MEMORANDUM FOR RESPONDENT TEAM CODE:T18

DNLU INTRA MOOT COURT COMPETETION,2021

BEFORE THE HON’BLE

HIGH COURT OF INDIANA

UNDER ARTICLE 226 OF INDIANA CONSTITUTION

WRIT PETITION NO /2021
.
CASE CONCERNING THE

Mr. RAMESH……………………….…………………………………………………………. APPELLANT

Vs.

WHATSUP LLC …………………………………………………………………………RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICE OF THE HIGH COURT OF INDRAPRASTHA

MEMORIAL ON BEHALF OF THE RESPONDENT

1
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
TABLE OF CONTENTS

LIST OF ABBREVIATIONS 3
INDEX OF AUTHORITIES 4
STATEMENT OF JURISDICTION 7
STATEMENT OF FACT 8
QUESTION PRESENTED 10
SUMMARY OF ARGUMENTS 11
ARGUMENTS ADVANCED……..
…………………………………………………………………………………………….13
PRAYER …………………………………………………………………………………………………………………………………………………………………….27

2
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
LIST OF ABBREVIATION

AIR ALL INDIA REPORTER

ART. ARTICLE
ANR. ANOTHER
ACC ACCORDING
APC ALBERIAN PENAL CODE
J. JUSTICE
Ors OTHERS
SC SUPREME COURT
SCC SUPREME COURT CASES
SCR SUPREME COURT REPORTER
Vol. VOLUME
V. VERSUS

