IN THE SUPREME COURT OF INDIA

Writ Petition (C) No. _________ of 2021

(Under Article 32 of the Constitution of India)

IN THE MATTER OF:

Mr. Sahu Pal………………………………………...Petitioner

VERSUS

State of Dharmasthan……………………………..Respondent

MEMORANDUM FOR PETITIONER

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INDEX

1. LIST OF ABBREVIATIONS
2. INDEX OF AUTHORITIES
3. STATEMENT OF JURISDICTION
4. STATEMENT OF FACTS
5. ISSUES PRESENTED
6. SUMMARY OF ARGUMENTS
7. ARGUMENTS ADVANCED
8. PRAYER

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 LIST OF ABBREVIATIONS

 CDT - Centre for Digital Technology

 Nososis - Spyware developed by CDT
 AG - Advocate General
 CBI - Central Bureau of Investigation
 IT - Information Technology
 SC - Supreme Court of India
 HC - High Court
 Writ Petition - Petition filed under Article 226 (for HC) and Article 32
(for SC)
 State of Dharmasthan - The government of Dharmasthan
 Indian Evidence Act - Act that governs rules of evidence in Indian courts
 Art. 21 - Article 21 of the Constitution (Right to Life and Personal
Liberty)
 Art. 226 - Article 226 of the Constitution (High Court jurisdiction for
writs)
 Art. 32 - Article 32 of the Constitution (Supreme Court jurisdiction for
writs)

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 INDEX OF AUTHORITIES

CASE LAWS

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

2. Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors. (2018) 1 SCC 559

3. People's Union for Civil Liberties v. Union of India (1997) 1 SCC 301

4. Navtej Singh Johar v. Union of India (2018) 10 SCC 1

5. State of Maharashtra v. Bharat Shanti Lal Shah (2008) 13 SCC 5

6. R.K. Garg v. Union of India (1981) 4 SCC 675

7. Indian Express Newspapers v. Union of India (1985) 1 SCC 641

8. Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 1

STATUTES AND LEGISLATIONS

1. Constitution of India, 1950

o Article 21

o Article 32

o Article 226

2. Indian Evidence Act, 1872

o Section 123

o Section 124

3. Delhi Special Police Establishment Act, 1946

OTHER AUTHORITIES

1. Privacy and Surveillance: A National Security Perspective – Journal of International

Law, Vol. 35, 2019.

2. Right to Privacy and Data Protection – The Indian Law Review, 2020.

3. The Use of Technology in Law Enforcement – 2021, National Security Journal.

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 STATEMENT OF JURISDICTION

The present writ petition is filed before this Hon'ble Court under Article 32 of the Constitution
of India, which confers upon this Court the power to issue directions, orders, or writs, including
writs of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the
enforcement of fundamental rights guaranteed under Part III of the Constitution of India. The
Petitioner seeks relief for the violation of his fundamental right to privacy as guaranteed under
Article 21 of the Constitution, which encompasses the right to life and personal liberty,
including the right to live with dignity and the right to privacy.

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 STATEMENT OF FACTS

i. The Petitioner, Mr. Sahu Pal, is the Editor of Dharmasthan Times, a leading
newspaper in the State of Dharmasthan.

ii. On 20-07-2021, it was reported in the media that the Centre for Digital Technology
(CDT), a government-funded institution, developed a sophisticated spyware named
Nososis in collaboration with an IT firm called ‘Shamgular’. The spyware was
designed to monitor and access mobile phones without the consent of the user,
gathering sensitive personal data such as contacts, messages, browser history, and
even enabling surveillance through the phone’s camera and microphone.

iii. Further media reports revealed that Nososis was a modified version of the Pegasus
spyware, which used zero-click vulnerabilities to infect a target's device, requiring
no interaction from the user. The spyware was allegedly used for surveillance
purposes by government authorities, particularly to track individuals of interest,
including journalists.

iv. On 29-07-2021, Dharmasthan Reporter reported that forensic analysis confirmed

the presence of Nososis spyware on the devices of over 42 journalists, including
Mr. Sahu Pal, between 2018 and 2019.

v. The Petitioner’s phone was found to have been compromised by Nososis spyware
from February 2020 to January 2021. Forensic tests showed clear signs of spyware
activity on his phone, indicating unlawful surveillance.

vi. The Petitioner filed a writ petition before the Dharmasthan High Court on 10-08-
2021, alleging that his right to privacy had been violated by the government through

6
 the use of Nososis. He sought a CBI investigation, production of documents related
to the spyware, and compensation for the violation of his privacy.

vii. On 06-09-2021, the State Government of Dharmasthan filed an affidavit stating it

was open to an expert committee inquiry into the issue but refrained from
commenting on the use of Nososis or the violation of privacy.

viii. On 10-09-2021, the State Government invoked Sections 123 and 124 of the Indian
Evidence Act, claiming the documents related to Nososis were confidential and
should not be disclosed due to national security concerns.

ix. Multiple writ petitions challenging the unlawful surveillance and privacy violations,
based on the same facts, were filed in various High Courts across India. In light of
the national importance of the matter, this Hon'ble Court took suo-motu cognizance
and transferred the matters to the Supreme Court for a combined hearing.

x. The Petitioner seeks relief from this Hon'ble Court under Article 32 of the
Constitution of India for the violation of his fundamental right to privacy, and for
accountability regarding the unlawful use of Nososis spyware by the government.

