MOOT COURT COMPETITION

MOOT PROBLEM

W.P. No. 234 of 2021

Mr. Jon Snow & Ors. vs. UNION OF INDIA

With

M.A. No. 34814 of 2021

Mr. Jon Snow & Ors. vs. UNION OF INDIA

With

I.A. No. 34815 of 2021

Desh Ki Mitti vs. Mr. Jon Snow & Ors.

1. India is a Sovereign, Democratic, Secular, Republic and Socialist country in the South-Asian Region
and has been hailed as one of the fastest- growing economies across the globe. The constitution
framers of the country ensured a set of fundamental rights to its citizens by making provisions to this
effect in the Constitution. The right to freedom of speech and expression is also guaranteed as a
fundamental right under the Constitution of India. The judiciary, especially the Supreme Court of
India is known for being fiercely independent and mighty defender of rights guaranteed by the
Constitution.

2. There are two political parties in the country, one is the ‘Nationalist Party of India’ (NPI) and the
second is the ‘Socialist Party of India’ (SPI). In the year 2014, by popular opinion, a government by
the name of ‘Nationalist Party of India’ came into power by defeating the 'Socialist Party of India'
which was in power for the past several years. The members of NPI are mostly Hindu. This party is
influenced by the idea of 'Nationalism' and as such any dissent or critique of nationalist ideas and
ethos not confirming with the traditionalist views of the Party are not always welcomed. Often such
critics and dissenters are labeled as ‘Neoliberals’ and sympathizers of the Socialist Party of India. The
Nationalist Party of India has always taken pride in its core values and traditions.

3. The country is surrounded by 5 enemy states and as such is subject to Guerilla warfare, insurgency
and terrorist attacks quite frequently. The SPI was considered a liberal government and a
government that was not able to provide protection and security for the citizens of the country. This
was the main reason for the election of NPI in the year 2014. There were a total of 5 insurgency
attacks and 1 terrorist attack during 2014-2019 which was a sharp decline in comparison to the
earlier attacks. The NPI delivered on its promises and any act of insurgency or terrorism on the
country's land and its citizens was met with stern action. In the year 2019, NPI won the election with
an even bigger majority and continued on its path to national security.

4. In the year 2019, a PIL was filed on behalf of a disgruntled member of SPI in the Hon’ble Supreme
Court stating that the Government is using Kimetsu (a spyware software developed by NSO, a Palpan
Company) and is invading the privacy of the citizens of the country by using continuous surveillance
technique facilitated by the said software. It was also contended that the government is also
violating the Fundamental Right to Privacy as enshrined under Article 21 of the Indian Constitution.
The petitioner prayed that an Investigation be conducted in the matter by a Special Investigation
Team (SIT) amongst other reliefs. The same was however withdrawn to pursue alternative remedies.

5. On June 18, 2021, ‘The Rope’ (an online news agency) reported that the phone numbers of over
40 journalists were on a hacking list of an unidentified agency using Palpanese spyware Kimetsu. The
report said forensic tests have confirmed the presence of military-grade spyware on some devices.

6. The Rope’s analysis of the data showed that most of the journalists were targeted between 2018
and 2019, in the run-up to the 2019 Lok Sabha elections. “The company refuses to make its list of
customers public but the presence of Kimetsu infections in India, and the range of persons that may
have been selected for targeting, strongly indicate that the agency operating the spyware on
numbers in India,” the report said.

7. The report was published by The Rope in collaboration with 16 other international publications
including the world-known media agencies to an investigation conducted by Paris-based media non-
profit organization Prohibited Stories and rights group People Rights International.

8. The Government responded to these allegations stating that they have no concrete basis. It added
that there have been no unauthorized interceptions. It called the report a fishing expedition and said
that there has been no invasion of privacy of the citizens of the nation.

9. Palpanese firm NSO group while denying all the allegation has stated that it gives the software
only to vetted governments.

10. It was later revealed that phones of more than 300 citizens had been under surveillance by the
use of the said software including members of the opposition party and some union ministers
amongst others.

11. The Socialist Party demanded that all the ministers should give their resignation and the entire
matter should be investigated by an independent body and the alleged role of several high-ranking
officials should be ascertained.

