Written Submissions

{ISSUE 1} WHETHER DR. SIMPARA IS ENTITLED TO ENJOY THE RIGHT TO

PRIVACY.

1. Privacy per se is an undisputed right of an individual comprehensively bonded with his/her

life. Privacy becomes matter of controversy when it is mishandled/ intruded illegitimately
by erroneous individuals. Breach of privacy by oneself is less effective whereas deployed by
third party is heinous. The disclosure of private information by third party brings
disgrace/shame to victims although they are ignorant of.

2. Right to privacy is an integral part of life. This is a cherished constitutional value, and it is
important that human beings be allowed domains of freedom that are free of public scrutiny
unless they act in an unlawful manner1 (which cannot be proven or claimed in the case at
hand).

3. Hon’ble Justice Dr D Y Chandrachud held that “Privacy is a constitutionally protected right

which emerges primarily from the guarantee of life and personal liberty in Article 21 of the
Constitution. Elements of privacy also arise in varying contexts from the other facets of
freedom and dignity recognized and guaranteed by the fundamental rights contained in Part
III.”2

4. Article21 provides that: “No person shall be deprived of his life or personal liberty except
according to procedure established by law.”3

5. Privacy is a fundamental human right recognized in the UN Declaration of Human Rights,

the International Covenant on Civil and Political Rights and in many other international and
regional treaties. Privacy underpins human dignity and other key values such as freedom of
association and freedom of speech. Section 2 (d) of the Protection of Human Rights Act,
1993 says “human rights means the rights relating to life, liberty, equality and dignity of the

1
Ram jethmalani v. Union of india, (2011) 8 scc 1: jt 2011 (7) sc 104: (2011) 6 scale 691
2
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. WRIT PETITION (CIVIL) NO 494 OF
2012
3
constitution of Silvia,1950
 individual guaranteed by the constitution, embodied in the International Conventions and
enforceable by the Courts in India.”4

6. In the case of R. K. Anand v. Registrar Delhi High Court 5, it was held that: it is pertinent to
infer from the above discussions that there are some provisions under Indian law to accept
the concept of “STING OPERATION” but some laws are to be made regarding the
regulation of the right of media not to telecast any material under the sting operation which
affects the right to privacy and any other fundamental rights guaranteed under constitution
of India. Sting operations by media must be undertaken in a responsible manner. Hence to
be precise it can be winded up with a suggestion that sting operations should be permitted
but they should be produced before the court rather than telecasting it in the TV channel.

7. Relating to the case at hand, silvia express conducted a sting operation on Dr. Simpara and
published the same as ‘unholy connection of intellectuals with unholy elements’ which was
not produced before the court, which directly infringes the privacy of Dr. Simpara.
Moreover through this operation they found no substantiate evidence establishing
connection between the suspects of the attack who had visited him in 2019. They could only
find some papers in coded terms and map of the cities, unconnected with medical practice
which further proves the lack of evidence in the report they construed and this is no concrete
proof for the heinous allegations leveled in the report at Dr Simpara.

8. In State of Bihar v. Lal Krishna Advani6, the Apex Court made it clear that one was entitled
to have and preserve one’s reputation and one also had a right to protect it.
As per the present case Dr. Simpara was not only trolled, abused but also threatened on
social media by spreading and putting up false information intentionally against him thereby
distorting his reputation amounting to infringement of his privacy.

9. In R. Rajagopal alias RR Gopal v State of Tamil Nadu 7, the court held that it is the right to
be let alone and a citizen has the right to safeguard the privacy of his own, his family,
marriage, procreation, motherhood, child bearing and education among other matters. No
4
Section 2(d) The Protection of Human Rights Act, 1993
5
Criminal Appeal no. 1393 of 2008
6
Appeal (civil) 1792 of 1997

7
AIR 1995 SC 264: 1994 AIR SCW 4420:JT 1994 (6) SC 514
 one can publish anything concerning the above matters without his consent whether truthful
or otherwise and whether laudatory or critical.

