gathered against Baburao Ganpatrao Apte through surveillance is
admissible under the law.

5
Pooran Mal v. Director of Inspection of Income Tax (AIR 1974 SC 348)

6
Yashwant Sinha and Ors. v. Central Bureau of Investigation((2020) 2 SCC 338)

7
Kuruma v. the Queens ((1955) AC 197 (U.K.))

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MEMORIAL ON BEHALF OF RESPONDENT

PRAYER

Therefore, in the light of the facts of the case, issues raised, arguments advanced and
authorities cited this Hon’ble court may be pleased to adjudge and declare that:

1) That the surveillance activities that are carried out by the Government of Satyadesh under
Section 5(2) of Satyadesh Telegraph Act, 1885 and Section 69 of the Satyadesh Information
Technology Act, 2000 are constitutional.

2) That the petitioner cannot proceed against the Doge Group for the infringement of right to
privacy under Article 21 of the Satyadesh Constitution.

3) That the evidence gathered against Baburao Ganpatrao Apte through surveillance is
admissible under the law.

And /Or

may pass any other order in favour of the petitioner that it may deem fit in the interest of
justice, equity and good conscience.

SD/-

Counsel for Respondent.

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