3rd symbiosis law schhol, hyderabad, national moot … · ~ symbiosis law school, national moot...

~ SYMBIOSIS LAW SCHOOL, NATIONAL MOOT COURT COMPETITION~

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~MEMORANDUM ON BEHALF OF PETITIONER~

3RD SYMBIOSIS LAW SCHHOL, HYDERABAD, NATIONAL MOOT COURT

COMPETITION,2018

BEFORE

HONOURABLE HIGH COURT OF CITY OF JOY

IN THE CASE CONCERNING THE INFRINGEMENT OF RIGHT TO PRIVACY

(PIL UNDER ARTICLE 226 OF THE CONSTITUTION OF NARNIA)

(PIL NO. ___OF 2018)

MR. TRUE LIES……………………..................................................................PETITIONER

V

UNION OF INDIA............................................................................................RESPONDENT -1

SAYPM…..........................................................................................................RESPONDENT - 2

MEMORANDUM ON BEHALF OF PETITIONER

TEAM CODE: T331


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TABLE OF CONTENTS

▪ INDEX OF AUTHORITIES..................................................................................................... ..........3

LIST OF CASES..................................................................................................................................3

STATUTES.........................................................................................................................................4

BOOKS..............................................................................................................................................5

RULES.............................................................................................................................................6

ARTICLES..........................................................................................................................................6

LEGAL DATABASES...........................................................................................................................7

OTHER AUTHORITIES........................................................................................................................7

▪ LIST OF ABBREVIATION..............................................................................................................8

▪ STATEMENT OF JURISDICTION.................................................................................................10

▪ STATEMENT OF FACTS.................................................................................................. ............11

▪ ISSUES RAISED................................................................................................. ............................13

▪ SUMMARY OF ARGUMENTS.......................................................................................................14

▪ ARGUMENTS ADVANCED................................................................................................................16

ISSUE I: Whether the public interest litigation by way of a writ petition in the High

Court of City of Joy is maintainable? …............................................................................16

[A] THAT THE PETITION HAS LOCUS STANDI IN PRESENT CASE....................................................16

[B] THAT THE PETITION HAS BEEN FILED AGAINST THE BREACH OF FUNDAMENTAL RIGHT OF

PRIVACY……………………………………………………………………………………..17

ISSUE II: Whether the data protection provision under the information technology act

is violative of fundamental rights? …………………………….........................................19

[A] THAT THE INFORMATION SOUGHT BY SAYPM FROM ITS CUSTOMER CAN BE REGARDED AS

PRIVATE INFORMATION UNDER RIGHT TO PRIVACY……………………….………….………19

[B] THAT THE PROVISION OF 69 OF IT ACT ARE IN BREACH OF FUNDAMENTAL RIGHT TO

PRIVACY………………………………………………………………………..………….…20


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[C] THAT PRIVATE INFORMATION GIVEN BY THE CONSENT OF THE USER MAY BE USED TO

DERIVE VARIOUS OTHER INFORMATION ABOUT USER FOR WHICH THERE IS NO CONSENT

TAKEN.......................................................................................................................................23

[D] THAT INDIA IS BOUND BY INTERNATIONAL OBLIGATION TO PROTECT THE PRIVACY OF ITS

CITIZEN …………………………………………………………………………………….…24

Issue III: Whether SayPM failed to perform the contractual obligations towards its

customer?...............................................................................................................................25

[A] THAT THE AGREEMENT TO USE THE SERVICES OF SAYPM WAS UNREASONABLE..............25

[B] THAT THERE WAS NOVATION OF CONTRACT AND THE NEW CONTRACT WAS VOIDABLE.. 27

ISSUE IV: Whether the Directions to the Central Investigating Agency to investigate

any nexus between the Government authorities and SayPM resulting in compromise of

any citizen’s personal data is required?.............................................................................28

[A] THAT THERE IS A POSSIBILITY OF NEXUS BETWEEN THE GOVERNMENT AND SAYPM ……29

[B ] THAT THE CASE IS RARE AND INVOLVES NATIONAL INTEREST………………………29

PRAYER......................................................................................................................................32


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INDEX OF AUTHORITIES

▪ LIST OF CASES

A. SUPREME COURT CASES

SE. NO. CASE LAW NAME PAGE

1 ADM Jabalpur v Shivakant Shukla, 1976 AIR 1207

24

2 Anuj Garg v Hotel Association of India, (2008) 3 SCC 1.

23

3 Balmer Lawrie & Co. Ltd. V. Partha Sarathi Sen Roy, (2013)

8 SCC 345 26

4 Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802

16

5 Bihar State Electricity Board v. Green Rubber Industries;

(1990) 1 SCC 731. 27

6 Common Cause, A Registered ... vs Union Of India & Ors,

(2014) 14 SCC 155 12

7 Delhi Architect Service Pvt. Ltd. V State of U.P.,AIR 2012

SC 573(593). 21

8 Dr. N. B. Khare v. State of Delhi, [1950] S.C.R. 519

22

9 District Registrar and Collector, Hyderabad v. Canara bank

AIR 2005 SC 186; (2005) 1 SCC 496. 22

10 Gudalure M.J. Cherian & Ors. V. UOI (1992) 1 SCC 397

30

11 H.R. Basavaraj (dead) by his LRs. & Another vs. Canara

Bank & others; (2010) 12 SCC 458 27

12 K.C Sharma v. Delhi Stock Exchange. (2005) 4 SCC 4.

26

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

17,20,22,23

14 Kumari Shrilekha Vidyarthi v. State of U. P ; AIR 1991 SC

537 26

15 Karmanya Singh Sareen and Anr v. Union of India 2017 SCC

Online SC 578 17

16 LIC of India and Ors. Vs. Consumer Education & Research

center and Ors, (1995) 2 SCC 482 26


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17 Maneka Gandhi AIR 1967 SC 597 (1978) 1 SCC 248.

