Online expression has become one of the major means of information diffusion, and

accordingly it was integral to the enjoyment of freedom of speech and expression guaranteed
by Article 19(1)(a), ..( Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana,)

The Court added that the “degree of restriction and the scope of the same, both territorially
and temporally, must stand in relation to what is actually necessary to combat an emergent
situation… The concept of proportionality requires a restriction to be tailored in accordance
with the territorial extent of the restriction, the stage of emergency, nature of urgency,
duration of such restrictive measure and nature of such restriction.” [para. 71] (bhasin v
union of india)

We humbly submit that there exist no ample merit in the contention of the government that
the Section and Section 8 is absolutely necessary for national security or for maintaining
public order.
The Court began by highlighting the importance of freedom of the press. It recalled that as
early as in 1914, the freedom of the press had been recognized in India. In ( Channing
Arnold v. The Emperor, (1914) 16 Bom LR 544,) the Privy Council stated that: “the freedom
of the journalist is an ordinary part of the freedom of the subject and to whatever length,
the subject in general may go, so also may the journalist, but apart from the statute law his
privilege is no other and no higher. The range of his assertions, his criticisms or his
comments is as wide as, and no wider than that of any other subject.” [para. 142] (bhasin v
union of india)

The right to privacy is implicit to right to life, liberty guaranteed to the citizens of Inida by Art. 21.
(
Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, R. Rajagopal alias R.R. Gopal v. State of Tamil Nadu, (1994) 6 SCC
632, Virodhak Sangh v. Mirzapur Moti Kuresh Jamat, (2008) 5 SCC 33, Suchita Srivastava v. Chandigarh Administration, (2009)
9 SCC 1, Bhavesh Jayanti Lakhani v. State of Maharashtra, (2009) 9 SCC 551, Amar Singh v. Union of India, (2011) 7 SCC 69,
Sanjoy Narayan v. High Court of Allahabad, (2011) 13 SCC 155, Malak Singh v. State of Punjab and Haryana, (1981) 1 SCC 420,
Ram Jethmalani v. Union of India, (2011) 8 SCC 1, Shabnam v. Union of India, (2015) 6 SCC 702, Ramlila Maidan Incident v.
Home Secretary, Union of India, (2012) 5 SCC 1, Lillu Rajesh v. State of Haryana, (2013) 14 SCC 643, Thalappalam Service
Cooperative Bank Limited v. State of Kerala, (2013) 16 SCC 82, State of Karnataka v. Krishnappa, (2000) 4 SCC 75, Sudhansu
Sekhar Sahoo v. State of Orissa, (2002) 10 SCC 743, District Registrar and Collector, Hyderabad v. Canara Bank, (2005) 1 SCC
496, Boyd v. United States, 116 US 616 (1886), Olmstead v. United States, 277 US 438 (1928), Katz v. United States, 389 US
347 (1967), M Nagaraj v. Union of India, (2006) 8 SCC 212, Khedat Mazdoor Chetna Sangath v. State of M.P., (1994) 6 SCC 260,
Supreme Court Advocates on Record Association v. Union of India, (2016) 5 SCC )

Right to privacy is not absolute, and it is subject to action lawfully taken to prevent crime or to
(
protect the health, morals and the rights and freedoms of others. Mr X v. Hospital Z, (1998) 8 SCC 296.)

It is humbly submitted before this Hon'ble Court that for a restriction on the fundamental right to
privacy to be reasonable must inter-alia, be the least intrusive measure, proportional to the
restriction and the privacy of an individual. (K.S Puttaswamy v. Union of India, (2017) 10 SCC 1. See also K.S.
Puttaswamy v. Union of India, (2018) 12 Scale 1. Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016)
7 SCC 353.)

The proportionality principle requires balancing of the object sough to be achieved by the
restriction with the harm suffered by the individual. (K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. See
also K.S. Puttaswamy v. Union of India, (2018) 12 Scale 1. Modern Dental College & Research Centre v. State of Madhya
Pradesh, (2016) 7 SCC 353.)

22
Firstly, Sections 12, 13, 14 of the Act do not specifically lay down the principle/test of
Proportionality. (Data Protection Act, 2021, § 12, 13, 14, No. 373, Acts of Parliament, 2021 (India).
 23 (
Secondly, Sections 35 of the Act Data Protection Act, 2021, § 35 No. 373, Acts of Parliament, 2021 (India). ) only
applies the test of proportionality to the procedure to be followed and not the substantive
standards for the government's invocation of exemption. The government does not need to
establish that the exemption from the entire Data Protection Bill is necessary for, or proportionate
to achieving its interest of national security or public order.

It is therefore, humbly submitted before this hon'ble Court that without the high threshold of
Proportionality laid down under the impugned provisions, the use of pervasive surveillance
technologies by the Government and employers could amount to disproportionate encroachment
on the fundamental right to privacy guaranteed under Articles 14, 19 and 21 of the Constitution.
(INDIA CONST. art. 14, 19 and 21.)