12. Subsequently a group of journalists led by Mr. Jon Snow, who is the editor of The Hindustan
Times, a leading newspaper in the country, approached the Hon’ble Supreme Court to redress this
invasion of privacy by their government, seeking the following reliefs:

a) To appoint a Supreme Court monitored Special Investigation Team (SIT) to investigate the current
situation in respect of Kimetsu.

b) To declare that surveillance by the state is an invasion of privacy of the citizens of the country
under Article 21 of the Constitution and also deters free speech and expression which is a
fundamental right enshrined under Article 19(1)(a) of the Constitution.

c) Any other relief or direction that the Hon’ble Court may pass.
13. The Union of India has filed a reply, without admitting or denying the use of Kimetsu software,
stating as follows:

a) The present PIL is not maintainable as the petitioners do not have any locus standi in the matter
as it pertains to National Security.

b) There has been no unauthorized surveillance on any person within or outside India and whatever
has been done, is within the contours of the Indian Telegraph Act, Official Secrets Act and
Information Technology Act or any other law for the time being in force.

c) The fundamental right under Article 21 is subject to the procedure established by law and under
Article 19(1)(a) is subject to reasonable restrictions under Article 19(2) of the Constitution which
amongst others also includes restrictions on the ground of security of the State.

14. A Miscellaneous Application has also been filed by the petitioner, in this case, seeking the relief
that the respondent is directed to furnish an affidavit stating the use/non-use of the Kimetsu
Software. The respondent has filed a reply stating therein that such an affidavit cannot be filed in
order to maintain confidentiality as the matter pertains to National Security.

15. Another Miscellaneous Application was filed on behalf of ‘Desh ki Mitti’ NGO, seeking the relief
of intervention and impleading of the NGO in the present matter, while stating that the present
petition is nothing but an attempt to overthrow the present government. The NGO further stated
that the NPA government is instilling a feeling of Nationalism in the citizens which were long lost and
is working tirelessly towards national security. They have therefore prayed that 'Nationalism' be
declared as a part of the Basic Structure of the Constitution of India.

16. The NGO has further stated that this country has entered its 75th year of Independence. They
have thus prayed that the Fundamental Duties be made enforceable as the terms Patriotism and
Nationalism have lost all meaning.

17. The petitioner has filed a reply in this Miscellaneous Application stating that the application
should be dismissed being devoid of any merits and being politically motivated. They have further
stated that the head of the NGO, i.e., Mr. Malcolm David, has been a former Union Minister of
Culture and Tourism during 2014-2019. It has further been stated that the government is violating
the privacy of its citizens under the garb of nationalism and national security. The Petitioner has
opposed the prayer of the applicant that Nationalism should not be declared a part of the basic
structure of the Indian Constitution. The Petitioner has further opposed the prayer of the applicant
that fundamental duties should be made enforceable on several grounds.

18. The respondent has not opposed the Intervention Application and has supported the relief
sought by the party.

19. The Hon’ble Supreme Court allowed the Intervention Application and has impleaded Desh Ki
Mitti (NGO) as a party in the present case. It has been further directed by the Hon’ble Court that the
Solicitor General shall advance arguments in regard to the relief sought by the NGO on behalf of
both the Government and the NGO.
20. Some of the State Governments have alleged discontent and disagreement with the modus
operandi of the current Central Government under the rule of NDA. One of the States, the State of
Rajasthan has further alleged that the Central Government uses its investigating agencies to target
the ministers of the State of Rajasthan. In lieu of the recent skirmishes and alleged use of the
software, the State of Rajasthan appointed a Commission of Inquiry (Kimetsu Inquiry Commission)
with a former Judge of the Hon’ble Supreme Court and a former Chief Justice of the State High Court
to look into the alleged invasion of privacy by the Union of India of several individuals, journalists,
activists, business persons, police officials, politicians, both in the government and the opposition.
The mandate of the Commission is as follows:

“Enquire into and report on inter alia the reported Interception and the possession, storage and use
of such information collected through such Interception, in the hands of State actors and non-State
actors.”

21. While appointing the commission, the State Government has stated that “the State Government
could not sit as a silent spectator particularly when the Union Government was not only non-
committal and evasive on the subject but had also at the very threshold dismissed the allegations
under the rubric of sensationalism.” It further commented that the reports that are part of a global
investigation by 17 media organizations drawing on data accessed by Paris-based Prohibited Stories
are a “definite matter of public importance”.

22. Pursuant to this, the Union Government moved the Hon’ble Supreme Court against the State of
Rajasthan thereby seeking that the State has no right to appoint a Commission of Inquiry when the
matter is one of national Importance involving two or more states amongst other grounds.

23. The Hon’ble Supreme Court has graciously agreed to allow this petition and hear it with the
pending PIL and has referred the matter to a larger bench of 11 judges as the matter involves
questions of Constitutional importance.

Note:

A. Participants are at liberty to take additional arguments/ grounds in support of the issues raised
herein.

B. Any reference to India in news reports/incident reports / other reports in so much as it pertains to
Kimetsu and/or any other spyware software shall be construed as a reference to India.

C. The events and the characters depicted in the moot court problem are purely a work of fiction and
hypothetical. Any similarity to actual persons living or dead is purely coincidental.

D. This Moot Problem is purely intended for the Moot Court Competition and educational purposes
amongst law students.