10. In the case at hand there was gross violation of privacy of Dr. Simpara by Mr Petro , the
Editor in chief of the ‘Media House Pvt. Ltd’.Not only the report was published by them
based on speculation but their report with unsupported data also instigated mass hatred
against the petitioner, leading to libel, taking away his right to live with dignity in the
society and thereby violating the right conferred to him under Article 21 of the Constitution.

11. Every act which offends or impairs human dignity tantamount to deprivation pro tanto of
his right to live and the state action must be in accordance with reasonable, fair and just
procedure established by law which stands the test of other fundamental rights 8. The breach
of rights of Dr. Simpara by the State was also not justified, who acted upon the false rumors
and without any concrete proof of doubt violated the right to privacy of Dr Simpara by
wiretapping his phone.

12. In People’s Union For Civil Liberties (PUCL) v. UOI 9, the court observed:

“The right to privacy by itself has not been identified under the constitution. As a concept it
may be too broad and moralistic to define it judicially. Whether right to privacy can be
claimed or has been infringed in a given case would depend on the facts of the given case.
But the right to hold a telephone conversation in the privacy of one’s home/office without
interference can certainly be claimed as “right to privacy”. Telephone conversation is a
part of modern man’s life and an important facet of his private life. Telephone tapping
would this, infract Art. 21 unless it is permitted under the procedure established by law”.

So the right which is violated by telephone tapping is itself the right to privacy of an
individual. Similarly, just on the basis of the reports in the news channel the Police and
FIBS started keeping track of the moments of Dr. Sampara round the clock as well as tapped
his mobile conversations without being declared as an accused by the judicial system that is
the procedure established by the law which clearly takes away his right to privacy.

8
In re: Ramlila Maidan Incident, (2012) 5 SCC 1: AIR 2012 SC (Cri) 1127, per Dr. B.S. Chauhan and Swatanter
Kumar JJ.
9
 AIR 1997 SC 568, JT 1997 (1) SC 288
 13. There are three concepts which are fundamental in understanding the reach of this most
basic of human rights. The first is discussion, the second is advocacy, and the third is
incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is
at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level
of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing
the speech or expression that leads inexorably to or tends to cause public disorder or tends to
cause or tends to affect the sovereignty & integrity of India, the security of the State,
friendly relations with foreign States, etc.

Relating to the case at hand, Dr. Simpara was also terminated from his services at global
medical institute of Silvia where he was the head and dean of the neuropsychology
department. This was affected by the incitement by the channel truth only who instigated
mass hatred and violent clashes.
14. In Sanjoy Narayan v High Court of Allahabad 10, the two-judge bench dealt with a
contempt petition in respect of publication of an incorrect report in a newspaper which
tarnished the image of the Chief Justice of a High Court. The Court made the following
observation:

“The unbridled power of the media can become dangerous if check and balance is not
inherent in it. The role of the media is to provide to the readers and public in general with
information and views tested and found as true and correct. This power must be carefully
regulated and must reconcile with a person’s fundamental right to privacy.”

In the above case, privacy of Chief Justice of High Court was infringed likewise in this case
Dr. Simpara’s privacy is also infringed by the media and the State, and in Genia every
person is treated equally, as the state shall not deny to any person equality before law and
equal protection of law within the territory of Genia whether he is a public servant or a
doctor.

{ISSUE 2}WHETHER THE GUARANTEE UNDER ARTICLE 19(1)(A) OF THE

CONSTITUTION EXTENDS TO ARTIFICIAL PERSONS.

10
Criminal Appeal no. 1683/2011
 1. Article 19 (1) (a) states all citizens shall have the right to “freedom of speech and
expression”. The fundamental rights under Article 19 are available only to citizens of
India, who are natural persons and not legal persons, like companies or corporations. A
company though a legal person, is not a citizen and cannot claim the fundamental rights
granted to citizens by the Constitution of Silvia. A corporate entity being a juristic person
is not entitled to the rights enshrined under Article 19. A company, a foreigner or an alien
cannot claim a right under Article 19 as they are not citizens.