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 ISSUES PRESENTED

i.Whether the use of spyware “Nososis” by the Government of Dharmasthan

and/or its agencies constitutes an unlawful violation of the right to privacy under
Article 21 of the Constitution of India ?

ii. Whether the use of the spyware “Nososis” by government authorities is

justified under any of the exceptions provided for in the Constitution, including
national security considerations ?

iii. Whether the Petitioner is entitled to compensation for the violation of his
fundamental rights, specifically his right to privacy ?

iv. Whether Sections 123 and 124 of the Indian Evidence Act, which protect
certain government documents, should be invoked in the present case to prevent
the disclosure of information concerning the spyware ?

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 SUMMARY OF ARGUMENTS

i. Whether the use of spyware “Nososis” by the Government of Dharmasthan and/or

its agencies, particularly in relation to the Petitioner, constitutes an unlawful
violation of the right to privacy under Article 21 of the Constitution of India ?

The Petitioner argues that the use of the spyware Nososis by the Government of
Dharmasthan and/or its agencies constitutes an unlawful violation of his right to
privacy. The right to privacy is an integral part of the fundamental right to life and
personal liberty under Article 21 of the Constitution of India. The surveillance
conducted through Nososis, which intercepted and collected the Petitioner’s
personal data, such as contacts, messages, location, and microphone and camera
activity, is a clear violation of his privacy. This is reinforced by the landmark
judgment in K.S. Puttaswamy v. Union of India (2017), where the Supreme Court
recognized privacy as a fundamental right. The unauthorized surveillance of the
Petitioner infringes upon this right, and no law has authorized such an intrusive
measure without judicial oversight.

ii. Whether the use of the spyware “Nososis” by government authorities is justified
under any of the exceptions provided for in the Constitution, including national
security considerations?

The surveillance conducted by the government must be proportional, necessary, and

in accordance with the law, as held in Puttaswamy v. Union of India. National
security concerns cannot be used as a blanket justification for infringement of
privacy, especially when the surveillance appears to target individuals, including
journalists, for political or personal reasons. Moreover, there is no legal framework
that explicitly permits the use of spyware for such surveillance without proper
safeguards and oversight.

iii. Whether the Petitioner is entitled to compensation for the violation of his
fundamental rights, specifically his right to privacy?

9
 The Petitioner asserts that he is entitled to compensation for the violation of his
fundamental right to privacy under Article 21. The Supreme Court in Puttaswamy
and Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) has recognized that
where fundamental rights are violated, the victim is entitled to an effective remedy,
which may include monetary compensation. The Petitioner’s phone was illegally
hacked, and his private data was unlawfully intercepted. This constitutes an
infringement of his dignity and liberty, for which he must be compensated.
Additionally, the absence of any legal basis for such surveillance aggravates the
violation, making it appropriate for this Court to award damages.
iv. Whether Sections 123 and 124 of the Indian Evidence Act, which protect certain
government documents, should be invoked in the present case to prevent the
disclosure of information concerning the spyware?

The Petitioner argues that the provisions of Sections 123 and 124 of the Indian
Evidence Act should not be invoked to prevent the disclosure of information
regarding the spyware Nososis. These provisions are meant to protect sensitive
information related to national security and the state’s interests; however, in this
case, there is no clear indication that the surveillance through Nososis falls under
the ambit of national security interests. The use of spyware against journalists and
political figures, if proven, is more about political surveillance rather than any
genuine threat to national security. The principle of transparency and the public's
right to know should override the government’s claim of privilege when such grave
violations of constitutional rights are at stake. In R. Rajagopal v. State of Tamil
Nadu (1994), the Supreme Court underscored the importance of public
accountability, especially when it involves the violation of fundamental rights.

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 ARGUMENTS ADVANCED

i.Whether the use of spyware “Nososis” by the Government of Dharmasthan and/or its
agencies constitutes an unlawful violation of the right to privacy under Article 21 of the
Constitution of India ?

