CONSTITUTIONAL LAW MOOT, CLINICAL COURSE- IV

IN THE SUPREME COURT OF INDIA JURIDICATURE AT NEW DELHI

WRIT PEITION

Writ Petition No.__ of 2024

[WRIT PETITOIN FILED UNDER ARTICLE 32 READ WITH ARTICLE 142

OF THE CONSTITUTION OF INDIA 1950]

IN THE MATTER OF:

 PRIYA ARORA ... PETITIONER

VERSUS

 UNION OF INDIA & ORS ...RESPONDENT

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

(WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT)

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LIST OF ABBREVIATIONS
A Article
AIR All India Reporter
Anr Another
CBI Central Bureau of Investigation
COI Constitution of India
DPDPA Digital Personal Data Protection Act, 2023
DPA Data Protection Authority
ECHR European Convention on Human Rights
Ed. Edition
GDPR General Data Protection Regulations
GOI Government of India
Hon’ble Honorable
HC High Court
IT Act Information Technology Act, 2000
MeitY Ministry of Electronics and Information Technology
Ors Others
S/ Sec. Section
SC Supreme Court
SCC Supreme Court Case
UOI Union of India

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TABLE OF CONTENT

S.NO HEADING PAGE.NO

1. INDEX OF AUTHORITIES Pg.

2. STATEMENT OF JURISDICTION Pg.

3. STATEMENT OF FACTS Pg.

4. ISSUE RAISED Pg.

Issue I- Whether the provisions of the DPDPA 2023, which allow for
access to private messages and emails without explicit consent in cases of
national security and public order, violate the fundamental right to privacy
under Article 21 of the Indian Constitution?

Issue II- Whether the actions of the CBI, under the instructions of MeitY,
in accessing Priya Arora's private messages and emails without her
explicit consent, were justified and proportionate under the test of
proportionality laid down in the Puttaswamy judgment?

Issue III-Whether the surveillance and investigation into Priya Arora's

online activities constitute a violation of her freedom of speech and
expression under Article 19(1)(a) of the Indian Constitution?

Issue IV- Whether the balance struck by the DPDPA 2023 between
protecting personal data and ensuring national security and public order is

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constitutionally valid?

5. SUMMARY OF ARGUMENTS Pg.

6. ARGUMENT ADVANCED Pg.

Issue I- Whether the provisions of the DPDPA 2023, which allow for
access to private messages and emails without explicit consent in cases of Pg
national security and public order, violate the fundamental right to privacy
under Article 21 of the Indian Constitution?

Issue II- Whether the actions of the CBI, under the instructions of MeitY,
in accessing Priya Arora's private messages and emails without her Pg.
explicit consent, were justified and proportionate under the test of
proportionality laid down in the Puttaswamy judgment?
Pg.
Issue III-Whether the surveillance and investigation into Priya Arora's
online activities constitute a violation of her freedom of speech and
expression under Article 19(1)(a) of the Indian Constitution?
Pg.
Issue IV- Whether the balance struck by the DPDPA 2023 between
protecting personal data and ensuring national security and public order is
constitutionally valid?

7. PRAYER Pg.

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INDEX OF AUTHORITIES

LIST OF CASES

S. NO. NAME CITATION

1. K.S. Puttaswamy v. UOI (2017) 10 SCC 1
2. PUCL v. Union of India (2004) 9 SCC 580
3. Gobind v. State of M.P. (1975) 2 SCC 148
4. Manohar Lal Sharma v. UOI 2021 SCC OnLine SC
985
5. ML Kamra v New India Assurance 1992 (2) SCC 36, para 4,
pg. 41
6. Vivek Narayan Sharma v. Union of India 2023 SCC Online SC 1

7. MRF Ltd. v. Inspector Kerala Government (1998) 8 SCC 227

8. Union of India v. Motion Pictures Association 1999 (3) SCR 875

9. Gopalan v. State of Madras (1950) SCR 88 (253-4)

10. Santokh Singh v. Delhi Administration AIR 1973 SC 1091
11. Laxmi v. State of U.P. AIR 1971 SC 873
12. Confederation of Ex-serviceman Association v. Union (2006) 8 SCC 399
of India
13. Narottamdas v. state of Madhya Pradesh AIR 1667 1964 SCR (7)
820