2. In State Trading Corporation of India Ltd v CTO 11, the corporation moved the Supreme
Court under Article 32 to quash sales tax proceedings against it by the State on the
ground that the imposition of the sales tax was illegal and infringed its Fundamental
Right guaranteed by Article 19(1)(g). Therefore, a question arose whether the State
Trading Corporation was a ‘citizen’ as the freedom under Article 19(1) (g), viz., the right
to carry on any trade or business, is available to a citizen only. The Supreme Court held
that “neither the Constitution of India nor the Citizenship Act, either confer the right of
citizenship on, or recognize as citizen, any person other than a natural person”. This is
the effect of section 2(f) of the Citizenship Act, 1955 which expressly excludes a
company, association or body or individuals, whether incorporated or not, from the
concept of a person under the Act, and so from the concept of the Indian citizenship.
Articles 5 to 9 of the Indian Constitution deal with citizenship in certain circumstances
only, but the tenor of these articles is such that they cannot apply to a juristic person.
Thus, under the Constitution, or the Citizenship Act, only a natural person can be a
citizen. Drawing a distinction between citizenship and nationality, the court stated that
while all citizens are national of the State, the reverse is not always true because
nationality is a concept of international law while citizenship is a concept of municipal
law. Therefore, while a ‘company’ might have nationality, which ordinarily is determined
by the place of its incorporation, it does not have citizenship. The Supreme Court refused
to hold the State Trading Corporation a citizen and rejected its petition12.

11
19 AIR 1963 SC 1811: (1964) 4 SCR 99: (1963) Comp Cas ,1057.
12
M.P.Jain, “Indian Constitutional Law” 6th Ed, (2010), LexisNexis Butterworths Wadhwa: Nagpur,p 869
 3. In Tata Engineering v. State of Bihar 13, a public limited company having a majority of
Indian citizens as shareholders were involved. In the Tata case, two shareholders along
with the company made the petition. The shareholders argued that the corporate veil of
the Tata Company should be pierced and its substantial character determined without
reference to the technical doctrine of the corporation’s separate entity. The Supreme
Court in a majority decision refused to accept this argument saying that piercing the
corporate veil has been done only in a few cases and this is an exception rather than a
rule. The Court further held that a company has a legal entity of its own which is entirely
separate from that its shareholders and to accept the plea of the shareholders would
amount to enforcing indirectly what the company could not claim directly.

4. Thus even individual shareholders cannot claim a Fundamental Right so as to benefit the
company. These cases in effect, withdraw the safeguard of Article 19 from the corporate
sector. Even if a corporation is registered in India, has Indian capital and all of its
shareholders and directors are Indians, it can claim no right under Article 19. As long as
individuals carry on business, they enjoy the freedoms under Article 19(1) (g) but they
lose this protection as soon as they are incorporated. In course of time, the attitude of the
Judiciary has changed in regards to this point. The rigors of the above pronouncements
have been diluted by resorting to the strategy of joining a natural person along with a
company in the writ petition challenging violation of Article 19(1) (g).

5. In Rustom Cavasjee Cooper v. Union of India 14 a Central Law acquiring banks was
challenged in writ petition under Article 32 by the concerned banking companies, a
shareholder, a director and a holder of a current account in a bank. The argument was that
the law in question infringed Articles 19(1)(g) and 31 (2). The Supreme Court held the
petitions maintainable on the ground that the rights of the companies as well as the
shareholders were involved. The court held that an action of the State “may impair the
rights of the company, alone and not that of its shareholders, it may impair the rights of
the shareholders and not of the company, it may impair the rights of the company as well

13
1 AIR 1965 SC 40: (1964)6 SCR 885.
14
AIR (1970)1 SCC 248: AIR 1970 SC 564.
 as the shareholders. Jurisdiction of the court to grant a relief cannot be denied, when by
the State action the rights of the individual shareholders are impaired, if that action
impairs the right of the company as well.”