3
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
LIST OF AUTHORITIES

CASES

1. Council of Scientific and Industrial Research v K. G. S. Bhatt (1989) AIR 1972 (SC)
2. Dhakeswari Cotton Mills Ltd. v CIT West Bengal (1955) AIR 65 (SC)
3. Union of India v Rajeshwari & Co. (1986) 161 ITR 60 (SC)
4. Gurbakhsh Singh v State of Punjab (1955) AIR 320 (SC)
5. CIT v Maganlal Chaganlal (P) Ltd. (1997) 11 SCC 557 (SC)
6. Amarchand Sobhachand v CIT (1971) AIR 720 (SC)
7. CIT v Orissa Corp ltd. (1986) 159 ITR 0078 (SC)
8. ONGC Ltd. v Sendhabhai Vastram Patel (2005) 6 SCC 454 (SC)
9. Hero Vinoth (minor) v Seshammal (2006) AIR 2234 (SC)
10. (1962) AIR 1314 (SC)
11. Sir Chunnilal (cit. 14)
12. Santosh Hazari v Purushottam Tiwari (2001) 3 SCC 179 (SC)
13. Commissioner of Income Tax v P. Mohanakala (2007) 210 CTR 20 (SC)
14. Rabindra Nath Bose and others v. Union of India and others, AIR 1970 SC 470
15. R. v. Diary Produce Quota Tribunal (1990) 2 AII ER 434 : (1990) 2 WLR 1302
16. M.K Mallick, Law and Practice, 47 (12th ed., 2012,
17. S.A. Kini v. Union of India, AIR 1985 SC 893 : (1985) 3 SCR 754 : 1985 Supp. SCC 122(¶ 4) ; R.V. Customs
and Excise Commissioner ex parte Cooke and Stevenson, 1 AII ER 1068 (1970, Queen Bench
Division,Divisional Court),
18. (Indian legal and Economic forum v. U.O.I (1997) 10 SCC 728)
19. (Satish Chandra v. Union of India, AIR 1953 SC 250..)
20. (Art. 13 (3), the Constitution of India, 1950 ;
21. Brig Guardian Singh Uban v. Union of India. 1997 AIHC 886 (DEL) ;
22. Dalpat Rai Bhandari v. President of India, AIR 1993 SC 1 ; D.D Basu, Commentary on the Constitution of India,
(9th ed., 2014).
23. Garner B.A., Black’s Law Dictionary, (9th ed., 2009)
24. (1966) 1 QB 380(400).
25. (1988) 4 SCC 226: AIR 1988 SC 2211: JT 1988 (3) SC 765
26. Janata Dal v. H.S. Chaudhary(1992) 4 SCC 305: AIR 1993 SC 892: 1993 AIR SCW 248: 1993 Cr LJ 600
27. (2002) 2 SCC 333: AIR 2002 SC 350
28. AIR 1982 S.C. 1473
29. AIR 1987 SC 579
30. S.P. Gupta vs President of India and Ors. AIR 1982 SC 149
31. [1987] 4 SCC 463
32. AIR 1985 SC 391
33. Sheo Nandan Paswan v. State of Bihar, AIR 1987 SC 877.
34. A.R. Antulay v. R.S. Nayak, AIR 1984 SC 718.
35. Public Prosecutor, Madras v. R. Raju, AIR 1972 SC 2504
36. The Oriental Insurance Company Limited v. Meena Variyal, AIR 2007 SC 1609.
37. Javed v. State of Haryana,(2003) 8 SCC 369, 391
38. Quareshi v. State of Bihar , AIR 1958 MP 115 (paras. 15-18)
39. State of W.B. v. Ashutosh Lahiri, AIR 1995 SC 464
40. State of Gujarat v. Mirzapur Moti Kurshi Kassab Jamat, (2005) 8 SCC 534.
41. Narayana v. State of Andhra Pradesh, AIR 1996 SC 1765.
4
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
42. Commr., H.R.E. v. Lakshmindra, AIR 1954 SC 282.
43. Durgah Committee v. Syed Hussain Ali, AIR 1961 SC 1402.
44. Onkar Singh v. State of Rajasthan, 1987 (II) RLR 957.
45. P. Rathinam v. Union of India, (1994) 3 SCC 394.
46. RC Cooper v. Union of India, (1970) 2 SCC 298.
47. Maneka Gandhi v. Union of India, (1978) 1 SCC 248
48. Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454.
49. Thomas Master v. Union of India, 2000 SCC OnLine Ker 430.
50. Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645.
51. Olga Tellis v. Bombay Municipal Corp., (1985) 3 SCC 185.
52. Gian Kaur v. State of Punjab, (1996) 2 SCC 648.
53. P. Rathinam v. Union of India, (1994) 3 SCC 394.
54. RC Cooper v. Union of India, (1970) 2 SCC 298.
55. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608.
56. Thomas Master v. Union of India, 2000 SCC OnLine Ker 430.
57. Common Cause (A Registered Society) v. Union of India, 2018 SCC OnLine SC 208.
58. N Adithyan v. Travancore Devaswom Board, (2002) 8 SCC 106.
59. Javed Khan v. State of Harayana, (2003) 8 SCC 369.
60. State of Bombay v. Narasu Appa Mali, (1951) 53 Bom LR 779.
61. Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, (1983) 4SCC 522.
62. Moh. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731.
63. M. Ismail Faruqui v. Union of India, (1994) 6 SCC 360.
64. State of Gujarat v. Mirzapur Moti Kurshi Kassab Jamat, (2005) 8 SCC 534.
65. Narayana v. State of Andhra Pradesh, AIR 1996 SC 1765.
66. Commr., H.R.E. v. Lakshmindra, AIR 1954 SC 282.
67. Durgah Committee v. Syed Hussain Ali, AIR 1961 SC 1402.
68. Onkar Singh v. State of Rajasthan, 1987 (II) RLR 957.
69. M. Peeran Sahib v. Special Officer-cum-Collector, AIR 1988 AP 377.
70. Re. Noise Pollution, AIR 2005 SC 3136.
71. Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Association, (2000) 7 SCC 282.
72. Ramjilal Modi v. State of Uttar Pradesh, AIR 1957 SC 620.