14. Ram Manohar Lohia v. Sundaram 1955 SCC OnLine Mani

1
15. Subhramaniyam Swamy v. UOI AIR 2016 SC 2728

16. Investigating Directorate: Serious Economic Offences 2000 SCC OnLine

v. Hyundai Motor Distributors (Pty) Ltd., ZACC 14

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17. NM v. Charlene Smith 2007 SCC OnLine

ZACC 6
18. Maneka Gandhi v. UOI (1978) 1 SCC 248

19. Ajay Hasia v. Khalid Mujib Sehravardi, 1981) 1 SCC 722

20. A.P. Dairy Development Corpn. Federation v. B. (2011) 9 SCC 286
Narasimha Reddy
21. Leander v. Sweden 26 March 1987, Series A
no. 116, ¶ 66
WEBLIOGRAPHY

1. www.manupatra.com

2. www.indiankanoon.com

3. www.highcourtcases.com

4. www.supremecourtcases.com

5. www.scconline.com

BOOKS REFERRED

1. Taxmann’s Digital Personal Data Protection Act, 2023

2. M.P. Jain’s Indian Constitutional Law, 8th Ed., Lexis Nexis

3. The Information Technology Act, 2000, Professional’s Bare Act

STATUTES

1. THE DIGITAL PERSONAL DATA PROTECTION ACT, 2023

2. THE CONSTITUION OF INDIA,1950

3. THE INFORMATION TECHNOLOGY ACT, 2000

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4. THE INFORMATION TECHNOLOGY RULES, 2009

5. THE INDIAN EVIDENCE ACT, 1872

STATEMENT OF JURISTICTION

The State submits to the Hon’ble Court under Article 32 of the Constitution of India;

“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 warrant and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part.

(3)Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction ill or any of the powers exercisable by the Supreme Court under clause (2).

(4)The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.”

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SYNOPSIS OF FACTS

1. Background
Ms. Priya Arora is a prominent social media influencer and digital rights activist known
for criticizing government policies, including the handling of the COVID-19 pandemic.
She recently posted a series of tweets criticizing the government's management of the
COVID-19 pandemic and its implications on public health.
2. Investigation Initiation
In response to concerns of potential public unrest and misinformation spread during a
pandemic, the Central Bureau of Investigation (CBI), acting under the directives of the
Ministry of Electronics and Information Technology (MeitY), initiated an investigation
into Ms. Arora's online activities.
3. Legal Framework
The investigation was conducted under the authority granted by the Digital Personal Data
Protection Act, 2023 (DPDPA 2023). This legislation aims to regulate the collection,
storage, and processing of personal data while ensuring exceptions for cases involving
national security or public order.
4. Access to Communications

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During the course of the investigation, the CBI accessed Ms. Arora's private messages
and emails without her explicit consent. This action was justified under the provisions of
DPDPA 2023, which allow for such access in circumstances where national security or
public order are at risk.

5. National Security Concerns

The government's actions were motivated by legitimate concerns over national security
and maintaining public order amidst a pandemic. Ms. Arora's posts were potentially
misleading and capable of causing unrest, necessitating intervention to safeguard public
safety.

6. Proportionality
The actions taken by the government were proportionate to the legitimate aim of
protecting public order and national security during a crisis. The government maintains
that these measures were necessary to mitigate the risks posed by misinformation.

7. Public Interest

The Union of India asserts that the investigation and surveillance activities were
conducted in the broader public interest, aiming to uphold public trust in government
actions and ensure the welfare of the citizens during a critical period.

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ISSUE RAISED

ISSUE: I

Whether the provisions of the DPDPA 2023, which allow for access to private messages and
emails without explicit consent in cases of national security and public order, violate the
fundamental right to privacy under Article 21 of the Indian Constitution?

ISSUE: II

Whether the actions of the CBI, under the instructions of MeitY, in accessing Priya Arora's
private messages and emails without her explicit consent, were justified and proportionate under
the test of proportionality laid down in the Puttaswamy judgment?

ISSUE: III

Whether the surveillance and investigation into Priya Arora's online activities constitute a
violation of her freedom of speech and expression under Article 19(1)(a) of the Indian
Constitution?