6. In order to relieve any apprehension on the part of companies, HIDYATULLAH J,

observed in the State Trading Corporation case, “There is no cause for anxiety about
corporations in general and companies in which the States hold all the majority of the
shares in particular. They are amply protected under our Constitution. There can be no
discrimination, no taxation without authority of law, no curbs involving freedom of trade,
commerce or intercourse, and no compulsory acquisition of property. There is sufficient
guarantee there and if more is needed then any member (if citizen) is free to invoke
Article 19(1) (f) and (g) and there is no doubt that the corporation in most cases will
share the benefit. We need not be apprehensive that corporations are at the mercy of
State Governments”

7. A company is not a citizen and therefore, cannot claim the fundamental rights
enumerated under Article 19. Since many newspapers are published by companies, and a
company is not entitled to the fundamental right under Article 19, being not a citizen, we
recommend that all Indian companies, engaged in the business of communication and
whose share- holders are citizens should be deemed to be 'citizen' for the purpose of the
relevant clauses of article 19.15

8. Defamation law acts as a counter-balance to the constitutional right of free speech

(guaranteed by Article 19(1)(a) of the Constitution of India). This Article has been
expansively read, through judicial interpretations, to include the "freedom of the press".
But this freedom is not unfettered, as Article 19(2) allows the state to enact laws that
impose "reasonable restrictions" on such freedoms. The restrictions are wide-ranging,
including circumstances, among other things, in national interest; for maintaining public
order; or in relation to contempt of court, or defamation.The freedom of the press is not
absolute, just as the freedom of expression is not. Public Interest has to be safeguard by
article 19(2) which lays down reasonable limitations to the freedom of expression in
matters affecting:
15
LAW COMMISSION OF INDIA, HUNDRED - FIRST REPORT
a) Sovereignty and integrity of the State

b) Security of the State

c) Friendly relations with foreign countries

d) Public order

e) Decency and morality

f) Contempt of court

g) Defamation

h) Incitement to an offence

9. The clause brought reasonable restrictions on the lines of security of state, public order,
decency or morality or in relation to contempt of court, defamation or incitement to an
offence.

10. With the emergence of media being one of the most reliable public’s sources of
information and awareness, privacy of individuals, are often harassed and infringed.
Media tends to write stories from their own biases, heartlessly intruding the private lives
of citizen who happens to stumble in to the public forum. Allan Westin, author of the
seminal work titled as ‘Privacy and Freedom,’ defined privacy as the, desire of people to
choose freely under what circumstances and to what extent they will expose themselves,
and their attitudes and their behavior to others.

11. While Media should prioritize individual’s right to privacy which is widely
recommended as ‘ethical journalism’, but there are times when the individual’s right to
privacy is brutally eroded by the media which should be strongly resisted. As a result
there is a need to protect Privacy as a fundamental right in the Constitution and also to
give a higher status to it in reference to Press.

12. The right to reputation of a living person under Article 21 cannot be sacrificed or
crucified at the altar of another's right to freedom of speech. Both have to be harmonized,
as no amount of damages can redeem the adverse impact on a person's reputation. Merely
 because previous similar publications exist does not permit repetition of prima facie
defamatory insinuations.

{ISSUE 3} WHETHER SECTION 69 OF THE INFORMATION TECHNOLOGY ACT IS

CONSTITUTIONAL.

1. That the petitioner seeks to challenge the Constitutional validity of Section 69 of

Information and Technology Act, 2000 which gives “Powers to issue directions for
interception or monitoring or decryption of any information through any computer
resource” which permits the central Government or a State Government or any of its
officer specially authorized by the Central Government or the State Government to
 intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any
information transmitted received or stored through any computer resource.