LEGISLATION
1. CONSTITUION OF INDIA,1950
2. INDIAN PENAL CODE,1860
3. THE MENTAL HEALTH CARE ACT,2017

BOOKS

5
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
1. SALLEKHANA IS NOT SUICIDE BY T,K,TUKOL
2. SUICIDE BY EMILE DURKHIEM
3. EMPEROR CHNADRAGUPTA MAURYA BY ADITYA KAY
4. INTRODUCTION OF CONSTITUTION BY D.D.BASU
5. INDIAN CONSTITUTIONAL LAW BY M.P.JAIN
6. REALITY BY S.P.JAIN
7. ENCYCLOPAEDIA OF SOCIAL SCIENCE

WEBSITE
1. SCC ONLINE
2. MANUPATRA ONLINE RESOURCES
3. LEXIS NEXIS LEGAL
4. OXFORD DICTIONARY
5. HINDUSTAN TIMES

6
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
STATEMENT OF JURISDICTION

THE PETITIONER HAS FILED THE WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION
OF INDIANA IN THE HIGH COURT OF INDRAPRASTHA, THE WRIT PETITION IS NOT
MAINTAINABLE UNDER THE ARTICLE 226 OF THE CONSTITUTION.

7
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
STATEMENT OF FACT

BACKGROUND
The Republic of Alberia is sovereign, socialist, secular and democratic in nature. The population of Alberia
comprises of various religious communities, namely Indu, Ruslim, Nikh, Rhistian, Few, Kain and some atheists.
Alberia is a quasi-federal state, having decentralisation of power between the union and provinces, though in
certain affairs, the union is given prominence over provinces. Kain religion, though being only 5 % of Alberian
population, was prominent in Alberia for being pious, devotional and dedicated towards their religious tenets.
Nithara, a religious practice of fasting unto death, is prevalent in Nilamber sect of Kains. Nithara is practised,
when all the purpose of life have been accomplished or when the body is unable to serve any other purpose,
with the aim of achieving salvation. Person opting for Nithara is supported by the entire Nilambar community,
provided with all the necessities required in the entire process of performing Nithara. The house of the person,
opting for Nithara, becomes a pilgrimage for entire community & people of the of community look at the
person with utmost respect and reverence.

PIL FILED BY NIRANJAN KUMAR BEFORE HIGH COURT OF SAJASTHAN

Mr. Niranjan Kumar, public spirited lawyer, filed a writ petition in High Court of Sajasthan, in order to seek
directions to be given to Union of Alberia and State of Sajasthan, so as to declare practice of Nithara, a criminal
act, under Section 309 of APC that makes attempt to suicide, a criminal act. Petitioner also sought directions to
make abetment of Nithara, a criminal act, punishable under Section 306 of APC. . In response to the above filed
petition, the Stae of Sajasthan & UOA questioned the locus standi of the petitioner and argued that, practice of
Nithara is protected under under A. 25(1), 26(b), 29(1) of COA. Also, Nilamber Parishad, an intervener allowed
by High Court claimed Nithara to be covered under Personal laws of Kains and hence, cannot be contemplated
under expression “laws in force” of Article 13(1) of COA. Following the arguments presented above, the
petitioner claimed that locus standi doctrine is not important to file a PIL as any person espousing for any claim
having interest and benefit for public at large can file it. He further added that Nithara is violative of A. 21 of
COA and hence, practice can’t be protected under any pretext.

DECISION BY DIVISION BENCH OF HIGH COURT OF SAJASTHAN

The High court unanimously agreed with the petitioner and directed SOS & UOA to criminalise the practice of
Nithara and its abetment under S.309 and S.306 of APC respectively.

EFFECT OF DECISION OF HIGH COURT

People of Kain religion were aggrieved by the judgement of the High court which led to resentment and protest
among the community, demanding immediate government interference. As a result, State of Sajasthan and
Nilamber Parishad filed special leave petitions before Supreme Court of Alberia. However, even before
hearings could start at SC, UOA enacted a legislation, “The Kain Religious Freedom (protection of the practice
of Nithara) Act,2020” aiming to undo the effect of High Court’s judgement. Section 2 of the Act stated that,
8
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
“Notwithstanding any judgment, order or direction of any court, the practice of Nithara among the people
professing the Kain religion shall be valid and the practice of Nithara shall not be understood to mean an
attempt to commit suicide under any law prohibiting or making the attempt to commit suicide, an offence.”