ISSUE: IV

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Whether the balance struck by the DPDPA 2023 between protecting personal data and ensuring
national security and public order is constitutionally valid?

SUMMARY OF ARGUMENTS

ISSUE: I

Whether the provisions of the DPDPA 2023, which allow for access to private messages and
emails without explicit consent in cases of national security and public order, violate the
fundamental right to privacy under Article 21 of the Indian Constitution?

It is humbly submitted before this Hon'ble Court that the provisions of the DPDPA 2023, which
allows for access to private messages and emails without explicit consent in cases of national
security and public order, do not violate the fundamental right to privacy under Article 21 of the
Indian Constitution.

ISSUE: II

Whether the actions of the CBI, under the instructions of MeitY, in accessing Priya Arora's
private messages and emails without her explicit consent, were justified and proportionate
under the test of proportionality laid down in the Puttaswamy judgment?

It is humbly submitted before this Hon'ble Court that the actions of the CBI, under the
instructions of MeitY, were justified and proportionate under the test of proportionality laid

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down in the Puttaswamy judgment as firstly, the action of CBI is legal, secondly, the action of
CBI is proportionate, thirdly, the action of CBI is necessary [2.3]

ISSUE: III

Whether the surveillance and investigation into Priya Arora's online activities constitute a
violation of her freedom of speech and expression under Article 19(1)(a) of the Indian
Constitution?

It is humbly submitted before this Hon'ble Court that the matters related to social and national
importance should and always take precedence over the matters of speech and expression as
these matters of national importance, directly or indirectly, affect the security of the people. The
issue at hand cannot be considered in isolation; it is clear that mere social media posts critical of
State conduct are protected under Article 19(1)(a), and dissent is a fundamental aspect of a
vibrant and empathetic democracy. However, the circumstances of the present case justify the
need for surveillance and investigation into the online activities of Priya Arora. The sequence of
events in this case warranted the actions to maintain public order and prevent public unrest
within the meaning of Article 19(2). Therefore, the immediate measure to enforce restrictions on
freedom of speech and expression is constitutionally justified.

ISSUE: IV

Whether the balance struck by the DPDPA 2023 between protecting personal data and
ensuring national security and public order is constitutionally valid?

It is humbly submitted before this Hon'ble Court that the balance struck by the DPDPA 2023
between protecting personal data and ensuring national security and public order is
constitutionally valid as firstly, the presumption of constitutionality is attached with the DPDPA
2023; secondly, the DPDPA 2023 provides procedural guarantees against arbitrariness. and
thirdly, the DPDPA 2023 strikes a balance between individual and State interest;

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ARGUMENTS ADVANCED

ISSUE: I

Whether the provisions of the DPDPA 2023, which allow for access to private messages and
emails without explicit consent in cases of national security and public order, violate the
fundamental right to privacy under Article 21 of the Indian Constitution?

The Counsel on behalf of the respondents humbly submits before the Hon’ble Supreme Court of
India that the exemption power under Section 17 of the DPDPA 2023 does not violate the
fundamental right to privacy under Article 21 of the Indian Constitution.

[1.1] SECTION 17 DOES NOT VIOLATE DATA PRIVACY OF INDIVIDUAL.

Right to privacy is a part of right to ‘life’ and ‘personal liberty’ enshrined under Article 21 of the
Constitution of India. The data protection right has been strongly linked to the right to privacy.
Section 17 of the DPDPA 2023 does not violate right to privacy but merely imposes a reasonable
restriction. These exemptions do not violate Article 21 of the Indian Constitution because
although the right to privacy is enshrined in the said Article, the protection granted is not
absolute.1 The Indian Constitution does not provide for such a right without reasonable
restrictions. The exemptions allowed are the ones that are essentially required to maintain
national security and public order. Section 17 of the DPDPA 2023 enlists certain exemptions

1
K.S. Puttaswamy v. Union of India (2017) 10 SCC 1

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under which the State can access the personal data of its citizens. Under Section 17 (1) (a) 2,
personal data can be processed for performance of any judicial, quasi-judicial, regulatory or
supervisory functions. Clause (b) states that personal data can be processed for investigations
purposes.3 Further, section 354, protects any action taken in good faith by the central government
or anyone acting under the provisions of the Act from any suit or legal proceedings against
them.