18,21,22

18 People’s Union for Democratic Rights v. Union Of India AIR

1982 SC 1473 17

19 People'S Union Of Civil Liberties ... vs Union Of India (Uoi)

And Anr AIR 1997 SC 568 18,22

20 Sakiri Vasu v. State of U.P. & Ors. (2008) 2 SCC 409

29

21

Secretary Minor Irrigation & Rural Engineering Services U.P.

and others v. Sahngoo Ram Arya and another AIR 2002 SC

2225

29

22 Sheela Barse v. Union of india(1988) 4 SCC 226

17

23 S.P. Gupta v. Union of India1 1981 (Supp)SCC 87

16

24 Sujatha Ravi Kiran v. State of Kerala & Ors 2016 SCC

OnLine Ker 787 29

25 State Of West Bengal & Ors vs Commtt.For

Protect,Democratic, (2010) 3 SCC 571 29

B. FOREIGN CASES

SE. NO. CASE LAW NAME PAGE

1 Scarf v. Jardine (1882) 7 AC 345;

27

2 Smith v Maryland 442 US 735 (1979) 24

4 Wolfs. v. Colorado (1949) 338 US 25.

24

▪ STATUTES

SE. NO. NAME OF STATUTE

1 The Information Technology Act, 2000,No. 21, Acts of Parliament, 2000

2 The Indian Contract Act, 1872, No. 9, Acts of Parliament, 1872

3

The Delhi Special Police Establishment (DSPE) Act, 1946, No. 25 ,Acts of

Parliament,1946

1 1981 (Supp)SCC 87


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▪ BOOKS

A. INFORMATION TECHNILOGY LAWS

SE. NO. PARTICULARS

1 AMIT VERMA, CYBER CRIMES AND LAW (eds. 2009, Central Law Publication).

2

ANIRUDH RASTOGI, LAW OF INFORMATION TECHNOLOGY AND INTERNET (eds.

2014, Lexis Nexis).

3 APARNA VISHWANATHAN, CYBER LAW INDIAN AND INTERNATIONAL

PERSPECTIVE(eds. 2015, Lexis Nexis).

4

APAR GUPTA, COMMENTARY ON INFORMATION TECHNOLOGY ACT(3rd ed.2015,

Lexis Nexis).

5

NANDAN KAMATH, COMPUTERS INTERNET & E-COMMERCE(4th ed.2009,

Universal Law Publication Co.).

6

J.P.MISHRA, CENTRAL LAW PUBLICATIONS, AN INTRODUCTION TO CYBER LAW (

2nd ed.2014).

7 KARNIKA SETH AND JUSTICE ALTAMAS KABIR, COMPUTERS INTERNET AND NEW

TECHNOLOGY LAWS(2nd ed.2013, Lexis Nexis).

8 TALAT FATIMA, CYBER CRIMES(2nd ed.2016, Eastern Book company).

9 AMIT VERMA, CYBER CRIMES AND LAW (eds. 2009, Central Law Publication).

10

ANIRUDH RASTOGI, LAW OF INFORMATION TECHNOLOGY AND INTERNET(eds.

2014, Lexis Nexis).

11 APARNA VISHWANATHAN, CYBER LAW INDIAN AND INTERNATIONAL

PERSPECTIVE(eds. 2015, Lexis Nexis).

12

APAR GUPTA, COMMENTARY ON INFORMATION TECHNOLOGY ACT(3rd ed.2015,

Lexis Nexis).

B. CONTRACT ACT

SE. NO. PARTICULARS

1

SACHIN RASTOGI, INSIGHTS INTO E- CONTRACTS IN INDIA(eds.2013, Lexis

Nexis).

2 ROBERT L. SNOW, TECHNOLOGY AND LAW ENFORCEMENT(eds. 2007, Pentagon

Press).

3 POLLOCK & MULLA, THE INDIAN CONTRACT AND SPECIFIC RELIEF ACTS (Nilima

Bhadbhade 14th ed.2013, Lexis Nexis).


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4

R K SINGH, LAW RELATING TO ELECTRONIC CONTRACTS(2nd ed.2016, Lexis

Nexis).

C. CONSTITUTIONAL LAW & INTERPRETATION OF STATUTES

SE. NO. PARTICULARS

1 4, DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF India (ed. 9,

Lexis Nexis)

2 JUSTICE GP SINGH, INTERPRETATION OF STATUTES, (11th ed., Lexis Nexis).

3 M.P. JAIN, INDIAN CONSTITUTIONAL LAW (ed. 7, Lexis Nexis)

D. PUBLIC INTEREST LITIGATON

SE. NO. PARTICULARS

1

SAMPAT JAIN, PUBLIC INTEREST LITIGATION (eds. 2003, Deep and Deep

Publication).

2

B.L. WADEHRA, PUBLIC INTEREST LITIGATION (3rd 2012, universal Law

Publication).

▪ RULES

SE. NO. PARTICULARS

1 The Information Technology (Reasonable Security Practices and Procedures

and Sensitive Personal Data or Information) Rules, 2011

▪ ARTICLES

SE. NO. PARTICULARS

1 Francois Nawrot, Katarzyna Syska and Przemyslaw Switalski, “Horizontal

application of fundamental rights (May 2010).

2 Yvonne McDermott, “Conceptualizing the right to data protection in an era of

Big Data”, (2017).


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▪ LEGAL DATABASES

SE. NO. PARTICULARS

1 HEINONLINE

2 JSTOR

3 LEXIS NEXIS

4 MANUPATRA

5 SCC ONLINE

6 WESTLAW

▪ OTHER AUTHORITIES

SE. NO. PARTICULARS

1 Bryan A. Garner, Black’s Law Dictionary 1700 (9th ed. 2009).

2 St. Paul, Minn , Black's Law Dictionary, (ed. 2).

3 Halsbury’s Laws of England


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LIST OF ABBREVIATIONS

& AND

§ Section

§§ Sections

¶ Paragraph

¶¶ Paragraphs

AIR All India Reporter

Anr. Another

Art. Article

Assn. Association

Ed. Edition

EU European Union

HC High Court

Hon’ble Honourable

Ltd. Limited

Mad. Madras

MANU Manupatra

No. Number

Ors. Others

Pvt. Private

SC Supreme Court

SCC Supreme Court Cases

UDHR Universal Declaration of Human Rights


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UOI Union of India

US United States

v. Versus


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STATEMENT OF JURISDICTION

The petitioner has approached the Hon’ble High Court of City of Joy under a Public Interest

Litigation by way of writ petition under Article 226 of the Constitution of Narnia.

“226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers,

throughout the territories in relation to which it exercise jurisdiction, to issue to any

person or authority, including in appropriate cases, any Government, within those

territories directions, orders or writs, including writs in the nature of habeas corpus,

mandamus, prohibitions, quo warranto and certiorari, or any of them, for the

enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any

Government, authority or person may also be exercised by any High Court exercising

jurisdiction in relation to the territories within which the cause of action, wholly or in

part, arises for the exercise of such power, notwithstanding that the seat of such

Government or authority or the residence of such person is not within those

territories.

