Memo

TEAMCODE: 07-P
18th NLIU Annual Fresher’s Moot Pool Tournament, 2018
IN THE HIGH COURT OF DELHI
L.P.A. No. ____ / 2018

(letters patent appeal under section-10 of the Delhi High Court Act 1966 )
STARK INDUSTRIES INC. .......................Appellant 1
versus
UNION OF INDIA ………………….Respondent
W.P. No. ____ / 2018
KUKOO APP .......................Appellant 2
versus
UNION OF INDIA ………………….Respondent
As Submitted to Hashish Kumar & Chashi ,JJ.

Of Hon’ble High Court of Delhi.
-WR I T T E N SU B M I S S I O N S ON BEHALF OF THE PE T I T I O N E R S -

-TABLE OF CONTENTS- Page i of xi
TABLE OF CONTENTS
INDEX OF AUTHORITIES ...............................................................................................................III
STATEMENT OF JURISDICTION .....................................................................................................VI
STATEMENT OF FACTS ................................................................................................................ VII
ISSUES FOR CONSIDERATION........................................................................................................ VIII
SUMMARY OF ARGUMENTS .......................................................................................................... IX
PLEADINGS AND AUTHORITIES ....................................................................................... 1
I. WHETHER THE LETTERS PATENT APPEAL IS MAINTAINABLE BEFORE

THE
COURT?....................................................................................................................... 1
1.I THAT THE LETTERS PATENT APPEAL IS MAINTAINABLE AS THERE IS A
VIOLATION OF FUNDAMENTAL RIGHTS REDRESSED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA…………………………………………………………1
1.II. THAT THE LETTERS PATENT APPEAL IS MAINTAINABLE AS THERE IS AN

INVOLVEMENT OF A SUBSTANTIAL QUESTION OF LAW AS STATED UNDER
ARTICLE 227 OF THE CONSTITUTION OF INDIA……………………………………2
1.III. THAT THE LETTERS PATENT APPEAL IS MAINTAINABLE AS UNDER

SECTION 10 OF THE DELHI HIGH COURTS ACT,1966 DUE TO INVOLVEMENT OF
SUBSTANTIAL QUESTION OF LAW…………………………………………….…….3
1.IV. THAT THE LETTERS PATENT APPEAL STANDS MAINTAINABLE AS UNDER
CLAUSE XV OF THE LETTERS PATENT ACT,1865 ON GROUNDS OF BEING
VIOLATIVE OF THE FUNDAMENTAL RIGHTS AND UNCONSTITUTIONALITY OF
LAW………………………………………………………………………………………..3
II. WHETHER THE DISCLOSURE REQUIREMENTS FOR TECHNOLOGIES
INTERMEDIARIES ACT UNCONSTITUTIONAL?................................................4
2.I. THAT THE DRTIA ,2018 IS VIOLATIVE OF FUNDAMENTAL RIGHT TO

PRIVACY AS GUARANTEED UNDER ARTICLE 19 AND ARTICLE 21 OF THE
CONSTITUTION OF INDIA……………………………………………………………..4
2.II THAT THE ACT CANNOT STANDS TO BE JUSTIFIED AS UNDER PROTECTION
OF NATIONAL SECURITY AND MAINTENANCE OF LAW AND ORDER...……...7
-W R I T T E N S U B M I S S I O N S ON BEHALF OF THE PETITIONERS -

-TABLE OF CONTENTS- Page ii of xi
III. WHETHER THE HACKING OF THE PHONES LEAD TO BREACH OF

PRIVACY OF THE COMPANY AND OF ITS’ CONSUMERS?...............................8
PRAYER FOR RELIEF....................................................................................................................... XI

-INDEX OF AUTHORITIES- Page iii of xi
INDEX OF AUTHORITIES
Indian Cases
Revaben and Ors. v. Vinubhai Purshottambhai Patel and Ors., 2013 (1) GLH 440…………..1
Sh. Jogendrasinhji Vijaysinghji v. State of Gujarat & Ors 2015 (9) TMI 1338……………….1
State of Maharashtra v. Kusum Charudutt Bharma Upadhye, (1981) 83 BomLR 75…………1
Radhey Shyam & Anr. v. Chhabi Nath & Ors 2009 (57) BLJR 1817………………………...2
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors 2017 10 SCC 1……..2
Umaji Keshao Meshram and Ors. v. Radhikabai and Anr 1986 AIR 1272…………………..2
Patthi Srinadham And Ors. vs Unknown AIR 1963 AP 18…………………………………...3
Sh. Jogendrasinhji Vijaysinghji v. State of Gujarat & Ors 2015 (9) TMI 1338………………3
\
Bodhisattwa v. Subhra Chakraborty, AIR 1996 SC 922, 926………………………………..4
Romesh Thapar v. State of Madras, AIR 1950 SC 124………………………………………4
Kumhayammed v.State of Kerala, AIR 2000 SC 2587……………………………………….4
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors 2017 10 SCC 1…….5
National Textile Workers’ Union v. P.R. Ramakrishnan, AIR 1983 SC 75…………………..5
R.C. Cooper v. Union Of India, AIR 1970 SC 564……………………………………………6
Maneka Gandhi vs Union Of India 1978 AIR 597……………………………………………6