In the instant case, the petitioner has been an outspoken critic of the government’s policies on
various social media platforms. The petitioner had posted a series of tweets criticizing the
government’s handling of COVID-19 pandemic and its implications on public health.
Considering the fact that the petitioner is a social media influencer and digital rights activist 5, she
has a large number of followers and her tweets were misleading and had the potential to cause
public unrest. The public at large, at the time of COVID-19 pandemic, was very sensitive
towards any information. Any information that was not authentic could impact the public’s
mental health and could lead to public outrage which raised security concerns. It posed a
potential threat and thus, there was a need to curtail the same.

[1.2.] RIGHT TO PRIVACY IS NOT AN ABSOLUTE RIGHT.

In the case of K.S. Puttaswamy 6 (Privacy-9 J.), it was stated that an invasion of life and personal
liberty must meet the threefold requirement of: Legality (which postulates the existence of law;
need (defined in terms of legitimate state aim); and proportionality (which ensures a rational
nexus between the objects and the means adopted to achieve them.

The State’s interest is to ensure that life and liberty is preserved and must balance the same. In
today’s world, information gathered by intelligence agencies through surveillance is essential for
the fight against violence and terror. To access this information, a need may arise to interfere
with the right to privacy of an individual, provided it is carried out only when it is absolutely
necessary for protecting national security/interest and is proportional.7

2
Section 17 (1) (a), DPDPA 2023
3
Section 17 (1) (b), DPDPA 2023
4
Section 35, DPDPA 2023
5
Para 2, Preposition
6
Para 35 to 37, K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
7
Supra Note 6, Para 34 and 39 to 41

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In one of the cases,8 a 3-judge bench held that “Right to privacy is subservient to that of security
of State.” Holding that the right to privacy is not absolute, the court said that whether the right to
privacy has been breached or not depends on the facts and circumstances of the particular case
and a law imposing reasonable restriction upon it must be upheld to be valid.9

Different forms of surveillance and data gathering by intelligence agencies to fight terrorism,
crime and corruption in national interest and/or for national security, are accepted norms all over
the world. The apprehension of the respondent is that any inquiry in this behalf should not
jeopardize national security and the steps taken by it to protect national security 10.

In the present case, the petitioner’s tweets had potential to cause public unrest and for the
purpose of investigation only, the MeitY had instructed CBI to access the Petitioner’s online
activities11. There was a reasonable requirement for the act of CBI and the same cannot be
challenged on the grounds that it violated Article 21.

[1.3.] PRE-EXISTENCE OF SIMILAR PROVISIONS.

The IT Act 2000 entails similar provisions under section 69. The said provision allows the
government or its officers to issue directions for interception or monitoring or decryption of any
information through any computer resource, if it is necessary or expedient to do so, in the interest
of the State or public order or investigation. The IT Rules 2009 allows the government to
conduct targeted surveillance.

The act of the CBI under the exemptions mentioned in Section 17 of the DPDPA 2023 is in
consonance with Section 69 of the IT Act 2000 and IT Rules 2009 which further justifies that
Article 21 is not being violated in the present case, since there are similar pre-existing laws.

It is therefore, humbly submitted before the Hon’ble court that Article 21 is not being violated in
the instant case. The act of MeitY to instruct the CBI for undertaking such investigation was an

8
PUCL v. Union of India, (2004) 9 SCC 580
9
Gobind v. State of M.P., (1975) 2 SCC 148
10
Para 56, Manohar Lal Sharma v. UOI, 2021 SCC OnLine SC 985
11
Para 3, Preposition

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action towards preservation and maintenance of national security and public order. During
situations like COVID-19 pandemic it becomes extremely essential for the State to ensure that no
act of any person causes an additional discomfort and sense of fear in the minds of already
suffering masses. It is also important for the public to act cautiously and practice their
fundamental rights judiciously in times of such emergency, especially for someone like the
present petitioner whose statements could easily be spread over the internet regardless whether
the same is authentic and factually correct or not.