(3) Where any party against whom an interim order, whether by way of injunction or

stay or in any other manner, is made on, or in any proceedings relating to, a petition

under clause ( 1 ), without

(a) furnishing to such party copies of such petition and all documents in support of

the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the

High Court for the vacation of such order and furnishes a copy of such application

to the party in whose favour such order has been made or the counsel of such

party, the High Court shall dispose of the application within a period of two weeks

from the date on which it is received or from the date on which the copy of such

application is so furnished, whichever is later, or where the High Court is closed

on the last day of that period, before the expiry of the next day afterwards on

which the High Court is open; and if the application is not so disposed of, the

interim order shall, on the expiry of that period, or, as the case may be, the expiry

of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of

the power conferred on the Supreme court by clause ( 2 ) of Article 32.”

https://indiankanoon.org/doc/452476/







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STATEMENT OF FACTS

BACKGROUND: Republic of Narnia (“Narnia”) is a democratic republic having a stable

government in power after long. SayPM is a Narnian electronic payment system and digital

wallet company founded by Mr. Money Bag in January 2009 and is based out of the City of

Joy in Narnia. During demonetization in November 2016, SayPM‟s business increased

manifold as e-transactions increased. During the said time, SayPM advertised heavily and its

billboards and print adverts contained the Prime Minister‟s photograph and read “SayPM

congratulates the Prime Minister of Narnia for taking the boldest financial

decision in the history of independent Narnia” The usage of the Prime Minister‟s photograph

for such advertisements was widely criticized and triggered a political debate.

BUSINESS OF SAYPM: -To run its business, SayPM collects various sensitive data from its

customers, such as their bank account, credit and debit card details and uses the same to allow

the customers to access its e-payment services. Further, SayPM tracks customers‟ usage

pattern to make targeted advertisements to them. Customers of SayPM need to agree to a

lengthy consent form before they are allowed to use SayPM‟s services. Very often,

consumers do not understand the terms and conditions in the consent form and thus,

mechanically press the “I Agree” button to use the services. With more than 10,00,000

registered merchants and more than 1,00,00,000 users of SayPM across the country, SayPM

is now a diversified e-commerce company, becoming indispensable for Narnia‟s shoppers. It

has become akin to a necessary public utility in Narnia. Further, while demonetization

brought down Narnia’s GDP by 2.75%, SayPM witnessed a 1000% increase in overall usage

of its services and 1500% growth in the value of money added to SayPM’s accounts.

INVESTIGATION BY ANACONDAPOLE:AnacondaPole conducted an investigation titled

Operation Swachch Narnia and alleged that Mrs. Money Bag, who is a director of SayPM,

has allegedly claimed, during a drunken conversation that the e-wallet company had received

a call from the Prime Minister’s Office (“PMO”) demanding some user data, right before the

General Elections in Narnia. AnacondaPole has released the transcripts and video clips of

Mrs. Money Bag on its social media profiles in Legbook and MeTube. AnacondaPole‟s star

journalist Mr. Narad Lal posed as a representative of a fictitious organisation by the name of

Jai Narnia Samiti, and met some of SayPM‟s top executives. Mrs. Money Bag, during the

meeting, revealed that they had some association with the ruling party of Narnia. Mrs. Money


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Bag said in the sting video: “By the way, let me show you one more thing … this is our

SayPM App.Nowadays, our Prime Minister is right here. He has written a book Chai Time

Tales. We are … we are actually selling this book on our platform... Also, for the upcoming

elections, they wanted our user data regarding the sale and popularity of the bool and some

other information”.

CLARIFICATION BY SAYPM:-After AnacondaPole released the video and transcript, SayPM,

on its official social media profile, posted that “There is absolutely NO TRUTH in the

sensational headlines of a video doing rounds on social media. Our user data is 100% secure

and has never been shared with anyone, except law enforcement agencies on request. Thank

you for your continued support.” SayPM, however, did not reveal the name of “law

enforcement agencies” with whom the company had shared its user data, if any.

MODIFICATION IN THE CONTRACT:-SayPM revised its privacy policy and included a new

clause stating, “I understand and permit SayPM, at its sole discretion, to share my data with

any third party for any purpose linked to the business of SayPM.” SayPM ensured that users

who did not consent to the said new clause, were blocked from using their application.

SayPM also stated that the money of the users in the wallet was not completely blocked,

rather the users have the option to transfer the amount in their wallet back to their own bank

account linked with the application by paying a minor fee, if their wallet is blocked.

WRIT BEFORE HIGH COURT:-Mr. True Lies, a privacy activist, filed a public interest

litigation in the High Court of City of Joy alleging that “right to privacy” of the citizens of

Narnia had been violated and demanded that an independent investigating agency be

appointed that would investigate into the matter of SayPM sharing the personal information

of users.


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ISSUES RAISED

~ ISSUE I ~

Whether the Public Interest Litigation by way of a writ petition in the High Court of

City of Joy is maintainable?

~ ISSUE II ~

Whether the data protection provisions under Information Technology Act is violative

of Fundamental rights?

~ ISSUE III ~

Whether SayPM failed to perform the contractual obligations towards its customers?

~ ISSUE IV ~

Whether the Directions to the Central Investigating Agency to investigate any nexus

between the Government authorities and SayPM resulting in compromise of any

citizen’s personal data is required?


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SUMMARY OF ARGUMENTS

~ISSUE I ~

Whether the Public Interest Litigation by way of a writ petition in the High Court of

City of Joy is maintainable?

It is humbly submitted before Hon’ble High Court of City of Joy that the PIL by way of writ

petition is maintainable in the high court of City of Joy. That due to weak laws of data

protection under the Information Technology Act, there has been a breach of fundamental

right to privacy of a large section of Society by the Government.

~ ISSUE II ~

Whether the data protection provisions under Information Technology Act is violative

of Fundamental rights?

It is humbly submitted before Hon’ble High Court of City of Joy that recently right to privacy

has been added to the list of article 21 but the provisions of the IT Act have been given

arbitrary powers to the government and authorities infringing the fundamental rights.

Therefore it is humbly stated that procedural safeguards should be framed to regulate the

unfettered powers of the government.

~ ISSUE III ~

Whether SayPM failed to perform the contractual obligations towards its customers?

It is humbly submitted before Hon’ble High Court of City of Joy that SayPM failed to

perform the contractual obligation. The agreement to use the services of SayPM was

unreasonable as the users were deprived of equal bargaining power. Also, that the

government was obligated to check the reasonability of the contract of a company of such

public nature. The agreement was not only unreasonable but also an invalid novation was

brought to the contract. The new contract as the result of novation was voidable to those who

were accepting the terms of the company as it was detaining the property of the users.