WRIT PETITION FILED BY NIRANJAN KUMAR

Owing to legislative interference by UOA, Mr. Niranjan Kumar filed a petition before SC of Alberia under A.32
of COA challenging the legislative Act passed by UOA, stating that the Act is violative of A.21 of COA and
that, the law is bill of attainder, hence void as it is unconstitutional.

CLUBBING OF PETITIONS BY HON’BLE SUPREME COURT OF ALBERIA

Both the SLPs under A.136 of COA and the writ petition under A.32 have been admitted by the SC of Alberia
and the court clubbed these petitions as these issues were interconnected. After initial hearing by two judge
bench of the SC, case was referred to CJ of SC for constituting a Constitution bench under A.145 (3) of COA as
these issues involved substantial question of law with respect to interpretation of Constitution of Alberia and the
matters are now pending in front of 5- judge Constitution bench of the Hon’ble Supreme Court of Alberia.

9
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
ISSUES PRESENTED

ISSUE 1
WHETHER THE PETITION IS MAINTAINABLE BEFORE THE HIGH COURT OF
INDRAPRASTH?

ISSUE 2
WHETHER THE ARGUMENT OF 'BREACH OF PRIVACY' JUSTIFIABLE IN THE ABSENCE OF
LAW DEFINING THE LIMIT OF PRIVACY?

ISSUE 3
WHETHER THE APPLICATION OF PRIVACY POLICY CONSTITUTES A VIOLATION OF
PRINCIPLES OF ARTICLE 14?

ISSUE 4

WHETHER PRESENCE OF DATA PROTECTION LAW COULD HAVE AVOIDED THE

APPLICATION OF NEW PRIVACY POLICY?

10
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
SUMMARY OF ARGUMENTS
1. WHETHER THE PETITION IS MAINTAINABLE BEFORE THE HIGH COURT OF
INDRAPRASTH?

It is respectfully submitted before the Honourable High Court that the writ petition is not maintainable as it
cannot be granted when there is no violation of right to privacy also it cannot be maintainable as there is
contract and the consent is involved. So, the writ petition should not be maintainable. According to clause 1of
rule 6 of IT Rules, 2011, which provides that disclosure of sensitive personal data by a body corporate to any
third party shall require the prior permission of the provider of such information.

2. WHETHER THE ARGUMENT OF 'BREACH OF PRIVACY' JUSTIFIABLE IN THE ABSENCE

OF LAW DEFINING THE LIMIT OF PRIVACY?

The argument ‘Breach of Privacy’ is not justifiable in the absence of law defining the limit of privacy though
there is no specific statue that deals with the Privacy and Data protection like that of European Unions, but there
are several regularity framework that are present in India, dealing with the Data Protection and Privacy for
example the Information Technology Act and The Information Technology Rules, also the and the Reasonable
Security Practices and Procedures and Sensitive Personal Data or Information Rules of 2011 (‘Data Protection
Rules’). Under these regularity frameworks the Whatsup’s policy stand corrected. Thus, this argument is not
justifiable.

3.WHETHER THE APPLICATION OF PRIVACY POLICY CONSTITUTES A VIOLATION OF

PRINCIPLES OF ARTICLE 14?

The application of the privacy policy does not constitute the violation of the principles of article 14 because the
whatsup is not a state actor also it does not come under the ambit of state or its instrumentality and it is not
performing any state function through which that can be brought. Whatsup is not acting arbitrary and there is a
choice given to its user while opting in or out its new policy. Also, the Whatsup is not in the dominant position
in market according to factors given by competition commission of India.

11
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
4.WHETHER PRESENCE OF DATA PROTECTION LAW COULD HAVE AVOIDED THE
APPLICATION OF NEW PRIVACY POLICY?

The presence of Data protection law could not have avoided the application of new privacy policy because there
is already existing law which is present in the regards of data protection for example IT Rules 2011,

12
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
ARGUMENTS ADVANCED

1 WHETHER THE PETITION IS MAINTAINABLE BEFORE THE HIGH COURT OF

INDRAPRASTH?