ISSUE: II

Whether the actions of the CBI, under the instructions of MeitY, in accessing Priya Arora’s
private messages and emails without her explicit consent, were justified and proportionate
under the test of proportionality laid down in the Puttaswamy judgment?

It is humbly submitted before this Hon’ble Court that the actions of the CBI, under the
instructions of MeitY, were justified and proportionate under the test of proportionality laid
down in the Puttaswamy judgment as firstly, the action of CBI is legal secondly, the action of
CBI is proportionate thirdly, the action of CBI is necessary.

It is humbly submitted that in the pacesetting 9 judge-bench judgement in KS Puttaswamy v.

Union of India12, the right to privacy was read as an integral part of Article 21 13 of the Indian
Constitution14. As a part of the rights guaranteed by Part III of the Constitution 15, the same is not
an absolute right and is subject to reasonable restrictions.

It is humbly submitted that the Puttaswamy judgement 16 has laid down that an action abridging
the right to privacy must pass the “test of proportionality 17, which has three-fold requirement of:

i. legality, which postulates the existence of law;

ii. need, defined in terms of a legitimate state aim; and

12
K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1
13
Article 21, Constituton of India
14
supra note 13, pg. 637, para 65.3
15
supra note 13
16
supra note 13
17
ibid, Headnote, part III, para W, pg. 10

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iii. proportionality which ensures a rational nexus between the objects and the means adopted to
achieve them

[2.1] The action of CBI is legal

It is humbly submitted that for a restriction on the right to privacy to be reasonable, it must
ensure “legality, which postulates the existence of law”, therefore ensuring that the restrictions
are warranted by a legislatively enacted law. The Digital Personal Data Protection Act, 2023
(hereinafter “PDPA 2023”)18 is an Act enacted by the Parliament and is therefore legal. In
considering the legality of government surveillance, Justice Alito observed that the legislative
branch is far better positioned to respond to changes in technology than the courts are19.

It is humbly submitted that the action of the CBI is legal under the provisions of the PDPA 2023
as the provisions allow for access to citizen’s private messages and emails without explicit
consent in cases of exceptions where national security and public order are at risk.

It is humbly submitted that the presumption as to the constitutionality of the legislation is the
rule20 unless there is an ex-facie violation of the fundamental rights. Hence, it must be presumed
that the PDPA Act is constitutional and so are its provisions catering to exceptional
circumstances wherein the right to privacy is permissible to be abridged.

[2.2] The action of CBI is necessary

It is humbly submitted that for a restriction on the right to privacy to be reasonable, it must
ensure “need, defined in terms of a legitimate State aim”, therefore ensuring that the grounds of
restrictions are necessary and legitimate State aims. The right to privacy must be checked and
balanced with legitimate State aims21, which include national security22, and public interest23.

It is humbly submitted that Article 8 of the European Convention on Human Rights 24 provides
that interference in privacy by a public authority could be justified in the interests of national

18
Moot Problem, para 1
19
181 L Ed 2d 911 : 132 S Ct 945 at p. 343 (4th Cir 2015)
20
ML Kamra v New India Assurance; 1992 (2) SCC 36, para 4, pg. 41
21
supra note 13, pg.8, para S
22
supra note 13, pg. 10, para X (see also supra note 1, pg. 632, para 640)
23
supra note 13, pg. 9, para W (see also supra note 1, pg. 632, para 640)
24
European Convention on Human Rights (coe.int) pg. 10, Art.8

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security, public safety or the economic well-being of the country. Further, it should be noted that
the internet in general and social media in particular amplifies the potential for speech to cause
violence simply by magnifying the opportunities for contextual dislocation 25. The Petitioner,
Priya Arora, is a social media influencer and digital rights activist 26 which makes it highly
probable that her series of tweets criticizing the government’s handling of the COVID-19
pandemic and its implications on public health 27 has a wide audience and readership. Moreover,
the authenticity of data or information based on which the Petitioner has criticized the
government policies is questionable. Therefore, it is abundantly clear that the Petitioner has
intended to mislead the public and cause unrest among them, consequentially hampering public
interest.
[2.3] The act of CBI is proportionate

It is humbly submitted that for a restriction on the right to privacy to be reasonable, it must
ensure “proportionality, which ensures a rational nexus between the objects and the means
adopted to achieve them” therefore ensuring that the restrictions would not disproportionately
affect the rights of the right holder.