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~ ISSUE IV ~

Whether the Directions to the Central Investigating Agency to investigate any nexus

between the Government authorities and SayPM resulting in compromise of any

citizen’s personal data is required?

It is humbly submitted before Hon’ble High Court of City of Joy that the present case

requires an investigation by Central bureau of investigation. Although no hard and fast rules

have been laid to determine whether a case is to be directed for CBI investigation,the

supreme courts in various cases has said that when a case is of national importance, there is a

prima facie involvement of a person in the crime and to prevent infringement of fundamental

rights a case must be transferred to CBI for investigation.


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ARGUMENTS ADVANCED

ISSUE I : WHETHER THE PUBLIC INTEREST LITIGATION BY WAY OF A WRIT PETITION IN

THE HIGH COURT OF CITY OF JOY IS MAINTAINABLE?

¶I.1. It is humbly submitted before Hon’ble High Court of City of Joy that the present public

interest litigation is maintainable under article 226 of the Constitution of India. The petitioner

deals with this issue in two parts, [A] That the petitioner has locus standi in present case

[B]That the petition has been filed against the breach of fundamental right of privacy.

[A] THAT THE PETITIONER HAS LOCUS STANDI IN PRESENT CASE

¶I.2. It is humbly submitted that in the case of S.P. Gupta v. Union of India2 , People’s Union

for Democratic Rights v. Union of India3 and Bandhua Mukti Morcha v. Union of India4, the

supreme court listed the essentials that are required to be fulfilled in a case of public interest

litigation i.e. any member of the public, acting bonafide and having sufficient interest can

maintain an action for redressal of public wrong or public injury. Such action can be brought

by individuals, groups, voluntary agencies, etc and the test for determining the standing in

individual interest cannot be strictly applied to public interest.

¶I.3.As mentioned in the factsheet, the Republic of Narnia faced demonetization in

November, 2016. During demonetization, e-transactions increased manifold. SayPM being an

electronic payment system and digital wallet company made use of photographs of the Prime

Minister of Narnia for its billboard advertisement. Due to which SayPM witnessed a 1000%

increase in overall usage of its services and 1500% growth in the value of money added to

SayPM’s accounts with a number of 1000000 registeres merchants and more than

1,00,00,000 users of SayPM across the country. The popularity and usage of SayPM can be

seen by the statement that it became indispensable for Narnia’s Shoppers and a necessary

public utility in Narnia. It occupied the largest chunk in the relevant market. The factsheet

demonstrate the wide userbase of SayPM. Therefore the breach of privacy caused by the

SayPM is affecting the huge user base and thus the public at large is being affected. In a case

before the supreme court, the same matter came up against Whatsapp and facebook where a

2 1981 (Supp)SCC 87 3 (1982) 3 SCC 235 4 AIR 1984 SC 802


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PIL was filed on behalf of the large number of users of Facebook and WhatsApp which was

allowed by the court.5

¶I.4.The scope of affected party in public interest litigation is expanded for liberal

interpretation where owing to the poverty, illiteracy and ignorance of the actually affected

person, another person having bonafide interest can file a writ petition.6 the intention of a

public interest litigation is to vindicate and effectuate public interest by prevention of

violation of right whether be constitutional or statutory of a large segment of society.7 The

present case falls under the same situation where the fundamental right of privacy is breached

by the government of a considerable large section of society who is still ignorant of such a

breach done by its own government.

[B] THAT THE PETITION HAS BEEN FILED AGAINST THE BREACH OF FUNDAMENTAL RIGHT

OF PRIVACY.

¶I.5. It is humble submitted that in the present case, the petition has been moved by Mr. True

Lies, a privacy activist against the government of india on the breach of fundamental right of

privacy enshrined under article 21 i.e. right to life and strongly upheld in the recent

judgement by the Supreme court of India.8

¶I.6. It is humbly submitted that the provisions of information technology act are not in

concurrence to the fundamental right given under article 21 of the constitution i.e. right to

life. The petition points out those provisions of the act where the privacy of an individual has

been heavily compromised. Section 69of the information technology act gives unfettered

power to controller. On the satisfaction of the controller the government of India or any of its

agencies can intercept any information transmitted through any computer resource under

some circumstances. Sub clause (2) of the section clearly obliges the in charge of the

computer to assist the agency to decrypt the information, failing to which Sub clause (3)

heavily penalizes the person. While the provision takes care of the penalties imposed, the

entire act does not anywhere lay down the guidelines or safeguards that should be performed

by the government while in possession of the data of the public. The lack of such guidelines

and safeguards leads to the discretionary power of the controller who can enable the

government to intercept any form of data be it in the nature of sensitive personal data.

5 Karmanya Singh Sareen and Anr v. Union of India, 2017 SCC OnLine SC 578. 6 People’s Union for Democratic Rights v. Union Of India, AIR 1982 SC 1473. 7 Sheela Barse v. Union of India, (1988) 4 SCC 226. 8 Puttaswamy v Union of India, (2017) 10 SCC 1.


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¶I.7. In the case of People’s Union Of Civil Liberties ... vs Union Of India And Anr9 the

question regarding phone tapping instances by the government agencies came forward. The

provision of phone tapping was similar to the instance of interception of information in the

present case because there was no procedural backing to ensure fair and reasonable exercise

of power. The Hon’ble supreme court considered the situation violative to the right of privacy

and issued some guidelines regarding the intercepted material. The words of the judgement

are :

“The above analysis of Section 5(2) of the Act shows that so far the power to

intercept messages/conversations is concerned the Section clearly lays-down

the situations/conditions under which it can be exercised. But the substantive

law as laid down in Section 5(2) of the Act must have procedural backing so

that the exercise of power is fair and reasonable. The said procedure itself

must be just, fair and reasonable. It has been settled by this Court in Maneka

Gandhi v. Union of India10 , that "procedure which deals with the modalities

of regulating, restricting or even rejecting a fundamental right falling

within Article 21 has to be fair, not foolish, carefully designed to effectuate,

not to subvert, the substantive right itself". Thus, understood, "procedure"

must rule out anything arbitrary, freakish or bizarre. A valuable constitutional

right can be canalised only by civilised processes".”

¶I.8. In the present case, Section 69 of Information technology act lays down the instances

where the data of any computer resource can be intercepted by the government but it didn’t

lay down any procedure that has to be followed nor any safeguards that need to be fulfilled

after getting the data. The section gives unfettered power to the government who can get the

data anytime it wish to and can keep it with itself for any amount of time. This lack in

procedural safeguards has left our personal data vulnerable to any outside access infringing

our fundamental right to privacy.