It is humbly submitted before the Hon’ble court that the writ petition filed under Art. 226 of the Constitution,
the respondent claimed that the 2021 Update does not in any manner negate the choice of the user made under
the 2016 Update and that it is applicable only to the users who had ‘opted-in’ to the 2016 Update as also the
users who joined WhatsApp services after the 2016 Update agreeing to those terms. It is further asserted that the
2021 Update is aimed at providing users with further transparency about how WhatsApp collects, uses and
shares data and to inform the users about how optional business messaging features work when certain business
messaging features become available to them. It is further asserted that 2021 Update does not expand
WhatsApp’s ability to share data with Facebook and does not impact the privacy of personal messages of the
WhatsApp users; it provides more specifics on how WhatsApp works with businesses that use Facebook or
third-parties to manage their communications with users on WhatsApp.

It is humbly submitted before the Hon’ble court that it is further asserted by Respondent that its 2021 Update
has been challenged in several judicial fora, including before this Court and the Supreme Court. It makes
specific reference to the two petitions pending before this Court that is, W.P.(C) No.677/2021 titled Chaitanya
Rohilla vs. Union of India & Ors., 1 and W.P.(C) No.1355/2021 titled Dr. Seema Singh & Anr. vs. Union of
India & Anr.2 It is further contended that the petitioner, in the above-referred Special Leave Petition and the
intervener therein (Internet Freedom Foundation), have filed applications seeking to restrain WhatsApp from
implementing the 2021 Update. The said applications are pending before the Supreme Court.

It is humbly submitted before the Hon’ble court that the writ petition is invoked not only for the enforcement of
the fundamental rights but also for any other purpose but it only issued against the State as defined under the
Art. 123 but here in this present case it is intended that the Whatsup is not within the meaning of the State, the
Whatsup is the private body, the question arises here that the maintainability of a writ petition against the
company. However, owing to factual reasons, the aspect of maintainability is concerned. The respondent
submits that since the terms of service agreement between users and WhatsUp cannot be traced back to any
statutory provision, thus the whatsup will not fall under the writ jurisdiction.

1
Chaitanya Rohilla vs. Union of India & Ors (W.P.(C) 677/2021)
2
Dr. Seema Singh & Anr. vs. Union of India & Anr W.P.(C) 1355/2021
3
Art. 12, Constitution of India.
13
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
It is humbly submitted before the Hon’ble court that in the case of Zee telefilm v Union of India 4 it was held
that the private body will also fall under the definition of state under Article 12 of the Constitution if it
discharges the public function, but in the present case the Whatsup is a messaging app only giving the service to
two private individuals thus, it cannot be brought under the definition of State under the Art. 12 of the
Constitution.5

It is humbly submitted before the Hon’ble Court that the under the Rule 6 of IT Rules, 20116 i.e.,

6. Disclosure of information. -

(1) Disclosure of sensitive personal data or information by body corporate to any third party shall require prior
permission from the provider of such information, who has provided such information under lawful contract or
otherwise, unless such disclosure has been agreed to in the contract between the body corporate and provider of
Information, or where the disclosure is necessary for compliance of a legal obligation: Provided that the
information shall be shared, without obtaining prior consent from provider of information, with Government
agencies mandated under the law to obtain information including sensitive personal data or information for the
purpose of verification of identity, or for prevention, detection, investigation including cyber incidents,
prosecution, and punishment of offences. The Government agency shall send a request in writing to the body
corporate possessing the sensitive personal data or information stating clearly the purpose of seeking such
information. The Government agency shall also state that the information so obtained shall not be published or
shared with any other person.

(2) Notwithstanding anything contained in sub-rule (1), any sensitive personal data or information shall be
disclosed to any third party by an order under the law for the time being in force.

(3) The body corporate or any person on its behalf shall not publish the sensitive personal data or information.

(4) The third party receiving the sensitive personal data or information from body corporate or any person on its
behalf under sub-rule (1) shall not disclose it further.

It is humbly submitted before the Hon’ble Court that by the above maintained statue the respondent is authorize
to use the data if it is collected by the consent of the parties and in the instant case the Whatsaup has the opt out
or opt in policy in terms of consent.