In Para 86 of the Puttuswamy Judgement Justice Nariman has specifically noted that “the ultimate
analysis” of a measure's proportionality “must be left to the training and expertise of the judicial
mind.” (K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.)

It is pertinent to note that this Hon'ble Court in Puttaswamy29 (K.S. Puttaswamy v. Union
of India, (2018) 12 Scale 1.) despite noting that what is in the interest of national security
may be a question of policy, struck down Section 33(2) of the Aadhaar Act (Aadhar Act,
2016, § 33, No. 47, Acts of Parliament, 2016 (India) ) on the ground that it did not provide
for any independent (judicial) oversight and was therefore, unreasonable,
disproportionate, and unconstitutional. Similar provisions of exemptions exist in other
jurisdictions however, they provide for independent oversight, such as, in South Africa,
31 (
there is parliamentary as well as civil oversight. The Intelligence Services Oversight
Act, 1994, see statement of objects and reasons - ?To provide for the establishment of a
Committee of Members of Parliament on Intelligence and to define its functions; and for
the appointment of Inspectors General or Intelligence and to define their functions; and
to provide for matters connected therewith. ? available at
https://www.oldsite.issafrica.org/uploads/INTELSERVACT40OF1994.PDF (last accessed on
19 April 2018). )

Further, judicial approval is required for interception of communication activities. ( The Regulations of
Interception of Communications and Provision of Communication-related Information Act, 2000 available at
https://www.justice.gov.za/legislation/acts/2002-070.pdf (last accessed on 19 April 2018) )

In Germany a Parliamentary Control Panel scrutinizes intelligence activities Foreign Intelligence

gathering Laws : Germany , Liberty of Congress, available at: ( https://www.loc.gov/law/help/intelligence-
activities/germany.php (last accessed on 9 May 2018).

In UK, interception warrants require approval by the Judicial Commissioner to ensure that the test
of proportionality was met at the time of issuance of the warrant. (Investigatory Powers Act, 2016, S 138.)

Therefore, it is humbly submitted before this Hon'ble Court that the “procedural safeguards” limb
of the broader proportionality enquiry - require Independent Judicial/legislative oversight of the
impugned provisions.

It is humbly submitted before this Hon'ble Court that any exemption/exceptions under the law
must be narrowly tailored (CCE v. Hari Chand, (2011) 1 SCC 236 )

Any restriction on a right must be narrowly tailored for it to be reasonable. ( Shreya Singhal v. Union of
India, (2015) 5 SCC 1)

Discretionary power given to government authorities are valid only if guided through sufficient
procedural safeguards, guidelines and standards. Vesting an uncontrolled power in and
administrative authority falls outside the constitutional framework ( R.R. Verma v. Union of India, (1980) 3
SCC 402 : AIR 1980 SC 1461. See also Subhash Chandra v. State of U.P., (1980) 2 SCC 471. See also Accountant General v.
Doraiswamy, (1981) 4 SCC 93 : AIR 1981 SC 783.)

It is pertinent to note that National interests may override individual privacy, but the threshold
should be high, as Justice Srikrishna Committee noted, “to ensure that the pillars of the data
 48
protection framework are not shaken by a vague and nebulous national security exception”.
(Renjith Mathew, ‘Personal Data Protection Bill, 2019 - Examined through the Prism of Fundamental Right to privacy - A Critical
Study’ SCC Online (22 May 2020) accessed 23 February 2021. )

Therefore, it is humbly submitted before this Hon'ble Court that the impugned provisions fail to
pass the muster of being reasonable restrictions as they are not narrowly tailored and vest broad,
unguided discretionary powers in the administrative authority.

It is humbly submitted before the court that section 87 of the Act is manifestly arbitrary in nature
and therefore is liable to be struck down as Firstly, as it vests unguided discretionary powers in
the hands of the Government [2.1] (And Secondly, the section leaves no scope for the
functional Independence of the Data Protection Authority (Hereinafter, DPA). [2.2] For
the Arbitrary and Absolute discretion which may permit denial of equality before law
which further is the antithesis of rule of law which is the cornerstone of our constitution,
thus this section needs to be struck down. (Siddharth R. Gupta and Kerti Sharma, 2021 SCC OnLine Blog Exp
76, (last accessed 4th March 2022, 6:30 p.m.), https://www.scconline.com/blog/post/2021/10/11/article-14-and-arbitrariness-vis-
a-vis-legislative- action.)

It is humbly submitted before this Hon'ble Court that section 87 of the Act vests unguided
discretionary powers in the hands of the Government as Firstly, A broad swath of power is granted
to the government, [2.1.1] Lastly, there are no procedural safeguards provided in the Section.
[2.1.2]

51(
It is humbly contended before this Hon'ble Court that Section 87 of the Act Data Protection Act, 2021, §
87, No. 373, Acts of Parliament, 2021 (India).) IS in the nature of arbitrary power granted to the government.”
(Supreme Court Advocates-on-Record - Association v. Union of India, LNIND 2015 SC 611)

It was pointed out in the case of Supreme Court Advocates-on-Record - Association v. Union of
India “that conferring uncharted powers in several authorities under legislation with the head of
state would be completely wrong and capricious.” ( R.R. Verma v. Union of India, (1980) 3 SCC 402 : AIR 1980 SC
1461)

“Vesting of an absolute and uncontrolled power in an authority falls outside the Constitution
altogether”

Furthermore, it is advanced before the Hon'ble Court that “a restriction in order to be reasonable
must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is
absolutely necessary” (Shreya Singhal v. Union of India (UOI), (2015) 5 SCC 1 : AIR 2015 SC 1523)

58 59 (
It is humbly submitted that in the case of Dwarka Prasad Laxmi v. State of Uttar Pradesh Dwarka
Prasad Laxmi Narain v. State of Uttar Pradesh, AIR 1954 SC 224.) a Legislation, which arbitrarily or excessively
invades the right, cannot be said to contain the quality of reasonableness, and unless it strikes a
proper balance between the freedom guaranteed under, Article 19(1)(g) (INDIA CONST. art. 19(2).

and the social control permitted by Clause (6) of, Article 19” thus it must be seen as lacking in
rationality. In the present situation the government's subsequent legal disenfranchisement of these
fundamental rights by ordering for an inquiry under the act falls short of achieving a reasonable
balance between freedom of expression and its disenfranchisement.

It is humbly submitted before the court that one of the considerations to consider when
determining constitutionality is that “the restriction must have a direct and proximate nexus, or a
reasonable link, to the purpose sought to be attained.” (Papanasam Labour Union v. Madura Coats Ltd., (1995)
1 SCC 501.)

It is Humbly submitted that in the impugned section no safeguard of judicial oversight has been
placed over the decision making by the government as a result, the legislation is more vulnerable
66
to abuse. The absence of procedural safeguards in the given act provides the government with
an easier way to evade jurisdiction of the given law, moreover, the restriction provided under the
67
act might be interpreted in the government's favour, thus leading to arbitrary exercise of power.
(MOOT PROPS)
The counsel humbly contends that in light of the above, it is strongly advised that such
unrestricted power be discontinued. The aforementioned statute must be controlled in order to
handle the forces threatening India's privacy rights. “Even though the state may cite problems of
75
state security and surveillance to check potential terrorist activities .” (Klass v. Federal Republic of
Germany, (Series A, NO 28) (1979-80) 2 EHRR 214).)

76
The counsel therefore, humbly pleads, that Section 87 of the Act must be struck down as
manifestly arbitrary in nature as it provides unguided discretionary powers to the government and
further leaves no scope for the functional independence of the DPA.

ARGUMENTS ADVANCED:

1. VIOLATION OF ARTICLE 21 – RIGHT TO PRIVACY

1.1 Privacy as a Fundamental Right

1.1.1 Constitutional Recognition of Privacy
The Hon’ble Supreme Court, in its landmark nine-judge bench decision in Justice K.S.
Puttaswamy v. Union of India, (2017) 10 SCC 1, held that the right to privacy is a
fundamental right guaranteed under Part III of the Constitution, emanating from Articles 14,
19, and 21. The Court explicitly rejected earlier restrictive interpretations in M.P. Sharma v.
Satish Chandra, AIR 1954 SC 300 and Kharak Singh v. State of U.P., AIR 1963 SC 1295, where
privacy was not expressly recognized, thereby firmly establishing privacy as intrinsic to the
right to life and personal liberty. This recognition is not merely a theoretical declaration, but
an enforceable constitutional guarantee, mandating that any intrusion must satisfy
constitutional standards of legality, necessity, and proportionality (Puttaswamy, supra, ¶
297).

1.1.2 Privacy as an Essential Facet of Dignity and Autonomy

Privacy is the very foundation of dignity, which itself is a non-derogable component of
Article 21. In R. Rajagopal alias R.R. Gopal v. State of Tamil Nadu, (1994) 6 SCC 632, the
Supreme Court underscored that the right to be let alone is implicit in the right to life and
liberty, and that no one can publish anything concerning a person’s private life without
consent, except for matters of public record. The DigiSamvad Suraksha Adhiniyam, 2024
(“DSA”), by permitting mass and continuous metadata collection under Sections 5 and 8
without individualized suspicion, strips citizens of control over their personal information
and, by extension, erodes their dignity and decisional autonomy (R. Rajagopal, supra, ¶ 26).

1.2 Informational Privacy and Metadata Surveillance

1.2.1 Nature of Metadata and Its Sensitivity

Metadata, though seemingly innocuous, is in fact highly revealing — it includes information
about who a person communicates with, when, how often, and from where. As Justice
Sotomayor observed in United States v. Jones, 565 U.S. 400, 415 (2012), metadata can
“reveal an individual’s familial, political, professional, religious, and sexual associations.” The
U.S. Supreme Court in Carpenter v. United States, 138 S. Ct. 2206 (2018), recognized that
historical cell-site location data, a form of metadata, “provides an intimate window into a
person’s life” and is entitled to the same level of constitutional protection as the content of
communications. Blanket retention of such data, without judicial warrant, transforms the
State into a perpetual observer — a condition fundamentally incompatible with the
democratic guarantees under our Constitution.

1.2.2 Indian Approach to Data Surveillance

Indian jurisprudence too acknowledges the intrusive nature of communications surveillance.
In District Registrar and Collector, Hyderabad v. Canara Bank, (2005) 1 SCC 496, the
Supreme Court struck down provisions allowing warrantless inspection of private
documents, holding that “the right to privacy deals with persons and not places” (¶ 52). The
logic applies a fortiori to metadata — while it does not contain the substance of
communication, it paints a vivid behavioural profile. By enabling mass metadata
surveillance, Sections 5 and 8 of the DSA permit the State to construct comprehensive
dossiers on individuals without meeting the constitutional requirement of necessity.
1.3 The Proportionality Standard under Article 21

1.3.1 The Four-Pronged Test in Puttaswamy

The Puttaswamy Court established a four-step proportionality test: (i) legality, which
postulates the existence of law; (ii) legitimate aim; (iii) rational connection between means
and ends; and (iv) necessity and balancing — ensuring the least restrictive alternative is
used (Puttaswamy, supra, ¶ 325). While the DSA meets the legality and legitimate aim
prongs, it fails the last two. First, there is no rational connection between indiscriminate
metadata retention and the stated aim of national security — the law does not differentiate
between suspects and ordinary citizens. Second, the State has not demonstrated why
targeted, warrant-based interception, as recommended by the Srikrishna Committee Report
(2018), would be inadequate.

1.3.2 Failure of Necessity and Narrow Tailoring

Comparative jurisprudence reinforces this view. In Digital Rights Ireland Ltd. v. Minister for
Communications, C-293/12, 2014 E.C.R. I-238, the European Court of Justice invalidated the
Data Retention Directive, holding that indiscriminate retention of all traffic and location data
was a “particularly serious” interference with privacy and could not be justified by the mere
invocation of public security. Similarly, the European Court of Human Rights in Klass v.
Federal Republic of Germany, App. No. 5029/71, 2 E.H.R.R. 214 (1978), required surveillance
measures to be necessary in a democratic society and accompanied by effective safeguards.
The DSA’s provisions are strikingly overbroad in light of these precedents.

1.4 Lack of Procedural Safeguards

1.4.1 Absence of Independent Oversight

The DSA entrusts oversight to an executive committee, lacking both independence and
transparency. The Supreme Court in Romila Thapar v. Union of India, (2018) 10 SCC 753,
emphasized that intrusion into fundamental rights must be subjected to judicial scrutiny by
an independent authority. By keeping the review process wholly internal, the DSA invites
the risk of abuse and fails to instil public confidence in its operation.

1.4.2 No Remedy for Affected Individuals

The law provides no mechanism for an individual to be notified of surveillance after it has
ceased, nor to seek redress for unlawful interception. This omission is constitutionally fatal.
In Maneka Gandhi v. Union of India, (1978) 1 SCC 248, the Court held that any “procedure
established by law” must be fair, just, and reasonable — a principle that applies with equal
vigour to surveillance statutes. The chilling effect resulting from secrecy and lack of remedy
is itself a violation of both Articles 19 and 21, as recognized in Shreya Singhal v. Union of
India, (2015) 5 SCC 1.

2. VIOLATION OF ARTICLE 19(1)(a) – FREEDOM OF SPEECH AND EXPRESSION

2.1 Freedom of Speech as the Lifeblood of Democracy

2.1.1 Constitutional Foundation and Scope

Article 19(1)(a) of the Constitution of India guarantees to every citizen the “freedom of
speech and expression,” which the Hon’ble Supreme Court has consistently recognized as a
foundational pillar of a constitutional democracy. In Shreya Singhal v. Union of India, (2015)
5 SCC 1, ¶ 20, the Court held that this freedom encompasses the right to receive information,
the right to disseminate information, and the right to remain free from undue governmental
intrusion. This protection extends to all forms of communication, including digital platforms,
as reaffirmed in Secretary, Ministry of Information & Broadcasting v. Cricket Association of
Bengal, (1995) 2 SCC 161, ¶ 43, where the Court emphasized that the right includes the
freedom to communicate and receive ideas through any media of one’s choice.

2.1.2 Speech Beyond Verbal Communication

The ambit of Article 19(1)(a) is not restricted to verbal expression; it extends to symbolic
speech, artistic works, journalistic activities, and political discourse (Bennett Coleman & Co.
v. Union of India, (1972) 2 SCC 788, ¶ 31). In the digital age, metadata itself is a critical
component of expressive activity, as it reveals patterns of association, movement, and
political engagement. Retention of such metadata under Sections 5 and 8 of the DSA thus
constitutes an indirect restraint on speech by creating an environment of constant monitoring.

2.2 The Chilling Effect of Mass Surveillance

2.2.1 Concept and Constitutional Recognition

A chilling effect arises when State action deters individuals from exercising their
fundamental rights due to fear of reprisal. In Anuradha Bhasin v. Union of India, (2020) 3
SCC 637, ¶¶ 64–65, the Court recognized that uncertainty and fear caused by restrictions can
suppress speech even without direct prohibitions. This principle was earlier applied in Kedar
Nath Singh v. State of Bihar, AIR 1962 SC 955, ¶ 26, where overbroad laws were held to
silence lawful expression by creating apprehension of prosecution.

2.2.2 Mass Surveillance as an Instrument of Self-Censorship

The very knowledge that one’s communications are being continuously monitored can cause
journalists to avoid sensitive investigations, activists to refrain from organizing protests, and
ordinary citizens to limit their political discussions. Comparative jurisprudence supports this
finding — the U.S. Supreme Court in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,
462–63 (1958), held that compelled disclosure of membership lists violated the First
Amendment as it would deter individuals from associating with the organization. Similarly,
in Szabó and Vissy v. Hungary, App. No. 37138/14 (Eur. Ct. H.R. 2016), ¶ 69, the European
Court of Human Rights held that indiscriminate interception has a “serious chilling effect” on
the exercise of free expression and association.

2.2.3 Application to the Petitioner’s Case

The DSA provisions have a disproportionate impact on political dissenters, journalists, and
NGOs — precisely the actors whose voices sustain democratic accountability. Given the
political context of this case, where the petitioner challenges provisions allegedly aimed at
curbing critical speech, the chilling effect is neither hypothetical nor speculative but a
demonstrable outcome of the surveillance regime.
2.3 The Marketplace of Ideas and Democratic Self-Governance

2.3.1 Judicial Recognition of Open Discourse

In S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574, ¶ 35, the Court stated that open
criticism of government policies is not only permissible but necessary for democracy. The
“marketplace of ideas” metaphor, introduced by Justice Holmes in Abrams v. United States,
250 U.S. 616, 630 (1919) (Holmes, J., dissenting), underscores that truth is most effectively
discovered through free competition of ideas. Mass surveillance distorts this marketplace by
introducing fear-based distortions — citizens choose silence over participation.

2.3.2 Metadata as a Tool of Suppression

Although the State may argue that metadata does not reveal the “content” of speech, studies
and precedents establish that patterns of communication are often more revealing than the
speech itself. In Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018), the U.S. Supreme
Court recognized that tracking metadata can provide a “detailed chronicle of a person’s
physical presence,” thereby interfering with both privacy and expressive freedoms.

2.4 Article 19(2) – Limits on Restrictions

2.4.1 Proximate Nexus Requirement

The State may justify DSA provisions under Article 19(2) on grounds of national security.
However, in Superintendent, Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633, ¶ 13,
the Court held that restrictions must have a proximate and reasonable nexus to the specific
harm sought to be avoided — a “remote or fanciful connection” is constitutionally
impermissible. The blanket retention of metadata from all citizens, without differentiation
between legitimate targets and the general public, fails to satisfy this requirement.

2.4.2 Doctrine of Overbreadth

As held in Shreya Singhal, supra, ¶ 90, an overbroad restriction is unconstitutional if it
sweeps both protected and unprotected speech into its ambit. The DSA’s provisions lack any
tailoring mechanism and operate indiscriminately, making them constitutionally infirm.

2.4.3 Least Restrictive Means

In Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC
353, ¶ 64, the Supreme Court reiterated that restrictions on fundamental rights must employ
the least restrictive means. Here, targeted, warrant-based interception — as endorsed by the
Justice Srikrishna Committee Report (2018) — could achieve the same objectives without
encroaching on the rights of the entire citizenry.

2.5 Impact on Press Freedom and the Right to Know

2.5.1 Constitutional and International Protection

The press enjoys the same freedom under Article 19(1)(a) as citizens, but its role as a public
watchdog necessitates heightened protection. Indian Express Newspapers (Bombay) Pvt. Ltd.
v. Union of India, (1985) 1 SCC 641, ¶ 32, affirmed that press freedom is essential for “the
functioning of democracy.” Internationally, Goodwin v. United Kingdom, App. No. 17488/90
(Eur. Ct. H.R. 1996), ¶ 39, recognized source confidentiality as essential to journalistic
freedom.
2.5.2 Source Confidentiality and Investigative Journalism
Mass metadata retention effectively undermines source confidentiality by enabling the State
to trace contacts between journalists and whistleblowers. In State v. Rajesh Sharma, (2017)
11 SCC 192, ¶ 20, the Court warned against procedural frameworks that could be misused for
harassment. This risk is magnified in the surveillance context, where the chilling effect is
likely to deter disclosures on matters of public interest.

3. VIOLATION OF ARTICLE 14 – EQUALITY BEFORE LAW AND PROHIBITION OF

ARBITRARINESS
3.1 Article 14: The Transformative Guarantee

3.1.1 Constitutional Text and Purpose

Article 14 embodies two distinct but complementary concepts: (a) equality before the law —
a negative concept prohibiting special privilege or arbitrary treatment, and (b) equal
protection of the laws — a positive obligation requiring the State to treat similarly situated
persons alike. While these concepts were initially applied narrowly in early decisions such as
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, the jurisprudence evolved
towards a more substantive understanding of equality as the “antithesis of arbitrariness” (E.P.
Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, ¶ 85).

3.1.2 From Classification to Non-Arbitrariness

The twin test of “intelligible differentia” and “rational nexus” from Budhan Choudhry v.
State of Bihar, AIR 1955 SC 191, was never intended to be exhaustive. The Court in
Royappa and Maneka Gandhi v. Union of India, (1978) 1 SCC 248, harmonized Article 14
with Articles 19 and 21, holding that any State action — legislative, executive, or judicial —
that is arbitrary, irrational, or disproportionate is unconstitutional, even if it does not involve
classification.

3.2 How the DSA Fails the Reasonable Classification Test

3.2.1 Absence of Intelligible Differentia

A valid classification must identify a clear set of persons to be treated differently and explain
why. Sections 5 and 8 of the DSA subject every citizen — from suspected terrorists to school
teachers — to identical metadata retention requirements. There is no attempt to distinguish
between individuals based on conduct, threat assessment, or connection to national security.
This “dragnet approach” is contrary to Subramanian Swamy v. CBI, (2014) 8 SCC 682, ¶ 58,
which held that a classification must be based on “real and substantial distinctions bearing a
just and reasonable relation to the object sought to be attained.”

3.2.2 Lack of Rational Nexus to Stated Objective

Even if the State’s stated objective of “ensuring national security” is accepted as legitimate
under Article 19(2), blanket surveillance of the entire population has no rational nexus to that
goal. In K.R. Lakshmanan v. State of Tamil Nadu, (1996) 2 SCC 226, ¶ 35, the Court struck
down a classification because the measure chosen did not logically further the objective.
Here, the DSA undermines national security by overwhelming enforcement agencies with
irrelevant data, diluting the focus on genuine threats.

3.3 Manifest Arbitrariness: A Standalone Ground of Invalidity

3.3.1 Doctrine and Scope

The doctrine of manifest arbitrariness, as formulated in Shayara Bano v. Union of India,
(2017) 9 SCC 1, ¶ 101, invalidates laws that are capricious, irrational, excessive, or lacking
adequate determining principles. This is not limited to executive actions but extends to
legislative provisions (Natural Resources Allocation, In re, (2012) 10 SCC 1, ¶ 164).

3.3.2 Why the DSA is Manifestly Arbitrary

Sections 5 and 8 confer sweeping powers on the State to collect and retain metadata without
judicial oversight, without temporal limits, and without specifying the nature or scope of
permissible data analysis. The absence of clear guidelines mirrors the defect struck down in
K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1, ¶ 197, where the Court
emphasized that laws must provide “a fair, just and reasonable procedure” to guard against
abuse.

3.4 Procedural Fairness and Natural Justice as Equality Components

3.4.1 Need for Independent Oversight

Article 14’s guarantee of equal protection implies that State powers affecting fundamental
rights should be subject to the same procedural safeguards for all individuals. In A.K.
Kraipak v. Union of India, (1969) 2 SCC 262, ¶ 20, the Court rejected the rigid separation
between administrative and quasi-judicial actions, extending the requirement of fairness to all
State actions. The DSA contains no requirement for prior judicial approval or independent
review of surveillance authorizations, enabling unchecked executive discretion.

3.4.2 Absence of Effective Remedies

The Supreme Court in Union Carbide Corporation v. Union of India, (1991) 4 SCC 584, ¶
30, stressed that access to effective remedies is a constitutional imperative. Yet, the DSA
offers no mechanism for affected individuals to be informed post-surveillance or to challenge
unlawful interception, leaving citizens remediless and undermining the procedural dimension
of equality.

3.5 Disproportionate Impact: Substantive Inequality

3.5.1 Facial Neutrality, Discriminatory Effect

Laws that are facially neutral but have a discriminatory impact are unconstitutional. In Yick
Wo v. Hopkins, 118 U.S. 356, 373–74 (1886), the U.S. Supreme Court struck down a facially
neutral ordinance disproportionately enforced against a minority group. Similarly, blanket
metadata retention disproportionately burdens political dissidents, journalists, and
marginalized communities, whose communications are more likely to attract scrutiny.

3.5.2 Comparative Standards on Surveillance Equality

In Tele2 Sverige AB v. Post- och telestyrelsen, Joined Cases C-203/15 & C-698/15, ¶ 107
(E.C.J. 2016), the European Court of Justice held that indiscriminate data retention
undermines proportionality and equality principles, particularly when it disproportionately
affects those engaged in lawful but politically sensitive activities. The reasoning applies
directly to the DSA, which subjects individuals engaged in constitutionally protected
advocacy to heightened risk without cause.

3.6 Linking Article 14 Violation to Articles 19 and 21

3.6.1 Interconnected Nature of Fundamental Rights

The violation of Article 14 here is not isolated but integrally connected to the infringement of
Articles 19(1)(a) and 21. The absence of reasonable classification and procedural safeguards
amplifies the chilling effect on speech (Article 19) and the invasion of informational privacy
(Article 21). As held in Maneka Gandhi, supra, rights in Part III must be read together to
ensure that restrictions meet the combined standards of reasonableness, fairness, and non-
arbitrariness.

3.6.2 Constitutional Consequence

A law that violates Article 14 on grounds of arbitrariness or disproportionate impact cannot
be saved merely because it purports to serve a legitimate aim. Sections 5 and 8 of the DSA, in
their present form, are ultra vires the Constitution and liable to be struck down in entirety, or
at the very least, read down to include strict safeguards.

3.7 Conclusion

By failing the reasonable classification test, embodying manifest arbitrariness, lacking

procedural safeguards, and producing disproportionate burdens on constitutionally protected
groups, Sections 5 and 8 of the DSA offend the very essence of Article 14. When read with
Articles 19 and 21, these provisions cannot survive constitutional scrutiny in a democracy
committed to the rule of law.

STATEMENT OF FACTS

1. The Digital Rights Foundation (hereinafter “Petitioner”) is a registered non-profit

organization dedicated to the protection and promotion of digital freedoms, privacy rights,
and open internet principles in the Republic of Indica. The Petitioner has actively engaged in
public interest litigation to safeguard constitutional liberties in the digital realm.

2. On 15 January 2024, the Parliament of Indica enacted the DigiSamvad Suraksha

Adhiniyam, 2024 (“DSA”), with the stated objective of enhancing national security and
preventing cybercrime. The law came into force on 1 March 2024.

3. The DSA, inter alia, introduced Sections 5 and 8, which mandate blanket retention of
metadata of all digital communications for a period of five years, and empower designated
authorities to access such data without prior judicial authorization. Metadata under the Act
includes information such as the origin, destination, time, duration, and device identifiers of
all electronic communications.

4. The statutory framework places the authorization, retention, and access processes entirely
within the control of an executive oversight committee appointed by the Ministry of Home
Affairs. The law provides no requirement for individualized suspicion, no temporal limits
shorter than five years, and no post-surveillance notification to affected individuals.

5. The Petitioner contends that metadata, though not containing the content of
communications, is highly sensitive and capable of revealing intimate patterns of personal
life, political association, professional engagement, and private conduct of citizens.

6. Soon after the DSA’s enforcement, journalists, political activists, and members of civil
society reported a perceptible chilling effect on their ability to freely communicate,
particularly on sensitive matters involving government accountability and policy critique.
7. The Petitioner submits that Sections 5 and 8 enable indiscriminate and disproportionate
surveillance, affecting the entire population irrespective of any connection to national
security threats, and are thus ultra vires the Constitution of Indica.

8. The Petitioner asserts that the impugned provisions violate:

(a) Article 21, by infringing the right to privacy and informational autonomy;
(b) Article 19(1)(a), by creating a chilling effect on free speech and expression; and
(c) Article 14, by embodying arbitrariness and failing the test of reasonable classification.

9. On 10 April 2024, the Petitioner filed the present writ petition under Article 32 of the
Constitution of Indica before the Hon’ble Supreme Court, seeking a declaration that Sections
5 and 8 of the DSA are unconstitutional and void, or in the alternative, that they be read down
to include adequate procedural safeguards in line with constitutional principles.

10. The Hon’ble Supreme Court has admitted the petition and issued notice to the
Respondents. The matter is now fixed for final hearing.

PRAYER

In light of the facts and circumstances of the present case, and for the reasons set forth in the
foregoing pleadings, it is most respectfully prayed that this Hon’ble Court may be pleased to:

a. Issue an appropriate writ, order, or direction declaring Sections 5 and 8 of the

DigiSamvad Suraksha Adhiniyam, 2024 as unconstitutional, void, and ultra vires the
Constitution of Indica for being violative of Articles 14, 19(1)(a), and 21;

b. In the alternative, read down the impugned provisions to ensure that:

 Retention of metadata is targeted and based on reasonable suspicion linked to

specific threats;
 Access to such data is granted only upon prior judicial authorization;
 Data retention periods are strictly limited to the minimum necessary for legitimate
aims;
 Individuals are notified post facto of surveillance, subject to narrowly tailored
exceptions; and
 Adequate independent oversight mechanisms are instituted.

c. Pass any other order(s) or direction(s) as this Hon’ble Court may deem fit in the interests of
justice, equity, and constitutional governance.

SUMMARY OF ARGUMENTS

I. Sections 5 and 8 of the DSA violate Article 21 of the Constitution by infringing the
fundamental right to privacy and failing the proportionality standard.
The right to privacy, affirmed as a fundamental right in Justice K.S. Puttaswamy v. Union of
India, (2017) 10 SCC 1, encompasses informational self-determination and protection against
arbitrary State intrusion. Metadata, though not the content of communication, can map a
person’s associations, movements, and private life with precision. The blanket retention of
metadata for five years, coupled with warrantless access under Sections 5 and 8 of the DSA,
is a disproportionate restriction on privacy. The impugned provisions lack targeted
application, judicial oversight, and procedural safeguards, thereby failing the proportionality
test and due process requirements under Articles 21 and 14.

II. The impugned provisions create a chilling effect on freedom of speech and
expression guaranteed under Article 19(1)(a), thereby undermining democratic
participation.
Freedom of speech includes the right to receive, communicate, and disseminate information
without undue State interference (Shreya Singhal v. Union of India, (2015) 5 SCC 1).
Continuous metadata retention and warrantless access enable mass surveillance, which deters
individuals from expressing dissent, communicating with journalists, or engaging in political
activity. This “chilling effect” on legitimate speech is recognized in both Indian and
comparative jurisprudence, including NAACP v. Alabama, 357 U.S. 449 (1958). The
restrictions are overbroad, not narrowly tailored to a legitimate aim, and therefore fail the
reasonableness standard under Article 19(2).

III. Sections 5 and 8 violate Article 14 by embodying manifest arbitrariness, lacking

reasonable classification, and disproportionately burdening constitutionally protected
groups.
Article 14 prohibits not only discrimination but also arbitrariness in State action (E.P.
Royappa v. State of Tamil Nadu, (1974) 4 SCC 3). The DSA’s provisions apply
indiscriminately to all citizens, without distinguishing between legitimate security threats and
those engaged in lawful conduct, thus failing the test of intelligible differentia and rational
nexus. The absence of procedural safeguards, coupled with disproportionate impact on
journalists, activists, and minorities, renders the law discriminatory in effect despite facial
neutrality — a defect recognized in Yick Wo v. Hopkins, 118 U.S. 356 (1886).

ISSUES RAISED

1. Whether Sections 5 and 8 of the DigiSamvad Suraksha Adhiniyam, 2024,

infringe the fundamental right to privacy guaranteed under Article 21 of the
Constitution of Indica, and fail the test of proportionality?
2. Whether the impugned provisions violate the freedom of speech and expression
guaranteed under Article 19(1)(a) of the Constitution by creating a chilling effect
on lawful communication and political participation?
3. Whether Sections 5 and 8 of the DSA are violative of Article 14 of the
Constitution for being manifestly arbitrary, lacking reasonable classification,
and producing disproportionate effects on constitutionally protected groups?
STATEMENT OF JURISDICTION

1. The Petitioner has invoked the original jurisdiction of this Hon’ble Court under
Article 32 of the Constitution of Indica, which guarantees the right to move the
Supreme Court for the enforcement of fundamental rights.
2. The present petition challenges the constitutional validity of Sections 5 and 8 of the
DigiSamvad Suraksha Adhiniyam, 2024 (“DSA”) on the grounds that they infringe
the Petitioner’s rights under Articles 14, 19(1)(a), and 21 of the Constitution.
3. This Hon’ble Court, being the guardian of the Constitution and vested with the
power of judicial review, has the authority to adjudicate upon the validity of
legislative provisions that are alleged to contravene fundamental rights, as recognized
in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
4. The issues raised herein pertain directly to the enforcement of fundamental rights of
citizens against the State, and no equally efficacious alternative remedy exists. The
matter is therefore maintainable before this Hon’ble Court under Article 32.

Hence, this Hon’ble Court has the jurisdiction to entertain and adjudicate upon the
present petition.