-INDEX OF AUTHORITIES- Page iv of xi
Kharak Singh vs The State of U. P. & Others 1963 AIR 1295………………………………6
Bidya Chaudhary & Ors. v. Province of Bihar, AIR 1950 Pat 19……………………………6
.
Hans Raj vs. The Administrator………………………………………………………………6
Gopal Thavardas Rajwani vs . R . D . Tyagi and Ors . AIR 1990 BOMHC 423……………..7
D.K.Yadav v. J.M.A. Industries, (1993) 3 SCC 259…………………………………………7.
Ranjeet Brahmajeetsingh Sharma v. State of Maharashtra, AIR 2005 SC 2277……………..7
Narendra Singh v. State of MP, (2004) 10 SCC 699………………………………………….7
Dhananjay Kumar Singh v. State of Rajasthan, 2006 CrLJ 3873……………………………..7
Dwarka Prasad Laxmi Narain v. State of UP, AIR 1954 SC 224……………………………..7
Nandlal Bajaj v. The State of Punjab, AIR 1981 SC 2041……………………………………8
Legislative Enactments
Art. 21, the Constitution of India……………………………………………………………..2
The Restatement (Act of March 03 1977) S.10(a) (United States)…………….……...….…...4
Articles
J.V.M. Sarma & V. Bhaskar, A Road Map for Implementing the Constitution of India, 47(31)
Economic & Political Weekly 68, 70 (2012). ………………………………………………6
Warren and Barndies, The Right to Privacy, 103(56)

The Harvard Law Review 12, 72(2018)…………………………………………………….8

-INDEX OF AUTHORITIES- Page v of xi
Reports & Other Authorities

Committee on Finance and Industry, Lok Sabha, The Multi-State Co-Operative Societies
(Amendment) Bill, 2010…………………………………………………………………………2

-STATEMENT OF JURISDICTION- Page vi of xi
STATEMENT OF JURISDICTION
THE PETITIONER I HAS INVOKED THE JURISDICTION OF THE COMPETENT HIGH

COURT OF DELHI AS UNDER ARTICLE 226 AND ARTICLE 227 OF THE
CONSTITUTION OF INDIA WHICH GIVES THE COURT THE JURISDICTION OVER
THE SUBJECT MATTER OF LETTERS PATENT APPEAL TO THE DIVISION BENCH
AS AGAINST THE DECISION OF A SINGLE BENCH, AND ALSO UNDER THE SAME
AFORESAID ARTICLE(S) ASSERTING A VIOLATION OF FUNDAMENTAL RIGHTS,
TO BE REDRESSED BY THE COMPETENT COURT ON THE BASIS OF THE
AFORESAID ARTICLE(S) ITSELF.
THE PETITIONER II HAS INVOKED THE JURISDICTION OF THE HIGH COURT OF

DELHI AS UNDER ARTICLE 226 AND ARTICLE 227 OF THE CONSTITUTION OF
INDIA ASSERTING A VIOLATION OF FUNDAMENTAL RIGHT, GUARANTEED BY
THE CONSTITUTION OF INDIA , TO BE REDRESSED BY THE COMPETENT COURT
ON THE BASIS OF THE AFORESAID ARTICLE(S) ITSELF.
IT IS HUMBLY SUBMITTED THAT THE COURT HAS JURISDICTION OVER THE

MATTERS AS GRANTED BY THE ARTICLE(S) MENTIONED ABOVE.

-STATEMENT OF FACTS- Page vii of xi
STATEMENT OF FACTS
At Bhoojmal University, in San Andreas, a blast took place on 9th November 2017 at 4:20
A.M., killing off four students-Hussu, Hallu, Chohit, Golu. The Special Task Force
(“Force”), under Commissioner Gaitonde, found three accused-King Kuru, Mrs. Hola, Mr.
T’Challa, and later confiscated their mobile phones. Mr.Uddu, the techie head of Force,
endeavored to get access to all the messages of the accused, for further investigation, but, Mr.
Jhudz, the CEO of Stark Industries (“SI”), refused to divulge information, stating their
popular public policy. Yet, Mr.Uddu hacked the mobile phones and got the accused arrested.
As to this, SI filed a writ petition in The High Court of Delhi alleging breach of privacy under
Article 226/227.
Meanwhile, in Vice City, Mr. Deekay, an accountant was mob lynched on the basis of a
widely circulated social messaging app “Kukoo app” that alleged him to be a child kidnapper.
The police broke in the messages of Kukoo App and found out Mr. Deekay to be innocent.
As to the response, Kukoo App came up with an end-to-end encryption to safeguard hacking
of the data.
Pursuant of the two above situations, Ministry of Information and Technology, Government
of India, came up with “DRTIA Act,2018”, to give real-time access to Central Government to
all social networking posts to monitor them in the interest of “ national security” and “law
and order” , with effect from July 23rd, 2018.
Kukoo App, along with other social messaging apps, filed a writ petition on the High Court
of Delhi, under Article 226/227, challenging the constitutional validity of the app.
The Court clubbed the two writ petitions together, and the single bench headed by Justice
Thasvinder dismissed them. Against this, all petitioners filed a writ petition under the Letters
Patent Appeal in the High Court under a Division Bench, the matter is now referred to Justice
Hashish Kumar and Justice Chashi.
-The matter is slated to be heard on 6th October, 2018-

-QUESTIONS PRESENTED- Page viii of xi
ISSUES FOR CONSIDERATION
THE PETITIONERS VERY RESPECTFULLY PUT FORTH TO THE HON’BLE DELHI

HIGH COURT THE FOLLOWING ISSUES:
1) WHETHER THE PRESENT LETTERS PATENT APPEAL IS MAINTAINABLE?
2) WHETHER THE DISCLOSURE REQUIREMENTS FOR TECHNOLOGY

INTERMEDIARIES ACT, 2018 IS UNCONSTITUTIONAL?
3) WHETHER THE HACKING OF MOBILES OF STARK INDUSTRIES LEAD TO

BREACH OF PRIVACY OF THE COMPANY AND OF ITS CUSTOMERS?

-SUMMARY OF ARGUMENTS- Page ix of xi
SUMMARY OF ARGUMENTS
I. WHETHER THE PRESENT LETTERS PATENT APPEAL IS MAINTAINABLE?

It is humbly submitted before this Hon’ble Court that the Letters Patent Appeal is
maintainable under clause XV of the Letters Patent Act, 1865 and guaranteed by the
Constitution of India by means of Article 226 and Article 227 as it involves a substantial
question of law about the fundamental rights of the citizens and cannot be shelved down as
arbitrary or unreasonable and cannot be compensated by a reason to upheld national security
or law and order without sufficient just cause and grounds.
II. WHETHER THE DISCLOSURE REQUIREMENTS FOR TECHNOLOGY

INTERMEDIARIES ACT IS UNCONSTITUTIONAL?
It is humbly submitted before this Hon’ble Court that the aforesaid legislative enactment is
unconstitutional and it is directly in conflict with Article 19 and Article 21 of the Constitution
of India. It is violative of Right to Freedom of Speech and Expression as guaranteed under
Article 19(1) of the Constitution of India as it violates and impugns two essential rights that a
person has on his speech i.e. the right to exercise control over his speech and to process his
speech. This act directly infringes the right to both control and to process one speech as it not
only puts surveillance on what a person may say, but it also puts a restraint on the desired
way the speech of a person is processed i.e. by means of unwanted interference and exercise
of coercive force by the means of state mechanism. It also violates Article 21 which provides
for a “life with dignity” as unjust surveillance and interference with the speech,
communication and expressions of persons would not allow them to lead a life of dignity,
rather would put them to unjust subjugation and surveillance, coercing them to compromise
with their dignity and thereby undermining the individual dignity and sovereignty of the
citizens concerned.
III. WHETHER THE HACKING OF MOBILES OF STARK INDUSTRIES LEAD TO

BREACH OF PRIVACY OF THE COMPANY AND OF ITS CUSTOMERS?
It is humbly submitted before this Hon’ble Court that the act of hacking of mobiles of Stark
Industries lead to Breach of Privacy by the MIB Department as it had undermined the basic
Right to Privacy as guaranteed to all citizens under Article 19 and Article 21 of the
Constitution of India, ensuring them to lead a life with dignity.
-W R I T T E N S U B M I S S I O N S ON BEHALF OF THE PETITIONERS –

-SUMMARY OF ARGUMENTS- Page x of xi
When national security comes in conflict with the individual autonomy of a citizen, then,
depending upon the urgency, the curtailed stature of the individuals may be upheld but this in
no way can stand to be justified, when the means to obtain this ends is in itself an illegal one.
Therefore, as the act undermined the importance and the pivotal role that the right to privacy
has to play in the lives of individual citizens, and as authorizing such acts would lead to great
tyranny and autonomy in the hands of the state, threatening the individual sovereignty of
citizens, and would lead to enablement of disseminating and misfeasance of their
information, it is humbly submitted to prevent such an attack to ensure nonfeasance of such
acts which compromises individual freedom and autonomy.

-PLEADINGS AND AUTHORITIES- Page 1 of 19
PLEADINGS AND AUTHORITIES
L.P.A. No. ____ / 2018

(Letters Patent Appeal under Section-10 of the Delhi High Court Act 1966)
I. WHETHER THE LETTERS PATENT APPEAL IS MAINTAINABLE

BEFORE THE COURT?
It is humbly submitted before the court that there has to be no dispute regarding the
maintainability of the Letters Patent Appeal, both under Article 226 and Article 227 of the
Constitution of India and also under the section 10 of the Delhi High Court Act,1966, as this
Letters Patent not only deals with a very substantial question of law, which is the
constitutionality of an act affecting the freedom, autonomy and dignity of citizens imposing a
stringent state rule, but it also deals with the violation of fundamental rights ,guaranteed in
Article 19 and Article 21 under Part- III of the Constitution of India, curbing the very
essence and spirit of constitutionalism. But If the Hon’ble Court still deems it necessary for
the Petitioner to argue on the maintainability of the petition, the Submissions of the Petitioner
is mentioned hereunder.
1.I THAT THE LETTERS PATENT APPEAL IS MAINTAINABLE AS THERE IS A
VIOLATION OF FUNDAMENTAL RIGHTS REDRESSED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA.
It is humbly submitted before the court that the Letters Patent stands maintainable as there is
a violation of fundamental right to privacy as guaranteed under Article 19 and Article 21 of
the Constitution of India, and any such writ petition, involving a violation of Fundamental
rights, is actionable per se1 , and any such suit involving original jurisdiction is deemed to be
maintained , both as an appeal before the single judge bench and also as a Letters Patent
Appeal . The Supreme Court , in the Jogendrasinghji case had stated it therefore that a writ
petition under Article 226 , involving a violation of Fundamental Rights2, has to be dealt with
separately and independently of its claim as under Article 227 or any other legal provisions3,
and has its own separate locus standi to be heard and decided in the court, devoid of any
1
Revaben and Ors. v. Vinubhai Purshottambhai Patel and Ors., 2013 (1) GLH 440
2
Sh. Jogendrasinhji Vijaysinghji v. State of Gujarat & Ors 2015 (9) TMI 1338
3
State of Maharashtra v. Kusum Charudutt Bharma Upadhye, (1981) 83 BomLR 75
other factors like recommendations of the single bench or substantial question of law
involved; and so does the present case, where there has been a gross violation of fundamental
right to privacy, without any reasonable or just ground for it.
1.II. THAT THE LETTERS PATENT APPEAL IS MAINTAINABLE AS THERE IS

AN INVOLVEMENT OF A SUBSTANTIAL QUESTION OF LAW AS STATED
UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA.
It is humbly submitted before the court that , as held by the Supreme Court,4 even if the
Single judge bench doesnot consider the case to be fit for appeal to a division bench, it can go
on for a Letters Patent Appeal if it involves a substantial question of law as to be redressed by
law. In the present case, a very crucial and substantial question of modern day life i.e.
privacy5 is involved, which is basic and integral for a person to lead a life with dignity6 as
guaranteed under Article 21 of The Constitution of India. The courts have recently shown a
trend to recognize suits which involve suits which involve basic human rights, even if there
comes a foreplay of national security, as said by the Supreme Court of India in Radhe Shyam
and Anar . v.Chhabi Nath and Ors. - , and the suit has to be maintained , respecting and
protecting the basic human rights of the citizens.
It is humbly submitted that the Supreme Court had held7 that foreign multinationals and
companies enjoying business over our country must be given co-operation and benefits “ to
the largest extent possible”, and the present Letters Patent Appeal advocates for this right ,
urging for an open arm co-operation and proper benefits exercised from the government,
urging a freedom of business and autonomy as envisioned in the modern economic policies8
and treaties and not to shackle them down in unnecessary shackles of Government control.
4
Radhey Shyam & Anr. v. Chhabi Nath & Ors 2009 (57) BLJR 1817
5
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors 2017 10 SCC 1
6
Art. 21, the Constitution of India
7
Umaji Keshao Meshram and Ors. v. Radhikabai and Anr 1986 AIR 1272
8
Committee on Finance and Industry, Lok Sabha, The Multi-State Co-Operative Societies (Amendment) Bill,
2010
1.III. THAT THE LETTERS PATENT APPEAL IS MAINTAINABLE AS UNDER

SECTION 10 OF THE DELHI HIGH COURTS ACT,1966 DUE TO INVOLVEMENT
OF SUBSTANTIAL QUESTION OF LAW.
It is humbly submitted before the court that though the Letters Patent Appeal does not have a
recommendation of a judge of a lower court or that of a single bench, but it has the
involvement of a substantial question of law and as declared by the Supreme Court,9 such a
Letters Patent Appeal can be maintained despite not having the other pre- requisites as under
Section 10 of the Delhi High Courts Act,1966. As the question involved needs to be dealt
with concerns the violation of fundamental rights of the citizen and the concerned issue of
national security, it itself stands as a substantial question of law to be maintained at this
Hon’ble Court.
1.IV. THAT THE LETTERS PATENT APPEAL STANDS MAINTAINABLE AS
UNDER CLAUSE XV OF THE LETTERS PATENT ACT,1865 ON GROUNDS OF
BEING VIOLATIVE OF THE FUNDAMENTAL RIGHTS AND
UNCONSTITUTIONALITY OF LAW.
It is humbly submitted before the Hon’ble Court that the Letters Patent Appeal stands
maintainable under clause XV of the Letters Patent Act,1865 , as it involves a gross violation
of fundamental right to privacy as guaranteed under Article 21 and Article 19 of The
Constitution of India, and also it deals with the Constitutional provision validity of a certain
statute, and under this circumstances one can lie an appeal to a division bench on very
reasonable grounds without the consent of a judge from a lower court, as the stand has been
made clear by Supreme Court that a “ Letters Patent Appeal may be there to increase judicial
efficiency and not to be dispensed away simply to reduce judicial over burden or just because
a particular bench was not satisfies by the content, if the issue seems to the Court of grave
nature and public importance”10.
9
Patthi Srinadham And Ors. vs Unknown AIR 1963 AP 18
10
Sh. Jogendrasinhji Vijaysinghji v. State of Gujarat & Ors 2015 (9) TMI 1338
II. WHETHER THE DISCLOSURE REQUIREMENTS FOR TECHNOLOGIES

INTERMEDIARIES ACT UNCONSTITUTIONAL?
2.I. THAT THE DRTIA ,2018 IS VIOLATIVE OF FUNDAMENTAL RIGHT TO

PRIVACY AS GUARANTEED UNDER ARTICLE 19 AND ARTICLE 21 OF THE
CONSTITUTION OF INDIA.
It is humbly submitted before the Hon’ble court that a legislative statute can be declared
unconstitutional only on two grounds11 i.e. Legislative Incompetence and Violation of
Fundamental Rights, and a proper “ balance sheet” approach12 is adopted by the respective
court to decide the unconstitutionality of an act, as there always lies a presumption of
constitutionality in favour of the act.13
It is humbly submitted, in the present Act, it deals with privacy, which basically refers to “ a
person’s right to control his or her information”, as per Black’s law dictionary. In the present
case, the act violates this issue itself, and gets a hold to access over the vital and confidential
information of the citizens and other legal bodies like corporates at a strong hold, by means
of coercing them to opt out their information to the Government without any sound
justification.
It is humbly submitted, that Privacy as a basic right dates back to times immemorial, and has
been acknowledged by various developed nations and states in the country , and any statutes
or legal provisions not in accordance with this right has been curtailed.
It is humbly submitted to further substantiate on this point, a piece of The Restatement in the
US law which basically substantiates on this point, way back in 1977 as 14,
“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of
another or his private affairs or concerns, is subject to liability to the other for invasion of
his privacy, if the intrusion would be highly offensive to a reasonable person.”
11
Bodhisattwa v. Subhra Chakraborty, AIR 1996 SC 922, 926.
12
Romesh Thapar v. State of Madras, AIR 1950 SC 124.
13
Kumhayammed v.State of Kerala, AIR 2000 SC 2587.
14
The Restatement (Act of March 03 1977) S.10(a) (United States)
It is humbly submitted, that in the present changing scenario and dimensions of the modern
day legal and constitutional framework, the Constitution of India, must resolve to this,15 and
has way in its turn in the K.Puttaswamy vs. Union of India16 recognized that right to privacy
as a fundamental right , integral to basic and innate nature of the Constitution of India,
giving it as a status of both a right of the body and mind.
It is humbly submitted, the Act in question ,is in direct conflict with the historical school of
thoughts based on whom the modern decision granting the Right to Privacy a status of
fundamental right is based.
It is further, the base of the constitutional and fundamental status of the right was an article17
titled “Right to Privacy” by Warrien and Brandies, published in 1890, which stated that Right
to Privacy basically dealt on with the “Right to be let alone”, i.e. it basically advocates for a
state of an individual where one can be freely able to enjoy his/her rights without being
interfered by an authoritarian force.
It is humbly submitted that the mere apprehension of a wrong doing can never be justified in
taking away a fundamental right of the citizens and the Supreme Court of India18 has held on
that a fundamental right can be taken over only in case of “national emergency” , and
otherwise not, merely on the apprehension of a wrong doing.
It is humbly submitted that the Act tends to do away with the basic tenets and nature of the
Constitution.ie. granting the citizens a voice against the State and ensuring a proper degree of
check and balance, enforcing both the rights of the citizens and their duties and
responsibilities, and at the same time , putting a check on arbitrary use of power by the state,
as stated by the Supreme Court.
15
J.V.M. Sarma & V. Bhaskar, A Road Map for Implementing the Constitution of India, 47(31) Economic &
Political Weekly 68, 70 (2012).
16
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors 2017 10 SCC 1
17
Warren and Barndies, The Right to Privacy, 103(56) The Harvard Law Review 12, 72(2018)
18
National Textile Workers’ Union v. P.R. Ramakrishnan, AIR 1983 SC 75.
It is humbly submitted that the Act tries to put an upper hand on the State on the basis of
“Constitutional prudence”, as envisioned by the Supreme Court in GolakNath vs State of
Punjab , as the State in the Act tries to overreach the horizons of its’ limits in the ambit of the
Constitution, and tries to infringe the rights of the citizens , a material constitutional
provision, with the help of exploitation of another key material term i.e. reasonable
restrictions to be laid on the fundamental rights of the citizens concerned.
It is humbly submitted, in R.C. Cooper vs. Union of India 19, the Supreme Court of India had
firmly held any violation of fundamental right does not only have a constitutional foundation,
but also a jurisprudential foundation, which was affirmed in Maneka Gandhi vs. Union Of
India20 , which basically focuses on two broad issues:
 The fundamental rights emanate from basic notions of liberty and dignity and enumeration of
some facets of liberty as indistinguishable from basic human rights and basic constitutional
provisions.
 The validity of a law which infringes the fundamental rights has to be tested not with the
reference to the object of state action but on the basis of its effect on the guarantees of
freedom.
It is humbly submitted that the Supreme Court of India, has held it that21 under the”
integrated approach”, while interpretation of fundamental rights, if a right is recognized as
under any of the Article 19 or Article 21, it doesnot prevent it from being recognized as on
the expanding ambit of any other article of the Constitution of India.22 It is further humbly
submitted that The Right to Privacy is a fundamental right as guaranteed under Article 19(1)
of the, as a basic right to Freedom to Speech and Expression, but it also forms a part of the
expanding ambit under Article 21 of the Constitution of India , where the Right to Privacy is
considered as an integral expansionist form , where the Right to Privacy is considered as
essential right to life with dignity , as the Supreme Court held,”If a man is shadowed, his
movements are obviously constricted..(the) movement of an automation. How could a
movement under the scrutinizing gaze of the policemen be described as freedom of
movement? The whole country is in jail.”
19
R.C. Cooper v. Union Of India, AIR 1970 SC 564
20
Maneka Gandhi vs Union Of India 1978 AIR 597
21
Kharak Singh vs The State Of U. P. & Others 1963 AIR 1295
22
Bidya Chaudhary & Ors. v. Province of Bihar, AIR 1950 Pat 19.
2.II THAT THE ACT CANNOT STANDS TO BE JUSTIFIED AS UNDER

PROTECTION OF NATIONAL SECURITY AND MAINTENANCE OF LAW AND
ORDER.
It is humbly submitted that the grounds of national security cannot be pleaded as the Supreme
Court has held out that 23 “ A fundamental right can be infringed only on excuse of imminent
threat to national security, which cannot be controlled down by any reasonable and prudent
measure.” In the present case, there has been no imminent threat to life and danger , and
neither there has been a serious of such activities, beyond control by prudent police and state
control.
It is humbly submitted that the ground of national security can be pleaded down only in case
of instant fear or threat to national security24, without any reasonable position or means to
guard oneself against the external threat or aggression25, but not in cases of organized or
prolonged crimes, where there lies intricate criminal modus operandi, and the State cannot
Passover its’ duties and responsibilities , simply by outstating a law infringing the basic
human fundamental rights of the citizens.26
It is further submitted that a law infringing the fundamental rights , of the citizens cannot be
said to be justified on grounds of maintenance of law and order, as the Supreme Court has
held27 that any law made on such effect must be due to imminent threat to national security
and maintenance of law and order, and has to be infringed as the “ last resort available”. No
law can be justified with having made away with the fundamental rights, without giving a just
and immediate time period or effect ranging out from a span of period.28
It is humbly submitted thereafter that no law can be made away with the fundamental rights
as guaranteed under Fundamental Rights as guaranteed under Part-III with the ambit of
reasonable restrictions29 without any immediate danger to the public at large , or a large scale
threat attack to the nation state at large, which is nowhere evident in the present case.
23
Hans Raj vs. The Administrator National Capital Territory of Delhi and Ors. AIR 1980 DHC 574
24
Gopal Thavardas Rajwani vs . R . D . Tyagi and Ors . AIR 1990 BOMHC 423
25
D.K.Yadav v. J.M.A. Industries, (1993) 3 SCC 259.
26
Ranjeet Brahmajeetsingh Sharma v. State of Maharashtra, AIR 2005 SC 2277
27
Narendra Singh v. State of MP, (2004) 10 SCC 699.
28
Dhananjay Kumar Singh v. State of Rajasthan, 2006 CrLJ 3873
29
Dwarka Prasad Laxmi Narain v. State of UP, AIR 1954 SC 224.
It is humbly submitted before the Hon’ble Court, that any law or ordinance that would
infringe the fundamental rights of the citizens, would shall only be applicable for a stipulated
period of time30 i.e. it must be operational only for a given period of time, and this Act
doesnot specify any such stance, and it tries to infringe the fundamental right of the citizens
concerned without any sufficient just or cause grounds.
It is humbly submitted that as there is a gross violation of fundamental Right to Privacy as
guaranteed under Article 19(1) guarantying freedom of speech and expression over the
control and processing of one’s speech and under Article 21 which compromises with the
basic right to lead life with dignity, and as there is no reasonable ground as under reasonable
restrictions under Article 19 of the Constitution of India neither as per national security nor
by ways of maintenance of law and order, as the act fails to justify the presence of any
imminent threat to the mankind at large, so this Act stands unconstitutional invalidating the
basic tenets of the Constitution of India.
III. WHETHER THE HACKING OF THE PHONES LEAD TO BREACH OF

PRIVACY OF THE COMPANY AND OF ITS’ CONSUMERS?
It is humbly submitted that the Petitioner(s) allege a breach of privacy, leading to a violation of
their fundamental rights under Article 19 and Article 21 of Part III of the Constitution of India,
due to mainly on two grounds i.e. violation of their fundamental rights as a basic human and
dignitary rights of the Petioner(s) and also as an action which finds no justification as it cannot
be protected under any reasonable restriction and protection as guaranteed under Part III of the
Constitution of India and also the action finds no justification as on any overlying precedents or
statutory provisions under which it stands to be which justified.
It is humbly submitted that allowing such a course of action has two dangerous implications:
a) First, the Government would have the petitioners write an entirely new operating system
for their use. They are asking the Appellants to remove security features and add a new
ability to the operating system to attack app encryption, allowing a passcode to be input
electronically. This would make it easier to unlock an app by “brute force,” trying
thousands or millions of combinations with the speed of a modern computer.The
Appellants built strong security into the apps and other electronic platforms because
people carry so much personal information on their phones today, and there are new data
breaches every week affecting individuals, companies and governments.
30
Nandlal Bajaj v. The State of Punjab, AIR 1981 SC 2041.
The passcode lock and requirement for manual entry of the passcode are at the heart of the
safeguards that the petitioners have built in for the different apps and social networking
platforms. It would be wrong to intentionally weaken the products with a government-
ordered backdoor. If the Appellants lose control of clients’ data, Appellants put both their
privacy and their safety at risk.
b) Secondly, the order would set a legal precedent that would expand the powers of the
Government and the Appellants simply don’t know where that would lead them. If the
Government be allowed to order the Appellant to create other capabilities for surveillance
purposes, such as recording conversations or location tracking, this would set a very
dangerous precedent, which would refer to a floodgate situation with new loads of
breaches of privacy taking under the expansionist ambit of their acts would take place,
alleging a very dangerous situation in the future.
3. It is humbly submitted that also technically not possible to justify what the Government
has done and to build further on it. No doubt, it is certainly possible to create an entirely new
operating system to undermine our security features as the government wants, and to let go
with the away with the traditional system of end – to- end data encryption and allowing such
a hacking. But it’s something we believe is too dangerous to do. The only way to guarantee
that such a powerful tool isn’t abused and doesn’t fall into the wrong hands is to never
create it.
4. It is humbly submitted now that if we consider the question of Appellants building this
operating system just once, for this case of the blast, and never use it again be considered. The
digital world is very different from the physical world. In the physical world something can
be destroyed and it’s gone. But in the digital world, the technique, once created, could be
used over and over again, on any number of devices, and this could have created a high risk
and threat to the security and safety of the data of its’ customers not only for the instant case ,
but also for the future as well.

It is humbly submitted that the Law enforcement agents around the country would have
already wanthundreds of mobile phones they want Appellants to unlock if the Respondent
wins this case. In the physical world, allowing such an action of breach of privacy ,would be
the equivalent of a master key, capable of opening hundreds of millions of locks. Of course,
Appellants would do their best to protect that key, but in a world where all of the Appellant’s
data is under constant threat, it would be relentlessly attacked by hackers and cybercriminals.
As recent attacks on the IRS systems and countless other data breaches have shown, no one is
immune to cyber attacks.
6. It is humbly submitted ,again, the Appellants strongly believe the only way to
guarantee that such a powerful tool isn’t abused and doesn’t fall into the wrong hands is to
never create it.
7. It is humbly submitted that the Appellants has never unlocked phones, software or social
media apps for law enforcement in the past. Requests from law enforcement for information
about our customers and their devices are regularly received. In fact, the Appellants have a
dedicated team that responds to these requests 24/7. They also provide guidelines on our
website for law enforcement agencies so they know exactly what we are able to access and
what legal authority they need to see before they can help them.
8. It is humbly submitted that for devices running the software operating systems prior to
the encrypted platform in the question, under a lawful court order, the Appellants have
extracted data from an software companies. The Appellants built progressively stronger
protections into their products with each new software release, including passcode-based data
encryption, because cyberattacks have only become more frequent and more sophisticated.
As a result of these stronger protections that require data encryption, the Appellants are no
longer able to use the data extraction process on an iPhone running the present app system
or other ones in question. Hackers and cybercriminals are always looking for new ways to
defeat the Appellants’ security, which is why they keep making it stronger.
9. It is humbly submitted that it is not true that the allegation of the Government that says the
Petioner’s objection appears to be based on concern for the Appellants’ business model and
marketing strategy. Nothing could be further from the truth. This is and always has been
about our customers. The Appellants feel strongly that if they were to do what the
government has asked of them and what the government has already done — to create a

backdoor to their products — not only is it unlawful, but it puts the vast majority of good and
law abiding citizens, who rely on the Respondents to protect their most personal and
important data, at risk.
10. It is humbly submitted that the Petitioner’s believe and it is their policy that there are
many ways to help the Respondents. They have done everything that’s both within their
power and within the law to help in this case. As they’ve said, they have no sympathy
for terrorists. They provided all the information about the phone that they possessed. They
also proactively offered advice on obtaining additional information. Even since the
government’s order was issued, they are providing further suggestions after learning new
information from the Department’s filings.
11. It is humbly submitted that one of the strongest suggestions offered by Appellants
was that they pair the phone to a previously joined network, which would allow them to back
up the phone and get the data they are now asking for. Unfortunately, it is learned that while
the attacker’s Phone was in Respondent’s custody information had been encrypted and
couldnot be accessed beyond the ambit of the Petitioner and hacking of it made things appear
even more illegal and unethical, as a wrong act can never be justified with the help of another
in the question.
It is humbly submitted that this in direct conflict with the” integrated approach” adopted by
the Supreme Court of India, where a chain of events is based and judged on their causal links
and an embedded wrong on any part of the act would render the entire act illegal in nature.
12. It is further submitted that the act of hacking is itself punishable under Section 66 and
section 43 of the Technology Act, and this act, although illegal per se would have been
rendered legal if the measure taken would have been deemed to “necessary” and “ absolute”
as per given in the situation.
It is humbly submitted that, given in the light of such situations, such an Act would not seem
to have been necessary nor it would have been absolute, as the threat wasn’t immediate, and
there had been other ways to deal off with the terrorists.It is humbly submitted that the
hacking of the phone is a breach of privacy to both the customers, who have the control
function over their speech and expression, and of the company, which has a control function
over its data and processes, and so, as the data was under the close ambit and surveillance of
both of such legal persons, a breach of privacy is owed to both of them.

13. It is humbly submitted that the Appellants have apprehensions of what should happen
from here, if such an action is to be allowed. The Appellants believe that the country has
always been strongest when every one comes together. The best way forward would be for
the Government to withdraw its demands under the Act and under the form of action that they
haven taken for, form a commission or other panel of experts on intelligence, technology, and
civil liberties to discuss the implications for law enforcement, national security, privacy, and
personal freedoms. Appellants would gladly participate in such an effort.
It is humbly submitted that the hacking of the phones lead to a breach of right to privacy as
under Article 19 and Article 21 of the Constitution of India, as there is no justified grounds
and manners for the basis of this claim, which is very inherent to the basic dignity of the
customers and basic commercial rights and acumen of the company.
It is humbly submitted that allowing such an action would lead a floodgates of actions be
available to the Respondents, which can be very easily misused in the future and become a
dangerous precedent, and so such an action must be prevented and penalized at the earliest.

-PRAYER FOR RELIEF- Page xi of xi
PRAYER FOR RELIEF
IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED, REASONS

GIVEN AND AUTHORITIES CITED, THIS HON’BLE COURT MAY BE PLEASED TO:
I. HOLD THAT THE LETTERS PATENT APPEAL IS MAINTAINABLE.
II. HOLD THAT THE IMPUGNED ORDER IS VIOLATIVE OF THE FUNDAMENTAL

RIGHTS UNDER PART-III OF THE CONSTITUTION OF INDIA, AND HENCE
UNCONSTITUTIONAL.
III. HOLD THAT THERE IS A BREACH FUNDAMENTAL RIGHT TO PRIVACY IN THE

HACKING OF THE PHONES OF THE STARK INDUSTRIES AND OF ITS’
CUSTOMERS.
AND ANY OTHER RELIEF THAT THIS HON’BLE COURT MAY BE PLEASED TO
GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE, ALL
OF WHICH IS RESPECTFULLY SUBMITTED.
Sd /-
COUNSELS FOR THE PETITIONERS

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TEAMCODE: 07-P

18th NLIU Annual Fresher’s Moot Pool Tournament, 2018

IN THE HIGH COURT OF DELHI

L.P.A. No. ____ / 2018

STARK INDUSTRIES INC. .......................Appellant 1

UNION OF INDIA ………………….Respondent

W.P. No. ____ / 2018

KUKOO APP .......................Appellant 2

UNION OF INDIA ………………….Respondent

As Submitted to Hashish Kumar & Chashi ,JJ.

-WR I T T E N SU B M I S S I O N S ON BEHALF OF THE PE T I T I O N E R S -

INDEX OF AUTHORITIES ...............................................................................................................III

STATEMENT OF JURISDICTION .....................................................................................................VI

STATEMENT OF FACTS ................................................................................................................ VII

ISSUES FOR CONSIDERATION........................................................................................................ VIII

SUMMARY OF ARGUMENTS .......................................................................................................... IX

PLEADINGS AND AUTHORITIES ....................................................................................... 1

I. WHETHER THE LETTERS PATENT APPEAL IS MAINTAINABLE BEFORE

1.II. THAT THE LETTERS PATENT APPEAL IS MAINTAINABLE AS THERE IS AN

1.III. THAT THE LETTERS PATENT APPEAL IS MAINTAINABLE AS UNDER

2.I. THAT THE DRTIA ,2018 IS VIOLATIVE OF FUNDAMENTAL RIGHT TO

-W R I T T E N S U B M I S S I O N S ON BEHALF OF THE PETITIONERS -

III. WHETHER THE HACKING OF THE PHONES LEAD TO BREACH OF

PRAYER FOR RELIEF....................................................................................................................... XI

-W R I T T E N S U B M I S S I O N S ON BEHALF OF THE PETITIONERS -

State of Maharashtra v. Kusum Charudutt Bharma Upadhye, (1981) 83 BomLR 75…………1

Patthi Srinadham And Ors. vs Unknown AIR 1963 AP 18…………………………………...3

Romesh Thapar v. State of Madras, AIR 1950 SC 124………………………………………4

Kumhayammed v.State of Kerala, AIR 2000 SC 2587……………………………………….4

National Textile Workers’ Union v. P.R. Ramakrishnan, AIR 1983 SC 75…………………..5

R.C. Cooper v. Union Of India, AIR 1970 SC 564……………………………………………6

Maneka Gandhi vs Union Of India 1978 AIR 597……………………………………………6

-W R I T T E N S U B M I S S I O N S ON BEHALF OF THE PETITIONERS -

Kharak Singh vs The State of U. P. & Others 1963 AIR 1295………………………………6

D.K.Yadav v. J.M.A. Industries, (1993) 3 SCC 259…………………………………………7.

Ranjeet Brahmajeetsingh Sharma v. State of Maharashtra, AIR 2005 SC 2277……………..7

Narendra Singh v. State of MP, (2004) 10 SCC 699………………………………………….7

Dhananjay Kumar Singh v. State of Rajasthan, 2006 CrLJ 3873……………………………..7

Dwarka Prasad Laxmi Narain v. State of UP, AIR 1954 SC 224……………………………..7

Nandlal Bajaj v. The State of Punjab, AIR 1981 SC 2041……………………………………8

Art. 21, the Constitution of India……………………………………………………………..2

The Restatement (Act of March 03 1977) S.10(a) (United States)…………….……...….…...4

Warren and Barndies, The Right to Privacy, 103(56)

-W R I T T E N S U B M I S S I O N S ON BEHALF OF THE PETITIONERS -

Reports & Other Authorities

-W R I T T E N S U B M I S S I O N S ON BEHALF OF THE PETITIONERS -

THE PETITIONER I HAS INVOKED THE JURISDICTION OF THE COMPETENT HIGH

THE PETITIONER II HAS INVOKED THE JURISDICTION OF THE HIGH COURT OF

IT IS HUMBLY SUBMITTED THAT THE COURT HAS JURISDICTION OVER THE

-W R I T T E N S U B M I S S I O N S ON BEHALF OF THE PETITIONERS -

-The matter is slated to be heard on 6th October, 2018-

-W R I T T E N S U B M I S S I O N S ON BEHALF OF THE PETITIONERS -

ISSUES FOR CONSIDERATION

THE PETITIONERS VERY RESPECTFULLY PUT FORTH TO THE HON’BLE DELHI

1) WHETHER THE PRESENT LETTERS PATENT APPEAL IS MAINTAINABLE?

2) WHETHER THE DISCLOSURE REQUIREMENTS FOR TECHNOLOGY

3) WHETHER THE HACKING OF MOBILES OF STARK INDUSTRIES LEAD TO

-W R I T T E N S U B M I S S I O N S ON BEHALF OF THE PETITIONERS -

I. WHETHER THE PRESENT LETTERS PATENT APPEAL IS MAINTAINABLE?

II. WHETHER THE DISCLOSURE REQUIREMENTS FOR TECHNOLOGY

III. WHETHER THE HACKING OF MOBILES OF STARK INDUSTRIES LEAD TO

-W R I T T E N S U B M I S S I O N S ON BEHALF OF THE PETITIONERS –

-W R I T T E N S U B M I S S I O N S ON BEHALF OF THE PETITIONERS –