It is humbly submitted that the wide dissemination of the tweets on the internet and the wide
readership available to it could possibly cause a mass uprising. Thus, there existed a proximate
and direct connection between the series of tweets by the Petitioner and the inquiry ordered by
the Ministry of Electronics and Information Technology (hereinafter “MeitY”) on grounds of
public unrest. For the present scenario, it can be argued that the Central government necessitated
an inquiry into the incident for the reason of public interest, which is inclusive of preventing
public unrest, and has also been stated as one of the exceptions for invasion to the right to
privacy. In Vivek Narayan Sharma v. Union of India28, the Court relied on the case of MRF Ltd.
29
v. Inspector Kerala Government in which it was held that when there is a nexus between the
object and the means adopted to achieve them, a strong presumption in favor of the
constitutionality of the means adopted naturally arises.

25
Lyrissa Barnett Lidsky, Incendiary Speech and social media, 44 Texas Tech Law Review 4 (pg 149), (2011)
https://www.scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1216&context=facultypub.
26
Moot Problem, para 2
27
ibid
28
Vivek Narayan Sharma v. Union of India; 2023 SCC Online SC 1
29
MRF Ltd. v. Inspector Kerala Government; (1998) 8 SCC 227, pg. 233, para 13(6)

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It is humbly submitted that when there is a conflict between two fundamental rights, the standard
that must be followed by Courts to balance the conflict is to ascertain if the Constitution
establishes a hierarchy of the rights in conflict 30. If it is found that the Constitution does not
establish a hierarchy between them, the Court must identify the precise interests weighing on the
rights to ascertain which right shall be given priority 31. Presently, even if it is found that the
Court does not establish a hierarchy between the right to privacy of an individual and the right of
the State to ensure a check on it, the latter is paramount as the public interest is weighing heavier
on its side.

ISSUE: III

Whether the surveillance and investigation into Priya Arora’s online activities constitute a
violation of her freedom of speech and expression under Article 19(1)(a) of the Indian
Constitution?

[3.1] FREEDOM OF SPEECH AND EXPRESSION NOT ABSOLUTE

Freedom of speech is considered as the basic freedom by most philosophical thinkers. It is one of
the most basic elements for a healthy, open-minded democracy and is foundation of any
democratic society.32 There cannot be any such thing as absolute or uncontrolled liberty wholly
freed from restraint for that would lead to anarchy and disorder. The possession and enjoyment
of all rights are subject to such reasonable conditions as may be deemed to be essential to the
safety, health, peace, general order and morals of the community. What the Constitution,
therefore, attempts in declaring the rights off the people is to strike a balance between individual
and social control. Article 19 gives a list of individual liberties and prescribes in the various
clauses the restraints that may be placed upon them by law so that they do not conflict with
public welfare or general morality.33 While it is necessary to maintain and preserve freedom of
speech and expression in a democracy, also it is necessary to place some curbs on this freedom
for the maintenance of social order. Accordingly, under Article 19(2), the state may make a law
imposing ‘reasonable restrictions’ on the exercise of the right to freedom of speech and
30
Assn. for Democratic Reforms (Electoral Bond Scheme) v. Union of India, (2024) 5 SCC 1; pg. 137, para 163
31
ibid, pg. 136, para 161
32
Union of India v. Motion Pictures Association 1999 (3) SCR 875
33
Gopalan v. State of Madras, (1950) SCR 88 (253-4); Santokh Singh v. Delhi Administration, AIR 1973 SC 1091;
Laxmi v. State of U.P., AIR 1971 SC 873

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expression ‘in the interests of’ the securities of the State, friendly relations with foreign States,
public order, decency, morality, sovereignty and integrity of India, or ‘in relation to contempt of
Court, defamation or incitement to an offence.’