4
Zee telefilm v Union of India, (2005) 4 SCC 649
5
Art. 12 Constitution of India.
6
Information Technology Rules, 2011.
14
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
It is humbly submitted before the Hon’ble Court that in the case of Karmanya Singh Sareen v. Union of India, 7
the Delhi High Court held that users cannot now compel WhatsApp to continue with its original terms of
service when the original terms entitled WhatsApp to unilaterally change its privacy policy and stipulated the
continued use of WhatsApp service, post amendment of privacy policy, to be considered as “deemed consent”
to the terms of the revised policy.

It is humbly submitted before the court that the Writ Petition is not maintainable as it does not violate the right
to privacy of its users. Also, the whatsup does not fall under the purview of State as defined in Article 12 of the
Constitution.

2. WHETHER THE ARGUMENT OF 'BREACH OF PRIVACY' JUSTIFIABLE IN THE ABSENCE

OF LAW DEFINING THE LIMIT OF PRIVACY?

It is most humbly submitted before the Hon’ble court that the argument ‘Breach of Privacy’ is not justifiable in
the absence of law defining the limit of privacy. It will be wrong to say that there is absence of law there are
various regulatory framework which is also present in the present and there is no breach of privacy occurred
according to those regulatory frameworks.

It is most humbly submitted before the Hon’ble court that in the context of digital data processing, certain
aspects of data protection are covered under the Information Technology Act of 2000 (‘IT Act’) and the
Reasonable Security Practices and Procedures and Sensitive Personal Data or Information Rules of 2011 (‘Data
Protection Rules’).

It is most humbly submitted before the Hon’ble court that Rule 4 of the Data Protection Rules 8 creates a special
obligation upon the body corporate to ensure that its privacy policy is available for view to individuals who
have provided information to further a lawful contract. The distinction between information collected under a
contract and information otherwise obtained seems to ascribe a higher threshold of protection for data that is
contractually obtained.

It is most humbly submitted before the Hon’ble court that under the Rule 6 of IT Rules, 20119 i.e.,

6. Disclosure of information. -

7
Karmanya Singh Sareen v. Union of India, (W.P.(C) 7663/2016)
8
Rule 4, Data Protection Rules.
9
Information Technology Rules, 2011.
15
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
(1) Disclosure of sensitive personal data or information by body corporate to any third party shall require prior
permission from the provider of such information, who has provided such information under lawful contract or
otherwise, unless such disclosure has been agreed to in the contract between the body corporate and provider of
Information, or where the disclosure is necessary for compliance of a legal obligation: Provided that the
information shall be shared, without obtaining prior consent from provider of information, with Government
agencies mandated under the law to obtain information including sensitive personal data or information for the
purpose of verification of identity, or for prevention, detection, investigation including cyber incidents,
prosecution, and punishment of offences. The Government agency shall send a request in writing to the body
corporate possessing the sensitive personal data or information stating clearly the purpose of seeking such
information. The Government agency shall also state that the information so obtained shall not be published or
shared with any other person.

(2) Notwithstanding anything contained in sub-rule (1), any sensitive personal data or information shall be
disclosed to any third party by an order under the law for the time being in force.

(3) The body corporate or any person on its behalf shall not publish the sensitive personal data or information.

(4) The third party receiving the sensitive personal data or information from body corporate or any person on its
behalf under sub-rule (1) shall not disclose it further.

Rule 6(1) of the 2011 Rules provides that disclosure of sensitive personal data by a body corporate to any third
party shall require the prior permission of the provider of such information. Such prior permission may be
contained in the contract between the provider of sensitive personal data and the body corporate, in terms of
which, the sensitive personal data was provided to the body corporate. 10 The aforesaid Rule 6(1) applies only to
sensitive personal data and does not apply to non-sensitive personal data.11

It is humbly submitted before the Hon’ble Court that Whatsup has taken the due consent of its users and also
given the opt out option for its user So, the whatsup does not infringe the right to privacy thus, the argument
‘Breach of Privacy’ in the absence of law is not justifiable.