9 AIR 1997 SC 568. 10 1978 AIR 597.







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ISSUE II : WHETHER THE DATA PROTECTION PROVISIONS UNDER INFORMATION

TECHNOLOGY ACT IS VIOLATIVE OF FUNDAMENTAL RIGHTS?

¶II.1 It is humbly submitted before Hon’ble High Court of City of Joy that the sharing of

data by the respondent SayPM to the third party has resulted in the breach of fundamental

Right to privacy. As a result of the demonetization by the central government SayPM has

become akin to a necessary public utility and collects various data from its customers, such as

their bank account, credit and debit card details and uses the same to allow the customers to

access its e-payment services. Further, SayPM tracks customers‟ usage pattern to make

targeted advertisements to them. In the sting operation done by AnacondaPole, Mrs. Money

Bag revealed that prime minster “has written a book Chai Time Tales. We are … we are

actually selling this book on our platform... Also, for the upcoming elections, they wanted our

user data regarding the sale and popularity of the book and some other information”. As a

reaction to this SayPM, on its official social media profile, posted that there is no truth in the

video and that their user data is 100% secure and has only been shared with law enforcement

agencies on their request.

[A] THAT THE INFORMATION SOUGHT BY SAYPM FROM ITS CUSTOMER AMOUNTS TO

PRIVATE INFORMATION UNDER ARTICLE 21

¶II.2. It is humbly submitted that under the Rule 3 of The Information Technology

(Reasonable Security Practices and Procedures and Sensitive Personal Data or Information)

Rules, 2011 or the ‘SPDI Rules’ defines the Sensitive personal data or information of a

person means such personal information which consists of information relating to;—

(i) XX…

(ii) financial information such as Bank account or credit card or debit card or other payment

instrument details ;

(iii)XX….

(iv) XX….

(v)XX….

(vi) XX….

(vii) any detail relating to the above clauses as provided to body corporate for providing

service; and

(viii) any of the information received under above clauses by body corporate for processing,

stored or processed under lawful contract or otherwise:

Provided that, any information that is freely available or accessible in public domain or

furnished under the Right to Information Act, 2005 or any other law for the time being in


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force shall not be regarded as sensitive personal data or information for the purposes of these

rules.

.

¶II.3. Moreover in the recent judgment of K.S. Puttaswamy v. union of India11 a bench of

nine judges pronounced the right to privacy as the fundamental right. In its judgment the

court defined eight types of privacies and one of them is Informational Privacy :-“An interest

in preventing information about the self from being dissemination, and controlling the extent

of access to the information.”

[B] THAT THE PROVISIONS OF SECTIONS 69 OF THE IT ARE IN BREACH OF FUNDAMENTAL

RIGHTS TO PRIVACY

¶II.4. It is humbly submitted that Section 69 which is an exception to the general rule of

maintenance of privacy and secrecy of the information, states that where the Government is

satisfied that it is necessary in the interest of:

• the sovereignty or integrity of India,

• defense of India,

• security of the State,

• friendly relations with foreign States or

• public order or

• for preventing incitement to the commission of any cognizable offence relating

to above or

• for investigation of any offence,

¶II.5. It may by order, direct any agency of the appropriate Government to intercept, monitor

or decrypt or cause to be intercepted or monitored or decrypted any information generated,

transmitted, received or stored in any computer resource. This section empowers the

Government to intercept, monitor or decrypt any information including information of

personal nature in any computer resource. Where the information is such that it ought to be

divulged in public interest, the Government may require disclosure of such information.

Information relating to anti-national activities which are against national security, breaches

the law or statutory duty or any fraud may come under this category.

¶II.6. In a Historic Judgment in the case of K.S. Puttaswamy v Union of India,12 a bench of 9

judges unanimously held the right to privacy as fundamental rights. Article 21 which

provides the right to life and personal liberty itself provides the limitation that it can be taken

away only through “procedure established by law”. The word law which figures in Article 21

11 (2017) 10 SCC 1. 12 Id. at 257.


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means a validly enacted law and in order to be valid law it must be just, fair and

reasonable.13In the case of Maneka Gandhi vs Union of India Case 14 the court said that the

procedure in Article 21 must be right and just and fair and not arbitrary, fanciful or

oppressive, otherwise, it would be no procedure at all and the requirement of Art 21 would

not be satisfied”. Justice Chandrachud in the Puttaswamy case15 held that these three

requirements apply to all restraints on privacy (not just informational privacy).They emanate

from the procedural and content-based mandate of Article 21.The first requirement that there

must be a law in existence to justify an encroachment on privacy is an express requirement of

Article 21. For, no person can be deprived of his life or personal liberty except in accordance

with the procedure established by law. The existence of law is an essential requirement.

Second, the requirement of a need, in terms of a legitimate state aim, ensures that the nature

and content of the law which imposes the restriction falls within the zone of reasonableness

mandated by Article 14, which is a guarantee against arbitrary state action. The pursuit of a

legitimate state aim ensures that the law does not suffer from manifest arbitrariness. The third

requirement ensures that the means which are adopted by the legislature are proportional to

the object and needs sought to be fulfilled by the law. Proportionality is an essential facet of

the guarantee against arbitrary state action because it ensures that the nature and quality of

the encroachment on the right is not disproportionate to the purpose of the law.

¶II.7. The concern provision 69 of the IT Act, 2000 is a perfect example of where a law is

formed which freely allows the government to breach the fundamental rights of the people

but it suffers from manifest arbitrariness since it gives unfettered power to government to

blatantly breach the fundamental right in the name of national security, foreign relations etc.

Moreover the power given under the concerned provision to encroachment upon the

fundamental right to privacy is disproportionate to the purpose of the law. Since the purpose

of the provision is to intercept the individual privacy in order to protect the larger social

interest but in the absence of proper safeguard to keep a check, there is no mechanism to

ensure that the data intercept by government is not used for any other purpose besides what is

the intended by law and the privacy of the citizens flagrantly sacrificed without their

knowledge.

13 Delhi Architect Service Pvt Ltd. V State of U.P.,AIR 2012 SC 573(593). 14 AIR 1967 SC 597 : (1978) 1 SCC 248. 15 supra note 1, at 254.


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¶II.8. In the light of the global concern and the international standards for the data protection

the provisions of Section 69 gives unfettered power to the government since it has been

accepted by SayPM that they have shared the data with some law enforcement agency but

there are no procedural safeguard so as to make sure that the data is been used for the purpose

that has been mentioned in the section. Moreover even if we do not take into regard the

validity of the sting operation then also, it can be concluded under the current set of rules that

any data can be easily shared with the government since prior permission of the court before

the data interception is not required to check the validity of the ground. Moreover the Act

levies criminal liability on corporate for not sharing the data. Since all the process is limited

between the government and the corporate therefore it can never be known whether any

interception has ever happened until and unless it is brought to light by some other methods

like sting operation as in the present case.“While the reasonableness of the restrictions has to

be considered with regard to the exercise of the right, it does not necessarily exclude from the

consideration of the Court the question of reasonableness of the procedural part of the law16.

In Maneka Gandhi v. Union of India,17 the court held that "procedure which deals with the

modalities of regulating, restricting or even rejecting a fundamental right falling within

Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the

substantive right itself".

¶II.9. The facts of the present case are similar to the case of PULC v Union of India18where

by the constitutional validity of the Section 5(2) of the Indian Telegraph Act, 1885 on the

grounds that it gave indiscriminate telephone-tapping to the government without any

procedural safeguards to rule out arbitrariness. The court held “Procedure which deals with

the modalities of regulating, restricting or even rejecting a fundamental right falling within

Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the

substantive right itself.” A valuable constitutional right can be canalised only by civilized

processes".

¶II.10. District Registrar and Collector, Hyderabad v. Canara bank19 the apex court laid

down an effectiveness test to determine whether the state can access banking record and thus

intrude into the privacy of a banking customer. According to the court, although seizure of a

bank account may be justified, the same has to be supported by some statutory provisions and

16 Dr. N. B. Khare v. State of Delhi, [1950] S.C.R. 519 17 supra note 4. 18 AIR 1997 SC 568.

19 AIR 2005 SC 186; (2005) 1 SCC 496.


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the procedure for effecting out such seizure has to be fair and reasonable. The Court found

that such reasonable procedures were missing in the amendment to section 73 of the Indian

Stamp Act. In the absence of a reasonable procedure, the amendment to section 73 was held

to be ultra vires to the constitution.

[C] THAT PRIVATE INFORMATION GIVEN BY THE CONSENT OF THE USER MAY BE USED TO

DERIVE VARIOUS OTHER INFORMATION ABOUT USER FOR WHICH THERE IS NO CONSENT

TAKEN

¶II.11. It is humbly submitted that the court in the Puttaswamy case discussed the scope of

information that any kind of digital data contains. Users of wearable devices and social media

networks may not conceive of themselves as having volunteered data but their activities of

use and engagement result in the generation of vast amounts of data about individual

lifestyles, choices and preferences.20 People access the internet each day of their lives.21 Yet

every transaction of an individual user and every site that she visits, leaves electronic tracks

generally22 The rise in the so-called ‘quantified self’, or the self-tracking of biological,

environmental, physical, or behavioral information through tracking devices, Internet-of-

things devices, social network data and other means may result in information being gathered

not just about the individual user, but about people around them as well.23 These electronic

tracks contain powerful means of information which provide knowledge of the sort of person

that the user is and her interests thus,24 a solely consent-based model does not entirely ensure

the protection of one’s data, especially when data collected for one purpose can be

repurposed for another.”25 But, the data which the state has collected has to be utilized for

legitimate purposes of the state and ought not to be utilized unauthorized for extraneous

purposes.26 The court in Anuj Garg v Hotel Association of India27 while considering the

validity on the section 30 of the Punjab excise Act held that “It is a reasonable proposition

20 Supra note1, at 151. 21 Supra note1, at 247. 22 Francois Nawrot, Katarzyna Syska and Przemyslaw Switalski, “Horizontal application of fundamental

rights – Right to privacy on the internet”, 9th Annual European Constitutionalism Seminar (May 2010),

University of Warsaw, available at http://en.zpc.wpia.uw.edu.pl/wpcontent/

uploads/2010/04/9_Horizontal_Application_of_Fundamental_Rights.pdf 23 Yvonne McDermott, “Conceptualizing the right to data protection in an era of Big Data”, Big Data and

Society

(2017), at page 4 24 Id. 25 Supra note 13 26 Supra note1,at 256. 27 (2008) 3 SCC 1.


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that that the measures to safeguard such a guarantee of autonomy should not be so strong that

the essence of the guarantee is lost. State protection must not translate into censorship”. In

case of ADM Jabalpur v Shivakant Shukla28 Justice Beg pointed that the fundamental

rights should be only be encroached as the last resort and which should remain within

permissible limit “The whole object of guaranteed fundamental rights is to make those basic

aspects of human freedom, embodied in fundamental rights, more secure than others not so

selected. In thus recognizing and declaring certain basic aspects of rights as fundamental by

the Constitution of the country, the purpose was to protect them against undue encroachments

upon them by the legislative, or executive, and, sometimes even judicial (e.g. Article 20)

organs of the State. The encroachment must remain within permissible limits and must take

place only in prescribed modes. The intention could never be to preserve something

concurrently in the field of natural law or common law. It was to exclude all other control or

to make the Constitution the sole repository of ultimate control over those aspects of human

freedom which were guaranteed there.” Smith v Maryland29The prospect of unregulated

governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit

to hide.

¶II.12. Frankfurter, J. observed in Wolfs. Colorado30: The security of one's privacy against

arbitrary intrusion by the police is basic to a free society. It is therefore implicit in 'the

concept of ordered liberty' and as such enforceable against the States through the Due Process

Clause. The knock at the door, whether by day or by night, as a prelude to a search without

authority of law but solely on the authority of the police, did not need the commentary of

recent history to be condemned as inconsistent with the conception of human rights enshrined

in the history and the basic constitutional documents of English-speaking peoples We have

no hesitation in saying that were a State affirmatively to sanction such police incursion into

privacy it would run counter to the guaranty of the fourteenth Amendment.

[D]THAT INDIA IS BOUND BY INTERNATIONAL OBLIGATION TO PROTECT THE PRIVACY OF

ITS CITIZEN

¶II.13. It is humbly submitted that India is a signatory to the International Covenant on Civil

and Political Rights,31 1966. Article 17 of the said covenant is as under: Article 17 –

28 1976 AIR 1207 29 442 US 735 (1979) 30 (1949) 338 US 25. 31 ( ICCPR) art 17, March 23, 1976, 999 U.N.T.S.10.


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1. No one shall be subject to arbitrary or unlawful interference with his privacy, family,

human or correspondence, nor to lawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Article 12 of the Universal Declaration of Human Rights,32 1948 is almost in similar terms:

No one shall be subjected to arbitrary interference with his privacy, family, home or

correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the

protection of the law against such interference or attacks.