2. Section 69 of the Information Technology Act is violative of Article 19(1)(a) and Article
21 of the Constitution. The former grants right to freedom of speech and expression
whereas the latter is about “right to privacy” that is, when a person is sending or
receiving electronic communication through any computer resource, he is exercising his
right to freedom of speech and expression, enumerated under Article 19(1)(a) of the
Constitution. Electronic communication tapping, unless it comes within the grounds of
reasonable restrictions imposed by the state relating to defamation, contempt of court,
decency or morality, morality of the state, friendly relations with foreign states,
incitement to an offence, public order, maintenance of the sovereignty and integrity of
India under Article 19(2), would infract Article 19(1)(a) of the Constitution.

3. That the Section 69 of Information and Technology Act, 2000 needs to be tested against
the constitutional principles as prima-facie it seems to be in violation of Article 14 as
being arbitrary for the reason being that it gives sweeping power to the executive and is
irrational as there is no nexus as to justify having power of such wide magnitude which
would result in impinging upon constitutional protected rights of person with impunity.

4. Per contra, it is humbly submitted that there is enough possibility of this law being
misused by the executives as in the absence of any safeguard the fundamental rights of
the citizen are at risk of being impinged by the executives and hence the law needs to be
tested as to check that whether it is in tune with the constitutional framework.

5. Further intending, the right to send or receive electronic communications’ in the privacy
of one’s home or office without interference can certainly be claimed as a “right to
privacy”, which a part of the right to “life and personal liberty”. Any attempt to intercept
electronic communication would infract Article 21 of the Constitution unless it is
permitted under the procedure established by law.

6. Moreover, the sweeping power to Intercept, monitor, decrypt and data that is being
generated, transmitted to stored in any device by the executives amounts to violation of
right to privacy as in today’s time electronic devices such as computer, mobile phones
 can be said to be extension of one’s personality and hence ought to protected under
Article 21 of the constitution from any unwanted intrusion and only on reasonable
grounds.

7. In the present case at hand, the Police and FIBS started keeping a track of the movements
of Dr. Simpara round the clock as well as tapped his mobile conversations. The FIBS
relied on Section 69 of the IT Act for the same. As the case is silent on the fact that
whether government issued a direction for interception and monitoring or decryption of
any information for the interest of sovereignty and integrity of Silvia and only on the base
of the reports produced by the news channel that is the mere assumption made without
any piece of evidence or judicial conclusion on the same, right to privacy under Article
21 and right to freedom of speech and expression in private under Article 19(1)(a) was
hindered without any authorisation by the government.(indict anyone)

8. In People’s Union For Civil Liberties v. Union Of India16, it was held that “the right to
hold a telephone conversation in the privacy of one's home or office without interference
can certainly be claimed as “right to privacy”. Conversations on the telephone are often
of an intimate and confidential character. Telephone conversation is a part of modern
man's life. Telephone conversation is an important facet of a man's private life. Right to
privacy would certainly include telephone conversation in the privacy of one's home or
office. Telephone tapping would, thus, infract Article 21 of the Constitution of India
unless it is permitted under the procedure established by law”.

9. The section is also a violation of the right to privacy which has been held to be an
intrinsic part of Article 21 of the Constitution of India by the apex court in Justice K S
Puttaswamy and Anr v Union of India 17. State surveillance by itself constitutes a
restriction on the fundamental right to free speech and expression guaranteed under
Article 19(1)(a).