3.WHETHER THE APPLICATION OF PRIVACY POLICY CONSTITUTES A VIOLATION OF

PRINCIPLES OF ARTICLE 14?

10
Rule 6, IT Rules 2011.
11
Rule 6, IT Rules 2011.
16
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
12
It is humbly submitted before the Hon’ble court that Art. 14 out-laws arbitrary state action. When there is
arbitrariness in state action, Article 14 springs into action and the court strike down such action. Arbitrary state
action infringes Article 14.13

It is humbly submitted before the Hon’ble court that in the case of Food Corporation of India v Bhanu Lodh 14 it
was held that every action of state and its instrumentality, must be informed by reason. Any state action which
is not informed by the reason cannot be protected as it would be easy for the citizen to question such an action
being arbitrary. “Non arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all
action of every public functionary in whatever sphere must be guided by reason and not by humour, whim and
caprice aor personal predilections of the persons entrusted with task on behalf of the state and exercise of all
powers must be for public good instead of being an abuse of power.”

It is humbly submitted before the Hon’ble court that whatsup being the private entity does not fall within the
ambit of definition of state yet the Whatsup’s policy is not unreasonable and it informed its user about its
policy.

It is humbly submitted before the Hon’ble court that the Whatsup is a messaging app that works between two
individual and there are a lot of similar application present in the market for example telegram, signal and being
the digital enterprise there is heavy fluctuation happens in this market and users swift very fast. Thus, the
whatsup doesn’t have the dominance in the market.

It is humbly submitted before the Hon’ble court that according to Competition Commission the Dominance has
been traditionally defined in terms of market share of the enterprise or group of enterprises concerned.
However, a number of other factors play a role in determining the influence of an enterprise or a group of
enterprises in the market. These include: market share, the size and resources of the enterprise; size and
importance of competitors; economic power of the enterprise; a vertical integration; dependence of consumers
on the enterprise; extent of entry and exit barriers in the market; countervailing buying power; market structure
and size of the market.

It is humbly submitted before the Hon’ble court that the whatsup is not fall under many above mentioned
factors and due the digital market there is no stability in the regards of the market share.

12
Art. 14 -Equality before law- the State shall not deny to any person equality before the law and the equal protection of
laws within the territory of India.
13
A.P. Aggarwal v Government of NCT of Delhi, AIR 2000 SC 205
14
Food Corporation of India v Bhanu Lodh (2005) 3 SCC 618
17
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
It is humbly submitted before the Hon’ble court that the abuse of the dominance is defined under the Section
4(2) of the Competition Act15 i.e.,

(i) directly or indirectly imposing unfair or discriminatory condition in purchase or sale of goods or
service;
(ii) directly or indirectly imposing unfair or discriminatory price in purchase or sale (including
predatory price) of goods or service;
(iii) limiting or restricting production of goods or provision of services or market;

(iv) limiting or restricting technical or scientific development relating to goods or services to the
prejudice of consumers;
(v) denying market access in any manner;

(vi) making conclusion of contracts subject to acceptance by other parties of supplementary obligations
which, by their nature or according to commercial usage, have no connection with the subject of
such contracts;
(vii) using its dominant position in one relevant market to enter into, or protect, other relevant market.

It is humbly submitted before the Hon’ble court that the by seeing the above maintained criteria the Whatsup do
not have the dominant position in the market also being in the digital era where the users can switch easily no
one deemed to have the dominant position, also the whatsup is not abusing the dominant position of its
messaging application.

It is humbly submitted before the Hon’ble court that the respondent action is not arbitrary and unfair also the
respondent did not abuse of the dominance in the market. Thus, the application of privacy policy does not
constitute the violation of the Article 14.

4. WHETHER PRESENCE OF DATA PROTECTION LAW COULD HAVE AVOIDED THE

APPLICATION OF NEW PRIVACY POLICY?

It is humbly submitted before the Hon’ble court that the presence of the data protection law could not have
avoided the application of new privacy policy.