[3.2] ACTIONS OF GOVERNMENT FALL UNDER THE AMBIT OF ARTICLE

19(2)

Individual rights cannot be absolute in a welfare state. It has to be subservient to the Rights of
the public at large.34 The counsel on the behalf of the respondents most humbly submits that in a
democracy like India every citizen must have the right to freedom of speech and expression.
Thus, article 19(1)(a) of the Constitution of India ensures this particular right to all its citizens.
However, the same article also elaborates that this right is subject to certain restrictions which
can be imposed on the basis of certain grounds as enshrined under Article 19(2). That every right
brings with it certain liabilities and so is the case of right to freedom of speech and expression.
Through the citizens have this right, they have to use it in a positive way and in a way that their
enjoyment does not lead to infringement of someone else's right. Thus, any wrong use of this
right may lead to imposition of restriction under Article 19(2) in the interests of the sovereignty
and integrity of India. Thus, the counsel would like to contend that right to freedom of speech
and expression is not unfettered. In the present case, in order to control the public unrest and
ensure public safety, state has the duty to control the situation which has become an issue of both
social and national importance and in order to fulfil their duty of national importance, state of is
right on their part to seek personal information of Ms. Priya Arora.

A) TEST OF REASONABLENESS

The exemption to the freedom of speech and expression is on the basis of reasonable restrictions
such as ‘the interests of sovereignty and integrity, security of the State, friendly relations with
foreign States, maintenance of public order or preventing incitement to any cognizable offence
relating to any of these’. In the Aadhaar case 35, it has been clearly stated that fundamental rights
are not absolute and that the Constitution itself permits the State to impose reasonable
restrictions on the right to privacy under certain circumstances. These restrictions need not

34
Confederation of Ex-serviceman Association v. Union of India, (2006) 8 SCC 399
35
K.S. Puttaswamy v. Union of India (2017) 10 SCC 1

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 CONSTITUTIONAL LAW MOOT, CLINICAL COURSE- IV

satisfy the test of “strict scrutiny” but only the test of reasonableness as per Puttaswamy
judgement.

In Santosh Singh v. Delhi Administration, 36 it was held that the test of reasonableness of
restriction has to be considered in each case in the light of the nature of right infringed, the
purpose of the restriction, the extent and nature of the mischief required to be suppressed and the
prevailing social order and conditions at the time. There can be no abstract standard of
reasonableness and our Constitution provides reasonably precise general guidance in that matter.
On the basis of the guidelines of the Narottamdas case 37, the counsel on behalf of the respondents
humbly submit before the Hon'ble Bench that actions of the Government clearly fall within the
ambit of a reasonable restriction based on the grounds of restrictions in the interests of security,
sovereignty & integrity of State, disruption of public order and incitement of an offense as
enunciated under 19(2) of the Constitution and does not infringe any of the fundamental rights,
especially the right to freedom of speech & expression.

ISSUE: IV

Whether the balance struck by the DPDPA 2023 between protecting personal data and
ensuring national security and public order is constitutionally valid?

It is humbly submitted before this Hon'ble Court that a balance must be struck between the
legitimate State aims and individual interests 38, a task that lies at the heart of the inquiry into the
limitation of rights39. The only check and balance is that there should be no harm to a right
holder’s right40. How it thereafter works out in its interplay with fundamental rights depends on
the factual matrix of each case41. Additionally, it is important that rights reinforce one another in
a constructive manner42. This ensures a balance in rights.

[4.1] The presumption of constitutionality is attached with the DPDPA 2023

36
Santosh Singh v. Delhi Administration, AIR 1973 SC 1091
37
Narottamdas v. State of Madhya Pradesh AIR 1667 1964 SCR (7) 820
38
K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1; pg. 31, para 5
39
ibid, pg. 451, para 200 (see also Investigating Directorate: Serious Economic Offences v. Hyundai Motor
Distributors (Pty) Ltd., 2000 SCC OnLine ZACC 14)
40
supra note 1, pg. 66, para 3
41
ibid
42
supra note 1. pg. 454, para 2 (see also NM v. Charlene Smith, 2007 SCC OnLine ZACC 6)

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 CONSTITUTIONAL LAW MOOT, CLINICAL COURSE- IV

It is humbly submitted that a legislative body is well- situated to gauge changing public attitudes,
to draw detailed lines and to balance privacy and public safety in a comprehensive way 43.
Further, the presumption as to the constitutionality of the legislation is the rule 44 unless there is
an ex-facie violation of the fundamental rights. Additionally, if the Petitioners hereby argue the
contrary, the burden of proof for the same lies with them 45. Hence, it shall be presumed that
DPDPA 2023 is constitutional. Further, it may also be presumed that the balance which DPDPA
2023 strikes between individual and State interest is also constitutional.