10. A citizen cannot exercise her right to free speech with the knowledge that the State and
its agents are monitoring, maintaining records and logs of the same and using them to
profile her. The question of whether mere surveillance constitutes a restriction on the
16
AIR 1997 SC 568, JT 1997 (1) SC 288
17
WRIT PETITION (CIVIL) NO 494 OF 2012
 freedoms guaranteed by Article 19 was examined by this Hon’ble Court in Kharak
Singh v. State of U.P18, Justice Subba Rao’s opinion, extensively deals with this question
and concludes that the freedom under Article 19 and the right under Article 19(1)(a) in
particular cannot be separated from its psychological content. The right to free speech
cannot be exercised under the constant surveillance of agents of the State, and
surveillance would reduce the entire country to a jail for the citizen under
surveillance.Right to speech under danger, in addition to privacy, if we communicate
anything on social media it looks like if surveillance is done we are constantly watched
which creates dissent. Citizen of India will hesitate while saying anything against the
government.

11. In the case of Papnasm Labour Union v. Madura Coats limited 19, the Supreme Court
has stated that the following principles should be kept in mind while considering the
constitutionality of a statutory provision imposing restriction on fundamental right
guaranteed by article 19(1) when challenged on the ground of unreasonableness of the
restriction imposed by it:

i. Restriction must not be arbitrary

ii. Must be having direct and proximate nexus or a reasonable connection between the
restriction imposed and the object sought to be achieved.

Relating to the case at hand, the police and FIBS was not authorized by the central government
or state government to keep surveillance on Dr. Simpara so this act is arbitrary, moreover during
the investigation FIBS found no sufficient evidence to indict anyone, therefore there is no
reasonable connection between the restriction imposed and the object sought to be achieved.

12. Fundamental right under Article 19(1)(d) is also infringed. Mere movement unobstructed
by physical restrictions cannot in itself be the object of a person's travel. A person travels
ordinarily in quest of some objective. He goes to a place to enjoy, to do business, to meet
friends, to have secret and intimate consultations with others and to do many other such
things. If a man is shadowed, his movements are obviously constricted. The freedom of

18
1963 AIR 1295
19
 1995 AIR 2200
 movement in clause (d) therefore must be a movement in a free country i.e. in a country
where he can do whatever he likes, speak to whomsoever he wants, meet people of his
own choice without any apprehension, subject of course to the law of social control. The
petitioner under the shadow of surveillance is certainly deprived of this freedom.

13. This Hon’ble Court observed: Privacy is a constitutionally protected right which emerges
primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.
Elements of privacy also arise in varying contexts from the other facets of freedom and
dignity recognised and guaranteed by the fundamental rights contained in Part III.”

14. What seems to be essential to privacy is the power to seclude oneself and keep others
from intruding it in any way. These intrusions may be physical or visual, and may take
any of several forms including peeping over one's shoulder to eavesdropping directly or
through instruments, devices or technological aids.

15. In other words, every citizen is entitled to be in a state of repose and to work without
being disturbed, or otherwise observed or spied upon.

16. Hon’ble Justice Chelameshwar20 in his concurring opinion was more precise when it
came to recognizing liberty, and in extension privacy, as taking within its sweep the
freedoms mentioned under Article 19(1). He held as follows:

17. The expression “liberty” is capable of taking within its sweep not only the right to move
freely, guaranteed under Article 19(1)(d); but also each one of the other freedoms
mentioned under Article 19(1). Personal liberty takes within its sweep not only the right
not to be subjected to physical restraints, but also the freedom of thought, belief, emotion
and sensation and a variety of other freedoms. The most basic understanding of the
expression “liberty” is the freedom of an individual to do what he pleases.

18. In the case The Superintendent, Central Prison, Fatehgarh vs. Dr. Ram Manohar
Lohia21, the restriction made "in the interests of public order" must also have reasonable
relation to the object to be achieved, i.e., the public order. If the restriction has no
proximate relationship to the achievement of public order, it cannot be said that the
20
Puttaswamy judgment
21
AIR 1960 SC 633
restriction is a reasonable restriction within the meaning of the said clause. The limitation
imposed in the interests of public order to be a reasonable restriction, should be one
which has a proximate connection or nexus with public order. Relating to the case at hand
violent conflict broke out, after the news was broadcasted at national news channels
along with the online survey between the two social groups thereby effecting the public
order of the nation.