¶II.14. In the pursuance to the international obligation it becomes the responsibility of India

not only to protect its citizen from unlawful breach of their privacy by any person or

organization but also at the same time it should also avoid itself from violating the privacy of

its citizens and should inculcate a respect for the privacy of its people, which if absolutely

necessary in the larger social interest can be breached but this should be done as the last

option under due procedure of law and with the assurance of utmost safety and protect them

from been used for any other purpose than what is within the proportionate purpose of the

law.

ISSUE III: WHETHER SAYPM FAILED TO PERFORM THE CONTRACTUAL OBLIGATIONS

TOWARDS ITS CUSTOMER?

¶III.1. It is humbly submitted before Hon’ble High Court of City of Joy that the SayPM

failed to perform the contractual obligations towards the customers. The petitioner deals with

this issue in two parts, [A.] That the Agreement to use the services of SayPM was

Unreasonable. [B.]That there was a Novation of Contract and the new contract was Voidable.

[A] THAT THE AGREEMENT TO USE THE SERVICES OF SAYPM WAS UNREASONABLE.

¶III.2. It is humbly submitted that the SayPM has a Standard form of contract as the

customers need to agree to a lengthy consent form before using the services through pressing

mechanically the “I Agree” button33.

¶III.3. The settled law is that if a contract or a clause in a contract is found unreasonable or

unfair or irrational one must look to the relative bargaining power of the contracting parties.

In dotted line contracts there would be no occasion for a weaker party to bargain or to assume

32 G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) 33 Moot Proposition Paragraph 3.


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to have equal bargaining power. He has the option to either accept or leave the services so

offered, or goods in terms of the dotted line contract. His option would be either to accept the

unreasonable or unfair terms or forego the service forever. With a view to have the services

of the goods, the party enters into a contract with unreasonable or unfair terms contained

therein and he would be left with no option but to sign the contract34. The contract of SayPM

is unreasonable on the sole basis that the customers are not having equal bargaining power.

They have to either accept or deny the services. They even changed the privacy policy

without taking customers consent35. The Unfair and unreasonable contracts or an unfair or

unreasonable clause, entered into by the parties who do not enjoy equal bargaining power are

hit by Section 23 of the Contract Act and are against public policy and should be struck

down36. This is because the consent or consensus ad idem as regards to the weaker party

maybe entirely absent. Thus, existence of equal bargaining power between parties becomes

largely an illusion37 which has been in this case. The consent of the customers who are not at

equal bargaining power is entirely absent as they do not have the option to bargain with

SayPM.

¶III.4. It is further stated that the private parties are concerned only with their personal

interest but the public authority are expected to act for public good and in public interest. The

impact of every action is also on public interest. It imposes public law obligation and impress

with that character, the contracts made by the State or its instrumentality. However, to the

extent, challenge is made on the ground of violation of Article 14 by alleging that the

impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the

domain of contractual obligations would not relieve the State of its obligation to comply with

the basic requirements of Article 14. To this extent, the obligation is of a public character

invariably in every case irrespective of there being any other right or obligation in addition

thereto. An additional contractual obligation cannot divest the claimant of the guarantee

under Article 14 of non-arbitrariness at the hands of the State in any of its actions38". The

Government was also responsible in the present case to see whether the private companies are

keeping in mind the interest of public or not. SayPM being a service provider of such a nature

that it became akin to a necessary public utility in Narnia39. Therefore, it is the duty of the

34 LIC of India and Ors. Vs. Consumer Education & Research center and Ors, (1995) 2 SCC 482 35 Moot Proposition Paragraph 10. 36 Balmer Lawrie & Co. Ltd. V. Partha Sarathi Sen Roy, (2013) 8 SCC 345 37 K.C Sharma v. Delhi Stock Exchange. (2005) 4 SCC 4. 38 Kumari Shrilekha Vidyarthi v. State of U. P; AIR 1991 SC 537 39 Moot Proposition Paragraph 8.


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Public authorities to check the contract of such public nature complies with the

reasonableness or is opposing to public policy at large.

[B] THAT THERE WAS A NOVATION OF CONTRACT AND THE NEW CONTRACT WAS

VOIDABLE.

¶III.5. It is humbly submitted that according to section 62 of the Indian contract Act, 1872, if

the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the

original contract need not be performed. The novation of a contract can only take place with

the consent of the Parties. It is stated that the Section 62 gives Statutory form to common law

principle of novation. It is the substitution of a contract by a new one only through the

consent of both the parties to the same. Such consent maybe expressed as in written

agreements or implied through their actions or conduct40. If a concluded contract is

terminated in a bonafide manner, it may amount to breach of contract and certain

consequences may follow thereupon41. SayPM has terminated the old concluded contract for

a new one without consent of the parties.

¶III.6. It was defined thus by the House of Lords, that there being a contract in existence,

some new contract substituted for it, either between the same parties or between the different

parties, the consideration being the discharge of old contract. Also, the Alteration or

Variation in the terms of a contract under section 62 of the act implies that both have

voluntarily agreed to change in the terms of the agreement42. The only way in which it is

possible to transfer contractual duties to a third party is by the process of novation, which

requires the consent of the other party to the contract. In fact, novation really amounts to the

extinction of the old obligation, and the creation of a new one, rather than to the transfer of

the obligation from one person to another. The legal maxim that ‘novation non presummit’

enunciates whether a novation needs to be in writing.

¶III.7. The old contract was existing as the customers consented to use the services on the

terms of the contract. SayPM changed the policy without taking the consent of the Parties and

the action of it blocking the accounts of the customers who did not consent to the new

policy43. The action of them ensuring the users to consent to the new terms was implied that

the contract was novated without taking consent of the customers and also that the customers

40 H.R. Basavaraj (dead) by his LRs. & another vs. Canara Bank & others; (2010) 12 SCC 458 41 Bihar State Electricity Board v. Green Rubber Industries; (1990) 1 SCC 731. 42 Scarf v. Jardine (1882) 7 AC 345; referred in H.R. Basavaraj (dead) by his LRs. & another vs. Canara Bank &

others (2010) 12 SCC 458 43 Moot Proposition Paragraph 10.


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were not having equal bargaining power. Novation has to be expressed in writing by both the

parties. The company did not take into consideration the consent of the parties and

misutilised the standard form of contract.

¶III.8. The new contract was not only unreasonable based on the bargaining powers of the

parties but also was voidable. The new contract was signed by the customers under

Coercion44 as per Section 15 of the Indian Contract Act, 1872 by the SayPM. The property

of the customers, i.e. the money in their wallets were blocked from being transferred unless

the customers agreed to the new terms of the contract or had to pay a fee to get their money

back45. The company SayPM was detaining the property of the customers to force them to

accept the Novated terms of the contract. Thus, the new policy or new contract brought by the

SayPM was Voidable due to it being Unreasonable.

¶III.9. Therefore, SayPM failed to perform the contractual obligations towards its customers.

The contract of SayPM was unreasonable on the base of Unequal bargaining power of the

customers. The new terms related to privacy was a novation to the contract and the new

clauses were accepted by the customers by the way of coercion as their properties were

detained and fee was charged for the services.

ISSUE IV: WHETHER THE DIRECTIONS TO THE CENTRAL INVESTIGATING AGENCY TO

INVESTIGATE ANY NEXUS BETWEEN THE GOVERNMENT AUTHORITIES AND SAYPM

RESULTING IN COMPROMISE OF ANY CITIZEN’S PERSONAL DATA IS REQUIRED?

¶IV.1 It is humbly submitted before Hon’ble High Court of City of Joy that the present writ

petition under article 226 of the Constitution of India seeks the to direct Central Bureau of

Investigation investigation to find out the nexus between the Government authorities and

SayPM which has led to compromise of citizens personal data. In a case before the Supreme

court, it has been laid that there can be no hard and fast rule of directing a particular case to

be investigated by the CBI. But in a case where an investigation is necessary to protect the

breach of fundamental right, an investigation by CBI will be best suited.46 The petitioner

deals with this issue in two parts, [A] That there is a possibility of nexus between the

government and SayPM [B] That the case is rare and involves national interest.

44 "Coercion" is the committing, or threating to commit, any act forbidden by the Indian

Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any

property, to the prejudice of any person whatever, with the intention of causing any

person to enter into an agreement. 45 Moot Proposition Paragraph 10. 46 State Of West Bengal & Ors v. Commtt.For Protect,Democratic, (2010) 3 SCC 571.


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[A] THAT THERE IS A POSSIBILITY OF NEXUS BETWEEN THE GOVERNMENT AND SAYPM

¶IV.2 It is humbly submitted that the following instances clearly show that there could be a

possibility of a nexus between the Government and the SayPM managers. SayPM used the

image of Prime Minister and his signature while advertising its services on billboards which

was not opposed by the ruling party. On another occasion there was a statement released by

Mrs. Money bag claiming that PMO demanded some user data right before the general

elections in Narnia. Moreover in the sting operation performed by the AnacondasPole, Mrs.

Money Bag revealed some association with the ruling party for providing them information

about the sale of a book written by the Prime minister and some other information.

Subsequently it is seen that SayPM accepts the sharing of data with law enforcement

agencies. Presence of such facts which establish a prima facie case or gives a prima facie

involvement of a person in a crime is a must.47Therefore there lie many facts which disclose a

prima facie case which is needful of an investigation.

[B] THAT THE CASE IS RARE AND INVOLVES NATIONAL INTEREST.

¶IV.3. It is humbly submitted that it is pertinent to note that the due to some other factors the

case is fits into the definition of rare and exceptional case. The supreme court held in a case

that high court shall order the rare and exceptional cases for CBI investigation.48 Firstly

SayPM is the largest e- commerce country of Narnia involved in the business of e-commerce

with a customer base of 10,00,00,000 and a merchant base of 10,00,000. It covers all the

activities of e-commerce right from online payment services such as mobile recharges, utility

payment bills, flight tickets, movie tickets, event booking as well as in-store payments.

Secondly the case involves the sharing of very sensitive personal financial data as well as

other information which if proved to be shared without the consent of the owner amounts to

breach of fundamental rights of the person. Therefore from the above facts it is evident that

the case is of high magnitude and involves national interest. The supreme courts have

reterieted in many cases that an issue of national interest should be investigated by

CBI49.Moreover a series of sting operations and investigations performed by media and

apprehension that the SayPM is involved with the government and is sharing the sensitive

personal data with them has led to an unrest in the public. In supreme court case, the court

47 Secretary Minor Irrigation & Rural Engineering Services U.P. and Others v. Sahngoo Ram Arya and Anr.,

AIR 2002 SC 2225. 48 Sakiri Vasu vs State Of U.P. and Others, (2008) 2 SCC 409. 49 Sujatha Ravi Kiran vs State Of Kerala And Ors, 2016 SCC OnLine Ker 787, State Of West Bengal & Ors v.

Committee for Protection of Democratic Rights & Ors., (2010) 3 SCC 571.


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held that whenever there is a need to do justice and to instil confidence in public mind, an

investigation by CBI can be ordered by the high court.50 Adding to this, the factsheet

mentions that no investigation was conducted when the allegations against the SayMo

application was made claiming that the application shared some data with foreign analyst

company. The present case is a mixture of allegations and claims full of doubts against the

government and a big company.

50 Gudalure M.J Cherian and Others v. Union of India, (1992) 1 SCC 397.


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PRAYER

Wherefore, in the light of the facts presented, issues raised, argument advanced and

authorities cited, it is most humbly prayed before the Hon’ble High Court of City of Joy that

it may be pleased to adjudge and declare that:

1. Directions to the Government and/ or any other appropriate authority to safeguard

privacy of the data of users of SayPM and other similar mobile applications,

including directions to prohibit SayPM from sharing details users of SayPM with

any entity/ person (including the Government), without the express written consent

of the data subject and in violation of applicable law.

2. Directions to the Government to frame or amend rules for the protection of rights of

citizens from mobile application/ internet based service providers so that such

internet based service providers do not compromise or share the personal data,

financial data and such other data or information of users in any manner

whatsoever.

3. Further, direct the Government to take all actions including steps towards making

Rules under Section 87 of the Information Technology Act 2000 so as to:

i. regulate the functioning of such mobile application and/or

internet based service providers;

ii. direct such mobile application and/or internet based service

providers to frame internal privacy policies, for

handling/dealing with personal data, financial data and such

other data or information of users, by framing appropriate rules;

and/or

iii. ensure that the privacy rights of the users are not compromised

and are duly protected.

4. Directions to the Central Investigating Agency to investigate any nexus

between the Government authorities and SayPM resulting in compromise

of any citizen‟s personal data


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The Hon’ble Supreme Court may be pleased to pass any other order as it deems fit in

the interest of

Justice, Equity and Good Conscience.

For this act of Kindness, the Appellant shall duty bound forever pray.

Place: City of Joy Sd/-

Dated: XX/XX/XXXX (Counsel for the Petitioner)

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