[4.2] Strikes a balance between individual and State interest

The Digital Personal Data Protection (DPDP) Act, 2023, enacted by the Indian Parliament in
early August 2023, is India's first cross-sectoral personal data protection law, following over five
years of deliberations. Four drafts were preceded by a landmark 2017 judgment by India’s
Supreme Court in Justice K.S. Puttaswamy and Anr. v. Union of India and Ors 46. The Supreme
Court had upheld the use of Aadhaar for certain purposes and the potential constitutional law
issues had been resolved. Arguably, deliberations on the different versions of the data protection
legislation also allowed concerns about the proposed framework to be articulated consistently.
The long period of deliberations, therefore, allowed the shift to a more pragmatic version of the
law to be finally enacted.

[4.3] Provides procedural guarantees against arbitrariness

The concept of reasonableness and non-arbitrariness runs through the whole of the fabric of the
Constitution.47 The legislative actions can also be tested upon non-arbitrariness standard. 48 The
action of the legislature, violative of Article 14 of the Constitution, should ordinarily be
manifestly arbitrary i.e., there must be a case of substantive unreasonableness in the statute
itself.49 In the present case, The Act, 2021 is not ‘manifestly arbitrary’ because the powers of the
government are controlled. The powers of the government are not uncontrolled since it can be

43
supra note 1, pg. 238, last para
44
ML Kamra v New India Assurance; 1992 (2) SCC 36, para 4, pg. 41
45
S.101, Indian Evidence Act (also see M.S. Reddy Vs State Inspector of Police, A.C.B., Nellore, Equivalent
citations: 1991 (3) ALT 542, 1993 CriLJ 558)
46
K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1
47
Maneka Gandhi v. UOI, (1978) 1 SCC 248 : AIR 1978 SC 597
48
Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : AIR 1981 SC 487
49
A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy, (2011) 9 SCC 286 : AIR 2011 SC 3298

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 CONSTITUTIONAL LAW MOOT, CLINICAL COURSE- IV

exercised only under specific circumstances (reasonable restrictions under Article 19(2)) [i]
guidelines have been provided for its exercise (gathered from preamble of the Act- Just, fair and
reasonable) [ii] government is expected to act reasonably [iii]. In the present context the Central
government will exercise its powers judiciously even if wide discretionary powers have been
given to the government.

Just, fair and reasonable standard shall be applied to decide whether a restriction is valid or
not.50It is essential that there is an independent and impartial body competent to review all the
relevant questions of fact and law, in order to determine the lawfulness of the measure and
censure a possible abuse by the authorities guarantees to address any arbitrariness in such
decisions.51 The Data Protection Board established under the Act 52, an independent body for
adjudication. The Telecom Disputes Settlement and Appellate Tribunal (“TDSAT”) (established
under the Telecom Regulatory Authority of India Act, 1997) has been designated as the
Appellate Tribunal under the DPDPA as well. 53 Upon reading the act we observe that intention
of the government is to balance Data Privacy with security and interests of the states.

50
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
51
Leander v. Sweden, 26 March 1987, Series A no. 116, ¶ 66
52
Section 18 DPDPA, 2023
53
Section 2(a)

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 CONSTITUTIONAL LAW MOOT, CLINICAL COURSE- IV

PRAYER

In the light of the issues raised, arguments advanced, and authorities cited, may this Hon’ble
Court be pleased to:

a. DECLARE, that the petition at hand is dismissed;

b. DECLARE, that the actions of CBI are lawful and justified;
c. DECLARE, that there is no violation of the right to privacy of the Petitioner u/A.21;
d. DECLARE, that there is no violation of the right to freedom of speech and expression of
the Petitioner u/ A.19 (1) (a);
e. DECLARE, that the balance struck between individual and State interest in the DPDPA
2023 is intra vires
AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

All of which is respectfully submitted.

And for this, the RESPONDENT as in duty bound, shall humbly pray.

Sd/-

COUNSEL FOR THE RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT