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K 13

BEFORE

THE FEDERAL COURT OF NEVERLAND

UNDER ARTICLE 32

OF

THE CONSTITUTION OF NEVERLAND

IN THE MATTER OF

[PUBLIC INTEREST LITIGATION

UNDER ARTICLE 32 OF THE CONSTITUION OF NEVERLAND

CASE CONCERNING VIOLATION OF RIGHT OF PRIVACY]

MR. TARISH SOOR (PETITIONER)

vs.

REPUBLIC OF NEVERLAND (RESPONDENT)

(MEMORIAL ON BEHALF OF THE RESPONDENT)

MEMORIAL ON BEHALF OF RESPONDENTS

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TABLE OF CONTENTS

1 LIST OF ABBREVIATIONS 3

2 INDEX OF AUTHORITIES 4

3 STATEMENT OF JURISDICTION 6

4 STATEMENT OF FACTS 7

5 STATEMENT OF ISSUES 8

6 SUMMARY OF ARGUMENTS 9

7 ARGUMENTS ADVANCED 10

ISSUE 1: WHETHER THE PIL IS MAINTAINABLE BEFORE THE

FEDERAL COURT OF NEVERLAND OR NOT?

11

ISSUE 2: WHETHER THE GOVERNMENTAL ORDER

AUTHORISING THE GOVERNMENTAL AGENCIES TO
15
MONITOR, INTERCEPT AND DECRYPT INFORMATION IS
UNCONSTITUTIONAL OR NOT?

ISSUE 3: WHETHER THE GOVERNMENT ORDER IS

VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION OF
21
NEVERLAND?

8 PRAYER 27

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LIST OF ABBREVIATIONS

vs........................................................................................................................................versus

ORS...................................................................................................................................Others

Art. ...................................................................................................................................Article

AIR..................................................................................................................All India Reporter

u/A..........................................................................................................................Under Article

Lj..............................................................................................................................Law Journal

SCC............................................................................................................Supreme Court Cases

SC.........................................................................................................................Supreme Court

Supp.....................................................................................................................Supplementary

Oct...................................................................................................................................October

COI..............................................................................................................Constitution of India

PIL....................................................................................................... Public Interest Litigation

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INDEX OF AUTHORITIES

STATUTES

1. The Constitution of Neverland (The Constitution of Neverland pari materia to the

Constitution of India.)

2. The Information Technology Act, 2000

3. The Telegraph Act, 1885

CASES

1 Romesh Thapar v Union of India

2 People’s Union for Democratic Rights v. Union of India

3 D.C.Wadhwa v. State of Bihar

4 Kini v. Union of India

5 T.N. Godavarman Thirumulpad v. Union of India (UOI) and Ors

6 Maneka Gandhi v. Union of India

7 Govind v. State of M.P.

8 Zoroastrian Cooperative Housing Society v District Registrar

9 People’s Union for Civil Liberties vs Union of India

10 Malak Singh vs. State Of Punjab & Haryana

11 Mk International vs Union Of India

12 Mapsa Tapes Private Limited and Anr. v. Union of India and Ors

13 M.P. Sharma v. Satish

14 Fedration of Railway Officers Association v. Union of india

15 Prafulla Kumar Das v. State of Orissa

16 State of kerala v. PUCL, Kerala State Unit

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17 Govt of Andhra Pradesh v. P. Laxmi Devi

18 Chandrakant Saha v. Union of India

19 Jyoti Pd. V. Union Territory of Delhi

20 Naraindas v. State of Madhya Pradesh

21 Onkar Lal Bajaj v. Union of India

22 A.P. Coop. Oil Seeds Growers Federation Ltd. V. D. Achyuta Rao

23 Ram Krishna Dalmia v. Justice Tendolkar

24 State of W.B. v. Anwar Ali Sarkar

25 Antulay A.R. v. Nayak R.S

26 Kedarnath Bajoria v. State of W.B

27 Pratap Singh S. v. State of Punjab

28 S.C. Advocates on Record Association v. Union of India

29 K. Karunakaran v. State of Kerala

30 State of Bombay v. Balsara F.N.

31 'X' v. HOSPITAL 'Z'

32 Mukesh Kumar Ajmera v. State of Rajasthan

BOOKS

M P Jain, Indian Constitutional Law, 917 (7th ed., Lexis-Nexis Butterworth Wadhwa

Publications, Nagpur, 2016)

Immanuel Kant, The Moral Law: Groundwork of the Metaphysic of Morals, 42 (Herbert

James Paton eds., Psychology Press, London, UK, 2005)

D D Basu, Shorter Constitution of India, (14th ed., Volume 1 Articles 1 to 151, Lexis-Nexis)

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INTERNATIONAL INSTRUMENTS

1. Art. 12, Universal Declaration of Human Rights, 1947

2. Section 2(1)(d), Protection of Human Rights Act, 1993

3. Art. 9, International Convention on Civil and Political Rights

WEBSITES

www.manupatra.com

www.supremecourtofindia.nic.in

www.scconline.com

www.indiankanoon.org

www.casemine.com

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STATEMENT OF JURISDICTION
The Federal Court of Neverland has the jurisdiction in this matter under Article 32 of the

Constitution of Neverland, 1950.

Article 32 - Remedies for enforcement of rights conferred by this part.

1. The right to move the Supreme Court by appropriate proceedings for the enforcement

of the rights conferred by this Part is guaranteed.

2. The Supreme Court shall have power to issue directions or orders or writs, including

writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and

certiorari, whichever may be appropriate, for the enforcement of any of the rights

conferred by this Part.

3. Without prejudice to the powers conferred on the Supreme Court by clause (1) and

(2), Parliament may by law empower any other court to exercise within the local

limits of its jurisdiction all or any of the powers 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.

If the Court deems it appropriate to proceed in this matter, we humbly accept your

jurisdiction.

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STATEMENT OF FACTS

Government Policies:

The government of REPUBLIC OF NEVERLAND formulated a policy for

profiling of its citizens and to provide them a ID card which were based on bio-
metric details. The ID card was meant to identify citizens for various benefits
given by the government, to save duplicity of identities and duplicity of election
cards.

Eleven judges bench of the Federal Court of Neverland in 2017 ruled that the ID
card which collects the biometric details are violative of right to privacy
enshrined in the art 21 of the constitution of Republic of Neverland.

Government Order:

In April 2017, The union Government promulgated an order authorizing few

governmental agencies to monitor, intercept and decrypt information which is
transmitted, generated, stored in or received by any computer which is violative
of the right to privacy as the whole of the workings of any individual is not only
under his control but any information could be taken by the government agencies
including

Reason for writ Petition

Under the order, an individual who fails to assist these government agencies with
technical assistance or extend all facilities can face upto seven years of
imprisonment or be liable to be fined.

Mr Tarish soor, a citizen of the country, fearing that the governmental agencies may intercept
his data filed an PIL before the Federal Court challenging the notification and seeking an
order for ensuring that none of his information which is transmitted, generated, stored in or
received by any of the agencies mentioned in the governmental notifications. That the
Petitioner, Mr. Tarish Soor, challenged this order in the federal court of REPUBLIC OF
NEVERLAND through a Public Interest Litigation (PIL) contending that the order violates
right to life including the right to privacy.

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STATEMENT OF ISSUES

-I-

WHETHER THE PIL IS MAINTAINABLE BEFORE THE FEDERAL COURT OF

NEVERLAND OR NOT?

-II-

WHETHER THE GOVERNMENTAL ORDER AUTHORISING THE GOVERNMENTAL

AGENCIES TO MONITOR, INTERCEPT AND DECRYPT INFORMATION IS
UNCONSTITUTIONAL OR NOT?

-III-

WHETHER THE GOVERNMENT ORDER IS VIOLATIVE OF ARTICLE 14 OF THE

CONSTITUTION OF NEVERLAND?

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SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE PIL IS MAINTAINABLE BEFORE THE FEDERAL

COURT OF NEVERLAND OR NOT?

A Public Interest Litigation cannot be filed under Article 32 of the Constitution for
enforcement of Fundamental Rights ,as guaranteed by part III of the Constitution.In the
present case, there has been no violation of the fundamental rights since, the action taken by
the State was in furtherance of the principle of economic and social justice and thus cannot be
termed as arbitrary or as one which was without the application of the mind. The petitioner is
raising a mere scholarly objection, without any locus standi. Therefore the PIL should not be
maintained before the Federal Court of Neverland.

ISSUE 2: WHETHER THE GOVERNMENTAL ORDER AUTHORISING THE

GOVERNMENTAL AGENCIES TO MONITOR, INTERCEPT AND DECRYPT
INFORMATION IS VIOLATIVE OF RIGHT TO PRIVACY OR NOT?

It is humbly submitted before the Hon’ble Court that the order authorising the governmental
agencies to monitor, intercept and decrypt information brought by the government of
Neverland is constitutional as the government order for ensuring that of information which is
transmitted, generated, stored in or received by any of the agencies mentioned in the
governmental notifications has been promulgated by the state keeping and is not violative of
the fundamental rights as no fundamental right is absolute in nature and can be restricted by
the state, for the betterment of the state.

ISSUE 3: WHETHER THE GOVERNMENT ORDER IS VIOLATIVE OF ARTICLE

14 OF THE CONSTITUTION OF NEVERLAND?

It is humby implored before this court that the government order authorizing agencies to
monitor, intercept and decrypt information is prima facie constitutional
Art. 14 gives a wide array of rights to the ordinary citizen but is bound by reasonable
restrictions as been held in multiple precedents by this courts.

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ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE PIL IS MAINTAINABLE BEFORE THE FEDERAL

COURT OF NEVERLAND OR NOT?

1.1 Whether the present writ petition has been filed prematurely

A Public Interest Litigation can be filed under Article 32 of the Constitution for enforcement

of Fundamental Rights ,as guaranteed by part III of the Constitution.

In the present case, there has been no violation of the fundamental rights since, the action

taken by the State was in furtherance of the principle of economic and social justice and thus

cannot be termed as arbitrary or as one which was without the application of the mind.

The respondent submits that the Court has held that only if there is a violation of

Fundamental Rights can it step in under the Jurisdiction of Article 321. The petitioner is

raising a mere scholarly objection, without any locus standi.

The objective of Section 69 of the IT Act are essentially better internet management with the

specific mandate of “enhancing cyber security and for identification, analysis and prevention

of intrusion or spread of computer contaminant.” Towards this goal the section allows for

issuing directions to “monitor and collect traffic data or information generated, transmitted,

received or stored in any computer resource.”

Hence when there is no damnus, the Petitioner cannot seek a remedy.

In the words of S.C. in People’s Union for Democratic Rights v. Union of India2, “We wish

to point out with all the emphasis at our command that public interest litigation is a totally

1
Romesh Thapar v Union of India, AIR 1950 SC 124
2
AIR 1982 S.C. 1473

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different kind of litigation from the ordinary traditional litigation which is essentially of an

adversary character where there is a dispute between two litigating parties, one making claim

or seeking relief against the other and that other opposing such claim or resisting such relief”.

3
The rule of locus standi have been relaxed and a person acting bona fide and having

sufficient interest in the proceeding of Public Interest Litigation will alone have a locus standi

and can approach the court to wipe out violation of fundamental rights and genuine infraction

of statutory provisions, but not for personal gain or private profit or political motive or any

oblique consideration…court has to strike balance between two conflicting interests

It is depressing to note that on account of trumpery proceedings initiated before the courts,

innumerable days are wasted, which time otherwise could have been spent for the disposal of

cases of genuine litigants.

4
There are matters of private nature that can’t be brought through PIL which are laid down

such as:

i) threat to or harassment of the petitioner by private persons,

ii) seeking enquiry by an agency other than the local police,

iii) seeking police protection,

iv) land lord tenant dispute,

v) service matters

1.2 Abuse Of Public Interest Litigation:5

Of late, many of the PIL activists in the country have found the PIL as a handy tool of

harassment since frivolous cases could be filed without investment of heavy court fees as

3
D.C.Wadhwa v. State of Bihar, AIR 1987 SC 579
4
ibid
5
Kini v. Union of India (AIR 1985 SC 8915)

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required in private civil litigation and deals could then be negotiated with the victims of stay

orders obtained in the so-called PILs.

Just as a weapon meant for defence can be used equally effectively for offence, the lowering

of the locus standi requirement has permitted privately motivated interests to pose as public

interests. The abuse of PIL has become more rampant than its use and genuine causes either

receded to the background or began to be viewed with the suspicion generated by spurious

causes mooted by privately motivated interests in the disguise of the so-called public

interests.

While this Court has laid down a chain of notable decisions with all emphasis at their

command about the importance and significance of this newly developed doctrine of PIL, it

has also hastened to sound a red alert and a note of severe warning that courts should not

allow its process to be abused by a mere busybody or a meddlesome interloper or wayfarer or

officious intervener without any interest or concern except for personal gain or private profit

or other oblique' consideration.6

There must be real and genuine public interest involved in the litigation and not merely an

adventure of knight errant or poke ones into for a probe. It cannot also be invoked by a

person or a body of persons to further his or their personal causes or satisfy his or their

personal grudge and enmity.

1.3 Whether the principle of Res judicata Applies In The Present Case

The respondent maintains the applicability of the maxim, interest reipublicae ut sit finis

6
T.N. Godavarman Thirumulpad v. Union of India (UOI) and Ors. AIR 2006 SC 1774,

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litium7. This fundamental maxim is the basis for the conception of Res judicata, as also the

principle of Judicial Infallibility.

The constitutional right to privacy in India is subject to a number of restrictions. These

restrictions have been culled out through the interpretation of various provisions and

judgments of the Supreme Court of India:

§ The right to privacy can be restricted by procedure established by law which

procedure would have to be just, fair and reasonable (Maneka Gandhi v. Union of

India)8;

§ Reasonable restrictions can be imposed on the right to privacy in the interests of the

sovereignty and integrity of India, and the security of the State, (Article 19(2) of the

Constitution of India, 1950)

§ The right to privacy can be restricted if there is an important countervailing interest

which is superior (Govind v. State of M.P.)9;

§ The right to privacy can be restricted if there is a compelling state interest to be served

(Govind v. State of MP.);

§ Like most fundamental rights in the Indian Constitution, the right to privacy has been

mostly interpreted as a vertical right applicable only against the State, as defined

under Article 12 of the Constitution, and not against private citizens. (Zoroastrian

Cooperative Housing Society v District Registrar)

Therefore when the matter has already been dealt with in the above stated cases, the principle

of Res Judicata is applicable here.

7
In the interest of the state, there should be an end to litigation.”
8
1978 AIR 597, 1978 SCR (2) 621
9
(1975) 2 SCC 148

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The respondent thus maintains that the PIL lacks merits and is not maintainable before this

court.

ISSUE 2: WHETHER THE GOVERNMENTAL ORDER AUTHORISING THE

GOVERNMENTAL AGENCIES TO MONITOR, INTERCEPT AND DECRYPT
INFORMATION IS UNCONSTITUTIONAL OR NOT?

It is humbly submitted before the Hon’ble Court that the order authorising the governmental

agencies to monitor, intercept and decrypt information brought by the government of

Neverland is constitutional as the government order for ensuring that of information which is

transmitted, generated, stored in or received by any of the agencies mentioned in the

governmental notifications has been promulgated by the state keeping .

Section 69(1) of the Information Technology Act and the accompanying Information

Technology Rules. This section empowers the Central and state governments to authorise

government agencies to intercept, monitor or decrypt “any information generated,

transmitted, received or stored in any computer resource”. It lays down six grounds on the

basis of which such authorisation may be granted. These are :

A). The preservation of India’s sovereignty or integrity.

B). The security of the state.

C). Public order.

D). Maintaining friendly relations with other countries.

E). Preventing offences relating to A. to D. from being incited or committed.

F). Criminal Investigations

Section 69 of the Information Technology Act after much discontent and debate, the

Information Technology Act, 2000 received its first major amendment in 2008. The

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Amendment Act sought to rectify the many deficiencies, which had been noticed with the

application of the enactment. The amendment sought to make the Information Technology

Act, 2000 a self-sufficient law with respect to Internet behavior.

The section is a reflection of Section 5(2) of the Telegraph Act, containing the same

limitations on the exercise of the power to issue directions.

It contains a similar structure adhering to the constitutional limitations as prescribed in

People’s Union for Civil Liberties vs Union of India 10, where the direction may only be

issued if (a) public emergency; or/(b) public safety situation exists. It also requires recording

of reasons for issuing the direction and mentioning the 5 classes of events as contained in

Section 5(2). It is not surprising that the recent regulations prescribed under Section 69(2)

providing the procedure for issuing directions also broadly follow Rule 419 A. They mirror

most of the procedural safeguards of documentary adherence, oversight and automatic expiry.

The provisions,which have recently been made under the regulations,are not defective. Such

orders will cure the inherent defects in the system since they may remove the inherent bias of

the functionaries.This will be a pragmatic and convenient compromise, which will not mark a

substantial shift in the present procedure driven approach. Such a procedural safeguard

essentially for Internet communications since, as highlighted above, the level of the breach of

privacy is higher than conventional invasions of privacy. Information aggregation and

monitoring necessarily requires interception.

2.1 NOT INFRINGING RIGHT TO PRIVACY :

Even, the argument that the said governmental order is violating the Right to privacy falls

short as No right is ever absolute, i.e. every right has certain limitations and restrictions

placed upon it by law, Not even the right to life contained in the Constitution of India is

10
AIR 1991 SC 207

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exempt from this rule. Due to the volatile nature of the global scenario, the primary duty of

the State is to protect national interests and as a result the protection and enforcement of

all other rights become secondary.

Section 69 provides for online surveillance by the Central and State Governments by means

of intercepting, monitoring and decrypting any manner of electronic communication. This

Section was amended in 2008 and was consequently given a wider scope.This Section was

amended in 2008 and was consequently given a wider scope. Another change which has

been brought is that it mandates procedural safeguards to be adhered to so as to avoid

arbitrariness. Also, reasons must be recorded in writing before exercising the powers under

the section. Communication over the internet is a means of utilizing the freedom of speech

and expression we possess and hence unless absolutely necessary or in extenuating

circumstances, this Section cannot be applied by the Central and State Governments. On a

multitude of occasions, the Supreme Court stated that individual privacy can be compromised

to further national and public interests.The Government has been given vast amounts of

power when it comes to surveillance. But these powers are exercised with the utmost caution.

The intention behind Section 69 is more of a public policy measure and should thus be

limited to only that purpose. The defining argument justifying the government’s power of

surveillance is that if investigations of crimes committed in the physical world can invade

the privacy of citizens’ lives when necessary, then the same principle should be

applicable when it comes to online resources too. A similar line of reasoning was used

when the Supreme Court upheld the constitutional validity of MCOCA, 1999 as there were

sufficient procedural mechanisms in place so as to prevent it from being misused.

The right to privacy and confidentiality has to be balanced with the need to safeguard

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national security.Perhaps the most striking thing about the right to privacy is that nobody

seems to have any very clear idea what it is.” When we contemplate an invasion of privacy

such as having our personal information gathered by companies in databases, we instinctively

recoil. Most discussions on privacy appeal to people’s fears and anxieties. However, what

commentators often fail to do, is translate those instincts into a reasoned, well-

articulated account of why privacy problems are harmful. When people claim that

privacy should be protected, it is unclear precisely what they mean. This lack of clarity

creates a difficulty when it comes to policy making or resolving cases because lawmakers,

enforcement agencies and judges cannot easily articulate the privacy harm. Therefore, it an

be deduced from the observations that no fun damental right is absolute in nature and can be

restricted by the state, for the betterment of the state.

2.2 CONSTITUTIONALITY OF SEC.69 OF IT ACT :

Section 69 of the IT Act allows for the interception, monitoring and decryption of digital

information in the interest of the sovereignty and integrity of India, of the defence of India,

security of the State, friendly relations with foreign nations, public order, preventing the

incitement to the commission of any cognizable offense relating to the above, and for the

investigation of an offense. While this provision is similar to interception provision under the

Telegraph Act mentioned above, it is noteworthy that it dispenses with the sine qua non of

“the occurrence of public emergency of the interest of public safety”, thus dramatically

broadening the ambit of powers. The rules framed under Section 69 and 69B10 (the “IT

Interception Rules”) include safeguards stipulating who may issue directions of interception

and monitoring, how such directions are to be executed, the duration they remain in

operation, to whom data may be disclosed, confidentiality obligations of intermediaries,

periodic oversight of interception directions by a Review Committee under the Indian

Telegraph Act, the retention of records of interception by intermediaries and to the mandatory

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destruction of information in appropriate cases. . Rule 3 allows the “competent authority” to

issue directions for monitoring for any of a number of specified purposes related to cyber

security.

Even, when we read about the judgements decided by the Hon’ble courts, Indian courts

have legitimised surveillance by the state as long as such surveillance is not illegal or

unobtrusive and is within bounds Malak Singh vs. State Of Punjab & Haryana11 AIR

1981 SC 760] While determining what constitutes legal surveillance, courts have rejected

“prior judicial scrutiny” as a mandatory requirement and have held that administrative

safeguards are sufficient to legitimise an act of surveillance.

2.3 CONDITIONS PRECEDENT FOR ORDERING INTERCEPTION

S5(2) of the Telegraph Act and 26(2) of the Indian Post Office Act outline a two tiered test

to be satisfied before the interception of telegraphs or postal articles. The first tier consists

of sine qua nons in the form of an “occurrence of public emergency” or “in the interests of

public safety.” The second set of requirements under the provisions is “the interests of the

sovereignty and integrity of India, the security of the State, friendly relations with foreign

States or public order or for preventing incitement to the commission of an offence.

Even, in the relevant case of Mk International vs Union Of India12 on 7 September, 2006 It

is well settled that power of search and seizure has to be conceded in the larger interest of the

society ,Mapsa Tapes Private Limited and Anr. v. Union of India and Ors.13 The same has

been upheld by the Hon'ble Supreme Court in M.P. Sharma v. Satish14, it was observed A

power of search and seizure is in any system of jurisprudence an overriding power of the state

11
AIR 1981 SC 760
12
(209) ELT 15 P H
13
201) ELT 7 P H
14
1954 AIR 300

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for the protection of social security and that power is necessarily regulated by law. When the

Constitution makers have thought fit not to subject such regulation to constitutional

limitations by recognition of a fundamental right to privacy, analogous to the American

Fourth Amendment, we have no justification to import it, into a totally different fundamental

right, by some process of strained construction. Statutory regulation in this behalf is

necessary and reasonable restriction cannot per se be considered to be unconstitutional. The

damage, if any, caused by such temporary interference if found to be in excess of legal

authority is a matter for redress in other proceedings.

Lastly, if we deal with the question of Whether the government have access to its

citizens’ data?

The role of the federal government in public privacy has been contentious since the explosion

of digital data in the last few decades. A conservative position would argue against the

intrusion of big government in the personal information of its citizens. A liberal argument

might insist that the government should be trusted with access and use of big data.

The 2015 attack in San Bernardino raised one such issue. The government, seeking to prove

Rizwan Farook and Tashfeen Malik’s guilt, asked Apple to unlock a cell phone. The San

Bernardino iPhone example is just one example of government efforts to use personal

data with hopes of keeping the American people safe. Former Supreme Court Justice

Robert Jackson aptly described the issues of data and privacy in 1949, arguing, “The choice

is not between order and liberty. It is between liberty with order and anarchy without

either.

In the last twenty years, information and communication technologies (ICTs) have become

prevalent in cities, transforming them into ‘smart cities.’

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In order to maintain this smart urbanism, governments and businesses must collect masses of

data on its citizens. Thus, for the good of society, citizens are giving up some of their

privacy: there is a tradeoff.

The respondent thus maintains that the government order authorising the said government

agencies is constitutional and for the general benefit of the public.

ISSUE 3: WHETHER THE GOVERNMENT ORDER IS VIOLATIVE OF ARTICLE

14 OF THE CONSTITUTION OF NEVERLAND?
It is humby implored before this court that the government order authorizing agencies to

monitor, intercept and decrypt information is prima facie constitutional

Art. 14 gives a wide array of rights to the ordinary citizen but is bound by reasonable

restrictions as been held in multiple precedents by this courts.

The constitutional right to privacy in India is subject to a number of restrictions. These

restrictions have been culled out through the interpretation of various provisions and

judgements of the Supreme Court of India

3.1 ADMINISTRATIVE DISCRETION AND ART. 14

Controlled discretion exercisable according to a policy for a purpose clearly enunciated by a

statute does not suffer from the vice of conferment of unrestricted discretion. 15

A mere hardship cannot be a ground for striking down a valid legislation unless it is held to

be suffering from the vice of discrimination or unreasonableness 16 If anybody raises a

contrary convention it would be for him to bring on record sufficient material to lead the

court to arrive at a conclusion that ‘State’s action was arbitrary’ 17

15
Fedration of Railway Officers Association v. Union of india (2003) 4 SCC 289
16
Prafulla Kumar Das v. State of Orissa (2003) 11 SCC 614
17
State of kerala v. PUCL, Kerala State Unit, (2009) 8 SCC 46

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In Laxmi Divi 18 the court has reiterated the principle that mere likelihood of abuse of

discretionary power conferred under statute would not render the statutory provision

unconstitutional. There is always a difference between a statute and the action taken under a

statute i.e. the statute may be valid and Constitutional.

As regards laying down of principles or guiding norms, it has been held, for instance, that it is

not essential that the very section in the statute which confers the power should also lay down

the rules of guidance, or the policy for the administrator to follow. If the same can be

gathered from the preamble, or the long title of the statute and other provisions therein, the

discretion would not be regarded as uncontrolled or unguided and the statute in question will

not be invalid. At times, even vague policy statements to guide administrative discretion have

been held by the courts as complying with Art. 14 19

On the whole, while the basic principle stands, viz, uncontrolled discretion ought not to be

conferred on the administration, the general judicial tendency is to apply this principle in a

very flexible manner. The courts tend to uphold the law rather than declare it invalid on this

ground which is done only in rare cases. 20

A case of arbitrariness is not made out where two views are possible and the view taken by

the government cannot be challenged on the ground that the other view is a better one. 21.

Mere fact that some hardship or injustice is caused to someone is no ground to strike down

the rule altogether if otherwise the rule appears to be just, fair and reasonable and not

unconstitutional. 22

18
Govt of Andhra Pradesh v. P. Laxmi Devi, (2008) 4 SCC 720
19
Chandrakant Saha v. Union of India, AIR 1979 SC 314
20
Jyoti Pd. V. Union Territory of Delhi, AIR 1961 SC 1602 : (1962) 2 SCR 125; Naraindas v. State of Madhya
Pradesh, AIR 1974 SC 1232.
21
Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673
22
A.P. Coop. Oil Seeds Growers Federation Ltd. V. D. Achyuta Rao, (2007) 13 SCC 320

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3.2 APPLICATION OF LAW

Selective application of law on an objective basis is not objectionable. The leading case in the
23
area is Ram Krishna Dalmia v. Justice Tendolkar. A commission of enquiry was

appointed under a notification of the Commision of Inquiry Act, 1952 and was challenged as

discriminatory. It was however held to be valid as the discretion conferred thereunder was not

unguided because it was to be exercised subject to the policy and conditions laid down in the

Act, viz, a commission could b appointed to inquire into a definite matter of public

importance. The notification was also sustained against the charge that it arbitrarily singled

out the petitioner and his companies for hostile and discriminatory treatment and subjected

them to a harassing and oppressive inquiry.

The Court held that the Parliament having left the selective application of the Inquiry Act to

the discretion of the government, the latter must act on the information available to it and the

opinion it formed thereon.

It is to be presumed, that unless the contrary is proved, that the govt would act honestly,

properly and in conformity with the policy and the principles laid down by Parliament

In Govind v. State of Madhya Pradesh, 24 the Supreme Court undertook a more elaborate

appraisal of the right to privacy. In Govind, the Court considered the constitutional validity of

a regulation, which provided for surveillance by way of several measures indicated in the said

regulation. The Court upheld the regulation by ruling that Art. 21 was not violated as the

regulation in question was “procedure established by law”, in terms of Art. 21. The Court

also accepted a limited Fundamental Right to Privacy “as an emanation” from Arts. 19(a), (d)

23
AIR 1958 SC 538
24
AIR 1975 SC 1378

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and 21. The right to privacy is not, however, absolute; reasonable restrictions can be placed

thereon in public interest under Art. 19(5). Thus, MATHEW J., observed in Govind:

“The right to privacy in any event will necessarily have to go through a process of case-by-

case development. Therefore, even assuming that the right to personal liberty, the right to

move freely throughout the territory of India and the freedom of speech create an

independent right to privacy as an emanation from them which one can characterize as a

Fundamental Right, we do not think that the right is absolute.”

3.3 EQUAL PROTECTION MAY BE DENIED BY PROCEDURAL LAWS AS WELL

§ In order to find out whether there has been a substantial departure from the normal

procedure, the test to be applied is not the degree of inequality, but the reality of it.

Thus there is a substantial difference in the procedural right of the accused to equality

of treatment where the impugned Act deprives the accused, inter alia, of – a) the

safeguards of committal procedure, b) the trial with the help of jury or assessors, c)

the right to de novo trial d) the right to redress in higher courts, - which are allowed to

other accused of the same class, under the general law of criminal procedure.25

§ There is no discrimination where there is only one procedure prescribed (not

alternative procedures to be applied at the discretion of the administrative authority),

but additional powers are conferred upon the authority for the enforcement of that one

procedure in some cases which are rationally classified, e.g., for the recovery of State

due. 26

§ The bare possibility that the discretionary power may be abused is no ground for

invalidating the statute 27

25
State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284; Antulay A.R. v. Nayak R.S., AIR 1988 SC 1531
26
Kedarnath Bajoria v. State of W.B., 1954 SCR 30
27
Pratap Singh S. v. State of Punjab, AIR 1964 SC 72 (83)

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§ Neither Rule of Law28 not Art. 14 will not be violated unless absolute power or

discretion is vested in one individual. Discretion implies a fiduciary duty to act with

due restraint.

§ Mere apprehension of the government order being used against some persons is no

ground to hold it illegal or unconstitutional particularly when its legality or

constitutionality has not been challenged. 29

Presumption that the classification is reasonable: The presumption is always in favor of

the constitutionality of an enactment, since it must be assumed that the Legislature

understands and correctly appreciates the needs of its own people, that its laws are directed to

problems made manifest by experience and its discriminations are based on adequate

grounds. 30

In the case of 'X' v. HOSPITAL 'Z' 31 it was concluded by the Supreme Court that right of

privacy cannot be treated to be an absolute right and in paragraph 26, the Supreme Court

provided the following important guidelines :

“26. As one of the basic Human Rights, the right of privacy is not treated as absolute and is

subject to such action as may be lawfully taken for the prevention of crime or disorder or

protection of health or morals or protection of rights and freedoms of others.”

Similarly in Mukesh Kumar Ajmera v. State of Rajasthan32, It was observed:

"Right to privacy and liberty are not absolute rights. A law imposing reasonable restrictions

upon it for compelling interest of State must be held to be valid.”

28
S.C. Advocates on Record Association v. Union of India, AIR 1994 SC 268
29
K. Karunakaran v. State of Kerala, (2000) 3 SCC 761 (para 8)
30
State of Bombay v. Balsara F.N., (1950-51) SC 318 (316)
31
(1998) 8 SCC 296
32
AIR 1997 RAJ 250

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In M.P Sharma Singh & others v. Satish Chandra & Others33,

“A power of search and seizure is in any system of jurisprudence an overriding power of the

State for the protection of social security and that power is necessarily regulated by law.

When the Constitution makers have thought fit not to subject such regulation to constitutional

limitations by recognition of a fundamental right to privacy, analogous to the American

Fourth Amendment, we have no justification to import it, into a totally different fundamental

right, by some process of strained construction”.

The respondent thus maintains that the government order authorosing the said
government agencies not violative of Article 14.

33
1954 AIR 300

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PRAYER

Wherefore it is prayed, in light of the issues raised, arguments advanced, and authorities

cited, that this Honourable Court may be pleased to adjudge and declare that:

(1) The PIL is NOT maintainable.

(2) The order brought by the government of Neverland is constitutional and does

not violate fundamental rights of the people of Neverland.

AND/OR

And pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of

Justice, Fairness, Equity and Good Conscience

For This Act of Kindness, the Respondent Shall Duty Bound Forever Pray.

Sd/-

Counsel for the Respondent

MEMORIAL ON BEHALF OF RESPONDENTS