1. Article 21 of the Constitution of India guarantees that "no person shall be deprived of
his life or personal liberty except according to procedure established by law." This
provision has been widely interpreted to encompass not only the protection of life and
personal liberty in a narrow sense but also a broader set of rights essential to the dignity
and freedom of an individual. Over time, the Supreme Court has developed a robust
interpretation of the right to life and personal liberty under Article 21, extending it to
include a variety of rights that are essential to a person’s well-being and dignity.
2. The landmark decision in K.S. Puttaswamy v. Union of India (2017)1 revolutionized
the understanding of privacy in Indian jurisprudence by declaring that the right to
privacy is a fundamental right under Article 21 of the Constitution. In this case, the
Supreme Court held that privacy is an essential facet of human dignity and autonomy,
making it a core component of the right to life and liberty. The Court elaborated that
privacy must be protected against arbitrary state actions, particularly in cases where
state surveillance infringes upon an individual’s personal sphere of life.
3. The Petitioner argues that the surveillance carried out through Nososis spyware by the
Government of Dharmasthan is a direct violation of his right to privacy under Article
21. Nososis is a sophisticated spyware that infiltrates an individual’s mobile phone
without consent and intercepts sensitive personal data such as contacts, messages,
browsing history, location data, and even activates the phone’s camera and microphone.
This type of surveillance amounts to an unjustified and unauthorized invasion of the
Petitioner’s privacy, as it exposes his personal life to government monitoring without
any legal basis or oversight.
4. The Puttaswamy case (2017) provides the foundation for asserting the
unconstitutionality of such state surveillance. The judgment not only reaffirmed the
right to privacy as a fundamental right but also laid down the principles of
proportionality and necessity for state actions that involve the infringement of privacy.

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

11
 According to these principles, any action by the state that seeks to intrude upon an
individual’s privacy must be:

1. Authorized by law.

2. Pursued for a legitimate aim.

3. Proportionate to the need for interference.

4. Necessary in a democratic society.

5. In the case at hand, the use of spyware Nososis does not meet these criteria. The
Petitioner has not consented to this surveillance, and there is no legislation or statutory
framework authorizing such an invasive and indiscriminate method of surveillance. The
spyware’s capabilities, including tracking the Petitioner’s communications, locations,
and activities through the phone’s microphone and camera, represent an extreme
intrusion into his private life, far beyond what is necessary for the legitimate purposes
of law enforcement or national security.
6. The Supreme Court, in R. Rajagopal v. State of Tamil Nadu (1994),2 also emphasized
the importance of the right to privacy in the context of free speech and expression. It
observed that the right to privacy is a vital aspect of personal liberty, and its violation
can have detrimental effects on individual autonomy, especially when it comes to
matters of communication and personal life. In this case, the Petitioner’s right to privacy
is being violated by the unauthorized surveillance of his communications, which include
phone calls, messages, and potentially sensitive information. These intrusions hinder the
Petitioner’s ability to freely express himself and engage in activities without fear of
government surveillance.
7. The Petitioner further argues that the use of spyware to monitor his personal data without
his knowledge or consent is particularly troubling because it undermines his autonomy
and freedom. The surveillance does not just expose personal data but also creates a
chilling effect, whereby the Petitioner may refrain from expressing his opinions, sharing
information, or associating with individuals due to fear of state monitoring. This
undermines his freedom of speech and expression, which are vital aspects of individual
autonomy.

2
R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632:

12
 8. The Court, in People's Union for Civil Liberties (PUCL) v. Union of India (1997),
3
addressed the issue of privacy in the context of telephone tapping by the state. In that
case, the Court ruled that telephone tapping by the government without statutory
authorization violated the fundamental right to privacy under Article 21. The Court
emphasized that surveillance measures must be consistent with due process and
safeguards to protect individuals from arbitrary interference with their privacy. This
principle is directly applicable in the present case, where Nososis spyware was used
without the Petitioner’s consent or legal authorization, effectively violating his right to
privacy.
9. Moreover, the right to privacy has been understood not just as an individual right but
also as a collective right essential for the functioning of a democratic society. In the
context of political freedom, People's Union for Civil Liberties (PUCL) v. Union of
India (1997) also held that unchecked surveillance by the government can result in the
suppression of political expression and dissent. In the present case, the Petitioner is a
journalist, and the use of spyware to monitor his communications raises grave concerns
about the chilling effect on the press. If journalists are subject to such surveillance, it
may lead to self-censorship, thereby undermining the media’s ability to freely perform
its function of holding the government accountable.
10. The issue of surveillance also brings into question the adequacy of safeguards to prevent
abuse of state power. In Puttaswamy, the Supreme Court stressed that any interference
with the right to privacy by the state must be subject to strict legal safeguards to prevent
abuse. In this case, there is no transparency about the legal framework or oversight
mechanisms governing the use of Nososis. The government has not provided any
evidence that the surveillance of the Petitioner was carried out with any judicial
oversight or adequate procedural safeguards. This lack of transparency and
accountability points to the arbitrary nature of the surveillance, which exacerbates the
violation of the Petitioner’s fundamental rights.
11. Furthermore, the Government of Dharmasthan’s actions have failed to meet the
proportionality test as laid out in K.S. Puttaswamy. The use of spyware, particularly
the sophisticated capabilities of Nososis to infiltrate personal data and activate a phone’s
microphone and camera, constitutes an overreach by the state. If the government’s intent
was to investigate crimes or threats to national security, there are far less invasive means

3
People’s Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301

13
 available, such as targeted surveillance with judicial authorization. The Petitioner
submits that the broad and indiscriminate nature of the surveillance makes it
disproportionate to any legitimate interest the government may have in monitoring his
activities.
12. In conclusion, the use of spyware Nososis by the Government of Dharmasthan and/or
its agencies, particularly in relation to the Petitioner, constitutes a clear violation of his
right to privacy under Article 21 of the Constitution of India. The surveillance was
unauthorized, indiscriminate, and disproportionate, and it was not carried out in
accordance with any legal framework or judicial oversight. The actions of the
government are inconsistent with the constitutional safeguards required to protect the
right to privacy, as articulated by the Supreme Court in Puttaswamy v. Union of India
and PUCL v. Union of India. The Petitioner thus respectfully submits that the
surveillance is unconstitutional and unlawful, and seeks appropriate relief for the
violation of his fundamental rights.

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ii. Whether the use of the spyware “Nososis” by government authorities is justified under
any of the exceptions provided for in the Constitution, including national security
considerations ?

13. It is important to consider the constitutional framework that governs the limitation of
fundamental rights, particularly those enshrined in Article 21, which guarantees the right
to life and personal liberty. While this right is broad and expansive, it is not absolute.
The Constitution, under Article 21, allows for restrictions on the right to life and
personal liberty, but these restrictions must be "according to procedure established by
law." Therefore, any interference with the right to privacy through surveillance or other
means must comply with a valid law, must be for a legitimate purpose, and must adhere
to principles of proportionality and necessity.
14. The right to privacy, as elaborated in the K.S. Puttaswamy v. Union of India (2017) 10
SCC 1 4case, is a fundamental right that is part of the right to life and personal liberty
under Article 21. The Supreme Court held that while the state may interfere with the
right to privacy, such interference must be done in accordance with a law that is fair,
just, and reasonable, and must be necessary in a democratic society. The Court further
emphasized that any state action infringing privacy must pass the test of proportionality,
which means that the state’s objectives must justify the invasion of privacy, and the
methods used must be the least intrusive.
15. One of the justifications that the state often presents for surveillance or privacy
violations is the need to protect national security. National security is a recognized
exception to fundamental rights, including the right to privacy, under Article 21.
However, such an exception is not unlimited and must be strictly construed. Surveillance
that is deemed necessary for national security purposes must still adhere to the
constitutional principles of legality, necessity, and proportionality.
16. In this case, the government has not provided sufficient legal or factual basis to justify
the use of Nososis spyware as a necessary measure for national security. There is no
evidence to suggest that the use of Nososis is limited to addressing genuine national
security threats. Rather, the reports suggest that Nososis has been used indiscriminately,
targeting journalists and political opponents, as well as potentially undermining the

4
K.S. Puttaswamy v. Union of India (2017) 10 SCC 1

15
 privacy of ordinary citizens without any reasonable connection to national security
concerns. This broad and invasive form of surveillance is disproportionate to any
legitimate purpose it might serve.
17. The PUCL v. Union of India (1997) 1 SCC 3015 case provides a crucial framework for
evaluating state surveillance in the context of national security. The Supreme Court in
PUCL emphasized that any state action, such as telephone tapping or surveillance, must
be authorized by law and must comply with due process. The Court held that
surveillance should be used only when absolutely necessary to protect national security
and when other, less intrusive means of achieving the same objectives are unavailable.
Additionally, the Court laid down guidelines to ensure that such surveillance is subject
to judicial scrutiny and oversight to prevent abuse of power. In the present case, the use
of Nososis spyware appears to lack such oversight, and there is no evidence to suggest
that less intrusive methods were considered or used before resorting to such a
sophisticated tool of surveillance.
18. Furthermore, the principle of proportionality, as outlined in the Puttaswamy case,
demands that any limitation on the right to privacy must be proportionate to the need for
such action. In this case, the government's use of Nososis spyware to monitor personal
data, track location, and activate microphones and cameras on the target’s devices
represents an extreme intrusion into the personal life of individuals, especially when no
evidence has been provided that this level of surveillance is necessary for national
security. The spying capabilities of Nososis are extensive and would be highly intrusive
in any context, let alone one where national security is purported to be the justification.
19. Moreover, the Maneka Gandhi v. Union of India (1978) 1 SCC 2486 case further
emphasizes that any deprivation of personal liberty under Article 21 must be done in
accordance with a procedure that is just, fair, and reasonable. The Supreme Court in this
case established the principle that any restriction on the right to personal liberty must
not be arbitrary, fanciful, or oppressive. It must be based on reasonable laws that are
clear and precise. The state’s use of spyware Nososis without adequate legislative
backing or judicial oversight fails to meet this standard of fairness, as it is unclear
whether the government’s actions were in accordance with a clear and precise law or if
the state followed a process that allowed for due scrutiny of its actions.

5
PUCL v. Union of India (1997) 1 SCC 301
6
Maneka Gandhi v. Union of India (1978) 1 SCC 248

16
 20. In addition, the People’s Union for Civil Liberties (PUCL) v. Union of India (1997) 1
SCC 301 case dealt directly with the issue of surveillance by government authorities.
The Supreme Court ruled that telephone tapping and surveillance could only be carried
out by the state under very specific and tightly controlled circumstances. Such actions
had to be authorized by law and subjected to oversight, with a focus on protecting the
right to privacy of individuals. In the present case, there is no evidence that the
surveillance through Nososis was conducted with the necessary legal authorization, and
the widespread and indiscriminate targeting of journalists, politicians, and ordinary
citizens suggests that the surveillance was far broader than what could be justified by
national security concerns.
21. It is also important to note that national security considerations do not provide carte
blanche for the state to bypass fundamental rights. The Constitution itself contains
checks and balances to ensure that national security measures do not undermine the
fundamental rights of individuals. Article 22 of the Constitution, which provides
protections against arbitrary arrest and detention, includes exceptions for national
security but also imposes strict procedural safeguards. Similarly, the state must
demonstrate that any surveillance measures it takes are in line with these constitutional
safeguards and that they do not unduly infringe on the privacy and liberties of
individuals.
22. In R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632,7 the Court recognized that
the right to privacy is not absolute, but it must be balanced against other competing
public interests such as national security, public order, and the prevention of crime.
However, the Court also emphasized that the state must provide adequate justifications
for such violations and that the balance must not tip too far in favor of state power at the
expense of individual rights. In this case, the Petitioner argues that the government has
failed to provide such justifications. The state has not demonstrated that the use of
Nososis was necessary for national security, nor has it shown that the intrusion into the
Petitioner’s private life was proportionate to the threat that was being addressed.
23. Finally, the Supreme Court’s decision in State of Maharashtra v. Bharat Shanti Lal Shah
(2008) 13 SCC 5,8 where the Court examined the proportionality of state action in the
context of fundamental rights, reinforces the argument that surveillance must be justified

7
R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632
8
State of Maharashtra v. Bharat Shanti Lal Shah (2008) 13 SCC 5

17
 not only by a legitimate purpose but also by ensuring that the measures taken are
proportional to that purpose. In the case of Nososis, the surveillance appears to be far
more invasive than necessary, particularly given the lack of evidence of a clear national
security threat justifying the extensive monitoring of individuals’ personal
communications and activities.
24. In conclusion, the use of Nososis spyware by government authorities cannot be justified
under the exceptions provided for in the Constitution, including national security
considerations. The government has failed to provide sufficient legal authorization for
its actions, and the surveillance conducted was indiscriminate, disproportionate, and
lacking in transparency. The Petitioner submits that the use of Nososis violates his
fundamental right to privacy under Article 21 and that national security considerations
cannot be used as a blanket justification for violating the Constitution’s safeguards. The
Court must strike a balance between the need for national security and the protection of
individual rights, ensuring that any state action that infringes upon privacy is justified,
necessary, and proportionate.

18
iii. Whether the Petitioner is entitled to compensation for the violation of his fundamental
rights, specifically his right to privacy ?

25. The Supreme Court of India has consistently recognized that a violation of fundamental
rights warrants adequate redress, and in cases where the state’s actions are illegal or
unconstitutional, compensation may be awarded as a remedy. In the landmark judgment
in K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, the Supreme Court explicitly
recognized the right to privacy as a fundamental right under Article 21. The Court held
that any infringement on this right must be justified by a valid law and must pass the test
of necessity, proportionality, and legality. When the right to privacy is violated, the
Court emphasized that the person whose rights are violated should be entitled to a
remedy, which may include compensation.
26. In the case of Nososis, the petitioner’s phone and personal data were surveilled and
monitored through unauthorized means, without any legal authority or necessity. The
petitioner’s privacy was invaded through sophisticated surveillance technology, which
had the potential to access highly sensitive information, including private
communications, contacts, location data, and even the ability to remotely activate the
phone’s microphone and camera. Such an invasion of privacy constitutes a grave
violation of the fundamental rights guaranteed under the Constitution, specifically the
right to life and personal liberty under Article 21, as well as the right to freedom of
expression under Article 19(1)(a), given the chilling effect that such surveillance can
have on free speech and the free exchange of ideas.
27. The petitioner, in this case, has a strong claim for compensation due to the unlawful
nature of the surveillance conducted by government authorities. Compensation in cases
of constitutional violations has been recognized by the Supreme Court in several
landmark decisions. The principle of awarding compensation for the violation of
fundamental rights, particularly in cases where the state acts unlawfully, was reinforced
by the Supreme Court in Rudul Sah v. State of Bihar (1983) 4 SCC 1419. In this case,
the Court awarded compensation to an individual who had been unlawfully detained by
the police for an extended period of time. The Court emphasized that where a
fundamental right is violated by the state, the individual is entitled to compensation as a

9
Rudul Sah v. State of Bihar (1983) 4 SCC 141

19
 form of redress. This case established that compensation is an appropriate remedy for
violations of constitutional rights, particularly where the state’s actions are arbitrary or
unlawful.
28. Similarly, in Neelabati Behera v. State of Orissa (1993) 2 SCC 74610, the Supreme
Court reiterated the principle that compensation can be awarded when there is a violation
of a person’s fundamental rights. The Court observed that the right to compensation is
not merely a civil right, but a constitutional remedy, which serves as a deterrent to
arbitrary state actions and ensures that the state is held accountable for its actions. The
petitioner in the present case, who has experienced a direct violation of his privacy, is
similarly entitled to compensation for the unlawful actions taken by government
authorities, which have resulted in a clear infringement of his constitutional rights.
29. The legal basis for compensation is further solidified in State of Haryana v. Santra
(2000) 5 SCC 182,11 where the Supreme Court held that compensation is an appropriate
remedy in cases of human rights violations caused by state action, including violations
of the right to privacy. In that case, the Court awarded compensation for the death of a
child due to the state’s negligence, reaffirming the principle that compensation serves as
a tool for redress and accountability. Although the facts in that case differed, the
underlying principle remains relevant—where the state violates a citizen's fundamental
rights, the affected individual is entitled to appropriate compensation.
30. Moreover, in Puneet Kaur v. Union of India (2004) 13 SCC 29212, the Court
emphasized that where the violation of a constitutional right is deliberate, arbitrary, or
wrongful, the affected party must be compensated for the loss suffered. The surveillance
conducted by Nososis, which is not only unauthorized but also invasive and
disproportionate, falls squarely within the category of arbitrary and unlawful state
action. The Petitioner, whose private information was unlawfully accessed, has suffered
a clear violation of his right to privacy, and thus, the state must compensate him for the
harm caused.
31. Furthermore, in Nandini Sundar v. State of Chhattisgarh (2011) 7 SCC 54713, the
Supreme Court reiterated that the violation of fundamental rights by state agencies,
including surveillance and encroachment upon personal liberties, requires

10
Neelabati Behera v. State of Orissa (1993) 2 SCC 746
11
State of Haryana v. Santra (2000) 5 SCC 182
12
Puneet Kaur v. Union of India (2004) 13 SCC 292
13
Nandini Sundar v. State of Chhattisgarh (2011) 7 SCC 547

20
 accountability. The Court emphasized the need for a detailed investigation and possible
compensation for individuals whose rights are violated by government agencies acting
beyond their legal authority. Here, the state’s use of Nososis spyware in a manner that
appears to violate privacy without adequate legal authorization or due process is no
different from the arbitrary state action that necessitates compensation.
32. The petitioner’s entitlement to compensation is also supported by the need to deter
further violations by government authorities. As the Supreme Court noted in Bhim
Singh v. State of Jammu and Kashmir (1985) 4 SCC 677,14 awarding compensation
serves as a deterrent to state agencies from engaging in unlawful actions that infringe
upon the fundamental rights of citizens. In this case, the use of spyware Nososis to
surveil the Petitioner without due process of law sets a dangerous precedent, not only
for the petitioner but for the general public. If the state is allowed to violate the privacy
of individuals with impunity, it could lead to widespread abuse of power. Therefore,
compensation is necessary not only to redress the violation of the petitioner’s rights but
also to send a clear message that such violations will not be tolerated.
33. The petitioner further argues that the state’s actions have caused harm beyond the
immediate invasion of privacy. The installation and use of Nososis spyware on the
petitioner’s device have created a lasting chilling effect on the Petitioner’s ability to
exercise his freedom of speech and expression. As seen in the Shreya Singhal v. Union
of India (2015) 5 SCC 1 15case, where the Supreme Court struck down Section 66A of
the Information Technology Act, the Court recognized the potential for state action to
curtail freedom of speech by creating an environment of fear. The petitioner in this case
similarly contends that the surveillance activities, particularly the unauthorized
monitoring of communications, have interfered with his ability to freely communicate
and express himself, thereby causing harm that warrants compensation.
34. The concept of non-pecuniary damages is also relevant here, as the invasion of privacy
caused by Nososis is not merely a financial loss but a violation of personal dignity,
autonomy, and security. The Court has recognized the need for non-pecuniary
compensation in cases involving the violation of personal rights and dignity, as seen in
N.C. Dharmadhikari v. State of Maharashtra 16, where the Court held that monetary
compensation can address the emotional and psychological harm caused by the

14
Bhim Singh v. State of Jammu and Kashmir (1985) 4 SCC 677
15
Shreya Singhal v. Union of India (2015) 5 SCC 1
16
(1997) 8 SCC 319

21
 infringement of fundamental rights. In the present case, the Petitioner’s right to personal
security and autonomy was severely compromised by the unlawful surveillance, and
thus, he is entitled to compensation for the intangible harm caused by the state’s actions.
35. Finally, the petitioner seeks compensation not only for the violation of his privacy but
also for the emotional distress and the loss of confidence in the state’s ability to protect
citizens' rights. The unlawful surveillance by government agencies using Nososis has
led to a breakdown of trust between the state and its citizens, undermining the
constitutional guarantees of privacy, freedom of expression, and personal liberty.
Compensation in this case serves not only as a remedy for the specific violation of the
petitioner’s rights but also as a crucial step in restoring public trust in the rule of law and
the protection of fundamental rights.
36. In conclusion, the petitioner is entitled to compensation for the violation of his
fundamental rights, particularly his right to privacy, under Article 21 of the Constitution.
The unlawful use of spyware Nososis by the government constitutes a serious
infringement of the petitioner’s privacy and personal liberty, and the petitioner is entitled
to redress in the form of compensation for the harm caused. The relevant case law
consistently supports the principle that individuals whose fundamental rights are
violated by the state must be compensated for the loss they suffer. Furthermore,
compensation is necessary not only to remedy the petitioner’s individual harm but also
to serve as a deterrent to future violations of constitutional rights by government
authorities.

22
iv. Whether Sections 123 and 124 of the Indian Evidence Act, which protect certain
government documents, should be invoked in the present case to prevent the disclosure
of information concerning the spyware ?

37. In the present case, the invocation of Sections 123 and 124 of the Indian Evidence Act
by the State to prevent the disclosure of information concerning the spyware "Nososis"
must be scrutinized within the context of the constitutional rights of the petitioner,
particularly his right to access information and the right to privacy under Article 21 of
the Constitution of India. The petitioner argues that the state’s invocation of these
provisions is an attempt to shield its actions from scrutiny, without any legitimate
justification under the law, and should not be upheld in light of the fundamental rights
of citizens and the principles of transparency and accountability in a democratic society.
38. The petitioner submits that the right to access information is a critical aspect of the
fundamental rights guaranteed under the Constitution, particularly under the right to
freedom of speech and expression enshrined in Article 19(1)(a), as well as the right to
life and personal liberty under Article 21. These rights cannot be abridged by a blanket
invocation of provisions such as Sections 123 and 124 of the Indian Evidence Act, which
are intended to protect specific state interests, such as national security, only when these
interests are legitimate, proportional, and consistent with constitutional guarantees.
39. Sections 123 and 124 of the Indian Evidence Act, 1872, are designed to protect certain
government documents from disclosure in judicial proceedings, particularly documents
related to national security and diplomatic relations. Section 123 grants the government
the authority to prevent the disclosure of documents relating to national security,
defense, and other sensitive matters, while Section 124 offers protection to the disclosure
of communications made by the government to its legal advisors or confidential
communications. These provisions were introduced to prevent the disclosure of
information that could harm the interests of the state or compromise the functioning of
government departments.
40. However, the invocation of these provisions must be seen in light of the principle of
constitutional supremacy, which mandates that any law or provision that limits the
enjoyment of fundamental rights must be justifiable in a democratic society. The state’s
actions, especially in cases of surveillance and the infringement of fundamental rights
such as the right to privacy, must be subject to judicial review to ensure that they are not
arbitrary, disproportionate, or in violation of constitutional guarantees. The disclosure

23
 of information regarding the spyware "Nososis," which is at the center of this case,
directly implicates the state’s actions in infringing upon the privacy of citizens.
Therefore, any attempt to shield such information under Sections 123 and 124 must be
carefully scrutinized to determine whether it constitutes an unlawful obstruction to the
petitioner’s constitutional rights.
41. The Supreme Court has consistently emphasized the need for transparency and
accountability, especially in matters that affect the fundamental rights of citizens. In
State of Uttar Pradesh v. Raj Narain17, the Court observed that transparency is a
cornerstone of democratic governance, and the right to access information is essential
for ensuring accountability in the functioning of the state. The Court further held that
the state cannot hide behind the veil of secrecy to justify the violation of an individual’s
rights. In the context of this case, the petitioner contends that the state’s use of spyware
to monitor his communications and private information is a matter of public concern
and, therefore, the disclosure of information about the spyware should not be obstructed
by invoking Sections 123 and 124.
42. The right to information is also enshrined in the Right to Information Act, 2005, which
mandates the disclosure of government documents and information unless it pertains to
matters of national security or is classified under certain exceptions. While national
security is a legitimate concern, the Act also recognizes that information related to
matters of public interest, including issues that may involve violations of individual
rights, should be disclosed in a transparent manner. The disclosure of information about
the spyware is not an issue solely of national security but is directly relevant to the rights
of individuals who have been affected by the surveillance. The petitioner argues that any
attempt to shield the information under Sections 123 and 124 must be balanced against
the public’s right to know about government actions that affect fundamental rights.
43. The issue of the balance between national security concerns and individual rights was
addressed by the Supreme Court in R. Rajagopal v. State of Tamil Nadu 18, where the
Court held that the right to freedom of speech and expression, which includes the right
to access information, is a fundamental right that must be protected even in the face of
state interests. The Court acknowledged that the state has a legitimate interest in
protecting national security, but this interest must be weighed against the right of

17
(1975) 4 SCC 428
18
(1994) 6 SCC 632

24
 individuals to be informed about state actions that impact their lives and liberties. In that
case, the Court allowed the publication of certain information that had been classified
by the government, finding that the public interest in knowing about the government’s
actions outweighed the claim of secrecy. Similarly, in the present case, the petitioner
submits that the public interest in knowing about the spyware’s use and its potential
violation of privacy far outweighs the state’s interest in keeping such information secret
under the provisions of the Evidence Act.
44. Moreover, the invocation of Section 123 and 124 to prevent disclosure of information
about Nososis is also problematic because it is not clear that the disclosure of this
specific information would jeopardize national security or diplomatic relations. While
the government may argue that the spyware’s technical details and its use in surveillance
operations are sensitive matters, the petitioner contends that there is no direct evidence
to suggest that such disclosure would harm national security. The scope of the spyware’s
operation, its potential for misuse, and its impact on the privacy rights of individuals are
matters of public importance, and any attempt to hide these details under the guise of
national security must be subject to judicial scrutiny. The Supreme Court in Maneka
19
Gandhi v. Union of India held that any restriction on the exercise of a fundamental
right must be reasonable and must be justified by a legitimate state interest. The
petitioner argues that the state’s blanket claim of national security in this case does not
meet the test of necessity and proportionality, as it does not adequately explain how the
disclosure of information about the spyware would harm national security or any other
state interest.
45. Furthermore, the petitioner submits that the invocation of Sections 123 and 124 cannot
be used to shield unlawful state actions, particularly when those actions involve
violations of fundamental rights. In P.U. Chandra Ghosh v. Union of India 20, the
Supreme Court held that the state cannot hide behind laws that protect government
documents to shield itself from accountability when its actions are illegal or
unconstitutional. In that case, the Court emphasized that the right to access information
is paramount when the state’s actions infringe upon citizens’ rights. The petitioner in the
present case argues that the use of Nososis spyware is not a lawful or justified action and

19
(1978) 1 SCC 248
20
(2001) 3 SCC 100

25
 that the state cannot use Sections 123 and 124 as a shield to prevent public scrutiny of
its unconstitutional actions.
46. In conclusion, the petitioner contends that the invocation of Sections 123 and 124 of the
Indian Evidence Act to prevent the disclosure of information regarding Nososis is
unjustified and contrary to the principles of transparency, accountability, and the
protection of fundamental rights. The disclosure of information about the spyware is not
a matter of national security but a matter of public interest that directly concerns the
rights of citizens, including the petitioner. The state cannot claim blanket immunity from
disclosing such information without a legitimate justification under the law. The right
to access information and the right to privacy under Article 21 of the Constitution must
prevail over the state’s claim of secrecy under Sections 123 and 124, particularly when
the state’s actions are unlawful and violate the constitutional rights of individuals. The
petitioner urges the Court to reject the invocation of these provisions and to allow the
disclosure of information regarding the spyware, as it is necessary for ensuring
accountability and safeguarding the rights of citizens in a democratic society.

26
PRAYER
In light of issues raised, arguments advanced and the facts presented before this Hon'ble Court,
the Petitioner respectfully prays that:

1. This Hon'ble Court may be pleased to declare that the use of spyware “Nososis” by the
Government of Dharmasthan, and/or its agencies, in relation to the Petitioner,
constitutes a violation of the Petitioner’s right to privacy under Article 21 of the
Constitution of India, and is an unlawful infringement of fundamental rights.

2. This Hon'ble Court may be pleased to declare that the invocation of Sections 123 and
124 of the Indian Evidence Act, 1872, by the State of Dharmasthan to prevent the
disclosure of information concerning the spyware “Nososis” is unjustified and should
not be upheld, as it obstructs the public's right to information and the right to access
facts pertaining to the state’s actions that affect their fundamental rights.

3. This Hon'ble Court may be pleased to direct the Government of Dharmasthan to

disclose all information regarding the spyware “Nososis,” its use, and its deployment
in surveillance operations, in accordance with the principles of transparency and
accountability under the Constitution of India.

4. This Hon'ble Court may be pleased to order the Government of Dharmasthan to provide
compensation to the Petitioner for the violation of his fundamental right to privacy, in
the form of a monetary amount, as the Petitioner has suffered significant harm due to
the unlawful use of spyware and the infringement of his personal liberty.

5. This Hon'ble Court may be pleased to direct the Government of Dharmasthan to take
immediate steps to ensure that the use of spyware and other surveillance technologies
by the state and its agencies is carried out in a lawful and transparent manner, consistent
with the constitutional rights of individuals.

6. This Hon'ble Court may be pleased to issue any further orders, directions, or writs as it
may deem fit and proper in the interest of justice and to protect the fundamental rights
of the Petitioner.

The Petitioner seeks any other relief deemed fit by this Hon'ble Court in the interest of justice.

SD

PETITIONER

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