15
Section 4, The Competition Act.
18
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
It is humbly submitted before the Hon’ble court that in India data protection in the form of Personal Data
Protection bill, 2019(PDP Bill), which yet to became the Act, could not avoided the application of the new
privacy policy, However, the PDP bill which was being framed to protect the fundamental right of privacy of
the citizens, it is indirectly encroaching upon this right, therefore, not avoiding the application of privacy policy
in any way possible.

It is humbly submitted before the Hon’ble court that the bill is only an illusion on protection of privacy and
under the garb of it, it is giving enormous power to the government to extract the personal data and sensitive
personal data of the citizens and it can do so without taking consent from the citizens and without being
transparent in their manner. There is no check over the powers that the Central government can exercise with
respect to the data of the individuals.

It is humbly submitted before the Hon’ble court that processing of personal data is also exempted from
provisions of the Bill for certain other purposes such as prevention, investigation, or prosecution of any offence,
or research and journalistic purposes. Further, personal data of individuals can be processed without their
consent in certain circumstances such as: (i) if required by the State for providing benefits to the individual, (ii)
legal proceedings, (iii) to respond to a medical emergency. Therefore, if the new privacy policy gets included
under any of these heads, PDP Act will get exempted from it and no privacy will be provided, rather it can be
used for individual gains by the central government.

It is humbly submitted before the Hon’ble court that the bill does not prohibit the company to modify or change
the terms and conditions of the contract after its enforcement, the result of which was that the WhatsUp
modified the terms of its contract resulting in a clause that is contrary to its initial commitments and objectives
and can do it in future also. Therefore, a company must not be able to modify terms according to their whims
and mandate users to abide by it simply because they consented to the initial contract. Terms of such contracts
must be regulated and privacy laws must ensure that changes in these policies have undergone user consent
otherwise privacy will be a myth.

It is humbly submitted before the Hon’ble court that apart from this bill there already many regulations that
exist yet none of them avoided the application of new privacy policy. Rule 6 of IT Rules, 2011 specifically
stated that if the due consent has been taken before the contract regarding the sensitive information, then
according to that contract the corporate can share the information with the third party.

It is humbly submitted before the Hon’ble court that many countries like Japan, South Korea, Thailand, the
Philippines also have data protection laws in their respective countries which are also inspired from the GDPR
law of the EU yet WhatsUp can implement its new privacy policy there. The reason being, these laws rely on
19
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
getting individuals’ consent to collect, use and share their personal data, while the GDPR avoids the need to get
consent.

It is humbly submitted before the Hon’ble court that the Indian PDP bill is also based on individual consent
basis like that of Japan, Singapur etc and even after being in line with the GDPR law of E.U. can misuse
personal data and cannot avoid the new privacy policy from implementation. However, the PDP bill is good
legislation yet it is giving too much power to the government and if the government entered into a contract with
any person outside the territory of India, including any company incorporated outside the territory of India like
whatsUp, the government can exempt it from the provisions of the act.

It is humbly submitted before the Hon’ble court that the presence of Data protection law the Application of the
privacy policy could not be avoided.

20
MEMORANDUM FOR RESPONDENT TEAM CODE:T18
PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the counsel on behalf of
Respondents humbly submits that the Hon’ble Court may be pleased to adjudge and declare:

 Declare that WhatsUp, not being a state/instrumentality of state does not discharge public function
and the writ petition is not maintainable/admissible.
 Upheld that Right of Privacy is a Fundamental right, however, due to lack of legislative framework
the right is practically unenforceable.
 Declare that Privacy policy update 2021 does not create monopoly or dominant position violating
Competition Act, 2002 and infringing Art. 14 of the Constitution.
 Declare and issue guideline or directions whatsoever indicating that updated privacy policy does
not stand in violation of data protection bill, 2019.

OR

Any other relief which this Hon’ble Court may deem fit and proper also be passed in favor of the
RESPONDENT against the appellant as facts and circumstances of the case to meet the ends of
justice, equity and good conscience.

All of which is respectfully affirmed and submitted.

Counsel for Respondent

Sd/-

21